QPS v DLA

[2015] QMC 6

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

QPS v DLA [2015] QMC 6

PARTIES:

QPS

(plaintiff)

v

DLA
(defendant)

(defendant)

FILE NO/S:

00007531/15(0)

DIVISION:

Magistrates Courts

PROCEEDING:

Sentence

ORIGINATING COURT:

Caboolture

DELIVERED ON:

7 May 2015

DELIVERED AT:

Caboolture

HEARING DATE:

10 March 2015

MAGISTRATE:

M Bucknall

ORDER:

Permanent stay – Breach DVO

CATCHWORDS:

CRIMINAL LAW – Operation of and interaction of s138 of Domestic
and Family Violence Protection Act 2012 and s 16 Criminal Code –
Whether s 138 contains an express provision for double punishment –
Fundamental Legislative Principles

Domestic Violence and Family Protection Act 1989 (Q) s 62

Domestic and Family Violence Protection Act 2012 s 138

Criminal Code (Q) s 16

Criminal Code Act (Cwlth) 1995 s 474.17(1)

Legislative Standards Act 1992 s 4

Pearce v R [1998] HCA 57

R v MKW [2014] QDC 300

Ashley v Marinov [2007] NTCA 1

Ridgeway v Parravicini [2008] QDC 38

Acts Interpretation Act 1954 s 45

PROSECUTION:

Snr Constable Bonnyman (QPS)

Ms V.R Deanne

(Commonwealth DPP)

DEFENCE:

Ms F. Graham (Solicitor)

1. This is a matter where the defendant Mr DLA has pleaded guilty to two charges, one being an offence under s 474.17(1) of the Criminal Code Act (Cwlth) 1995, Using a carriage service to menace or harass or cause offence, and the other charge being a breach of a protection order made under the provisions of the Domestic and Family Violence Protection Act 2012.

1. The facts relating to each of the charges are that Mr DLA posted various Facebook entries in relation to the aggrieved named in the protection order to which he is the respondent, thus in contravention of that order by not being of good behaviour towards the aggrieved, and further that those entries of themselves constituted an offence under the Criminal Code Act (Cwlth) 1995 with which he has been charged.

1. This matter has come before me in an unusual way in that two separate prosecutors have appeared, that is one prosecutor from the Commonwealth DPP in relation to the Commonwealth offence and another police prosecutor appearing on the contravention of the Domestic Violence order.

1. I raised with both prosecutors as to whether the same act or omissions constituting the offences were the same, and if so how Mr DLA could be punished for both offences given s16 of the Queensland Criminal Code.

1. Both prosecutors confirmed that the same act, that is the posting of the Facebook entry, was the act relied upon in each of the charges.

1. Section 16 of the Criminal Code is as follows:

   “16     Person not to be twice punished for same offence

   A person cannot be twice punished either under the provisions of this code or under the provisions of any other law for the same act or omission, except…”

1. The High Court considered a similar provision in the decision of Pearce v R [1998] HCA 57; and at paragraph 40 of that decision stated:

“40. To the extent to which two offences of which an offender…