R v King [2008] QCA 1

SUPREME COURT OF QUEENSLAND

CITATION: R v King [2008] QCA 1

PARTIES: R v KING, Peter (applicant)

FILE NO/S: CA No 356 of 2007 / DC No 2183 of 2007

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Bowen

DELIVERED EX TEMPORE ON: 30 January 2008

DELIVERED AT: Brisbane

HEARING DATE: 30 January 2008

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

ORDERS: Application for leave to appeal granted. / Appeal allowed. / Set aside the sentence of six months imposed in respect of the serious assault and sentence the applicant in lieu to four months imprisonment suspended after two months for an operational period of two years.

CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – INTOXICATION – DISORDERLY BEHAVIOUR – ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER – GENERAL PRINCIPLES – where the intoxicated applicant spat blood and phlegm onto a police officers face and mouth – where applicant pleaded guilty to committing a common assault and a serious assault – where there were mitigating factors – whether the sentence imposed was manifestly excessive / R v Barry [2007] QCA 48; CA N0 2 of 2007, 23 February 2007, considered / R v Hamilton [2006] QCA 122; CA No 336 of 2005, 21 April 2006, considered / R v Laskus [1996] QCA 120; CA No 56 of 1996, 24 April 1996, considered

COUNSEL: M J Byrne QC, with P J McCafferty, for the applicant / G Cash for the respondent

SOLICITORS: Nyst Lawyers for the applicant / Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: The applicant is a 30 year old man who, when aged 29 years, committed a common assault and a serious assault to which he pleaded guilty in the District Court. For the serious assault he was sentenced to six months' imprisonment suspended after three months for an operational period of two years. For the common assault he was sentenced to two months' imprisonment to be served concurrently with the three months.

At the time of the offences the applicant had no prior criminal history. He subsequently incurred a conviction for obstructing a police officer which the present sentencing Judge described as "really of no consequence" in the District Court proceeding. The applicant seeks leave to appeal against the six months' sentence imposed upon him for the serious assault.

On 9 July 2006 at a backpacker's bar at Airlie Beach in North Queensland security officers found the apparently intoxicated applicant sleeping at a table. He was escorted from the premises to the footpath outside where he was forcibly placed on the ground. The offence of common assault arose from the applicant's scuffle with one of the security officers in the course of which the applicant was injured though not seriously. Police officers were summoned. The applicant could not walk without stumbling and was laughing and asking for another drink.

He was placed into the rear of the police van and was asked to move further inside to avoid the possibility of injury from the swinging door. Having been asked several times he eventually said, "You want to know what I think of that idea," and gestured for one of the police officers to approach him. As the police officer did so the applicant spat blood and phlegm onto the complainant's face and into his mouth. There was a struggle in the course of which the applicant spat over the arm and shirt of the police officer on a number of other occasions. The applicant was taken to the watch-house where he continued to struggle and resist efforts to restrain or control him. Fortunately, the complainant police officer was not infected in consequence of the incident but had to endure a six month wait in the usual way to confirm the applicant's assurances by way of a written apology delivered a couple of days later that he was not subject to any communicable disease. At the time the applicant, who was an Irish national, was suffering from what the psychiatrist Dr F I Curtis terms a "pathological bereavement disorder" following a family tragedy. The doctor referred to binge alcohol intoxication producing "an organic confusional state prior to the arrival of police".

The learned sentencing Judge referred to the applicant's having been heavily intoxicated, that within a couple of days afterwards he wrote to the police officer apologising and assuring him that he had no communicable disease, that he pleaded guilty at an early stage and that he was a relatively young man with no relevant prior criminal history who was at the time suffering from a depressive illness. In submitting that the six month term imposed upon the applicant was manifestly excessive one of the points made by his counsel is that:

"The applicant has suffered the 'punishment' of being isolated from his family overseas for almost a year since being charged. He has been unable to work without a visa and has had to survive on payment from his family."

One begins with the proposition that those who treat a police officer in this way should ordinarily expect to be imprisoned, meaning actual imprisonment. Police officers carry out duties which are usually onerous and often dangerous. It is abhorrent that a police officer responsibly going about his or her business be subject to the indignity and risk of being spat upon. The risk in contemporary society relates obviously to communicable disease. Related to the indignity is the display of contempt for civil authority which will often be involved in these incidents. An appropriate level of deterrence will in such cases usually be secured only through actual imprisonment of the offender. Along similar lines see R v Reuben [2001] QCA 322 at page 6. In my view this sentencing Judge was right in ordering that the applicant be imprisoned.

I turn to the length of the imprisonment. In sentencing the applicant to six months' imprisonment for the serious assault, an assault to which the applicant pleaded guilty, the Judge presumably worked from a head term in the absence of a plea of guilty of the order of nine months' imprisonment. Even allowing for the serious and disgusting nature of the offence, the effrontery of its being committed against a police officer and the consequent need for serious deterrence, the question arises whether in selecting, say, nine months, the Judge started from too high a level of penalty. Reference to some previous decisions suggests that he did.

In R v Barry [2007] QCA 48, a contested sentence in respect of offences constituted by spitting, biting and further spitting respectively led to a six month sentence with a fixed parole date approximately four weeks into the sentence. In the course of that hearing the prisoner alleged the police had assaulted her, no apology was forthcoming, she bore the burden of a previous conviction for assaulting police, and she had previously asserted her partner was hepatitis C positive. On the other hand, she was at the time medicated for depression and was the sole carer of a four year old child.

In R v Hamilton [2006] QCA 122, where the sentence was nine months' imprisonment suspended after three months, the applicant assaulted police officers by swinging a number of punches and hitting the complainant in the head and torso; and secondly, spitting. He was 28 years of age but unlike the present applicant had a relevant prior criminal history suggesting "an attitude of contempt for police officers". There was there no suggestion of remorse and no apology had been forthcoming.

In the last, somewhat similar case, R v Laskus [1996] QCA 120, a 19 year old pregnant first offender was sentenced to four months' imprisonment suspended after two months for deliberately spitting on a police officer's face in circumstances where she became frustrated and lost self control. It was an early guilty plea. On the other hand, it may be that this offence has become somewhat more prevalent since with a heightened need for deterrence so far as the sentences of the Court can achieve that.

In cases like this, it is often the fact of imprisonment rather than the particular duration of the term imposed which secures the necessary deterrence. In light of the cases to which I have referred I consider the penalty imposed on the applicant was manifestly excessive and should be reduced. The early pleas of guilty, the early written apology with the assurance of no communicable disease, the applicant's previously unblemished character, and his state of depression at the time, combine to warrant significant mitigation in this particular case.

The result I propose would not exclude a six month term following a plea of guilty in other cases, but it is that particular aggregation of mitigating circumstances which I consider puts six months out of range here. I would grant leave to appeal, allow the appeal, set aside the sentence of six months imposed in respect of the serious assault and sentence the applicant in lieu to four months' imprisonment suspended after two months for an operational period of two years. The two months' concurrent term imposed in respect of the common assault would remain undisturbed. It was not the subject of any challenge under the grounds of appeal and there is no practical or other need to adjust that term.

The result will be that a six month term suspended after three months for two years is replaced with a four month term suspended after two months for two years. That involves a one-third reduction in penalty. The Court of Appeal must always be astute to avoid a charge of undue meddling in sentences or what is termed "tinkering". To reduce by one-third the time actually to be served in imprisonment would weather such a charge.

We were urged for the applicant to produce a result which would lead to the applicant's immediate release - that is, after having served some seven weeks' imprisonment, but in my view principle dictates that he should serve two months and it would be irresponsibly expedient to accede to that request made on his behalf.

KEANE JA: I agree.

HOLMES JA: I agree. Imprisonment is not inevitable for an offence of assault by spitting on a police officer but this was a case in which a sentence involving actual custody was certainly open. But for the reasons given by the Chief Justice, this sentence was disproportionate and did not sufficiently recognise the mitigating factors. I agree with the orders he proposes.

THE CHIEF JUSTICE: Those are the orders.