Court of Appeal (Qld)|1997-11-21|Before: Pherson JA, Thomas J, Dowsett J

R v Williams & Attorney-General of Queensland [1997] QCA 476 (21 November 1997)

DOWSETT J: This is an Attorney's appeal against sentences imposed on the respondent in the District Court at Mt Isa following his pleas of guilty to six offences, one of discharging a loaded firearm with intent to alarm; one of assaulting a police officer in the execution of his duty, three of unlawful wounding with intent to resist arrest, and one of attempted wounding.

The respondent was born on 21 January 1978 and was therefore 18 at the time of the offences and is presently aged 19. The offences occurred at the Aboriginal settlement on Mornington Island where, as I would infer, the complainants were employed as Queensland police officers. The respondent has a previous criminal record including offences of dishonesty, but it is not a substantial record and he has no previous history of violence as far as we are aware.

The circumstances of the offences as they appear from the outline of argument as are follows: the respondent had been drinking when for no apparent reason, he produced a rifle and fired a shot into the ground with intent to alarm, as it is admitted. The gun was wrestled from him and the police were summoned, two constables, Priddy and Barnett.

Priddy went to speak to the respondent, intending to arrest him. He found the respondent lying on the ground, thrashing about and shouting obscenities. He headbutted Priddy three times in the head and then produced a knife, saying, "I'm going to fucking get you." He lunged at Priddy with the knife cutting him on the left side of the chest. The knife came away with blood on the blade and the blood soaked through Priddy's shirt. The respondent continued to call threats at him and again lunged at him but the other constable, Barnett, grabbed his arm.

It seems that the crowd had become hostile towards the two police officers, but there is no basis upon which that can be attributed to the present respondent. The respondent stabbed Barnett in the chest staying, "Geoff, I'll fucking get you. I'll fucking stab you." Barnett told him to drop the knife.

Other people were punching Barnett in the head and back at this stage. The respondent lunged again with the knife. Barnett stopped it with his hand, resulting in a serious cut.

As the crowd was becoming violent, the police tried to retreat. They were pursued by the respondent and others and were again struck. They tried to get into their police car. The respondent said words to the effect of, "Come on, I'll fucking get you." He was still holding the knife.

The community police and other police arrived and Barnett and Priddy withdrew to hospital. Barnett was found to have a stab wound on the right side of his sternum, approximately three centimetres in length, extending down to the third rib, and there was a cut on the rib itself. If the knife had gone a short distance further, there would have been penetration of the pleural cavity.

Barnett had two lacerations to his left hand which required five sutures. He had tenderness to his lower jaw. He was in hospital for three days. He continues to experience inconvenience as a result of the assault and has lost the feeling in his index finger which he claims causes him difficulty in the use of his service revolver. Priddy had a five millimetre laceration below his left pectoral muscle, extending into the subcutaneous fat. It is now visible as a 1.5 centimetre scar.

Whilst the police officers were at the hospital, the respondent and two companions arrived and tried to provoke them. Each police officer now finds that he is unable to return to work at Mornington Island.

There is no doubt that at the relevant time the respondent was suffering from the consumption of liquor. He has an alcohol problem and is a young man. On the other hand, the offences involved quite serious attacks upon police officers who were specifically charged with the responsibility of keeping the peace in the Mornington Island community. As I have already said, the respondent had a criminal history, but it was not a serious one.

Both before us and at the trial, some emphasis was placed, on behalf of the respondent, on the circumstances surrounding life in the Mornington Island community. It is a sad fact of judicial life in this State that we are all from time to time exposed to disturbing details of life in the various Aboriginal communities, including the Mornington Island community. It should not be assumed that we are in any way insensitive to or unaware of the less than perfect circumstances in which those who live in such communities must survive.

Nonetheless, it cannot be doubted that there is a desire on the part of the people who live there that peace be preserved as far as is reasonably possible. One may feel sympathy for the respondent because of the level of deprivation he suffers as a result of living in such a place, but were it not for the availability of police officers, the conditions would be somewhat worse.

The learned sentencing Judge was apparently most concerned to pass a non-custodial sentence. If I may say so, with respect, his Honour appears to have spent more time trying to work out how a non-custodial sentence could be structured rather than considering whether or not such a sentence was appropriate. At page 21 of the record he said this:

"The idea is to keep you out of gaol which is where you would normally go for stabbing two police officers. One of the reasons for keeping you out of gaol is that you were only 18 at the time of the offence which is very young. There is a lot of life left for you yet and everyone hopes that you can make something of your life. You have got a problem with alcohol.

The basis of your staying out of gaol is that you become a resident of the Kalkadoon Aboriginal Sobriety House here in Mt Isa. They will look after you. They will charge you some rent out of your weekly or fortnightly payment but they will give you a bed, they will feed you and so on. As well as that they will have programs designed to help you with alcohol problems that you have obviously got. They are designed to help you if they can with other problems you have got like reading and writing. Do you understand that?

I am going to make two different kinds of order but both mean you will spend that same six month period at

K-A-S-H. One is a probation order and it will be a condition of the probation order that if you are directed to, as no doubt you will be, you spend at least the first six months in the Kash out-station.

The other order I am thinking of making is an intensive correction order. That is, in fact, an order for imprisonment for that six months, but if I direct you to serve an intensive correction order that means you will spend the time as a resident at Kash and that keeps you out of gaol. You are not actually in a prison but you are required to behave yourself and do what the centre says, otherwise you will find that you are sent to a proper gaol for the six months. Do you understand that?"

I have set out His Honour's remarks in detail because there is, I think, a lack of knowledge in the community of the actual meaning of the expression "intensive correction order", and it is appropriate to know what His Honour had in mind.

I assume that since sentence, the respondent has been subject to the orders which his Honour made and I have taken that into account in coming to the conclusion which I have with respect to this appeal.

The conclusion is that given the seriousness of the attack itself and, in particular, that it was an attack directed against two police officers in the execution of their duty, it was in this case impossible to avoid a sentence of imprisonment.

The maintenance of order in our society depends upon those who are charged with enforcing it being adequately protected to the greatest extent possible in the performance of their duties. Where police officers, innocently and with goodwill, are going about their duties, it is not fair to them that they should be exposed to assaults of this kind, nor is it in the best interest of the community, either the particular community in question or the broader community, that they should be so exposed.

The potential effects upon the way in which they do their duty if exposed to such threats are obvious to anybody who thinks about it. If there is to be peace in the community and if those charged with maintaining it are to go about their duties in an acceptable way, then they must be protected in so doing. It is also, in my view, important that the sentence not appear to be merely a nominal one.

In those circumstances I am of the view that the appeal should be allowed and that the orders made below should be set aside. In lieu thereof I would propose as follows: with respect to count 1, the discharge of the firearm, a sentence of imprisonment for six months; with respect to count 2, the assault upon the police officer in the execution of his duty, imprisonment for nine months; with respect to counts 3, 5 and 6, the unlawful woundings with intent, in each case a period of imprisonment of four years; and in respect of count 4, the attempted wounding, imprisonment for nine months. All of the sentences are to be concurrent.

Having regard to the special personal circumstances of the respondent, including in particular, his background, the environment in which he was living, his youth, the fact that he was intoxicated at the time and the fact that he does not have a substantial criminal record, and also taking into account the fact that he has been subject to the orders made by the learned sentencing Judge until this time, I would recommend that he be considered for parole after serving a period of 12 months.

THOMAS J: I agree with Mr Justice Dowsett's reasons and with the orders he proposes.

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

McPHERSON JA: Yes. A warrant will issue for the arrest of the respondent with a direction that the warrant lie in the Registry for a period of one week or until further order.

R v Williams & Attorney-General of Queensland [1997] QCA 476

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Judgment (31 paragraphs)

R v Williams & Attorney-General of Queensland [1997] QCA 476 (21 November 1997)

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