DISTRICT COURT OF QUEENSLAND

CITATION:	HJA v Commissioner of Police [2022] QDC 285	
PARTIES:	HJA
(Appellant)
v
COMMISSIONER OF POLICE
(Respondent)	
FILE NO:	2751/22
	
DIVISION:	Civil	
PROCEEDING:	Appeal - Justices Act 1886 (Qld) s 222	
ORIGINATING COURT:
	District Court of Queensland at Brisbane	
DELIVERED ON:	14 December 2022	
DELIVERED AT:	District Court of Queensland at Brisbane	
HEARING DATE:	8 December 2022	
JUDGE:	Loury KC DCJ	
ORDER:	1.	Appeal dismissed.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE –where the appellant argues the period he should serve should not be more than six months – where the appellant has a past history of contravening domestic violence orders 	
LEGISLATION:	Penalties and Sentences Act 1992 (Qld) s 9(3), s 9(10), s 9(10A)	
COUNSEL:	The appellant represented himself
D Giorgio (solicitor) for the respondent	
SOLICITORS:	The appellant represented himself 
Director of Public Prosecutions (Queensland) for the respondent	

Introduction
[1]	On 21 October 2022 the appellant pleaded guilty to eight counts of contravene domestic violence order (aggravated); six counts of common assault; two counts of unlicensed driving; and 1 count of each of stealing, obstruct police, wilful damage, and possessing dangerous drugs.  He was sentenced as follows: 

Date of Offence	Offence	Sentence	
29 May 2022	Contravention of Domestic Violence Order (Aggravated Offence)	18 months imprisonment	
29 May 2022	Common Assault – Domestic Violence Offence	12 months imprisonment	
8 June 2022	Contravention of Domestic Violence Order (Aggravated Offence)	18 months imprisonment	
8 June 2022	Common Assault – Domestic Violence Offence	18 months imprisonment	
16 June 2022	Contravention of Domestic Violence Order (Aggravated Offence)	18 months imprisonment	
16 June 2022	Common Assault – Domestic Violence Offence	18 months imprisonment	
17 June 2022	Contravention of Domestic Violence Order (Aggravated Offence)	Two years imprisonment	
17 June 2022	Common Assault – Domestic Violence Offence	18 months imprisonment	
17 June 2022	Driving Without a Licence Demerit Points (QLD Lic)	$350 fine and disqualified for six months	
17 June 2022	Obstruct Police Officer	Convicted and not further punished 	
1 July 2022	Contravention of Domestic Violence Order (Aggravated Offence)	Six months imprisonment	
8 July 2022	Contravention of Domestic Violence Order (Aggravated Offence)	Two years imprisonment	
8 July 2022	Common Assault – Domestic Violence Offence	Two years imprisonment	
8 July 2022	Stealing – Domestic Violence Offence	12 months imprisonment 	
9 July 2022	Contravention of Domestic Violence Order (Aggravated Offence)	18 months imprisonment	
9 July 2022	Common Assault – Domestic Violence Offence	18 months imprisonment	
9 July 2022	Wilful Damage – Domestic Violence Offence	18 months imprisonment	
10 July 2022	Contravention of Domestic Violence Order (Aggravated Offence)	12 months imprisonment 	
10 July 2022	Possessing Dangerous Drugs	Convicted and not further punished	
10 July 2022	Driving Without a Licence Demerit Points (QLD Lic)	$350 fine and disqualified for six months	
[2]	A period of 104 days was declared as time served in pre-sentence custody from 10 July 2022 to 21 October 2022.  A parole release date was fixed at 9 March 2023 (after serving eight months of the sentence). The operational period of a suspended sentence imposed on 3 May 2022 was extended by 12 months.   The appellant was disqualified from driving for six months.  
[3]	The appellant appeals against his sentence on the ground that it is manifestly excessive.  
[4]	The appellant appeals pursuant to section 222 of the Justices Act 1886 (Qld).  Such an appeal is by way of rehearing on the evidence below, that is, a review of the record of proceedings below rather than a fresh hearing, together with any new evidence that I allow to be admitted. I am required to conduct a real review of the evidence and the learned Magistrate’s decision and make my own determination, giving due deference to and placing a good deal of weight on the learned Magistrate’s view. In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error. 
[5]	As the appellant’s appeal is against his sentence, that involves the exercise of a discretion.  Accordingly, the principles referred to in House v The King are apposite.  If it appears that some error has been made in the exercise of the learned Magistrate’s discretion because she acted upon a wrong principle; has allowed irrelevant matters to affect her; has mistaken the facts; or, has failed to take into account some material consideration, then her decision should be reviewed and it is open for me to exercise the discretion afresh.
[6]	The appellant has not filed an outline of argument.  He has not identified any error in the decision of the learned Magistrate.  He made oral arguments at the hearing of the appeal. Those arguments were directed to, not the head sentence of two years imprisonment, but rather to the period he had to serve in custody before being released on parole. He argued that the period he should serve should not be more than six months.
Circumstances of offences
[7]	The offending occurred over approximately six weeks between 29 May 2022 until 10 July 2022.  A Domestic Violence Order (“DVO”) had been made on 3 May 2022 in favour of Ms Smith (a pseudonym).  In addition to the standard conditions, it prohibited the appellant from approaching within 100 metres of Ms Smith, her two children and her house and prohibited the appellant from contacting or attempting to contact Ms Smith.   On that same date, 3 May 2022 the appellant was sentenced for contravening a police protection notice made in favour of Ms Smith, to eight months imprisonment suspended after serving 59 days for an operational period of 18 months.   He was released on 3 May 2022 having served that period in pre-sentence custody.  A cumulative one month term of imprisonment was also imposed for failing to appear and lessor concurrent terms of imprisonment were imposed for failing to properly dispose of a needle and syringe; possessing utensils; and possessing ammunition.  
[8]	The appellant commenced re-offending three and one-half weeks later.  
[9]	On 29 May 2022 the appellant was staying with Ms Smith (although not at her home).  He told her to get him some cannabis.  She went to the wrong townhouse.  He grabbed her by the hair and started shaking her. He put his hand over her mouth to stop her yelling. When a neighbour called police the appellant ran away.  (Contravene DVO and common assault). 
[10]	On 8 June 2022 the appellant was with Ms Smith staying at a hotel.  He argued with her; squeezed her very tight such that she felt as if her bones were breaking, picked her up and threw her across the bed.  Her four-month-old child was present during this assault. (Contravene DVO and common assault). 
[11]	On 16 June 2022 the appellant was staying with Ms Smith and her baby.  They argued.  The appellant chased Ms Smith around the house and backyard. As the appellant tried to leave, Ms Smith got into the car with the appellant. They drove away and returned to the house where the appellant grabbed her by the face and punched her with “little jabs” to the jaw.  He grabbed her and squeezed her very tight.  He pushed her out of the car.  Neighbours called the police. The appellant ran away.  (Contravene DVO and common assault). 
[12]	On 17 June 2022 the appellant argued with Ms Smith.  He grabbed her face and shook her. As she started to yell he placed his hand over her mouth.  Ms Smith’s 12 year old daughter was present and told him to stop.  She (the child) contacted a friend via Snapchat who in turn contacted police.  The appellant, Ms Smith and her children were in a car when police attempted to intercept it.  The appellant jumped out of the car and ran away.  A police officer chased him on foot but was unable to locate him.   (Contravene DVO; common assault; unlicensed driving; obstruct police). 
[13]	On 1 July 2022 the appellant was with Ms Smith at a residence where he was intending to collect his son. A verbal argument occurred.  Other people present, including the appellant’s son, called police.  The appellant ran away before police arrived.  (Contravene DVO). 
[14]	On 8 July 2022 the appellant withdrew $150 from Ms Smith’s account without her permission. She contacted him to discuss his stealing her money. He collected her from a train station.  An argument over the money occurred. The appellant hit Ms Smith in the back of the head and slapped her face.  She hit him with a lighter.  The appellant started punching Ms Smith to the head and face. (Stealing, Contravene DVO and common assault). 
[15]	On 9 July 2022 Ms Smith met with the appellant to discuss their relationship.  The appellant grabbed her phone and started going through it.  He saw a message that he didn’t like and started verbally abusing her. She said that she wanted to part ways.  The appellant grabbed Ms Smith and started squeezing her. She commenced screaming and the appellant put his hands over her mouth.  He hit his head against her head then grabbed her hands and started punching himself with Ms Smith’s hands.  (Contravene DVO and common assault). 
[16]	On 10 July 2022 the appellant was with Ms Smith at a park.  Police located his car nearby and commenced foot patrols.  Upon locating the appellant with Ms Smith and arresting him he screamed “[Ms Smith], fuck you, fuck you bitch, fucking hate you cunt, you’re fucked, you put me in jail”.  (Contravene DVO).
[17]	The appellant was located in possession of a quantity of cannabis.  He was identified on closed circuit television cameras as driving a car to the carpark nearby the park. (Unlicensed driving). 
[18]	The appellant was interviewed by police.  He said that he was driving Ms Smith around as he did not want her to have access to the car.  He denied that the cannabis was his and said that it belonged to Ms Smith. He denied driving the car despite being shown a photograph of him driving the car.   
[19]	The appellant was remanded in custody.
The learned Magistrate’s decision
[20]	The learned Magistrate gave quite extensive remarks.  She took into account the early guilty plea and reduced the penalty that she would otherwise have imposed. She referred to the appellant being 39 years of age.  She considered the offending serious as the appellant was subject to a suspended sentence.  She considered the appellant had shown a complete lack of remorse and not accepted responsibility in relation to the offending by virtue of his offensive remarks to Ms Smith in the presence of police, blaming her for him being arrested.   She referred to the appellant’s quite extensive criminal history including convictions for contravening domestic violence orders and domestic violence offences dating back to 2013.  
[21]	The learned Magistrate referred to the insidious nature and prevalence of domestic violence. She referred to the absence of any efforts that the appellant had made to rehabilitate. She considered that the conduct of the appellant evidenced an entitlement he thought he had to behave in the way that he did.   
[22]	The learned Magistrate referred to the need to deter the appellant from future offending, sentences of imprisonment in the past having failed to have that effect upon the appellant.  Whilst she took into account the appellant’s criminal history she referred to that not overbearing the sentence that should be imposed.  She also referred to the need to fashion a sentence which acted to deter generally to ensure that domestic violence orders are taken seriously and abided by.   
[23]	The learned Magistrate had regard to references tendered on the appellant’s behalf which indicated that he had struggled with addiction and mental health issues.  She referred to the absence of any indications in those references to efforts that the appellant had undertaken to rehabilitate himself.
[24]	The learned Magistrate acknowledged that a term of imprisonment was not a sentence of last resort because of the appellant’s use of violence.   In relation to the breach of suspended sentence the learned Magistrate extended the operational period of the suspended sentence.  
Consideration
[25]	The appellant’s offending was serious for the reasons which follow.  
[26]	The appellant had 29 previous convictions for contravening a domestic violence order.  Those convictions related to four different women.  The appellant was first convicted of contravening a domestic violence order on 18 February 2013 and fined.   For his sixth contravention of a domestic violence order, he was sentenced to a term of imprisonment with release on immediate parole. For his seventh and eighth contraventions he was sentenced to a six month wholly suspended term of imprisonment.  For his ninth to twelfth contraventions of a domestic violence order, he was ordered to serve some actual custody (about three months) before release on parole. That period in actual custody did nothing to deter him.  He continued to receive terms of imprisonment sometimes with immediate parole, sometimes suspended.  As indicated above he was sentenced to an effective nine month sentence suspended after he had served 59 days on 3 May 2022 for numerous offences including contravention of a police protection notice made in favour of Ms Smith.  
[27]	The appellant commenced re-offending in a like manner only three and one-half weeks after release on the suspended sentence.   
[28]	There were eight separate and distinct episodes where the appellant continued to contravene the domestic violence order made in favour of Ms Smith in the six week period that followed.  On seven of those occasions, he used actual violence towards her.  On two of those occasions her children were present.
[29]	There was not the slightest hint of evidence that the appellant was committed to his own rehabilitation.  
[30]	The appellant’s traffic history also demonstrated a complete lack of regard for the road rules and public safety.  It is lengthy and spans some 22 years.  It is sufficient to reflect the nature of his traffic history to simply note that since 17 September 2019 after the appellant’s license disqualification was lifted the appellant has been convicted of 25 speeding offences; drink driving; dangerous driving and a variety of other traffic offences.  On 1 October 2020 his license was disqualified until 31 March 2021. Fourteen of those 25 speeding convictions were committed between 6 September 2021 and 24 February 2022 (six months). His licence was suspended on 9 March 2022 through until 30 November 2022 as a result of the accumulation of demerit points.      
[31]	In his favour the appellant pleaded guilty at an early time.  He had the support of his sister, the mother of his son and his own mother each who provided references in support of him.  The appellant has qualifications in refrigeration and air conditioning.  The referees spoke to the appellant’s drug problems which have impacted his ability to maintain employment and of his desire to get some counselling.  
[32]	The appellant argued that he has mental health issues that were not addressed by his lawyer.  He said that he suffers from separation anxiety and can’t let go of his relationships until he ends up in gaol.  He claimed to be remorseful for his actions.  There was no evidence adduced before me as to the appellant’s mental health difficulties.  More significantly there is simply no evidence that the appellant has done anything about those difficulties himself.  
[33]	In determining the appropriate sentence it was necessary for the learned Magistrate to have regard to the following relevant features: the risk of any physical harm to any members of the community; the need to protect members of the community from that risk;  the nature and extent of the violence used in the commission of the offences; the appellant’s past record and any attempts he had made to rehabilitate; the number of previous offences of any type committed; his age and character; and his remorse or lack of remorse.  Additionally it was appropriate to treat each of the appellant’s previous convictions for contravening a domestic violence order as an aggravating factor having regard to the sheer number of previous convictions of a like nature.  Each of the six counts of assault, the wilful damage and the stealing were domestic violence offences as defined and were to be treated as an aggravating feature to the appellant’s offending.  
[34]	The appellant’s past history of contravening domestic violence orders irrespective of whether made in favour of a single woman or multiple women; his having re-offended in a like manner so soon after release from custody on a suspended sentence; his complete disregard for the domestic violence order made and his repeated assaults upon Ms Smith at times in the presence of children, meant that protection of the community, particularly women with whom he is in a relationship, was a paramount consideration in determining the appropriate sentence. The appellant poses a significant risk to women with whom he is in a relationship.  
[35]	Given that the sentence was intended to punish the appellant, deter him and others from offending in a like way, denounce his conduct on behalf of the community and protect the community, particularly women from him, a two year sentence was in my view well within the bounds of an appropriate exercise of sentencing discretion.  The learned Magistrate did not activate the suspended sentence but rather extended the operational period of it.  It would have been open to the learned Magistrate to activate the suspended sentence and impose cumulative sentences to reflect the nature and extent of the appellant’s offending so soon after his release on the suspended sentence.  Extending the operational period was a generous option for the learned Magistrate to take in the circumstances.  
[36]	The imposition of a parole release date after the appellant had served one-third of the two year sentence together with the extension of the operational period of the suspended sentence reflects a proper balancing of the mitigating factors (principally the plea of guilty) against the protracted nature of the appellant’s offending against a domestic partner, at times, in front of children. In fixing the parole release date at one-third of the sentence it cannot be said that the learned Magistrate’s discretion miscarried.
[37]	I would dismiss the appeal.