Coates v R [2001] TASSC 141

Hibble v Phegan 50/1997; Innes v Weate [1984] Tas R 14; R v Howard & Ors [1968] 2 NSWR 429, followed.

Judgment Number: [2001] TASSC 141

1 I have had the advantage of reading the Reasons for Judgment prepared by Slicer J and

Evans J. I agree that the first three grounds of appeal have not been made out for the reasons which they advance. In respect of the fourth ground of appeal, I agree with their conclusion and would only add that it is unnecessary in this instance to enter into the grey area of what constitutes an assault on a police officer in the due execution of his duty. The applicant was not charged with an offence against the Criminal Code, s114. Arguably had he been charged with that offence, the jury would have had sufficient evidence of all ingredients to convict him, but he was merely charged with assault and the judge passing sentence did not purport to impose a sentence for breach of s114. The facts that the complainant was, to the knowledge of the applicant, a police officer and had merely attended the scene in the performance of his public duty, were aggravating factors which his Honour was entitled to take into account. In doing so, he is not to be taken as having imposed a sentence in respect of the more serious crime of assaulting a police officer in the due execution of his duty. The issue was never addressed and nothing he said suggests that he made any finding to that effect. Leave to appeal should be refused.

2 The appellant was convicted of the crime of assault contrary to the Criminal Code Act 1924 ("the Code"), s184. Police were called to a social gathering at premises in George Town, following complaints about behaviour and noise. A police officer, Sgt Buck, known within and respected by the community, went to those premises and approached the persons present. He spoke to the occupant and left. He was later required to re-attend, accompanied by other officers. On that return, he was concerned that there was untoward damage being caused to property. He approached the appellant, a person known to him through mutual involvement within the community, and enquired as to what was "going on"

3 He was assaulted by the appellant and knocked to the ground. While the two were struggling on the ground, another officer attempted to intervene, but was swept aside by others attending the gathering. When that officer recovered, he observed his fellow officer, still on the ground, being assaulted by others including a co-offender wielding the baton of the original officer. He also observed, as did the victim, the appellant kicking the supine officer. In his evidence, that officer stated that whilst he was originally on the ground, the appellant was with "99% certainty ... on my back" and that whilst on the ground during the second attack "it was 70% Mr Coates at least and perhaps the other 30 was the group hitting me".

4 Sgt Buck had been stationed at George Town for over four years and had developed a good relationship with that community. The attack had distressed him as an individual, destroyed his standing within that community and resulted in his transfer to another location.

5 The appellant was convicted of two occasions of assault, namely, "by grabbing (the officer) both his arms and then grabbing him around the knees and punching him to the head" and jointly with others "by kicking and punching (the officer) to the head and body".

The first conviction was a consequence of plea and the second followed a jury verdict after trial.

The appellant was sentenced to a term of imprisonment of 12 months, no portion of which was suspended. The man who had wielded the baton was likewise sentenced to 12 months' imprisonment.

6 The appellant advances three grounds of appeal, namely, error of fact, parity, including post-offence conduct, and the finding as to the status of the officer.

"1 The learned Trial Judge erred in sentencing on the basis that the Appellant had instigated the violence of others."

Police were called to the property because of a complaint made by others. It was the appellant who first went up to the officer and initiated physical contact. It was the confrontation which triggered group violence. The learned sentencing judge, in accordance with the plea entered and the verdict of the jury, stated:

"The convicted men and many others were at a party which became increasingly drunken and destructive. Complaints were received by police of noise and later of damage to property. Palings from a fence were used to fuel a fire, windows in a neighbouring house were smashed and an aluminium shed was demolished. No finding is made concerning the culprits with regard to the damage.

Three police officers had the unpleasant duty of having to deal with the situation. A member of the public requested that they attend. Jason Coates was the first to approach Sergeant Buck and by his conduct he instigated the violence which took place. I do not find that his aggression commenced until he came face to face with Sergeant Buck. The reason for his aggression is difficult to understand, no doubt because his intoxicated state influenced his actions."

8 The use of the term "instigated" correctly described the role played by the appellant in the initiation of violence. Whether it was in strict accordance with the definition of the term as used in the Code, s3, is irrelevant. The term was used in the course of a sentencing hearing once legal responsibility had been determined by the plea and verdict. It was an accurate statement to describe the sequence of events and a consequence of the appellant's conduct.

"The learned Trial Judge erred in imposing the same sentence as that imposed on the co-offender, Jason Peter Boske, where the Appellant's conduct and the Appellant's antecedence [sic] warranted a disparate sentence."

Both men were sentenced to 12 months' imprisonment, no portion of which was suspended. There were differences between the two offenders in their personal circumstances and their respective roles in the events of 30 August 1999. The appellant was slightly older than Boske, and had not previously been sentenced to a term of imprisonment. Their records were comparable, although the appellant had relevant convictions for alcohol related offences and three for acts of violence involving property and trespass. The appellant had failed on six occasions to comply with a Community Service Order and been convicted of driving whilst disqualified. The attack by Boske was probably more serious in that he had taken the baton from the police officer and beaten him with it. On the other hand, the appellant had been convicted of two crimes of assault and had persisted with his attack by kicking a supine man. In answer to a question concerning the respective roles played by the appellant and other members of the group, the officer stated at trial:

"... the group hit me at about that time, but whether that contributed - it was 70% Mr Coates at least and perhaps the other 30 was the group hitting me or yeah, I don't know."

Neither offender was entitled to the benefit of an early plea. The differences in conduct and personal circumstances resulted in approximate equivalence and were not such as to offend the principles of parity as stated by the High Court in Lowe v R [1984] HCA 46; (1984) 154 CLR 606.

10 The appellant was in employment at the time of his conviction. It was argued that, consistent with the approach stated by the High Court in Dinsdale v R [2000] HCA 54; (2000) 74 ALJR 1538, portion of his sentence ought to have been suspended so as to permit resumption of employment. Absent a specific time commitment by the employer, logic suggests that the capacity to remain employed required the suspension of all of the sentence. Whilst post-offence conduct can be relevant to the sentencing process, it usually has significance when a lengthy period has elapsed between conduct and conviction especially if the delay was not of the offender's making. No such special circumstances exist here.

"4 The learned Trial Judge erred in that he took into account a circumstance, namely that the complainant was a Police Officer, in the due execution of his duty when that circumstance was an ingredient of the more serious charge of assaulting a Police Officer contrary to Section 114(1) of the Criminal Code of which he had not been convicted."

The contention is that since the appellant was convicted of the crimes of assault contrary to the Code, s184, rather than that more serious as provided for in the Code, s114, the principles stated in cases such as Lovegrove v R [1961] Tas SR 106, R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 and R v Causby [1984] Tas R 54, preclude the imposition of a greater sentence than the crime warranted.

12 The learned sentencing judge dealt with the status and reason for the presence of the officer at the "party" in the following terms:

"The attack on Sergeant Buck was vicious and cowardly. He had done nothing to provoke what occurred. He had merely attended the scene in the performance of his public duty. Such violence must be appropriately condemned by the Court and the sentences should reflect that condemnation and punish severely, so as to amount to a deterrent to others who might be likewise minded to attack the community's law officers."

"Resisting public officers: Resisting lawful apprehension

114. (1) Any person who assaults, resists, or wilfully obstructs any police officer in the due execution of his duty, or any other person lawfully assisting him therein, is guilty of a crime.

(2) Any person who assaults, resists, or wilfully obstructs any person lawfully arresting or about to arrest any person is guilty of a crime.

13 The learned sentencing judge referred to "performance of (a) public duty" rather than "acting in the course of". He was correct to so do. This appeal against sentence is not an appropriate case to reconsider in detail the meaning of the term "execution of duty". It could not be said that the sentence of 12 months' imprisonment offended the principles stated in R v De Simoni (supra) since it was an appropriate reflection of the seriousness of a common assault on a person known to the assailant as a public officer. It was a group attack initiated by the conduct of the appellant. The officer was well respected within his community and the effects of the attack on him were serious and long lasting. In a statement placed before the Court during the course of the sentencing hearing, those effects were described in the following terms:

"At the time of the incident Sgt Buck had been stationed at George Town for 4½ years. During that time he had developed a good rapport with the young men, including the accused, in George Town.

Given the rapport that he had established with the young men in George Town, including the accused, the incident was particularly distressing for Sgt Buck as the relationship was a source of pride for him.

George Town is a small community and news of the incident very quickly became common knowledge amongst the community and it became difficult for Sgt Buck to be effective because he would constantly see the men involved in the incident and whenever someone was arrested the Police (including Sgt Buck) were taunted with mention of the incident.

Approximately six months after the incident Sgt Buck and his family felt they could no longer live in George Town and Sgt Buck requested a transfer to Launceston."

14 The attacked had impacted on the officer, his family and the community in which he had served. The sentence was appropriate.

15 Only one sentence has been recorded on the sentencing database since 1990 in relation to the provision of the Code, s114. That sentence related to an assault on a police officer who had attended a domestic dispute. The offender, aged 19, was sentenced to a term of imprisonment for a period of four months. It does not set a benchmark from which other crimes involving assaults can be measured. It cannot be said, by reference to that case, that a greater sentence might not properly have been imposed following conviction for a crime contrary to the Code, s114.

16 Insofar as is necessary to determine this ground of appeal, in my opinion, the term "acting in the execution of duty" differs in meaning from "acting in the course of duty".

Many of the cases relevant to this question are derived from consideration of the provisions of the Police Offences Act 1935, s34B. Many of these cases related to particular conduct at a particular time when a police officer properly present had exceeded his power to take a specific form of action such as:

(1) arresting without warrant when lawfully assisting a licensee to evict troublesome patrons (Coulson v Huddlestone 80/1967);

(2) entry onto property without consent when acting in the course of a duty arising under the provisions of the Road Safety (Alcohol and Drugs) Act 1970 (Garwood v Barnard A58/1982; Garwood v Schultz [1982] Tas R 120);

(3) interception of a motorist (Wood v Beach A39/1985);

(4) absence of knowledge of the status of the public officer (O'Donnell v Dakin [1966] Tas SR 87);

(5) self-help cases (Richter v Risby & Ors A18/1987).

17 In each area of police conduct considered, there was little doubt, but that the police officer was acting in the course of his duty in attending or being at the scene of events. He had a general duty to "keep the peace" and to ensure compliance with the law. He had a discretion as to how he went about his duty (R v Chief Constable of Devon and Cornwall; ex parte Central Electricity Generating Board [1982] 1 QB 458), although there might be constraints on the extent of that discretion (R v The Commissioner of Police for the State of Tasmania; ex parte North Broken Hill Limited (trading as Associated Pulp and Paper Mills and APPM) A41/1992). But his capacity to engage in a particular action is defined by statute or common law powers. It is the nature or form of that particular action or response which constitutes "execution of duty" rather than "course of duty". The distinction can be described as being as that between "a shield" and "a sword". In executing a particular duty, he is said to be protected (by way of particular sanction) from obstruction. That distinction was recognised in Innes v Weate [1984] Tas R 14. The following passages warrant restating:

"When circumstances occur which call upon a constable qua constable to intervene in the interests of the community his power to do so comes from a different source and has different consequences. A constable on duty is representative of the community, at large, and his duty is to the community, not to any one citizen. The courts, while recognizing that, as such a representative, he is invested with a wide discretion, have never been slow to restrain his actions in the interests of liberty, and confine the exercise of the discretion to intervene to cases where such intervention is properly called for and reasonably carried out. The legislature also has carefully scrutinised the authority of constables, sometimes extending it, sometimes narrowing it. The duty of constables arises from the law and is circumscribed by it. No citizen, corporation, or arm of the State, no matter how politically powerful, can simply by making a request for assistance, impose a duty on a constable to give that assistance. Nor can a constable invest himself with a duty to assist one party in a civil dispute on the sole ground that, in his judgment, that party has civil right on his or its side, or ought, for political reasons, be granted assistance."

"... it may be useful to reflect a little on the phrase 'in the execution of his duty'. The word 'duty' does not refer, as was suggested in argument, to the constable's duty to obey superior officers. It refers to the duty of constables generally - the duty to prevent and detect crime, to apprehend wrongdoers, to keep the peace, and to protect life and property, ...

There are two difficulties in this concept of duty [referring to Rice v Connolly [1966] 2 QB 414]. One is that it cannot be stated in other than general terms - the range of circumstances in which the duty to act may arise is too wide, too various, and too difficult to anticipate for the compilation of an exhaustive list. The other is that the existence and nature of the duty depends upon a reasonable assessment by the constable of any given situation. That assessment may be examined in the courts and held to be right or wrong. These difficulties cannot be overcome. It is important that a constable should have a wide discretion to act swiftly and decisively; it is equally important that the exercise of that discretion should be subject to srutiny [sic] and control so that he should not too easily or officiously clothe himself with the powers of the State and by so doing affect the rights and duties of other citizens (cf, eg, the Criminal Code, s28).

(a) the general duties of constables do not require them to arbitrate civil disputes. By the same token, if, in properly acting to preserve the peace in a situation arising out of a civil dispute a constable innocently chooses to constrain the offended rather than the offending party, he is in no breach of his duty -

(b) when the decision to act is taken far from the time or place of the anticipated offence or breach of the peace, there will almost always be a residual discretion in the man on the sport. Both superintendent and the junior constable are constables. The discretion resides in each."

18 I accept the reasoning and analysis. Whether, as his Honour said, Lord Denning had gone "too far" in R v Chief Constable of Devon and Cornwall; ex parte Central Electricity Generating Board (supra), or whether the discretion was too narrowly constrained in R v The Commissioner of Police for the State of Tasmania; ex parte North Broken Hill Limited (trading as Associated Pulp and Paper Mills and APPM) (supra), remain different questions.

19 Sgt Buck was acting in the course of his office of constable and keeper of the peace when he attended "the party". He was entitled to do exactly what he did. He was entitled to the protection of legal sanction in the event of an assault. At the time of that assault his attendance did not come within the specific provisions of the Code, s114. It was appropriate for the Crown to indict the appellant for the crime of assault contrary to the Code, s184. The sentence reflected that assault and its surrounding circumstances, including the status of the police officer and the lawfulness of his conduct.

No question raised by the principles stated in R v De Simoni (supra) arises.

20 As a consequence of complaints about the noise being generated by a group of people partying in the backyard of a residence at 4 Widdowson Street, George Town, Sgt Matthew Buck and two other police officers went to a residence in Grinrod Place, George Town, which backs onto the yard where the party was progressing

21 As Sgt Buck was standing in the yard of the residence at 11 Grinrod Place, he observed a group of people from the party move to the backyard of the residence at 13 Grinrod Place, following which he heard the sound of breaking glass. He thought that residence may have been broken into and directed his colleagues to investigate the situation.

22 Access between the site of the party and 11 Grinrod Place was not restricted. Whilst Sgt Buck was standing in the backyard of 11 Grinrod Place, he was approached by the appellant from the direction of the party. In response to the appellant's query as to what was going on, Sgt Buck said that the appellant knew. The appellant grabbed Sgt Buck, who pushed the appellant's arm away. This caused the appellant to stumble and fall to his knees. The appellant grabbed Sgt Buck and ended up with his arms around Sgt Buck's knees. As Sgt Buck was trying to extricate himself from the appellant's grasp, a group of people ran from the party and joined the appellant, knocking Sgt Buck to the ground. Thereafter, the appellant and at least two members of the group, brutally assaulted Sgt Buck. The appellant punched Sgt Buck to the left side of the head and then kicked him as he lay on the ground. One of the appellant's co-accused struck Sgt Buck with his police baton.

23 As a consequence of these events, the appellant was charged with two counts of assaulting Sgt Buck. The first count related to the initial incident in the course of which the appellant grabbed Sgt Buck. The second count was a joint charge in relation to that which occurred after the appellant was joined by others from the party. The appellant pleaded guilty to the first count and was convicted on the verdict of the jury on the second count.

24 In sentencing the appellant, the learned sentencing judge said:

"Jason Edward Coates is convicted of two counts of assault, one on his own plea of guilty and one following the verdict of the jury. Craig Anthony Benson and Jason Peter Boske are each convicted of one count of assault consequent upon the verdicts of the jury. I will state my findings of fact.

The convicted men and many others were at a party which became increasingly drunken and destructive. Complaints were received by police of noise and later of damage to property. Palings from a fence were used to fuel a fire, windows in a neighbouring house were smashed and an aluminium shed was demolished. No finding is made concerning the culprits with regard to the damage.

Three police officers had the unpleasant duty of having to deal with the situation. A member of the public requested that they attend. Jason Coates was the first to approach Sergeant Buck and by his conduct he instigated the violence which took place. I do not find that his aggression commenced until he came face to face with Sergeant Buck. The reason for his aggression is difficult to understand, no doubt because his intoxicated state influenced his actions. He grabbed the officer round the arms and then the legs, and they both fell to the ground. While they were wrestling on the ground, Sergeant Buck tried to get back to his feet, and while others of Coates' intoxicated companions joined in with kicks and punches, he punched the officer at least twice in the face. As his companions continued their violent attack on the poor man, Coates got to his feet and joined in with them, also delivering kicks and punches.

Craig Benson was one of those who had joined the one-sided affair. He kicked Sergeant Buck a number of times to the head and other places.

Jason Boske was also one of the pack. He took hold of Sergeant Buck's baton and rained blows with it on the officer's head and body, causing bruises and marks which can be clearly seen in the photographs in evidence.

The attack on Sergeant Buck was vicious and cowardly. He had done nothing to provoke what occurred. He had merely attended the scene in the performance of his public duty. Such violence must be appropriately condemned by the Court and the sentences should reflect that condemnation and punish severely, so as to amount to a deterrent to others who might be likewise minded to attack the community's law officers.

Jason Coates is 23 years old with a bad record for drunkenness and anti-social behaviour up until these crimes in August 1999, having committed nine alcohol-related offences and possibly more. He has no record for personal violence. There are sound reasons for thinking that if he avoids the use of alcohol he will have a worthwhile life. He now has family responsibilities and is regarded by his present employer as productive and valuable. Notwithstanding those good signs, the Court's undoubted duty is to impose a prison sentence.

Craig Benson is 21. He also has a bad record for drunkenness and anti-social conduct. He has committed ten or more alcohol-related offences although none for personal violence.

Jason Boske is aged 22. He too has a record for drunkenness and anti-social conduct, and committed such offences and an assault subsequent to this crime. He is presently in prison serving sentences imposed on two occasions consequent upon drinking/driving offences."

25 The appellant appeals against the sentence imposed on him on the following grounds:

"1 The learned Trial Judge erred in sentencing on the basis that the Appellant had instigated the violence of others.

2 The learned Trial Judge erred in imposing the same sentence as that imposed on the co-offender, Jason Peter Boske, where the Appellant's conduct and the Appellant's antecedence [sic] warranted a disparate sentence.

3 The learned Trial Judge erred in that he failed to give any or any proper consideration to the personal circumstances of the Appellant in particular his conduct since the commission of these offences and his good work record.

4 The learned Trial Judge erred in that he took into account a circumstance, namely that the complainant was a Police Officer, in the due execution of his duty when that circumstance was an ingredient of the more serious charge of assaulting a Police Officer contrary to Section 114(1) of the Criminal Code of which he had not been convicted."

26 It is to be noted that it is not asserted that the sentence was manifestly excessive. Rather, the appellant contends that the learned sentencing judge erred in one or more of the four ways specified.

27 The first asserted error is that the learned sentencing judge should not have found that by his conduct the appellant "instigated" the violence which took place. The argument advanced in support of this contention proceeded on the premise that his Honour's reference to instigation was a finding that the appellant encouraged or incited the others to assault Sgt Buck. That premise is misconceived. Patently the appellant's conduct brought about what occurred and, I am in no doubt that his Honour's reference to instigation was meant in that sense. One of the meanings ascribed to the word "instigate" by the Concise Oxford Dictionary is to "bring about".

28 The second error advanced is that the learned sentencing judge wrongly imposed the same sentence on the appellant as was imposed on his co-offender, Mr Boske, when the appellant's conduct and the appellant's antecedents warranted a lesser sentence. The appellant's prior circumstances were more favourable than those of Mr Boske. At the time of sentencing, Mr Boske was serving a prison sentence for drink driving offences. The appellant's record of convictions was less serious than that of Mr Boske. The appellant, unlike Mr Boske, had not been convicted in relation to any offences since the assaults on Sgt Buck, and the appellant had never been sentenced to a period of imprisonment. The appellant had shown some remorse and had a good work record. It is also pertinent that the appellant had not used an implement, whilst Mr Boske had used Sgt Buck's baton. Considerations to be balanced against matters such as these are: the appellant's age, he was a year older than Mr Boske, a matter of some relevance in relation to offenders of their age; the number of charges, the appellant was being sentenced on two charges whilst Mr Boske was being sentenced on one; and the fact that it was the appellant's conduct which brought about the incident. Having regard to all relevant matters, I am not persuaded that such differences as there are between the circumstances of the appellant and his offences and those of Mr Boske, required the imposition of a lesser sentence on the appellant than that which was imposed on Mr Boske.

29 The third error pressed on behalf of the appellant is that the learned sentencing judge failed to give any or any proper consideration to the personal circumstances of the appellant, in particular, his conduct since the commission of the offences and his good work record. This complaint cannot be sustained. The learned sentencing judge expressly referred to these matters and there is no reason to conclude that he failed to accord them due weight.

30 The final error asserted by the appellant is that the learned sentencing judge erred in taking into account a circumstance, namely, that Sgt Buck was a police officer in the due execution of his duty, when that circumstance was an ingredient of a more serious charge of which the appellant had not been convicted. The more serious charge referred to is that of assaulting a police officer contrary to the Criminal Code Act 1924 ("the Code"), s114(1). The appellant's convictions were for unlawful assault in breach of the Code, s184. It was not an element of these offences that a police officer was assaulted in the due execution of his duty. It had been open to the Crown to identify a duty upon which Sgt Buck was engaged at the time of the assaults and charge the appellant with assaulting Sgt Buck in the execution of his duty, in breach of the Code, s114(1), which provides:

"Resisting public officers: Resisting lawful apprehension

114. (1) Any person who assaults, resists, or wilfully obstructs any police officer in the due execution of his duty, or any other person lawfully assisting him therein, is guilty of a crime. "

31 That the Crown did not charge the appellant with breaching the Code, s114(1) is not surprising. In Hibble v Phegan 50/1997, Zeeman J made the following observations in relation to the offence of assaulting a police officer in the execution of his duty:

"As an aside, I often wonder why it is necessary to have a separate offence of assaulting a police officer in the execution of his duty. Charging a person with such an offence may have the result that an undoubted assault goes unpunished. The predilection of the legislature to create a variety of offences where one would do only makes it more difficult to obtain convictions for offences where there has been undoubted unlawful conduct. As all relevant circumstances must be taken into account in sentencing, the recent proliferation of new offences constituted by conduct already punishable by the criminal law appears to achieve nothing but to make the law more complex and, in the case of summary offences, where there is no power to convict of alternative offences, to make conviction less likely."

32 While Sgt Buck's presence at the scene of the offences was consistent with his obligations as a police officer, that would not necessarily be sufficient to found a conviction for assaulting a police officer in the execution of his duty. In Innes v Weate [1984] Tas R 14, Cosgrove J, at 20, said in relation to the phrase "in the execution of his duty":

"The word 'duty' does not refer, as was suggested in argument, to the constable's duty to obey superior officers. It refers to the duty of constables generally - the duty to prevent and detect crime, to apprehend wrongdoers, to keep the peace, and to protect life and property, (ie, to protect person from injury and property from damage). ..."

33 The following decisions illustrate the difficulty of obtaining a conviction for a crime which includes as an element the fact that the victim was a police officer acting in the execution of his duty. In Phillipson v Pearce Argus Newspaper (Vic), 3 December 1866 at 6, the Court dealt with an appeal by a defendant convicted before justices of unlawfully resisting a special constable in the execution of his duty. Pending the resolution of disputes as to a mine, the warden took possession of the mine and special constables were sworn in to keep the peace. While one of them was slumbering on a pallet at the mine, the defendant, by assistants, had the pallet, together with the slumbering constable, removed. The Chief Justice held that, as the constable was slumbering, he was not preserving the peace and, even if the conduct complained of was an assault, it was not one of a constable in the exercise of his duty of preventing breaches of the peace. The other case to which I refer is the Scottish decision of Monk v Strathen [1921] SC(J) 4. (I rely on the summation of this decision which appears in The Digest Vol 15(2) at 24146.) The defendant was accused of assaulting a constable "in the execution of his duty" in contravention of the Prevention of Crimes Act 1871, s12. As the constable, in uniform, was proceeding from his beat to his home, he saw five youths standing on a street corner and said to them "Are you not away to bed yet, boys?" One of the youths threw a bottle at the constable, which inflicted a serious wound. It was held that the constable when assaulted, was not "in the execution of his duty".

34 I do not wish to make too much of these old and sparsely reported decisions. Why I refer to them is that they demonstrate that it may be difficult to establish that a police officer was acting in the execution of his duty at the time of an incident. Where the prosecution is not confident about establishing this element, the prudent course is to lay a charge of unlawful assault under the Code, s184, rather than a charge of assaulting a police officer under the Code, s114(1). That course was followed in this instance and, in my view, it did not lead the learned trial judge into error. He did not sentence the appellant on the basis that he assaulted Sgt Buck in the due execution of his duty. To do so would have been wrong, as an offender is to be sentenced for the offence of which he is convicted without regard to circumstances which are ingredients of a more serious offence of the same kind of which he might have been, and was not, charged: Lovegrove v R [1961] Tas SR 106 and R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.

35 In the course of sentencing the appellant, the learned sentencing judge observed that police officers had attended the scene as a result of complaints which had been received and said it was their unpleasant duty to have to deal with the situation. At a later point his Honour said:

"The attack on Sergeant Buck was vicious and cowardly. He had done nothing to provoke what occurred. He had merely attended the scene in the performance of his public duty. Such violence must be appropriately condemned by the Court and the sentences should reflect that condemnation and punish severely, so as to amount to a deterrent to others who might be likewise minded to attack the community's law officers."

36 This statement does not amount to a finding that the appellant had assaulted Sgt Buck in the due execution of his duty. His Honour was doing no more than explaining that Sgt Buck's presence at the scene was a consequence of his performance of his public duty. His Honour did not identify any particular duty Sgt Buck was executing and draw a link between the assault and Sgt Buck's performance of that duty. What was of significance is that there was no apparent reason for the assaults other than that Sgt Buck was a police officer. As his Honour observed, the attack was vicious and cowardly and Sgt Buck had done nothing to provoke it.

37 The fact that the victim of an assault is a police officer may be a circumstance which should be taken into account when sentencing albeit that the officer was not assaulted in the due execution of his duty. The relevance of this circumstance was acknowledged in R v Howard & Ors [1968] 2 NSWR 429. In that case, the Court of Criminal Appeal dealt with appeals against sentences imposed on a number of youths for assaults occasioning actual harm. Whilst the victims of the assaults were police officers it was not an element of the offences that the victims were police officers, assaulted in the execution of their duty. The members of the Court expressed wholehearted agreement with observations of the sentencing judge to the effect that his sentence should reflect the need to protect the police force and indicate the displeasure of the Court and the community about assaults on members of the police force.

38 His Honour quite properly treated as an aggravating factor, the fact that the victim of the appellant's assaults was a police officer. I am not persuaded that his Honour erred by going further and dealing with this aspect of the matter on the basis that Sgt Buck had been assaulted in the due execution of his duty.