DISTRICT COURT OF QUEENSLAND

CITATION:	RJCS v Queensland Police Service [2023] QDC 18	
PARTIES:	RJCS
(Applicant)
v
QUEENSLAND POLICE SERVICE
(Respondent)	
FILE NO:	2232/22
	
DIVISION:	Appellate	
PROCEEDING:	Appeal pursuant to section 222 of the Justices Act 1886	
ORIGINATING COURT:
	Magistrates Court of Queensland 	
DELIVERED ON:	17 February 2023	
DELIVERED AT:	Brisbane 	
HEARING DATE:	7 February 2023	
JUDGE:	Loury KC DCJ	
ORDER:	1.	The appeal is allowed 
2.	The orders made by the learned Magistrate on 30 August 2022 are confirmed.  
3.	Pursuant to section 159A of the Penalties and Sentences Act 1992, it is stated that the appellant has spent 149 days in presentence custody between 21 December 2021 and 18 May 2022 and it is declared that 149 days is taken to be imprisonment already served under the sentences imposed on 30 August 2022.  	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE - whether the learned Magistrate failing to state the dates and calculate the time spent in pre-sentence custody is an appealable error– whether the learned Magistrate ought to have declared the pre-sentence custody as time served - whether the loss of opportunity to be employed in a certain field should be considered a form of extra-curial punishment – where the making of a protection order should be considered a form of extra-curial punishment – whether the sentence imposed was manifestly excessive.	
LEGISLATION:	Domestic Violence and Family Protection Act 2012 (Qld) ss 37, 86
Penalties and Sentences Act 1992 (Qld) ss 12A,159A(3B)	
CASES:	House v The King (1936) 55 CLR 499
McDonald v Queensland Police Service [2018] 2 Qd R 612
R v Crawford [2020] QCA 68
R v DAB [2022] QCA 268
R v Daetz: R v Wilson (2003) 139 A Crim R 398
R v Galeano [2013] QCA 51
R v Gatica [2020] ACTSC 22
R v Hayes [2008] QCA 236
R v Lidbetter [2009] QCA 6
R v Lui [2009] QCA 366
R v Oliver [2019] 3 Qd R 221
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679	
COUNSEL:	K Fuller for the applicant
D Sampey (solicitor) for the respondent 	
SOLICITORS:	Fuller and White Solicitors for the applicant
Director of Public Prosecutions for the respondent 	

Introduction
[1]	On 30 August 2022 the appellant pleaded guilty to four offences arising out of the one event on 21 December 2021.  Those offences were deprivation of liberty; wilful damage; and two offences of threatening violence.  He was sentenced to 12 months imprisonment for each of the offences of deprivation of liberty and threatening violence. He was convicted and not further punished for the offence of wilful damage.  An immediate parole release date was imposed.  Each of the offences was averred to be a Domestic Violence Offence pursuant to section 12A of the Penalties and Sentences Act 1992 (Qld).  
[2]	The appellant appeals against his sentences on the grounds that the learned Magistrate erred in failing to declare 149 days of pre-sentence custody and that the sentences were manifestly excessive. 
Nature of appeal 
[3]	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.  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 he acted upon a wrong principle; has allowed irrelevant matters to affect him; has mistaken the facts; or, has failed to take into account some material consideration, then his decision should be reviewed and it is open for me to exercise the discretion afresh.
Circumstances of the offences 
[4]	The complainant is the appellant’s mother. On the morning of 21 December 2021, the appellant confronted his mother about moving a number of birthday presents that she had bought him and which he had kicked down a flight of stairs.  She asked him to find somewhere else to live. The appellant then retrieved a machete and an open-folding knife from somewhere in his mother’s home and returned to his mother in the kitchen where he held the machete towards her and threatened her saying “Today you are going to die, why don’t you ever listen to me”.   
[5]	The appellant took his mother’s mobile telephone from her and directed her into the loungeroom. He removed other telephones from his mother’s reach and directed her sit in a lounge chair. The appellant sat across from her blocking her exit from the loungeroom.  The appellant’s mother commenced whimpering. The appellant told her that he would kill her if she made another sound.  He told his mother that he was going to wait for her husband to come home and then kill her in front of him, kill her husband and kill himself. He repeatedly asked her what time her husband was expected home and said “I fight the urge to kill you every day of my life”.  
[6]	The appellant kept his mother detained in her house against her will for five hours.  When she asked to use the toilet, he followed her to the bathroom armed with the machete and knife.  At some stage he struck his mother’s coffee table with the machete, damaging the table by cutting it.   
[7]	Eventually the appellant’s mother was able to make her escape when he took her outside so that he could have a cigarette. She ran away into a neighbouring yard screaming for help.  The neighbour took her inside their house where police were called.  
[8]	Upon arrival police spoke to the appellant.  He admitted grabbing the machete and knife and waving them at his mother telling her he was going to kill her.  He admitted that his intention was to make his mother think that he was going to kill her.    
[9]	The appellant was arrested and remanded in custody.  He remained in custody from 21 December 2021 until 18 May 2022 (149 days) when he was released on bail.    
The appellant’s antecedents
[10]	The appellant was 32 years of age at the time of the offences.  He had no previous criminal convictions. He was diagnosed by a general practitioner with anxiety/depression on 24 May 2022 and referred to a psychiatrist.   The appellant had received a Bachelor of Psychological Science degree conferred by Griffith University on 21 July 2020.  
The learned Magistrate’s decision 
[11]	The learned Magistrate took into account that the appellant had pleaded guilty at an early stage and reduced the sentence that he would otherwise have imposed to reflect his co-operation with the administration of justice and his remorse.  He referred to the appellant’s lack of any criminal convictions and to the considerable period that the appellant had spent in pre-sentence custody.  He did not declare the pre-sentence custody because of a submission that had been made by the appellant’s legal representative to him to not do so.  The learned Magistrate acknowledged that the offences involved violence and that imprisonment was not a sentence of last resort.  He considered the offences extremely serious and referred to the threats made over a long period of time and the ability that the appellant had to carry out those threats.   
[12]	The learned Magistrate considered the appellant offending against his own mother in the manner he did when she loved him and was devoted to him, as an aggravating feature.  He took into account the wishes of the complainant expressed in a victim impact statement given orally in court in which she expressed her love for the appellant.  
[13]	The learned Magistrate referred to the absence of any material before him as to the impact that the recording of a conviction would have upon the appellant’s career as a psychologist.  He considered that the appellant’s failure to attend upon a psychologist in the three months since his release from prison undermined the confidence he could have about the appellant’s commitment to his own rehabilitation.  
[14]	The learned Magistrate said that he considered the 149 days that the appellant had spent in custody to be sufficient.  He went on to say that had the appellant not served that time in pre-sentence custody, he would have sentenced the appellant to actual imprisonment for a longer period than 149 days.   
[15]	The learned Magistrate considered that a deterrent penalty was necessary and that a period of imprisonment was the just penalty.  Probation with no conviction recorded did not accurately reflect the serious nature of the offending and the necessity to condemn the behaviour and to deter it into the future.  
The contentions 
[16]	The appellant contends that the learned Magistrate was required to declare the pre-sentence custody unless he ordered otherwise. It is further contended that the sentence was not ameliorated to any degree to reflect the five month period that the appellant had spent in pre-sentence custody.  
[17]	The respondent contends that it can be inferred that the learned Magistrate reduced the penalty that he would otherwise have imposed from 18 months to 12 months imprisonment to take account of the pre-sentence custody.  That inference can be drawn, it is argued, from the learned Magistrate’s statement that had the appellant not spent five months in pre-sentence custody and been released on bail that he would have imposed a longer period in actual custody.  That suggests, it is argued, that the learned Magistrate had in mind a sentence of 18 months imprisonment.  
Consideration
[18]	By section 159A(3B) of the Penalties and Sentences Act 1992 (Qld) the learned Magistrate was required to state the dates between which the appellant was held in custody and calculate the time that he was held in custody.  Whilst he did state the time, he did not state the dates. More significantly he did not state that none of the 149 days held in presentence custody was taken to be imprisonment already served under the sentence.  Section 159(3B) of the Penalties and Sentences Act 1992 requires that a sentencing court which orders that time held in custody not be taken as imprisonment already served under the sentence, to: state the dates between which the offender was held in presentence custody; calculate the time that the offender was held in presentence custody; and, declare the part of the time that is taken to be imprisonment already served under the sentence or declare that no time is taken to be imprisonment already served under the sentence.  Section 159(3B) is mandatory in its terms.  The Court of Appeal in R v DAB however has held that an omission to state the dates and calculate the relevant time would not of itself be an error which would compel an appellate court to resentence.  
[19]	The learned Magistrate said he would take the 149 days the appellant spent in pre-sentence custody into account as a factor amongst many other factors.  I do not consider, as was argued, that the failure to state the dates and calculate the time the offender was held in presentence custody is an error of itself, that requires this court to resentence the appellant.  
[20]	The submission that was made by the appellant’s legal representative at first instance was that the appropriate sentence was two years probation with no conviction recorded.   It was in that context that the appellant’s representative submitted that the pre-sentence custody ought not be declared.
[21]	The learned Magistrate appears, from his comments, to have taken into account the pre-sentence custody by reducing the sentence that he would otherwise have imposed, including the period he considered the appellant ought to serve in actual custody. I do not consider that error has been established. 
[22]	The effective sentence imposed on the appellant was 17 months imprisonment with parole release after approximately five months.  The appellant argues that such a sentence is manifestly excessive.  
[23]	The learned Magistrate was not provided any comparable decisions by the parties appearing at the sentence (not the same representatives who appeared on appeal).  The original prosecutor submitted that the appropriate sentence fell within the range of 12 to 18 months imprisonment, emphasizing the need for a sentence which reflected general and personal deterrence given the offences were acts of domestic violence.  She submitted that the pre-sentence custody ought to be declared as time served under the sentences.  
[24]	The appellant’s representative at sentence submitted for a sentence involving probation with no conviction recorded.  In the appellant’s favour it was submitted that he had a relationship breakdown about two years earlier which led to a “full-on mental breakdown”.  He returned to living with his mother.  He experienced depressive episodes. It was submitted that his conduct towards his mother was a cry for help.  The appellant had sought a mental health care plan from a doctor and was awaiting an appointment with a psychologist/psychiatrist.  It was said that the earliest he could obtain an appointment with the practitioner was later in the week of his sentence hearing.  
[25]	The appellant had obtained a degree in psychology in 2020.  He also held an advanced diploma in social work. He had worked for Red Cross and Anglicare and for organisations involved with refugees and asylum seekers.  He was hopeful of returning to work once he addressed his own issues.  It was submitted that personal deterrence and community denunciation did not loom large in the exercise of the discretion.  There was no reason provided for that submission other than that the appellant had spent 149 days in custody.  
[26]	It was contended by the appellant’s representative that because the appellant did not use actual violence towards his mother a sentence involving probation for two years with no conviction recorded was open.    
[27]	I have been referred to a number of single judge decisions of the District Court and a single decision of the Court of Appeal.  
[28]	In R v James, on 7 December 2012, Judge Farr SC sentenced a 30 year old man on one count of common assault and one count of deprivation of liberty to 18 months imprisonment with an immediate parole release date.  James deprived a woman of her liberty over a period of some hours (between three and six).  He was armed with a replica gun which he pointed towards her.  There was a delay in the complaint being made to police which allowed James to demonstrate that he was capable of rehabilitating.  He had a prejudicial upbringing with his mother having died from a drug overdose when he was 13 years of age and his being subject to violence at the hands of his step father.  There was material before Judge Farr SC which indicated that James suffered from post-traumatic stress disorder.   It is apparent, however from a reading of the remarks that there was no argument as between the prosecution and the defence with respect to the appropriate head sentence being one of 18 months imprisonment.  Nor was there any argument that James ought to be released on immediate parole.  Judge Farr SC made clear that but for the concession by the prosecution as to the appropriate sentence he would have sentenced James to actual imprisonment.  
[29]	In R v Bara, Judge Morzone QC sentenced a man of unknown age on one count of threatening violence in the night.  He his hie niece and her sister, whilst holding a knife, that he was going to stab them.  He tried to stab them as he chased them until his grandson intervened.  The offending occurred at 11.45 pm.  Bara had previous convictions for robbery and assaulting a woman and police.  That offending occurred in 1996 and in 2013 in another State.  Bara had some minor convictions in Queensland for breaching bail and contravening a domestic violence order and having a knife in public.   His wife, who had kidney problems, was dependent on him for care.  He was a respected elder and had spent four days in custody.  He was sentenced to a probation order for 12 months.  A conviction was recorded.  
[30]	In R v Clifford, on 25 August 2021 Judge Williamson QC sentenced a 51 year old man on one count of common assault, three counts of threatening violence and some related summary charges of trespass; contravene domestic violence order; breach bail and fail to take reasonable care in respect of a syringe.  Clifford attended his former partner’s home in breach of a domestic violence order to collect a letter.   He argued with her, their daughter and son.  Clifford threw a lighter at his son hitting him in the crotch. Clifford’s daughter started to call police when Clifford grabbed a knife from the kitchen and threatened to stab her if she did not hang up the phone. When she hung up the phone Clifford put the knife away. Clifford made serious threats to his wife, children and their partners.  He was on bail at the time and was in breach of a temporary protection order.  Clifford was remorseful and entered an early guilty plea.  He had other favourable mitigating features in his favour.   He spent 279 days in pre-sentence custody. Specific deterrence was considered to be of importance to Judge Williamson QC.  He considered that 14 months imprisonment was the appropriate head sentence which he reduced to 12 months to reflect that period beyond one-third of the sentence that Clifford had spent in pre-sentence custody.  Clifford was released on court-ordered parole on the date of his sentence.  The 279 days of pre-sentence custody were declared.  
[31]	The sentence imposed on Clifford would suggest that whilst the 12 month head sentence imposed by the learned Magistrate was within the appropriate range of sentences which could be imposed  the absence of a pre-sentence custody declaration might suggest the sentence imposed on the appellant was excessive.  
[32]	I was referred to one Court of Appeal decision, R v Lui.  He was sentenced on two counts of assault to 12 months imprisonment with a parole release date after serving three months.  He was granted bail pending appeal and re-sentenced by the Court of Appeal to 12 months imprisonment wholly suspended for an operational period of two years and ordered to perform 120 hours of unpaid community service.  The complainant asked the applicant to turn down his music.  The applicant ran towards the complainant armed with a knife whilst shouting abuse at him.  He grabbed the complainant and held the knife to his chest. The second complainant was the applicant’s daughter.  She arrived on the scene and the applicant thumped her on the back causing her to stumble.  The applicant was intoxicated. He was 33 at the time of the offences.  He had a number of convictions for minor offences and a dated conviction (from 1996) for robbery in company for which he was released on a suspended sentence.  The Court of Appeal resentenced the applicant because there had been a failure to afford procedural fairness to the applicant.  Fraser JA (with whom McMurdo P and Fryberg J agreed) said in determining the appropriate sentence: 
“Whilst in a particular case a sentence of imprisonment requiring actual custody may well be the just sentence for an offence of this general character where a knife is produced, such an offence should not be treated as akin to an offence of wounding inflicted by the use of a knife, which is nearly inevitably punished by a custodial sentence: see R v Kidner [2005] QCA 430 at 3 and R v Cui [2009] QCA 334 at [17]. The production of a knife in the course of an assault, with the attendant shock and risk of serious injury and even death, does justify emphasis upon the deterrent aspect of sentencing, but whether actual custody is called for must depend upon a consideration of other relevant sentencing factors with reference to the circumstances of the offence and the offender’s personal circumstances.”
[33]	In re-sentencing Lui, Fraser JA considered that whilst there were features of the offence which called for a deterrent sentence, other features including the brevity of the period during which he held the knife and that he did not intend to and did not actually inflict any injury with the knife, the absence of any long term adverse effect upon the complainants, his early plea and good prospects of rehabilitation meant that actual incarceration was not necessary.  
[34]	Fraser JA referred to two other decisions in Lui which are also instructive, R v Hayes  and R v Lidbetter. Those three decisions do tend to suggest that a head sentence of 17 months imprisonment (which was the effective sentence imposed by the learned Magistrate) was excessive.   In Hayes an effective head sentence of 15 and one-half months imprisonment did not call for appellate interference for an offender who was convicted of going armed so as to cause fear and common assault. Hayes was summarised by Fraser JA in the following way: 
“After that offender drove erratically and attracted adverse comment from a group including the complainant, he abused and threatened the complainant with a knife.  After he was disarmed by his passenger, the offender pushed the complainant’s head, threatened the complainant and others in his group and threw the complainant’s car kays away.  That offender had recent relevant convictions and he committed his offences whilst on probation [for offences which] bore an ‘unsettling similarity’ to a previous offence he had committed.”  
[35]	Lidbetter was initially sentenced to 18 months imprisonment with parole release after six months.  He was re-sentenced by the Court of Appeal to 12 months with a parole release date fixed after the applicant had served four months of that term.  Lidbetter’s offending was described by Fraser JA in the following way: 
“That offender pleaded guilty to going armed in public so as to cause fear, deprivation of liberty, common assault, and wilful exposure.  He had held a knife to the complainant’s neck whilst yelling abuse.  He had done so whilst drunk and after he had flagged down the car driven by the complainant and incorrectly accused him of previously driving in a reckless way.  Instead of cooperating with police he exposed his genitals to them.  That offender had recent relevant convictions and, like I, he committed his offences whilst he was on probation.  He was 23 when he committed the offences, and before he was sentenced he suffered a serios heart attack, which would render incarceration more burdensome for him [than] others”
[36]	These yardsticks which importantly involve sentences imposed by the Court of Appeal in two cases do to my mind suggest that an effective head sentence of 17 months imprisonment or greater as was perhaps the starting point adopted by the learned Magistrate, was outside the bounds of the permissible sentences that could be imposed.  It falls to me then, to exercise the sentencing discretion afresh.    
[37]	Any assessment of the appropriate sentence must be considered against the maximum penalties available.  The maximum penalty for threatening violence is two years imprisonment; for deprivation of liberty, three years imprisonment; and, for wilful damage, five years imprisonment.  The most serious aspects to the appellant’s offending was depriving his mother of her liberty over a very substantial period of time and the serious threats that he levelled against her whilst armed with two weapons which would have been particularly menacing.
[38]	The appellant, by arming himself with two weapons and making threats to kill his mother and her husband, demonstrated a willingness to use violence.  His threats were accompanied by actions which suggested an imminent use of violence.  By his own admission he intended for his mother to think that she was going to die at his hands.   That means that he is an offender who falls within section 9(2A) of the Penalties and Sentences Act 1992 and is to be sentenced pursuant to section 9(3) of the Penalties and Sentences Act 1992.   In sentencing such an offender, the risk to the community and the interests of the victim of the offender are at the forefront of the exercise of the discretion.   
[39]	In R v Oliver, Sofronoff P said of the significant difference between sentencing pursuant to section 9(2) where imprisonment is a sentence of last resort and sentencing pursuant to section 9(3): 
“[The difference] is justified by the community’s abhorrence of the use of violence and the community’s expectation that the courts will protect the community when necessary from the risk of further violence by incarcerating the offender.  That will deter the particular offender, will deter others from offending and will satisfy a justified need for a sense of retribution.”  
[40]	The appellant’s offending was serious.  It took place over a very long period of time and involved terrifying his own mother into thinking that he was going to kill her and her husband in circumstances where he had the present ability to do just that.  The appellant’s admitted intention was to make his mother think she was going to die.  The lengthy period over which she was held captive would have only served to have intensified the terror he intended to instil in her.   The use of the knife and the machete coupled with the threats to kill, considered in the context of keeping the complainant captive to instil terror into her justifies emphasis upon the deterrent and denunciatory aspects of sentencing rather than from the perspective of the appellant.  
[41]	The appellant’s mother’s wishes were expressed in an oral victim impact statement.  She said that she loved the appellant and that she missed him.  She referred to him becoming depressed, bitter and angry when he experienced the heartache of loss and rejection.  She referred to the appellant’s degree in psychology being a hindrance to him getting help as he thought he could help himself.   She referred to the appellant not actively seeking the help he so desperately needed and the continued delay in the appellant seeking the help of a psychiatrist or psychologist upon his release on bail.  She expressed her hope that the appellant would get some help and that they could reconcile in the future.  
[42]	As at the time of sentence the appellant had not undertaken any treatment. There is no new evidence before me as to what steps the appellant has taken in that regard.   Personal deterrence is therefore still a relevant purpose in sentencing the appellant.  
[43]	I do not consider that a sentence of probation with no conviction recorded would properly reflect the purposes of deterrence and denunciation in sentencing the appellant.  A sentence of imprisonment is the appropriate sentence.  
[44]	There is little information before me as to the state of the appellant’s mental health either at the time of the offending or now.  It is unknown to me what a “full-on mental breakdown” is supposed to reflect.  The appellant’s otherwise unblemished record and his tertiary education might suggest that this offending was out-of-character, but beyond that there is little I can take into account in terms of his psychological functioning.  
[45]	It is submitted that the appellant is unlikely to be able to work in the community sector because of these offences as typically such work requires a blue card and a criminal clearance.  It is contended that this is a form of extra-curial punishment.  It is also submitted that the restrictions placed on the appellant having a relationship with his mother due to the making of a Protection Order under the Domestic Violence and Family Protection Act 2012 (“DVFPA”) are a form of extra-curial punishment. 
[46]	In R v Daetz: R v Wilson  James J observed that extra-curial punishment was a material fact to be taken into account in sentencing to ensure that the offender is punished appropriately and not excessively for the same offence.  He said: 
“I have concluded from this examination of the authorities cited to the court and especially Allpass, Clampitt-Wotton and Cooney that, while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence.  This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence.  … there may well be many cases where extra-judicial punishment attracts little or no significant weight.” (citations omitted)
[47]	In R v Crawford, Fraser JA said that upon the view expressed by James J, extra-curial punishment is taken into account “as one example of a serious loss or detriment an offender has suffered as a result of having committed the offence” (emphasis added).  In R v Hannigan Chesterman JA (with whom de Jersey CJ agreed) held that the principle explained in Daetz did not apply in that case because the injuries that offender sustained were minor rather than serious.  The theory underlying the relevance of extra-curial punishment was described by Chesterman JA in that case as being “that it deters an offender from re-offending by providing a reminder of the unhappy consequence of criminal conduct, or it leaves the offender with a disability, some affliction, which is a consequence of criminal activity”.  
[48]	In R v Galeano, McMeekin J expressed the rational for extra-curial punishment being capable of mitigating a sentence as follows:  
“The common threat running through these cases providing the reason for any reduction in sentence seems to be the notion that the criminal will have as a permanent reminder through the remainder of their lives the particular adverse consequence which will be of such a nature as to cause them a significant degree of suffering either in their purse, mind or body and so constitute a punishment, over and above that which the community can inflict by way of sentence.  In those circumstances it seems to have been accepted that it would be just to ameliorate the sentence the community, through the Courts, ought to impose.” 
[49]	There is some authority that loss of employment is a matter that the sentencing court can take into account as a form of extra-curial detriment. I am doubtful however, whether the loss of an opportunity to be employed in a certain field could be described as extra-curial punishment.  In any event this is not a matter that I need to determine.  That is because in this case there is simply no evidence before me that the appellant even had a job at the time of the commission of the offence. If he did have a job, there is no evidence that he lost that job.  There is no evidence from which I could make any finding as to the prospects of the appellant’s ability to gain employment as a psychologist or otherwise into the future.  There is no evidence upon which I could make any finding that the appellant had suffered a serious loss or detriment as a result of having committed the offence.  
[50]	In relation to the Protection Order, this is not a form of extra-curial punishment.  The making of a Protection Order was an all but inevitable consequence of the appellant committing serious acts of domestic violence.  A Protection Order under the DVFPA can only be made if a court is satisfied that it is necessary or desirable to protect an aggrieved from domestic violence. Such an order can be varied, including on application by an aggrieved or respondent.  If a variation may adversely affect the safety, protection or wellbeing of the aggrieved the court must have regard to, amongst other things, any expressed wishes of the aggrieved.  A variation in those circumstances can only be made if the court considers the safety, protection or wellbeing of the aggrieved would not be adversely affected by the variation.  
[51]	That there is currently a Protection Order in place which prevents the appellant from approaching his mother’s home and prohibits him having any contact with her does not amount to extra-curial punishment.  It is nothing more than what would ordinarily be expected to flow as a consequence of committing serious acts of domestic violence.   The appellant’s mother, if she wants to have contact with the appellant, is able to bring an application to amend the order at any time. So too can the appellant. The appellant’s mother expressed concern in her victim impact statement was that the appellant had not received any treatment.  That was the concern that led the learned Magistrate to impose the conditions prohibiting contact. It is a decision for the appellant’s mother to make as to whether and when she wants to have contact with the appellant.  The existence of a Protection Order which is capable of being varied, cannot be said to amount to a “serious loss or detriment” or to even to a punishment.  It does not have the effect of achieving the purposes of deterrence and/or retribution which underlay the relevance of extra-curial punishment to the sentencing process.  
[52]	Having regard to the yardsticks provided by the Court of Appeal’s decisions, I consider that the appropriate sentence to reflect deterrence and denunciation was one of 12 months imprisonment with a parole release date on the date of the sentence as was imposed by the learned Magistrate, however in my view the pre-sentence custody ought to have been declared as time served under the sentence.  A starting point of 17 months imprisonment or more is not supported by the comparable decisions.

Orders
[53]	My orders are: 
1.	The appeal is allowed 
2.	The orders made by the learned Magistrate on 30 August 2022 are confirmed.  
3.	Pursuant to section 159A of the Penalties and Sentences Act 1992, it is stated that the appellant has spent 149 days in presentence custody between 21 December 2021 and 18 May 2022 and it is declared that 149 days is taken to be imprisonment already served under the sentences imposed on 30 August 2022.