R v Reuben[2001] QCA 322

COURT OF APPEAL

DAVIES JA

WILLIAMS JA

BYRNE J

CA No 99 of 2001

THE QUEEN

v.

JOHN WALLACE REUBEN Applicant

BRISBANE

DATE 07/08/2001

JUDGMENT

DAVIES JA:  The applicant pleaded guilty in the District Court at Townsville on 18 April this year to one count of serious assault, which was biting a police officer in the execution of his duty; two of wilful damage, which were throwing rocks, or in one case I think a brick, through a window; and three summary offences, two of threatening words, and one of breach of a domestic violence order.

These all occurred on 4 November 2000.  The applicant is 27 years of age having been born on 23 October 1973.  He was sentenced to eight months imprisonment, partially suspended after three months with an operational period of two years in respect of the serious assault and in respect of each of the other offences he was sentenced to one month imprisonment.

He has a short but relevant prior criminal history.  In 1995 he was convicted of wilful and unlawful damage to property for which he was fined.  No conviction was recorded.  In the same year, he was found guilty of unlawful assault, no conviction was recorded and he was ordered to enter into a recognisance to be of good behaviour for a period of 6 months.  Again in the same year, he was convicted of assault occasioning bodily harm and fined and ordered to pay compensation.

A domestic violence order was issued against him. He was found to be in breach of that domestic violence order in 1997 but the circumstances of the breach have not been disclosed and so it is not possible to say whether that breach involved any element of violence.

The applicant resided with his de facto wife on Palm Island and the offences arose out of a domestic incident on the morning in question when the applicant appears to have been substantially affected by alcohol. 

On that morning, police were called to the residence at which the applicant and his de facto wife were residing.  As they observed, the applicant picked up a rock and threw it through a sliding door on the second level of the residence.  He then approached the driver's door of the vehicle which was then pulling up and while the officers were still inside it, he said, "Come out and I'll bash you, you white fucking cunt."

The witnesses later told the police that prior to their arrival the prisoner had thrown another rock through a different window at the bottom level of the residence; they were the two offences to which I referred earlier of wilful damage.

One of the police officers then got out of the vehicle and tackled the applicant who broke free and then began to run away.  He was tackled again and a struggle ensued.  Both officers were involved in attempting to subdue the applicant who attempted to throw punches at both officers but no punches connected.

However, he did bite one of the officers on the knee, leaving teeth marks but the skin was not broken, and that is the offence of serious assault.

He then grabbed one of the officers' watchbands and twisted it, causing it to break; that was the other offence of wilful damage.

He was then taken into custody.  There were some more words exchanged and when he was finally discharged from the police station some hours later when he was sober, he apologised to the police officers concerned for his conduct.  As Mr Moynihan who appeared for him today said, that does seem to have been an expression of genuine remorse.

In imposing the sentence which he did, the learned sentencing Judge said:

"Higher authority than this Court has indicated to Judges such as myself that where assaults involve an assault on a police officer in the execution of his duty, that imprisonment is the only appropriate penalty."  

Mr Moynihan submits that that indicates an error in law by the learned sentencing Judge which may well have led to the view that his Honour was bound to impose a custodial term which, in fact, he imposed here.

That submission seems to me to be correct, though it may generally be correct to say that, in the cases of assault on a police officer, in most cases the appropriate remedy is one of a custodial term.  It is certainly not the only appropriate penalty and Courts should not feel bound to impose that penalty in every case.

There being therefore an error by the learned sentencing Judge which led to his conclusion, the sentence which was imposed should be set aside, leaving this Court to re-sentence, imposing what this Court thinks is the appropriate sentence in the circumstances.

In doing so, this Court must have regard to the fact that the applicant was taken into custody and, in fact, served 15 days of custody before being released.

A number of authorities were referred to by counsel for both sides.  I do not find it necessary to refer to those.  It is more instructive, I think, to look at the precise circumstances of this case. 

Those circumstances show in the applicant's favour that he is a relatively young man in a stable relationship with the responsibility of a young family.  He has a reasonable work history with some prospects of continuing employment.  His criminal history, though relevant, is limited and restricted to 1995, so far as can be seen and, although they involve offences of assault, he does not seem to have been, so far as can be seen, involved in any conduct involving violence since that time.

The episode involved was a serious one in the sense that there was an element of biting and, as was pointed out during the course of argument, that is a serious offence in the sense that there is a risk of disease if the biting breaks the skin, and it was more by good luck than anything else that that did not occur in this case.

There are some analogies between a biting offence and a spitting offence involving a police officer but there are, of course, differences, one of which is that spitting can often be a premeditated or calculated offence whereas biting, certainly in this situation, was not premeditated.  Spitting has a degrading aspect to it and it also has the aspect of contempt shown for the authority of the police, at least in some cases.  Nevertheless, this was quite a serious offence in the circumstances.

The plea of guilty I have mentioned, but of importance, I think, in that respect is the spontaneous expression of remorse by the applicant, his reasonable prospects in the future of employment and it is hoped a reasonable relationship with his de facto wife and his young family.

This is a case which, in my opinion, had this applicant not already spent some time in custody and this Court were sentencing afresh, notwithstanding the factors in his favour, because of the seriousness of the offence it would, in my opinion, have warranted a custodial term; that is, a period of actual custody.

It still is an important factor in cases of this kind that the authority of the police should not be undermined and it is important, I think, to recognise that by imposing a sentence of imprisonment, but in this case because of the fact that the applicant has spent a period already in custody, I would wholly suspend it.

I would accordingly grant the application, allow the appeal, and set aside the sentences imposed below.

On the sentence for serious assault I would impose a sentence of three months' imprisonment, wholly suspended, and in respect of each of the other offences, I would impose a sentence of one month's imprisonment, also wholly suspended in each case for an operational period of 18 months.

WILLIAMS JA:  I agree.

BYRNE J:  I agree.

DAVIES JA:  The orders are as I have indicated.        

MR MARTIN:  As I was sitting there it occurred to me that your Honours might be minded to make a declaration of the 15 days he has already served as time served.  The reason I say that is because if he is ever called upon to serve this three months, it may be that the 15 days has to be deducted.

DAVIES JA:  Thank you, Mr Martin, and I will.  That declaration should be included in the order.

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