Dunford v Fletcher
[1991] TASSC 154
•9 August 1991
Serial No B40/1991
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Dunford v Fletcher [1991] TASSC 154; B40/1991
PARTIES: DUNFORD
v
FLETCHER
FILE NO/S: LCA 91/1991
DELIVERED ON: 9 August 1991
JUDGMENT OF: Underwood J
CATCHWORDS
Criminal Law—Jurisdiction, practice and procedure — Judgment and punishment — Sentence — Assault against a police officer in the execution of his duty — Principles of sentencing — Proper exercise of sentencing discretion.
Judgment Number: B40/1991
Number of paragraphs: 12
Serial No B40/1991
List "B"
File No LCA 91/1991
DUNFORD v FLETCHER
REASONS FOR JUDGMENT UNDERWOOD J
9 august 1991
About 8.40pm on Friday, 5 July 1991 police officers were called to the St Helens Hotel in Cecilia Street, St Helens. After a conversation with the licensee, the officers approached the applicant who was considerably affected by liquor and running around an 8 ball table with a cue in his hand. The cue was taken off him by a bystander. Sergeant Canning then directed the applicant to leave the hotel. Instead of doing so, the applicant picked up two 8 balls, told the police to leave and threatened to throw one of the balls at them. Upon the police remaining where they were, the applicant threw one of the balls which hit Constable Bonner on the arm. All the police officers then rushed the applicant, forced him back across an 8 ball table and arrested him. After a moment of repose, the applicant turned to Constable Ling who was holding one of his arms and spat in his face. This caused Constable Ling to let go of the arm he was holding and the applicant struggled with the other police officers kicking out with both feet. Finally he was handcuffed and taken in a van to the St Helens Police Station. On the way, he called out to Sergeant Canning who was sitting in the front seat, "Hey Sarg what do you reckon about this" and as the sergeant turned around towards the rear of the vehicle the applicant kicked him in the ear. Further restraint from the other officers in the van was called for. At the police station, the applicant was "removed from the vehicle and had to be dragged towards the police station". While Constable Crichton was unlocking the back door of the station the applicant lashed out with his right foot and kicked Constable Crichton in the lower small of the back. Eventually, the applicant was taken inside the police station, charged and detained.
As a result of those events the applicant appeared in a court of petty sessions held at Launceston on 11 July 1991 and pleaded guilty to one count of failing to leave licensed premises contrary to the Liquor and Accommodation Act 1990, s80(1)(b), one count of recklessly throwing a missile contrary to the Police Offences Act 1935, s13(2) and four counts of assaulting a police officer in the execution of his duty contrary to the Police Offences Act 1935, s34B(1)(a)(i).
Counsel for the applicant appeared in the court below and put matters in mitigation. The learned magistrate was told that the applicant was 27 years of age, came to Tasmania approximately 2 years previously and had worked as a fisherman during most of that time. The learned magistrate was told that the applicant had been unemployed for some considerable period and as a result was in financial difficulties and this caused him some emotional stress. To alleviate this stress he "sought to console himself by the excessive consumption of alcohol". Learned counsel told the sentencing magistrate that the applicant first went to the hotel at 10 o'clock on Friday morning, drank beer, bought a carton of beer and drank most of that at his home during the day. Late in the afternoon he returned to the hotel and drank some rum and coke. He was asked to leave and did so. After a short period at home when he slept the applicant returned to the hotel and was refused service. He was asked to leave. He refused and the police were called. It was put to the learned magistrate that the behaviour, whilst without justification, was motivated more by feelings of internal anger and frustration by reason of his poor financial circumstances than by a desire to defy the authority of the police officers. The learned magistrate was given details of the applicant's financial position and told that he had some prospect of work on a fishing vessel in the very near future.
The applicant had a number of previous convictions. Of significance was a conviction in 1981 in New South Wales for "malicious injury" and, on 12 December 1986, in a Queensland court of petty sessions, convictions for "attempted arson", "cause grievous bodily harm (2 charges)" and "wilful damage". On the latter occasion the applicant was sentenced to terms of imprisonment totalling 2½ years. The record does not disclose whether any of the sentences were ordered to be served concurrently with any other sentence. The learned magistrate was told by counsel for the applicant that the convictions in Queensland in 1986 arose out of the applicant "taking the law into his own hands and severely assaulting a person who had been charged with or was to be charged with raping his girlfriend". The learned sentencing magistrate passed the following comments at the time of imposing sentence:
"Now Mr Dunford I've taken into account what your counsel said on your behalf, but he quite properly has characterised these episodes as serious and the offences as serious. Although I do note that although four individual policemen were assaulted, these assaults all arose out of essentially one set of circumstances, one incident. It's of some concern to me and many other people in the community that these assaults upon police officers and their authority seems to be on the increase and poses a direct attack upon the effectiveness of police officers to discharge their duties. I think the penalty that I need to impose upon you in all the circumstances is one which will deter you and others from committing these kind of offences again, but at the same time the penalty that I impose upon you will provide I think, you with an opportunity of rehabilitating yourself."
The learned magistrate then recorded a conviction upon the count of failing to leave licensed premises and recklessly throwing a missile and a sentence of two weeks' imprisonment on each of the four counts of assaulting a police officer in the execution of his duty. He ordered that the sentences be served cumulatively ie, a total period of 8 weeks' imprisonment.
By the motion to review the applicant seeks a review of the sentences of imprisonment only. However, as those sentences were imposed at the same time as other sentences imposed with respect to matters arising out of one criminal transaction it is appropriate for this Court to consider all of the sentences imposed. I refer to my judgment of McCleod v Middleton 25/89.
The grounds of review are as follows:
"(1)The penalties imposed by the learned Magistrate were manifestly excessive in all the circumstances.
(2)The learned Magistrate erred in law in unduly emphasizing the requirement for the imposition of a deterrent penalty.
(3)The learned Magistrate erred in law in failing to impose a penalty allowing the Respondent an opportunity for rehabilitation."
Upon the hearing of the motion to review counsel for the applicant conceded that grounds 2 and 3 were no more than illustrations of ground 1 and accordingly, in order to succeed, the applicant needs to establish that, in the absence of specific error, the sentences imposed either individually or collectively were so excessive that the sentencing discretion must have miscarried in some undefined way.
With respect to the imposition of sentence for assaults upon police officers acting in the lawful execution of their duty, this Court has, on several occasions, made two things clear:
1A factor of considerable weight in the exercise of the sentencing discretion is the need to reinforce the lawful exercise of authority by police officers and to deter persons who act violently to resist that authority.
2However, this factor does not eliminate the need to take into account all the other matters relevant to the proper exercise of the sentencing discretion.
See O'Donnell v Dakin, Burbury CJ 59/66 (O'Donnell v Dakin (Burbury CJ) [1966] Tas SR 87); Lahey v Edwards, Burbury CJ 46/67; House v Johnson, Neasey J 93/66; Lowe v Gall, Chambers J 45/70; Derrico & Anor v McKenna, Green CJ 39/80.
With respect to the applicant's inebriated condition, correctly it was not submitted that this was a mitigating factor but of course, it indicates the absence of premeditation. See R v Dowie, CCA 41/89 (R v Dowie (CCA) [1989] Tas R 167) and a judgment of mine in Bennett v The Queen, CCA 17/90.
In this case, it cannot be said that the offences are out of character. Cf Gray v Strickland, Nettlefold J 44/78. The applicant cannot be described as a youthful offender. He has prior convictions for offences of violence. The series of assaults was prolonged in that it occurred in three separate locations albeit over what, I infer, was a relatively short period of time. Whilst it might be said that the first two assaults committed in the hotel along with the other two offences were committed spontaneously, the same cannot be said with respect to the two assaults committed after the applicant had been taken from the hotel. Both later assaults are properly characterised as vicious and mean attacks on police officers lawfully going about the duties imposed upon them by law. The refusal to leave the hotel, throwing the 8 ball and spitting on one of the officers were offences committed in a public place. Offences such as these, committed in hotels and other public places, tend to undermine the authority of police, especially in small communities such as St Helens, if they pass without severe curial condemnation.
Clearly a sentence of imprisonment was well within the proper exercise of the sentencing discretion. It cannot be said that individually or cumulatively the sentences were manifestly excessive and accordingly, the motion to review will be dismissed.