R v Marshall[2001] QCA 372

COURT OF APPEAL

DAVIES JA

WILLIAMS JA

WILSON J

BRISBANE

DATE 10/09/2001

JUDGMENT

DAVIES JA:   The applicant pleaded guilty in the District Court on 24 May this year to one count of assault occasioning bodily harm on 31 May 2000 and three counts of serious assault being assaults on a police officer on 2 October 2000.  He was sentenced to a total of three years imprisonment with a recommendation for parole after serving 12 months.  A declaration was made that 199 days pre-sentence custody was deemed to be served under the sentence.  He seeks leave to appeal against the sentence.

The applicant who is 46 years of age has an extensive criminal history mostly drug related or for offences of dishonesty but there are some previous offences which are specifically relevant to the sentence which was imposed here.  In 1983 he was convicted of two offences of assault both in 1982 and offences of serious alarm or affront and resisting arrest in 1983.  Then in April 1999 he was convicted of one offence of assaulting a policeman and one of obstructing police.  And finally on 8 February 2000 he was convicted of breach of a Domestic Violence Order in December 1999.  The first of the offences the subject of this application occurred only three months after he was dealt with for the domestic violence offence.

The first of offences the subject to this application involved an assault by the applicant on the 13 year old son of his defacto wife who attempted to intervene in a domestic dispute between the applicant and his defacto wife.  The applicant then punched him in the eye causing a black eye.  He was arrested and released on bail the following day.

The remaining offences were committed whilst the applicant was on bail.  On 2 October two police officers, a man and a woman, were called to the applicant's residence on three occasions because of reports of domestic disputes.  On the third of those occasions they witnessed an act of domestic violence by the applicant and forced their way into his unit at which time he retreated into the kitchen.  When the male police officer followed him and attempted to arrest him the applicant pushed him in the chest causing him to stumble backwards.  The applicant then armed himself with a 30 centimetre blade kitchen knife and brought the knife down narrowly missing the police officer's throat and chest when he jumped backwards.  It was fortunate that the police officer managed to avoid serious injury.  He could easily have been slashed badly in the throat or chest.  The female police officer then struck the applicant's left arm and leg with her baton and they retreated from the kitchen.  The male police officer then threatened the applicant with capsicum spray but the applicant continued to advance towards the police bearing his knife.  The police officer then sprayed the applicant and the applicant retreated.  Later he again advanced at the male police officer holding the knife but subsequently left the unit.  Police pursued him down the street where he was tackled and restrained.  In the course of this last scuffle the applicant sustained some fractured ribs.

By far the most serious of these offences was the assault upon the police, in the execution of their duty, with a knife.  It was plainly a frightening episode and one which, as I have indicated, very nearly caused at least the male police officer very serious injury, perhaps life-threatening injury.  Indeed the male police officer was so concerned for his and the other police officer's safety and life that at one stage he considered shooting the applicant in self defence.  The learned sentencing Judge thought that in the circumstances the police officer showed considerable restraint and I agree with that.

The effect on the male police officer has been substantial as his Victim Impact Statement indicates.  He suffered severe psychological mood swings and behaviour changes.  It has imposed considerable stress within his family.  He is to be awarded a medal for his bravery in the circumstances. 

At the time of this incident the applicant was affected by alcohol or possibly the combination of alcohol with a prescription drug.  But that is no excuse for his conduct and I do not think, in the circumstances of this case, that it should affect the sentence which should be imposed.

It is submitted by Mr Moynihan on the applicant's behalf that the sentence is manifestly excessive because of matters of mitigation.  But these have been, as they ought properly to be, taken into account in an early recommendation for parole.  Matters of mitigation are not ordinarily taken into account in the head sentence which is imposed.  The appropriateness of the head sentence in this case must be looked at in the light of the seriousness of the conduct involved. 

There can be no doubt about that.  There seemed every possibility that the applicant would attack and seriously injure either or both police officers with the knife he was wielding in a threatening manner.  Moreover his conduct appears to have become gradually worse during the course of the day in question and the offences were committed whilst the applicant was on bail for the earlier assault.

There is no doubt that in matters of this kind, as this Court has mentioned on more than one occasion, deterrence is a primary consideration and police officers must be protected.

The sentence imposed was a high one and Mr Moynihan attempted to show that, by reference to what he submitted were comparable cases, it was manifestly excessive, that is for the nature of the conduct involved.  He referred in particular to three cases:  Kalinan CA No 147 of 1998, Lacey CA No 221 of 1996 and Marshall which is reported in [1993] 2 QdR 307.  All of those cases were decided when the maximum penalty for this offence, that is serious assault on a police officer, was three years and it is now, of course, seven years. 

The most closely comparable of those cases is Kalinan.  Mr Moynihan points to the fact that in that case the applicant deliberately armed himself with a piece of wood before the police entered his unit but he immediately struck the police officer.  That he also spat and bit a police officer knowing that he was positive to Hepatitis C and he had a previous history of assaulting police.

It seems to me however that the nature of the conduct in this case was very much more serious in the sense that the threat of life-threatening injury to the police was prevalent for some time.  That is something which, in my opinion, requires a substantially deterrent sentence. 

It seems to me in the circumstances that the sentence which was imposed was imposed for that reason and seems to me to be appropriate. 

It was submitted also, I should add, that the applicant suffered fractured ribs during the incident in which he was tackled and that that somehow should reduce the sentence which is otherwise imposed.

No doubt there may be many occasions where injury suffered by an offender may reduce the sentence otherwise appropriate but I do not think this is one of them or it is certainly not one in which it should have any significant effect. 

The learned sentencing Judge, as I have already indicated, mitigated the sentence which he imposed quite substantially by his recommendation for parole after 12 months.  It was appropriate to make a recommendation in the light of the applicant's early plea and possibly his injuries but I do not think that the reduction which his Honour gave was less than appropriate.   I think, globally, the sentence was not outside the appropriate range and I would therefore refuse the application.

WILLIAMS JA:  I agree.

WILSON J:  I agree.

DAVIES JA:  The application is refused.