McClellan-Adnan v Queensland Police Service
[2012] QDC 265
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McClellan-Adnan v Queensland Police Service[2012] QDC 265
McClellan-Adnan v Queensland Police Service[2012] QDC 265
[2012] QDC 265
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE RACKEMANN
No 118 of 2012
SHANNON McCLELLAN-ADNAN | Appellant |
and | |
QUEENSLAND POLICE SERVICE | Respondent |
SOUTHPORT
DATE 02/08/2012
DAY 1
ORDER
HIS HONOUR: This is an appeal against a sentence imposed on the 10th of February 2012 in the Magistrates Court at Southport, when the appellant pleaded guilty to one count of serious assault of a police officer and one of obstruction of a police officer. He was sentenced to perform 200 hours of unpaid community service, to pay $750 in compensation and had convictions recorded.
The appeal is on the basis that the sentence was manifestly excessive, but also on the basis that there was disparity in the sentences imposed upon the appellant and his co-accused.
It appears however, as was conceded by the respondent, that there was another and more obvious error in the sentencing process. As I have already noted, this was a sentence which proceeded upon pleas of guilty. In such circumstances, section 13 of the Penalties and Sentences Act not only requires the guilty plea to be taken into account - section 13(1)(a), but also requires that, when imposing the sentence, the Court state in open Court that it did so.
The Court, in this case, did not do so and the sentencing process miscarried, which permits me to approach the matter on the basis of re-sentencing the appellant, rather than simply considering whether the sentence was manifestly excessive.
Before proceeding further I should say something about the material facts. The offence occurred on Sunday the 14th of May 2010 at Broadbeach. For reasons which I need not go into, the police had cause to chase after a number of males, one of whom was the appellant.
The appellant, together with the others, continued to run from the police. Ultimately, however, the appellant was apprehended. What followed was a struggle between the appellant and the police officer, which ensued after the police officer had said to the appellant, "Stop, you're under arrest."
The struggle was described as violent. The police officer attempted to restrain the appellant. In the course of the violent struggle the appellant ended up on top of the police officer who was then lying flat on his back. Notwithstanding that he had the Constable in a position of weakness, the defendant continued to, "push violently, struggling, including closed fist punches, to Constable Mumford's mid section."
The appellant was ultimately freed from the struggle with the assistance of others and was chased again before he was ultimately apprehended and restrained.
It is true that the degree of violence is not at the highest end of offences of this kind but, as the learned Magistrate observed in the course of sentencing submissions, the conduct was deliberate. It was not a passing glance or an incidental contact, and it was conduct which was persistent in the sense that it continued for some period of time. It was also not victimless. The police officer obviously would have been caused some pain as a result of the struggle and of receiving blows to his mid section. Observable consequences were said to be minor cuts and abrasions.
For the appellant, it was submitted that there was a question of parity because, unbeknownst to the sentencing Magistrate at the time, one of the others involved in this incident had been dealt with in the Magistrates Court on the 11th of January and received a fine with no conviction recorded.
The parity argument however, is not strong because that sentence followed a downgrading of the charge against that person from obstruction and serious assault to obstruction and assaulting an officer in the execution of his duty. Further, the role played by the co-offender was not as great and thirdly, it was accepted that there was no physical injury at all as a result of the single blow struck by the defendant in that case.
Turning to the central question of whether or not a conviction should be recorded, section 12 of the Penalties and Sentences Act, provides:
"In considering whether or not to record a conviction, a Court must have regard to all circumstances of the case, including -
- (a)the nature of the offence; and
- (b)the offender's character and age; and
- (c)the impact that recording a conviction will have on the offenders -
- (1)economic or social well-being; or
- (2)chances of finding employment."
In deciding to record a conviction, the learned Magistrate was obviously heavily influenced by the nature of the offence. It was an offence of violence against a person in authority and whilst it did not result in significant permanent injury it was a deliberate and sustained struggle which included blows to a policeman, who was in a prone position.
Those matters are, of course, relevant to the exercise of the discretion. They must be balanced with other factors and must also be seen in light of the sentence overall including the community service component. The Court needed to be mindful that the sentence overall must be one which is appropriate.
Insofar as the other particular factors mentioned in subsection 2, there was not much that could be said for the appellant in relation to (c). The appellant has some mechanical qualification, but was unemployed at the time. In the course of that unemployment he had been considering other alternative vocations and had undertaken a security course but, as the appellant's legal representative at first instance fairly conceded to the learned Magistrate, he was, by reason of this incident, unlikely to obtain a job as a security officer whether or not a conviction was recorded.
The appellant is, of course, still a relatively young man. He has some plans to travel overseas and as Keane JA pointed out in R v. Cay and anor, ex parte Attorney General Queensland [2005] QCA 467, "the identification of specific opportunities which would be thwarted by a recording of a conviction is not an essential requirement to the exercise of a discretion." But this appellant does not have a particularly strong case in relation to that limb of section 12(2).
The offenders character and age is one of the factors to be taken into account. I have already observed that he is still a relatively young man. He does not have an unblemished history but his history is a relatively minor one.
The exercise of the discretion in this case is, in my view, more finely balanced than the Magistrate at first instance appeared to consider. However, ultimately, I am of the view, not only that the decision to record a conviction in addition to the other aspects of the sentence was not manifestly excessive but, in re-exercising the discretion myself, consequent upon the other error in the sentencing process, I would exercise the discretion the same way.
Accordingly, the appeal is dismissed.
MR KAY: : Thank you your Honour.
MR McNAB: Thank you your Honour.
HIS HONOUR: Thank you.