SUPREME COURT OF QUEENSLAND

[1]  MUIR JA:  I agree with the reasons of Philippides J and with the order she proposes.

[2]  FRASER JA:  I agree with the order proposed by Philippides J and with her Honour’s reasons for that order.

[3]  PHILIPPIDES J:  The applicant was convicted on her plea to one count of serious assault in the form of a charge that on 24 June 2006 at Gold Coast she wilfully obstructed Gabriel Jose, a police officer while acting in the execution of his duty.  She also pleaded to two counts of unlawful use of a motor vehicle, one count of stealing and one count of receiving stolen property with a circumstance of aggravation.  In relation to the serious assault offence, a sentence of three years imprisonment was imposed.  In relation to each of the counts of unlawful use of a motor vehicle and the count of receiving, a term of six months imprisonment was imposed.  In relation to the stealing offence, a term of 14 days imprisonment was imposed.  The sentences were imposed concurrently and convictions were recorded.  The period of pre-sentence custody from 24 June 2006 to 14 December 2007, being 538 days, was declared as time served under the sentence and a parole release date was fixed at 14 December 2007, being the date of sentence.

[4] The applicant seeks leave to appeal against the sentence imposed for the serious assault.

Circumstances of the offence

[5] The circumstances relating to the serious assault are as follows.  At about 9.40 pm on 24 June 2006, the applicant was travelling in a car with two other people, Jennifer Anderson and Kevin Cardwell.  The complainant police officer was conducting highway patrols in the emergency lane on the entrance to the Pacific Highway at Pimpama.  He intercepted the vehicle, which came to a stop in the emergency lane.  He made inquiries as to who was the driver of the vehicle.  It became apparent that Cardwell had been the driver of the vehicle.  He disclosed that he did not have a driver’s licence and gave what turned out to be a false name.  The complainant placed Cardwell under arrest and Cardwell commenced to get out of the car.  The complainant had cuffed one of Cardwell’s hands before Cardwell commenced to get out of the rear of the car where he was sitting with the applicant.

[6] As Cardwell got out of the car, the complainant commenced to turn Cardwell around to handcuff his hands behind his back.  At this stage, Cardwell suddenly turned and punched the complainant several times to the head.  A violent assault by Cardwell of the complainant ensued.  In addition to punching the complainant, Cardwell had attempted to gouge his eyes.  At one point in the struggle, the complainant was on his back on the ground with Cardwell standing over him continuing to punch and hit him.  As the complainant tried to pull away from Cardwell, the complainant saw a can of capsicum spray that he had previously been holding on the ground not far from his reach.  He observed the applicant looking at the can and then kick it away from his reach.  (Anderson, the other occupant of the car, was no longer present.  Earlier, before the applicant kicked the capsicum spray away, the applicant had asked her what they should do.  Anderson had not answered and had run away.) 

[7] Cardwell began biting at the complainant’s head, growling like an animal, and also proceeded to bite the arm and forearm of the complainant.  Cardwell then attempted unsuccessfully to grab hold of the complainant’s firearm which was in his holster.  Cardwell continued to punch the complainant in the face with his fist.  At this stage, the applicant was standing nearby watching.  The complainant was able to kick Cardwell away.  He then struck him once on the head with his baton, thereby attempting to subdue him.  However, this did not deter Cardwell and the complainant raised the baton to strike Cardwell again and with more force.  At that moment the applicant took hold of the baton with both hands.  The complainant, who continued to struggle with Cardwell, asked the applicant to let go of the baton.  The applicant refused, saying, “No, you’ll hit him” and wrenched the baton from the complainant’s grasp. 

[8] Cardwell continued to struggle violently with the complainant, while calling out to the applicant to hit the complainant with the baton, saying something to the effect of “knock him out”.  The complainant pleaded with the applicant not to do so.  The applicant did not use the baton.  Cardwell broke free of the complainant.  The complainant was on his hands and knees, but managed to use his hand-held radio to call for urgent assistance.  As the complainant rose, Cardwell pulled the complainant’s jacket over the complainant’s head and punched him with both fists several more times to the head.  The complainant pulled free of the jacket. 

[9] Cardwell forcibly took the baton off the applicant and struck the complainant in the face with it, causing very serious injuries, including several fractures to his eye socket and jaw and breaking several teeth.  In fear for his life, the complainant was obliged to use his firearm to prevent further assaults on him.  He fired one shot from his firearm at Cardwell, hitting Cardwell.  The bullet first passed through Cardwell’s flank and then hit the applicant in the right leg, with a piece of the projectile also lodging in her left leg.

[10] The committal hearing proceeded by way of hand up with cross-examination of some witnesses, including the complainant.  The applicant had been charged under s 317(c)(e) of the Criminal Code 1899 (Qld) with malicious act with intent (that with intent to resist the lawful arrest of Cardwell the applicant did grievous bodily harm to the complainant) as an alternate to the charge of serious assault under s 340(1)(b).  However, upon the applicant’s plea to the count of serious assault, the prosecutor discontinued the count of malicious act with intent, so removing, as the respondent conceded before this Court, any suggestion that the applicant was criminally responsible for the grievous bodily harm occasioned to the complainant by Cardwell using the baton.

Sentencing remarks

[11] In sentencing the applicant, the learned sentencing judge made it clear that the applicant was being sentenced only for her role in the incident and not for the very significant injuries inflicted upon the complainant. 

[12] The maximum penalty for the offence of serious assault charged was one of seven years imprisonment.  His Honour referred to the competing submissions made as to sentence.  The prosecutor contended for a range of six years imprisonment, relying mainly on R v Marshall (1993) 2 Qd R 307; [1992] QCA 155, a case which predated the increase in the maximum penalty currently applicable.  The applicant’s counsel urged a sentence of no more than six to 12 months imprisonment for the serious assault and referred to the cases of R v Juric [2003] QCA 132, R v Taylor [2004] QCA 447 and R v Holden [2006] QCA 416 in support of that range. 

[13] His Honour noted the submissions made on behalf of the applicant; that the applicant was a casual acquaintance of Cardwell, that she had been confused and initially blinded by the complainant’s car lights, that she had been surprised by the violence used by Cardwell in the assault upon the complainant, and that she did not see Cardwell attempt to take the firearm from the police officer’s holster, nor did she see Cardwell biting the complainant.  The applicant’s counsel had submitted that the applicant had seen the capsicum spray on the ground and did not “want either party getting hold of it”.  His Honour noted the statements by the applicant’s counsel that the applicant had thought of spraying both Cardwell and the complainant with the capsicum spray, but decided against doing so and instead kicked the can away and then placed it over the barrier.  His Honour noted that the applicant did not hand the baton to Cardwell, but that he took it from her and that the applicant personally offered no violence towards the complainant. 

[14] The applicant’s counsel had also submitted that the applicant’s decision to remove the baton ought to be viewed in the context of a very sudden and violent incident in close proximity to the freeway and that she had not been motivated to assist Cardwell to escape.  His Honour referred to the submissions made on behalf of the applicant that the applicant had been concerned to prevent serious injury occurring to someone during the assault.  His Honour was unable to accept that submission, observing that if the applicant had been so concerned she would have at least taken steps to make sure that the baton was not used by anyone.  His Honour was also unpersuaded by the further submissions by the applicant’s counsel that the applicant’s intentions were honourable and that she showed considerable courage and restraint.  His Honour remarked that in truth the applicant’s conduct was “disgraceful and clearly criminal”. 

[15] His Honour noted that the applicant was aged between 23 and 24 at the time of the offences and at the time of the serious assault was on bail in relation to the other offences for which she was sentenced.  His Honour noted that the applicant had a lengthy criminal history occupying some six pages, although largely consisting of less serious property offences.

[16] His Honour accepted that a timely plea had been entered, accepting that it was a genuine indication of remorse.  His Honour observed that the applicant had been unable to see her uncle prior to his death which had occurred whilst she was in custody and that the applicant had used her time in prison productively, completing a number of courses and overcoming an amphetamine addiction.  His Honour accepted that the applicant believed that she might die having been shot and that she had suffered a good deal of pain and retained significant scarring from her wounds.  His Honour also referred to a number of complaints made on behalf of the applicant as to the manner in which she was dealt with after the incident. 

[17] His Honour determined that, in the circumstances, a sentence of three years imprisonment was appropriate, but that a parole release date ought to be fixed so as to require no further period to be spent in actual custody beyond the nearly 18 months already served.

The application for leave to appeal

[18] Before this court, it was contended that the learned sentencing judge erred in rejecting the submission made on behalf of the applicant that the motivation for her conduct was that she was concerned to prevent serious injury occurring to someone.  It was said that his Honour was wrong to reject the explanation in circumstances where the prosecutor had not challenged the explanation and no notice was given to the applicant to call evidence.

[19] Reliance was placed on the observations in R v Wilkinson [1999] QCA 090 and R v Cottam; ex parte A-G (Qld) [2004] QCA 351.  In Wilkinson, McMurdo P at [7]-[8] stated that the sentencing judge was not entitled to make adverse findings to the applicant which would be likely to result in a heavier sentence without giving the parties the opportunity to call evidence on the issue in question.  See also Thomas J at [6] and [10].  In Cottam, it was held that the sentencing judge was not entitled to reject an explanation put forward on the part of a defendant concerning a dangerous driving charge, based solely on the description given in witness statements presented by the Crown, in circumstances where the dispute was only raised after the end of the defendant’s submissions, without hearing evidence from the defendant.  In the present case, both parties placed before the sentencing judge submissions as to witness statements and the evidence that had been presented at the committal.  It was abundantly apparent from the submissions made by the prosecutor that the motivation for the applicant’s conduct was the subject of dispute.

[20] At sentence, the applicant’s counsel had submitted that the “best evidence” of what her intentions were was the fact that at no stage did the applicant become physically involved in the struggle, except at the moment of removing the baton that was about to be used to deliver what the complainant described as a full-blooded blow to Cardwell’s head.  The applicant’s counsel had gone on to make the submission that the applicant was not motivated to assist Cardwell to escape, but concerned to prevent serious injury befalling someone and that, although she “made the wrong decision”, she did so “in a very difficult situation and with honourable intentions”.  Indeed, the applicant’s counsel even went as far as postulating that “it may well be that [the applicant’s] intervention actually resulted in a better outcome than might otherwise have been the case”.

[21] An alternative interpretation had been put forward by the prosecutor at sentence, who observed that the applicant could have, but failed, to remove the baton from the scene entirely by throwing it over the concrete barrier.  Nevertheless, she did remove the capsicum spray by placing it on the other side of the concrete wall along the highway.  It was clear from the submissions made before the learned sentencing judge that the nature of the applicant’s motivation in removing the baton was the subject of dispute.  That was made apparent before the applicant’s counsel made his submissions at sentence. 

[22] It was further contended that the only reason stated by the learned sentencing judge for rejecting the submissions as to the applicant’s motivation, was the applicant’s failure to take “steps to make sure that the baton was not used by anyone”.  It was submitted that the applicant’s failure to prevent Cardwell from gaining possession of the baton did not justify such a finding.  In support of this submission reference was made to the following matters that were raised at sentence: the incident developed suddenly and violently, the applicant was described by witnesses as “panicking” and “in shock”, she did not get involved in any way in the assault despite the requests of Cardwell, and she removed the baton when the complainant was about to strike Cardwell’s head with it, and in refusing to return the baton to the complainant, had stated that she was concerned that the complainant would hit Cardwell with it. 

[23] It is to be noted that the sentencing judge did not in his sentencing remarks reject the contention that the applicant was concerned to prevent injury to Cardwell.  What the sentencing judge was not prepared to accept was the broader proposition that had been put forward by the applicant’s counsel that inferentially she was concerned to prevent serious injury to someone during the assault, that is, that she was concerned to prevent injury to either Cardwell or the complainant.  The actual statement of the applicant at the time, as reported by her counsel in his submissions was confined to a concern to prevent Cardwell being injured and there was no report of any statement by her beyond that.  In that context, the learned sentencing judge’s observation that no step was taken to ensure that the baton was not used “by anyone” is unremarkable.  The rejection of the submission that the applicant was motivated to prevent injury to someone and the implicit reject of the submission that she was concerned to prevent injury to the complainant was one that was open to the sentencing judge and reached against a background of differing contentions being put forward in respect of the inferences to be drawn as to the nature of the applicant’s motivation. 

[24] It was contended on behalf of the applicant that the judge’s description of the applicant’s conduct as “disgraceful and clearly criminal” involved an implicit finding that the applicant intended to assist Cardwell to resist arrest or that she intended to engage in a separate assault on the complainant.  It was contended that the learned sentencing judge thus proceeded on an impermissible basis, as either finding effectively involved sentencing the applicant for a different offence to that which she had pleaded.  It should be noted that the sentencing judge made no finding that the applicant in acting as she did was motivated to assist Cardwell to resist arrest.  And I do not consider that the judge’s description of the applicant’s conduct as “disgraceful and clearly criminal” involved an implicit finding that the applicant intended to assist Cardwell to resist arrest or that she intended to engage in a separate assault on the complainant. 

[25] Indeed, there can be no complaint about the description of the applicant’s conduct as “disgraceful” or as “clearly criminal”.  The conduct was appropriately described as “clearly criminal” in that it clearly constituted the unlawful act of obstructing the complainant in the execution of his duty as a police officer.  The conduct was also quite properly described as “disgraceful”.  As the applicant’s own counsel conceded at sentence, the action in question whereby the applicant took the baton from the complainant occurred at a time when the complainant was engaged in a violent struggle with Cardwell.  The applicant had observed Cardwell punching the complainant.  By her conduct, the applicant disarmed the complainant and prevented him from having the use of the baton to assist him in defending himself and in executing the arrest of Cardwell. 

[26] The applicant’s counsel also contended that the sentencing judge failed to have proper regard to matters in the applicant’s favour, including her relative youth, her remorse as evidenced by her early plea, her lack of significant prior history for violence, the serious injuries which she received as a result of being shot, the long period spent on remand due to the late acceptance of her offer to plead and the positive manner in which she had used her time on remand.  I can see no basis for concluding that the learned sentencing judge failed to have due regard to the matters of mitigation in the applicant’s favour.  His Honour made reference to those matters and clearly took those matters into account in his decision to impose, as the parole release date, the date of the sentence, thereby requiring no further period of actual custody to be served by the applicant. 

[27] The applicant’s counsel further argued that the sentence imposed was not supported by cases put forward as comparable sentences and in this respect referred to Juric, Taylor and Holden.  It was contended that the sentence imposed was only explicable by reference to the serious injury sustained by the complainant and/or the suggestion that the applicant was assisting Cardwell to escape or had some malevolent intent towards the complainant.  In my opinion, such a view of the learned sentencing judge’s reasoning cannot be extracted from the sentence actually imposed. 

[28]  Taylor’s case concerned the attendance by police at a domestic disturbance.  When they arrived, the defendant was armed with a knife and threatened to kill police if they continued to approach.  He was in a disturbed state of mind, inviting police to kill him and indicating to police that he would kill himself.  The police officers were forced to retreat, but eventually were able to coax the offender back to the house where he sat on the front steps, still holding the knife.  He began to cry, stating he wanted to speak to his father, who later attended, whereupon the defendant abandoned the knife and there was no further incident.  The defendant, who was 31 at the time, had a serious criminal history, including four offences of violence, had been intoxicated, and was in a depressed state of mind at the time.  The sentence of two years imprisonment imposed was not further ameliorated to take into account the offender’s plea and it seems that instead, a reduction was made to the head sentence.  The sentence, which effectively required the applicant to serve 16 months before being eligible to be granted a conditional release order, and was thus seen as the equivalent of one of two and a half years, was not disturbed on appeal.  Concerning as the conduct of Taylor was, that of the applicant in the present case was more serious as it exposed the complainant to an even greater level of danger, the obstruction occurring in the context of a violent assault on him by Cardwell. 

[29]  Juric and Holden also concern a factually different category and less serious conduct.  Neither case involved the obstruction of a police officer by disarming him when he was in a particularly vulnerable situation, being the subject of a violent assault while executing his duty.   In Juric, the applicant was convicted after trial of three counts of serious assault, pursuant to s 340(b) of the Criminal Code.  The assaults occurred on New Years Eve at the Caloundra RSL Club.  The applicant, who was intoxicated, was involved in an incident with a security officer.  Two police officers thereafter attended at the scene and restrained the applicant, who struck one of the officers in the face, for which he received a sentence of 18 months imprisonment, and also spat blood and saliva into the faces of the two police officers, for which he received sentences of two and a half years imprisonment.  On appeal, the sentences of two and a half years imprisonment were set aside and, in lieu thereof, sentences of 18 months imprisonment were imposed.  The court observed that a sentence in excess of 18 months for the assault offences was manifestly excessive, particularly when regard was had to the totality of the applicant’s sentence, including the cumulative 10 month period activated in respect of the suspended sentence.  Holden was a similar case.  Concurrent sentences of 12 months imprisonment were imposed after trial for convictions for seven counts of serious assault, involving spitting and wiping blood on a police officer and threatening that he had hepatitis C. 

[30] As to Marshall, it concerned two charges arising out of the same incident involving two police officers, the charge in each case being one of assaulting a police officer in the execution of his duty.  The applicant, who had a serious and violent criminal history, was sentenced at first instance to three years imprisonment.  The applicant had been stopped by two police officers who asked to search his bag.  He responded by producing a sawn off shotgun which he pointed at one of the police officers, while commanding them to surrender their firearms.  One of the police officers trained his firearm at the applicant and shot the applicant.  A violent struggle ensued, with one of the police officer’s fingers being broken.  On appeal, the sentence was reduced to one of two years to take into account six months pre-sentence custody.  The different maximum penalty of three years imprisonment that applied at the time reduces the assistance that can be derived from the case.

[31] Counsel for the applicant suggested that there was ordinarily a hierarchy of seriousness as to the three examples of offences dealt with in s 304(1)(b) of the Criminal Code, with an assault being more serious than resisting a police officer, which in turn was more serious than obstructing a police officer.  However, each of the offences attracts a maximum penalty of seven years imprisonment and the severity of any particular offending will depend on its facts.  Although the cases cited by both counsel are of limited assistance, given the very differing factual matrix they concern, they do not suggest that in the circumstances that arose in the present case the sentence imposed under s 304(1)(b) was manifestly excessive.

[32] This case was a very serious example of obstruction of a police officer in the execution of his duty, given its context.  The offending conduct cannot simply be reduced to an act divorced from the surrounding circumstances.  It occurred when the complainant was in a desperate, and potentially life threatening situation.  The applicant had observed the blows to which the complainant had been subjected and had removed the capsicum spray from the vicinity of the complainant and the baton from his grasp.  Her conduct in disarming the complainant in the circumstances that existed placed the complainant at great risk and left him with no other course than to resort to his firearm.  A strong deterrent sentence was called for in the circumstances, particularly in recognition of the need to protect police officers acting in the execution of their duty. 

[33] The sentence imposed was a severe one, but not one that was outside the sentencing judge’s discretion.  In this regard I also note that in respect of the property offences the applicant’s counsel had accepted that the applicant was exposed to a head sentence in the range of 12 to 18 months, with suspension or parole at six months.  Those offences although unrelated to the serious assault, attracted concurrent sentences fashioned such that no additional period of actual custody was required.

[34] I would dismiss the application.