R v Hannigan[2009] QCA 40

SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Chesterman JA, with which I agree.  I, too, would refuse the application.

[2]  CHESTERMAN JA:  The applicant was charged on indictment with dangerously operating a motor vehicle in Coopers Plains on 8 April 2008 at a time when he was adversely affected by an intoxicating substance.  On 28 November 2008 he pleaded guilty to that charge and also to a number of summary offences all committed on the same day, 8 April 2008.  They were:

• Driving under the influence of liquor;
• Driving when he was not the holder of a driver’s licence;
• Failing to provide a specimen of breath for a breath test when directed to do so by a police officer;
• Obstructing a police officer in the performance of his duties;
• Driving an unregistered motor vehicle;
• Failing to stop his motor vehicle when directed by a police officer to stop;
• Driving an uninsured motor vehicle; and
• Driving a motor vehicle with a dealer plate attached to it, contrary to s 54 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999 (Qld).

[3] The circumstances of the offences were not in dispute.  At about 8 pm on 8 April 2008, police observed the applicant's vehicle travelling through the intersection of Granard and Beaudesert Roads at Coopers Plains.  The vehicle was noted to swerve over the road lane markings on two occasions.  When police activated their lights and sirens, the applicant pulled his vehicle over to the left-hand lane and, after slowing slightly, accelerated to a speed of about 90 km/h along Beaudesert Road over a distance of approximately one kilometre.  The speed limit was 70 km/h.  The applicant then turned against a red traffic light into Boundary Road and accelerated outbound.  At the intersection with Richland Avenue, he slowed and stopped briefly before accelerating and turning left into Richland Avenue.  He travelled along Richland Avenue at a speed of 70 km/h before turning left into Boyland Avenue and accelerating to a speed of about 90-100 km/h.  At the intersection with Beaudesert Road, he braked heavily, and skidded through the intersection, colliding with a traffic sign on the median strip.  He then drove in an outbound direction on the inbound lanes of Beaudesert Road at a speed of about 80 km/h over a distance of approximately 400 metres.  There were several other vehicles travelling in the opposite direction.

[4] The impact with the sign and median strip had damaged the applicant's vehicle, and it slowed as it approached the intersection of Beaudesert and Boundary Roads, and then came to a stop, still on the incorrect side of the divided road and obstructing traffic.  The applicant was severely intoxicated and was abusive towards police.  Three police officers were required to get him into a police van.

[5] On 10 April 2008, police attended at the applicant's address to discuss the matter.  He advised that he had been drinking at a friend's house, but had got into an argument and decided to leave.  He said that he had consumed four cans of mid-strength beer and three cans of rum.  He knew that he was too intoxicated to drive.

[6] The applicant has an appalling history of traffic offences.  Most significantly he has two convictions for driving with a blood alcohol concentration in excess of the statutory limit.  In 1988 he was fined $800 and disqualified from driving for 13 months when he was detected driving with a blood alcohol concentration of 0.23 per cent.  More recently, on 27 July 2007, he was fined $1,000 and disqualified from driving for 10 months for driving with a blood alcohol concentration of 0.16 per cent.  It was during the period of disqualification that the present offences were committed.

[7] The applicant was sentenced to a period of 18 months imprisonment suspended after serving six months with an operational period of two years for dangerous driving.  As well he was disqualified from holding or obtaining a driver’s licence for three years.  Convictions were recorded on each of the summary charges but no further penalty was imposed.

[8] The applicant accepts that the sentence is consistent with penalties imposed for similar offending and was within the appropriate range “even after taking into account the applicant’s significant rehabilitative progress.”  The applicant puts his case for leave to appeal against sentence on the basis that it is excessive if one has regard to evidence that he was assaulted by the arresting constable and that the assault and the injuries inflicted on the applicant amount to “extra-curial punishment” which should be taken into account and lead to a reduction in sentence.  It is submitted that the sentence should be suspended forthwith.  The applicant has been in custody for about two and a half months.

[9] Evidence of the assault was not put before the sentencing judge because the applicant had no knowledge or recollection of the event.  There was, however, a witness to it who contacted the applicant’s solicitors after reading an account of his conviction and sentence in the local press.

[10]  The witness provided an affidavit which was read on the application.  She deposed to seeing a uniformed police officer standing beside the open door of a white utility vehicle at the intersection of Beaudesert and Boundary Roads Coopers Plains at the time of the applicant’s arrest.  The affidavit continues:-

“There appeared to be a male person in the front driver’s seat ... and I noticed that the police officer had come from a police van ... parked directly behind the utility.

I witnessed the police officer vigorously punching the face of the person in the utility and swearing at him ... several times.  Whilst I did not see contact between the fist of the police officer and the person in the utility, I did see the police officer’s elbow going in and out of the car from which action I formed the view that (he) was vigorously punching the person in the utility.

The police officer appeared to be alone, however another police vehicle ... appeared.  Upon seeing the other vehicle the puncher continued swearing and punching ... .

The police officer did not have a firearm drawn or attempt to physically remove the driver from the vehicle, he only punched the person, I would say, in excess of 20 times in the face area and he was screaming in a hysterical manner.”

[11]  The arresting constable did not respond to the affidavit.  The court was told he is presently overseas on holidays.  However, a copy of the statement he gave in connection with the prosecution was provided to the court.  In it, having described his pursuit of the applicant and the latter’s vehicle coming to a stop at the intersection, he said:

“I then approached the vehicle.  I observed a very large male in the driver’s seat who I now know as the (applicant).  ... I then yelled at the driver ‘you’re under arrest, get out of the car!’  The (applicant) ... didn’t say anything.  I then repeated my command by yelling at the driver.  I could smell a strong odour of liquor ... and observed the driver’s eyes to be bloodshot.  He replied ‘fuck off.’  I then attempted to pull the driver from the vehicle and he resisted.  I then observed him attempt to reach for the ignition keys.  I was of the opinion that the driver would attempt to restart the vehicle.  I then punched the male in the head and grabbed the keys from the ignition and continued to yell at the male, ‘stop resisting, stop resisting!’.  The (applicant) grabbed the steering wheel and told me to ‘fuck off.’  I then ran to the passenger side of the vehicle, opened this door and pushed the male in an attempt to break his hold on the steering wheel and push him out the driver’s side of the vehicle.  The male continued to resist.  I continued to yell out ... I said, ‘stop resisting, or I’ll spray you!’.  After again attempting to push the male from the vehicle I removed my OC spray and sprayed a small dose to the face of the (applicant).  He then reached for his face and I again attempted to push (him) out the door.  Eventually the (applicant) was removed from the vehicle and handcuffed.”

[12]  Whether the applicant was unlawfully assaulted, or was over-powered to effect an arrest, will not be easy to determine.  There is a conflict between the arresting constable who admits to punching the applicant in the head to prevent him starting his car, and driving off to avoid arrest, with consequent renewed danger to the public, and the witness who deposed that the constable vigorously punched the applicant’s face more than 20 times while screaming and shouting obscenities at him.  The applicant will not be a relevant witness.  He has no recollection of the incident and was not aware that he had been struck.

[13]  This Court is not an appropriate forum for finding contested facts.  The court has power, pursuant to s 68(3) of the Supreme Court of Queensland Act 1991 (Qld) to remit this disputed question of fact to the District Court for determination “by trial or otherwise”.  That course may be precluded by a res judicata arising from the fact that the applicant sought to re-open the sentence, pursuant to s 188 of the Penalties and Sentences Act 1992 (Qld), on 23 January 2009.  The sentencing judge, to whom the application was made, refused to entertain it.  No appeal was brought from the refusal.  The basis for the application was that the applicant was sentenced “on a clear factual error of substance”.  The error is the very same which forms the basis for the application for leave to appeal.  The error was caused by the applicant’s and his legal representatives’ ignorance of the event at the time sentence was imposed.  The application may be barred by the judge’s refusal and the lack of an appeal.

[14]  These difficulties may be ignored so that any conflict of testimony will become irrelevant if, on the view of the facts most favourable to the applicant, the sentence imposed on him should not be disturbed.  That is the conclusion to which I have come.  This approach involves assuming that the constable punched the applicant several times, not to prevent his escape, or to overcome resistance to arrest, but in response to the manner in which the applicant had driven.

[15]  The principle relating to the relevance of extra-curial punishment as a factor mitigating sentence was described by James J in R v Daetz (2003) 139 A Crim R 398 at 62.  His Honour’s exposition followed a thorough review of previous authority.  He said:

“I have concluded ... that, while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence.  This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence.  In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment ... is what in all the circumstances is ... appropriate ... and not ... excessive ... .  How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances ... .  Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.”

[16]  It is, in my opinion, significant that his Honour referred to an offender suffering “serious loss or detriment as a result of having committed the offence.”  Daetz took part in a robbery and was savagely beaten by a number of friends of the victim.  He was struck repeatedly on the head with iron bars.  He suffered a fractured skull, many lacerations and had to undergo emergency surgery to remove blood from his brain.  He was hospitalised and ill for a lengthy time but made a complete recovery.

[17]  The need for the punishment to have resulted in some serious loss or detriment is shown by Sharpe v R [2006] NSWCCA 255.  Sharpe was shot in the leg by a security guard protecting property which Sharpe and other criminals were attempting to burgle.  Johnson J (with whom McClellan CJ at CL and Latham J agreed) said:

“[64]Where serious injury has been sustained by an offender in the course of an offence, it has been submitted that the extra-curial punishment principle should be invoked ... on sentence; R v Webb [2004] NSWCCA 330 ... .  In Webb the offender was shot five times by police in the course of being arrested.  Significant and ongoing disabilities were demonstrated ... .  The injuries were taken into account in the offender’s favour on sentence.  In Azar, injuries were sustained by the offender when he was repeatedly struck with a pistol by another person immediately after shooting dead a third person.  Kirby J observed that it was not suggested that the actions of the person who struck the offender ... were unreasonable.  The offender received a number of blows to the head.  However, the consequences were short-lived and there was no permanent injury.  Kirby J observed that, whilst it was a matter that should perhaps be taken into account, it should be given little weight ... .

[67]In the circumstances of this case, I am not satisfied that the injury sustained by the Appellant ... ought to have led to a discount in sentence by way of extra-curial punishment.  Apart from hospitalisation for four days, there was no reliable evidence of any disability resulting from the injury.  The injury sustained by the Appellant as a result of the gun shot involved a passing physical injury with a suggestion, unsupported by any satisfactory evidentiary foundation, of post-traumatic stress disorder (which ... appears to relate principally to the Appellant’s incarceration).  Even if these circumstances attracted the extra-curial punishment principle, this evidence would provide very little assistance to the Appellant on sentence ... .”

[18] Sharpe was discussed in Alameddine v R [2006] NSWCCA 317.  Alameddine was charged with the manufacture of methylamphetamine.  When about to be arrested he went into a shed in which he made his drugs.  Alameddine was seriously burnt when chemicals used in the manufacture exploded.  He was in hospital for three months and was required to wear a “burn suit” for two years and attend the hospital for dressing and treatment for several more months.

[19]  The court (Grove, Kirby and Hislop JJ) said:

“[26]Mention of the possibility of mitigation of sentence by reason of extra-curial punishment was recently made in Sharpe ... where the offender was shot in the leg during commission of the offence although the consequences of the injury were described as a passing physical injury and the need for particular reflection by way of sentence reduction was rejected.  However, it was obviously accepted that, in a case where the injury was of consequence, principle did not operate to prevent mitigation on account of extra-curial punishment in such circumstances.  Availability of such mitigation has not been denied in other instances in this State: R v Webb ...; R v Azar ... .”

Note the reference to an “injury ... of consequence”.

[20]  The reference to Webb and Azar is instructive.  As appears from the passage quoted from Sharpe, Webb was shot several times and seriously injured.  His injuries were taken into account on sentence.  Azar was not badly hurt and his injuries were disregarded on sentence.

[21]  The same distinction was made in R v Noble & Verheyden [1996] 1 Qd R 329.  The court (Davies, Pincus JJA, and Williams J) said (330-1):

“We were referred to no authority on the question whether an offender who was injured in the course of committing an offence should have that taken into account in his favour.  The point is discussed in a note ... .  The writer discusses a decision ... in a robbery case in which one of the robbers suffered serious injury when his gun discharged during the robbery.  The court took the view that the injury should be taken into account on sentence.  We would not accept, however, that any injury suffered in the course of committing an offence is necessarily a factor in sentencing.

But it is easy to postulate circumstances in which an injury so suffered would be relevant.  If an offender has assaulted another without causing significant injury, and the other has defended himself so vigorously as to cause the offender serious injury, it would ordinarily be right to treat the injury the offender has suffered as at least part punishment – whether or not the retaliation was within lawful bounds.  That is not this case, but we are of opinion that an injury suffered by a robber as a result of the victim’s defence ... may, in appropriate circumstances, go in mitigation of penalty.  Verheyden was quite seriously injured.”

[22]  In this case the only evidence of the consequence of the force used by the arresting constable on the applicant is a photograph taken in the watch house after his arrest.  The photograph depicts two separate areas of reddened skin on the applicant’s right cheek.  One, just below the right eye, extended to the right side of the nose.  The skin below the eye was broken and had bled lightly.  The second area was lower, to the right and below the right nostril.  The right eye was partly closed.  There had been bleeding from the right nostril, presumably caused by the blow in the vicinity of the bridge of the nose.  There was no obvious bruising.

[23]  The applicant did not seek any medical attention.  He did not complain to his solicitors, or the police, that he had been struck.  His counsel invited the court to infer that the applicant had been so drunk at the time of his apprehension that he had no understanding and no memory of what had happened.

[24]  In these circumstances the principle explained in Daetz has no application.  Assuming that the applicant was punched several times in the face by the arresting constable, causing the injuries photographed, the suffering inflicted was not such as to bring the case within the principle.  The injuries were minor, not serious.  Their effect went unnoticed and would in any event have been transient.  More importantly the applicant did not know he had been hit.

[25]  In my opinion the theory which underlies the relevance of extra-curial punishment to sentence is that it deters an offender from re-offending by providing a reminder of the unhappy consequence of criminal misconduct, or it leaves the offender with a disability, some affliction, which is a consequence of criminal activity.  In such cases one can see that a purpose of sentencing by the court, deterrence or retribution, has been partly achieved.  This consideration does not apply to the applicant who felt no pain from the blows because he was effectively anaesthetized by the alcohol he had consumed, and who has no persisting symptoms to remind him of the folly of driving when drunk.  The applicant cannot be regarded as having undergone punishment at the hand of the police officer when he himself was oblivious to the castigation and its aftermath.

[26]  There is another consideration.  It is of particular importance when dealing with an offender like the applicant that he be subjected to a punishment which will distinctly deter him from committing a similar offence in the future.  The applicant has an appalling history of traffic offences.  They include two convictions for driving whilst intoxicated.  On the occasion of the present offence the applicant was not the holder of a driver’s licence.  Notwithstanding his recent conviction and disqualification he drove whilst grossly intoxicated, and in a manner highly dangerous to the public, despite being pursued by a police car.  Bitter experience shows that if such persons are not punished severely they are likely to continue the pattern of offending, almost inevitably killing or maiming other road users.

[27]  The punishment imposed on the applicant was apt to persuade him of the seriousness of his behaviour and to provide a sound incentive to reform.  It served to protect the public.  The police officer’s improper use of force, (assuming it to be so) is no reason why the public should be put at risk, and the applicant not sufficiently deterred from re-offending.

[28]  Excessive force, or violence, inflicted by police officers on persons they apprehend is unacceptable and is to be discouraged by all legitimate means.  The proper responses to such misconduct include disciplinary action by the Police Service to whom complaint is made; a civil action for damages for assault; a prosecution for assault.  It is not, however, a proper response to reduce a sentence appropriate to the crime, and which serves to protect the public.

[29]  To reduce the sentence imposed on the applicant will not work any sanction on the arresting constable.  It will not operate as a punishment for his misconduct or as a deterrent against any future misconduct.  If such sanctions are shown to be warranted they should be imposed by the means I have described.  They will not be imposed by reducing the applicant’s sentence.  The only effect of that will be to remove a deterrent against re-offending and hence increase the risk to the public that he might re-offend.

[30]  In my opinion the application for leave to appeal against sentence should be refused.

[31]  ATKINSON J:  I have had the advantage of reading the reasons for judgment of Chesterman JA.  His Honour has set out the circumstances of the offending behaviour and so there is no need for me to repeat them.

[32]  It was accepted by the applicant that the head sentence of 18 months imprisonment was not manifestly excessive for the applicant’s offences even after taking into account the applicant’s significant rehabilitative progress.  The applicant submitted however that the sentence imposed, which was suspended after six months, was excessive “having regard to evidence that was not available at the time of sentence, through no fault of the applicant or his legal representatives.”  That evidence was put before the Court of Appeal in the form of affidavits.

[33]  The primary evidence came from a passer by, Karen Waters, a witness who was completely independent of the prosecution or the defence.  Her evidence is that she was driving past the place where a uniformed police officer was stopped beside the vehicle occupied by the applicant in this case.  In paragraphs 4-6 of her affidavit, she deposes:

“I witnessed the Police Officer vigorously punching the face of the person in the utility and swearing at him to, “get out of the fucking car, cunt,” several times.  Whilst I did not see contact between the fist of the police officer and the person in the utility, I did see the Police Officer’s elbow going in and out of the car from which action I formed the view the police officer was vigorously punching the person in the utility.

The Police Officer appeared to be alone, however another police vehicle similar to the first then appeared.  Upon seeing the other vehicle the puncher continued swearing and punching the person in the vehicle.

The Police Officer did not have a firearm drawn or attempt to physically remove the driver from the vehicle, he only punched the person, I would say, in excess of twenty times in the face area and was screaming in a hysterical manner.”

[34]  In paragraph 10 of the affidavit she says:

“I am a 46 year old woman who has never witnessed such sickening violence against another human being.  I was absolutely in fear of the policeman and felt ill from seeing such unfettered brutality against another person.” 

[35]  She said that after finishing her work as a cleaner in the area later than night she found it impossible to sleep and decided to make a complaint.  She forwarded a complaint to the Crime and Misconduct Commission Queensland (“CMC”) on the following day, 9 April 2008.  She deposed that sometime after she lodged her complaint she received an advice from the CMC advising that, as no complaint had been lodged by the person whom she observed being assaulted by the police officer, no further action would be taken.

[36]  It is unsurprising that no complaint was made by the applicant as his state of intoxication means that he has no memory of what occurred.  A photograph taken at the watch house, however, shows that he sustained facial injuries.

[37]  The applicant was sentenced on 28 November 2008 without any of that information being before the sentencing judge.  Ms Waters was unaware of the identity of the applicant until she read news items about his sentencing hearing.  She then contacted the applicant’s solicitor who was unaware of any complaint made to the CMC about the treatment of the applicant.

[38]  The veracity of Ms Waters’ account is not accepted by the prosecution.  The prosecution filed an affidavit from a clerk in the Office of the Director of Public Prosecutions which annexed statements which had been made in May-June 2008 by the police officers involved.

[39]  The relevant part of the statement of the arresting police officer is in the following terms:

“I then approached the vehicle.  I observed a very large male in the driver’s seat who I now know as the defendant.  No other persons were in the vehicle.  I then yelled at the driver, ‘You’re under arrest, get out of the car!”

The male, originally didn’t say anything.  I then repeated my command by yelling at the driver.  I could smell a strong odour of liquor emitting from the vehicle and observed the driver’s eyes to be bloodshot.

He replied ‘fuck-off’.

I then attempted to pull the driver from the vehicle and he resisted.  I then observed him attempt to reach the ignition key.  I was of the opinion that the driver would attempt to restart the vehicle.  I then punched the male in the head and grabbed the keys from the ignition and continued to yell at the male, ‘stop resisting, stop resisting!’

The male grabbed the steering wheel and told me to ‘Fuck off’.

I then ran to the passenger side of the vehicle, opened this door and pushed the male in an attempt to break his hold on the steering wheel and push him out the driver’s side of the vehicle.  The male continued to resist.

I continued to yell at the male.  I said, “Stop resisting, or I’ll spray you!”

After again attempting to push the male from the vehicle I removed my OC spray and sprayed a small dose to the face of the male.  He then reached for his face and I again attempted to push the male out the door.  Eventually the male was removed from the vehicle and handcuffed.”

[40]  He then records that another police officer arrived during the end of the scuffle and assisted in handcuffing the man.

[41]  The applicant did not submit that the alleged police mistreatment of the applicant after his vehicle came to a stop went to the objective seriousness of the offence of dangerous driving, but rather that it amounted to extra-curial punishment that should affect the period of actual custody to be served.  The authorities referred to in the written submissions in support of that submission were R v Noble and Verheyden [1996] 1 Qd R 329 at 331; Daetz & Wilson (2003) 139 A Crim R 398 at [62]; Alameddine v R [2006] NSWCCA 317 at [18]-[28]; R v Hook [2006] QCA 458 at [14]; and Silvano v R (2008) 184 A Crim R 593 at [25]-[36].

[42]  In R v Noble and Verheyden, the relevant excerpt of which has been referred to by Chesterman JA, this court held that an injury suffered by a robber as a result of the victim’s defence may, in appropriate circumstances, go in mitigation of penalty.

[43]  In R v Daetz and R v Wilson, injuries inflicted on the defendants after an assault by associates of the victims were taken into account in determining the proper sentence to be imposed.  The court said that any serious loss or detriment the offender had suffered as a result of committing the offence was to be taken into account even when the detriment was extra-curial punishment inflicted by private persons exacting revenge.

[44]  In Daetz James J said at 409 [57]:

“… extra-curial punishment can be a matter which a sentencing court can and should take into account, as part of its duty to take into account all material facts and to ensure that an offender is punished appropriately and not excessively for the same offence and that a sentencing court is not precluded from taking such a matter into account by any principle that the court should not take into account private revenge or unlawful violence.”

[45]  His Honour concluded at pp 410-411 [62]:

“I have concluded from this examination of the authority cited to the court and especially Allpass (1993) 72 A Crim R 561, Clampitt-Wooten (2002) 37 MVR 340 and Cooney (unreported, Queensland Court of Appeal, CA No. 386 of 1997, Pincus, Davies, JJA and Fryberg J, 6 March 1998) that, while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence.  This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence.  In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment.  How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case.  Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.”

[46]  Another case referred to by the applicant in support of his submissions was Alameddine v R [2006] NSWCCA 317.  In that case the appellant suffered terrible burns to 50 per cent of his body when he proceeded to smoke methylamphetamine after apprehension causing a shed containing a methylamphetamine laboratory to explode.  In that case Grove J, with whom the rest of the court agreed, accepted that an injury suffered by an offender while committing the offence could be taken into account in mitigation of sentence.

[47]  In R v Hook, the applicant was convicted after pleading guilty to dangerous operation of a motor vehicle causing grievous bodily harm to another whilst adversely affected by alcohol.  She also pleaded guilty to driving a motor vehicle when under the influence of liquor or a drug and driving a motor vehicle when the number of persons in that vehicle exceeded the maximum number of persons the vehicle was capable of carrying.  She suffered injuries in the collision which she caused, namely a dislocated hip, a broken left arm and cuts to her knees.  Jerrard JA, with whom McMurdo J, agreed recorded the argument by the applicant’s counsel that the learned sentencing judge had failed to have sufficient regard to the injuries Ms Hook herself had suffered in the accident referring the court to R v Noble and Verheyden and R v Djakovich [1995] QCA 491 in support of the submission that “injuries suffered by an offender as a result of committing the offence are relevant matters for consideration in mitigation of the otherwise appropriate punishment.”  Jerrard JA said at [14]:

“That proposition is supported by those decisions, and it seems a commonsense one.  Painful consequences already suffered can be both a deterrent to future offending, and a matter a sentencing court is required to take into account as a personal circumstance going to mitigation, and as a material fact when ensuring that the punishment the offender receives from the court is what in all the circumstances is an appropriate punishment and not an excessive one.”

[48]  In Silvano v R an unrelated attack on the applicant by other prisoners could not be taken account of as extra-curial punishment.  In so holding, the court affirmed the principle that extra-curial punishment “that is loss or detriment imposed on an offender by persons other than the sentencing court, for the purpose of punishing the offender for his offence or at least by reason of the offender having committed the offence” can be taken into account.[1]  That concept has been on occasions extended to apply to cases where the person received serious injuries in the course or shortly after committing the offence whether the injuries are inflicted by others or were accidentally self-inflicted by the offender.

[49]  The difficulty in this case was that the injuries suffered by the applicant were not injuries suffered because of the a misadventure suffered in the course of criminal behaviour nor punishment inflicted by lay persons or retaliation by a victim of a crime but rather, if the eye-witness account were accepted, punishment inflicted by a police officer who is a member of the executive arm of government.  This would be a serious arrogation of power.  As Brennan, Deane and Dawson JJ said in ChuKheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27:

“There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character.  The most important of them is the adjudgment and punishment of criminal guilt … .”

[50]  The significance of the separation of powers for the role of the police was elaborated in a speech given by the Honourable Murray Gleeson AC when he was Chief Justice of New South Wales, “Police Accountability and Oversight: An Overview”[2] in which he considered police accountability in the context of the principle of the separation of powers.  Referring to Montesquieu’s influential book L’Esprit des Lois, he said:[3]

“During the 18th century the French political philosopher Montesquieu proposed an analysis of governmental power which came to be one of the most influential ideas in Western thought.  In every political society, he said, there are three kinds of power: legislative power, executive power and judicial power.  This theoretical analysis was accompanied by a corollary of profound practical importance.  It was that the liberty of the citizens in any community varies with the degree to which those three governmental powers are held in separate hands.  A free society is one in which the legislative, executive and judicial powers are, or tend to be, kept separate.  At the other extreme, concentration of legislative, executive and judicial powers in one person, or one group of people, is the essence of tyranny.”

[51]  The operations of the police force are part of the responsibilities of executive government.  Whereas, as Gleeson observed:[4]

“The judicial power involves the interpretation and declaration of the law, the administration of criminal justice by determining whether persons have been guilty of crime and imposing punishment if they are found guilty … The exercise of judicial power may involve, from time to time, decision-making as to the extent of legislative power or executive power and the judiciary are from time to time called upon to resolve disputes as to where legislative power or executive power resides.

The fact that the police force is part of the executive branch of government carries with it, as a corollary, certain consequences flowing from the principle of separation of powers.” (emphasis added)

[52]  The first consequence is that the police do not exercise legislative power.  The second consequence is significant for the proper resolution of this matter.  Gleeson said:[5]

“A second consequence of the separation of powers is that it is no part of the function of the police to exercise judicial power.  It is for the judiciary, not the police, to determine whether people are guilty or innocent of crimes, and it is for the judiciary, not the police, to punish citizens who have broken the law.

…

No human organisation can be perfect, and it is inevitable that from time to time we will see aspects of police behaviour that we find troubling.  In such cases it will often happen that what is involved amounts to a contravention of one of these basic principles which in turn flow from the separation of powers: the police should not act as though they have the power to make or unmake the law, and they should not act as though they have the power to punish wrongdoers.” (emphasis added)

[53]  He concluded by saying:[6]

“We are right to insist upon high standards in the operation of our police force.  We must keep steadily in mind that the police force, as part of the executive branch of government, is not to exercise either legislative or judicial power.  And we must insist as a minimum condition upon the application of the rule of law to all aspects of the activities of police.  I would, however, add in conclusion that we should also acknowledge the importance and the difficulty of the tasks which we expect to be performed by police officers, and we should bear in mind that they deserve our support and encouragement.  Our requirements and expectations of them are high, and we should be ready to praise success as well as to criticise failure.”

[54]  The serious allegation made in this case is that a police officer wrongly assumed the function of punishment of an offender, a function which is judicial in character and which, if exercised by the police, would undermine both the separation of powers and the rule of law in our society.  Further it would serve to undermine public confidence in the proper administration of criminal justice.  Such an allegation is far more serious than those referred to in the cases where an offender has been injured by misadventure or retaliation by victims or their associates.

[55]  In such a case this is a material fact to be taken into account by a sentencing court.  As the detriment caused by such behaviour is a detriment to the whole of the community and not just to the offender, it is as Jerrard JA said in R v Hook, applying R v Daetz, “a material fact” the court must consider to determine whether the punishment the offender receives from the court is what in all the circumstances is an appropriate punishment and not an excessive one.

[56]  This court has the capacity to admit new evidence on an appeal, notwithstanding that it is not fresh evidence, if its admission shows that some other sentence, whether more or less severe, is warranted in law: See R v Maniadis [1997] 1 Qd R 593 at 596-597; R v Manning [2007] QCA 145 at [20].  That course should not be taken lightly.

[57]  In this case the evidence presented amply satisfies that test.  It was not known to the defence at the time of sentence and it was only after the sentence was imposed that the information was given to the defence.  None of the police officers’ statements which were put before the court in the hearsay affidavit responds to the allegations of the multiple punching referred to by the eye-witness in her affidavit.

[58]  A copy of Ms Waters’ complaint to the CMC was put before the District Court by way of an application to re-open proceedings pursuant to s 188(1)(c) of the Penalties and Sentences Act 1992 (Qld) but the learned sentencing judge was of the view that he did not have jurisdiction to re-open the sentence as he had not made “a clear factual error of substance” on the material that had been before him.  He dismissed the application on the basis that the proper way for it to be raised was on an appeal against sentence.

[59]  The resolution of the questions of fact raised by the difference in the affidavit material presented by the defence and the prosecution on the appeal is in my view required to be undertaken.  This is a matter of some gravity and ought not be left unresolved once it has been raised in this court.  Its resolution has the capacity to affect the proper sentence to be imposed.  It is unsatisfactory to allow such a serious allegation to remain unresolved.  If true, it has the capacity to undermine the administration of justice in this State.  If untrue, it has unfairly besmirched not only the reputation of a number of serving police officers, which is the reason that I have refrained from referring to them by name, but also the reputation of the police service.

[60]  The matter should be remitted to the District Court under s 68(2) of the Supreme Court of Queensland Act 1991 (as was submitted by the prosecution in its supplementary outline) in order for the facts upon which the sentencing should proceed to be determined and the applicant to be re-sentenced on those facts.