R v Poynter, Norman & Parker ; ex parte A-G

Judgment (122 paragraphs)

[1]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY - APPLICATION TO INCREASE SENTENCE - Riot - approach to sentencing - riot directed at police officers - prime need for deterrent penalties - Attorney-General's appeals

[2]

Penalties and Sentences Act 1992 (Qld), s 112, s 113

[3]

Police Service Administration Act 1990 (Qld), s 2.3

[4]

House v The King (1936) 55 CLR 499, cited

[5]

R v Felsman, Baker, Baker & Baker [2005] QCA 453; CA No 308, 309, 310 & 311 of 2005, 7 December 2005, cited

[6]

R v Katia; ex parte A-G (Qld) [2006] QCA 300; CA No 111 of 2006, 22 August 2006, cited

[7]

R v Liekefett; ex parte A-G (Qld) [1973] Qd R 355, cited

[8]

R v Melano; ex parte A-G (Qld) [1994] QCA 523; [1995] 2 Qd R 186, cited

[9]

R v McCormack & Ors [1981] VicRp 11; [1981] VR 104, considered

[10]

R v Quick; ex parte A-G (Qld) [2006] QCA 477; CA No 277 of 2006, 17 November 2006, cited

[11]

R v Sittczenko; ex parte Cth DPP [2005] QCA 461; CA No 221 of 2005, 9 December 2005, cited

[12]

R v Tran; ex parte A-G (Qld) [2002] QCA 21; CA No 283 of 2001, 12 February 2002, cited

[13]

Director of Public Prosecutions (Qld) for the applicant

[14]

[1] de JERSEY CJ: The Honourable the Attorney-General appeals against sentences imposed on these three respondents, in respect of offences to which they pleaded guilty, arising out of their participation in a riot on Palm Island on 26 November 2004. They were sentenced in the District Court at Townsville on 28 July 2006. It is convenient to deal with the appeals together.

[15]

[3] An Aboriginal man died on 19 November 2004 while in police custody on Palm Island. Over the following week, with increasing tension within the Palm Island community, the police presence there was increased. The riot on 26 November followed a community meeting, attended by up to 300 persons, at which some details from an autopsy report were publicly disclosed by Ms Kyle, the Council chairperson. They included the assertion the death was caused by an accidental fall. Dissatisfied with the disclosure, the crowd became very angry. Some suspected a police officer was responsible for the death.

[16]

[4] One Wotton led the crowd from the meeting place over a distance of approximately 80 metres to the police station. Abuse and threats were hurled at the police inside, including threats to kill them. Wotton smashed windows and security grilles. Many people threw rocks at the building. The police considered the station building afforded them insufficient protection, and during a lull, fled to nearby barracks. Stones were thrown at them as they ran. The station, the courthouse and the police residence were then set on fire.

[17]

[5] The crowd descended on the police barracks, where the police were bunkered inside. Threats were shouted at the police officers. Rocks, bricks and pieces of concrete were thrown at the building and at the police officers, especially those attempting to negotiate with the crowd. A number of police officers were injured, one sustaining a fractured rib. The record includes some 60 pages of victim impact statements by police officers who describe the terror they experienced, and its aftermath: they feared for their lives, with some telephoning family members to say goodbye. (I return later to these matters.) Wotton threatened the police that unless they left the island within the hour, they would be killed.

[18]

[6] During another lull, the police decamped to an area near the hospital. The rioters reassembled at the hospital. There had been an attempt to close the airport and block the road between the airport and the township, to thwart the arrival of police reinforcements. But they eventually got through, joining the police at the hospital. When, after about four hours of turmoil, it was accepted the police were staying put, Wotton directed the crowd to go home, and they did.

[19]

[7] Poynter was charged with taking part in a riot.

[20]

[8] Under s 63 of the Criminal Code 1899 (Qld), any person who takes part in a riot is guilty of a misdemeanour, and liable for imprisonment for up to three years. Section 61 prescribes the circumstances in which a riot will be taken to have occurred. A "riot" is an "unlawful assembly" of people who have begun to act "in so tumultuous a manner as to disturb the peace" (sub-s (4)). By s 61(1), an "unlawful assembly" occurs, as relevant to this case, when three or more persons conduct themselves so as to cause others within the neighbourhood reasonably to fear that they will tumultuously disturb the peace.

[21]

[9] At the time, Poynter was 26 years of age. He had a lengthy criminal history, including the following: February 1996: assault occasioning bodily harm (probation); October 1996: assault occasioning bodily harm while armed (three months imprisonment suspended, subsequently activated); May 1998: indecent assault (three months imprisonment); January 1999: obstruct police (fined); April 1999: going armed in public so as to cause fear (three months imprisonment); October 1999: assault occasioning bodily harm and common assault (six months suspended, subsequently activated); July 2001: wounding, assault occasioning bodily harm while armed, going armed in public so as to cause fear (two and a half years imprisonment, parole recommended after nine months); and October 2001: breach domestic violence order - four counts, and obstructing police (one months imprisonment). It will be noted he had previously been imprisoned, a number of times, for crimes of violence.

[22]

[10] Poynter had served eight days pre-sentence custody, from 28 November 2004 to 6 December 2004. The learned Judge sentenced him to 12 months imprisonment, to be served by way of an intensive correction order. He made that order under s 112 of the Penalties and Sentences Act 1992 (Qld). It involves serving "the sentence of imprisonment by way of intensive correction in the community and not in a prison" (s 113(i)).

[23]

[11] Poynter was awoken from his sleep and told the police station had been burnt. He went there. He noticed the police station and the police residence were alight. Observing the gathering at the hospital, he made his way there. He noticed the police line at the hospital entrance. He armed himself with a metal bar which he took from a Council vehicle parked at the hospital, and carried it in the back of his trousers.

[24]

[12] He then approached two police officers who were negotiating with members of the local community. He abused the police officers in foul terms, while waving the bar in their direction. He said:

[25]

"He should be put in fucking jail. Why are youse still here? Why don't youse fuck off...Why don't youse cunts fuck off?"

[26]

He made threats to a police inspector that he would "get him later", another officer having found it necessary to warn the inspector of the armed Poynter's approach. Poynter then used the iron bar to smash a hospital sign.

[27]

[13] When police reinforcements arrived, Poynter left with the crowd. Located later by police and interviewed, he admitted his involvement.

[28]

[14] The learned Judge sentenced him on the basis that his involvement "at the tail end of it" placed him "in the lower echelon of offenders".

[29]

[15] The Attorney-General contends the sentence imposed on Poynter was manifestly inadequate, because an intensive correction order fails to reflect the seriousness of the offence, and the seriousness of Poynter's prior criminal history.

[30]

[16] Norman was charged with the offence of unlawfully damaging a building while part of a riotous assembly with others. Section 66 of the Criminal Code creates that offence, and prescribes a maximum penalty of seven years imprisonment. (Poynter damaged a hospital sign, but not a building, which presumably explains his being charged under s 63 not s 66.)

[31]

[17] At the time, Ms Norman was 31 years old. She had no prior criminal history.

[32]

[18] Norman was present at the meeting where the autopsy results were disclosed. She joined the crowd which followed Wotton to the police station. She was present as part of that crowd while Wotton was threatening to burn the police station and kill the police officers. She threw rocks at the police station while the police officers were still inside. Her 14 year old son was by her side. Notwithstanding his grandmother's entreaties that the son should leave, Norman permitted him to remain when he indicated that was his wish. Norman remained with the crowd outside the police station, and when the station and courthouse were set alight, she threw rocks at the police as they ran from the station to the barracks. As the station and barracks burnt, she continued to throw rocks at them. Later, after the police officers had fled to the safety of the hospital, she was part of a group which entered the barracks area, although she left when told to do so. Norman was arrested on 1 December, and declined to answer any questions.

[33]

[19] Norman spent one day in pre-sentence custody, 1 December 2004. The learned Judge sentenced her, as with Poynter, to 12 months imprisonment to be served by way of an intensive correction order.

[34]

[20] The Judge considered her situation was "sufficiently special" to permit the court to make an intensive correction order rather than ordering actual incarceration. He referred to two particular circumstances: first, that she is a single mother with the full time care of young children; and second, that she "claims a family relationship with the young man whose death was the spark for all of this". His Honour continued:

[35]

"She had attended at the meeting out of a genuine interest in how the death had occurred. It appears she shared the crowd's frustration once the issue was raised by more vociferous people that their concerns really had not been dealt with, that they really had not been fully informed..."

[36]

[21] The Attorney-General contends that the intensive correction order imposed upon Norman was manifestly inadequate, in failing to reflect the seriousness of the offence, the need for general deterrence, and the substantial role Norman played. The Attorney-General contends that the Judge "erred in firstly determining that an intensive corrections (sic) order was appropriate thereby limiting the maximum penalty to be imposed as twelve months imprisonment". The Attorney also contends the Judge erred "by failing to distinguish the more serious role played by...Norman as opposed to...Poynter".

[37]

[22] As to the second of those matters, the Judge said the aspects peculiar to Norman "are sufficiently special to permit the court to accede to the submission of (her counsel) that an intensive correction order be made"; and he went on: "That, of course, has the consequence that the maximum term of imprisonment that can be pronounced by the Court is 12 months."

[38]

[23] Parker, like Norman, was charged with unlawfully damaging a building, while riotously assembled with others.

[39]

[24] At the time, Parker was 37 years old. Like Poynter, Parker had a substantial criminal history. It included the following: August 1986: wilful destruction of property (fine); November 1987: assault occasioning bodily harm (fine); May 1987: possession of a firearm (fine); June 1987: assault occasioning bodily harm (fine); January 1988: assault occasioning bodily harm (fine); July 1993: assault occasioning bodily harm (probation); September 1994: arson (two years imprisonment suspended after six months); February 1996: assault occasioning bodily harm - two counts (community service); November 1996: wilful damage and assault occasioning bodily harm (six months imprisonment); June 1998: wilfully damaging police property (fine); February 1999: going armed in public so as to cause fear (three counts), obstructing police (two counts), possession of a weapon, wilful destruction of property (18 months imprisonment); December 2000: obstructing police, breaching a domestic violence order (21 days imprisonment); March 2001: assault occasioning bodily harm (six months imprisonment); July 2001: assault occasioning bodily harm while armed (six months imprisonment); January 2004: wilful damage (fine); and July 2004: wilful destruction of property (community service). As will be noted, he has been subjected to a range of different types of sentences, and has been imprisoned a number of times for violent crime.

[40]

[25] Parker was present at the initial meeting. He joined the crowd which followed Wotton to the police station. He stood close by as Wotton threatened to burn the police station and kill police officers. Although he was a vocal participant, he did not himself make threats of that character. But he remained with the crowd as rocks were thrown and the station set alight, and moved with the crowd after the police fled to the barracks. He was therefore party to the wilful damage wrought by Wotton and others on the police station, and actively participated in the riot, although he was not observed himself throwing rocks or heard making threats. He stood near Wotton at one stage as Wotton called to police: "We've burnt your station, your barracks are next, get off the island." Parker later drove a garbage truck and positioned it on the road from the airport to the main township, in what proved an ineffectual attempt to block the road to prevent police reinforcements reaching the township. After the police officers moved to the hospital area, Parker was present and argued with them. A police officer asked him whether he had any influence with the crowd. He said he did, whereupon the officer urged him to seek to calm the group down. Parker responded to the effect that he preferred to leave that to Wotton.

[41]

[26] The learned Judge sentenced Parker to 18 months imprisonment, suspended after six months for an operational period of three years. Parker had spent nine days in custody prior to being sentenced, over the period 27 November 2004 to 6 December 2004. The Judge made a declaration in respect of that.

[42]

[27] The Judge made mention of, and was influenced by, the circumstances that Parker had been subject to a 5 am raid by armed members of the Specialist Emergency Response Team (SERT); that he had been subject to bail conditions obliging him to live away from Palm Island for four and a half months; and that he had a good employment record and was well advanced in an apprenticeship.

[43]

[28] The Attorney-General, in contending that the sentence imposed upon Parker was manifestly inadequate, asserts it failed to reflect the seriousness of his offence and the need for general deterrence.

[44]

[29] It is convenient that I set out now the sentencing Judge's observations on this topic:

[45]

"I propose to note some particular contents of the victim impact statements which have been tendered by the Prosecutor, one of which contains the following:

[46]

'I know this sounds a tad overdramatic, as we now know how things ended up, however at the time I did not have the benefit of hindsight, my assessment of the situation at the time was that it was that serious. Once again, I know this may sound overdramatic, given I didn't end up firing a single shot, however the fact that I made a cold, logical decision to fire into a large crowd if necessary with obvious consequences has caused me much angst since. I often reflect on how much bigger this whole sorry Palm Island saga would have been if that lock had given away and we had ended up firing into the crowd, killing God knows how many people. To me the greatest plus to come out of this incident is that no person from either the police or the rioters was seriously injured.'

[47]

Those who get involved in riots and like incidents ought to reflect on the grave risk they are creating to themselves and those surrounding them. The video evidence suggests that the possibility of police discharging firearms, and even with the purpose of killing, was very real. Perhaps it can be said in retrospect, and perhaps it could have been said at the time that no-one had any intention of injuring any police officer, but that is simply not the way in which people, police or otherwise, facing an apparent threat would assess their situation. The victim impact statements indicate that perhaps for the most part the police officers feared that their own deaths were imminent. They did what they could to make contact with and say farewells to loved ones.

The impacts on the officers are of many kinds. One expressed this concern regarding the move to the hospital, and I quote:

[48]

'I felt that even though we had moved to make our own situation safer, that now we had placed the wellbeing of doctors, nurses, staff and patients, that included elderly people, women and children, at a real risk of being drawn into violence and a certain risk of being injured. This tore at me because this was not what we were about. We were about keeping the vulnerable from our community safe and now we couldn't even protect ourselves, let alone those who had opened their doors to us to provide us with a safe shelter.'

[49]

'I think the whole incident has left me with an overall feeling that I don't care what happens with Palm Island or its people and in this I feel has diminished my humanity a little.'

[50]

That is another common theme. One of the victim impact statements comes from an indigenous police officer. Generally speaking officers who have had decades of experience describe what happened on the 26th of November 2004 as the most terrifying and difficult situation they have ever been in. The same assessment was made by one officer who had 18 years of service in the army, including operations overseas on a number of occasions.

In some instances the career paths of officers have been seriously disrupted. Promotions which depended on longer service on Palm Island were lost and there has been a significant financial loss. A number of officers were upset that their personal items were left to be ransacked, particularly as stories started to spread that identifying materials such as driver's licences and police ID had been stolen and were out and about on the island.

Some officers, at considerable remove from the riot but observing it, were convinced from the sight of the fire and perhaps from the sounds associated with it, which seem to have included the explosion of a gas bottle in the residence mentioned, that their colleagues were dead.

For the most part the officers have sought to get back to duty without professional assistance, others have availed themselves of such assistance. There has been disruption not only to their service lives but to their family lives, to their feeling of competence, not only as police officers but as functioning human beings. One officer feels his Catholic faith and ability to live up to the precepts of it have faced a challenge which he may not be able to overcome."

[51]

[30] In sentencing the respondents, the Judge spoke of the need to deter riots because of the potential for injury to persons and damage to property - both of which resulted in this case. Further, in this case the targets were members of the police service, the very agency charged to maintain the security of persons and their property. Here, as submitted for the Crown, "the police were effectively crippled in their ability to perform their duty. The need to protect their own lives from the rioters meant they had to surrender the streets to them. This resulted in their inability to act to prevent the arson of the police station, courthouse and police residence and to prevent looting."

[52]

[31] Mr Devereaux SC, who appeared for the respondent Parker, submitted that "the riot in this case was not directed at police as a result of their carrying out their lawful duty, but was a response to perceived unlawful fatal violence by a police officer on a community member". That may be, but for sentencing purposes, the point lacks significance. The fact is that the actions of the crowd actually prevented the police from carrying out their duty on Palm Island, and that went for the entire Palm Island police contingent. Indeed, the proclaimed purpose of the riot, as expressed by Wotton, was to force the departure of all police from the island.

[53]

[32] The crowd of up to 300 people was large. But their rejection that night of the civil authority should not lead to the stigmatizing of the entire Palm Island community. The crowd involved in the riot represented about one eighth of the Palm Island population.

[54]

[33] The learned Judge noted sentiments expressed in the Full Court of the Supreme Court of Victoria in R v McCormack & Ors [1981] VicRp 11; [1981] VR 104, and they bear repetition:

[55]

"A riot, like an affray, involves both violence and public alarm. They involve public alarm because they are currently or potentially dangerous. The level of violence used and the scale of the affray or riot are factors relevant to sentence...A riot usually carries with it an inherent danger of injury to persons or property or both. There is a danger that members of the crowd will respond to what has been called, 'the psychology of the crowd'...[t]he danger is great when the crowd can be described as a mob threatening violence. With such a mob violence may suddenly erupt to a high level and may quickly be directed in new directions. In our opinion the present or potential danger of injury inherent in a particular riot is a consideration relevant to the sentence of any rioter." (p 108)

"This riot was serious and dangerous. It was an occasion when it was appropriate, by the imposition of substantial sentences, to make clear the gravity with which the law and the community view the crime of riot and the substantial sentences to be expected for it. Such sentences make it less likely that others will follow the applicants' example of joining in a riot. ... Because the duty of the police to maintain the law and to protect the community from unlawful conduct exposes them to attack, courts have commonly regarded an attack on the police in the execution of their duty as calling for custodial sentence with a deterrent component..." (p 109)

[56]

[34] Involvement in a riot is an intrinsically dangerous enterprise. Riots by nature endanger personal safety and the security of property. They may also, if of a certain scale, jeopardize the long-term health of communities. This riot had all those consequences. It was additionally reprehensible for its targets - the police service, charged (under the Police Service Administration Act 1990 (Qld)) with the "preservation of peace and good order" of Palm Island, and the protection of its people (s 2.3). To riot against the police service is an affront to the rule of law.

[57]

[35] To add the obvious, that one police officer is perceived - whether or not with justification - to have done a terribly bad thing, does not justify the wholesale, violent, condemnation of the contingent of which he forms part. It is the identity of the targets of this violent riot which renders the involvement of anyone in it, distinctly grave.

[58]

[36] I agree with this view expressed in McCormack (p 110):

[59]

"Their participation in the riot seems to have sprung at least in part from a view held, rightly or wrongly, that the police had earlier acted harshly or beyond their powers. Even if the police had so acted, the mob conduct at the police station was a reaction which could not be tolerated in a civilized community."

[60]

[37] Recent and not so recent world history illustrates the immense damage wrought by riots.

[61]

[38] There is ample justification for the view penalties imposed in these cases should be starkly deterrent.

[62]

[39] I have faith the substantial balance of the Palm Island community, which did not participate in this riot, would not agree this was a legitimate way of expressing community concern. Whatever the level of one's perceived resentment, respect for the rule of law must prevail, or the consequence is anarchy, and Palm Island was that evening headed in that dismal direction.

[63]

[40] There is little in the way of past authority offering guidance as to sentencing levels in such cases. That reflects the generally stable democracies our jurisdictions have enjoyed. Reference may however be made to R v Felsman, Baker, Baker & Baker [2005] QCA 453; CA No 308, 309, 310 & 311 of 2005, 7 December 2005, though I emphasize at once, not a case where the outrage was directed against police officers.

[64]

[41] The applicants in Felsman were convicted of rioting simpliciter (directed towards the occupants of a private dwelling), and so were subject to the three year maximum. The riot in that case involved only some 15 people, and was not directed at police officers. No damage to property or injury to person was charged. Those offenders aged 49 years and 26 years were subjected, respectively, to terms of six months imprisonment, and six months imprisonment suspended after three months, and community service orders were made in relation to applicants aged 17 years and 19 years. The offenders had no, or limited, past criminal histories. Those penalties suggest that the primary Judge in the present case was particularly lenient. I say that especially because of their past histories, in the cases of Poynter and Parker, and the features that this riot was directed against police officers, and occasioned personal injury and considerable property damage. Additionally, this riot was of much more substantial proportion, and therefore more potentially dangerous, than that which confronted the Court in Felsman: I refer in particular to the comparative numbers of participants, 200 to 300 by contrast with only 15 or so, and its target being the entire Palm Island police contingent, and a number of buildings. Also, the Felsman affray persisted only for a comparatively short time - here the tumult lasted approximately four hours.

[65]

[42] A prime consideration in this case was to impose penalties which signalled the complete unacceptability of endangering the safety of police officers charged with the protection of the community, genuinely going about their business in that regard, and the safety of the rioters themselves - and indeed other members of the Palm Island community, and the security of significant public property.

[66]

[43] Mr Campbell, appearing for the Attorney General, submitted that each of the respondents should have been imprisoned for an appreciable term.

[67]

[44] Poynter was the youngest of the three offenders, at 26 years of age. Mr Campbell referred to his bad past criminal history, and the aggravating features that he joined the riot after becoming aware of its destructive potential, aware that the station and the residence had been set alight; and that he armed himself with the iron bar with which he threatened the police. Even though the maximum penalty for his offence was three years imprisonment (and not seven years), he should, it was submitted, have been required to serve some time in custody.

[68]

[45] Mr Byrne QC, who appeared for Poynter, emphasized his being in the "lower echelon of offenders", and pointed out that the prosecutor submitted to the sentencing Judge that a head sentence of "not less than 12 months" should be imposed upon him. Mr Byrne submitted "this is precisely the sentence that the respondent received". The prosecutor was plainly, however, not referring to a head sentence to be served in the community by way of an intensive correction order.

[69]

[46] Norman's offence carried a seven year maximum term. Although she had no prior criminal history, it was submitted she played a significant role in the riot by throwing rocks at the station and the officers, by encouraging Wotton, and by condoning the presence of her son. Mr Campbell submitted a head sentence not less than two and a half years imprisonment was called for.

[70]

[47] Mr Rafter SC, for Norman, referred to R v Melano; ex parte A-G (Qld) [1994] QCA 523; [1995] 2 Qd R 186, and other cases about the disposition of Attorney appeals. He conceded manifest inadequacy may warrant intervention. But he stressed her having remained in the community, her plea, her lack of any past criminal history, her care of the children and that she regarded the deceased as an uncle.

[71]

[48] In the case of Parker, the maximum penalty was again seven years imprisonment. Mr Campbell submitted Parker played a significant role by adding vocal support, and attempting to prevent the arrival of reinforcements to assist the police. He submitted Parker's extensive criminal history, taken with those aspects of his participation, warranted a sentence of at least two and a half years imprisonment.

[72]

[49] Mr Devereaux emphasized matters personal to Parker: the condition of his bail which kept him away from his family on Palm Island for four and a half months; that he obtained employment in Townsville during that period; that his last conviction for assault occasioning bodily harm, entered in July 2001, concerned an offence committed in July the previous year; that he was doing well under an apprenticeship; and that proper recognition had to be given for his plea of guilty.

[73]

[50] I consider Poynter's substantial past criminal history, highly significant for its violence, and the circumstances of his involvement - joining the affray when he knew that serious harm had been and was being wrought, and arming himself with the iron bar which he used to threaten police officers, taken with the overall need for appropriately deterrent sentences in these cases, meant that he should have been actually imprisoned, notwithstanding the maximum penalty for his offence was three years and not longer.

[74]

[51] I would order that the appeal in respect of the respondent Poynter be allowed, that the intensive correction order made on 28 July 2006 be set aside, and that in lieu, he be imprisoned for 15 months, fixing his parole release date five months hence, that is 8 May 2007. (I have selected five months to reflect his having been subject for some months to the intensive correction order, under which he has performed generally, but not uniformly, positively.) There should be a declaration that he has served eight days pre-sentence custody, from 28 November 2004 to 6 December 2004, to be taken as time served in respect of that sentence of imprisonment.

[75]

[52] Ms Norman is in a different category from that of the other respondents, because of her lack of any prior criminal history, by contrast with the lengthy and highly relevant prior criminal histories of the others. That she alone of the respondents regarded the deceased as a relation, an uncle, explained her reasonably motivated initial attendance at the meeting, though obviously not her subsequent participation in the affray, and it was for that participation that she fell to be sentenced. Ms Norman is a single mother of four children, who at the time of the sentencing were aged between 12 months and 16 years, all of whom are in her sole care. If she is imprisoned, the State will accommodate the children. I am afraid that if imprisonment is plainly called for, separation of the mother from the children is an unfortunate consequence which must however be borne. Norman has now for approximately four months been subject to the intensive correction order (there was no evidence of her performance under that), and has been at large in the community. But where an appeal court reaches a conviction that a respondent should clearly have been imprisoned for an appreciable term, that he or she has been at large in the community since the sentencing, and even though as here subject to an intensive correction order, the appeal Court should not be dissuaded from now imprisoning him or her. Reference may be made to R v Sittczenko; ex parte Cth DPP [2005] QCA 461; CA No 221/2005, 9 December 2005, para 28 and R v Quick; ex parte A-G (Qld) [2006] QCA 477; CA No 277 of 2006, 17 November 2006.

[76]

[53] I have reached the clear conviction that the gravity of Norman's participation, active and for the duration of the riot, extending to her exposing her 14 year old son to that dangerous situation, meant she should have been imprisoned in fact, the other considerations favourable to her warranting an early release on parole. I consider imposing an intensive correction order was a manifestly inadequate response to her offending.

[77]

[54] I would order that the appeal in respect of the respondent Norman be allowed, the intensive correction order made on 26 July 2006 set aside, and that in lieu thereof, she be imprisoned for 18 months, fixing her parole release date four months hence, that is 8 April 2007. There should be a declaration she has spent one day in pre-sentence custody, that is, 1 December 2004.

[78]

[55] I turn to the respondent Parker, who was imprisoned for 18 months suspended after six months for an operational period of three years, with a declaration as to pre-sentence custody. Parker, it will be recalled, participated in the riot by his presence and vocal contribution, and it was he who used the truck in an effort to block the passage of police reinforcements from the air strip. Parker was subject to a seven year maximum term because of the damage to the building, and bore the burden of a criminal history somewhat worse than Poynter's. Also, Parker chose to be there from the start, and remained and participated for the duration, whereas Poynter first became involved later in the piece. The penalty to be imposed upon Parker should therefore have been substantially stronger than that visited upon Poynter, as indeed was reflected in the primary Judge's own approach.

[79]

[56] In view of my observations about this case against the background of Felsman, and allowing for the treatment I consider should now be given to the respondent Poynter and Norman, my view is that while Poynter should serve five months of a head term of 15 months, and Norman four months of 18 months, Parker, who is subject to the maximum of seven years, should be required to serve nine months of a head sentence of two years imprisonment. I would order that the appeal in relation to the respondent Parker be allowed, that the sentence imposed upon him in the District Court be set aside, and that in lieu, he be imprisoned for two years, fixing a parole release date after nine months, that is, 28 April 2007. The declaration as to pre-sentence custody should remain.

[80]

[57] The disposition of these appeals in that way reflects the moderation traditionally attending the court's treatment of Attorney appeals (cf R v Quick; ex parte A-G (Qld) [2006] QCA 477).

[81]

(b) set aside the order made in the District Court on 28 July 2006;

[82]

(c) order in lieu, that the respondent be imprisoned for 15 months, and fix a parole release date after five months, that is 8 May 2007;

[83]

(d) declare the respondent has served eight days pre-sentence custody, from 28 November 2004 to 6 December 2004, to be taken as time served in respect of that sentence of imprisonment;

[84]

(e) that a warrant issue for the arrest of the respondent, to lie in the Registry for 14 days pending any necessary execution.

[85]

(b) set aside the order made in the District Court on 28 July 2006;

[86]

(c) order in lieu, that the respondent be imprisoned for 18 months, and fix a parole release date after four months, that is 8 April 2007;

[87]

(d) declare the respondent has served one day pre-sentence custody, namely 1 December 2004, to be taken as time served in respect of that sentence of imprisonment;

[88]

(e) that a warrant issue for the arrest of the respondent, to lie in the Registry for 14 days pending any necessary execution.

[89]

(b) set aside the order of imprisonment made in the District Court on 28 July 2006;

[90]

[91]

(d) that the declaration as to pre-sentence custody made by the District Court on 28 July 2006 remain in place.

[92]

[59] McMURDO P: The appellant, the Attorney-General of Queensland, appeals against sentences imposed on the three respondents. The respondent Jason Richard Poynter was sentenced to 12 months imprisonment to be served by way of an intensive correction order for the offence of rioting. The respondent Alissa Jane Norman was also sentenced to 12 months imprisonment to be served by way of an intensive correction order for the more serious offence of rioting with damage. The respondent Russell Wayne Parker was sentenced to 18 months imprisonment suspended after six months with an operational period of three years, nine days pre-sentence custody being declared as time served under the sentence, for the offence of rioting with damage. The Chief Justice has comprehensively set out most of the relevant facts in his reasons. I will not unnecessarily repeat them in giving my reasons for refusing the appeals.

[93]

[60] To succeed in an appeal under s 669A Criminal Code the appellant must ordinarily demonstrate error in accordance with the principles set out in House v The King:[1] see R v Liekefett; ex parte A-G (Qld);[2] R v Melano; ex parte A-G (Qld)[3] and R v Katia; ex parte A-G (Qld).[4] The appellant here contends that the sentence imposed on each respondent is manifestly inadequate; the sentences do not sufficiently reflect the serious nature of the offending; in the cases of Parker and Poynter the judge gave insufficient regard to their extensive criminal histories.

[94]

[61] The experienced primary judge was sentencing six offenders for their part in a notorious event in Queensland's history known as the Palm Island riots of 26 November 2004. They all pleaded guilty and were the first protagonists in the riots to be dealt with in the District Court. There is no appeal in respect of a juvenile offender who had spent 88 days in pre-sentence custody and was ordered to perform 150 hours of community service for the offence of rioting with damage. There is no appeal in respect of Garrison Brian Sibley, who although an adult, had a functioning ability of an eight or nine year old, and was sentenced for stealing during civil unrest to six months imprisonment concurrent with a sentence he was then serving, with 88 days of pre-sentence custody declared to be time served under the sentence. Nor is there an appeal in respect of 20 year old Russell Edward Elias Parker who was sentenced to six months imprisonment for his offence of stealing during civil unrest.

[95]

[62] In sentencing the three respondents the judge first noted the valuable co-operation to the justice system each had extended by pleading guilty to offences representing their part in the riots. The judge observed that the riot developed following the announcement by the chairwoman of the Palm Island Council, Erykah Kyle, at a public meeting of concerned Palm Island citizens about inquiries into the death of a young Palm Island man (now referred to as Mulrunji) on 19 November 2004. The effect of Ms Kyle's announcement was that Mulrunji's death had occurred owing to massive internal bleeding occasioned by a fall described as an accident. The judge noted that at the time of sentence (28 July 2006) the coroner's inquiry into Mulrunji's death in custody had not been completed. In retrospect it may have been unfortunate that the police were not expecting the announcement at the meeting when the crowd apparently were. During the preceding days there had been expectation, anticipation and suspicion in some parts of the Island community, "perhaps understandably against a background of the Aboriginal deaths in custody inquiry, that improper conduct by police might have been involved." After Ms Kyle's announcement men in the crowd began to question aloud the suggestion of death by accident and this developed into speculative allegations that Mulrunji had been murdered. The focus was on the particular police officer who was considered responsible for Mulrunji's death and his appearance back on duty in uniform shortly after the death was in retrospect unfortunate. Emotions in the community were running high and anger was focussed at the particular police officer and the police collectively.

[96]

"There followed an ugly series of incidents in which strong language was used and very specific threats to burn or kill police were uttered - in many instances by men who were armed with rocks, posts, star pickets, what appeared to be spears, metal bars and the like. Police were forced to withdraw to what seemed to be positions of safety in the police area, one building removed from the mall where the announcement of the autopsy results had been made. Their retreat further was forced with, it appears, use of sledge-hammers and the like to force entry into buildings. The police station building was set on fire and not long after that the residence of the officer in charge. There was breaking of glass and damage to external finishes of buildings. There is in evidence a photograph of one sizeable rock projecting through an internal wall in a building - indicating the force with which it must have been thrown.

... [the police] were given, it seems, an hour to remove from the island in the course of negotiations that were taking place through the afternoon; ... even if there had been facilities to enable the police to remove via the airport, given that their vehicles had been commandeered, orders from above did not permit that course. ...

The throwing of rocks ... was directed not only at buildings but also at police officers."

[97]

[64] His Honour next referred to the police officers' victim impact statements. Those observations are set out in the Chief Justice's reasons.[5] His Honour noted that physical injuries suffered by police included bruising, lacerations, cuts and perhaps a broken rib. The ugly incident petered out after some hours with the co-operation of the so-called leaders of the riot.

[98]

[65] The judge observed that penalties for riot and for offences committed in the course of a riot or civil unrest are potentially severe; the leading authority was R v McCormack.[6] Courts commonly regard an attack on police in the execution of their duty as calling for a custodial sentence with a deterrent component; sentences of imprisonment may properly be imposed even on first offenders of good character to mark the disapproval by the law of the conduct as a deterrent to others. His Honour noted that those involved in the riots should reflect on the grave risk they created for themselves and others. The video evidence demonstrated the real possibility of police discharging firearms, even with the purpose of killing. Whilst none of the rioters may have intended to injure any police officer, that is not the way the police or others who felt threatened that day would have assessed their situation. The police officers feared their own deaths were imminent and the detrimental impact on them has been varied and significant. The offenders should also reflect on those statements and that impact.

[99]

[66] His Honour noted that Poynter and Parker had bad criminal histories including for offences of violence; the police officers can be presumed to have had that knowledge and this would have added to their concern. His Honour noted the maximum penalties applicable to the offences and the antecedents of each appellant.

[100]

[67] In respect of Parker his Honour observed that he had been required by his bail conditions to live away from his home and family for four and a half months. He had a good employment history and was currently well advanced in an apprenticeship as a carpenter. His positive participation in the riot was limited to driving a garbage truck across the road to the airport in an attempt to block it. He was sentenced to 18 months imprisonment suspended after six months with a three year operational period.

[101]

[68] In respect of Norman his Honour noted that she had no previous criminal history, was 31 years old with four children, two of whom, a five year old and a one year old, were in her care. She had a family relationship with Mulrunji and attended the meeting out of a genuine interest and concern for how his death had occurred. She shared the frustration raised by more vociferous members of the crowd. These special circumstances warranted a 12 month sentence of imprisonment to be served by way of an intensive correction order.

[102]

[69] As to Poynter, his Honour noted that he was not charged with causing damage. He became involved in the riots at a late stage. His sister woke him up and told him of the events. He was curious and went to see for himself. He put a metal bar in the back of his trousers. His criminal history involved previous offences of assault occasioning bodily harm whilst armed and going armed so as to cause fear although his offences of violence occurred a relatively long time ago. He approached Inspector Richardson, the police officer in charge, and appeared to threaten him, although at a distance of about eight to 10 metres, saying "He should be put in fucking gaol. Why are you still here? Why don't youse fuck off? Why don't youse cunts fuck off?" He had served pre-sentence custody of eight days. His Honour considered that Poynter's involvement placed him "in the lower echelon of offenders" involved in the riot. In sentencing him to 12 months imprisonment to be served by way of an intensive correction order, his Honour noted that the order would not be subject to suspension, remission or any kind of early release and that the whole of that term would have to be served although not in a prison but in the community. Those comments were equally apposite to Norman.

[103]

[70] His Honour noted that the Palm Island community appeared in his experience to have a high crime rate and required a dedicated and effective police presence. The vast majority of Palm Islanders were not involved in the riots and must have been as disturbed as anyone else by them.

[104]

[71] The findings on the inquest into the death of Mulrunji in the Coroner's Court[7] suggest that the Palm Island community may have had good reason to question the circumstances surrounding Mulrunji's death in custody on 19 November 2004, one week before the riots, and its subsequent investigation. But whilst that may reveal what triggered such a terrifying and destructive incident in Queensland in 2004, it does not excuse the rioters' resort to lawlessness in pursuit of their cause. The rioters could have expressed their concerns through lawful channels. As Ms Kyle carefully and clearly explained to members of the Palm Island community at the meeting which preceded the riots, an inquiry was underway and the matter was to be referred to the Crime and Misconduct Commission ("CMC"). Indeed the Factual Overview tendered at sentence by the prosecution indicates that two CMC officers were at Palm Island inside the Council building at the time of the meeting. Instead the rioters resorted to lawlessness. The riots caused millions of dollars worth of damage to infrastructure on Palm Island. I have viewed the videotape taken by police officers of the public meeting and parts of the riot from the police photographer's viewpoint. As the videotape and the victim impact statements make clear, it is miraculous that no-one was seriously physically injured.

[105]

[72] Those participating in the riots were directly attacking lawful authority in a community which, as the primary judge recognized, was especially in need of a dedicated and effective police presence to maintain the rule of law for the benefit of Palm Islanders. The great majority of law-abiding citizens on Palm Island must have been even more concerned by the events of 26 November 2004 than the rest of their fellow Queenslanders. It was plainly terrifying for the unfortunate police officers involved, men and women merely trying to do their duty in challenging circumstances. Some of them will suffer psychological repercussions long after the harrowing incidents, perhaps permanently. As the primary judge identified, deterrence was a dominant sentencing principle.

[106]

[73] His Honour also rightly recognized that a plea of guilty in cases like these was a significant mitigating factor. It demonstrated genuine co-operation with the administration of justice and suggested a degree of courage, leadership, insight and remorse. It warranted a tangible discount to the otherwise appropriate sentence. Whilst the observations referred to earlier in McCormack remain apposite, it would be unjust to sheet home to these three respondents, who played a relatively minor role in the riots, the full responsibility for the worst excesses of the riots. Courts must be cautious not to make scapegoats of those who are honest and brave enough to admit to their role in riots by pleading guilty in a relatively timely fashion.

[107]

[74] The primary judge addressed the appropriate legal principles and conscientiously undertook the difficult task of balancing the competing considerations so as to determine sentences within a range he considered appropriate.

[108]

[75] The maximum penalty in Poynter's case was three years imprisonment. He was 26 at the time of the offence and the youngest of the three respondents. He had a significant criminal history for offences of violence and dishonesty, the most serious being in 2001 for offences of assault, wounding and assault occasioning bodily harm whilst armed with a dangerous weapon or instrument, for which he was sentenced to two and half years imprisonment with a parole recommendation after nine months.

[109]

[76] In his favour it can be said he has not committed any further offences of violence since 2000. His involvement in the riots was at a late stage and was relatively minor. He pleaded guilty. He had spent eight days in pre-sentence custody and was sentenced to a further 12 months imprisonment to be served by way of an intensive correction order. The requirements of such an order are set out in s 114 Penalties and Sentences Act 1992 (Qld). They are onerous and require the performance of extensive community service. The order constitutes a significant punishment and is a very substantial curtailment of an offender's freedom. Breach of the order may result in a term of imprisonment for the original offence (s 126(4)) or an order to serve the remainder of the period of the intensive correction order in custody: R v Tran; ex parte A-G (Qld).[8] Poynter has now served over four months of the order and so can be expected to have completed a significant amount of community service. A report from Queensland Corrective Services tendered in this appeal noted that, despite committing the offence of disqualified driving on 21 September 2006, his response to supervision has been positive and he "is making a worthy contribution to the Community on Palm Island through his community service. Furthermore, by addressing his alcohol abuse, he has been able to provide a stable family environment for his children."

[110]

[77] The appellant contends that Poynter's sentence is manifestly inadequate and that a sentence of 12 to 18 months imprisonment with a parole release date after six months should now be imposed. I am not, however, persuaded that in the circumstances which I have set out above the sentence imposed was so light as to be manifestly inadequate or that it gave insufficient weight to Poynter's prior criminal history. In light of Poynter's having already served over four months of his 12 month intensive correction order satisfactorily I would in any case be reluctant to now order that he serve a short period in custody. The appeal against Poynter's sentence should be refused.

[111]

[78] In Ms Norman's case, she was charged with the more serious offence of rioting with damage. The maximum penalty was seven years imprisonment. She was 31 with no prior convictions and was the single mother of four children. Two children, aged five and one, were in her care. She had a family relationship with Mulrunji and attended the meeting preceding the riot. The primary judge noted that she felt frustration over his death in custody when the issue was raised by others.

[112]

[79] Her involvement in the riots, whilst serious, was not extensive. She was part of the crowd and threw rocks in the direction of the police after the police station and barracks were set alight by others. To her shame she also encouraged her 14 year old son to become involved. She was arrested on 1 December 2004 and was held in custody overnight. The sentence, like Poynter's, was compassionate. Because of her plea of guilty, her sole custody of two young children and her absence of criminal history I am not, however, persuaded that a 12 month term of imprisonment to be served by way of an intensive correction order was manifestly inadequate. I would refuse the appeal against Norman's sentence.

[113]

[80] The offence to which Parker pleaded guilty, rioting with damage, was punishable by up to seven years imprisonment. He was 37 at the time of the offences. He had a lengthy criminal history for offences involving violence, including arson for which he was sentenced to two years imprisonment suspended for 18 months after serving six months in 1994. He was sentenced to 100 hours community service and ordered to pay $564 restitution on 28 July 2004 at the Palm Island Magistrates Court for two counts of wilful destruction of property committed on 2 May 2004. The judge found that his one positive act of involvement in the riot was to drive a garbage truck across the road to the airport in an attempt to block the road and presumably prevent police reinforcements. He did not actively throw rocks at or physically damage the buildings. His bail conditions required him to live away from his home and employment for four and a half months. The judge specifically noted the four very favourable references tendered on Parker's behalf and that he was in the third year of a carpenter's apprenticeship. Whilst a heavier penalty could have been imposed, bearing in mind the plea of guilty, the limited role he took in the riot, the favourable references, his promising prospects and the lengthy period and onerous conditions of his bail, I am not persuaded the sentence of 18 months imprisonment suspended after six months was manifestly inadequate. Nor am I persuaded that the judge gave insufficient weight to his lengthy criminal history. The sentence imposed involved an immediate term of six months in actual custody. The remaining 12 month suspended sentence has an operational period of three years. Parker's past criminal history suggests that it will be challenging for him not to reoffend for three years. If he does reoffend during that period he will be liable to serve the balance of the 18 month sentence.

[114]

[81] In summary the sentences imposed on each of the appellants were at the low end of, but within, the appropriate range in the light of the facts found by the primary judge and the mitigating circumstances. But for the pleas of guilty and the mitigating factors to which I have referred in each case, heavier penalties would have been appropriate. The appellant has not demonstrated any appellable error in the careful approach taken by the experienced primary judge. I would refuse each appeal.

[115]

[82] CHESTERMAN J: I agree with de Jersey CJ.

[116]

[1] (1936) 55 CLR 499.

[117]

[2] [1973] Qd R 355.

[118]

[3] [1994] QCA 523; [1995] 2 Qd R 186.

[119]

[4] [2006] QCA 300; CA No 111 of 2006, 22 August 2006, [19] - [20].

[120]

[6] [1981] VicRp 11; [1981] VR 104 at 108 and 109, set out by the Chief Justice in these reasons at [33].

[121]

[7] Inquest into the death of Mulrunji, Coroner's Court, Cor 2857/04(9), 27 September 2006, Clements M (Acting State Coroner).

[122]

[8] [2002] QCA 21; CA No 283 of 2001, 12 February 2002, [15].

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (122 paragraphs)

Parties

Cases Cited (1)