DISTRICT COURT OF QUEENSLAND
CITATION:
LJS v Sweeney [2017] QDC 18
PARTIES:
LJS
(appellant)v
ADAM SWEENEY
(respondent)FILE NO/S:
71 of 2016
DIVISION:
Criminal
PROCEEDING:
Appeal – s 222 Justices Act
ORIGINATING COURT:
District Court at Mackay
DELIVERED ON:
8 February 2017
DELIVERED AT:
Mackay
HEARING DATE:
6 February 2017
JUDGE:
Smith DCJA
ORDER:
1. The Appeal is allowed.
2. The orders made in the Magistrates Court in this matter are varied to the extent that on each of the two breaches of domestic violence orders (aggravated offences) the terms of 3 years imprisonment are set aside and in lieu thereof on each count the appellant is sentenced to 2 years imprisonment.
3. Those sentences are to be served concurrently with each other and concurrently with the other terms of imprisonment imposed in the Magistrates Court on 18 August 2016.
4. The parole release date fixed in the Magistrates Court is set aside and in lieu thereof I fix the appellant’s parole release date as at 23 February 2017.
5. The appeal is otherwise dismissed.
6. I make no order as to costs.
CATCHWORDS:
CRIMINAL – JUDGMENT AND PUNISHMENT – SENTENCE – breaches of domestic violence orders and other offences- whether the sentence imposed was manifestly excessive in light of comparable decisions – where the respondent concedes the appeal
Domestic and Family Violence Protection Act 2012 (Q) ss 37, 42
Justices Act1886 (Q) s 222
Penalties and Sentences Act 1992 (Q) s 9
IFM v Queensland Police Service [2016] QDC 140
PMB v Kelly [2014] QDC 301
R v Goodger [2009] QCA 377
R v James [2012] QCA 256
R v Kowearpta [2009] QCA 48
R v King [2006] QCA 466
Teelow v Commissioner of Police [2009] 2 Qd R 489
COUNSEL:
Mr T Zwoerner for the appellant
Ms A. Baker for the respondent
SOLICITORS:
Legal Aid Office (Queensland) for the appellant
Office of the Director of Public Prosecutions (Q) for the respondent
Introduction
The appellant appeals sentences imposed upon him in the Magistrates Court at Mackay on 18 August 2016.
The following penalties were imposed:
Date of offence
Offence
Penalty
1.
27 March 2016
Contravention of domestic violence order (aggravated offence)
3 years imprisonment
2.
30 April 2016
Contravention of domestic violence order (aggravated offence)
3 years imprisonment
3.
31 May 2016
Receiving tainted property
6 months imprisonment
4.
1 June 2016
Fraud
3 months imprisonment
5.
1 June 2016
Fraud
3 months imprisonment
6.
1 June 2016
Fraud
3 months imprisonment
7.
23 June 2016
Possessing dangerous drugs
3 months imprisonment
8.
23 June 2016
Assaulting or obstructing police
3 months imprisonment
The court fixed a parole release date as at 23 June 2017 and declared that the appellant was held in pre-sentence custody for 56 days between 24 June 2016 and 18 August 2016. Accordingly, the effective penalty was 3 years imprisonment to serve 12 months imprisonment.
The appeal is pursuant to s 222 of the Justices Act 1886 (Q). Section 222(1)(c) of the Justices Act 1886 (Q) provides that:
“if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”
In order to succeed an appellant needs to show there was a legal, factual or discretionary error below.[1]
[1]Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4].
Background
The appellant pleaded guilty to all charges on 16 August 2016. The police prosecutor tendered the appellant’s criminal history. The history disclosed that the appellant was born on 24 October 1977. His history is extensive, with entries from the Childrens Court. There are entries for offences of break, enter and steal. He had been sentenced to the Mackay District Court in 1996 on a robbery count in respect of which he received 3 years imprisonment. He had previous drug convictions. He had been sentenced in the Mackay District Court in 2005 on 4 counts of carnal knowledge of children under 16 years, and one count of indecent treatment of a child and received 12 months imprisonment suspended after serving 3 months for 2 years. He had breached domestic violence orders in July 2006 twice, and had received terms of imprisonment of 3 months and 14 days. He further breached domestic violence orders twice on 23 February 2006 and 25 February 2007, in respect of which he received 4 months and 2 months, respectively. He breached a domestic violence order on 12 May 2006 and received 2 months imprisonment, cumulatively. There were further breaches of domestic violence orders in 2007, in respect of which he received 3 months imprisonment. He had been dealt with for failing to comply with reporting conditions in 2008 and was sentenced to 4 months imprisonment. There were further fail to comply charges from 2009, in respect of which he received 4 months imprisonment to serve 1 month suspended for 3 years. He was sentenced to further jail terms for assaulting or obstructing police and failing to comply with reporting conditions – 12 months imprisonment in January 2010. He was sentenced on 28 January 2011 to breaching a domestic violence order and breaching bail and received 4 months imprisonment, suspended for 2 years. He was sentenced on a further breach of a domestic violence order committed on 1 February 2011 and received 9 months imprisonment with a parole release date as at the date of sentence (after having served 73 days). He was sentenced for failing to comply with reporting conditions and failing to appear on 17 August 2013. He was sentenced on failing to comply with reporting and contravention of domestic violence orders in January 2012 and December 2013 and received 12 months imprisonment with a parole release date after about 4 and a half months. In June 2014 he was sentenced for contravening domestic violence orders (five charges) and received 18 months imprisonment with a parole eligibility date on 23 April 2015.
As to the facts of the offences before the court, the aggrieved was ML. The aggrieved and the appellant were the biological parents of a child together. There was a protection order issued against the appellant on 27 June 2014 containing mandatory conditions as well as other conditions preventing him from approaching the aggrieved or contacting her. On 27 March 2016 ML was at home asleep. At about 1.45am the aggrieved awoke to find the appellant in her dwelling. She told him to “fuck off” and asked how he got in there. The aggrieved saw her phone in his pocket. An argument ensued and the appellant punched the aggrieved, causing her to fall over. He then left the dwelling with her mobile phone and $30 belonging to her. He was arrested on 23 June 2016 and declined an interview. As to the breach of domestic violence order on 30 April 2016, the aggrieved was at an address in Valley Street visiting the appellant’s mother. The appellant was also present. The appellant asked her to stay when she went to walk from the front gate with their son. The aggrieved said she was leaving and the appellant grabbed her by the arm and tried to walk her back into the house. She attempted to pull away and walk out the gate and he grabbed her by the back of the head and pushed her head into the fence and kicked her in the back. She called the police and reported the matter. The appellant then made a number of calls and sent a number of text messages to the aggrieved, one of which was answered by the police. It was not alleged there were any serious injuries.
In respect of the tainted property charge on 31 May 2016, a person climbed into the victim’s house and stole a purse containing bank cards and identification cards. A house and car key was also taken. The appellant was later located with those items which were reasonably suspected of being tainted property. In relation to the first fraud charge, a National Australia Bank credit card in the purse was located on the defendant. It was used to purchase milk, fruit juice, paper and two packets of cigarettes, a total value of $49. The card was further used to make a second purchase of two loaves of bread, tea bags and Telstra recharge cards. In relation to the final fraud charge, this was used a short time later at a SPAR Supermarket to buy four pies, $20 of Optus mobile credit, two packets of cigarettes and another packet of cigarettes. CCTV footage was located. In relation to the assault or obstruct charge, the defendant ran from police and fell over, got up and approached police with clenched fists, screaming at them. He complied with their directions after a Taser was presented to him. In relation to the possession of cannabis charge, this related to possession of a clip seal bag with a butt of cannabis. After his arrest on that charge he tried to push away from police when they were escorting him to a vehicle but he was eventually placed in the police vehicle for transport to the watch house. He was offered an electronic interview. He was shown images from the CCTV footage and confirmed it was him in the footage. He then declined a formal interview. The prosecutor submitted to the court that the allegations of domestic violence were the most serious charges before the court whilst the fraud and other offences were of a low nature. The prosecutor then made submissions concerning a psychological report to be tendered by the defence.
Defence submissions
A psychological report was tendered. The report was by a Dr Martin, prepared with respect to litigation brought by the appellant against the trustees of De La Salle Brothers and another. The report noted the following:
(a) the appellant was physically and sexually abused whilst a resident at Boystown between February 1991 and March 1992. This abuse included being flogged with a strap, punched with a closed fist, locked naked for hours in a room, being “touched up” and made to sit on the lap of a particular brother, being touched in the showers and being beaten by all the boys.
(b) the appellant was disciplined by his biological father by the use of a stockwhip.
(c)at the age of three, the appellant fell down a flight of stairs and suffered a closed head injury.
(d) at the age of four, the appellant witnessed his younger sister drown. He blamed himself for this event and received no counselling or support in the aftermath. Another sister of his was allegedly stabbed at the age of 24 to death.
(e) the appellant had been assessed by the Mackay special school as having an IQ of 76.
(f) at the age of nine, the appellant began offending, stealing cigarettes and money from cars. He displayed comprehension problems, committed property damage at school when banging his head. He was excluded from school for spitting and swearing at his peers.
(g) his behaviour saw him placed in a care and protection order which continued from 18 December 1986 to 24 October 1995. He was placed, unsuccessfully, in seven different foster families between December 1986 and February 1991. Whilst in foster care he reported having been flogged with a belt and extension cord until he urinated.
(h) the appellant had attempted suicide by hanging on three occasions and had been placed on suicide watch in police custody at the age of 16.
(i) the appellant’s substance abuse began as a means to deal with the abuse he suffered as a child.
(j) Dr Martin opined the appellant to be suffering from:
Axis 1: post-traumatic stress disorder and a learning impairment;
Axis 2: anti-social personality traits, borderline intellectual impairment;
Axis 3: alcohol abuse, cannabis abuse, methamphetamine abuse;
Axis 4: victim of child and sexual, physical and emotional abuse, estrangement from primary indigenous network, incarceration and institutionalised behaviour, lack of occupational history or social skill development and complicated bereavement; and
Axis 5: GA (Global assessment of functioning) of 40, serious impairment in social, occupational and previous skill function.
The defence lawyer submitted that the appellant should be released to a probation order, taking into account the pre-sentence custody. These submissions were not advanced, following the adjournment at which time it was conceded that a term of imprisonment was the only sentence within range.
Counsel submitted:
(a) at the time the offences were committed the appellant had not been receiving medication for his psychiatric condition;[2]
(b) the appellant’s mother would be assisting the appellant to have contact with his son;[3]
(c) the appellant was, at that stage, taking civil action against the brothers who operated for Boystown.
[2]Transcript 16 August 2016, p 7.41-45.
[3]Transcript 16 August 2016, p 11.31-32.
The counsel referred a number of times to the doctor report prepared by Dr Martin which outlined his deprived upbringing, mental health problems and institutionalisation. It was also submitted that the aggrieved was leaving Mackay and was to re-settle in Cairns so there would be no need for direct contact. It was submitted that treatment for the appellant was important. A letter from Anglicare was also tendered.
In further submissions on 18 August 2016 defence counsel heavily relied upon the report of Dr Martin.
Magistrate’s decision
The magistrate had made it clear on 16 August 2016 that a community based order was not appropriate given the appellant’s criminal history.[4] The appellant’s history in care and dramatic childhood were taken into account, as was the appellant’s medical history, head injury, drug use and suicide attempts. It was found the assaults before the court were particularly serious, given the fact the appellant had been before the court for similar offending on other occasions. Ultimately, the magistrate imposed the penalty previously mentioned.
[4]Transcript 16 August 2016, p 13.21-24.
Appellant’s Submissions
The appellant submits that the penalty imposed in this case was excessive. It is contended that a sentence of between 2 and a 2 and a half years with release on parole should be substituted. It is submitted that 3 years imprisonment was the maximum penalty one could receive in the magistrate’s jurisdiction. It is submitted that the last contraventions resulted in an effective head sentence of 18 months imprisonment. Whilst the nature of the offending at hand was not low level, it was not such as to attract sentences of 3 years imprisonment. A number of comparable decisions are relied upon. It is further submitted the magistrate fell into error by describing the appellant’s pleas of guilty as not being early.[5] The fact is that negotiations had occurred which led to a burglary charge being discontinued. It is further submitted that there was an error in the magistrate failing to provide an opportunity to the defence to make submissions as to the available maximum.
[5]Transcript 18 August 2016, p 12.25-26.
Respondent’s submissions
The respondent, in its submissions, concedes that the sentence was manifestly excessive thereby creating an appealable error requiring the appellant to be sentenced afresh. It does not concede the two other errors alleged. It submits that the proposal to substitute a sentence of 2 years imprisonment is an appropriate penalty to be imposed, having regard to the nature of the offences and antecedents of the appellant.
The reason for the respondent’s concession is by reason of an examination of relevant comparable decisions to which I will now turn.
I note the magistrate was not provided some of these comparable decisions which no doubt would have assisted her in fashioning the penalty in this matter.
Comparable decisions
It shall be borne in mind, firstly, that the maximum penalty for contravening a domestic violence (aggravated offence) was increased on 22 October 2015 from 3 years to 5 years imprisonment. There is an absence of comparable sentencing decisions since the increase in the maximum penalty.
In IFM v Queensland Police Service,[6] the appellant had been convicted of two charges of contravening domestic violence offence (aggravated). He received 6 months imprisonment on the first contravene charge and 15 months imprisonment on the second charge. The offending in the second contravention offence was more serious than the first, attracting the higher head sentence. The appeal against 15 months imprisonment was dismissed by Judge Durward SC. In that case, the appellant pushed the complainant over and punched her to the jaw. No physical injury was alleged. He was on bail after he was arrested and charged. For charge 2, he grabbed the complainant by the throat and hit her, knocking her to the ground. He kicked her in the body, dragged her to her feet and verbally abused her. He dragged her to a nearby park, knocking her to the ground whilst on route, hit her in the head, picked her up and continued to drag her with him. Each of the complainant and appellant ran away after the police had been called. No physical injury was alleged. Although the facts in that case are slightly more serious, it is largely comparable with the instant case.
[6][2016] QDC 140.
In PMB v Kelly,[7] the appellant was convicted of one charge of contravening a domestic violence offence (aggravated). The appeal against a sentence of 12 months with release after 3 months was allowed to the extent that a new parole release date was fixed to take into account the time in custody. Otherwise the sentence was not disturbed upon appeal. On 2 August 2014, the appellant arrived home. He stayed up drinking red wine in the lounge room. Ms A stayed away from him in her bedroom. At about 9.30am on 3 August 2014, Ms A asked the appellant to fix a washing machine. He opened and slammed the lid until it snapped off the machine and started banging the lid against the machine. He threw an unopened can of Pepsi at the kitchen wall, causing it to spray-out the kitchen and then grabbed steak knife and held it in a threatening manner and said to Ms A, “Are you scared now?” he then stabbed a loaf of bread and threw the knife across the kitchen. He grabbed Ms A and threw her onto the lounge. He attempted to take her phone from her but she refused. He placed his hands around her neck and started choking her. She couldn’t breathe and bit the appellant on the forearm. He then threw her onto the lounge room floor and with a closed fist punched her to the top of the head approximately 4 times. He then picked her up off the floor and slammed her into the tiled floor twice, causing her right temple to bang on the floor. He then placed his knee in her back and put her in a headlock. She struggled to breathe and bit him. She ran out the house and called the police. An ambulance attended and she was taken to hospital where she was observed to have a swollen and bruised eye, a bleeding upper lip and scratches on her arm.
[7][2014] QDC 301.
The facts in PMB are arguably more serious than that in the current appeal and involved the use of a weapon, but the appellant had a far less serious criminal history than the present appellant, but he had been previously convicted of breaching orders involving the same complainant.
In R v James,[8] the appellant was convicted of one charge of contravention of a domestic violence protection order. He received 9 months imprisonment with a release date after 4 months. He punched his de facto partner at the hospital whilst she awaited treatment. The offending occurred a day after he had been served with a domestic violence protection order. He had six previous breaches of domestic violence protection orders, two previous of which had attracted terms of imprisonment.
[8][2012] QCA 256.
In R v King,[9] the applicant was sentenced to 2 years imprisonment for two counts of assault occasioning bodily harm, as well as lesser penalties for wilful damage and three counts of unlawful use of a motor vehicle. The assaults were committed on two separate occasions (23 December 2004 and 7 March 2004) by the 25 and 26 year old applicant against his de facto partner who was 18 and 19 years of age at the time. The applicant’s conduct involved grabbing her by the hair, throwing her against a fence, dragging her and punching her to the face. On the last occasion, the complainant was pregnant. The applicant had a prior criminal history for drug, property and violent offences and had received suspended sentences and an intensive corrections order in the past. A psychological report was tendered which pointed to the applicant’s major depressive disorder and substance abuse problems, noting he would benefit from cognitive behaviour therapy for an extended period. The complainant had written in her victim impact statement she did not wish for him to be sentenced to actual imprisonment. In my view, the level of offending in that case was more serious than the one at hand and the maximum penalty was 7 years imprisonment.
[9][2006] QCA 466.
Finally, in R v Kowearpta,[10] the applicant received 3 and a half years imprisonment for three counts of assault occasioning bodily harm and 2 years imprisonment for deprivation of liberty (as well as single counts of common assault and going armed in public to cause fear). He was also ordered to serve 10 months for breaching a suspended sentence. He assaulted his de facto partner in their home on three occasions about a fortnight apart. The assaults included punching, kicking her to the body, choking her and threatening her with a fork. Of more concern was the fact that during the second incident, the applicant stabbed the complainant with a pair of scissors. The applicant had a history which included a previous entry for assault occasioning bodily harm and wounding for which he had received 2 and 3 years terms of imprisonment. He had also been sentenced to 2 and a half years imprisonment for robbery with violence. I consider this to be a more serious case than the instant one bearing in mind the use of a weapon and bearing in mind the greater maximum penalty in that case- said to be 10 years imprisonment.
[10][2009] QCA 48.
At first blush I would have considered a 3 year head sentence high, but within the sentencing range, but having considered the comparable decisions and noting the crown’s concession, it would appear that a head sentence of 3 years imprisonment was excessive despite the applicant’s previous convictions. It seems to me that the parties’ concessions that 2 to 2 a half year’s imprisonment is within the sentencing range in this matter is accurate and as such I should exercise the sentencing discretion afresh.
I do not consider there was any error on the part of the magistrate in failing to inform the parties with a further opportunity to be heard as to what the exact sentence was going to be. As to the categorisation of the plea of guilty as late, this was immaterial, even if there was an error. The effect of release after a third was a clear reflection that the magistrate had moderated the sentence to take into account the pleas of guilty.
Disposition
Bearing in mind the pleas of guilty, the totality of the conduct, the previous convictions of the appellant,[11] the impact of his psychological condition on his offending[12]; the principles of sentencing mentioned in the Penalties and Sentences Act, the relevant matters mentioned in s 9(2), the factors mentioned in s 9(3) of the Penalties and Sentences Act concerning the offences of violence and the fact that the breach offences occurred in breach of a domestic violence order[13], it is my view that an appropriate penalty is one of 2 years imprisonment to serve 8 months.
[11]Section 9(10) of the Penalties and Sentences Act.
[12]R v Goodger [2009] QCA 377 at [19]-[21].
[13]Section 9(12) of the Penalties and Sentences Act.
The law requires me to consider whether the domestic violence order should be varied in this case.[14] The appellant consented to a 2 year protection order during the hearing of this matter. In any case I find there was domestic violence committed by the appellant during the relevant relationship and it is necessary and desirable to make the order ( protect the aggrieved from domestic violence) bearing in mind the history of the parties, the appellant’s antecedents, the fact they have a child together and contact arrangements will need to be made[15].
[14]Section 42(3) of the Domestic and Family Violence Protection Act 2012 (Q).
[15]Section 37 of the Domestic and Family Violence Protection Act 2012 (Q).
In the circumstances, the orders will be as follows:
1. The appeal is allowed.
2. The orders made in the Magistrates Court are varied to the extent that the terms of 3 years imprisonment imposed that on each of the contravention of domestic violence offences (aggravated offence) are set aside and in lieu thereof on each count, the appellant is sentenced to 2 years imprisonment.
3. Those sentences are to be served concurrently with each other and concurrently with the other terms of imprisonment imposed in the Magistrates Court on 18 August 2016.
4. The parole release date fixed in the Magistrates Court on 18 August 2016 is set aside and in lieu thereof I fix the appellant’s parole release date as at 23 February 2017.
5. The appeal is otherwise dismissed.
6. I make no order as to costs.