Harris v Queensland Police Service
[2018] QDC 27
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Harris v Queensland Police Service[2018] QDC 27
- Add to List
Harris v Queensland Police Service[2018] QDC 27
Harris v Queensland Police Service[2018] QDC 27
DISTRICT COURT OF QUEENSLAND
CITATION: | Harris v Queensland Police Service [2018] QDC 27 |
PARTIES: | KAI REUEL HARRIS (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | 378 of 2018 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 16 February 2018 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 February 2018 |
JUDGE: | Everson DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – s 222 of the Justices Act 1886 (Qld) – where the appellant was sentenced to nine months imprisonment for spitting on a bus driver – where the appellant was to serve two months in custody – whether a period of actual imprisonment was manifestly excessive R v King [2008] QCA 1 R v Murray [2014] QCA 250 R v Taylor & Napatali; ex parte Attorney-General of Qld [1999] QCA 323 |
COUNSEL: | A S McDougall for the Appellant |
SOLICITORS: | Sciacca & Associates for the Appellant Office of the Director of Public Prosecutions (Qld) for the Respondent |
- [1]This is an appeal pursuant to section 222 of the Justices Act 1886 (Qld).
- [2]On 31 January 2018, the appellant was convicted in the Magistrates Court at Brisbane of, inter alia, the serious assault of a public officer and sentenced to a period of imprisonment of nine months with a parole release date on 31 March 2018 which, as the learned Magistrate noted, is effectively a parole release date after two months.
- [3]The circumstances of the offending were that the appellant attempted to board a bus but did not have the money for the fare. After the complainant refused to allow him on the bus he became angry and as he was leaving the bus he turned and spat on the bus driver. Some spit landed on the face of the bus driver. It is significant, however, that the sentence below proceeded on the basis that although the appellant intended to spit on the bus driver, he did not intend to spit in his face. This is an important distinction, as it is submitted that there was no close quarter confrontation and no risk of communicable disease to the bus driver in the circumstances. This is uncontentious before me and was uncontentious before the Magistrate below.
- [4]The appeal before me has ultimately proceeded solely on the ground that the sentence imposed by the learned Magistrate was manifestly excessive in the circumstances.
- [5]The appellant was 21 years of age at the time he was sentenced, and, as noted by the Magistrate, he had a limited criminal history. At the relevant time this consisted of one entry for assault and obstructing a police officer, which, I am informed, did not relate to any antisocial conduct, per se; two charges of failing to appear in accordance with the undertaking, and two charges of wilful damage. It may, therefore, be characterised as a relatively minor criminal history, albeit one which demonstrated a certain degree of antisocial propensity. The other major mitigating feature of the appellant, in addition to the absence of a risk of transmissible disease to the complainant, was that he had long-term ongoing employment and a favourable reference from his employer. Aggravating features were that there was no apology offered to the complainant and that the plea was a late plea on the day of trial after a trial had previously been adjourned.
- [6]In these circumstances, unsurprisingly, there was also no participation in a formal record of interview by the appellant. Whilst noting that it was not inevitable that a sentence of imprisonment or a sentence involving actual imprisonment should result from a charge such as this, the learned Magistrate, nonetheless, noted that a deterrent sentence was called for. He placed significant emphasis on the Court of Appeal decision of R v Murray [2014] QCA 250 in arriving at the sentence imposed. This is a very useful comparative decision, bearing in mind the recent genesis of the offence the subject of the sentence and the increase in maximum penalty from seven years to 14 years for all offences of this type, and by that I mean offences involving spitting on either police officers or public officers performing their duties. In submitting that the sentence was manifestly excessive, Mr McDougall, who appears on behalf of the appellant, emphasises the extreme aggravating feature of an assault of this type is where it results in the need for disease testing. In Murray, the 19 year old appellant who had a one year old baby when sentenced not only engaged in protracted verbal abuse towards police officers in an intoxicated state, but also spat saliva into the face of a police officer at close range, hitting his eyes and mouth.
- [7]It was necessary for the police officer to undergo disease testing for a very extended period which, unsurprisingly, caused him a lot of stress and concern. Despite the mitigating features of the complainant’s age and her parental responsibilities and the fact that she apologised to the complainant police officer and entered a plea at the earliest opportunity, a head sentence of nine months which saw the complainant serve two months and 24 days in custody before being released following the decision of the Court of Appeal was ultimately the sentence imposed.
- [8]It is submitted that a proper exercise of the sentencing discretion below would have resulted in a sentence of nine months either wholly suspended or with immediate parole. It is submitted that this would reflect the appropriate denunciation of the offending of the appellant in circumstances where he is still a young man with limited criminal history, in long-term employment who has demonstrated remorse and who did not assault the complainant bus driver at close quarters and subject him to a risk of contracting a communicable disease. In weighing this submission I note the comments of Fraser JA in Murray at paragraphs [23]-[25]. I am not prepared to accede to the submission that a requirement that the appellant serve a short period of actual custody was not within range however, I am of the view that as de Jersey CJ noted in R v King [2008] QCA 001:
“In cases like this, it is often the fact of imprisonment rather than the particular duration of the term imposed which secures the necessary deterrence.”[1]
Accordingly requiring the appellant to serve two months in custody was manifestly excessive in the circumstances.
- [9]When one further considers the undesirability of placing youthful offenders in prison, as discussed by the Court of Appeal in R v Taylor & Napatali; ex parte Attorney-General of Qld [1999] QCA 323, an appropriate exercise of the sentencing discretion would in all likelihood have seen the nine-month head sentence result in the appellant receiving immediate parole. Suffice to say, in my view, the appellant has served a sufficient period of imprisonment having been in custody for 17 days.
- [10]I therefore allow the appeal and resentence the appellant to imprisonment for nine months with immediate release on parole.
Footnotes
[1] R v King [2008] QCA 001 at p 5.