R v Taylor[2004] QCA 447

SUPREME COURT OF QUEENSLAND

MACKENZIE J:  The applicant seeks leave to appeal against sentences imposed on him for two offences of serious assaults in that they were committed on police officers acting in the execution of their duty and one offence of going armed in public so as to cause fear.  For the serious assaults he was sentenced to concurrent terms of two years' imprisonment.  For going armed in public he was sentenced to 12 months' imprisonment.  In the absence of a suspended sentence, because the sentences are not more than two years, the applicant effectively must serve 16 months in prison.  It is submitted that the learned sentencing Judge failed to give sufficient weight to the circumstances of the offences and to the plea of guilty and that the sentence was, by reference to other comparable decisions, outside an appropriate range.

The facts are that on 4 March 2004 police were called to a domestic disturbance.  When they arrived a woman complained that the applicant was in the house with a knife.  As the police approached the house he came out armed with a large knife.  He threatened to kill the police and continued to approach them with the knife making stabbing gestures with it.  The officers backed away into the street and attempted to reason with him.  He said, "Come on, shoot me.  I'm ready to die.  I want to die," and kept repeating similar remarks as the incident continued.  On occasions he placed the knife to his stomach and said to the police that he would kill himself.

He approached the officers on a number of occasions threatening them with the knife.  Each time they backed away.  At one point he rushed at them with the result that they pointed their service revolvers at him.  After approximately an hour and a half and after they had been forced to retreat some 400 metres from the house the officers coaxed him back to the house where he sat on the front steps still holding the knife.  He began to cry and said he wanted to speak with his father.  The applicant agreed to drop the knife when his father arrived.  The applicant then threw the knife to the ground and went with the police without further incident.  It may be noted that the police appear to have behaved with commendable patience, restraint and skill in bringing the incident to a conclusion without actual harm being caused to anyone.

The applicant was 31 at the time of the offences.  He had a deplorable criminal history in Queensland, Victoria, Western Australia and the Northern Territory involving numerous assaults including assaults on police and assaults occasioning bodily harm, breaches of domestic violence orders, and street offences as well as less related offences of dishonesty and drug offences.  At the time of the present incident he was very intoxicated and aggressive.  The Court was told that the combination of drinking and depression was a significant factor in his conduct. 

The difficult issue of how best to deal with him so that he might obtain assistance for his problems was discussed during the course of sentencing submissions.  The possibility of imprisonment followed by probation was raised.  The learned trial Judge took the view, as I interpret his comments, that such an order was unlikely to be practicable because the applicant's criminal history suggested that voluntary participation in the necessary treatment was unlikely.

The defence, like the learned sentencing Judge, was apprehensive that suspension of the sentence would merely set the applicant up to fail.  That appears to be the reason why, notwithstanding the plea of guilty, no suspension was granted in recognition of the plea of guilty and other matters in the applicant's favour.  The two years' imprisonment must therefore be seen as a sentence reduced to take those matters into account.  In his sentencing remarks the learned sentencing Judge emphasised the need to deter conduct of the kind engaged in against police officers doing their duty.  There was a declaration of 155 days as time already served. 

The applicant relied on several Court of Appeal authorities in support of the submission that the sentence was manifestly excessive.  In R v. Marshall (2001) QCA 372, three years' imprisonment with a recommendation after 12 months was imposed for an assault occasioning bodily harm on the applicant's partner's son and for three serious assaults on police committed on a later date while on bail for the assault occasioning bodily harm, in somewhat similar but more serious circumstances than the present case.  In particular, a police officer had to take evasive action to avoid being struck by a knife swung by Marshall.  It was accepted that the sentence was a high one but deterrence and protection of police officers were recognised as being necessary in this kind of case.  The application for leave was refused.

In my view, the head sentence in Marshall must be looked at in light of the seriousness of the conduct involved.  He had previous convictions for assault and street offences in 1982 and 1983 and in 1999 had assaulted a police officer.  Three months before the first of the offences involved in his application he had breached a domestic violence order.  The present applicant's offending is much more persistent than Marshall's.

In R v. Lacey, Court of Appeal number 221 of 1996, the applicant was 53 and had no previous convictions for like offences.  He had called the police and told them falsely that he had a hostage and was armed with a firearm.  When the police eventually entered the house they found him alone, without a firearm, and very intoxicated.  He swung a knife towards a police officer who took evasive action and then subdued him.  The police officer conceded that the knife may not have struck him in any event.  Lacey was apologetic after the event but eventually went to trial.  He was sentenced to nine months' imprisonment which was held not to be manifestly excessive.  The present case is worse because the applicant's conduct extended over a much longer period and he has a bad record.  In addition, the maximum penalty at the time of Lacey was three years as opposed to seven years currently.

In R v. Von Pein [2002] QCA 385, the applicant was sentenced to 18 months' imprisonment for assault occasioning bodily harm while armed, common assault and serious assault of a police officer.  The first offence consisted of striking his former partner with a belt following an evening of arguing which culminated in her waking him up by shaking and striking him to carry on the altercation.  The common assault occurred when she went to a phone box to call the police.  The offences against the police officers were constituted by threats to apply force to them when they tried to question him.  One police officer suffered a slight hand injury when the accused slammed a door after the police foreshadowed using capsicum spray, which they eventually did to subdue him.  He had committed prior acts of violence against his partner and against one of the police officers who attended on the occasion in question.  He went to trial without any discernible defence which was taken to demonstrate lack of remorse.  The Court of Appeal did not interfere with a head sentence of 18 months but mitigated it by suspending the sentence after six months.  That case is not as bad as the present.

In R v. Kalinan, Court of Appeal number 147/1998, the applicant pleaded guilty to serious assault on a police officer and assault occasioning bodily harm while armed.  He was sentenced to two years' imprisonment.  He had been convicted for assaults terminating some nine years previously.  He had other convictions for street offences, offences of dishonesty and minor drug offences.  The police attended because of a complaint of domestic violence.  The applicant, who had barricaded himself in the house, made threats before the police broke in.  He struck a police officer with a piece of wood on several occasions. 

In response, the police officer defended himself with his baton.  The applicant spat at another police officer and bit yet another.  Because he had hepatitis C this caused concern which, by the time of the sentence, appeared remote that the police officers may have been infected with the disease.  A sentence of 18 months was substituted because the learned sentencing Judge had been misinformed about the then maximum applicable penalties.  Justice Derrington commented that had the higher maximum been applicable the sentences should not be regarded as appropriate under the new regime.

Effectively, because of the Penalties and Sentences Act 1992 and the Corrective Services Act 2000 the applicant must serve 16 months in prison before being eligible to be granted a conditional release order.  In imposing the sentence of two years' imprisonment the learned sentencing Judge carefully weighed up the submissions of counsel concerning the risk for the applicant if he re-offended during the period of suspension and in light of those submissions imposed a head sentence equivalent to about two and a half years before mitigation which was, in my view, within a proper range for the offence given the circumstances and the applicant's history which was a very bad history of violence.

In the circumstances, I am not persuaded that the sentence was manifestly excessive and the application should be refused.

THE PRESIDENT:  I agree.

WILLIAMS JA:  I agree.

THE PRESIDENT:  The order is the application is refused.