R v McCoy[2015] QCA 48

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  The applicant, Melinda McCoy, pleaded guilty on 22 July 2014 to serious assault of a police officer acting in the execution of his duty and dangerous operation of a vehicle with the circumstance of aggravation that she was adversely affected by alcohol.  She also pleaded guilty to the summary offences of driving with a blood alcohol level of 0.133; unlicensed driving when disqualified due to demerit points and leaving the scene of an incident in which a person had been injured displaying callous disregard.  All these offences were charged as occurring on 24 March 2012.  She additionally pleaded guilty to the separate summary offence of possessing a Category A repeater air rifle on 25 February 2012.  After a hearing as to contested facts, she was sentenced on 23 July 2014 to two and a half years imprisonment for serious assault, 18 months imprisonment for aggravated dangerous operation of a motor vehicle, six months imprisonment for leaving the scene of the accident and one month imprisonment for the other summary offences.  The sentence was suspended after 13 months imprisonment with an operational period of four years, and 110 days pre-sentence custody was declared as time served under the sentence.  She has applied for leave to appeal against her sentence contending that it was manifestly excessive in that her imprisonment should have been suspended after 10 months.

[2] The applicant was 50 years old at sentence and 48 at the time of the offences.  She had a criminal history commencing in 1981 and extending over more than two pages.  It consisted of offences of wilful damage, assaults including assaults against police, and a weapons offence for which she received community-based sentences.  In 2001, she was dealt with for two breaches of probation.  Between 2003 and 2012 she was given further community-based sentences for obstructing police, breach of probation, weapons offences, street offences, receiving stolen property, wilful damage and property offences.  She also had an extensive traffic history commencing in 1988.  She had four entries for speeding, one for exceeding the speed limit by more than 30 kilometres per hour.  Her license was suspended on at least four occasions.  She was fined on three occasions for driving while a child was unrestrained.  Her most recent traffic offences were in 2009 for speeding in excess of 13 kilometres over the limit and driving with a blood alcohol concentration of 0.056.  She had not previously been sentenced to a term of imprisonment.

The sentence proceedings

[3] The sentence proceedings were contested as the parties were in dispute about the applicant’s state of mind at the time of the March 2012 offences.  It was common ground that whilst driving a vehicle she struck Sergeant Whittet, a police officer acting in the execution of his duty.  She pleaded guilty on the basis that she believed he was directing her to leave the scene when she unintentionally struck him; that this belief was unreasonable but formed due to her intoxicated and/or agitated state; and that she left the scene knowing she had struck him.  The prosecution alleged that in striking Sergeant Whittet she acted deliberately or was motivated by reckless indifference.  The sentencing judge heard evidence from Sergeant Whittet; Senior Constable Bradley Winter who attended the accident scene; and eye-witnesses Amanda Adams and Michael Morgan.  The applicant’s son, who was nine years old at the time of the offences, was in the back seat of her car.  He also gave evidence but in the form of a police statement under s 93A Evidence Act 1977 (Qld) and by pre-recorded evidence under s 21A of the Evidence Act.

[4] The applicant no longer disputes the following factual findings made by the judge.  She was a passenger in a vehicle which pulled over on the side of a road, outside Toowoomba in response to a direction from Sergeant Whittet who was driving a marked police vehicle with its lights flashing.  He was unaccompanied.  A black Commodore stopped behind the applicant’s vehicle.  The police car stopped in front of the applicant’s vehicle.  She and the driver of her vehicle, her partner, swapped seats: he moved across into the front passenger seat while she walked around the back of the vehicle and got in through the driver’s door.  The black Commodore left at Sergeant Whittet’s direction.  The judge referred to the evidence of the applicant’s son to the effect that his parents were arguing and drinking beer in the vehicle and his father was driving erratically.

[5] As to the matters in dispute, his Honour was satisfied beyond reasonable doubt that the applicant was affected by alcohol and was unlicensed but her partner demanded she swap places and she only reluctantly agreed.  This may have significantly contributed to her agitation.  Sergeant Whittet indicated to the applicant to stop her vehicle but she continued to drive slowly forward, stopping a number of times.  As her vehicle approached, it probably touched Sergeant Whittet.  He placed both hands on the bonnet of her car to further dissuade her from edging the vehicle further forward.  He held his hands up in a clear stop signal.  The applicant’s vehicle then rapidly increased speed forcing Sergeant Whittet onto its bonnet.  He struck the windscreen before falling off the left-hand side of the bonnet onto the roadway.  He came to rest about 15 metres in front of the police car.

[6] After referring to the evidence of the eye-witnesses, the judge was persuaded that the applicant’s actions were deliberate and that she intentionally struck Sergeant Whittet, who was acting in the execution of his duty, to enable her to leave the scene and to avoid arrest.  A subsequent blood alcohol test indicated she had a reading of 0.133 but that and her agitated state did not cause his Honour to doubt these conclusions.  While her capacity to form an appropriate judgment was affected by agitation and alcohol, she deliberately determined to intentionally strike Sergeant Whittet to make her escape.

[7] The prosecutor tendered Sergeant Whittet’s victim impact statement.  He was a 49 year old married man with three children.  He suffered a dislocated and broken right shoulder.  He was in great pain and tearful in front of other police officers.  He was treated by ambulance officers at the scene and taken to hospital.  He was unable to work for almost a month and he could not perform full operational duties for a further six weeks.  His physical injuries had mostly healed although he was left with stiffness and pain requiring panadol or nurofen.  He suffered detrimental psychological effects which have been diagnosed as an adjustment disorder and required a further six weeks absence from operational policing.  He has struggled with anxiety over this incident which has affected his family life, his work and his life outlook generally.

[8] Defence counsel emphasised that the discussions with the prosecutor as to a plea of guilty commenced in October 2012 although it took some time to reach an agreement.  Initially the applicant was refused bail after her arrest.  When she was released on bail, she had a breakdown.  She had seven children aged from 31 to nine years.  Whilst she was in custody, the care of her 11 year old twins and her nine year old son was shared amongst various people.  Her parents’ family would look after them when she was inevitably sentenced to a further period of imprisonment.  She had been treated for anxiety and was on anti-depressants.  On the day of the offence she was drinking at her nephew’s 18th birthday party.  Defence counsel tendered a reference from the applicant’s aunt, who spoke of the applicant’s love of family, especially for her own children.  The aunt expressed horror at the applicant’s offending but she had spoken frankly with the applicant who now wanted to change her life for her family’s sake, was genuinely remorseful and ready to accept the consequences of her actions.  He also tendered a letter of apology from the applicant to Sergeant Whittet expressing her remorse and suggesting she now had insight into the effect of her conduct on others, particularly Sergeant Whittet.  Counsel emphasised the applicant offered to plead guilty to the present counts on 6 August 2012.  She should receive credit for her timely plea, despite her contesting the facts.  After referring to a number of cases of some comparability, counsel submitted the appropriate head sentence was between two and two and a half years imprisonment, with a pre-sentence custody declaration.

[9] In sentencing the applicant, the judge referred to the victim impact statement and the cases cited as comparable, noting it was difficult to find really comparable sentences.  The maximum penalty was seven years imprisonment.  A prison term would have a major impact on her children.  She had served 110 days of pre-sentence custody.  She had a significant and shameful criminal history and a relevant but not extraordinarily bad traffic history.  She clearly had a problem with alcohol which, at 50 years of age, she needed to address.  When released from prison she should get professional help.  It was not too late to become a worthwhile role model for her children.  His Honour noted her aunt’s reference and the applicant’s positive qualities.  The guilty plea was on the morning of the trial and was followed by a significant contest of the facts.  She had, however, offered to plead guilty to similar charges on 6 August 2012.  This showed she accepted her criminality, but not the full extent of it.  His Honour found she was not fully remorseful, although her early guilty plea showed some remorse.  By contrast, her callously leaving the scene and securing the vehicle at a friend’s place showed no remorse.  The usual one third discount on an early plea of guilty was not warranted.  The judge sentenced her to two and half years’ imprisonment, with a four year operational period suspended after 13 months, that is, after taking into account pre-sentence custody, on 3 May 2015.  His Honour considered the applicant’s conduct was callous and deliberate in circumstances where she was agitated and intoxicated by her voluntary consumption of alcohol.  She had to accept responsibility for her actions which had little to do with her following her partner’s demand to get into the driver’s seat.

The applicant’s submissions

[10] The applicant submitted that the judge gave insufficient weight to her guilty plea and remorse and placed too much weight on the fact that she contested the factual basis of her sentence.  She offered to plead guilty to these charges at an early stage, prior to the presentment of the indictment.  Further, she had not previously been sentenced to a term of imprisonment.  She tendered a letter of apology to the complainant.  The judge overlooked that she was acting in a state of panic under pressure from her partner.  The two and half year head sentence was at the top of the range submitted by defence counsel.  A review of the decisions relied on at sentence indicate that the head sentence was high but not outside the permissible range.  In combination, however, the high head sentence and an order suspending the sentence after 13 months rather than after one third, renders the sentence manifestly excessive.  The applicant placed reliance on R v Obern,[1] R v Whye[2] and R v Broadbridge.[3]  This Court should allow the appeal and suspend the term of imprisonment after 10 months rather than after 13 months.

Conclusion

[11] This is a sad case in that the applicant’s problems with the law, on this occasion and in the past, are clearly related to her personal difficulties and her no doubt inter-connected alcohol problem.  She was, however, a mature woman with a significant criminal and traffic history.  Her conduct, whilst intoxicated, in deliberately driving dangerously at a police officer acting in the execution of his duty, was most serious.  It caused him significant injury but her behaviour had the potential to cause even more serious injury or even death.  It warranted a significant penalty to deter her and others from such gravely anti-social behaviour.  The judge was entitled to be circumspect about the depth of her subsequent remorse given her leaving the scene without concern for Sergeant Whittet’s welfare and her unpromising insistence on contesting the factual basis of her plea of guilty.  That said, there were mitigating features.  Despite her criminal and traffic history, she had never before been sentenced to a term of imprisonment.  She did plead guilty at an early stage.  She had dependent children for whom her imprisonment will be difficult.

[12] In light of the increase in the maximum penalty to seven years imprisonment for the offence of serious assault, the cases to which the applicant has referred this Court do not demonstrate that the effective sentence of two and a half years imprisonment with an operational period of four years, suspended after 13 months, for the totality of the applicant’s offending, was manifestly excessive.  The fact that a different judge may have imposed a slightly lesser head sentence suspended at the one third point is of no assistance to the applicant.  The application for leave to appeal must be refused.

Order

The application for leave to appeal against sentence is refused.

[13] HOLMES JA:  I agree with the reasons of Margaret McMurdo P and the order she proposes.

[14] JACKSON J:  I agree with McMurdo P.