Supreme Court of Tasmania|1999-03-04|Before: Wright J

Ponsford, David Paul v Wynwood, Shane Jeffrey [1999] TASSC 21 (4 March 1999)

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - General principles - Sentencing discretion - Whether sentence was manifestly excessive - Principles of general and specific deterrence.

Boyle (1987) 34 A Crim R 202; Sheldrick v The Queen [1960] Tas SR (NC 3); Suckling v Ling 27/1993; R v Causby [1984] Tas R 54; R v Percy [1975] Tas SR 62; Salt v Galkowski (1978) 19 SASR 130; Whittle v McIntyre [1967] Tas SR (NC 6); R v Rouse 64/1990, considered.

Judgment ID Number: [1999] TASSC 21

1 The applicant seeks to review a sentence of imprisonment of three months imposed upon him in respect of three counts of assaulting a police officer and one count of obstructing a police officer, contrary to the Police Offences Act 1935, s34B(1)(a)(i) and one count of threatening a police officer, contrary to the Police Offences Act, s34B(1)(b). He pleaded guilty to all charges in the Court of Petty Sessions at Launceston on 17 December 1998.

2 The various offences were particularised as follows:

"1 You are charged with on the 4th October, 1994 at Devonport in Tasmania, assaulting Nola MAXWELL a Police Officer in the execution of her duty, by grabbing her by the shoulders and ramming her into a police vehicle.

2 You are charged with on the 4th October, 1994 at Devonport in Tasmania, assaulting Nola MAXWELL a Police Officer in the execution of her duty, by grabbing her around the shoulders and shaking her violently.

3 You are charged with on the 4th October, 1994 at Devonport in Tasmania, assaulting Jason RYBARCZYK a Police Officer in the execution of his duty, by pushing him to the ground and kneeing him in the head.

4 You are charged with on the 4th October, 1994 at Devonport in Tasmania, did threaten one Nola MAXWELL, a Police Officer in the execution of her duty, by saying the words, 'Fucking let her out of those handcuffs or I'll fucking kill you'.

5 That on the 4th October, 1994 at Devonport in the State of Tasmania, did wilfully obstruct one Peter GIBSON a Sergeant of Police in the Tasmania Police Force in the execution of his duty by pushing and shoving him while he was trying to arrest another person."

3 The sentence of three months' imprisonment was a global sentence and was imposed in respect of all five offences on 21 December 1998. The delay between the commission of the offences and the hearing on 17 December 1998 appears to be explicable principally, if not solely, by the applicant's many absences at sea in pursuit of his occupation as a fisherman.

4 The grounds upon which a review of the sentence is sought are as follows:

"1 The Learned Magistrate erred in fact and in law in that in all the circumstances of the case the sentence in relation to Complaint number 32339/94 of 3 months imprisonment was manifestly excessive.

2 The learned Magistrate erred in law when imposing sentence upon the appellant he failed to take into account or to give sufficient weight to the following mitigating factors:-

(a) That the appellant was being sentenced for his first ever conviction of the crimes of assault;

(b) That the appellant was the sole carer of his son who suffers from attention deficit syndrome.

3 The learned Magistrate erred in law when imposing sentence upon the appellant he gave no weight to the following factor:-

(a) The appellant's lack of record of prior convictions.

4 The learned Magistrate erred in law in imposing a sentence which, when viewed in totality with the sentence which was imposed in respect of the crime of assault, was in the circumstances a crushing sentence.

5 The learned Magistrate erred in law when imposing sentence upon the appellant he failed to consider the appellant's prospects for rehabilitation and consequently failed to suspend all or part of the sentence."

5 The prosecutor stated the facts to the learned magistrate in the following terms:

"This occurred at about 1.25am on Tuesday the 4th October 1994. Police were called to a large disturbance in the vicinity of 73 Lovett Street, Devonport. There they found a number of uninvited persons on the lawn and driveway at that address. They have attended and it appeared that there was a brawl in progress at the time. Seven police officers, 2 security officers and civilians took a considerable time to restore order to these events, sir, and during their attendance Mr Ponsford came to police attention.

Constable Nola Maxwell was placing an arrested female in a police vehicle and it was at this time that Mr Ponsford grabbed her by the shoulder and slammed, her into the car saying that she wasn't going to lock her up and 'take the handcuffs off her'. He then again grabbed Constable Maxwell with both hands around the shoulders, shook her violently and shouted out:

'Fucking let her out of the handcuffs or I'll fucking kill you.'

Police went to the assistance of Constable Maxwell and Mr Ponsford released his grip. Another police officer took hold of Mr Ponsford and informed him he was under arrest for assault. He began to lead him to police vehicle, when others intervened and grabbed the other police officer and Mr Ponsford was released, from his grip , and one at those persons was then grabbed by that police officer, who was Sergeant Gibson, and he was arrested. While he was doing that Mr Ponsford pushed and shoved at Sergeant Gibson saying:

which prevented the arrest being attempted upon that person by Sergeant Gibson. Mr Ponsford then started to leave the scene when Constable Rybarczyk grabbed him by the arm saying, 'You are under arrest'.

Constable Rybarczyk forced Mr Ponsford to the ground by pushing him in the chest and while he was on the ground the officer was hit in the left side of the head with Mr Ponsford's left knee. Mr Ponsford then, because of this, managed to break free and left the scene and sometime later arrived at the Devonport police station saying, 'I believe you've got my men here, what's going on. I've come to collect my crew.'

He was charged and searched and placed in the cells and declined to offer his name and address when invited by police."

6 In mitigation, Mr Redfern of counsel for the applicant, first acknowledged that his client admitted his prior record, which consisted of four traffic infringement notices for speeding, one for failing to wear a seat belt and two convictions in November 1993 - one for driving whilst a person in the vehicle was consuming liquor and one for being an unlicensed driver on the same occasion. Obviously these were of little, if any, significance in relation to punishing the applicant for his involvement in the offences currently under consideration.

"The defendant is 36 years of age. He lives in Stanley. He is separated from his wife. He has two children from the marriage, a 16 year old girl and a 12 year old boy and they both live with him, he has the sole responsibility for their care.

As to his education and work background, he was educated at the level of Year 9 at St Gregory's Boarding school at Campbelltown in Sydney, NSW, and he has since carried out the occupation of fisherman for most at his life, working off various ports in Tasmania, New South Wales and South Australia. He is on a sole parent pension of $500 per fortnight, pays rent of $200 a fortnight, has food expenses of $100 a fortnight and has car expenses of $150 a. fortnight and hydro and phone expenses of $30 a fortnight. I am instructed that leaves him with a disposable income of $20 a fortnight.

As to the offences, Your Worship, as you can appreciate, they were some time ago and memories fade. He had been on the fishing boat with his crew in the slipway in Devonport and he was being given a lift to the boat and the car pulled up at what was a complete stranger's house. One of the girls got out and a fight ensued and then the ensuing melee as we have heard from the prosecution, there was a lot of brawling and so forth and it became very confused.

Your Worship I am instructed the defendant puts down his actions to intoxication and the fact that he was trying to basically break up the brawl and extract his crew as there was work to do and he became caught up in it."

There was then a brief dialogue between the learned magistrate and Mr Redfern:

"MAGISTRATE: Well, you do not break up a brawl by assaulting two police officers and obstructing them and threatening one of them in the way in which he did. This, in a crowd scene, which clearly was an almost impossible scene for police and other people there to control.

MR REDFERN: Yes. It was a very difficult situation in which ...

MAGISTRATE: I regard it as a very bad case indeed.

"In, my final submission, Your Worship, I would point out there are no relevant prior matters, it was some time ago. I would submit it is out of character for this defendant. He has since settled down and has not been in trouble since. He has responsibilities for both his children and this involves him in a domestic situation where he cannot pursue his normal .fishing work anymore and he has pleaded guilty at an early stage, Your Worship."

8 Four days later the learned magistrate imposed the sentence now complained of and, in doing so, made the following observations:

"David Paul Ponsford you have pleaded guilty to three charges of assaulting police, to one charge of threatening a police officer and to one charge of obstructing police."

His Worship then reviewed the facts stated by the prosecutor and continued:

"On any view the police were having trouble controlling events. Your actions also clearly contributed to police difficulties. Your actions also enabled you to escape being taken into custody at the scene following upon your arrest. On the facts you showed no reluctance in assaulting the female officer in the way in which you did, nor with threatening her nor in assaulting the other officer by kneeing him in the head whilst he was on the ground. Your actions also prevented the arrest of another person or at least the taking into custody following his arrest of that other person.

In all you showed no respect for police authority, nor for the personal integrity, that is, the physical integrity of the police you assaulted. Your behaviour was extreme and sustained and I think the fact that you later attended the police station demanding the release of your crew says much about your attitude, which on the face of it, was one of aggression and arrogance and utter disregard for police as agents of lawful authority.

This is the type of case where police should know that they will have the backing of the courts, that is, where confronted with a difficult and hard to control scene they have nonetheless shown willingness to perform their duty. The encouragement of the performance of that duty in such circumstances is a consideration for the courts. You have no similar previous convictions but this case is so bad that that is a fairly minor consideration.

I take into account your counsel's submissions as to your antecedents and personal circumstances. The matter is four years old but you cannot claim the benefit of that as its age is largely due to the fact that you originally failed to appear.

This is a clear case for the imposition of a penalty by way of both general and personal deterrence. You are convicted upon the complaint and upon the complaint as a whole you are sentenced to a term of three months' imprisonment. You will also pay the victim of crime levy of $20 upon each of the five charges, a total of $100, and you will also pay the costs involved of $74. 1 allow sixty days from your release within which such payment is to be made. I will now adjourn."

9 Counsel for the applicant on the motion to review, Mr Mobsby, referred to numerous cases to establish the somewhat trite principle that charges under the Police Offences Act, s34B, do not necessarily warrant an immediate custodial penalty. He also argued that imprisonment would not normally be appropriate in respect of any such offence unless a weapon was used by the assailant or a significant injury was caused to the relevant police officer. No direct authority was cited for this latter proposition and I do not consider any such principle to be established by inference from the plethora of cases referred to.

10 Mr Mobsby referred to some decisions in previous lower court appeals in which offences of a broadly similar kind to those now in question had resulted in even shorter sentences of imprisonment than 3 months being overturned and non-custodial penalties being imposed in lieu. However, in my opinion it is quite clear that any attempt to distil a conclusion that the present sentence was manifestly excessive on the basis of such selective empirical material cannot succeed.

11 Mr Mobsby then turned to consider the actual circumstances of the present charges and the personal circumstances of the applicant, including his age, family responsibilities and prior good character. He submitted, correctly, that in extreme cases, the impact of a gaol sentence upon an offender's family may be taken into account (see Boyle (1987) 34 A Crim R 202). In the present case, there was no evidence before the learned magistrate that the applicant's son "suffers from attention deficit syndrome" as alleged in ground 2(b) of the motion to review, although there was evidence that the applicant did have the sole responsibility of caring for his 16 year old daughter and 12 year old son. There was, however, no evidence that if the applicant were to be incarcerated these children would be left to fend for themselves. There was no suggestion that his estranged wife or a close relative would be unable to care for them. No other feature of the case would bring the present applicant's predicament, vis a vis his family, within the "extreme or exceptional circumstances" principle discussed in Boyle, in my opinion.

12 Mr Mobsby also advanced the argument that the events giving rise to the present charges showed that the offences were unpremeditated and, whilst that is true, it does not provide a sufficient basis for overturning the sentence, either of itself, or when viewed together with other relevant circumstances. An offender's prior good character is always a matter requiring consideration, and this was acknowledged by the learned magistrate when imposing sentence. His Worship did not call for a pre-sentence report but he accepted Mr Redfern's recitation of relevant facts without qualification and he took account of each of those matters when considering sentence. He reserved his decision for four days. After doing so the learned magistrate formed the view that, notwithstanding the defence submissions, these were the types of offences where the deterrent aspect of punishment should be predominate (see Sheldrick v The Queen [1960] Tas SR (NC 3) at 185). No objection has been taken to anything which the learned magistrate said when imposing sentence, save as to the following comment, viz:

"... I think the fact that you later attended the police station demanding the release of your crew says much about your attitude ..."

Mr Mobsby submitted that this comment betrays the fact that the learned magistrate sentenced the applicant, at least in part, on the basis of behaviour not comprised within the offences complained of, but I cannot agree with this. Previous or subsequent words and conduct will often confirm a prima facie impression, or assessment of character or motivation which has been based upon the unlawful conduct itself. I see the learned magistrate's comments as doing no more than giving expression to this process.

13 The learned magistrate was entitled to view the applicant's conduct as particularly reprehensible and deserving of condign punishment, notwithstanding prior good character. He was under no obligation to obtain a pre-sentence report (Suckling v Ling 27/1993) and it has not been suggested that in any other respect he acted upon the basis of insufficient material.

14 Mr Mobsby submitted that the sentence imposed was a "crushing" sentence, but I find it impossible to apply that epithet to a sentence of three months' imprisonment. Courts sometimes speak of "crushing" sentences where the extreme length of the sentence in question is likely to result in feelings of chronic hopelessness or despair on the part of the prisoner which will stifle any motivation he may otherwise have to mature or reform. It is not a descriptive term which I would choose to justify interference with a sentence which is not in other respects manifestly excessive. Some sentences are by their very nature "crushing" but are properly imposed nonetheless by reason of the extreme gravity of the offence. A "crushing" sentence is not, per se, manifestly excessive, but, in any event, this was not a crushing sentence.

15 In sentencing an offender, a court is nearly always confronted by the tension which arises from the availability of punishments designed to encourage the future good behaviour of the offender, such as probation, community service or a suspended sentence, on the one hand, and punishments designed to deter either the prisoner or the public in general from committing offences of a like kind, such as an immediate prison sentence, on the other. Despite the lack of empirical evidence unequivocally supporting the conclusion that heavy sentences operate as a deterrent, there can be little doubt, I think, that in a community which is not grossly deprived of social and other amenities, citizens of average intelligence desist from committing crime, not only because of the possession of sound moral and ethical values, but also because of the perception that violence or serious dishonesty may, and probably will, result in a term of imprisonment.

16 It was submitted that because of his antecedents, the applicant's sentence should have been suspended, but as Cox J said in R v Causby [1984] Tas R 54 at 67, "... a defendant does not qualify for a suspended sentence merely by persuading the court that the likelihood of repetition is slight or non-existent" and, as Neasey J observed in R v Percy [1975] Tas SR 62, to suspend a sentence once imposed is to substantially deprive it of its general deterrent value.

17 In Salt v Galkowski (1978) 19 SASR 130 at 133 Mitchell J said:

In Adams v Burton (1976) 14 SASR 48, at p 49 which was an appeal by an offender aged twenty years who was sent to prison for a first offence, I expressed the view that 'it would be unfortunate if the idea were to become prevalent that this Court will always set aside a sentence of imprisonment where it is imposed upon a first offence unless the offence is a particularly serious one.' I adhere to that view."

18 Burbury CJ in Whittle v McIntyre [1967] Tas SR (NC 6) at 263 said:

"It is necessary to say emphatically that a police magistrate in deciding what the appropriate penalty is for an offence, is entrusted by the law with a very wide discretion. An appellant is not entitled to ask the Supreme Court to substitute its opinion for that of the police magistrate. The appeal against sentence is a limited appeal. The Supreme Court can only properly allow an appeal against sentence if it plainly appears that the police magistrate made some error in the exercise of his discretion or that a sentence imposed is so manifestly excessive that it is only explicable upon the view that the police magistrate did err in some way. Indeed, it is of great importance that a police magistrate should have a wide discretion in the delicate and anxious task of sentencing - so long as he takes into account all proper factors it is for him to determine what weight should be attached to each. It is not a good ground of appeal to say, 'The magistrate ought to have given more weight than he did to a certain factor'."

19 I expressed similar views in R v Rouse 64/1990 whilst sitting as a member of the Court of Criminal Appeal when I said:

"It is trite to observe that this court should only intervene in the clearest cases. A sentencing judge has a wide discretion and this court should not be seen as a tribunal where punishments are refashioned as a matter of course to reflect the predilections or idiosyncrasies of its individual members."

20 In my opinion, the only substantive question in this case is whether the sentence actually imposed upon the applicant was manifestly excessive, bearing in mind the learned magistrate's undoubted intention to make the punishment such that it would serve as a general deterrent to those who may be disposed to assault or impede the police in the execution of their duty.

21 I have concluded, not without considerable hesitation, that the sentence imposed exceeded the minimum which was necessary to achieve the stated purposes and this, after all, is the proper aim of the sentencing process. There are two features about the case which have caused me to reach this conclusion. In the first place it is now nearly 4½ years since the offences occurred. True it is that this delay has been caused in the main by the applicant's own conduct, but if, as claimed, the applicant has kept out of trouble since that time, it is fairly clear that an actual custodial sentence is not required to deter him personally. Secondly, although it is very apparent that the applicant was violent, abusive and obstructive at the relevant time, there was no evidence that he caused any injury to any police officer or anyone else. This may have been a fortuitous outcome having regard to the nature of the allegations in the first three complaints, or the prosecutor may have simply forgotten or omitted to inform the learned magistrate about any injuries sustained. However, the fact is that no injuries of any kind were reported to the Court and it cannot be assumed in such circumstances that anything other than transitory discomfort was caused to the relevant police officers.

22 The motion to review will be allowed and the sentence appealed from will be quashed. I will re-sentence the applicant myself rather than remitting the matter to the lower court. However, before doing so, I require a pre-sentence report, including an assessment of the applicant's suitability for community service. This should in no way be taken as an indication that I have determined that a custodial sentence is inappropriate. The applicant will be bailed to appear again on Tuesday 30 March 1999 at 4.15pm. It is a condition of bail that he report to the Probation Service within twenty-four hours and co-operate with the Service in the preparation of the report mentioned above.

Ponsford, David Paul v Wynwood, Shane Jeffrey [1999] TASSC 21

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Ponsford, David Paul v Wynwood, Shane Jeffrey [1999] TASSC 21 (4 March 1999)

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