EVANS -v- RICHARDS [2015] WASC 53 (12 February 2015)

[T]the complainant was a passenger in a vehicle that was travelling on a public road in Carnarvon. He was recognised by police who were in the area and also in their vehicle was a person for whom there was a current outstanding bench warrant. The vehicle which the complainant was travelling stopped and the complainant got out and fled from police on foot and he was pursued and eventually cornered. He responded to commands by police and he lay face-down on the ground and he was then cuffed with his hands cuffed behind his back and he did not resist the police officer who effected that arrest.

He was then searched by being patted down by another police officer and, on or about this time, whilst he was on the ground, Mr Evans put his boot on the right side of the complainant's face and neck area and pushed his face on the ground with some force and asked him words to the effect of, 'Where the fuck is it? Don't lie to us'. That was referable to Senior constable Evans' belief, which seems to me on the facts, to have been reasonable that he may have had something secreted under his jumper that he may have disposed of.

Another officer who was part of that group attempted to lift Mr Evans' foot off the complainant's face and told him to stop and after several seconds, the accused removed his foot from the complainant's face and, at this time, I note that the complainant was compliant and was not resisting police efforts to search him and complete the arrest procedure.

Mr Evans then punched the complainant to his face with a clenched fist. Mr Evans said that, immediately before he punched the complainant, he had asked him where the item was that had been secreting and he was told to fuck off and he was called a white cunt. They are obviously - or that was an obviously particularly derogatory insult to Mr Evans.

I note on Mr Evans' behalf, Mr Yates has outlined that he is a man of 45 years of age. He has no prior convictions, as one would expect of a Western Australian police officer. He has been a member of the Western, Australian Police Force for almost 25 years and much of his service has been in regional towns in Western Australia. On the materials that I have read - and I can indicate that I have read them again recently - he clearly is a man who has considerable passion, in my view, in assisting his local community.

It was submitted on Mr Evans' behalf that Carnarvon was a particularly challenging posting for Mr Evans, but it's clear from the character references, despite the challenges at work, he was a very active member of the Carnarvon community outside his employment as a police officer. The character references submitted on his behalf are, in my view, of the highest order and speak of his dedication to his career as a police officer and his considerable community service not only in Carnarvon, but also there are character references from Denham, also similarly describing him as a person who assisted his community.

The references make it very clear, also coupled with obviously with a lack of prior convictions, that Mr Evans is a person of prior good character and the character references also make it clear that there has been, what I might describe as devastating impact personally on Mr Evans as a result of this behaviour.

I'm satisfied, having read all those materials that, as I indicated on the last occasion, Mr Evans is not likely to commit this sort of an offence again. In the month prior to the assault, Mr Evans had been on various shifts which had resulted in difficulty sleeping, that is, shifts varying between day, afternoon and night shifts and his irritable moods resulted in him being unable to switch off after his shifts. He recognised that he was not coping and he booked leave, but I recall that he was due to give evidence in a trial in Burringurrah in June and he thought he might be able to get to that time and then take his leave. Of course, these offences occurred in late May.

After this offence, he consulted with a psychologist and I accept the submission that that revealed he had low serotonin levels as a result of his lack of sleep, as I understand it, flowing from the various shifts that he had been doing in the month leading up to the assault. I also note that, a week prior to this offence, a close friend of Mr Evans died and that caused further stress on him understandably [ts 3 5]

3 It is not in issue that a fine was the appropriate penalty. Much of the first hearing on 3 September 2014 was taken up with the question whether a spent conviction order should be made. The magistrate advised the parties that she was satisfied with the prerequisites which enliven the discretion under the Sentencing Act s 45. She said:

The issue for the court is whether or not in the public interest a spent conviction ought be granted. ... I have absolutely no difficulties in finding that Mr Evans is unlikely to commit this sort of an offence again, given the consequences that have befallen him already and that continue to affect him. And having read the character references, it's exceptionally clear that he is a man of pride and good character - exemplary character. So it's really that issue of general deterrent and public policy issues that I am turning my mind to.

4 At the conclusion of that hearing the magistrate gave the parties further time to put material before her.

5 Taking up the invitation, the appellant filed an affidavit setting out some of the facts upon which he relied in more detail.

6 Upon the resumed hearing on 23 September 2014, the magistrate noted the maximum penalty for common assault is an $18,000 fine or 18 months imprisonment, that there is no tariff for offences of assault and, in particular, there is no tariff for assaults committed by police officers.

7 After outlining the facts and the various matters which had been raised in mitigation in respect of the appropriate punishment as set out earlier, the magistrate said:

It has been submitted by Mr Yates that this assault ought to be placed at the lower end of the scale of assaults and that is, of course, common assaults. I accept that there were no injuries to the complainant in this matter and that there were two applications of force. It was not a sustained assault. It was not a premeditated assault. However, I do note that another officer at the scene told Mr Evans to stop his actions of putting his foot on the face of the victim and tried to remove his foot and it was after this incident that the victim was punched to the face.

I accept the submission by the prosecution that, at a minimum, the public expect that police officers will uphold the law they seek to enforce. The aggravating and most serious aspect of this assault is, of course, that Mr Evans was acting in his duties as a police officer at the time of the offence and, significantly, the victim was a person who was particularly vulnerable as he was in custody. Not only was he in custody, but he was physically on the ground, not resisting police and his hands were cuffed behind his back. He was entirely at the mercy of those who had properly taken him into custody and Mr Evans' duty to protect and care for him was seriously breached and his professional duties and obligations towards him, as I've indicated, were seriously breached by this offence. It's for those reasons that I place this assault in the midrange of common assaults not at the lower end.

In considering the appropriate sentence, I consider that the sentence of last resort has not been reached and this assault is not one that calls for a term of imprisonment. It's a matter that will attract a fine which reflects the seriousness of the assault and that fine will be reduced by 20 per cent to take into account the early plea of guilty. I also take into account in setting the fine that there had been significant financial consequences for Mr Evans, given that he has been transferred back to Perth. He has lost a number of his benefits from being posted to a remote location and his wife has also had to resign her employment due to that transfer [ts 5 6].

9 This ground of appeal as filed is in breach of the Criminal Procedure Rules 2005 (WA) r 65(2):

The grounds of appeal must not merely allege-

...

(d) in the case of an appeal against a sentence, that the sentence is excessive or inadequate.

10 Appellant's counsel has particularised the grounds of appeal in submissions:

1. The sentence was outside of the appropriate range for an offence of this type having regard to all of the circumstances and to similar cases referred to below;
2. The Magistrate erred by applying a 20% reduction to the sentence for an early plea of guilty and that, in the circumstances as this was a plea of guilty entered at the first reasonable opportunity, the appropriate reduction should have been 25%.
3. Undue weight was given to general deterrence and the obligations on the appellant as a police officer; and
4. Insufficient weight was given to the appellant's personal circumstances, prior good character and the punishment received by the appellant by charge, conviction and ensuing financial detriment (as a result of transfer).

11 The primary purpose of particulars is to inform the respondent and a subsidiary purpose is to inform the court. It is inefficient and may be unfair to leave particularisation to the filing of submissions. The respondent however has met the grounds as particularised and does not complain.

The sentence was outside of the appropriate range for an offence of this type having regard to all of the circumstances and to similar cases referred to below;

12 Sentencing is an exercise in judicial discretion and an appeal will not succeed unless an appellant is able to demonstrate its express or implied error.

13 This particular is an assertion of implied error, or put another way, error in the result.

14 An important principle in sentencing public officers for assault is general deterrence as explained by Martin CJ in Strahan v Brennan [2014] WASC 190:

1. It is clear that the circumstances of the offence of unlawful assault may vary widely and it was accepted by counsel for all sides that there is no tariff or range of sentences applicable to that offence. It is also clear that (happily) because of the paucity of cases dealing with abuse of office by police officers there is an insufficient data set to enable any conclusion to be drawn with respect to standards of sentencing customarily observed in relation to cases of this particular kind (see for example: M v O'Neill [2013] WASC 187; Johnson v Ayling [2013] WASC 312; Waters v Page [2011] WASC 31). So then the question is whether, having regard to the other factors applicable to the sentences, it can be concluded that error can be implied from the excessive nature of the sentences imposed. One approaches that task of course starting from the point that imprisonment is a last resort, only to be ordered when no other sentence appropriately reflects the seriousness of the offending and the culpability of the offenders. It is clear from his express language that the magistrate adopted that approach.

1. In my view the magistrate was right to take this approach. There have unfortunately been times in the history of this state when injury and death to those in custody has risen to unacceptable levels. Happily, now is not such a time, but it is necessary to prevent any recurrence of those unhappy times by sending a clear and unequivocal message through the mechanism of general deterrence to those who are responsible for the custody of others to the effect that any breach of the law by them in the discharge of their duties will be taken extremely seriously and will be visited with significant consequences.
2. It is well understood that the police have important and onerous obligations to perform. That is recognised in the special provisions of the law which provide particular penalties for assaults that are committed against public officers including police. It must also be recognised however that police have particular obligations to those who come within their custody, care and control such as those who are under detention and that the importance of the proper performance of those obligations needs to be emphasised by the imposition of sentences which reflect the seriousness with which any departure from appropriate standards of behaviour obligations will be correctly viewed.
3. For these reasons general deterrence is a significant factor in cases of this kind so that others in the position in which Mr Tomlin and Mr Strahan found themselves that day are well aware of the serious consequences for any breach of their obligations to detainees.
4. In those circumstances it seems to me that the personal circumstances of each applicant necessarily carry less weight because the dominant sentencing consideration was general deterrence. Nevertheless, there is no suggestion that the magistrate failed to take proper account and give proper weight to those personal circumstances.

15 Because of the infinite variety of circumstances in which a common assault may be committed, there is no tariff of penalties and resort to a range of cases is not particularly helpful. In Trompler v The State of Western Australia [2008] WASCA 265 (McLure JA):

The notion of a sentencing range reflects the fact that there is no single correct sentence. Sentencing is an evaluative and judgmental process on which reasonable minds can differ. It follows that a sentence is not outside the range merely because it is not the same as a sentence imposed in a closely comparable case or cases (which itself is a rare beast). In seeking leave to amend, the appellant relied on the recent decision of The State of Western Australia v Camilleri [2008] WASCA 217. A single case or indeed a small number of cases cannot establish the range of sentences customarily imposed nor the appropriate range. In any event, Camilleri is not closely comparable and the sentence in that case was undoubtedly merciful [37].

16 This principle was reinforced in Poduti v The State of Western Australia [2011] WASCA 169 (McLure P):

The appellant relies on one case, Kobeissi v The Queen [2000] WASCA 44, in support of the claim that the sentence for receiving is manifestly excessive. To do so reflects a lack of understanding of the purpose and effect of the reference to standards of sentencing customarily imposed. The purpose is to ensure that the sentence imposed on an offender is, having regard to all sentencing variables and in the knowledge that there is no single correct sentence, broadly consistent with sentences imposed in comparable cases: Hili v The Queen [2010] HCA 45. A single case or a small number of cases is of limited assistance in that exercise and cannot establish the range of sentences customarily imposed: Trompler v The State of Western Australia [2008] WASCA 265 [37]. Moreover, it is difficult to discern a range for the offence of receiving because totality considerations ordinarily intrude and the circumstances of the offending vary widely: Eacott v The State of Western Australia [2009] WASCA 112 [15] [14].

17 However, sentences imposed in other cases may provide some guide so long as the limitations of such an exercise are clearly acknowledged.

18 The appellant has cited numerous cases from this and other jurisdictions. In Whitelaw v O'Sullivan [2010] QCA 366 the respondent, a police officer, was convicted after trial in the Magistrates Court of common assault, fined $700 with no conviction recorded. He appealed against his conviction to the District Court and was successful. The prosecution appealed to the Court of Appeal who allowed the appeal and remitted the matter to the District Court for rehearing. The amount of the fine was not in issue. The respondent, who allegedly struck the complainant with a baton three times whilst the complainant was affected by capsicum spray. He was fined $700 and no conviction was recorded.

19 In Burkhart v Bradley [2013] NTCA 5; (2013) 33 NTLR 79 the appellant, a serving police officer, struck the complainant to the side of the jaw with his elbow after the complainant had been restrained and was about to enter the back of the police van. He was fined $400. His appeal against the recording of a conviction was dismissed. Riley CJ said:

In our opinion, the Chief Justice was correct in rejecting this ground of appeal too for the reasons set out in paragraph [29] of the judgment. In summary, the blow was unprovoked, delivered to the victim's head by a policeman otherwise acting in the course of his duties while the victim was secured in handcuffs and held from behind, unable to defend himself. This amounted to an abuse of power against a victim in police custody. The appellant expressed no remorse and did not accept responsibility for his actions. Notwithstanding that the appellant was said to be otherwise of good character and that the assault was momentary and not sustained, it was appropriate in all of the circumstances to record a conviction [34].

20 In Johnson v Ayling [2013] WASC 312 Simmonds J held that the magistrate appeared to have treated one charge as related to taking hold of the complainant's wrist; one charge as related to taking the complainant to the police van where he turned around and pinned her arms against it and one charge relating to the appellant grabbing the complainant's neck. An appeal against conviction was upheld. Simmonds J noted it was not strictly necessary to address the ground alleging that the sentence was manifestly excessive but in view of the argument put to him did address it.

The appellant was unable to find more than very few assault cases which in the submissions for the appellant could be said to be appropriately comparable. Three cases were identified of penalties imposed in the Magistrates Court: Drage v Pitts [2007] WASC 203 (2 month conditional release order and $500 fine for pushing and blows to the face: no appeal against sentence); Police v Wilson, Midland Magistrates Court, 23 November 2010 ($500 fine for police officer punching a civilian to the face where no injury); and Waters v Page [2011] WASC 31 ($500 fine for police officer pushing a bouncer backwards where no injury: no appeal against sentence). In this case it was common ground that Ms Challice had not suffered any significant injury.

...

For now I note that neither Drage v Pitts nor Waters v Page explored the range of factors considered by the magistrates in those cases to be relevant to sentencing, for the reason in large part that neither was an appeal against sentence. I did not have any further detail as to Police v Wilson than those I have provided [228], [231].

22 The appeal against sentence would have been dismissed.

23 In R v Hirst [2013] SASCFC 54; (2013) 116 SASR 300 the Court of Appeal upheld an appeal against conviction and ordered a retrial. The appellant was a police officer who had stopped the complainant who was intoxicated.

At trial the Crown alleged the victim stood up and moved. The appellant was holding a torch in his right hand. The Crown alleged that he struck the complainant in the chest with the butt of the torch, knocking the complainant onto the grassed area of the curb. The appellant was not charged in relation to this incident. There was no suggestion he had acted unlawfully by preventing him from moving away in this manner. While the complainant was sitting on the footpath he verbally abused the appellant. It was alleged the appellant then struck the victim on the right side of his head with an open palm. It was this act that constituted the charge of assault [10].

25 Lovell DCJ imposed a good behaviour bond for 12 months in the sum of $500. This disposition was not the subject of an appeal.

26 The appellant also cited three unreported decisions. I have not been able to find copies of these cases and so the description of the facts and the dispositions comes entirely from the appellant's written submissions.

27 In Police v Wilson (unreported) the appellant asserts that in the Midland Magistrates Court on 23 November 2010, the accused police officer Wilson was given a $500 fine for punching a civilian to the face where no injury was sustained.

28 In Rowe v Arndt (unreported) the accused police officer Arndt was found guilty of common assault in the Brisbane Magistrates Court and was sentenced on 8 February 2011. Arndt was found to have used four knee strikes to the complainant's leg whilst he was being restrained on the ground. The knee strikes was a technique taught to police recruits but were found not to be reasonably necessary to effect the arrest, and that the force used was excessive. Arndt was sentenced to a fine of $1,000 and ordered to pay $2,250 court costs. No conviction was recorded.

29 In R v Brett Butler (unreported) the accused police officer Butler plead guilty to one count of common assault in the Brisbane Magistrates Court. While the complainant was in the Richlands watch house and at the charge counter, Butler grabbed him by the throat, pushed him against walls, head butted him and pushed the complainant onto a concrete bench. The learned magistrate found the behaviour was out of character for the defendant and was a blemish on an otherwise distinguished 20 year career. Butler was sentenced to a fine of $950 and compensation of $400. No conviction was recorded.

30 In addition to the cases cited by the appellant, in Strahan v Brennan fines of $3,800 and $3,250 were imposed on two police officers who were convicted of three counts of unlawfully assaulting a prisoner in a watch house. The fines were not disturbed on appeal.

31 In M v O'Neill [2013] WASC 187; (2013) 230 A Crim R 511 a transit guard was fined a global penalty of $5,000 for three assaults on a commuter. There was no appeal against this sentence. On appeal a spent conviction order was made.

32 Although I have traversed these sentences out of deference to the argument for the appellant, the sample remains too small to give a guideline of an indicative range for the circumstances of this assault. Decisions from other jurisdictions are of limited assistance because sentencing legislation, principles and patterns may be different from those in Western Australia.

33 The appellant also complains the magistrate erred in weighting, asserting that undue weight was given to general deterrence and insufficient weight to the appellant's personal circumstances. It is difficult for an appeal to succeed solely on these grounds, the attribution of weight being uniquely for the sentencing court. An appeal may only succeed if the result demonstrates error. In other words, if the sentence is manifestly excessive, it may be inferred that a weighting error occurred.

34 In the end, a finding that a sentence is manifestly excessive (or inadequate) is essentially a conclusion. In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Gleeson CJ and Hayne J described it as follows:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case [6].

In this case, the seriousness of the offence is in the mid-range on the scale of criminality, for the following reasons.

(a) Most importantly, the offence was committed by a person holding a position of power and authority over the victim - the misuse of that position of authority is a significant aggravating factor: see R v Smith [2004] WASCA 44 [5] (Wheeler J).

(b) The assaults were committed against a person that the Appellant knew was vulnerable and completely unable to defend themselves: see Strahan v Brennan [2014] WASC 190 [104] (Martin CJ).

(c) The offences were committed despite the protest and intervention of another, more junior, police officer.

(d) The force used was of a confronting nature; specifically, the act of essentially standing on the victim's head. The use of such force cannot be characterised as either trivial or technical.

36 Ms Black disputed the characterisation of the offence in (d) and referred to the prosecutor's statement of facts on 3 September 2014, picked up by the magistrate in her sentencing remarks paragraph 2 quoted earlier in this judgment. While I accept the respondent's submissions with the qualification as to (d), I cannot accept the characterisation of the offence as in the 'midrange on the scale of criminality'. That is because the submission overlooks the fact, as found by the magistrate, that there were no injuries sustained by the complainant; that it was not a sustained assault; and that it was not a premeditated assault. The injuries (or lack of) inflicted in an assault must be a highly relevant consideration and other aggravating factors cannot be allowed to swamp the objective features of the physical contact.

37 The appellant also complains that the magistrate did not allow a full 25% reduction in the fine.

38 The parties to this appeal both proceeded on the basis that the Sentencing Act 1995 (WA) s 9AA(2) (4) are engaged. While I accept that s 9AA(2) and (3) may be relevant, if only as statements of principle, s 9AA(4) has no application.

9AA. Plea of guilty, sentence may be reduced in case of

fixed term has the meaning given in section 85(1);

head sentence, for an offence, means the sentence that a court would have imposed for the offence if -

(a) the offender had been found guilty after a plea of not guilty; and

(b) there were no mitigating factors;

victim has the meaning given in section 13.

(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.

(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.

(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -

(a) by more than 25%; or

(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.

(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.

39 The reference to 'head sentence' on one view is a reference to a sentence of imprisonment only where used in s 9AA. On the other hand there is no reason why a fine should not be reduced for utilitarian and other reasons to recognise the benefit to the State and any victim or witness resulting from the plea. However, the use of the words 'head sentence' in s 9AA(4) can only refer to a sentence of imprisonment. That is because there is a reference to a fixed term which is defined in the Sentencing Act s 85 and incorporated into the definition in s 9AA. Section 85 is found in pt 13 headed 'Imprisonment' and is a defined term as 'fixed term means a term that is not life imprisonment'.

40 The provisions of s 9AA are therefore inapplicable.

41 In this case it is argued that the plea was made at the earliest opportunity because there were negotiations with the prosecution which led to the discontinuance of a second charge and the amendments of the facts of the charge. A plea of guilty was intimated at the earliest available opportunity prior to negotiations concluding.

42 The amount to be allowed by way of reduction for the plea of guilty is entirely a matter of discretion and I am unpersuaded that the magistrate erred in reducing the fine by 20%.

43 Despite the reduction of 20% however, the total fine imposed, having regard to all the aggravating and mitigatory features and the objective features of the assault so far exceeded the proper boundaries that I infer there was an error in the result.

44 I set aside the fine of $7,000 and in lieu, impose a fine of $1,000.

Should a spent conviction order have been made?

45 In respect of the spent conviction application the magistrate repeated that she was satisfied that the appellant is a man of prior good character and that he is unlikely to commit this sort of an offence again before continuing:

It is then a matter of the discretion as to whether or not he ought be immediately relieved of any adverse effect a conviction may have upon him. I have had regard to the very helpful case of M v O'Neill [2013] WASC 187 and a summary by McKechnie J at pages 13 to 14 about the relevant factors to take into account in exercising that discretion. The discretion is to be informed by a number of considerations including that the discretion be exercised sparingly, a clear case and for good reason it is desirable.

The court should take into account the nature and seriousness of the offence (both in its commission and referable to the offender and the rehabilitative effect of immediate removal of the conviction, the effect both on the offender and the community being considered. In taking into account the rehabilitative effect, it may be necessary to consider, amongst other things, the impact on employment, present and future, and exceptional hardship to the offender and/or his family.

The court must also take into account the public interest which includes any employer or potential employer being aware of the offences in assessing suitability and reliability for the type of work and general and personal deterrence. In note in this case - and it has been the subject of some discourse in the sentencing proceedings that disciplinary proceedings are yet to occur.

There is no evidence before me that this will affect senior Constable Evans' ability to maintain his employment as a police officer, but I do accept, having read Senior Constable Evans' affidavit and the competitive nature of promotions within the Western Australian Police Force that this may well have an effect on his promotional prospects in the future.

Mr Evans' affidavit also outlines his plans to take international travel. He describes it as 'a trip of a lifetime' when his long service leave accrues in 2017. The travel includes plans to travel to the USA, Canada, South America and eastern European countries and also, as has been outlined in the affidavit and reinforced by submissions today, his concern that a conviction may adversely affect his ability to be accepted into volunteer organisations.

There is, I should add, the concern, obviously, when travelling that a conviction may adversely affect his ability to enter some of those countries on his long service leave and it's clear from the submissions that have been made and the reference I have received that Mr Evans has, in the past, undertaken volunteer work with SES, Carnarvon Sea Rescue, which I understand is also something Mr Evans has transferred to Perth, bush fire brigades and the law force.

He is aware that when applying for these organisations, a criminal history check is routinely or regularly required, and it is his intention to continue with servicing the community if he is posted again to regional police stations, which is his intention in the future. I have taken all of these matters into account, and I accept that it is in the public interest, and a very important factor for the court to take into account is the service that Mr Evans wishes to give to the community in the future as a volunteer. This is not a case, in my view, where specific deterrence has to be given any weight. However, general deterrence is a very weighty sentencing factor.

As was observed the Chief Justice in Strahan v Brennan (2014) WASC 190 at page 196:

A clear and unequivocal message must be sent through the mechanism of general deterrence to those whom are responsible for the custody of others to the effect that any breach of the law by them in the discharge of their duties will be taken extremely seriously and will be visited with serious consequences.

Because of the seriousness of this assault, that being one by a serving police officer whilst on duty, and as I've indicated, particularly upon a person in custody who was restrained and exceptionally vulnerable, I'm of the view that principles of general deterrence do outweigh factors personal to Mr Evans, and that for public policy reasons, a conviction must follow in this case [ts 6 8].

46 It is contended that the magistrate exercised her discretion erroneously in finding that the seriousness of the offence combined with the principles of general deterrence precluded the granting of a spent conviction order for the following reasons:

1. The magistrate placed undue weight on the seriousness of the offence, which was not a premeditated incident and occurred in the heat of the moment, in the context of the appellant being a police officer acting in the course of his duties. It is noted that seriousness is not an automatic bar to the granting of a spent conviction order and examples of the discretion being exercised for comparable offences can be seen in the cases of Whitelaw v O'Sullivan, Rowe v Arndt and R v Butler discussed above.
2. In considering the public interest, it is further contended that the Magistrate failed to give sufficient weight to the value of the appellant being able to integrate into country communities as a country police officer and contribute to the community through volunteering for community services, as he had done in the past, and placed excessive weight on the principle of general deterrence. It is contended the benefit to the community of such public service is included in the 'interests of the community' as referred to by Murray J in R v Tognini & McGuire at para 27:

'It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction will positively aid that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community'.

1. It is contended there is no pressing public interest in being able to continue to have access to the fact of conviction, considering the appellant poses no risk to the public and is unlikely to commit this type of offence. Further, the interests of the community accord best with relieving the appellant of the adverse effects of the conviction, namely having to declare the fact of the conviction when he applies for volunteer work in the community.

47 Although the ground of appeal asserts an error of law in failing to grant a spent conviction order, it is clear what is being challenged is in fact the exercise of the magistrate's discretion.

48 Ms Black contended that an application of the judgment in M v O'Neill would lead to a spent conviction order in the present case.

49 However, M v O'Neill is distinguishable on many levels. Although the principles outlined are of general application, the result was an exercise of discretion by the appellate court, the magistrate not having been asked to make a spent conviction. Youth and rehabilitation were significant factors and M was unlikely ever to be a police officer or security guard.

50 Because the granting of a spent conviction is a matter of judicial discretion, the exercise of the discretion in other cases with different facts is unlikely to be of much precedential assistance. So, as with the cases referred to by Ms Black in her submissions about the excessiveness of the fine, the exercise of discretion under different legislation and circumstances is of little utility.

51 Ms Black concluded her submissions on an emotive note that the magistrate's decision would mean that no police officer who assaulted a person in custody or similar circumstances could ever be granted a spent conviction.

52 That submission must be rejected. The question in this appeal is whether it was open to the magistrate to decline to make a spent conviction order. By 'open' I mean whether the discretion was exercised on proper principles. If the result is not so unreasonable or unjust as to conclude there was a failure to properly exercise the judicial discretion then there is no basis for an appellate court to intervene.

53 Against all the matters in favour of the grant of a spent conviction the magistrate took careful account of the binding authority of Strahan v Brennan and exercised her discretion accordingly.

54 I have taken into account the fact that the assault now attracts a fine of $1,000 not $7,000 but my view remains that the discretion did not miscarry.

55 The insuperable difficulty for the appellant is that the magistrate meticulously applied the law to the factual circumstances and then exercised her discretion. She made no error of principle and the result does not demonstrate error.

56 The result is not a general authority against granting a spent conviction order for police officers guilty of assault. It is simply that in this case it was open to the magistrate to decline to grant a spent conviction order.

1. Appeal against quantum of the fine is allowed, the fine of $7,000 is set aside and instead a fine of $1,000 is imposed.
2. Appeal against refusal to make a spent conviction order is dismissed.