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- Unreported Judgment
Murphy v Martin QDC 86
DISTRICT COURT OF QUEENSLAND
Murphy v Martin  QDC 86
Jordan Michael Murphy
Aaron James Dean Martin
Appeal under section 222 of the Justices Act
Ipswich Magistrates Court
04 May 2018 (Ex Tempore)
04 May 2018
Horneman-Wren SC DCJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – where respondent convicted on own plea of guilty of one charge of serious assault of a police officer and one charge of obstructing police – where respondent released on immediate parole – where appellant contends that sentence imposed with respect to the serious assault charge was manifestly inadequate – whether the learned magistrate erred in the exercise of sentencing discretion.
House v R (1936) 54 CLR 499
R v D’Arrigo; ex parte A-G (Qld)  QCA 399
Penalties and Sentences Act 1992 (Qld), s 9
A Fritz (Office of the Director of Public Prosecutions) for the Appellant
No appearance for the Respondent
- On 22 September 2017, the respondent, Aaron James Dean Martin, was convicted on his own guilty pleas in the Ipswich Magistrates Court of one charge of a serious assault of a police officer and one charge of obstructing a police officer. For the former, he was sentenced to 14 months imprisonment and ordered to pay $1000 in compensation. On the latter, he was sentenced to two months imprisonment. He was immediately released on parole. The appellant appeals against the respondent’s sentence on the serious assault charge on the ground that it is manifestly inadequate.
Circumstances of offending
- The offence was committed on 24 August 2016 at about 1 pm. Having attended an address at Raceview, the defendant became violent and aggressive. Police were called to attend. One of the officers was the appellant. Upon arrival, the officers found a male occupant of the house restraining the respondent on the floor in the hallway of the house. Due to the respondent’s continuing aggression and abuse, the officers handcuffed him. He was told on a number of occasions to calm down. He did not. It was at that point that he was arrested on the charge of obstructing police. The respondent, shortly afterwards, spat bloody saliva at the appellant, which landed on his face and eyes. The respondent was then arrested on the charge of serious assault.
- Occupants of the house informed police that the respondent had consumed both alcohol and drugs before the incident occurred. The respondent was taken by police to the Princess Alexandra Hospital where he received medical treatment. He was subsequently taken to the watch-house. A recording of the incident captured on a camera worn by one of the police officers was played to the court below and to this court on the appeal. It graphically shows the events which transpired.
- A victim impact statement was tendered in the proceedings below, in which the appellant stated that he was shocked when the respondent turned and spat in his face, even though the respondent had earlier been seen spitting blood and saliva on the walls. Having viewed the footage myself, it is also apparent that the respondent spat saliva and blood on the floor on a couple of occasions. On one such occasion, a police officer is heard to be saying, “He’s vomiting”.
- The appellant said that he immediately felt disgusted and could not believe that someone would intentionally spit on him. The appellant was taken to a hospital, at which an initial blood sample was taken from him. A doctor informed him that he would need to have further blood tests at later dates and that, although it was unlikely that he had contracted any illness as a result of the incident, it was possible that he had and he needed to be conscious of that, particularly in relation to being intimate with his wife. He was informed that a condom should be used when they were intimate. This, quite understandably, caused him to feel anxious. The incident caused his wife to be distressed and angry. The appellant’s wife was breastfeeding at the time, so they avoided physical intimacy for a couple of months, placing emotional strain on their relationship.
- The appellant continued to worry and experience distress for the five to six months during which he underwent tests to determine whether or not he had contracted any disease before it was established that he had not.
The appellant’s submissions and consideration of them
- The appellant identifies no specific error in the learned Magistrate’s reasons. Rather, he identifies a number of matters which he submits, taken together, demonstrate error in the exercise of the sentencing discretion of the last kind described in House v R (1936) 55 CLR 499 at 505. That is that:
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.
- The appellant acknowledges that there were matters appropriate to be taken into account in mitigation of the sentence but, as his essential submission, contends that those matters of mitigation:
“must have been attributed more weight by the learned Magistrate than they deserved or that, for some other reason, the sentencing Magistrate imposed a sentence that was manifestly inadequate in that it did not require the respondent to serve an actual period of incarceration.”
- Expressed in this way, the essential submission of the appellant must be that, in all the circumstances of this case, the only sentence which the Magistrate could impose in a lawful and proper exercise of her Honour’s discretion, was one of imprisonment, with actual time to be served. Understood in this way, the extent of the difficulty faced by the appellant is apparent.
- The appellant submits that the learned Magistrate considered the hardship that would be caused to others if actual imprisonment were to be imposed and submits that such an outcome is not at all uncommon. Citing authority, the appellant submits that to attribute too much weight to this factor, in the ordinary course, would result in courts routinely discounting sentences where not justified and that the courts would shirk their duty if they gave undue weight to personal or sentimental factors. The appellant refers to the observations of the Chief Justice in R v D’Arrigo; ex parte Attorney-General of Queensland  QCA 399, that this consideration may only be brought into account in exceptional or extreme circumstances.
- As matters of principle, those submissions may readily be accepted; however, I am not at all persuaded that the learned Magistrate gave too much or undue weight to that issue, or that it in some way overwhelmed the sentencing process. The only comment in her Honour’s sentencing remarks which could be thought to touch upon what effect a custodial sentence may have on others was the observation that “I note that you do care for the children in a shared parenting arrangement with the mother of those children.”
- The learned Magistrate did not expressly say that she was taking into account the effect which actual custody may have on those other persons. It may, however, be inferred that she did so, because it was the first matter to which her Honour referred after identifying the question which she had to consider as not being whether a jail term ought be imposed, which her Honour had already stated was clearly the case, but whether the appellant would have to serve actual time in custody.
- However, in noting that the appellant shared those responsibilities for his children, her Honour did not dwell on that issue. Further, whilst it was the first matter noted by the learned Magistrate, the reasons do no suggest that this issue was given primacy amongst the many other issues noted by her Honour.
- In my judgment, the reference to this issue in the learned magistrate’s reasons stands in stark contrast to the sentence under appeal in R v D’Arrigo, in which the sentencing judge had made it clear that the sole reason for wholly suspending a three and a-half year term of imprisonment imposed for dangerous operation of a motor vehicle causing death was to allow the respondent to continue to discharge his role as sole carer of his then 16 month old daughter.
- The appellant next refers to the learned Magistrate having noted that the respondent was in employment at the time of sentence. Whilst acknowledging that a term of actual imprisonment would have interfered with the respondent’s continued employment, the appellant submits that there was no evidence that imprisonment would have resulted in the permanent loss of his employment. Two things may be said in respect of that submission. First, given that the only evidence before her Honour was that the respondent, who was a 36 year old Aboriginal man, had worked mainly as a labourer and that his current employment was as a labourer and concreter, it was quite open for her Honour to infer that incarceration would result in the permanent loss of that employment. This is especially so when it is considered that the prosecutor had sought a head sentence of 15 months, with five months to be actually served.
- Secondly, the respondent’s current employment, and his potential loss of it, were relevant to his prospects of rehabilitation. The purposes of the sentence imposed upon the respondent included, under section 9(1)(b) of the Penalties and Sentences Act 1992, providing conditions in the court’s order that the court considered will help the offender to be rehabilitated. A condition that he be admitted to immediate parole is a condition directed to this legitimate sentencing purpose.
- The appellant next refers to the learned Magistrate having considered that the respondent had been “out of trouble” for a period of two years prior to the offending. He submits that this fact, of itself, was insufficient to be considered as a mitigating factor. He submits that the respondent’s full criminal history should have been taken into consideration. The appellant draws particular attention to the fact that the criminal history extended for five pages, which he describes as being “replete with violence and property offences.”
- The appellant notes, particularly, that the last entry on the history at the time of the respondent’s sentencing for these offences involved him spitting on his partner three times. It was, thus, submitted that the offending was not out of character for the respondent, albeit that it was the first time that he had spat on a police officer.
- Again, a number of points should be made about these submissions. First, the learned Magistrate did give consideration to the whole of the defendant’s five-page criminal history. Her Honour did not restrict her consideration of that history to the absence of offending in the preceding two years. It could only be in the context of a consideration of the history as a whole that her Honour would note that feature. What is more, that this was the context in which the learned Magistrate made reference to his absence of offending in the preceding period, is clear from what her Honour said in her reasons. The relevant two passages are these. At page 3 of the transcript of her reasons, the learned Magistrate said:
I do note your history and I do note, as the prosecutor has pointed out, you have got a fairly significant history now and that that history is of some five pages. As Mr [indistinct] has pointed out, you last appeared before a Court in July of 2014 in respect of offences which occurred on the 14th of October 2013 and also on 31st of January 2014. So at the time of [indistinct] commission of these offences you had been out of trouble for a couple of years.
- Later, at page 4 of the transcript of her reasons, her Honour said:
I do note that you have been out of trouble or out of trouble at the time of commission of these offences for some two years, albeit that your history does disclose some offences of violence, although not regularly or, necessarily, in relation to police officers.
- Those passages make clear that her Honour was aware of, and considered, the respondent’s entire criminal history. Part of that consideration was his lack of offending in the past two years; that was a matter properly considered. Section 9(2)(f) required her Honour to consider, amongst other things, the respondent’s character. His overall criminal history and his more recent lack of offending were relevant to that mandatory consideration of his character.
- Secondly, to describe the respondent’s criminal history as being “replete with violence” is inaccurate. Her Honour correctly observed that the history did disclose some offences of violence, but they were quite limited. In 1996, as a child, he was convicted of obstructing police; but whether it involved any violence is not disclosed. As it was not charged as assaulting police, it would seem unlikely that it did.
- It is true that he had four convictions for breaches of a domestic violence order, but there are no associated charges of violence. The one occasion on which he spat was not charged as an assault. Her Honour’s characterisation of his criminal history was accurate and entirely appropriate.
- I do not accept the further submission that her Honour failed to consider in detail the authorities to which she was referred. Her Honour was dealing with a plea in a busy Magistrates Court. The prosecutor outlined for her Honour the salient features of the cases. There is no reason to conclude that the Magistrate did not consider those matters.
- Her Honour stated that it was clear from those cases that “jail terms are, really, the only penalty that could be imposed.”
- The authorities do not establish that a sentence involving actual imprisonment must arise; they demonstrate that a sentence involving actual imprisonment was within range. Her Honour was acutely aware of that. As I have already said, she identified that issue as the real question before her.
- One person spitting on another is disgraceful and degrading conduct; her Honour was mindful of that. She described it as “humiliating and disgusting”. She said that people who did so demonstrated that they were “not nice” and behaved “quite wrongly, quite abhorrently and in a disgusting manner.” She described the conduct elsewhere in her reasons as “a disgusting and abhorrent act.”
- Her Honour referred to the effects which the events had had on the appellant. Her Honour referred to the footage and said that it was helpful “because you can get something of a feel for what was occurring.”
- It can only be concluded that the learned Magistrate considered fully that this was not just spitting, but a serious assault on a police officer. That was the charge before her Honour.
- While those who commit this abhorrent offence can well expect to serve actual jail time, that outcome is not compelled in all cases. After careful consideration of all relevant matters, in thoughtful and clearly articulate reasons, her Honour concluded that this was such a case in which no actual custodial component was required. While her Honour may well have imposed such a component in a valid exercise of her discretion, that does not render invalid the exercise of her discretion in making the orders which she did.
- The sentence was, in my respectful judgment, entirely within range. The head sentence of 14 months imprisonment sufficiently reflected the seriousness of the offences and served the purposes of general deterrence and community denunciation. No error has been demonstrated.
- The appeal must be dismissed.
- Published Case Name:
Murphy v Martin
- Shortened Case Name:
Murphy v Martin
 QDC 86
04 May 2018