R v Poynter

[2016] QDC 82

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Poynter [2016] QDC 82

PARTIES:

THE QUEEN

v

STEPHEN RAYMOND POYNTER
(defendant)

FILE NO/S:

Indictment 496/2015

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

13 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2016

JUDGE:

McGill SC, DCJ

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – Sentence – recording conviction as a conviction for a domestic violence offence – so recording conviction for previous offence – to what offences this provision applies.

Criminal Code s 1 (“domestic violence offence”)

Penalties and Sentences Act 1991 s 12A(3)-(6).

Nicholas v R (1998) 193 CLR 173 – cited.
Polyukhovich v The Commonwealth (1991) 172 CLR 501 – cited.
R v Koster [2012] QCA 302, 226 A Crim R 247 – cited.
R v MD [2016] QDC 61 – cited.

COUNSEL:

D Orr for the Crown
E G Bassett for the defendant

SOLICITORS:

Director of Public Prosecutions for the Crown
ATSILS for the defendant

1. On 5 February 2016 the defendant pleaded guilty to one count of unlawfully doing grievous bodily harm.  The sentence was adjourned, and came on before me on 4 April 2016 when the defendant also pleaded guilty to one summary offence, contravention of a protection order under the Domestic and Family Violence Protection Act 2012 (“the Act”). The complainant in both matters was at the time of the offending in a long term de-facto relationship with the defendant, and a protection order had been made in her favour in February 2015. I sentenced him to a term of imprisonment for the indictable offence, in respect of which a conviction was recorded and, pursuant to s 12A(2) of the Penalties and Sentences Act 1991 (“PSA”), ordered that the conviction also be recorded as a conviction for a domestic violence offence.  For the summary offence the defendant was convicted and a conviction was recorded[1] but he was not further punished.

   [1]After considering s 12A of the PSA further, I ought to have recorded that conviction as a conviction for a domestic violence offence also.

1. On that day the prosecutor filed by leave an application pursuant to s 12(3) of the PSA seeking an order that four earlier offences of which the defendant had been convicted be recorded as convictions for a domestic violence offence.  After hearing submissions from the prosecutor, I reserved my decision.  I was at the time concerned about whether this had the effect of attributing additional significance to a conviction which had previously been dealt with by a court, and whether if so that might infringe against the principle of non-retrospectivity of criminal laws.[2]  In the event however it seems to me that, for a different reason, that issue does not arise in this matter.

   [2]Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 609 – 626 per Deane J. This however was a dissenting judgment: Nicholas v R (1998) 193 CLR 173 at [149] per Gummow J. As to the presumption of non-retrospectivity, see R…