R v Price; ex parte A-G

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where respondent plead guilty to three counts of unlawful assault doing bodily harm and one count of unlawful assault against three complainants - where respondent was a Senior Constable in the Queensland Police Service - where a head sentence of 27 months imprisonment was imposed to reflect the overall criminality of the respondent's conduct - where respondent argued that the sentencing judge failed to take into account certain factual matters, his early pleas of guilty and other relevant mitigating factors - where respondent submitted that the sentencing discretion miscarried because the sentencing judge gave too much weight to general deterrence, accepted the prosecutor's allegation that no remorse had been shown and allowed the prosecutor to refer to Facebook entries allegedly created by the respondent without proof of authorship of their existence - where respondent argued that his initial reaction in each case was provoked by the complainant - whether sentences manifestly excessive - whether leave to appeal should be granted

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where sentencing judge took into account, among other things, the respondent's use of "inappropriate and grossly excessive force" in respect of each of the offences - where appellant Attorney-General submitted that the sentences imposed failed to give weight to the increased maximum penalties for such offences and the amendments to the Penalties and Sentences Act 1992 (Qld) - where appellant argued that the sentences imposed were inadequate because the offences were committed by a police officer on duty, involved the deliberate infliction of pain and resulted in not insignificant injuries - whether sentences imposed were manifestly inadequate

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY - where appellant's notice of appeal failed to disclose a ground which would enable the appeal to succeed - where appellant submitted that a defective notice of appeal did not lead to the conclusion that it was invalid or that the Court's jurisdiction had not been properly invoked - whether the appeal should be dismissed

Penalties and Sentences Act 1992 (Qld), s 9

Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204, cited

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, cited

Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, considered

Lacey v Attorney-General of Queensland [2011] HCA 10, considered

R v Ablitt [2009] QCA 45, cited

R v Chong; ex parte A-G (Qld) (2008) 181 A Crim R 200; [2008] QCA 22, cited

R v Conquest; ex parte A-G (Qld) [1995] QCA 567, considered

R v D'Arrigo; ex parte A-G (Qld) (2004) 42 MVR 54; [2004] QCA 399, cited

R v Elliott [2000] QCA 267, cited

R v KU; ex parte A-G (Qld) (2008) 181 A Crim R 58; [2008] QCA 20, cited

R v Le [1996] 2 Qd R 516; [1995] QCA 479, cited

R v Melano; ex parte Attorney-General [1995] 2 Qd R 186; [1994] QCA 523, cited

R v Smith; ex parte A-G (Qld) (2000) 116 A Crim R 447; [2000] QCA 390, applied

R v Tait and Bartley (1979) 46 FLR 386; (1979) 24 ALR 473, cited

T v R (1990) 47 A Crim R 29, cited

The Queen v Wilton (1981) 28 SASR 362; (1981) 4 A Crim R 5, considered

W Sofronoff QC SG, with A D Anderson, for the appellant in Appeal No 271 of 2010 and the respondent in Appeal No 273 of 2010

The respondent in Appeal No 271 and applicant in Appeal No 273 appeared on his own behalf

Director of Public Prosecutions (Queensland) for the appellant in Appeal No 271 of 2010 and the respondent in Appeal No 273 of 2010

The respondent in Appeal No 271 and applicant in Appeal No 273 appeared on his own behalf

[1] MUIR JA: The respondent, Benjamin Price, was sentenced in the District Court on 11 October 2010 after pleading guilty to 4 offences against 3 complainants. The offences and the sentences imposed were as follows:

[2] All sentences were ordered to be served concurrently and a parole release date of 7 July 2011 was set.

[3] The appellant Attorney-General of Queensland appeals under s 669A of the Criminal Code that the sentences imposed were manifestly inadequate. The respondent also applies for leave to appeal on the grounds that the sentences were manifestly excessive. For convenience, I will refer to the Attorney-General as the appellant and Mr Price as the respondent.

[4] The respondent was born on 9 August 1976 and was 31 years of age when the offences were committed. He was a Senior Constable in the Queensland Police Service, having graduated from the Police Academy in June 2002. He resigned from the Queensland Police Service in June 2008. A consultant psychologist in a report prepared for sentencing purposes expressed the following opinions:

"...in policing, Mr Price was continually presented with circumstances that psychologically he was ill-equipped to manage. Repression of mounting frustrations and alien stressors over time, typically find their expression in impulsive acting-out behaviour with intemperate dyscontrol and often to inappropriate excess.

It appears Mr Price the Person is markedly different from what Mr Price the Police Officer became. In this assessment, Mr Price was found to be a genuine family man with an active religious commitment, a pragmatic 'doer' in his approach to life, and one possessing a strong work ethic. I found no evidence to suggest that Mr Price is an overly aggressive or violent man who presents a threat to the community. Although struggling financially, having lost virtually everything, he appears to be well settled in family life, church and community activities, and in the practical hands-on work with which he feels some affinity. As Mr Price now says:

"I don't think I was suited to be a copper. I'm better off being a carpenter like I am. I like getting in and getting the job done".

[5] On 1 September 2007, the respondent was working with Constable Sonter who had become a police officer in June that year. At about 1.10 am, Mr Le Fevre, aged 30, and a friend were seen urinating in a park by Constable Sonter. She approached the men and told them that they would receive a notice to appear in court. That initiated a verbal exchange between Constable Sonter and the two men. The exchange became animated and Mr Le Fevre spoke aggressively and vulgarly. Mr Le Fevre began to walk away but Constable Sonter took hold of his arm. He attempted to twist out of her grip and his elbow made contact with Constable Sonter's chest causing her to stumble back and drop what she was holding. The respondent, who had arrived on the scene with another other police officer or other police officers, punched Mr Le Fevre in the face knocking him to the ground. While Mr Le Fevre was on the ground, the respondent continued to punch him forcefully in the face. He knelt on Mr Le Fevre's chest and Constable Sonter heard Mr Le Fevre scream.

[6] The evidence does not establish whether the contact between Mr Le Fevre's elbow and Constable Sonter's chest was accidental or deliberate. Constable Sonter thought that it was accidental but admitted in cross-examination in a committal hearing that it may have been deliberate. Whether the blow was deliberate or accidental is of little significance. The respondent's reasonable perceptions are relevant and he may well have believed, as he claimed, that Constable Sonter had been shoved or pushed.

[7] While Constable Sonter was getting the police vehicle, the respondent was seen by another police officer to deliver a blow with his fist to an upper part of Mr Le Fevre's body and then handcuff him. Mr Le Fevre's arms were restrained behind his back. So restrained and face down on the ground, he felt pressure on his body as if someone was leaning on his back and lifting his arms away from his back. Mr Le Fevre did not strike the respondent. On arrival at the police station, there was blood on Mr Le Fevre's shirt. He was crying and sobbing. He beseeched his friend who had arrived in a separate police vehicle, "Don't let me back out - don't let me back out there, don't leave me alone with those guys again." He was charged with public nuisance and obstructing and assaulting police.

[8] Later that morning, a doctor observed injuries to his face consisting of a bruise six centimetres in diameter to the left temple, a seven centimetre diameter bruise on the right side of the head and a two centimetre bruise on his nose. Also observed were tenderness and swelling to the right forearm close to the wrist, a bruise around the left forearm close to the wrist and tenderness in the left lateral thigh was noted. Mr Le Fevre was prescribed anti-inflammatory medication for the swelling and a strong pain killer. When he saw another doctor nine days after the offence, he was noted to have pain in the right arm and throat and tenderness in the inner thumb and forearm. He had problems sleeping, suffered short term memory problems and has consulted a psychiatrist.

[9] In the course of an internal enquiry, the respondent told a senior police officer that he had stepped in because Constable Sonter had been slow to react to being assaulted by Mr Le Fevre, who had become hostile, tried to walk off, and had shoved or pushed his colleague. He said that they had gone to the ground because Mr Le Fevre had resisted arrest and tried to bite him.

[10] In the early hours of 18 January 2008, Miss Toms, a 21 year old bartender was arrested by police officers after having been escorted off licensed premises by security staff. After arrival at the Airlie Beach police station, Miss Toms was uncooperative and rude. She swore at police officers and facetiously acted flirtatiously towards a female police officer. She called the respondent a "cunt" while being taken to the processing counter. He took hold of her by the wrist and shoulders and joined in her banter. Both raised their voices. The respondent asked Miss Toms if she would behave if the handcuffs were removed, but another officer directed that the handcuffs remain on. That officer proceeded to question Miss Toms who gave vulgar, non-responsive answers. She was threatened with being taken to the cells, but the respondent intervened and continued to ask questions.

[11] Miss Toms continued to be non-cooperative and the banter between the respondent and Miss Toms continued. Eventually, while Miss Toms' hands were handcuffed behind her back, the respondent pushed her straightened arms up behind her towards her head so that her shoulders were turned around at a significant angle. She was forced to bend over onto the processing counter and was held there by the respondent who was pinching his hands into her neck. Miss Toms responded to being painfully restrained by scratching the respondent on his arm with the little finger of her right hand. She also kicked out at the respondent who was holding her from behind. He then grabbed her neck and took her to the floor with some force. The thumping noise of her hitting the ground was heard by others. The respondent placed his body weight on her. By this time, Miss Toms was bleeding from the chin and the respondent was informed of this by another police officer. While restrained on the ground, Miss Toms made no attempt to move, let alone resist the respondent.

[12] The respondent then picked Miss Tom's up from the ground in one fluid movement, holding her by one arm and by her hair. Her feet, temporarily, were clear of the ground. The extent to which the lifting was assisted by force applied to the arm is unclear but it is clear that a significant part of Miss Toms' weight was borne by her hair and scalp. As Miss Toms had been injured in custody, an ambulance officer was called to treat her. He placed a butterfly stitch on her cut chin. Miss Toms also suffered bruising to her wrists from the handcuffs.

[13] A complaint was made by Miss Toms the following morning. The respondent told a police officer who interviewed him consequent upon the complaint that Miss Toms was drug affected and had a poor attitude. He showed the officer the scratch marks to his arm. In a further interview by a senior police officer on 21 January 2008, the respondent said that he had not done anything wrong and maintained that he had used appropriate force in responding to what he alleged was Miss Toms' scratching and biting him. To support his allegations, the respondent showed the senior officer two very small dots on his arm. There is no evidence that Miss Toms did bite the respondent.

[14] The respondent was placed on front counter duties at the police station to enable him to re-assess how he would approach future situations requiring the use of force, and further steps were put in place to monitor how he performed his duties.

[15] Around midnight on 24 May 2008, Mr Timothy Steele, who had been drinking with his girlfriend and two male friends, intervened to break up a fight between his male friends. Constable Sonter, who was working with the respondent that evening, told Mr Steele to get back and pushed him away. Mr Steele made a comment to the effect, "Yeah, what you going to do about it?" and was warned that capsicum spray might be used on him. It was used and Mr Steele was led to the police car by the respondent who had handcuffed him. Upon arrival at the police station, Mr Steele was dragged from the police car by his handcuffs. The respondent "[stood] on his handcuffs holding him down". Mr Steele called out in pain and was abusive to the respondent. Officer Dodds observed mucus and saliva hanging from Mr Steele's mouth and nose. Mr Steele shook his head from side to side and some mucus was flicked in the direction of the respondent. The respondent then punched Mr Steele to the side of the face and Officer Dodds saw blood coming from the complainant's nose. Mr Steele remembered multiple blows. The blows hurt and Mr Steele became dazed. The dragging, the pressure on the handcuffs, and the blow or blows to Mr Steele's face constituted Count 3.[1]

[16] Mr Steele was dragged by his handcuffed arms backwards to a wall on which a fire hose was located, where the respondent sprayed water over his face, ostensibly for the purposes of decontamination. The water was sprayed from a fire hose which was turned on by another police officer. The hose was designated for use for decontaminating purposes and not for use as a fire hose.

[17] In the course of this activity, Constable Sonter heard the respondent yelling, "You like that, don't you, you like that." Mr Steele was heard to say at one stage, "Is that all you've got?" Constable Sonter could also hear the noise of punches.

[18] CCTV footage shows Mr Steele appearing to spit at or towards the respondent who was standing behind him. Some small droplets of blood landed on the respondent's shirt. Mr Steele felt a ringing sensation in his right ear and soreness to the side of his face.

[19] Mr Steele then had the running hose placed on his mouth, nose, and in the area of his eyes for an extended period. Mr Steele described feeling as if the hose was jammed into his mouth. He said he was struggling to breathe and felt as if he was choking. He also said that he thought he was going to drown, and that while this was going on he was yelling and coughing and spluttering blood.

[20] The pressure of the jet directed at Mr Steele's face was not great but the flow of water was substantial enough. Counsel for the respondent informed the court that the respondent accepted that he made excessive use of the fire hose, and of the water, but denied jamming it down Mr Steele's throat or otherwise trying to concentrate its spray to discomfort Mr Steele. He accepted that "...there would have been choking and spluttering and coughing caused as a result of the water". The CCTV footage shows that the nozzle of the hose was applied to parts of Mr Steele's head for protracted periods in a way quite inconsistent with the use of the water to wash Mr Steele's face. It appears that the nozzle was held to apertures in Mr Steele's head, and it is impossible to resist the conclusion that the respondent's conduct in this regard was designed to cause Mr Steele distress and discomfort.

[21] As well as sustaining a broken nose, Mr Steele had two black eyes which may have resulted from the broken nose. He had had an operation on his nose in relation to a sinus problem some three to four weeks prior to the subject incident and, after the assault, he was unable to take part in commercial diving for an unspecified time. The side of his face was swollen and sore and he had only partial hearing out of the right ear.

[22] The sentencing judge made the following findings:

(a) The respondent used "inappropriate and grossly excessive force in each of the offences";

(b) The respondent deliberately abused his position as a police officer and intentionally inflicted physical and emotional pain on Miss Toms and Mr Steele when they were both restrained by handcuffs with their wrists behind their backs;

(c) The conduct concerning Counts 2, 3 and 4 involved gratuitous violence;

(d) After the incident involved in Count 1, the respondent must have been aware that he had "an anger management or other personal issue that needed to be addressed". In respect of count 1, the respondent may have reacted to what he perceived to have been an assault, by pushing or bumping, on his work partner;

(e) The respondent would have been entitled to lawfully restrain Mr Le Fevre but his actions in punching him, taking him to the ground and further assaulting him whilst on the ground, were those of "someone acting as a thug";

(f) Mr Le Fevre was punched to the ground by the respondent, then held down and punched "several other times to the face". His arms were behind his back and his wrists were immobilised. Mr Le Fevre underwent "an unnecessary and very frightening event" which was not merited by his conduct. He suffered discomfort for several months;

(g) Miss Toms was restrained in a manner which was grossly excessive. She had "her arms lifted in a way that forced her face onto the counter and otherwise [was] bent in a way which could only have [produced] significant pain and suffering ...". She was "restrained on the ground in a way which ... was totally unjustified" as was the pinching of her neck and the force with which she was restrained at the counter;

(h) The respondent's reaction to the backward kick of Miss Toms' leg was "grossly disproportionate". The level of force and restraint used on Miss Toms was unnecessary and brutal;

(i) The major force employed by the respondent in lifting Miss Toms from the ground was employed in lifting her by her hair;

(j) The initial punching of Mr Steele on his arrival at the police station involved unnecessary and unlawful force, as did another punch shown on the CCTV film. When Mr Steele was seated on the ground, the respondent stood on his handcuffs and Mr Steele's head was forced forward. At that time, he was struck again and suffered a broken nose which caused him considerable discomfort;

(k) The hose employed on Mr Steele was not fully on, but its use was protracted and exacerbated the respondent's offending conduct. Mr Steele's statement that he had "difficulty breathing and was choking and he had a feeling that he was going to drown" was implicitly accepted; and

(l) When or after Mr Steele had water sprayed in his face, he flicked his face in some sort of sideways movement which the respondent "perceived to have been a flicking of some liquid onto [himself]", and responded by "the blow to the side of [Mr Steele's face]".

(b) The impact on the respondent of media reporting;

(c) That because of his occupation, the respondent would find a term of imprisonment harder to undergo than many other prisoners;

(e) The impact of the criminal prosecution on the respondent and his family coupled with the frustration in his working life which had developed in the respondent over time.

[24] The primary judge considered that general deterrence was an important sentencing consideration to reflect community expectations that police officers would uphold the law. He concluded that the sentences should be concurrent rather than cumulative (with the exception of Count 4) as submitted by the Crown Prosecutor, as the conduct involved in each offence was different and the conduct overall "did not involve an escalation of offending conduct per se in the real sense of that expression".

[25] General deterrence and the denunciation of conduct of the nature of that in question were significant considerations.

[26] The respondent contended that there were some factual matters not taken into account by the sentencing judge. In this regard, he submitted that Mr Le Fevre kicked at Constable Sonter and attempted to bite the respondent who had has wrist watch ripped from his left wrist in his struggle with Mr Le Fevre.

[27] There is evidence that the respondent's wrist watch was destroyed, but the circumstances in which that happened were not explained, except perhaps by the respondent's counsel informing the court that "at one point" the respondent's arm was caught beneath Mr Le Fevre who was resisting. Counsel explained that he was not suggesting that Mr Le Fevre was acting unlawfully in resisting. It was also submitted by the respondent's counsel that the respondent believed that Mr Le Fevre was endeavouring to bite him. He said, "I don't advance a case that Le Fevre did".

[28] The respondent pointed to evidence that Mr Le Fevre was not hospitalised and that his injuries, particularly those to his wrists, were not "of such a magnitude that [they] impacted upon his attending on the sea kayaking trip" which he had planned prior to the incident.[2]

[29] In relation to Count 2, the respondent asserted that Miss Toms kicked him and that the kick connected with his thigh. That accords with defence counsel's submissions. He informed the sentencing judge, "The kick, I don't suggest was - was one that crippled him but it was directed at him and struck him on the thigh." He pointed to evidence that Miss Toms scratched the respondent with the nail of her little finger and that another police officer observed a "couple of ... nail-type nicks, with a little bit of blood, as if occasioned by a scratching mechanism" on the respondent's arm.

[30] The respondent asserted that when Miss Toms was being "returned to an upright position" she "kicked out" at him. The evidence does not support such a finding. The backwards kick or sweep of the leg which can be seen clearly on the CCTV footage lacked sufficient force to render even minor discomfort to the respondent had it connected with any part of his body. The respondent pointed also to the lack of permanent injury to Miss Toms.

[31] In relation to the offences against Mr Steele, the respondent made the following factual submissions. The use of the fire hose was pursuant to a standard operating procedure at the police station for the decontamination of persons who had been sprayed with capsicum spray. The fire hose had very restricted pressure.

[32] After Mr Steele had been dragged into view of the CCTV device, Mr Steele "looked directly up and spat blood, mucus and saliva directly at the [respondent's] face." The bodily fluids made contact with the respondent's left arm and sprayed over the front of his police shirt up to his collar. The respondent then grabbed Mr Steele by the back of the neck and head with his left hand and punched him once in the right side of his head with a closed fist.

[33] This assertion about the extent of blood and other bodily fluids landing on the respondent was not supported by the evidence of the other officer present or by the CCTV footage, but there is evidence that some droplets of blood landed on the respondent's shirt. The respondent submitted that the hose did not enter Mr Steele's mouth or throat at any time. The respondent's counsel informed the court that the respondent accepted making excessive use of "the fire hose, the water" but said that "he did not jam it down the throat of Steele and otherwise tried a concentrated spray to heighten the assault or any subsequent discomfort to Steele." The sentencing judge did not sentence on the basis that the hose had been forced into or even placed into Mr Steele's mouth.

[34] In respect of each of the three sets of offences, the respondent submitted that the sentencing discretion miscarried because the sentencing judge:

(a) Failed to adequately discount the sentence in consequence of the guilty plea;

(b) Gave far too much weight to general deterrence by failing to recognise the respondent's professional, financial and psychological losses;

(c) Failed to properly consider the mitigating factors and rejected their existence;

(d) Allowed the prosecutor to refer to unfounded and unproven allegations in relation to the respondent's apparent level of remorse and the reasons behind it, and accepted the allegation that no remorse had been shown; and

(e) Allowed the prosecutor to make reference to documents allegedly created by the respondent on Facebook without proof of authorship or of their existence. Such allegations were given substantial weight by the sentencing judge.

[35] The submissions concerning the use of unproven evidence are ill-founded. The prosecutor, as is customary, stated the facts upon which the prosecution was relying for sentencing purposes. Defence counsel, if he wished to dispute such facts, was free to do so. If a factual dispute had arisen, the sentencing judge would not have been free to accept one version of the facts rather than the other without determining, on a proper basis, which version was to be accepted. No contest of this nature arose during the sentencing hearing.

[36] The prosecutor did not submit that the Facebook entries, with the exception of some comments, regarding the respondent's reasons for pleading guilty had been posted by him. Defence counsel dealt with the Facebook entries by asserting that they "reveal little". This was in the context of counsel submitting, by implication, that remorse had been demonstrated by the respondent through his guilty pleas in circumstances in which he had an arguable case in respect of two of the incidents. He submitted that the Facebook entries "were intended to be private communications" and it was implicit in these submissions that the respondent was accepting responsibility for at least one of the Facebook entries.

[37] A persistent theme of the respondent's oral submissions was that although the degree and duration of the force used by him against his victims was excessive and cannot be excused, his initial reaction in each case was provoked by the victim. He also pointed to acts of what he saw as provocation during each of the subject incidents.

[38] Counsel for the appellant referred to the increase in the maximum penalty for assault occasioning bodily harm in 1997 from three to seven years imprisonment and the increase in the penalty for common assault from one to three years imprisonment. Reference was made also to the amendment in 1997 to the Penalties and Sentences Act 1992 (Qld), which qualified the principle stated in s 9(2)(a) that:

"In sentencing an offender, a court must have regard to -

(i) a sentence of imprisonment should only be imposed as a last resort; and

(ii) a sentence that allows the offender to stay in the community is preferable."

[39] It was submitted that such increases in maximum penalties and the amendments to the Penalties and Sentences Act showed the seriousness with which Parliament regarded offences of violence. The sentences imposed failed to give weight to the increased maximum penalty and the changed sentencing regime. In that regard, the submissions of the Crown Prosecutor were influenced by the pattern of sentencing after the increases in penalty and changes in s 9 of the Act, which failed to reflect the legislative changes. In order to support that submission, Counsel for the appellant referred to eight decisions of this Court concerning pre and post amendment cases "in a domestic setting", and seven pre and post amendment cases involving assaults occasioning bodily harm committed in public.

[40] These decisions were to be relied on to substitute the submission that the principles which constrain appellate courts from increasing sentences imposed at the behest of the prosecution or in conformity with the prosecution's submissions had no application. After concern was expressed from the Bench about there being no effective contradictor in respect of these contentions, and after the respondent regarded the offer of an adjournment to enable him to retain senior counsel to appear for him on a pro-bono basis, the Solicitor General, with whom Mr Anderson of Counsel appeared for the appellant, most responsibly did not proceed with this aspect of the appellant's argument.

[41] It was contended in the more general submissions on the alleged inadequacy of the sentences that the sentences imposed were inadequate for the following reasons:

(a) The offences were committed by a police officer on duty in repeated breach of his position of public trust and authority. He had the power to assault his victims only because he was a police officer and had the means to assault them with handcuffs and hoses because he was entrusted with those weapons.

(b) The assaults were cowardly, involving a deliberate infliction of pain upon vulnerable victims.

(c) No offence involved a momentary assault and the conduct of the respondent was aptly characterised as gratuitous and not simply excessive by the sentencing judge.

(e) The respondent offended in the presence of a junior colleague for whom he was field training officer.

(f) Although spoken to by experienced police officers after his conduct in respect of Counts 1 and 2, the respondent did not alter his attitude.

[42] It was further submitted that the sentencing judge erred in not treating as a crucial factor the circumstance that the crimes were committed while the respondent was a police officer on duty. His Honour found:

"The fact that you were a police officer on duty at the time that you conducted yourself in the way that has been described is a factor to be taken into account, but it is not the overwhelming factor. The sentences have to reflect the criminality of the factual circumstances themselves."

[43] That the respondent was a police officer on duty was the crucial factor in the case. It provided him with the means, the opportunity and the belief that he could commit a crime with impunity; it constituted the reason why these offences were offences not only against the respondent's particular victims, but by reason of his status and the public's loss of confidence in that status, an offence against the fabric of society.

[44] Where police officers abuse their power and responsibilities and put the rights, safety and liberty of members of the community at risk unlawfully, they should expect to be strongly deterred and denounced by the courts.[3] Although the lack of prior criminal history remains a mitigating factor, it is important to recognise that police officers would be expected generally to have no criminal history.

[45] Although there was a plea of guilty, it was not early and the statements made by the respondent to other police officers tended to shift the blame for his conduct onto his victims. A finding of lack of genuine remorse was justified. The impact of the charges on the financial and family situation of the respondent may evoke sympathy, but it is not generally something taken into account as it was here.[4]

[46] For the respondent's gross breach of police power and responsibility, a sentence of five years imprisonment with a suspension or parole eligibility after one-third of that time would be appropriate to reflect both the gravity of the offending as well as matters in mitigation.

[47] Appellate courts have been reluctant, traditionally, to allow appeals by prosecuting authorities or Attorneys-General against sentences which lie within the range of sentence contended for by the prosecution at first instance. The reasons for this approach are explained in the following frequently cited passage from the judgment of King CJ, with whom Mitchell and Williams JJ agreed, in The Queen v Wilton:[5]

"It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when [that] contention was not put in the Court below. The consequences of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what the Federal Court meant in R v Tait and Bartley[6] by 'double jeopardy'. In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances which appear to justify that course. I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge's discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General." (some citations omitted)

[48] That passage was quoted with approval in R v KU and Ors; ex parte A-G (Qld)[7] and was referred to with approval in the joint reasons in Everett v The Queen.[8]

[49] In Lacey v A-G of Queensland[9] the majority, in discussing the nature of and principles to be applied in relation to Crown appeals against sentence, said:

"16. The exceptional character of the Crown appeal against sentence had been recognised by the Council of Judges in England in its recommendations to the Lord Chancellor in 1892. That character was acknowledged in Williams [No 2] by Dixon J, who described such appeals as 'a marked departure from the principles theretofore governing the exercise of penal jurisdiction'. In Griffiths, Barwick CJ said that an appeal by the Attorney-General:

'should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.'

That statement was endorsed by Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen. In endorsing it, their Honours expressly included in the notion of a 'matter of principle' manifest inadequacy or inconsistency in sentencing standards." (citations omitted)

The majority reasons proceeded to emphasise the role of the principle against double jeopardy:[10]

"17. The treatment of Crown appeals against sentence as 'exceptional' indicated a judicial concern that criminal statutes should not be construed so as to facilitate the erosion of common law protection against double jeopardy.

19. In Malvaso v The Queen, Mason CJ, Brennan and Gaudron JJ pointed to the need to insist upon '[s]trict compliance with procedures which authorize an increase in sentence by an appellate court'. In the same case, Deane and McHugh JJ acknowledged that the Crown appeal against sentence had become commonplace in the common law world, but said that:

'Nonetheless, it should not be forgotten that it represents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy'.

That statement was repeated in substance by the plurality in Everett. In Byrnes, the plurality explained that:

'This is not 'procedural due process' as understood in United States constitutional jurisprudence; rather it is the process of the due administration of justice governed by the strictures of the rule of law. These strictures have been developed by the courts with respect to power and its exercise in appropriately constituted forums.'" (citations omitted)

[50] It was not held in Lacey or Everett that an appellate court could never increase a sentence on an Attorney's appeal beyond the range of sentences contended for by the Prosecution on sentencing. R v KU & Ors provides an example of an Attorney's appeal being allowed because the circumstances were held to be "exceptional". R v Conquest; ex parte A-G (Qld)[11] is another such case. It was pointed out in the joint reasons of McPherson JA and Thomas J that:

"Even an undue concession by a Crown Prosecutor during the sentencing process is not necessarily fatal to an appeal by the Attorney-General (Ascerbi (1983) 11 A Crim R 90, 92) although it is a factor militating against the success of such appeals (_Malvas_o [1989] HCA 58; (1989) 168 CLR 227, 240; R v. Tait (1979) 46 FLR 386, 388; R v. Boult ex parte Attorney-General CA 458 of 1993, 17 March 1994)."

[51] The Prosecutor's primary submission was that there should be three cumulative terms of imprisonment with the term imposed for the common assault on Mr Steele made concurrent with the sentence imposed for the assault occasioning bodily harm. The sentences for which the prosecutor contended were:

The cumulative total of the sentences was 36 months. She submitted also that "an overall head sentence in the order of three years remains appropriate". The sentence imposed for Count 3 was 27 months with a parole release date fixed at 7 July 2011; that was after one-third of the sentence had been served and allowing for time spent in pre-sentence custody.

[52] I readily accept the submission that the abuse by a police officer of his or her powers and responsibilities to the material harm of a member of the community calls for condign punishment which denounces the offending conduct and provides a general deterrent against the perpetration of such conduct by others.[12] In R v Smith; ex parte A - G (Qld)[13] Pincus JA said:

"The cohesion of our society depends in substantial part on public confidence in the honesty of those who administer justice. Police have extensive powers. Their activities can ruin reputations, can put citizens in gaol, or can save them from deserved gaol. The Courts must focus on these considerations when considering sentences for police corruption."

[53] This, of course, is not a corruption case, but public confidence in the administration of justice and, in particular, the role of the police force in that regard, may be undermined in different ways. Public confidence will be eroded by the abuse of police powers through the use of excessive and unjustifiable force against citizens within the power of police officers. The public needs to have confidence that the extensive powers and responsibilities reposed in police officers for the protection of the public and the due ordering of society will be exercised carefully and responsibly for the purposes for which they are bestowed. The regard in which a police force is held by the public contributes not only to the morale of the force and its esprit de corps, but to the efficacy of its operations through community cooperation and support.

[54] I accept that, at least as a general proposition, the fact that an unlawful assault has been perpetrated by a police officer in the performance of his duties is a circumstance which greatly elevates the criminality of the subject conduct and plainly distinguishes it from that of an offender who does not hold similar office.

[55] Although it is not entirely clear, I have concluded that the sentencing judge's observation that the fact that the respondent was a police officer on duty at the time of the offences was not "the overwhelming factor" did not demonstrate that his Honour was not alive to the considerations just discussed. The sentencing remarks need to be read as a whole, without undue concentration on a particular passage. When this is done, it will be seen that throughout, the sentencing judge has discussed the offending conduct and determined his sentences by reference to the respondent's conduct as a police officer. He referred to:

(a) the abuse by the respondent of his "position as a police officer";

(b) to the fact that Miss Toms and Mr Steele were in custody and handcuffed;

(c) his mentoring role in relation to Constable Sonter;

(d) "the police officer's duty to meet ... challenging and difficult circumstances and to do so lawfully";

(f) his abuse of his oath as a police officer and of the "trust and authority" vested in him by the Queensland Police Service and by the community at large.

[56] These and other indications in the sentencing remarks suggest that in the passage relied on by the appellant, the sentencing judge is making the point that the abuse by the respondent of his office cannot be divorced, for sentencing purposes, from the conduct constituting the abuse. The sentencing judge's approach was thus unexceptionable. The actual injury inflicted by an offender through an unlawful assault is always a highly pertinent consideration.[14]

[57] The appellant was not able to point to any comparable sentences which supported the contention that the sentences imposed were manifestly inadequate. That, no doubt, prompted the appellant's desire to argue that generally sentences for assaults imposed after the 1997 statutory amendments had failed to give effect to the legislative intent manifested by the increases in maximum penalties. I accept that the sentence of 27 months imposed in respect of Count 3 could have been substantially higher. It was a head sentence designed to reflect the overall criminality of the respondent's conduct. That conduct in respect of Count 3 was, in itself, extremely serious. The use of the fire hose was protracted and calculated to inflict pain on and to terrorise the respondent's victim. It was a callous and cowardly act of revenge for perceived affront and followed other cruel maltreatment. Even taking into account the absence of evidence of lasting injury to any of the victims, I have experienced some doubt as to whether the sentence imposed was within the range that which could be arrived at through the proper exercise of the sentencing discretion. Ultimately, however, I am not persuaded the sentence was manifestly inadequate. The issue, I think, is a borderline one and had I reached a contrary conclusion, the principles favouring finality in litigation and against double jeopardy, would have led me to decide that the appellant's appeal should be dismissed.

[58] As for the respondent's appeal on the grounds that the sentences imposed were manifestly excessive, it is apparent from the foregoing that, in my view, the sentences imposed, and in particular the sentence for Count 3, were light. None of the sentences relied on by the respondent to support his submissions invoked the principles and considerations relevant to the determination of the Attorney-General's appeal and the respondent's application for leave to appeal the subject sentences. They offer no useful guidance for the sentences appropriate for the respondent's offending conduct.

[59] There are two other matters which need to be addressed. The appellant's notice of appeal under the heading "Grounds of Appeal" stated, "[t]he sentences imposed are inadequate and accordingly not the proper sentences for the following reasons ...". Early in the hearing, the Solicitor General's attention was drawn by a member of the Bench to paragraph 64 of the reasons in Lacey. It was there noted that the appellant had submitted, in the alternative, that if the appellant were to succeed, the notice of appeal should be dismissed as incompetent. The majority said in that regard:

"Given that the Attorney-General's notice of appeal raised the alternative ground that the sentence imposed was 'manifestly inadequate', the appeal could not be dismissed as incompetent on the basis that its grounds failed to invoke the jurisdiction conferred by s 669A(1) properly construed."

[60] The Solicitor General submitted, in effect, that the fact that a notice of appeal contained only grounds, which, if established, would not enable the appeal to succeed did not necessitate the conclusion that the notice of appeal was invalid and that the jurisdiction of the court had not been invoked. There is no authority of which I am aware for the proposition that a document initiating a proceeding, whether it be a writ, claim, application or notice of appeal, which fails to disclose a cause of action or ground which would enable the initiator to succeed in the proceeding is invalid, as opposed to being vulnerable to dismissal. However, the point was not fully argued and it is unnecessary to decide it. Out of an abundance of caution, the Solicitor General sought leave to insert the word "manifestly" before "inadequate" in paragraph 2(i) of the notice of appeal. I would be disposed to grant leave: the respondent would have suffered no relevant prejudice by the grant of leave. For the same reason, it would be appropriate to grant any necessary extension of time for the appellant's appeal.

[61] The other matter required to be addressed is the respondent's applications for leave to adduce further evidence. The further evidence which the respondent sought to introduce, with the exception of that discussed below, was available at the time of the trial and could have been obtained with the use of reasonable diligence for use at the trial. Even if admitted, it would not have any impact, significant or otherwise, on the result of the appeal. Accordingly, it is inappropriate that the further evidence be received.[15] The appellant also sought leave to lead evidence of the impact of his imprisonment on himself and his family. I would refuse leave for that evidence to be adduced also. The sentencing judge was alive to the fact that imprisonment would have a marked impact on the applicant and his family. That was inevitable or virtually so. In particular, the fact that the respondent's prior occupation as a police officer would lead to additional hardships in serving a prison sentence was something taken into account. Hardship to family members may, if rarely, be a relevant consideration, but it cannot overwhelm other considerations such as the need for deterrence, denunciation and punishment: R v Le[16] and R v D'Arrigo; ex parte A-G (Qld)[17] and R v Chong; ex parte A-G (Qld).[18]

[62] In this case, the respondent, and consequently his family, have the benefit of a light sentence. The material sought to be put in evidence could have no material bearing on the outcome on the application for leave to appeal, and I would refuse leave.

(a) To the extent necessary, the Attorney-General be granted leave to amend his notice of appeal and the time for the institution of his appeal be extended to 14 April 2011;

(b) the appeal by the Attorney-General be dismissed;

(c) the application for leave to appeal by the applicant, Benjamin Price, be refused.

[64] ATKINSON J: I agree with the reasons for judgment of Muir JA and the orders proposed by his Honour.

[65] PETER LYONS J: I have had the advantage of reading in draft the reasons of Muir JA, with which I agree. I also agree with the orders proposed by his Honour.

[3] See R v Ablitt [2009] QCA 45 at [23], and R v Smith; ex parte A-G (Qld) [2000] QCA 390; (2000) 116 A Crim R 447 at [10].

[4] T v R (1990) 47 A Crim R 29.

[5] (1981) 28 SASR 362 at 367-368.

[6] (1979) 46 FLR 386; 24 ALR 473.

[7] [2008] QCA 20; (2008) 181 A Crim R 58 at [34].

[8] [1994] HCA 49; (1994) 181 CLR 295 at 302.

[9] [2011] HCA 10.

[10] [2011] HCA 10 at [17]- [19].

[11] [1995] QCA 567.

[12] See eg R v Ablitt [2009] QCA 45 at [23].

[13] [2000] QCA 390 at 10.

[14] See eg R v Elliott [2000] QCA 267.

[15] See Clarke v Japan Machines (Aust) Pty Ltd [1984] 1 Qd R 404, and Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204 at 210.

[16] [1995] QCA 479; [1996] 2 Qd R 516.

[17] [2004] QCA 399.

[18] [2008] QCA 22.