Queensland

District Court

  • Bailey (a pseudonym) v Bailey (a pseudonym) [2021] QDC 99 (9 June 2021) – Queensland District Court
    Consent order’ – ‘Systems abuse’ – ‘Understanding of the protection order

    Proceedings: Appeal pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (the Act) against the grant of protection order by consent.

    Facts: The applicant former husband, who was a solicitor, was represented by counsel at the protection order hearing. While the applicant was present in court his counsel indicated that he consented to the grant of a protection order to protect his former wife. The applicant appealed against the grant of the protection order.

    Ground: The Magistrate did not “ensure” he understood his obligations under the order.

    Held: Appeal dismissed.

    In reaching his decision Dick SC DCJ found:

    [33] I am satisfied that the Magistrate did ensure that the Appellant consented to or did not object to the order. I am so satisfied because of the discussion that took place between the bench and the legal representatives while he was present in court and although the Appellant has said he does not remember seeing the document that was handed down, I do not believe that the barrister would not have taken instructions on the document which was clearly the standard form used by the Magistrate.

    [34] However, the matter does not stop there. Under s 84(2) of the Act, if the court is to make a domestic violence order and the respondent is before the court, the court must ensure that the respondent understands:

    1. the purpose and effect of the proposed order;
    2. the type of behaviour that constitutes domestic violence; and
    3. what may follow if the respondent contravenes the proposed order; and
    4. that the respondent may apply for a variation of the order.

    [35] It is generally accepted that there has been no prior judgment precisely on this point.

    [41] In this case the following points must be recognised.

    • The Act does not require that the Magistrate engage personally with the respondent.
    • Sub-section 84(4) of the Act provides that a court can use services or help from other persons to assist the court in discharging its obligations under s 84. Some examples are provided and for the most part, if not all, the person giving the explanation is not a legally qualified person.
    • The Appellant is a qualified solicitor.
    • The Appellant was represented in court by competent counsel.
    • The Appellant was in court at the time the order was made.
    • There was a discussion between the bench and the two barristers concerning the order.
    • The order was made by consent or without objection.
    • Section 85 of the Act provides the court must include with a copy of the orders served on the respondent, a written explanation containing the relevant material that is referred to in s 85.

    [42] I therefore have come to the view that the Appellant was, as said in Smith, “competently legally represented and there can be no question that he now well understands the effect of the [order] imposed”.

  • NJB v Commissioner of Police [2021] QDC 42 (4 March 2021) – Queensland District Court
    Appeal against conviction and sentence’ – ‘Breach of protection order’ – ‘Credibility’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Victim experience of court processes

    Charges: Contravening a domestic violence order.

    Proceedings: Appeal against conviction and appeal against sentence.

    Facts: The critical issues that had to be determined by the magistrate below were whether the male appellant, as stated by the female respondent, punched her to the side of her head after a series of arguments or, whether because of her lengthy and serious history of seizures, the court could not be satisfied beyond reasonable doubt that the injury was not the consequence of the respondent having a seizure, falling and thereby injuring herself. The appellant was found guilty and sentenced to four months imprisonment, with a parole release date set after two months.

    Grounds of appeal:

    Appeal against conviction:

    1. The magistrate’s findings of the respondent’s credibility or reliability were unreasonable or could not be supported by the evidence (Grounds 1 and 2).
    2. The magistrate erred in permitting the appellant to be asked about bad character without leave being sought and granted, and against objection (Ground 3).

    Appeal against sentence: The sentence was manifestly excessive.

    Held:

    Appeal against conviction dismissed.

    Grounds 1 and 2 were dismissed. Contrary to the appellant’s submission that the respondent was intoxicated on the night of the offending, the evidence supported the fact that she was no more than ‘tipsy’. The argument that the respondent had a motive to lie about the assault was also unclear and implausible.

    The appellant further submitted that the magistrate failed to give sufficient weight to the respondent’s evidence minimising the frequency of her seizures. In dismissing this argument, his Honour said:

    “It can be accepted that at times, the respondent did tend to downplay the frequency of those seizures. That, of course, is not to her credit. That said, the nature and extent of the seizures were clearly distressing to her and, quite likely, a source of embarrassment. That the respondent might tend to downplay her condition does not, in my view, materially damage her credit. Further, the cross-examination of the respondent on this topic was not only distressing for the respondent, it was also, at times, quite confusing. That may also be another reason which goes some way to explaining the conflicting evidence on this issue.”

    There was no room for a reasonable doubt that the injury suffered by the respondent was the result of the respondent having a seizure and falling or otherwise sustaining the injury as a result thereof. It followed that the court was satisfied beyond reasonable doubt that the appellant was guilty of committing the offence charged.

    Ground 3 was also dismissed. The cross-examination of the respondent and the evidence led from the appellant by his solicitor clearly left it open for the prosecutor to raise an alleged prior incident and put it to the appellant. In any event, the appellant denied the matter and the magistrate observed that that was as far as the matter could go.

    Appeal against sentence allowed.

    His Honour recognised that the cross-examination of the respondent about her medical history was prolonged and distressing, however this had to be seen in light of her somewhat confusing evidence. His Honour recognised that: “I have no doubt that the cross-examination could have been carried out much more efficiently and greatly shortened both the length of the cross-examination and the distress caused to the respondent.” That said, it was wrong to describe the cross-examination as largely unnecessary and irrelevant.

    None of the appellant’s favourable antecedents were mentioned or given weight by the magistrate (appellant’s strong work ethic, employment, character references, and relationships with his mother and children). This was an error in the exercise of the sentencing discretion. The sentence imposed was manifestly excessive and the appellant re-sentenced to 30 days imprisonment.

  • PRH v LPL [2021] QDC 17 (3 February 2021) – Queensland District Court
    Appeal against orders made in a domestic violence proceeding’ – ‘Ouster condition’ – ‘Protection orders

    Proceedings: Appeal against orders made in a domestic violence proceeding.

    Facts: The appellant was prohibited from entering, remaining, approaching etc within 500 metres of the first respondent’s (aggrieved) usual place of residence and from following or approaching within 500 metres of the aggrieved. The appellant was also prohibited from entering, remaining, approaching etc to within 200 metres of premises where the named person usually lived, worked or frequented. The magistrate further ordered that the first respondent have sole right of occupancy of the Buddina residence.

    Grounds of appeal: 15 grounds of appeal centred around the court below denying procedural fairness to the appellant by refusing to permit evidence to be led and wrongfully accepting false and misleading evidence given by the first respondent.

    Held: Appeal dismissed, subject to a number of variations.

    In particular, the imposition of a seven-year ouster condition was neither necessary to protect the first respondent nor desirable. The first respondent did not want to move as the property “was her home, she felt safe there”. However, the appellant was the registered proprietor of the property. The first respondent had had the benefit of the ouster condition for two years and three months. She also had the financial capacity to purchase alternative premises/rent.

  • MB v Queensland Police Service [2020] QDC 325 (18 December 2020) – Queensland District Court
    Appeal against sentence’ – ‘Breach bail conditions’ – ‘Breach protection orders’ – ‘Emotional and psychological abuse’ – ‘Following, harassing and monitoring’ – ‘Protection order’ – ‘Wilful damage

    Charges: Contravention of a police protection notice x 1; Wilful damage (domestic violence offence) x 1; Breach of bail condition x 7; Contravention of a domestic violence order x 4.

    Proceedings: Appeal against sentence.

    Facts: The male appellant repeatedly breached orders protecting his former female partner and her son. The appellant pleaded guilty and was sentenced to 2 years’ probation and ordered to pay $611.70. Convictions were recorded on all counts.

    Grounds of appeal: Fresh evidence was sought to be admitted arguing that recording a conviction would have a significant effect on the appellant’s employment overseas, and the sentence was manifestly excessive.

    Held: Application to admit fresh evidence was refused and the appeal dismissed.

    It was appropriate to record convictions in light of the number of convictions and their serious nature (prolonged over 4 months, including more serious examples, continuation after release from custody). As at [57]: “When one considers s 12 of the Penalties and Sentences Act, the seriousness of the offences in combination outweighed any economic effect or wellbeing effect of the recording of convictions.”

    The sentence could not be said to be manifestly excessive. Despite being given many chances, the appellant had “continued to ‘thumb his nose’ at the bail conditions and the domestic violence order”. Aggravating features included that these were instances of domestic violence and “the emotional harm done to the victims and the damage, loss and injury caused.” Voluntary intoxication was no excuse. The guilty pleas were sufficiently taken into account (at [59]-[61]).

    It was noted at [22], [26]-[28]:

    “Charge 12 occurred on 27 August 2020 which was a contravention of domestic violence order. The appellant updated his profile status making threatening comments about the complainant, SH. The post named SH and contained threats and disclosed her sexual preferences to several friends. This had a significant emotional impact on the complainant SH. The appellant was interviewed on 29 August 2020 and said he didn’t remember posting the comment but went on to say it was true.

    “A victim impact statement was tendered as Exhibit 4. The offending caused distress and inconvenience to the complainant SH. She had to move regularly as a result of the conduct of the appellant and suffered defamation to her character. She alleged that total out of pocket expenses was $16,748.84.”

  • GRP v ABQ [2020] QDC 272 (28 October 2020) – Queensland District Court
    Appeal against order not to grant a temporary protection order’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Step-children’ – ‘Strangulation’ – ‘Systems abuse

    Proceedings: Appeal against order not to grant a Temporary Protection Order (TPO).

    Facts: The appellant man and respondent woman were in a domestic relationship, and each had children from previous relationships. There was a prior history of protection orders ordered against the appellant, with the respondent as the aggrieved. In June 2019, a protection order was made against the appellant to protect the respondent with mandatory conditions and no contact conditions except with the respondent’s written consent. The parties continued to have contact. In August 2019, following a complaint by the respondent to police, the appellant was charged with breach of a domestic violence order, common assault and choking/suffocation/strangulation x 2 (domestic violence offences). He was released on bail. This appeal concerned the appellant’s cross-application for a TPO. In November 2019, the appellant filed a private application for a protection order against the respondent. Four incidents of emotional abuse and one incident of physical abuse (scratches from August 2019) were alleged. The Magistrate declined to make a TPO.

    Grounds of appeal:

    1. The Magistrate wrongly decided and erred in law by not granting a TPO.
    2. The Magistrate wrongly decided and erred in fact and law by determining that the appellant’s allegations of domestic violence against the respondent did not satisfy the definition under the Act.
    3. The Magistrate erred by failing to give adequate reasons for not granting the TPO.
    4. The Magistrate erred in fact and law in that he allowed extraneous or irrelevant matters to guide or affect his decision; mistook the facts; and did not take into account material considerations.

    Held: An error of law occurred as the Magistrate did not provide adequate reasons namely, the Magistrate’s reasons only referred to the four incidents of alleged verbal abuse, but did not refer to the incident of physical violence alleged in the appellant’s application of November 2019 ([26], [30]). Further, the Magistrate erred when he stated he heard from both the appellant and the respondent in June 2019, as the appellant was not present ([31]). Her Honour set aside the Magistrate’s order.

    There was sufficient evidence to warrant granting a TPO in favour of the appellant. Having regard to the temporary nature of the order, her Honour considered that the evidence of alleged physical violence was sufficient to be satisfied of the respondent committing domestic violence against the appellant (at [38]-[40]). A date for the hearing of whether a protection order should be made was already set in the Magistrates’ Court.

  • ARTE v Nugent & Anor [2020] QDC 268 (23 October 2020) – Queensland District Court
    Appeal against grant of protection order’ – ‘Miscarriage of justice’ – ‘No prior history of domestic or family violence’ – ‘Ouster condition’ – ‘Protection order’ – ‘Suicide threat

    Proceedings: Appeal against making of a protection order; whether the protection order was necessary or desirable; whether the Magistrate erred in imposing an ouster condition; whether the Magistrate’s conduct amounted to a miscarriage of justice.

    Facts: A protection order was made on 3 February 2020 against the male appellant after a contested hearing, including an ouster condition in relation to his female former partner’s usual place of residence.

    The first respondent (the police prosecutor applicant for the order at first instance) opposes the appeal but concedes (1) the Magistrate’s reasons for judgment disclose a House v The King (1936) 55 CLR 499 error and (2) it is appropriate for the order to be varied such that the ouster condition is removed.

    The second respondent (protected person) is supportive of the appeal and the relief sought. The appellant and protected person were married for 32 years. Prior to 11 October 2019, there had been no previous incidences of domestic violence. The parties were in financial stress after the collapse of a business. On 11 October 2019 the protected person called 000, telling the operator: ‘My husband has gone to the gun cabinet to do a murder suicide…He’s got a gun to kill us.’ The second respondent locked herself in a bathroom. The operator heard the second respondent yell: ‘Get away, get away’. A Police Protection Notice was issued on 11 October 2019, with a condition that the appellant surrender his weapons licence and firearms. An application for a protection order to benefit the protected person was made by the first respondent on 11 October 2019. No ouster condition was sought in the application. On 15 October 2019, the application was adjourned; a temporary protection order was made in the favour of the protected person with the standard conditions.

    A protection order was made on 3 February 2020 against the appellant after a contested hearing, including an ouster condition in relation to the protected person’s usual place of residence.

    The appellant contended:-

    • The appellant’s conduct did not meet the definition of domestic violence - there was no threat of violence; rather the second respondent was intoxicated, stressed and emotional which resulted in her overacting to a bad joke made by the appellant; and
    • In the alternative, a protection order is not necessary or desirable (i) appellant and protected person lived in the same residence during the term of the TPO and no domestic violence had occurred; (ii) prior to 11 October 2019, there had never been any other act of domestic violence in 32 years of the relationship; (iii) the risk of future domestic violence was remote and not sufficient to establish a need for protection.

    On 3 February 2020, the Magistrate heard the application and made the order, delivering ex tempore reasons revealing that each limb of section 37(1) was satisfied and it was appropriate to impose an ouster condition. Central to the Magistrate’s reasoning were three findings:-

    1. the appellant was engaging in victim shaming;
    2. the appellant had not taken any steps to address the underlying reasons for the incident on 11 October 2019; and
    3. the relationship between the appellant and second respondent involved a power imbalance such that the later would subjugate her wellbeing to that of the former.

    Grounds of appeal

    1. Did the Magistrate err in holding that it was necessary or desirable to protect the second respondent from domestic violence? Error 1
    2. Did the Magistrate err in imposing an ouster condition under s.63? Error 2
    3. Whether there were irregularities in the conduct of the trial that occasioned a substantial miscarriage of justice? Miscarriage of justice

    Held: Order set aside; application remitted to the Magistrate’s Court for a new trial before a different Magistrate.

    Error 1 – Did the Magistrate err in finding a protection order was necessary or desirable?

    Observing Horneman-Wren SC DCJ in ACP v McAulliffe [2017] QDC 294, s.37(1)(c) invokes a very wide and general power and is to be construed liberally, having regard to s.37(2) and the s.4 principles of the Act. This required the Magistrate to have regard to the wishes and views of the people who fear or experience domestic violence to the extent appropriate and practicable (s.4(2)(b)) [at 27].

    At [29], His Honour reflected on the reasons for judgment and stated that the Magistrate was satisfied s.37(1)(c) was engaged because the second respondent was not adversely affected by alcohol and the 11 October 2019 incident was a very distressing one. His Honour noted the reasons did not disclose if the considerations mandated by section 37(2) were taken into account. His Honour found this to be an error of law and warrants the order being set aside.

    His Honour also found the Magistrate’s assertion of the existence of the power imbalance and reference to the Duluth model and the power and control wheel had no application to this case and amounted to an error of law.

    The first respondent submitted, despite the errors in the reasons for judgment that there was in any event sufficient evidence to find the order was necessary or desirable in the circumstances. His Honour did not agree, finding, at [34], that the evidence going to this very issue is incomplete (see [65] to [85] – no sworn affidavit of the second respondent and there was no application to lead fresh evidence in this appeal).

    Therefore, this should be determined in a new trial.

    Error 2 – Did the Magistrate err in imposing an ouster condition?

    In finding an error had been made by the Magistrate, His Honour noted that an ouster condition had not been sought by the first respondent in the initial application and that the views and wishes of the “aggrieved” had not been sought, as was required by s.64(1).

    His Honour considered s.57(1)(a) and s.63 and the mandatory considerations in s.64(1)(a) and (b) regarding whether the aggrieved can safely live in the residence if the ouster is not made and any views or wishes of the aggrieved.

    His Honour, at [40], did not accept the Magistrate correctly assessed the risk of future violence occurring and the need for an ouster condition because:

    1. The Magistrate’s earlier finding in relation to the significant power imbalance, in the absence of evidence (an irrelevant consideration); and
    2. The second respondent was not afforded the opportunity to express her wishes by way of sworn evidence (a mandatory consideration).

    The exercise of discretion to impose an ouster order miscarried [at 41]. Both errors represent a proper basis for interfering with the exercise of discretion in the manner contemplated by House v The King (this was conceded by the first respondent in relation to (1) above).

    Miscarriage of Justice

    His Honour agreed there were five irregularities in the conduct of the trial at first instance such to establish a substantial miscarriage of justice:-

    1. The Magistrate spoke about, and directly to, the appellant in terms that were pejorative, and unnecessary, having regard to the evidence in proper context, (at [46] eg accusing the appellant of “bad manners”, calling him the respondent’s “gun-toting husband”);
    2. The Magistrate permitted unfair cross-examination of the appellant, (at [47] not allowing the recording to be replayed at the appellant’s request to clarify his understanding of the question and then describing this as being demonstrative of an uncooperative witness);
    3. The Magistrate was unnecessarily aggressive towards the appellant’s legal representative which adversely impacted upon the proper presentation of the appellant’s case, (at [54] accusing the appellant’s solicitor of professional discourtesy which was not borne out in the transcript);
    4. The Magistrate materially interfered with the conduct of the second respondent’s case, ( at [65] by refusing the second respondent leave to file an affidavit on the day of the hearing);
    5. An exchange between the solicitor for the first respondent and the Magistrate regarding a domestic violence stakeholders group meeting, taken with the other irregularities, is indicative of a reasonable apprehension of bias on the part of the Magistrate.
  • Osborne v Commissioner of Police [2020] QDC 249 (30 September 2020) – Queensland District Court
    Appeal against sentence’ – ‘Appellant's belief that his girlfriend and her children were victims of domestic violence perpetrated by the complainant’ – ‘Effect of deportation / visa cancellation on sentencing’ – ‘Non-fatal strangulation’ – ‘Vigilantism

    Charges: Forcible entry x 1; Wilful damage x 1; Assault occasioning bodily harm x 1.

    Proceedings: Appeal against conviction and sentence (appeal against conviction abandoned).

    Facts: The appellant believed that Ms MB was his girlfriend. Ms MB was in fact in a relationship with the complainant. On the date of the offence the complainant telephoned the appellant and told him that he (the complainant) was in a relationship with Ms MB. The appellant then went to the complainant’s house. He banged on the front door and said, “I’m going to kill you, cunt”; “You want war, brother? You got war.” The complainant approached his front door holding a knife which he had been using to prepare food. A verbal argument ensued, the appellant became enraged and ripped the screen door off the hinges. He lunged at the complainant grabbing him around the shirt. Both the appellant and complainant were cut with the knife during the struggle. The appellant put his left elbow and forearm around the complainant’s neck and pressed it into the complainant’s neck, choking him. The appellant continued to threaten the complainant saying, “I will kill you, cunt”. He did not stop his attack until police arrived. Prior to the incident, Ms MB and her children had told the appellant that there had been episodes of domestic violence committed by the complainant towards her. The appellant said that he went to the complainant’s house to talk to him about his behaviour and to protect the children. The appellant made full admissions to the police. The appellant was admitting to a mental health unit following the incident.

    Issues: (1) Whether the sentence was excessive; (2) Whether the magistrate failed to take into account the appellant’s guilty plea and mitigating factors.

    Decision and reasoning: Appeal allowed. Appellant resentenced.

    The respondent concedes that the magistrate failed to take into account a number of relevant mitigating factors including: the appellant’s mental health condition, the appellant’s physical health, his mistaken belief and the likely consequence of the appellant’s conviction on his visa (see [39]-[41]). The respondent further concedes that the sentence imposed was excessive. There was no reference to any mitigating factors in the reasons of the magistrate, which tends to suggest that he failed to take those factors into account.

  • ATD v TBC [2020] QDC 236 (17 September 2020) – Queensland District Court
    Appeal against protection order’ – ‘Domestic violence’ – ‘Female partner respondent subject to protection order’ – ‘Male partner aggrieved party under protection order

    Proceedings: Appeal against protection order.

    Facts: The appellant (wife) filed a private application for a protection order against her husband. The respondent (husband) filed a cross application against his wife. In September 2018, a temporary protection order (TPO) was made naming the respondent (husband) as the aggrieved and the appellant (wife) as the respondent. In February 2019, the appellant was described as ‘paranoid, delusional, denigrating towards the respondent, and neglectful of the children’. The appellant also published a number of Facebook posts accusing the respondent of abducting the children and accusing him of being abusive and corrupt. In February 2019, the TPO was amended to prevent the appellant from attending the respondent’s home. In March 2019, the Federal Circuit Court made orders requiring the children live with the respondent, the appellant have two hours of supervised visitation per week, and the appellant commence therapeutic care with a Consultant Psychiatrist. In March 2019, the TPO was amended to prevent the appellant from contacting the respondent or publishing adverse comments about him online. In March 2019, the police referred the appellant to the Acute Care Team due to concerns they held regarding her mental health after she made over 100 unsubstantiated police complaints accusing the respondent of protection order breaches and other criminal behaviour. In May 2019, the appellant breached the TPO by publishing a post on Facebook which suggested the respondent broke into her house and placed a water pistol in her cupboard ‘as a threat that [she] will be killed’. In June 2019, the appellant pleaded guilty to breaches of the TPO. A full list of the appellant’s abusive communications and unsubstantiated allegations are set out in para [15]-[16] of the judgment.

    Issues: Whether the magistrate’s decisions making a protection order naming the male former partner as the aggrieved and the female partner as the respondent and dismissing the appellant’s application for a protection order should be upheld.

    Decision and reasoning: Appeal dismissed.

    There was a proper basis for the Magistrate finding that a protection order was necessary and desirable to protect the respondent from domestic violence.

    [74] The appellant has committed numerous acts constituting domestic violence against the respondent over the relevant period. Section 8 of the Act defines domestic violence for the purposes of the Act. It includes behaviour by a person towards another person which is emotionally or psychologically abusive, and behaviour that torments, harasses or is offensive. During the relevant period, the appellant sent abusive and intimidating messages to the respondent, published abusive and malicious Facebook posts, and sent numerous messages denigrating the respondent to others. The email and text communications between the appellant and the respondent clearly show a pattern of the appellant harassing and denigrating the respondent. I have summarized some of examples of these earlier in this judgment. The appellant did not and could not challenge that she had sent the relevant material to the respondent and others. The appellant sent some of this material in breach of a Temporary Protection Order and after being convicted of earlier breaches of the Temporary Protection Order.

    It is clear from reading the transcript of the original hearing that the appellant continued to express resentment and animosity towards the respondent. Under cross-examination, the appellant refused to accept that she was in any way at fault for sending or posting the abusive and false material. The appellant’s state of mind at the time of the original hearing was relevant as to whether it was necessary or desirable to make a protection order.

    [75] At the appeal hearing, the appellant continued to have little if any insight into the fact her behaviour has been unacceptable. She made clear her intention was to pursue the respondent further through the courts. I am satisfied a protection order was and is clearly necessary and desirable to protect the respondent from further domestic violence.

    [76] With respect to the appellant’s application for a protection order against the respondent, the appellant has failed to show the Magistrate erred by concluding she could not be satisfied that the respondent had committed any act of domestic violence … other than some verbal abuse during the incident of 29 January 2018. It was open on the evidence for the Magistrate to prefer the respondent’s evidence over the appellant’s evidence. The evidence supported her conclusion that the respondent’s behaviour on that one occasion was out of character. In my view, although the respondent’s verbal outburst on 29 January 2018 may well have constituted emotional or psychological abuse under section 8(1)(b) of the Act, there was no credible or reliable evidence that, prior to or since that date, the respondent behaved in any way which could satisfy a court that it was necessary or desirable to make a protection order against him. The uncontested evidence was that the respondent had made no contact, directly or indirectly, with the appellant except in compliance with Family Court orders.

  • SRV v Commissioner of the Queensland Police Service & Anor [2020] QDC 208 (1 September 2020) – Queensland District Court
    Appeal against making of protection order’ – ‘Appeal against refusal to grant protection order (cross application)’ – ‘Breach of protection order’ – ‘Person most in need of protection’ – ‘Protection order’ – ‘S. 4 of the domestic and family violence protection act 2012’ – ‘Threats to kill

    Proceedings: Appeal against making of protection order and refusal to grant protection order (cross application).

    Facts: The appellant and the second respondent were in an intimate relationship for a period of three months between October 2018 and January 2019. Following an incident on 21 January 2019, a Police Protection Notice (PPN) was issued and on 23 January 2019 a temporary protection order (TPO) was made against the appellant. On 29 January 2019, the appellant pleaded guilty to two charges of contravening the PPN.

    At the mention of the police application on 17 June 2019, the appellant made a number of serious allegations against the respondent to the effect that she has conspired to have him murdered. The appellant then made an application for a protection order and temporary protection orders were made in each application. At the hearing of the applications on 19 August 2019, the police commissioner was legally represented in relation to the application for the benefit of the second respondent; the appellant was self-represented; and the second respondent did not appear. The Magistrate made an order, pursuant to s.151(2) that the appellant may not cross-examine the second respondent and that this would be the rules of engagement for the resumed hearing on 2 December 2019.

    At the resumed hearing on 2 December 2019, the appellant tendered affidavits containing screen shots of various Facebook messages as evidence of his allegations against the second respondent that she had conspired to have him murdered. The second respondent gave short oral evidence by phone, being questioned solely by the magistrate. The magistrate granted the protection order in favour of the second respondent and refused the appellant’s cross application. In making the decision, the magistrate was not satisfied the second respondent was responsible for the threats and accepted the second respondent’s version of events over the appellant’s version.

    Issues: Whether the magistrate was correct in determining that, upon identification of the person most in need of protection, it followed that a protection order could not then also be made against that person; whether the cross-applications should be granted.

    Held: Appeal against making of protection order dismissed; appeal against refusal to grant protection order (cross application allowed).

    The case clarifies the interpretation of s. 4 of the Domestic and Family Violence Protection Act 2012 (the Act). The Act does not exclude orders being made in both cross applications. Cross applications require the consideration of the matters referred to in s.37 and should not be decided on the basis of the principle in s.4(2)(e) (the identification of the person most in need of protection).

    Decision on cross applications:

    Her Honour considered the evidence and found it clear there was an event of domestic violence perpetrated towards the second respondent by the appellant and was satisfied the circumstances justified a protection order was necessary against the appellant, even when accepting the second respondent was not a reliable witness and prone to exaggeration. This appeal against the making of the protection order was dismissed.

    Her Honour then considered the appellant’s application for a protection order against the second respondent, namely the allegations of the threats contained in Facebook messages. Her Honour stated she had no reason to doubt that the messages alleged to have been sent by the second respondent were in fact sent by her. In any event, their authenticity was not challenged. Her Honour found the messages satisfied the requirements of the definition of domestic violence in s.8(1) and s.37(1)(b). In her view, the magistrate should have found it necessary or desirable to protect the appellant from domestic violence and should have made a protection order. The second respondent did not swear any affidavit in response to the appellant’s affidavit alleging serious matters.

  • EKL v Commissioner of Police & PEL [2020] QDC 194 (12 August 2020) – Queensland District Court
    Complainant a protected witness’ – ‘Procedural fairness’ – ‘Trial proceeded without the appellant present

    Matter: Protection order appeal.

    Facts: Discussion between the magistrate and the prosecutor about the protection order took place in the absence of the appellant and/or his legal representative. The prosecution made an application for the complainant to be a protected witness under the Domestic and Family Violence Protection Act (DFVP Act). The appellant’s legal representative informed the court that they did not have instructions in relation to any matter other than to request an adjournment, which application was refused by the magistrate. The appellant’s representative sought leave to withdraw. The magistrate granted the protected witness application.

    Issues: (1) The appellant was not afforded procedural fairness; (2) the Magistrate erred in failing to comply with the DFVP Act; (3) the Magistrate erred in finding that the protection order was ‘necessary or desirable’ in the circumstances.

    Decision and reasoning: Appeal allowed, protection order set aside. Application for protection order remitted to magistrate’s court before a different magistrate.

    (1) The discussion of substantive matters by the magistrate in the absence of the appellant is a ‘clear breach of the obligation of procedural fairness’ [20]. (2) In prohibiting the appellant from cross-examining the complainant, the magistrate did not comply with the pre-conditions in s 151 of the DFVP Act which include ‘requiring the court to inform the respondent that he could not cross-examine the aggrieved’ [33]. (3) Unnecessary to consider.

  • R v RT (No 2) [2020] QDC 158 (13 July 2020) – Queensland District Court
    Assault’ – ‘Judge-only trial’ – ‘Strangulation’ – ‘Weapon

    Charges: Choking x 1.

    Proceedings: Judge-only trial.

    Facts: The defendant man was charged with unlawfully choking without consent while he and the female complainant were in a domestic relationship.

    The complainant’s daughter’s partner intervened. Later, the complainant attempted to pursue a DFV protection order but ‘none of the police to whom she spoke did anything’. The complainant and defendant later reconciled. In December 2017, the defendant is alleged to have ‘put his right forearm across her neck and applied pressure’, pinning down the complainant so that she could not breathe. After the incident, the police attended the house.

    1. During the complainant’s initial conversation with police, she ‘did not describe being choked by the defendant’. The defendant stated that he did not choke her but had held her by her arms/shoulders to ‘settle her down’.
    2. When meeting with a doctor after the incident, the complainant told the doctor she felt safe at home. The doctor gave expert evidence that the complainant’s injuries were consistent with the alleged choking.
    3. The relevant Constable testified that it was not until May 2020 that they were made aware of any allegation of domestic violence prior to December 2017. When asked about allegations of earlier violence, the complainant said that she had raised this with police on numerous occasions. The police were not able to get in contact with the complainant’s daughter’s partner who witnessed the January 2015 incident.

    Issues: Whether the evidence of the complainant can be accepted beyond reasonable doubt.

    Decision and reasoning: Not guilty.

    The defendant argued that there were:

    [39] a constellation of features inconsistent with [the complainant’s] account being truthful. These included her demeanour when speaking to police that night, her failure to immediately mention being choked and her preparedness to remain living at the house and tell the Doctor she felt safe.

    The judge held that:

    [39] The first and last of these matters do not in my view undermine the credit of the complainant. We are far past the days where the law expected an immediate and uncontrolled emotional reaction to an assault, and adversely viewed the credit of those who did not behave as expected. And, as noted above, staying in the house is understandable for other reasons.

    However, the judge was not satisfied beyond reasonable doubt that the defendant choked the complainant in December 2017 as alleged. The fact that the complainant did not mention choking at that time raised doubts about the accuracy of her evidence.

    [41] … it seems to me to be very surprising that if the complaint had been choked she did not mention that in her first interactions with police on the night. This is especially so if she had been violently assaulted by the defendant in the past, including by being choked or strangled … it seems to me unlikely that a person in the position of the complainant would have failed to mention being choked to the extent and for the duration alleged when first asked to give an account of the events … There is no reason apparent to me why she could not have mentioned or demonstrated the alleged choking at this point.

    [42] I do not mean by what I have written to imply there can be any universal judgement as to how alleged victims of domestic violence should behave.

    [45] It is impossible to think that an experienced police officer investigating an allegation of choking in 2018 would ignore a claim that a similar event occurred, in front of witnesses, less than three years before … [It is] unlikely that the absence of reference to the earlier incidents was the product of deliberate choice by the police officer, rather than omission by the complainant. It is reasonable to conclude that, having realised failing to refer to the other incidents at an earlier time was to her disadvantage, the complainant sought to deflect this by suggesting it was the fault of the police. That she was prepared to do so substantially damages her credit.

  • HBY v WBI and Anor [2020] QDC 81 (14 May 2020) – Queensland District Court
    Application to set aside interlocutory order’ – ‘Availability of documents at trial’ – ‘Judicial discretion’ – ‘Order that appeal be heard afresh in whole’ – ‘Protection order’ – ‘Unjust order

    Proceedings: Second respondent’s application to set aside interlocutory order that the appellant’s appeal be heard afresh in whole.

    Facts: The male appellant and female first respondent (LAP) were in a domestic relationship. The second respondent (WBI), a police officer, issued a protection notice to the appellant in favour of LAP and a protection order was subsequently issued by a Magistrate. The appellant filed a notice of appeal and also applied for an order that the appeal be heard afresh in whole, contending that certain documents were not available at trial that showed that statements made by LAP regarding her financial position were not true (a matter going to her credit). The appellate judge allowed the application. WBI subsequently applied to the Court of Appeal for leave to appeal that order, contending that the documents were in the possession of the appellant at the time of the trial, could have been obtained with reasonable diligence or would not have had an important influence on the rest of the case. The Court of Appeal struck out the application for want of jurisdiction (WBI v HBY and Anor [2020] QCA 24). WBI then made an application for an order that the order that the appeal be heard afresh in whole be discharged and in substitution thereof it be ordered that the appeal be decided on the evidence and proceedings before the court that made the decision being appealed.

    Held: Moynihan QC DCJ allowed the application, setting aside the interlocutory order that the appellant’s appeal be heard afresh in whole with the result that the appeal has to be decided on the evidence and proceedings before the court that made the decision. His Honour held that he had jurisdiction to review and set aside an interlocutory order concerning a procedural matter where there was a mistake or irregularity and it would be unjust not to set it aside [12]. In this case, the exercise of the Judge’s discretion (to issue the interlocutory order) miscarried because he took into account facts which were in part erroneous (that is, the Judge was mistaken as to the availability of the documents at trial and the appellant’s opportunity to obtain disclosure of them) [12]. It would be unjust not to set aside the order where the mistake was material and led to such an extraordinary order [12].

    His Honour further held that there was "no good reason" (see R v A2 (2019) 373 ALR 214) to order that the appeal be heard afresh in part [21]. The documents would have been available to the appellant at the time of the trial with reasonable diligence, or he was in fact in possession of the documents at the time of the trial [22]-[23].

  • HDI v HJQ [2020] QDC 83 (14 May 2020) – Queensland District Court
    Abuse of Process’ – ‘Appeal’ – ‘Non-fatal strangulation’ – ‘Parenting proceedings’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Systems abuse’ – ‘Variation of protection order

    Proceedings: Appeal of a decision to order a permanent stay of an application to vary a protection order.

    Issues:

    • Does a Magistrate have power under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act) to order a stay of an application under the Act as an abuse of process?
    • Should the application to vary the protection order be allowed, dismissed or referred back to the Magistrates Court for further hearing?

    Facts: The male appellant respondent (appellant) and female respondent aggrieved (respondent) were married for 23 years and had two children together. They separated after an alleged incident of choking, the respondent applying for a Protection Order under the DFVP Act. A Temporary Protection Order, including the children as named persons, was granted and the matter was set down for a hearing. The respondent then applied to vary its terms, seeking an order ousting the appellant from the former matrimonial home (this was later dismissed). The appellant then filed a cross application seeking a Protection Order against the respondent, but this was later withdrawn. At the hearing, the Magistrate accepted the respondent’s evidence and rejected the applicant’s version of events regarding the choking incident, making a two-year Final Protection Order. Two applications were then made to vary the Final Order, one by the appellant (to set aside the Order) and one by the respondent after the appellant breached the Order, in response to which a Magistrate made a Second Temporary Order against the appellant. The appellant then made a second application for a Protection Order against the respondent.

    At the hearing of these last three applications, the Magistrate ordered that: the appellant was guilty of breaching the Final Order, the appellant’s application to vary be dismissed, the Second Temporary Order be revoked and replaced with a Varied Order, and the appellant’s Second Application for a Protection Order be adjourned. The appellant appealed these orders. At the hearing for the appellant’s Second Application for a Protection Order, the respondent sought that the application be estopped or stayed for abuse of process. The Magistrate agreed that the application constituted an abuse of process and it was permanently stayed.

    The appellant further applied to vary the Varied Order. The Magistrate granted a permanent stay of this application on the ground that it was an abuse of process. The appellant appealed this decision on numerous grounds, including that the Magistrate erred in: a) allowing an oral application to permanently stay the application to vary on the basis it was an abuse of process, and b) not allowing the application to vary to proceed to full hearing.

    Judgment: The judge held that the Magistrate had no jurisdiction to order a permanent stay and therefore that the order to stay had to be set aside as a nullity. Her Honour found that the DFVP Act and Rules provide expressly or by implication for applications that are an abuse of its process to be summarily dismissed by the Magistrates Court, but there is no express reference to a power to stay such proceedings on these bases [75], [77], [83]. After examining several pieces of legislation, Her Honour also found that there was no explicit power to order a stay of an application under the DFVP Act [91], and that such a power did not need to be implied for the effective exercise of the jurisdiction to summarily dismiss applications that are an abuse of court process [94].

    However, Her Honour noted that, as an appellate court, it had the power to allow, dismiss or refer the application to vary back to the Magistrates Court [99]. Reviewing all the material before her, Her Honour held that, while there was no basis to allow the application in full, two variations ought to be made to the Varied Order, both minor [103].

  • Rathbone v Commissioner of Police [2020] QDC 76 (30 April 2020) – Queensland District Court
    Appeal against sentence’ – ‘Manifestly excessive’ – ‘Mitigating factor’ – ‘People with mental illness’ – ‘Rehabilitation’ – ‘Separation’ – ‘Threats of suicide

    Offences: Contravention of DVO x 7; Wilful damage; Obstruct police officer; Serious assault; Attempted stealing

    Proceedings: Appeal against sentence

    Issue: Whether the appellant’s sentence was manifestly excessive.

    Facts: The appellant man committed a series of offences in the course of an attempt to commit suicide by having police officers shoot him. The offences occurred in the context of the recent and highly distressing breakdown of his marriage. The appellant approached a police officer and assaulted her from behind, restraining her, pushing her against the police vehicle and attempting to remove her firearm from her holster (Attempted stealing). Other police officers intervened and restrained the appellant. He was arrested and later released on bail. After his release, he attended the police station and provided a personal apology and a gift, recognising the distress he caused to the officers.

    While the appellant was in custody, his wife obtained a Temporary Protection Order which included a condition that he have no contact with her. He contravened this order and sent his wife short emails or text messages expressing affection for her and his desire to continue their relationship.

    The appellant further applied to vary the Varied Order. The Magistrate granted a permanent stay of this application on the ground that it was an abuse of process. The appellant appealed this decision on numerous grounds, including that the Magistrate erred in: a) allowing an oThe appellant entered early pleas of guilty to all charges, was convicted and received the following sentences:

    • Contravention of a domestic violence order offences – fined $750 and no conviction was recorded
    • Wilful damage – convicted but no further penalty imposed
    • Obstruct police officer – fined $500 and no conviction was recorded
    • Serious assault – 2 months’ imprisonment, wholly suspended, for an operational period of 9 months and the conviction was recorded
    • Attempted stealing – 3 months’ imprisonment, wholly suspended, for an operational period of 9 months and the conviction was recorded.

    The appellant appealed the sentences for Serious Assault and Attempted stealing on grounds that they were manifestly excessive, and the sentencing judge erred by not giving sufficient weight to the sentencing principle of rehabilitation.

    Held: The judge allowed the appeal and referred the matter back for re-sentencing, holding that the imposition of a period of imprisonment was manifestly excessive. His Honour accepted that rehabilitation was a significant consideration in this case and the sentencing judge did not appropriately include it in his determination of a proper sentence [68]. Rather, the sentencing judge, by imposing a custodial sentence, "negatived [the rehabilitation considerations], in that they were excluded specifically with regard to their value" [69] and therefore the judge did not "fully consider and balance the issue of rehabilitation, in relation to the penalty imposed" [70].

    In considering whether the appeal should be allowed, His Honour accepted a psychiatrist’s report that confirmed a "causal relationship between the appellant’s acute adjustment disorder with suicidal ideation upon the sudden breakdown of his marriage which led to the commission of the offences" [12]. His Honour also accepted that the appellant had exemplary antecedents and there was a negligible need for deterrence and punishment. The appellant further had a reduced moral culpability (having regard to the principles in R v Yarwood [2011] QCA 367).

    His Honour ultimately accepted that the appellant’s rehabilitation and employment were likely to be adversely affected by a sentence of imprisonment and the recording of a conviction due to his inability to travel internationally to complete his PhD studies, and his vulnerable psychological state would be adversely impacted by such a sentence [13]. His Honour further concluded that "It was significant that [his two step-daughters – ie: children of his former wife] constituted part of the appellant’s support network available to the appellant" [32].

  • DYN v Queensland Police Service [2020] QDC 47 (27 March 2020) – Queensland District Court
    Appeal against sentence’ – ‘Breach of protection order’ – ‘Children’ – ‘Controlling, jealous, obsessive behaviours’ – ‘Error of law’ – ‘Guilty plea’ – ‘History of abuse’ – ‘Manifestly excessive’ – ‘Persistent menacing conduct’ – ‘Sentencing considerations’ – ‘Separation’ – ‘Threat to kill

    Charges: Contravening a domestic violence order (aggravated offence) x 2.

    Case type: Appeal against sentence

    Facts: The appellant man pleaded guilty to 2 charges of contravening a domestic violence order (aggravated offence) and was sentenced to 18 months and 12 months imprisonment respectively, to be served concurrently with each other, but cumulative on a term of imprisonment that he was already serving. At the time of the offending, he was separated from the complainant, and was subject to a protection order which required him to be of good behaviour, not to approach the complainant woman within 50m and not to contact her. During their 8-year relationship, they had a child.

    Issue: The issues on appeal were whether the sentence imposed was manifestly excessive because the learned magistrate erred by:

    • Placing too much weight on the appellant’s criminal history;
    • Failing to properly take into account the appellant’s plea of guilty by not setting a parole eligibility date at a point sooner than one half;
    • Miscalculating the setting of the parole eligibility date; and
    • Failing to take into account the principles of totality such that the sentence imposed was proportionate to his offending.

    Held: Morzone QC DJC allowed the appeal and substituted the terms of imprisonment with 12 months for Charge 1 and 15 months for Charge 2. The appellant contravened the domestic violence order by texting and calling the complainant excessively, and by engaging in physically intimidatory and aggressive behaviour by going to the complainant’s home at night, rushing at her, bashing the window and later making a death threat over the telephone despite police interest. Whilst the offending did not involve physical violence, it was serious in that it involved "persistent menacing conduct in serious breach of the no contact and geographical limiting conditions" of the protection order. His Honour acknowledged the prevalence of domestic violence in the community, and was particularly concerned about the continuation of violence despite police or court intervention by protection orders ([22]-[23]). Further, the appellant’s previous convictions for like offences, especially against the complainant, were found to be an aggravating factor as it showed that his attitude of disobeying the law was not isolated ([26]). His Honour therefore held that imprisonment was the necessary punishment, and that 12 and 15 months imprisonment would provide "appropriate moderation according to the sentencing considerations and balancing aspects of specific deterrence, and further rehabilitative processes serving out the sentence within the community under the auspices of parole" ([31]).

  • R v Skey [2020] QDC 27 (9 March 2020) – Queensland District Court
    Choking’ – ‘Evidence’ – ‘Evidence by video-link’ – ‘Pre-recording evidence’ – ‘Special witness declaration’ – ‘Strangulation’ – ‘Support person’ – ‘Victim experience of court processes

    Proceedings: Application for orders to permit the complainant to give evidence over video-link, for her to be supported by another person when she testified, and to have her evidence recorded before the commencement of the trial.

    Issue: The correct interpretation of s21A of the Evidence Act 1977 (Qld)

    Facts: Defendant man was charged with choking his female partner without consent and was convicted and sentenced to imprisonment. A week before trial, the prosecution made an application for orders to permit the complainant to give evidence over video-link, for her to be supported by another person when she testified, and to have her evidence recorded before commencement of the trial. The defendant opposed the victim giving evidence over video-link and the pre-recording of her evidence.

    Judgment: Cash DCJ made orders permitting the complainant to testify at the trial over video-link and with a support person.

    The Court rejected the Prosecution’s submission that "by not enacting a requirement to show likely disadvantage or trauma in section 21A(1)(d), parliament intended there to be a presumption of disadvantage which is itself sufficient to warrant departure from normal procedures". This submission was rejected for two reasons. First, the common law principle "that the defendant in a criminal trial should be confronted by their accuser in order to challenge their evidence was not displaced by s12A". Second, "there is nothing in s21A which compels the conclusion that any of the measures permitted by section 21A(2) are to be adopted automatically for any special witness" [9].

    Regarding the order to permit giving evidence via video-link, the judge was satisfied that the capacity of the complainant to give evidence would be improved if she did not give the evidence in the defendant’s presence. The Court rejected the defendant’s submission that the defendant would suffer ‘impermissible disadvantage’ if evidence was given over video-link and provided that there is research to suggest that an average person’s ability to detect lies based on ‘demeanour’ is little better than chance.

    The judge rejected the Crown’s request to pre-record the evidence as His Honour "not prepared to assume that a retrial would be such a likely outcome as to justify the order sought" [20].

  • EPN v Queensland Police Service [2020] QDC 34 (4 March 2020) – Queensland District Court
    Appeal against sentence’ – ‘Contravening domestic violence order’ – ‘Female offender’ – ‘People affected by substance misuse’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with poor literacy skills’ – ‘Plea of guilty’ – ‘Property damage’ – ‘Separation

    Charges: Contravening domestic violence order x 1; dangerously operating a motor vehicle x 1

    Case type: Appeal against sentence

    Facts: The appellant wife offended by contravening a domestic violence order and dangerously operating a motor vehicle, whilst being adversely affected by an intoxicating substance. Both offences arose out of the same incident at the residence of the complainant, the appellant’s estranged husband. The appellant migrated from Thailand and could not read or write in English. On the date of the incident, the appellant attended the complainant’s residence in contravention of the protection order and caused extensive damage to the property by driving her car into the front wall of the house. The appellant pleaded guilty and was ultimately sentenced to 18 months’ imprisonment and 18 months driving disqualification.

    Issue: The appellant appealed the sentence on the grounds that it was manifestly excessive because:

    • The learned Magistrate mischaracterised the nature and extent of the offending conduct;
    • The learned Magistrate misdirected himself by considering that appellant offending fell within in the same broad category of the comparative cases; and
    • Taking into account the period of pre-sentence custody, the period of time to be served in actual custody was excessive.

    Held: Morzone QC DCJ found that the learned Magistrate mischaracterised the offending as falling in the most serious of categories. Although the appellant used the vehicle as a weapon, it did not fall within ‘the most serious of categories where an offender weaponises a vehicle in a direct personal attack with potential serious injury of an unprotected victim’. The offending occurred in the context of a volatile marriage breakdown, where she moved out of the matrimonial home and went on ‘a rage of wilful destruction of matrimonial assets whilst intoxicated’. The appellant willingly caused extensive damage, with the potential of indirectly causing injury to the complainant. Morzone QC DCJ held that the offending was aggravated by her intoxicated state, domestic violence and contravention of the protection order ([33]).

    Further, the learned Magistrate referred to 5 cases in his decision as to the appropriate penalty. Morzone QC DCJ considered each case in light of the appellant’s offending ([40]-[50]. The cited cases were distinguishable from the appellant’s offending as they involved the serious feature of a direct personal attack with a vehicle being used as a weapon on an unprotected victim. As the applicant’s offending did not fall within the same serious category, such cases could not provide any comparative guidance ([50]).

    Morzone QC DCJ also held that the learned Magistrate erred by failing to take into account some material considerations and the suitability of a suspended sentence ([64]). His Honour considered the nature and extent of the offending and mitigating factors, such as lack of criminal history, good character, guilty plea, demonstrated remorse, and cooperation with police. Whilst the appellant clearly ‘deserved’ a prison sentence, which would further the sentencing principles of punishment, and personal and general deterrence, the learned Magistrate ought to have considered the possibility of a suspended sentence. The appellant’s conduct was contextual and situational, she did not require close supervision upon release into the community, and she actively took steps to self-rehabilitate and refrain from alcohol ([63], [71]).

    Consequently, Morzone QC DCJ allowed the appeal and varied the sentence by making the prison term partly suspended after the appellant serves 60 days imprisonment.

  • BKA v Commissioner of Police [2020] QDC 10 (19 February 2020) – Queensland District Court
    Breaches of protection orders’ – ‘Guilty plea’ – ‘History of domestic and family violence’ – ‘Lengthy criminal history’ – ‘Protection order’ – ‘Sentencing considerations

    Charges: 1 x contravention of a Domestic Violence Order (DVO)

    Case type: Appeal against sentence

    Facts: The appellant man was convicted, on his own plea of guilty, of one offence of contravention of a DVO, and was sentenced to a term of 6 months’ imprisonment, cumulative on the terms of imprisonment he was then serving relating to domestic violence offences against the same woman. The contravention in question was attending the home of his former partner (the protected person) when subject to a protection order. She was clearly scared, being found by attending police hiding in a manhole in the ceiling. The present offending occurred whilst on parole and very shortly after being granted parole ([16]).

    The appellant had an ‘unenviable criminal history’ and had been imprisoned for drug and violent offences, and had been re-sentenced on numerous occasions for breaches of bail, suspended sentences and an intensive correction order ([8]).

    Issue: The sentence was manifestly excessive. Three specific errors were alleged:

    • The learned Magistrate erred by not inviting submissions on a cumulative sentence
    • The learned Magistrate failed to take into account the totality when setting the parole eligibility date; and
    • The learned Magistrate erred by setting a parole eligibility date at the full-time date of the appellant’s current sentence.
    Although the submissions largely focused on the parole eligibility date, it was also contended that the head sentence should have been ordered to be served concurrently ([2]-[4]).

    Held:

    Byrne DCJ allowed the appeal, set aside the order of the sentencing Magistrate insofar as it related to the appellant’s parole eligibility, and ordered that the appellant be eligible for parole on the date of the delivery of the judgment instead ([27]). Byrne DCJ accepted that it was an error to impose the cumulative sentence without first inviting submissions as to that possibility. It was noted at [18] that the Magistrate raised concerns about imposing another suspended sentence given the appellant’s past history of breaching such orders, but did not raise the possibility of ordering that the term be served cumulatively on the current period of imprisonment. According to Byrne DCJ, if the Magistrate did this, it would inevitably have elicited submissions as to the appropriate point for parole eligibility. It could not be said that this was an ‘error without consequence’.

    The offending clearly affected the aggrieved’s safety and welfare, although the appellant did not inflict any actual physical violence on her on that occasion. Given that the offending occurred so soon after the appellant had been released on parole for offending involving the same woman, and in light of the need for specific deterrence given the appellant’s history for breaching court orders, Byrne DCJ held that a head sentence of 6 months cumulative on the period of imprisonment the appellant was already serving was appropriate ([19]). However, the extension of the parole release date was excessive, especially in light of the head sentence of 6 months. His Honour considered that this in itself would be sufficient grounds to allow the appeal ([21]). The lengthy deferral of the parole eligibility date failed to reflect the appellant’s guilty plea, that he did not inflict any physical violence and that he had served about 3 months of pre-sentence custody that could not be declared as time already served under the sentence ([24]).

  • Baker v Queensland Police Service [2019] QDC 258 (17 December 2019) – Queensland District Court
    Animal abuse’ – ‘Domestic violence order’ – ‘History of contravention’ – ‘Mitigating factors

    Charges: Contravention of a domestic violence order (aggravated offence) x 1; Possessing dangerous drugs x 4; Failure to appear in accordance with an undertaking x 1.

    Case type: Appeal against sentence

    Facts: The appellant was convicted and sentenced for contravening a domestic violence order during the operational period of a suspended sentence. He was also sentenced in relation to other drug and violence offences. The appellant hit the aggrieved (whom the order was made in favour of) during an argument. The strike caused a small cut to her lip. The appellant then left the address but shortly returned holding a crate and threatened to bash her dog. The couple had another argument later in the evening before the aggrieved escaped and called police. The appellant denied being at the address and hitting the aggrieved when later questioned.

    The appellant filed his notice of appeal five weeks late. The delay was not significant and was caused by the appellant’s attempts to seek legal advice.

    Issue: Whether the sentence imposed was excessive.

    Decision and reasoning: The court found that the sentence was not excessive and dismissed the appeal.

    The appellant relevantly argued that the contravention offence was his first breach of a domestic violence order against this particular complainant however, Fantin DCJ observed at [41] ‘The fact that this was the appellant’s first contravention against this particular woman is not a matter in his favour. What is relevant is that he had previously been convicted on earlier occasions of breaching domestic violence orders and of domestic violence offences, but continued to reoffend.’

  • CTC v Commissioner of Police [2019] QDC 250 (29 November 2019) – Queensland District Court
    Domestic violence order’ – ‘Following, harassing and monitoring’ – ‘Manifestly excessive’ – ‘Mitigating factors’ – ‘Physical harm and violence’ – ‘Pregnant people’ – ‘Separation’ – ‘Sexual and reproductive abuse

    Charges: Contravention of a domestic violence order

    Case type: Appeal against sentence

    Facts: The complainant and applicant were married but did not live together. The complainant was pregnant with their second child at the time of offending and there was a domestic violence order in place preventing the applicant from engaging with the complainant in any way without her consent. On the day of the offending, the applicant had become enraged and assaulted the complainant after finding communications between her and another male on her phone. The attack left the complainant with a swollen and cut lip.

    The applicant pleaded guilty to the charge and was originally sentenced to three months imprisonment wholly suspended for two years with the conviction recorded.

    • The sentence was manifestly excessive;
    • The learned magistrate erred in failing to have proper regard to the principles of ‘parsimony’; and
    • The learned magistrate failed to give due weight to the appellant’s mitigating circumstances.

    Issues: Whether the sentence was manifestly excessive and whether the magistrate erred in his reasoning.

    Decision and reasoning: Jarro DCJ concluded that the sentence imposed was not excessive.

    Ground 1: ‘The applicant came before the court with a relevant criminal history. He is a mature man. He used actual violence and a physical injury was sustained by the complainant, albeit of a limited nature. The offending was aggravated as the complainant was 23 weeks pregnant at the time and the violence was unprovoked’ (pg 5). In considering these aggravating features and the need for general deterrence to be reflected in the sentence given the prevalence of domestic violence in the community, Jarro DCJ considered the sentence imposed to be within the appropriate range.

    Ground 2: Jarro DCJ provided that ‘the principle of "parsimony" is not a governing principle used in the exercise of discretion in sentencing and therefore the sentencing judge was not in error by not having regard to the principle.

    Ground 3: Jarro DCJ found that the magistrate appropriately balanced the applicant’s mitigating circumstances against the applicant’s aggravating factors and the need for deterrence.

  • AMB v TMP & Anor [2019] QDC 100 (21 June 2019) – Queensland District Court
    Children’ – ‘Emotional and psychological abuse’ – ‘Insults’ – ‘Protection order

    Charges: Domestic violence charges, resulting in a Domestic and Family Violence Protection Order

    Case type: Appeal against making of order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld)

    Facts: The appellant challenged a decision made pursuant to s 37 Domestic and Family Violence Protection Act 2012, granting the aggrieved a protection order for 5 years. The order was made after a contested hearing. The aggrieved claimed that she was not in a relationship with the appellant, but that they had a daughter. Her affidavit provided details about her contact with the appellant, which involved insults by him and several unpleasant interactions, including via text ([16]).

    Issue: The appellant appealed the decision on the ground that the learned magistrate erred in finding that 1) the appellant committed domestic violence against the aggrieved within the meaning of Part 2, Division 2 of the Act; and 2) the protection order was necessary or desirable to protect the aggrieved from domestic violence pursuant to s 37 of the Act.

    Held: The appellant submitted that the evidence did not support a finding of domestic violence, and that the magistrate erred in relying on the evidence as the credit of the aggrieved was fatally damaged ([23]-[24]), [35]).

    Kent DCJ dismissed the appeal. The magistrate’s analysis relied on uncontentious matters. Given the fact that the appellant did not deny sending the various text messages and that they clearly showed insulting language, the credit of the aggrieved was not central to the analysis and result ([35]). It was somewhat difficult to assess whether the events constituted domestic violence in the form of emotional abuse because there appeared to be a mutual exchange of insults between the parties ([36]). Where the communication between the parties involves the ‘trading’ of insults, it is more difficult to conclude that mere insults amount to ‘emotional abuse’. In his Honour’s opinion, insults ‘fall on a continuum of seriousness, from completely trivial to very serious; and at a certain point on the continuum it becomes clear that emotional abuse is involved’ ([37]).

    The Court held that there was no appealable error by the magistrate. There was no error demonstrated in any step set out in MBE v MLG in that: 1) there was a risk of future domestic violence, which was more than a mere possibility; 2) there was a need to protect the aggrieved from that risk; and 3) an order was necessary or desirable, particularly considering the factors in s 4(1) ([41]).

  • CSN v The Queensland Police Service [2019] QDC 43 (3 April 2019) – Queensland District Court
    Imprisonment’ – ‘Obstruct police’ – ‘Protection orders’ – ‘Sentencing

    Charges: Obstruction of a police officer x 1.

    Case type: Appeal against sentence.

    Facts: The appellant pleaded guilty to one charge of obstructing a police officer, for which he was sentenced to 4 months’ imprisonment with immediate parole release. It was alleged that the appellant made previous threats to kill his ex-wife and daughter. When the police came to his house to serve him with a police protection notice, he became aggressive and verbally abusive. The police feared a risk of serious injury, even though the appellant was not armed. He fled the property, maintaining that ‘he was not going to be served with anything and was throwing his phone away’. When he returned to the property, he continued to be abusive towards the officers. He was restrained and arrested for obstructing police ([5]-[9]). The Magistrate regarded the offence to be ‘amongst the most serious of obstruct police charges, given the facts presented here and the escalation of the situation’, and sentenced the appellant to 4 months’ imprisonment with an immediate parole release ([20]-[21]). The appellant appealed against the sentence on the ground that it was manifestly excessive and that the Magistrate had overestimated the seriousness of his offending behaviour.

    Issue: The issue is whether the sentence that the Magistrate imposed was excessive having regard to the circumstances of the offending, the appellant’s antecedents, his prior criminal history, his mental health issues, his endeavours to rehabilitate and other relevant sentencing principles and guidelines ([29]).

    Held: McGinness DCJ noted the appellant’s extensive criminal history, which commenced when he was a child and included breaching domestic violence orders, common assault and stalking ([10]). The offence was found to have serious features, including the nature of the appellant’s verbal abuse, his actions of leaving the property and saying he would continue to refuse service of the protection order. However, the Magistrate’s finding that the offence was ‘amongst the most serious of obstruct police charges’ was an error which led to the sentence imposed being excessive ([31]). The appellant did not physically struggle with the police, and complied with police directions once he returned to the house. He also was not armed. His Honour noted that the offending must be viewed against the appellant’s mental health issues at the time of offending, and childhood histories of sexual abuse at the hands of authoritative figures in a custodial setting. Other relevant factors include his genuine efforts to receive treatment and rehabilitate ([32]). Therefore, because of his criminal history, financial circumstances and his continuing efforts to rehabilitate, a probation or community service order would have been within range. His Honour allowed the appeal, and varied the sentence to 2 months’ imprisonment suspended forthwith for operational period of 2 months. Even though, at first glance, this order could be mistaken for ‘tinkering’, his Honour maintained that reducing the sentence to 2 months was substantial ([33]).

  • JWD v The Commissioner of Police [2019] QDC 29 (8 March 2019) – Queensland District Court
    Bail’ – ‘Breach protection order’ – ‘Double jeopardy’ – ‘Double punishment’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Sentencing considerations’ – ‘Technology facilitated abuse

    Charges: Four charges including stalking and using a listening device in breach of a domestic violence protection order, and breach of a bail condition.

    Case type: Appeal against conviction. Application for extension of time.

    Facts: The applicant and complainant had previously been in a relationship. The first charge related to the use of a listening device to record a private conversation, which the applicant installed in the complainant’s vehicle during the course of their relationship. The final three charges occurred when the relationship had apparently ended. As the complainant prepared to go to sleep one night, she noticed the applicant standing on her patio, peering through a bedroom window. The behaviour was in breach of a domestic violence protection order and constituted stalking. Further, it was aggravated by being in breach of court orders ([9]-[12]).

    The Magistrate took into account the fact that the applicant was 47 years old, had no relevant criminal history and was a New Zealand native. He obtained a tertiary qualification and stable employment. He also had a number of positive references attesting to his good character and sought counselling while in custody. Her Honour placed the applicant on three years’ probation. No conviction was recorded, except for the offence of unlawful stalking, as it was the most serious charge ([14]-[16]).

    The applicant sought an extension of time within which to appeal, arguing that the delay was attributable to administrative error and was relatively short ([5]). It was argued that the three concurrent probation orders in relation to the stalking, contravention of the domestic violence order and breach of bail, amounted to double punishment contrary to s 16 of the Criminal Code (Qld).

    Issues: Whether the sentence was manifestly excessive and offended the prohibition on double punishment for the same act.

    Decision and reasoning: The Court allowed the appeal and granted the extension of time. The Court held that the Magistrate’s conclusion as to recording of a conviction was free from appealable error. The probation orders for the contravention of a domestic violence order and breach of bail condition were set aside as double punishment. The applicant was convicted and not further punished. Moreover, the sentencing discretion was found to have miscarried in relation to the offence of using a listening device – an offence with a maximum penalty of only two years’ imprisonment and which was relatively minor in the circumstances. The sentence imposed for that offence was reduced from three years’ probation to two years’ probation, with no conviction recorded ([22]-[25]).

  • CBC v Queensland Police Service [2019] QDC 3 (30 January 2019) – Queensland District Court
    Aboriginal and Torres Strait Islander people’ – ‘Appeal against sentence’ – ‘Female perpetrator’ – ‘History of domestic violence’ – ‘Parole eligibility date’ – ‘Parole release date’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Victim as (alleged) perpetrator

    Charges: 1 x grievous bodily harm, 1 x assault occasioning bodily harm, 1 x contravention of a Domestic Violence Order (DVO), and a further contravention of a DVO (aggravated)

    Case type: Appeal against sentence

    Facts: In 2016, the appellant, an Aboriginal woman, was convicted on her guilty plea to domestic violence related offences, namely, grievous bodily harm, assault occasioning bodily harm, contravention of a DVO and a further contravention of a DVO (aggravated offence). When the appellant was released from parole, she formed an intimate relationship with the aggrieved. Their relationship was characterised by alcohol-fuelled domestic violence, which led to its termination ([5]-[7]).

    A protection order was issued in 2018, prohibiting the appellant from "following or approaching the aggrieved". The appellant breached this order by attending the aggrieved’s home while he was inside ([9]). The Magistrate sentenced the appellant to 1 month imprisonment to be served cumulatively upon a pre-existing 3 year sentence, with immediate release on parole. The prosecution applied to reopen the sentence on the basis that a parole eligibility date was required by s 160C Penalty and Sentences Act 1992 (Qld). The sentence was reopened in the appellant’s absence and without hearing further substantive submissions about the offending conduct and mitigating circumstances. The Magistrate amended the sentence by fixing a parole eligibility date in lieu of a parole release date ([12]). The appellant was arrested and returned to custody ([13]).

    Issue: The appellant appealed the sentence on the grounds of manifest excessiveness. Other grounds were raised in her submissions, such as breach of natural justice and jurisdiction to reopen the sentence ([14]-[15]).

    Held:

    In Morzone DCJ’s view, the Magistrate ‘erred in exercising the sentencing discretion by initially mistaking the facts, then allowing erroneous or irrelevant matters to guide or affect him in re-opening the sentence without regard to matters of totality, and failing to take into account some material considerations as to the nature and extent of the offending’. The sentence was therefore unreasonable and plainly unjust ([37]). While the appellant had previous convictions for serious violent offences, and had reoffended while on parole for those offences, her offending was comparatively trivial and did not involve actual contact with, or any violence towards, the aggrieved ([42]). However, she has found herself in prison as a result of her ongoing alcohol mismanagement. The current offending was at the lowest end of the range, and imprisonment was found to be disproportionate to the seriousness of the offending and ‘too crushing’ on the appellant ([44]). Consequently, the appeal was allowed and the Magistrate’s orders were set aside. The appellant was convicted, but not further punished for the offence ([45]).

  • ODE v AME [2018] QDC 277 (13 December 2018) – Queensland District Court
    Application for a stay of judgment’ – ‘Principles as to grant or refusal’ – ‘Stay of proceedings’ – ‘Systems abuse

    Appeal type: application for a stay of a judgment given in the Magistrates Court.

    Facts: On 20 September 2018, Magistrate Strofield declined to grant a protection order for the benefit of the applicant (ODE) against the respondent (AME) on the basis that his Honour wasn’t satisfied that it was necessary or desirable to make one, as required under s 37(1)(c) of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) (see [3]). ODE appealed that decision to the Queensland District Court; she filed a notice of appeal on 9 November 2018 and within it outlined seven grounds of her appeal (see [5]). On that same date, a stay application was brought in the form of an application for a temporary protection order pending hearing of the other appeal. Judge Richards stayed the decision of Magistrate Strofield on 9 November until 23 November 2018 at which time Judge Koppenol dissolved the stay order (see [6]-[7]). This was likely due to the fact he wasn’t satisfied the appeal was of any merit (see [6]-[7]). A further stay application was filed on 6 December 2018 with the aim of extending the temporary protection order until the appeal by staying Magistrate Strofield’s decision to refuse to make a final protection order ([8]).

    Issues: The applicant sought a stay on two main grounds. First, her affidavit (filed on 6 December 2018) extended on the points raised in her notice of appeal concerning the merits of her appeal. Second, the respondent had perjured himself in the proceedings before the Magistrate.

    Decision and reasoning: application dismissed, appellant restrained from making any application in relation to the proceeding without leave from the court, and the appellant was ordered to pay the respondent’s costs of the application.

    As to the first ground of appeal, Porter QC DCJ explained to the applicant that where a party has applied for a stay but failed and then applies again, it is usually required that the party establish some new matter that has emerged since the last refusal to “justify a second bite at the cherry” ([11]). The applicant accordingly pointed to two matters. The first was that since the judgment on 23 November 2018, the respondent had committed further acts of domestic violence by not returning certain belongings to her (see [8]). Porter QC DCJ dispensed with that matter in stating that the respondent’s conduct didn’t comprise acts of domestic violence and noting the respondent’s actual willingness to return the belongings (see [13]). The second point was that the emails relating to the couple’s daughter and her recent experience in hospital indicate the respondent was involved in acts of domestic violence. After examining the relevant extracts in the circumstances of the case, Porter QC DCJ could see no way in which they would amount to domestic violence on the respondent’s part as defined in the DFVPA.

    Finally, his Honour couldn’t see a way in which it could be concluded there was perjury arising out of the proceedings before the Magistrate.

  • CPD v Ivamy & Anor [2018] QDC 244 (5 December 2018) – Queensland District Court
    Appeal against protection order’ – ‘Family law’ – ‘Necessary or desirable test

    Appeal type: appeal against a protection order.

    Facts: On 28 October 2015, in seeking parenting and property orders, the second respondent brought Family Court proceedings against the appellant. An incident on 1 November 2015 led to the making of a temporary protection order on 3 November 2015; the second respondent and the couple’s two children were named as the aggrieved. The order included the respective usual conditions: a “no contact” condition and an “ouster” condition under ss 56, 57 and 63 of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) (see [21]). There was, however, an exception that allowed for communication via text between the appellant and second respondent with the appellant’s mother acting as the conduit between them (see [21]). The appellant soon applied to vary the order to remove the children’s names ([22]). The application was heard by the Magistrate on 9 December 2015; the second respondent consented to the variation but the police prosecutor denied ([24]). On 18 February 2016, following a mediation in the Family Court proceedings, a resolution as to the parenting and property orders was reached. 11 days later, final consent orders were made by the Family Court to the effect that the original exception to the order was removed and replaced with an allowance for direct communication via email. Both parties also agreed to try to remove the protection order. However, the police prosecution refused the second respondent’s application to remove the order. On 11 March 2016, the domestic violence hearing listed to commence on 14 March 2016 was adjourned so as to provide the appellant with the opportunity to make submissions for the discontinuance of the order. After a four-day summary trial, extending over March and April 2017, the Magistrate gave ex tempore reasons on 10 November 2017 and ultimately granted a five-year protection order against the appellant (see [34]-[47]).

    Issues: the appellant’s grounds of appeal were two-fold. First, the Magistrate erred in finding that the emails sent by the appellant’s mother and the conduct of the trial by his counsel constituted further acts of domestic violence. Second, the protection order was not necessary or desirable to protect the second respondent and the children from the appellant.

    Decision and reasoning: appeal allowed and the protection order was therefore set aside and the matter was remitted to another Magistrate for re-hearing.

    His Honour, after reviewing the exchange of emails between the appellant’s mother and second respondent, concluded that the Magistrate’s finding that the appellant was behind the tone and wording of the emails was based on speculation and not open on the evidence (see [50]-[57]). As to the second part of this ground of appeal, his Honour expressed the view that counsel is entitled to exercise their discretion on how to handle a matter and the Magistrate’s characterisation of the appellant’s counsel’s cross-examination of the second respondent as an act of domestic violence was erroneous. The first ground of appeal was therefore allowed.

    The second ground of appeal was allowed. His Honour felt that the Magistrate, in coming to their finding on the necessary or desirable condition, failed to consider the material matters such as the fact that the tension between the Magistrate’s courts undertakings and the Family Court had resolved in April 2017 and the appellant’s mother was no longer acting as a conduit and thereby no longer “inflaming” the relationship (see [66]). Accordingly, his Honour concluded that the Magistrate erred in granting the protection order.

  • NVZ v Queensland Police Service [2018] QDC 216 (12 November 2018) – Queensland District Court
    Breach of domestic violence order while in custody’ – ‘Factors affecting risk’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Threat to kill

    Charges: Contravening a domestic violence order x 1.

    Appeal type: Appeal against sentence.

    Facts: During proceedings before the Magistrates Court in which a temporary protection order was made, the appellant threatened to kill the aggrieved and her children. The appellant pleaded guilty to one charge of contravening a domestic violence order. He was sentenced to nine months’ imprisonment with an immediate parole eligibility date and 36 days of pre-sentence custody declared as time served. The appellant appealed against the sentence on the basis that it was manifestly excessive.

    Issues: The appellant submitted that the sentence was excessive having regard to his psychiatric condition, the principles of totality and the comparable case tendered by defence which, in combination with his personal circumstances, supported a shorter head sentence.

    Decision and reasoning: The appellant relied on R v Goodger [2009] QCA 377 as justification for a reduction in sentence because of his reduced moral culpability. However, that case was not authority for the proposition that the sentence must be reduced by reason of a psychiatric condition [50]. Kefford DCJ held that there was no compelling evidence that the appellant’s condition at the date of sentencing meant that continued incarceration would have more of an impact on the offender than it would on a person of normal health. There was nothing to suggest that there was a serious risk that imprisonment would have adverse effects on the appellant’s mental health. Accordingly, the sentence imposed was not excessive in the circumstances, even though the offending occurred at a time when the appellant could not act on the threats made (as he was in custody) ([71]).

    The appellant’s criminal history illustrated his general disregard for the law and court orders. An aggravating circumstance was the fact that he offended whilst in the confines of a court room, demonstrating disrespect not only for the complainant but also the Court ([72]). The sentencing principle of protection to the Queensland community from the offender was significant, given the appellant’s vulgar and bold threats to the aggrieved in the presence of the Court. No submissions were made that indicated that the appellant had taken steps towards rehabilitation. The Court made reference to Singh v Queensland Police Service [2013] QDC 037, but did not regard that the decision was evidence that the sentence in the present case was excessive. That case was distinguishable because there were no prior convictions for violence or contraventions of a domestic violence order. It also did not involve the aggravating feature of a threat to kill delivered to the aggrieved and her children in the presence of the court.

  • Caddies v Birchell [2018] QDC 180 (4 September 2018) – Queensland District Court
    Assault’ – ‘Bail’ – ‘Extra-curial punishment’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Assault occasioning bodily harm x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant was convicted of assault occasioning bodily harm (domestic violence offence), following a two-day trial. Prior to sentencing, he lodged an appeal against conviction. Subsequently, the Magistrate sentenced the appellant to 18 months’ imprisonment on the basis that the appellant serve one half of that term in prison. The appellant appealed against this sentence and was granted bail pending the hearing. The grounds of appeal included that the sentence was manifestly excessive and that the Magistrate failed to (1) identify whether he took into account the extra-curial punishment the appellant received during the offence, in particular the broken foot caused by the complainant; (2) indicate how that extra-curial punishment was taken into account in the sentencing process (if he did take it into account); and (3) consider the appellant’s offer of compensation.

    Issues: Whether the sentence was manifestly excessive; Whether the sentencing discretion should be re-exercised to take into account the appellant’s injuries; Whether the appellant’s injuries are capable of constituting extra-curial punishment; Whether the sentencing discretion should be re-exercised to take into account the offer of compensation.

    Decision and reasoning: The Court was satisfied that the errors identified vitiated the sentence imposed by the Magistrate. There was no explanation as to the Magistrate’s consideration of extra-curial punishment and how it was taken into consideration with regard to the penalty that was imposed. There was also no explanation as to the basis upon which the Magistrate found that there was a complete lack of remorse. The Court concluded that the Magistrate fell into error when he determined that a sentence of 18 months’ imprisonment was the appropriate penalty. Having referred to comparable cases, such as R v RAP [2014] QCA 228, the Court held that the imprisonment term of 18 months was manifestly excessive. In R v RAP, Justice Wilson held that, in the case of a serious assault in a domestic setting, a sentence of imprisonment for two years or more is, ‘plainly within the proper sentencing range’ and ‘far from excessive’. Similarities between the two cases include the ages of the appellants, their prior criminal records and their otherwise good character ([47]). Although the complainants in both cases suffered physical and psychological injuries, the injuries sustained by the complainant in RAP were more significant. RAP also involved a plea of guilty, whilst this was a matter determined following two days of hearing. Reference was also made to a considerable number of cases with regard to the range that should be considered in relation to a penalty to be imposed, such as R v Pierpoint [2001] QCA 493, R v Johnson [2002] QCA 283, R v Von Pein [2001] QCA 385, R v Fairbrother; ex parte Attorney-General [2005] QCA 105, R v King [2006] QCA 466, R v George [2006] QCA 1 and R v Roach [2009] QCA 360. These cases clearly showed the considerable range of penalties and the need for an independent exercise of discretion. In light of the circumstances of this case, the appeal was allowed, the sentences set aside, the hearing adjourned for sentence on a date to be fixed and the bail enlarged.

  • RCK v MK [2018] QDC 181 (6 August 2018) – Queensland District Court
    Adjournment of application for protection order’ – ‘Costs’ – ‘Procedural fairness’ – ‘Protection order’ – ‘Sufficient evidence to justify protection order

    Appeal type: appeal against a protection order.

    Facts: At the first hearing of the proceeding, on 9 November 2017, the Magistrate considered it unnecessary to grant a temporary protection order and therefore remanded the matter to 16 November 2017. On that later date, the matter was listed for further mention and management on 18 January 2018. At this hearing, neither the parties nor their representatives were present with the exception of the aggrieved’s representative. Ultimately, the magistrate made a protection order for a period of five years in identical terms to an order made for a separate but related family matter involving the aggrieved and her brother (see [27]).

    Issues: the significant grounds of the appeal, which turned upon matters of procedure, were two-fold. First, the Magistrate erred in not adjourning the application under s 39(2)(b) of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA). Second, the Magistrate erred in finding that there was sufficient evidence to justify that the appellant had committed domestic violence against the respondent or that a protection order was necessary or desirable under s 37(1)(c) of DFVPA.

    Decision and reasoning: the appeal was allowed. The protection order was set aside, the proceeding was remitted to the Domestic and Family Violence Court to be heard and determined according to law, and each party was ordered to bear their own costs in the appeal.

    As to the first ground, the material question posed by Morzone QC DCJ was whether the respondent was denied the opportunity to be heard by the application proceedings in circumstances where it had been previously set for mention only. Applying the relevant authority on this particular issue of procedural fairness (see [37]), Morzone noted there was no adequate and reasonable explanation for the respondent’s absence. Furthermore, Morzone QC DCJ outlined six material elements of the case that his Honour believed the Magistrate ought to have considered in deciding whether to proceed to hearing or grant an adjournment (see [40]). In failing to consider these features of the case, the Magistrate was said to have misdirected herself in proceeding to hearing with the consequence that the orders ultimately made were unreasonable (see [41]).

    Given the conclusion Morzone QC DCJ reached as to the above ground of appeal, his Honour considered it unnecessary to consider the second ground of appeal (see [43]).

    Recognising that it would be inequitable for the respondent to bear the costs of the appellant’s success, Morzone QC DCJ ordered that each party ought to bear their own costs in the appeal (see [53]).

  • ECW v ECW [2018] QDC 166 (3 August 2018) – Queensland District Court
    Child welfare’ – ‘Family law issues’ – ‘Hearing of the variation application according to law’ – ‘Lack of preparation’ – ‘Protection order’ – ‘Variation of a temporary protection order

    Appeal type: appeal against variation to temporary protection order.

    Facts: A temporary protection order was issued against the applicant (Mr ECW) for the benefit of the respondent (Ms ECW) and the couple’s three children. A protection order was later made before Mr ECW applied to remove two of the children as named persons protected under the order and vary, among others, orders 3 and 8. The acting Magistrate made variations to orders 3 and 8 while dismissing the variation to the persons named in the order. Mr ECW appealed against this decision.

    Issues: did the acting Magistrate fail to hear and determine Mr ECW’s application for a variation to the protection order according to law?

    Decision and reasoning: the appeal was allowed and the matter was remitted to the Magistrate’s Court, to be heard and determined, according to law.

    Horneman-Wren SC DCJ revealed a number of issues with the way in which the acting Magistrate heard and determined Mr ECW’s application.

    As observed by his Honour, s 91(2)(a) of DFVPA provides that before a Court can vary a protection order, the court must consider the grounds set out in the application for the protection order. However, his Honour recognises that the opening remark of the Magistrate – “Okay. So, whose application is this?” – demonstrates that the Magistrate hadn’t read the grounds for the application or the materials filed by each party prior to the hearing. His Honour further noted that a plain reading of the transcript would highlight that the Magistrate didn’t read the application or affidavit materials at any stage during the hearing.

    Horneman-Wren SC DCJ also recognises that the Magistrate erred in dismissing the proposal to remove the two children from the order on the basis that they were matters for the Family Court and not for her Honour (see [32]). His Honour clarifies that the matter was not a matter for the Family Court but for her Honour (see [33]).

    The matter was remitted to the Magistrate’s court, as opposed to Horneman-Wren SC DCJ conducting the appeal as a fresh hearing, since his Honour was of the opinion that Mr ECW was entitled to have his application heard and determined in the Magistrates Court and to have appeal rights. Conducting the appeal as a fresh hearing would mean, by virtue of s 169(2) of the DFVPA, that Mr ECW would not have any such appeal rights (see [38]-[39]).

    His Honour did not set aside the Magistrate’s variation of orders 3 and 8 since the parties agreed that those variations ought to remain in the interim ([41]).

  • JMM v Commissioner of Police [2018] QDC 130 (6 July 2018) – Queensland District Court
    Appeal against sentence’ – ‘Breach domestic violence order’ – ‘Breach of procedural fairness’ – ‘Emotional and psychological abuse’ – ‘Manifestly excessive sentence

    Appeal type: appeal against sentence.

    Facts: On 4 August 2016, a protection order was made under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) against the appellant for the benefit of the aggrieved, her de facto partner, and her three children. The order only contained the standard conditions pursuant to 56 of DFVPA including a condition that the appellant must be of good behaviour towards the child, must not commit associated domestic violence against the child and must not expose the child to domestic violence. On 8 November 2018, one of the appellant’s children verbally provoked the intoxicated appellant and pointed a knife at her. The aggrieved disarmed the child, kicked him in the bottom and chased him across the street. Two witnesses recount the aggrieved and appellant hurling verbal abuse at the child. The appellant’s conduct fell within the definition of “domestic violence” under s 8 of the DFVPA since it could be classified as “emotionally or psychologically abusive” (see [45]). Accordingly, the appellant was later charged and convicted of contravention of the protection order in the Magistrate’s court. She was sentenced to 3 months imprisonment. The appellant appealed against this sentence.

    Issues: the grounds of the appeal were two-fold: sentence was manifestly excessive and there was a breach of procedural fairness in the magistrate not inviting submissions on imprisonment.

    Decision and reasoning: appeal allowed and the sentence was therefore set aside.

    The second ground of appeal was allowed. His Honour stated that the magistrate erred in denying the appellant’s solicitor the opportunity to address her on the appropriateness of the sentence of imprisonment. Denying this opportunity and imposing the sentence nonetheless constituted a breach of the rule of natural justice (see [50]). This error, amongst other errors in the Magistrate’s exercise of the sentencing discretion, lead his Honour to set aside the sentence. Accordingly, it was necessary for the appellate court to exercise the sentencing discretion afresh, unless doing so lead to the conclusion that no different sentence should be passed (see [14]).

    On the basis of the Court’s independent exercise of discretion and analysis of relevant cases, the sentence imposed was considered excessive. The respondent relied upon PFM v Queensland Police Service [2017] QDC 210 and TZL v Commissioner of Police [2015] QDC 171 in their submission that the sentence was appropriate since the offending in question was more serious than in each of those cases that yielded similar sentences (see [53]). In response, his Honour stated that the offending was not objectively more serious than in PFM and TZL and is not truly comparable and therefore of little assistance (see [54]-[58]). At the discretion of his Honour, two recent analogous cases were then considered. Taking into account those decisions and the material facts of the case, namely that the contravention involved no violence and was limited to a single instance of provoked verbal abuse, his Honour concluded that the sentence was outside the permissible sentencing range for the offender (see [64]-[65]) and ordered a sentence of probation for six months.

  • Queensland Police Service v JSB [2018] QDC 120 (28 June 2018) – Queensland District Court
    Evidence’ – ‘Fines’ – ‘Following, harassing and monitoring’ – ‘Sentencing’ – ‘Sentencing options

    Charges: Contravention of a domestic violence order x 1; Possession of a dangerous drug x 1; Breach of a bail condition x 1

    Appeal type: Appeal against sentence; Appeal by way of rehearing on the record

    Facts: The respondent and appellant were in a relationship. The respondent pleaded guilty to three charges, one of which was contravention of a domestic violence order. He was fined $1,000.

    Issues: Whether the fine of $1,000 was manifestly inadequate.

    Decision and Reasoning: Fantin DCJ dismissed the appeal. Her Honour considered the respondent’s personal circumstances and criminal history, which included 28 breaches of domestic violence orders, 18 breaches of bail conditions and other court orders ([20]). Whilst the respondent’s previous breaches of domestic violence orders were clearly relevant and increased the need for personal and general deterrence, her Honour found that it should not outweigh the low level of gravity of the offence. Taking into account the relationship between the respondent and appellant, the fact that the contravention of the domestic violence order did not involve violence and was limited to one instance of verbal abuse, that the respondent was not charged with any other offence arising from the contravention, the respondent’s early plea and cooperation with police, that the respondent had spent three days in pre-sentence custody, the activation in full of a suspended sentence of two months’ imprisonment, it was open to the Magistrate to impose the fine of $1,000 for the contravention offence ([73]). She did, however, consider that the sentence may be regarded as generous and another judicial officer may have structured the sentences differently.

  • ATJ v SLK [2018] QDC 191 (23 April 2018) – Queensland District Court
    Evidence’ – ‘Protection order

    Charges: Imposition of a domestic violence order x 1.

    Appeal type: Appeal against imposition of a domestic violence order.

    Facts: The respondent applied for a domestic violence order based on the appellant’s alleged behaviours, dating back several years and including a time prior to which a previous order was made. The application was served on the appellant two days prior to the hearing and the appellant did not attend the hearing. The only material placed before the Magistrate was the application itself. No oral evidence was given. The order was made. The appellant appealed against the decision to make the domestic violence order.

    Issues: Whether the decision to make a domestic violence order could be set aside.

    Decision and reasoning: Farr SC DCJ allowed the appeal, set aside the decision, and remitted the matter to the Magistrates Court. Whilst it appeared unlikely that the behaviour that occurred since the cessation of the previous order could justify and satisfy the test of domestic violence, even if that was the case, the Magistrate would need to take account of that prior behaviour to determine whether that might constitute domestic violence of a continuing nature, such that it is appropriate to make a second order based upon the same evidence. This was a question for that court to determine after hearing all of the appropriate evidence and submissions, and his Honour found that the present court was not in the position to make that decision ([19]).

  • S v T [2018] QDC 49 (29 March 2018) – Queensland District Court
    Fair hearing and safety’ – ‘Management of application proceedings’ – ‘Protection order’ – ‘Systems abuse

    Case type: Application for costs after an appeal against a domestic violence order.

    Facts: A protection order was made naming the respondent (T) as the aggrieved and the appellant (S) as the respondent. S successfully appealed against the order. S sought an order for T to pay her costs of the original hearing and the appeal ([1]).

    Issues:

    1. Whether s 157(2) Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’) applies to an award of costs after an appeal against a domestic violence order.
    2. Whether a costs order should be made in favour of S.

    Decision and Reasoning: Richards DCJ made no order as to costs.

    In relation to the first issue, the usual position is that each party to a proceeding for a domestic violence order bears their own costs unless the application for the protection order is ‘malicious, deliberately false, frivolous or vexatious’ (s 157(2) DFVPA). There is no equivalent section in the DVFPA in relation to appeals. However, r 142(2) DFVPA provides that the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) applies to appeals. Rule 681 UCPR states that costs follow the event unless the court orders otherwise. Richards DCJ held, applying GKE v EUT [2014] QDC 248, that the discretion to award costs should be exercised in light of s 157(2) DVFPA ([5]).

    In relation to the second issue, Richards DCJ noted that there was some suspicion that T made the application for a domestic violence order in retaliation for S complaining to the police about him or to have some sort of leverage over her. However, his Honour was unable to find that the application was malicious, deliberately false, frivolous or vexatious ([6]).

  • MKA v WKT [2018] QDC 73(28 March 2018) – Queensland District Court
    Change of venue’ – ‘Fair hearing and safety’ – ‘Legal representation and self-represented litigants’ – ‘Management of application proceedings’ – ‘People with mental illness’ – ‘Protection order’ – ‘Victim experience of court processes

    Appeal type: Appeal against domestic violence order.

    Facts: A domestic violence order was made naming the respondent (WKT) as the aggrieved and the appellant (MKA) as the respondent ([2]). MKA appealed against the decision to grant the protection order ([3]). WKT applied to change the venue of the appeal from Cairns to Southport.

    Issues: Whether the application for change of venue should be granted.

    Decision and Reasoning: The application was granted.

    WKT applied to transfer the proceedings on the grounds that:

    • she ordinarily resides in Coolangatta;
    • the proceedings at first instance were heard at Coolangatta;
    • she has been diagnosed with adjustment disorder with anxiety and depressed mood as a result of the domestic violence; and she has been unable to engage legal representation in Cairns ([12]); and
    • she cannot afford to pay her legal representation at the Gold Coast, but was hopeful of obtaining Legal Aid assistance ([13]).

    MKA opposed the transfer on the basis that:

    • his legal representatives are based in Cairns;
    • he was put to the expense of flying and accommodating them at Coolangatta in the first instance proceeding;
    • there is no evidence that a timely hearing date would be available in Southport ([14]).

    Morzone DCJ emphasised that the exercise of discretion to grant the transfer is governed by the objectives of the Domestic and Family Violence Act 2012 (Qld), one of which is to ‘…maximise the … wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives’. His Honour placed emphasis on WKT’s mental health condition, which is likely to be aggravated by the appeal proceedings ([25]-[26]).

  • ETB v Commissioner of Police [2018] QDC 26 (6 March 2018) – Queensland District Court
    Aboriginal and Torres Strait Islander people’ – ‘Breach of protection order’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sentencing - double jeopardy’ – ‘Totality

    Charges: Contravention of domestic violence order (‘DVO’) x 2; Common assault x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant and respondent were in a relationship and raised 5 children together ([14]). The first contravention of DVO occurred when the appellant swore at the appellant and threatened to slice his own throat (‘June contravention of DVO’). The second contravention of DVO occurred when the appellant verbally abused the appellant (‘September contravention of DVO’). The aggrieved slapped the appellant and told him to leave. The common assault charge occurred when, in retaliation for the slap, the appellant punched the aggrieved in the head and ear (together, ‘September charges’) (see [10]).

    The appellant was sentenced to 3 months’ imprisonment for the June contravention of DVO, 9 months’ imprisonment for the September contravention of DVO, and 9 months’ imprisonment for the common assault ([2]). The magistrate declared 39 days’ pre-sentence custody and set a parole release date after 2 weeks ([4]).

    Issues: The appellant appealed on 4 grounds in relation to the September charges (see [7]-[8]):

    • first, that the sentence was manifestly excessive;
    • second, that the sentencing magistrate erred by failing to have proper regard to principles of totality;
    • third, that the sentencing magistrate erred by incorrectly applying relevant case law; and
    • fourth, that the magistrate erred by contravening s 16 of the Criminal Code 1999 (Qld) by imposing imprisonment on each of the offences of contravention of a domestic violence order and common assault.

    Decision and Reasoning: The appeal was allowed.

    In relation to the fourth ground of appeal, the Dearden DCJ held that the September charges could be appropriately separated, because the contravention of DVO was in relation to the verbal abuse, and the common assault was in relation to the physical punch ([18]). However, this meant that the respondent conceded that sentence of 9 months for solely verbal conduct was manifestly excessive ([20]). District Judge Dearden considered that the appropriate sentence for the September contravention of DVO should be 3 months ([21]).

    The remaining issue was whether the sentence of 9 months imprisonment for the common assault charge was manifestly excessive ([23]). Considering case law and mitigating circumstances (the fact that the verbal abuse did not involve threats to harm the aggrieved and the assault was precipitated by the aggrieved slapping the appellant), Dearden DCJ held that the sentence was manifestly excessive ([23]-[30]). The appellant was re-sentenced to 6 months’ imprisonment ([32]).

  • ACP v Queensland Police Service (No 2) [2017] QDC 293 (8 December 2017) – Queensland District Court
    Breach of protection order’ – ‘Interpretation of order’ – ‘Ouster order’ – ‘Particularise a charge’ – ‘Return condition’ – ‘Uncertain in its terms

    Charges: Breach of temporary protection order x 1.

    Appeal type: Appeal against conviction.

    Facts: A temporary protection order was made naming ACP as the respondent and MP as the aggrieved. Condition 4 of the order provided that ACP must vacate the family property, and condition 5 allowed ACP to return to the property to collect belongings in the company of a police officer ([10]). The order did not specify the time by which ACP must vacate the property, but ACP gave evidence that the Magistrate said that ACP must vacate the property ‘straight away’ ([58]).

    MP returned to the property 3 days later, to find ACP loading belongings onto a truck. ACP had not yet vacated the property ([20]-[21]). ACP gave evidence that he understood the order to mean that he could vacate the property himself, and only needed police attendance to return to the property ([60]).

    The bench charge sheet did not set out the particulars of which condition of the order the defendant was alleged to have contravened ([8]), contrary to s 177(4) of the Domestic Violence and Family Protection Act 2012 (Qld) ([19]).

    Issues: Whether the temporary protection order was uncertain in its terms.

    Decision and Reasoning: The appeal was allowed, and the conviction was set aside.

    Judge Horneman-Wren SC concluded: first, that the charge was not adequately particularised; and second, that the order was uncertain in its terms. First, the charge sheet did not inform the defendant of the factual ingredients of the offence ([72]). Second, even though the order did not provide a timeframe within which ACP was to vacate the property, the Magistrate stated that ‘the order is quite clear on its face and I am satisfied that the appellant was aware that he was to get out straight away’ ([79]). This was an error because ‘straight away’ was not incorporated in the condition ([90]).

  • ACP v McAulliffe [2017] QDC 294 (8 December 2017) – Queensland District Court
    Family law issues’ – ‘Necessary or desirable test applied to conditions’ – ‘Protection order’ – ‘Risk of future domestic violence

    Appeal type: appeal against a protection order.

    Facts: The male appellant and the female aggrieved person (MP) were in a relationship. Commencing in October 2012, there were a number of ‘instances’ of domestic violence (see [28]-[38]). A temporary protection order was made on 15 February 2016. A year later, on 7 March 2017, a Magistrate made a protection order against the appellant for the benefit of MP and her three sons under the Domestic and Family Violence Protection Act 2012 (Qld)(DFVPA). There were five conditions stipulated under the order; the first and fourth were standard conditions under s 56 of DFVPA:

    1. Appellant be of good behaviour towards the aggrieved and not commit domestic violence against her.
    2. Appellant is prohibited from remaining at, entering or attempting to enter, premises or approaching the premises where the aggrieved lives or works.
    3. Subject to four exceptions, appellant is prohibited from contacting, attempting to contact or asking someone else to contact the aggrieved.
    4. Appellant be of good behaviour towards the named children and not commit associated domestic violence against them and not to expose them to domestic violence.
    5. Appellant is prohibited from contacting the named children subject to the same exceptions applicable under condition 3.

    Issue: whether the protection order was necessary or desirable to protect the aggrieved from domestic violence?

    Decision and reasoning: the appeal was allowed to the extent that a protection order was made but only with the standard conditions. Conditions 2, 3 and 5 were removed and condition 4 was renumbered as condition 2.

    Before considering the issue on appeal, Horneman-Wren SC DC’s observed that the Magistrate did not expressly assess either of the first two steps of the three-step process considered by Morzone QC DCJ in MDE v MLG as the necessary approach to determining the requirement, under s 37(1)(c) of the DFVPA, that “the protection order is necessary or desirable to protect the aggrieved from domestic violence” (see [67]). His Honour then took the opportunity to emphasise the discretionary nature of this requirement and that Morzone QC DCJ’s view on how to determine whether an order is necessary or desirable shouldn’t be seen to mandate those three steps (see [68]-[69]). Indeed, his Honour later recognises that it was sufficiently clear from the Magistrate’s reasons that she answered the first question of the three-stage approach in the affirmative (see [76]-[78]).

    In relation to the issue on appeal, his Honour considers the Magistrate’s finding that an order was necessary as unreasonable and reached in error. His Honour opined that evidence of risk of future domestic violence in the absence of a protection order (first step) is not a sufficient basis for concluding that the necessary condition is satisfied (see [80]). However, his Honour regarded the Magistrate’s finding that the protection order was desirable as one that ought to have been made (see [81]). In accordance with the requirement under s 37(1)(c) that the court must only be satisfied with one of the two conditions (see [88]), and as reflected in the orders of this appeal, his Honour therefore agreed with the Magistrate in her decision to make the protection order (see [88]).

    Ultimately, it was the terms in which the Magistrate made the order that necessitated modification of the protection order. His Honour noted that under s 57(1) of the DFVPA, before the court may impose other conditions in addition to those set out in s 56, it must be satisfied that the condition is both necessary in the circumstances and desirable in the interests of the aggrieved, named person or the respondent. Having recognised this, his Honour then pointed out that the Magistrate failed to explain that she was satisfied that the imposition of other conditions was both necessary and desirable (see [89]-[90]). The order to remove conditions 2, 3 and 5 of the protection order reflect this view of his Honour that the Magistrate erred in imposing those other conditions.

  • MEG v Commissioner of Police [2017] QDC 302 (10 November 2017) – Queensland District Court
    Appeal against sentence’ – ‘Breach domestic violence order’ – ‘Probation’ – ‘Procedural fairness’ – ‘Sentencing’ – ‘Sentencing submissions

    Charges: Contravention of a domestic violence order as an aggravated offence x 1; Assault or obstruction of a police officer as a domestic violence offence x 1; Possession of dangerous drugs x 1; Contravene direction x 1; Contravention of a domestic violence order simpliciter x 1; Authority for controlled drugs x 1; Failure to properly dispose of a syringe or needle x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant breached a domestic violence order naming the appellant’s mother as the aggrieved and her son as a named person in the order. The breach occurred when the appellant made threats to kill herself and her son, in the presence of her son ([17]).

    The appellant pleaded guilty and was sentenced to six months’ imprisonment for the contravention of a domestic violence order as an aggravated offence and four months’ imprisonment for the contravention of a domestic violence order simpliciter. For the other charges, the appellant was convicted and not further punished ([2]).

    At sentence, the Magistrate indicated that he was considering a prison probation order of 2 months’ imprisonment and 12 months’ probation ([5]). After hearing submissions on that sentence, the Magistrate asked the appellant whether she consented to the probation order. MEG asked, ‘what happens if I say no?’ The Magistrate interpreted this question to mean that MEG did not consent to the order, and immediately imposed the four- and six-month sentences of imprisonment ([29]).

    Issues: Whether the appellant was denied procedural fairness, and whether the sentences were manifestly excessive.

    Decision and Reasoning: The appeal was allowed, and the appellant was re-sentenced to two months’ imprisonment, which was time already served.

    Judge Horneman-Wren SC held that the Magistrate erred in construing MEG’s question (‘what happens if I say no?’) as a refusal to consent. Further, the Magistrate erred in sentencing the appellant to a head sentence of six months without inviting further submissions on the sentence ([32]). The Magistrate did not give reasons for why six months was an appropriate head sentence, and did not refer to any comparable cases ([33]).

  • PFM v Queensland Police Service [2017] QDC 210 (11 August 2017) – Queensland District Court
    Contravention of domestic violence order’ – ‘Extending protection order’ – ‘History of domestic violence offences’ – ‘Parole’ – ‘Post-separation abuse’ – ‘Re-sentence’ – ‘Totality

    Charges: Contravention of domestic violence order x 1.

    Appeal type: Appeal against sentence.

    Facts: The complainant had obtained a domestic violence order with the appellant as the aggrieved. The order contained a condition that the appellant was not to have contact with the complainant. In contravention of this condition, the appellant travelled to the complainant’s house, stood outside, and called out to her and her son ([16]). The appellant had a criminal history including 13 breaches of domestic violence orders, spanning 12 years to 2015. The appellant was sentenced to 4 months’ imprisonment.

    Issues: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was allowed for two reasons: first, the sentencing judge erred in not applying the principle of totality; and second, the sentence was manifestly excessive.

    In relation to totality, the appellant had previously been sentenced for a failure to appear, and was sentenced to 5 months imprisonment. Since the appellant was on parole, the imposition of the new sentence automatically cancelled his parole. Therefore, the effect of the sentence was to impose a 9-month sentence. The magistrate did not treat the matter in this way, and calculated the parole eligibility date as one third of the 4-month sentence ([40]-[41]).

    In relation to the length of the sentence, the sentence was outside the appropriate range. Morzone QC DCJ stated that ‘it seems that the Court allowed the appellant’s previous offending to overwhelm other material considerations and the nature and seriousness of the offending subject of the sentence’ ([42]). The offending conduct was in the lower range, and would not normally attract a sentence of imprisonment. However, the nature of offending in the context of previous past breaches of domestic violence offences warranted a period of one month’s imprisonment ([64]).

    The judge determined that the extension of the protection order to was ‘necessary or desirable for the order to regulate the parties’ communication and contact for that period. By that time, the parties’ parental relationship and need for contact will change as the child matures into his early teens.’ [70]

  • NAS v QPS [2017] QDC 173 (21 June 2017) – Queensland District Court
    Appeal against sentence’ – ‘Partially suspended sentence’ – ‘People from culturally and linguistically diverse backgrounds

    Charges: Assault occasioning bodily harm whilst armed with an instrument x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant and complainant were married and had a 5-month-old baby. The appellant was from Papua New Guinea and was staying in Australia on a tourist visa ([2]). The offence occurred when the appellant became angry and threw an apple at the complainant, struck her with a broomstick, and struck the back of her head while she was holding the baby ([3]).

    The appellant pleaded guilty on the following day and was immediately sentenced to 15 months’ imprisonment, suspended after serving a period of 2 months for an operational period of 3 years ([1]). He was represented by a duty lawyer ([5]).

    The magistrate stated that the ‘only’ appropriate sentence was 15 months’ imprisonment ([11]).

    Issues: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was allowed.

    Judge Reid held that the Magistrate erred by stating that 15 months was the ‘only appropriate term’ ([23]). Comparable cases, most relevantly R v Pierpoint [2001] QCA 493, indicated that a lesser sentence was also open ([25]).

    On one hand, the offending was serious: it was somewhat protracted, committed against a female partner, and in the presence of a young child. On the other hand, the appellant had no criminal history, the appellant had ceased hitting the complainant before the police arrived, and there was no previous domestic violence order in place ([26]-[27]).

    The appellant was re-sentenced to 9 months’ imprisonment, to be suspended in 10 days, after the appellant had completed serving the sentence of 2 months imprisonment ([30]). Had a pre-sentence custody certificate been provided, a wholly suspended sentence could have been imposed ([30]).

  • LDS v QRR [2017] QDC 199 (15 June 2017) – Queensland District Court
    Cumulative sentence’ – ‘Manifestly excessive’ – ‘Natural justice’ – ‘Psychologist’ – ‘Sentencing’ – ‘Statistics’ – ‘Wilful damage

    Charges: Contravening domestic violence order x 3; wilful damage x 1; common assault x 1.

    Appeal type: Appeal against sentence.

    Facts: The complainant was the aggrieved in a domestic violence order taken out against the defendant. The breaches of domestic violence order and common assault charge occurred when the appellant punched and pushed the complainant to the ground on three occasions ([6]). The wilful damage charge occurred when the appellant stomped on her mobile phone while she was trying to contact the police ([7]). Following a plea of guilty, the Magistrate imposed cumulative sentences totalling 18 months’ imprisonment, with a parole release date after 6 months ([3]).

    Issues: There were three grounds of appeal: first, that the Magistrate placed disproportionate weight on general community deterrence; second, that the Magistrate disregarded the appellant’s mental health issues; third, that the Magistrate erred in ordering the sentences to run cumulatively without consulting either party.

    Decision and Reasoning: The appeal was allowed.

    In relation to the first ground, the Magistrate described the appellant’s offending as a ‘reign of terror heaped upon the complainant’ ([16]). District Court Judge Muir described this statement as an exaggeration because the violence was at the lower end of the scale and the offences were committed within a short time period ([31]). The Magistrate also referred to statistics that 700 women would be killed in the next 10 years if nothing was done about domestic violence ([19]). District Judge Muir held that using statistics in this way indicated that the Magistrate did not place sufficient weight on the appellant’s mitigating factors.

    On the second ground, the appellant asserted that he suffered from depression, post-traumatic stress disorder and schizophrenia. However, the psychologist’s letter tendered in evidence did not mention those conditions. The Magistrate enquired as to who gave the diagnoses, but more information could not be tendered ([27]). District Judge Muir held that the Magistrate was entitled to place little weight on the diagnoses.

    On the third ground, Muir DCJ held that it was an error for the Magistrate to not invite submissions about the possibility of cumulative sentences ([36]).

    On the whole, Muir DCJ concluded that the sentence was outside the appropriate range ([47]). The appellant was re-sentenced to an overall head sentence of 9 months’ imprisonment, with the appellant to be released immediately on parole after having served approximately 4 months in prison ([50]).

  • JC v KP [2017] QDC 175 (26 May 2017) – Queensland District Court
    Consent’ – ‘Protection order’ – ‘Weapons licence

    Appeal type: Appeal against decision to grant protection order.

    Facts: The appellant and respondent were brothers. A Magistrate ordered that a protection order be made against the appellant by consent (p 2), with the respondent as the aggrieved. The Magistrate represented to the appellant that the order would not affect the appellant’s weapons license (p 3). In fact, a protection order would limit the applicant’s weapon’s license for five years (p 5). The appellant appealed the decision on the ground that the appellant was induced to consent to the order being made (p 2-3).

    Issues: Whether the order should be set aside.

    Decision and Reasoning: The order was set aside. Judge Long of the District Court concluded that the appellant did not understand the full consequences of the order being made, and the matter was remitted to a contested hearing (p 6-7).

  • CDX v Queensland Police Service [2017] QDC 96 (5 April 2017) – Queensland District Court
    Conflating factual issues’ – ‘Contravention of domestic violence order’ – ‘Exposing children’ – ‘Text messages

    Charges: Contravention of domestic violence order (DVO) x 1; Possess restricted items x 1; Possess explosives x 1; Assault or obstruct police officer x 1.

    Appeal type: Appeal against sentence from Magistrates Court.

    Facts: The appellant was subject to a DVO with the complainant named as the aggrieved ([12]). The appellant sent threatening text messages to the complainant, and took their child out of school ([12]). This formed the basis of Charge 1, contravening a DVO. When the police arrived at the appellant’s house, he refused to cooperate, and appeared to reach for a knife while holding the child ([12]). This formed the basis of Charge 4, obstruct police officer.

    The appellant was sentenced to six months’ imprisonment with a non-parole period of two months ([1]).

    Issues: The defendant appealed on the grounds that: the sentence was manifestly excessive; the Magistrate took irrelevant matters into consideration by relying on the documentation from the domestic violence order; the Magistrate fettered her objectivity; and the Magistrate conflated the facts of Charge 1 and Charge 4 ([2]-[3]).

    Decision and Reasoning: The appeal was allowed. Horneman-Wren SC DCJ concluded that the Magistrate erred in conflating the factual issues in charges 1 and 4 ([42]). The other grounds of appeal were not made out. Horneman-Wren SC DCJ considered that a shorter sentence would have been appropriate, but since the appellant had been in custody for 7 weeks, his Honour recorded a conviction and did not further punish the appellant ([47]).

  • CED v HL [2016] QDC 345 (22 December 2016) – Queensland District Court
    Children’ – ‘Protection orders’ – ‘Temporary protection order’ – ‘Vary

    Appeal Type: Appeal against variation to Temporary Protection Order.

    Facts: A temporary protection order was made against the appellant which stipulated his former female partner, the respondent, as the protected person. The appellant and the respondent had a son together, K. The terms of the temporary protection order were varied twice. The first variation occurred after the respondent took K out of school (against K’s wishes). The appellant arrived to pick up K, at K’s request. An argument ensued between the appellant and the respondent. The temporary protection order was varied to name K as a protected person.

    Second, the respondent reported that her father (the maternal grandfather of K) had made threats against the appellant in the presence of K. The temporary protection order was varied to prevent the appellant from permitting, encouraging or facilitating in-person contact between K and the grandfather. The appellant’s position was that he had never been threatened by the respondent’s father in that way and that K wanted to see his grandfather.

    The appellant applied to a magistrate to have these terms varied and removed. The application was refused.

    Issue/s: Whether the variations ought to be allowed?

    Decision and Reasoning: The appeal was allowed. Kent J held that there were insufficient reasons given for the orders made refusing the variations. This was an error of law and the decision had to be set aside on that basis. Further, there was an insufficient evidentiary basis to prove that either of the contested conditions were necessary or desirable. First, K’s presence at the incident between the appellant and respondent was purely incidental. It was upsetting but no more upsetting than other separate actions of the respondent. It was not prolonged or dangerous and not wilfully brought about, or persisted with, by the appellant. Second, the grandfather’s threats against the appellant were out of the appellant’s presence and not initiated by the appellant. They were unlikely to be repeated and did not involve any violence against K. This was too tenuous to substantiate the challenged conditions (see [38]).
  • RWT v BZX [2016] QDC 246 (30 September 2016) – Queensland District Court
    Costs’ – ‘Cross-application’ – ‘Cross-orders’ – ‘Economic abuse’ – ‘Emotional and psychological abuse’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Protection orders’ – ‘Sexual and reproductive abuse’ – ‘Systems abuse

    Appeal Type: Appeal against a protection order and an order for costs.

    Facts: The male appellant and the female respondent were married in India. It was an arranged marriage. They lived in Australia with their son and the appellant’s parents. Each applied for a protection order against the other, making serious allegations which were denied. There were also proceedings in the family court at the time of the protection order hearing.

    The respondent’s application and affidavit set out particulars of domestic violence under several headings: verbal abuse, controlling behaviour, psychological abuse using the child, sexual abuse, financial abuse, threats and intimidation. She perceived an alliance against her (the appellant, his parents and the son). She annexed to her affidavit a transcript of a recording she made as she was packing to leave the family home to provide evidence of this. Conversely, the appellant alleged that the respondent had assaulted the child. He had previously taken the child to a doctor and reported the complaint.

    The magistrate made an order in favour of the wife. He dismissed the appellant’s application and also made an order for costs. In doing so His Honour stated:

    ‘Sadly what I say in these proceedings can’t be used in the Family Court. These proceedings are private proceedings. I wish they could. I wish the Family Court could hear what I think about the reliability of [the appellant]. It’s been a scurrilous case. On my view, his application has been deliberately false and vexatious. I can say that, in 12 years as a magistrate, I have never ordered costs in a domestic violence case before. I intend to today for the first time in many hundreds of cases’.

    Issue/s: Some of the grounds of appeal included –

    1. There was no proper basis on the evidence for the learned Magistrate to make a protection order under s 37 of the [Domestic and Family Violence Protection Act 2012 (Qld)] (‘the Act’);
    2. There was no proper basis for the learned Magistrate to order costs under s 157 of the Act against the appellant in favour of the respondent.

    Decision and Reasoning: The appeal was dismissed.

    Was there a proper basis for the order made against the appellant? (see [4]-[34])

    1. Devereaux SC DCJ held that it was open to the magistrate to conclude that the appellant had committed acts of domestic violence against the respondent: s 37(1)(b) of the Act.

      1. The magistrate was correct to use the transcript of the recording made by the respondent as proof of her case and as relevant to the credibility of the appellant. The transcript showed the manner in which the appellant treated the respondent. Further, the ‘startling’ language and attitude of the child towards his mother in the transcript gave rise to the inference that the appellant had treated the respondent in such a way over a lengthy period in front of the child: see [12].
      2. The magistrate, correctly, interpreted the transcript as confirmation of the respondent’s claim that the discussion was principally about money – the appellant’s demand that she deposit all her wages into the joint account: see [13]. Evidence of the respondent’s friend further corroborated the respondent’s evidence about financial abuse: see [18].
      3. Devereaux SC DCJ agreed with the magistrate’s analysis of the transcript of the recording (see [14], [29]). It provided evidence of threats by the appellant, that the appellant would shout at her in front of the child, and that the child had been ‘coached and poisoned against his mother’ (see [15]-[24]).
      4. His Honour further held that: ‘the passages I have referred to in this judgment from His Honour’s reasons reduce to the finding that his Honour rejected utterly the credibility of the appellant and accepted completely the credibility and reliability of the respondent. There is nothing in the materials which objectively suggests that those findings were not open to His Honour or that I should draw different inferences from facts in the record’ at [29].
    2. Devereaux SC DCJ also held that it was open to the magistrate to conclude that the protection order was necessary or desirable to protect the respondent from domestic violence: s 37(1)(c) of the Act.

      1. Devereaux SC DCJ noted the magistrate’s conclusions about the appellant’s application, namely that it was ‘an outrageous case and pure nasty, vindictiveness on this woman because she wouldn’t hand over her money to a controlling, bullying husband. I don’t believe she has been anything other than a good mother to her child. I dismiss the [appellant’s] application …, as I said, but I do intend to make an order in favour of the wife’.
      2. The magistrate continued: ‘[i]n my view, as I mentioned during submissions, the fact that property settlements in family law matters are still contentious and, indeed, the mother still isn’t even getting face-to-face contact with her own child at the moment, there is every opportunity for the husband to continue his bullying behaviour to try and manipulate the wife into caving in to his demands about the child, about financial affairs, and anything else that he might have a penchant to do in his bullying behaviour. She is absolutely in need of protection. He needs to be kept well away from her’ (see [26]).
      3. Devereaux SC DCJ held that these statements could be properly understood as the magistrate’s reasons for being satisfied that the protection order was ‘necessary or desirable to protect the aggrieved from domestic violence’ (see [28]). This reasoning, that it was necessary or desirable for an order to protect the respondent from domestic violence in the setting of the continuing family court proceedings, was correct: GKE v EUT (see [32]).

    Devereaux SC DCJ noted generally that ‘[i]t is advisable that a magistrate make specific findings with respect to the matters set out in s 37 of the DVFP Act’ (see [27]). However, here, ‘the manner in which His Honour reached and set out conclusions is sufficiently clear to be amenable to examination and review’ see [28].

    • The appeal against the costs order (see [35]-[68])
    Devereaux SC DCJ held that the magistrate was entitled to thoroughly reject any of the appellant’s assertions. Having done so, it was open to the magistrate to conclude that the appellant’s application was brought to vex the respondent – ‘it was deliberately false and vexatious’, brought because ‘she wouldn’t hand over her money to a controlling bullying husband’’ (see [65]-[66]).
  • WJ v AT [2016] QDC 211 (19 August 2016) – Queensland District Court
    Cross-application’ – ‘Cross-order’ – ‘Economic abuse’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘Family law’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Purpose of the domestic and family violence protection act 2012 (qld)’ – ‘Risk

    Appeal Type: Appeal against the making of a protection order against the appellant and appeal against the decision of the Court to dismiss the appellant’s application for an order.

    Facts: The male appellant and the female respondent were in a relationship. They had two children together, DJ and MJ (aged 3 and 2), and another daughter, LS (aged 8), from the respondent’s previous relationship. The appellant had been abusive to LS in the past. The parties had separated and the three children lived with the respondent. The respondent and the appellant each applied for a protection order against the other. There were also contact/care proceedings in the Federal Circuit Court.

    The respondent’s case was that on 14 August 2015 the appellant spoke loudly and in an insulting way towards her. Many, if not all, of these statements were made in front of DJ and MJ, upsetting the children. The appellant rubbed his beard against the respondent’s eye area and continued to verbally abuse her. The respondent tried to ignore him. He took her phone and ran outside. There was a struggle. He pushed the respondent, she was thrown onto the car bonnet and the appellant sustained some scratches (see [6]-[32], [112]-[126]). Conversely, the appellant alleged that the respondent ‘went berserk’, pushed him around the balcony, grabbed and attacked him, and he ran away from her. She then physically assaulted him. He sustained scratches and a ripped shirt. He also alleged he was a victim of economic abuse (see [33]-[53]).

    The Judicial Registrar (JR) made a protection order against the appellant in favour of the respondent. The JR dismissed the cross-application by the appellant (see [56]-[58]).

    Issue/s: One of the grounds of appeal was that the decisions of the Judicial Registrar were made against the weight of the evidence, namely the making of a protection order against the appellant in favour of the respondent; including the two children, MJ and DJ, in the order; including the child LS in the order; and the refusal to make a protection order against the respondent in favour of the appellant.

    Decision and Reasoning: The appeal was dismissed.

    • Should an order have been made against the appellant?

    First, Smith DCJA held that a number of the acts committed by the appellant amounted to domestic violence as per s 37(1)(b) of the Act Domestic and Family Violence Protection Act 2012 (Qld)] (‘the Act’) – ‘the rubbing of the beard was physically abusive, the taking of the phone was physically abusive and the insulting words about the first respondent was in my view emotionally or psychologically abusive’ (see [131]).

    Second, in considering whether a protection order was ‘necessary or desirable’ to protect the aggrieved as per s 37(1)(c), Smith DCJ noted that the reasoning of McGill SC DCJ in GKE v EUT applied here. McGill SC DCJ said:

    ‘I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved … I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future’(see [32]-[33]).

    Smith DCJA noted that ‘necessary’ is defined by the dictionary as ‘requiring to be done, achieved; requisite, essential’ and desirable is defined as ‘worth having’. There is therefore a ‘lower threshold when one is concerned with the term ‘desirable’. But both are focused on the need to protect the aggrieved from domestic violence’ (see [137]-[139]).

    His Honour ultimately agreed with the JR’s reasoning that an order was both necessary and desirable to protect the aggrieved from respondent. At [140]:

    ‘There is no doubt that the parties are embroiled in Federal Circuit Court proceedings. There are children of the relationship about whom contact/care arrangements will need to be made. These will need to be dealt with in a civilised and appropriate fashion. I have considered s 4 of the Act. In light of the history between the parties, the events of 14 August 2015, the nature of the relationship, and degree of animosity expressed by the appellant towards the first respondent, in my view, it was both desirable and necessary that the order be made in favour of the first respondent. Like the JR, I consider without such an order there is a real risk of future domestic violence’.

    • Should MJ and DJ have been included in the order?

    Section 53 of the Act provides that the court may name a child ‘if the court is satisfied that naming the child in the order is necessary or desirable to protect the child from (a) associated domestic violence or (b) being exposed to domestic violence committed from the respondent’. Section 10 of the Act defines the meaning of ‘exposed to domestic violence’.

    Smith DCJA was satisfied that the children were exposed to domestic violence (see [148]). Further, His Honour stated: ‘I do not consider there is any requirement they understand the words spoke, particularly bearing in mind they were spoken aggressively’(see [149]). Additionally, it was also necessary and desirable for the children to be included in the order because, as the JR found, there was a continued risk of exposure to domestic violence in the future. This was because the parties would continue to be in contact through the children of the relationship and proceedings were on foot in the Federal Circuit Court (see [150]-[151]).

    • Should LS have been included in the order?

    His Honour held that:

    ‘[I]n all of the circumstances, bearing in mind that there is a real possibility of contact between the appellant and LS, and bearing in mind the acrimonious situation between the parties and the events of 9 July 2015 [when the appellant was physically abusive towards LS] and 15 August 2015, I consider the JR was right to add LS to the order to avoid the risk of her being exposed to domestic violence’ at [159].

    • Should an order have been made against the first respondent?

    In this regard, Smith DCJA noted the respondent had tried to ignore the appellant and that the scratches sustained by the appellant could have been caused in self-defence or accidently by the respondent. In this regard, His Honour quoted the explanatory notes to the 2011 Bill at [166]:

    ‘Lastly, the Bill aims to ensure that the person who is most in need of protection is identified. This is particularly important where cross-applications are made, which is where each party to a relationship alleges domestic violence against the other and which often result in cross-orders. During consultation, stakeholders reported a disproportionate number of cross-applications and cross-orders and expressed the concern that in many instances domestic violence orders are made against both people involved. This is inconsistent with the notion that domestic violence is characterised by one person being subjected to an ongoing pattern of abuse by another person who is motivated by the desire to dominate and control them. Both people in a relationship cannot be a victim and perpetrator of this type of violence at the same time. A cross-application may be used by a respondent to continue victimising the aggrieved person, to exact revenge or to gain a tactical advantage in other court proceedings. Also, violence used in self-defence and to protect children can be misconstrued as domestic violence if a broader view of the circumstances is not taken’ (His Honour’s emphasis).

    In light of this, Smith DCJA held that there was no ‘physical abuse’ of the respondent by the appellant. Also, on the totality of the evidence, the respondent was most in need of protection (see [167]-[172]).
  • EAV v Commissioner of Police [2016] QDC 237 (16 September 2016) – Queensland District Court
    Alternatives to imprisonment’ – ‘Community based orders’ – ‘Contravention of a domestic violence order’ – ‘Cross-application for mutual protection orders’ – ‘Magistrates’ – ‘People with mental illness’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Previous breaches of domestic violence protection order’ – ‘Protection orders’ – ‘Sentencing

    Charge/s: Breach of a domestic and family violence order.

    Appeal Type: Appeal against sentence.

    Facts: The male appellant and the female complainant were in a relationship. They were subject to a domestic violence protection order on 8 July 2015 for a period of two years. These were cross-orders. In October 2015, the appellant breached these orders and was fined $500. On 20 November 2015, police attended their address after reports of a dispute. The appellant told police that he and the complainant were in a heated argument, which the complainant had initiated. The appellant said he bumped into the complainant, causing her to stumble. The complainant slapped the appellant. He then grabbed the complainant, threw her on the bed, and restrained her with his body weight. He released her and the argument continued until police arrived.

    In sentencing, the magistrate expressed significant concern about the chronology of events namely, that the domestic violence order had been made in July 2015, breached by the appellant on 27 October 2015, the appellant was sentenced for that breach on 11 November 2015, and he then breached the domestic violence order again on 20 November 2015. The appellant was sentenced to three months’ imprisonment, wholly suspended, with an operational period of 12 months.

    Issue/s: The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was allowed. Dearden DCJ noted that the magistrate failed to give appropriate recognition to a number of relevant factors, namely at [22]:

    • ‘there were mutual, cross-orders for domestic violence in place at the time of the offending;
    • ‘the initial violence in the incident was, in fact, the complainant slapping the appellant;
    • ‘the appellant’s violence, in response, was relatively low level (although nonetheless unacceptable);
    • ‘the appellant had been in receipt of medical care in respect of a significant mental health issue, and importantly, had undertaken the Anglicare Living Without Violence Program, which was a substantial program, indicating on his part a significant willingness to change;
    • ‘the appellant had expressed his remorse to police immediately after the event’.

    His Honour noted that ‘magistrates dealing with breaches of domestic violence are, of course, under significant time pressures and the learned magistrates sentencing remarks are brief’. However, His Honour held that, ‘the transcript does not indicate that the learned magistrate in any way considered alternatives other than imprisonment in respect of this matter, and appears only to have taken into account the chronology (which is obviously significant) and to some very minor extent (referenced at the conclusion of her sentencing remarks) the steps that the appellant had taken in respect of receiving assistance from Dr Calder-Potts and Anglicare’ (see [24]).

    The appellant was resentenced to 18 months’ probation with a special condition that he continue treatment and complete 100 hours of community service. No conviction was recorded.
  • IFM v Queensland Police Service [2016] QDC 140 (17 May 2016) – Queensland District Court
    Breach bail condition’ – ‘Contravention of a domestic violence order’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Repeated contraventions’ – ‘Sentencing

    Charge/s: Contravention of a domestic violence order x 2, breach bail condition x 2, and a further contravention charge.

    Appeal Type: Appeal against sentence.

    Facts: The male appellant and the female complainant were in a relationship. In relation to the first contravention of a domestic violence order, on 18 March 2015, the appellant pushed the complainant over and punched her to the jaw. No physical injury was alleged. After being arrested and charged, the appellant was released on bail. The second contravention of a domestic violence order occurred on 30 May 2015. The appellant grabbed the complainant by the throat and hit her, knocking her to the ground. He kicked her, dragged her to her feet and verbally abused her. The appellant then dragged her to a nearby park, knocking her to the ground again, hit her in the head, picked her up and continued to drag her. No physical injury was alleged. A head sentence of 15 months imprisonment was imposed on the second contravention of domestic violence order.

    Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Counsel for the appellant submitted that a sentence of 12 months imprisonment with a release after four months was appropriate in light of the authorities of PMB v Kelly [2014] QDC 301 and Singh v QPS [2013] QDC 37. Durward SC DCJ distinguished both of these cases (see [20]).

    Here, Durward SC DCJ was satisfied that a sentence of 15 months imprisonment was not manifestly excessive. This was in light of a number of factors. The appellant’s conduct involved significant aggravating circumstances namely, the first contravention of a domestic violence order was committed two weeks after the expiration of an earlier imposed sentence, the second contravention charge occurred while the appellant was on bail for the former offence, and the appellant had previous convictions for breaches of domestic violence orders (including one committed against the same complainant) (see [21]). Further, the conduct of the appellant in the second charge was ‘sustained and patently violent’. It occurred not only in a residence but in a public area (see [22]). Finally, the appellant had a significant criminal history (see [23]).
  • AJS v KLB v Anor [2016] QDC 103 (13 May 2016) – Queensland District Court
    Emotional and psychological abuse’ – ‘Following, harassing and monitoring’ – ‘Protection order’ – ‘Risk of future domestic violence’ – ‘Whether a protection order was necessary or desirable to protect the respondent from domestic violence

    Appeal Type: Appeal against protection order.

    Facts: The female respondent and the male appellant began a relationship in March 2014. The appellant gave her a false name, ‘Cray’, and other false details about his life. The respondent ended the relationship on 31 December 2014. From January to May 2015, the respondent received a series of text messages from the appellant. While at first these messages were consistent with someone trying to salvage the relationship, they became increasingly aggressive and abusive. Some included sexually explicit references.

    The respondent contacted police in February 2015. The police made contact with the appellant. The appellant asserted that he was not ‘Cray’ and, in a series of phone calls, threatened the police and the respondent with legal action. He then sent the respondent a nine page threatening and intimidating letter. A temporary protection order was made in favour of the respondent. The appellant then instructed his solicitors to write a letter seeking the proceedings to be discontinued. This letter denied that he ever knew the respondent.

    On 20 November 2015, the court made a protection order in favour of the respondent against the appellant. The magistrate noted in his findings that the respondent was clearly upset and frightened in court. She had difficulty giving evidence and, even when removed to the vulnerable witness room, she covered her face from the camera. The appellant, on the other hand, appeared confident and in control.

    Issue/s: One of the grounds of appeal was that there was no or no sufficient evidence to support the finding that His Honour was satisfied that an order was necessary or desirable to protect the respondent from domestic violence.

    Decision and Reasoning: The appeal was dismissed. Harrison DCJ had regard to the decision of Morzone DCJ in MDE v MLG & Commissioner of the Queensland Police Service where he asserted that the question of whether ‘the protection order is necessary or desirable to protect the aggrieved from domestic violence’ in s 37(1)(c) of [Domestic and Family Violence Protection Act 2012 (Qld)] (‘the Act’) requires a three-stage process supported by proper evidentiary basis. As per Morzone DCJ at [55]:

    • ‘Firstly, the court must assess the risk of future domestic violence between the parties in the absence of any order:

      1. ‘There must evidence to make factual findings or draw inferences of the nature of, and prospect that domestic violence may occur in the future. This will depend upon the particular circumstances of the case. Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, physiological counselling, compliance with any voluntary temporary orders (s 37(2)(b)), and changes of circumstances.
      2. ‘Unlike, its predecessor provision under the now superseded legislation, the court does not need to be satisfied that future domestic violence is ‘likely’. However, there must be more than a mere possibility or speculation of the prospect of domestic violence’.
    • ‘Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order. Relevant considerations may include evidence of the parties’ future personal and familial relationships, their places or residence and work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication, for example, in relation to children’.
    • ‘Thirdly, the court must then consider whether imposing a protection order is “necessary or desirable” to protect the aggrieved from the domestic violence. In this regard, pursuant to s 37(2)(a), the court must consider the principles in s 4(1)’.

    Harrison DCJ held that although the magistrate did not refer specifically to each of the three stages of the three-stage process described in MDE, the magistrate did not err in finding that it was desirable to make the necessary protection order for the protection of respondent from domestic violence:

    1. There was sufficient evidence to make the finding that there was a risk of future domestic violence in the absence of any order. Here, the magistrate had regard particular regard to the two letters from the appellant. These did not show any remorse or rehabilitation and the mere fact that the appellant had not contacted the respondent since he was caught on 9 June 2015 did not advance the issue of rehabilitation any further. Additionally, it was particularly relevant that the appellant tried to lie his way out of the temporary protection order. These considerations ‘took the matter much further than the mere possibility or speculation of the prospect of domestic violence’ (see [85]-[87]).
    2. The magistrate had regard to the impact of the appellant’s behaviour on the respondent, and the fact that they both lived and worked in the Atherton Tablelands (a relatively small community where there would be real opportunities for direct and indirect contact in the future). This evidence was clearly sufficient to satisfy the second stage in MDE (see [88]).
    3. In relation to the third stage, a number of matters in s 4(1) of the Act were relevant namely, the safety, protection and wellbeing of the respondent; the need to treat her with respect and to ensure minimal disruption to her life; holding the appellant responsible for his domestic violence and the impact it had on the respondent; and the respondent was vulnerable as under paragraph (d), as was demonstrated with her difficulties in giving evidence (see [89]-[90]).
  • DMK v CAG [2016] QDC 106 (15 April 2016) – Queensland District Court
    Abuse of process’ – ‘Definition of domestic violence’ – ‘Desirability of protection order’ – ‘Domestic violence protection order’ – ‘Emotional and psychological abuse’ – ‘Evidentiary standard of proof’ – ‘Relevant relationship’ – ‘Systems abuse’ – ‘Vexatious or frivolous

    Appeal type: Appeal against domestic violence protection order

    Facts: The appellant and respondent were in a de-facto relationship for almost 10 years and had children together. After separating, the respondent became the children’s primary caregiver. The appellant assisted her in looking after the children and they continued in a parenting relationship. A domestic violence protection order was made against the appellant to protect the respondent in the Magistrates Court. The magistrate had regard to three court orders existing between the parties in making this order. These were a Family Court order, a protection order made against the respondent naming the appellant as aggrieved, and a temporary protection order with the respondent as the aggrieved.

    Prior to the making of the domestic violence protection order, the appellant made a complaint to police that his daughter was ‘sexting’. A few weeks later, he made another complaint that the respondent texted him in contravention of the protection order naming him as the aggrieved. However, after investigations the police determined both these complaints were unfounded. The appellant then allegedly threatened to kill their children, the respondent, her new partner and his children. The appellant than made a further complaint that the respondent’s new partner had unregistered firearms. After searching his home, the police did not find any of the alleged firearms. Several months later the appellant complained that the respondent kidnapped his 17-year-old daughter. This complaint was also unfounded. Finally, the appellant allegedly threatened the children that the respondent would be sent to gaol.

    The magistrate was satisfied that a protection order was desirable to protect the respondent from domestic violence. He accepted that the appellant’s conduct in making complaints to police caused the respondent to live in constant fear of the appellant. In particular, she feared that the appellant would act on his threats to kill her and her family. The magistrate considered that this amounted to domestic violence for the purposes of s 8 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act).

    Issues: Some grounds of appeal were:

    1. Whether magistrate erred in finding the appellant’s conduct in making complaints to the police was ‘domestic violence’ within the meaning of the Act.
    2. Whether the magistrate erred in failing to exercise his discretion reasonably by not finding that the prosecution case was frivolous or vexatious or otherwise an abuse of process.
    3. Whether the magistrate erred in failing to exercise his discretion reasonably by making the protection order.

    Decision and reasoning: The appeal was dismissed and the protection order was affirmed.

    As a preliminary issue, Morzone QC DCJ denied the appellant’s request for a de novo rehearing as of right ([12]-[23]). Further, His Honour rejected the submission that the evidentiary standard of proof under the Act is higher than on the balance of probabilities ([24]-[27]- discussing Briginshaw v Briginshaw [1938] HCA 34).

    1. The magistrate did not err in finding the conduct amounted to domestic violence under the Act. The appellant’s complaints to police were ‘over-reaching, baseless or made for a collateral purpose’ ([44]). They were not made for the purpose of protecting the children as submitted by the appellant, but rather to harass the respondent. This, together with the appellant’s threats to the children, impacted the respondent and caused her to live in substantial fear for her own safety and the safety of her children, her partner and his children. The complaints to police were harassing and intimating to amount to emotional and psychological abuse. They were also threatening and controlling or dominating to cause fear to the respondent’s safety. Therefore, the behaviour fell within the definition of domestic violence under ss 8(1)(b),(d) and (f) of the Act.

      In finding that the complaints amounted to domestic violence, the magistrate accepted the uncontested facts and rejected the appellant’s evidence where it conflicted with other witnesses. There were no identifiable incontrovertible facts or uncontested testimony to demonstrate the magistrate erred in making these conclusions about the evidence.
    2. The proceeding in making the protection order was not frivolous or vexatious: ‘It could not be characterised as being of little or no weight, worth or importance, and thereby frivolous. It is not usual for proceedings of this nature to trouble, annoy, or distress one of both parties. That may be natural consequence of the proper conduct of proceedings in the context of highly emotional family breakdown and litigation. There is no evidence of vexatious conduct in this case’ ([7]). Nor was the proceeding an abuse of process. The proceeding was commenced and maintained by the prosecution for the ‘substantial and legitimate purpose of obtaining the appropriate remedy under the Act’ ([10]).
    3. The magistrate did not err in concluding that a protection order was necessary or desirable to protect the respondent from domestic violence under s 37(1)(c) of the Act. The respondent was fearful of future domestic violence from the appellant. Therefore, the order was desirable. In coming to this conclusion, the magistrate considered and assessed that there was a risk of future domestic violence if an order was not made. The appellant and respondent remained in a dispute before the Family Court, were in contact frequently in relation to their children, and the appellant showed no remorse for his conduct. There was no requirement that the magistrate was satisfied that future domestic violence was ‘likely’. The magistrate also assessed that the appellant’s behaviour in the ongoing parental relationship was inappropriate and that he was misconceived about his ‘responsibility, entitlement and nobility, which manifested in an absence of insight into the consequences of his actions’ ([16]). These findings were open on the facts. Therefore, the magistrate exercised his discretion properly and reasonably in making the protection order against the appellant.
  • BJH v CJH [2016] QDC 27 (26 February 2016) – Queensland District Court
    Damaging property’ – ‘Emotional and psychological abuse’ – ‘Meaning of domestic violence s 8’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Risk’ – ‘Whether it was necessary or desirable to make an order to protect the aggrieved

    Appeal Type: Appeal against a Protection Order.

    Facts: The appellant appealed against a magistrate’s decision to make a Protection Order requiring him to be of good behaviour towards the aggrieved (his partner) and her son. The order was made after a disagreement over the family meal. The appellant took the aggrieved’s mobile phone in an attempt to get her to go downstairs to discuss matters with him. The aggrieved tried to get the phone back and the appellant discarded it onto the floor, causing minor but irreparable damage to its cover. At some point, the back of the appellant’s hand came into contact with the aggrieved’s ear, causing relatively low level pain and no injury to the aggrieved. The appellant and the aggrieved continued arguing loudly until the police arrived (see [9]).

    The magistrate made the following findings of domestic violence (see [10]):

    • The appellant took the aggrieved’s phone in an attempt to force her downstairs. He threw the phone to the ground in response to the aggrieved’s attempts to retrieve the phone.
    • The appellant slapped the aggrieved in a backhanded motion to the head on purpose.
    • There was constant harassment by the appellant towards the aggrieved that night that was intimidating (causing her to retreat from him). This intimidation and harassment amounted to an act of domestic violence when considered with the yelling and the banging of plates (emotional and psychological abuse).

    Issue/s: Whether the magistrate erred in making a protection order under s 37 [Domestic and Family Violence Protection Act 2012 (Qld)], specifically:

    1. Whether the magistrate erred in finding that domestic violence had been committed against the aggrieved: s 37(1)(b).
    2. Whether the magistrate erred in finding that it was necessary or desirable to make the order to protect the aggrieved from domestic violence: s 37(1)(c).

    Decision and Reasoning: The appeal was allowed. Rackemann DCJ held that it was open to the magistrate to conclude that there was at least some domestic violence committed by the appellant against the aggrieved. His Honour agreed that the following behaviour amounted to domestic violence under s 8 [of Domestic and Family Violence Protection Act 2012 (Qld)]:

    ‘The action of the appellant in seizing the aggrieved’s mobile telephone was behaviour which, in the circumstances, was coercive - being designed to compel the aggrieved to do something which she did not wish to do (ie come downstairs to discuss matters of concern to the appellant). Further, the appellant responded to the aggrieved’s attempt to get her telephone back by, amongst other things, throwing the phone onto the floor thereby damaging it. That the phone was discarded in a throwing motion had support in the evidence’ at [11].

    However, beyond that, the magistrate erred in her findings of domestic violence. In light of the evidence (see consideration at [14]-[29]), the magistrate’s finding of an ‘intentional back-handed slap’ could not be supported. Further, the magistrate erred in characterising the appellant’s behaviour as emotionally or psychologically abusive – behaviour that, amongst other things, intimidates (a process where the person is made fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour) or harasses (there must be an element of persistence): GKE v EUT. A consideration of the evidence could not support this conclusion (see [30]-[46]).

    The finding of more extensive domestic violence on the night in question than what occurred further affected the magistrate’s consideration of whether an order was necessary or desirable. In reconsidering whether an order was necessary or desirable, Rackemann DCJ again noted the decision in GKE v EUT where McGill SC DCJ observed in relation to s 37(1)(c) [Domestic and Family Violence Protection Act 2012 (Qld)] that:

    ‘I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved … I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future’ (see [32]-[33]).

    Here, the risk was not such to conclude that the making of a protection order was ‘necessary or desirable’ on the facts as established at the time of the hearing before the magistrate in February 2015. This was in circumstances where: there was no demonstrated history of domestic violence prior to the night in question; the event was a single incident involving domestic violence which, whilst in no way acceptable, was not at the most serious end of the scale of such conduct; the aggrieved gave evidence that she was not fearful of the appellant and did not believe that she needed protection from him; and, at the time of the hearing before the magistrate, the appellant and the aggrieved had continued their relationship without suggestion of further incident (see [49]-[50]).
  • Commissioner of Police v DGM [2016] QDC 022 (15/3279) Kingham DCJ 22 February 2016 – Queensland District Court
    Aboriginal and Torres Strait Islander people’ – ‘Aggravating factor’ – ‘Assault occasioning bodily harm’ – ‘Breach of temporary protection order’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’ – ‘Temporary protection order’ – ‘Verbal abuse’ – ‘Victim

    Charges: Assault occasioning bodily harm, breach of temporary protection order (TPO) (4 counts), breach of bail (7 counts).

    Appeal Type: Appeal against sentence.

    Facts: Two weeks before the offending, a TPO was served on the respondent (an Aboriginal man) which named the complainant (his partner), their young son and their unborn child as protected persons. The order prohibited him from being in the vicinity of the complainant apart from authorised contact with their child with the complainant’s consent and required that he be of good behaviour towards the protected persons. The offending occurred when the respondent went to the complainant’s house to visit his son without authorisation. He approached the complainant with a metal pole and verbally abused her. He dropped the pole and walked towards the complainant with a clenched fist. He then punched, struck and kicked her which caused her to fall to the ground. She was taken to hospital and released that night. After fleeing, the respondent returned later that night, came into her yard and asked to talk to her. Police found him sitting in a car with a machete at his feet. His criminal history included property, street and driving offences, as well as a history of breaching community based orders. He had a serious drug addiction. He pleaded guilty early and was sentenced to 12 months’ imprisonment for assault occasioning bodily harm. Concurrent lesser terms for the other offences were imposed. The offending also wholly activated an existing suspended sentence. He was released on parole immediately.

    Issue/s: Whether the sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was upheld. Her Honour held that the Magistrate erred in taking considering the respondent’s eventual surrender to police as a mitigating factor. While the surrender was voluntary, it had to be considered in the context of numerous bail breaches leading up to sentence, which was consistent with his history of disregard for court orders. In relation to the complainant’s apparent wish to continue the relationship with the respondent, her Honour noted at [34]-[35] that – ‘Courts in Queensland and in other states of Australia, have recognised the need to approach submissions about reconciliation with real caution, because of the particular features of domestic and family violence. The fact that a victim is a reluctant complainant is not a mitigating factor. Likewise, reconciliation after the victim has complained ought not mitigate the sentence. There may be cases in which reconciliation is relevant to an offender’s prospects of rehabilitation. However, that comes from the offender’s conduct, not the victim’s forgiveness. The nature of the relationship means victims may, contrary to their own welfare, forgive their attacker. That does not reduce the risk posed by the offender and, depending on the dynamics in a particular relationship, it could well exacerbate the risk. Necessarily, prospects of rehabilitation must be assessed by reference to the offender’s attitude and conduct, not the victim’s.’

    In this case, the Magistrate correctly did not treat the complainant’s support as a mitigating factor. However, the Magistrate did err by immediately releasing the respondent to encourage his rehabilitation. Rehabilitation is an important consideration for young indigenous people with drug addictions. However, given the seriousness of the offence and the vulnerability of the victim, the need for denunciation and deterrence outweighed the need for rehabilitation. In citing comparable authorities, (see from [45]-[62]), her Honour then concluded that the sentence was manifestly inadequate. The respondent was re-sentenced for assault occasioning bodily harm to 18 months’ imprisonment, with parole release set at the one third mark in the sentence. A conviction for a domestic violence offence was recorded.

  • Green v Queensland Police Service [2015] QDC 341 (27 November 2015) – Queensland District Court
    Contravention of a domestic violence order’ – ‘Following, harassing and monitoring’ – ‘Prior history of contravention of domestic violence orders’ – ‘Sentencing’ – ‘Too much emphasis on prior criminal history’ – ‘Totality

    Charge/s: Contravention of a domestic violence order.

    Appeal Type: Appeal against sentence.

    Facts: The appellant was 24. He had a criminal history, including nine previous convictions for contravention of domestic violence orders. The appellant was hospitalised when his female partner, the aggrieved, stabbed him in the leg and foot with a knife during an argument. A temporary protection order was made prohibiting the appellant from contacting the aggrieved. The stabbing incident was not the subject of any charge. Over the next two days, the appellant contacted the aggrieved on her mobile phone 60 times. These calls did not involve any threats or actual violence. The appellant was on parole for a sentence imposed at an earlier time. The appellant was sentenced to six months imprisonment, which was to be served cumulatively upon the 15 month prior sentence.

    Issue/s: The magistrate erred in two significant respects which resulted in an excessive sentence:

    1. The magistrate placed too much emphasis on the appellant’s criminal history for like offending and imposed a sentence which was disproportionate to the gravity of the instant offence; and
    2. In imposing a cumulative term, the magistrate failed to review the aggregate sentence and consider whether the total sentence imposed was just and appropriate.

    Decision and Reasoning: The appeal was allowed. First, Morzone QC DCJ noted that the surrounding circumstances, the appellant’s criminal history and the stabbing incident, were properly provided by the prosecution by way of context for the subject offending. However, His Honour continued at [17]:

    ‘[t]he danger was that that context could potentially take on an overwhelming character with the prospect of elevating the nature of the offending the subject of the sentence. It seems to me that that danger was realised and can be demonstrated by the sentencing remarks of the magistrate where she conflated the past criminal history, other intervening behaviour and the subject offending’.

    Here, the criminal history and the conduct that constituted it were not as proximate to the subject offending as apprehended by the magistrate. Evidence of the stabbing was accepted in the context that the police did not press charges against the aggrieved but the magistrate determined that the aggrieved was acting in self-defence. Further, there was little or no regard given to any particular findings of fact surrounding the subject offending, namely, the 60 occasions of telephone contact. Rather, this was relegated to almost incident behaviour. Thus, Morzone QC DCJ held that ‘[b]y conflating the historical criminal behaviour and other violent behaviour with the subject offending, it seems to me that Her Honour mistook the facts and allowed erroneous or irrelevant matters to guide or affect her exercise of discretion’ (see [18]-[21]).

    Second, Morzone QC DCJ held that at [30]:

    ‘the magistrate acted on a wrong principle by characterising the pre-existing sentence to a “different issue altogether” because the appellant breached his parole by reoffending. She apparently had no regard to the “period of imprisonment” required by section 160F of the [Penalties and Sentences Act 1992 (Qld)]… and the extension of the totality principle … It seems to me that her approach caused her to fall into error by failing to take into account material considerations of the whole period of imprisonment (including the balance of the previous sentence), reviewing the aggregate sentences and considering whether the latter was just and appropriate’.

    The appellant was re-sentenced to three months imprisonment, to be served concurrently with the existing sentence.
  • TZL v Commissioner of Police [2015] QDC 171 (3 July 2015) – Queensland District Court
    Breach of domestic violence order’ – ‘Criminal history’ – ‘Deterrence’ – ‘Minor breach’ – ‘Sentencing

    Charge/s: Breach of domestic violence order.

    Appeal type: Appeal against sentence.

    Facts: The appellant pleaded guilty and was convicted for contravening a domestic violence order and sentenced to 10 months’ imprisonment. The order prohibited the appellant from contacting the aggrieved apart from matters in relation to their child. He breached this condition by 41 sending emails over an 11 week period, the content of some of which were not solely in relation to their child. He was released on parole on the day of sentence. The appellant had an ‘appalling’ (see at [21]) history of breaching protection orders – consisting of 10 total convictions of which 8 related to the aggrieved. In fact, he was on probation for these offences when this offence was committed.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld. Kingham DCJ acknowledged at [17] that this was an ‘unusual’ sentence. There was no physical violence, actual or threatened. There was no intimidation or any harassing or controlling behaviour. While there were 41 emails, they were sent over an 11 week period and not all of them breached the order as some were related solely to the child. There was also one very minor personal contact at a child care centre. Kingham DCJ found these facts in combination do not warrant a sentence of imprisonment. Notwithstanding, the appellant’s clear ‘disdain’ ([21]) for protection orders as evidenced by his criminal history warranted a strong element of personal deterrence in the sentence. However, her Honour emphasised that the purpose of the sentence was not to punish the appellant again for prior offending, and that the Magistrate, ‘gave the Appellant’s prior history such weight that it led to the imposition of a penalty which was disproportionate to the gravity of this offending’ (See at [22]). As such, the Court concluded (while also taking into account comparable authorities) that the sentence was excessive. It was reduced to 6 months. The immediate parole release was not changed.

  • MDE v MLG & Queensland Police Service [2015] QDC 151 (2 June 2015) – Queensland District Court
    Necessary or desirable test’ – ‘Protection order’ – ‘Three stage approach

    Appeal type: appeal against a protection order.

    Facts: On 17 October 2014, a police officer made an application for a protection order against the appellant (MDE) for the benefit of the first respondent (MLG) under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA). MDE had been continually harassing MLG over the phone and outside her apartment (see [1]-[6]). On 23 October 2013, a temporary protection order was issued with the standard condition (under s56 DFVPA) that “the respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.” Three months later, on 21 January 2015, the Magistrate heard the application and decided to issue a protection order against MDE having been satisfied the requirements under s 37 of DFVPA could be established. The order incorporated the standard condition under s 56 and other conditions under s 57 of the DFVPA ([13]).

    Issues: The appellant appealed against the Magistrate’s decision on six grounds, of which the first three questioned the correctness of the Magistrate’s application of s 37 of the DFVPA and the last three concerned procedural and fact-finding errors on the Magistrate’s part (see [18]). Relevantly, the first ground of appeal was that the Magistrate failed to follow, as required, the decision in GKE v EUT [2014] QDC 248 at [33] which provides that a future ‘risk’ of violence must be considered and, if absent, a protection order should not be issued (see [64]).

    Decision and reasoning: The appeal was allowed and the protection order was therefore set aside.

    The second and third grounds of the appeal (see [69] and [56] respectively), along with the fourth, fifth and sixth grounds (see [73]-[79]), were rejected by Morzone QC DCJ (see [72] and [63] respectively). The first, however, was allowed.

    Morzone QC DCJ found that the Magistrate relied on erroneous or irrelevant matters and principles in their determination of whether the order was “necessary or desirable” ([68]). Specifically, his Honour highlighted at para [65]-[66] that the Magistrate’s reasons confused the requirements set by s 37(1)(a) and s 37(1)(c). His Honour further noted that the Magistrate failed to expressly examine the material considerations relevant to s 37(1)(c) and (2) ([67]). These included the nature and risk of future domestic violence, the protective needs of the aggrieved (if any), and, if a need was found, how imposing a protection order would be “necessary or desirable” to meet those needs ([67]).

    The Magistrate’s decision was therefore considered unreasonable by Morzone QC DCJ. This prompted his Honour to re-examine the third element posed by s 37(1)(c), that is, whether a protection order is necessary or desirable to protect the aggrieved from domestic violence ([84]).

    Importantly, earlier in his judgement, Morzone QC DCJ expressed the view that the third element of s 37(1) requires a three-stage process supported by a proper evidentiary basis (adduced pursuant to s 145 of the DFVPA) (see [55]). In short, the three steps involve (1) assessing the risk of future domestic violence between the parties in the absence of any order, (2) the need to protect the aggrieved from that domestic violence in the absence of any order, and (3) whether imposing an order is “necessary or desirable” to protect the aggrieved from the domestic violence (see [55]).

    Upon analysis of the evidence in para [85]-[89], Morzone QC DCJ reached the conclusion that the first and second stage cannot be established, meaning the imposition of a protection order was neither necessary nor desirable to protect MLG from the domestic violence and therefore, the protection order ought not remain in force.

  • SM v AA [2015] QDC 172 (29 May 2015) – Queensland District Court
    Domestic violence order’ – ‘Ex parte application’ – ‘Following harassing, monitoring’ – ‘Physical violence and harm’ – ‘Verbal abuse

    Appeal Type: Application for an extension of time in which to file an appeal against the variation of a domestic violence order.

    Facts: The appellant (the respondent in a domestic violence order) failed to appear at the Magistrates’ Court for an application to extend the order. The Magistrate noted appellant’s absence. The Court proceeded to ‘hear and decide the application’ pursuant to section 94 of the Domestic and Family Violence Act 2012 (Qld).

    Issue/s: Whether the Magistrate correctly heard and decided the matter.

    Decision and Reasoning: The appeal was allowed. Judge Reid considered the remarks of the Magistrate. The remarks did not consider the reasons put before the Court by the applicant as to why the domestic violence order should be extended. These reasons included allegations of physical and verbal abuse and multiple breaches of the order. Instead, the Magistrate simply made the order and considered whether the order should be extended for 18 months or for two years. Judge Reid was concerned that the Magistrate dealt with the matter, ‘merely as a rubber stamp exercise’. There was nothing in the Magistrate’s remarks to indicate that she had read the material to ascertain whether or not the breaches of the order actually occurred. There was little or no particularity in the allegations, specifically about when or where the breaches occurred. In circumstances where parties do not attend, it is incumbent upon the Magistrate to ‘hear and decide’ the matter, even if it is entirely upon affidavit evidence. The transcript did not indicate that the Magistrate considered the question at all. As such, the order was set aside.

  • LKL v BSL [2015] QDC 337 (15 May 2015) – Queensland District Court
    Affidavit evidence’ – ‘Domestic violence order’ – ‘Evidence’ – ‘Procedural fairness

    Appeal Type: Appeal from dismissal of application for protection order.

    Facts: The appellant appeared unrepresented in the Magistrates’ Court and filed for a protection order pursuant to the Domestic and Family Violence Act 2012 (Qld). She was initially granted a temporary protection order in the Magistrates’ Court. The Magistrate then made directions to the effect that the evidence of all witnesses in support of the application was to be filed as affidavit evidence. No such affidavit evidence was provided. The appellant believed that the application itself, without further affidavit evidence was sufficient. The application for the protection order was then refused, with the Magistrate concluding that there was no material before the Court (see further at [7]-[9]).

    Issue/s: Whether the aggrieved in a protection order application can rely solely on the application without further affidavit evidence.

    Decision and Reasoning: The appeal was upheld. The Domestic and Family Violence Act 2012 (Qld) makes clear that the formal rules of evidence do not apply and gives the Court broad powers to ‘inform itself in any way it considers appropriate’ (see s 145). However, the court obviously still has an obligation of procedural fairness. Dick SC DCJ explained that in hearing and determining an application for a protection order, ‘there still must be evidence in the sense of there being some material put before the Court which provides a rational basis for the determination and it must be put before the Court in a way which gives the opposite party the opportunity to challenge that evidence and put the opposite party’s case in relation to the matter’ (See at [11]). The Magistrate’s directions did not exclude the appellant’s sworn application as evidence. Therefore, the Magistrate’s conclusion that there was no material before the Court was an error of law. The Magistrate did not consider and determine the application. As such, it is clear that an aggrieved person can rely solely on the application as evidence without the need for further affidavit evidence. The respondent can then respond to the application if they choose. The application was remitted back to the Magistrates’ Court for determination by a different magistrate.

  • GKE v EUT [2014] QDC 248 (27 August 2014) – Queensland District Court
    Costs’ – ‘Domestic violence order’ – ‘Emotional and psychological abuse’ – ‘Family law’ – ‘Following harassing, monitoring’ – ‘Harassing’ – ‘Intimidation’ – ‘Necessary or desirable’ – ‘Systems abuse

    Appeal Type: Appeal against the making of a domestic violence order.

    Facts: A domestic violence order was made in the Magistrates’ Court against the appellant in favour of the respondent. There had already been orders made in the Family Court in relation to arrangements for their three children. The appellant filed for enforcement of these orders in the Family Court. He attended the respondent’s home for the purpose of serving court documents. When the respondent opened the door, she closed it immediately because she felt frightened. This incident and other prior incidents led to the application for the order.

    Issue/s:

    1. Whether the appellant’s commencement of proceedings in the Family Court and the personal service of documents on the respondent constituted intimidation or harassment sufficient to meet the definition of emotional or psychological abuse and therefore domestic violence within the meaning of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act).
    2. Whether a protection order was necessary or desirable to protect the respondent from domestic violence.
    3. Whether costs should be awarded against the respondent.

    Decision and Reasoning: The appeal was upheld.

    1. McGill DCJ upheld the Magistrate’s finding that the incident at the respondent’s home constituted domestic violence. His Honour considered the definition of ‘emotional and psychological abuse’ in s 11 of the Act. He noted that the issue is whether the behaviour is subjectively intimidating or harassing to the other person. Therefore, evidence of the subjective response of the aggrieved is relevant (see at [21]). His Honour noted at [22] that while examples in the Act refer to persistent conduct, intimidation within the meaning of s 11 could arise from a single incident. However, harassment cannot arise from a single incident. His Honour stated that there has to be ‘some element of persistence’ such that, ‘It is not just a question of whether the aggrieved finds something upsetting’ (see at [23]). As such, while the incident at the house amounted to domestic violence, the Family Court application itself was not an example of domestic violence –

      I suspect it would be possible for the making of repeated applications to the Family Court without justification to amount to “harassment”, though it would have to be a clear case; it would certainly not be harassment simply because from time to time the respondent denied the appellant access to the children and he made an application to the Family Court to obtain it’ (see at [20]). The mere fact the appellant takes steps to enforce Family Court orders does not and cannot constitute domestic violence. Conversely, the respondent unjustifiably withholding the children cannot justify domestic violence by the appellant.

    2. McGill DCJ noted that this question is concerned with the future. Another relevant consideration was that while the respondent did not want to see the appellant at all, the terms of the Family Court order and the presence of the children dictated that there had to be some continuing contact between the parties.

      See at [32] – ‘In my opinion the focus must be on the issue of protecting the aggrieved from future domestic violence, the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that…I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made….’

      The evidentiary basis for this risk must amount to more than the mere possibility of such conduct occurring (See at [33]). It is also relevant to consider the seriousness of the violence that is threatened, the credibility of the threat and the practical consequences of the order on the person against whom the order is made. For example, a no contact order ought not be made where some contact is necessary in relation to children (see at [42]-[43]). In applying these principles, his Honour found that it was not necessary or desirable to make an order. His Honour noted that while it was possible that circumstances could arise which amount to intimidation, the issues relating to the children remain in the Family Court. It would not be appropriate to make a protection order to interfere with the appellant’s right to enforce his rights in that jurisdiction. There was no real risk of domestic violence as long as the respondent complied with the Family Court orders (see at [67]).

    3. Costs were not ordered in favour of the appellant. Section 157 of the Act provides that each party must bear their own costs unless the court decides that their application was malicious, deliberately false, frivolous or vexatious. It is not clear whether this section applies to an appeal. However, his Honour concluded that while the general power to award costs under s 15 of the Civil Proceedings Act 2011 has not been expressly excluded by the Act, that power should be exercised having regard to the specific costs provision in s 157. Therefore, it is not simply a matter that costs follow the event for this type of proceeding. In any case, an adverse costs order against the respondent was not appropriate.
  • TND v Queensland Police Service [2014] QDC 154 (18 July 2014) – Queensland District Court
    Assault’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Breach of domestic violence order, assault of a police officer.

    Appeal Type: Appeal against sentence.

    Facts: The appellant and the aggrieved were drinking, then returned home (in the Normanton district). Following a dispute, the appellant became agitated and punched the aggrieved, causing a minor injury. After police were called, officers were forced to use capsicum spray to subdue the appellant. He continued to threaten violence after his arrest. He had a long criminal history including many property and drug offences. He had one prior conviction for breaching a domestic violence order, for which he was fined $100. He submitted this matter was not one of ‘significant gravity’ (See at [9]). The appellant submitted in the Magistrates’ Court that the relationship was not one characterised by violence. Following pleading guilty, he was sentenced to six months’ imprisonment with immediate parole release for the breach offence. He was sentenced to one month imprisonment wholly suspended for an operational period of nine months for the assault offence. In his sentencing remarks, the Magistrate referred to crime statistics and noted the prevalence of breaches of domestic violence orders and offences against police in the Normanton district, which necessitated a strong element of general deterrence in sentencing.

    Issue: Whether the sentence for the breach offence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The Court acknowledged that the Magistrate did err by not properly indicating how he took into account of the plea of guilty, and by using the statistics, which were found to not be reliable. Mitigating factors included the appellant’s youth and his early plea of guilty. The relationship was long-term and was not characterised by actual violence. His criminal history, while relevant, was minor. However, at [35] Bradley DCJ emphasised that domestic violence involving psychical violence is a serious issue and the appellant did cause some injury to the aggrieved. He had been recently convicted of breaching a protection order and general and specific deterrence were important. He was subject to various court orders when he committed the offence. The maximum penalty was three years. As such, the sentence was held to be appropriate.

  • R v MKW [2014] QDC 300 (18 June 2014) – Queensland District Court
    Abuse of process’ – ‘Breach of domestic violence order’ – ‘Concurrent criminal proceeding’ – ‘Double jeopardy and other charges’ – ‘Double punishment’ – ‘Grievous bodily harm’ – ‘Permanent stay of proceedings’ – ‘Physical violence and harm

    Charge/s: Grievous bodily harm.

    Proceeding: Application for a permanent stay of proceedings.

    Facts: An indictment before the District Court charged the applicant with grievous bodily harm. The incident involved the applicant drinking alcohol in a group which included the complainant (his de facto partner). An argument ensued. The applicant struck the complainant with a collapsible chair. He was charged with breaching a domestic violence order, pleaded guilty in the Magistrates’ Court and was sentenced to 12 months’ imprisonment with parole release after four months. The police then obtained a medical report indicating that the complainant’s injuries, if left untreated were likely to have caused ‘disfigurement or loss of vision’ and could have proved life threatening (see at [3]). As a result, he was then charged with grievous bodily harm (GBH) three days after being released from custody.

    Issue/s: Whether the continued prosecution of the GBH charge would constitute an abuse of process under s 16 of the Queensland Criminal Code because the applicant had already been punished for the same act.

    Decision and Reasoning: The application was dismissed. O’Brien DCJA considered the test as applied in R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 (11 February 2014). His Honour concluded at [9] that the applicant was punished in the Magistrates’ Court for the act of striking the complainant with the chair and that it was this same act which formed the basis of the GBH charge. Ordinarily, to punish the defendant again for that same act would contravene s 16 of the Code. However, the Crown submitted that s 138 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) operates to authorise the continued prosecution of the GBH charge. The Court accepted this argument. The crucial issue was whether the original prosecution for the breach offence against the Act constituted a ‘proceeding’ under that act. If it did, s 138(3)(a) would apply so that the prosecution for the breach offence would not affect any other proceeding against the applicant arising out of the same conduct. His Honour concluded that the prosecution for the breach offence was a proceeding under the Act (see at [15]). As such, R v Dibble; ex parte Attorney-General (Qld) (where a permanent stay was granted) was distinguished on the basis that the Act specifically authorises continuation of the prosecution. However, this issue has not been authoritatively resolved and uncertainty remains. See at [17] where his Honour states –

    ‘I should add that, if my tentative view of s 138(4) of the legislation is correct and if the applicant were to be convicted of the indictable offence, then the question remains as to whether s 16 of the Code prohibits him being further punished for that offence. At the very least, I would consider that ordinary and well-established sentencing principles would require that regard be had to the penalty imposed in the Magistrates Court for the breaching offence.’

    See pages 111-113 of the Queensland Domestic and Family Violence Protection Act (2012) Bench Book and the summary of R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 (11 February 2014) for further information.

  • W v Queensland Police Service [2013] QDC 87 (2 May 2013) – Queensland District Court
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Criminal history’ – ‘Physical violence and harm’ – ‘Possession of dangerous drug’ – ‘Sentencing

    Charge/s: Assault occasioning bodily harm, breach of domestic violence order, possession of dangerous drug.

    Appeal type: Appeal against sentence.

    Facts: Following an argument with the complainant, the appellant followed her, grabbed her by the harms and threatened her. She broke free, but was punched by the appellant in the right side of the jaw, causing her to bleed profusely. He was highly intoxicated. That constituted the assault offence. He was found to be in possession of cannabis at the time. The breach involved the same complainant. That offence occurred when she was heavily pregnant. The appellant demanded she have sex with him and she refused. He threw her phone at her and punched a door. He was intoxicated. He had a criminal history consisting of various street offences, one conviction for assault occasioning bodily harm and one conviction for breaching a domestic violence order. He was sentenced to three months’ imprisonment for the breach charge and nine months’ imprisonment for the assault charge, and fined $400 for the drug charge.

    Issue/s: Whether the penalty was too severe. More specifically, there were issues concerning –

    1. Whether the Magistrate misapplied Earl v Heron [2011] QDC 183.
    2. Whether the Magistrate gave excessive weight to the appellant’s criminal history and the need for specific deterrence.

    Decision and Reasoning: The appeal was dismissed.

    1. In relation to Earl v Heron, the appellant submitted inter alia that - in that case the offender committed a random act of violence on a stranger. This case concerned violence during a heated domestic argument between long term spouses, which makes this cases less serious. This argument was dismissed – with Smith DCJ concluding at [44] – ‘I do not accept the submission that an act of violence during a heated domestic argument between spouses is necessarily less serious than a random act of gratuitous violence on a stranger. It all depends upon the circumstances of the particular case.’ His Honour went on to make clear that the courts cannot condone either type of violence.
    2. In relation to the appellant’s criminal history, the Court concluded that the Magistrate was entitled to take into account the relevant prior convictions, and was also entitled to consider the injuries caused (a broken jaw), which were ‘reasonably significant’ (See at [50]). This made it an offence not at the low end of the scale.
  • MAA v SAG [2013] QDC 31 (28 February 2013) – Queensland District Court
    Emotional and psychological abuse’ – ‘Family law proceedings’ – ‘Protection orders’ – ‘Self-represented litigants’ – ‘Systems abuse

    Case type: Appeal against protection order.

    Facts: The appellant and the aggrieved were in a relationship and had 2 children ([6]). During family law proceedings, the aggrieved alleged that the appellant harassed her in numerous ways including: making complaints to government agencies such as the Queensland Ombudsman and Centrelink; filing a Notice of Child Abuse in the Family Court; and applying for a domestic violence order and claiming $250,000 for damages for perjury, both of which were dismissed ([13]).

    The Magistrate granted the protection order. He was satisfied that the applicant committed domestic violence in intimidating and harassing the aggrieved and was likely to commit domestic violence again ([21]).

    Issues: Whether the Magistrate erred in granting the protection order.

    Decision and Reasoning: The appeal was dismissed. McGinness DCJ held that the appellant’s numerous complaints about the aggrieved were ‘unjustified and an abuse of process’ ([44]). The actions constituted a course of conduct designed to intimidate and harass the aggrieved ([44]).

  • Singh v Queensland Police Service [2013] QDC 37 (20 February 2013) – Queensland District Court
    Aggravating factor’ – ‘Breach of bail condition’ – ‘Breach of domestic violence order’ – ‘Exposing a child’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse

    Charge/s: Breach of domestic violence order (2 counts), breach of bail condition.

    Appeal Type: Appeal against sentence.

    Facts: The appellant pleaded guilty in the Magistrates’ Court to two counts of breaching a domestic violence order. The order prevented him from directly or indirectly contacting the aggrieved. The parties had been in a de facto relationship for five years. The first count involved the appellant standing over the aggrieved, pointing menacingly at her. He was taken into custody and released on bail with a no contact condition. In breach of this condition, he attended her home, yelled insults at her, broke property, head butted an informant and verbally abused her, all in the presence of their children and a witness. The Magistrate acknowledged that the presence of the three young children was a serious aggravating feature. The appellant had a relevant criminal history, including four previous domestic violence convictions committed against the aggrieved. The Prosecutor provided minimal assistance to the Magistrate as to the appropriate sentence. He was sentenced to nine months’ imprisonment followed by two years’ probation for each count, to be served concurrently. He was convicted and not further punished for the breach of bail.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was initially dismissed. Robertson DCJ commented that it is ‘regrettable’ (see at [7] & [25]) that the prosecutor did not provide the Magistrate with any assistance as to the appropriate sentence. The Court held that these acts were a ‘nasty and prolonged’ (see at [29]) example of domestic violence against a vulnerable complainant, by an offender who had a long history of violence against the same woman. He had previously shown disregard for court orders, and in this case also showed complete disregard for the bail undertaking. The only mitigating factor was the early plea of guilty. While the sentences were ‘severe’, they were not so severe as to amount to an error by the Magistrate.

    (The appeal was then re-opened and upheld due to a procedural issue with taking into account the appellant’s prior convictions following the Court of Appeal’s decision in Miers v Blewett [2013] QCA 23 (22 February 2013). The requisite notice was not given, so the appellant’s prior convictions could not be taken into account. However, the Legislature has now amended s 47 of the Justices Act 1886 to ensure that prior convictions can be taken into account in sentencing whether or not notice has been served.)

  • LCJ v KGC and Commissioner of Police [2012] QDC 67 (30 March 2012) – Queensland District Court
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Domestic violence order’ – ‘Emotional and psychological abuse’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm

    Appeal Type: Appeal against a protection order.

    Facts: The appellant applied for and was granted a protection order (under the then Domestic and Family Violence Protection Act 1989 (Qld)). The applicant (the respondent/aggrieved) tendered evidence to the Magistrate that the appellant was physically violent to her on two occasions by grabbing her around the neck. There was also evidence that the appellant threatened to kill her if she went to the police. There was a history of violence in the relationship, which had involved verbal and physical abuse and controlling behaviour since 1992.

    Issue/s: Some of the issues concerned –

    1. Whether it was open to the Magistrate to be satisfied that the appellant committed domestic violence against the aggrieved.
    2. Whether it was open to the Magistrate to be satisfied that the appellant was likely to commit further domestic violence against the aggrieved.

    Decision and Reasoning: The appeal was allowed and the protection order was discharged.

    1. In relation to whether the Magistrate’s conclusion that the appellant committed domestic violence against the applicant was correct, Irwin DCJ concluded that the Magistrate was entitled to prefer the evidence of the applicant’s witnesses over the unsigned statements of the appellant and his witnesses. The statements tendered by the applicant were signed. The appellant’s statements were not. It was also open to the Magistrate to conclude that the appellant had continually harassed and intimidated the applicant.
    2. However, Irwin DCJ concluded that it was not open on the evidence for the Magistrate to conclude that the appellant was likely to commit an act of domestic violence again, or carry out a threat to do so. After the application was made, the applicant stated that the appellant had left the house where they were living, had not returned and there had been minimal contact since a temporary protection order was made. There was no evidence of physical violence and she said she did not feel threatened by him. As such, there was not sufficient evidence to support an inference that domestic violence was likely to occur again. While there were a string of emails that did constitute harassment, the last of these were 12 months before the Magistrate made the protection order. The appellant had also clearly indicated he wished to have no further contact with the applicant.