R v Holden [2006] QCA 416

SUPREME COURT OF QUEENSLAND

CITATION: R v Holden [2006] QCA 416

PARTIES: R v HOLDEN, Newman Patrick (appellant/applicant)

FILE NO/S: CA No 208 of 2006 / DC No 1855 of 2006

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence

ORIGINATING COURT: District Court at Brisbane

DELIVERED EX TEMPORE ON: 23 October 2006

DELIVERED AT: Brisbane

HEARING DATE: 23 October 2006

JUDGES: McMurdo P, Holmes JA and Fryberg J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Application for leave to appeal against conviction and sentence dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant convicted of seven counts of serious assault committed against two police officers – where assaults occurred in context of resisting arrest and some involved spitting of blood – whether discrepancies in evidence of the two police officers was such as to render verdict unsafe or to cause miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where appellant convicted of seven counts of serious assault committed against two police officers – whether 12 months imprisonment on each count, to be served concurrently, was manifestly excessive / R v Laskus [1996] QCA 120, considered / R v Reuben [2001] QCA 322; CA No 99 of 2001, 7 August 2001, cited / Sweet v Armstrong [1995] QCA 406, cited

COUNSEL: The appellant appeared on his own behalf / R G Martin SC for the respondent

SOLICITORS: The appellant appeared on his own behalf / Director of Public Prosecutions (Queensland), for the respondent

THE PRESIDENT: Justice Holmes will deliver her reasons first.

HOLMES JA: The appellant appeared for himself on his appeal against conviction and application for leave to appeal against sentence. He was convicted after a trial, at which he did not give evidence, of seven counts of serious assault. He was acquitted on an eighth count. The ground of appeal was that the verdicts were unsafe and there was a miscarriage of justice.

The Crown case turned on the evidence of two police officers, Constable Steginga and Sergeant Coyne, who arrested the appellant on suspicion of possessing cannabis. They allege that the appellant committed a series of assaults on them after his arrest. Those assaults began, they said, with his resisting Constable Steginga when the latter attempted to handcuff him. The appellant made no submissions about his conviction on this count.

The second assault, on the account of Coyne and Steginga, occurred when the appellant wiped blood on Sergeant Coyne's arm, informing her that he had hepatitis C. The third assault was a spitting at Steginga when the two officers were trying to get the appellant into the police car. Count 4 was a spitting at Steginga in the back of the police vehicle, on the way to the watch-house.

Counts 5 and 6 were based on the two officers' evidence of the appellant's resisting his removal from the car at the watch-house. The watch-house keeper would not accept the lodgement of the appellant, because of an earlier head injury he had sustained before he first encountered the two police officers, so they took him to the Princess Alexandra Hospital in a paddy wagon. A security officer on duty there at the time gave evidence of his aggressive and agitated state, including a spitting incident which does not seem to have been the subject of any charge.

Count 7, on which the appellant was acquitted, turned on Constable Steginga's evidence of the appellant’s spitting through the mesh on the rear window of the police paddy wagon. Steginga said that the spittle had landed on the concrete relatively close to him, but not hitting him. Count 8 occurred when the appellant was returning to the watch-house and was being taken to a holding cell. Steginga said that he had spat at him again, hitting him on the boot.

A large part of the appellant's submissions here constituted an attempt to give evidence which he chose not to give at the trial, contending, for example, that Steginga had assaulted him. Apart from that, the essential argument was that there were only the two police witnesses as to the events and that there were discrepancies in their evidence. For example, in relation to count 2, the alleged assault of Sergeant Coyne by wiping blood on her arm, Steginga had described the appellant as lying on the ground on his right side and making a single movement with his arm when that occurred, whereas Coyne described it as two movements, an unsuccessful punch and then a movement of the arm, while the appellant was lying on his left side.

Other discrepancies as to where each of them was positioned at any given time, the precise nature of the appellant's movements, and when Coyne first noticed blood or spittle on Steginga, were raised in respect of other counts. In relation to count 4, the spitting in the back of the police car, it was said that Steginga's evidence was inherently improbable because he said he had only two small amounts of blood and spittle on his right hand when, the argument seems to be, he should have had more, because there was a good deal of blood on the appellant. Also it is said that Coyne described both officers as having blood on their hands before the appellant was placed in the car, which the appellant says shows that the blood on Steginga's hands could not have been from any spitting in the car.

In relation to counts 5 and 6, the resisting of the appellant's removal from the police car at the watch-house, Steginga said that the appellant was kicking and swinging his head, and in cross-examination said that he had flailed his arms; although he qualified that by saying that the appellant's arms were handcuffed at the relevant time. Coyne, on the other hand, conceded in cross-examination that she had said in her statement that the appellant was swinging his arms, and that could not have been right because they were handcuffed at the time.

None of these discrepancies raised by the appellant seems to me outside the normal range of variations for witnesses in incidents of this kind and certainly, they do not seem to me to amount to the “total contradictions” that the appellant contends they constitute. But more importantly, the differences between the accounts of the two police officers were explored thoroughly in cross-examination before the jury; defence counsel addressed on them, and the learned trial judge addressed them in her summing-up. The jury, it seems, accepted the evidence of the police officers, as it was perfectly entitled to do. That its consideration of the evidence was careful is demonstrated by the acquittal on count 7, in which there was no evidence given that the appellant's spittle was aimed at anyone in particular.

I see no basis for interference with the verdicts and I would dismiss the appeal against conviction.

The appellant was sentenced to 12 months' imprisonment on each count, to be served concurrently. He has a criminal history of some length, dating back to 1981, which includes sentences of four months imprisonment for wilful damage, six months imprisonment wholly suspended for two years for assault occasioning bodily harm, and an array of convictions and fines for possession of dangerous drugs, obstruction of police and other street-type offences.

Counsel for the Crown cited three cases in which assaults involving spitting at police officers have resulted in prison terms, and a fourth which involved biting and similarly resulted in a sentence of imprisonment being imposed. Three of those cases, Sweet v Armstrong [1995] QCA 406; R v Laskus [1996] QCA 120 and R v Reuben [2001] QCA 322, resulted in lesser periods of imprisonment than that imposed here, but they all involved pleas of guilty. Two, Armstrong and Laskus, were decided before an increase in the maximum penalty for the offence of serious assault from three to seven years.

The fourth case cited, R v Juric [2003] QCA 132, bears the strongest resemblance on its facts to this case. There, the intoxicated applicant was restrained by police officers but managed to get an arm free and struck one of them in the face. He spat blood and saliva into that officer's face and the face of another officer restraining him.

Juric had a lengthy criminal history of a type not dissimilar to the appellant's here. He was convicted after a trial and was sentenced to two and a half years imprisonment on the spitting counts, cumulative on 10 months on an activated suspended sentence which those convictions had breached. On appeal, that sentence was set aside on the basis that it was excessive and a sentence of 18 months' imprisonment, still cumulative on the ten month period, was substituted.

A sentence of 12 months' imprisonment here was a substantial sentence, but in light of Juric, and having regard to the appellant's lengthy criminal history and the fact that he was not entitled to the lenience that might have been afforded him on a plea of guilty, I do not think that the sentence was outside a proper exercise of sentencing discretion.

I would dismiss the application for leave to appeal against sentence.

THE PRESIDENT: I agree.

FRYBERG J: I agree.

THE PRESIDENT: The orders are the appeal against conviction is dismissed, the application for leave to appeal against sentence is refused.