OWL v Queensland Police Service [2021] QDC 5
Murray Torcetti Lawyers are criminal lawyers in Caboolture. We write our own case notes from recent criminal decisions for internal purposes.
However, unlike your annoying sibling, we don’t mind sharing.
Facts:
An appeal on the basis the sentence was manifestly excessive due to the imposition of the cumulative sentence. It was submitted:
“the learned acting Magistrate allowed the defendant’s criminal history to overwhelm the sentencing discretion, and allowed the circumstances surrounding the offending to overwhelm the sentencing discretion.” (Veen v R (1979) 143 CLR 458 and Veen v R (No 2) (1988) 164 CLR 465.)
Eight days after being sentenced to 11 months imprisonment the defendant committed further breaches of a domestic violence order with aggravated features of extended duration and violence against the aggrieved. The defendant was 45 years old and had been sentenced to periods of imprisonment 13 times, with 13 convictions for breaching domestic violence orders in the last 5 years.
The Magistrate at first instance imposed a head sentence of 18 months to run cumulatively with the 11-month sentence for an effective total sentence of 29 months.
Finding:
The court examined the transcript and noted deficiencies by both the Prosecution and Defence in the sentence. The court reviewed cases and concluded a head sentence of 2 years was appropriate, but the defendant had exposed himself to a head sentence of 2 ½ years.
“s 9(2)(j) and (l) Penalties and Sentences Act 1992 (Qld) serves to observe the totality principle, derived from cases such as Mill v The Queen (1988) 166 CLR 59 and Postiglione v The Queen (1997) 189 CLR 295. The purpose of the principle is primarily to ensure the penalty imposed does not result in a crushing or disproportionate sentence.”
Noting the existing 11 month sentence the court stated there were two ways to structure the sentence without offending the totality principle.
- Impose a 2-year sentence to run concurrently with the existing sentence (total of 24 months); or
- Substantially reduce the sentence to 12 months but have it run cumulatively (total of 23 months).
Notes for practice:
- A clear re-statement of the common law totality principle, and the totality principle in the Penalties and Sentences Act.
- Where totality is a factor, consider the various sentencing structures to assist the court with the appropriate head sentence by the concurrent or cumulative sentencing.
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