R v Laskus [1996] QCA 120

The applicant offered an explanation to the police officer, saying that the money was hers and she had given it to her nephew for a particular purpose. The officer did not act upon her explanation and in the circumstances insisted on keeping the money. It seems that the applicant then lost control and spat at the police officer. The statement of facts included in the submission lodged on behalf of the applicant continues that saliva hit the police officer around the mouth, nose and eyes and that the officer immediately wiped the spittle from his face using his shirt sleeve.

There is a statement made that the applicant did not know where the saliva hit the police officer, that she had some impression that it hit his shirt rather than his face. The applicant was two to three months pregnant and entered a plea of guilty at an early stage. The Magistrate in imposing the penalty which he did expressed his conviction that the offence was a very serious form of assault and although it was not apparently premeditated, it would be treated by him on the basis of its seriousness.

He did not overlook the applicant's state of pregnancy or her absence of a prior criminal record. He took into account her plea of guilty and said that he considered that an appropriate punishment in the case was imprisonment. He said that he bore in mind that imprisonment was a penalty of last resort making apparent reference to the substance of section 9 subsection 4 of the Penalties and Sentences Act.

He remarked upon the particularly abhorrent nature of the offence as it appeared to him and noted that in previous cases the option of a custodial term had not been ruled out by the Appellate Court in cases of assault by spitting. He stated specifically that a fine did not seem severe enough for a case like that with which he was dealing.

I do not myself think that we should regard ourselves as entitled to interfere in this matter. We have been referred to other cases by way of comparison but I see no particular need in this case to refer to any particular previous case. I detect no error in the approach adopted by the Magistrate. His remarks, read as a whole, convey to me that he gave proper consideration to the possibility of imposing a non custodial sentence but concluded in the end that such an approach was not in the circumstances of this case one which could be acted upon.

He was not improperly inhibited in the exercise of his discretion. He detected, as I have already said, from comparable cases that it would sometimes be open to impose custodial sentences in the cases of assault by spitting. It would of course depend on the circumstances.

Here the factors which applied and properly had weight had included these. The assault occurred upon a police officer in a police station when he was engaged in the performance of his duty. It is not suggested that the officer offered some provocation which might conceivably constitute a justification for the applicant's behaviour. She subsequently displayed no regret and offered no apology to the officer for her actions.

The assault was of a particularly offensive kind and it appears that it was intended to have that character. The need to impose appropriate deterrents against such conduct and to uphold the authority of the police are factors which should not be overlooked by the Courts. It was in my view open to the Magistrate to conclude that the custodial order should be made. It was within the range of his sentencing discretion.

BYRNE J: I have arrived at a different conclusion. The plea of guilty was entered, and the applicant sentenced, about two weeks after the offence was committed. The Magistrate ordered that the applicant be imprisoned for four months. The sentence was partially suspended. The applicant was required to serve two months of the sentence. One year was fixed as the operational period during which the applicant must not commit another offence punishable by imprisonment if she is to avoid being dealt with in respect of the suspected sentence.

The essential circumstances have been mentioned in the reasons of the Chief Justice. The Magistrate accepted that the offence was spontaneous rather than pre-meditated but considered that imprisonment was appropriate notwithstanding that the 19 year old applicant had not committed any prior offence, was in an early stage of pregnancy, and had entered a timely plea of guilty.

It is true that the assault was degrading, humiliating and occurred at a police station. And, as the Magistrate's sentencing remarks disclosed he appreciated, custodial sentences have often been imposed in respect of such an offence. Sentences promoting general deterrence are, I accept, appropriate to assaults of a kind the applicant inflicted upon this police officer executing his duty. However, in my opinion, such an offence does not inevitably call for the imposition of a custodial sentence, and this did not.

I consider that immediate imprisonment was far too severe a sanction having regard to the circumstances of the offence and the personal circumstances of the offender. Here there was a momentary loss of temper and control by a young, pregnant first offender who, albeit inappropriately, perceived that her explanations of an entitlement to the $60 were being unreasonably rejected by the police officer.

The interests of general and personal deterrence would, I consider, be satisfied by a community based order, as would the need to mark the community's disapproval of such misconduct.

I am not, I should add, persuaded that the Magistrate applied the correct principles.

Pursuant to section 9(4) of the Penalties and Sentences Act 1992, because the applicant was a first offender under the age of 25, imprisonment could only have been imposed if the Court, having considered all the available sentences and taken into account the desirability of not imprisoning her as a first offender, was "satisfied that no other sentence" was appropriate in all the circumstances of the case.

The Magistrate did not advert to section 9(4). It is true that he did express the opinion that an appropriate punishment in the case was imprisonment. But he did not express himself, either in terms or as I read his sentencing remarks in substance, a conclusion that no other sentence but imprisonment was appropriate.

In short, I incline to the view that the Magistrate has failed to give effect to section 9(4). In any event, I consider that the sentence is manifestly excessive. I would grant the application, allow the appeal, set aside the sentence of imprisonment and make a community based order.

THE CHIEF JUSTICE: The order of the Court will then be the application is dismissed. Since the applicant has been at large on bail pending the hearing of the appeal it is necessary to order and the Court does order that a warrant issue for her apprehension.