R v Barry [2007] QCA 48

SUPREME COURT OF QUEENSLAND

CITATION: R v Barry [2007] QCA 48

PARTIES: R v BARRY, Colleen Honora (applicant)

FILE NO/S: CA No 2 of 2007 / DC No 1322 of 2006

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 23 February 2007

DELIVERED AT: Brisbane

HEARING DATE: 13 February 2007

JUDGES: de Jersey CJ, Jerrard JA and Holmes JA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Application dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE – WHEN REFUSED – GENERALLY – where the applicant was charged with assaulting a police officer – where the applicant had a prior conviction for assaulting police – where the applicant was suffering depression and had been the subject of physical and sexual abuse – where the applicant was the sole carer of her young son – whether the sentence was manifestly excessive / Penalties and Sentences Act 1992 (Qld), s 92 / R v Hamilton [2006] QCA 122, Appeal No 336 of 2005, 21 April 2006, considered / R v Reuben [2001] QCA 322, Appeal No 99 of 2001, 7 August 2001, considered / R v Mathieson [2005] QCA 313, Appeal No 199 of 2005, 26 August 2005, considered / R v Juric [2003] QCA 132, Appeal No 431 of 2003, 25 March 2003, considered

COUNSEL: The applicant appeared on her own behalf / M J Copley for the respondent

SOLICITORS: The applicant appeared on her own behalf / Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Jerrard JA. I agree that the application should be refused, for the reasons expressed by His Honour.

JERRARD JA: On 19 December 2006 Colleen Barry pleaded guilty to a charge against s 340(1)(b) of the Criminal Code, namely of having assaulted a police officer on 17 July 2005, while that police officer was acting in the execution of her duty. On 21 December 2006 Colleen Barry was sentenced to six months imprisonment, and the learned sentencing judge fixed a parole release date of 19 January 2007. On 29 December 2006 Colleen Barry filed an application for leave to appeal against that sentence, contending it was manifestly excessive. She had served the non-parole period before the appeal was heard, but continued on with the appeal.

The offence

The circumstances of the offence, as described to the learned sentencing judge by the prosecutor, were that at approximately 5:00 am on 17 July 2005 a Taxi-driver asked the Fortitude Valley Police Beat for assistance in having the applicant removed from the rear of his Taxicab. She appeared both intoxicated and asleep. The police attempted to wake her, and she verbally abused them and screamed obscenities, refusing to leave the cab. After some minutes she was forcibly removed and then, while the police were attempting to convey her some 10 metres into the police station, she turned and spat in the face of the complainant police officer. That officer felt spittle strike the officer’s eyes and mouth, and the applicant was then placed on the ground and restrained to prevent her spitting again. At that time the applicant bit the hand of the officer upon whom she had previously spat, and the applicant was further restrained and moved into the police premises. An attempt was made to interview her, and the applicant spat a second time in the face of the complainant officer, again in the officer’s mouth and eyes.

Ms Barry was originally indicted on three counts of assault of a police officer who was executing the officer’s duty, and after a plea to count 1 the Crown entered a nolle prosequi on the other two counts, and told the learned judge during the course of submission that:

“It’s one count of serious assault, a course of offending in all of those circumstances, your Honour.”¹

Ms Barry’s experienced counsel did not challenge that proposition, and that was the basis on which the sentence was imposed.

A contest of fact

A portion of the activity was captured on a videotape, and Ms Barry’s counsel contented to the learned sentencing judge that Ms Barry’s argument was that she had been violently assaulted by the police during the events and had her head smashed into the ground. Counsel informed the learned judge that after having spent a full day in the Watch-house, Ms Barry went to her general practitioner and was treated for bruising and swelling around the eye and right forehead, and for scratches on her arms. She also had a sore neck and thoracic back pain. Those submissions ultimately resulted in evidence being called from the two arresting police officers, including the complainant officer, and from the applicant, with the issue being whether the police had unnecessarily applied force to the applicant in the course of restraining her. The applicant’s evidence was that she could not actually recall either spitting or biting the complainant officer, but could recall having her head “smashed into the ground over and over and immense pain in my back”;² she said in evidence that if she did spit at the complainant officer she was very sorry for that, and deeply regretful if she did bite her, but she knew that would have been done by her in self-defence.

The learned judge preferred the evidence of the two police officers. The complainant officer, who travelled from Cairns to give evidence, described the applicant, when first seen in the Taxi, as having a blond wig and with food (McDonalds), spittle, and vomit around her face, while asleep; and she repeatedly told that police officer to “Fuck off. Fuck off, bitch”, when in the Taxi. That officer swore that when the applicant was removed from the cab, the applicant was arrested, after calling the officer a “slut”; and that it was while the police were attempting to control and restrain the applicant as they walked her to the station, that the applicant cleared her throat and spat on the officer’s face. She was then placed on the ground and restrained with her head pressed against the ground, while the police attempted to handcuff her; it was in the course of that that she bit the officer’s hand. When moved into the police station and asked why she had bitten and spat on the officer, the applicant repeated the offence of spitting. That officer expressly denied having used more force than was necessary, or repeatedly pushing the applicant’s head into the pavement. The other police officer gave evidence supporting that version.

The learned sentencing judge expressly accepted that the applicant had become aggressive and abusive towards the police when they attempted to remove her from the Taxicab, had spat on the face of the complainant officer, and that the police had done no more than was necessary to restrain the applicant who was struggling throughout. The judge remarked that:

“I do not accept your evidence...you were intoxicated and in your own words had a scattered memory of the events...No doubt you did suffer injuries and they may well have been occasioned during the struggle with the police, but as I say I am satisfied that the police used force that was reasonable in the circumstances in order to restrain you.”³

Ms Barry appeared in person to argue her application. She made it very clear that she still considers she acted only in self-defence, and regrets her plea of guilty. She complained her representation was incompetent, but that is not supported by anything in the appeal record. The learned judge heard her evidence, and did not accept it, and her counsel was not to blame for that. She wishes now that she had called more evidence then, but she put no material before this Court to suggest that any other evidence would have helped her. Her current arguments ignore her plea of guilty.

Prior conviction

The applicant had been convicted on 29 June 1999 of behaving in a disorderly manner and assaulting police, those offences occurring on 14 June 1999. The prosecutor described the circumstances of that earlier offence as being that the applicant had become abusive and yelled at police when they intervened in an argument between the applicant and a male person, resulting in her being arrested for obstruction. She also resisted being placed in the police van. This was not her first public confrontation with police.

Ms Barry’s counsel explained to the learned sentencing judge that she had been suffering from depression and taking anti-depressant medication, around the time of the July 2005 offences, and had been experiencing a number of difficulties in her life. Counsel tendered reports describing how Ms Barry, who had the sole care of her four year old son, had been involved in a physically and sexually abusive relationship with the boy’s father, and had sustained a fractured lumbar vertebra in June 2004, when thrown across the room by him. She had then obtained a Domestic Violence Restraint Order (DVRO) and become depressed, and had abused alcohol. In October 2004, she severely fractured her right ankle when leaving the Pine Rivers Hospital at night without permission, while a psychiatric in-patient; she was intoxicated at the time. She had continued to suffer the effects of binge drinking, of anxiety/depression, and had lost her fulltime employment. Since April 2006 she had been living on a pension and savings.

The applicant’s counsel submitted that the issue of actual imprisonment was a finely balanced one, reflecting a remark made earlier by the learned sentencing judge. Counsel reminded the judge that his client had suffered injuries herself, and suggested that an intensive correction order might be considered.

Counsel for the prosecution referred the learned judge to this Court’s decisions in R v Hamilton [2005] QCA 122, R v Reuben [2001] QCA 322, and R v Mathieson [2005] QCA 313. In that last case this Court imposed a sentence of six months suspended after serving two months on an offender who was the sole carer of her two children (aged seven and three and a half), who had been sentenced for one offence of serious assault, contrary to s 340(1)(b) of the Code, and for a second offence of doing bodily harm. Those two offences arose out of that applicant’s arrest when intoxicated in the early hours of the morning. That applicant had pulled a police officer’s hair, kicked another officer in the shoulder and head, and then struck the first officer several times with her closed fist and removed some more hair. That offender had one prior conviction for behaving in a disorderly manner. In R v Reuben, that offender bit a police officer, but apologised to the officer when released. His three month sentence was wholly suspended; he was also convicted of wilful damage, using threatening words, and a breach of a DVRO. His sentence has since been described in R v Juric [2003] QCA 132 as towards the lower end of the range. The apology was obviously important in R v Reuben, just as the absence of an apology for spitting in a police officer’s face was important in R v Hamilton, where a short term in actual custody was upheld.

Counsel for the prosecution submitted that while a period of actual imprisonment was not inevitable, it was within the range established by those decisions, and that an order under s 92 of the Penalties and Sentences Act 1992 (Qld) might be appropriate, namely a short period of imprisonment followed by probation.

The learned judge’s sentencing remarks included reference to the applicant being the sole carer for her four year old son, who also had some medical problems, described the circumstances of the offence, and noted that the applicant did have a prior offence of obstructing a police officer. The judge went on:

“The offence is very serious. The police have a very difficult and important job to do and the circumstances of this offence illustrate the challenges they face when they are simply trying to do their job.”

That observation reflected the victim impact statement by the complainant officer, which described how the officer was told that the applicant said her partner was Hepatitis C positive, which information resulted in 12 months of blood tests and stress for the officer. She came to dread dealing with drunken and drugged offenders, and eventually moved to a position in Cairns involving different types of work, but which move meant leaving all her family, friends, and support networks in Brisbane. The learned judge went on to state that the judge was satisfied that the only appropriate punishment was a term of imprisonment, and so imposed the term described. The fact that Ms Barry was offending for a second time against police doing their duty was relevant to the appropriate sentence, as was the fact that her evidence showed no regret for what she had actually done. What she did significantly adversely affected the police officer. In those circumstances the sentence was not manifestly excessive.

I would dismiss her application.

HOLMES JA: I agree with the reasons of Jerrard JA and with the order he proposes.

Footnotes

1. At AR 4. ↩

2. At AR 54. ↩

3. At AR 68 and 69. ↩