Ross v Commissioner of Police
[2015] QDC 315
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- Unreported Judgment
- Ross v Commissioner of Police[2015] QDC 315
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Ross v Commissioner of Police[2015] QDC 315
Ross v Commissioner of Police[2015] QDC 315
DISTRICT COURT OF QUEENSLAND
CITATION: | Ross v Commissioner of Police [2015] QDC 315 |
PARTIES: | Lee Benjamin Ross (appellant) v Commissioner of Police (respondent) |
FILE NO/S: | D74/15 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Maroochydore Magistrates Court |
DELIVERED ON: | 9.12.15 (reasons only) |
DELIVERED AT: | Maroochydore District Court |
HEARING DATE: | 4.12.15 |
JUDGE: | Robertson DCJ |
ORDER: | Appeal dismissed (made 4 December 2015) |
CATCHWORDS: | CRIMINAL LAW: appeal against sentence; where the appellant pleaded guilty to one count of serious assault; where the appellant was sentenced to 7 months imprisonment with a parole release date fixed at 2 months, being 11 July 2015 allowing for (2) days pre-sentence custody; whether the punishment imposed was manifestly excessive; whether the sentence impose was just in all the circumstances. Legislation considered Criminal Code 1899 Justices Act 1886 Penalties and Sentences Act 1992 Cases considered House v The King (1936) 55 CLR 499 Queensland Police Service v Terare [2014] QCA 260 R v Barry [2007] QCA 48 R v Brown [2013] QCA 185 R v Ikin [2007] QCA 224 R v Jackson [2011] QCA 103 R v King [2008] QCA 1 R v Murray [2014] QCA 250 R v Reuben [2011] QCA 322 Shambayati v Commissioner of Police [2013] QCA 57 |
COUNSEL: SOLICITORS: | Stark, A. for the respondent Meehan, T. instructed by Bosscher Lawyers for the applicant Director of Public Prosecutions for the respondent |
- [1]On the 15.5.15, the appellant Mr Ross pleaded guilty to one count of serious assault which offence occurred in the Emergency Department of the Nambour General Hospital in the early hours of the morning of the 6.10.14.
- [2]His Honour Acting Magistrate Barrett sentenced Mr Ross to 7 months imprisonment and fixed a parole release date after 2 months, being the 11 July 2015 allowing for (2) days pre-sentence custody. On the same day Mr Ross pleaded guilty to (2) minor drug offences and a Weapons Act offence for which he received (2) days imprisonment to be served concurrently with the 7 month term. His Honour granted Mr Ross bail that afternoon, after the appeal was filed in this Court.
- [3]He has appealed only against the sentence of 7 months imprisonment and in particular, the order that he serve (2) months. The appeal is pursuant to s 222(2)(c) of the Justices Act 1886, so the only ground can be that the punishment imposed was excessive. Pursuant to s 223(1) the appeal is by way of “technical” rehearing on the evidence before the Magistrate. Neither party seeks to introduce fresh evidence.
- [4]As the imposition of sentence is an exercise of discretion, an appeal of this nature is governed by the principles set out in House v The King (1936) 55 CLR 499:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon the wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials to do so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred”.
- [5]As to the first aspect of this principle, Wilson J in Shambayati v Commissioner of Police [2013] QCA 57 wrote that the appellant must show “some legal, factual or discretionary error”. A number are alleged by Mr Ross in his outline. As to the second aspect, Keane JA (as his Honour then was) observed in R v Ikin [2007] QCA 224:
“In this regard, there may be cases where the sentence is so “unreasonable or plainly unjust” in the circumstances as to give rise to an inference that the discretion has miscarried. It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive. But that having been said, as was emphasised by Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 341, this Court should allow an appeal against sentence only where the error is clearly apparent”.
- [6]Although s 222(2)(c) uses the words “excessive” and “inadequate”, the notion of “manifestly excessive or inadequate” comes from the jurisprudence of the High Court and State intermediary Courts of Appeal and is really an expression of what I will refer loosely to the second limb of the principle in House v The King. Leave is required to appeal against sentence to the Court of Appeal, and by reference to s 668E(3) of the Criminal Code, the focus is on whether “some other sentence, whether more or less severe, is warranted in law and should have been passed, …”.
- [7]The apparent breadth of that power has always been constrained in the House v The King sense; and it has been said many times that simply because an offender has been punished severely, that alone does not determine the appeal against sentence.
- [8]In R v Jackson [2011] QCA 103, at [25], Chesterman JA wrote:
“The cases do suggest that the applicant has been punished severely. That, however, does not dispose of the application. To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of law.”
The proceedings below
- [9]The matter was clearly listed as a lengthy sentence, and his Honour had received a lot of material in advance, including a number of authorities. I have noted in a decision delivered on 4.12.15 that it is highly desirable that in these cases each document (or group of documents) be marked as an exhibit. In a technical sense, the documents are not part of the evidence until so marked, but the real issue is that it makes it potentially difficult for an appeal court to determine issues such as weight apart from what is said in the proceedings and the decision. This Court has been justifiably criticised for not identifying all documents, either as an exhibit, or for identification, and I suggest that in lengthy sentences this practice be adopted by the Magistrates.
- [10]The facts set out in a schedule were accepted by Mr Ross’s solicitor. The prosecution gave no summary, and essentially matters proceeded straight to submissions.
- [11]At about 3 am on 6.10.14 police responded to a disturbance at a unit in Caloundra. The victim of the serious assault, Senior Constable Eyles was part of the response group. This is not clear from the schedule, but is clear from his statement dated 24.4.15 which was before the Court as his victim impact statement. Police spoke to Mr Ross. He was unstable on his feet and slurring his words. While police were in the unit talking to him, he got up from a couch and said he was going to end his life. Police attempted to restrain him, but he broke away and ran into his bedroom. Police saw him there with a knife which he was brandishing towards himself. He was sprayed with pepper spray which caused him to drop the knife. He was then handcuffed and restrained in the bedroom. Police then noticed drug paraphernalia and cannabis in plain sight, and a number of weapons (17 in all), 2 of which later became the subject of the Weapons Act charges.
- [12]The Police then took the defendant to the Emergency Department for an emergency mental state examination. Ambulance officers assisted.
- [13]Senior Constable Eyles says that he was waiting with the defendant in the emergency department and talking to him. There is no evidence to suggest that he was then agitated or unpredictable. A fair inference from the schedule of facts is that the police officer was endeavouring to help him, and to keep him calm.
- [14]It appears that without warning, Mr Ross turned his head and spat in the police officer’s face. It can be inferred that this was in the general presence of other police, ambulance officers and hospital staff, as police immediately restrained him on a trolley bed and hospital staff gave Mr Ross an injection. The spittal landed on the left side of the police officer’s face and leeched down his cheek. He was immediately assisted by an ambulance officer who removed the spittal.
The prosecutor’s submission below
- [15]Sargent Baker started by referring to the increase in penalty for this offence from 7 years to 14 years on 29.8.12, and read from extracts of the Explanatory Notes. He referred to a number of cases, in particular R v King [2008] QCA 1; R v Reuben [2011] QCA 322 and R v Brown [2013] QCA 185, in support of his submission that a term of imprisonment with some actual time to be served, was the appropriate outcome. He referred to the effects of Senior Constable Eyles, and referred to being a victim of an assault himself, and to a number of features of the case that he submitted were aggravating. He notes that Mr Ross (who was 24 at the time of offending) had no previous convictions. He emphasised the need to deter such offences which were degrading and demonstrative of a lack of respect for civil authority; and the need to protect police officers from such acts.
The defence submissions below
- [16]Mr Ross’s Solicitor emphasised his client’s complete lack of history – not even a parking ticket. He acknowledged at the outset that imprisonment “is the only available sentencing option properly open to your Honour”.
- [17]He said his client regretted the incident and “acknowledges specifically the massive impact … on the police officer”. He made an offer to pay compensation, which he asked his Honour because of his experience to “pitch” at “a reasonable sum”. He referred to a number of references including a “report under the hand of Melissa Homan”. He specifically took his Honour through the references from an advanced care paramedic and a retired NSW police officer. He referred to Ms Homan’s “report”, and to the references as indicating some difficulties in his childhood due to the death of his mother from cancer when he was 11. As it is submitted his Honour did not place sufficient weight on the references, and “the mental health issues … and his steps to address them”, it is worth referring in more detail to the contents of Ms Homan’s report which is unsigned.
- [18]She does not purport to write an expert report, nor could she as she is, or was, a “credentialed” mental health nurse in private practice, and director of Mental Health Consulting Pty Ltd, a private facility at Buderim. On a number of occasions she refers to her letter as a “character reference”. Relevantly, to the “mental health” issue, she writes:
“Lee was referred to Mental Health Consulting by his GP – Dr Moni Kami on the 9th October, 2014 for assessment and management of his anxiety and panic attacks in relation to previous work related stress and supportive counselling regarding above charges. Lee has organised his counselling sessions of his own volition and has attended and actively engaged in four (4) therapy sessions. Lee has accepted use of antidepressant medication and remains compliant with same and has been receptive to see a Psychiatrist – Dr Paul Cadzow for a medico-legal report and has an appointment on the 02.12.2014”.
- [19]There was no report from the GP and no suggestion that he ever did see Dr Cadzow – certainly there is no report from him.
- [20]The letter reads as a character reference, and dips at times into advocacy.
- [21]At best, it is some evidence, that at the time, he was experiencing anxiety and panic attacks as a result of workplace issues leading up to the offending. It ignores the obvious reason for his conduct, and that is, he was intoxicated either from drugs or something else, and was suicidal, and out of control to the extent that police had to take drastic action to prevent him from harming himself. It does not explain at all why he would commit such an offence, at a time when things had apparently calmed down, and against a police officer who was trying to help him, and who would not have expected such an act.
- [22]The references do speak highly of him and strongly suggest his actions were out of character.
- [23]The Solicitor informed his Honour that his client worked in hospitality and was highly regarded by his employer. He did not provide a reference from the employer, presumably because he had not mentioned the charges to the employer.
- [24]The Solicitor said that Ms Homon’s business had closed down in 2014 (her reference is dated 18.12.14), and that his client had seen another counsellor 6 times, but no report was tendered from that person.
- [25]The Solicitor explained why it had taken so long to have the matter listed as a lengthy plea. There is no complaint about this as his Honour treated the plea as timely and attendant with remorse.
- [26]The Solicitor then proceeded though the authorities, including the cases referred to by the prosecutor. He referred to R v Murray [2014] QCA 250, and in particular Queensland Police Service v Terare [2014] QCA 260 which is specifically referred to in the 6 discretionary errors referred to in Mr Ross’s outline; R v Barry [2007] QCA 48. Murray and Terare were both decided post the increase in the maximum penalty. He submitted that a wholly suspended sentence of 3 to 6 months was appropriate.
- [27]Senior Constable Eyles’ victim impact statement was before his Honour. He said:
“3. Whilst waiting in the emergency department the defendant has spat on me hitting me in the face. At this time I was shocked any angry about being spat on.
4. I was concerned after the incident as I have heard there are a number of communicable diseases which a person can catch from contact with saliva.
5. After the incident a disease test order was administered which took some time to be completed. I believe the defendant was not advised of the results of the test as he had vacated his previous address. To date I do not know if the defendant has any communicable diseases.
6. This has left me feeling anxious and unsure about what this effect could have on my current and future health. I am still worried about this.
7. I am more apprehensive when dealing with aggressive intoxicated people. I sometimes have flashbacks of the incident. This occurs more frequently when I am tasked to attend an emotional situation at work. I have sought counselling from the QPS Human Services Officer in relation to the incident. I have had three appointments with her.
8. This has helped me deal with the anxiety and stress associated with being spat on by the defendant however it has also left me embarrassed that I have been put in a position of perceived weakness.
9. After this incident I suffered from shingles. I sought medical treatment for this and my Doctor told me that she was of the opinion that it was a stress related illness. I had left it too late for her to prescribe any medication however I had to have about seven days off work with this illness. I believe that me contracting shingles was a result of anxiety I was feeling from the spitting incident. This is an illness that can recur with further stress or anxiety”.
None of this was disputed before his Honour.
His Honours’ reasons
- [28]His Honour started by stating that he had taken into account of the submissions of both the prosecution and the solicitor. He accepted the plea as a timely plea of guilty. He referred to his age and lack of history and to the fact that the serious assault was the most serious offence “met, in the normal course, with a term of imprisonment”.
- [29]He referred to the increase in the maximum penalty and stated, correctly in my view, that authorities prior to then must be considered in that light. Indeed, in R v Murray [2014] QCA 250, Fraser JA (with whom Gotterson and Morrison JJA agreed) wrote, at [16] – [17]:
“[16] It is also plain that the maximum penalty of 14 years imprisonment for this offence must be taken into account. As Gleeson CJ, Gummow, Hayne and Callinan JJ observed in Markarian v The Queen (2005) 228 CLR 357 at 372 [31], “careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.” Whilst it is to be expected that the increase in the maximum penalty for the particular offence of which the applicant was convicted will lead to more severe penalties for that offence (see R v Benson [2014] QCA 188 at [36] per Morrison JA), “[i]t does not necessarily follow from the fact of an increase in the maximum penalty that all such offences committed after the amendment came into effect should attract a higher penalty than they previously would have” (R v Samad [2012] QCA 63 at [30] per Wilson AJA). Nor should a doubling of the maximum penalty necessarily result in a doubling of sentences at all levels (see R v SAH [2004] QCA 329 at [12] – [13].) The respondent’s counsel endorsed the following remarks I made in R v CBI [2013] QCA 186 at [19] about an increase in a different maximum penalty:
“Those changes in the sentencing regime for this offence, especially the substantial increase in the maximum penalty, are significant. It is to be expected that they would produce a general increase in the severity of sentences, rendering the earlier cases of little utility as comparable sentencing decisions. That is so even though, as the applicant submitted, the increase in the maximum penalty should not necessarily be reflected in proportionate increases in sentences.” (I have omitted the citations to cases in that passage.)
[17] In this case the absence of any comparable sentencing decision after the increase in the maximum penalty makes it necessary to refer to the earlier cases, if only to shed light upon the circumstances in which the increased maximum was enacted. The relevant decisions were analysed in R v Brown [2013] QCA 185. It is not useful in this case to refer to decisions in which the penalty reflected spitting at a police officer as well as other significant assaults. I will discuss only the decisions in which the penalty was wholly or at least very substantially attributable to spitting at a police officer, namely, R v Laskus [1996] QCA 120, R v Barry [2007] QCA 48, R v King (2008) 179 A Crim R 600, and R v McLean (2011) 212 A Crim R 199. In each of those cases the offender pleaded guilty.”
- [30]He said that the offence could not be condoned, was degrading and deemed abhorrent, and creates great anxiety for a police officer carrying out his duty.
- [31]He did not undertake an analysis of the cases, but, as the submissions indicate, he was referred at length to the facts of some of them and the relevant principles. He said (of the authorities) that some are worse. He is criticised on appeal, on both issues and I will deal with that argument shortly.
- [32]He referred to the offence, and that it was “without warning”, and to the effects on the police officer. He interrupted his sentencing reasons to ask if the disease test results had been received, and was told they had not.
- [33]He said “… you’re a first time offender. Up until this point in time, others speak highly of you, and beyond the date of the offences”.
- [34]He referred to his employment and to impact that the recording of a conviction would have on his future job prospects.
- [35]His Honour noted Mr Ross’s remorse evidenced by his plea, and his acknowledgement “that your conduct caused anxiety to the officer involved”. He referred to counselling to address various medical issues.
- [36]He took into account his offer to pay compensation, but (correctly in my view) noted he did not have sufficient evidence to assess compensation.
- [37]He referred to the importance of deterrence. I think there is an error in the transcript where his Honour is recorded as saying “this action cannot and must not go adequately (sic) punished”.
The arguments by the appellant
- [38]Mr Ross asserts six errors on the part of his Honour:
“16. In submitting that the sentence was manifestly excessive, it is contended that the sentencing discretion of the Acting Magistrate miscarried for the following reasons:-
- He incorrectly stated that only some of the other cases tendered dealt with behaviour by the various appellants that was worse than in the present case.
- He placed far too much reliance on the increase of the penalty for offences of this particular type.
- He did not sufficiently differentiate as between the offending in the present case and the aggravated offending in the in the authorities relied upon by both the Prosecution and defence.
- His Honour specifically did not impose a sentence in accordance with the Judgment of Her Honour President McMurdo in the matter of Terare.
- He placed insufficient, or no, weight on the excellent references tendered on behalf of the Appellant.
- He placed insufficient weight on the mental health issues of the Appellant and his steps to address them”.
- [39]As a number of these so called errors require an analysis of the authorities, which is also necessary to determine whether the sentence is so “unreasonable or plainly unjust”, even in the absence of discernible error, nonetheless it gives rise to an inference that the discretion has miscarried; I will deal with those issues later.
- [40]There is no merit in the suggestion that his Honour placed “too much weight” on the increase in penalty. Nothing in what he said supports this assertion. His approach, refreshingly straight forward, was principled, particularly when one has regard to the extract from R v Murray above. The argument on this point developed at para 19 is simply wrong. There is nothing to suggest that this very experienced Magistrate was not well aware that he could not sentence beyond 3 years (s 552H(1)(a) Criminal Code); and no application was made by the solicitor under s 533D(2). The submission shows a lack of understanding of the procedural provisions in this part of the Code. The maximum penalty was 14 years, and clearly his Honour was satisfied that Mr Ross could be punished adequately summarily.
- [41]His Honour referred briefly to the references, and to counselling. There is no reason to doubt he was aware of all that material as the Solicitor took him through it. There was no acceptable evidence to suggest that Mr Ross was suffering from a mental illness at the time that might have reduced his moral culpability. As I have noted, no report was provided from his General Practitioner, and there was no “medico-legal” report from Dr Cadzow or any evidence that Mr Ross had even seen him. There is no merit in this ground.
An analysis of the cases
- [42]It is convenient to start with the ground set out above in relation to R v Terare. I agree with Mr Stark that it is difficult to understand what this means. The expansion of this ground at [21] – [24] of the outline does not really assist. The outline refers back on a number of occasions to the Solicitor’s submission below at 1 – 11 paragraph [38] of the reasons which seems to be dealing with para [38] of President McMurdo’s judgment in Terare which he submitted was “of most importance”.
- [43]In that case, the respondent, who was a 24 year old employed man with (3) dependent children, had uncharacteristically become heavily intoxicated after meeting up with a friend after not drinking for at least (2) years. He was located in the early hours of the morning by the female police officer complainant, lying in the middle of the road. She obtained the assistance of an ambulance officer who confirmed he was drunk. He eventually got to his feet, and was behaving like a drunk. He stopped outside a house, saying he lived there, and the police officer then assisted him by using her torch as he was having trouble locating his keys. Without warning, he pulled out his penis and began urinating, and she realised this was probably not his address, and that he was urinating on someone else’s house. She told him to stop. He continued, laughing at the same time. She stepped forward to stop him and grabbed his arm. He turned and shoved her backwards and he then aimed his penis in her direction and urinated over her shoes and the bottom of her pants. He was laughing and dancing around. She moved backwards, but he continued forward, still urinating on her shoes and pants. He pleaded guilty at an early stage. Unlike this case, there was no evidence that the police officer suffered any trauma as a result of the assault. At first instance, the Magistrate imposed a wholly suspended 3 month term of imprisonment, which was confirmed by Judge Durward SC on appeal. This was then analogous to an appeal by the Attorney-General against inadequacy of sentence.
- [44]The Court held that Judge Durward SC was right to express doubt as to whether the respondent deliberately urinated on the police officer. As the President noted at [31] – [32] of her reasons, the respondent was obviously “hopelessly drunk”, to use Judge Durward’s words, and his complete lack of memory may be true. As she noted, there is no evidence that in his drunken state, the respondent had registered that he was urinating on a police officer.
- [45]In relying on [38] of her Honour’s reasons, the Solicitor did not refer to paragraph [39] which must be read with paragraph [38]:
“[38] Unquestionably, deterrence, both specific and general, was an important sentencing consideration. But to record a conviction and impose a period of imprisonment, albeit fully suspended, was a salutary penalty for someone like the respondent. He was relatively youthful and of otherwise good character, without as much as a previous traffic infringement. He was in employment and in a steady relationship. He was supporting his young, dependent family. He was usually a non-drinker who foolishly allowed himself to become grossly intoxicated and this was the cause of his abhorrent behaviour. He pleaded guilty at an early time and was remorseful. The penalty imposed, together with the real fear that he could have been sentenced to actual imprisonment and the knowledge that any lapse over the ensuing 12 months would likely result in imprisonment, was sufficiently severe to be a salutary deterrent to him and to others like him.
[39] The sentences in the cases to which this Court has been referred as comparable demonstrate that, even before the maximum penalty was doubled, without significant mitigating circumstances, the respondent may well have been sentenced to actual imprisonment. The one comparable sentence following the increased maximum penalty to which this Court was referred, Koolatah, 38 is also consistent with the imposition of a custodial sentence for an offence of this kind where the offender is a mature man without the mitigating circumstances applicable in this case.”
- [46]At [41] her Honour helpfully summarised the facts in Murray:
“This conclusion is consistent with the recent and relevant decision of this Court in R v Murray. Murray pleaded guilty to assaulting a police officer under s 340 with the circumstance of aggravation that she spat on him. She and others were yelling and swearing in the front yard of a house at Warwick at 2.00 am. She was intoxicated, highly agitated and verbally abused the police who warned her about her behaviour. When they detained her on a different matter, she attempted to pull away, but they handcuffed and put her in the police car. She hit the car windows with her handcuffs. At the watch house she verbally abused the police. When the complainant police officer tried to manoeuvre her into a seat, she spat saliva into his face, hitting his eyes and mouth. The complainant had two negative HIV tests and required a further test. His fear of contracting a disease put him under considerable stress. Murray was 19 years old with a one year old child. She had a prior criminal history for public nuisance offences. The offence against s 340 occurred at her de facto mother-in-law's house after the applicant became upset and intoxicated during a domestic dispute. She did not have any diseases. She wrote a letter of apology to the complainant acknowledging that her behaviour was disgusting and inexcusable and asking forgiveness. She pleaded guilty at the first opportunity.”
- [47]The “prior criminal history for public nuisance offences”, is a reference back to the original decision in which it was noted that the 19 year old applicant had entries in her Children’s Court history where she was reprimanded with no convictions recorded. She was an indigenous person, with a one year old baby, “who had grown up without the opportunities that many in the community take for granted”. In that case the complainant police officer had elected not to provide a victim impact statement, but was still undergoing disease testing which was causing him a lot of distress.
- [48]In Murray, after analysing a number of cases, and referring to the effect of the maximum penalty increase, the Court reduced the 15 months sentence with a parole release date at 5 months, imposed in the first instance, to one of 9 months with a parole release date on date of delivery of reasons, so after serving approximately 2 ½ months.
- [49]In Murray, Fraser JA (for the Court), by reference to R v Brown [2013] QCA 185, helpfully summarised the relevant cases (involving offences prior to the amendment) which were “only the decisions in which the penalty was wholly or at least very substantially attributable to spitting at a police officer”, which included a number of the decisions placed before his Honour:
“[18] Of the other cases referred to at first instance, Laskus involved a 19 year old applicant without prior convictions. She had attended a police station in the hope of retrieving some confiscated money and in conversation with a police officer who rejected her arguments, lost control and spat at him. The saliva hit the officer’s mouth, nose and eyes. The applicant, who was in the early stages of pregnancy, entered an early plea of guilty. The sentence imposed, of four months imprisonment suspended after two months, with an operational period of 12 months, was upheld on appeal. The issue on the application for leave to appeal against sentence was whether she should have been required to undergo any actual period of custody. This court said that there was no identifiable error in the magistrate’s approach; he had given proper consideration to the possibility of imposing a non-custodial sentence. As counsel for the respondent here observed, Laskus is of limited usefulness as a comparable authority because it pre-dated an amendment to the Criminal Code in 1997 to increase the maximum penalty for serious assault from three years to seven years imprisonment.
[19] Reuben involved a biting of a police officer rather than a spitting. The applicant there was 27 years old, in a stable relationship, with what was described as a reasonable work history. He had a relevant criminal history in that he had previously been convicted of assault and assault occasioning bodily harm as well as a breach of a domestic violence order. The offence was committed on Palm Island. It occurred, as the present one did, in the context of a domestic disturbance while the applicant was affected by alcohol. He had been throwing rocks through a window, resulting in wilful damage charges. He engaged in a struggle with the police officers who attended, in the course of which he bit one on the knee, without breaking the skin.
[20] Davies JA observed that although the biting carried with it a risk of disease, there were distinctions to be drawn between that offence and spitting, which was often premeditated, had a degrading aspect to it and showed contempt for the authority of the police. The sentence imposed on Reuben at first instance, of eight months imprisonment, suspended after three months with an operational period of two years, was set aside on appeal, with a sentence of three months, wholly suspended, substituted. (In the later case of Juric, the court described the substituted sentence as “towards the lower end of the appropriate range”.)
[21] In R v Hamilton, the applicant sought leave to appeal against a sentence of nine months imprisonment, suspended after three months, with an operational period of 12 months, imposed on his plea of guilty to two counts of assaulting a police officer. The offences arose out of an altercation outside a hotel. In an attempt to prevent his younger brother’s arrest, the applicant had charged at police, swinging punches and hitting an officer in the head and upper torso. As he was being placed into a police van, he spat saliva into another officer’s open eyes and mouth. That officer had to undertake blood testing, but contracted no disease. The applicant had some minor criminal history which included a charge of obstructing police in circumstances similar to those involving the offences for which he had been sentenced.”
- [50]When one has regard to the analysis in these cases, and to what McMurdo P wrote at [39] of Terare, it is obvious that the sentence imposed here, although severe, was within the permissible range, and no error can be inferred.
- [51]Mr Ross complained that his Honour erred by not differentiating between the offending in the authorities (described as “aggravated”) and the offending of Mr Ross. A Magistrate is not required to examine and dissect each and every authority placed before him or her. That is a task we thankfully leave to the Court of Appeal. What the submission overlooks, is that the sentencer is obliged by law, to focus not only on the circumstances of the offence, but also the other relevant factors that arise under s 9(2) and (3) of the Penalties and Sentences Act 1992, in order to achieve a punishment that is just in all the circumstances. In my opinion, his Honour has done just that in this case.
- [52]In his submission, Mr Ross complains that his Honour impermissibly placed too much weight on the submissions of the prosecutor that he too had been a victim of an assault. This is not borne out by his Honour’s decision, nor can it be inferred from anything else in the proceedings before him. His Honour rightly focussed on the significant adverse effect on the police officer. The offending was aggravated by the fact that it was deliberate, without warning, and in a public place where other people were present, and directed at a police officer who was simply trying to assist Mr Ross.
- [53]It follows that there is no merit in any of the grounds of appeal, nor is the sentence imposed outside the permissible range for offending of this nature, even where the offender has no prior criminal history.
- [54]For these reasons, the appeal is dismissed.