Devos v Raper
[2006] WASC 167
•11 AUGUST 2006
DEVOS -v- RAPER [2006] WASC 167
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 167 | |
| 11/08/2006 | |||
| Case No: | SJA:1072/2006 | 28 JULY 2006 | |
| Coram: | McKECHNIE J | 28/07/06 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part Sentences made concurrent | ||
| D | |||
| PDF Version |
| Parties: | RYAN GARRY DEVOS JAMIE KENNETH RAPER |
Catchwords: | Criminal law Assaults on police Immediate sentence of imprisonment Whether one transaction |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
JAMIE KENNETH RAPER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MR T J MCINTYRE
File No : MH 1304 of 2006, MH 1305 of 2006, MH 1306 of 2006, MH 1307 of 2006, MH 1308 of 2006, MH 1309 of 2006
Catchwords:
Criminal law - Assaults on police - Immediate sentence of imprisonment - Whether one transaction
(Page 2)
Legislation:
Nil
Result:
Appeal allowed in part
Sentences made concurrent
Category: D
Representation:
Counsel:
Appellant : Mr A E Monisse
Respondent : Ms M J Michalka
Solicitors:
Appellant : George Christou
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 McKECHNIE J: On 26 January 2006 the appellant was charged with 3 counts of assaulting a public officer, 3 counts of obstructing a public officer and 1 count of disorderly conduct.
2 On 15 June 2006 the appellant pleaded guilty to all the charges and was sentenced as follows:
• 3 charges of obstructing a public officer – 3 months' imprisonment to be served concurrently.
• Assaulting Police Officer Raper – 9 months' imprisonment cumulative.
• Assaulting Police Officer Bond – 4 months' imprisonment cumulative.
• Assaulting Police Officer Upton – 4 months' imprisonment cumulative.
3 The appellant was therefore sentenced to a total of 17 months' imprisonment with eligibility for parole.
4 On 13 July 2006 the appellant lodged an appeal notice and an application for an urgent appeal order.
5 On 28 July 2006 at the conclusion of argument I granted leave to appeal, allowed the appeal and varied the sentence to one of 9 months' imprisonment by directing that all sentences be served concurrently. I said that I would publish my reasons later and these are the reasons.
6 On Australia Day this year things got out of hand at Dotties Beach, Halls Head Parade, Halls Head. Police were called to a disturbance where there was a group of 300 to 400 people gathered celebrating Australia Day. A fight had developed between two people and a large crowd of about 100 youths surrounded the fight. The appellant was toward the front of the crowd and was yelling and swearing in an attempt to incite the crowd to turn violent towards the police. When Constable Raper arrested the appellant for disorderly conduct the appellant pushed away and ran through the crowd. A few minutes later the appellant grabbed Constable Bond in a headlock while Constable Bond was talking to another member of the crowd. He threw him to the ground and then ran into the crowd. Constable Raper followed the appellant and arrested him again. The appellant struggled with Constable Raper breaking free by pushing his forearm and then, while Constable Raper had his attention diverted, the appellant struck him with a clenched fist to the side of his face. Constable Upton ran towards the appellant and was struck by the appellant on the
(Page 4)
- right shoulder causing him to fall to the ground. The appellant ran into the crowd to evade police. The appellant tripped and swung violently striking Constable Upton's legs causing him to again fall to the ground. The appellant was finally subdued with OC spray and taken to the Mandurah Police Station. Although the injuries sustained by the officers were not serious the prosecutor correctly noted "police officers are not punching bags" and that "this was a cowardly assault".
7 Counsel for the appellant gave by way of explanation the excessive alcohol the appellant had consumed, heat, and no food. Counsel made a comprehensive plea in mitigation advising the Magistrate of the appellant's personal details including the fact that he was an apprentice and that he had now moved to the Northern Territory. It was said that he has not drunk alcohol since the time of the offences at Mandurah. The appellant had written three letters of apology to the police officers. The appellant, who is 22 years old, has a poor criminal history and had been previously convicted of a number of assaults. He owes $5479 to the Fines Enforcement Registry.
8 Counsel submitted that a combination of a heavy fine and a suspended sentence would have been appropriate.
9 In sentencing the Magistrate characterised the offending as "way beyond the simple defiance of authority. Yours was a deliberate and sustained violence, including punching a uniformed officer to the face when he was distracted by others". The Magistrate acknowledged the appellant was entitled to a discount because of the plea of guilty and the fact that the appellant had never been to prison before, that he had written a letter of apology and realised the serious nature of his offending. After passing the sentences detailed earlier, he said:
"In relation to all of the three counts of obstructing the public officer you're sentenced to 3 months imprisonment and those sentences will be concurrent, that is the three sentences imposed with effect to obstruction, as I said earlier, there were three distinct assaults, the total sentence needs to reflect all of the circumstances. The two sentences of 4 months are cumulative on each other and cumulative on the 9 months, so you are sentenced to a total of 17 months' imprisonment, you'll be eligible for parole."
(Page 5)
The grounds of appeal
10 Each ground is properly particularised as follows:
"1. The learned magistrate erred in law by failing to consider the penultimate sentencing option of a suspended sentence.
2. The sentence was excessive – the learned magistrate should have imposed a lesser sentence, particularly one of suspended imprisonment.
3. The learned magistrate erred in law by imposing cumulative terms for the assault of public officer charges when these offences were part of the one transaction and should have attracted concurrent terms."
- The third ground was added by leave at the hearing.
Ground 1
11 I can briefly dispose of ground 1. The Magistrate who was very experienced and had earlier said that he was well aware of the hierarchical nature of sentencing said specifically:
"I need to consider then whether a sentence of imprisonment suspended or otherwise is appropriate in all the circumstances… I've determined on consideration of all the issues that the only sentence that is appropriate is a sentence of imprisonment which will be served immediately".
12 The Magistrate clearly considered and rejected the option of a suspended sentence.
Ground 2
13 The particulars this ground are as follows:
"The learned sentencing judge should have imposed a lesser sentence given the:
(a) nature of the Appellant's offending behaviour; and/or
(b) mitigating factors personal to him including his youth, Guilty plea and current employment training."
(Page 6)
14 The factors in ground 2(b) are relevant. The Magistrate took them into account in making a substantial discount on the sentence he would have otherwise imposed.
15 The Magistrate noted that in relatively recent amendments "Parliament increased penalties for assaults on public officers".
16 On the facts as outlined to the Court, and accepted by the appellant, this was a series of assaults on police officers carried out in circumstances where the police were having to deal with a large and unruly crowd. It is the sort of behaviour which is unfortunately all too common as part of the celebrations of our national day. Be that as it may, the seriousness of the conduct meant that a term of imprisonment to be immediately served was clearly open to be imposed and in doing so the Magistrate's discretion did not miscarry.
Ground 3
17 All the charges arose out of one event separately in a relatively short period of time involving the same criminal behaviour by the appellant. The injuries suffered were not so significant as to require a separate denunciation of the conduct against different legally protected interests. In accumulating the sentences for what was one transaction the Magistrate erred in principle. It is for this reason that I allowed the appeal and directed that all the sentences be served concurrently. Necessarily, because the sentence is now less than 12 months eligibility for parole falls away.
0
0
1