Greenwood v Tom[2016] QDC 196

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 19 January 2016 the respondent was convicted on her plea of guilty in the Magistrates Court held in Innisfail, of one charge of serious assault of a public officer and obstruct police on 8 November 2016. The respondent was sentenced to 240 hours of community service with no conviction recorded.

2. [2]
   The appellant now appeals the sentence on the ground that it was manifestly inadequate. At the outset of the hearing, the respondent’s counsel properly conceded that the magistrate erred in law by proceeding on the incorrect maximum penalty, which warranted a re-sentence.

3. [3]
   Both parties provided outlines of argument and made further submissions on the hearing of the appeal which I have considered.

Background

4. [4]
   The respondent was born on 17 May 1994. She was aged 21 years at the time of offending and is now aged 22 years.

5. [5]
   She was the youngest of seven children and was born and raised in Cairns. Her father died in 2003 and her mother died in 2012.

6. [6]
   The respondent graduated from school on completion of grade 12. She has completed a Certificate III in Warehouse Operation and completed a hospitality course in 2013. She worked as a waitress and in housekeeping until the end of 2013. She then moved to Bamaga and worked at the BP service station as a console operator. She was studying a Diploma of Business at the time of sentence. Which she hopes to obtain work for the local authority on her return to Bamaga.

7. [7]
   She has no criminal history.

8. [8]
   At about 3:30 am on 8 November 2015, police officers attended on the respondent who was heavily intoxicated, unable to provide her name, extremely unsteady on her feet and who repeatedly fell onto the road and footpath. The police were concerned for her safety and took her to a diversionary centre. There she passed out and police were unable to wake her. They called for an ambulance.

9. [9]
   When the ambulance officers arrived they woke and spoke to the respondent. She gave her name but became aggressive. Whilst the defendant was seated on the ground she spat from some distance onto the face of one of the ambulance officers. This constitutes the offence of serious assault of a public officer.

10. [10]
    Police then told the respondent that she was under arrest. She immediately began kicking her legs and swinging her arms in an attempt to prevent police form restraining her. This constitutes the offence of obstruct police. Once restrained, the respondent was taken to the Cairns Hospital for observation.

11. [11]
    The respondent has no memory of her offending behaviour. She did not participate in an interview with police. Nevertheless, she accepted the facts and apologised to the complainant on or about 14 December 2015. She entered an early plea of guilty.

12. [12]
    The offending had a significant effect on the victim. He has been left feeling disheartened, guarded and worried about future assaults from drug or alcohol-affected patients. He had blood tests to rule out transmittable diseases, which must be repeated periodically with attendant stress and worry. He has reflected and relived the events. His mood has become angry and irritable. He had required psychological treatment and support.

13. [13]
    On 19 January 2016 the respondent was ordered to perform 240 hours of community service within 12 months with no conviction recorded.

14. [14]
    Since her conviction, the respondent has completed most of her Community Service Order and received relevant support.^[1]  

Grounds of Appeal

15. [15]
    The appellant relies upon five grounds by which to argue that the sentence imposed by the magistrate was manifestly inadequate, namely:

1. The penalty fell outside the permissible range and was too lenient when general deterrence is of paramount consideration;

2. The magistrate gave insufficient weight to personal and general deterrence, community denunciation of the offending, and to the impact on the victim;

3. The magistrate placed too much weight on the distance between the complainant and the respondent at the time of the offence;

4. The magistrate failed to give the parties an opportunity to be heard on the sentence imposed including the recording of a conviction;

5. The magistrate erred in law by proceeding on the basis that the maximum penalty was seven years imprisonment instead of 14 years imprisonment.

Appeal against Sentence

16. [16]
    This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.  A mere difference of opinion about the way in which the sentencing discretion should be exercised is not a sufficient justification for review.  It must be shown that the discretion miscarried.^[2]

17. [17]
    The High Court held in House v The King^[3] that:

"It is not enough that the Judges composing the Appellate Court consider that if they had been in a 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 erroneous 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."

18. [18]
    Further, in R v Jackson [2011] QCA 103, Chesterman JA (with whom Muir JA agreed) said at [25]:

“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 fact or law.”

19. [19]
    Since the magistrate erred in law by proceeding on the incorrect maximum penalty, which constitutes a vitiating error for the purposes of House v The King, it is unnecessary for me to finally determine the other grounds of appeal. 

20. [20]
    Instead, I will turn to consider whether the appellant has shown that it is appropriate to exercise the residual discretion in favour of allowing the appeal and to resentencing the respondent.

Appropriate Sentence

21. [21]
    The sentence must accord with the section 9 of the Penalties and Sentences Act 1992 (Qld) so that it is appropriate punishment in the circumstances; facilitates avenues of rehabilitation; deters similar behaviour by the respondent and others; makes it clear that the community denounces the respondent’s conduct in this offending; and protects the community.  Since the offending involves violence, consideration must be given to section 9(3), including to the risk of physical harm to the community if a custodial sentence is not imposed and the need to protect the community from such risk.

22. [22]
    The appellant relied upon comparative cases which involve sentences that require actual imprisonment between three to nine months. It was submitted that this could be tempered to take into account the respondent’s substantial completion of the Community Service Order. The respondent maintained that community-based orders were within range, or at least, that the circumstances warrant that no actual custody be imposed.

23. [23]
    In R v King [2008] QCA 1, the Court dealt with a 30 year old male applicant who, when aged 29 years, committed a common assault and a serious assault to which he pleaded guilty in the District Court.  After a scuffle with security officers, police were called.  The applicant could not walk without stumbling and was laughing and asking for another drink.  At the time, the applicant was suffering a psychiatric condition described as a "pathological bereavement disorder" following a family tragedy.  He was placed into the rear of the police van and was asked to move further inside to avoid the possibility of injury from the swinging door.  Having been asked several times he eventually said, "You want to know what I think of that idea," and gestured for one of the police officers to approach him. As the police officer did so the applicant spat blood and phlegm onto the complainant's face and into his mouth. There was a struggle, in the course of which the applicant spat over the arm and shirt of the police officer a number of times.  The applicant was taken to the watch-house where he continued to struggle and resist efforts to restrain or control him.  The police officer was not infected but had to endure a six month wait for assurance of the absence of any communicable disease.  For the serious assault he was sentenced to six months imprisonment suspended after three months for an operational period of two years.  In principal judgment, de Jersey CJ (with whom Keane JA and Holmes JA agreed) considered the sentencing approach for serious assault and said at [3]:

“One begins with the proposition that those who treat police officers this way should ordinarily expect to be imprisoned, meaning actual imprisonment.  Police officers carry out duties, which are usually one round and often dangerous.  It is abhorrent that a police officer responsibly going about his or her business be subject to the indignity and risk of being spat upon.  The rick is contemporary society relates obviously to communicable disease.  Related to this indignity is the display of contempt for civil authority, which will often be involved in these incidents.  An appropriate level of deterrence will in such cases usually be secured only through actual imprisonment.”

24. [24]
    Its seems to me that the remarks ought be considered in their factual context as to what His Honour meant by “those who treat police officers this way”. It seems to me that His Honour was referring to the nature and seriousness of the conduct in that case, rather than making a broad statement of principle regardless of the particular circumstances.

25. [25]
    A later case of Queensland Police Service v Terare [2014] QCA 260 involved a situation when a police officer interrupted the defendant while he was urinating in the front yard of a house.  As the defendant turned towards the officer, he urinated on the officer’s shoe.  In that case McMurdo P said:

[35] 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.  As this Court identified in R v CBI, this increase in maximum penalty can be expected to produce a general increase in severity of sentences, rendering earlier cases of limited utility as comparable sentencing decisions. 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.  …

[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.  The Queen v Murray [2014] QCA 250 concerned an attendance by police officers response to a domestic disturbance.  The applicant was one of a number of people yelling and swearing in the front yard.  She was intoxicated and highly agitated.  She verbally abused the complainant police officer and another officer.  After she was warned about her behaviour she was detained in relation to a different matter.  She attempted to pull away from the officers and was handcuffed and put in the back of a police car.  She hit the windows of the car with her handcuffs before being driven to the Warwick watch house.  At the watch house the applicant verbally abused the complainant and another officer who escorted her inside.  When they reached the charging area, the complainant asked the applicant to take a seat.  She refused. The complainant approached the applicant and took hold of her arms to attempt to manoeuvre her into the seat.  The applicant spat saliva into the complainant’s face, hitting his eyes and mouth.  The applicant was then restrained by the complainant and another officer before the complainant left to wash his face.  At first instance the respondent was sentenced to 15 months with parole after 5 months.  The appeal was allowed and the substituted sentence was for 9 months and parole release at the time of reasons.

26. [26]
    I was also referred to the two comparative decisions relied upon at first instance, namely, Ross v Commissioner of Police [2015] QDC 315 and Graham v Commissioner of Police [2015] QDC 103.

27. [27]
    In Ross v Commissioner of Police, a sentence of seven months imprisonment with a parole release date after two months (with two days pre-sentence custody) was dismissed. The serious assault occurred in the emergency department of a hospital and there were two minor drug offences and a Weapons Act offence for which he was sentenced to the two days pre-sentence custody as time served.  The appellant was drunk and acting irrationally.  Police were called to a disturbance at a unit and he was ultimately pepper-sprayed because of his poor behaviour.  He was taken to the emergency department due to his mental state.  A police officer sitting next to the appellant was then spat upon.  The act of spitting was deliberate. The spit landed on the left side of the officer’s face.  Ross was 24 years old with no previous convictions.  The ultimate conclusion reached by Robertson DCJ was that the sentence imposed was severe but within the permissible range.^[4]

28. [28]
    In Graham v Commissioner of Police, the appellant’s appeal against a four month period of imprisonment, suspended after two months for an operational period of two years, was dismissed.  The appellant pleaded guilty to one offence of serious assault.  The decision of Graham is of limited assistance as it was a physical assault on an ambulance officer however the Court discussed the general principles of deterrence which are clearly relevant in cases such as the present.

29. [29]
    The comparative cases, as I apprehend them, do not inhibit the proper exercise of discretion to consider the nature and circumstances of offending. There may well be circumstances when actual imprisonment is warranted, yet other circumstances involving low end offending when community-based orders would be just and appropriate. But this is not such a case.

30. [30]
    It seems to me that the circumstances of this case warrant a term of imprisonment in the order of six months and a short period of actual imprisonment is open. However, I accept that a sentence without actual imprisonment would be within range having regard to the nature and circumstances of the respondent’s offending, her youthfulness, good character and the absence of any criminal history. She was roused from an intoxicated slumber, and reacted with an irrational and momentary loss of temper. It was spontaneous rather than pre-mediated or intentional malice. Of course, her self-induced intoxicated state is not a mitigating factor.^[5]

31. [31]
    In that event, a conviction would be recorded.

32. [32]
    However, that does not dispose of the appeal in the circumstances of this case where the respondent has largely completed the Community Service Order.

Residual Discretion

33. [33]
    There is a feature present in this case which invokes consideration of the residual discretion to intervene. Consideration ought be given to the effect of gaoling the respondent who is not in custody, is in substantial compliance with the imposed community-based order and is practically rehabilitated.

34. [34]
    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.”

35. [35]
    More recently, the issue was considered in R v Hopper, ex-parte Attorney-General [2015] 2 Qd R 56 where Fraser J (with whom Boddice J agreed) said:^[6]

“[37] In DPP (Cth) v Gregory the Victorian Court of Appeal referred to the residual discretion to decline to return to custody a person who was granted liberty at first instance:

“This Court has always been hesitant to return to custody someone who has already been granted their liberty. That hesitation is founded upon a number of principles. Amongst other things, returning an offender to custody can damage public confidence in the justice system, and interrupts the process of rehabilitation and reintegration an offender will have begun upon their release. It places such an offender in the period between their release and the hearing and disposition of the Crown’s appeal in a state of limbo and uncertainty which is, generally speaking, and except in unusual or egregious cases, inimical to the proper administration of justice, and which is also inimical to their successful re-integration into the community”.

[38] This Court made similar observations in R v Major; ex parte Attorney-General.

[39] That the Court retains a residual discretion of that character was confirmed by the High Court in Munda v Western Australia, in which the majority cited with apparent approval the reference by French CJ, Crennan and Kiefel JJ in Green v The Queen to circumstances which might create injustice if a State appeal against sentence is allowed as including “delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent’s rehabilitation.”

…

[42] The desirability of correcting the sentence on appeal by imposing a relatively short period of actual custody does not justify the resulting interruption of the rehabilitation and reintegration into society upon which this youthful and psychologically vulnerable respondent has substantially embarked. This is an appropriate case in which to exercise the residual discretion to decline to intervene.”

36. [36]
    Boddice J added at [99]:

“Where, as here, a respondent has availed herself of a noncustodial sentence to gain and remain in employment, and pursue a life free from crime and criminal influences, there is a reluctance to disturb that process.”

37. [37]
    In his dissenting judgment, Morrison JA distinguished the case where a defendant is sentenced to imprisonment but has served no actual imprisonment (for example, due to parole release); and the case where the defendant has served a period of actual imprisonment under the sentence.^[7]  Having referred to a number of authorities His Honour said:

“[78]  What the various authorities referred to above establish is that an appeal court will weigh carefully the question of either returning an offender to a state of imprisonment when they have been released for whatever reason, or imposing imprisonment for the first time on an offender who has received a noncustodial sentence, that deliberative process being characterised in the authorities as the court being reluctant or hesitating before making such an order.”

38. [38]
    The respondent has responded well to her original sentence. She has made a concerted and successful effort to comply with her Community Service Order and rehabilitate.^[8]   She has substantially served her punishment on public display within in her small town community.  She had completed in excess of 166.5 hours (the milestone as at 29 July 2016) and has been commended for her politeness, manners and for working well. She had also attended the Alcohol Tobacco and Other Drugs Service and has not re-offended.  She has self-reported on her progress, and has again acknowledged and apologised for her offending to this court.^[9]  Her behaviour and rehabilitative efforts are highly commendable.  I opine that the risk of her reoffending is extremely low.  A resentence would involve a short term of imprisonment wholly or partly suspended after a very short period, which will render the current orders nugatory. 

39. [39]
    It seems to me that despite my view about the appropriate sentence, this is an unusual case where the residual discretion ought be exercised in favour of the status quo. That is, I will not disturb the Community Service Order for 240 hours to be completed within 12 months. I will also not disturb the order to not record a conviction in relation to the offence of obstruct police.

40. [40]
    The remaining issue is whether or not to record a conviction for the serious assault. I have considered the serious nature of the offence of serious assault and the respondent’s age and otherwise good character and I am satisfied that these matters outweigh any impact on her economic or social wellbeing or chances of finding employment.^[10]  In my view, the circumstances and serious nature of the offence warrant that a conviction be recorded in respect of the serious assault on a public officer.

41. [41]
    Of course, the effect of this decision is that the sentence imposed at first instance cannot be used as a relevant comparable decision for the future.^[11] 

Order

42. [42]
    For these reasons, I will allow the appeal to the extent that a conviction will be recorded for the offence of serious assault on a public officer.

Judge Dean P. Morzone QC