File No : DY 221 of 2006, DY 222 of 2006

Sentence - Two offences assaulting public officer - Whether error in refusing to order parole - "Global" sentence term not known to law - Error to pass global sentence

Sentencing Act 1995 (WA), s 88, s 89

Austin v Grapes & Ors [2004] WASCA 102

Pickett v The State of Western Australia [2004] WASCA 291

Yanko v The Queen [2004] WASCA 37

1 McKECHNIE J: On the afternoon of 17 March 2006 at Lytton Park Reserve in Derby two police officers were in the process of effecting an arrest when the appellant approached them, shouted threats and threw empty beer cans at the officers. At the time she was in company with about 50 other intoxicated people. Another person then punched a female police officer causing her to hit the ground. As the officer got back to her feet the appellant rushed at her and pushed her back. The officer was then struck and knocked senseless by another person. The appellant attacked her again. The entire crowd then turned on the police. The appellant rushed at the police officer, picked up a rock the size of a fist and threw it at the complainant striking her on the shin. The appellant threw a rock at a male police officer striking him on the right shoulder causing abrasion and bruising. The appellant's role in the affair was part of what was a near riot involving many intoxicated people attacking the police.

2 On 3 April 2006 the appellant appeared in the Broome Magistrates Court and pleaded guilty to two charges of assaulting a public officer. At the time she was on parole for a similar offence.

3 Counsel for the appellant, in a plea in mitigation, described the thrust of the submission as to ask for further eligibility for parole. It was conceded that it was appropriate the appellant receive an immediate custodial sentence. There was material which suggested that the appellant went very well on parole apart from this episode of re-offending. The appellant is a sole parent with six children aged from five to 21 years. Counsel submitted that the offences occurred when she was intoxicated. A plea of guilty was her acknowledgement that she was sorry for what had happened.

4 It appears from reading the transcript that the issue of violence shown to police, and penalties in consequence, had been a hot issue in Broome because the Magistrate in his sentencing remarks made reference to the police sending an Inspector criticising earlier sentences. He made the point, with respect a very valid point, that the prosecution section had lowered their claims by not appealing if they thought the decision was wrong.

5 He said he would not compare the appellant's case with the case of previous week. He noted that barely 9 months before, the appellant had appeared in Court and been sentenced to 9 months' imprisonment. The Magistrate imposed a sentence of 16 months' imprisonment without parole.

"1. The learned Magistrate erred at law by not making the appellant eligible for parole."

6 The appellant submits that the effect of s 89(4) of the Sentencing Act is that there is no bias towards the grant of parole eligibility but there is also no bias away from parole. The appellant cites in support of this proposition Austin v Grapes & Ors [2004] WASCA 102 per Simmonds J at [24] and [25]. With great respect, I am unable to agree with the approach of Simmonds J. I do not consider the decision upon which he relies (Yanko v The Queen [2004] WASCA 37 at 55) is authority for the proposition that Simmonds J asserts at [25]. I consider the correct position is that set out in Pickett v The State of Western Australia [2004] WASCA 291 at [7].

7 The appellant submits that the Magistrate misdirected himself in relation to the record. The Magistrate said the record was not a short record. It is submitted, I think correctly, that the length of a record does not necessarily reflect its significance. Of obvious significance to a record is whether there are offences of a similar character. The penalties imposed may also be significant. The appellant had two convictions for assault and one conviction for unlawful wounding, all of which attracted fines of $200 or less. The record also disclosed the offence for which she was on parole. This was more serious. It is an interesting question whether one offence might constitute a significant record or whether a number of offences, obviously not serious by reason of their penalty, might constitute a significant record. It is a question I avoid in this case because at least two factors set out in the Sentencing Act s 89(4) were met. By s 89(4)(a) a factor is that the offence is serious. The appellant's counsel correctly conceded before the Magistrate that the offences came into that category. By s 89(4)(c) a factor is the offender, when released from custody under a release order made previously, did not comply with the order. It is true that the appellant was meeting her appointments while on parole. However, she offended and in a serious way thereby bringing herself under s 89(4)(c). The discretion is entrusted to the Magistrate. The discretion to refuse parole having been enlivened, I am not persuaded that the Magistrate erred in declining an order for parole. He made no error of principle and his conclusion is not manifestly wrong.

"4. The learned Magistrate erred at law by failing to consider alternatives to immediate imprisonment."

8 Counsel appropriately conceded that the only sentence available was a sentence of imprisonment to be served immediately. There is no substance in this ground.

"3. The learned Magistrate erred at law by imposing a sentence which was excessive in all the circumstances."

9 It cannot be stressed too strongly that assaulting police officers carrying out their duties will almost invariably be met with a sentence which has a denunciatory and deterrent purpose. It is in the nature of policing that officers will from time to time find themselves in harm's way. However, the community, through the courts, can support police officers carrying out their duty by imposing, where appropriate, a sentence to bring home to the offender, and to others, the severe consequences of their actions.

10 The appellant did not strike the first blow but contributed substantially to the attack on both officers in circumstances where there was a wild and unruly crowd and the actions of attacking the officers were provocative. There were two legally protected interests. Reflecting Parliament's concern over attacks on police officers the penalty has been increased to one of 3 years' imprisonment.

11 The Magistrate concluded his sentencing remarks as follows:

"... Here you're back with two assaults on police officers. There will be a 16 month imprisonment term without parole. Thank you. You may stand down."

14 I have difficulty with the concept of "a global sentence" in relation to sentences of imprisonment. The service of terms of imprisonment is governed by the Sentencing Act s 88. The offender may be sentenced to concurrent terms, cumulative terms or partly concurrent terms. The Magistrate erred in imposing a global sentence, a term not known to law. By doing so it cannot be known whether he regarded one assault as more serious than the other, whether he regarded the assaults as each attracting concurrent sentences because they arose substantially out of the one transaction, or whether he regarded one assault as requiring a separate or partly separate punishment from the other. It would be merely speculation on my part to conclude that his sentence could be explained as two concurrent sentences of 16 months each. The Court record is endorsed "global sentence". In the circumstances this ground of appeal succeeds.

15 It is necessary for me to re-sentence the appellant.

16 In view of the nature of the assaults, and the need for a denunciatory sentence, a sentence of imprisonment is inevitable. The offences occurred close in time and essentially arose out of the same act so that I will make each sentence concurrent. The appellant is sentenced to a term of 12 months' imprisonment on each charge of assaulting a public officer. I consider afresh the question of parole. As I have earlier indicated, the discretion to grant parole was enlivened because at least two of the four factors in s 89(4) of the Sentencing Act are present. However, I would exercise my discretion differently from that of the Magistrate while acknowledging that his exercise of discretion was not a demonstrable error. I place greater weight on the fact that these offences occurred while the appellant was in a state of severe intoxication. She appears to be making some progress, albeit glacial, in addressing this issue in her life. She has a number of children in her care. The overall protection of the community will be enhanced if she is in fact able to address her alcoholism and this is more likely to occur if she has the benefit of parole supervision while serving a portion of her sentence in the community.

17 I allow the appeal, set aside the sentence of 16 months' imprisonment without parole and in lieu order a sentence of 12 months' imprisonment on each offence to be served concurrently, with a parole eligibility order, such sentence to take effect from 3 April 2006.