Court of Appeal (WA)|2004-07-23|Before: Ms J, Miller J, Murray J, McLure J

Etheridge v The Queen [2004] WASCA 152 (23 July 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ETHERIDGE -v- THE QUEEN [2004] WASCA 152

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Making a threat unlawfully to kill - Assaulting a public officer performing a function of his office - Sentences of 18 months' imprisonment for each offence to be served concurrently - Breach of bail - Sentence of 6 months' imprisonment to be served cumulatively - Whether sentence of 2 years' imprisonment excessive - Turns on own facts

Green v The Queen [1995] WASCA 139

Kelly v The Queen, unreported; CCA SCt of WA; Library No 950245; 19 May 1995

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

The Queen v Leucas, unreported; CCA SCt of WA; Library No 940130; 24 March 1995

Dodd v Hoogerwerf [2002] WASCA 15

Farmer v The Queen, unreported; CCA SCt of WA; Library No 940075; 16 February 1994

Harris v Kay, unreported; CCA SCt of WA; Library No 960405; 17 May 1996

Hubbard v Fisher [2001] WASCA 182

Mortimer v The Queen, unreported; CCA SCt of WA; Library No 970526; 14 October 1997

The Queen v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998

1 MURRAY J: I have had the benefit of reading in draft the reasons for decision of Miller J. I am in complete agreement with them and have nothing to add. It follows that I too would think it appropriate to refuse leave to appeal in this case.

2 MILLER J: The applicant was tried on indictment in the District Court at Perth on one count of threatening to kill and one count of assaulting a public officer performing a function of his office. These were offences against the provisions of s 338B and 318(1)(d) of the Criminal Code, and they carried respectively maximum penalties of 7 and 10 years' imprisonment in each case.

3 The applicant was convicted after trial on both counts on the indictment. He was sentenced on 12 June 2003 to 18 months' imprisonment on each count, to be served concurrently.

4 The applicant was also charged in the District Court at Perth with breaching a bail undertaking contrary to s 51(1) of the Bail Act 1982 (WA), the maximum penalty for which was a fine of $10,000 or imprisonment for 3 years. That matter was dealt with summarily by consent on 6 May 2003. On 12 June 2003 he was sentenced to 6 months' imprisonment, cumulative upon the 18 months for the two matters the subject of the indictment. The end result was that the applicant was sentenced to 2 years' imprisonment. He was declared eligible for parole.

5 In imposing sentence the learned sentencing Judge took account of 90 days the appellant had spent in custody, which he found to be the equivalent of 270 days if it was a sentence with eligibility for parole. The sentence was backdated to 5 May 2003.

6 The applicant seeks leave to appeal against the three sentences imposed upon him on the ground that those sentences were manifestly excessive, having regard to:

7 The provisions of s 52 of the Bail Act provide that a person who fails under s 51(1) to comply with a bail undertaking in the District Court shall be dealt with summarily for the offence and shall be so dealt with by a Judge of the District Court in any case where the person was bound to appear before that Court. The proceedings are to be commenced by complaint made in writing to a Justice and lodged in the District Court. That is the procedure which was followed in this case.

8 Under s 53 of the Bail Act, a decision of a Judge of the District Court under s 52 may be the subject of an appeal to the Full Court of the Supreme Court. Although the Full Court is not defined in the Bail Act, it is defined in s 4 of the Supreme Court Act 1935 (WA) to mean "all the Judges of the Supreme Court, or two or more of them, sitting together as a Court". Section 57 of the Supreme Court Act provides that the Full Court may sit as the Court of Criminal Appeal. The appeal to this Court for breach of bail is therefore competent.

9 When the learned sentencing Judge came to sentence the applicant on 12 June 2003, he summarised the facts. They revealed that the two indictable offences occurred on 5 January 2002 in Mandurah. A concerned citizen had telephoned police to say that there was a man slumped in the front seat of a vehicle in a suburb of Mandurah. That was the applicant. Police attended and spoke with the applicant, who said that there was nothing wrong with him, only that he was tired.

10 A police check revealed discrepancies in the number plates and registration of the vehicle and an indication that it was not licensed. Police considered there were grounds to warrant the arrest of the applicant and he was asked to step out of the car. He refused, despite repeated requests to do so. Finally, an officer threatened to smash the rear window of the vehicle if the applicant continued to refuse to step out. In response to this the applicant made the threat to kill. He said that if the officer smashed the window he would "blow his fucking head off". He reached forward under the seat of the vehicle. Although not seen at the time, a replica revolver was later found there. The officer smashed a rear window of the vehicle, unlocked the front door and removed the applicant. He was taken to the police station.

11 At the Mandurah police station the applicant was asked to remove personal jewellery, but refused to do so. He assaulted a constable by biting him on the thigh, twisting his finger and then biting him on the edge of the palm of his right hand. The officer had to punch the applicant three times to break his grip. The bite broke the officer's skin.

12 The breach of bail occurred when the applicant failed to appear at a status conference in the District Court on 29 October 2002. A bench warrant was issued for his arrest. The applicant's explanation for his failure to appear on 29 October 2002 was that he had been under threat from criminal elements and in fear of them, he had been unable to attend at court. The learned sentencing Judge made the point, however, that there was no good reason why the applicant should not have turned to police for assistance, or answered to bail at a police station, if not the court. He noted that the applicant had been taken into custody on the bench warrant on 17 April 2003 and had been in custody since that time.

13 In sentencing the applicant, the learned sentencing Judge referred in detail to a pre-sentence and psychological report, copies of which have been made available to this Court. The summary in the pre-sentence report reveals that as at June 2003 the applicant denied absolutely the commission of the two indictable offences and blamed others for his offending behaviour. He did not appear to accept any responsibility for his offending or current circumstances. The conclusion to the psychological report was to the same effect. It also indicated that the applicant would remain at risk of reoffending until such time as he could recognise the factors that led to his offending behavior. Intensive psychological treatment was recommended upon his release from prison if he was dealt with in that way. The learned sentencing Judge considered that the prospect of the applicant reoffending was an important aspect of the matter.

14 In sentencing the applicant for the indictable offences the learned sentencing Judge considered that a strong deterrent sentence was called for by reason of the prevalence of threats to kill and assaults on public officers. He also considered a specific deterrent was necessary because of the applicant's inability to address and accept his responsibility. In sentencing the applicant for the breach of bail, his Honour imposed a sentence of imprisonment of 6 months but declined to forfeit the sum of $5000 by way of bail undertaking.

15 Counsel for the applicant submitted that the behaviour of the police officers contributed to the applicant's offending behaviour on the day of 5 January 2002. It was submitted that arresting the applicant was unnecessary because it could have been dealt with sufficiently by way of summons. It was contended in written submissions that the insistence of the police on arrest "escalated events unnecessarily".

16 In my view these submissions are misconceived. I cannot accept the suggestion that the investigating police officers in this case either contributed to or escalated the events unnecessarily. They were performing their duty of office in the manner they thought best and, in my view, were entirely justified in arresting the applicant.

17 The behaviour of the applicant prior to and after his arrest deserved a deterrent sentence, both in terms of general deterrence and specific deterrence. The offence of breach of bail was serious. The breach occurred on 29 October 2002, but it was not until 17 April 2003 that the applicant was arrested on a bench warrant.

18 Counsel for the applicant referred the Court to a table of "breach of bail cases" which revealed that in four instances of cases which had gone on appeal to the Court of Criminal Appeal, there were included in the sentences under consideration, sentences of 3 months' imprisonment in each case for the offence of breach of bail. In three out of the four cases the sentence of 3 months' imprisonment for breach of bail was made concurrent with sentences for other offences dealt with at the same time. In one case where there were three breaches of bail, the sentences on two of them were made concurrent and one cumulative.

19 These cases would tend to suggest that there is a generally accepted tariff of 3 months' imprisonment for breach of bail in the Court of Petty Sessions and District Court. The record of the applicant for offences committed after those dealt with by the learned sentencing Judge on 12 June 2003 reveals another conviction for breach of bail in the Court of Petty Sessions at Perth, for which a sentence of imprisonment of 3 months was imposed.

20 However, I would not subscribe to the view that there is any tariff for the offence of breach of bail, nor that a sentence of 3 months' imprisonment for breach of bail is the most that an offender could expect. The maximum term of imprisonment that can be imposed for the offence is 3 years' imprisonment and in a case such as this, where the failure to comply with a bail undertaking was followed by a period of six months without any attempt to surrender to the authorities, or explain the failure to appear at the status conference, the sentence imposed by the learned sentencing Judge could not, in my view, be said to be excessive.

21 The applicant had a record for various offences of breaking and entering, stealing, possession of an unlicensed firearm and various traffic offences which went back to 1981 and ended in July 2001. Counsel for the applicant submitted that the learned sentencing Judge failed to properly appreciate that the most serious of the applicant's prior convictions had occurred decades beforehand, and in all the circumstances the applicant's prior criminal record was a minor consideration.

22 It is true that the learned sentencing Judge made no particular reference to the applicant's prior record. However, submissions before his Honour had adverted to it. Counsel for the applicant before the learned sentencing Judge referred to the record as "depict(ing) a Children's Court matter of some seriousness and the subsequent offences do not indicate a hardened criminal per se". His Honour could not have been unaware of the applicant's criminal record and the fact that in recent times the applicant's convictions were limited to motor vehicle related offences with one offence of possession of cannabis.

23 The applicant had not at any time been the subject of a term of imprisonment. He was 38 years of age, a machine operator and separated from his wife. It transpired that he was sleeping in his car in Mandurah when arrested because he had had an argument with his wife and had nowhere to stay. At the time the pre-sentence report was compiled, the applicant was not working, having left employment in Newdegate to return to Perth to discuss matters relating to his marriage. The pre-sentence report reveals that the applicant had 36 pending charges listed in five different courts at the time the learned sentencing Judge dealt with him, but these were irrelevant to the sentencing exercise.

24 It is, however, significant to note that after the applicant had been dealt with by the learned sentencing Judge, he was sentenced on 4 September 2003 to 2 months' imprisonment (cumulative upon the sentences imposed in the District Court) for offences of being unlawfully on premises and possession of a housebreaking implement. On 12 December 2003 he was sentenced to 10 months' imprisonment cumulative, for offences of assaulting a public officer, breach of bail, burglary, escaping legal custody, resisting arrest, aggravated stalking, stealing and multiple motor vehicle related offences. These convictions were in the Court of Petty Sessions, Perth and a number of them were quite lenient sentences. The conviction for assaulting a public officer brought only 6 months' imprisonment and that of aggravated stalking (two charges) 6 months' imprisonment in each case.

25 It is apparent that the learned Magistrate who sentenced the applicant in the Court of Petty Sessions, Midland on 4 September and the Magistrate who sentenced him in the Court of Petty Sessions, Perth on 12 December 2003 took full account of the totality principle in ensuring that the sentences imposed cumulatively upon those imposed in the District Court at Perth on 12 June 2003 were limited to a total period of 12 months for the multiplicity of offences the applicant faced. The applicant's present position is that he is eligible for release on parole on 2 August 2004 and release after remissions on 4 April 2005.

26 I have considered carefully the submissions made on behalf of the applicant. I accept that the effective sentence of 2 years' imprisonment backdated to 5 May 2003 was a significant penalty for the three offences of which the applicant was convicted. The sentences imposed for the two indictable offences were, however, in my view, well within the range of sentences that could have been imposed.

27 The Court was referred to a table of "threat to kill and assault police cases". This table detailed a number of cases in this Court where the sentences for such cases were less than those imposed upon the applicant. In some instances the Court reduced sentences of imprisonment to either discharge the offender or substitute a fine for the offence of assaulting a public officer.

28 Green v The Queen [1995] WASCA 139 was a case in which sentences of 1 year's imprisonment had been imposed for each of the offences of threatening to kill and assaulting public officers. Those sentences had been imposed cumulatively, although a second offence of assaulting a public officer was made concurrent. In the Court of Criminal Appeal the applicant failed to satisfy the Court that the sentences were excessive. One cannot draw from this a conclusion that the Court of Criminal Appeal considered a sentence of imprisonment for 1 year for each of the offences of threat to kill and assaulting a public officer to be a tariff for offences of that nature.

29 In relation to assaults on public officers, Ipp J (with whom Franklyn and Anderson JJ agreed) referred with approval to the observation of Kennedy J in The Queen v Leucas, unreported; CCA SCt of WA; Library No 940130; 24 March 1995, to the following effect:

"There is a need to protect police officers from such threats by demonstrating through the sentencing process that such conduct will not be tolerated."

His Honour concluded that the sentence of 1 year's imprisonment for the offence of threatening to kill was entirely appropriate. The same conclusion was reached in relation to the sentence of 12 months' imprisonment for assaulting a public officer. It was observed by Ipp J (at [17]) that the remarks made by Kennedy J in The Queen v Leucas applied equally to offences of that kind.

30 In Kelly v The Queen, unreported; CCA SCt of WA; Library No 950245; 19 May 1995, Pidgeon J (at page 2) made the following remarks in relation to the offence of unlawful assault of a public officer:

"The principles to be applied, when police officers are attacked in this manner, have previously been referred to by this Court. In Cunningham v R , unreported; CCA SCt of WA; Library No. 4003, Burt J speaking for the Court stated at p 2 of his judgment that:-

'... generally speaking assaulting policemen in the course of their duty should be visited with a custodial term. The person who commits such an offence ought simply to be punished for having done it.'

'I appreciate that the antecedents of the applicant are such that ordinarily they would play a significant part in determining whether the applicant having committed an offence should be given the benefit of probation or some non -custodial means of disposition. However, as pointed out earlier in these reasons, they play a much lesser role where the offence is one of assaulting a police officer in the execution of his duty.'

In King v Power, unreported; SCt of WA; Library No. 930289; 27 May 1993 , Walsh J said:

'It has been accepted that the safety of police officers lawfully carrying out their duties is a matter of prime importance. The courts regard attacks on police as a grave breach of the law and one to which considerations of general deterrence have application, as well as specific deterrence to the particular offender to discourage repetition of similar conduct.'

In support, his Honour quoted from Thomas' Principles of Sentencing (2nd ed) 106-107 where, inter alia, the author states:

'The Court has frequently emphasized that a sentence of imprisonment should normally be imposed where an assault on a constable involves the deliberate use of force against an officer even though the degree of violence is moderate. ...'

The passages I have quoted above were set out by Franklyn J in Farmer v R, unreported CCA SCt of WA; Library No 940075; 16 February 1994."

Applying these general principles, I cannot accept that a sentence of 18 months' imprisonment for each of the two indictable offences in this case was in any way excessive.

31 Although the learned sentencing Judge made the sentence for breach of bail cumulative upon the sentences which had been imposed for threat to kill and assaulting a public officer, his Honour was, in my view, entitled to take that course. The breach of bail offence was a discrete matter in relation to which the observations of Malcolm CJ in R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159 at [9] are entirely applicable:

"While it is appropriate to order that a number of offences arise out of the same transaction may justify concurrent sentences, where the offences occur on quite separate occasions and involve quite separate transactions, then unless the totality principle would require some other approach the sentences should be imposed cumulatively: Ruane (1979) 1 A Crim R 284 per Wallace J at 286; Shaw (1989) 39 A Crim R 343 at 347 per Brinsden J; and Van Thong Dao (unreported, Court of Criminal Appeal, WA, No 106 of 1998, 22 January 1999) per Murray J at pp 15-16."

An overall sentence of 2 years' imprisonment with eligibility for parole was, in my view, within the range of sentences that could have been imposed for the three offences committed by the applicant. Proper account was taken of the time spent in custody.

32 As the High Court pointed out in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672, a Court of Criminal Appeal is not to substitute its own opinion for that of the sentencing Judge merely because it might have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his discretion. The Court said (at 672):

"The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice".

In my view, the discretion committed to the learned sentencing Judge in this case was properly exercised and I would refuse leave to appeal.

33 MCLURE J: I have had the advantage of reading in draft form the reasons to be published by Miller J. I agree with his reasons and the proposed order.

Etheridge v The Queen [2004] WASCA 152

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Etheridge v The Queen [2004] WASCA 152 (23 July 2004)

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