SUPREME COURT OF QUEENSLAND

[1]  JERRARD JA: In this application I have had the benefit of reading the reasons for judgment and orders proposed by Fryberg J, and I respectfully agree with those.

[2]  FRYBERG J: The applicant seeks leave to appeal against a sentence of imprisonment for nine months, suspended after serving three months, for an operational period of 12 months.  The sentence was imposed in the District Court on 12 December 2005 after the applicant pleaded guilty to two counts of assaulting a police officer in the execution of his duty.

[3] The circumstances of the offences were set out in a statement of agreed facts.  At approximately 11.40 pm on Saturday 13 April 2005, police were called to a disturbance outside the Cooroy Victory Hotel on Maple Street, Cooroy.  On arrival, police observed a large number of people involved in verbal and physical altercations.  After repeated warnings from police, the applicant's younger brother, Ian Hamilton, was arrested for creating a public nuisance.  The applicant immediately told police, “Fuck off.  Don't touch my brother.” Ian Hamilton then ran from the scene.  Police chased after him and he was apprehended 50 metres down the street.  As police were attempting to handcuff him, the applicant charged at police, running at full pace towards where his brother was being arrested.  The applicant swung a number of punches, hitting Constable Alexander in the head and upper torso (count one).  The applicant was wrestled to the ground and then handcuffed.  He was screaming abuse and struggling violently with police.  As he was placed into the police van he turned his head towards Sergeant Scott and spat saliva into his open eyes and mouth, resulting in momentary blindness.  The applicant then yelled “Take that, you dirty dog.  You cunts deserve everything you get” (count two).  The applicant continued to struggle with police and scream abuse and threats while being placed into the rear of the police van.  The applicant and his brother Ian were taken to the Maroochydore watchhouse where the applicant was charged.  As a result of the assault, Constable Alexander experienced pain to his head and upper body.  He also received a small cut to his forehead which bled slightly.  As a result of the assault on Sergeant Scott, a disease test order was obtained.  An analysis of the applicant's blood and urine revealed no communicable disease or condition.  As a precaution, Sergeant Scott had a blood test which also came back clear.

[4] Those circumstances were orally supplemented by counsel below.  Initially, the two police officers who were assaulted were the only police officers at the scene.  They had tried to reason with the crowd to go home and behave themselves and most of the crowd had heeded this advice.  Prior to Ian Hamilton's arrest, the applicant tried to get him to leave the scene, but he would not do so.  At about the time Ian Hamilton ran away, more police arrived in a motor vehicle.  That vehicle was driven parallel to Ian Hamilton's line of travel.  Hamilton ran from the footpath onto the roadway into the rear left hand side of the police vehicle.  Police wrestled with him in an attempt to handcuff him.  According to his counsel, the applicant ran down to see what was going on and formed the view that police had used the car to knock his brother over.  He then lost his temper and committed the offences.  He was affected by liquor at the time, but not grossly so.

[5] The applicant was aged 28 at the time of the offences.  He had been in the army for less than two years and had seen service in the Solomon Islands.  Two months after that deployment he was diagnosed as having a major depressive disorder and panic disorder and was recommended for discharge.  He was on a week’s convalescent leave at the time of the offences.  He was discharged on 17 June 2005.  He was seen by a psychologist in October 2005 for a presentence report.  In her opinion his symptoms were consistent with a diagnosis of major depressive disorder, single episode, in partial remission.  She thought he was suffering from the disorder at the time of the offences and that imprisonment would be detrimental to his recovery.

[6] The applicant had some relevant criminal history.  In December 1995 he was convicted on two counts, one of obscene language and the other of obstructing police in circumstances similar to the present offence.  He was fined $200.  In November 2001 he was convicted of being on a police establishment without lawful excuse.  No conviction was recorded but he was fined $100.  These convictions and the language which he used to the police while committing the present offences suggest an attitude of contempt for police officers.

[7] The applicant was committed for trial after proceedings in the Noosa Magistrates Court.  The evidence reveals nothing of the nature of those proceedings.  His intention to plead guilty must have been notified in a timely way, and he pleaded guilty on the day the indictment was presented in the District Court.  Thereby he indicated some willingness to cooperate in the administration of justice.

[8] There is no evidence that the applicant’s depression contributed in any way to the offences, although it is, of course, relevant in determining penalty.  The psychologist thought that his “stable personality traits do not include aggression or impulsivity”.  The basis for that opinion is unclear, as she also reported that he was “moderately cognitively impulsive”.  His behaviour certainly suggests a lack of self-control and an animus against the police.

[9] Apart from his time in the army the applicant had been employed as a plasterer by the one company for most of the seven years prior to the offences.  He sought leave to present evidence in this Court of his continued employment in that capacity since being granted bail subsequent to his conviction; and of the likelihood that he would lose his position if he were required to serve a period of actual imprisonment.  I would refuse such leave.  I do not regard the former evidence as being of assistance, and there is no reason why the latter could not have been presented to the sentencing judge, where it could have been investigated.  That is particularly the case since a reference from his employer was among a number of favourable references tendered.

[10]  There is no evidence of any remorse on the applicant's part, despite an assertion to the contrary by the psychologist.  No apology to the police officers concerned was offered either soon after the offence or even during the sentencing hearing.  In some ways that is a pity.  Were such an apology to have been offered at an early stage, the case might have been one where the principles of restorative justice could have been applied.  Cooroy is not a large community.

[11]  The applicant was unable to point to any particular error in the approach of the sentencing judge.  He submitted that the judge failed to give sufficient weight to certain mitigating factors in the applicant's favour.  Plainly the judge did not overlook the factors referred to, as the submission implicitly recognises.  Sentencing is a discretionary process.  Failing to give sufficient weight to a discretionary factor does not found an appeal against the exercise of the discretion.  That submission cannot provide a path to success in the application.

[12]  Reference was made on behalf of the applicant to the decision in R v Reuben.[1]  The applicant in that case bit a police officer, without breaking the skin.  He was also convicted of other less serious offences involving wilful damage, threatening words and breach of a domestic violence order.  He had no previous convictions for offences involving the police.  The offences took place on Palm Island and were substantially affected by alcohol.  The applicant was held in custody for some hours until he was sober.  When he was discharged from the police station he apologised to the police officers concerned for his conduct.  The Court accepted that as an expression of genuine remorse.  The Court allowed the application and substituted a sentence of imprisonment for three months, wholly suspended for an operational period of 18 months.

[13]  It seems to me that that was a less serious case than the present.  The latter is distinguished particularly by the fact that there were two separate offences, by the applicant's criminal history and by his absence of demonstrated remorse.  In addition, I note that the sentence in Reuben has since been described as one which “could well be regarded as towards the lower end of the appropriate range.”[2]  That case does not lead me to the conclusion that the sentence imposed below was manifestly excessive.

[14]  The applicant also relied upon R v Mathieson.[3]  In that case a majority of the Court of Appeal reduced two sentences of imprisonment for 12 months suspended after serving four months for an operational period of 18 months to sentences of imprisonment for six months, to be suspended after serving two months for an operational period of 12 months.  The sentences had been imposed on one count of serious assault of, and another of doing bodily harm to, a police officer.  At the same time the applicant had been sentenced to concurrent terms of one month for obstructing police and two months for assaulting police.  The applicant had been arrested in the main street of Ingham whilst intoxicated.  She resisted being placed in a police car, grabbing the hair of the female police officer, tugging it and thereby pulling an earring out of her ear.  When the officer's partner came to her assistance, the applicant kicked him in the shoulder and head.  Then she struck the first officer several times in the face with her closed fist.  In the course of the struggle some hair was torn out of the officer’s scalp.  The applicant was aggressive and uncooperative, although she pleaded guilty to all offences.

[15]  That applicant was aged 26 and was the sole carer of her two young children.  She did voluntary work in the school tuckshop.  She had only one previous conviction, for behaving in a disorderly manner.  The incident took place on a rare occasion on which she was able to find a babysitter for her children, thus enabling her to go out.  Her behaviour was out of character.  The police officer suffered severe headaches for four to five days and was unable to focus her sight or read anything for five to six days.  She still felt pain a year later.

[16]  The majority halved the sentence imposed because they were of the view that the applicant had been dealt with rather severely by comparison with other cases.  They had regard particularly to the applicant’s otherwise good history, her plea of guilty and her personal circumstances.  The last factor I take to be a reference to her role as a carer.  In the present case, while the plea of guilty was a timely plea, the applicant has a more significant criminal history and does not have to care for young children.  He was not intoxicated (although he was affected by liquor) and his conduct has an element of premeditation.  He publicly displayed his contempt for the police and, more importantly, spat in a policeman's eye.  That is considerably more serious than a woman's punching and hair pulling, although I accept that the actual damage done was less than that done by Mathieson.  Again, the decision does not persuade me that the sentence imposed below was manifestly excessive.

[17]  I would dismiss the application.  The applicant was granted bail shortly after lodging his appeal.  A warrant for his arrest should issue, to lie in the registry for seven days before execution.

[18]  DOUGLAS J: I have had the advantage of reading the reasons for the decision to be published by Fryberg J and agree with them and the orders proposed by his Honour.