Bellou v Director of Public Prosecutions

[2024] WASC 379

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   BELLOU -v- DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 379

CORAM:   MUSIKANTH J

HEARD:   15 OCTOBER 2024

DELIVERED          :   15 OCTOBER 2024

PUBLISHED           :   16 OCTOBER 2024

FILE NO/S:   SJA 1066 of 2024

BETWEEN:   VERNON PETER EDWARD BELLOU

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

ON APPEAL FROM:

For File No:   SJA 1066 of 2024

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE SCUTT

File Number            :   PE 191/2023, PE 192/2023, PE 193/2023 & PE 194/2023

Catchwords:

Criminal law - Appeal against sentence - Assaulting public officers - Obstructing public officer in performance of officer's functions - Where partially suspended term of imprisonment imposed - Whether imposition of period of direct imprisonment manifestly excessive - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code Compilation Act 1913 (WA)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Mr R Napper
Respondent	:	Ms N Sinton

Solicitors:

Appellant	:	Aboriginal Legal Service (WA)
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Ashworth v The State of Western Australia [2006] WASCA 36

Barrett v Director of Public Prosecutions [2024] WASC 208

Bradley v The State of Western Australia [2024] WASCA 94

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Green v The Queen [1995] WASCA 139

Little v The Queen [2001] WASCA 87

Lyons v The State of Western Australia [2022] WASCA 81

McCormick v Director of Public Prosecutions for Western Australia [2022] WASC 275

Minton v McAlinden [2017] WASC 99

Moran v Baker [2019] WASC 251

Palmer v The State of Western Australia [2024] WASCA 97

Quinn v The State of Western Australia [2006] WASCA 99

Quirk v The State of Western Australia [2019] WASCA 76

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Slade v The State of Western Australia [2019] WASCA 65

The Queen v Leucus [1995] WASC 151; (1995) 78 A Crim R 40

The State of Western Australia v Delaney [2020] WASCA 93

MUSIKANTH J:

(This judgment was extemporaneously delivered on 15 October 2024 and has been edited from the transcript.)

Introduction

1. On 6 June 2024, the appellant was convicted after trial in the Magistrates Court of three offences of assaulting a public officer and one of obstructing a public officer in the performance of their functions. 

2. On 2 July 2024, the appellant was sentenced to a total term of 22 months' imprisonment with respect to those offences.  He was ordered to serve 5 months' direct imprisonment immediately, with the remaining 17 months suspended for a period of 12 months after he had served the first 5 months.

3. The appellant's sentence of 22 months was structured as follows:

Charge number	Offence	Maximum penalty	Penalty imposed
PE 191/23	Obstruct public officer	3 years	3 months
PE 192/23	Assault Constable Dimopoulos	7 years	8 months
PE 193/23	Assault Constable Miller	7 years	10 months cumulative
PE 194/23	Assaulted Constable Farquharson	7 years	12 months

Urgent hearing, extension of time

1. The hearing of the appeal was listed on an urgent basis as there was a risk the appellant would otherwise have served his sentence before his appeal was heard and determined in the ordinary course. 

2. The appellant was sentenced on 2 July 2024. His appeal notice was filed on 12 September 2024, around six weeks out of time.  Consequently, the appellant requires an extension of time in which to appeal.[1] 

   [1] Criminal Appeals Act 2004 (WA), s 10(3).

3. In my view, the delay is adequately explained by the affidavit evidence before the court, and the respondent does not oppose the proposed extension.

4. In the circumstances, I am satisfied it is appropriate to grant an extension of time within which to commence the appeal. 

The facts

1. The facts, as found by the learned trial magistrate for sentencing purposes, were as follows:[2] 

   [2] See 2 July 2024 ts 13 - 15.

   (1)On 1 July 2023, police responded to a call from the City of Perth about a disturbance at a park in Northbridge. 

   (2)Police arrived on bicycles just after 7.00 am and observed the appellant's uncle being aggressive towards two women who were trying to move away from him.

   (3)The police moved closer and, by the time they stopped, the appellant had his arms around his uncle from behind and turned him away from the women and towards the police. 

   (4)Constable Goodwin put up his hands to indicate he wanted the appellant's uncle to stop.  He did not stop, and was telling the police to 'fuck off and leave him alone'. 

   (5)Constable Miller went to arrest the appellant's uncle, and the appellant interfered and continued to interfere until he was finally tackled to the ground.[3] 

   (6)While the appellant was interfering in the arrest of his uncle, Constable Miller pushed the appellant away, and Constable Dimopoulos, described by the magistrate as 'slight in physical build', attempted to pull him away by the arm. 

   (7)The appellant delivered a 'fierce' punch to Constable Dimopoulos's face knocking her to the ground. 

   (8)She suffered pain for a week or so afterwards. 

   (9)Shortly thereafter, the appellant punched Constable Miller in the face stunning him and causing him to stumble.

   (10)Constable Miller suffered a chipped tooth and pain and swelling. 

   (11)Constable Farquharson tackled the appellant, and Constable Goodwin applied a chokehold to get him onto the ground. 

   (12)Once he was on the ground with Constable Farquharson straddling him, the appellant held Constable Farquharson's bicycle helmet strap and hit him to the side of his right ear five to eight times causing pain, ringing in his ear, headaches, and bruising.

   [3] This was the obstruct charge.

2. The magistrate concluded her summary of the facts by noting that the assaults were 'forceful and vicious' and the obstruction 'persistent'. 

3. At the commencement of the hearing of this appeal, CCTV footage showing the interactions between the accused, his uncle and the police, was viewed by the court in the presence of counsel. 

4. The footage was an exhibit before the learned primary magistrate, and provided some assistance to the court in terms of the context in which the assaults occurred.

Ground of appeal

1. The appellant appeals his sentence on a single ground, alleging error as follows. 

   The learned Magistrate impliedly erred by imposing a sentence of imprisonment of 22 months partially suspended after five months. 

   Particulars

   It was not reasonably open to the learned Magistrate to conclude that a term of imprisonment to be immediately served for five months was appropriate.

2. No issue is taken with the length of the individual sentences, or the total length of the sentence imposed. 

3. Rather, the focus of the appellant's challenge concerns the imposition of direct imprisonment, alternatively, the length of that period. 

4. The appellant advances the following contentions relevant to the question of error in his written submissions: 

   (1)An immediate term of direct imprisonment of 5 months was 'manifestly excessive', and the suspension period should have been for 22 months or 'at least longer than 17 months'.[4]

   (2)A partially suspended term of imprisonment was 'plainly unjust or unreasonable when all of the circumstances are considered'.[5] 

   (3)When certain factors are considered, this case falls into a 'special category' which required the term of imprisonment to be 'fully suspended'.[6]

   (4)Alternatively, if a partial term of imprisonment 'was open', the immediate [direct imprisonment] portion of the term was manifestly excessive.[7]

   [4] Appellant's written submissions filed 4 October 2024, [13].

   [5] Appellant's written submissions filed 4 October 2024, [35].

   [6] Appellant's written submissions filed 4 October 2024, [35].

   [7] Appellant's written submissions filed 4 October 2024, [36].

5. In oral submissions, counsel for the appellant explained the substance of the points being advanced in the following way: a conclusion to the effect that the direct imprisonment portion of the sentence was manifestly excessive was open to this court by considering a combination of two factors; namely, the circumstances immediately surrounding the offending and the exceptional antecedents of the appellant.

6. Regarding the circumstances immediately surrounding the offence, counsel for the appellant pointed to parts of the transcript which in substance revealed that the assaults occurred immediately after the appellant was attempting to defuse a potential confrontation between his uncle and two women, and that the assaults themselves occurred briefly, counsel contended in the context of a short burst of anger, which occurred at a time when the appellant had genuine concerns for his uncle whom the magistrate accepted the appellant regarded as a father figure.

7. I will return a little later to the circumstances surrounding the offending. 

Appellant's personal circumstances

1. The learned trial magistrate described the personal antecedents of the appellant, a 21-year-old first offender, as 'exceptionally good'.[8] 

   [8] ts 2 July 2024 page 17.

2. Her Honour noted the appellant was an active contributor to his community, was a role model to younger people, and had a stable history of employment with a bright future.[9] 

   [9] ts 2 July 2024 page 17.

3. The magistrate described the appellant as an impressive young man in terms of what he had achieved and the way in which he had conducted himself in the community.[10]   

   [10] ts 2 July 2024 page 17.

4. Her Honour also considered a number of positive character references tendered on the appellant's behalf.  The references, among other things, described the appellant as having 'consistently demonstrated maturity in the community', being an 'asset to the community', as someone not known to engage 'in any sort of violent behaviour', and as a 'future leader'.[11]

   [11] ts 2 July 2024 page 18.

5. The magistrate also heard character evidence given at the appellant's trial by the general manager of an Aboriginal corporation who had known the appellant since he was 16, and who attested to him having helped establish a range of programs, to him being a diligent worker and a leader of younger children, volunteering and driving younger players to Broome for football games.[12] 

   [12] ts 2 July 2024 page 17.

6. The magistrate also described the appellant as having endured some sadness, with his father having taken his own life, and that the appellant had demonstrated maturity and responsibility in looking after his grandmother.

7. Her Honour accepted that the appellant's behaviour was out of character, likely due to intoxication in a person who does not usually drink to excess, and noted that the appellant was a shy, caring, gentle person who had continued to improve himself with education and no prior history of offending.[13]   

   [13] ts 2 July 2024 pages 17 - 20.

8. Her Honour went on to note that the offending reflected an absolute aberration of the appellant's usual character,[14] that she did not consider there was a need for personal deterrence, and that 'I do not think that you will likely commit this sort of offence again, because of the things I've said about it being so disparate in terms of your usual character'.[15]

   [14] ts 2 July 2024 page 16.

   [15] ts 2 July 2024 pages 19 - 20.

9. Despite the appellant's youth, exceptionally good personal antecedents and genuine remorse, her Honour nonetheless concluded that the appellant's offending was 'far too serious for a fully suspended sentence'.[16]

Leave to appeal, applicable principles

[16] ts 2 July 2024 page 20.

1. The defendant requires leave to appeal because this is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA).[17]  The court must not grant leave unless it is satisfied the ground has a reasonable prospect of success.[18]  For this threshold to be met, the ground of appeal must be shown to have a rational and logical prospect of succeeding, meaning a real prospect of success.[19]  An appellate court can intervene only if the appellant demonstrates either an expressed or implied material error.[20]

   [17] Criminal Appeals Act 2004 (WA) s 9(1).

   [18] Criminal Appeals Act 2004 (WA) s 9(2).

   [19] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

   [20] Bradley v The State of Western Australia [2024] WASCA 94 [38].

2. The sole ground of appeal alleges the learned magistrate impliedly erred by imposing the sentence which it did.  Such an error will only arise if the sentencing outcome is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[21] 

   [21] Bradley v The State of Western Australia [2024] WASCA 94 [39]. See also Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325; Slade v The State of Western Australia [2019] WASCA 65 [36].

3. As has been noted, the appellant, amongst other things, submits that imposition of an immediate term of direct imprisonment was manifestly excessive. 

4. The principles applicable to sentencing appeals in which manifest excess is alleged were recently restated by the Court of Appeal in Lyons v The State of Western Australia:[22]

   It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

   The guidance afforded by comparable cases is flexible rather than rigid.  The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case.  Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

   A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive.  A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

   When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

   [22] Lyons v The State of Western Australia [2022] WASCA 81 [69] - [72].

5. The discretion conferred on a sentencing magistrate is of fundamental importance, and this court may not substitute its opinion as to sentencing merely because it would have exercised the sentencing discretion in a different manner.[23] 

   [23] The State of Western Australia v Delaney [2020] WASCA 93 [23(2)].

6. In short, an appellate court does not 'tinker' with sentences.[24]  It must fully recognise the discretionary character of a sentencing function and must accord sentencing judges and magistrates a wide measure of latitude.  The discretion which the law commits to sentencing judges and magistrates is of vital importance.[25]

   [24] Little v The Queen [2001] WASCA 87 [16]. But see Palmer v The State of Western Australia [2024] WASCA 97 [64] - [66].

   [25] Little v The Queen [2001] WASCA 87 [16].

Maximum penalty and customary standards of sentencing

1. The applicable maximum penalty for an offence contrary to s 318(1)(d) of the Criminal Code is 7 years.  As was observed in Quinn v The State of Western Australia:[26]

   The authorities endorse the principle that the safety of police officers lawfully carrying out their duties is a matter of prime importance and that the courts regard attacks on police as a grave breach of the law which generally attracts a custodial sentence.  (emphasis added)

   [26] Quinn v The State of Western Australia [2006] WASCA 99 [19] (McLure JA, Roberts-Smith and Buss JJA agreeing).

2. Further, as the appellant also properly notes, general deterrence is an important sentencing consideration for the type of offending of which the appellant was convicted. ^[27]  This necessarily involves the principle that mitigating antecedents will be given reduced weight.[28] 

   [27] Quirk v The State of Western Australia [2019] WASCA 76 [58].

   [28] Ashworth v The State of Western Australia [2006] WASCA 36 [98].

3. The appellant relies on several authorities in support of his contention that he would not have been ordered to serve any of the sentences imposed or, alternatively, to have been ordered to serve less than 5 months' direct imprisonment; namely: McCormick v Director of Public Prosecutions for Western Australia,[29] Moran v Baker,[30] and Minton v McAlinden.[31]

   [29] McCormick v Director of Public Prosecutions for Western Australia [2022] WASC 275.

   [30] Moran v Baker [2019] WASC 251.

   [31] Minton v McAlinden [2017] WASC 99.

4. In McCormick, the appellant was convicted of two charges of assaulting a public officer.  The appellant in that case kicked the knee of one police officer and also spat at another police officer, with his spittle hitting the officer just above his left eye.  The appellant had multiple mitigating factors including his plea of guilty, youth, lack of record, good character, support of family and remorse.  It was held that an overall term of imprisonment of 8 months suspended for 12 months was not manifestly excessive and described as a comparatively lenient sentence.

5. As the appellant properly acknowledges, the offending in McCormick was less serious than in the present matter.  McCormick involved two police officers compared with three in this case, and one charge involved a kick to the knee rather than punch to the head.  Nonetheless, the appellant contends the assaults in McCormick took place in the context of sustained bad behaviour from the appellant and not 'a momentary flash of anger' which, according to the appellant, is an appropriate characterisation of the context in which the assaults, the subject of his offending occurred.

6. I digress to observe that in the oral hearing before me, it was submitted that the expression, 'short burst of anger' would more accurately encapsulate the form which the assaults took.  With respect, I do not consider the learned trial magistrate effectively found the offending occurred either in a momentary flash of anger or in a context where there was a short burst of anger.  Having said that, and having had the benefit of viewing the video footage, I accept that things happened very quickly, within a matter of seconds, even though there were multiple assaults.

7. In Moran, the appellant punched a police officer once to the side of his head, causing immediate pain.  The appellant was upset at the time, because he believed he should have received a higher prison allowance.  The appellant received an 11-month term of imprisonment as part of a larger total effective sentence of 2 years and 1 month.  The sentence was upheld on appeal.  Although Hall J considered the sentence a severe one, his Honour concluded the sentence was not without justification when all the relevant circumstances were taken into account. 

8. In Moran, the appellant had a history of violent offending and a prior conviction for assaulting a police officer.  Nonetheless, as the appellant in this matter properly accepts, the offending in Moran was less serious compared with the present case, in circumstances where the offending in Moran involved one prison officer and with no injuries having in fact been sustained, although the appellant there had little mitigation aside from his plea of guilty. 

1. Further, in Moran, the appellant only appealed the length of the sentence he received for an offence of assaulting a public officer.  He was sentenced to terms of immediate imprisonment for other offences, so suspension in part and in whole was not an available option in that case.

2. In Minton, the appellant punched four police officers who were in the appellant's home, dealing with a disturbance.  The appellant punched one officer to the face, causing a laceration to the officer's nose requiring stitches.  The appellant subsequently punched another officer to the head, which caused a bloody graze and lump to his head.  The appellant then punched another officer several times to the head and cheek, causing general soreness.  The appellant was then tackled to the ground by a female officer, who was then grabbed by the neck and sustained pressure to her throat.  The appellant was sentenced to a 14‑month term of immediate imprisonment (reduced from 18 months in light of an early plea of guilty) for the assault causing the laceration, which required stitches.  He was also sentenced to seven months on the remaining charges which were made concurrent.

3. According to the appellant, the offending in Minton was more serious than the present case because it involved four police officers, an injury requiring stitches, and one charge involving strangulation.  Further, the appellant in Minton had fewer mitigating factors, and the appellant in Minton had fewer mitigating factors, who pleaded guilty and had a good employment history.  However, unlike here, he did not have the benefit of youth or prior good character.

4. The appellant in Minton also suffered from a mental illness, which reduced his moral culpability to some degree, but did not remove the need for general and specific deterrence in that case.  Therefore, the fact the sentence was immediately served is to be seen in that context.  The appellant in Minton pleaded guilty to four offences of assaulting a police officer.  One of them was committed in prescribed circumstances, namely, that the officer suffered bodily harm.  A mandatory minimum term of 6 months immediate imprisonment therefore applied to that one offence, although the maximum penalty was the same as in this case.  Given the mandatory term that applied in Minton, I agree with the respondent's submission that the case does not assist in determining whether there was an error in the partial suspension of the appellant's sentence in the present matter.

5. To the above three cases may also be added the recent decision of Whitby J in Barrett v Director of Public Prosecutions.[32] 

   [32] Barrett v Director of Public Prosecutions [2024] WASC 208.

6. Barrett involved an appeal against sentences imposed with respect to multiple offences, including two counts of assaulting police officers on the same day, one of whom was bitten and the other kicked.  The sentencing magistrate below had imposed a term of 9 months imprisonment for the assault, taking the form of a bite, and 3 months imprisonment in the context of the assault, being the kick, the latter having been reduced from 6 months for totality reasons.

7. On appeal, Whitby J found error with respect to a factual finding by the magistrate and accordingly re-exercised the sentencing discretion.  In doing so, her Honour reduced the sentence imposed with respect to the bite from 9 months' direct imprisonment to 5 months' direct imprisonment. 

8. I note that in the course of her reasons Whitby J, among other things, concluded that given the seriousness of the offences, 'the option of suspending the term of imprisonment is not open'.[33]

   [33] Barrett v Director of Public Prosecutions [2024] WASC 208 [67].

Disposition

1. The substance of the appellant's complaint is that the learned trial magistrate ought to have wholly suspended the term of imprisonment imposed upon him, or alternatively ordered some period of less than 5 months be served directly. 

2. The respondent properly and appropriately accepts that the appellant had many positive matters in his favour, including his young age and positive antecedents. 

3. That said, it remains the case that the appellant's offending was objectively very serious.

4. The appellant persistently interfered with the police in their attempts to arrest his uncle. 

5. While doing so, and while appreciating that the assaults occurred within a very short space of time, the appellant punched a junior slightly built female officer in the face with sufficient force to knock her to the ground, causing her to be in pain for a week.  He punched another officer to the face with sufficient force to chip his tooth, causing him pain and swelling.  He then punched a third officer to the face between five to eight times, causing him pain, swelling and ringing in his ear.

6. Having struck the one officer and knocked her to the ground, the appellant did not desist from his offending but instead assaulted the second officer. 

7. And having then struck that second officer to the face and causing him to stumble, the appellant went on to strike the third officer in the face a number of times.

8. In McCormick, Tottle J by reference to appellate authority:

   (1)emphasised the importance of general deterrence in cases of assaults of public officers and noted that the mitigating antecedents of offenders will usually play a lesser role in such cases;[34] and

   (2)noted the need to protect public officers from assaults by demonstrating through the sentencing process that such assaults will not be tolerated.[35]

   [34] Quirk v The State of Western Australia [2019] WASCA 76 [58]; Ashworth v The State of Western Australia [2006] WASCA 36 [98]; Green v The Queen [1995] WASCA 139.

   [35] The Queen v Leucus [1995] WASC 151; (1995) 78 A Crim R 40 [3].

9. As noted earlier, 'the safety of police officers lawfully carrying out their duties is a matter of primary importance, and that the courts regard attacks on police as a grave breach of the law which generally attracts a custodial sentence'.[36]

   [36] Quinn v The State of Western Australia [2006] WASCA 99 [19] (McLure JA, Roberts-Smith and Buss JJA agreeing).

10. In my view, it is difficult to quibble with the proposition that the learned trial magistrate carefully and appropriately balanced all relevant sentencing considerations before imposing the sentence which her Honour did.

11. Regrettably, as compelling as the appellant's mitigating factors were, and as impressive as his antecedents remain, I do not consider those circumstances place this case into a 'special category' such as should lead to a conclusion that imposing a direct custodial term, as part of an overall sentence, was so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.

12. Let alone given the number of assaults which occurred, the form which they took, and the need for general deterrence against offending of this nature.

13. Nor for that matter do I consider the immediate context in which the assaults occurred ought to lead to such a conclusion. 

Conclusion

1. In all the circumstances, I consider the appellant's ground of appeal enjoys no reasonable prospect of success and that the appeal should accordingly be dismissed. 

2. There will be orders as follows:

   (1)The appellant be granted an extension of time within which to appeal.

   (2)Leave be granted to the appellant to amend his ground of appeal in accordance with his application filed 11 October 2024.

   (3)Leave to appeal be refused.

   (4)The appeal be dismissed.

3. There will be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JR

Associate to the Judge

16 OCTOBER 2024