Attorney-General v Paterson[1998] QCA 287

COURT OF APPEAL

McMURDO P

PINCUS JA

AMBROSE J

CA No 203 of 1998

THE QUEEN

v.

ANDREW ROBERT PATERSON Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

DATE 26/08/98

JUDGMENT

PINCUS JA:  This is an Attorney's appeal against sentence. The respondent, Mr Paterson, was involved in a scuffle with police which resulted in his being charged with wilful obstruction of a police officer, assaulting a police officer and resisting police officers in the execution of their duty. The respondent pleaded guilty to all these counts and was fined. He had been drinking heavily one night and intervened outside a nightclub when the police arrested a man with whom he had been drinking. The person arrested, one Wales was struggling with police in the rear of a police vehicle. He had kicked out the rear window of the vehicle and, apparently in a misguided attempt to assist Wales, the respondent grabbed a Senior Constable Smith who had been struggling with Wales and pulled him away. By some means in the course of doing this the respondent came to have in his possession the police revolver which had been in a holster attached to Senior Constable Smith's belt. Our attention has been drawn to the way in which this was explained to the primary judge by the Crown:

"Your Honour, the only - all the Crown alleges is that the prisoner pulled King away. As a result of pulling him away - pulling Smith away, he somehow ended up with a pistol in his hand."

And the prosecutor went on below:

"Neither police officer could say with any certainty that the prisoner intended to get the weapon and point it at anyone. It's just that that's what happened, but it was obviously a serious matter, Your Honour."

Constable King came to help his colleague. He grabbed the respondent and spun him around and then saw the butt of the revolver in the respondent's hand. He became apprehensive, not surprisingly. The prosecutor below drew attention to evidence given at committal by Constable King to whom it was suggested that the respondent had held the revolver "not in a manner as if he was going to fire it. He was holding the weapon, instead of pointing it by the pistol grip", and the answer was, "That's right."  But then Constable King added, "But, the pistol would still be able to be fired from the way he was holding it, definitely."  The judge was told that Constable King lunged towards the respondent when he saw the butt of the revolver, grabbed his hands, and pushed them up into the air. There was then a struggle between the police officers on one side and the respondent on the other, during which Senior Constable Smith struck the respondent a number of times with his baton. In the course of this scuffle the revolver was taken from the respondent.

It was said in favour of the respondent below that he was very drunk. In some circumstances intoxication by alcohol or drugs may be a mitigating factor, as is illustrated by what was said in Hammond [1997] 2 Qd.R. 195, but the general rule, as established in Rosenberger [1995] 1 Qd.R. 677 and followed in other cases, establishes that unless there is something which wholly or partly excuses the taking of alcohol or other drugs by an offender, intoxication does not mitigate penalty. In the present case, it seems clear that the matter was within the rule rather than within the exception, and the misbehaviour of the respondent was not in any way mitigated by his having been drunk.

The critical point in the case appears to me to be this, that the Crown's appeal focuses upon not all three offences, each of which attracted a fine, but upon the offence of assault - that is, to read the charge, "That on the 16th day of May 1997 at Townsville in the State of Queensland you assaulted Adam Matthew King a police officer acting in the execution of his duty."  It was contended on behalf of the Crown that the offence of assault could be proved even if there were no intention to threaten Constable King. It was also conceded, very helpfully and frankly, that the Crown's concession below made it impossible to suggest that there was an intention to threaten Constable King.

In these circumstances, since the Crown attacks the penalty imposed in respect of the assault and not the penalty imposed in respect of the other matters, the appeal is a difficult one indeed to pursue. The fines were $800 for the assault and $200 for each of the others. If there was an assault which, on the facts placed before the court below seems a dubious proposition, then it was one which is, as it appears to me, not contended to have been intentional. One can understand the police officer being quite apprehensive when he saw the pistol there, but absent proof or an admission that the pistol was deliberately obtained and absent proof or an admission that there was some intention to point it at Constable King, it seems to me impossible to hold that a custodial sentence was warranted. I would therefore dismiss the appeal.

THE PRESIDENT:  I agree.

AMBROSE J:  I agree.

THE PRESIDENT:  The order is the appeal against sentence is dismissed.