Queensland

Court of Appeal

  • ZXA v Commissioner of Police [2016] QCA 295 (15 November 2016) – Queensland Court of Appeal
    Domestic violence protection order’ – ‘Rights of appeal

    Appeal Type: Appeal against domestic violence protection order.

    Facts: The applicant was named as the respondent in a domestic violence protection order under s 37 of the Domestic and Family Violence Protection act 2012 (Qld). He filed an appeal to the District Court under s 164 of the Act. The appeal was dismissed. The applicant then attended the Supreme Court registry to file an application for leave to appeal under s 118 of the District Court of Queensland Act 1967 (Qld). Despite being told that there was no right of appeal, the applicant persisted until the registry acceded to his demands.

    Issue/s: Whether the Court of Appeal had jurisdiction under s 169(2) of the Domestic and Family Violence Protection Act 2012 (Qld) to hear the appeal?

    Decision and Reasoning: The appeal was dismissed. Under s 169(2) of the Act, the decision from which the applicant seeks leave to appeal ‘shall be final and conclusive’. While s 118(3) of the District Court of Queensland Act allows a party to appeal, it does not apply to a decision of the District Court in its appellate jurisdiction under s 169(1): see CAO v HAT & Ors [2014] QCA 61 [25] – [27]. The President concluded:

    ‘The scheme under the Act contemplates that domestic violence protection orders can be made by a wide variety of courts with a right of appeal from such orders…The scheme does, however, clearly contemplate only one level of appeal. The plain words of s 169(2) that such an appeal is “final and conclusive” indicate that the legislature intended that there be no further appeal. The applicant has exhausted his single right of appeal from the Magistrates Court to the District Court. He can, of course, apply to vary the domestic violence protection order under s 86 of the Act, including to vary the duration of the order: see s 86(3)(b) of the Act’.
  • R v Williams [2015] QCA 276 (18 December 2015) – Queensland Court of Appeal
    Aggravating factor’ – ‘Attempted murder’ – ‘Breach of domestic violence order’ – ‘Burglary’ – ‘Impact on children’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Separation

    Charge/s: Attempted murder, burglary.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The applicant had separated from his wife, and had recently found out that she was in a new relationship. He broke into her home, stabbed her while she was sleeping on her back next to her two year old daughter and then ran off. She immediately awoke to find a knife sticking out of her chest, which she removed, at which point she collapsed. He was sentenced to 15 years imprisonment and declared to be a serious violent offender.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: Leave to appeal was refused. The applicant submitted that the trend of sentences for attempted murder cases shows that the appropriate range is 10 to 17 years, and that 15 years is excessive compared with analogous cases. This argument was rejected. Bond J (with whom Jackson J and Philip McMurdo JA agreed) at [17]-[30] provided a useful summary of previous attempted murder cases involving domestic violence. The Court acknowledged that the offence of attempted murder attracts a wide variety of punishments. However, consistent with the approach articulated by the High Court in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, where comparable sentences can provide assistance, but do not set a range of permissible sentences, the Court held that the original sentence was within the discretion open to the trial judge.

  • R v Johnson [2015] QCA 270 (11 December 2015) – Queensland Court of Appeal
    Consent’ – ‘Rape’ – ‘Sexual and reproductive abuse

    Charge/s: Rape.

    Appeal Type: Appeal against conviction.

    Facts: The appellant met the complainant on Facebook and was in a relationship with her for seven weeks. During sexual intercourse, the complainant withdrew her consent and alleged she was then raped by the appellant. The appellant was convicted of rape following a trial.

    Issue/s: One issue concerned whether the verdict was unreasonable and unsupportable having regard to the evidence.

    Decision and Reasoning: The appeal was dismissed. Morrison JA (with whom Gotterson JA and Philippides JA agreed) held that it was open to the jury to be satisfied beyond reasonable doubt that by the complainant saying ‘no’ and ‘stop’ multiple times, he was not under any mistake as to whether she had consented to sex.

  • R v Leedie [2015] QCA 216 (6 November 2015) – Queensland Court of Appeal
    Deprivation of liberty’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Pre-recorded evidence’ – ‘Rape’ – ‘Sexual and reproductive abuse’ – ‘Support person’ – ‘Torture

    Charge/s: Rape, deprivation of liberty, torture.

    Appeal Type: Appeal against conviction.

    Facts: The appellant was convicted of eight offences including rape, deprivation of liberty and torture. The appellant had been in an ‘off and on’ romantic relationship with the complainant. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the appellant in favour of the complainant or other parties. There was no history of violence in the relationship. The offending arose after the appellant asked the complainant to visit his house to have sex. Consensual sex then occurred. However, following the appellant seeing a message from his brother on the complainant’s phone, he became angry, proceeded to become extremely violent, and raped the complainant multiple times across the night. He did not let her out of the house, and tortured her. The complainant was deemed a ‘special witness’, and gave pre-recorded evidence two days before trial, with her mother present as a support person (pursuant to s 21AK of the Evidence Act 1977). Her mother was made aware by the judge during the recording that she was not to have any participation in the proceedings other than as a support person. The mother then made comments to the complainant which reminded her about the details of one of the rape offences. It was accepted at [55] that her mother’s conduct was ‘inappropriate’. However, the trial judge, in response to defence counsel’s application for a mistrial, made detailed warnings to the jury about the caution they needed to apply when considering the complainant’s evidence.

    Issue/s: One ground of appeal concerned whether the trial judge erred by failing to discharge the jury after the complainant’s mother suggested to the complainant what she might say in her evidence.

    Decision and Reasoning: The appeal was dismissed. The Court held that these directions were sufficient to warn the jury that the reliability of the complainant’s evidence may have been undermined by her mother’s reminder of the details of the appellant’s offending. Furthermore, at trial, the judge offered to order a further pre-recording of the complainant’s evidence, which was declined by the appellant.

  • R v Andres [2015] QCA 167 (11 September 2015) - Queensland Court of Appeal
    Circumstantial evidence’ – ‘Intent’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Self-defence’ – ‘Whether guilty verdict unreasonable

    Charge/s: Murder.

    Appeal Type: Appeal against conviction.

    Facts: The appellant was convicted by a jury of the murder of his wife. His version of events included, (among other things) the contention that the deceased had injured him with a fork and he was placed in fear of his life. (See at [4]-[113]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife.

    Issue/s: The appellant admitted that he had caused his wife’s death, but maintained that he did not have the requisite intention to prove murder. As such, the question for the Court was whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. More specifically, the issue was whether the accused had the requisite intention to prove murder. Also at issue was whether he had killed his wife by accident or in self-defence.

    Decision and Reasoning:

    The appeal was dismissed, with the Court finding that a guilty verdict was open to the jury on the evidence. Boddice J, (with whom Morrison JA and Carmody J agreed), found that the only evidence to support the conclusion that the death occurred by accident or in self-defence was the appellant’s own evidence, which lacked probative force. This was because, among other things, the appellant admitted he had deliberately lied and changed his story, and he had dissolved the deceased’s body in acid, which made it difficult to determine the cause of death. While the case was wholly circumstantial, it was noted that intent can be proved by inference, by considering the probative value of the evidence as a whole.

  • R v Jones [2015] QCA 161 (1 September 2015) – Queensland Court of Appeal
    Evidence’ – ‘Expert testimony’ – ‘Killing for preservation in an abusive relationship’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence

    Charge/s: Murder.

    Appeal Type: Appeal against conviction.

    Facts: The appellant was convicted for the murder of his mother. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of the victim or other parties. The issues at trial related substantially to self-defence and provocation. Evidence of the history of the relationship was admitted in the context of the defence under s 304B of the Queensland Criminal Code of killing in an abusive domestic relationship (See further at [3]-[13]).

    Issue/s: Whether the trial judge erred by not admitting expert psychiatric evidence.

    Decision and Reasoning: The appeal was dismissed. North J (with whom Holmes JA and Henry J agreed) held firstly that this evidence was not admissible under s 132B of the Evidence Act 1977. It was not relationship evidence. The Court also held that the matters that the psychiatrist spoke of were not complex in a scientific sense, and the jury, properly instructed, were able to understand them without needing to hear the expert evidence itself. The psychiatrist did not identify that the appellant was suffering from any recognised psychiatric illness. Rather, he only spoke generally that the appellant had developed coping strategies in response to his mother’s violent and difficult behaviour. The jury, in applying common sense, would have been able to reach this conclusion themselves. North J, comparing the ‘battered wife defence’, noted that there is no ‘battered child defence’ in law. That is, there is no defence where, ‘insults and abuse may be relied upon by a child by way of excuse for a fatal attack upon an abusive parent’ (See at [19]).

  • R v Pearson [2015] QCA 157 (28 August 2015) - Queensland Court of Appeal
    Directions and warnings for/to jury’ – ‘Evidence’ – ‘Intent’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Relationship evidence

    Charge/s: Murder.

    Appeal Type: Appeal against conviction.

    Facts: The appellant was convicted of the murder of his wife (See further at [2]-[5]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife. The issues at trial concerned whether he had the requisite intent to kill or do grievous bodily harm, and whether the defence of provocation arose.

    Issue/s: One issue on appeal was whether the trial judge misdirected the jury in regards to the relevance of evidence of prior acts of domestic violence and discreditable conduct. In particular, the appellant submitted that the jury were misdirected about how they could use the evidence when deciding whether the appellant had the requisite intent for murder.

    Decision and Reasoning: The appeal was dismissed. At trial, the jury was directed to the effect that the evidence was relevant to explain the nature and animosity of the relationship between the appellant and the deceased. They were specifically directed that if they were to use that evidence to assist in determining the appellant’s state of mind at the time of the offence, they must be satisfied beyond reasonable doubt that the past acts occurred. Holmes JA (Morrison JA and Henry J agreeing) held that s 132B of the Evidence Act 1977 can be used to show a particular propensity of the accused to commit acts of a similar nature, as well for specific issues like intent. Her Honour, applying the approach of the High Court in Roach v The Queen [2011] HCA 12, noted that these two uses are distinct. In this case, the domestic violence evidence was only relevant as relationship evidence to prove intent. Propensity was not relevant because it was not in dispute that the appellant had caused the death of his wife. The jury were directed to this effect. A general propensity warning was not needed for the same reasons.

  • R v Piper [2015] QCA 129 (17 July 2015) – Queensland Court of Appeal
    Aggravating factor’ – ‘Breach of domestic violence order’ – ‘Grievous bodily harm with intent’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Grievous bodily harm with intent, breach of domestic violence order.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The applicant’s wife attended a hotel with a male friend. He falsely believed his wife to be in a romantic relationship with the friend. In an unprovoked attack, he stabbed the friend forcefully multiple times. The victim sustained six stab wounds, including one to his neck. The victim suffers lasting psychological difficulties as a result of the attack. There was a domestic violence order in place which prevented the applicant from coming within five metres of his wife. The attack breached this order, which became an aggravating feature in sentencing. He had no criminal history. He was sentenced to seven years’ imprisonment, becoming eligible for parole after three years.

    Issue/s: One issue concerned whether the sentence was manifestly excessive.

    Decision and Reasoning: Leave to appeal was granted. The offending was very serious. It was ‘a sustained, severe and premeditated attack, whilst armed with a knife, on a victim who had done nothing by way of provocation’ (See at [36]). It was committed in the context of a domestic violence order being in place. As such, the head sentence, whilst at the upper end of the scale, was within range, taking into account his lack of criminal history and plea of guilty. However, the Court concluded that the parole eligibility date should be brought forward. The applicant’s guilty plea, while late, ensured that witnesses did not have to give evidence, which was particularly important for the victim. The parole eligibility date was close to the ‘half-way mark’ in the sentence. This did not reflect the significance of his guilty plea, remorse and cooperation and lack of criminal history. As such, the parole eligibility date was changed and set at the one-third mark in the sentence.

  • R v Wallace [2015] QCA 62 (21 April 2015) – Queensland Court of Appeal
    Emotional abuse’ – ‘Following harassing, monitoring’ – ‘Fraud’ – ‘Fresh evidence’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Verbal abuse’ – ‘Where the offender is also a victim

    Charge/s: Six counts of fraud.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The applicant pleaded guilty at trial to six counts of fraud. See at [3]-[11]. It is unclear whether at the time of the offences, there was a current or lapsed protection order in place against the applicant’s ex-husband in favour of the applicant or other parties.

    Issue/s: Whether the applicant could adduce fresh evidence not led at the original sentencing hearing.

    Decision and Reasoning: The fresh evidence involved long term domestic violence that the applicant suffered from her ex-husband, including controlling behaviour such as taking the applicant’s phone and keys to prevent her from seeking help, threatening her children, stealing money from her business, and severe physical violence. It also included evidence from a psychiatrist detailing the effect of the abuse on her, to the extent that she did not fully understand the repercussions of her offending. This was found to be consistent with what has come to be known as the ‘battered person’s syndrome’. The appeal was allowed and the evidence was admitted. The head sentence was reduced by one year.

    McMurdo P, (with whom Gotterson JA and Douglas J agreed) noted that lawyers acting for clients charged with criminal offences who claim to be the victim of domestic violence should take such claims very seriously to determine the relevance to their client’s alleged offending. They should then put such evidence before the primary court either as a defence, or in sentence mitigation.

    See in particular the following remarks of McMurdo P at [37] -

    '… The further evidence led in this application established that at the time of the offending the applicant was in an abusive, exploitive relationship which impaired her capacity to realise the full repercussions of her fraudulent behaviour and her ability to formulate a mature response to her financial and personal difficulties as she continued to take more and more money from the nursing home in the impossible hope that she would eventually repay it. As Dr Schramm (a psychiatrist) explained, she was not acting completely rationally. She was exhibiting behavioural disturbances following her prolonged and significant physical and emotional abuse, commonly known as “battered persons syndrome.” This took her offending behaviour out of the worst category of fraudulent offending in which the sentencing judge placed it. The further evidence raises the possibility that some other sentence than that imposed may be warranted; if so, its exclusion would result in a miscarriage of justice. '

  • R v Davidson [2014] QCA 348 (19 December 2014) – Queensland Court of Appeal
    Assault occasioning bodily harm’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim credibility

    Charge/s: Assault occasioning bodily harm, grievous bodily harm.

    Appeal Type: Appeal against conviction and sentence.

    Facts: The offending involved an incident where the appellant asked the complainant to perform a sexual act on his male friend. The appellant also engaged in sexual activity with the friend. The case at trial was based on the complainant’s version of events, which included that the appellant kicked and punched the complainant (the appellant’s partner) for a long period. There was a history of domestic violence in the relationship. A domestic violence order was made some six years prior. The appellant had a long criminal history of similar offences, including a breach of a domestic violence order. However, there was no associated breach of a domestic violence order in this matter. The appellant was sentenced to five years imprisonment with parole eligibility set at 2.5 years.

    Issue/s: Whether the failure to call new evidence from witnesses who challenged the complainant’s credibility established a miscarriage of justice.

    Decision and Reasoning: The appeal was dismissed. The appellant contended specifically that the failure to call a particular witness established a miscarriage of justice and noted that his defence counsel did not explore the detail of the evidence in cross-examination. The Court rejected that argument – the failure of counsel to adduce this new evidence was justifiable as a strategic decision in the trial context to not risk other unfavourable evidence being admitted. The appeal against sentence was also dismissed.

  • R v Aplin [2014] QCA 332 (16 December 2014) – Queensland Court of Appeal
    Aboriginal and Torres Strait Islander people’ – ‘Community protection’ – ‘General deterrence’ – ‘Grievous bodily harm’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Serious violent offence declaration

    Charge/s: Grievous Bodily Harm.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The applicant, an Aboriginal and Torres Strait Islander man, caused catastrophic harm to the 21 year old complainant, with whom he had recently commenced a relationship. She was in a ‘vegetative state’ at the time of trial. He made full admissions to police. He sought to have evidence of these admissions excluded, which was refused. He then pleaded guilty. The applicant had a long history of domestic violence including multiple breaches of domestic violence orders. The sentencing judge mentioned the need to have regard to this history, as well as the extent of the injuries and the need for deterrence (see at [12]). He was sentenced to 9 years’ imprisonment and a ‘serious violent offence’ declaration was made.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The applicant submitted that various mitigating factors applied including that no weapon was involved, there was no premeditation, he attempted to administer aid, requested that an ambulance be called and there was a degree of provocation. He also submitted that the sentencing judge was in error in using a 10 year head sentence as a starting point. Fraser JA (with whom McMurdo P and Morrison JA agreed) held that there was nothing to indicate the primary judge overlooked these factors or the applicant’s disadvantaged background. Indeed, given the ‘seriousness of the offence, the catastrophic consequences for the complainant, and the applicant’s bad history of violent offending in broadly similar circumstances’ (See at [16]), it was open to the primary judge to attach relatively light weight to the mitigating factors. Furthermore, the trial judge was correct in using a previous decision with a head sentence of 10 years for ‘guidance’. While the Court acknowledged that this sentence was severe given the maximum penalty, the guilty plea, the offender’s age and other mitigating circumstances, it was justified for this ‘extreme example of domestic violence by a repeat offender’,([26]) where general deterrence and community protection were very relevant.

  • R v Warradoo [2014] QCA 299 (25 November 2014) – Queensland Court of Appeal
    Directions and warnings for/to jury’ – ‘Evidence’ – ‘Hearsay’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence

    Charge/s: Murder.

    Appeal Type: Appeal against conviction.

    Facts: The appellant was convicted of the murder of his girlfriend. (See further at [3]-[7]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of the victim. At trial, evidence relating to conversations with the deceased’s niece and mother which detailed instances of prior violence committed by the appellant was admitted. No warning was given by the trial judge as to the potential unreliability of this evidence as hearsay.

    Issue/s: Whether the trial judge erred by not giving adequate warnings with respect to evidence admitted under section 93B of the Evidence Act 1977.

    Decision and Reasoning: The appeal was dismissed. Holmes JA stated (at [8]) that section 93B operates to, ‘(render) the hearsay rule inapplicable to evidence of a representation of fact made by a person who is dead, if the representation was made shortly after the asserted fact happened and in circumstances making it unlikely to be a fabrication, or was made in circumstances making it highly probable it was reliable.’ It was held that a direction from the trial judge about the unreliability of the evidence as hearsay would not have been particularly helpful, and may have even been disadvantageous to the appellant. Also, the evidence was admissible under s 132B of the Evidence Act 1977 as evidence of the history of a domestic relationship.

  • R v RAP [2014] QCA 228 (11 September 2014) - Queensland Court of Appeal
    Damaging property’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm

    Charge/s: Unlawful assault causing bodily harm, unlawfully damaging property.

    Appeal Type: Appeal against sentence.

    Facts: The appellant pleaded guilty to unlawfully assaulting his wife, causing her bodily harm and unlawfully damaging property. The appellant had a relevant criminal history involving a breach of a domestic violence order. However, this was effectively ignored by the sentencing judge. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the appellant in favour of his wife. In mitigation, the sentencing judge considered a psychiatrist’s report indicating that at the time of the incident, the appellant was likely suffering from, ‘a major depressive episode and, probably, a form of alcohol dependence’. There was also a report from a psychologist who had treated the appellant before the offences and diagnosed him with, ‘an acute, moderate to severe adjustment disorder with mixed anxiety depressed moods at that time.’ A later review by that psychologist indicated he suffered a ‘chronic and mild adjustment disorder with anxiety’ and a year later ‘a mild borderline adjustment disorder’ was diagnosed. He was sentenced for the assault charge to two years imprisonment, suspended after eight months with an operational period of 2.5 years. He was sentenced to two months imprisonment for the property damage charge to be served concurrently.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The couple had previously separated, and the incident arose when the appellant returned to the matrimonial home. The complainant’s injuries were significant and she was in fear of her life during the attack. Wilson J (with whom McMurdo P and Fraser JA agreed) at [39] – [46] provided a useful summary of comparable cases. The Court held that a serious assault in the domestic context warrants imprisonment for two years or more. The suspension imposed was a correct application of the mitigating factors, and the serious nature of the violence.

  • R v Foster [2014] QCA 226 (9 September 2014) – Queensland Court of Appeal
    Assault occasioning bodily harm’ – ‘Deprivation of liberty’ – ‘Following, harassing, monitoring’ – ‘Preliminary complaint’ – ‘Rape’ – ‘Sexual and reproductive abuse’ – ‘Victim disclosure and consent

    Charge/s: Rape, Assault occasioning bodily harm, deprivation of liberty.

    Appeal Type: Appeal against conviction.

    Facts: The appellant was convicted at trial of two counts of the rape of his partner, after he was found to have penetrated the complainant with a hairbrush, an aerosol can and a water bottle. He pleaded guilty to other charges including assault occasioning bodily harm and deprivation of liberty. There was no domestic violence order in place.

    Issue/s: Whether evidence of the complainant’s response in a state of distress, to the question of ‘Had you been raped?’ amounted to an admissible preliminary complaint of rape. The complainant had not directly answered the question but ‘looked sad’ and ‘slumped her shoulders, to look as if she was about to burst into tears and to look beaten’. (See at [33]).

    Decision and Reasoning: The Court found that this amounted to a complaint, within the meaning of Section 4A of the Criminal Law (Sexual Offences) Act 1978. Importantly, Gotterson JA (with whom McMurdo P Morrison JA agreed) noted that an admissible complaint need not require a verbal response. In particular, ‘A meaningful response may be signalled by conduct other than speech. That conduct may include the absence of a verbal rejection of the proposition’. However, Gotterson JA noted that the acceptance could have been clearer, and this was a ‘borderline’ example of a complaint. Furthermore, it is not necessary for a preliminary complaint of rape to refer to any specific incidence of penetration. Simply stating, ‘I was raped’ is sufficient to amount to a preliminary complaint.

  • R v Reed [2014] QCA 207 (26 August 2014) - Queensland Court of Appeal
    Assault occasioning bodily harm’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Purpose of evidence’ – ‘Relationship evidence

    Charges: Assault occasioning bodily harm, murder.

    Appeal Type: Appeal against conviction.

    Facts: The appellant was convicted of the assault occasioning bodily harm and murder of his partner’s 16 month old child. See further at [6]-[17].

    Issue: Whether the trial judge erred in admitting evidence of prior facial grazing injuries suffered by the child.

    Decision and Reasoning: Henry J (with whom Gotterson JA and McMurdo P agreed) firstly held that this evidence was not inadmissible purely because of a possible innocent explanation for the injuries. His Honour considered all the non-fatal injuries on the child in their totality, and found that the probability that they occurred accidentally became too remote. The evidence was capable of supporting an inference (in combination with the other evidence) that the non-fatal injuries were the result of deliberate violence by the appellant. This evidence, of itself, was not indispensable to a finding of guilt – it assisted as ‘strands of a cable rather than as indispensable links in a chain’ (See at [39]). The evidence was also relevant to the proof of the charges as relationship evidence pursuant to 132B of the Evidence Act 1977. The trial judge correctly found that injuries can be probative of the history of a domestic relationship. It also potentially showed a propensity of the appellant to commit similar violence. However, the trial judge did not rule on this and in fact gave a warning against propensity reasoning. Notwithstanding, the trial judge did make an error of law in failing to sufficiently instruct the jury about the purpose of the evidence of the uncharged injuries, applying the High Court decision in Roach v The Queen [2011] HCA 12. The trial judge did tell the jury that the evidence could be used to show that the nature of the relationship was violent, but he did not go further to explain that the purpose of putting this history of violence before the jury was to provide an ‘informed context’ (See at [69] – [70]) for the jury’s consideration of the charges. Notwithstanding, the appeal was dismissed pursuant to the proviso.

  • R v HBL [2014] QCA 270 (24 October 2014) – Queensland Court of Appeal
    Abduction’ – ‘Breach of domestic violence order’ – ‘Deterrence’ – ‘Domestic violence order’ – ‘Family law orders’ – ‘Mitigating factors’ – ‘Sentencing

    Charge/s: Abduction, breach of domestic violence order.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The applicant was in a long-term, intermittent relationship and had one child. His partner sought and obtained a domestic violence order (DVO) in 2011. In 2012, an order in the Federal Magistrates’ Court was made that the child was to live with the mother. Limited contact was allowed with the mother’s consent. The mother left the child at a friend’s house, whereupon the applicant arrived unannounced and took the child, drove away, and held the child for a period of time, in breach of the DVO. He made repeated calls stating he would not return the child if the child was to be handed back to the mother or her friend. The applicant had a long criminal history of over fourteen court appearances, including a previous breach of a child protection order (albeit towards the lower end of seriousness). The applicant pleaded guilty to the abduction and breach offences and was sentenced in the District Court to 4 years’ imprisonment for abduction. He was convicted but not further punished for the breach. The primary judge implicitly accepted the Crown’s submission that this conduct was in the worst category of offending.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was allowed. While the applicant had a long criminal history, Fraser JA (with whom Mullins J and Gotterson JA agreed), compared analogous decisions and highlighted factors which made them distinguishable. His Honour noted that the child was not unrelated or unknown, there was no sexual motivation and the taking was non-violent. As such, the Court held that this was not within the worst category of offending. Notwithstanding, the Court noted that such conduct (including the fact that the appellant was motivated to be with his son and breaching court orders) cannot be condoned and deterrence is important. As such, a custodial sentence was imposed but was reduced to 18 months’ imprisonment with immediate parole eligibility.

  • R v Francis [2014] QCA 258 (14 October 2014) – Queensland Court of Appeal
    Arson’ – ‘Breach of domestic violence order’ – ‘Damaging property’ – ‘Deterrence’ – ‘Fresh evidence’ – ‘Mitigating factors’ – ‘Sentencing’ – ‘Separation

    Charge/s: Arson.

    Appeal Type: Appeal against conviction and sentence.

    Facts: The arson was targeted at the appellant’s ex-wife’s new partner’s mother’s car. The offence constituted a breach of a domestic violence order (See further at [3]-[18]).

    Issue/s: Appeal against conviction: Whether the verdict was unreasonable and not supported by the evidence, and whether the appellant could adduce further evidence not led at trial.

    Appeal against sentence: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal against conviction was dismissed. McMurdo P noted that while the case was circumstantial, it was strong, and a guilty verdict was open to the jury. The application to adduce further evidence was also dismissed. The court held that while an affidavit from the appellant’s former partner was somewhat inconsistent with her evidence at trial, there was no significant possibility that the jury would have acquitted him on this basis. However, the appeal against sentence was allowed, reducing the head sentence from 4.5 to 4 years. Defence counsel submitted that the sentence was excessive for arson of a car rather than a house, while the prosecution submitted that it was a flagrant breach of a domestic violence order and general deterrence was necessary for an arson committed as a jealous rage due to a relationship breakdown. McMurdo P held that the sentence was manifestly excessive. The trial judge did not take into account pre-sentence custody, and the appellant only had a minor criminal history prior to this offending.

  • R v Murray [2014] QCA 160 (18 July 2014) – Queensland Court of Appeal
    Aboriginal and Torres Strait Islander people’ – ‘Community protection’ – ‘Damaging property’ – ‘Deterrence’ – ‘Grievous bodily harm’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Recidivism’ – ‘Sentencing’ – ‘Victim’ – ‘Weapons

    Charge/s: Grievous bodily harm.

    Appeal Type: Application for an extension of time to appeal against conviction.

    Facts: The applicant, an aboriginal man with a dysfunctional background, pleaded guilty to the grievous bodily harm of his girlfriend. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the applicant in favour of the victim. He ripped off a door handle with which he struck her on the head, then punched her and struck her with a frying pan, causing severe injuries.

    Issue/s: Whether an extension of time should be granted on the basis that the applicant only pleaded guilty due to the strong urging of his lawyers, and that he was denied the right to present his defence.

    Decision and Reasoning: The application was refused - the applicant was an adult, of sound mind who understood the charge and entered a guilty plea after obtaining legal advice. An application for leave to appeal against sentence was also refused. McMurdo P (Fraser JA and Morrison JA agreeing) held that notwithstanding that he told the complainant to go to hospital, he had failed to demonstrate compassion or insight into the injury that he had caused. He had a substantial history of domestic violence and this recidivism made the protection of future intimate partners important. This was a serious example of grievous bodily harm in the context of domestic violence. General deterrence and denunciation were key considerations. McMurdo P described his girlfriend as a ‘reluctant complainant’. However, this was not a mitigating factor. The only mitigating factors were his guilty plea and dysfunctional background.

  • R v Seijbel-Chocmingkwan [2014] QCA 119 (27 May 2014) – Queensland Court of Appeal
    Attempted murder’ – ‘Attempted strangulation’ – ‘Dangerous operation of motor vehicle’ – ‘Denunciation’ – ‘General deterrence’ – ‘Impact of offence on victim’ – ‘Mitigating factors’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Serious violent offender

    Charge/s: Attempted murder, dangerous operation of a motor vehicle.

    Appeal Type: Appeal against sentence.

    Facts: While on parole for assault offences committed against her daughter, the applicant drove into her former husband’s car twice. She then stabbed her husband’s new partner in the shoulder and attempted to strangle her. There was no domestic violence order in place. She pleaded guilty to attempted murder and dangerous operation of a motor vehicle, for which she was sentenced to ten years’ and 12 months’ imprisonment respectively.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Morrison JA (with whom Gotterson JA and Martin J agreed) at [41] – [79] provided a useful summary of past Court of Appeal authority regarding sentencing of attempted murder offences which have an element of domestic violence. The Court considered factors such as premeditation, cooperation with authorities, remorse, the gravity of the attack and prior convictions. (See full list at [79]). The applicant was also suffering from a mental disorder, namely an ‘adjustment disorder with anxious and depressed mood’. While this was a mitigating factor, the Court held that the original sentence did adequately recognise this and other mitigating features such as her efforts at rehabilitation by enrolling in study and other courses, which were correctly balanced with the need for denunciation and general deterrence.

  • R v Martin [2014] QCA 80 (14 April 2014) - - Queensland Court of Appeal
    Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Consistency of sentence with other orders’ – ‘Costs’ – ‘Following, harassing, monitoring’ – ‘Stalking’ – ‘Systems abuse’ – ‘Using carriage service

    Charge/s: 41 offences, including stalking, 26 counts of breaches of domestic violence orders, two counts of assault occasioning bodily harm, five counts of using a carriage service to make a threat to kill and six counts of using a carriage service to menace or harass.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The applicant pleaded guilty in the Magistrates’ Court to all offences. The stalking was committed against the applicant’s ex-partner. A head sentence of two years imprisonment was imposed in the Magistrates’ Court, with all sentences to be served concurrently. The applicant was also placed on a domestic violence order in favour of his ex-partner for 5 years. The Magistrate made adverse findings in relation to the applicant’s offending, his lack of remorse and the real risk of him re-offending. Mitigating factors included pleas of guilty and completion of a domestic abuse program while in custody. His parole release date was set after he had served one third of the head sentence, taking into account pre-sentence custody.

    Issue/s: Whether the remaining period on parole should be substituted with a suspended sentence, due to the comparative administrative ease of a suspended sentence in obtaining permission to leave the state.

    Decision and Reasoning: Leave to appeal was refused. A previous appeal to the District Court was struck out due to the applicant’s uncooperative nature, and the many opportunities that were given to him through adjournments to allow him to appear personally in Court, as well as the primary judge’s finding of fact that he had misled the Court. The Court found that the primary judge acted appropriately.

  • R v MBY [2014] QCA 17 (18 February 2014) – Queensland Court of Appeal
    Aboriginal and Torres Strait Islander people’ – ‘Mitigating factors’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charge/s: Rape, maintaining a sexual relationship with a child under 16.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The applicant, an Aboriginal man committed the offences against his daughter. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the applicant in favour of the victim or other parties. (See further at [6]-[20]).

    Issue/s: Whether the primary judge failed to give appropriate weight to circumstances of deprivation in his upbringing, including the social and economic disadvantage associated with his Aboriginality and the physical, sexual and emotional abuse that he had suffered as a child. Another issue was whether the primary judge failed to have regard to the applicant’s rehabilitative prospects.

    Decision and Reasoning: In dismissing the appeal, Morrison JA (Muir JA and Daubney J agreeing) discussed the relevance of the applicant’s Aboriginality in sentencing. See in particular at [60]-[73] where his Honour provides a detailed summary of relevant authority including the High Court decision of Munda v Western Australia [2013] HCA 38. Essentially, his Honour accepted that social, economic and other disadvantages (including alcohol and drug abuse) which may be related to an offender’s Aboriginality, should be taken into account as a mitigating factor in sentencing. Indeed, there is authority to suggest that when an Aboriginal offender is being sentenced, the Court should, ‘sentence (the offender) as leniently as the circumstances of his offence admitted’. (See R v Bell [1994] QCA 220). However, this cannot undermine individualised justice. That is, the deprived background of an Aboriginal and Torres Strait Islander offender may be given appropriate weight in sentence mitigation, but it cannot be given undue primacy. It cannot result in a punishment being imposed that does not reflect the gravity of the offending, or which does not pay sufficient regard to considerations such as specific and general deterrence, which are particularly important in domestic violence cases. The second ground of appeal, that the applicant’s rehabilitative prospects were not given enough weight was also dismissed.

  • R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 (11 February 2014) – Queensland Court of Appeal
    Abuse of process’ – ‘Breach of domestic violence order’ – ‘Concurrent criminal proceeding’ – ‘Double punishment’ – ‘Grievous bodily harm’ – ‘Permanent stay

    Charge/s: Grievous bodily harm.

    Appeal Type: Appeal against a permanent stay of proceedings.

    Facts: This decision was not directly related to domestic violence. However, it is relevant to situations where the Court is dealing with a breach of a domestic violence order and another criminal offence concurrently. The respondent was originally charged with public nuisance, which was dealt with summarily. However, following a formal statement made by the complainant to police and a medical opinion received, he was charged with grievous bodily harm (GBH). At trial, an application was made for a permanent stay on the basis of Section 16 of the Queensland Criminal Code, which provides that a person cannot be punished twice for the same act or omission. The application was granted, with the primary judge holding that the act which formed the basis of the GBH charge was the same act which formed the basis of the public nuisance charge.

    Issue/s: Whether the trial judge was correct in granting the permanent stay based on the rule against double punishment.

    Decision and Reasoning: The appeal was dismissed, with the Court applying the approach previously articulated in R v Gordon where Hanger CJ stated - “Section 16, in saying that a person cannot be twice punished for the same act or omission, must be referring to punishable acts or omissions; and the prohibition applies though the acts or omission would constitute two different offences. It is to these cases that the section is directed.”

    Prima facie, the same test would apply when considering whether a breach of a DVO constitutes the same act for which another criminal charge is based. However, it should be noted that there is uncertainty about the application of Section 138 of the Domestic and Family Violence Protection Act 2012 (Qld) in this context, particularly as to whether Section 138 allows double punishment. For further information, see pages 88-91 of the Queensland Domestic and Family Violence Protection Act (2012) Bench Book, which considers various District and Magistrates’ Court decisions and the summary of R v MKW [2014] QDC 300 (18 June 2014).

  • R v Bartram [2013] QCA 361 (6 December 2013) – Queensland Court of Appeal
    Defence of dwelling’ – ‘Physical violence and harm’ – ‘Self-defence’ – ‘Unlawful wounding’ – ‘Where the offender is also a victim

    Charge/s: Unlawful wounding.

    Appeal Type: Appeal against conviction.

    Facts: The appellant was convicted for unlawful wounding. The offence was committed in the following circumstances: the appellant had obtained a domestic violence order against the complainant; the complainant had previously been convicted for breaches of that order; according to evidence at trial, the complainant kicked down a door in breach of the DVO and, on the appellant’s evidence, the complainant had threatened violence towards her on the previous evening. The jury was directed about self-defence, but was not directed about the possibility of the ‘defence of a dwelling defence’ under s 267 of the Queensland Criminal Code.

    Issue/s: Whether the appellant was denied the possibility of an acquittal under 267 of the Queensland Criminal Code.

    Decision and Reasoning: The appeal was upheld – Muir JA (with whom Gotterson JA and Daubney J agreed) held that there was ‘ample evidence’ that the complainant unlawfully entered and remained in the dwelling, which could support the elements of the defence. The offending occurred under the house, but his Honour held that the definition of ‘dwelling’ in s 1 of the Code was broad enough to encompass underneath the house. As such, a retrial was ordered.

  • R v Brennan [2013] QCA 316 (25 October 2013) – Queensland Court of Appeal
    Breach of domestic violence order’ – ‘Denunciation’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Murder (two counts).

    Appeal Type: Application for leave to appeal against sentence and appeal against conviction.

    Facts: The appellant was convicted of murdering his estranged wife and her daughter in their home. Prior to the killings, the appellant made threats to his wife and to witnesses. These threats occurred in person and over the phone, resulting in a domestic violence order being served and two charges of using a carriage service to make threats. Several witnesses testified that the appellant made threatening remarks to his wife at the hearing for these charges. He was sentenced to life imprisonment on both counts of murder, with a 22 year non-parole period ordered, which was two years above the statutory minimum. The crime was also in breach of a domestic violence order in place to safeguard his wife.

    Issue/s: Whether the circumstances of the killings warranted the non-parole period to be extended beyond the 20 year statutory minimum, so as to make the sentence manifestly excessive.

    Decision and Reasoning: Leave to appeal was refused. In the appellant’s favour, the killing was not drawn out, there was no prolonged suffering and there was minimal planning involved. On the other hand, he killed not only his estranged wife, but a defenceless 14 year old girl in defiance of a domestic violence order which was intended for his wife’s protection. Also, the appellant displayed no remorse and pleaded not guilty which had made the process agonising for those affected. These factors warranted a strong element of denunciation and vindication for the victims in the sentence. The appeal against conviction was also dismissed.

  • R v Postchild [2013] QCA 227 (20 August 2013) – Queensland Court of Appeal
    Mitigating factors’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charge/s: Rape

    Appeal Type: Appeal against sentence.

    Facts: The applicant was convicted of the rape of his girlfriend and was sentenced to six years’ imprisonment. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the applicant in favour of the victim. The applicant had an extensive criminal history, consisting of street and property offences, as well as a previous conviction for carnal knowledge of a 13 year old girl. He had previously breached a reporting condition associated with this conviction. He committed the rape while on parole for unrelated offending. The primary judge described the rape as a ‘brutal act’, and that the applicant had treated his girlfriend as, ‘an object for his own sexual gratification and had had no regard for her feelings’ (See at [15]).

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed by majority. The Chief Justice, (with whom Gotterson JA agreed) held that the sentence was appropriate, and upheld the trial judge’s findings in relation to the brutality of the act.

    However, Holmes JA dissented and was of the view that the sentence should be reduced to 5 years with the non-parole period shortened. Her Honour’s judgment contains very useful summaries of all comparable cases, (see [17]-[32]). Holmes JA noted factors including that this was a single incident of a short duration, and was not a ‘protracted exercise in humiliation’ (at [33]). There was no forced entry or weapons used. Her Honour also noted that the, ‘offence did not occur in a context of fear or intimidation’, as the relationship was still on foot. Holmes JA was of the view that the nature of the relationship made these circumstances distinguishable from rapes performed by strangers (See at [34]). It was also noted that the victim was, ‘a strong minded young woman who was left humiliated and angry by what occurred, but not terrified’ and, ‘There was no evidence of lasting psychological harm’.

  • R v Susec [2013] QCA 77 (12 April 2013) – Queensland Court of Appeal
    Evidence’ – ‘Hearsay evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Post-offence conduct’ – ‘Probative value’ – ‘Relationship evidence’ – ‘Separation

    Charge/s: Murder.

    Appeal Type: Appeal against conviction.

    Facts: The appellant was convicted by a jury for the murder of his wife, and sentenced to life imprisonment (see further at [5]-[25]). It is unclear whether at the time of the offence, there was a current or lapsed protection order against the appellant in favour of his wife.

    Issue/s:

    1. Whether the trial judge should have admitted evidence of a previous incident of the appellant sharpening a knife in the presence of the deceased and two witnesses.
    2. Whether evidence of the victim’s statement that she believed her husband was going to kill her was admissible.
    3. Whether evidence of a conversation between the deceased and a co-worker, which was initially held to be hearsay evidence because it was too vague and unreliable but later inadvertently admitted during the questioning of the co-worker at trial resulted in a miscarriage of justice.
    4. Whether a conclusion that the appellant’s post-offence conduct involved inflicting wounds on himself, putting pepper in his own eyes and exaggerating the seriousness of his condition was open on the evidence.

    Decision and Reasoning:

    1. Gotterson JA (with whom McMurdo P and Muir JA agreed) held that such evidence was admissible under s 132B of the Evidence Act 1977. Its probative force was not outweighed by its potential prejudice to the accused. It was relevant to the state of the relationship, as well as to self-defence and provocation. It did have subjective elements, (such as the witnesses’ descriptions of their emotions during the incident), but this was not such as to enliven the s 130 discretion to exclude it, and the trial judge gave a sufficiently clear warning against its use as propensity evidence.
    2. The Court held that this evidence was admissible. The deceased’s fear of the appellant was relevant to the jury’s consideration of whether the deceased initiated an assault or provoked the attack.
    3. While the Court held that this evidence should not have been admitted, it did not amount to a miscarriage of justice so this ground was dismissed.
    4. The Court held that this conclusion was clearly open on the evidence (see at [70]).
  • R v James [2012] QCA 256 (24 September2012) – Queensland Court of Appeal
    Breach of domestic violence order’ – ‘Deterrence’ – ‘Physical violence and harm’ – ‘Plea of guilty’ – ‘Sentencing

    Charge/s: Breach of domestic violence order.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The complainant (the appellant’s de facto partner) was receiving treatment at a hospital necessitated by an earlier assault by the appellant. The appellant then waited outside a toilet door at the hospital and punched her in the face which caused pain, discomfort and swelling. He was sentenced to 9 months imprisonment for contravening a domestic violence order. He had a long criminal history including six prior breaches of domestic violence orders and convictions for other offences.

    Issue/s: Whether the sentence was manifestly inadequate.

    Decision and Reasoning: Leave to appeal was refused, with the Court upholding the 9 month sentence. The maximum penalty for breaching a domestic violence order applicable at the time was 12 months imprisonment. This was later increased to two years (three years if the accused has prior convictions). Also, Henry J observed that there ought not exist an expectation that a one third discount to the head sentence will be applied where there is a plea of guilty, although such an outcome may be common (Holmes JA and McMurdo P agreed). McMurdo P (Holmes JA agreed) found that a further exacerbating feature was that the offence occurred in a hospital where the victim and other patients should be entitled to freedom from exposure to such violence.

  • R v Murgha [2012] QCA 255 (24 September 2012) – Queensland Court of Appeal
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Breach of domestic violence order’ – ‘Deterrence’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim

    Charge/s: Grievous bodily harm, breach of domestic violence order.

    Appeal Type: Appeal against sentence.

    Facts: The applicant pleaded guilty to doing grievous bodily harm (GBH) to his de facto partner and breaching a domestic violence order. The offending was committed during the operational period of six suspended sentences. It involved the applicant throwing a knife at his partner who was pregnant. The knife became embedded in her skull. He was sentenced to three years’ imprisonment for the GBH offence and was convicted but not further punished for the breach offence.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: McMurdo P (Holmes JA and Henry J agreeing) dismissed the appeal and held that the sentence was appropriate. Mitigating factors included his remorse and corporation with police, his lack of similar criminal history, good rehabilitation prospects and his good standing in the community. The complainant also tendered a letter stating that: she wanted their child to grow up knowing their father; they planned to reconcile and that she found it hard to cope as a single parent. Notwithstanding, the sentencing judge correctly imposed a deterrent sentence. The primary judge noted that ‘the use of knives in domestic disputes on Palm Island was all too common’, which required a deterrent sentence. Other relevant factors included the fact the offence constituted a breach of a DVO and occurred while the applicant was subject to suspended prison sentences.

  • R v Pringle; ex parte Attorney-General (Qld) [2012] QCA 223 (24 August 2012) – Queensland Court of Appeal
    Exposing a child’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Serious violent offence declaration

    Charge/s: Manslaughter.

    Appeal type: Appeal against sentence.

    Facts: The respondent pleaded guilty to the manslaughter of his partner. He was in a long term relationship with the deceased, with whom he had three young children. He was a heavy cannabis user. In the weeks leading up to the killing, the deceased had confided to others about problems in the relationship. The respondent believed the deceased was having an affair and was upset as the deceased’s sister owed him $15 000. He was concerned the deceased was preparing to leave him and take his children – he claimed that she was ‘messing with my head’ (See at [10]). On the day of the killing, the respondent spoke to his parents who both encouraged him to seek help from a counsellor or psychiatrist. He then strangled the deceased until she was unconscious in the presence of the children. After moving the children to another room, he stabbed the deceased twice in the chest, killing her. He also stabbed himself but the injuries were not life threatening. After being declared fit to stand trial, but of diminished responsibility (under section 304A of the Queensland Criminal Code) by the Mental Health Court, he pleaded guilty to manslaughter. The psychiatrist stated that the respondent, ‘suffered from a personality disorder with paranoid traits.’ This, as well as his drug abuse and the viciousness of the killing suggested that his condition was likely to endure after being released from custody (see at [29]). However, gradual improvement may be expected with regular treatment (See at [15]). He had no relevant criminal history. He was sentenced to nine years’ imprisonment. Parole release would depend on his illness and progress of rehabilitation while in prison.

    Issue/s: Whether the sentence was manifestly inadequate and whether the sentencing judge should have made a ‘serious violent offence’ declaration.

    Decision and Reasoning: The appeal was dismissed. McMurdo P (with whom Muir JA and Gotterson JA agreed) held that as deterrence and denunciation were of less importance in this case due to the limited moral culpability of the respondent (because of his mental illness), the primary purposes of sentencing were the protection of the Queensland community and punishment of the offender. However, the Court found that a nine year sentence with no serious violent offence declaration and no parole eligibility date was within range for a spousal manslaughter based on diminished responsibility. There was a plea of guilty, no evidence of further danger to the community and evidence of remorse. A recovery was not certain, but the respondent was responding positively to medication and treatment. Also, the fact that he strangled the deceased in front of the children was an aggravating feature, but this had to be considered in the context of diminished responsibility which reduced his moral culpability for the crime.

  • R v Hughes [2012] QCA 208 (14 August 2012) – Queensland Court of Appeal
    Evidence’ – ‘Hearsay evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship evidence

    Charge/s: Murder.

    Appeal Type: Appeal against conviction.

    Facts: The appellant was convicted by a jury of murdering her de facto partner. There was a history of domestic violence between the appellant and the deceased and multiple domestic violence orders were taken out against each other on separate occasions. (See further at [5]-[49]).

    Issue/s: Whether the primary judge erred by admitting evidence of statements made by the deceased to various witnesses that he suspected the appellant had drugged him and whether the verdict was unreasonable having regard to the evidence.

    Decision and Reasoning: Both grounds of appeal were dismissed. The appellant submitted that the statements made by the deceased were not admissible because no relevant inference could be drawn from them, so they were hearsay statements and therefore inadmissible. This submission was rejected – the Court held that unlike in R v Lester [2008] QCA 354, the statements were not ‘reports of statements made to (the deceased) by others’. Instead, they were statements about the deceased’s own physical sensations after falling asleep in an unusual manner, and came after an episode of domestic violence between the appellant and the deceased. Such evidence was relevant to the ‘deceased’s relationship with the appellant, their mutual dealings and their attitudes for each other’, and to whether the appellant drugged the deceased (See at [64]). As such, it was admissible under section 93B of the Evidence Act 1977 as an exception to the hearsay rule. The other ground of appeal that the verdict was unreasonable having regard to the evidence was also dismissed.

  • R v Amery [2011] QCA 383 (23 December 2011) – Queensland Court of Appeal
    Malicious act with intent’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Pre-sentence custody’ – ‘Sentencing

    Charge/s: Malicious act with intent.

    Appeal Type: Appeal against sentence.

    Facts: In breach of a domestic violence order made that morning, the appellant returned to his de facto partner’s house and hit her head twice with a sledgehammer while she was sleeping, causing substantial injuries. The applicant pleaded guilty to a malicious act with intent and was sentenced to 8 years’ imprisonment, with no parole eligibility date set. No adjustment of the sentence was made for time already served in pre-sentence custody.

    Issue: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld. The Court noted that the head sentence was not outside the permissible range. The offending was very serious, was not a spontaneous response, and was committed in breach of the DVO. Also, he had a serious criminal history, including a similar breach of a domestic violence order. However, the trial judge erred in not adjusting the sentence for pre-sentence custody and not imposing a parole eligibility date. As such, also taking into account the (albeit late) plea of guilty, the sentence was reduced to seven years, seven months’ imprisonment, with the appellant becoming eligible for parole after three years.

  • R v Rowe [2011] QCA 372 (16 December 2011) – Queensland Court of Appeal
    Assault occasioning bodily harm’ – ‘Burglary with violence’ – ‘Common assault’ – ‘Damaging property’ – ‘Exposing a child’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Stalking’ – ‘Wilful damage

    Charge/s: Stalking with violence, burglary with violence, assault occasioning bodily harm, common assault and wilful damage.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The appellant had been in a relationship with the complainant for 6 years and had one child. The relationship ended, at which point the stalking began via telephone and text messages. There had been some conflict in the relationship about the care of the child. He broke into her home, demanded to see her phone and punched her on the head multiple times. He pushed a lighted cigarette on her leg, causing burns. He threatened to kill her. He tackled her to the ground to prevent her from seeking help and punched her again multiple times. He drove her to the hospital after she had cleaned up at his request. He yelled and threatened her while in the car, drove dangerously, and backhanded her to the side of her face. All of this occurred in front of their two year old child. Once the complainant was released from hospital he attended her workplace and caused significant damage to her car. He had a criminal history, including previous break and enter and assault occasioning bodily harm offences. The sentencing judge noted that the stalking was not prolonged, but it was very intense and violent. It was also noted that the child and the complainant must have been terrified.

    The applicant pleaded guilty to the above offences, and was sentenced to three years’ imprisonment for stalking with violence, two years’ imprisonment for burglary with violence and assault occasioning bodily harm and 12 months’ imprisonment for common assault and wilful damage. The sentences were to be served concurrently. He was on parole at the time for a prior violent offence. This resulted in a head sentence of three years which was cumulative on an existing term of three years imprisonment, with parole eligibility set at one year after the cumulative term had been served.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: Leave to appeal was refused. The applicant submitted that as the head sentence was reduced for the totality principle, the sentencing judge must have used a starting point of over three years which was not consistent with the comparable authorities. This was rejected. While the offending was short, it was intense, and was accompanied by actual and threatened violence, in the presence of a terrified child. The applicant’s stalking was more serious than in any of the relevant comparable authorities, and a head sentence of three years was appropriate given the circumstances of the offending and the appellant’s history, including that he was on parole for prior offences. The parole eligibility date was also found to be appropriate, given the offender was already subject to an existing term of imprisonment.

  • R v. Major; ex parte Attorney-General (Qld) [2011] QCA 210 (30 August 2011) – Queensland Court of Appeal
    Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Denunciation’ – ‘Deterrence’ – ‘Impact on children’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Social abuse’ – ‘Verbal abuse’ – ‘Wounding

    Charge/s: Seven counts of assault occasioning bodily harm, threatening violence at night, wounding, assault occasioning bodily harm while armed and various summary offences.

    Appeal Type: Appeal against sentence.

    Facts: The respondent pleaded guilty to the above charges. The offending included 8 episodes of domestic violence over a three year period, involving severe physical abuse such as punching, cutting off the tip of the victim’s finger, choking, wrestling, smashing objects on the victim’s head and verbal abuse. There were lasting physical impacts on the victim including nerve injuries, loss of sensation to her finger-tip and depression and anxiety. He was sentenced for the unlawful wounding offence to 3 years’ imprisonment, suspended after 741 days (the period already served) with an operational period of 5 years. He was sentenced to 2 years imprisonment for the remaining counts.

    Issue/s: Whether the sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was upheld, with the Court holding that the original sentence was manifestly inadequate. The Court noted that when concurrent sentences are imposed, it is important to ensure that the primary term adequately reflects the nature of each individual feature of the offending. This was not reflected in the trial judge’s sentence. The mitigating factors were not particularly powerful. For example, the absence of any prior history of violence was outweighed by the prolonged duration of the offences. The fact that the respondent was not subject to a domestic violence order was not a mitigating factor but merely a distinguishing feature from analogous cases. The Court noted that the original sentence should have been in the range of six to eight years. However, given that the defendant had commenced rehabilitation, it was deemed that imposing such a sentence on appeal would be inappropriate. Also, the respondent had no prior history of violence, and was not subject to any court order at the time of the offending. Nevertheless, the sentence was increased to 5 years with the same suspension period. Probation was added for another count.

    See in particular the useful remarks of McMurdo P at [53], regarding the considerations the courts should take into account for sentencing domestic violence offences – ‘The dreadful effects of prolonged episodes of domestic violence are notorious…Deterrence, both personal and general, is an important factor in sentencing in domestic violence cases. So too is denunciation. The community through the courts seeks sentences which show the public disapprobation of such conduct. The effects of domestic violence go beyond the trauma suffered by victims, survivors and their children to their extended families, and friends. Domestic violence also detrimentally affects the wider community, causing lost economic productivity and added financial strain to community funded social security and health systems.’

  • R v McMullen [2011] QCA 153 (1 July 2011)Queensland Court of Appeal
    Assault occasioning bodily harm’ – ‘Deprivation of liberty’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Rape’ – ‘Relationship evidence’ – ‘Threatening violence

    Charge/s: Assault occasioning bodily harm, deprivation of liberty, rape and threatening violence.

    Appeal Type: Appeal against conviction.

    Facts: The offences were committed against the appellant’s de facto partner. There was a current domestic violence order in place. The complainant alleged the appellant breached that order the night before he raped her.

    Issue/s: Whether the primary judge erred in admitting evidence of the appellant’s previous history of domestic violence and drug use, as well as other discreditable conduct.

    Decision and Reasoning: McMurdo P (with whom Cullinane J and Jones J agreed) held that the evidence of prior domestic violence was admissible to assist the jury in understanding the nature of their relationship, and was particularly relevant to the rape charges, where the lack of consent was the critical issue. However, her Honour noted that its admissibility remained ‘extraordinary and exceptional’ (at [83]) and warranted careful directions from the trial judge to warn the jury against propensity reasoning, applying the High Court decision of Roach v The Queen [2011] HCA 12. See in particular at [84], where her Honour referenced a model direction from the Queensland Supreme and District Court Bench Book. In this case, while the trial judge went ‘part way’ in warning the jury about the limits of the use of the evidence, he did not specifically give a warning against propensity reasoning. This amounted to an error of law. However, the appeal was dismissed pursuant to the proviso, with McMurdo P taking into account the ‘discerning’ verdicts of the jury on each count and the fact that defence counsel did not ask for a redirection during the trial.

  • R v Harold [2011] QCA 99 (17 May 2011) – Queensland Court of Appeal
    Character’ – ‘Criminal history’ – ‘Cumulation of sentence’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Manslaughter, assault occasioning bodily harm, various summary offences.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The circumstances of the offending included the applicant stabbing his de facto partner multiple times and striking her with a cricket bat (See further at [3]-[9]). The applicant had a substantial and relevant criminal history of violence against the deceased committed over a 10 year period. He was convicted a number of times for severe assaults (both common assaults and assaults occasioning bodily harm) on the deceased, including punching her and hitting her over the head with an iron bar. He had previously been the subject of multiple domestic violence orders in her favour, which he had often breached. The applicant was convicted for the manslaughter of the deceased and was sentenced to 14 years’ imprisonment, including 12 years for manslaughter. The extra two years took into account 9 summary offences and two counts of assault occasioning bodily harm to which he had pleaded guilty.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Martin J (with whom Chesterman JA and White JA agreed) held that the sentencing judge correctly made the 2 year sentence for the two charges of assault occasioning bodily harm cumulative because they were separate offences committed at different times, even though they were committed in a 10 year course of conduct. The total effective sentence was appropriate and within range. The sentencing judge observed this was a repetitive and prolonged attack with a knife making it a serious case of manslaughter.

  • R v Murray [2010] QCA 266 (8 October 2010) – Queensland Court of Appeal
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aggravated stalking’ – ‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Following, harassing, monitoring’ – ‘Grievous bodily harm with intent’ – ‘Physical violence and harm’ – ‘Serious violent offence declaration’ – ‘Stealing’ – ‘Threatening to enter premises with intent to intimidate

    Charge/s: Aggravated stalking (two counts), assault occasioning bodily harm, stealing, grievous bodily harm with intent, breach of domestic violence order (two counts).

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The offending involved continued harassment of the complainant (the former partner of the applicant), culminating in the charge of grievous bodily harm with intent. The applicant broke into the complainant’s home which she shared with her new partner and children. He hit her on the head with a frying pan, causing her to fall to the ground. He held a knife against her throat, tied her wrists and ankles and dragged her into the car. She then threw herself out of the car, at which point the applicant stabbed her in the left side then on her right side. He had a relevant criminal history, including prior offences of violence as well as a breach of a domestic violence order. Two of these offences involved violence against his mother as well as a former partner. Two psychiatric reports detailing the mental issues suffered by the applicant were put before the sentencing judge. The total effective sentence imposed at trial was 8 years’ imprisonment. A ‘serious violent offence’ declaration was made.

    Issue/s:

    1. Whether the sentencing judge erred in not giving reasons for making a ‘serious violent offence’ declaration.
    2. Whether the sentence was manifestly excessive.

    Decision and Reasoning: Leave to appeal was refused.

    1. In relation to the serious violence offence declaration, the applicant’s counsel at trial conceded that it would be impossible to submit that the declaration should not be made. The sentencing judge referred to this concession, in applying the ‘integrated approach to sentencing’ which is required in cases where a serious violent offence declaration is appropriate (See at [22]-[23]).
    2. Counsel for the applicant contended that 8 years’ imprisonment was manifestly excessive, as it was outside of the range established by comparable authorities and it did not have regard to the psychiatric problems suffered by the applicant. This argument was dismissed, with Cullinane J (Fraser JA and Chesterman JA agreeing) finding that eight years was not outside the permissible range. The mental health issues were considered at trial, as the sentencing judge expressly referred to them.
  • R v Clark [2009] QCA 2 (6 February 2009) – Queensland Court of Appeal
    Attempted murder’ – ‘Circumstantial evidence’ – ‘Damaging property’ – ‘Directions and warnings for/to jury’ – ‘Impact on children’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Relationship evidence’ – ‘Separation

    Charge/s: Attempted Murder.

    Appeal Type: Appeal against conviction and sentence.

    Facts: The appellant was convicted for the attempted murder of his former wife. There were cross domestic violence orders in place against each other. He was sentenced at trial to 16 years’ imprisonment. The case turned on purely circumstantial evidence. See further at [3]-[38].

    Issue/s: Whether the trial judge made errors by -

    1. Not issuing a Shepherd v R [1990] HCA 56 direction which deals with the how the jury must use pieces of evidence individually.
    2. Allowing the jury to consider evidence of the history of the relationship between the parties.

    The other issue was whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal against conviction was dismissed. The Court noted that in a case turning on circumstantial evidence alone, it is not necessary that every intermediate conclusion of fact made by the jury be proven beyond reasonable doubt. There may be some instances, as McMurdo P observed (at [40]) if it is necessary to ‘reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt’. However, generally, only the offence as a whole needs to be proven beyond reasonable doubt. In regards to the relationship evidence, the primary judge directed the jury to the effect that such evidence was not directly relevant to the alleged offence, but only to put the relationship between the parties in context. The Court held that this direction was adequate. The Court also refused leave to appeal against sentence, finding that the premediated nature of the offending and the lack of mitigating factors meant that this was at the highest end of the scale of attempted murders.

  • R v Chong; ex parte Attorney-General of Queensland [2008] QCA 22 (22 February 2008) – Queensland Court of Appeal
    Aboriginal and Torres Strait Islander people’ – ‘Breastfeeding mother’ – ‘Exceptional circumstances’ – ‘Hardship on children’ – ‘Mitigating factors’ – ‘Orders affecting children’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Unlawful wounding

    Charge/s: Unlawful wounding, breach of intensive correction order.

    Appeal Type: Appeal against sentence.

    Facts: The complainant was the respondent’s mother. They lived on the Aboriginal and Torres Strait Islander community of Mornington Island. Following an argument, the respondent stabbed the complainant three times, causing no lasting injuries. The respondent was sentenced to two and a half years’ imprisonment with immediate court ordered parole for the wounding offence.

    Issue/s: Whether the sentence was manifestly inadequate, particularly in relation to the order of immediate parole.

    Decision and Reasoning: The appeal was dismissed. The respondent had a substantial and relevant criminal history. In mitigation, the respondent had performed well on the intensive correction order, had pleaded guilty and was committed to looking after her seven children, including breastfeeding a baby and ensuring that those of school age attend school. She was an Aboriginal and Torres Strait Islander woman who had suffered abuse as a child. Atkinson J (with whom Keane JA and Fraser JA agreed) held that the head sentence was not manifestly inadequate. In considering whether the immediate parole order was appropriate, her Honour considered various factors, including the respondent’s disadvantage associated with her Aboriginality. Her Honour observed that, ‘The fact that the respondent is an Aboriginal and Torres Strait Islander woman living on Mornington Island is relevant to the question of the effect on her family’. (See at [36]). While the Court noted that the effect on an offender’s children can only be one relevant circumstance in determining sentence, the Court considered that exceptional circumstances were present. The respondent was a breastfeeding mother. Imprisonment would necessitate moving to the mainland, which would remove any practical means of maintaining the breastfeeding of the baby and personal contact with her other children. Her Honour quoted various secondary sources which discuss the substantial effect of incarceration on families, particularly on Aboriginal and Torres Strait Islander families. (See at [37] – [42]). The original sentence sufficiently incorporated deterrent and punitive elements, while the immediate parole allowed for rehabilitation.

  • R v Sauvao [2006] QCA 331 (1 September 2006) - Queensland Court of Appeal
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Attempted murder’ – ‘Breach of domestic violence order’ – ‘Community protection’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Serious violent offence declaration

    Charge/s: Attempted murder, breach of domestic violence order.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The applicant pleaded guilty to the attempted murder of his de facto wife and to a breach of a domestic violence order. The couple had separated. The complainant initially obtained an apprehended violence order in 2003 in New South Wales, which was then registered in Queensland upon moving to that state. In May 2005, at a railway station, the applicant attempted to stab the complainant with a small knife. The knife snapped on the complainant’s jacket, causing her no harm. He continued to punch and kick her, and hit her head into a chair and a pole. He was then stopped by bystanders. He admitted that if they had not intervened he would have persevered. He surrendered to police and made full admissions. He gave a full account and added details to his disadvantage. It is unlikely without his interview that anyone would have known about the use of the knife (the complainant herself was not aware of it), or about the applicant’s intention to kill as opposed to assault the complainant. The applicant’s only relevant criminal history was a breach of the domestic violence order in the preceding year, when he attended the house of the complainant. The applicant was sentenced to nine years’ imprisonment. A ‘serious violent offence’ (SVO) declaration was made.

    Issue/s: Whether the ‘serious violent offence’ declaration should have been made.

    Decision and Reasoning: Firstly, the Court held that the head sentence was ‘unremarkable’. However, Holmes JA (with whom McPherson JA and Douglas J agreed) upheld the appeal. The applicant showed profound and sincere remorse and the case involved ‘unusual’ mitigating factors. The Court found the SVO declaration should not have been made for two reasons. Firstly, there was nothing in the offence itself in terms of, ‘duration, its force or its consequences which took it out of the ordinary run of cases’. The offender had almost no criminal history. There was no element of community protection as the likelihood of repetition was remote. Secondly, he had cooperated utterly. However, the only sentence reduction he received for this cooperation and remorse was 9 and a half months (the difference between the nine year sentence with an SVO declaration, and a 10 year sentence). This was a minor reduction in the circumstances and made the SVO declaration manifestly excessive.

  • R v HAC [2006] QCA 291 (11 August 2006) – Queensland Court of Appeal
    Assault occasioning bodily harm’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sexual and reproductive abuse’ – ‘Torture’ – ‘Verbal abuse

    Charge/s: Torture, assault occasioning bodily harm, rape.

    Appeal Type: Appeal against conviction.

    Facts: The appellant held a longstanding belief in his wife’s infidelity. The acts relied on to constitute the offence of torture included abusive and humiliating acts such as: insisting that the children refer to the complainant as a slut or a whore rather than Mum, not allowing the children to show physical or verbal affection to her; forcing her to chew and swallow chillies in the appellant’s presence and forcing her to lick her vomit up; insisting that she perform sexual acts on his friends for money; insisting that she sleep outside the house without amenities; demanding that she drink his urine and attempting to persuade her to engage in a sexual act with a dog. The assault occasioning bodily harm conviction occurred when the appellant broke the complainant’s arm after she denied having sexual dealings with a neighbour. The rape conviction involved the appellant inserting the wooden handle of a ‘gaff hook’ into the complainant’s vagina. He was sentenced to 10 years’ imprisonment for torture, two years’ imprisonment for assault occasioning bodily harm and five years’ imprisonment for rape. A ‘serious violent offence’ declaration was made.

    Issue/s:

    1. Whether the directions given by the trial judge in respect of torture were inadequate.
    2. Whether the proviso should be applied.

    Decision and Reasoning: The appeal was dismissed in respect of issue 2.

    1. It was accepted that the directions given by the trial judge were not consistent with McMurdo P’s judgment in R v LM [2004] QCA 192 which requires that when more than one act in a series is relied upon to prove the elements of torture, the jury must be unanimously satisfied beyond reasonable doubt that the appellant committed at least one of the particularised acts. In this case, the trial judge’s directions, ‘effectively permitted the jury to convict of torture even though the jury might not have been unanimously satisfied as to which act or series of acts were intentionally inflicted to cause severe pain or suffering’ (see at [2]).
    2. The Court held that notwithstanding this error, no substantial miscarriage of justice occurred and the proviso should be applied. Jerrard JA (Holmes JA agreeing) held that it was clear which acts amounted to torture and this evidence was substantiated by unchallenged evidence from the complainant’s daughters. Williams JA (Holmes JA agreeing) held (despite some initial concerns with applying the proviso) – ‘The offence of torture was clearly established beyond reasonable doubt by the evidence; the relevant particulars being the conduct sworn to by the complainant, supported by the evidence of her daughters, and admitted by the appellant’ (see at [11]).
  • R v Friday [2005] QCA 440 (30 November 2005) – Queensland Court of Appeal
    Physical violence and harm’ – ‘Sentencing’ – ‘Wounding

    Charge/s: Wounding.

    Appeal Type: Appeal against sentence.

    Facts: The applicant and the complainant were in a de facto relationship. While intoxicated early in the morning, an argument started after the applicant alleged that she was seeing other men. The applicant got off the bed then stabbed her through the upper arm and side of the chest. The wound did not damage internal organs, but required deep and superficial stiches. He had a criminal history, consisting of various violent offences, and one offence of breaking and entering and committing an indictable offence. He pleaded guilty to wounding and was sentenced to three years’ imprisonment with no recommendation for post-prison community based released. This sentence was made cumulative upon an existing six month sentence that he was already serving. The sentencing judge referred to the need to deter others from obtaining a knife and stabbing someone just because of an argument. This conduct was prevalent on Palm Island, where the offence occurred. He was also sentenced for breaches of an intensive correction order and a domestic violence order.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld. The applicant submitted that if the sentencing judge had moderated the sentence for the mitigating factors (such as the guilty plea, the applicant’s age and an apology made to the complainant), then the starting point must have been four years, which is outside the permissible range of sentences for this type of offence. The Court agreed and suspended the three year sentence after nine months, with an operational period of three years.

  • R v Collins [2005] QCA 172 (27 May 2005) – Queensland Court of Appeal
    Breach of domestic violence order’ – ‘Deterrence’ – ‘Grievous bodily harm’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Grievous bodily harm.

    Appeal type: Application for leave to appeal against sentence and appeal against conviction.

    Facts: The applicant was convicted by a jury for the grievous bodily harm of his then partner. The applicant beat his then partner so severely that she suffered a ‘life-threatening subdural haematoma’ (See further at [2]). He was severely intoxicated at the time of the offence. The offence was committed in breach of a domestic violence order. The appellant also pleaded guilty to several other violent offences. These offences demonstrated a history of domestic violence committed against his then partner. He was sentenced to four years’ imprisonment, suspended after two years with an operational period of five years. This sentence for grievous bodily harm was ‘intended to reflect the applicant's criminality for all the offences to which he had pleaded guilty’ (See at [27]).

    Issue/s:

    1. Whether the guilty verdict was unreasonable.
    2. Whether the sentence was manifestly excessive.

    Decision and reasoning:

    1. The appeal against conviction was dismissed – see at [21]-[25].

      Leave to appeal was refused. The applicant did not take his partner to hospital for treatment until one day after the injuries were sustained, which showed a complete disregard for her welfare. The fact that the offence was committed in breach of a domestic violence order was described as a ‘matter of concern’ (see at [31]). The applicant showed no remorse for the life-threatening injuries he inflicted on his partner, who is the mother of at least one of his children. Even though he had no memory of inflicting the injuries as a result of his intoxication, the Court stated that with ‘sober hindsight’ he ought to have been shocked at the injuries he caused (See at [31]). Deterrence was an important factor for the safety of the complainant as well as the interests of the community. The Court held at [37] that the applicant’s small prospects of rehabilitation were not such as to warrant a more lenient approach. The sentence for grievous bodily harm, when considered in isolation was not excessive. Therefore, considering the fact that it was a sentence intended to take into account all of the offending behaviour, it was actually at the lower end of the range of appropriate sentences.

  • R v Fairbrother; ex parte AG (Qld) [2005] QCA 105 (15 April 2005) – Queensland Court of Appeal
    Assault occasioning bodily harm’ – ‘Denunciation’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Assault occasioning bodily harm.

    Appeal Type: Appeal against sentence.

    Facts: Following being released from police custody subject to conditions imposed under the then Domestic Violence (Family Protection) Act 1989 that the respondent not have contact with the complainant (his domestic partner) and that he not go to her residence , the respondent returned to her home and threw boiling water onto her twice. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the respondent in favour of the complainant. He pleaded guilty on the second day of trial and was sentenced to 2.5 years imprisonment for assault occasioning bodily harm, wholly suspended with an operational period of four years.

    Issue/s: Whether the full suspension of the sentence made it manifestly inadequate.

    Decision and Reasoning: The appeal was dismissed. The injuries caused the complainant severe pain over a long period and also caused some mental health issues. The respondent had some history of domestic violence. This was a ‘reasonably bad’ (at [21]) example of the offence which occurred hours after the appellant had been removed from the complainant’s home by police. However, mitigating factors included his guilty plea, his good work history and his efforts at rehabilitation. Furthermore, the respondent was not sentenced at trial for deliberately pouring boiling water on the complainant. If it had been deliberate, he would have been sentenced to actual imprisonment of at least 12 months before suspension. This was nevertheless a ‘serious example of domestic violence’ with the sentence imposed at trial being a correspondingly ‘substantial penalty’ (See at [24]).

    See in particular McMurdo P’s (Jerrard JA and Cullinane J agreeing) comments on the impacts of domestic violence and the approach to sentencing at [23] –

    ‘Domestic violence is an insidious, prevalent and serious problem in our society. Victims are often too ashamed to publicly complain, partly because of misguided feelings of guilt and responsibility for the perpetrator's actions. Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of their offending, claiming an entitlement to behave in that way or at least to be forgiven by the victim and to evade punishment by society. Domestic violence has a deleterious on-going impact not only on the immediate victim but on the victim's wider family and ultimately on the whole of society. It is not solely a domestic issue; it is a crime against the State warranting salutary punishment. The cost to the community in terms of lost income and productivity, medical and psychological treatment and on-going social problems is immense. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the courts to impose significant sentences of imprisonment involving actual custody to deter not only individual offenders but also others who might otherwise think they can commit such acts with near impunity.’

  • R v Gill; ex parte Attorney-General of Queensland [2004] QCA 139 (30 April 2004) – Queensland Court of Appeal
    Attempted rape’ – ‘Following, harassing, monitoring’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Stalking

    Charge/s: Aggravated stalking, attempted rape.

    Appeal Type: Appeal against sentence.

    Facts: The respondent pleaded guilty to aggravated stalking and attempted rape and was sentenced to two years and three years’ imprisonment respectively, to be served concurrently. There was no domestic violence order in place at the time of the offence. The Court recommended consideration of post-prison community based release after 12 months (See further at [2]-[3]).

    Issue/s: Whether the sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was dismissed by majority. Holmes J (with whom Davies JA agreed) discussed R v Stephens [1994] QCA 507 and noted that it is not correct to approach rapes occurring in an existing relationship more leniently. However, this is not to say that that in the circumstances of a particular case, a sexual assault committed by a current or former partner will necessarily be equivalent to a sexual assault committed by a stranger. In comparing this case to R v McNamara, her Honour stated at [16], ‘I do not think that the traumatic effect of sexual assault in a case such as this, where the complainant had, albeit without enthusiasm, admitted the respondent to the house and gone to sleep with him present, is readily equated with the likely shock and fear of a woman sleeping in her home who without warning is assaulted by an intruder; as happened in McNamara.’ As such, also taking into account the respondent’s plea of guilty and comparable cases, her Honour held that the sentence, while ‘lenient’ ([21]), was adequate. However, de Jersey CJ dissented. His Honour also discussed Stephens. His view was that the statement in Stephens about an ‘honest but unreasonable’ mistake as to consent in the relationship context as a mitigating factor did not apply. The complainant had made her lack of consent clearly known and had previously shown reluctance to let the respondent into the house. His Honour stated, ‘This is a case where the circumstance of the prior relationship should in no degree have led to more lenient treatment than would otherwise be accorded’ (See at [5]). His Honour then went onto consider the respondent’s serious and relevant criminal history, including stalking offences as well as breaches of domestic violence orders (on four occasions over an eight year period with other partners). As such, having regard to this context, his view was that the sentence for attempted rape should be increased to four and a half years and that the order for community release should be removed. Nevertheless, he was in dissent and the appeal was dismissed.

  • R v AN [2003] QCA 349 (11 August 2003) - Queensland Court of Appeal
    Cumulative sentencing’ – ‘Following, harassing, monitoring’ – ‘Sentencing’ – ‘Stalking’ – ‘Totality

    Charge/s: Stalking with circumstances of aggravation.

    Appeal Type: Appeal against sentence.

    Facts: The applicant met the complainant while on remand and they lived together for a short period until the relationship broke down. The stalking occurred over the phone and included death threats and threats to the complainant’s children. There was a psychologist’s report before the trial judge, indicating that the applicant presented with a borderline personality disorder and would not be able to alter his behaviour without counselling. The applicant had a long criminal history of stalking, stealing, breaches of domestic violence orders and other offences. The applicant pleaded guilty to the stalking of the complainant with circumstances of aggravation and was sentenced to three years’ imprisonment.

    Issue/s: Whether the three year sentence offended the totality principle and was therefore manifestly excessive.

    Decision and Reasoning: The Court allowed the appeal, reducing the sentence to two years. The effect of the conviction was that an existing suspended sentence for other offences was activated. The applicant had also been sentenced previously for common assault and wilful damage charges. The effect of this was that the applicant was liable to four years and two months imprisonment, becoming eligible for parole at eighteen months. There was no error in the cumulative term being imposed. However, the Court did conclude that the three year term offended the totality principle. In citing comparable cases, the Court found that a three year sentence is at the top of the range for offending of this nature. Lesser sentences were imposed in comparable cases which involved more serious stalking in the domestic context, such as surveillance, letters and attempts to run the victim off the road. Such conduct was not present in this case.
  • R v Foodey [2003] QCA 310 (25 July 2003) – Queensland Court of Appeal
    Aggravated stalking’ – ‘Damaging property’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Wilful damage

    Charge/s: Stalking with circumstance of aggravation (violence), wilful damage.

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The applicant separated from his wife after an eight year marriage and fourteen year relationship. Temporary protection orders were in place against the applicant in favour of his ex-wife. In breach of those orders, he stalked her on a number of separate occasions by assaulting her, driving his car at her, making threats against her and their children and following her car. His criminal history involved drug offences committed a considerable time ago. He pleaded guilty. The sentencing judge noted that the applicant showed no remorse and his conduct was of such seriousness that a deterrent sentence was more important than is normally the case. He was sentenced to 12 and a half months imprisonment, suspended for five years.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: Leave was refused. Jerrard JA (with whom Davies JA and Helman J agreed) stated at [11] that, ‘The applicant's behaviour towards Jennifer Foodey in the two and a half months between their separation and his incarceration was persistently cruel and aggressive. At different times he insulted, degraded, and terrified her. His conduct throughout was in breach of court orders intended to give her protection. Considered in isolation, the sentence imposed by the learned judge does not appear manifestly excessive, and indeed far from it. The same result occurs if regard is had to other sentences for unlawful stalking imposed or approved by this court.’ The sentence was upheld.

  • R v Layfield [2003] QCA 3 (29 January 2003) – Queensland Court of Appeal
    Following, harassing, monitoring’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Stalking

    Charge/s: Stalking with a circumstance of aggravation (threats of violence).

    Appeal Type: Application for leave to appeal against sentence.

    Facts: The applicant was convicted of stalking his former fiancee with the aggravating circumstance that he threatened to use violence against her. A previous domestic violence order was obtained by the complainant and the relationship deteriorated about a year after this. The stalking occurred over a period of less than one year. It occurred over the telephone, as well as by following and loitering outside of her place of employment. He was sentenced to two years imprisonment.

    Issue/s: Whether the trial judge should have exercised the option of suspending the sentence after twelve months, on the basis of several factors including the applicant’s youth, lack of criminal history and a strong support network.

    Decision and Reasoning: Davies JA (with whom McPherson JA and Mullins J agreed), refused the application, holding that while the trial judge could have imposed the lesser sentence, it was not argued for at trial, and the sentence that was imposed did not demonstrate any error. Davies JA also noted the applicant’s lack of remorse as a relevant factor.

  • R v Millar [2002] QCA 382 (25 September 2002) – Queensland Court of Appeal
    Following, harassing, monitoring’ – ‘Irrelevant considerations’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Stalking’ – ‘Verbal abuse

    Charge/s: Stalking with circumstances of aggravation, common assault, and dangerous operation of a motor vehicle.

    Appeal type: Application for leave to appeal against sentence.

    Facts: The applicant was in a relationship with the complainant for nine months. They then lived together as a married couple for two weeks until the complainant moved out due to physical and verbal abuse by the applicant. The complainant indicated that she wished to cease all contact with the applicant. There was a domestic violence order in place, which was subsequently breached by the applicant. The stalking (committed when the order was in place) ‘involved menacing telephone calls, banging on her door, threats and letters and other items left at her residence culminating in the applicant's attempting to run the complainant off the road during the day’. This caused the complainant to veer to the wrong side of a busy rode. He then drove his car into hers and assaulted an off duty police officer who was trying to help the complainant. The applicant’s criminal history was comprised of dishonesty offences which had resulted in prison terms. Concurrent sentences of two years imprisonment (with the full activation of an unrelated nine month suspended sentence) were imposed. The complainant indicated that she was still in fear for her safety.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: Leave was refused. The applicant submitted, inter alia that his criminal history was confined to dishonesty offences, he was young and a psychological report indicated he was remorseful. He stressed that the comparable decisions before the Court concerned situations where there was no emotional relationship between the complainant and the offender, so that in his case, a more lenient penalty should have been imposed. This argument was rejected. de Jersey CJ (with whom Helman J and Jones J agreed) held – ‘I would say for my part that that (the presence of an emotional relationship between the offender and the victim) is not a feature which should necessarily lead to a lower penalty being imposed, where the stalking follows the break-up of an emotional relationship.’

  • R v M [2001] QCA 166 (1 May 2001) – Queensland Court of Appeal
    Assault’ – ‘Assault occasioning bodily harm’ – ‘Breach of domestic violence order’ – ‘Burglary’ – ‘Circumstantial evidence’ – ‘Deprivation of liberty’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Indecent assault’ – ‘Intent’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Separation’ – ‘Sexual and reproductive abuse

    Charge/s: Burglary, rape, assault occasioning bodily harm, deprivation of liberty, two counts of aggravated indecent assault and assault.

    Appeal Type: Appeal against conviction and sentence.

    Facts: One week prior to the offences the victim had removed her former partner’s name from their joint lease, terminating his right to enter. He (the appellant) then broke into the victim’s house, after cutting the telephone wires. He then pulled her into the bedroom, punched her, tied her up and forced her to perform oral sex on him at knife point on two separate occasions. He waved his knife at her and said that if the police were called, he would cut off her breasts and have anal sex with her. He then raped her. The appellant was the subject of a domestic violence order obtained by the complainant a month before the offences were committed. He was sentenced to 9 years’ imprisonment.

    Issue/s:

    1. Whether the sentence was manifestly excessive.
    2. Whether the trial judge erred in allowing the jury to infer that it was the appellant who cut the telephone lines.
    3. Whether the trial judge erred by failing to direct the jury that they needed to be satisfied that the appellant cut the phone lines beyond reasonable doubt.
    4. Whether evidence of a domestic violence order being in place could be a relevant factor in determining whether the appellant had the requisite intent to commit an offence when he entered the house.
    5. Whether the appellant could rely on the defence of an honest and mistaken belief for the purposes of consent.

    Decision and Reasoning:

    1. McPherson JA noted that a sentence of less than seven years could not have been expected – the appellant had a substantial history of domestic violence (including against the complainant’s mother) and breaches of these orders.
    2. McPherson JA held that the judge was correct in allowing the jury to infer that the appellant had caused the damage. There was uncontradicted circumstantial evidence to this effect.
    3. This argument was dismissed. Only each element of the offence needs to be proven beyond reasonable doubt, not every piece of circumstantial evidence.
    4. The Court held that evidence of a domestic violence order being in place could be a relevant factor for the jury to determine intent for the purposes of the burglary charge.
    5. This argument was dismissed. In fact, the trial judge had omitted the requirement of a ‘reasonable’ belief, which was favourable to the appellant.
  • R v Matamua; ex parte Attorney-General (Qld) [2000] QCA 400 (28 September 2000) – Queensland Court of Appeal
    Assault’ – ‘Deterrence’ – ‘Going armed in public in such a manner as to cause fear’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful assault causing bodily harm while armed

    Charge/s: Unlawful assault, unlawful assault causing bodily harm while armed, going armed in public in such a manner as to cause fear.

    Appeal Type: Appeal against sentence.

    Facts: The respondent became involved in an argument with the complainant, with whom he was in a de facto relationship. The respondent smashed a stubby of beer on his forehead which broke. He then pushed the complainant onto the bonnet of a car and held the broken bottle on her throat and threatened to slice her with it. Another argument ensued, at which point the respondent swung an axe at the complainant. He hit her on the back of the head with the handle while yelling abuse at her. She was knocked to the ground. Then, he swung the axe to the ground so that the axe head became stuck in the ground next to the complainant’s head. After a struggle, he winded the complainant and held the axe to her throat, while threatening to kill her. He was severely intoxicated. The relationship ended after the offences. The complainant experienced severe pain, but suffered no permanent physical injury. However, she suffered lasting psychological injuries. The respondent’s criminal history consisted of drug and traffic offences, as well as one offence of behaving in a threatening manner. He was sentenced to a total effective sentence of 18 months’ imprisonment, wholly suspended with an operational period of two and a half years. A $1000 fine and $1000 compensation was also ordered.

    Issue/s: Whether the sentence was manifestly inadequate. In particular, whether a custodial sentence was required.

    Decision and Reasoning: The appeal was upheld. Pincus JA (with whom Thomas JA and de Jersey CJ agreed) held that the degree of violence was such as to warrant a term of actual imprisonment. A deterrent sentence was needed. His conduct was prolonged. The axe could quite easily have gone through someone’s head. It involved other people as well as his partner. The sentence was increased on the principal charge of assault occasioning bodily harm to 18 months’ imprisonment with a recommendation for parole after six months. It was recommended that the respondent receive counselling for his alcohol problems.

  • R v MacKenzie [2000] QCA 324 (11 August 2000) – Queensland Court of Appeal
    Battered wife syndrome’ – ‘Manslaughter’ – ‘Negligent manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Where the offender is also a victim

    Charge/s: Manslaughter.

    Appeal Type: Appeal against conviction and sentence.

    Facts: The applicant was married to her husband for 39 years and was subjected to severe domestic violence during that time. She pleaded guilty to the manslaughter of her husband. She was sentenced to 8 years imprisonment with a non-parole period of 3 years. (See further at [26]-[30]).

    Issue/s:

    1. Whether a miscarriage of justice occurred because of advice the appellant was given to plead guilty to manslaughter, instead of pleading not guilty to murder and seeking an acquittal on the basis of self-defence.
    2. Whether the sentence was manifestly excessive.

    Decision and Reasoning:

    1. This argument was dismissed – the applicant never claimed she was acting in self-defence, and there was minimal evidence to that effect. However, McPherson JA did note that evidence of ‘battered wife’s syndrome’, can be relevant as expert evidence for the purposes of self-defence (or provocation), as demonstrating the heightened awareness and arousal which may be experienced by ‘battered women’, which would be relevant to whether they had reasonable grounds to use the level of force they did.
    2. The appeal against sentence was upheld. McMurdo P (Dutney J concurring as to the orders made) held that notwithstanding that the applicant’s conduct was negligent and not a willed act, a substantial period of imprisonment was required to deter people from handling guns negligently, particularly in the context of domestic violence. Such conduct was not excused by the ‘grim history’ of domestic violence the appellant suffered. Nevertheless, this history did impact upon the appellant in that it contributed to (as a psychologist who interviewed her put it at [21]), ‘ineffective problem solving behaviour and a perception by [the applicant] of the narrowing of her options over time. A perception of narrowed options can often result in decisions made by the abused woman that from the outside look like poor judgment.’ This grave history of abuse was therefore an additional mitigating factor which partly explains how her behaviour came about. As such, taking into account all of the unusual circumstances, the sentence was reduced to 5 years, with a non-parole period of 1 year. McPherson JA agreed that the sentence should be reduced but proposed a slightly longer term.
  • R v Lane [1998] QCA 167 (8 May 1998) – Queensland Court of Appeal
    Assault occasioning bodily harm’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Good behaviour bond’ – ‘Physical violence and harm’ – ‘Recording a conviction’ – ‘Self-defence’ – ‘Where the offender is also a victim

    Charge/s: Assault occasioning bodily harm.

    Appeal Type: Appeal against the recording of a conviction.

    Facts: The applicant was convicted of assault occasioning bodily harm. She was released and placed on a good behaviour bond for two years. For a number of years, the applicant had been the subject of severe physical and emotional abuse by her de facto partner. It is unclear whether at the time of the offence, there was a current or lapsed protection order in place between the applicant and her de facto partner. The incident involved the applicant hitting her de facto partner on the head with a heavy mortar bowl when he was sleeping. She later shot him, after a struggle for the gun. She was acquitted of the shooting charges on the basis that the jury found there was a reasonable doubt as to whether self-defence was available due to a reasonable fear of serious attack. However, she was convicted for the striking incident, with self-defence being excluded beyond reasonable doubt. The sentencing judge commented on the need for a ‘deterrent aspect in the element of sentencing in a case such as this’ (and noted) ‘Little point…would be served at this stage by not recording a conviction’ (See at page 6).

    Issue/s: Whether the conviction should have been recorded.

    Decision and Reasoning: The application was refused. Derrington J noted at [4] that the ‘(trial judge) made full allowance for the applicant's suffering at the hands of the complainant and for all other features favourable to her. With this approach I agree unreservedly.’

  • R v Stephens & Attorney-General of Queensland [1994] QCA 507 (28 November 1994) – Queensland Court of Appeal
    Consent’ – ‘Indecent assault’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charge/s: Rape, indecent assault.

    Appeal Type: Appeal against sentence.

    Facts: The respondent was convicted of two counts of rape and one count of indecent assault of his de facto partner. It is unclear whether at the time of the offences, there was a current or lapsed protection order against the respondent in favour of the victim. He was sentenced to three years imprisonment with a recommendation for parole eligibility after six months. The context of the relationship was one of intimidation and fear.

    Issue/s: Whether the sentence was manifestly inadequate.

    Decision and Reasoning: The Court upheld the appeal, holding that while the trial judge was correct to take into account the respondent’s youth, irrelevant considerations were taken into account. The sentence was increased to five years imprisonment with a recommendation for parole eligibility after two years. The Court found that the primary judge erred by approaching rapes occurring within an existing relationship in a more lenient way. The Court stated that generally, it is not correct to approach rapes occurring in existing relationships more leniently. There may be circumstances where the existence of such a relationship may be relevant to the sentence imposed due to the offender’s state of mind, in that, ‘there may be greater scope for a genuine belief on the part of the man that the woman has or is likely to consent to sexual intercourse. And where that mistake is honest but unreasonable, it may be relevant to take it into account in sentencing the offender.’ (Note: This statement has been both distinguished and applied in subsequent Court of Appeal decisions - In R v Conway [2012] QCA 142 , Henry J (with whom Muir JA and McMurdo P agreed) stated in obiter that Stephens is ‘of limited utility given its age'. However, the case has been discussed after Conway such as in R v Postchild [2013] QCA 227.) In Stephens itself, the Court of Appeal found that the circumstances of the relationship in that case did not give reason to distinguish it from a rape between strangers. There was a high degree of violence and the complainant made it clear through her protests and tears that she was not consenting.

  • R v Bell & Anor; ex parte Attorney-General (Qld) [1994] QCA 220 (20 June 1994) – Queensland Court of Appeal
    Aboriginal and Torres Strait Islander people’ – ‘Mitigating factors’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful wounding’ – ‘Victim

    Charge/s: Unlawful Wounding.

    Appeal Type: Appeal against sentence.

    Facts: The respondent, an Aboriginal man, was intoxicated and following an argument with the complainant (his de facto partner), stabbed her in the thigh, punched her in the mouth twice and continued to shout and threaten her. He pleaded guilty to unlawful wounding and was sentenced to two years’ probation and ordered to perform 120 hours of community service, with no conviction recorded. It is unclear whether at the time of the offence, there was a current or lapsed protection order against the respondent in favour of the complainant. The complainant was supportive of the respondent, but did not wish to see him in prison.

    Issue/s: Whether the sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was upheld. The respondent was re-sentenced to a suspended period of imprisonment for one year, with an operational period of two years. A conviction was recorded. The Court of Appeal imposed a sentence of imprisonment of 1 year despite the wishes of the complainant, the fact that the relationship had resumed and the fact the respondent had returned to his community and returned to work. However, the operational period of the sentence was suspended. Fitzgerald P (at 6) made the following comments relating to how social and economic disadvantage (both generally and in remote Aboriginal and Torres Strait Islander communities) is relevant when sentencing domestic violence offenders –

    “It was right for (the trial judge) to have regard to the respondent’s disadvantages and open to him, as a result, to sentence the respondent as leniently as the circumstances of his offence admitted. However, such disadvantages do not justify or excuse violence against women or, to take another example, abuse of children. Women and children who live in deprived communities or circumstances should not also be deprived of the law’s protection. A proposition that such offences should not be adequately penalised because of disadvantages experienced by a group of which the offender is a member is not one which is acceptable to the general community or one which we would expect to be accepted by the particular community of which an offender and complainant are members.”

  • R v Kina [1993] QCA 480 (29 November 1993) – Queensland Court of Appeal
    Aboriginal and torres strait islander people’ – ‘Battered woman syndrome’ – ‘Expert evidence - social worker’ – ‘Fresh evidence’ – ‘Murder’ – ‘Physical violence and harm

    Charge/s: Murder.

    Appeal Type: Appeal against conviction.

    Facts: In September 1988, after a trial which lasted less than a day, the female appellant, an Aboriginal woman, was convicted of murder for killing her abusive male partner of three years and was sentenced to life imprisonment. The appellant did not give or call evidence at her trial. It was only five years later, after the appellant had spent years speaking to a particular social worker (Mr Berry) in prison, that evidence of the abuse she suffered emerged. Kina applied to the Governor in Council for the exercise in her favour of the royal prerogative of mercy. Section 672A of the Criminal Code preserves the pardoning power of the Governor, adding in para. (a) ‘that the Crown Law Officer may refer the whole case to the Court of Appeal, to be heard and determined as in the case of an appeal by a person convicted.’ Under this provision on 24 May 1993 the Attorney General referred to the Court of Appeal ‘the whole case with respect to the conviction of ... Robyn Bella Kina on the charge of murder ...’ of Anthony David Black.

    Issue/s:

    1. The appellant did not receive a fair trial and a miscarriage of justice occurred because of problems of communication between the appellant and her lawyers which led to fundamental errors at trial.
    2. There was fresh evidence of such a nature that, had it been placed before the jury who decided the case, there was a substantial possibility of acquittal.
    3. The fresh evidence was of such a nature that refusal of it would lead to a miscarriage of justice.

    Decision and Reasoning: The appeal was allowed, the conviction and verdict set aside and a new trial ordered. Evidence of Mr Berry, the social worker, was important in this case. Mr Berry first saw the appellant before her trial in April 1988. Over the following months, the appellant slowly disclosed her story to Mr Berry – that the deceased had continually beaten her up, forced her to have anal sex with him and that he tied her up. Mr Berry tried to communicate with the appellant’s lawyers before the trial but was advised that her legal representatives wished that he ‘would not interfere with proceedings’. After the trial, the social worker saw the appellant in a counselling capacity. The appellant’s self-esteem improved and in 1991 she was able to give evidence about the deceased’s threat to anally rape her 14 year old niece.

    In finding there was a miscarriage of justice, Fitzgerald P and Davis JA held that:

    “In this matter, there were, insufficiently recognised, a number of complex factors interacting which presented exceptional difficulties of communication between her legal representatives and the appellant because of: (i) her aboriginality; (ii) the battered woman syndrome; and (iii) the shameful (to her) nature of the events which characterised her relationship with the deceased. These cultural, psychological and personal factors bore upon the adequacy of the advice and legal representation which the appellant received and effectively denied her satisfactory representation or the capacity to make informed decisions on the basis of proper advice”.

Supreme Court

  • R v Ney (2011) QSC (Supreme Court of Queensland, Dick AJ, 8/3/2011)
    Diminished responsibility’ – ‘Expert evidence - psychiatrist - psychologist’ – ‘Manslaughter’ – ‘Post traumatic stress disorder

    Charge: Manslaughter

    Proceeding: Sentencing

    Facts: Ney killed her partner, Haynes, striking him in the head and face with an axe. Haynes was hospitalised and died two days later. Initially charged with murder she pleaded guilty to manslaughter. She was sentenced to nine years imprisonment - eligible for release on parole after serving three years. In sentencing Ney, Dick AJ referred to the reports of a psychologist (Dr Sundin) and a psychiatrist (Associate Professor Carolyn Quadrio):

    ‘As you know, I have been given a number of psychiatric and psychological reports. The prosecution tendered the report of Dr Josephine Sundin. Dr Sundin has come to the opinion that as a result of the multiple traumas you have suffered in your life since your young teenage years and the series of violent intimate relationships that you have endured since that time, and the fact that you have suffered physical, sexual and psychological abuse over a long period of time, you suffer chronic post-traumatic stress disorder and borderline personality disorder.

    The connection between those two matters is explained in her report and in other reports. Associate Professor Carolyn Quadrio, spells it out in her addendum report. She said, "Trauma and abuse have profound effects on mental processes and on psycho-social and psychological functions so that a disorganisation of personality occurs and leads to lasting disorder. Similarly, substance abuse which commonly develops in the context of adolescent trauma, also has a profound effect on mental and psycho-social processes and secondly, incapacitates the person so they are rendered highly vulnerable to further traumas and abuse thus creating a vicious cycle…

    I have been assisted by the addendum report of Associate Professor Quadrio where she says that, "At times, however, she returned when she may have been able to escape because she experienced him as someone who loved her. This is explained as traumatic attachment relationship. Further it is also the case that in chronic or complex post-traumatic stress disorder there is both paralysis of initiative whereby the person is greatly compromised in her capacity to take action and there are alterations in perception so they have difficulty perceiving themselves accurately or others and thus in perceiving the true nature of the relationship with an abuser."

    Later on she says, "If this psycho physiological disturbance is sustained over time and especially when it occurs in the crucial development years of childhood and adolescence, it eventually leads to disorganisation of personality, sustained hyper vigilance and hyper reactivity become chronic and irreversible."

    Further on, "The inability to leave can be explained, partly, as a manifestation of personality disturbance but it is also the case that in domestic violence a woman feels trapped and unable to leave and knows it is not safe to leave so she remains captive and experiences more abuse and trauma and undergoes more personality disorganisation."

    I have also noted from the report of Associate Professor Quadrio that those matters which are described as chronic or complex PTSD personality disorder with poly substance dependence or abuse, she says, "These disturbances reflected a lifetime of trauma, a highly chaotic and unsustainable lifestyle and both past and present intimate partner violence."
  • R v Falls (Supreme Court of Queensland, Applegarth J, 3 June 2010)
    Abused person’ – ‘Battered woman syndrome’ – ‘Expert evidence - psychiatrist’ – ‘Murder’ – ‘Self defence

    Charge: Murder

    Result: Acquitted

    Facts: In May 2006, the accused, Susan Falls, shot and killed her husband, Rodney Falls. Throughout their relationship, Susan Falls was subject to significant physical and emotional abuse. This included: numerous incidents of physical violence, beating one of the family’s dogs to death; numerous incidents of sexual violence and rape; threatening to kill her or harm the couple’s children. Susan Falls drugged the deceased and shot him twice as he dozed in a chair. She was charged with murder. Both self-defence, ss 271(2), 273 Criminal Code 1899 (Qld) and the defence of killing for preservation in an abusive domestic relationship, s 304B Criminal Code 1899 (Qld) were raised at trial. Two forensic psychiatrists (Dr Lawrence and Associate Professor Quadrio) were called by the defence and gave evidence about the history of violence and its effect on the offender. (Note Coupe, Cumming-Creed and Hoare were charged with being accessories to the murder but were also acquitted).

    Applegarth J, summing up (3 June 2010):

    ‘Evidence of what, for want of a better expression, is referred to as "battered woman syndrome", is admitted, not because battered woman syndrome is a disorder, or because battered woman syndrome is a defence. Battered woman syndrome isn't a defence. The fact that someone is battered for years doesn't automatically give them a defence. Whether they have a defence depends on whether they acted as they did in circumstances that the law provides is a defence.

    However, what is conveniently, and perhaps somewhat inaccurately, described as "battered woman syndrome" is relevant to legal defences.

    It doesn't have to be a psychological disorder to be relevant to behaviour and to the defences in this case. It's relevant to the mental state of Ms Falls, and whether she exhibited hyperarousal and other symptoms that are recognised in such cases.

    I won't repeat it. You will remember the evidence of Dr Lawrence and Associate Professor Quadrio about the mental state of persons who are subjected to prolonged abuse, their vigilance and so on. Associate Professor Quadrio summed it up pretty simply in saying they're “revved up all the time”.

    The behaviour of people, be they soldiers or civilians who are subjected to trauma, has been the subject of organised study. It's not every form of behaviour that is or needs to be the subject of expert evidence. Someone's grief reaction when a loved one dies, or the anxiety that most of us feel when we talk in public, or the anxiety that most people experience when they sit exams, these are things that are familiar to us because we might remember sitting exams or we've had children who sit exams. So we don't need expert evidence to tell us about how people become anxious in certain circumstances, when they're going for an exam or a driver's licence or something of that kind, that we all know about or most of us know about. But because battered wife syndrome is relatively rare it is a legitimate matter for expert evidence and it is the proper subject for expert evidence because, without the assistance of expert evidence, ordinary people who don't know or study these things, might find the behaviour perplexing, counterintuitive or unreasonable.

    It might seem odd why there would be a bond between the abuser and the abused. Why there might be, what Dr Lawrence referred to as, an ambivalent relationship, or what Associate Professor Quadrio referred to as a traumatic attachment. The behaviour of someone with a vulnerability because of past abuse who remains with their abuser.

    Dr Lawrence and Associate Professor Quadrio, who are experts in their field, were able to address what was described as the "cycle of violence". How, over time the situation worsens. How often it's the case that the abuser isolates the partner. The common symptoms of a variation in mental state. The loss of self-esteem. The belief that the person who is being abused is somehow at fault. The shame they feel when they return, contrary to the advice of police. The belief that in those circumstances the police won't help them again. The reasons they don't leave: children; lack of support; lack of financial support; threats to the woman; threats to people they love; threats over the custody of children.

    And apart from giving you evidence about those characteristics and observed behaviours, Dr Lawrence and Associate Professor Quadrio gave you evidence about the fact that victims of prolonged abuse can have quite correct perceptions as to the risks that are posed to them if they try to leave….

    Battered wife syndrome isn't a psychological disorder. As Dr Lawrence and Dr Quadrio explained it's a pattern of behaviours. It's been the subject of research, and it's a field of study by practitioners and scholars whose research and reports are open to contest, as you'd expect scientific inquiry and research to be in a proper field of scientific study.

    Dr Quadrio described how there is what she described as a "learned helplessness". How abused women are afraid to leave because they correctly assess that they're at risk. That there may have been past attempts to leave. She referred to the triggers that occur for a violent response. That the level of risk is perceived to increase or has in fact increased. Often there are threats to harm children, and the threats become specific in terms of how, when and where they will be carried out.

District Court

  • CED v HL [2016] QDC 345 (22 December 2016) – District Court of Queensland
    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) – District Court of Queensland
    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) – District Court of Queensland
    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) – District Court of Queensland
    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) – District Court of Queensland
    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) – District Court of Queensland
    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) – District Court of Queensland
    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) – District Court of Queensland
    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]).
  • 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) – District Court of Queensland
    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) – District Court of Queensland
    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.

  • SM v AA [2015] QDC 172 (29 May 2015) – District Court of Queensland
    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) – District Court of Queensland
    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) – District Court of Queensland
    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) – District Court of Queensland
    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) – District Court of Queensland
    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 88-91 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) - District Court of Queensland
    *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.
  • Singh v Queensland Police Service [2013] QDC 37 (20 February 2013) – District Court of Queensland
    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) – District Court of Queensland
    *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.

Magistrates' Court

  • WJM v NRH [2013] QMC 12 (3 May 2013) – Magistrates’ Court of Queensland
    Desirable’ – ‘Domestic violence order’ – ‘Family law’ – ‘Physical violence and harm’ – ‘Principle of paramount importance

    Proceeding: Application for a Protection Order under the Domestic and Family Violence Protection Act 2012 (Qld).

    Facts: This concerned a police application under the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) for a protection order against the respondent in favour of the aggrieved. After finding out that her husband had been having an affair, there was a violent incident between the aggrieved and the respondent. This involved the respondent punching the aggrieved extremely forcefully. The aggrieved had no family in Australia. The aggrieved and the respondent had taken steps to reconcile, including seeing a psychologist. The respondent had not yet seen a personal therapist to deal with anger management issues. The aggrieved claims to now feel supported by her husband and his family. She stated that if she feels scared she would move back home to China, and that making a protection order would not impact on how safe she feels.

    Issue/s: Whether the protection order should be made.

    Decision and Reasoning: The order was made. Contanzo JJ applied the principle of ‘paramount importance that the safety, protection and wellbeing of people who fear or experience domestic violence is paramount’. His Honour found that it was ‘desirable’ to protect the aggrieved from the risk of further domestic violence by her husband. In making the order, his Honour noted the severity of violence used by the respondent – ‘As a matter of logic and common sense, the more severe the violence exhibited by a perpetrator, the more risk there is that serious violence will be used again unless there has been an appropriate and sufficient intervention. The gravity of the situation is that the degree of violence used was inexplicable and irrational’ (See at [53]).

    It was noted that this case involved balancing the public interest of preventing domestic violence with private rights in a marriage. In this case, would an order ‘”get in the way” of the ongoing reconciliation by the parties?’ (See at [20]).

    His Honour concluded that the ‘reduction of stressors on their relationship’ had not gone far enough to negate the risk of further domestic violence. The aggrieved remained vulnerable to further domestic violence, though less vulnerable than she had previously. As such, even though the aggrieved did not feel she needed to be protected from her husband, it remained desirable that she be protected with an order. However, the order made went ‘no further than is necessary for the purpose of protecting the aggrieved from the respondent’ (See at [58]).

  • Armour v FAC [2012] QMC 22 (21 November 2012) – Magistrates’ Court of Queensland
    Cross-jurisdictional applicability’ – ‘Domestic violence order’ – ‘Economic abuse’ – ‘Emotional and psychological abuse’ – ‘Family law’ – ‘Following, harassing, monitoring’ – ‘Necessary or desirable’ – ‘Physical violence and harm’ – ‘Principle of paramount importance

    Proceeding: Application for a Protection Order under the Domestic and Family Violence Protection Act 2012 (Qld).

    Facts: This concerned a police application under the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) for a protection order against the respondent in favour of the aggrieved.

    Issue/s: Whether the respondent committed domestic violence against the aggrieved, and whether the protection order was ‘necessary or desirable’ as required under section 37(1)(c) of the Act.

    Decision and Reasoning: The protection order was made, with Constanzo JJ concluding that it was necessary and desirable to protect the aggrieved from domestic violence. In relation to the meaning of ‘necessary or desirable’, his Honour noted that the test is framed in the alternative. A court may make a protection order if it considers it ‘desirable’ but not ‘necessary’ and vice versa. His Honour then considered the plain English meanings of both words (See at [17]). A finding that it is ‘necessary or desirable’ to make an order must arise out of a need to protect the aggrieved from domestic violence with the terms of the order (see at [18]). This need for protection, ‘must be a real one, not some mere speculation or fanciful conjecture’ (See at [19]). This involves an assessment of risk that is faced by the aggrieved. While the risk of further domestic violence must actually exist, it is not necessary that the need or the risk be significant or substantial. However, it must be, ‘sufficient…to make it necessary or desirable to make the order in all the circumstances’ (See at [20]).

    In considering whether a protection order is ‘necessary or desirable’, a court must have regard to section 4 of the Act, but can have regard to other matters if relevant. For example, in the old equivalent legislation, the test was one of likelihood. It involved the court considering whether the evidence indicates that there was, ‘some real, significant likelihood’ that further acts of domestic violence would be committed. Something more probable than a mere ‘chance or risk’ was required (See at [23]). This test is not mandatory in the new legislation, but is still a relevant consideration. That is, if the evidence indicates that a respondent is likely to commit an act of domestic violence again, it may be ‘necessary or desirable’ to make a protection order under the new legislation. However, the likelihood test is clearly not determinative (See at [25]). Sometimes it may be appropriate to make an order if the risk is only ‘possible’ as opposed to ‘likely’ (See at [65]). See in particular from [27]-[70], where Contanzo JJ engages in detailed comparisons of the equivalent provisions in all state and territories, as well as analogous Commonwealth legislation. At [47], his Honour explains how provisions from one state or territory can be relevant to courts in another –

    ‘While the legislation in other States cannot affect the jurisdiction of this court, the types of considerations referred to by the various Acts may provide some insight into the types of considerations which may, in appropriate cases, be relevant considerations in the determination of whether it is necessary or desirable for this court to make an order. They certainly do not provide anything approximating an exhaustive list of possible relevant circumstances. Whether they are relevant will depend on the law in Queensland and on the facts and live issues of each case. What weight ought to be given to any such relevant circumstance must also depend on the overall facts and circumstances of each hearing. The types of considerations referred to by the various Acts may simply provide this court with some inkling about the types of considerations legal minds, and judicial minds, may need to bring to bear on the determination of issues raised under the Queensland Act. However, I have taken great care to look at the context in which each of the other state laws is drafted.’

    At [52]-[70], his Honour extrapolated the relevance of the Court’s power to make orders prohibiting conduct under section 1323 of the Corporations Act 2001 to domestic violence issues. The discretionary considerations listed in section 1323 may be relevant when a Magistrates’ Court is considering whether to make a protection order to protect the aggrieved from, ‘coercive, deceptive or unreasonably controlling economic abuse’ as well as other types of domestic violence (See at [56]).

    In determining whether it is ‘necessary or desirable’ to make an order, a court will need to engage in a balancing exercise of public and private rights. That is, does the public interest in preventing domestic violence outweigh the private rights of the relevant parties? (See at [57] & [96]). At [61], his Honour observed that it may be ‘necessary or desirable’ to make an order, ‘even if one of the grounds for finding that domestic violence has been committed by the respondent has ceased to exist,’ and that, ‘if one reason why it is decided that a risk of future domestic violence is because of ongoing contact, such as in family court proceedings or because of other unresolved relationship issues, the order may need, in appropriate cases, to extend beyond the likely conclusion of those proceedings or resolution.’

    At [63], his Honour stated that it may be ‘necessary or desirable’ to make an order by having regard to evidence apart from the evidence that establishes domestic violence has been committed. All facts and circumstances may be considered, including evidence, ‘which is properly before the court but which was not led by or relied upon by the applicant.’ A court can draw reasonable inferences from this evidence, such as inferences that a respondent induced an aggrieved to withdraw their complaint or to commit perjury.

    Another factor is the gravity of the situation. That is, even if on the evidence it could not be said that it was ‘necessary’ to make an order, the gravity of the situation could indicate that it would be still ‘desirable’ to protect the aggrieved with the order, in which case an order can still be made.