Sentencing Act, s 64

Australian Coal & Shale Employees Union v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Cunningham v R, unreported; CCA SCt of WA; Library No 4003; 4 December 1980

Delacey v R, unreported; CCA SCt of WA; Library No 7687; 31 May 1989

Heferen v R [1999] WASCA 81

House v The King [1936] HCA 40; (1936) 55 CLR 499

James v R (1985) 14 A Crim R 264

King v Power, unreported; CCA SCt of WA; Library No 930289; 27 May 1993

Miles V R (1997) 17 WAR 518

Narrier and Yates v Lewandowski, unreported; CCA SCt of WA; Library No 8429; 10 August 1990

Szthamary, unreported; CCA SCt of WA; Library No 7672; 24 May 1992

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

Weng Keong Chan (1989) 38 A Crim R 337

1 TEMPLEMAN J: In the small community of Yalgoo there is one police officer. On 14 April 1999 that officer was Constable Bruce Needham who was the complainant in this matter. At 9.30 in the evening of that day Constable Needham was called to a disturbance of a kind which is known as a domestic, at the appellant's address.

2 When Constable Needham arrived he found that there were about between 15 and 20 persons in the front yard of the premises and there was some argument involving the appellant. Constable Needham told the appellant to calm down. A little later the appellant was placed under arrest by Constable Needham. As he was led to the police van he struggled and attempted to break free from the constable's grasp.

3 It is not entirely clear what happened then. But without doubt, the appellant inflicted a blow to the constable's head which caused it to snap backwards and he suffered dizziness. The result was that the constable was unable to complete the arrest. He went off to obtain assistance and came back and completed the arrest with the assistance of two civilian persons.

4 A little later on the constable lost consciousness. He was taken to the Mullewa Hospital by ambulance and later transferred to the Geraldton Regional Hospital where he was admitted for two days under observation. Constable Needham suffered concussion and blurred vision as a result of the blow that he sustained.

5 It was as a result of that incident that the appellant was charged pursuant to s 318(1)(d) of the Criminal Code with assaulting a public officer then performing a function of his office. The appellant came before a Magistrate at Mullewa and announced his intention of pleading guilty to the charge. He was then remanded in custody for a pre-sentence report. There is no transcript of the hearing before that Magistrate.

6 The appellant came before a different Stipendiary Magistrate on 13 September 1999. On that occasion the prosecutor set out the facts in the way in which I have already outlined them. A plea in mitigation was then made by the appellant's counsel. Counsel commenced his plea by referring to a statement made to him by the appellant, "I wouldn't punch a police officer."

7 Counsel told the learned Magistrate about a conversation that he himself had had with Constable Needham who had said that he did not actually see the appellant punch him and that he could not be sure that it was a punch that caused his head to snap backwards. He said that it may well have been the case that while he attempted to take hold of the appellant by his shoulders, the appellant had lifted up his arms in a motion to tell the policeman to leave him alone and that the back of the appellant's hand may have come into contact with the constable's chin.

8 Counsel went on to say he had been told by Constable Needham that he had quite a lot to do with the appellant and that on occasions the appellant had attended at the police station and discussed problems that he [the appellant] had been encountering in Yalgoo with his in-laws. Constable Needham told counsel that he had quite a good relationship with the appellant and that it surprised him that on this night that the appellant struck him.

9 Counsel went on to refer to circumstances personal to the appellant, in particular his intention to leave Yalgoo as soon as he could, something which had been difficult because he had had to put his life on hold, as counsel put it, waiting the outcome of the charge. Counsel then referred to the pre-sentence report, the writer of which had said that the appellant was minimising his responsibility by saying that there had been interference from others on the night in question which had caused problems and that intoxication was also a factor. I pause to say that it appears to have been accepted by the appellant that he had been drinking throughout the day in question.

10 Counsel went on to say that the defendant did insist that those two matters were relevant but that he did not shy away from his responsibility.

11 Counsel then referred to the fact that the appellant's de facto wife was supportive of him and intended to go to Yalgoo with him; that they had six children between 13 and 1 year of age and that the appellant had a good work history. Counsel produced a reference from a recent employer of the appellant and referred to the fact that those employers regarded the appellant's honesty as being "absolute". The reference was undoubtedly a good one as between an employer and an employee.

12 Counsel then referred to the fact that he had not seen any medical reports or spoken to any medical persons concerned. He expressed the view that there seemed to be something unusual in the fact that Constable Needham had lost consciousness some time after the incident and had then been kept in for observation. He referred again to the previously good relationship between Constable Needham and the appellant.

13 The learned Magistrate then proceeded to give his reasons. He referred to the fact that the appellant had been charged with assaulting a public officer. He then said that there may be some question mark, as he put it, about whether it was a fist of some other part of the appellant's body which had caused the assault. The learned Magistrate said it was sufficient, as he put it, that the officer certainly could not proceed with the arrest and that he had had to go and find assistance.

14 The learned Magistrate then referred to the pre-sentence report and the statement about the police officer suffering concussion, blurred vision, bruising and abrasions. He referred also to the fact that the officer had made a full recovery.

15 The learned Magistrate went on to say that assaulting a public officer was a serious offence, that the penalty had been increased recently to 10 years imprisonment if the matter had been dealt with in the District Court.

16 The learned Magistrate then went on to refer to what he regarded as a number of aggravating factors. One was that the officer was a lone officer in a country town. The Magistrate said:

"No doubt, as often happens in country towns and bigger towns, the police officers are called to disturbances at premises, so-called domestic disturbances. They're required to go to those premises often, I would have thought, with some reservations, particularly when there are a number of people as there were on this occasion, and particularly where those people are under the influence of alcohol, and this is one of those incidents where the officer has obviously had some problem sorting things out and finished up by being assaulted by one of those there on that night, and that was the [appellant]."

17 The learned Magistrate went on to say that the consumption of alcohol was no excuse, although it may well have been a reason, but that looking at the appellant's record over the years there had been a number of offences which he suspected would have involved alcohol. The learned Magistrate went on to refer to the appellant's admission that domestic arguments occurred over a regular basis, although he had denied using physical violence. The appellant had attributed these problems to excessive drinking and interference from his in-laws.

18 The learned Magistrate then went on to say that the appellant was 32 years of age, at which point he was corrected by counsel who said that his client was 29, not 32. Finally, the learned Magistrate said:

"Now, as I was saying, members of the community, particularly in a small country town, need to be deterred from assaulting police officers who are they giving support to the community. It's the police officer that everyone runs to when there's some problem in the town. He's the one that goes out to the traffic accidents, and generally, is there on duty, 24 hours a day. Now, I understand, before this, the defendant and the police officer had a good relationship, and it seems to me that this makes this matter even worse, because I suppose the police officer would have thought that the defendant would not do what he did on this day.

I don't believe I have any alternative but to impose a custodial sentence. In fact, I would be failing in my duties if I did anything less."

19 The learned Magistrate then asked the appellant to stand, when he went on to say this:

"You've heard what I've had to say. It's my view that assaulting a public officer, in these circumstances, is unforgivable. Your action could even have some effect on him in the future. Who knows? He's certainly going to be lot more wary now, dealing with the people that he knows in the community. What I propose to do is sentence you to 2 years' imprisonment. I'll make you eligible for parole, mainly so that you have an opportunity to sort some of your problems out, so that you can start setting an example to your children."

20 It is from that sentence that the appellant now appeals. There are a number grounds of appeal, but they have been subsumed in the submissions made by Mr Thackaberry today on behalf of the appellant. Mr Thackaberry starts with the approach which an appellate court should take in dealing with a matter of this kind. It is an approach which is common to both parties. It is set out conveniently in the judgment of Brennan, Deane and Gallop J in R v Tait (1979) 46 FLR 386 at 388 in these terms:

"That is, the appellate court should not interfere with the sentence unless is it "shown the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such an error".

21 It is said that the learned Magistrate was in error in finding that it was his duty to impose a custodial sentence. In support of that proposition, a number of matters are relied on. First, it is said that the learned Magistrate failed to take into account the fact that imprisonment is a sentence of last resort. I do not believe that that is so.

22 It is clear, I think, from the learned Magistrate's reasons, which I have already read, that in saying he had no alternative in his view but to impose a custodial sentence, and that he would be failing in his duty if he did anything less, that he did consider other alternative means of disposing of the matter.

23 I have not been referred to a case by counsel but the decision of Maxwell John Nevermann (1989) 43 A Crim R 347 contains a statement by the Chief Justice at page 350, which is in the following terms:

"It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a court of petty sessions. The imposition of such a requirement in every case would cause delays in the administration of justice. The reasons may be stated shortly, without being developed in any detail. It does not follow either from the decision of James (1985) 14 A Crim R 364 or from s 19A of the Criminal Code that because imprisonment is the sentence of last resort, it is necessary in each case to name all the possible alternatives and the reasons for rejecting them": see, for example, Napper v Samuels (1972) 4 SASR 63 at 68, per Bray CJ and Ciccone (1974) 7 SASR 110. It is enough if the sentencing judge indicates in general terms that he has considered the alternatives".

"It is enough if the sentencing Judge indicates in general terms that he has considered the alternatives and states shortly his reason for his adoption of the sentence or other disposition he considers appropriate."

24 It must be borne in mind that the learned Magistrate gave his reasons immediately after hearing from the prosecutor, hearing the plea in mitigation and, having had regard to the pre-sentence report to which the learned Magistrate referred. In my view, the inference to be drawn from his Worship's reasons are that he did consider alternatives and came to the conclusion in the circumstances that it was appropriate to impose a custodial sentence.

25 Returning to Mr Thackaberry's submissions, it is said that by saying that the assault was "unforgivable", as the Magistrate did, he thereby closed his mind to alternative dispositions. It is not clear what the Magistrate meant when he said that the offence was unforgivable. I can only assume that he meant that it was of a very serious nature: and indeed that was the case.

26 For the same reason, I do not accept the next submission made by Mr Thackaberry: that the learned Magistrate started from a preconceived notion that the appropriate starting point as punishment for assaulting a police officer in circumstances of this kind was a custodial sentence.

27 Counsel referred to a number of authorities, and in particular the decision of Owen J in Warrell v Kay (1995) 83 A Crim R 493. At 498 his Honour referred to a number of authorities bearing on appeals against sentence in relation to assaults on police officers in the exercise of their duty.

28 His Honour referred to one of his own decisions in Ugle v Lambrecht, unreported, SCt of WA; Library No 9069; 25 September 1991, where his Honour said:

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

29 Section 19A of the Criminal Code has now been replaced, in effect, by s 6(4) of the Sentencing Act but it is to the same effect, namely:

"That a court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

30 As I have already said, I think the learned Magistrate did impliedly consider other options, and that he did not, therefore, have a preconceived notion that imprisonment was the only disposition. He considered it was the appropriate disposition in the circumstances of this case.

31 It is then submitted that the learned Magistrate failed to take account of the place the offence occupied in the scale of seriousness for offences of this nature. Numbered particulars are relied on. The first is that the assault did not take place in a large crowd that might have been incited to intervene. In fact, it is submitted those present assisted in arresting the appellant. That, I think, is not so much a mitigating factor, if I can put it that way, but reflects a lack of what might in other circumstances have been an aggravating factor.

32 There were in fact a large number of people present at the disturbance, and the reference to persons present assisting in arresting the appellant appears to be in error because the police officer had to go away and get assistance in order to complete the arrest.

33 There is then a reference to the fact that Constable Needham had told the appellant's counsel before the commencement of the hearing that it was not his belief that there had been a deliberate punch by the appellant. This leads to the submission that the appellant was sentenced on the same basis as if he had struck a deliberate and malicious punch or blow to the police officer. It is said that the concession by the police officer was the basis for the change in plea to guilty before the trial.

34 That may be so: but it is of course the case that intention is not an element in the offence with which the appellant was charged and to which he pleaded guilty. Although there was some confusion as to the precise manner in which the assault took place, it is the fact that the police officer was assaulted by the appellant (that has not been contested) and the assault was a serious one having regard to the circumstances and the consequences suffered by the police officer. He subsequently lost consciousness, was concussed and spent two days in hospital even though he made a full recovery. So the fact that the assault may not have been committed deliberately, does not, I think, minimise the appellant's fault.

35 The next submission made on behalf of the appellant is that the learned Magistrate placed too much weight on the fact that the penalty for the offence on indictment had been doubled recently to 10 years. It is said that the learned Magistrate failed to consider that the penalty had been increased by only 1 year to 3 years in his jurisdiction.

36 It is the case that the learned Magistrate referred to the fact that the penalty had been increased recently to 10 years imprisonment if the matter had been dealt with in the District Court. However, in my view it is clear from the reference to the matter attracting a 10 year maximum penalty if dealt with in the District Court, that the learned Magistrate was very much alive to the fact that the offence attracted a different maximum penalty if dealt with summarily by him.

37 The Sentencing Act requires the sentencing court to have regard to the seriousness of the offence by reference to the maximum penalty. In this case it was, as the learned Magistrate said, 10 years imprisonment. The fact that the maximum penalty which could have been imposed by the learned Magistrate was only 3 years is, in my view, irrelevant. In short therefore, the learned Magistrate regarded the offence ultimately as being one-fifth of the way along the scale.

38 There was then a submission that the learned Magistrate incorrectly concluded that the prior good relationship between the complainant and the applicant was an aggravating factor. It was submitted that there is no basis for this conclusion in the material available to the court at sentencing. I do not accept that submission.

39 I think that the learned Magistrate was justified in thinking that, because there had been some relationship established between the appellant and Constable Needham, the police officer might well have believed that the situation was much less dangerous than in fact it was when dealing with the appellant. As the Magistrate said, the police officer would not have been expecting the assault which he sustained. I therefore consider that a breach of the previously good relationship was an aggravating factor, as the learned Magistrate identified it.

40 It is then submitted that the learned Magistrate assumed that the complainant lost consciousness due to the assault when there was no medical evidence submitted to support that. It is submitted that, making such an assumption with respect to the seriousness of the injuries "could mean that there was a manifest error of fact".

41 The pre-sentence report referred to the police officer losing consciousness, suffering concussion, blurred vision, bruising and abrasions. The facts as outlined to the court by the prosecutor referred to the police officer later losing consciousness. It is not clear when after the incident that occurred: but there is clearly an inference that the loss of consciousness resulted from the assault, being an incident of the concussion.

42 Those matters were not put in issue before the learned Magistrate. It seems to me in those circumstances that he was entitled to assume that the loss of consciousness was occasioned by the assault, which is, of course, a mark of its seriousness.

43 It is then said that the learned Magistrate failed to take into account a number of relevant matters in relation to the assault. They are as follows: there was only one blow; there was no malice or premeditation; the blow or the seriousness of it was unintentional; and no weapon was involved.

44 Then it said that the assault was of extremely short duration, that the police officer made a full recovery with no lasting injuries, that the assault was not committed in company and no other damage or violence was involved.

45 It said then that account should have been taken of remorse expressed by the appellant, his plea of guilty and his intoxication. To those matters have been added this morning the fact that the assault was not committed while the appellant was trying to escape.

46 Now, a number of those matters are not I think mitigating circumstances but matters which, had they existed, would have been aggravating circumstances. The facts referred to as being incidents of the assault, that is to say there being only one blow, no malice, it being unintentional, etcetera, cannot I think be stated with any degree of confidence because nobody really knows what happened.

47 I have already said that intention is not an element of the offence and that, however caused, the assault had very serious consequences, and indeed of course the appellant pleaded guilty.

48 So far as remorse is concerned, the author of the pre-sentence report referred to the fact that the appellant had sought to minimise his responsibility to a certain extent by casting blame on the members of his wife's family. That is a fact which the learned Magistrate was entitled to take into account. Although counsel said in his plea in mitigation that the appellant did not shy away from his responsibility, that, I think, must be placed in the overall context.

49 The fact of intoxication was something that was referred to by the Magistrate but, as he said, that was no excuse and certainly not a mitigating factor. The fact that the assault was not committed while the appellant was trying to escape is another matter which I think is not a mitigating factor. It would have been an aggravating factor had that been the case.

50 It is then said that the learned Magistrate failed to consider the appellant's record, there being no previous convictions for assaulting a police officer or for resisting arrest. While that is true, there were in the record a number of minor assaults over the years and there was, it seemed, evidence of what appears to be a long-standing problem with alcohol which, according to the pre-sentence report, had not been overcome in previous sentences which involved attempts at treating that particular problem.

51 It is then said that the learned Magistrate failed to consider the reference which the appellant had provided. As I have already said, that was a good reference as between an employer and an employee. It showed that the appellant was a valued member of the workforce, he was honest, good-natured with a good sense of humour, and that he approached his work with diligence and good sense.

52 The writers of the reference, who were station owners, said that the appellant was currently employed assisting with shearing and that they hoped to continue this association. All that, it seems to me, suggests that when the appellant is not affected by alcohol he conducts himself in a proper manner. But the reference really had nothing of any relevance to say in relation to the particular offence, particularly having regard to the fact that there had previously been non-custodial sentences imposed on the appellant and that he had not apparently used the opportunities afforded by those sentences to overcome the alcohol problem which was clearly a feature of the present assault.

53 Next, it is said that the sentence itself was manifestly excessive, the offence not being at the more serious end of the scale of like offences and that offences higher up the scale had recently attracted much lower penalties. Three particular cases were cited, the first relating to Douglas McConnen who had been sentenced in the Geraldton Court of Petty Sessions on 12 August 1999 to a penalty of $800 fine for assaulting three police officers who were performing a function of their office by trying to arrest him.

54 Nothing is known beyond those facts of the circumstances in which Mr McConnen had been sentenced. Nothing is known about his age or antecedents. The fact that he was assaulting three police officers, however, makes the offence less serious. It has been said repeatedly that the courts must protect single police officers who are obviously in a far more precarious situation than would be three officers.

55 Reference is then made to Warrell v Kay, to which I have already referred, in which the offender was sentenced on appeal to 6 months probation and 50 hours community service after attacking and threatening two police officers with a brick.

56 It is conceded that powerful mitigating factors were present. That is indeed the case as appears from that decision. The appellant in that case was a 45 year-old female, who had not been imprisoned previously, who had had a minor conviction in 1985, who had remained out of trouble until 1990 and, since a conviction in 1990, had been of good behaviour and had reduced her intake of alcohol.

57 Further, the appellant had the permanent care of her 7-year-old grand daughter who apparently was otherwise without any support, or may have been without any other support, there being no evidence before the court on that point.

58 There are other important distinguishing features. First, the police officer in that case did not suffer any serious injury: the injury was minimal. The police officer was not alone, there was not a crowd present and the maximum penalty when the matter was heard was 5 years imprisonment, not 10.

59 Reliance is then placed on the decision of the Court of Criminal Appeal in Farmer v R, unreported; CCA SCt of WA; Library No 940075; 4 February 1994. That was a case in which there were two police officers who endeavoured to quieten one member of a group of some 30 Aboriginal persons.

60 The applicant there had run through the group of people present and had punched the constable twice in the face, apparently without serious consequences. The offender was 22 years old. The sentencing Judge had apparently not given any consideration to the imposition of a probation order, which took into account the applicant's prior good, adult record. That was also a case which was heard before the maximum penalty was increased to 10 years.

61 It is then said that in the present case the appellant had numerous antecedents and factors personal to him which were mitigating factors and which were not given sufficient weight in sentencing. First, it is said that there was no prior conviction for either assaulting a police officer or resisting arrest. As I have said, that is true; but I have already referred to the appellant's record of previous convictions which the learned Magistrate had before him and which he was clearly entitled to take into account.

62 Then it is said that the appellant intended to make a fresh start in another town away from one of the recognised causes of his actions that night, and that is his de facto wife's family. It is true that the learned Magistrate did not refer to that in his sentencing remarks but it was something which he had been told and which was in the pre-sentence report.

63 One can infer that he had regard to that factor to the extent that it is relevant but it seems to me, from the tenor of the learned Magistrate's remarks, that he regarded matters such as that as being of lesser weight than the seriousness of the offence and the other aggravating factors to which he referred.

64 The same may be said about the remorse shown by the appellant and the fact that he did not deny responsibility for his actions. The appellant's high level of intoxication is also relied upon. But as I have said, that was not a mitigating factor and it was in any event referred to by the learned Magistrate.

65 It is then said that an alternate sentence would have been appropriate and that a fine should have been considered. As to that, it was stated in the pre-sentence report that the Fines Enforcement Registry had advised that the appellant had an amount of $3253 outstanding in unpaid fines. It seems to me that even if the learned Magistrate had expressly referred to the possibility of a fine, the fact that that amount was outstanding, given the appellant's financial circumstances, would have militated against it.

66 Then it is said that as the appellant was not employed, a community service order could have been sufficient to fulfil the need for deterrence in this type of offence. Reference is again made to Warrell v Kay.

67 The case is also referred to in support of the proposition that a period of probation was also an appropriate sentencing alternative, not being a soft option.

68 It is said that the pre-sentence report noted that the appellant had successfully completed such sentences in the past. Although that is true, I think it is fair to say that the pre-sentence report does not speak enthusiastically about the imposition of a non-custodial sentence as an appropriate disposition of this case.

69 The confidence, which was referred to in the pre-sentence report, was the appellant's confidence in his ability to comply with a community based sanction, the obligations and conditions of which it was said had been clearly explained to him. But I think more to the point is the fact that in a case of this kind, which was a serious assault on a lone police officer, it has been said repeatedly that imprisonment is an appropriate disposition.

70 My impression of the learned Magistrate's reasons is that he considered that in all the circumstances the imposition of a custodial penalty was appropriate. I do not think it can be said that he mis-exercised his discretion in so doing.

71 Although his reasons were relatively short - and as I have said, that is acceptable - I think his reasons were sufficiently clear to make it plain that he regarded the offence as serious, he considered lesser penalties than imprisonment, but came to the view, in all the circumstances, that imprisonment was the appropriate penalty.

72 As I say, I am not persuaded that he erred in his discretion and I therefore conclude that the decision to impose a sentence of imprisonment should not be interfered with. The question then is whether the 2 year period was manifestly excessive.

73 Given that the maximum penalty was 10 years imprisonment and that this offence was therefore viewed by the learned Magistrate as one-fifth of the way along the scale, I do not think it could be said that it was manifestly excessive in all the circumstances, which, as I have said and repeat, include the seriousness of the assault, however it was caused.

74 It may be that the sentence was on the high side and that other Magistrates who were minded to impose a sentence of imprisonment might have imposed a lesser period of imprisonment, as I might have done myself had I been dealing with this matter de novo. But I am not dealing with it de novo. I am looking to see whether the learned Magistrate mis-exercised his discretion.

75 I am not persuaded that he did for the reasons that I have given because it seems to me that although on the high side, a sentence of 2 years imprisonment in all the circumstances is within the range which might reasonably have been imposed. So, for all those reasons, I have come to the conclusion that the appeal should be dismissed.