RMR v Sinclair

[2012] QDC 204

DISTRICT COURT OF QUEENSLAND

CITATION:

RMR v Sinclair [2012] QDC 204

PARTIES:

RMR
(Appellant)
v
SINCLAIR
(Respondent)

FILE NO/S:

1376 of 2012

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

24 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2012

JUDGE:

Devereaux SC DCJ

ORDER:

1. Appeal allowed.
2. The orders of the learned magistrate are set aside.
3. Order the release of the appellant under the supervision of a probation officer for a period of 2 years subject to the conditions set out in s. 93(1) of the Penalties and Sentences Act 1992.

CATCHWORDS:

CRIMINAL PROCEDURE - APPEALS - APPEALS AGAINST CONVICTION AND SENTENCE - PROCEDURE FOR APPEAL - APPEALS FROM MAGISTRATES COURTS - QUEENSLAND - APPEALS TO THE DISTRICT COURT – where appellant breached domestic violence order by protracted assault on the aggrieved, his de facto partner – where appellant sentenced to imprisonment wholly suspended – whether sentence excessive

Domestic and Family Violence Protection Act 1989, ss. 3A, 22, 80

Penalties and Sentences Act 1992 ss. 9, 10, 12, 13

Commissioner of Police v RTC [2009] QDC 376

RAS v Commissioner of Police (No. 1) [2011] QDC 366

SOLICITORS:

Mr T. Zwoerner on behalf of Legal Aid Queensland appeared for the appellant

Ms J. Ball on behalf of the Queensland Police Service appeared for the respondent

1. On 11 April 2012, the appellant pleaded guilty to breaching a domestic violence order. The learned magistrate sentenced him to 3 months imprisonment, wholly suspended for an operational period of 12 months. In this appeal against sentence, the appellant seeks instead a fine without a recorded conviction.

1. The appellant was 25 years old at the time of the offence. He is 26 years now and has no criminal history.

1. The domestic violence order was made at Redcliffe on 8 September 2011. It carried the standard condition[1] and two other conditions requiring the appellant not to contact the aggrieved or approach within 100 metres of her. On 6 October 2011, the order was varied deleting the other conditions.

   [1]Domestic and Family Violence Protection Act 1989, s. 22 (a) – be of good behaviour towards the aggrieved and not commit domestic violence

1. The appellant and the aggrieved/complainant were, and still are, in a de facto relationship. The prosecutor told the learned magistrate that on 18 February 2012, at about 9.30 pm, the couple argued in the kitchen at home. The appellant became aggressive. He ripped his partner’s shirt apparently trying to strip her of it. She suffered bruising to the left upper arm. Shortly after, the appellant punched the external wall of the house, threw food onto the floor and threw her mobile phone to the floor, breaking it. He left but returned, calmer, about 15 minutes later. He became aggressive again and ripped his partner’s shirt from her body. They argued more. She told him to leave her alone or she would not see his unborn child. He grabbed her around the neck and said, ‘If you don’t let me…