Townsend v Commissioner of Police [2017] QDC 45

District Court of Queensland|2017-03-02

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - s 222 of the Justices Act 1886 - Where the appellant was convicted of obstruction of offences of police officer, wilful damage and serious assaults on two police officers and was effectively sentenced to 18 months imprisonment, with a parole release after 4 months and ordered to pay sums of compensation - Where the appellant contends that the sentence was outside the range open to the Magistrate and not adequately supported by comparable authorities - Where the appellant contends that the Magistrate failed to correctly deal with significant factual disputes - Where the appellant contends that the Magistrate misstated the facts - Where the appellant contends that the Magistrate failed to apply appropriate sentencing principles - Where the appellant contends that the Magistrate failed to properly deal with the increase in maximum penalty - Where the appellant contends that the Magistrate placed improper weight on the victim impact statement - Where the appellant contends that the Magistrate was led into error by the police prosecutor - Where the appellant contends that the compensation orders were not properly made - Whether there has been any legal or factual error made - Whether the sentence imposed was manifestly excessive

Penalties and Sentences Act 1992; ss 9; 9(2)(c)(i); 13; 15; 32(2); 35; 35(1)(b); 35(1)(c)

R v Armstrong [1996] 1 Qd R 316

Barbaro v R and Zirilli v R [2014] HCA 2; (2014) 253 CLR 58

R v Barry [2007] QCA 48

R v Benson [2014] QCA 188

CBM v Attorney-General NSW [2015] HCA 9; (2015) 256 CLR 346

R v Brown [2013] QCA 185

R v Evans and R v Pearce [2011] QCA 135

R v Handlen [2015] QCA 292

R v Hawton [2009] QCA 248

House v R (1936) 55 CLR 499

R v Juric [2003] QCA 132

R v King [2008] QCA 1

R v Lappan [2015] QCA 180

R v Laskus [1996] QCA 120

R v Mautauaina [2011] QCA 344

Payne v Commissioner of Police [2015] QDC 294

R v Rodgers [1985] 2 Qd R 43

R v Ross [2015] QDC 315

R v Rueben [2001] QCA 322

R v Singh [2006] QCA 71

Teelow v Commissioner of Police [2009] QCA 84

R v Voss [2000] QCA 176

Weininger v R (2003) 212 CLR 629

Office of the Director of Public Prosecutions instructed by the Commissioner of Police for the respondent

[1] On 17 December 2015, the appellant filed a Notice of Appeal against the orders in the Magistrates Court at Maroochydore on 11 December 2015, on the basis that the sentence imposed was manifestly excessive,[1] and further seeks leave to adduce fresh evidence pursuant to s 222(2) of the Justices Act 1886.

[2] The circumstances of the appellant's offending are outlined in the sentencing schedule[2] and occurred in the context of police being called to a domestic disturbance at Mapleton. During which time, the appellant bit Senior Constable Munro (SC Munro) on the right shin and kicked SC Munro in the lower left shin, crushed Senior Constable Bartholomew's (SC Bartholomew) spectacles while causing a scratch to SC Bartholomew's forehead, and bit SC Bartholomew's left breast, breaking the skin and causing bruising and inflammation.

[3] In sentencing the appellant and upon her guilty pleas in respect of four offences (all of which were committed on 16 October 2015), the Magistrate made the following orders:

Obstruction of a police officer (s 790(1) Police Powers and Responsibilities Act 2000)

Serious assault on a police officer, occasioning bodily harm (s 340 (1)(B), (A)(I) and (A)(II) Criminal Code)

6 months imprisonment, with a parole release date set at 16 February 2016.

Convicted and not further punished, with $400 restitution.

Serious assault on a police officer, occasioning bodily harm (s 340 (1)(B), (A)(I) and (A)(II) Criminal Code)

18 months imprisonment,[3] with a parole release date set at 16 February 2016.

Further and after declaring 56 days of pre-sentence custody, between 16 October 2015 and 11 December 2015, as time already served, a parole release date was fixed at 16 February 2016, or after serving 4 months.

[4] The appellant was born on 14 April 1987 and was therefore aged 28 at the time of offending and when sentenced. Exhibit 1 included a traffic and juvenile criminal history from Western Australia. Apart perhaps from noting an entry for 26 July 2001 in the Perth Children's Court for assaulting a public officer for which no punishment was imposed and that the final entry for 5 January 2005 in the Rockingham Children's Court was for criminal damage, also where there was no punishment imposed. There was little significance in these records and there was little direct reference made to this in the proceedings below.[4]

[5] At the sentencing proceedings on 11 December 2015 the police prosecutor relied upon a schedule of facts, which was included in Exhibit 1 and this was then supplemented by some oral submissions and photographs (Exhibit 2) and a victim impact statement (included in Exhibit 1). A brief overview of the factual basis put before the Magistrate for the appellant's sentencing is as follows:

(a) Uniformed police attended at a Montville address on the afternoon of 15 October 2015 and not long after that the appellant was lawfully detained. However and on being so informed, the appellant ran off only to be chased by three uniformed police officers, including SC Munro and SC Bartholomew.

(b) In the course of that pursuit the appellant stumbled and fell to the ground. She refused to comply with the direction to get down and commenced to struggle with SC Munro and then SC Bartholomew. The events up to the commencement of this struggle were the subject of the first offence.

(c) The second offence was premised upon the appellant's actions in the course of her struggle with the police officers in grabbing SC Munro's right leg and moving her face forward so that she could bite him on the right shin, through his trousers and causing him pain and discomfort. And also her act in kicking this Constable's left shin also causing pain and discomfort and later swelling.

(d) The third offence was premised upon the acts of the appellant, again in the course of the struggle with the police officers, in grabbing the spectacles from SC Bartholomew's face and deliberately crushing them and breaking the frame.

(e) The fourth offence also occurred during the course of the ongoing struggle, when the appellant scratched SC Bartholomew's face and brought her face to a position where she bit onto Constable Bartholomew's left breast through her shirt, breaking the skin at that location and causing pain, discomfort, bruising and inflammation. As the Magistrate was informed, the victim impact statement from Constable Bartholomew demonstrated that she had suffered emotionally for some time as a result of the manner in which she was assaulted.

[6] In her submissions to the court, the police prosecutor drew attention to the fact that the police officers were simply responding, as part of their duties, to a domestic violence incident and that the situation escalated upon the appellant's flight upon being advised she was detained. Emphasis was placed upon the appellant's resistance to apprehension and her deliberate rather than reactive actions in grabbing the leg of the male police officer and bringing it towards her mouth so that she could bite it; her striking out when that officer has then pushed her away to kick him in the left shin; her grabbing at the face of the female officer to rip off her glasses and crushing them; and then bringing her head into a position where she bit the breast of the female officer causing a break in the skin, bruising and inflammation. Otherwise it was noted that the matter had been listed as a guilty plea at an early stage and that it had been confirmed that neither officer had contracted any communicable disease. It was noted that there was physical discomfort (in the case of the female police officer for two weeks) and anxiety as to the risk of communicable disease, and it was contended that there was an absence of demonstrable remorse by the appellant's denial as to her actions, in interview after the events and because of the absence of any letter of apology. Specific attention was drawn to the amendment to s 340 of the Criminal Code in 2012 to increase the maximum penalty for the offence of serious assault, when biting or spitting on a police officer is involved, from 7 to 14 years imprisonment. Emphasis was placed on the need for a sentence of imprisonment and compensation was sought for "pain and suffering of both officers in relation to the matter". Some of the more specific submissions of the police prosecutor are referred to in more detail later in these reasons.[5]

[7] Both the police prosecutor and the appellant's solicitor made reference to some cases that were referred to as comparable sentencing decisions. More detailed reference will be made to these cases later in these reasons. The solicitor representing the appellant otherwise made reference to the following (again, some aspects of these submissions are referred to in more detail later):

(a) The appellant had written and sent letters of apology, which appear not to have been received, and although a bundle of material also sent to the appellant's solicitor had also not been received, the matter was to proceed.

(b) She had full time employment until becoming a full time mother and had three children aged 10, 4 and 3.

(c) She had moved to Western Australia intending to stay six days but became involved in the 'drug scene' and stayed six months. She had been a mother since the age of 17 and after her ex-partner broke up with her two weeks into her holiday she experienced a taste of some freedom but ended up developing a heavy short term addiction and six months later returned to Queensland to deal with that.

(d) She was suffering the effects of her addiction at the time that these offences were committed and was 'not in her right head space'. She had only been back in Queensland for a couple of days before these offences occurred, after she had become involved in an altercation with her ex-partner at a park where he was with his new girlfriend. Her ex-partner had received a bloody nose, leading to the police being called.

(e) She was not running from the police but running to see her children who were 500m up the road. She acted out of frustration at not seeing her kids.

(f) She had been working in the kitchen area and in clothing recycling in jail and had obtained some certificates.[6]

[8] Pursuant to s 222(2)(c) of the Justices Act 1886 ("Justices Act"), this appeal may only be pursued in respect of the sentence imposed on the applicant but the express reference to the ground of manifest excessiveness does not exclude the prospect of identification of specific error.[7] The appeal is conducted by way of rehearing and that requires regard to the principles that on such an appeal, this Court is required to conduct a review of the sentencing hearing and ultimately, correct any error of the sentencing Magistrate, determined on the basis of that review and this Court's own conclusions.[8]

[9] However and because such a review is to be conducted in respect of an exercise of sentencing discretion, the following principles, as extracted from House v R,[9] apply:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."[10]

[10] At the hearing of the appeal, the appellant made submissions that the sentence imposed, and particularly the order of 18 months imprisonment in respect of the fourth charge, was outside of the range open to the sentencing Magistrate and not adequately supported by comparable authorities. The appellant sought to contend, particularly in extensive written submissions, that the sentencing Magistrate erred by:[11]

(a) failing to correctly deal with a significant dispute on the facts;

(c) failing to apply the appropriate sentencing principles;

(d) failing to properly deal with the increase in maximum penalty;

(e) placing significant and improper weight on the victim impact statement; and

(f) allowing himself to be led into error by the police prosecutor.

[11] It was contended that the Magistrate erred in failing to decide significant factual disputes in four respects:

(a) as to whether an apology was made to police;

(b) as to the circumstances surrounding the initial obstruct police;

(c) as to the state of mind of the appellant at the time of offending; and

(d) as to how to deal with the distinction between biting and spitting.

The fourth assertion is not in reality in relation to a factual dispute and is more conveniently dealt with when considering the error contended in paragraph [8](c) above.

[12] At the outset, it must be noted that it is not necessarily required that every difference in position between the prosecution and a defendant being sentenced will amount to a factual dispute and/or need to be resolved in order that a defendant may be appropriately sentenced. Although expressed in reference to provisions of the Crimes Act 1914 (Cth), the following observations may be noted in the plurality judgment in Weininger v R:[12]

"18 In R v Olbrich, the Court examined a number of questions relating to fact finding in sentencing, usually discussed under the rubric of the onus and standard of proof in sentencing. As the joint reasons point out , "[r]eferences to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings". The Court adopted what was said by the majority in the Court of Appeal of Victoria, in R v Storey, that a sentencing judge:

"may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."

For present purposes, however, attention to questions of onus and standard of proof may distract attention from another important aspect of the decision in Olbrich. Framing the question in terms of the onus and standard of proof may suggest that all disputed issues of fact related to sentencing must be resolved for or against the offender. That is not so. As was recognised in Olbrich, some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed. There may be issues which the material available to the sentencing judge will not permit the judge to resolve in that way.

It had been submitted in Olbrich that, in sentencing a person knowingly concerned in the importation of narcotic drugs into Australia, it was necessary to classify that person's participation in the importation as that of a principal or a courier, and it was further submitted that, if it was not established beyond reasonable doubt that the offender was a principal, the offender should be sentenced as a courier. As the majority pointed out in Olbrich, prosecuting authorities and a sentencing judge will often have only the most limited and imperfect information about how it was that the accused came to commit the offence for which he or she is to be sentenced. Although s 16A(2)(a) requires a sentencing judge to take account of the nature and circumstances of the offence, that requirement is not absolute. They are to be taken into account only to the extent that they are relevant and known to the court. The sentencing judge may not be able to make findings about all matters that may go to describe those circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt. Accordingly, in the particular facts of Olbrich, where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier.

To frame the relevant question in terms of the onus and standard of proof may also suggest that the only material which may be treated as being "known to the court", and on which the judge may act in sentencing an offender, is material revealed by the plea or verdict of guilty, admission by the offender, or evidence received on the sentencing hearing. The use of the phrase "known to the court", rather than "proved in evidence", or some equivalent expression, suggests strongly that s 16A was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well-known and long-established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase "known to the court" should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted.

In addition to the points just made about what is known to the sentencing judge, there is another important feature of fact finding in sentencing which must be recognised. Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.

Further, a sentencing hearing is not an inquisition into all that may bear upon the circumstances of the offence or matters personal to the offender. Some matters may be fixed by the plea or verdict of guilty although, even there, there may be ambiguities (as for example, in some homicide cases where a verdict of manslaughter is returned). Many of the matters relevant to fixing a sentence are matters which either the prosecution or the offender will draw to the attention of the sentencing judge. Some matters will remain unknown to the sentencing judge. The question then becomes, what use is the sentencing judge to make of what is known, and of the matters urged by the parties? This is not just a series of choices for the judge between alternatives. Not only may some things be unknown, some will concern matters in which a range of answers may be open.

As was pointed out in Storey, it is important to avoid introducing "excessive subtlety and refinement" to the task of sentencing. That object is advanced if sentencing and appellate courts pay close attention to identifying those matters that the sentencing judge takes into account in a way that is adverse to the interests of the accused, and those matters that the sentencing judge takes into account in favour of the accused. It must be recognised that not every matter urged on the judge who is to pass sentence has to be, or can be, fitted into one or other category. The judge may be unpersuaded of matters urged in mitigation or in aggravation. The absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation. So to conclude would ignore the different standards of proof that are to be applied. It would also be wrong because it would assume that human behaviour can always be described as a dichotomy. It cannot. Human behaviour and characteristics are more varied than that. Further, it would be wrong because it would assume that sentencing is a syllogistic process. It is not. It is a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money" (citations omitted).

[13] Further and in passages that are specifically relied upon by the defendant:

(a) the following was observed in the majority judgment in R v Olbrich:[13]

"Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)" (citations omitted); and

(b) in GAS v R,[14] it was observed:

"Thirdly, it is for the sentencing judge, alone, to decide the sentence to be imposed. For that purpose, the judge must find the relevant facts. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case. The present appeal provides an example. The limitation arose from the absence of evidence as to who killed the victim, and the absence of any admission from either appellant that his involvement was more than that of an aider and abettor" (citations omitted).

[14] Although it may also be observed that in R v Handlen[15] it was noted that the principles stated by the High Court in Olbrich, and applied in other cases, have been modified in Queensland by s 132C of the Evidence Act 1977, that was in particular recognition of the standard of proof (or "degree of satisfaction") made applicable by s 132C(4). However, it is also specifically noted that the definition of "allegation of fact" is widely cast so as to include "any information or evidence".[16] Accordingly it is necessary to note that ss (2) and (3) of s 132C, provide as follows:

"(2) The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.

(3) If an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true."

[15] It is therefore necessary to determine whether the Magistrate acted contrary to s 132C, or any of the general principles discussed above.

[16] As to the letters of apology and whilst it is true that the police prosecutor did, in her submissions to the Magistrate,[17] contend that "at [no] point has the defendant expressed remorse for her actions", that was made referable to what was described as "her denial throughout the record of interview" and more problematically:

"her absence - to my knowledge, your Honour, her absence of any formal apology to either officer. I don't - I believe my friend will submit on that and I don't have instructions in relation to that. So to our knowledge there was no formal apology made to either officer."

[17] As is correctly contended for the defendant, the proffering of an apology is a matter which may go to evidencing the remorse of a defendant for offending of this kind and in that regard it is typically to be considered along with a guilty plea and the level of mitigation involved in the offender's contrition and co-operation with and facilitation of the course of justice.[18] However, the weight to be given to such a circumstance, in the exercise of a sentencing discretion, may depend on all of the relevant circumstances, including when and in what circumstances the apology came to be given.

[18] In this case and near the commencement of his reasons and in noting the necessity to take into account the defendant's guilty pleas, the Magistrate said:

"You pleaded guilty to the charges today. That plea of guilty is a way of saying that you're sorry for what you've done. Your solicitor tells me you've written letters of apology to the victim police officers. Strangely, and I can accept it's possible, the officer Bartholomew makes no reference to that whatsoever in her victim impact statement that was made on the 1st of December.

The prosecutor is unable to take that anywhere and, notwithstanding that, I do accept that when you pled guilty today it's a way of saying you admit what you did was wrong. It shows considerable cooperation with the law enforcement authorities. In this particular case if you had contested these matters, these police officers would have had to give evidence about what happened, and, certainly, I could discern from what Senior Constable Bartholomew says in her victim impact statement that she might have been distressed by that process, probably angry and more upset, and you deserve credit for pleading guilty in relation to those matters."[19]

[19] Accordingly, it is clear that there has been no error of the kind contended and that the Magistrate has acted by not at least rejecting the premise that such letters were sent and more importantly that the appellant's guilty pleas and acceptance of responsibility for her actions were deserving of substantial weight in her favour and as may be seen in the fixing of the early parole release date.

[20] It can otherwise be noted that in relation to the materials that were available to the appellant's solicitor at sentence, he ended his submissions as to the letters of apology as follows and then proceeded as noted:

"I received instructions on the 24th of November in relation to this matter. I made the submission on the same date to police which ultimately was rejected. Part of that submission reiterates that my client had written letters of apology to the officers involved. Also my instructions on that day were that they were sent some time between the week prior to my instructions. The - and my friend tells me this morning that she has no knowledge of them which of itself, in my submission, doesn't say that they weren't sent. It simply means that there has been no communication from the officers that they have received it.

Similarly I can inform the court that my client says that she sent me a bundle of material which I have not received, at the same time. It hasn't been received yet either. So whether there's a problem with the prison system or Australia Post or both I have no idea. Be that as it may I'm instructed that the material included a letter addressed to your Honour and several - a couple of certificates and a copy of her case notes from jail which she wasn't allowed to bring with her. So I'm unable to present them to the court.

MR GOULD: No, your Honour. No. My instructions are that this matter is to proceed today."[20]

[21] Although and on the appeal the appellant initially sought leave to adduce additional evidence in the form of her affidavit in respect of and attaching the letters sent, that was in the end and in the context of the considerations just discussed, not pursued.[21]

[22] The second and third assertions are conveniently dealt with compendiously. First there is criticism of the fact that the Magistrate allowed the prosecutor to expand upon an agreed statement of facts that had been otherwise placed before him. However, that occurred without any objection by the defendant's solicitor and in any event involved what appeared to be legitimate submissions of the prosecutor. There is no demonstrated error on the part of the Magistrate and the underlying point is to seek to contrast the approach by the Magistrate to a contention made by the defendant's solicitor. That particularly arises at the following passage:

"She says that prior to the incident now - of the charges being before the court that she - her ex-partner and his new girlfriend had been in the park and there was an altercation between her and the ex-partner, and the ex-partner ended up with a bloody nose. The police arrived, and there was these matters. They were talking to her. She instructs me that she was not trying to flee from police in the obstruct, but her children, who she hadn't seen for two or three weeks, arrived at her friend's place about 500 yards up the road after school. She was going up to see them. She admits that she didn't tell the police or ask the police if it was all right, so - and that's the basis of the obstruct, in my submission; no more than that. She says that after that incident they eventually ended up on the ground, with her on the bottom and the two police officers on top. She says

SGT CAMPBELL: I'm sorry, your Honour. I did explain to my friend that if went too far from the agreed facts before the court that I would have to

BENCH: He's already started that with the running away from the police.

SGT CAMPBELL: Yeah. I wasn't sure if he was going to go on more with that and

SGT CAMPBELL: That was a stretch, and then that changes the facts totally.

MR GOULD: It's not as a contested facts hearing, your Honour. It's - my instructions that

BENCH: the section - the Evidence Act makes pretty clear the fact-finding obligation on sentence and also the decision side - which I should probably keep with me for every long plea, the way this is going - there is no inference that I am entitled to draw in favour of your defendant when it comes to the facts. The facts were agreed to. So your - the information that you can tell me needs to be dovetail in relation to the agreed facts, not be inconsistent with them or markedly different.

MR GOULD: But she was on the ground. She had the officer on the leg and bit him. Then she grabbed the female officer and out of frustration, on my instructions, took her glasses off, broke them, and ended up biting her.

MR GOULD: Well, she tells me, your Honour. She wanted to see her kids she hadn't seen for some time. She admits that she still was suffering the effects of a fairly heavy short-term drug addiction, and that's the reason she returned to Queensland; to get rid of that. She instructs me that she is now clean; intends to stay that way."[22]

And then, after reference to other matters, including the decision in R v Ross,[23] and discussion of the degree of evident premeditation in the appellant's actions in biting the police officers, the topic was returned to as follows:

"BENCH: And it might be said the second incident - you said she was rolling around on the ground and was acting in frustration. You mean carefully avoiding the biting on the breast? Was she frustrated equally at that point?

BENCH: This is after she had been removed from the other police officer.

BENCH: Grabbed the spectacles off her face, deliberately crushed the spectacles. So frustration might be overstating it. Scratched her on the forehead, pushed her in the face, and then bit on the breast; nothing frustrating about that. An assault, pure and simple.

MR GOULD: We weren't there, your Honour, so I don't - and I can't - don't profess to get inside her head. I have no idea what her feelings were. In any event, your Honour, my submission is ultimately that your Honour will design a sentence where she can be released into the community on parole today, and thereby allow her to reunite with her children."[24]

[23] In sentencing proceedings a court is not bound to accept what is proffered by way of explanation by an offender and particularly if the explanation is inherently improbable.[25]

[24] Here, and as far as the application of s 132C of the Evidence Act is concerned, it can be noted that the prosecutor's complainant as to some departure from the agreed schedule of facts was not expanded upon because of an apparent misconception on the part of the Magistrate that the appellant could not seek to put forward a contention as to her state of mind by way of explanation of the agreed facts and, perhaps, as some mitigation of her culpability. It is, after all, axiomatic that the only direct evidence of a person's state of mind may come from that person. Otherwise it is a matter of inferences to be drawn from relevant words and conduct. However and in the end, there was nothing to be resolved under s 132C because the appellant's solicitor did not seek to call evidence from her as to her state of mind at the relevant time.

[25] It may be reasonably inferred that was because of the effect of the Magistrate's intimation as to an otherwise obvious view as to the inherent difficulty and improbability in any such assertion providing a mitigatory explanation for the appellant's actions in grabbing the spectacles and biting both police officers. And the Magistrate subsequently recognised as much,[26] but otherwise gave some consideration to what he described as the appellant not being in the "right headspace" when she offended:

"I have considered the fact that you were not in a right headspace. It might be thought, however, that the additional matters that you have told me about through your solicitor; that is, your concern for seeing your children, your frustrations; might be of a dubious reliability when one considers your headspace and the effect of drugs on you at the time in question."

[26] In respect of this topic, it is only necessary to deal with the contention that is premised upon an understanding that the facts, as placed before the Magistrate, involve the detail that the appellant had scratched the face of SC Bartholomew when she grabbed her spectacles and pulled them from her face, before then bringing her head and mouth into contact with that officer's breast in order to bite it. It is pointed out that in the schedule of facts,[27] and after reference to a sequence of events including the grabbing and crushing of the spectacles, it is expressly recorded that:

"On grabbing at Senior Constable Bartholomew's face, the defendant has scratched the officer's forehead causing the officer pain and discomfort. The defendant has then pushed her face towards the chest of Senior Constable Bartholomew and has bitten the officer's left breast causing extreme pain and discomfort. The bite inflicted by the defendant has caused bruising, inflammation and has broken the skin at the area of the bite."

And also the oral submission of the prosecutor that:

"The defendant maliciously ripped the female officer's glasses from her face destroying them and scratching the officer's face in the process."[28]

[27] However, it is contended that the Magistrate has, in this regard, "misunderstood, at a fundamental level, the factual basis of the plea including misstating the evidence before him." That contention is pursued on the basis that in the course of the abovementioned exchange with the appellant's lawyer, the Magistrate said:

"Grabbed the spectacles off her face, deliberately crushed the spectacles. So frustration might be overstating it. Scratched her on the forehead, pushed her in the face, and then bit on the breast; nothing frustrating about that. An assault, pure and simple."[29]

And more particularly, that he said in his sentencing remarks:

"You then grabbed the police officer, Bartholomew, with your left hand. You grabbed her spectacles. You deliberately crushed the spectacles. You then pulled them away from her - they pulled the spectacles away from your grasp. They were broken. You then scratched the officer's forehead when you grabbed her face. You then pushed her face towards the police officer, and you bit her on the left breast, causing extreme pain and discomfort."[30]

[28] Particular emphasis is placed on the word "then", in the penultimate sentence, but this tends to overlook the further words "when you grabbed her face". It is apparent that these are examples of infelicitous ex-tempore expression and there is no doubt that the Magistrate understood and acted upon the basis that the scratching of SC Bartholomew's face occurred in conjunction with the grabbing of the spectacles. A similar conclusion should be reached as the use of the words: "You then pushed her face", in the last sentence and it is tolerably clear that the Magistrate has identified and acted upon the important understanding that this was the deliberate action of the appellant in bringing her mouth into contact with the breast of the officer and so as to bite it, rather than any reactive biting to that area of the officer's body coming into contact with the appellant's mouth, in the course of a struggle.

[29] Criticism is levelled at the Magistrate because of his general reference to his regard to provisions of the Penalties and Sentences Act 1992, in the following passage:

"In relation to the serious assault upon officer Senior Constable Bartholomew, I have considered all of those matters referred to in section 9 and 11 of the Penalties and Sentences Act. I am satisfied that it is appropriate and no more severe in the circumstances that you should be sentenced to a term of imprisonment. I am going to order that you be in prison for a period of 18 months. I state that you've been held in pre-sentence custody in relation to these proceedings for this offence and for no other reason between the 16th of October and the 11th of December for 56 days, and I declare the whole of that time, namely 56 days, to be time served under the sentence.

Because of your pleas of guilty and mitigating circumstances, I'll order that you be released on parole on the 16th of February 2016. That's less than the normal discount that applies for pleas of guilty when the head sentence is 18 months. In that regard, that, in my view, reflects your plea and other mitigating circumstances. For the assault upon the other police officer on the same date, place and time, six months imprisonment, same declaration of pre-sentence custody, and same parole release date."[31]

[30] Somewhat incredibly, in the light of the second paragraph in that passage, the criticism extends to a contention of failure to apply s 13 of the PSA and to effect an appropriate reduction of the sentence because of the appellant's guilty pleas.

[31] Moreover, other criticism as to contended failure to refer to specific parts of s 9 of the PSA are substantially unwarranted and particularly having regard to the following observations in the Magistrate's reasons, after he had made reference to some cases that had been referred to him as comparable cases:

"The prosecutor reminds me that up to the point that - up to a point you are relatively uncooperative with police. She reminds me that that was after these incidents occurred. Having said that, you did plead guilty, and I've already explained how that plea should be taken into account. I have considered the fact that you were not in a right headspace. It might be thought, however, that the additional matters that you have told me about through your solicitor; that is, your concern for seeing your children, your frustrations; might be of a dubious reliability when one considers your headspace and the effect of drugs on you at the time in question.

I've been told by your solicitor that there was some additional material that you sent or attempted to send to him which details attempts that you've made to rehabilitate yourself whilst in prison and other information which, unfortunately, has become waylaid, so I'm not able to consider that, and he did not press for an adjournment today because of the absence of that material.

In relation to these cases, I'm inclined to agree with the prosecutor that two bitings of two different police officers is a point of distinction in sentencing you. I'm also inclined to agree that biting a female police officer on the breast in the way that you did was particularly degrading, particularly humiliating, and I have considered that today.

A feature of the sentence today is that you have already served 56 days in custody and the Court of Appeal says that I am obliged to place some weight on that because you have never been in custody before; having said that, this was two separate incidents, albeit which occurred within a relatively short period of time.

I have to consider your rehabilitation. It's clear from what your solicitor has said that the rehabilitation of you is in the community's best interest, as certainly you continuing to do this either because of your difficult personal circumstances or your use of drugs is something that the community would prefer you not do because this is what happens when you let those things influence your behaviour.

I have considered the need for personal and general deterrence for the reasons expressed by - in that Ostaspovitch case. I need to make it clear that the community, acting through the court, denounces the sort of conduct in which you were involved. Denunciation is an important feature of sentencing you, not the least of which might be best explained by the idea that the maximum penalty for this type of offence was increased substantially by the government; that's a good measure of the community's concern for these things."[32]

[32] Further there is, in the circumstances that have been noted, no merit in the largely incorrect or otherwise contentious submissions that:

"The sentencing magistrate as a matter of law should have considered and expressed an understanding and appreciation of, at least the following mitigating factors:

(a) it was an early plea of guilty which should reflect discount in the sentence;

(b) the applicant had no relevant criminal history;

(c) the applicant had no communicable diseases;

(d) the risk of transmission of disease was less than a spit as the police officers were wearing clothing;

(e) the applicant acted out of frustration, and there was no premeditation to the assaults;

(g) no diseases were transferred."[33]

[33] Specifically and in relation to the issue of communicable disease, this was clearly not a case where any transmission of any such disease was alleged and the Magistrate appropriately recognised and took into account the impact on the police officer (particularly as reflected in the victim impact statement of SC Bartholomew) due to the obvious risk of such occurrence and the anxiety of waiting for the results of medical testing in that regard. That was in accordance with s 9(2)(c)(i) of the PSA.

[34] Neither is there any merit in the further submission under this heading that:

"The magistrate misunderstood basis (sic) sentencing principles including the distinction between spitting and biting."[34]

Specific reference is made to the following exchange in the course of the submissions of the appellant's solicitor:

".... I submit that the matter of Ross is appropriate in the circumstances. That one is seven months imprisonment, with a parole release date after two months. In my submission, you could

BENCH: Even though you didn't bother in the two weeks you've had to send a case to the court, I did get that decision on my iPad. So why do you think that's relevant? It's a spitting case, isn't it?

BENCH: And what else is relevant? Mr Ross had no history whatsoever, and not - you can say that about your client?

MR GOULD: Type is Western Australian traffic history.

BENCH: Yes, but what else are you going to say? This is two biting charges

BENCH: as distinct from one spitting case, where it might be said he was impulsive, Mr Ross.

MR GOULD: In my submission, spitting is a bit - rather more degrading than a biting charge

BENCH: higher courts have said that the biting action is obviously a more protracted incident, because biting somebody takes - you have to open your mouth, you have to do it, bit like spitting. They are both involving some degree of premeditation.

[35] The submission for the appellant is premised upon the following observations in R v Rueben:[36]

"There are some analogies between a biting offence and a spitting offence involving a police officer but there are, of course, differences, one of which is that spitting can often be a premeditated or calculated offence whereas biting, certainly in this situation, was not premeditated. Spitting has a degrading aspect to it and it also has the aspect of contempt shown for the authority of the police, at least in some cases. Nevertheless, this was quite a serious offence in the circumstances."

Obviously this is not by way of any statement of legal principle and the express caveats "can often" and "certainly in this situation", are clear indications that it was not intended or capable of being regarded as any observation of general application, rather than being in reference to the particular facts in that case.

[36] In relation to the victim impact statement of SC Bartholomew and after making reference to the physical consequences of the bite occasioned to this officer, and sensitivity involved in the photographing of her injury, the Magistrate then said this in his sentencing reasons:

"As it is, in terms of those consequences, the victim impact statement makes fairly sad reading. She was just doing her duties. She felt humiliated. She was embarrassed. She felt emotional. She had to have a blood test and tetanus injection. She felt quite degraded. She had problems sleeping. She described the whole experience as humiliating and shameful. This had an impact on her relationship with her husband. She became paranoid and worried about catching a disease and passing that on to her husband. She felt very self-conscious of the injury and its appearance when she was out of her uniform and in her normal civilian clothes. It may be no surprise for you to hear or read that she's now very cautious when she attends disturbances, if she wasn't already, and she's also more focused and worried about being bitten, and that, to some extent, can detract from her duties. She said she won't be able to forget what happened to her. I have considered the impact of that victim, the harm that you have caused to that victim, and those circumstances that I have described."[37]

All of that is consistent with the requirements of s 9(2)(c)(i) of the PSA and in recognition of the evidence before the Magistrate as to the direct impacts of this offending on that officer. There is nothing by way of inappropriate reference to any psychological or psychiatric condition and there is simply not any difficulty such as discussed in the cited authorities: R v Singh[38] and R v Evans; R v Pearce.[39]

Magistrate led into error by the police prosecutor?

Under this heading and after making reference to Barbaro v R and Zirilli v R,[40] the submission is made that:

"The key thing that will need to be avoided is what is, or appears to be, a mere expression of opinion as to what a sentencing outcome should be. The scope of prosecution sentence submissions following Barbaro is that, beyond facts and comparative sentence information and the provision of comparable cases, the Crown must confine itself to addressing 'the relevant sentencing principles' ([38]) or 'the relevant principles that should be applied' ([39]). Those references must be taken to be a reference to both common law and statutory sentencing principles. The prosecutor, exaggerated the facts, exaggerated the victim impact statement, did not rely on comparable decisions (Benson was not comparable) and did not direct the magistrate to the proper sentencing principles."[41] (emphasis as in original).

[37] There is no need to dwell upon the precise principles that are to be discerned from the decision in Barbaro and which, to at least some extent, have now been addressed by amendment made to s 15 of the PSA.[42] It suffices to note that a review of the submissions of the police prosecutor[43] and contrary to this submission, reveals a careful approach, which included reference to relevant mitigating features, as well as appropriate emphasis on the serious aspect of the appellant's offending, as may be particularly noted as follows:

"In mitigation the matter has been listed as a lengthy plea of guilty and prosecution have not been put to proof at any stage in relation to the matter. Also in mitigation neither officer were affected by any communicable diseases. No other mitigating factors have been put forward in relation to the defendant's position. In aggravation both complainant officers were simply doing their job protecting the community. The defendant did not bite either officer during an opportune moment rather she wilfully and deliberately grabbed one officer by the leg, brought his leg towards her and bit him on the shin and in relation to the second officer moved her head towards the second officer's chest and deliberately and wilfully bit down on the officer's breast.

The defendant maliciously ripped the female officer's glasses from her face destroying them and scratching the officer's face in the process. Both officers suffered immediate and ongoing pain in relation to their bite marks. One officer reports experiencing bruising and pain to her breast for two weeks following the assault and your Honour has the photographs of that bruising. The deliberate actions of the defendant caused feelings of paranoia in one of the complainant officers concerned with the risk of contracting and possibly passing on a communicable disease and they're very real concerns experienced by both her and her partner obviously after a bite."[44]

And those submissions also included appropriate reference to relevant provisions of the PSA and relevant principles to be drawn from authority, including R v Murray,[45] and in respect of an appropriate approach to the increase in the maximum penalty applicable to the appellant's serious assaults.

[38] In addition and after making specific reference to a passage in R v Tait[46] it is, in my view, inappropriately submitted that the police prosecutor's submissions included:

"... the aggravation of the facts without proper basis, deviation of the points in the victim impact statement and not bringing to the magistrates attention the relevant sentencing principles that should be applied in Serious Assault cases culminating is a submission on penalty without reference to why."[47]

There is then reference to the following submission of the police prosecutor and from this it may be discerned that leaving aside the sweeping and incorrect criticisms of the police prosecutor's submissions, as have already been addressed, the most specific complaint is in respect of the submission that is as highlighted below:[48]

"Considering all those factors, your Honour - that your Honour must consider in relation to the penalty it is my respectful submission that no sentence other than a period of imprisonment is appropriate for all the circumstances and the cases of Reuben and Benson and - that have been placed before the court and respectfully submit that they'll be assistance to your Honour in relation to structuring a penalty."

[39] However, it can be noted that the passage cited from R v Tait is most instructive as to the notation of the duty of a prosecutor in sentencing submissions to assist a court to avoid appealable error. And it may be noted that this obligation was dealt with as follows in CBM v Attorney-General New South Wales[49]:

"The determination of the appropriate sentence is one that rests solely with the court. The public interest in the sentencing of offenders does not permit the parties to bind the court by their agreement. Nonetheless, the prosecutor is under a duty to assist the court to avoid appealable error. Where the sentencing judge indicates the form of proposed sentencing order and the prosecutor considers that such a penalty would be manifestly inadequate, the prosecutor discharges his or her duty to the court by so submitting. The failure to do so is a material consideration in the exercise by the Court of Criminal Appeal of the residual discretion. The weight of that consideration will depend upon all of the circumstances. A prosecution concession that a non-custodial sentence is an available disposition is a powerful consideration weighing against intervening to impose a sentence of imprisonment on appeal" (citations omitted).

[40] Also and whilst only the decisions in R v Reuben[50] and R v Benson[51] were referred to the magistrate for purposes of comparison by the prosecutor, and that on the hearing of this appeal the respondent appropriately conceded the limitations of particularly R v Benson, in that regard, it should be noted that the police prosecutor appropriately identified that Reuben not only preceded the increase in maximum penalty but presented arguably less culpable circumstances than this case and that Benson was presented as a more serious case.

[41] There is accordingly no basis for any conclusion that the Magistrate was led into error by the police prosecutor.

The increase in maximum penalty / manifest excessiveness?

[42] The last of the contended specific errors may be conveniently considered in conjunction with the appellant's general complaint that the sentence imposed was manifestly excessive and also in conjunction with the issues raised as to the compensation orders that were made. This is because those issues tend to focus upon the overall fixing of the sentence imposed by the Magistrate and particularly in respect of the fixing of the head sentence of 18 months imprisonment for the serious assault on SC Bartholomew.

[43] Although and as has been noted and as the Magistrate was required to do, separate orders were made in respect of the separate offences, the exercise of the Magistrate's sentencing discretion is necessarily an example of the approach approved in R v Nagy[52] and where the effective sentence here is largely reflected by the order made in respect of the most serious offence but in reflection of the overall criminality involved in the entirety of the offending. That is largely so because there are also the compensation orders, which whilst representing a form of recompense for the victims of the offending, are nevertheless part of the sentence imposed upon the appellant.[53] And this is so, notwithstanding that there was immediate referral to the State Penalties Enforcement Registry ("SPER") in respect of those orders, as this only relates to the method of recovery but also involves potential exposure to serious adverse consequences for non-payment or non-recovery.[54]

[44] Specifically as to the compensation orders, the appellant's complaints are first that the only reference to the prospect of such an order being made was by the prosecutor, in the following terms:

"I make a general application in relation to compensation for pain and suffering of both officers in relation to the matter."[55]

And it is noted that the reasons of the Magistrate for the compensation order in respect of the broken spectacles were expressed as follows:

"In relation to the glasses, although I've not been provided with a quote for the replacement of those glasses, about three months ago I dealt with a similar matter involving a police officer whose spectacles were damaged beyond repair, and it was agreed between the prosecutor on that occasion and the solicitor who appeared for the defendant on that occasion that the agreed value of the replacement of those spectacles in the circumstances was about $400. I accept that it could be much more than that, having had my own experience purchasing spectacles, but that's the amount that I fix for the compensation in the absence of any other material."[56]

"No offer for compensation was made by the defence solicitor. No material by way of psychological, psychiatric or other medical evidence was tendered in relation to the pain and suffering experienced by the police officers. The magistrate relied on the single victim impact statement as evidence with which to award compensation."[57]

And attention is then drawn to the following further reasons of the Magistrate, in respect of the orders for compensation for personal injury pursuant to s 35(1)(c) of the PSA:

"In relation to the assault on the aforenamed Bartholomew, I've considered the injuries caused to her and the victim impact statement. I'm going to order that you pay her $1500 compensation and refer that to SPER. In considering the injury to the other officer, in the absence of a victim impact statement, $500 for the bite to his shin."[58]

[46] Thirdly and in reference to some observations made in Payne v Commissioner of Police,[59] it is submitted that:

"Loss should have been quantified before it was awarded."[60]

[47] However, that may be seen to be a superficial view of both the problem identified and determination made in that case and which involved quite distinct circumstances. The submission can only sensibly pertain to an award for compensation pursuant to s 35(1)(b) of the PSA and relevantly here, the damaged spectacles. It may be noted that in R v Ferrari,[61] McPherson JA described the general purpose of s 35 of the PSA as providing "a summary and inexpensive method of compensating a person for injury to the person or property" and "a useful means of avoiding the need to institute separate proceedings to establish civil liability" and "subject necessarily to any legislative provisions to the contrary, governed generally by the ordinary legal principles of civil liability and assessment of loss and damage of that kind". Accordingly and where the loss or damage is evident but unquantified, it may not be improper to bring common sense and experience to bear in making an appropriate assessment.

[48] However, it is unnecessary to further consider the appropriateness of the approach of the Magistrate in this instance, as noted above. This is because and as noted in R v Mautauaina,[62] the requirements of procedural fairness are necessary. And here, not only was there absence of any actual quantification of loss in respect of the spectacles, but no application for compensation for that loss was made by the prosecutor. And nor was the prospect of the making of the order adverted to by the Magistrate before it was made. Therefore, that compensation order must be set aside.

[49] Similarly and in respect of assessing compensation for personal injury pursuant to s 35(1)(c), it is not necessary that there be medical assessment and at least in respect of compensation for emotional distress, any psychological or psychiatric evidence. It may be noted that the ordinary legal principles of civil law, allow for the recovery of damages for personal injury under the head of general damages and for "pain and suffering" and this typically allows for the subjectively experienced consequences of personal injury and may extend to anxiety and distress generally and as to the potential of increased severity of injury.[63] However, there must be sufficient material to allow for some meaningful assessment to be made of the pain and suffering to be compensated, as opposed to simply some tariff or intuitively derived assessment.

[50] Here, the appellant was put on notice by the prosecutor's application for compensation for the "pain and suffering" of both police officers. However, there was only evidence as to the consequences of the physical injury that had been occasioned to SC Bartholomew, in the photographic evidence of her injuries and her victim impact statement. Whereas and in respect of SC Munro, there was only the general observation in the schedule of facts[64] that the bite had caused "pain and discomfort and swelling of the area assaulted".

At a glance

Court

Decision date

Source

Judgment (264 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (7)