Worth v Phineasa[2013] QDC 62

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886 against the sentence imposed on the respondent by a Magistrate sitting in the Weipa Magistrates Court on 15 February 2012.

The respondent pleaded guilty to one count of assault occasioning bodily harm whilst armed, one count of commit public nuisance and three counts of obstructing a police officer. He was sentenced to imprisonment for eight months, and immediately released upon parole in respect of the count of assault occasioning bodily harm whilst armed. He was convicted and not further punished for the other offences.

The appellant argues that the sentence imposed for the count of assault occasioning bodily harm was manifestly inadequate. The offences were committed on 24 December 2011 early in the morning when police were called to a disturbance at 4 Mankina Court, Weipa.

The respondent became violent and attempts to restrain him failed. The respondent then fled. He was pursued by two police officers. In attempting to arrest him a Taser was fired on two occasions and missed. Ultimately, the respondent grabbed a landscaping brick and threatened the police officers with it before striking the complainant, Senior Constable Dare, on the head with it. This caused a wound which required subsequent hospital treatment, including the insertion of five sutures to close it.

After he was ultimately arrested the respondent participated in an electronic record of interview in which he admitted to the conduct constituting the offences and conceded that what he had done was wrong. At the time of the offending the respondent was 27 years of age, in well-remunerated employment, and supporting a de facto partner and a two year old child.

He had a very limited criminal history consisting only of entries, including one common assault, for which he was sentenced in the Townsville Magistrates Court on 22 February 2005 to a 12-month probation order with no convictions recorded. The question of whether or not the relevant sentence imposed on the respondent was manifestly inadequate turns on whether he should have been required to serve a period of actual custody.

I have been provided with a number of decisions of the Queensland Court of Appeal. Many of them deal with more serious offending than that the subject of this appeal, but in each instance the offender was required to serve a brief period of actual imprisonment.

As McMurdo P remarked in R v. Conway [2005] QCA 194 at [54], "police officers acting properly and reasonably in the execution of their duty must know they have the support of the community and the protection of the courts”.

In that case the applicant was a successful mature man with a limited but relevant history who seriously assaulted a police officer in the course of his duty, causing him facial fractures and resulting in him suffering psychological consequences.

The injuries sustained to the police officer in Conway were significant, but the Court of Appeal ultimately imposed a sentence of imprisonment for 12 months, suspended after three months with an operational period of 12 months.

Perhaps a more relevant decision in terms of the severity of the injuries inflicted is R v. Mathieson [2005] QCA 313.

In that case the offender was aged in her mid-twenties and the mother of two boys; aged seven and three and a-half, in respect of whom she was the sole carer. When two female police officers attempted to arrest her in circumstances where she was heavily intoxicated, she lashed out at the police officers, ripping an earring from one of them, pulling hair from both of them and kicking one of them to the shoulder and head. Fortunately, the physical injuries to the police officers were relatively minor, although one of them suffered from severe headaches for four or five days and photophobia for a similar period. The Court of Appeal imposed a sentence of imprisonment for six months suspended after two months for 12 months.

Considerations of both personal and general deterrence loom large in sentencing offenders for assaulting police officers in the course of their duty. Where a mature offender assaults a police officer acting properly and reasonably in the execution of his or her duty, they can expect to serve a period of actual imprisonment in the event the police officer suffers injuries requiring hospital or medical treatment.

The use of a weapon is a significant aggravating feature of the offending before me. Although the complainant police officer was struck once and not seriously injured, the use of a brick created an extremely dangerous situation. When I balance these considerations with the respondent's otherwise apparently good character, save for the entry in his criminal history which is now dated, I am of the view that it is nonetheless necessary that he serve a period of actual imprisonment.

Whilst some time has elapsed since the sentence was imposed on the respondent by the learned Magistrate and there is no evidence before me that the respondent has committed any offences in the intervening period, I am nonetheless of the view that the features of this offending noted above warrant him being taken into custody to serve a short period of imprisonment.

I therefore allow the appeal. I find that the sentence imposed upon the respondent by the learned Magistrate was manifestly inadequate in the circumstances. It therefore falls upon me to resentence the respondent.

The respondent has failed to appear on the hearing of the appeal, thereby frustrating a sentence which incorporates a parole date. The approach I will adopt is therefore to sentence the respondent to a period of imprisonment, but suspend it after a lesser period of actual custody.

In respect of the count of assault occasioning bodily harm whilst armed, I sentence the respondent to imprisonment for eight months. I order that the term of imprisonment be suspended after the respondent has served a period of two months. The operational period under the order is 12 months.

The respondent must not commit another offence punishable by imprisonment within the operational period if he is to avoid being dealt with for the suspended term of imprisonment. I otherwise confirm the sentences imposed at first instance by the learned Magistrate.

I order that a bench warrant be issued for the arrest of Tommy Willie Mauma Phineasa.