Browne and Wicks v Fischer

[1994] QCA 152

IN THE COURT OF APPEAL [1994] QCA 152

SUPREME COURT OF QUEENSLAND

C.A. No. 63 of 1994

Brisbane

[Browne v. Fischer]

ROWLAND GRAHAM BROWNE

and DAVID JOHN WICKS

v.

GLENN ANDREW FISCHER

(Applicant)

The President
Mr Justice McPherson

Mr Justice Byrne

Judgment delivered 17/05/1994

Judgment of the Court

O rder that:

In respect of the offences of assault occasioning bodily harm and of assaulting a police officer acting in aid of a police officer acting in the execution of his duty, leave to appeal is granted, the appeal is allowed, the sentences imposed in respect of those two offences are set aside and in lieu thereof it is

o rdered that:

(i)for each of those offences the applicant be sentenced to imprisonment for three months, the sentences to operate concurrently; and

(ii)in respect of both those convictions, the applicant be subjected to probation for two years commencing on 28 February, 1994 on terms that he:

(a)not commit another offence during that period;
(b)report to an authorised Commission Officer at Brisbane within 48 hours of his being released at the end of his imprisonment;
(c)report to and receive visits from an authorised

Commission Officer as directed by the Officer;

(d)take part in counselling, and satisfactorily attend, other programs as directed by the Court or by an authorised Commission Officer during the period of the order;

(e)notify an authorised Commission Officer of every change of his place of residence or employment within two business days after the change happens;

(f)not leave or stay out of Queensland without the

permission of an authorised Commission Officer; and

(g)comply with every reasonable direction of an authorised

Commission Officer.

The period of 15 days spent in custody between 28 February and 15 March, 1994 is to be treated as imprisonment already

s erved under the sentence of three months imprisonment.

Convictions are to be recorded in respect of those offences

f or which terms of imprisonment are imposed.

Otherwise the application for leave to appeal against

s entence is refused.

A warra nt is to issue for the applicant's arrest.

CATCHWORDS: CRIMINAL LAW - sentence - whether sentence manifestly excessive - whether custodial or non-custodial sentence appropriate - whether timely guilty pleas were given credit by the Magistrate - application of s.13(3) Penalties and Sentences Act 1992.

Counsel:	Mr J Farmer for applicant Mr P Rutledge for respondent
Solicitors:	Legal Aid Office for applicant Director of Prosecutions for respondent

Hearing Date:09/05/1994

REASONS FOR JUDGMENT OF THE COURT

Judgment Delivered: 17/05/1994

On 28 February the applicant was convicted in the Brisbane Magistrates Court of offences committed in an affray. He admitted to four offences: assault of a police officer (Browne) occasioning bodily harm, wilfully damaging Browne's police shirt, assaulting another police officer (Wicks) acting in aid of Browne, and disorderly conduct.
The applicant was sentenced to concurrent terms of six months imprisonment for the assaults on the two police officers.
His other convictions each attracted sentences of one month's imprisonment. The sentences relating to the indictable offences, which are those which now concern us, are said to be manifestly excessive.
At about 2.50 a.m. on 12 February 1994, Browne and Wicks were on foot patrol at Morningside. As they approached the driveway of a service station across from the Colmslie Hotel, they saw a crowd which had gathered as the applicant fought with another young man. The police officers approached the group and separated the applicant from his opponent. Browne took hold of the applicant's left arm. Moments later the applicant ripped Browne's shirt. Then he started punching Browne and struggling with him. Browne was knocked to the ground where he was attacked by the applicant and others. Next the applicant again punched Browne before placing him in a headlock. Browne was held in that grip while the applicant and others struck at him.

In the meantime, Wicks, who had tried to restrain the applicant before the attack on Browne was launched, was occupied with Rhonda Hughes. She was 18 and the applicant's friend. She twice hit Wicks in the chest with a plastic bottle. While coping with that aggression and trying to detain Hughes, Wicks saw Browne attacked and went to help him. As Wicks intervened, the applicant hit out at him, striking Wicks in the chest.

Eventually bystanders and hotel staff helped to contain the violence. When more police arrived, the applicant was taken to a police car. Hughes was put into a van and, as the door closed, she kicked it: it flew open, striking Wicks. She maintained that she was trying to push the door away from her foot rather than intending to hurt Wicks once more.

Wicks sustained bruising over the right eye and to the third and fourth ribs. He also experienced muscle strain in the left shoulder. Browne, who suffered a lot of pain, received multiple bruising: to the forehead, in the region of the jaw, to both sides of the chest, on the left shoulder, and to both knees.
The offences were not the applicant's first brush with the criminal law. In 1991, he was fined for a minor drug offence. In July 1993, he was ordered to perform community service for breaking and entering a place with intent to commit an indictable offence. These prior convictions told a little against leniency.

Many considerations would, of course, have inclined the Magistrate towards a non-custodial sentence, especially that the applicant had pleaded guilty, was 20 years old, did not use a weapon, and that the offences were not premeditated. Taken together with a general reluctance to send young people to prison, those factors favoured sentences which would have allowed the applicant to remain in the community. But other considerations deserved weight. The assaults involved sustained and humiliating violence against police officers attempting to restore order in challenging circumstances. The protracted and brutal nature of the offences must have caused the Magistrate to reflect upon the importance of both personal and general deterrence.

There was a deal to be said for sentences which would have permitted the applicant to remain at liberty. However, the need to mark the community's disapproval of multiple acts of violence against police officers carrying out their duties, and the need to discourage the applicant and others from committing similar offences, are of such significance that the Magistrate was justified in imposing a custodial sentence.

The sentences, however, can be seen to be too long once appropriate allowance is made for the remorse apparently reflected in the guilty pleas and for the resultant savings in public resources. It looks as though the Magistrate forgot to give credit for the timely pleas. Certainly he did not say that he had taken them into account - something which should have been said: see s.13(3) Penalties and Sentences Act 1992.
The assaults called for three months imprisonment and a substantial period of probation. Two years probation is likely to be to his and general advantage, and the applicant, we are told, is willing to accept probation as part of his sentence.

The 15 days spent in custody under the sentences will be treated as having been served under the sentences, and the period of probation should commence on the day the Magistrate imposed the sentences.

The sentence for the property offence need not be interfered with.