Bonde v Knowles
[2004] TASSC 143
•6 December 2004
[2004] TASSC 143
CITATION: Bonde v Knowles [2004] TASSC 143
PARTIES: BONDE, Michael
v
KNOWLES, Leigh Patrick
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 6/2004
DELIVERED ON: 6 December 2004
DELIVERED AT: Launceston
HEARING DATE/S: 15 November 2004
JUDGMENT OF: Evans J
CATCHWORDS:
Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Sentence – Assaulting a police officer.
Derrico v McKenna 39/1980; Martin v Manning A61/1973, applied.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: Director of Public Prosecutions
Respondent: G A Richardson
Solicitors:
Applicant: J P Ransom
Respondent: G A Richardson
Judgment ID Number: [2004] TASSC 143
Number of paragraphs: 13
Serial No 143/2004
File No LCA 6/2004
MICHAEL BONDE v LEIGH PATRICK KNOWLES
REASONS FOR JUDGMENT EVANS J
6 December 2004
The applicant appeals against the sentence imposed upon the respondent in respect of charges of assaulting a police officer in the execution of his duty in breach of the Police Offences Act 1935 ("the Act"), s34B(1)(a)(i), using abusive language to a police officer in breach of the Act, s34B(1)(b) and stating a false name and address in breach of the Act, s55A(1). The maximum penalty the learned magistrate could have imposed on the first charge was imprisonment for 12 months or a fine of $1,000, a similar maximum applied to the second charge and a fine of up to $200 could have been imposed on the final charge. The course the learned magistrate took was to deal with the offences on a global basis and, without recording a conviction on any of the offences, he adjourned the proceedings for a period of 12 months on the respondent's undertaking that he would be of good behaviour and not commit any offence of violence or under the Act, s34B, during that period.
The sole ground of appeal is that the sentence was manifestly inadequate.
The respondent was found guilty of the three offences following a defended hearing. The respondent, his brother, Shaun Knowles and Adam Duffy, were jointly charged with these offences following an incident that occurred at about 12.30am on the night of 20 April 2002 in Invermay Road, Launceston. The respondent and four others, including his co-accused, were walking home after an extended period of drinking. Some of the group were acting in a raucous manner and two of them were holding stubbies of beer. The respondent was substantially intoxicated. As a police officer, Sergeant Michael Gillies, drove by the group the respondent yelled loudly at him, "fuck off you cunt". Sergeant Gillies parked his police vehicle and approached the respondent. As the sergeant passed through the group he was threatened with violence. When he spoke to the respondent, the respondent was aggressive and uncooperative. In response to the sergeant's requests for his name the respondent on two occasions gave a false name. The sergeant told the respondent that he would be arrested if he would not provide his correct name and address and the respondent refused to do so. Thereupon the sergeant arrested the respondent, they grappled and fell to the ground. Others became involved in their altercation. The respondent's brother, Shaun, and Adam Duffy tried to pull the sergeant from the respondent. The sergeant regained his feet and whilst continuing his struggle with the respondent radioed for assistance. The radio was then knocked from the sergeant's hand and taken away by Shaun Knowles. The sergeant's struggle with the respondent was fierce and vigorous and in the course of it the sergeant was jostled and thrown about. He and the respondent exchanged blows and the respondent punched and kicked the sergeant and gouged him in the vicinity of the eye and the cheek.
In response to Sergeant Gillies' call for assistance, in all, four police officers arrived at the scene. Upon the arrival of the first of these officers the respondent was subdued and handcuffed.
Following the struggle Sergeant Gillies was left with a crescent shape cut to his right cheek that appeared to have been caused by a fingernail and lacerations to his nose and bottom lip. The right pocket of the sergeant's shirt was ripped off and two of its buttons were pulled off.
Information put before the learned magistrate in the course of the sentencing hearing was that the respondent:
·had no relevant prior convictions, his only convictions being two traffic offences;
·was a self-employed contractor with a good work record;
·was a caring and supportive father of one child; and
·enjoyed the support and trust of a number of people who provided the court with references as to his character.
In explaining his decision not to convict the respondent of any of the offences and adjourning the proceedings for 12 months on the conditions already mentioned, the learned magistrate in substance said that:
·the assault was not a concerted attack but "bravado in an endeavour to get away";
·the offences were not pre-meditated and were out of character;
·the sergeant's injuries were not severe; and
·in view of the respondent's excellent prospects the course that should be taken was one that provided for his rehabilitation.
The learned magistrate made no reference to the significance of the respondent's primary offence, that is, assaulting a police officer in the execution of his duty, and the considerations confronting a sentencer when dealing with such an offence. In Derrico v McKenna 39/1980, Green CJ said of this offence:
"Offences of this kind must be regarded seriously and a court imposing a sentence in respect of them should be mindful of the fact that the work of police officers frequently exposes them to the risk of violence and should impose sentences which vindicate and reinforce the authority of police officers as the executive agents of the law. However, those considerations do not involve the consequence that the usual principles of sentencing do not apply to such offences, nor that in such cases a court which is considering sentence is relieved of its obligation to consider the particular circumstances of each individual offender and of each offence."
The respondent's conduct was not premeditated and was out of character. However his assault on the sergeant in the execution of his duty was a serious offence. Although his initial reaction to being arrested was spontaneous he persisted with his gross over-reaction for an extended period. He did not desist until the first of the police officers who responded to the sergeant's call for assistance arrived at the scene and overpowered him. The offence occurred in a public place in the presence of four of the accused's associates and at least one passer-by. To assault a police officer in these circumstances is a public challenge to the authority of that office. Again, in these circumstances, there is a likelihood that others will become involved in the assault (as in fact occurred), and that the episode may escalate dangerously out of control. It was incumbent on the learned magistrate to deal with the respondent in a manner that recognised the risks police officers are exposed to and vindicated and reinforced their authority. In failing to do so the learned magistrate erred in principle and that being so, notwithstanding that this is a prosecution appeal, it should be allowed.
Counsel for the respondent, Mr Richardson, submitted that in the event that I concluded the learned magistrate had erred I should in any event not allow the appeal as his error flows from the prosecutor's failure to provide adequate assistance to the learned magistrate on sentencing the respondent. Mr Richardson relied on the following passage from the decision of Brennan, Deane and Gallop JJ in R v Tait and Bartley (1979) 24 ALR 473 at 477:
"Although the existence of error is the common ground which entitles the appellate court to intervene in appeals by the Crown and by a defendant (cf R v Butler [1971] VR 892; R v Liekefett; Ex parte Attorney-General [1973] Qd R 355), there would be few cases where the appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error ..."
After publishing extensive reasons for finding the respondent guilty of the three offences the learned magistrate adjourned the sentencing hearing to a later date. On the resumption of the hearing the prosecutor tendered the respondent's prior convictions and made no submissions. Mr Richardson in substance submits that the learned magistrate's failure to address the considerations to which I have referred when sentencing the respondent can be attributed to the prosecutor's failure to refer the learned magistrate to those considerations and the relevant facts. I reject this submission. As observed by Green CJ in Martin v Manning No A61/1973 at 5:
"The principle that sentences for offences of this kind (assaulting a police officer in the execution of his duty in breach of the Act, s34B(1)(a)(i)) should be designed to reinforce or vindicate the authority of police officers has been affirmed by this court on many occasions."
Almost invariably, the first point of reference when sentencing in this State is Professor Warner's text, Sentencing in Tasmania 2 ed The Federation Press 2002. At par11.314 Professor Warner notes:
"In sentencing for assault of a police officer or resisting arrest, the policy of the courts is that the sentence should vindicate and reinforce the authority of the police and provide some measure of protection against offenders who will not accept their authority."
This policy being well recognised there was no occasion for the prosecutor to remind an experienced magistrate of it. As the learned magistrate had published extensive reasons for finding the respondent guilty of the charges, there was no reason for the prosecutor to reiterate those findings to the learned magistrate in the course of the sentencing hearing. There was no basis for the prosecutor to contemplate that the learned magistrate did not have all relevant matters in mind referable to the sentencing of the respondent. I am accordingly unpersuaded that the prosecutor failed to do anything that was reasonably necessary to assist the learned magistrate.
The appeal is allowed and the order of the learned magistrate adjourning the proceedings for 12 months on the respondent's undertaking that during the period he would be of good behaviour and not commit any offence of violence or under the Act, s34B, is quashed. I will resentence the respondent rather than resubmit the matter to the Court of Petty Sessions. The respondent is convicted in respect of each offence and I impose a global fine of $500 in respect of the offences.