Criminal law - Sentencing - Assaulting a public officer - Whether sentence manifestly excessive - Turns on own facts

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Ashworth v The State of Western Australia [2006] WASCA 36

Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

Dhu v Ward [2000] WASCA 140

Etheridge v The Queen [2004] WASCA 152

Higgins v Worthington [2003] WASCA 19

Hill v Bodenham [2000] WASCA 37

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

R v Barci and Asling (1994) 76 A Crim R 103

R v Chan (1989) 38 A Crim R 337

R v Reid, unreported; CA SCt of Vic; No 219/1997; 7 April 1998

R v Worthington [2005] WASCA 72; (2005) 152 A Crim R 585

Robertson v The Queen, unreported; CCA SCt of WA; Library No 990145; 23 March 1999

Shipley v The Queen [2003] WASCA 247

Templin v The Queen [2002] WASCA 318

Cox v Whitehead [1999] WASCA 277

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

Green v The Queen, unreported; CCA SCt of WA; Library No 950592; 8 November 1995

McKenna v The Queen (1992) 7 WAR 455

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Leucus, unreported; CCA SCt of WA; Library No 950130; 24 March 1995

Roberts and Muir v The Queen, unreported; CCA SCt of WA; Library No 4732; 29 November 1982

1 ROBERTS-SMITH JA: I have read in draft the reasons prepared by McLure JA. I agree with those reasons and have nothing to add.

2 MCLURE JA: The appellant was charged on indictment with two counts of attempted unlawful killing of Adam Rackham and Craig Gregory respectively. Both complainants were police officers. In the alternative to the unlawful killing charges, the appellant was charged with assaulting each officer who was then performing a function of his office contrary to s 318(1)(d) of the Criminal Code (WA). After a Supreme Court trial before Miller J and a jury, the appellant was found not guilty of the counts of attempted unlawful killing and not guilty of the charge of assaulting Mr Gregory. The appellant was found guilty of assaulting Mr Rackham.

3 On 16 May 2005, Miller J sentenced the appellant to a term of imprisonment of 3 years and 4 months. He was made eligible for parole. Miller J found the facts to be as follows. At about 1.45 am on the morning of 17 April 2003 the appellant was in a Ford Fairlane sedan which was parked in a parking bay adjacent to a service station in Osborne Park. The appellant was sitting in the driver's seat apparently asleep. Two police officers, Mr Rackham and Mr Gregory, were called to the scene. They approached the appellant's vehicle and Mr Gregory spoke to the appellant. Mr Rackham returned to the police car to get a mobile phone. As he handed the mobile phone to Mr Gregory, the appellant started the motor of the Fairlane and reversed at speed from the parked position. The engine was revved hard; the tyres were screeching and the appellant shouted that he was going. The appellant knew the police were present and were investigating. The appellant reversed into a Commodore station wagon that had been parked behind the appellant's vehicle by another police officer who had arrived at the scene. That vehicle was unmarked and there was no reason why the appellant would have known that it was a police vehicle. The impact was extremely hard. The appellant then put his vehicle into drive and went straight forward into the car bay. Mr Rackham and Mr Gregory had to jump clear. The appellant repeated this exercise at least twice, striking with considerable force the driver's door of the Commodore parked behind him.

4 Mr Rackham tried to open the front passenger door of the appellant's vehicle without success because it was locked. He then went to the driver's side and leaned into the driver's side window with a torch and hit the appellant in an attempt to stop him. He also tried to get the keys out of the ignition but without success. Mr Rackham's evidence as to what then happened is quoted by the sentencing Judge. He said:

"The car was starting to reverse and I was sort of hanging out the window and as he's reversed he's turned a bit sharper than before and I was off the ground and I thought I was going to be pulled under the car, so I pushed myself out of the window and I've landed on my feet. The car has come around. The front wing hit me in the right leg, which unbalanced me knocking me backwards."

5 This was the third occasion when the appellant reversed his vehicle. Mr Rackham said he was unbalanced and had to put his hand down to stop himself from falling over. As he was trying to get up, he saw the appellant's vehicle coming towards him. It was probably two or three metres away. He drew his revolver and fired at the front grill of the vehicle. The sentencing Judge found that in convicting the appellant of assaulting Mr Rackham in the execution of his duty, the jury concluded that the assault was the appellant's deliberate use of force in driving the vehicle in such a manner as to throw Mr Rackham from the window and knock him to the ground with the front wing of the vehicle. Thereafter both police officers discharged firearms at the appellant's vehicle. The appellant suffered bullet related injuries to his jaw and leg.

6 After the trial, the appellant pleaded guilty to reckless driving, which offence related to the events I have just recounted, and possession of heroin on the same date. Miller J sentenced the appellant to 3 months' imprisonment for each of these offences, both of which were ordered to be served concurrently with the sentence for assaulting a police officer.

7 Leave to appeal was granted on the following grounds:

"1. The sentence imposed was manifestly excessive in that His Honour failed to give adequate weight to -

(a) The age and antecedents of the [appellant].

(b) The steps undertaken by the [appellant] to rehabilitate himself since the commission of the offence.

(c) The nature and extent of the injuries sustained by the [appellant] at the time of the offence.

(d) The fact that no injuries were sustained by the victim of the offence.

...

(f) The offence was not pre-meditated and was committed shortly after the [appellant] was woken up.

2. The sentence of 3 years and 4 months imprisonment for the offence of 'assaulting a public officer' was outside the sentencing range for such an offence.

3. His Honour took into account facts relevant to the charge of 'reckless driving', to which the [appellant] pleaded guilty, when dealing with the charge of 'assaulting a public officer'."

8 Grounds 1 and 2 are the same. A sentence will only be outside the range of a sound sentencing discretion if it is manifestly excessive and vice versa.

9 An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing Judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. It is entitled to intervene if a material error of law or fact is discerned in the sentencing Judge's reasoning. Alternatively, error may be inferred if the result is unreasonable or unjust (commonly referred to as being manifestly excessive).

10 To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: R v Chan (1989) 38 A Crim R 337 at 342. In this case, the appellant contends the sentence was manifestly too long.

11 The appellant's sole focus was on the sentence of 3 years and 4 months for assaulting a police officer. As the appellant was sentenced in 2005, the sentencing Judge was obliged to impose a term that was two-thirds of the term he would have imposed prior to the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). A term of 3 years and 4 months is equivalent to 5 years' imprisonment under the former sentencing regime.

12 The appellant was aged 20 when he committed the offences. He had a long and consistent record of offending which commenced when he was 11 years old. His offences as an adult were largely for property and dishonesty offences. His record of offending is connected with what the pre-sentence report describes as a long and entrenched history of illicit substance abuse.

13 The appellant has had one brief period of employment. His opportunities for employment had been minimal because of time in custody or in fulfilling requirements associated with parole or community-based orders. He receives significant support from both his parents (who are separated) and from his de facto partner who at the time of sentencing was pregnant with the appellant's child. Members of the appellant's family describe him as loving and supportive.

14 The appellant suffered a damaged jaw and severe damage to his right knee and thigh as a result of being hit by bullets fired by the police officers at the time of his offending. He suffers residual symptoms, including muscle spasms, nerve irritation and occasional debilitating pain.

15 The pre-sentence report provides some support for cautious optimism about the appellant. It states:

"Since being released from custody in June 2004, Mr Quinn has displayed a greater awareness of the causal relationship between his substance use and his offending behaviour and has been able to identify the detrimental effect that both behaviours have had on his own life as well as that of the wider community. There is no doubt that the consequences of the incident precipitating the current matters before the court, have had a significant effect on Mr Quinn in a number of capacities, but perhaps most pertinently, on his motivation to achieve and maintain a law-abiding lifestyle. Furthermore, he and his partner are expecting Mr Quinn's first child ... which has been a major catalyst for Mr Quinn's ongoing commitment to improving his lifestyle. He has a great degree of community support from his partner and his family, which would bode well for Mr Quinn achieving his long-term pro-social aspirations."

16 A question that arose in the course of the appeal was whether the injuries suffered by the appellant in the course of offending were a mitigating factor. The sentencing Judge rejected an implication in the pre-sentence report that the appellant was the victim in this case. He said, correctly in my view, that the real victims were the police officers who had to discharge their firearms because of the fear they had for their own lives. However, in identifying the matters favourable to the appellant from a sentencing perspective, the sentencing Judge expressly referred to the injuries suffered by the appellant and his residual symptoms. It is clear that he gave some weight to those matters, as he was entitled to do. See R v Reid, unreported; CA SCt of Vic; No 219/1997; 7 April 1998; R v Barci and Asling (1994) 76 A Crim R 103. It is said the sentencing Judge failed to give them sufficient weight (as a particular in support of the claim that the sentence is manifestly excessive).

17 The appellant also contends that the sentencing Judge failed to give adequate weight to the fact that the police officer did not sustain any injuries as a result of the assault. If the appellant had injured the officer, that would have aggravated the seriousness of the offence. However, the fact that the police officer did not suffer any injuries should be given little weight in circumstances where, as in this case, the potential or capacity for serious injuries as a result of the appellant's conduct was very high and it was a matter of good fortune that none were inflicted.

18 The maximum penalty for a breach of s 318(1) of the Criminal Code is 10 years. The maximum penalty was raised from 5 years to 10 years on 20 January 1995 (Criminal Law Amendment Act 1994 (WA), s 8). The maximum penalty for a summary conviction is 3 years and a fine of $36,000.

19 Between 1995 and the present there have been more than 10 cases in which the Court of Criminal Appeal and this Court have reviewed sentences imposed under s 318 of the Criminal Code. See Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999; Robertson v The Queen, unreported; CCA SCt of WA; Library No 990145; 23 March 1999; Hill v Bodenham [2000] WASCA 37; Dhu v Ward [2000] WASCA 140; Templin v The Queen [2002] WASCA 318; Higgins v Worthington [2003] WASCA 19; Shipley v The Queen [2003] WASCA 247; Etheridge v The Queen [2004] WASCA 152; R v Worthington [2005] WASCA 72; (2005) 152 A Crim R 585; and Ashworth v The State of Western Australia [2006] WASCA 36. The authorities endorse the principle that the safety of police officers lawfully carrying out their duties is a matter of prime importance and that the courts regard attacks on police as a grave breach of the law which generally attracts a custodial sentence: Etheridge v The Queen [2004] WASCA 152. The highest sentence imposed for a breach of s 318 is 12 months (18 months under the former sentencing regime). See Etheridge, Worthington and Ashworth. Ashworth and Worthington involve sentences imposed after the commencement of the Sentencing Amendment Act and are thus two-thirds of what would have been imposed under the former sentencing regime. In Etheridge, the appellant had been arrested and charged with threat to kill. The threat was made to a police officer. At the police station the appellant assaulted an officer by biting him on the thigh, twisting his finger and then biting him on the edge of the palm of his right hand. The bite broke the officer's skin. He was sentenced to 18 months' imprisonment under the former sentencing regime for both offences, the sentences to be served concurrently.

20 In Worthington, the applicant had been convicted and sentenced in respect of a very large number of offences including assaulting a public officer (elbowing a police officer in the face), two counts of disabling in order to commit an indictable offence (spraying two police officers in the face with pepper spray) and unlawful detention (holding a police officer's gun to her head with his arm around her neck). The sentencing Judge imposed a term of 12 months' imprisonment for the assault offence. There was no challenge on appeal to the individual sentences but to the aggregate sentence of 7 years 8 months imposed for all of the offences which was reduced on appeal to 6 years and 8 months.

21 In Ashworth, the applicant violently and strenuously resisted arrest in the course of which he assaulted a police officer. The violent struggle was only brought to an end with the use of pepper spray and the assistance of other officers. The officer suffered cuts and abrasions to his wrist and arm. The applicant initially received an 18 month community-based order for this offence. After breaching that order he was re-sentenced to a term of 2 years' imprisonment. The Court of Appeal concluded that a sentence of 2 years (3 years under the former sentencing regime) was manifestly excessive and reduced the sentence to 12 months' imprisonment.

22 The circumstances of the offence in this case are significantly more serious than in the decided cases to which I have referred. However, the differences in seriousness do not justify a sentence that is more than twice as long as sentences customarily imposed for serious offences of this type. When regard is also had to the mitigating factors in this case, the most important of which are the appellant's youth, the injuries resulting from this offending and his tentative steps towards rehabilitation, I am satisfied that the sentence of 3 years and 4 months is outside the range of a sound sentencing discretion and thus is manifestly excessive. As error has been

demonstrated, this Court is entitled to re-sentence the appellant. In those circumstances it is unnecessary to deal with ground 3.

23 Having regard to all relevant matters, in particular, the very serious circumstances of this assault and the mitigating factors to which I have referred, I would impose a term of imprisonment of 2 years and 4 months (which is 3 years and 6 months under the former sentencing regime) for the offence of assaulting a public officer. Accordingly, I would set aside the sentence imposed by the sentencing Judge for that offence and in lieu thereof order that the appellant serve a sentence of 2 years and 4 months commencing on 14 April 2005. The sentences imposed for reckless driving and possession of heroin remain at 3 months to be served concurrently with each other and with the sentence for assault. The appellant will remain eligible for parole and will serve a minimum term of 1 year and 2 months.

• Was the sentence manifestly excessive