The Queen v Kalinin[1998] QCA 261

COURT OF APPEAL

de JERSEY CJ

DERRINGTON J

CA No 147 of 1998

THE QUEEN

v.

DARREN ANDREW KALININ Applicant

BRISBANE

DATE 16/07/98

JUDGMENT

DERRINGTON J:  This is an application for leave to appeal against a sentence of two years' imprisonment on each of two counts of serious assault and one count of assault occasioning bodily harm whilst armed.

The applicant had a serious relevant criminal history that included convictions for assaulting a police officer, resisting a police officer, assault occasioning bodily harm and common assault.  These convictions for assaults terminated about nine years prior to the present offences. 

He also had many convictions for obscene language, behaving in an indecent manner, drink driving, unlawfully entering a dwelling house, wilful and unlawful damage to property, behaving in a disorderly manner, stealing and false pretences and some relatively minor drug offences.

The present offences occurred during the one occasion when the applicant was behaving violently and resisting the attempts of the police to subdue him.  He had been engaged in domestic violence in the early hours of the morning which caused a neighbour to summon the attendance of the police.

On hearing noises inside the applicant's unit where it was feared that he was detaining his two young children, the police knocked on the front door and identified themselves.  After an obscene response from the applicant and the sound of further noises inside the unit, the police again identified themselves and threatened to force their way in but the applicant, again in obscene terms, told them to leave.

When further violent noises were heard coming from the unit, the police obtained permission to enter.  After they threatened to force their way in, the applicant again told them to go or he would kill them all.  The police then commenced to make forcible entry but found the door barricaded.  They tried to speak to the applicant and explained that they wished to ensure that the children were safe but the applicant threw something at the door and continued to threaten them.

Smelling what they believed to be gas or petrol, the police evacuated the building and then used a sledge hammer to break down the front door of his unit.  The police tried to clear the barricade which the applicant was resisting.  He was seen to be holding a piece of wood with which he struck one policeman, Constable Lees, on the back of the right shoulder causing severe pain.  He continued to strike at Lees with it while Lees responded with his baton. 

Despite being struck a number of times, the applicant did not retreat and continued to strike at the police officer.  As other police officers tried to enter, the applicant spat on the face of one of them, Constable Newman.  Another police officer, Plain-clothes Constable Symes, attempted to apply a restraining hold to the applicant's neck but the applicant bit his arm causing serious pain.  After withdrawing his arm, the police officer again applied the hold, this time successfully, and the applicant was restrained.

A search was conducted but there was no other person present in the unit.  The search revealed some drugs for which the applicant was convicted in summary proceedings.

The offences had an aggravated aspect in that documents in the unit indicated that he was infected with Hepatitis C, so that although no serious physical harm of a lasting nature was in fact occasioned by the assaults, the fear of their contracting Hepatitis C had a serious effect on police officers, Symes and Newman, for a substantial time afterwards.

Subsequent blood testing revealed no infection but at the time of the sentence, the matter had still not been entirely resolved with certainty since that could not be guaranteed until some 12 months had elapsed from the time of the assaults, and the sentence was three weeks before the effluxion of that time.

The use by the applicant of his infection as a weapon to cause added fear and distress to the victims of his assaults in this way is a seriously aggravating feature of his conduct.  Knowing of his capacity to infect others by these means, he behaved with reckless malice and if he had in fact infected anyone in this transaction, he would have been imprisoned for a long time indeed.

For the applicant it was said that his behaviour was the result of his mistaken belief that the police were thugs who were invading his home but that proposition has now been abandoned.  It should be rejected totally.  He must have known that his domestic violence, antecedent to the arrival of the police, would probably have attracted them.  They identified themselves several times and he did not ask for verification.

He also claims that his biting was an instinctive response to the restraint put upon him by the police.  To a certain extent that may be true but the police were merely doing their duty in accordance with the situation that he had created and, in any case, the general malice of his conduct is demonstrated by his conduct immediately anterior to the biting which included spitting in the face of one police officer and striking another with a piece of wood after the obscene remarks that he had made to them prior to entry.

He had been the aggressor on all of these occasions in a violent way and it might well be inferred that his biting was much more deliberate than merely a reactive response to the attempt to restrain him.

The applicant points to three errors of the learned sentencing Judge.  The first appears in her remark that the appellant had subjected the complainants to a "very high risk" whereas Plain-clothes Constable Newman had been advised by a doctor that the risk was low.  This error, however, is not of great consequence because even after advice by the doctor, Constable Newman has indicated that the possibilities of infection to himself and his family had a very serious impact on his life and his family relationships.

The second error was that the learned trial Judge said that all the victims had suffered grievously in this way.  Whereas Constable Lees had referred to similar suffering to that of Constable Newman, the charge against the applicant of biting him had been dropped and the reference to his suffering in his victim impact statement should not have been used.  The error, however, is only in relation to the number of people involved.  Indeed, the gravamen of what was said was certainly true in respect of at least Constable Newman.

It also appears that the learned sentencing Judge was led into error by learned counsel in their submissions in relation to the maximum sentences then applicable for the charges that were subject to the sentences.  Those maximum sentences had been enlarged for these offences between the date of the offence and the date of the sentence, and the law applicable was of course that which was in force at the earlier time when the offences were committed.

The maximum penalties were then seven years' imprisonment and three years' imprisonment respectively, and they had been increased to 10 years and seven years respectively at the time of the sentence.  It was these latter figures that were used by the learned trial Judge in assessing the appropriate sentence, and this is a significant factor.

In imposing the sentences mentioned above she took into account the applicant's pleas of guilty.  She also made allowance for the entire period of his pre-trial incarceration as service of these sentences, notwithstanding that part of that time was spent in serving a two month sentence of imprisonment arising from the charge relating to the drugs found in his possession on that night. 

The full allowance of that period towards the service of these sentences was justified at the time because it was said that if all the offences had been heard together the sentences would have been concurrent. Since they were distinct matters, that proposition is questionable, but this may be disregarded.

It is submitted for the applicant that as a discounted sentence the period of two years imprisonment is manifestly excessive for offences of this description and that this is accounted for by the errors of the learned trial Judge catalogued above.  Such a submission is unjustified except in relation to that feature relating to the maximum sentences set by the legislature in respect of the respective matters.

In the circumstances of this case it is appropriate to say that if the learned trial Judge had been correctly apprised of the maximum sentences available at the time then her sentence would have been adjusted accordingly.

In this case it would appear that she approached the matter in a way that led to the fixing of a figure of two years imprisonment after making allowance for the applicant's plea of guilty to the offences.

If she had been correctly apprised of the correct maximum sentences, it is likely that she would have begun with the figure of two years imprisonment and then made the suitable adjustment by way of an allowance for the indication of remorse arising from the pleas of guilty. 

That course should be adopted here and in lieu of the sentences that were imposed in each case a sentence of 18 months imprisonment should be substituted for that which was imposed.

In that respect then the application for leave should be granted.  The appeal should be allowed.  The sentences in each case set aside and a sentence of imprisonment for 18 months be substituted in respect of each.

THE CHIEF JUSTICE:  I agree.  It must be clear that our taking this course is not to understate our perception of the gravity of the applicant's conduct, or the unfortunate effect on his victims.  It is a response to Her Honour's having proceeded on the mistaken view as the applicable maximum penalties, an error into which she was regrettably led by counsel, but that circumstance does, I believe, warrant our now making the adjustment to which Mr Justice Derrington has referred.

The orders of the Court are as he has indicated.

DERRINGTON J:  Might I add that these sentences should not be regarded as appropriate under the new regime in relation to the maximum sentences that are now relevant to these charges.

THE CHIEF JUSTICE:  I also agree with that observation.