NVZ v Queensland Police Service

DISTRICT COURT OF QUEENSLAND

CITATION:

NVZ v Queensland Police Service [2018] QDC 216

PARTIES:

NVZ (Appellant)

v

QUEENSLAND POLICE SERVICE (Respondent)

FILE NO/S:

2655 of 2018

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane (Roma Street)

DELIVERED ON:

12 October 2018 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

12 October 2018

JUDGE:

Kefford DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – where the appellant breached a domestic violence order while in custody – where the appellant had a criminal history of breaches of domestic violence orders – where the appellant suffered from depression and anxiety – where the appellant was sentenced to nine months imprisonment with parole eligibility the same day – whether the sentence was excessive

LEGISLATION:

Justices Act 1886 (Qld), s 222, s 223

Penalties and Sentences Act 1992 (Qld) s 187

CASES:

ETB v Commissioner of Police [2018] QDC 26, distinguished

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, applied

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, applied

Queensland Police Service v JSB [2018] QDC 120, distinguished

R v Adams; ex parte A-G (Qld) [2006] QCA 312, cited

R v Goodger [2009] QCA 377, applied

RJD v Queensland Police Service [2018] QDC 147, considered

Rongo v Commissioner for Police [2017] QDC 258, approved

Smith v Queensland Police Service [2015] QDC 152, distinguished

COUNSEL:

E Strofeild (solicitor) for the Appellant

C Barron (solicitor) for the Respondent

SOLICITORS:

Legal Aid Queensland for the Appellant

Office of the Director of Public Prosecutions for the Respondent

Introduction

1. On 18 July 2018, the Appellant pleaded guilty to one charge of contravening a domestic violence order (aggravated offence) in the Magistrates Court at Roma Street, Brisbane.  The maximum penalty for the offence was 240 penalty units or 5 years imprisonment.  The maximum that could be imposed by the Magistrate was three years.  The Appellant was sentenced to nine months imprisonment with an immediate parole eligibility date and 36 days of pre-sentence custody declared as time served.

1. The Appellant appeals against the sentence on the basis it is manifestly excessive.  The Appellant’s outline raises three bases on which he asserts the sentence was excessive.  First, it is submitted that the sentencing discretion miscarried as the learned Magistrate failed to place adequate weight on the material tendered in relation to the Appellant’s psychiatric condition.  Second, it is submitted that the learned Magistrate erred by failing to have proper regard to the principles of totality.  Third, it is submitted that the sentencing discretion miscarried as the learned Magistrate dismissed a comparable case tendered by defence which, together with the Appellant’s personal circumstances, are said to support a shorter head sentence.

Circumstances of the offending

1. The facts of the offence were set out by the prosecutor at the hearing before the Magistrate as follows:

“On 15 August 2017, a temporary protection order was made in the Sandgate Magistrates Court.  NVZ…