Attorney-General v Wotton[1999] QCA 382

COURT OF APPEAL

McPHERSON JA

DERRINGTON J

CHESTERMAN J

CA No 215 of 1999

CA No 216 of 1999

THE QUEEN

v.

BRISBANE

DATE 09/09/99

JUDGMENT

CHESTERMAN J:  The Attorney-General has appealed against sentences imposed in the District Court at Townsville on 25 May 1999 on each of the respondents.  They pleaded guilty to an indictment charging them with assault occasioning bodily harm while in company.  The respondent Bourne was further charged with serious assault.  The three offences occurred on 17 April 1998 at Palm Island.  The respondent Wotton was charged on a separate indictment with assault occasioning bodily harm to Derry Lillian Burns on 3 May 1998 also at Palm Island.

The victims of the assaults committed on 17 April 1998 were police officers who were stationed on the island.  They were called to a disturbance at about 3.30 a.m.  One of the officers, Senior Constable Baade, was a married woman who was three or four months pregnant.  When the officers arrived at the trouble they noticed between 30 and 40 Aboriginal people all of whom were intoxicated.  The respondent Wotton was engaged in a fight and was restrained by Constable Sodhi.  The two officers were then surrounded by the crowd. 

Wotton had submitted to Constable Sodhi's restraint but Bourne incited him to "bash and flog the coppers," and to "hit him".  Wotton obeyed and punched Constable Sodhi twice in the face.  Constable Baade went to assist him but was struck a severe blow from behind by Bourne.  She fell to the ground and lost consciousness. 

Meanwhile, Wotton had broken free from Constable Sodhi's hold and continued to punch him in the head.  Bourne also threw punches at the constable and then held him so that he was unable to defend himself.  Whilst restrained by Bourne Wotton continued to punch him.  Constable Sodhi also fell to the ground where he was kicked by Wotton.  He too lost consciousness.  When he regained it some in the crowd helped him to his feet.  Constable Baade had also been helped.  She was dizzy and had blurred vision.  The two officers returned to their car and left the scene.

Constable Sodhi suffered grazing to his chin, nose and upper lip and bruising to his nose.  His ribs and back were hurt, two front teeth were loosened.  He suffered headaches and pain for about two weeks after the assault.  Senior Constable Baade suffered facial bruising and bleeding to her right eye.  She experienced considerable concern for the well being of her unborn child and requested a transfer to non-operational duties.  This was granted but reduced her income by about $100 a week.

The second indictment against Wotton alleging assault occasioning bodily harm relates to an attack upon his de facto wife on 3 May 1998.  He bit and kicked the lady who suffered a four centimetre laceration under her chin, a graze to her right eyelid and a further laceration behind her right ear.  The longer laceration required stitches.

Wotton was 22 and had no prior criminal convictions.  Bourne was 27 and had a conviction for assault occasioning bodily harm committed in July 1989.  As well, he had been convicted of some minor offences in 1993 and 1994 for which he was fined modest amounts.  For the assault committed in company on Constable Sodhi, each of the respondents was sentenced to nine months' imprisonment, wholly suspended for an operational period of two years.  Bourne was sentenced to perform 240 hours of community service for the assault on Constable Baade.  For the subsequent assault on his de facto wife, Wotton was sentenced to two years' probation and ordered to perform 240 hours of community service.

The Attorney-General submits that the sentencing Judge failed to give appropriate weight to the principle that penalties imposed upon those who assault police officers in the course of their duty should be severe.  This is to reflect the community's intolerance for conduct which harms those whose function it is to protect the community, and the need to deter such conduct.  The principle is undoubted.  In 1968 the New South Wales Court of Criminal Appeal in The Queen against Howard and others, (1968) 2 New South Wales Reports 429, said at 430:

"The police force must be protected from attacks.  The sentence must indicate the community's displeasure and be a warning to others who may choose to do what had been done here.  It is necessary for the Court to indicate very clearly that behaviour of this type, that is assaults on police officers, will attract salutary sentences because an assault on uniformed police officers in the execution of their duty is a grave matter."

The principle has found expression more recently.  In The Queen against Williams, Court of Appeal 385 of '97, 21 November 1997, Mr Justice Dowsett said:

"The maintenance of order in our society depends upon those who are charged with enforcing it being adequately protected to the greatest extent possible in the performance of their duties.  Where police officers innocently and with good will are going about their duties, it is not fair to them that they should be exposed to assaults of this kind.  Nor is it in the best interests of the community that they should be so exposed.  If there is to be peace in the community and if those charged with maintaining it are to go about their duties in an acceptable way, they must be protected.  It is important that the sentence not appear to be merely a nominal one."

Similarly, in The Queen and Kazakoff, CA 236 of '98, 27 August 1998, Justice Byrne said:

"The protection of police officers acting in the execution of their duty must surely be a matter of considerable concern to the Courts and the community.  Those who, like this respondent, acting in company mete out violence with a weapon to a police officer, must expect condign punishment."

We have been supplied, on the hearing of the appeal, with a number of decisions of this Court concerned with broadly similar offences.  In none of them was a wholly non‑custodial sentence imposed despite some of the offenders being quite youthful and/or having no prior convictions.  Two of them are the cases from which I have just quoted.  The Court has consistently applied the principle I have mentioned, that it will protect police officers called upon to maintain order in difficult situations and will deter violence against them by the imposition of appropriately severe punishment. 

It appears to be accepted by counsel for Bourne that the penalties imposed were lenient.  It was submitted, however, that the Court ought not to interfere with the sentencing Judge's discretion.  The question for the Court when considering an appeal by the Attorney-General is whether the sentence imposed is outside the scope of a proper sentencing discretion, that is, whether the quantum of the sentence already imposed calls in an obvious way for correction.  See The Queen against Osmond (1987) 1 Queensland Reports 429 at 438 and The Queen against Melano (1995) 2 Queensland Reports 186 at 190.

Wotton resists the appeal on the basis that his personal circumstances are such as to call for moderation in his punishment.  He was significantly depressed and his psychological state reduced his level of self-control.  As well, it was urged that he was ordinarily a quiet family man who avoids violence.  He is responsible for the care of his young children and an eight year old neice.  Wotton also relies upon his demonstrated genuine remorse.  He surrendered himself to police immediately after the incidents.  He might have otherwise escaped.  He sought out Constable Baade to apologise to her for her ordeal though he had not attacked her.  He offered to provide a statement to assist in the prosecution of his co-offender.  It was emphasised that he was young and had no previous convictions.

In my view, even allowing for the factors personal to Wotton, the sentences do fall outside the permissible range in that offences of this kind, that is assaults occasioning bodily harm to police officers endeavouring to uphold peace and order in the community, should attract a term of actual imprisonment.  The learned sentencing Judge did not give sufficient weight to that need.

His Honour treated the two respondents equally but in this I think he was in error.  Wotton offered the most violence to Constable Sodhi but he was incited to do so by Bourne and probably would not have attacked him at all but for that incitement.  The matters urged on his behalf are also relevant.  Bourne instigated the assault and himself held the constable so that Wotton could strike him.  He was older and has the previous conviction for another offence of assault occasioning bodily harm.

In relation to the offence of assault occasioning bodily harm while in company, I would allow the appeals and order that Bourne be sentenced to a term of 12 months' imprisonment, to be suspended after serving six months with an operational period of two years.  In the case of Wotton, I would propose that he be sentenced to 12 months' imprisonment, to be suspended after serving three months, the operational period to be two years.  Bourne has performed the community service imposed upon him with respect to the assault on Constable Baade.  As I understand the appellant's submissions, the Attorney does not seek an increase in that sentence which has been served. 

There was also an appeal against the sentence imposed on Wotton for his attack on his partner.  Although this was a serious and indeed a vicious attack, I would not propose increasing the sentence.  The attack arose out of a troubled domestic relationship which continues and in which the victim apparently offers Wotton her support.  It occurred at a time when there were considerable personal difficulties in the respondent's circumstances which to some extent justified leniency.  In any event, that appeal was not pursued.

McPHERSON JA:  I agree with the reasons that have been given by Mr Justice Chesterman and with the order he proposes for disposing of the appeal.

DERRINGTON J:  I agree.

McPHERSON JA:  The order will be as it has been expressed by Mr Justice Chesterman.

A warrant will have to go, won't it?

MR RIDGWAY:  Yes, it will, Your Honours.  Yes.

MR RAFTER:  Could it lie in the registry or - could the the warrants lie in the registry for, say, seven days, Your Honour?

McPHERSON JA:  Yes, all right. 

There will be orders that warrants issue in the case of each of the two respondents for their arrest, such warrants to lie in the Registry for seven days or until further order.