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  • Unreported Judgment

Queensland Police Service v McKellar

 

[2020] QMC 6

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Queensland Police Service v McKellar [2020] QMC 6

PARTIES:

QUEENSLAND POLICE SERVICE

v

SHANE ALBERT McKELLAR

FILE NO/S:

MAG-00032575/20(0)

DIVISION:

Magistrates Courts

PROCEEDING:

Sentence

ORIGINATING COURT:

Magistrates Court, Mackay

DELIVERED ON:

15 June 2020

DELIVERED AT:

Mackay

HEARING DATE:

27 May 2020

MAGISTRATE:

Acting Magistrate J M Aberdeen

ORDER:

  1. (i)
    CSO 120 hours; conviction not recorded
  2. (ii)
    Fined $500/refd to SPER; conviction not recorded

CATCHWORDS:

SERIOUS ASSAULT – pointing a “Gel Blaster” handgun at a police officer engaged in execution of duty – sentence – section 340(1)(b) & [Max. Penalty] (a)(iii)

POLICE – obstructing police in execution of duty – physical resistance during course of arrest - sentence

WEAPONS – sentence – pointing a “Gel Blaster” handgun at a police officer engaged in execution of duty

SENTENCE – relevance of CoVid-19 in a consideration of imprisonment as a sentencing option

COUNSEL:

For Prosecution: Sergt Marcus Hahn

For Defence: Mr C Colwill (Solicitor)

SOLICITORS:

Queensland Police Service – Prosecution Corps

BC&A Solicitors, Mackay

REGISTRY: Mackay

  MAG-00032575//20(0)

QUEENSLAND POLICE SERVICE

v

SHANE ALBERT McKELLAR

DECISION

  1. [1]
    The Defendant Mr Shane McKELLAR is before the Court charged with two offences –

First charge:

That on the 14th day of February 2020 at Sarina in the State of Queensland one Shane Albert McKELLAR assaulted Constable Ari KUSTER a police officer whilst Constable Ari KUSTER was acting in the execution of his duty and it is further alleged that the said Shane Albert McKELLAR pretended to be armed with a dangerous weapon in the assault of the said police officer.

Second charge:

That on the 14th day of February 2020 at Sarina in the Magistrates Courts District of Mackay in the State of Queensland one Shane Albert McKELLAR obstructed a police officer namely Ari KUSTER in the performance of the officer’s duties. 

  1. [2]
    The first offence is classified, under section 340(1) of the Criminal Code, as a crime. The basic offence, of what is commonly referred to as “Serious Assault”, is in this case aggravated by the circumstance that the Defendant, at the time of the assault, “pretended to be armed with a dangerous weapon”. The offence of serious assault, with this aggravating circumstance, carries a maximum penalty of 14 years imprisonment.
  1. [3]
    The second offence is a simple, or summary offence, which carries a maximum penalty of 40 penalty units or 6 months imprisonment[1].
  1. [3]
    The Defendant was initially issued with a Notice to Appear in respect of these charges, with a return date of 6th April 2020 at Sarina Magistrates Court. This date was listed during the early stages of the CoVid-19 pandemic in Queensland. The matters were mentioned, in the absence of the parties, on both 30th March 2020, and 27th April 2020. A further-deferred appearance date of 12th August 2020 was listed. On 22nd May 2020, the matter was again brought forward, and was mentioned before Magistrate Hartigan – again in the absence of the parties – and was ordered to be transferred to Mackay for the purpose of “plea of guilty” and sentence in Mackay Magistrates Court on 27th May 2020.[2]
  1. [4]
    On 27th May 2020, this matter was brought on in the Mackay Magistrates Court before me. Both the Police Prosecutor, Sergeant Hahn, and Mr Colwill (for the defence) appeared in person. The defendant Mr McKellar appeared by telephone. Upon arraignment, Mr McKellar pleaded “Guilty” to both charges. Submissions upon sentence were then addressed to the Court by both representatives. At the conclusion of those submissions, I adjourned this matter to 15th June 2020, for handing down of sentence, and I ordered that the Defendant appear in Court, in person, on that date.

Background:

  1. [5]
    At about 9:00pm on the evening of Friday, the 14th February 2020, police attended 5 Phillips Street, Sarina, “in relation to a mental health matter”[3]. Upon arrival, the police took up with occupants of that address, and were directed towards the Defendant, who was inside the house. Police have approached the Defendant[4], and the Defendant has requested, repeatedly, that police leave the house. Police informed the Defendant that they were police officers, and that the Defendant was detained[5]. During this time, police noticed that the Defendant displayed indicia including slurred speech and red eyes; and that his breath smelled of alcohol.
  1. [6]
    Constables KUSTER and NORTHEY attempted to communicate with Mr McKellar but he remained, as it was said, “argumentative and stand-offish”. Constable Northey has exited the house to speak with Mr McKellar’s family outside the house. Constable Kuster has advised Mr McKellar that a QAS paramedic would need to speak to him concerning his [Mr McKellar’s] health, upon which Mr McKellar has again requested police to leave the house. Constable Kuster declined to do so, advising Mr McKellar that police had a duty of care towards him. 

Facts of the First Charge:

  1. [6]
    Mr McKellar then turned away from Constable Kuster, and walked towards the dining table, by the lounge room. With his left hand, Mr McKellar has quickly reached for an item on the dining table, and quickly turned back towards Constable Kuster. Mr McKellar has then presented and aimed what appeared to Constable Kuster to be a handgun directly at Constable Kuster’s body.
  1. [7]
    I interpolate to note that the “handgun” was later photographed by police, and those photos are contained in Exhibit 2 (attached to these reasons). I also note that the item in question had no orange tip on the end of the barrel, and no other orange colouring visible on the handgrip or magazine areas[6]. It was later determined that the “handgun” was what is known as a “gel blaster”, about which more will be said below.
  1. [8]
    Constable Kuster has then struck the weapon out of the Mr McKellar’s left hand[7], and has taken him by the arms and attempted to direct him outside the house. Mr McKellar has pulled his left hand away, and then attempted to swing it at Constable Kuster. He missed. Constable Northey has then re-entered the dwelling and has assisted with an ensuing struggle in attempting to place Mr McKellar in restraints.

Facts of the Second Charge:

  1. [9]
    A struggle has continued between Mr McKellar and the two police officers, with Mr McKellar pushing his weight against the efforts of the officers, and locking his arms “out”. Officers have applied “joint locks” to both Mr McKellar’s wrists, and have succeeded in applying handcuffs.
  1. [10]
    Police escorted Mr McKellar out of the house, and towards the police vehicle. While doing so, in the vicinity of the front steps of the house, Mr McKellar tried to pull away from the officers, and then tried to dive off the front steps. This resulted in all three persons falling down the stairs. While on the ground, Mr McKellar repeatedly tried to grab at the officers, and ignored their directions to him.
  1. [11]
    It appears that Mr McKellar calmed somewhat, and was eventually placed in the police car, and was driven firstly to the Mackay Base Hospital, where he was handed into the custody of the hospital staff pursuant to an Emergency Examination Authority. Police have advised the Court that, while waiting at the hospital, Mr McKellar has told them that he had resisted them because he wanted to “see what would happen and how much it would take for police to use their ‘accoutrements’[8] against him”.
  1. [12]
    Police later examined the object resembling the handgun, and ascertained that it was a “gel blaster” in the style of a Category H weapon (i.e. a handgun), and that it was “not an operable firearm”[9].
  1. [13]
    When later asked to take part in an interview with police, Mr McKellar declined to do so. He was served with a Notice to Appear.

Submissions by the Prosecution:

  1. [14]
    No criminal history was alleged against Mr McKellar. He has some limited traffic history, which has no impact upon my considerations today. The prosecutor was unable to provide to the Court any information concerning the events which led to the summoning of the police to Mr McKellar’s residence.
  1. [15]
    The object used in the assault appeared to be a firearm and, had the officer not been in such close proximity to take immediate action to eliminate the apparent threat to himself, the situation could have become very serious.
  1. [16]
    The prosecutor noted that Mr McKellar had been affected by liquor; but it was accepted, based upon Exhibit 4, that Mr McKellar’s actions had been out of character.
  1. [17]
    The prosecutor also accepted that a Community Based Order was within the proper range for these offences.

Submissions for the Defendant:

  1. [18]
    Mr McKellar is 35 years of age. He has been in a relationship with his partner since he was 18 years old. The couple have 3 children aged 9, 15 and 16 years. He himself is one of 7 children, and was born at Richmond in Queensland. He remained in Richmond until he was 11 years old, when the family moved to Eulo. He completed Grade 11 at Cunnamulla.
  1. [19]
    His first employment was upon station work, and he worked for a local council for a time. About 13 years ago, he moved to Sarina, where he initially worked as a cleaner for about a year, and then for a time as a line marker.
  1. [20]
    Since 2009, he has been employed by Mr Goode[10], initially as a crane operator, and now acts in a largely-supervisory capacity in that field. His loci of employment include the Western (mining) District, and he frequently works very long hours, perhaps 14 to 16 hours per day, non-stop for 1-2 weeks, following which he has his time off. At the time of these offences, he had just completed a particularly-intense period of supervision with his employment.
  1. [21]
    On the day of the offences, Mr McKellar had gone fishing with a friend. He had been drinking alcohol during the day, and Mr Colwill was able to indicate that he had consumed in the vicinity of “28 beers”. He was (and I readily accept) heavily intoxicated. His partner picked him up after he had finished fishing, and they drove home. Some of the children were in the car, and were engaged in an argument in the back seat. This involved them “speaking rudely” to each other. Mr McKellar had words with them, following which they settled somewhat. The dispute between them, however, re-surfaced later.
  1. [22]
    Mr McKellar’s memory of the nights events, Mr Colwill explained, was not complete. In the light of the amount of alcohol he had apparently consumed, I readily accept that that is so. Mr McKellar recollected going out to the backyard, and wanting to have a shower; this appears to be before the police arrived.
  1. [23]
    He recalled the police being at his home, and recalls them asking him to go with them. He recalls that, as he was walking out the door, that he saw the “gun” on the table and picked it up. His next recollection is of being pushed to the ground.
  1. [24]
    The events of the night, Mr Colwill said, had been due to the intense work-related pressure on Mr McKellar, and his consumption of liquor, coupled with the behaviour of his children when he was picked up, and later.
  1. [25]
    Mr Colwill did not dissent from the prosecution’s stated position – that a Community Based Order was within range – and he submitted as well that consideration could be given to the non-recording of convictions, based upon all the circumstances of the evening in question, and Mr McKellar’s lack of any previous infraction of the criminal law.
  1. [26]
    Neither party placed before me any comparable sentence. As a result, I have had to undertake some research in order to place the circumstances of this particular offence within the framework of the law as laid down by section 340 of the Criminal Code.
  1. [27]
    I advised both parties that I would consider the matter; and that should I be of the view that the matter could only be adequately dealt with by a custodial sentence, I would advise both parties, with a view to receiving further submissions on sentence.

Discussion of relevant considerations:

  1. [28]
    Section 340 creates the offence of “serious assault” on a police officer. The base maximum sentence for that offence is 7 years imprisonment. When one adds to the basic offence the circumstance of aggravation – that the offender pretended to be armed with a dangerous weapon – the maximum prescribed sentence is doubled, to one of 14 years imprisonment. There can be no doubt that the Parliament has, by its enactments, signalled that this is a very serious offence indeed. The position of the parties at sentence – namely, that a Community Based Order is within range – is not at all binding on me. As against the Legislature’s clear expectation that a condign punishment is to be imposed for this crime, I have to carefully assess and weigh all relevant factors in the sentencing process.
  1. [29]
    The basic element of this offence is an “assault”. Section 245 of the Code combines both prohibited common law acts of assault, and battery, within the definition of an “assault”. Mr McKellar’s actions in this case certainly constitute an “assault” within the meaning of s 245[11]. There is, however, a distinction in fact, and (in my opinion) severity, where there is an absence of the application of any physical force, as in this case. I think it reasonably clear that where no force is actually applied to the victim, it is a less serious case - for the purposes of sentence - than one where force is applied to the person of the victim[12].
  1. [30]
    Further, the aggravating circumstance in this case is that Mr McKellar “pretended to be armed with a dangerous weapon”. This has to be viewed against the alternative aggravation – i.e. that the Defendant was armed with a dangerous weapon. If, in fact, the weapon was per se “dangerous”, e.g. a loaded pistol, or an unsheathed knife, it would seem that, objectively considered, the potential for serious injury, or death, is greatly increased. An increase in the potential for serious or fatal injury should also be a relevant factor in sentencing. In this case, I was informed from the bar table, that a “gel blaster” fires some sort of gel capsule which, it seemed to have been accepted during submissions, was unlikely to cause any serious injury[13].
  1. [31]
    Both the considerations I have outlined above fall within what could be seen as objective facts relevant to sentence. But objective considerations alone do not properly inform a sentencing discretion for this type of offence. In McLaughlin v United States[14], Justice Scalia, speaking for the Court, identified considerations which were pertinent to a determination of whether an unloaded handgun was a “dangerous weapon” for the purposes of a federal robbery statute. One of the three grounds outlined by his Honour which justified such a description was that –

“…the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue…”

  1. [32]
    While this matter does not involve any determination as to whether this “gel blaster” was a “dangerous weapon”, the Court’s observation succinctly identifies two very important considerations in a sentence involving presentation of what is, or what appears to be, a dangerous weapon – namely (1) the inevitable impact, and potential for psychological injury, caused to the victim to whom the object is directed; and (2) the real risk that the victim may respond to the threatened violence with serious, and even potentially-fatal, force.
  1. [33]
    Firstly, the impact upon the victim of having a firearm presented to them is properly considered as involving a real danger of a substantial harm[15]. It is not uncommon to read of the adverse effects of being threatened with a weapon in cases which come before the Courts. In this case, the victim was a serving police officer. No doubt the officer had received intense training in preparation for the performance of his duties. Whether any degree of instruction and preparation can prepare an officer for the situation in which Constable Kuster found himself is an open question. Suffice to say that, in this case, it was not contended that Constable Kuster had sustained any psychological and psychiatric injury as a result of this incident. That is extremely fortunate, for both the constable and, indirectly, for Mr McKellar. It is somewhat ironic that Constable Kuster’s stoicism, in dealing with what occurred, has the result that Mr McKellar is not exposed to a harsher penalty for causing injury; but such is the sentencing process[16]. It does not, however, mean that a deterrent element in the punishment imposed is not necessary; on the contrary, if such conduct is not adequately punished, there will be insufficient deterrent impact upon like-minded persons in the future.
  1. [34]
    Secondly, the potential for an extremely serious eventuality was present, even if only for a fleeting instant. The close proximity of Mr McKellar to Constable Kuster enabled the officer to react immediately upon presentation of the gel blaster, and to “disarm” Mr McKellar. If, instead of being within (apparently) arm’s reach, Mr McKellar had been some distance away, the outcome of this incident might have been very different. It is unnecessary to dwell any further on this point, other than to observe that a potential for tragedy was avoided by the officer’s swift action.
  1. [35]
    The fact that the object used was a gel blaster is relevant. I am not entirely sure that any real distinction should be drawn between, e.g. the presentation of an unloaded handgun, an inoperable handgun, a replica handgun, or a gel blaster[17]. In each case, it would seem to me, the potential for harm to the victim, and the potential that the situation will deteriorate to something even more dangerous is present. I think that there is a difference were a loaded, and operable, firearm, or a bare blade, were involved – even absent any positive action by the assailant, there is always a risk of serious injury in any ensuing struggle[18].
  1. [36]
    I believe that the correct approach is to regard as less serious a case where the item actually involved, in and of itself, is relatively harmless.

Assaults on police:

  1. [37]
    There is ample authority to the effect that assaults on police officers frequently carry a substantial sentence[19]; and in some specific cases, e.g. spitting on or biting officers[20], or where significant or serious injury is caused to an officer[21], there is an acceptance that a term of imprisonment is a highly-probable outcome. There are few indicators as to what is the range of appropriate punishment where an assault is constituted by a threat – with no actual violence – using something which appears to be a firearm, but which in fact is incapable of inflicting serious injury.
  1. [38]
    My own research has been unsuccessful in identifying a comparable case. In April 2019, a charge of common assault came before Acting Magistrate Morrow in this Court, which involved the defendant shooting a gel blaster at roadside signs from a moving vehicle. One of these shots ricocheted off a sign, and struck another road-user (who was driving another vehicle) in the arm. The learned Acting Magistrate advised the defendant that he was fortunate not to be facing a more serious charge, in that his actions may have caused an accident, or may have resulted in the victim being hit in the eye with the projectile. The defendant was fined $1,250.00, and no conviction was recorded[22].
  1. [39]
    In the matter of Byers, heard before Magistrate Mossop in the Dalby Magistrates Court, in September 2019, the defendant, then aged 27 years, was one of a group of persons driving around in a car on the streets of Dalby, pointing what appeared to be a gun[23] (later ascertained to be a gel blaster) at pedestrians. Upon a plea of “Guilty” to an offence of “public nuisance”, the defendant was fined $400 , and a conviction was not recorded[24].
  1. [40]
    Each of these matters involved a charge of a relatively low-level offence[25] – a summary offence, and a common assault. As against this, the present charge, as I have indicated, is a crime with a 14 year maximum. While gel blasters may have been involved in all three matters, it is impossible, in my opinion, to draw any analogy between the circumstances of the present matter and these two cases.

Defendants’ state of health:

  1. [41]
    The facts placed before the Court contain references to a “mental health” matter, and also to an Emergency Examination Authority. No evidence of any health-related condition capable of raising the principle in Channon v R[26] was provided to the Court. I confirmed, with Mr Colwill, that this was in accordance with his submissions. Accordingly, the issue does not arise in this sentence.

The relevance of the Covid-19 pandemic:

  1. [42]
    The recent sentence decisions in both R v Hanna[27] and R v Vakatini[28] have given some consideration to the potential impact of persons sentenced to imprisonment.
  1. [43]
    In R v Hanna, the Chief Justice imposed a sentence of two years imprisonment in respect of serious drug-related offences following early pleas of “Guilty”, and observed[29] -

I’m going to set a parole release date after five months, which is very low indeed on a head sentence of two years. Factored into that is some concern about what you may face in the prison system. You may not contract any infection, but I think that one can confidently predict that life will be difficult in the prison system over the next couple of months for a variety of reasons because of the onset of COVID-19, so that while I very much hope that you’re not going to contract that virus, you’ll be living in circumstances, I would expect, where there are much greater restraints on prisoners and facilities are likely to be very much curtailed.”

  1. [44]
    In R v Vakatini, Justice Henry sentenced the accused for possession, as a courier, of some 99 grams of (pure) amphetamine. The accused was at the time of sentence 27 years of age, and had no criminal history. Upon an early plea of “Guilty”, his Honour made an initial assessment of a head sentence of three years imprisonment. Taking into account good personal circumstances, and other considerations, his Honour envisaged a parole release date earlier than the half-way point. One of the matters considered by the Court was the effect of the Covid-19 virus on the administration of justice within the Court system, and upon management of prisons, and the consequential effects upon prisoners[30]. As a result of these considerations, his Honour reduced the period of time to be spent in custody from some 9 months, to six and ahalf months – a reduction of about a quarter.
  1. [45]
    I should also make mention of the recent decision, in the United Kingdom, in R v Manning[31], in which the Court of Appeal concluded, consistently with the approach taken in Queensland in the two matters I have referred to, that the effect of theCovid19 pandemic upon the institutions of justice is a relevant consideration in the present climate[32]

“The current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence. In accordance with established principles, any court will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well. Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be.”

  1. [46]
    All of these cases involved circumstances which required punishment by way of a period of imprisonment. I have drawn attention to them because, in all of the circumstances, I am not convinced that a term of imprisonment is outside the range of punishments which may properly be imposed for the present offences. If, as I believe, a term of imprisonment is within range, it is still necessary to consider whether it should be imposed in this case, or whether a non-custodial alternative is preferable.

Early plea of Guilty:

  1. [47]
    I have outlined above the circumstances whereby this matter was brought forward, at the request of Mr McKellar, to an earlier date for finalization. Under all of the circumstances, that is a matter of some significance. Both pleas of “Guilty” entered on the previous appearance are early pleas, in every sense. I have no doubt that, upon reflection, Mr McKellar is genuinely remorseful for his actions on the evening in question. I accept that it was out-of-character for him, a finding strongly supported by his complete absence of previous convictions. Accordingly, I am able to extend to him such leniency as is permitted pursuant to section 13 of the Penalties and Sentences Act 1992.

Other considerations:

  1. [48]
    Mr McKellar is a mature man, 35 years of age, who has been in a stable relationship with his partner since his teenage years. They have three children. Mr McKellar is in full employment, and has been with the same employer, in advancing positions, for in excess of 10 years. His position, as a supervisor, is an onerous one, requiring long hours, shift work, and significant responsibility.

Sentence:

  1. [49]
    I have given this matter careful thought since it last came before the Court. The charge under s 340 of the Criminal Code is of such severity that I believe that a custodial punishment is within range. Taking into account the matters to which I have referred, any sentence should contain elements directed to both general and specific deterrence, in the interests of public safety.
  1. [50]
    I have decided, however, due to Mr McKellar’s previously-excellent antecedents, and the fact that this incident has all the appearances of a one-off event, that a sentence of imprisonment should not be imposed[33].
  1. [51]
    I entertain no doubt whatsoever that the potentially-dire consequences of his conduct have been brought home to him, and will be obvious to others who are, or may become, aware of the circumstances of these offences.
  1. [52]
    I don’t believe probation is an appropriate way to deal with this matter. Mr McKellar is a mature man, and notwithstanding the subject incident, is not, to my perception, a person who needs guidance in the form of supervision by a probation officer.
  1. [53]
    I favour a sentencing option which has a lasting impact, but does not immediately prejudice either Mr McKellar’s continued employment, or the security of his family.
  1. [54]
    Accordingly, with respect to the offence under s 340, I order that Mr McKellar is to complete, as directed, 120 hours of unpaid community service, within 12 months from today’s date. Such an order, by its very nature, will provide a lengthy period over which Mr McKellar will no doubt reflect upon what has happened, as he completes this very substantial period of unpaid work[34].
  1. [55]
    For the offence of obstructing police, I impose a fine of $500.00, which is referred to SPER.
  1. [56]
    Taking into account all of the above considerations, I do not record convictions for either of these offences.
  1. [57]
    I note the efficiency with which this matter was handled by the police officers involved, and I commend them upon the fact that this situation was de-fused, and rendered safe, without harm or injury to any person whatsoever.

[57]  The prosecution has sought forfeiture of the “gel blaster”. I have a discretion with respect to this issue. There are no doubt many people in Queensland, including young people, who, responsibly and safely, handle these types of instruments in the course of recreational activities. I was informed, during submissions, that the item in question belonged to one of Mr McKellar’s children. It would appear that it had simply been left on the dining room table; from where Mr McKellar had picked it up, and consequently misused it. I do not believe that a proper exercise of my discretion as to forfeiture necessitates (in effect) punishing a child for his father’s foolishness; and I do not intend to order that the gel blaster be forfeited as a result of this offence.

J M Aberdeen

Acting Magistrate

Mackay

15th June 2020

Footnotes

[1] Police Powers and Responsibilities Act 2000, s 790.

[2] See email to Mackay Magistrates Court from BC&A Solicitors dated 14 May 2020, requesting that the matter be brought forward for a plea of “Guilty”.

[3] See Exhibit 1 – QPS Sentencing Schedule, page 1.

[4] Presumably upon entering the house.

[5] Under the “Public Health Act”: Exh 1 p 1.

[6] The significance of this observation is that it is very common to see items marketed as “toy” firearms displaying an orange colour on the end of the barrel. This object had no such indication.

[7] The evidence placed before the Court at sentence did not include an estimate of the distance between Mr McKellar and Constable Kuster at the moment the “handgun” was presented; but I have proceeded on the basis that such distance was relatively limited, in that Constable Kuster could immediately move and strike the object from Mr McKellar’s hand.

[8] I doubt that this would have been the term used by Mr McKellar; it is a police-oriented generic term for items carried by an officer during the performance of duty.

[9] From this description, I take it that the weapon was not able to fire a lead, or similar, projectile, capable of causing serious or fatal injury; but I am not clear as to whether it was operable as a “gel blaster”.

[10] See Reference Exh No 4.

[11] Compare R v Anderson [1910] QWN 19 (Chubb J); R v Burnett (1983) 19 Qld Lawyer Reports 23, at 24, Col 2 A-B (Gibney DCJ); R v Dale [1969] QWN 30 (CCA)(ruler held under a coat, and the words “This is a stickup”, sufficient to constitute an assault). The absence of any words in this case, in my opinion, does not prevent the defendant’s conduct from constituting the assault as charged.

[12] Where force is applied, the degree, or gradation, of the force used is in itself a relevant fact in sentencing.

[13] No information was provided to the Court which would indicate whether or not this device was loaded with gel capsules, or was unloaded. While I have some reservations about the possible effects of having a gel capsule shot into a human eye, I cannot, on the evidence, take this any further.

[14] 476 US 16 (1986) at 17-18.

[15] Hence the basis for the specific offence of going armed so as to cause fear, under s 69 of the Code.

[16] A defendant facing sentence is entitled to be sentenced for what has occurred, not for what could have occurred.

[17] Even a ruler held out and covered by a coat (R v Dale cited above), a finger in a pocket extended towards the victim (compare R v Bentham [2005] 1 WLR 1057 (HL), revsg [2004] 2 All ER 549), or some other object (e.g. two pieces of pipe taped together, and partly concealed under a covering: R v Morris & King (1984) 79 Cr App R 104 (CA)) would all appear to capable of falling within the expression “pretends to be armed with a dangerous weapon”. 

[18] To posit the extreme cases, I doubt that a sentence involving a finger in a pocket would attract the same punishment as a case where a loaded firearm was utilized; it is the actual potential for a serious outcome which would distinguish these cases.

[19] See the authorities collected in the Queensland Sentencing Manual (online) at [16.770]. It is noted that this subject is presently under consideration by the Queensland Sentencing Advisory Council. While the Council is yet to report, there is data available which indicates that between 2014-15 and 2017-18, there were 2,648 recorded cases of serious assault against public officers, of which 60.4% were committed upon police officers and involved an aggravating circumstance: Queensland Sentencing Advisory Council, https://www.sentencingcouncil.qld.gov.au/terms-of-reference/assault-public-officers accessed 12/06/2020.

[20] e.g. R v King [2008] QCA 1; 179 A Crim R 600.

[21] e.g. R v Lappan [2015] QCA 180; 255 A Crim R 166.

[22] Matter of Anderson, noted Daily Mercury (Mackay), 23 April 2019, p 3 [Court File No Mackay Mag 00033738 /19(6) ].

[23] Resembling a “Steyr” assault rifle.

[24] Dalby Herald, 13 September 2019, p 3. I am grateful to Magistrate Mossop, of Dalby, for her assistance in identifying this matter. 

[25] Although, at least in respect of the second offence, a more serious charge may well have been arguable.

[26] (1978) 20 ALR 1 (FCAFC). For a recent example, see R v Stevens [2017] QCA 173.

[27] Unreported, Supreme Court of Queensland, Holmes CJ, 16 March 2020, Indictment No 1792 of 2019.

[28] [2020] QSC 107 (Henry J), 31 March 2020.

[29] R v Hanna, Judgment p 3 at lines [5] to [12].

[30] See Judgement p 4 line [17] to p 5 line [11].

[31] [2020] EWCA Crim 592, 30 April 2020; [2020] WLR(D) 284. 

[32] R v Manning, at [41].

[33] I have contemplated a head sentence of 6 months imprisonment, with a Parole Release Date after serving 2 months to give full weight to the timely plea of Guilty, and positive antecedents; then reducing that period by a further one-quarter to acknowledge the effects of Covid-19, resulting in a final period of actual imprisonment of 6 weeks. 

[34] A substantially longer period than the contemplated period of 6 weeks imprisonment.

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Editorial Notes

  • Published Case Name:

    Queensland Police Service v McKellar

  • Shortened Case Name:

    Queensland Police Service v McKellar

  • MNC:

    [2020] QMC 6

  • Court:

    QMC

  • Judge(s):

    Acting Magistrate J M Aberdeen

  • Date:

    15 Jun 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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