Doolan v Chokljat

[2007] TASSC 73

[2007] TASSC 73

CITATION:                 Doolan v Chokljat [2007] TASSC 73

PARTIES:  DOOLAN, Colin John
  v

CHOKLJAT, Acting Sergeant Katrina

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 290/2007
DELIVERED ON:  12 September 2007
DELIVERED AT:  Launceston
HEARING DATE:  4 September 2007
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Sentence of imprisonment – Whether manifestly excessive – Destroying property – Assaulting a police officer.

Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  E G Hughes
             Respondent:  J P Ransom
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2007] TASSC 73
Number of paragraphs:  19

Serial No 73/2007

File No LCA 290/2007

COLIN JOHN DOOLAN v ACTING SERGEANT KATRINA CHOKLJAT

REASONS FOR JUDGMENT  CRAWFORD J
  12 September 2007

1. The applicant seeks to have reviewed a sentence of six months' imprisonment and a 12 month probation order, imposed by a magistrate, Mr P H Wilson, on 7 June 2007.  The sole ground is that the sentence was manifestly excessive.  No complaint is made concerning the probation order.  It is the imprisonment which is attacked.

1. The sentence imposed was a global one for eight offences.  The applicant pleaded guilty to five counts of destroying property, contrary to the Police Offences Act 1935, s37(1), and one count of being in unlawful possession of a dangerous article in a public place, contrary to s15C(1). He pleaded not guilty to one count of assaulting a police officer, contrary to s34B(1)(a)(i), and one count of threatening a police officer, contrary to s34B(1)(b). Following a defended hearing, those two charges were found proved.

1. At about 10pm on Thursday, 24 August 2006, the applicant was running along Cimitiere Street, Launceston, coming from the direction of St John Street and heading towards Charles Street.  He was on the road outside the rear of the police station.  He had a hammer in his hand.  As he passed five parked vehicles he smashed their windscreens with the hammer.  Two police officers were in a car park on the other side of the street.  They ran towards him, identifying themselves as police officers and calling on him to stop and not to move.  He turned towards one of them and swung the hammer twice in the direction of his head and face.  He was within striking distance, but the officer avoided being hit by moving backwards and to the left.  There was evidence that if he had not done so, he would have been hit in the head by the hammer.  The applicant yelled a number of times, in a high pitched scream, "leave me alone or I'll kill you".  He tried to run away but was eventually arrested by the police officers with the assistance of OC spray and handcuffs.

1. He had smashed the windscreens of five out of eight vehicles parked in the street outside the police station.  A couple were owned by police officers and one by Fleet Australia.  The value of damage to one was $204.40 and to another $230.  The value of damage to the other three vehicles was not stated. 

1. The applicant's reason for committing the offences was not altogether clear.  In a plea in mitigation, his counsel said that the events were triggered by a nightmare that was related to an incident as a child, when he was a victim of abuse.  One of his problems was that he had made efforts to have those responsible for what was perpetrated against him as a child brought to justice by being prosecuted, but he had not been successful in achieving that end and that frustrated him.  His counsel said that he had smashed the vehicles as an expression of frustration, rather than anything more. 

1. The magistrate called for a pre-sentence report.  The applicant told the probation officer that after waking from a "flash-back nightmare of being molested, he became angry and frustrated with the apparent inability of the Police to take action in relation to the incidents" which he claimed occurred to him when he was a child.  He proceeded to Launceston Police Headquarters "in that state of mind" and began to smash the windows of the motor vehicles. 

1. In about 2004, a restraining order was made against him for the purpose of protecting his mother from him.  On 31 August 2004 he breached a condition of that order and was in custody for nearly two months.  He was admitted to the Risdon Prison Hospital and appeared to be suffering from psychotic symptoms and substance dependency.  On admission he was suspicious and guarded and would not come forth with much information, except to express anger at the police who had served an order on him for breaching the restraint order.  He claimed that there was nothing wrong with him and that he was quite convinced about his allegations that his mother molested him.  He was fixated about it and when asked why he had only made his allegations recently and not before, he said that they were under the surface.  He had a history of abuse of substances including alcohol, marijuana and amphetamines.  Following medication, he was released on 26 October 2004, when for breach of the restraint order and unlawful possession of marijuana, he was sentenced to two weeks' imprisonment which was suspended for 12 months on a condition of good behaviour. 

1. On receipt of the pre-sentence report, the magistrate decided that he should seek an up-to-date report concerning the mental state of the applicant.  A report of a psychologist at Forensic Mental Health Services was provided on 5 June 2007.  The probation officer's report had stated that the defendant, as a child, was a misfit in a dysfunctional family and the psychologist's report confirmed that.  The applicant told the psychologist that he had previously made a complaint to police regarding abuse that had been perpetrated on him by his mother, that no action was taken, that the police did not believe him, that he felt ridiculed and upset, and that he was angry at the time of the offences.  It was in about August 2004 that he had begun to confront his mother with allegations of the abuse, as a result of which the restraint order was made to protect her from him.  He asserted that on the night of these offences, he experienced a nightmare similar in form to previous nightmares, with recurring themes relating to the alleged abuse.  He woke up upset, sat in front of a television for a few minutes and then went off to where he committed the offences.  The psychologist reported that with prompting, he stated that he wanted the police to take notice of him and wanted to seek revenge.  He took with him his own hammer and walked approximately four or five kilometres to Cimitiere Street.  When asked how the offences would indicate any particular message to the police, he was sheepish and stated that while at the time it made sense, he now could not explain his actions and could only see it as an act of desperation.  The psychologist reported that "it is not clear why Mr Doolan's course of action resulted on this particular occasion, nor why a walk of '4 or 5 kilometres' to the police station from his house was not enough time to re-think his chosen course of action".

1. The psychologist also reported that information from Correctional Health Service files indicated that in 2004, the applicant was actively psychotic for a period and that a psychiatrist, who treated him after his release from custody, diagnosed him as suffering mild psychosis relating to cannabis use. 

1. Significantly for the magistrate the psychologist reported:

"At the time of interview Mr Doolan was mentally well and showed no symptoms of mental illness, and was not taking medication.  He stated that he was not using illicit substances before the offences.  It is likely that previous substance use has resulted in changes in Mr Doolan's mental state, and collateral information would be useful with regard to substance use before the commission of the current offences.  While mental illness does not appear to have played a role in the current matters, it may be the case that substance use has contributed to the current offences in that it is likely to have increased what may be quite distorted views regarding previous events."

1. The applicant's counsel said that he was 31 years of age, single and had no dependents.  He was educated to Year 10.  He was in receipt of a Newstart Allowance of $480 per fortnight.  For two years he had been enrolled with Anglicare in a disability support program, which was designed to equip him with communication skills and an ability to enter the workforce.  His counsel said that he had a good history of working in the labouring industry, including as a trades assistant, builder's labourer and plant and equipment operator, since leaving school. 

1. His record reveals that in South Australia in 1991, when he was aged about 15 or 16, he was dealt with in children's courts for about nine offences of dishonesty and one of damaging property.  In Queensland, in 1992, when he was aged 17, he was fined for an assault occasioning bodily harm and in the following year, when aged 18, for stealing.  In 1996 he was fined and disqualified from driving for dangerous driving and was also dealt with for other traffic related offences between 1995 and 1997.  The only other offences on his record were the breach of the restraint order and possession of marijuana in 2004. 

1. The learned magistrate referred to the psychologist's report when he commenced to sentence the applicant:

"Well that report was critical to my disposal of this matter.  It indicates that you were not suffering any mental illness and the likelihood of substance use as key factor in changes in your mental state and as a possible key factor in committing these offences is high it is said.  So that there is no mental illness which was significant. 

The charge of assault in particular with the hammer is a serious and significant matter.  You were running along Cimitiere Street here at night with a hammer, smashing car windscreens, because of your history and your complaint the police were not taking you seriously in pursuing a matter you had which had arisen from your childhood experiences.

Const Lynch that when he was pursuing you he identified himself as a police officer and that you then turned towards him and swung the hammer twice in the general direction of his head and face yelling, 'Leave me alone or I'll kill you', as you did it.  Const Clark, – well he went on to say that as the hammer came towards he was within a metre, certainly definitely within striking distance, this is you were within a metre, definitely within striking distance of the officer's head.  He said he avoided it by moving backwards and to the left. 

Now Const Clark said that the hammer was 50 centimetres to a metre from Const Lynch when it was swung at him and it caused Clark great concern.  He said, 'I know that Const Lynch had propped because he didn't want to be hit.  If he hadn't stopped he would have been hit most likely in the head'. 

So that apart from damaging the windscreen of numerous vehicles, smashing them with this hammer, that assault and that threat to kill were serious and very significant matters. 

The reports I have indicate that you need a degree of personalised treatment but this sort of offence, in particular the assault and the threat, are offences deserving of a penalty by way of both personal and general deterrence.

Upon the complaint as a whole you are convicted and sentenced to a term of 6 months' imprisonment.  That will commence from the date you were remanded in custody, being the 22^nd March. I also make a probation order which will be supervised. That will commence immediately upon your release from prison. It will continue in force for 12 months thereafter and it will contain all the usual conditions which will be explained to you by your probation officer, together with certain special conditions which I will, let me see, yes special conditions under the provisions of section 37 of the Sentencing Act. Those conditions will be those under 37(2)(a)(b)(c) and (d) of that Act, which relate to attendance for treatment alcohol or drug dependency and testing for samples of any substances being in your body and so forth."

1. Counsel for the applicant referred to Professor Warner's Sentencing in Tasmania (2^nd ed) at 388 – 390, in support of an argument that the sentence was manifestly more severe than the usual sentence for assault in the magistrates court.  The material is of no assistance for a number of reasons.  Firstly, the tables of sentences relied on by counsel were based on single-count sentences only.  The applicant was sentenced globally for eight offences.  Secondly, prescribed penalties for assaulting a police officer and threatening a police officer have been substantially increased since the publication of Professor Warner's book.  Thirdly, the range of penalties appropriate for offences of the kind committed by the applicant should be regarded as extremely broad, because the gravity of the offending varies so much from case to case. 

1. His counsel appeared to argue that because he was frustrated by the failure of the police to prosecute his mother, he was entitled to leniency.  That argument is entitled to little weight.  People commit offences for a variety of reasons.  Courts should be careful before accepting that a perception by an offender of justification for an offence is a mitigatory factor.  Further, the failure of the police to prosecute his mother could not justify, in any sense, the smashing of the windscreens of cars parked in the street, and the assault on the police officer and the threatening of the police officers were not committed for any reason other than to prevent his apprehension. 

1. It was also submitted for the applicant that the psychologist's report reveals that, in part, the applicant was acting psychotically.  That is not correct.  The report states that mental illness played no role, although it accepts that the applicant's abuse of substances may have increased what may have been distorted views of previous events, contributing to the commission of the offences in a way. 

1. Counsel for the applicant submitted that the applicant was entitled to a personalised sentence, by which was meant one more lenient than might usually be the case because of the circumstances that are peculiar to the offender.  The learned magistrate expressly recognised that the reports suggested a need for "a degree of personalised treatment" but considered nevertheless that the offences, particularly the assault and threats against the police officers, required sentences of personal and general deterrence.  That was not erroneous. 

1. The damaging of the windscreens was premeditated and totally unjustified.  The offences against the police officers were committed for the purpose of avoiding apprehension.  He is not entitled to the benefit of mitigation through pleading guilty to the assault and threat, for he did not do so.  Although elements of his character and circumstances excite some pity and might justify some degree of leniency, I am not persuaded that the sentence was manifestly excessive.  Only two years previously his liberty was taken from him because he breached a restraint order.  He must have been well aware, and he certainly ought to have been, that by offending as he did on this occasion he was likely to be imprisoned.  A sentence of both general and personal deterrence was justified.  The sentence was not so clearly severe as to be erroneous.  The motion to review the sentence will be dismissed.

1. A very wide discretion is entrusted by law to magistrates.  On a motion to review, the question for the reviewing judge is not whether the judge would have imposed a different sentence.  The sentence must have been so manifestly excessive or inadequate that it is only explicable upon the view that the magistrate erred in some way.  Whittle v McIntyre [1967] Tas SR (NC 6).  That a shorter sentence of imprisonment or less severe sentence might have been within the magistrate's discretion, is not alone sufficient to justify disturbing the sentence.  Miller v Visser 32/1988 at 11.