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Commissioner of Police v Watmough[2015] QDC 46

Commissioner of Police v Watmough[2015] QDC 46

DISTRICT COURT OF QUEENSLAND

CITATION:

Commissioner of Police v Watmough [2015] QDC 46

PARTIES:

COMMISSIONER OF POLICE

and

LANA JANET WATMOUGH

(Respondent)

and

THE ATTORNEY-GENERAL (QLD)

(Appellant)

FILE NO/S:

3983/14

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Southport

DELIVERED ON:

2 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2015

JUDGE:

Smith DCJA

ORDER:

  1. The appeal is allowed.
  2. The sentence on the count of serious assault is varied to the extent that the order of two months’ imprisonment is set aside and in lieu thereof the Respondent is sentenced to imprisonment for a period of six months suspended as and from 17 September 2014. The Respondent must not commit another offence punishable by imprisonment within 18 months of that date if she is to avoid being dealt with for the suspended term of imprisonment.
  3. The appeal is otherwise dismissed. 

CATCHWORDS:

CRIMINAL LAW – SENTENCE – APPEAL ALLEGING INADEQUATE PENALTY

Criminal Code 1899 (Q) s 340

Evidence Act 1977 (Q) s 132C

Justices Act 1886 (Q) ss 222, 223, 225.

Penalties and Sentences Act 1992 (Q) s 9

AB v R (1999) 198 CLR 111

Edwards v QPS [2014] QDC 38

Everett v R (1994) 181 CLR 295

House v The King (1936) 55 CLR 499

Lacey v Attorney-General of Queensland (2011) 242 CLR 573

McKinlay v Commissioner of Police [2011] QCA 356.

Perry v Queensland Police Service [2012] QDC 294

Queensland Police Service v Terare [2014] QCA 260

R v Barbaro and Zirilli (2014) 305 ALR 323

R v Bryan; ex parte Attorney-General [2003] QCA 18

R v Dowel; ex parte Attorney-General (Qld) [2013] QCA 8

R v Johnson [2004] QCA 12

R v Jones [2003] QCA 474

R v King (2008) 179 A Crim R 600

R v Levy and Drobny; ex parte Attorney General (Qld) [2014] QCA 205

R v Lude; R v Love [2007] QCA 319

R v McLean (2011) 212 A Crim R 199

R v Middleton; R v Johns (2006) 165 A Crim R 1

R v Wilkins; ex parte A-G (Qld) [2008] QCA 272.

Teelow v Commissioner of Police [2009] 2 Qd R 489

COUNSEL:

Mr T. Fuller QC for the Appellant

Mr J. Allen QC for the Respondent

SOLICITORS:

Director of Public Prosecutions for the Appellant

Legal Aid Office (Qld) for the Respondent

Introduction

  1. [1]
    This is an appeal by the Attorney-General against penalties imposed on the Respondent in the Southport Magistrates Court on 17 September 2014.
  1. [2]
    The appeal is pursuant to s 222 of the Justices Act 1886 (Q) (“the JA”).  Section 222(2)(c) of the JA provides that where a defendant pleads guilty, then a person may only appeal on the sole ground that the fine, penalty, forfeiture or punishment was excessive or inadequate.  Section 222 (2A) of the JA permits the Attorney-General to appeal.
  1. [3]
    Section 225(1) of the JA provides that:

“On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.”

  1. [4]
    In Teelow v Commissioner of Police [2009] 2 Qd R 489 MuirJA held at [4]:

“It is a normal attribute of an appeal by way of rehearing that ‘the powers of the appellate court are exercisable only where the Appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error ...’”

  1. [5]
    Section 223(1) of the JA provides that the appeal is to be by way of rehearing on the evidence given in the proceeding before the justices.
  1. [6]
    Finally in terms of legal principle, in House v The King (1936) 55 CLR 499 it was held at 504:

“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 composing 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 a 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 for doing 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.” 

Charges

  1. [7]
    The Respondent was charged with the following offences:
  1. (a)
    one count of serious assault – person 60 years and over, contrary to s340(1)(g) of the Criminal Code;
  1. (b)
    one count of commit public nuisance, contrary to the provisions of s 6(1) of the Summary Offences Act 2005.
  1. [8]
    With respect to the count of serious assault, the Respondent was convicted and sentenced to two months’ imprisonment wholly suspended for 18 months. She was further ordered to pay compensation in the amount of $500 in default, five days’ imprisonment, and was allowed two months to pay. With respect to the public nuisance offence, she was convicted and sentenced to 12 months’ probation.

Grounds of appeal

  1. [9]
    There are two grounds of appeal. In the notice of appeal it is alleged that the sentences imposed are manifestly inadequate. In oral argument the Appellant submitted that the Magistrate acted in error as he proceeded to sentence on the basis there was no spitting by the Respondent on the complainant and this court should resentence the Respondent (see AB v R (1999) 198 CLR 111 at [130]). This ground was later abandoned.

Circumstances of offences

  1. [10]
    On 25 February 2014 the Respondent and her co-offender were travelling on a Surfside bus from Tweed Heads to Coolangatta just before 4 p.m. There is video footage of the incident which was recorded on the bus’s security cameras and by a passenger on a mobile phone.
  1. [11]
    The Respondent and the co-offender got onto the bus and appeared unsteady on their feet. They then moved to the rear of the bus where they engaged in gregarious behaviour, language and interaction with a young male passenger. The complainant is 77 years of age and was vision-impaired. He entered the bus after the Respondent and the co-offender. He was unsteady on his feet and had a badge on which identified him as vision-impaired. He sat directly behind the driver on the left hand side. The Respondent and her companion moved to the front of the bus. They appeared unsteady on their feet and took a seat on the opposite side of the bus from the complainant. The Respondent looked at something on the floor before returning to her seat. The phone footage commenced at this point in time. The two of them were listening to music on their phones and singing along. Their behaviour was disruptive at this point but was non-threatening.
  1. [12]
    The Respondent and the co-offender got up from their seat to get off the bus. As they did so, they challenged a young girl as to why she was smiling at their behaviour. Another passenger interceded, and a verbal altercation developed between her, the Respondent and the co-offender. They had not become aggressive at this stage but the altercation lasted for about a minute. A passenger then boarded the bus with a pram and negotiated around the Respondent and the co-offender. A passenger asked the Respondent to be careful of the pram. There was then a tirade of abuse from the Respondent and her companion which continued for some time, including telling the woman, “take a look at yourself, you fat fucking mole”, “don’t be a rude cunt”, “shut your fucking mouth”, and finally the Respondent asked the passenger, “do you want to fucking die, cunt?” The complainant had been sitting passively through the event but then chose to challenge their behaviour. He told the Respondent and the co‑offender to “go back to where you come from”.  This resulted in a verbal altercation between the three of them which then progressed to a physical altercation.  The footage at 5128 shows the interaction and the nature of the attack upon him.  The complainant remained seated throughout the initial altercation.  The Respondent approached him and then assaulted him as he sat in his seat.  The co-offender then joined in the assault upon him.  The assault lasted, at this stage, for about 50 seconds.  They both struck out at him and drew back as if to throw punches whilst he was in a confined space and unable to protect himself.  The complainant kicked out in an effort to keep the women away from him, but the co-offender laughed.  The Respondent then lashed out at the complainant again.  The co-offender held her back as others on the bus implored them to leave the complainant alone.  At 5318 the Respondent entered into a verbal altercation with other passengers, challenging them to come and defend the complainant.  The co-offender then spat on the complainant as the pair turned to leave the bus.  The complainant retaliated and spat in their direction, having regained his feet.  This caused the Respondent to turn around, push him, and call him a “fucking cunt”.  The co-offender came back onto the bus and spat at him again.  A child moved to the back of the bus to avoid what was occurring, and a young girl was seen to be crying.  The complainant stood up and gestured towards the two women.  The Respondent removed her glasses and challenged him to a fight.  The two came together, and a further physical altercation took place which was brought to an end by the driver and the male passenger interceding.  The assault upon the complainant took place over about two minutes.  The complainant was clearly affected by what occurred and another passenger rendered him some assistance.  He eventually returned to his seat, having suffered bruising to both of his arms and a cut lip.  His glasses were broken during the altercation.  A statement and photographs were taken by police but not tendered at the sentence.  The Respondent surrendered herself to the police after the footage of the incident was broadcast.  She declined to be interviewed.

Submissions below

  1. [13]
    The videotapes of the assault were played to the court.
  1. [14]
    The Respondent had previously been convicted as follows:
  1. (a)
    Southport Magistrates Court, 15 July 2010, unauthorised dealing with shop goods; unauthorised dealing with shop goods; unauthorised dealing with shop goods – no conviction recorded, $350 fine;
  1. (b)
    Southport Magistrates Court, 5 November 2012, commit public nuisance, no conviction recorded, $200 fine.
  1. [15]
    The Respondent was born on 30 June 1992 and thus at the time of the incident was 21 years of age and 22 at the time of sentence.
  1. [16]
    The prosecutor handed to the learned acting Magistrate a statement and the decision of R v Jones [2003] QCA 474.
  1. [17]
    The Respondent’s solicitors tendered R v King [2008] QCA 1, Perry v Queensland Police Service [2012] QDC 294, Edwards v QPS [2014] QDC 38, and McKinlay v Commissioner of Police [2011] QCA 356.
  1. [18]
    The prosecutor submitted to the Magistrate that this was a senseless, gratuitous violence perpetrated by two young females on a person who was 77 years of age. It was submitted that denunciation and deterrence were relevant (T1-8.45). It was submitted that a term of imprisonment was the appropriate punishment for the offence (T1-9.22).
  1. [19]
    The Respondent through her lawyer tendered a letter of apology to the complainant and to the Magistrate. Further, the following documents on the Respondent’s behalf were tendered:
  1. (a)
    confirmation of enrolment in the Australian Institute of Creative Design;
  1. (b)
    work agreement with Springrake Pty Ltd;
  1. (c)
    job description for food and beverage attendant;
  1. (d)
    letter from Cameron Brown, a psychologist, which noted that the Respondent had engaged in therapy with him since April 2014 with stress and a depressed mood.  The Respondent presented as remorseful and had made great efforts in changing herself;
  1. (e)
    reference from the Respondent’s older brother noting that the Respondent was extremely remorseful and regretful and had changed her life;
  1. (f)
    reference from Mr Vukobratovich;
  1. (g)
    reference from Ben Gearman;
  1. (h)
    reference from Diane McNeish;
  1. (i)
    reference from Jemma Maslen;
  1. (j)
    reference from David Murray;
  1. (k)
    reference from Kyra Togo;
  1. (l)
    reference from Parnia Marshall;
  1. (m)
    reference from Raina Baker and Tom and Belle Ewan;
  1. (n)
    reference from Tania Vukobratovich
  1. (o)
    letter Sally Thompson;
  1. (p)
    academic transcript from Careers Australia;
  1. (q)
    Careers Australia certificates.
  1. (r)
    reference from Rawhide Ranch
  1. [20]
    The defence solicitor submitted that a term of imprisonment was outside of the range, given the comparable decisions and her client’s limited history (T1-1.9). The defence solicitor distinguished the matter of R v Jones (supra).
  1. [21]
    The defence solicitor distinguished the matter of King.
  1. [22]
    The defence relied on the matter of McKinlay where 18 months’ probation was imposed with compensation of $500.  Her submission was that community based orders were within the range (T1-10.45).  It was pointed out that the witness who had the pram took the view that one of the girls accidentally stepped over the pram and never intentionally meant to hurt the baby (T1-12.10).  It was noted that the girls began attacking the man after he told them “go back where you came from” (T1-3.25). 
  1. [23]
    One of the girls told him, “You’re lucky you’re a man,” and he said, “Don’t let that stop you (T1-12.15).”
  1. [24]
    The Respondent came back onto the bus to get her mobile telephone at the end of the footage (T1-12.25). It was pointed out she was still a young person. She moved to Queensland about seven years prior and had completed a diploma in business and business management. She had always been gainfully employed since leaving school. She worked at a local takeaway restaurant and two different other retail stores at the Radisson resort and at the casino. She was a camp counsellor in California in 2012 and 2013.
  1. [25]
    She had previously been in an abusive relationship and had been assaulted during the course of this. She saw a psychologist as a result of that prior to the offending. While she did not give a record of interview, she voluntarily surrendered to the police. It was submitted in light of the history of the matter there was a timely plea of guilty (T1-13.32).
  1. [26]
    The plea of guilty demonstrated remorse. It had been listed for a plea since June 2014. Additionally there had been death threats made against her, and at one stage a Facebook page had been set up telling the girls they should go and kill themselves. She had been subjected to threats on social media (T1-14.10). She had applied for a number of jobs, and on one occasion the interviewer realised who she was and she was told not to finish the interview (T1-14.15). The threats had not only distressed the Respondent but also her family and friends. The references disclosed that the incident was out of character for her (T1-14.30). It was not the Respondent who said to the complainant “go back to Abo land”.
  1. [27]
    She was released on bail in March. Importantly, she had been engaging with a psychologist since that time (T1-14.45).
  1. [28]
    There were no offences in her history for violence (T1-15).
  1. [29]
    The main thrust of the defence submission is the court would impose a community based order because she had been receiving counselling, demonstrated her remorse and a period of probation would assist with her rehabilitation (T1-15.42).
  1. [30]
    It was submitted that the court ought not record a conviction (T1-16.25).
  1. [31]
    The defence solicitor specifically addressed the learned acting Magistrate as to s 9(3) of the Penalties and Sentences Act.

Decision of the Magistrate

  1. [32]
    The learned Magistrate took into account the following factors:
  1. (a)
    the fact there was an early plea of guilty;
  1. (b)
    the fact the offence occurred on public transport with children, a young mother and elderly people present;
  1. (c)
    the victim was humiliated by the assault;
  1. (d)
    it was an attack which was unprovoked upon a defenceless vision impaired man;
  1. (e)
    there was genuine remorse based on action since the offence including a letter of apology and admissions to a counsellor;
  1. (f)
    the Respondent had completed studies and was now employed and had good character references;
  1. (g)
    the Respondent and her family had been embarrassed by her actions and abused by members of the community;
  1. (h)
    the Respondent would benefit from some intervention and rehabilitation;
  1. (i)
    there was little benefit gained from the comparable decisions;
  1. (j)
    the Respondent’s conduct was appalling, unprovoked and solicited, deplorable, foul and disproportionate to any comments the complainant made;
  1. (k)
    the injury suffered by the complainant;
  1. (l)
    the need for personal and general deterrence;
  1. (m)
    section 9(3) the Penalties and Sentences Act;
  1. (n)
    the maximum penalty for the offence;
  1. (o)
    that imprisonment was well within the range of sentence for this kind of offending.

Appellant’s submissions

  1. [33]
    The Appellant submits:
  1. (a)
    the sentence in this case was manifestly inadequate in the sense as identified in House v The King (1936) 55 CLR 499 at 504-505;
  1. (b)
    this was a case where the Respondents and her companion arrested and intimidated a number of members of the public who were going about their business in a public place in the middle of the afternoon.   This was a cowardly and vicious attack on an elderly, infirm and defenceless man.  There was no provocation or rational justification for the assault;
  1. (c)
    in R v Bryan; ex parte Attorney-General [2003] QCA 18 the court signalled a strengthening of the approach to sentencing young offenders who commit acts of violence on innocent members of the community in public places (noting that was an offence involving grievous bodily harm).  Also see R v Johnson [2004] QCA 12;
  1. (d)
    public transport is accessed and relied upon by many particularly the elderly and students to go about their business within the community;
  1. (e)
    the actions of the Respondent and the co offender posed a significant risk to the safety of other passengers and posed a significant distraction to the driver of the moving vehicle;
  1. (f)
    the vulnerabilities of persons over 60 years of age are recognised by the parliament in s 340 of the Code.  He was particularly vulnerable and defenceless;
  1. (g)
    the assault was the culmination of anti-social behaviour directed at others.  It was prolonged including hitting, lashing out with her feet and legs and a challenge to fight;
  1. (h)
    general and personal deterrence were significant factors in the sentencing process.  Too much weight was placed upon the Respondent’s personal circumstances in the sentences which were imposed;
  1. (i)
    the sentence was manifestly inadequate, despite the mitigating features;
  1. (j)
    limited assistance can be obtained from authority but there was  reliance placed upon R v Lude; R v Love [2007] QCA 319 and R v Wilkins; ex parte Attorney-General [2008] QCA 272.
  1. [34]
    In oral argument the Appellant submitted:
  1. (a)
    deterrence was important here considering the complainant was vulnerable;
  1. (b)
    the incident was reasonably prolonged – about 2 minutes;
  1. (c)
    there was spitting by the Respondent and the court below was in error in failing to have regard to this fact. This allegation was abandoned by the appellant (see Exhibit 5)[1];
  1. (d)
    this was an unprovoked attack;
  1. (e)
    the assault was in company;
  1. (f)
    the assault occurred on a public bus;
  1. (g)
    on the other hand there was a plea of guilty, the Respondent handed herself in and she seemed to have engaged in positive rehabilitation;
  1. (h)
    in the circumstances the penalty should have been in the order of 12 to 15 months, although it was conceded in light of the Respondent’s efforts at rehabilitation and her performance of probation that no actual custody was definitely required[2].

Respondent’s submissions

  1. [35]
    The Respondent:
  1. (a)
    submits that the comparable cases relied on by the Appellant do not support a conclusion the sentence is manifestly inadequate.  The defence relies on R v Levy and Drobny; ex parte Attorney General (Qld) [2014] QCA 205 at [32]-[45];
  1. (b)
    distinguishes the cases of Lude and Love and Wilkins as being more serious;
  1. (c)
    submits the reasons of the Court of Appeal in Drobny supports the submission that the sentence is not manifestly inadequate as does the case of QPS v Terare [2014] QCA 260;
  1. (d)
    submits there is nothing in the reasons of the learned acting Magistrate to indicate any error.  Merely because an Appeal Court might have imposed a different result is not in itself sufficient grounds for allowing an appeal against sentence (see Everett v The Queen (1994) 181 CLR 295 at 306-307);
  1. (e)
    ultimately submits the appeal should be dismissed as the sentence imposed is not “unreasonable or plainly unjust”.

Was the sentence manifestly inadequate?

  1. [36]
    In order to answer this question it is necessary to refer to the comparable decisions relied on by the parties.
  1. [37]
    In R v Lude; R v Love [2007] QCA 319 at [2] the Appellants were jointly charged with and pleaded guilty to one count of assault occasioning bodily harm in company.  Each was sentenced originally to 18 months’ imprisonment with a parole release date fixed after six months.  On appeal Mr Lude in effect received nine months’ imprisonment with a parole release date after having served about two months and Mr Love received nine months’ imprisonment having served approximately three months.  In that case there was a concerted attack on the complainant.  The injuries were described as a laceration to the bridge of his nose, deviation of the nasal septum, blackened eyes, a tender neck, lumbar spine and ribs and his chest was bruised.  In a victim impact statement he noted his upper denture plate was broken and there were cuts on the inside of his mouth.  Mr Love was 20 years of age and had a minor criminal history.  Mr Lude was 21 years of age at the time of the offence and did not appear to have any previous convictions. 
  1. [38]
    It was noted at [17]:

“In the present case, while actual imprisonment could not be said to be outside the range of a proper exercise of sentencing discretion, the sentence of 18 months’ imprisonment was, by reference to those authorities, excessive, having regard to the facts that no weapon was used, there was no premeditated aspect to the assault, it was not committed in connection with any criminal purpose and it did not result in any serious injury.  The imposition of six months’ actual custody did not properly recognise the importance of rehabilitation for young offenders such as these, without significant previous conviction.  Nor were the other strong mitigating features by way of the applicant’s co-operation with police and their early pleas of guilty adequately reflected.

[18]Rehabilitation, deterrence and denunciation must all be balanced in a re-exercise of the sentencing discretion. One must not lose sight of the fact that this was an entirely unprovoked attack causing injury to an ordinary, inoffensive person in a public place. There is, I consider, some basis for distinguishing between the two applicants [by reason of the previous convictions following Love].”

  1. [39]
    I consider that Lude and Love is a relatively similar case factually to the instant one although the injuries were a little more severe and the maximum penalty was 10 years.
  1. [40]
    In R v Wilkins; ex parte Attorney General (Qld) [2008] QCA 272 the offender had pleaded guilty to one count of assault occasioning bodily harm, unlawful entry of a vehicle to commit the indictable offence and wilful damage.  He committed the offences during a three year operational period of a suspended two year term of imprisonment for dangerous operation of a vehicle causing grievous bodily harm.  He was ordered to serve 12 months of the remaining 21 months of the suspended sentence with parole fixed as of the date of sentence and in respect of each of counts 1, 2 and 3 he was also sentenced to 12 months’ imprisonment with a parole release date fixed as at the date of sentence.  He was also ordered to pay restitution.
  1. [41]
    The Court of Appeal increased the sentence by ordering him to serve the whole of the suspended sentence. In respect of each of counts 1, 2 and 3 he was ordered to be imprisoned for six months cumulatively upon the activated suspended imprisonment with a parole release date fixed as at the date of sentence namely 2 June 2008. The circumstances of the offending was that the complainant was a part-time taxi driver. At about 3 a.m. in Toowoomba the Respondent lent in through the driver’s window and for some unknown reason he became aggressive yelling at the driver and punched him to the jaw three or four times. The Respondent was restrained but broke free and tried to open the taxi door threatening to kill the taxi driver. He succeeded in opening the door and kicking the complainant three or four times. He then kicked and threw something at the taxi and caused $1,427 worth of damage. The complainant was seen by a doctor at the Toowoomba Hospital and a contusion to the right mandible was noted with treatment by simple analgesia. It was noted at [20]:

“Lude and Love demonstrates that a period of actual imprisonment could well have been imposed in this case.  I agree, however, with the primary judge the better course is to now order immediate release on parole in this case.”

  1. [42]
    It was noted specifically that the Respondent had successfully served two and a-half months’ parole, the injuries were relatively minor and he had been paying restitution.
  1. [43]
    In R v Levy and Drobny; ex parte Attorney General (Qld) [2014] QCA 205 Mr Levy pleaded guilty to one count of causing grievous bodily harm and was originally sentenced to 30 months but ordered to be released on parole immediately.  The appeal by the attorney was allowed and in lieu thereof he was to be released after having served four months’ imprisonment.  Mr Drobny had pleaded guilty to one count of assault occasioning bodily harm whilst in company and was ordered to perform unpaid community service of 150 hours to be performed within 12 months with no conviction recorded.  The Attorney’s appeal in that regard was dismissed.
  1. [44]
    In that case Drobny and Levy at about 5 a.m. entered the 64 year old complainant’s taxi. The complainant had driven about a kilometre when he became aware that neither Drobny nor Levy had money to pay for the taxi fare. Drobny and Levy refused to provide identification and the complainant said he would take them to the police station. Drobny and Levy started swearing and cursing. The taxi stopped, they got out and left the doors open. The complainant got out of the taxi and was talking to them and closing the doors. Drobny then initiated an attack on the complainant. He tackled him, grabbing his legs and caused him to topple over on to the ground. The tackle caused pain and bruising to the complainant’s thighs. Drobny had no further dealings in the assault. Whilst the complainant was on the ground Levy started to punch and kick him a number of times. One kick to the face caused fractures of the cheek. Aside from facial fractures the complainant was later reported to have “seizure like activity” and also had a base of skull fracture. There was bruising of the left eye. He underwent operative procedures. Drobny was 19 years of age at the time of the offence and had no previous convictions. Levy was 19 years and a half at the time of the offence and had no previous convictions. On the night of the offence he and Drobny were discussing Levy’s previous girlfriend who had committed suicide some months before.
  1. [45]
    The Court noted at [39] that Wilkins involved a more serious level of assault than that involving Drobny and, further, Wilkins had a criminal history:

“Wilkins does not support the view that any period of actual custody is required in the case of Drobny.” 

  1. [46]
    The Court at [43] considered the assault in Lude and Love was of much greater severity than that in Wilkins.  Drobny merely tackled the taxi driver to the ground, causing bruising to his legs.    At [46], it was further said:

“This Court has observed recently that the seriousness of an offence can, according to the circumstances outweigh the considerations of youth and rehabilitation, particularly where there is a strong need for deterrence.”

  1. [47]
    With respect to Levy, I have already indicated how the court disposed of his matter. Whilst the maximum penalty faced by Drobny was 10 years imprisonment, I consider the assault in the present case more serious than the assault by Drobny. 
  1. [48]
    In Queensland Police Service v Terare [2014] QCA 260 the Respondent pleaded guilty in the Magistrates Court for serious assault upon a police officer, public nuisance and obstructing police.  He was sentenced to three months’ imprisonment suspended forthwith with an operational period of 12 months.  On the remaining charges he was convicted and fined.  The Respondent had no criminal history and was 24 at the time of his offending.  The Respondent was lying in the middle of the road at about 1.30 a.m. and a female police officer approached him.  He was breathing and appeared uninjured but unresponsive.  He started yelling out.  This was after ambulance officers arrived.  He then pulled out his penis, aimed the penis in the direction of the police officer, urinated over her shoes and the bottom of her pants, and was laughing and dancing around.  He pushed her down two steps, onto the front lawn, but she managed to keep a hold of him, and he was told he was under arrest.  He became angry, shoved her, and broke her hold.  She ducked to avoid a punch, she got hold of his arms, stopped a fist from connecting, secured his arm and walked him to the police vehicle, and he continued to try and hit her so that an ambulance officer had to assist.  He was then taken to the watch-house. 
  1. [49]
    The Court at [20] noted that the maximum penalty was 14 years’ imprisonment.
  1. [50]
    The Court at [34] noted that the legislature had increased the maximum penalty from seven to 14 years imprisonment[3].  It was noted that the police officer was subjected to highly unpleasant and offensive treatment but the Judge and the Magistrate below had apprehended there were significant mitigating features such that a full suspension of the sentence was not manifestly inadequate.  At [35] it was noted:

“The legislature in increasing the maximum penalty clearly intended that sentencing courts should impose significantly heavier penalties in respect of serious assaults committed on police officers acting in the execution of their duty where, as here, the offender applies a bodily fluid to the police officer. … But that does not mean that a sentence of actual imprisonment is inevitable in every case, even where, as here, the maximum penalty has been increased from seven to 14 years imprisonment.

[36]I cannot accept the applicant’s contention that the sentences imposed for offences of this kind should be comparable to those imposed for the offence of grievous bodily harm. The extent of the injuries suffered by a complainant in offences of physical violence is relevant in determining the appropriate sentence.”

  1. [51]
    It was noted at [37] that it was fortunate that the complainant was not apparently physically injured. It was noted that to record a conviction and impose a period of imprisonment, albeit fully suspended, was a salutary penalty for someone who was youthful and of otherwise good character, in employment and in a steady relationship supporting his young, dependent family. The maximum penalty which could have been imposed was three years’ imprisonment.
  1. [52]
    A distinguishing feature between the present case and Terare is that the Respondent here has some previous convictions, and there were no injuries sustained in Terare. I also gather from the facts of Terare there was an absence of deliberation as to the urination. The maximum penalty was higher though. 
  1. [53]
    I note that up until 29 August 2012 the maximum penalty for serious assault upon a police officer was seven years’ imprisonment. The offence provision was contained in the same section as the charge with which I am concerned.
  1. [54]
    It seems to me that when the maximum was seven years’ imprisonment, offenders regularly received sentences in the order of six months’ imprisonment for offences involving assaulting police officers (see R v King (2008) 179 A Crim R 600; R v Mclean (2011) 212 A Crim R 199). I also note that for such offences ordinarily actual imprisonment is required to be served.
  1. [55]
    Finally I refer to R v Middleton; R v Johns (2006) 165 A Crim R 1 where Jerrard JA at [39] after referring to some comparable decisions stated:

“ Those decisions make clear that even for offenders aged 18, this Court will uphold sentences resulting in actual custody for first offenders with no prior convictions who plead guilty to assault occasioning bodily harm, where there are aggravating circumstances. Those can include the motive for the assault, its severity, or the circumstances of being armed and in company. While actual imprisonment is not mandated, it will ordinarily be within the proper exercise of a sentencing discretion.”

  1. [56]
    I note that the learned Magistrate was not referred to many of these comparable cases when he sentenced the Respondent.

Disposition of this case 

  1. [57]
    In reaching a conclusion here I have regard to the principles of sentencing in s 9(1) of the Penalties and Sentences Act. I also primarily have regard to the matters mentioned in s 9(3) of the Act and further to the matters mentioned in s 9(2).
  1. [58]
    In this case, there is no doubt that the assault was vicious and unprovoked by a youthful woman on a vision impaired man on public transport. It lasted for about two minutes, which to my mind on the evidence is a considerable time. In my view, the personal circumstances of the victim and the circumstances of the offence, including the nature and extent of the violence used and disregard for the interests of safety, were highly relevant matters to be considered. General deterrence and denunciation were important features of this matter.
  1. [59]
    In my view the sentence of two months’ imprisonment was manifestly inadequate in the sense it was plainly unreasonable or unjust. I consider a sentence in the order of eight months would have been appropriate at first instance potentially with an actual custodial portion to be served.
  1. [60]
    Of course though I am concerned with an Attorney-General’s appeal here and principles of moderation and double jeopardy are applicable (see Lacey v Attorney-General of Queensland (2011) 242 CLR 573).
  1. [61]
    In my view six months imprisonment should be imposed on the charge of serious assault.
  1. [62]
    The next question is whether any custodial portion should be served taking into account the Lacey principle. 
  1. [63]
    Of course, rehabilitation was also important, as were the personal circumstances of the Respondent. I also have regard to not only the material tendered on her behalf below but also to the material tendered on the appeal. In R v Dowel; ex parte Attorney‑General of Queensland [2013] QCA 8 at [25] the court said:

“On a Crown appeal, the Court is required to have regard to the circumstances existing at the time of hearing the appeal and there is a reluctance to disturb a situation in which a Respondent has availed himself or herself of a non-custodial sentence to gain, or remain in, employment and pursue a life free from crime and criminal influences.”

  1. [64]
    I note that the Respondent has been employed since the sentence; continues to report to the probation office; has paid the compensation ordered; and continues to see a psychologist. I note there have been death and rape threats against her. She has been depressed as a result of this. The report from Mr Cameron states the Respondent has made good progress. A psychiatrist notes that she has an adjustment disorder and substance abuse disorder in remission. She had been a drug user but no longer takes such substances.
  1. [65]
    Bearing in mind the plea of guilty and having handed herself in; the youthful age of the offender; her genuine remorse; her limited criminal history; her employment; the favourable character references; her psychological situation; and her continued rehabilitation, I consider the sentence should remain wholly suspended for 18 months.
  1. [66]
    The orders will be as follows:
  1. The appeal is allowed.
  2. The sentence on the count of serious assault is varied to the extent that the order of two months’ imprisonment is set aside and in lieu thereof the Respondent is sentenced to imprisonment for a period of six months suspended as from 17 September 2014. The Respondent must not commit another offence punishable by imprisonment within 18 months of that date if she is to avoid being dealt with for the suspended term of imprisonment.
  3. The appeal is otherwise dismissed.

Footnotes

[1]  It seems the prosecution accepted that no actual spittle could be seen come from the Respondent’s mouth and thus it considered the allegation could not be proved to the standard required under s 132C of the Evidence Act 1977 (Q).

[2]  I do not take into account the submission as to the range- see R v Barbaro and Zirilli (2014) 305 ALR 323

[3] Act No 19 of 2012 Criminal Law Amendment Act

Close

Editorial Notes

  • Published Case Name:

    Commissioner of Police v Watmough

  • Shortened Case Name:

    Commissioner of Police v Watmough

  • MNC:

    [2015] QDC 46

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    02 Mar 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
AB v The Queen (1999) 198 CLR 111
2 citations
Jump To
Cite 1 - (1999) 198 CLR 111
Cite 2 - (1999) 198 CLR 111
Edwards v Queensland Police Service [2014] QDC 38
2 citations
Jump To
Cite 1 - [2014] QDC 38
Cite 2 - [2014] QDC 38
Everett v The Queen (1994) 181 CLR 295
2 citations
Jump To
Cite 1 - (1994) 181 CLR 295
Cite 2 - (1994) 181 CLR 295
House v The King (1936) 55 CLR 499
3 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Cite 3 - (1936) 55 CLR 499
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
2 citations
Jump To
Cite 1 - (2011) 242 CLR 573
Cite 2 - (2011) 242 CLR 573
McKinlay v Commissioner of Police [2011] QCA 356
2 citations
Jump To
Cite 1 - [2011] QCA 356
Cite 2 - [2011] QCA 356
Perry v Queensland Police Service [2012] QDC 294
2 citations
Jump To
Cite 1 - [2012] QDC 294
Cite 2 - [2012] QDC 294
Queensland Police Service v Terare [2014] QCA 260
6 citations
Jump To
Cite 1 - [2014] QCA 260
Cite 2 - [2014] QCA 260
Cite 3 - [2014] QCA 260
Cite 4 - [2014] QCA 260
Cite 5 - [2014] QCA 260
Cite 6 - [2014] QCA 260
R v Barbaro and Zirilli (2014) 305 ALR 323
2 citations
Jump To
Cite 1 - (2014) 305 ALR 323
Cite 2 - (2014) 305 ALR 323
R v Bryan; ex parte Attorney-General [2003] QCA 18
2 citations
Jump To
Cite 1 - [2003] QCA 18
Cite 2 - [2003] QCA 18
R v Dowel; ex parte Attorney-General [2013] QCA 8
2 citations
Jump To
Cite 1 - [2013] QCA 8
Cite 2 - [2013] QCA 8
R v Johnston [2004] QCA 12
2 citations
Jump To
Cite 1 - [2004] QCA 12
Cite 2 - [2004] QCA 12
R v Jones [2003] QCA 474
2 citations
Jump To
Cite 1 - [2003] QCA 474
Cite 2 - [2003] QCA 474
R v King [2008] QCA 1
1 citation
Jump To
Cite 1 - [2008] QCA 1
R v King (2008) 179 A Crim R 600
2 citations
Jump To
Cite 1 - (2008) 179 A Crim R 600
Cite 2 - (2008) 179 A Crim R 600
R v Levy & Drobny; ex parte Attorney-General [2014] QCA 205
3 citations
Jump To
Cite 1 - [2014] QCA 205
Cite 2 - [2014] QCA 205
Cite 3 - [2014] QCA 205
R v Lude [2007] QCA 319
4 citations
Jump To
Cite 1 - [2007] QCA 319
Cite 2 - [2007] QCA 319
Cite 3 - [2007] QCA 319
Cite 4 - [2007] QCA 319
R v McLean (2011) 212 A Crim R 199
2 citations
Jump To
Cite 1 - (2011) 212 A Crim R 199
Cite 2 - (2011) 212 A Crim R 199
R v Middleton and Johns (2006) 165 A Crim R 1
2 citations
Jump To
Cite 1 - (2006) 165 A Crim R 1
Cite 2 - (2006) 165 A Crim R 1
R v Wilkins; ex parte Attorney-General [2008] QCA 272
4 citations
Jump To
Cite 1 - [2008] QCA 272
Cite 2 - [2008] QCA 272
Cite 3 - [2008] QCA 272
Cite 4 - [2008] QCA 272
Teelow v Commissioner of Police[2009] 2 Qd R 489; [2009] QCA 84
2 citations
Jump To
Cite 1 - [2009] 2 Qd R 489
Cite 2 - [2009] 2 Qd R 489

Cases Citing

Case NameFull CitationFrequency
Steward v Mac Plant Pty Ltd [2018] QDC 202 citations
Young v White [2016] QDC 1591 citation
1

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