Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Character of offence - Assaulting a police officer in the execution of duty - General deterrence looms large in the exercise of the sentencing discretion - Aggravating features.

Judgment Number: [2003] TASSC 77

Orders made on 13 June 2003 quashed and in lieu thereof:

3 A conviction for the crime of assaulting a police officer acting in the due execution of his duty.

4 A sentence of six months' imprisonment to commence on 2 August 2003.

5 A probation order for a period of 18 months following the respondent's release from prison.Serial No 77/2003

1 The respondent was convicted of one count of assaulting a police officer contrary to the Criminal Code, s114. The charge alleged that on 10 November 2001, the respondent assaulted Detective Constable Berry, a police officer acting in the due execution of his duty, "by choking him with his tie, punching and kicking his head and by biting his ear".

2 Also charged on the same indictment with assaulting Detective Constable Berry was the respondent's mother, Gail Maree Cameron. The particulars to that count allege that Ms Cameron assaulted Detective Constable Berry "by choking him with his tie and by kicking him in the face".

3 Both the respondent and his mother were found guilty. With respect to the respondent, the learned sentencing judge made the following orders of sentence:

* a term of imprisonment for six months to commence as from 22 May 2003;

* the operation of that sentence to be suspended from 14 June 2003 on the following conditions:

(a) the respondent commit no crime or offence involving violence to the person or property or any offence involving disturbance of the peace for a period of three years;

(b) for a period of 15 months following his release from prison, the respondent:

(i) submit to the supervision of a probation officer;

(ii) attend such education and other programs as directed by a probation officer;

(iii) undertake assessment and treatment for alcohol or drug dependency as directed by a probation officer;

(iv) submit to testing for alcohol or drug use as directed by a probation officer; and

(v) submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.

4 The Crown has appealed against the whole of that sentence. The first ground of appeal alleges that the sentence was manifestly inadequate and the second, which is really a particular of the first ground, alleges that "the suspension of the majority of the sentence failed to place sufficient weight upon the gravity of the offence and the need to impose a sentence to act as a deterrent". Ground 3 of the notice of appeal was abandoned.

5 The following account is taken substantially from the written submissions filed on behalf of the Crown in support of the appeal. Ms Baumeler, who appeared as counsel for the respondent, agreed that in this respect, the submissions were correct.

6 About 3am on 10 November, Detective Constable Berry was on duty and driving a police vehicle along Liverpool Street. With him were Constables Bone and Burgess. Detective Constable Berry saw the accused, his co-accused and a young female involved in a disturbance outside a food outlet. Detective Berry stopped his car, reversed it, and alighted. He told the respondent that he was a police officer and approached him with the intention of arresting him for disturbing the peace by fighting. The respondent moved away and went towards Harrington Street. He was followed by Detective Berry and Constable Burgess. Detective Berry reached the respondent, and arrested him. Thereupon the respondent became abusive, ripped off his T-shirt and threw it to the ground. Detective Berry took hold of one of the respondent's arms and Constable Burgess took hold of the other and they began to walk him back to the police vehicle. The respondent was perspiring freely and struggling so it was difficult for the two police officers to maintain their grip on him. At one stage, both were unable to hold him. Constable Bone radioed for assistance. Detective Berry and Constable Burgess managed to regain their grip on the respondent and move towards the police car. At that stage, the co-accused ran towards the three men and grabbed Detective Berry by his tie and pulled it down. This caused all three men to lose their balance and fall to the footpath. The pressure on Detective Berry's tie was such that he began to have difficulty breathing. The respondent then assaulted Detective Berry by punching him in the abdomen. He, too, then seized hold of Detective Berry's tie and it was pulled so hard that Detective Berry momentarily lost consciousness. Constable Burgess tried to prevent the respondent and the co-accused from choking Detective Berry with his tie, and while he was doing this, the co-accused was kicking out with her feet. One of these kicks connected with Detective Berry's chin causing him to be dazed. Shortly after being kicked in the chin, Detective Berry managed to rise to his knees but was then knocked over and kicked to the back of the head by the respondent. This caused him to lose consciousness for a short period of time. According to Detective Berry's evidence, his next recall was being held in a "choker hold" around his neck from behind, with fingers being pressed into the area of his left carotid artery. Again there followed a brief period of unconsciousness. The next thing that Detective Berry could recall was being bitten on the top of his left ear.

7 Other officers arrived and eventually the respondent and the co-accused were overcome and taken to the police station. In a dazed condition, Detective Berry was dragged across the footpath and propped up against the front of one of the shops until he could be taken to hospital for treatment.

8 Fortunately, it appears that the victim of the respondent's assault suffered no long term effects, either mentally or physically in relation to the incident, but it did have a considerable psychological impact on his companion, Constable Burgess.

9 An assault upon a police officer in the due execution of his or her duty, is a very serious crime. The courts have always regarded assaults on police officers in the due execution of their duty as a particularly serious form of assault. In Lahey v Edwards [1967] Tas SR (NC 13) 266, unreported 46/1967, Burbury CJ at 3, referred to what he said in an oral judgment in O'Donald v Dakin viz:

"... it is of course the duty of the court to vindicate the authority of the police by imposing substantial punishment for the offences of resisting arrest or assaulting a police officer, and ordinarily nothing less than a gaol sentence would be appropriate to vindicate the police's authority."

10 In South Australia, Walters J took the same view in Miller v Huffa (1980) 24 SASR 595, at 598 when he said:

"For my part, I wish only to add that incidents of mindless assaults on the police seem to be all too common. Persons who attack police officers in the execution of their duty cannot ordinarily expect leniency, save in a case where the circumstances of mitigation are wholly exceptional. Where police are trying to do their duty of maintaining public order, persons who deliberately assault them in order to impede them in performing their work must ordinarily expect an immediate custodial sentence."

11 In New South Wales, Newman J said in Stone v R (1995) 84 A Crim R 218 at 225:

"The second observation I would make concerns general deterrence. Here it seems to me that it is the matter of general deterrence which leads to the requirement that a custodial sentence be imposed in this case. The courts have a duty to make it clear to the community, and in this case in particular the local community at Walgett, that to use violence to interfere with the police in the discharge of their duties will lead to great retribution."

12 Of course, as Burbury CJ made clear in Lahey v Edwards, there is no rule that, absent special circumstances, a sentence of imprisonment ought to be imposed in every case of an assault on a police officer. Every case has to be considered in the light of all the relevant circumstances. However, the remarks to which we have referred draw attention to the general proposition that crimes of this kind are viewed very seriously. The Court of Criminal Appeal (NSW) in R v Edigarov [2001] NSWCCA 436 said:

"Next, in relation to the 1999 matters, it has also been made abundantly clear by this Court that offences involving the assault of police officers, in the execution of their duty, are to be regarded as serious offences requiring a significant element of deterrence (see R v Stone (1996) 84 A Crim R 218; Myers NSWCCA 13 February 1990, and Nasif NSWCCA 10 March 1995.)"

13 The point is that general deterrence weighs heavily in the sentencing process. It must be made clear to those who challenge the authority of police officers by assaulting them whilst acting in the due execution of their duty, that the community will uphold that authority by the imposition of condign punishment.

14 The circumstances surrounding the commission of this crime were particularly serious:

* It took place in a public street near the central business district of Hobart in plain view of any member of the public who happened to have been in the area at the time (Derrico v McKenna 39/1980).

* Although not premeditated, it was prolonged in the sense that the respondent persisted with his violence in the face of resistance, not only from his victim, but also from his fellow officers.

* The violence was perpetrated in conjunction with violence inflicted by the co-accused.

* The violence was very severe and caused the victim to lose consciousness on more than one occasion.

* The fighting and struggling after being pulled to the ground was a public indignity and an affront to all the police officers who were involved.

* There was no excuse for the assault. It was clear from his interview with the police some hours later that morning, that the respondent had consumed so much alcohol that he had no recollection of the relevant events.

15 At the time he committed the crime that is the subject of this appeal, the respondent was 10 days short of his 22nd birthday. He had a number of prior convictions which clearly disclosed a tendency for excessive consumption of liquor and violence. They were summarised by the learned sentencing judge as follows:

16 In addition, the respondent was convicted of drink driving offences in 2002.

17 All these convictions were imposed over a period of 4½ years between February 1998 and July 2002. All those prior matters were dealt with by orders short of imprisonment. Ms Baumeler drew attention to this in the course of submitting that a sentence short of an immediate custodial one was appropriate in the circumstances of this case. In our view, that submission has no weight. Having regard to the respondent's record, two observations might be made. The first is that he has been fortunate not to have previously been given a custodial sentence. The second is that it is abundantly clear that the orders that were made did not act as a personal deterrent.

18 On 1 November 2001, he was convicted of assaulting a police officer contrary to the Police Offences Act 1935, and fined $120. The crime that is the subject of this appeal was committed a mere nine days after that appearance in court and conviction. On 6 April, five months after being charged with this crime, the respondent failed to furnish a sample of his breath for analysis, provided police with a false name and address, and did not answer his bail. In result, he was convicted of attempting to pervert the course of justice. Further, on 1 June 2002, about six months after being charged with this crime, he was unlicensed, driving under the influence of liquor and hindered a police officer, presumably contrary to the Vehicle and Traffic Act 1999, s53.

19 On 20 May 2003, the learned sentencing judge remanded the respondent in custody and asked that he be furnished with a pre-sentence report. The report was prepared and the sentencing hearing resumed on 13 June. The report showed that the respondent was the youngest child in a family of three, and that his parents' relationship was marred by extreme violence due to his father's general attitude towards women and excessive alcohol consumption. The respondent's parents separated when the respondent was two years of age. The report noted that subsequently, the mother and son formed a very close relationship "with the mother tending to be over anxious for, and over protective, of her son". The respondent was educated at Rosetta High School to grade 10. He then attended Claremont College, but left in the first term. "Unable to obtain work he undertook and completed a 20-week commercial cooking course at Willson Training Centre. [The respondent] eventually obtained employment in 2001 with Cadbury Schweppes in the confectionary division at Claremont".

20 The learned sentencing judge placed great emphasis upon this job. He quoted the following passage from the pre-sentence report:

"Risk assessment tools place Mr Knight in the high-risk re-offending category. Supervision is therefore recommended. On the plus side his needs are reasonably well met by his family connections and work situation. He has employment where his efforts are valued and his position is being kept open for him. Should he not be available for work by 15 June 2003, his temporary position with Cadbury Schweppes will be terminated with no opportunity to be re-employed. With the dearth of jobs for semi skilled and unskilled people he may have difficulty finding employment, particularly as he has no car and no driving licence.

Should Your Honour sentence Mr Knight to a period of supervision, case management would focus on reducing his alcohol use and further assessment of possible anger and hostility issues, although problematic anger appears to be related to alcohol use. As he works shifts a Community Service Order could be accommodated therefore as a sentencing option."

21 The learned sentencing judge then encapsulated his approach to the orders that he made in the following terms:

"Loss of employment might increase the risk of a continued anti-social and violent conduct. The suspension of the remaining portion of the sentence is intended to enable him to keep hold of one of the few stable aspects of his life. However, suspension will be offset by the imposition of orders of community service as a form of sanction. The terms of suspension are designed to effect future social control. No further opportunity ought be afforded to the offender."

22 The probation report noted that the respondent had recently re-established contact with his father and that he had regular contact with his sisters and their families with whom the respondent related well. In her submissions upon sentence, Ms Baumeler told the learned sentencing judge that the respondent was held in high regard by the members of his family and that his mother shows him a "high degree of care", although one cannot help but wonder about the quality of that care having regard to the joint commission of this crime. However, it would appear that the respondent's work at Cadburys was not the only stable aspect of his life as he enjoyed the support of his mother and siblings and their families.

23 Ms Baumeler pressed upon the Court the proposition that the learned sentencing judge's approach to the exercise of his sentencing discretion was correct, for the job at Cadburys was the first job that the respondent had been able to obtain since leaving school. The material before the learned sentencing judge certainly supported the proposition that it was the first job that the respondent had in fact held since leaving school, but there was no material to suggest that it was the only job he had been able to obtain after making reasonable attempts to find work. The Court readily accepts that young people without skills or training, find it virtually impossible to obtain long term stable employment, but does not accept that such persons necessarily find it impossible to obtain periodic unskilled work. The respondent was apparently of average intelligence and without physical impairment. He had received some training at the Willson Training Centre. In these circumstances and in the absence of material to support a contrary view, we do not accept that despite his best efforts, the job at Cadburys was the only work that the respondent had been able to find since leaving school.

24 The probation report does not disclose when the respondent obtained this work at Cadburys other than it was in 2001, the year he committed this crime. Further, the report notes that he, in common with others, was laid off due to seasonal factors between pre-Christmas 2002 and May 2003. Thus, at the time of sentencing, the work at Cadburys could not be described as long term permanent employment, nor regular casual employment that he had held for a long time, nor even the only casual employment that the respondent was likely to be able to find, and, in our respectful view, its importance in the sentencing process was over-emphasised by the learned sentencing judge.

25 The respondent's mother was sentenced by the learned sentencing judge to three months' imprisonment, the execution of the whole of which was conditionally suspended. On behalf of the respondent it was submitted that the parity principle (Lowe v R [1984] HCA 46; (1984) 154 CLR 606) required that the respondent receive a like sentence. We reject this proposition. Apart from their age difference, the antecedents of the respondent's mother were quite different from his. She was convicted of a group of dishonesty offences in a court of petty sessions over 30 years ago and of a group of street offences, including assaulting a police officer, more than 25 years ago. Since then, her offences have been confined to three breaches of the Road Safety (Alcohol and Drugs) Act 1970 and possession of a prohibited substance in 1988. Further, the violence of the respondent's mother's assault was far less than that perpetrated by the respondent.

26 The Court is of the view that error did attend the exercise of the sentencing discretion. The nature of and the circumstances surrounding the commission of the crime called for the imposition of an immediate custodial sentence. For the reasons set out above, the personal circumstances of the respondent were not such that militated against the imposition of such a sentence. All of the orders made on 13 June 2003 will be quashed.

27 The respondent falls for re-sentence. In undertaking this task, the Court is mindful of the need to give proper weight to the principle of double jeopardy, particularly as in this case, intervention by this Court will have the result of returning an offender to custody. In Attorney-General v McDonald [2002] TASSC 120 this Court recently considered the question of exercising restraint when called upon to re-sentence following a successful Crown appeal. In that case, Slicer J said, at par30:

"In my opinion, a successful Crown appeal giving rise to a re-sentencing need not of itself warrant a reduction in the appropriate sentence, but an appellate court is permitted to take the nature of the appeal into account during the re-sentencing process."

"When a Crown appeal against a sentence is successful, the defendant is re-sentenced in the light of the facts and circumstances at the time of the re-sentencing; R v Allpass (1994) 72 A Crim R 561 and R v Meers and Moles (supra). It would be illogical to ignore evidence that a defendant has suffered as a consequence of being subjected to the strain of a successful Crown appeal against sentence but take into account evidence of other matters which had occurred since the defendant was initially sentenced. A consideration that a re-sentencing court should have in mind is the extent, if at all, to which the defendant has suffered as a consequence of being put through the sentencing process twice. Ordinarily, I would expect the extent of the defendant's suffering to be modest and the weight to be given to this consideration on re-sentencing to be similarly modest."

"It seems logical to regard the fact that the respondent has had to stand twice for sentence as one of the facts and circumstances existing as at the time of resentencing that the Court is required to take into account ...".

28 Giving full weight to the fact that the outcome of this appeal will result in the respondent being returned to custody, the circumstances of this case and the circumstances of the offender none-the-less, call for the imposition of a sentence of actual imprisonment for six months, less 26 days already spent in custody. There should also be a probation order to take effect upon release from prison. The orders of the Court are as follows:

3 A conviction for the crime of assaulting a police officer acting in the due execution of his duty.

4 A sentence of six months' imprisonment to commence on 2 August 2003.

5 A probation order for a period of 18 months following the respondent's release from prison.