ex officio indictment to a charge of an assault occasioning bodily harm whilst armed and in company.

The victim of the offence was a policeman acting in the course of his duty. The maximum penalty for this offence at the time when it was committed on 18 January 1998 was imprisonment for 10 years.

At the time of the offence the respondent had just turned 17 about a month earlier. The sentence imposed was one of two and a half years imprisonment with a recommendation that he be eligible for parole after serving 10 months of that term. He had already been held in custody for 102 days with respect to the offence to which he had pleaded guilty and it was declared that the pre-sentence custody was to be deemed time served under the sentence imposed.

The recommendation for parole was expressly based or explained as a recognition of the respondent's plea of guilty on the

The respondent had some previous criminal history as a juvenile and the learned sentencing Judge dealt with the effect, if any, that ought be given to that previous criminal history. It seems to me that it would really be unhelpful at this stage to embark upon a detailed consideration of it. The real question is whether the sentence of two and a half years imprisonment imposed for this offence was manifestly inadequate and in my view really not helpful to look at things other than the circumstances involved in the commission of that offence, and I will now turn to those circumstances.

At about 12.05 a.m. on 18 January 1998 two policeman attended a disturbance outside the Manly RSL Hall. The complainant, a Constable McNamara with his partner, Constable Elley attended. When they arrived they found a large crowd outside the RSL Hall; there had obviously been a brawl; there was a lot of smashed glass on the ground and a male person was laying on the ground receiving some attention from a lady who was there. He had blood across his face and he seemed to be unresponsive.

The complainant who was ultimately assaulted and suffered significant injury tried to get assistance by radio, but was unsuccessful. Shortly after the arrival a fight broke out amongst a crowd of people; Constable Elley the complainant's partner for the evening went in an effort to stop the fight and commenced to place under arrest one of the participants. He was then surrounded by a number of male persons and at least four others ran towards him. There were at least 10 people involved in moving into attack Constable Elley.

The complainant drew his baton and went to the assistance of Constable Elley telling the group of young persons to get back away from his partner. The respondent was one of this group and as the complainant approached the respondent turned to him and said, "You're going down." The complainant was then surrounded by a number of young people and together they pushed him towards the wall of the RSL building. The complainant yelled out at them to get back and tried to push them away, the respondent again said, "You're going down." Eventually the complainant was forced against the wall of the building.

Another offender, another young man who has not been dealt with by the name of Thompson stood in front of the complainant. The respondent again said to the complainant, "You're going down" and this was repeated by Thompson. Eventually the complainant attempted to protect himself or defend himself by striking Thompson on the hip.

The complainant was then punched several times and at this stage the respondent raised a piece of timber about 1.5 metres long and about 50 millimetres square and brought it down and hit the complainant on the head. He then climbed up on a verandah of the RSL building and standing above in that position struck the complainant forcibly on the head causing him to fall on the ground. When he fell to the ground the complainant was surrounded by a number of young men who then commenced to kick him about the head an face. He was left with laceration to the top of his head, a fractured nose and severe swelling to the jaw.

At the time he committed this offence the respondent was on bail and probation for other offences and I have indicated this material was placed in front of the sentencing Judge.

The complainant suffered quite severe injuries and he has received medical attention for them. The respondent was sentenced nearly six months after the commission of the offence and during the whole of that period the complainant had been unable to return to work. He had received operative treatment which had not been entirely successful. He had been attended by medical specialists who discovered by tests performed upon him that he suffered some brain damage and the extent of that damage and whether it will enter into remission seems to be uncertain. He must have another CAT scan or similar sort of treatment and examination over the next 12 months.

His Honour the learned sentencing Judge recognised that it was a serious offence for which he was obliged to sentence the respondent. He observed that the complainant had suffered significant injuries which have caused very concerning long term affects on him. He said that it was a bad assault and it was made even worse by the fact that the respondent was armed with this piece of wood which he used to cause significant head injury to the complainant.

He observed that the respondent had taken a leading part in the injuries inflicted on the complainant and that he was the one who had wielded the stick which inflicted the most serious injuries of all on the complainant.

He said that in his view of the circumstances it was a serious assault and that notwithstanding his youth it deserved "a fairly substantial sentence".

As I have already indicated, the maximum sentence for this offence at the material time was a sentence of 10 years' imprisonment. He said that he determined that the assault was of such a serious nature that a substantial sentence should be imposed and that such a sentence would be one for two and a half years for the assault. His Honour then went on to say that because he had pleaded guilty and acknowledged his guilt and avoided the cost of a trial he would recommend release on parole after serving 10 months.

The only conclusion that one can draw from these sentencing remarks is that His Honour thought in the circumstances of the case the appropriate sentence was two and a half years and would have been the appropriate sentence even if there had not been a plea of guilty. His Honour did not appear to take into account the plea of guilty in fixing upon the sentence of two and a half years. His Honour then ordered that the 102 days spent in presentence custody should be deemed to have been served as part of that sentence.

The Attorney has contended that looking at the length of the sentence imposed, having regard to the circumstances which I have outlined very briefly, the sentence is simply manifestly inadequate. Reference is made to The Queen against Howard, Telfer and Jarrett, (1968) 2 NSWR 429 where it was observed that assaults occasioning bodily harm to police officers acting in the course of their duty should attract salutary sentences. Reference was also made to observations in this Court in Williams, CA No 385 of 1997, where Mr Justice Dowsett observed, in the course of his judgment:

"The maintenance of order in our society depends upon those who are charged with enforcing it being adequately protected to the greatest extent possible in the performance of their duties --- if there is to be peace in the community and that those charged with maintaining it are to go about their duties in an acceptable way, they must be protected in so doing."

In my view, the sentence imposed by the learned sentencing Judge was, and is, manifestly inadequate. Two police officers, unarmed, going at the request of other members of society, disturbed the brawl that was going on, attempting to break it up, were obviously set upon by this group and it seems, on the material, and accepted by the learned sentencing Judge, that the respondent was very much a leader of this whole exercise. It was he who made the threats to the complainant on the ground. It was he who struck him on the head with a heavy piece of wood and put him on the ground and then his associates commenced to kick him about the head causing him significant injury.

In my view this is a case in which the Crown's contention that the penalty to be imposed ought be fixed at four years can be supported only on the basis that a penalty of four years' imprisonment is assessed taking into account the plea of guilty on the ex officio indictment. Had the matter been determined upon trial, in my view the serious nature of the assault upon these policemen, and upon the complainant in particular, would have justified a significantly more heavy sentence than one of four years but the Crown does not argue for a greater sentence and, in my view, a sentence of four years ought not be regarded as a comparable sentence for future offences of this sort proved against people who do contest them. The four year sentence, in my view, four year imprisonment sentence can be supported really only on the basis of the plea of the respondent on the ex officio indictment presented.

With respect to an early recommendation for parole, it seems to me that it is having regard to the age of the respondent and the hope that one would have that he will receive some counselling and guidance while in custody that may make him an acceptable candidate for release, but principally having regard to his age, I would make a recommendation that he be eligible for parole after serving 18 months of the four year sentence.

I would therefore allow the Attorney's appeal. I would set aside the sentence imposed below and I would order that the respondent be imprisoned for a period of four years. I would order that the period of 102 days served in presentence custody be treated as service of part of that sentence and I would recommend that he be eligible for parole after serving 18 months of the sentence imposed today.

BYRNE J: The protection of police officers acting in the execution of their duty must surely be a matter of considerable concern to the Courts and the community. Those who like this respondent, acting in company, mete out violence with a weapon to a police officer must expect condign punishment.

Notwithstanding the applicant's youth and the consequential need to give due recognition to his age and, one would hope, prospects of rehabilitation, for the reasons given by

Mr Justice Ambrose I find myself in substantial disagreement with the sentence appealed from and also agree in the orders proposed.

McPHERSON JA: The order will be as Mr Justice Ambrose has stated it.