TRANSCRIPT OF PROCEEDINGS

© The State of Queensland (Department of Justice and Attorney-General).  Apart from any use permitted under the Copyright Act 1968 (Cth), all other rights are reserved.  You must not copy, modify or distribute this material without the written authority of the Director, Recording and Transcription Services, Queensland Courts.

DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE SMITH

Appeal No 646 of 2022

SKS	Appellant

and

COMMISSIONER OF POLICE 	Respondent

BRISBANE

10.32 AM, TUESDAY, 19 JULY 2022

JUDGMENT

Any Rulings that may be included in this transcript, may be extracted and subject to revision by the Presiding Judge.

WARNING:  The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence.  This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories.  You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.

HIS HONOUR:   Well, this is an appeal against a sentence imposed in the Richlands Magistrates Court on 9 February 2022.  The appellant pleaded guilty to one contravention of a domestic violence order.  He was sentenced to 18 months imprisonment to serve six months, with 85 days pre-sentence custody declared.  The grounds of the appeal are, firstly, the magistrate erred in punishing the appellant for the offence of assault occasioning bodily harm;  secondly, he failed to consider the likely impact of immigration detention/deportation, and, thirdly, the sentence was excessive.

The appellant was born on the 4th of May 1997.  He had two prior convictions, one for public nuisance, 13 April 2016, and one for common assault, 14 October 2021.  He was placed on a good behaviour bond for the latter and breached that by the present offending.  It is of some note that no convictions were recorded for the previous offences.  

As to the facts of this case, on 7 October 2021, a temporary domestic violence order was made against him.  In breach of this order, on 6 November 2021, he called the complainant.  When she arrived home, he yelled at her.  He punched her on the head twice.  He dragged her across the ground by the hair.  He threw her into a fence and kicked her.  He threatened to run her over and threatened to hit her with a machete.  The Prosecutor informed the Court the appellant had served 85 days in custody.  The Prosecutor submitted that a term of imprisonment of 12 months was appropriate.  The magistrate challenged this and said:

If this was a normal AOBH at this level, you think 12 months would do it?  This is even more serious because it is in breach of an order.

The Prosecutor submitted the reason for his submission was because of the maximum penalty.  The Defence lawyer informed the magistrate that her client was 24;  he had had no issues with drugs, alcohol or mental health.  He was religious and attended church regularly.  The Court was informed he was a New Zealand citizen, and that Border Force had been notified of the proceedings.  It was pointed out that the offence was not an aggravated offence.  Three comparable decisions were referred to.  It was submitted that six to nine months imprisonment should be imposed, with a parole release date as at the date of sentence.  The magistrate, in his reasons, took into account the plea of guilty.  He felt it was an appalling act of domestic violence and noted the appellant was on a good behaviour bond at the time.  

The magistrate referred to the facts of the case and noted that if he was dealing with a normal assault occasioning bodily harm case, six to nine months would not be appropriate.  In the end, he imposed the penalty to which I referred to earlier.  

The appellant submits the magistrate erred in sentencing the appellant as if it were an assault occasioning bodily harm offence.  It is also submitted the magistrate failed to take into account the potential effect of immigration detention/deportation.  It is also submitted, by reference to the comparable decisions, the sentence was excessive.  By 
way of evidence from the bar table not objected to – I was informed today that the appellant has been in immigration detention since the parole release date on 15 May 2022.  

The respondent, on the other hand, submits the magistrate did not err in his remarks concerning assault occasioning bodily harm offences.  It is submitted, however, the magistrate did err in failing to have regard to the principles relating to immigration detention/deportation.  It is, however, submitted by the respondent that the comparables show the sentence was not excessive, albeit towards the high end of the range.

Turning to ground 1, the maximum penalty for this offence was three years imprisonment or 150 penalty units.  The potential maximum for the offence of assault occasioning bodily harm was seven years imprisonment.  In R v De Simoni [1981] 147 CLR 383 at page 389, Chief Justice Gibbs held that while a Court should take into account all of the circumstances of the offence, no one should be punished for an offence of which they have not been convicted.  Also see R v Pearce [2020] QSC 114.  In my view, having read all of the transcripts, the magistrate did purport to sentence for the offence of assault occasioning bodily harm.  He was not charged with that.  In my view, an error occurred on this ground.  Of course, the magistrate was entitled to take into account the facts of the case and determine how serious the breach was.  But in my view, the magistrate exceeded the bounds here.  

As to ground 2, in R v Norris [2018] QCA 27 and R v UE [2016] QCA 58, it was held that the prospect of immigration detention and deportation and any resulting hardship which may be caused may be a relevant mitigating factor.  As it turns out in this case, there has been hardship caused, bearing in mind the fact the appellant has remained in immigration detention since May of this year.  In those circumstances, I find that a miscarriage has occurred in this case.  

In the circumstances, I should resentence the appellant afresh, and I now turn to the comparable decisions.  In ETB v The Commission of Police [2018] QDC 26, the appellant received six months imprisonment.  He pleaded guilty to two breaches of domestic violence orders and a common assault.  The contravention was a verbal assault.  The common assault involved punching.  It also breached a suspended sentence.  He had four previous convictions for breaches of domestic violence orders.  In my opinion, the offending was less serious, but his history was worse.  

In Baker v The Queensland Police Service [2019] QDC 258, the appellant pleaded guilty to one breach of a domestic violence order, some drug charges and failing to appear.  The contravention involved physical violence and threats of violence to the complainant’s dog.  He received 12 months cumulative on an activated suspended sentence which had been imposed for an offence of violence.  He had numerous previous convictions for offences of violence and breaches of domestic violence orders.  In LJS v Sweeney [2017] QDC 18, the appellant pleaded guilty to two counts of aggravated contraventions of a domestic violence order.  Both involved physical assaults.  He had 14 previous convictions.  He was sentenced to two years imprisonment to serve eight months.  He had a far more serious history.  

The Crown relies on SAE v The Commissioner of Police [2017] QDC 254.  In that case, the appellant appealed a sentence of nine months imprisonment in respect of one breach of a DVO.  Twenty-six days pre-sentence custody was declared.  He was also dealt with for an obstruct police offence.  He was dealt with for a breach of a six-month wholly suspended sentence.  That was wholly activated, and he was ordered to serve the nine months cumulative on that, with parole after five months.  In that case, the complainant was awoken to a punch to the head.  The appellant verbally abused her.  She tried to run from the room;  he closed the door, punched her in the head and ribs, grabbed her hair, said he was going to kill her.  She escaped;  her phone was smashed.  He was 27 years of age and had a criminal history including for one offence of assault occasioning bodily harm committed against the same complainant.  He was sentenced for that offence two days prior to the charge the subject of the appeal.  The sentence was not disturbed.  

In RGD v The Police Service [2018] QDC 147 the appellant pleaded guilty to three counts of contravening an aggravated DVO offence and receive 18 months imprisonment cumulative on a 15-month sentence.  Those offences occurred on the same day;  there was a struggle, the complainant was pushed into a window which was broken.  About two and a-half hours later he returned home and was aggressive;  yelling abusively, threatening to kill her with a piece of glass.  He left and later returned home and was abusive.  He had a 10-page criminal history including six previous like offences.  At the time of his sentence he was subject to both a probation order and parole order for like offending including for contravening a DVO.  His parole was cancelled.  At the time of sentence he had only served one day in pre-sentence custody, but there was an additional one month and three days in custody.  He was 25, there were earlier pleas, there was a continued relationship with the aggrieved and the children.  He was unemployed.  Ultimately, the penalty was held to be within the range.  

Having considered all of the comparable decisions, in light of the extent of extended actual physical violence in this case, but bearing in mind the appellant’s limited prior history and the potential and actual effect of deportation and immigration detention a number of penalties are open here.  I think a sentence in the order of 12 months with release after a third was certainly open, but also I consider a prison probation order would have been within the range.  Bearing in mind the hardship flowing from the immigration deportation and immigration detention I am persuaded that this is an appropriate case for a prison probation order with a special condition that the appellant undergo domestic violence counselling.  I think in that way the community and the complainant receives additional protection if the appellant receives important counselling to deal with the effect of domestic violence.

In those circumstances I will make the following orders:  One, the appeal is allowed.  Two, I set aside the orders made by the Magistrate and in lieu thereof I make the following orders:  One, I record a conviction.  Two, I order the appellant be imprisoned for a period of six months.  Three, I order he be placed – subject to his consent which is to be obtained by Ms Jones, on probation on the following conditions for a period of 18 months.  The conditions are;  he must not commit another offence during the period of the order.  He must report to an authorised corrective services officer at – whereabouts?

MS JONES:   The difficulty will be if he’s released from immigration detention, I guess the question is where. 

HIS HONOUR:   Is he in Queensland or not?

MS JONES:   I believe so.  Perhaps if we could just make it ‑ ‑ ‑ 

HIS HONOUR:   I will make it at Brisbane.

MS JONES:   Brisbane.

HIS HONOUR:   Within 24 hours of his release from immigration detention?

MS JONES:   Yes.  Thank you.

HIS HONOUR:   Three, he must report to and receive visits from an authorised corrective services officer as directed.  Four, he must take part in counselling  and attend other programs as directed by the Court or an authorised corrective services officer during the period of the order.  Five, he must notify the authorised corrective services officer of every change of his place of residence or employment within two business days after the change happens.  Six, he must not leave or stay out of Queensland without permission of an authorised corrective services officer.  Eight, he must comply with every reasonable direction of an authorised corrective services officer.  Nine, he must submit to such medical psychiatric or psychological treatment directed towards domestic violence as directed.  

Pursuant to section 159A of the Penalties and Sentences Act, I declare the appellant has served – has anyone done the calculations?

MS REYNOLDS:   I believe it’s six months already that he has served.

HIS HONOUR:   Shall I just say he has served 180 days pre-sentence custody and I state the dates are between the 16th of November 2021 and the 15th of May 2022 and I declare that to be time already served under the sentence.

______________________