TDO v Sperling - [2009] QDC 280

DISTRICT COURT OF QUEENSLAND

CITATION:

TDO v Sperling [2009] QDC 280

PARTIES:

TDO

(Appellant)

AND

CONSTABLE D. SPERLING

(Respondent)

FILE NO/S:

D 3208/08

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Cleveland Magistrates Court

DELIVERED ON:

14 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2009

JUDGE:

Irwin DCJ

ORDER:

1.       Appeal allowed against conviction on the charge for contravention of a temporary protection order on 30 November 2007, the conviction is set aside and verdict of acquittal entered.

2.(a)     Appeal allowed against sentence on the charges for contravention of protection orders on 10 December 2007 and 23 January 2008.

(b)    The sentence imposed at first instance is set aside and instead the following orders are made in respect of each charge:

(i)     a conviction is not recorded;

(ii) the appellant is released under s 31 of the Penalties and Sentences Act 1992 by entering into a recognisance in the sum of $500, conditioned that he keep the peace and be of good behaviour for a period of 3 months.

3.         Appeal dismissed against the imposition of a protection order against the appellant on 31 October 2008.

CATCHWORDS:

CRIMINAL LAW – Appeal Against Conviction – appeal against decision of a magistrate – where appellant convicted after trial on a count of contravening a temporary protection order – where appeal proceeded on the evidence given in the Magistrates Court – where upon a review of the evidence, affording respect to the decision of the magistrate and the magistrate’s advantage in seeing and hearing the witnesses, appellate court unable to arrive at the same conclusion

CRIMINAL LAW – Appeal Against Sentence – where appellant convicted after trial on one count of contravening a temporary protection order and on two counts of contravening a protection order – where sentence was 18 months probation – where no conviction recorded – where appeal allowed against conviction on the count of contravening a temporary protection order – where magistrate did not obtain the appellant’s consent to performing probation for the duration and other terms ordered – where in these circumstances the appellate court entitled to re-exercise the sentencing discretion – appropriate sentence in circumstances where the appellant does not consent to a probation order being made

DOMESTIC VIOLENCE – Power of court before which a person is found guilty of an offence that involves domestic violence to make a protection order – where appellant convicted on two counts of contravening a protection order – whether convicted of an offence involving domestic violence

Domestic and Family Violence Protection Act 1989, s 11(1), s 11A(1), s 12(1), s 12B(1), s 12B(2), s 30(1), s 63, s 65, s 80(1)

Evidence Act 1977, s 132C(3), s 132C(4)

Justices Act 1886, s 222, s 223(1), s 223(2), s 225(3)

Penalties and Sentences Act 1992, s 31, s 96

Bottoms v Rogers [2006] QDC 080, applied

Dowse v Gorringe [2004] QDC 477, cited

Fox v Percy (2003) 214 CLR 118, applied

House v The King (1936) 55 CLR 499, applied

Mbuzi v Torcetti [2008] QCA 231, applied

Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited

R v Armstrong [2006] QCA 158, cited

R v Briese (1997) 2 A Crim R 75, cited

R v Dullroy and Yates; ex parte Attorney-General (Qld) [2005] QCA 219, cited

R v E (1995) 89 A Crim R 325, applied

R v McBride [2008] QCA 412, applied

R v Marsden [2003] QCA 473, applied

R v Melano; ex parte Attorney-General (1995) 2 Qd R 186, applied

R v Mladenovic, ex parte Attorney-General [2006] QCA 176, cited

R v Sittczenko, ex parte Cth DPP [2005] QCA 461, cited

R v Wood [1994] QCA 297, applied

Rowe v Kemper [2008] QCA 175, applied

COUNSEL:

The appellant appeared on his own behalf

M. Litchen for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Director of Public Prosecutions (Qld) for the respondent

Background

The appellant and his wife separated on 2 October 2007. On that date his wife applied for a protection order under the Domestic and Family Violence Protection Act 1989 (the Protection Act).

A temporary protection order was made on 29 October 2007, when the appellant as present in court.

A protection order was made on 4 December 2007. The appellant was served with a copy of this order.

Each order required the appellant to be of good behaviour towards the aggrieved and named persons, and to not commit domestic violence against them. The appellant’s wife was the aggrieved and his 16-year-old daughter was one of the named persons for the purpose of each order.

The orders also required that the appellant not contact, try to contract or ask someone else to contact the aggrieved or any named person listed in the order, either directly or indirectly, by telephone or any other means of communication. The exceptions to this requirement, and the other requirements of the order, are not relevant to this appeal.

On 31 October 2008, the appellant was convicted after a two-day summary trial of three counts of contravening a protection order contrary to s 80(1) of the Protection Act. The contraventions were alleged to have occurred at Victoria Point on 30 November 2007, 10 December 2007, and 23 January 2008. These were respectively described as the “cinema”, “real estate agent” and “skate park” incidents.

A probation order for 18 months was made for the offences. No conviction was recorded. Pursuant to s 30(1) of the Protection Act the court made a protection order for a period of two years in respect of the appellant’s wife and 16-year-old daughter. This was on the same conditions of the previous order.

This appeal has been brought pursuant to s 222 of the Justices Act 1886 (the JA) from the conviction for contravening the temporary protection order by virtue of the “cinema incident” on 30 November 2007, the sentence, and the order imposing the protection order.

Although no appeal has been lodged against the convictions for the two contraventions of the protection order related to the “real estate agent” and “skate park” incidents, the appellant, who appeared on his own behalf, maintained during argument that he was not guilty of the former; and, that although there was enough evidence on which to find him guilty of the latter, it did not happen in the way alleged against him by the prosecution and accepted by the magistrate.

The Notice of Appeal was filed against the appellant’s conviction for contravening the temporary protection order only, by his then solicitor within one month as required by the JA on 14 November 2009.[1] A further eight months has passed without lodging an application for extension of time within which to appeal against the conviction of the contravention of the protection order related to the “real estate” incident. When the appeal was heard, almost nine months had expired since his conviction of that offence. Accordingly, there is no proper basis for me to extend my consideration of this appeal against conviction of the contravention of the temporary protection order to include his conviction in respect of the “real estate” incident. I limit my consideration of the appeal against conviction to that in respect of the “cinema” incident.

Appeal against conviction

[1]The appellant’s solicitor’s application for leave to withdraw was granted by the Chief Judge on 23 April 2009.

Standard to be met on this appeal

This appeal proceeded under s 223(1) of the JA on the evidence given in the Magistrates Court. Leave was not sought under s 223(2) for fresh, additional or substituted evidence (new evidence) to be adduced. In hearing such an appeal, it is necessary for this court to afford respect to the decision of the magistrate and to bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but also to review the evidence, to weigh the conflicting evidence, and to draw its own conclusions: Fox v Percy (2003) 214 CLR 118 at [25]; Rowe v Kemper [2008] QCA 175 at [5]; Mbuzi v Torcetti [2008] QCA 231 at [17].

His 16-year-old daughter, son and his estranged wife gave evidence in the prosecution case about the alleged “cinema” incident.[2]
[2]The daughter’s evidence-in-chief given on the first day of the hearing is at T 80-85. The evidence concerning the alleged “cinema” incident is at T 80-81. She was cross-examined about it at T 86-92. The son and the wife also gave evidence on the first day. The son’s evidence-in-chief concerning this issue is at T 66-69. He was cross-examined about it at T 69-76. The wife’s evidence-in-chief is at T 16-18. Her cross-examination about it is at T 33-39. She was re-examined at T 50 and further cross-examined at T 50-52.

The daughter’s evidence

His daughter said that about lunchtime she had gone to the cinema at the Victoria Park shopping centre with her brother and his friend. Because there were no movies that they wanted to see, they walked along an arcade, which is described as a pedestrian only alleyway, onto the footpath. She said that she was about a metre in front of her brother and his friend. As they were walking past the newsagency which was on the street at one corner of the alleyway,[3] her brother said that her father was there. She said that it was a shock to see him walking towards her from about 10 metres away. In evidence-in-chief she described what then happened as follows:[4]

“And he walked up because he wanted to talk to me and I walked away and started running. As I started running he started running after me so I went over to Westpac which is across the road because my mum works there.”

She said that she knew he wanted to talk to her because, “he called my name”.[5] However, he did not say anything else to her at that time.

[3]See Exhibits 4 (drawn by the wife) and 5 (drawn by the son), which are mud maps of the position of the relevant places and events.

[4]T 80 ll 28-32.

[5]T 80 l 47.

The charge against the appellant is based on her evidence of what happened immediately after this. The evidence is as follows:[6]
[6]T 81 ll 1-3.

“Okay. Did you see him again when you were running away at all?--I didn’t turn around but I could hear him running and he yelled out that he just wanted to talk.” (my emphasis)

However, he did not say anything else.

She said after she had told her mother what had happened they came out of the Westpac bank together to see if he was there. While she stayed on the bank side of the road, her mother went over to the other side and talked to the appellant for “like two minutes”. He was about 15-20 metres away at the time. She did not hear what her mother was saying to him. She then saw him get into his car, which was parked right outside the library, and drive away; and she did not see him again that day.

Her recollection of what occurred from the time that she first saw her father until she arrived at the Westpac bank emerged in cross-examination as follows:[7]
[7]T 87 l 39 – T 81 l 21

“… So you’re the first person to walk out on the footpath - - - - -?- - Yes.
- - - - - from the alleyway. Okay. Did you see where [your brother] went when he saw your dad?- - At first we didn’t quite see him like at first, we were just looking down and [my brother] had said to me that dad was there and then as I looked I saw him, and then that’s when I ran away, and I don’t know where [my brother] went because I just ran, I wasn’t taking notice of the other 2.
So at the point in time where you ran, your father had not spoken to you at that point, had he, or said your name by that point?- - No.
Now, you say in your evidence that as you ran away your father called out your name?- - Yeah, when he saw me he called my name. As I ran he ran after me and he told me that he just wanted to talk.
Now, you didn’t see your dad run after you, did you?- - No.
In fact, you don’t know if he ran after you or not?- - I do know, because I could hear him running after me, because he was yelling out to me ‘I want to talk’ and I could hear it just behind me; as I was running I could hear him running after me.
How far away from your dad do you think you were when you first saw him?- - At least 10 metres.
10 metres?- - Yes.
So he’s got to go down the street and then turn up the alleyway which is the direction you ran?- - We were in an alley and then there is a long road here, we’ve walked out of here and then there’s like a long pathway down there, he was in front of me by 10 so it was straight up and yeah, I’ve run down the alleyway so he’s come up and then he’s ran that way and then I’ve lost him as soon as I’ve gone round there.” (my emphasis)

She said that she then went and headed into the library which was also on the same side of the street as the cinema. She sent a text message to her brother’s friend to let them know where she was and then run straight to her mother’s work. She rejected the suggestion that she went with her brother and his friend to the second level of the library and waited there for about 10 minutes. She was certain that she did not go inside the library. Her evidence was that she was by herself when she saw her mother.

She said that when she saw her mother she did not say that her brother was with the appellant.

She was also sure that she never crossed over to the same side of the road where her parents were during their subsequent confrontation. And she was certain that she did not stand on the footpath in the area where the appellant’s car was parked.

Her evidence was that when her parents had finished talking she called out to her brother and his friend who were next to the library, and they came over to her.

She estimated that about 15 minutes had passed from the point she first saw the appellant to when her mother came back to her after he had driven away.

The son’s evidence

His son was aged 15 years at the time. He estimated that they were at the cinema around 10 am. His sister was just behind him with his friend as they walked out of the alleyway near the newsagency. He said that they were “pretty much on the corner” when he saw the appellant walking towards them. His evidence-in-chief about this was as follows:[8]
[8]T 67 ll 1-23.

“Whereabouts was he when you first saw him?- - I first saw my dad, he was straight in front of us, had like – not really quite sure if he was waiting or not. Just – probably just randomly there. Then kind of freaked out and ran inside the newsagents, me and my friend. My sister went elsewhere then later on I went into the library, ‘cause my friend got a text message from my sister to meet up there. Then, as we meeted [sic] up in the library, which was like a block – a block away, went to the library, then my sister got a message from my mum saying, just to go to her and then as we left the library, my dad quickly went to his car and we went to my mum – and my dad just said, ‘Happy’ – he said, ‘Happy Christmas’ to my sister and then we went to the Westpac Bank, which is across the road from the cinemas on the right-hand side and then went to Cleveland Police Station to give a statement.
Now, when you first saw your father that day, do you remember what [your sister] did?- - She ran. I’m not quire sure where she ran, but she just ran in a different direction.
And how far away was your father from yourself and [your sister] at that time?- - I – I’d say about 2 to 3 metres.”

He said that the last time he saw the appellant he was on the way to the bank. The appellant was walking to his car and was three to four metres from them. It was at this time that the appellant called out “Merry Christmas” to his sister, after which the hopped into his car.

Under cross-examination his evidence about the initial observation of the appellant was:[9]

“And you didn’t at any time hear – aside form the words you’ve told us, “Merry Christmas, …”, you didn’t hear your dad call out to [your sister] at any other time, did you?- - No.
And you didn’t at any time, see your dad follow [your sister] or chase after her, did you?- - When I first went into the newsagents, my sister, like, ran in one direction and that was like, just like – as we were walking towards my – my dad and stopped, she ran like the opposite way, and all I recall is seeing my dad keep walking that way.” (my emphasis)

[9]T 76 ll 19-28.

He also said that the appellant did not say anything at all to him at any time. He had crouched down and hidden with his friend behind a magazine rack in the newsagency. He could not see outside. The appellant never came into the newsagency or called out his name.

After a maximum of three minutes his friend received the call from his sister to quickly meet in the library. They went straight to the library and went to the second floor with his sister. This recollection is contrary to the evidence of his sister and mother.

While in the library he kept a lookout to the main shopping centre side of the road for about 10 minutes. He never saw the appellant during that time. His sister and mother were in contact. As a result they left the library together to go to the Westpac bank. This is also different to the evidence of his mother and sister.

He said that he called to his mother and she was looking at them directly as they came out of the library. They then walked towards her across the road. He said that it was at this time he saw the appellant “more towards the movies along that pathway” and as they crossed the road he said “Merry Christmas” to his sister. The appellant had his hand on an open car door when he said this; and the appellant “just said it like nicely.” His recollection is that his mother did not cross the road from the Westpac bank side to the cinema side to speak to the appellant.

He estimated that it was about 20 minutes from the moment that he first saw the appellant to the time he was walking across the road to see his mother

The wife’s evidence

Her evidence-in-chief was that the “cinema” incident first came to her attention when her daughter ran into the bank. Her daughter was crying and hysterical and said that, “Dad’s trying to get me, he’s there, he’s got [her brother].” As indicated in paragraph [17], her daughter’s evidence was that she did not say that her brother was with the appellant.

She said that she panicked and went outside with her daughter. She saw the appellant on the same side as the shopping centre near her son and his friend. He was walking towards them. She called out, “You’re breaching the DVO. Leave the kids alone.” Her evidence was that he then walked straight past her and followed their daughter up the street. She said that their daughter was scared and ran across the road. According to her, he turned around and came looking for their son and his friend. They then followed her across the road. The appellant then got in his vehicle and drove off. Her evidence was:[10]

“And he kept pursuing [their daughter], there’s no doubt about it.”

[10]T 18 ll 19-20.

Under cross-examination she agreed that the appellant’s car was in the same vicinity, that he was walking on the footpath, and that their daughter was in front of the area where his car was parked. She did not accept the proposition that he was just walking in the direction of his car to drive away rather than pursuing their daughter.

She emphasised that she was looking for her son and was not seeking to confront the appellant. She accepted that he never replied to her when she called out to him.

The appellant’s evidence

TDO gave evidence in his defence.[11] With reference to the alleged “cinema” incident he said that he had gone to the Victoria Point Shopping Centre on that day to speak to his solicitor. He did not have an appointment. The solicitor’s office was less than 20 metres past the alleyway between the newsagency and cinema complex side of the arcade. He parked as close as he could to this office on the same side of the street, near the library or ANZ Bank.
[11]Mr TDO’s evidence-in-chief is at T 110-127 on the first day of the hearing. The evidence concerning the alleged “cinema” incident is at T 110-115. He was cross-examined about it on the second day of the hearing at T 3 and T 25-30.

As he walked along the footpath towards the office, his daughter “just popped in front of him from the alleyway”. She was probably 4 metres from him. He did not realise it was her amongst the people on the street until she stopped and stared at him. He did not call out her name or say anything to her; and he never took a step towards her or chased her. He said that he just came to a standstill with surprise, and she just scampered off and ran up the alleyway. He was stunned and probably stood there for a minute before continuing to his solicitor’s office. He did not see his son at that time.

He estimated that he saw his solicitor for 15 or 20 minutes. He then walked directly to his car. As he approached the newsagency he noticed his daughter was standing further up the street, right next to his vehicle. He continued walking in her direction with the intention of getting into the vehicle and leaving. He had not recognised any other member of his family at this stage. He then became aware of a female approaching him quickly on the same side of the road between him and the vehicle. This was probably just before the newsagency. He was stunned to realise that this person was his wife. He said that she said, “What are you doing here, you’re not allowed here”; and she started getting louder. He ignored her and continued to walk to his vehicle. As he approached it, his daughter walked away across to the Westpac bank side of the road. He called out “Merry Christmas” to his daughter as he started to enter the vehicle. In doing so, he mentioned her first name. He said that his wife was right on his heels, yelling at him. Again, he did not see his son.

He maintained this account under cross-examination. This included the following exchange:[12]
[12]T 26 ll 20-28.

“Now, upon realising it was your daughter in front of you, you wanted to talk to her, didn’t you?- - I’m her father.
And it’s natural that you’d want to have a conversation with her?- - I’d still like that.
You hadn’t seen her for some time at this particular time?- - That’s correct.”

He emphasised with reference to his daughter that:[13]

“We didn’t have a conversation and neither did I chase her.”

He said that after he left his solicitor’s office he walked straight to his car, which was the closest park on the same side of the road and “maybe a matter of 200 metres”.[14]

[13]T 26 ll 49-50.

[14]T 30 ll 4-6.

The magistrate’s reasons for decision

The magistrate properly stated the onus of proof and standard of proof.[15]
[15]Decision, p 3 ll 1-20.

Her Honour observed that it was obviously emotional for all witnesses, including the appellant, to give evidence about the three events which were the subject of the charges. As she recognised the surrounding events were highly charged and emotional, involving a very difficult break up of a longstanding marriage and a large family, together with the 16-year-old daughter having run away from home.[16]
[16]Decision, p 4 ll 9-30.

She observed that it was unremarkable that there were minor variations about the recollection of events between each of the prosecution witnesses; and noted “a very distinct difference in recollection about events between the prosecution as a whole and individually between each of the four witnesses and what [the appellant] recalls and gives evidence about …”[17]
[17]Decision, p 4 ll 32-55.

She also recognised that her assessment of the reliability of evidence of the respective witnesses was necessary to assist in determining the matter.[18] Although she did not expressly state this proposition in relation to the credibility of witnesses, I proceed on the basis that she also recognised this closely associated issue.
[18]Decision, p 5 ll 1-15.

The reasons for decision clearly reveal that her Honour preferred the evidence of the appellant’s wife and daughter and their respective accounts of the “cinema” incident to that of the appellant.

She considered that the daughter presented as a very strong and reliable witness for a young person; responded well to cross-examination; maintained her evidence; and was not shaken in her evidence. She was clearly impressed by her demeanour and did not consider her evidence to be exaggerated.[19]
[19]Decision, p 6 ll 8-22.

Her Honour concluded with reference to the appellant’s imputation of improper motives to his daughter and wife to the effect “that they are out to do him wrong”:[20]

“I could detect nothing which would justify or appear to justify such a concern about the evidence of [the daughter]. In fact, after observing many witnesses give their evidence in many different cases, many of them involving highly emotionally charged matters, [she] presented as a very reliable witness and someone who the court should view their evidence and accept their evidence without reservation so far as her description of what she saw and what she heard.”

It is not clear if the use of “their” is intended to also extend this conclusion to the wife’s evidence; particularly as the manner in which she gave evidence was not specifically addressed by the magistrate.

[20]Decision, p 6 l 26 – p 7 l 5

The magistrate also said that it was obvious to her that the wife and daughter were genuinely afraid of the appellant, and their evidence had to be looked at in this light. Her impression was that they “may be inclined to impute to [the appellant] motives consistent with their opinions of him that he is an aggressor to be feared.”[21] As an example of this, she said it was “clear from the evidence given by the witnesses in relation to the cinema charge that [the appellant] did nothing except walk along the street and his two children, [the son and daughter], were so afraid of him that they went and hid.”[22]
[21]Decision, p 8 ll 1-10.
[22]Ibid ll 11-26.

After making these general observations, her Honour summarised the evidence of the appellant’s wife, daughter and son concerning the cinema as follows:[23]

“I find weighing up that evidence that I don’t accept [the appellant’s] evidence about that event and I find as a whole, I’m left in doubt about some evidence of [the wife] and [the daughter] as well. I don’t believe [the daughter] actually said ‘Dad is trying to get me and he’s got [her brother].’ I think [the daughter] said something about her father being in the presence and [her brother] being somewhere nearby. I don’t believe she actually said those words because I don’t think that happened.”

[23]Decision, p 9 l 53 – p 10 l 10.

She then said with reference to the daughter’s evidence about the “cinema” incident itself:

“Insofar as [the daughter’s] evidence is concerned, I am satisfied beyond reasonable doubt that [she] saw her father; commenced to turn. As she commenced to run, her father saw her and called out, ‘[her first name],’ and called out he wanted to talk to her. But I’m not satisfied [the appellant] commenced to run after her as I believe that [she] was afraid of her father. She was running herself and I’m left in doubt about her evidence that she heard her father chase after her, although I do accept her evidence that he did call out her name and call out that he wanted to talk to her.
I am also satisfied that she ran into the bank where her mother was.”[24]

[24]Decision, p 10 ll 15-42.

On the other hand, the magistrate did no accept the appellant’s evidence that he went to his solicitors and waited 20 minutes, and then came back. She found that, “Some time shortly thereafter … [his wife] came out, and found [the appellant] then, and confronted him.”[25]
[25]Ibid, ll 42-50.

As a consequence, she was:[26]

“satisfied beyond reasonable doubt that [the appellant] stayed in the vicinity after he saw his daughter walk off. I’m not prepared to find that he did that purposefully in order to stalk her but I find that he remained in the area. I find it was obvious to him that she did not want to speak as she ran off although he called out to her.”

[26]Decision, p 11 ll 1-18.

Therefore her Honour found in relation to the “cinema” incident that:[27]

“… I am satisfied the prosecution has proved the elements of that charge as I am satisfied that [the appellant] called out to [his daughter] when he saw her. I am not satisfied he was purposefully there or purposefully lying in wait for her; that he did see her and he did call out to her about wanting to talk to her.
I find that this is a contravention of the temporary order which prohibits him from contacting her directly or indirectly except through a solicitor, or in writing, or except in accordance with a Family Court order, or except when attending Court, or other places as set out in Clause 3 of the order.”

[27]Decision, p 11 ll 20-50.

I note that this finding is not based on the evidence that after the wife and daughter had walked out of the bank, he wished his daughter “Merry Christmas” or “Happy Christmas”.

The appellant’s submissions

The appellant’s submissions closely follow his grounds of appeal. The written submissions and the grounds of appeal were prepared by his former solicitor.

The grounds of the appeal against conviction are that the decision:

(a) cannot be supported having regard to the evidence; and

(b) was unreasonable.

It is argued in support that the decision was against the weight of the evidence that there was no basis for the magistrate:

(a) to reject the appellant’s evidence that he did not say to his daughter, that he wanted to talk to her; and

(b) to accept his daughter’s evidence that he said this in the face of:

(i) her rejection of his daughter’s evidence that the appellant had run after her, upon seeing her immediately after allegedly uttering those words;

(ii) the rejection of other significant parts of his daughter’s testimony;[28] and

(iii) the evidence of his son who, whilst in close proximity and who was aware of his presence, heard no such word uttered by him.

[28]This proposition was in addition to what was asserted in the Notice of Appeal in support of this ground.

The proposition that the decision was unreasonable is based on what is asserted to be the magistrate’s erroneous reasoning that the appellant remained in the area after having seen his daughter, could be relied upon to support a finding that he had said to his daughter that he wanted to talk to her in light of the following matters, which are asserted to have been accepted by the magistrate:[29]
[29]With the exception of (b), these propositions are in addition to what was asserted in the Notice of Appeal in support of this ground.

(a) the appellant was on the way to see his solicitor when he had a chance/ accidental meeting with his daughter;

(b) the appellant continued on his way from this chance meeting to see his solicitor; and

(c) after his meeting with his solicitor, the appellant was heading back to his car when he was confronted by his wife and daughter.

The respondent’s submissions

The respondent submits that the finding of guilt was reasonable having regard to the evidence.

It is emphasised that the magistrate accepted the daughter’s evidence that the appellant called out to her; and it is submitted that the appellant’s arguments which are set out in paragraph [54] are not grounds to reject her evidence that he called out to her.

It is also argued that a magistrate has the discretion to accept or reject some or all of a witness’s evidence; the finding of guilt was made as a result of the magistrate’s impartial consideration of all of the evidence given by the relevant witnesses; and she clearly considered all of the evidence before her and in some cases rejected parts thereof.

Discussion

After affording the proper respect to the decision of the magistrate and the findings that she made, and bearing in mind any advantage that she had in seeing and hearing the witnesses give their evidence, I am unable to arrive at the same conclusion upon my review and weighing of the conflicting evidence relevant to the charge.

Although the magistrate was impressed with the daughter as a witness, to the extent that the considered that she “presented as a very reliable witness and someone who the court should view [her] evidence and accept [her] evidence without reservation so far as her description of what she saw and what she heard”,[30] she did in fact have reservations about relevant parts of her evidence concerning both this charge and the charge about the “real estate agent” incident.
[30]As noted in paragraph [43], it is not clear whether the magistrate intended to extend this conclusion to the wife’s evidence.

In relation to this charge, her Honour said that she was left in doubt about some of the daughter’s evidence. Although she was satisfied beyond reasonable doubt of the undisputed facts that the daughter saw the appellant and commenced to run, and the disputed issue that he called out her name and that he wanted to talk to her, she was not satisfied of the other disputed issue that he commenced to run after her. The magistrate’s failure to be satisfied on this issue is likely to be due to her impression that the daughter “may be inclined to impute to [the appellant] motives consistent with [her] opinion of him that he is an aggressor to be feared.”

In relation to the charge concerning the “real estate agent” incident, the magistrate said:

“I don’t accept that Mr TDO physically manhandled his estranged wife out the door and slammed her arm in the door. There’s no – I’m sure if that he had done that, there would have been bruising, and I’m sure that [the wife] would’ve brought those photos of the bruising to Court. I’m not satisfied that happened.”[31]

[31]Decision, p 16 ll 22-32.

This finding was in the context of an allegation that on 10 December 2007 the appellant followed his wife into a real estate agency and in the course of behaving aggressively pushed her out of the door, in the process of which he pushed the door onto her arm.[32]
[32]T 15 l 42 – 16 l 8.

The daughter’s evidence-in-chief about this was:

“Okay. After they’d been in – in the store for this time what – what – what happened then?- - Mum tried to get out and as she came out he slammed her arm in the door.
And how do you know that?- - ‘Cause I saw it.
Okay. Can you just describe what – what you actually saw, how it happened?- - As she’s come out dad’s pushed the door closed and her arm was still there.”[33]

[33]T 84 ll 40-48; she maintained this recollection under cross-examination at T 99 ll 38-42.

However, neither the daughter nor the wife saw any damage to the arm.[34] This influenced her Honour not being satisfied of their evidence on this issue.
[34]T 48 ll 9-10 (the wife’s evidence); T 99 ll 44-45 (the daughter’s evidence).

Therefore, despite the magistrate’s advantage of seeing and hearing the daughter give evidence, I am able to review her evidence, and weigh the conflicting evidence concerning the “cinema” incident having regard to the magistrate’s lack of satisfaction about her evidence on crucial issues.

Upon reviewing her evidence, there are matters, other than those identified by the magistrate, which cause me to have reservations about her reliability in relation to the “cinema” incident.

There is conflicting evidence as to when he called her name. Her evidence-in-chief was that he called her name when they first saw each other and before she ran.[35] However, under cross‑examination she first agreed that at the point of time she ran he had not spoken to her or called her name before contradicting this in answering the next question by saying that “when he saw me he called my name.”[36]
[35]T 80 ll 40-60.
[36]See her cross-examination on this issue at para [15] above.

Her evidence that he called her name when he first saw her is contrary to her brother’s evidence that although he saw the incident until the time she ran away, he did not hear the appellant call out to her at that time.[37] The magistrate did not refer to her brother’s evidence on this issue, although his further evidence that his last view of the appellant at this point was of him walking is consistent with her finding that she was not satisfied that the appellant commenced to run after her.
[37]T 76 ll 19-28, set out at para [22] above.

Further, contrary to the evidence of her mother and brother, she was certain that after she left the Westpac bank with her mother, she did not stand on the footpath in the area where the appellant’s car was parked. This was also the appellant’s evidence.

The daughter was the only witness who gave evidence that the appellant called out to her about wanting to talk to her, on which the magistrate based her finding that he had contravened the temporary protection order on which this charge was based.

When the daughter’s evidence that the appellant called out that he wanted to talk to her is analysed, it is clear that it is an integral part of her evidence that he ran after her. This is illustrated by reference to the passages of her evidence about this, which have been highlighted in paragraphs [14] and [15].

Her evidence-in-chief was:

“I didn’t turn around but I could hear him running and he yelled out that he just wanted to talk.”

In cross-examination she said:

“… when he saw me he called my name. As I ran he ran after me and told me that he just wanted to talk.
…
I could hear him running after me, because he was yelling out to me ‘I want to talk’ and I could hear it just behind me; as I was running I could hear him running after me.”

The magistrate was not satisfied of the daughter’s evidence that the appellant ran after her. Having regard to the magistrate’s advantage of seeing and hearing the daughter give evidence, I proceed on this basis. Notwithstanding the entitlement of a finder of fact to accept only part of what a witness says while rejecting other parts of that evidence, once it is appreciated that her evidence the appellant called out that he wanted to talk to her is an integral part of this evidence, I am also unable to be satisfied beyond reasonable doubt of the daughter’s reliability on this aspect.

In my view, the impression which the magistrate was entitled to form that the daughter may be inclined to impute to the appellant motives consistent with her opinion of him that he is an aggressor to be feared is equally likely to cause the daughter to inaccurately perceive that he called out that he wanted to talk to her as to inaccurately perceive that he was running after her. Clearly the fear that she felt at that time could influence the formation of both perceptions.

I do not consider that the reliability of the daughter’s evidence is strengthened by any suggestion that the appellant may have called out to her as alleged, based on a reflex response to the surprise of seeing her, his later expression of “Merry Christmas” or “Happy Christmas” to her or the evidence of his subsequent conduct which forms the basis of the additional charges on which he was found guilty and are not the subject of this appeal.

Having regard to the evidence of the appellant’s son that he did not hear the appellant call out to his sister before she ran away and her conflicting evidence about this, I am unable to reject the appellant’s evidence that when he realised that she was amongst the people in the street he just came to a standstill with surprise and she just scampered off and ran up the alleyway. I accept in these circumstances that he did not call out her name or anything else at this stage in some reflex response to this, but, as he said, continued to walk to his solicitor’s office. There is no dispute that this office was in the vicinity. His wife accepted that the office was at the end of the street which contained the cinema complex and newsagency.[38]
[38]T 33 ll 48-53.

In circumstances in which I accept that he did not call out to her in any way when he first saw her and ran away, I do not consider that the polite gesture of wishing her Christmas greetings between 15 or 20 minutes later after he had seen her standing further up the street next to his vehicle as he walked towards it leads to a conclusion that he had called out anything to her while he was recovering from the surprise of seeing her and as she was running away from him. As indicated, the magistrate did not base her finding that he had contravened the temporary protection order on his expressing these Christmas wishes. This demonstrates the innocuousness of this remark.

To the extent that the “real estate agent” and “skate park” incidents could be regarded as relevant to an assessment of the appellant’s credibility in relation to the “cinema” incident charge, the circumstances are clearly distinguishable. The evidence concerning the “real estate agent” incident suggests that the appellant deliberately waited in his vehicle in the vicinity of the former matrimonial home, taking photographs of his wife and daughter as they drove past, following them to the real estate agency, and entering the agency with deliberation and knowledge that his wife was inside. The evidence about the “skate park” incident also suggested that he had an opportunity to spend a period of time in the vicinity of his daughter and her then boyfriend.[39] They do not have the fleeting and transitory character of the chance circumstances in which the appellant came to see his daughter in respect of the “cinema” incident.
[39]The facts of these incidents are discussed in more detail with reference to the appeal against sentence.

Applying the principle that I am entitled to accept part of the appellant’s evidence while rejecting other parts of his evidence, after a careful analysis of his evidence I accept it in relation to the “cinema” incident while agreeing with the magistrate’s factual findings in support of his guilt in relation to the two subsequent incidents.

In particular, I have come to a different view to her Honour as to the appellant’s movements after his daughter had run away. She did not accept his evidence that he then went to his solicitor’s office and waited for twenty minutes and then came back at the time he was seen by his wife. The magistrate concluded that the second event happened “some time shortly thereafter”, and said:

“I find [the wife] came out, and found [the appellant] there, and confronted him. Therefore I find I’m satisfied beyond reasonable doubt that [the appellant] stayed in the vicinity after he saw his daughter walk off.”

However, the evidence is not only that the appellant’s solicitors were on the same side of the road as the defendant was seen on the occasions that he was seen walking to and from the direction of where he had parked his motor vehicle but also his son and daughter respectively estimated that about 15 or 20 minutes had passed from the time of first seeing him to the time of walking across the road to see their mother (in the case of his son) and when their mother came back to her after the appellant had driven away (in the case of the daughter). Further, the son’s evidence was that while in the library he kept a lookout to the main shopping centre side of the road for about 10 minutes. He never saw the appellant during this time.

In these circumstances, notwithstanding her Honour’s advantage of seeing and hearing the appellant give evidence, I have come to the conclusion that the appellant did go to his solicitor’s office after he first saw his daughter and did not remain in the vicinity. There is nothing else in my review of the evidence to cause me to conclude that the appellant’s evidence was not credible and reliable concerning the “cinema” incident.

Even if I did not accept the appellant’s evidence about the incident which is the subject of this charge, as the prosecution case depends upon accepting the evidence of the daughter beyond reasonable doubt notwithstanding the sworn denial by the appellant, I do not have to believe that he was telling the truth before he is entitled to be acquitted: R v E (1995) 89 A Crim R 325 at 330; R v McBride [2008] QCA 412 at [28].

Consistently with this, the suggested direction in the Supreme and District Court Benchbook, to be given where the accused gives evidence, includes:

“(c)you may think that the defence evidence should not be accepted. However, if that is your view, be careful not to jump from that view to an automatic conclusion of guilt. If you find the defence evidence unconvincing, set it to one side, go back to the rest of the evidence, and ask yourself whether, on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.”

Jerrard JA referred to that proposed direction with approval in R v Armstrong [2006] QCA 158.[40]

[40]See also R v McBride [2008] QCA 412 at [29].

For the reasons that I have given, after carefully reviewing and weighing the conflicting evidence available for consideration on this appeal, I cannot be satisfied beyond reasonable doubt that the daughter’s evidence is reliable in relation to the event which is the subject of the “cinema” incident charge.

Conclusion

Accordingly, the appeal against conviction for the charge of contravention of a temporary protection order on 30 November 2007 is allowed, and pursuant to s 225(1) of the JA the conviction is set aside and a verdict of acquittal is entered in respect of the charge.

Appeal against sentence

Appeal principles

The appeal is brought under s 222(2)(c) of the JA which limits the appeal to manifest excessiveness or inadequacy of sentence. It was acknowledged in R v Melano; ex parte Attorney-General [1995] 2 Qd R 186 in relation to Attorney-General’s appeals under s 669A of the Criminal Code that the application of this provision is generally consistent with the established principles relating to appeals against discretion referred to in House v The King (1936) 55 CLR 499 per Dixon, Evatt, and McTiernan JJ at 504-5. Section 669A is an analogue provision to the right of a complainant aggrieved by a decision of the Magistrates Court to appeal against sentence.[41]
[41]See also on this issue the review of authorities in Rv Dullroy and Yates; ex parte Attorney-General (Qld) [2005] QCA 219. See Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250 per Dearden DCJ at [28]. I am indebted to his Honour for the review of the relevant authorities at paras [27] to [29].

It follows from House[42] that before an appellate court will interfere with the exercise of a sentencing discretion, the appellant must demonstrate that the judicial officer:

“… act[ed] upon a wrong principle … allow[ed] extraneous or irrelevant material to guide or affect him … [mistook] the facts … [or did] not take into account some material consideration.”

[42](1936) 55 CLR 499 at 504.

The principle in Melano[43] is that:
[43][1995] 2 Qd R 186 at 189 (joint judgment of Fitzgerald P, Davies JA, Lee J).

“Unless the sentencing judge had erred in principle, either because an error is discernable or demonstrated by a manifest inadequacy or excessiveness, the sentence he or she has imposed will be ‘proper’.
… Variation by this Court will not be justified in such circumstances, unless, perhaps, in exceptional circumstances; for example, to establish or alter a matter of principle or the sentencing range which is appropriate …”

The Court of Appeal also said:[44]

“Support for the view that, ordinarily, this Court should not allow an appeal under s 669A(1) unless the sentence is outside the sound exercise of a sentencing judge’s discretion is to be found in factors that are material to the exercise of the Court’s discretion.”

[44]Ibid at 190.

Accordingly, as stated by Dearden DCJ in Parry v Mayfield Holdings (Qld) Pty Ltd[45] the question is whether the sentence appealed against was “outside the sound exercise of the sentencing [court’s] discretion.”
[45][2006] QDC 250 at [29].

In R v Mladenovic, ex parte Attorney-General[46] McMurdo P said that the appellant must establish error in the exercise of the sentencing judge’s discretion (here, that the sentence is manifestly excessive) before this court can intervene and re-exercise the sentencing discretion.
[46][2006] QCA 176 at [15]; see also R v Sittczenko, ex parte Cth DPP [2005] QCA 461 per Keane J at [25] and [26].

The sentencing process

The appellant was sentenced after the prosecutor had tendered the appellant’s criminal history which contained one count of assault occasioning bodily harm whilst armed occurring on 14 April 2006 for which he had been convicted in the Beenleigh District Court on 8 August 2007. He was sentenced to a twelve-month good behaviour bond.[47]
[47]Decision, p 20 at 1-3; respondent’s Outline of Submissions at 6.11.

The appellant’s solicitor advised the magistrate that it related to strapping the daughter with a belt four times with the result that she was scratched. It was said that this was during a period when there were difficulties with her and who she was associating with. The wife was said to be present. It was said that he had reacted excessively to a dispute between the wife and daughter. There were no permanent injuries. The appellant pleaded guilty and the daughter did not have to give evidence.[48]
[48]Decision, p 24 ll 20-36.

It is clear that the magistrate appreciated that the offences of which the appellant had been convicted by her were in breach of this recognisance.[49]
[49]Decision, p 20 ll 5-40.

Her Honour then said:[50]

“Normally, someone with this limited history, I’d be asking him did he want to avail himself of probation, because it sounds like there’s a lot of problems for [the appellant] to cope with so would he be interested in probation?”

The appellant’s solicitor replied, “Yes, he would your Honour.”[51]

[50]Decision, p 20 l 50 – p 21 l 4.

[51]Decision, p 21 l 8.

Her Honour observed that she could put the appellant “on probation now, with his consent, doing my best to explain to him about it.” She also recognised that it involves “a level of supervision” and he is a “mature person”.[52]
[52]Decision, p 21 l 44 – p 22 l 1.

She then invited argument about the recording of a conviction. In the course of the dialogue which followed she said, “But I would’ve thought if the probation order was made for 18 months, then that might make sure he doesn’t break the law again during that period.”[53]
[53]Decision, p 22 ll 30-35.

The appellant’s solicitor then made submissions on penalty, during which he outlined the circumstances of the previous conviction to which reference has been made.

With reference to the appellant’s work history it was said that he had been a security officer for 14 years; and had previously been a prison duty chaplain and had run a series of halfway houses with his wife.[54] Her Honour was told that as he would like to return to work as a security officer, and a recorded conviction would be a problem.[55]
[54]Decision, p 24 ll 1-19.
[55]Decision, p 24 ll 1-19.

He was said to have been a good provider for his family.[56]
[56]Ibid, ll 14-16.

It was submitted that the offences fell within a short space of time when he was lingering in the area where the offences occurred because he had nowhere else to go, but he had since relocated, found accommodation and was taking matters through the appropriate channel of the Family Court.[57] Reference was made to there being no further incidents or charges.
[57]Ibid, ll 38-48. The appellant’s evidence at T 110 ll 36-39 was that in November 2007 he had been living in a car.

Her Honour was told that he had been unemployed since the separation and his security providers licence had been suspended. It was said that he was currently suffering from health problems.[58]

[58]Decision, p 25 ll 1-35.

Magistrate’s sentencing decision

Her Honour commenced by saying:[59]

“I hope you can behave in a way that doesn’t upset people in the future, and your family, no matter what stressful experience you’re having. I hope you can sort out your problems in the Family Court so that everything’s resolved. You’ll need to sort out quite a few things, it seems.”

[59]Ibid, ll 38-50.

She then exercised her sentencing discretion “not to record a conviction, and place [the appellant] on probation for 18 months.”[60] She then explained the conditions of the order to him.
[60]Decision, p 26 ll 10-15; in conjunction with this she made a protection order against him for two years. (This is the subject of the third ground of appeal.)

In making the order her Honour did not ask the appellant whether he consented to the probation order being in the terms ordered.

The appellant’s submissions

The appellant’s submissions again closely follow his grounds of appeal which are that the sentence is manifestly excessive when regard is had to:

“(a) [his] age;
(b)[his] employment history and involvement in significant charitable works such as 5 years service as a prison chaplain and approximately 5 years running half way houses for released prisoners and drug addicts;
(c)that [he has] no previous criminal convictions;
(d)the learned magistrate, having heard no evidence from any witness on the point, was not in a position to make an informed judgment as to the issues relating to our family breakdown and/or why, as the learned magistrate found, the children and [his] wife might be afraid of me. The learned magistrate clearly thought whatever these issues were they must have been [his] fault hence the 18 month probation sentence.”

The respondent’s submissions

The respondent submitted that the sentence was not manifestly excessive because:

(a) The maximum penalty for this offence is 40 penalty units ($3000) or imprisonment for a year;

(b) The appellant has demonstrated a persistent pattern of offending for a mature man;

(c) The appellant could not claim the benefit of an early plea following a trial in which his daughter and son gave evidence;

(d) The appellant had a previous conviction for violence;

(e) The offences contravened a recognisance order (his daughter was the complainant in each case);

(f) The appellant’s employment history, age and minor criminal history were taken into account in not recording a conviction;

(g) The appellant’s age and minor criminal history were also taken into account in ordering probation;

(h) The appellant through his legal representative advised that he would be interested in probation;

(i) Her Honour observed in the course of her decision that the appellant, “is a mature man, and I would’ve hoped he could have maintained an appropriate amount of decorum in the circumstances, instead of behaving like that”;[61]
[61]Decision, p 19 ll 1-5. This was in the context of her findings of fact in relation to the charge arising from the “skate park” incident.

(j) Under the Penalties and Sentences Act 1992 (the PSA) probation is considered appropriate to allow offenders to attend counselling or other programs as directed;

(k) Probation is also appropriate for offenders with minimal or no history who also require supervision within the community to ensure they do not re-offend or to address any issues which the court is of the opinion need to be addressed;

(l) When her Honour stated she was considering 18 months probation as the appropriate sentence, the appellant’s solicitor did not make submissions regarding the proposed penalty in respect of either the nature or the length of the order; and

(m) The events giving rise to the breakdown of the marriage were not relevant to the sentence imposed.

Discussion

The respondent’s submissions were made on the assumption that I would dismiss the appeal against conviction on the charge for contravention of the temporary protection order on 30 November 2007 in relation to the “cinema” incident. However, having allowed that appeal and entered a verdict of acquittal, it follows that there was a discernable error by the magistrate in sentencing the appellant on the basis that he had committed three offences, when he had only committed two offences. Therefore, in terms of House, the magistrate allowed extraneous or irrelevant material to guide her.

In addition, the magistrate erred in principle by not asking the appellant whether he consented to a probation order being made in the terms ordered.

Section 96 of the PSA provides that:

“The court may make … the probation order only if the offender agrees to the order being made … and also agrees to comply with the order as made.”

In R v Marsden [2003] QCA 473 Mackenzie J (with whom McPherson JA and Wilson J agreed) noted at p 5 that the provisions of the PSA relating to probation “contemplate not only consent to the general proposition that probation … should be imposed but also to consenting that he perform it in the terms ordered.” These terms include the duration of the order.

In this case, even if it is assumed that asking the appellant’s solicitor whether the appellant would be interested in probation and receiving a positive response, amounted to consent to the general proposition that probation should be imposed,[62] I do not consider that the appellant’s consent was obtained, through his solicitor or personally, to performing probation on the terms ordered.
[62]The appellant’s oral submission was that he did not believe that he had given final instructions to his solicitor that he would be interested in probation.

Although her Honour said to the prosecutor, “But I would’ve thought if the probation order was made for 18 months, then that might make sure he doesn’t break the law again during that period”, this was in the context of seeking submissions about recording a conviction and discussion about making a two year protection order. The solicitor’s subsequent submission can be seen as directed to the issue of whether a conviction was to be recorded in circumstances where he concluded that “a conviction would be something that would be a blight on his record and create difficulties for his particular industry.”[63]
[63]Decision, p 24 ll 54-58. This was a reference to the security industry.

Following these submissions, the magistrate asked some questions about the appellant’s current state of employment and there was a discussion about his health. Her Honour then proceeded to sentence him. In doing so, she informed him that he was placed on probation for 18 months and then informed him of the terms. She concluded by making the two year protection order. At no time did she ask the appellant or his solicitor as to whether he consented to the duration or the other terms of the order. This was despite her Honour previously recognising that his consent was required in order for him to be placed on probation.

Therefore the appellant’s consent was not expressly obtained to the terms of the order; and I do not consider that such consent can be implied in the circumstances that the duration and other terms of the order were stated by the magistrate. In particular, I do not consider that this can be implied from the appellant’s solicitor only making submissions regarding the recording of a conviction after her Honour had expressed her view as to the appropriate penalty and length of probation, when those submissions were made in the context of his being asked whether he wished to make submissions about recording a conviction.

For these reasons this court is entitled to intervene and re-exercise the sentencing discretion having regard to s 225(3) of the JA.

In doing this I proceed on the basis of the factual findings of the magistrate as identified in her decision. Notwithstanding my disagreement with her factual findings in relation to the chance encounter involved in the “cinema” incident, upon a review of the evidence and weighing the conflicting evidence in accordance with the principle stated in paragraph [11], I have come to the same conclusions as her Honour concerning the factual basis of the “real estate agent” and “skate park” incidents, despite the evidence of the appellant to the contrary.

The protection order having been made on 4 December 2007, the “real estate agent” and “skate park” incidents occurred on 10 December 2007 and 23 January 2008 respectively.

With reference to the “real estate agent” incident, the magistrate found that on 10 December 2007 the wife moved out of the previous family home. She and the daughter had finished cleaning up the house and were intending to take the keys to the real estate agent and go to their new home. As she drove out of the cul-de-sac in which their former home was situated, they saw the appellant in his car, holding out his phone as if to use the camera device as they drove past.[64]
[64]Decision, p 11 l 54 – p 12 l 20. The wife’s evidence about this on the first day of the hearing at T 39 l 57 – T 40 l 13 was that the appellant was parked on the T‑intersection as they came out of the end of the cul-de-sac, and they had to go past his car to turn in either direction. This was within 100 metres from their house and was the only way out of the cul-de-sac. She drew Exhibit 3 to illustrate this. At T 39 ll 54-55 she said that, “He had his phone out the window and he was hanging out the window taking photos of us as we drove by.” The daughter’s evidence on this date at T 82 ll 10-13 was, “As we drove out of our street I saw my dad’s car at the end of the street and as we drove past him he had his mobile phone out of the window taking pictures of us” and at T 83 l 10 she said that “he had his mobile phone out and it was pointing towards the car”.

Like the magistrate, I reject the appellant’s version that he was simply sitting at this place in his car innocently making a phone call to the real estate agent when his wife and daughter drove past. I also accept that he took photos of them as they drove past.[65]
[65]Decision, p 16 l 57 – p 17 l 10.

As the magistrate found, the wife and daughter were concerned about this and proceeded to the real estate agency. The wife went into the agency. The appellant also went inside the agency while she was there.[66]
[66]Decision, p 12 ll 20-40.

The magistrate rejected the appellant’s version that it was just a coincidence that they both ended up at the real estate agency. This was because the daughter kept him under visual observation all the way to the agency.[67] In relation to this, the daughter’s evidence was that she looked in the side mirror and saw his vehicle following them at a distance of two car lengths until they arrived there.[68] I also accept this evidence.
[67]Decision, p 12 ll 13-20.
[68]T 83 ll 17-32.

The wife’s evidence was:[69]

“… he was following us and we were panicking. We didn’t want to go to our premises because we didn’t want to disclose that information to him.” (my emphasis)

[69]T 15 ll 2-4.

As the magistrate also found, when the wife went into the real estate agency the daughter ran behind the office. The daughter later asked an adult to accompany her back towards the agency.[70]
[70]Decision, p 12 ll 28-34; see also the daughter’s evidence at T 84 ll 9-14.

Her Honour then found beyond reasonable doubt that the appellant entered the premises at about the same time as the wife and was screaming and yelling about the keys and his bond money.[71] The wife’s evidence about this was:[72]

“… he just came in aggressively and started carrying on about keys and money and just screaming and yelling and there was only 1 person in the real estate at the time and he was an elderly gentleman. [The appellant] was standing over him and being aggressive. I told him to ring … the police straight away … it’s only a very small shop. To get to the … door to go back outside I’ve got to walk outside I’ve got to walk closer to him … things just sort of escalated from there. He’s yelling and screaming and carrying on and the old guy’s getting upset, I’m upset, I don’t know what he’s going to do, if he’s going to go off at me.” (my emphasis)

[71]Decision, p 12 ll 35-40; p 16 ll 40-48.

[72]T 15 ll 46-60.

I agree with the magistrate that this was a concerning act tantamount to stalking.[73] Although the appellant was not charged with stalking and cannot be sentenced on the basis of the more severe maximum penalty for that offence,[74] the conduct he engaged in on this occasion involved intentionally following his wife and daughter causing detriment, reasonably arising in all the circumstances to them as required by s 359A of the Criminal Code (Qld). In this regard I refer to the daughter’s evidence that she ran behind the agency and requested an adult to accompany her back towards the agency rather than face her father alone; and the wife’s evidence that she was panicking and upset. The wife also gave evidence that she found his conduct outside the door before entering the agency as “intimidating” and worrying even though she thought the door was locked.[75] She summed up her feelings by saying that her injury on this occasion was more of “fear, intimidation and being trapped”.[76]
[73]Decision, p 17 ll 20-21.
[74]The maximum penalty for stalking in the circumstances existing in this case would be five year’s imprisonment by virtue of s 359E(2) of the Criminal Code (Qld) whereas the maximum penalty under s 80(1) of the Protection Act is 40 penalty units ($3000) or one year’s imprisonment.
[75]T 15 ll 27-35.
[76]T 39 ll 37-38.

With reference to the “skate park” incident, as I have indicated, although the appellant concedes that there was enough evidence on which to convict him, he disputes the factual basis of her Honour’s decision.

Where an allegation of fact is not admitted or challenged, a sentencing judge or magistrate may act on the allegation if satisfied on the balance of probabilities that it is true[77] subject to the degree of satisfaction required being commensurate to the gravity of fact to be proved and its potential effect on the person being sentenced.[78] In this case, as I have stated, I have come to the same conclusion as her Honour as to the factual basis of the “skate park” incident despite the appellant’s evidence to the contrary. I have come to this conclusion beyond reasonable doubt. Therefore even if the issues raised by the appellant were now to be regarded as involving challenges to allegations of fact during a sentencing procedure, I am entitled to act on those allegations.
[77]Evidence Act 1977 (Qld) s 132C(3).
[78]Ibid, s 132C(4).

The magistrate accepted the evidence of the daughter and her then boyfriend about the “skate park” incident which she summarised in her decision as follows:[79]
[79]Decision, p 17 l 49 – p 19 l 22.

“It appears that [the daughter] and [her boyfriend] were in his car smoking. They gave evidence that [the appellant] came and parked them in, observed the vehicle, and [the boyfriend] said he appeared to write down the number plate. And then, as they saw him [the daughter] said, “Holy shit, that’s my father. That’s my dad.” [The appellant] got out of the car and was asking [the boyfriend] what he was doing there with his daughter. He repeated that several times, or twice. And then he told them to wind down the windows.
[The boyfriend] says [the appellant] was banging on his window on his side and that [the appellant] said, ‘Do you want to get out of the car and settle this like a man?’ [The daughter] said [the appellant] said, ‘Hop out of the car and fight me like a real man.’
[The boyfriend] was using the words ‘cunt’ and ‘fuck’ while he was yelling out at the scene. They both say [the appellant] banged on the sides of the car windows.
…
My observations of [the daughter] and [the boyfriend] were that they were both in fear of [the appellant].
…
I find that what happened at the skate park was not something minor or transient. It went on for a sustained time. It involved swearing and aggressive behaviour including punching the windows, and saying ‘Come out of the car and fight’.”

The magistrate’s reference to smoking in the car was consistent with the defendant’s evidence that his daughter had a cigarette in her hand.[80] The boyfriend agreed with a suggestion by the appellant’s solicitor that the appellant could see smoke in the car.[81] The daughter’s evidence was that they were smoking when they arrived at the skate park.[82]
[80]T 12 ll 52-54.
[81]T 61 ll 35-40.
[82]T 103 ll 5-17.

The daughter and the boyfriend both gave evidence that the appellant parked them in by parking directly behind their car so that it could not be reversed out.[83] They contradicted the appellant’s evidence that he parked beside them.[84]
[83]T 55 ll 10-23 (the boyfriend); T 85 ll 11-12 (the daughter).
[84]T 58 ll 50-53 (the boyfriend); T 103 ll 23-25.

The boyfriend’s evidence was that they had just got out of the car after arriving at the car park, when the daughter said, “Holy shit, is that dad?”[85] These are similar words to those referred to by the magistrate. They ran to the car, locked the doors and wound up the windows.[86]
[85]T 54 ll 18-25; T 55 ll 10-15.
[86]T 54 ll 26-33 (the boyfriend); T 85 ll 8-11 (the daughter).

It was the appellant who gave evidence that he asked what the boyfriend was doing there with the daughter.[87]
[87]T 125 ll 23-24; T 126 ll 27-29.

It was the boyfriend who gave evidence that the defendant told them to wind down the windows and was banging on the driver’s side window. The boyfriend’s evidence was:[88]
[88]T 54 ll 33-41.

“He came up to the window on my side and … started banging on the window with his fist saying, ‘Wind the window down, wind the window down.’ I said, ‘No, I’m not winding it down.’ He said, ‘Wind the fucking window down.’ … I said ‘I’ll wind it down as long as you don’t do anything.’ He said, ‘I’m not going to do anything.” I wound it down maybe an inch, 2 inches.”

The daughter also said:[89]

“When he was [boyfriend’s] side … he did punch the window about 2 times. He punched the window. I called the police. He told me if I hang up on the police that he would go away so I hung up on them.”

[89]T 85 ll 36-40.

As the magistrate said, it was the boyfriend who gave evidence that:[90]

“He had his window – fingers inside the window pushing down on the window and he’s a big boy, he could easily break that window. He said, ‘Do you want to get out of the car and settle this like a man like you should?’ I said, ‘No way.’”

[90]T 54 ll 52-56.

As her Honour also said, the daughter’s evidence was that the appellant asked the boyfriend if he could “hop out of the car” and face up to him;[91] and to stand up to him “like a real man”.[92] This was in the context of her saying that the appellant wanted to fight the boyfriend.[93]
[91]T 85 l 25.
[92]T 85 l 30.
[93]T 85 l 28.

I have set out at paragraph [138] a passage of the boyfriend’s evidence about the language that the magistrate found that the appellant was using.[94] The daughter confirmed this.[95]
[94]Also see his evidence about this in cross-examination at T 59 ll 27-32.
[95]T 105 ll 35-42.

The daughter also gave evidence that the appellant started punching the window on her side. It was at this stage that she picked up the phone again to call the police. She said that it was when she started to get through, that he went back to his car, reversed it, and left the area.[96]
[96]T 85 ll 42-46.

The magistrate’s observation that the daughter and the boyfriend were each in fear of the appellant is consistent with the evidence about their locking themselves in the car and her calling the police. The boyfriend also described the daughter as screaming, crying[97] and as being in hysterics.[98] He also admitted that he was shaking.[99]
[97]T 54 l 45.
[98]T 55 l 6.
[99]T 54 l 52.

The appellant’s concession that there was enough evidence to convict him was on the basis of his evidence that having come upon them by chance in the skate park he called to his daughter by her name and said:[100]

“… what are you doing there? … why aren’t you at home? Why aren’t you at home looking after your brothers and sisters? … go home to your mum.”

He also told her that he loved her.[101]

[100]T 126 ll 31-34.

[101]T 126 ll 47-48.

The daughter and the boyfriend agreed he said words to this effect.[102]
[102]T 104 ll 24-28 (the daughter); T 54 ll 42-44 (the boyfriend).

Although I accept that this was a chance meeting, as I have stated I have come to the same conclusion as her Honour as to the factual basis of the “skate park” incident despite the appellant’s evidence that he did not park behind their vehicle, get out of his vehicle, or otherwise do and say the things which they allege.

Further, like the magistrate I have concluded that what happened at the skate park was not something which was minor or transient. The boyfriend denied that the incident concluded in less than 5 minutes and ultimately said that it was probably about 15 minutes.[103]
[103]T 63 ll 1-6.

I have concluded that it was a chance meeting because the skate park was in a bushland area and because of the trees the appellant may not have been able to see who was in the car park until he was in front of the entrance.[104]
[104]T 60 ll 30-60.

The daughter gave evidence, as the magistrate found, that the appellant wrote down the registration number of their car.[105] This may support the proposition that the appellant probably did not know the boyfriend’s motor vehicle registration number before he entered the skate park.[106] However, it does not follow that because he may have been unfamiliar with the vehicle, he did not park behind it. As the boyfriend said, his daughter was outside the car when he arrived, and could have been spotted by him.[107]
[105]T 105 ll 41-42.
[106]T 57 ll 53-54.
[107]T 61 ll 1-6.

It is as a result of this analysis that I re-exercise the sentencing discretion on the basis of these factual findings by the magistrate.

The appellant was 37 years of age at the time of the offending (and 38 years of age at the time of sentencing).[108] His age does not render a probation order outside the sound exercise of the sentencing discretion in appropriate circumstances where supervision within the community is required to address the underlying issue of the offending with a view to ensuring that he does not re-offend. Probation orders are not limited to young offenders with some significant impairment such as drug or alcohol addiction, as asserted by the appellant.
[108]His date of birth as recorded on the bench charge sheets is 24 October 1960. He is still 38 years.

There were serious aspects to his offending. The circumstances of aggravation were:

(a) He had been convicted only four months before the first offence of an offence of violence against the daughter;

(b) Both offences were committed in breach of the good behaviour bond that was imposed for the earlier offence;

(c) Both offences were committed in circumstances which caused the daughter to be fearful of him.

(d) The first offence was committed only 6 days after the protection order was issued and served upon him.[109]
[109]The Oath of Service on Exhibit 2 states that a copy of the protection order issued on 4 December 2007 was personally delivered to him on the same date.

(e) The first offence was particularly serious because it involved him deliberately waiting in his vehicle in the vicinity of the former matrimonial home, taking photographs of his wife and daughter as they drove past, and following them to the real estate agency. It was tantamount to stalking. It caused the wife a feeling of “fear, intimidation and being trapped”.

(f) The second offence was not minor or transient. It went on for a sustained period. It caused fear to the daughter and her boyfriend.

(g) The offences involved intimidation and therefore domestic violence.[110]

(h) The appellant has shown no remorse for his actions; and

(i) The appellant has shown no insight into the serious affect of his offending on his wife, daughter and others. For example, he committed the first offence, although it should have been obvious to him as a result of the “cinema” incident, that by running away from him, his daughter demonstrated her fear of him.

[110]See paragraphs [179] to [184].

In sentencing for offences of this nature, the principle to be applied is that stated by McPherson JA and Ambrose J (with whose conclusions, Pincus JA agreed) in R v Wood [1994] QCA 297 at p 5 as follows:

“Domestic violence orders imposing restraints of the kind involved here are practically speaking the only available means of curbing in advance conduct in the domestic context that is violent or likely to lead to violence. Unless breaches of such orders are, and are well known to be, visited with appropriate severity, they will quickly lose their value in the minds both of those who obtain them and of those who are subject to them. Apart from orders of that kind, the ordinary criminal law, operating as it does only after the event, arrives too late to be an effective deterrent. The wrongdoer is liable to prosecution and punishment, but only after the injury has, sometimes with fatal consequences, already been inflicted.” (my emphasis)

Applying this principle to the serious circumstances of the appellant’s offending, I consider that the making of a probation order is an appropriate penalty in this case. Such an order would impose significant restrictions upon the appellant and provide the necessary supervision to assist in his rehabilitation.

It is not necessary to hear evidence as to the events and behaviour giving rise to the marriage breakdown and the estrangement of the appellant from his children. The issue of who was at fault for the breakdown is irrelevant in circumstances in which the appellant’s offending was serious and showed a lack of insight as to its consequences. Having regard to the obsessiveness of his offending behaviour, I agree with her Honour that there are a lot of problems for him to cope with.[111] In these circumstances, he would benefit form probation.
[111]Decision, p 21 l 1.

I agree with the respondent’s submissions that matters such as the appellant’s age, his employment history, his contribution to the community, and the fact that he had offended on only one previous occasion can properly be taken into account in exercising the court’s discretion not to record a conviction. This can also be taken into account in determining the duration of the probation order. Other factors that are relevant in this regard are that:

(a) No physical violence was involved in these offences;

(b) As the magistrate recognised, the offending occurred in the context of a very difficult break-up of a large family and a long-standing marriage;[112]
[112]Decision, p 4 ll 19-30.

(c) All of his offending relates to his family;

(d) He had not repeated this offending behaviour in the approximate nine month period between the second offence and the magistrate’s decision; and

(e) He has not repeated the offending in the approximate nine-month period between that decision and the determination of this appeal, which suggests that he has undergone rehabilitation during this period.

Having regard to the observations of Thomas and White JJ in R v Briese (1997) 92 A Crim R 75 at 77 that before the court decides that a sentence is appropriate it needs to look at the combined effect of the sentencing options being considered and the circumstance as to whether or not a conviction is recorded, I consider that the appropriate exercise of the sentencing discretion would be a probation order without recording a conviction.

However, I consider a probation order of 12 months would be appropriate in the circumstances of the present case where no violence was involved and, except for one previous conviction involving the daughter, the appellant has been of good character and a good contributor to the community. An order of this duration would be sufficient to reflect the serious aspects of the offending, and to ensure that protection orders do not lose their value in the minds of those who obtain them and those who are subject to them. To this extent, I depart from the approach of the magistrate that a probation order of 18 months was the appropriate sentence.

Having come to this conclusion, I am also conscious that by virtue of this appeal against sentence, the appellant has demonstrated that he does not consent to a probation order being made because he does not consider that it is appropriate to a person of his age and circumstances. In these circumstances, there seems little value in setting aside the 18-month probation order and making a 12-month probation order.

At the date of delivery of this judgment the appellant will have been subject to the probation order made by the magistrate for 9½ months. In these circumstances I do not consider that a substantial fine which I may otherwise have considered imposing is an appropriate sentence in lieu of a probation order.[113]
[113]The appellant’s oral submission was that a fine would be the appropriate penalty.

Accordingly I have come to the conclusion that in these unusual circumstances, the appropriate order is to set aside the probation order and instead release the appellant under s 31 of the PSA by entering into a recognisance in respect of each offence for approximately the balance of the period which would remain if I was to make a 12 month probation order i.e. a period of approximately three months. This will ensure that for this period the appellant remains subject to an incentive not to break the law and to continue his rehabilitation.

This order is made notwithstanding that the appellant was in breach of a similar order by committing these offences. It is not to be considered a precedent as to the appropriate sentence to be imposed in future cases.

Conclusion

Accordingly the appeal is allowed; the sentence imposed at first instance is set aside; instead, a conviction is not recorded in relation to either charge of contravention of a protection order on 10 December 2007 and 23 January 2008 respectively, and in respect of each charge the appellant is released under s 31 of the PSA by entering into a recognisance in the sum of $500, conditional that he keep the peace and be of good behaviour for a period of three months.

Appeal against protection order

Appeal principles

Although the appeal from the order of the magistrate under s 30(1) of the Protection Act imposing a protection order against the appellant for a period of two years in respect of his wife and daughter purports to be brought pursuant to s 222 of the JA, it is actually an appeal which lies to this court under s 63 of the Protection Act because it is an appeal from a magistrate’s decision to make a domestic violence order.[114]
[114]Protection Act, s 63(1)(b). This is emphasised by s 63(2) by virtue of which an appeal against a decision of the Childrens Court constituted by a District Court judge, the District Court or the Supreme Court under s 30 may appeal the decision to the Court of Appeal.

By s 65 the appeal is “by way of rehearing on the record and the rules of court applying to the District Court, or insofar as those rules cannot be applied to such appeals, in accordance with directions given by a District Court judge.”

No point has been taken by the respondent about this. As the result of this appeal will not be affected by the legislation under which it is brought, I proceed to consider the issue which is raised by this ground of appeal.

The magistrate’s decision

In the course of receiving submissions on sentence the magistrate asked the appellant’s solicitor whether the protection order of 4 December 2007 was still in place. He replied that it had been withdrawn by the wife who had subsequently filed another protection order application. He said that this application was pending, with the result that there was no protection order in place at that time.[115]
[115]Decision, p 22 ll 48-60.

The magistrate responded that upon her convicting the appellant of the three offences, she intended to make a protection order for two years to protect the wife, daughter, and son.[116]
[116]Decision, p 23 ll 1-8.

The appellant’s solicitor replied that he did not think that he could argue against this except in the case of the son in respect of whom he submitted, “it’s not safe to conclude that there’s been domestic violence, or likely to be further domestic violence between the father and the son.”[117]
[117]Decision, p 23 ll 24-43.

The magistrate then requested to hear the balance of the submissions on penalty on the appellant’s behalf. After hearing these, without seeking further submission about the making of a protection order, she delivered her decision that:[118]

“I’ve decided in the circumstances that the appropriate exercise in a sentencing discretion is not to record a conviction, and place you on probation for 18 months, and to make a Domestic Violence Order for two years.
…
I make a Domestic Violence Order just to protect [the wife] and [the daughter] for two years with the same conditions as on the previous order.”

[118]Decision, p 26 l 7 – p 27 l 6.

The appellant’s submissions

The appellant’s ground of appeal and supporting submission is that s 30 of the Protection Act only empowers a court to make a protection order against a person if that person pleads guilty or is found guilty of an offence that involves domestic violence; and none of the three charges of which the appellant was found guilty involved domestic violence as that term is defined in the Protection Act. It is therefore submitted that the magistrate’s decision to invoke s 30 was made without lawful authority.

The respondent’s submissions

The respondent submits that it was appropriate to impose a new two year protection order in the circumstances. It is argued that the facts of the charges fall within the definition of “domestic violence” under s 11 of the Protection Act; and the magistrate was in the advantageous position of being able to hear detailed evidence from the aggrieved[119] and some of the named persons[120] in the earlier protection orders against the appellant in order to form her conclusions as to the appropriateness of a further protection order and the suitable length of any such order. In oral argument, the respondent referred me to Bottom v Rogers [2006] QDC 080.
[119]The wife.
[120]The daughter and the son.

Discussion

Section 30(1) of the Protection Act provides:

“A court before which a person … is found guilty of an offence which involves domestic violence may, on its own initiative, make a domestic violence order against an offender, if the court is satisfied that a protection order could be made under section 20 against the offender as the respondent.”

The appellant’s argument is limited to the proposition that none of the charges on which he was found guilty “involves domestic violence”. It is not suggested that if the charges involve domestic violence, that there is any other absence of lawful authority to make the protection order. For example, it is not argued that in these circumstances the court cannot be satisfied that a protection order could be made under s 20 against the appellant.

Accordingly I limit my consideration to the issue of whether the offences in respect of the “real estate agent” incident and the “skate park” incident on which the appellant’s conviction stands involve domestic violence.

The term “domestic violence” is defined in s 11(1) of the Protection Act as follows:

“Domestic violence is one of the following acts that a person commits against another person if a domestic relationship exists between the two persons—
…
(c)intimidation … ”

There is no doubt that in the present case that a domestic relationship existed at the relevant time between the appellant and his wife and daughter. Under s 11A(1) a domestic relationship includes a spousal relationship and a family relationship. A spousal relationship exists between spouses, including former spouses and either one of the biological parents of a child.[121] A family relationship exists between two persons if one of them is the relative of the other, in the sense of someone who is ordinarily understood to be or to have been connected to the person by blood or marriage.[122]
[121]Protection Act, s 12(1) and (2).
[122]Protection Act, s 12B(1) and (2). The example given includes a person’s child.

Therefore the issue is whether that appellant committed acts of intimidation against his wife and/or daughter in respect of the “real estate agent” and “skate park” incidents.

In Bottoms v Rogers McGill DCJ said at [18]:

“Intimidation refers to a process where the person is made fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour.”

I understand this to mean that the person who is alleged to have engaged in the intimidation must have done so for the purposes of influencing the other person’s behaviour. This is consistent with the examples of intimidation (and harassment) for the purposes of s 11(1)(c), all of which involve an element of deliberateness.[123] It is also consistent with Dowse v Gorringe [2004] QDC 477.
[123]The first example is “following an estranged spouse when the spouse is out in public, either by car or on foot.”

In Bottoms v Rogers at [18] his Honour also said:

“There can, I think, be a single incident of conduct which amounts to intimidation, but as I have explained elsewhere, I do not think that something which does not in fact intimidate could amount to intimidation (this is footnoted to Dowse v Gorringe at [31], [32]).”

Accordingly, when intimidation is alleged, regard must be had to the subjective state of mind of the person alleged to have been intimidated.

Proceeding on the basis of the factual findings which I have made in relation to the “real estate agent” and the “skate park” incidents for the purpose of the sentence appeal, I consider these offences involve intimidation in each case.

As I have found, the “real estate agent” incident offence which was tantamount to stalking, involved the appellant waiting in his vehicle in the vicinity of the former matrimonial home, taking photographs of his wife and daughter as they drove past, and following them to the real estate agency. The wife’s evidence was that she and her daughter were panicking because he was following them. She said that she was upset when the appellant came into the agency and was acting aggressively. She also found his conduct intimidating when he was outside the agency. She summed up her feelings by saying that her injury on this occasion was more of “fear, intimidation and being trapped”. The daughter’s fear is demonstrated by her reaction on getting out of the vehicle on arriving at the agency. This was to run behind the agency and request an adult to accompany her back to it rather than face her father alone. The wife described her as panicking and upset.

This is clearly an act of intimidation towards them. It is within the example of intimidation for the purposes of s 11(1)(c). In accordance with Bottoms v Rogers, the wife and daughter were made fearful and overawed. It was an act which did in fact intimidate. I consider that the appellant did this with a view to influencing their conduct or behaviour in a situation in which he was having difficulty in accepting the breakdown of the matrimonial relationship and the fact that protection orders had been made against him. There is no other reasonable hypothesis open in circumstances where the appellant waited for them, photographed them, and followed them in his vehicle.

As I have found, the “skate park” incident offence was not minor or transient. It went on for a sustained period. It caused fear to the daughter. She and her boyfriend locked themselves in their car when they saw the appellant. She called the police. The boyfriend described the daughter as screaming, crying and being in hysterics.

Again the daughter was made fearful and overawed. Therefore it was an act which did intimidate. I consider that the appellant’s actions for probably about 15 minutes during which he was banging on the windows of the car were done with a view to influencing her conduct or behaviour. I consider that there is no reasonable hypothesis open in circumstances where these actions were accompanied by what he said to her as set out at paragraph [141] which included him telling her to go home to her mother. In addition, he parked their vehicle in during this period.

Accordingly, I consider that the appellant committed acts of intimidation against his wife and daughter in respect of each of these incidents. These were acts of domestic violence as defined in s 11(1)(c) of the Protection Act. As such, the appellant’s conviction on these charges involved him being found guilty of offences involving domestic violence for the purposes of s 30(1) of the Protection Act.

Therefore, based on my review of the evidence before the magistrate, there was lawful authority to make the protection order. On this basis, it is an order that I would make.

Conclusion

I dismiss the appeal against the order of the magistrate imposing a protection order against the appellant.

Costs

I will hear the parties in respect of the costs of the appeal.

CITATION:	TDO v Sperling [2009] QDC 280
PARTIES:	TDO (Appellant) AND CONSTABLE D. SPERLING (Respondent)
FILE NO/S:	D 3208/08
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Cleveland Magistrates Court
DELIVERED ON:	14 August 2009
DELIVERED AT:	Brisbane
HEARING DATE:	13 July 2009
JUDGE:	Irwin DCJ
ORDER:	1. Appeal allowed against conviction on the charge for contravention of a temporary protection order on 30 November 2007, the conviction is set aside and verdict of acquittal entered. 2.(a) Appeal allowed against sentence on the charges for contravention of protection orders on 10 December 2007 and 23 January 2008. (b) The sentence imposed at first instance is set aside and instead the following orders are made in respect of each charge: (i) a conviction is not recorded; (ii) the appellant is released under s 31 of the Penalties and Sentences Act 1992 by entering into a recognisance in the sum of $500, conditioned that he keep the peace and be of good behaviour for a period of 3 months. 3. Appeal dismissed against the imposition of a protection order against the appellant on 31 October 2008.
CATCHWORDS:	CRIMINAL LAW – Appeal Against Conviction – appeal against decision of a magistrate – where appellant convicted after trial on a count of contravening a temporary protection order – where appeal proceeded on the evidence given in the Magistrates Court – where upon a review of the evidence, affording respect to the decision of the magistrate and the magistrate’s advantage in seeing and hearing the witnesses, appellate court unable to arrive at the same conclusion CRIMINAL LAW – Appeal Against Sentence – where appellant convicted after trial on one count of contravening a temporary protection order and on two counts of contravening a protection order – where sentence was 18 months probation – where no conviction recorded – where appeal allowed against conviction on the count of contravening a temporary protection order – where magistrate did not obtain the appellant’s consent to performing probation for the duration and other terms ordered – where in these circumstances the appellate court entitled to re-exercise the sentencing discretion – appropriate sentence in circumstances where the appellant does not consent to a probation order being made DOMESTIC VIOLENCE – Power of court before which a person is found guilty of an offence that involves domestic violence to make a protection order – where appellant convicted on two counts of contravening a protection order – whether convicted of an offence involving domestic violence Domestic and Family Violence Protection Act 1989, s 11(1), s 11A(1), s 12(1), s 12B(1), s 12B(2), s 30(1), s 63, s 65, s 80(1) Evidence Act 1977, s 132C(3), s 132C(4) Justices Act 1886, s 222, s 223(1), s 223(2), s 225(3) Penalties and Sentences Act 1992, s 31, s 96 Bottoms v Rogers [2006] QDC 080, applied Dowse v Gorringe [2004] QDC 477, cited Fox v Percy (2003) 214 CLR 118, applied House v The King (1936) 55 CLR 499, applied Mbuzi v Torcetti [2008] QCA 231, applied Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited R v Armstrong [2006] QCA 158, cited R v Briese (1997) 2 A Crim R 75, cited R v Dullroy and Yates; ex parte Attorney-General (Qld) [2005] QCA 219, cited R v E (1995) 89 A Crim R 325, applied R v McBride [2008] QCA 412, applied R v Marsden [2003] QCA 473, applied R v Melano; ex parte Attorney-General (1995) 2 Qd R 186, applied R v Mladenovic, ex parte Attorney-General [2006] QCA 176, cited R v Sittczenko, ex parte Cth DPP [2005] QCA 461, cited R v Wood [1994] QCA 297, applied Rowe v Kemper [2008] QCA 175, applied
COUNSEL:	The appellant appeared on his own behalf M. Litchen for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent