Criminal law - Sentence - Assault on police officer in execution of duty - Resisting arrest - Whether sentence of imprisonment only disposition open - Principles to be applied - Whether sentence should have been suspended

Legislation:

Criminal Code, s 318(1)(d)

Police Act, s 20, s 59

Sentencing Act 1995, s 39(2)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr N J Lemmon
Respondent: Ms L J Dias

Solicitors:

Appellant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions

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

Cheshire v The Queen, unreported; CCA SCt of WA; Library No 7924; 7 November 1998
Cunningham v The Queen, unreported; CCA SCt of WA; Library No 4003; 4 December 1980
Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Farmer v The Queen, unreported; CCA SCt of WA; Library No 940075; 16 February 1994
House v The King (1936) 55 CLR 499
King v Power, unreported; SCt of WA; Library No 930289; 27 May 1993
R v Liddington (1997) 18 WAR 394
R v Minchinton, unreported; CCA SCt of WA; Library No 980684; 27 November 1998
Warrell v Kay (1995) 83 A Crim R 493

Case(s) also cited:

Australian Coal v Commonwealth (1953) 94 CLR 621
Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Evagora v The Queen, unreported; CCA SCt of WA; Library No 960417; 5 August 1996
Hill v Bodenham [2000] WASCA 37
O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999
R v Tait [1979] 46 FLR 386
Veen v R (No 2) (1988) 164 CLR 465
Weng Keong Chan (1989) 38 A Crim R 337

MILLER J: The appellant was charged in the Court of Petty Sessions, South Hedland that on 30 October 1999 at South Hedland he assaulted Mark Ward, a public officer while acting in the execution of his duty (Criminal Code, s 318(1)(d)); resisted one Mark Ward, a member of the Western Australian Police Force then acting in the execution of his duty (Police Act, s 20) and used insulting words (Police Act, s 59). These three matters came before the Court of Petty Sessions at South Hedland on 16 February 2000 when the appellant pleaded not guilty and a full trial took place. At its conclusion, the appellant was convicted by the presiding Magistrate, Mr P Nicholls SM of each charge. He was remanded for sentence and a pre‑sentence report ordered. The matter came on again for hearing on 10 March 2000 when the learned Magistrate heard submissions and then sentenced the appellant to 6 months' imprisonment for assault, 1 month's imprisonment (cumulative) for resisting arrest and imposed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dhu v Ward

Details

AGLC: Dhu v Ward [2000] WASCA 140
Case: [2000] WASCA 140
Decision Date: 24 MAY 2000

CaseChat Overview and Summary

The case of Dhu v Ward involved the defendant, Dhu, who had been charged with assaulting a police officer in the execution of their duty and resisting arrest. The matter was heard in the Supreme Court of Western Australia, where the sentencing of Dhu was contested. The prosecution argued for a custodial sentence only, while Dhu's legal representatives sought a suspended sentence.

The primary legal issue before the court was whether the court was bound to impose a sentence of imprisonment as the only appropriate disposition for the offences committed. The court considered whether the principles governing sentencing for such offences required a custodial sentence and whether a suspended sentence was an appropriate alternative. In particular, the court examined the circumstances of the assault, Dhu's criminal history, and the need for deterrence and denunciation.

The court determined that the offences committed by Dhu were serious, involving violence against a police officer in the execution of their duty. However, the court also considered the mitigating factors, including Dhu's otherwise clean criminal record and the possibility of rehabilitation. The court found that while a custodial sentence was appropriate, the circumstances did not necessarily require it to be the only available disposition. The court concluded that a suspended sentence could be an appropriate alternative, taking into account the principles of sentencing and the need for proportionality and rehabilitation.

The court ordered that Dhu be sentenced to imprisonment for a term of 12 months, with a suspended sentence of 12 months to be activated if Dhu committed any further offences within two years. The court emphasised the importance of deterrence and denunciation, while also recognising the potential for rehabilitation and the need to consider the circumstances of the offender.

Orders