Wilson v. Queensland Police Service

[2008] QDC 7

[2008] QDC 007

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBERTSON

No 152 of 2007

PAUL DAVID WILSON	Appellant
and
QUEENSLAND POLICE SERVICE	Respondent

MAROOCHYDORE

..DATE 31/01/2008

ORDER

APPEAL:  Appeal against (10) month term imposed for (3) breaches of domestic violence order;  where Magistrate did not refer to plea of guilty - whether sentence was manifestly excessive.

HIS HONOUR:  On the 22nd of June 2007, the appellant, Paul Wilson pleaded guilty in the Caloundra Magistrates Court to three offences of breaching a domestic violence order and he was sentenced to ten months imprisonment with a parole release date set at 13 September 2007.  Her Honour, Magistrate Fingleton declared that he had served ten days of that sentence from the 12th of June 2007 to the date of sentence pursuant to section 159A of the Penalties and Sentencing Act. 

A notice of appeal was filed on the 18th of July 2007 on Mr Wilson's behalf by King Tobin Lawyers.  The appellant was granted bail pending appeal on the 26th of July 2007.  The sole ground in the notice of appeal is that the sentence was manifestly excessive. 

The appellant was born on the 29th of December 1977.  He commenced a de facto relationship with Ms Redmayne, the complainant, in 2002 and there are two small children of their relationship.  Mr Allen of counsel who appeared before her Honour informed her that the relationship had been stormy involving a number of separations and finally a separation of sorts in May of 2007.  The complainant obtained a domestic violence order on the 7th of March 2007, which was served on the appellant on the 15th of March 2007.

All three breaches occurred at their former joint home at Landsborough.  On the 2nd of May 2007, despite the order, apparently the appellant was residing at the residence, and in breach of the order he committed acts of domestic violence.  He became agitated and aggressive towards the complainant.  He pushed her and when she attempted to telephone the police, he took steps to stop her including an act of trying to choke her.  She fought him off and then police arrived and they spoke to the appellant.  He was slightly intoxicated and told police that he was jealous that the complainant was going out with someone else. 

By the time of the second breach on the 9th of May 2007, he was no longer residing at the house.  On this occasion, in breach of the order, he arrived at the house in his motor vehicle around 7,30 p.m. at the same time as the complainant, who was with her children and her mother in her car.  He was agitated and a verbal argument erupted and he attempted to forcibly remove the children from the vehicle.  Both the mother and the complainant resisted and they were struck by the appellant and the complainant was knocked to the ground and the appellant then left.

He was interviewed by police on the 14th of May and made full admissions.  He explained that he was agitated over not seeing the children.  He said he felt bad about what had occurred and that he had apologised to the complainant. 

On the 11th of June in breach of the order, the appellant again went to the residence at about 9 p.m. at night when the complainant and the children were at home.  She had locked the front door and told him not to enter, but he did by climbing in a window and he then got into bed with her despite her requests for him to leave.  When she attempted to call police, he became abusive and aggressive and he threw the phone across the room and struck her in the vagina and stomach area on a number of occasions.  He struck her in the head but the blow glanced off her head and struck their one year old son.  He then took her by the throat and she struggled to get away.  She managed to escape and call police.  When police arrived, they located the appellant in her bed in her bedroom, cradling a baby in his arms.  He left peacefully with police.  He was thereafter remanded in custody until the sentence date.

The appellant had two prior convictions, only one of which was relevant, namely a conviction for serious assault on the 7th of February 2005.  He was dealt with in the Maroochydore Magistrates Court for that offence on the 12th of April 2005 and fined $650 with no conviction recorded.  Her Honour was not given, nor did she inquire, the details of that offence.   She described his criminal history appropriately as limited in her sentencing remarks.

Mr Allen, on behalf of the appellant, informed her Honour that the appellant was a qualified bricklayer, who had been employed with the same employer for 15 years and for the last five years as foreman in a bricklaying business.  He told her that he worked long hours and references from his employer and a family friend were tendered.  Mr Allen told her Honour that leading up to the first incident, there had been considerable ambivalence in the relationship between the two people, in that his client was receiving mixed signals about the future of the relationship and this included episodes of mutual sexual contact and, effectively, sharing care of the children.  Mr Allen told her Honour that at times the complainant would tell his client that she was in a relationship with someone else and then at other times, be friendly towards him.  All this caused him a great deal of anxiety and emotional pain.  In fact, a counselling session had been arranged for a date a few days after the appellant was remanded in custody for his arrest for the final offence.

Mr Allen gave considerable detail concerning his client's version of what occurred in relation to the three offences, conceding that the most serious was the third incident.  Mr Allen told her Honour that despite the domestic violence order being in place and despite it having been strengthened with further conditions after the first incident, the complainant had nevertheless encouraged contact with him and on the night before the third incident, they had spent the night together.  None of this was disputed by the prosecution.  He told her Honour that his client was extremely remorseful and embarrassed over his behaviour.

He submitted that the sentencing range was for non-custodial options up to a short term of imprisonment suspended or otherwise ameliorated.  He submitted that his client had served enough time and stressed his employment situation.

Oddly, the Prosecutor's submission as to the appropriate sentence took place after Mr Allen had made his submission.  This came about because her Honour asked him if he wished to make submissions.  Prior to Mr Allen's submissions, the Prosecutor had made no particular submission as to the sentence.  In my opinion, it is inappropriate for a Prosecutor to withhold his or her submission on sentence until after the defence has made its submission.  If the Prosecutor contends for a particular sentence, this should be done in the usual way, that is before the defence.  Her Honour asked the Prosecutor if he had a submission on sentence at the conclusion of Mr Allen's submission.  This was not appropriate.  It may be that a Court requires some clarification about the law or some authority as a result of the defence submission, but Prosecutors as a matter of general principle should make their submission on sentence in the usual way, that is before the defence.  This accords with general principles of fairness and also is in line with the role of the Prosecutor in the criminal justice process. 

Her Honour then, after the Prosecutor had made his submissions, expressed concern about the serious nature of the appellant's actions on the third occasion.  She referred to the fact that he could have been charged with much more serious offences.  Mr Allen reminded her that he was not charged with other offences and that he had pleaded guilty to breaches of a domestic violence order which carries a maximum of 12 months imprisonment.  He also reminded her Honour that there was no evidence of actual injury.  He could also have told her that there was no victim impact statement tendered by the prosecution before her Honour. 

Her Honour then gave brief sentencing remarks.  She imposed sentences of 10 months, which are obviously close to the maximum, which is reserved for the worst category of the offence.  She indicated that in her opinion the third charge was in this category.  A setting of a parole release date on the 13th of September 2007 meant that he would serve approximately one-third of the sentence, which accords with the usual approach to amelioration for a plea of guilty and remorse. 

It is the head sentence, however, which is impugned by the notice of appeal and Mr Allen has set out his argument at paragraph 2.2 of his submission.  The respondent in its outline filed on the 20th of November 2007 concedes that the sentence was manifestly excessive.  Her Honour did not specifically refer to the appellant's plea of guilty or to his obvious remorse, indeed, his immediate remorse in the conversation with police.  It is clear to me that she has allowed the obviously serious nature of the last offence in particular, to overcome the proper balancing exercise taking into account his background and his employment history and the other factors in mitigation.  His version as to the context in which the offences were committed was not challenged, and as I have said, no victim impact statement was tendered. 

I am satisfied that the sentence imposed was manifestly excessive.  The appellant served another 32 days in custody after the hearing before being granted bail pending appeal.  The appeal is allowed, the sentences imposed on the 22nd of June 2007 are set aside.  In lieu the following sentences are imposed.

In relation to the first two charges I impose sentences of two months imprisonment on each charge and in relation to the third offence, I impose a sentence of six months.  All those sentences to be served concurrently and to date from the 12th of June 2007.  I order that the sentences be suspended on the 22nd of June 2007 for a period of six months.  That period of six months has now elapsed, so the sentence has effectively been served.

This morning, before the matter was called on, the Registry received a call from Mr Tobin, who is the appellant's solicitor.  Mr Tobin informed the Registrar that he wished to be excused from appearance because he had a dental appointment.  He indicated that he wished to have leave to withdraw.  The Registrar sought my attitude and I informed the Registrar to tell Mr Tobin that I required at least an agent to appear. 

On the face of it, it is concerning that an appeal against sentence with all the serious ramifications to the liberty of the subject in which the respondent has by its outline of argument filed on the 20th of November 2007 conceded that the solicitor would seek to withdraw in those circumstances and to apparently make no attempt to have his client appear in person.   For that reason, I have indicated to Mr Tobin's agent, that I require him to appear in person before me at a date to be fixed to give a full explanation as to the circumstances in which he sought leave to withdraw. 

MR CRAWFOOT:  Your Honour, perhaps before finalising the matter, I did obtain an updated criminal history for Mr Wilson.  It might be worth putting that on the record perhaps.

HIS HONOUR:  Yes, yes.

MR CRAWFOOT:  I will formally tender that document. 

HIS HONOUR:  So, he has got subsequent offences?

MR CRAWFOOT:  There's nothing subsequent to the offences that are the subject of the appeal for the purposes of‑‑‑‑‑

HIS HONOUR:  There was - there was a criminal history on the record which her Honour had.  Yes, thank you. 

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