Dhu v Ward [2000] WASCA 140

Sentencing Act 1995, s 39(2)

Australian Coal v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998

Evagora v The Queen, unreported; CCA SCt of WA; Library No 960417; 5 August 1996

Hill v Bodenham [2000] WASCA 37

O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999

R v Tait [1979] 46 FLR 386

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

Weng Keong Chan (1989) 38 A Crim R 337

1 MILLER J: The appellant was charged in the Court of Petty Sessions, South Hedland that on 30 October 1999 at South Hedland he assaulted Mark Ward, a public officer while acting in the execution of his duty (Criminal Code, s 318(1)(d)); resisted one Mark Ward, a member of the Western Australian Police Force then acting in the execution of his duty (Police Act, s 20) and used insulting words (Police Act, s 59). These three matters came before the Court of Petty Sessions at South Hedland on 16 February 2000 when the appellant pleaded not guilty and a full trial took place. At its conclusion, the appellant was convicted by the presiding Magistrate, Mr P Nicholls SM of each charge. He was remanded for sentence and a pre-sentence report ordered. The matter came on again for hearing on 10 March 2000 when the learned Magistrate heard submissions and then sentenced the appellant to 6 months' imprisonment for assault, 1 month's imprisonment (cumulative) for resisting arrest and imposed a fine of $200 for the use of insulting words.

2 On 24 March 2000 I granted the appellant leave to appeal the sentences imposed by the learned Magistrate on the following grounds:

"(a) The learned Magistrate erred by finding that the matter was sufficiently serious that nothing else than a term of imprisonment was called for.

(b) Alternatively, if a custodial disposition was warranted the learned sentencing Magistrate erred by not suspending the sentence."

3 The facts of the case are conveniently summarised in a statement of material facts . At about 4.45pm on 30 October 1999 (a Saturday afternoon), police attended at a house in Becker Court, South Hedland in response to a complaint. Whilst speaking there to a woman resident, the appellant came to the side fence of the house and began yelling verbal insults at the police. When told that he was under arrest for use of insulting words, the appellant walked through his front gate onto the front verge of the house where the police were present. He punched one of the police officers to the right side of the face with a clenched fist, causing the officer to stagger backwards. He was then subdued but in the course of this he swung violently with both fists and legs until pinned down on the road verge, where he continued to struggle. Some minutes later he became calm and stated that he would go to the back of the police van, but when released by police he again became aggressive and another struggle occurred, causing the police to pin him to the ground again and call for police backup. When that arrived he was handcuffed, put in the police van and conveyed to the South Hedland police station where he was charged. The officer who was struck in the jaw was Sergeant Ward, who received a swollen jaw with cuts inside his cheeks. He also received grazes to the forearm and knee, they in all probability being due to the struggle on the ground. Medical attention was required for Sergeant Ward. The testimony of Sergeant Ward and Police Constable Barbara Mulder was entirely consistent with this statement of facts. Constable Mulder added that when the appellant had been let up by Sergeant Ward, he "shouldered her" to her left shoulder as he walked past, pushing her a little off balance. Constable Mulder described the appellant's demeanour as being "he looked angry. He looked tense and ready to fight". The insulting words which had been directed by the appellant at Sergeant Ward were described as "Mark Ward, you're a fucking wanker".

4 In convicting the appellant the learned Magistrate pointed out that Sergeant Ward was a man about six foot four in height and strongly built and the appellant about five foot nine in height and also strongly built. He described the two men as "two strong men" and pointed out that the appellant had given a completely different version of the sequence of events which had occurred. He had denied punching Sergeant Ward to the face, denied any further attempt at punching him in the body and arms and denied shouldering the female police officer in any deliberate way, saying that he had slipped because he had thongs on. His version of events was that had walked to the van and on the way to it, Sergeant Ward had grabbed him causing him to slip and bump Constable Mulder. This account was found by the learned Magistrate to be completely without credence and the evidence of the police officers was accepted beyond reasonable doubt.

5 When it came to sentence the learned Magistrate had the advantage of a pre-sentence report. It was a brief report. Amongst other things it contained the statement that the situation had been aggravated "due to bad feelings from previous dealings between the parties concerned". This observation the learned Magistrate found difficult to understand, and rightly so. It was in truth irrelevant. The pre-sentence report also commented on the appellant's prior record, which included a number of assaults and "disorderlies", the last assault being in 1993 and the last conviction, a "disorderly" in 1996. The appellant's family background and marital situation was covered. He was part of a close and supportive Port Hedland family and had been married for more than 20 years, living in a stable and supportive marriage with six children, the youngest of whom was 14 and living at home. He had a number of grandchildren and all of the family lived mainly in the Port Hedland and Marble Bar areas. The appellant's work history was covered, indicating that since leaving school he had always been in full-time employment initially working on stations but later becoming involved with earth-moving machinery. He was presently earning between $500 and $800 a week, depending upon the number of hours he worked. He was described as being fit and healthy but admitted to having a bad temper which could lead him to becoming very aggressive at times. The summary of the pre-sentence report suggested that the appellant had made efforts to control his temper which was revealed by his lack of court appearances over the preceding four years and by reason of the fact that he had not been convicted of assault since 1993. In referring to sentencing options it was said that the appellant himself would prefer a monetary penalty but would be prepared to comply with a community-based sentencing option if the court chose to utilise it.

6 The learned Magistrate considered that the circumstances of the assault were serious and described them as being "towards the top end of the scale". He made reference to the fact that Sergeant Ward had received a swollen jaw and cuts inside his cheeks for which medical attention was required. Reference was made to the appellant's record of convictions which revealed his last conviction to be on 15 January 1996 when he was convicted of disorderly conduct, the last conviction prior to that occasion being on 1 June 1993 when he was convicted of assault occasioning bodily harm. He had previously been convicted in 1990 of common assault, in 1983 of assault occasioning bodily harm and on numerous occasions of disorderly by fighting or disorderly by creating a disturbance. In all, he had some three pages of convictions, some of which were traffic related. The learned Magistrate took the view that four different assault convictions together with the offences of disorderly conduct revealed a history "of being violent".

7 The learned Magistrate took into account personal factors relevant to the appellant, including his marriage situation and employment and concluded by saying:

"... You admit to having a bad temper which can lead you to becoming very aggressive, and that certainly would appear to be the case on this occasion. You couldn't control yourself. You punched the police officer, who resisted. You started the trouble. You used the insulting words. The one thing led to another.

You said that you would prefer a monetary penalty. You are prepared to comply with a community based sentencing option, and you would be prepared to have some counselling in the area of aggression control. As I mentioned earlier, this is a serious assault towards the top end of the scale on a police officer exercising his duty, and you started it. Your record effectively provides not mitigation. You pleaded not guilty. You defended the charges, which you're entitled to do.

Because you couldn't control your temper, you were aggressive. Your conduct escalated from the insult to the punching to the struggling, to getting up, to pinning down, and eventually you were handcuffed.

Your conduct in the ... (indistinct) ... on this occasion was so bad that notwithstanding any mitigating factors - and they are relatively small - there doesn't appear to be any rehabilitation, except for the fact that since 1996 there has been no offences. I have come to the view that notwithstanding whatever can be said in mitigation on your behalf that your conduct on this occasion was so serious as to warrant a prison term.

With respect to the charge of assaulting Sergeant Ward, due to the seriousness of that charge you are sentenced to imprisonment for six months. With respect to the resisting Mark Ward, imprisonment one month cumulative. That occurred afterwards. After you calmed down you carried on with the business. You carried on and continued to resist. For the insulting words, you are fined $200 and ordered to pay costs of $38. Stand down."

8 The case for the appellant is that the learned Magistrate was in error in concluding that the offence of assaulting the police officer was towards the top end of the scale. It was contended that this conclusion was not supported by the evidence because the assault was of relatively short duration; having been assaulted the police officer (a man of strong build) was able to subdue the appellant with relevant ease; and the police officers had suffered only minor injuries. It was contended that the seriousness of the offence was not such as to require a sentence of imprisonment to be served immediately, particularly because the appellant was in full-time employment and in a position to pay a substantial fine; he was responsible for providing financial support to his wife and dependants; although he had a number of convictions for assault the last of those convictions was in 1993; since 1993 he had recorded only one criminal conviction for disorderly conduct; the pre-sentence report suggested he was a suitable candidate for a community-based order and he had had not previously been in prison. It was argued that the most appropriate disposition of the matter would have been a substantial fine, or alternatively, if a sentence of imprisonment was the only appropriate disposition of the matter, that sentence should have been suspended. In this regard it was argued that a "broad and flexible approach" should be followed in determining whether or not the sentence should be suspended, reliance being placed upon the statement to that effect by Malcolm CJ in R v Liddington (1997) 18 WAR 394 at 398. Although conceding that a suspended sentence may not serve as the most significant form of general deterrence, it was argued that a suspended sentence may still provide a deterrent to others, reliance being placed upon the decision in R v Minchinton, unreported; CCA SCt of WA; Library No 980684; 27 November 1998 were Murray J (at 4) suggested in that case that there was every indication that the threat of a suspended sentence would be a strong personal deterrent and provide considerable impetus to ensure that the convicted person did not offend again.

9 Counsel for the appellant relied upon the decision in Farmer v The Queen, unreported; CCA SCt of WA; Library No 940075; 16 February 1994 where Rowland J (at 6) said in relation to the offence of assaulting a police officer then performing a function of his office:

"It is always a serious matter where a person interferes with police officers in the proper exercise of their duty, and it is clear that the courts have a duty to ensure that such officers are protected. It is, however, equally clear that one does not start from a preconceived notion that the appropriate starting point as punishment for this type of offence is a custodial sentence. The starting point now is always s 19A of the Criminal Code that, where imprisonment is an option, it will not be exercised 'unless it [the court] considers that no other form of punishment or disposition available to the court is appropriate."

10 For the respondent it was argued that the offence of assaulting a police officer in the course of his duty should generally be visited with a custodial term. Reliance was placed on a number of decisions in this Court to that effect. In Cunningham v The Queen, unreported; CCA SCt of WA; Library No 4003; 4 December 1980 Burt CJ (at 2) said:

"... my view is that generally speaking (and it is dangerous to generalise, I think, in this area of the law) assaulting policemen in the execution of their duty should be visited with a custodial term. The person who does that ought simply to be punished for having done it, ..."

11 The cases to 1995 were summarised by Owen J in Warrell v Kay (1995) 83 A Crim R 493 (at 497 - 498) as follows:

"The law recognises that police officers should be protected from assault when carrying out the functions. The position was summarised by Brinsden J (with whom Pidgeon J agreed) in Delacy (sic) at p5:

'It has been repeatedly held by this court in numerous cases that it is imperative that police officers should be protected so far as it is possible to protect them from assault. On that basis, imprisonment has been held to be appropriate even though the prisoner has no previous record: see Daunton Fear, Sentencing in South Australia, p 69; see also Roberts v Muir (unreported, Court of Criminal Appeal, File No 89, 87, 82 of 1982.) In Cunningham, Burt CJ speaking for the court stated at p 2 of his judgment that generally speaking assaulting policemen in the execution of their duty should be visited with a custodial term. The person who commits such an offence should be punished for having done it.'

However, regard should also be had to Farmer (unreported, Court of Criminal Appeal, WA, File No 207 of 1993; 16 February 1994) where Rowland J said at p 6:

'It is always a serious matter where a person interferes with police officers in the proper exercise of their duty, and it is clear that the courts have a duty to ensure that such officers are protected. It is, however, equally clear that one does not start from a preconceived notion that the appropriate starting point as punishment for this type of offence is a custodial sentence. The starting point now is always s 19A of the Criminal Code (WA) that, where imprisonment is an option, it will not be exercised "unless it [the court] considers that no other form of punishment or disposition available to the court is appropriate." '

In Narrier and Yates v Lewandowski Wallwork J reviewed the authorities in this area, in particular Delacey and Cunningham. His Honour said at p 11:

'With respect, I agree that police officers must at all times be protected by the law when they are carrying out their duties. Any assault on them by a person who is drunk or sober must always be regarded as very serious. A prison sentence is not however always mandatory. It is important to have regard to s 19A of the Criminal Code ...'

A similar conclusion was reached in Ugle v Lambrecht; Ugle v Fox, (unreported, Supreme Court, WA, Owen J, Library No 9069, 25 September 1991) where the judge said at p 12:

'The proper approach to sentencing in these circumstances is to start from the position that incarceration is an appropriate penalty but then to apply normal sentencing principles, and in particular s 19A of the Criminal Code to determine the appropriate disposition.' "

12 In King v Power, unreported; SCt of WA; Library No 930289; 27 May 1993, Walsh J (at 12) described offences of assaulting a police officer as "calling for condign punishment, not only as a personal deterrent to the appellant, but also in the hope that it will operate as a general deterrent to others who may contemplate similar conduct to police officers acting in the course of their duties."

13 A more recent statement of principle is that of Kennedy J in Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 where (at 4 - 5), his Honour said:

"In my view, the sentence of six months for assaulting a police officer was entirely appropriate. The applicant tried deliberately to make good his escape by kicking the police officer vigorously with two or three karate style kicks, which caused her to double up in pain. It is the responsibility of the courts to impose deterrent sentences on those who physically attack police officers, whose duty it is to protect the public."

14 Counsel for the respondent argued that in the circumstances of the case there was no alternative to the sentence of imprisonment and it could not properly be suspended having regard to the seriousness of the offences committed. Again, reliance was placed upon what Kennedy J said in this regard in Dao v The Queen (supra), where his Honour pointed out (at 5 - 6) that a suspended sentence of imprisonment is not generally considered to provide any significant general deterrence and the purpose for suspending a sentence of imprisonment is primarily rehabilitative:

"It has generally been accepted that the purpose of suspending a sentence is primarily rehabilitative, although other factors may assume significance in the particular case - see Wood v Samuels (1974) 8 SASR 465; R v Percy [1975] Tas SR 62; R v Causby (1985) 17 A Crim R 461; Davies v Deverell (1992) 1 Tas R 214; The Queen v GP (1997) 18 WAR 196 and R v Liddington (1997) 18 WAR 394. In this respect, there should be some indication that there exists a genuine prospect for rehabilitation. Thus, in R v Percy, at 73, Neasey J said:

'However, it is almost self-evident that a sentence of imprisonment should not be suspended unless there is some reasonable prospect, from the circumstances of the case or of the offender, that remission from actual imprisonment combined with the expectation that the sentence will have to be served if the conditions of suspension are breached will have sufficient deterrent effect; or will sufficiently move the offender towards reform of his conduct as to achieve that reformation."

Then, in The Queen v GP, at 234, Murray J said:

'For myself, I am attracted to the view that the proper occasion to suspend service of a sentence of imprisonment is where, although other non-custodial options must be excluded and a sentence of imprisonment of a certain duration is considered to be the only appropriate sentence, the circumstances are not such as to demand that the sentence be immediately served and the circumstances of the case are such as to establish, the burden being on the offender, that there is a real prospect that the rehabilitation and reformation of the offender will be positively assisted by the making of an order of suspension or that there are special reasons why the court should be merciful.'

Although it is clear that a suspended sentence can be regarded as constituting a personal deterrent and as marking the seriousness of the offence, it is not generally considered to provide any significant general deterrence.

There was no positive evidence before the learned sentencing Judge, or in the pre-sentence report subsequently ordered by this Court, that the suspension of the sentences would lead to the applicant's reformation. He has been assessed in the pre-sentence report as a moderate risk of re-offending."

15 I am of the view that the present appellant was not a person in relation to whom a suspension of sentence would lead to his reformation. He was not a person who needed to be reformed and was, at the time of the commission of the offence, 42 years of age. It is true that on occasions he experienced inability to control his temper, but it was said in the pre-sentence report that his court history indicated that he was able to control his temper sufficiently to avoid conflict with the law for long periods of time.

16 It is true that the learned Magistrate in the present case did not advert specifically to the question of suspension of the sentence of imprisonment. It seems to me that that was because he was clearly of the view that the offences were so serious as to warrant the imposition of a term of imprisonment to be served immediately, and not suspended. It was, of course, necessary for the learned Magistrate (Sentencing Act 1995, s 39(2)) to consider and reject the suspension of sentences before imposing sentences of immediate imprisonment, but by implication his Worship clearly did that. In any event, as Kennedy J pointed out in Dao v The Queen (supra), a sentence of suspended imprisonment does not generally provide any significant general deterrence, and because the aim of such a sentence is primarily rehabilitative, there needs must be evidence that there is some need for rehabilitation. In the present case it was absent.

17 I am of the view that the sentences imposed by the learned Magistrate were entirely within the range of sentences that could have been imposed in the exercise of his discretion. It has not been shown that the learned Magistrate failed to exercise properly his discretion (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 - 5) and it would be quite wrong for me to interfere with the sentence imposed by the learned Magistrate merely because I was of the view that it was in some way high. That would not warrant interference by this Court: Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 7 November 1998; Dao (supra) per Kennedy J at 4. In any event, I am of the view that given the state of authority in relation to the appropriate disposition of offences involving assaults upon police officers in the execution of their duty, the sentence imposed was entirely appropriate for that of assault upon Sergeant Ward and likewise for that imposed in relation to resisting arrest. I would therefore dismiss the appeal.