R v Lappan[2015] QCA 180

SUPREME COURT OF QUEENSLAND

[1] HOLMES CJ:  I agree with the reasons of Peter Lyons J and the orders he proposes.

[2] PHILIP McMURDO J:  I also agree with the reasons of Peter Lyons J and the orders he proposes.

[3] PETER LYONS J:  Having pleaded guilty to three counts of assaulting police officers in the execution of their duty, with circumstances of aggravation, the applicant was sentenced in a District Court on 23 April 2015.  On the most serious count, count 1, he was sentenced to a term of five years’ imprisonment.  On the other two counts, he was sentenced to terms of two years’ imprisonment.  The parole eligibility date fixed by the learned sentencing judge was approximately six months later, being 26 October 2015.  In fixing that date, the learned sentencing judge took into account a period of approximately 14 months of pre-sentence custody, which could not be the subject of a declaration under s 159A of the Penalties and Sentences Act 1992 (Qld) (PS Act).

[4] The applicant seeks leave to appeal against the sentences.  In effect, the appeal would be directed at the sentence imposed in respect of count 1.  The grounds on which the applicant now relies are that the learned sentencing judge erred by failing to give effect to the non-declarable pre-sentence custody in relation to the head sentence; and that the head sentence was manifestly excessive as it amounted (for count 1) to an effective head sentence of six years and two months’ imprisonment.

Offending conduct

[5] On 25 February 2014, the applicant caused a disturbance at a 7-Eleven store on the Gold Coast Highway at Palm Beach[1].  He had asked for an ambulance to be called; but while waiting, he yelled at customers, and obstructed the entry to the store.  Police were called.  When they arrived, the applicant refused assistance by police, or by ambulance officers.  The applicant behaved aggressively, resulting in the calling of two further police officers, at which point the applicant commenced insulting the police officers.  Further police officers from the dog squad were then summoned, and the complainant in count 1 (first complainant) and his shift partner arrived.  The applicant threatened to hurt the officers and continued to act aggressively.  That complainant then produced a taser and requested the applicant to get on the ground.  The applicant eventually got to his knees and apologised; before leaping to his feet, at which point the taser was deployed.

[6] The applicant continued again attempting to get to his feet, and the taser was deployed again.  The applicant then pulled wires from the taser.  The first complainant lunged at the applicant, attempting to restrain him.  The police officer who was the complainant in the second and third counts (second complainant) also attempted to restrain the defendant.  There was a struggle on the ground, in the course of which the applicant produced a short knife, stabbing the first complainant in the back of the leg.  He then forced the knife towards the second complainant’s arm, causing a laceration; and the applicant also bit the second complainant on his right hand.  A taser was again applied, without apparent effect.  The first complainant then produced his firearm, at which time the applicant stopped resisting, and let go of the knife.  However he continued to struggle, and OC spray was deployed.  The applicant was then handcuffed, at which point he said to police words to the effect, “I have HIV, I got you cunts, you’ve all got it now.”

[7] Although the incident continued for more than 50 minutes, the offences were committed towards the end of this period, it would appear in a short space of time.  The learned sentencing judge accepted that the applicant had been in a state of amphetamine-induced psychosis[2].

[8] The first complainant suffered a wound, approximately 1.5 centimetres in length, to the right buttock, which went through the full thickness of the skin.  It required two sutures; and resulted in considerable bruising.  The second complainant suffered several cuts to the wrist, with one just breaking the dermis[3].

[9] The first complainant provided a Victim Impact Statement and supplementary email[4].  He stated that he experienced intense pain as a result of the stabbing, and feared for his life.  He collapsed to the ground.  He was treated by a member of the Queensland Ambulance Service at the scene; and was medicated while being transported to the Gold Coast Hospital.  For weeks subsequently, he was unable to sit comfortably due to the bruising and swelling; and he was concerned about having contracted a disease or infection until testing showed otherwise, apparently three months later.  He also suffered nightmares in the period immediately after the accident, and was subject to outbursts of anger.  He was left with a permanent scar, and continued to experience pain from the wound.  He had about ten sessions of physiotherapy; and about six sessions of psychological counselling; in the period after the accident.  He resumed counselling shortly prior to the sentence.  Initially he remained off work for almost two months after the event; then was on light duties for about three months.  It was difficult for him to return to work, and his attitude to continuing to serve in the Queensland Police Service has changed.  He now avoids crowded places; and remains upset by the fact that he came to close to taking the applicant’s life when he drew his firearm.

Applicant’s background and criminal history

[10] The applicant was 31 years of age at the time of the offences; and 33 years of age at the date of sentence, and currently.

[11] As the learned sentencing judge recorded[5], the applicant has had an unfortunate life.  His parents, one of whom was indigenous, were drug addicts, and he lived on the streets of Sydney as a young child.  Subsequently his grandparents cared for him, and sent him to school.  He commenced drug use, and drinking alcohol in parks with friends, in his early teenage years[6].  The applicant has had a long standing amphetamine addiction[7].

[12] The applicant has an extensive criminal history (in New South Wales), extending back to when he was 15 years of age.  It includes drug related offences, property related offences, assaults, violence, stalking, and the contravention of a domestic violence order.  Sentences have included probation, though in 2005 he was imprisoned for a period of 12 months, with a non-parole period of nine months; and in April 2008 he was sentenced to a period of periodic detention of 16 months, for an assault with intent to take or drive a motor vehicle.  From about the middle of 2008 to about the beginning of 2013, his offending could be described as low level property offending; though on 7 January 2013 warrants issued in relation to an offence of assault occasioning bodily harm and a shoplifting offence.

Sentencing proceedings

[13] After recording the relevance of the applicant’s pleas of guilty, and describing the circumstances of the offending, the learned sentencing judge referred to the applicant’s background, summarised previously.  With respect to the applicant’s mental state at the time of the offending, his Honour observed that the applicant “voluntarily ingested the drugs, so it’s no excuse for what you did”[8].  The learned sentencing judge noted the positive steps which the applicant had taken to rehabilitate himself, by attending a number of programmes, and taking opportunities to improve his physical and mental well-being.  He had abstained from drugs, and was motivated to undergo further treatment for drug rehabilitation.  The plea was an early plea.

[14] The learned sentencing judge recorded the pre-sentence custody period of 420 days as about fourteen months[9], which he said he took into account, even though it could not be the subject of a declaration under s 159A of the PS Act.  He also noted the applicant’s “serious criminal history”.  He then imposed the sentences, recorded at the commencement of these reasons.  He explained the determination of the parole eligibility date, saying he had “allowed a third of five years…”; and deducted the fourteen months of pre-sentence custody[10].

[15] At that point, counsel for the applicant said to the learned sentencing judge that he had in effect imposed a head sentence of over six years.  His Honour replied, “I don’t see it that way.  I see that I’ve imposed a head sentence of five years and I’ve allowed parole eligibility after 20 months, but I’ve taken 14 months off.  So I’m allowing it now in – on the 26th of October 2015”[11].

[16] The learned sentencing judge shortly afterwards asked the prosecutor whether the effect of what he had done was to impose a head sentence of more than six years; and whether he had made an error.  The prosecutor stated that he did not intend to submit that the learned sentencing judge made an error, and that the applicant would need a significant period of supervision, with which the learned sentencing judge agreed[12].

Treatment of pre-sentence custody period

[17] For the applicant it was submitted that the learned sentencing judge appeared to have considered that the appropriate effect of the head sentence for count 1 was a sentence of five years; but in purporting to give effect to the 14 month period of pre-sentence custody, he had failed to reduce the head sentence as well as the parole eligibility period.  The learned sentencing judge did not indicate that he intended to impose a head sentence which was, in effect, for a period of six years and two months.  The learned sentencing judge thus erred; and this Court should re-exercise the sentencing discretion.

[18] For the respondent it was submitted that it was open to a sentencing judge to take into account a period of pre-sentence custody, only in respect of the parole eligibility date; and accordingly there had been no error by the learned sentencing judge.  The exchange which took place after the sentences had been pronounced made it clear that the learned sentencing judge intended to take into account pre-sentence custody only in respect of the parole eligibility date, and not in respect of the head sentence.

[19] It was well established that it is generally desirable to take into account periods of pre-sentence custody which may not be the subject of a declaration under s 159A of the PS Act, at the first opportunity[13].  The length of time in custody, and the apparently minor nature of the other relevant charges[14], plainly made that course appropriate in the present case.

[20] The effect of the sentence imposed by the learned sentencing judge was that, unless the applicant is granted parole, he will remain in custody from the time of the offending for a period of approximately six years and two months.  Since the period of pre-sentence custody has been taken into account on this occasion, there is no practical prospect that the applicant would receive any credit for it on any subsequent sentencing.  Accordingly, the effective sentence imposed by the learned sentencing judge for count 1 was a term of imprisonment of approximately six years and two months.

[21] It is apparent from what the learned sentencing judge said, that that was not his intention when imposing the sentence.  His immediate response to the submission made by the applicant’s counsel as to the effect of the sentence was, “I don’t see it that way”[15].  Moreover, when explaining the sentence it is clear that the learned sentencing judge commenced with a term of five years as the head sentence (not affected by the period of pre-sentence custody); fixed the parole eligibility date one-third of the way through this period; and then made allowance for the period of pre-sentence custody[16].

[22] The discussion which took place at the conclusion of the sentencing proceedings does not indicate that the learned sentencing judge appreciated the error he had made; nor that he decided to impose an effective head sentence of approximately six years and two months, notwithstanding his earlier intention.  The prosecutor’s response to his Honour’s question as to whether he had made an error, was simply to say that a long period of supervision was appropriate, a view which his Honour accepted[17].  That would, in any event, be a consequence of a head sentence for an effective term of five years; should the applicant successfully apply for release on parole.

[23] The submission for the respondent to the effect that it is within a sentencing judge’s discretion to make an allowance for pre-sentence custody only in respect of the parole eligibility date are correct; but does not address the error which has occurred in this case.

[24] It is convenient to consider the consequences which flow from the learned sentencing judge’s error, later in these reasons.

Was the sentence manifestly excessive?

[25] For the applicant, reference was made to the fact that the maximum sentence for the offence had been increased to 14 years relatively recently (29 August 2012[18]).  For that reason, sentences for causing grievous bodily harm to police officers, with a similar maximum penalty, were referred to, although a number of other sentences were also relied on.  The cases were R v Devlyn[19]; R v McCoy[20]; R v Bidmade[21]; R v Williams[22]; R v Braithwaite[23]; R v Benson[24]; R v Marshall[25]; and R v Kazakoff[26].

[26] For the respondent, it was submitted that the effective sentence imposed in respect of count 1 was not manifestly excessive in the circumstances.  Reliance was placed on a statement of Fraser JA in R v Murray[27] to the effect that the maximum penalty must be taken into account; and that an increase in the maximum penalty for a particular offence will lead to more severe penalties for that offence, but it does not necessarily follow that all such offences after the amendment came into effect will attract a higher penalty than previously.  These submissions also stressed the need for deterrence for offences against police officers who are discharging their duties[28].  In addition to some of the cases relied upon by the applicant, the respondent referred to R v Taylor[29]; and R v Taylor and Leigep[30].  Williams, Marshall, Taylor and Taylor and Leigep were identified as cases involving the use of a knife.

[27] Williams was an appeal by the Attorney-General.  The defendant had been convicted of six offences, the most serious being three offences of unlawful wounding with intent to resist arrest.  These offences then carried (and now carry) a maximum penalty of life imprisonment[31].  The defendant was 18 years of age at the time of the offending.  He had a previous criminal record which included offences of dishonesty, described as not being a “substantial record”; and he had no previous history of violence.

[28] The offending commenced with the discharge of a rifle, which resulted in the arrival of two police constables.  The defendant headbutted one of them three times, and then produced a knife.  He lunged at this constable, cutting him on the left side of the chest, and drawing some blood.  The defendant again lunged at the constable, but the other constable intervened.  The defendant then stabbed the second constable in the chest.  That resulted in a wound three centimetres in length, with a cut on the rib itself, the knife going close to penetrating the pleural cavity.  The defendant then lunged again at this constable, who stopped the knife with his hand, causing a serious cut.  Throughout this episode, the defendant uttered threats to the police officers, including statements that he would “get them”, and that he would stab each of them.

[29] The second constable had two lacerations to the left hand which required five sutures.  He had damage to his lower jaw, and was hospitalised for three days.  He lost feeling in his index finger.

[30] The defendant was affected by liquor at the time of the offending.

[31] On appeal, non-custodial sentences were replaced by custodial sentences, the most serious being terms of four years’ imprisonment for each of the wounding offences, to be served concurrently.  The terms took into account the fact that the defendant had been made the subject of an intensive correction order when sentenced at first instance.  The defendant’s special personal circumstances including in particular his background, the environment in which he was living (at Palm Island), his youth, and his intoxication, as well as his limited criminal history resulted in a recommendation that he be considered for parole after serving a period of 12 months.

[32] Kazakoff was also an Attorney-General’s appeal.  The defendant had pleaded guilty to an ex officio indictment charging him with assault occasioning bodily harm whilst armed and in company.  The maximum penalty for this offence at the time was recorded in the Court’s reasons as being ten years’ imprisonment.  This defendant had just turned 17 at the time of the offence.  The offence was committed not long after midnight, when two policeman attended a disturbance outside an RSL hall.  A large crowd was present, and there had obviously been a brawl.  Shortly after the police arrived, another fight broke out amongst a crowd of people.  One of the policemen attempted to stop the fight, and was surrounded by a number of males.  At this point, the complainant drew his baton, telling the group to get away from his partner.  The defendant, who was in the group, said to the complainant, “You’re going down”, a statement which he repeated more than once in the course of the subsequent events.  The group including the defendant pushed the complainant towards the wall of the nearby building.  The complainant, to protect or defend himself, struck one of the group on the hip.  He was then punched several times, and the defendant raised a piece of timber about 1.5 metres long and about 50 millimetres square, hitting the complainant on the head.  The defendant then climbed up on the verandah of the building, so that he stood above the complainant, and struck the complainant forcibly on the head, causing him to fall to the ground.  The complainant was then surrounded by a number of young men who kicked him about the head and face.  He was left with a laceration to the top of his head, a fractured nose, and severe swelling to the jaw.  The injuries were described as “quite severe”; and more than six months after the offence, prevented him from returning to work.  Operative treatment had not been entirely successful.  He had suffered brain damage, of uncertain extent, and it was not known whether he would enter into remission.  The defendant was considered to have taken a leading part in the infliction of injuries on the complainant.  The defendant was both on bail and on probation for other offences at the time of the offending.  The reasons for judgment noted in particular that the two police officers were unarmed; and the defendant’s role, he being “very much a leader of this whole exercise”.  The sentence was on appeal increased to a term of imprisonment of four years.  The principal factor taken into account in making a recommendation that the defendant be eligible for parole after serving 18 months was said to be his age.

[33] Notwithstanding the submissions of the present respondent, the decision in Taylor and Leigep is of little assistance on the current application.  The focus of the appeal was the sentence of five years’ imprisonment imposed on each of those applicants on the charge of breaking, entering and stealing.  It was held to be manifestly excessive.  When police arrived at the premises where the applicants were committing the offence, a struggle ensued.  Mr Taylor had possessed himself of a kitchen knife (the premises were a disused restaurant) and in the course of the struggle, one of the police officers was cut.  It was accepted that the wound was not deliberately inflicted, but was a consequence of the negligent use of the knife.  Each defendant was 21 years of age and had a significant criminal history, involving primarily property offences.  In the case of Mr Taylor, the sentence for breaking, entering and stealing was reduced to three years, it being noted that he was “the person who not only resorted to violence but had the knife and his criminality in terms of his involvement in the whole offence reflects that”.  The sentence of two years’ imprisonment for the charge of unlawful wounding was not interfered with.  The reasons for judgment stated that no recommendation for consideration for early eligibility for parole would be made, having regard to Mr Taylor’s criminal history and the circumstances of the commission of the offence, apparently directed primarily to the offence attracting the longer term of imprisonment.

[34] The applicant in Marshall had pleaded guilty 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.  The reasons for judgment recorded that the applicant was “sentenced to a total of three years’ imprisonment with a recommendation for parole after serving 12 months”.  The applicant was 46 years of age, and had an extensive criminal history, mostly for drug related offences and for offences of dishonesty; but he had been convicted of a number of assaults, including an assault on a policeman, resisting arrest, and obstructing police.  On 8 February 2000, he was convicted of a breach of a domestic violence order, committed some months earlier.  The offence on 31 May 2000 involved an assault by the applicant on the 13 year old son of his de facto partner, the boy having attempted to intervene in a domestic dispute between the applicant and the applicant’s partner.  He was arrested on the day of the offence, and released on bail.  He remained on bail at the time of the subsequent offences.

[35] On 2 October two police officers were called on three occasions to the residence of the applicant, as a result of reports of domestic disputes.  On the third occasion, they witnessed an act of domestic violence, and forced their way into the unit.  The male police officer attempted to arrest the applicant, but the applicant pushed the police officer in the chest, causing him to stumble backwards.  The applicant then armed himself with a kitchen knife with a 30 centimetre blade, and brought the knife down, narrowly missing the police officer’s throat and chest as he jumped backwards.  Shortly after, the male police officer threatened the applicant with capsicum spray, but the applicant continued to advance towards the police officers bearing his knife.  After capsicum spray was used, the applicant again advanced towards the male police officer holding the knife, but subsequently left the unit.  The episode was described as a frightening one for the police officers, very nearly causing very serious and perhaps life threatening injury to the male police officer.  It resulted in his being awarded a medal for his bravery.  That police officer had subsequently experienced severe psychological moods swings and behavioural changes.

[36] The applicant was affected by alcohol, or possibly a combination of alcohol and a prescription drug, but this was not considered something which should affect the sentence.  The maximum sentence for the assaults against the police officers was, at that time, seven years.  The most significant feature of the conduct was described as “the threat of life-threatening injury to the police (being) prevalent for some time”[32].  The sentence was considered “a high one”[33]; but the Court concluded that “… globally, the sentence was not outside the appropriate range …”[34], resulting in the refusal of the application.

[37] It is not particularly easy to derive assistance for the present case from the decision in Bidmade.  That applicant had pleaded guilty and was sentenced in respect of seven counts.  The most serious were count 6, a count of serious assault; and count 7, a count of dangerous operation of a motor vehicle causing grievous bodily harm; both committed on 6 September 2002.  Of the other five counts, referred to as the dishonesty counts, four attracted a sentence of 12 months’ imprisonment, and a stealing count attracted a sentence of six months.  The sentences for the dishonesty counts were to be served concurrently.  For count 6 the applicant was sentenced to three years’ imprisonment; and for count 7, to three and a half years’ imprisonment; these two sentences to be served concurrently, but cumulatively on the sentences for counts 1 to 5.  The convictions on counts 6 and 7 attracted a declaration that they were convictions for serious violent offences.  It was that declaration that was the subject of a successful application and appeal.

[38] Some of the dishonesty counts related to offending on other occasions, and some on the same day as counts 6 and 7.  One of those counts was the unlawful use of a motor vehicle.  A police officer saw the vehicle in a shopping centre car park, and approached it.  The applicant then arrived on the scene and got into the car.  The police officer stood between the driver’s door and the body of the car, preventing the closure of the door.  The applicant then started the engine.  When told he was under arrest, the applicant accelerated rapidly, causing the police officer to hold on to the driver’s door.  At this point, another police officer attempted to use capsicum spray, which apparently made some contact with the applicant’s face around the eye area.  That police officer was knocked to the ground by the open door, and sustained severe bruising and muscular damage.  The vehicle mounted a gutter and hit a pedestrian crossing sign.  The police officer who had attempted to arrest the applicant was caught between the car door and the gutter, and suffered a severe compound fracture of his right tibia.  He needed surgery on two occasions; and about two and a half months after the offence, had recently moved from using crutches to a walking stick.  He was left with scarring, and was experiencing some low level leg pain.  The police officer who had been knocked to the ground, at about the same time was complaining of continuing hip and pelvic pain and headaches, as well as stress and depression.  Both officers were in graduated return to work programmes.

[39] The applicant was 36 years of age.  In 1990 he had a number of convictions, including dangerous driving and armed robbery, resulting in a head sentence of seven years’ imprisonment.  On other occasions he was sentenced to six months’ imprisonment; and on yet another occasion, to one year’s imprisonment for some property and drug offences, including a count of trafficking in heroin.

[40] At the time of the offending, the applicant had been using “massive amounts of morphine and amphetamines”[35] but, while remanded in custody, had completed a difficult withdrawal period and had remained drug free up to sentence.  Holmes J, as her Honour then was, with whose reasons the other members of the Court generally agreed, considered that the exacerbating feature of counts 6 and 7, which was the fact that they were committed upon police officers executing their duty, was adequately reflected in the sentences of three and three and a half years’ imprisonment respectively, particularly having regard to their cumulative effect on the other sentences, without the declaration.

[41] The applicant in Braithwaite unsuccessfully applied for leave to appeal against a sentence of six years’ imprisonment on a charge of doing grievous bodily harm.  At the same time, he had been sentenced to terms of three years’ imprisonment on charges of unlawfully using a motor vehicle, arson of that motor vehicle, and unlawful assault occasioning bodily harm.  All sentences were concurrent.  In each case he had pleaded guilty.  The learned sentencing judge recommended that the applicant be considered for released on parole after serving two and a half years of the sentence.

[42] The offences were committed in early November 2002.  They commenced with the stealing of a car from a car park.  Some days later, it appeared to have broken down and was in the process of being abandoned.  Mr Braithwaite and an accomplice departed, and were subsequently seen, after their return, splashing petrol around the car and setting it alight.  The police were called.  When they arrived, they found the offenders a short distance away.  The offenders were told they were under arrest, and were escorted back to the police car.  When they arrived at the police car, Mr Braithwaite, without warning, punched the male police officer (who was undergoing training) with a clenched fist very heavily in the face knocking him backwards, and rendering him briefly unconscious.  Mr Braithwaite was, apparently much larger than that police officer.  The officer was quite seriously injured, vomiting blood, and experiencing excruciating pain.  He was later admitted to hospital and underwent surgery.  He had complex fractures to the face, including to both cheek bones, his nasal bone, and his upper jaw bones.  He underwent surgery under general anaesthetic the following day and was entirely unable to move his jaw for more than two weeks.  He underwent further surgery some three months later, and had four metal plates and 15 screws inserted in his face.  He described experiencing embarrassment, a sense of stigma, and a sense of being an ineffective police officer, as a result of the assault.  His relationship with his wife and his three year old daughter had been affected.

[43] Immediately after the assault on the male police officer, Mr Braithwaite assaulted the female police officer, punching her a number of times on the head and face.  Her physical injuries were not described, but it would appear from the plea that they amounted to bodily harm.  It was said that this police officer experienced guilt, in particular because the male police officer was undergoing training at the time, and she felt responsible for him.

[44] Mr Braithwaite was 30 years of age at the time of the offending.  He had a serious prior history for dishonest use of motor vehicles and other property offences, and for offences of unlawfully possessing non-prescribed drugs.  He had been sentenced to imprisonment on a number of occasions, the longest being for a term of four years, with a recommendation that parole be considered after twenty months.  He had no history of deliberate violent offending.  It is apparent that he was affected by amphetamines at the time of these assaults.

[45] The sentence of six years’ imprisonment for the offence of grievous bodily harm was considered appropriate, as were the lesser concurrent terms for the other offences.  The recommendation that Mr Braithwaite be considered for post-prison community based release after serving two and a half years was considered adequately to reflect his plea of guilty, and the fact that one blow (albeit a very savage one) had been delivered.

[46] In Taylor the applicant pleaded guilty to two charges of serious assault committed against police officers in the exercise of their duty, and one charge of going armed in public so as to cause fear.  For the assaults, he was sentenced to concurrent terms of two years’ imprisonment, the effect of the PS Act at that time being that he would be required to serve 16 months.  At the time of the offences, the applicant had been very intoxicated and aggressive.  Police were summoned to a domestic disturbance.  The applicant came out, threatening to kill people, and approached them with a knife, making stabbing gestures.  He also said, “Come on, shoot me.  I’m ready to die.  I want to die.”  Over a period of about an hour and a half, he approached the police officers on a number of occasions, threatening them with the knife.  Eventually, on the arrival of his father, he dropped the knife and went with the police without further incident.

[47] The applicant was 31 years of age at the time of the offending.  He had a deplorable criminal history, involving numerous assaults, some being assaults on police and some occasioning bodily harm; as well as breaches of domestic violence orders.  Marshall was referred to, the circumstances of that case being considered more serious than in Taylor.  The head sentence of two years was regarded as being “equivalent to about two and a half years before mitigation”.  The application for leave to appeal against sentence was unsuccessful.

[48] Benson was another case where police responded to a report of a disturbance.  When the applicant saw them, he walked off, speaking offensively to police when told to stop.  When a police officer attempted to restrain him, the applicant punched him in the left eye, causing immediate pain.  A struggle ensued, in the course of which the applicant’s finger hooked deep into the left eyeball of the police officer, causing substantial pain.  Another officer went to the assistance of the first police officer.  The applicant bit the leg of the first police officer.  Capsicum spray was used, as a result of which that officer lost vision.  He was taken to a hospital for treatment, his injuries being a bite on the upper left thigh, with no breach of skin; lacerations to his left knuckles; and mild redness of the left eye with a small bruise.  As well as the assaults, the applicant had been spitting and blowing blood from his mouth; and he told police he was positive for Hepatitis C.  The police officer who was injured underwent blood tests for that condition, which were to continue for a period of about six months.

[49] This applicant was 42 years of age at the time of the offending and had been diagnosed with bipolar depression and had other mental health issues.  He had a very extensive criminal history, and on a number of occasions had been convicted for assaults, resulting in the imposition of terms of imprisonment.  He was on probation and on parole at the time of the offending.

[50] On his plea of guilty, he was sentenced to a term of 18 months’ imprisonment with an order that he be eligible for parole after serving six months.  While the focus of the application appears to have been on the interaction of the sentence with earlier sentences, it was not regarded as manifestly excessive.

[51] The applicant in Devlyn had pleaded guilty to one count of unlawfully doing grievous bodily harm to a police officer and three counts of unlawfully assaulting police officers in the execution of their duty.  Police attended to assist ambulance officers who had encountered difficulties with a large group of intoxicated people when the ambulance officers attended to administer medical assistance to an elderly man.  In response to abuse, one of the police officers suggested the applicant leave.  After continued abuse, she was arrested.  She then started struggling with the police officers.  She grabbed one of them in the groin, squeezing his testicles and penis, and using her thumb or finger to dig into the area of the left testicle, causing severe pain and discomfort.  This police officer fell to his knees, gagging, coughing and dry retching.  Other officers intervened, and the applicant appeared to calm down.  However, as she was being taken to a police van, she struggled and broke free.  She then stepped towards the first police officer and kicked him in the groin, close to the testicles, with such force that his leg buckled and he stumbled.  She then kicked another police officer in the groin, with the result that he immediately felt cramps to his lower stomach.  She then stamped her foot with great force on the foot of a third (female) police officer, grabbing that police officer by the breast and twisting it, while yelling offensively.  After she was restrained, she continued to threaten this police officer.

[52] The first-mentioned police officer was initially treated conservatively.  He subsequently required ultrasound-guided aspiration of fluid which had accumulated on the testis, but the fluid re-accumulated, with associated pain.  After four months of treatment, operative repair was required, which was carried out under general anaesthetic.  He had a protracted recovery, with residual swelling and a haematoma.  This police officer suffered physical pain both from the injury and the operative repair; and his injuries had a psychological and physical impact on his relationship with his wife.

[53] This applicant, who appeared on her own behalf, stated that she had been very distraught and suffering depression and post-traumatic stress at the time of the offending; and that her brother had committed suicide.  She had been in an abusive relationship, and her younger son had been removed from her care as a result of the domestic violence she was experiencing.  She said that she was claustrophobic, and became agitated as police attempted to put her into a police van; so that she was not aware of her actions and did not intend to injure the police officers.  She was accepted as being remorseful, and had conducted herself well in custody.  She was relatively young, being 25 years of age at the date of the application.  However she had a criminal history which included a conviction for assaulting a police officer by kicking him, and another conviction for obstructing a police officer.  She had not previously served a custodial sentence.  It was considered that her serious and sustained behaviour supported a sentence of four years.  The parole eligibility date had been fixed at 15 months after sentence, and this was not disturbed.

[54] The vehicle in which the applicant in McCoy had been travelling as a passenger had been pulled over to the side of the road by a police officer.  The driver of that vehicle demanded that she and he swap places, to which she reluctantly agreed.  She was at that time adversely affected by alcohol, having a blood alcohol level of .133.  While the police officer was near the vehicle, she started to move it forward, contrary to his directions, though she stopped a number of times.  The police officer placed both hands on the bonnet of the car to further dissuade the applicant from again moving the vehicle forward; and then held his hands up in a clear stop signal.  However the vehicle rapidly increased speed, forcing the police officer on to its bonnet.  He struck the windscreen and then fell across the bonnet on to the roadway.  It was found, at a contested hearing, that her actions were deliberate, and that she intentionally struck the police officer.

[55] The police officer suffered a dislocated and broken right shoulder, and was in great pain and tearful.  Although his physical injuries had mostly healed, he was left with stiffness and pain requiring medication.  He also suffered detrimental psychological effects, diagnosed as an adjustment disorder, and he required a further six weeks absence from operational policing.  He struggled with anxiety, which affected his family life, his work and his outlook on life generally.

[56] The applicant had a significant criminal and traffic history.  She had been convicted of assaults, including assaults against police.  She had been dealt with for two breaches of probation.  However she had not previously been sentenced to a term of imprisonment.

[57] The applicant pleaded guilty to a charge of serious assault of a police officer acting in the execution of his duty.  The maximum penalty for the offences was seven years, the offences having been committed on 24 March 2012.  A term of imprisonment of two and a half years was imposed.  The applicant had also pleaded guilty to associated offences, including aggravated dangerous operation of a motor vehicle, and leaving the scene of an accident.  These attracted lesser sentences.  The sentences were suspended after 13 months’ imprisonment with an operational period of four years.  Although it was noted that a slightly lower head sentence might have been imposed, her application was unsuccessful.

[58] Orally, the respondent submitted that Williams was the most helpful decision; but a significant distinguishing feature was the youth of that offender.  It might be observed that his conduct was persistent and quite deliberately and menacingly targeted at the police officers.  The maximum penalty for three of the offences has already been referred to.  His youth was expressly said to be taken into account in the recommendation relating to parole.  In my view, this decision strongly suggests that the effective head sentence in the present case was excessive.

[59] The sentences in Marshall and in Taylor do not support the effective head sentence in the present case.  Nor, notwithstanding the difficulties previously referred to, do the sentences in Taylor and Leigep.  The only sentence of comparable length is that imposed in Braithwaite.  The extensive injuries suffered by the male police officer in that case plainly distinguish it from the present case.  The references made in the reasons in that case to the fact that only one blow had been delivered were intended to distinguish it from cases where the injury had been the result of a prolonged assault.  They do not distinguish it from the present case, where count 1 was the result of a single stabbing.  The most significant offence in Braithwaite occurred in the context of an assault on another police officer (occasioning bodily harm); and some other criminal activity.  Mr Braithwaite had been sentenced to longer terms of imprisonment in the past than had the present applicant, but continued to offend.  A more significant sentence was plainly warranted in that case, than in the present case.  Although there are obvious differences, the decisions in Kazakoff and Marshall point to the fact that the effective head sentence in the present case was excessive.  So do the sentences in Bidmade (notwithstanding its complexities) and McCoy, where serious injury was caused to police officers in the execution of their duties.  The latter two cases involved the use of a motor vehicle; but that can easily be an instrument of great harm.  While the remaining cases offer less assistance, they provide no support for the effective head sentence.

[60] When considering the cases referred to, I have borne in mind the differences in the maximum penalties which applied in a number of them.  I have also been conscious of the ameliorating effect of the early parole eligibility date.  Although not necessary to my conclusion, I note that, in view of the applicant’s history, it may ultimately be of less significance to him than the head sentence.

[61] Were it necessary to decide, I would conclude that the effective head sentence of six years and two months was manifestly excessive, notwithstanding the early parole eligibility date.

Conclusion

[62] As I have indicated, I consider that the application should be granted, the hearing of the application be treated as the hearing of the appeal, and the appeal allowed.

[63] I consider that the appropriate sentence on count 1 was a term of imprisonment of four years and six months; with the parole eligibility date 18 months from the commencement of the sentence.  Both periods should be adjusted for the time spent in custody prior to sentence.  That would result in the imposition of a sentence of three years and four months.  The appropriate parole eligibility date would have been 23 August 2015.  Since this result is no longer achievable, it seems to me appropriate to substitute a sentence of three years for the sentence originally imposed for count 1; and fix, as the parole release date, the date of the publication of this Court’s reasons.  In view of the way the application has been argued, there is no reason to consider a variation of the sentences imposed for the other counts.

[64] Accordingly I would order as follows:-

(a)Application granted.

(b)Treat the hearing of the application as the hearing of the appeal.

(c)Appeal allowed.

(d)For the sentence imposed in respect of count 1 substitute a sentence of three years’ imprisonment.

(e)Fix the applicant’s parole release date as the date on which the Court publishes its decision on the application.