Ostaspovitch v Taumaletila-Maulolo
[2012] QDC 29
•1 March 2012
DISTRICT COURT OF QUEENSLAND
CITATION:
Ostaspovitch v Taumaletila-Maulolo [2012] QDC 29
PARTIES:
KYLE OSTASPOVITCH
(Appellant)v
OCEAN TAUMALETILA-MAULOLO
(Respondent)FILE NO:
D2158/11
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court
DELIVERED ON:
1 March 2012
DELIVERED AT:
Brisbane
HEARING DATE:
30 January 2011
JUDGE:
Farr SC, DCJ
ORDER:
1. Allow the appeal, and vary the order of the court below by ordering that the term of imprisonment be suspended after the respondent has served a period of three months imprisonment.
2. A warrant issue for the arrest of the respondent and that such warrant lie in the Registry for seven days.
CATCHWORDS:
CRIMINAL LAW – APPEAL AGAINST SENTENCE – where the respondent was convicted of assault occasioning bodily harm – where the complainant was a police officer acting in the course of his duties – where the respondent was sentenced to twelve months’ imprisonment wholly suspended with an operational period of two years, and further ordered to pay the police officer $1,000 in compensation – where the findings of fact made by the magistrate were reasonably open upon the evidence and consistent with the CCTV footage but the sentence imposed was manifestly inadequate
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Mbuzi v Torcetti [2008] QCA 231
R v Conway [2005] QCA 194
R v House (1935) 55 CLR 499; [1936] HCA 40
R v Kazakoff [1998] QCA 459
R v Williams [1997] CA No 385
R v Wotton & Bourne; ex parte A-G (Qld) [1999] QCA 382Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175
Justices Act 1886 (Qld), s 223(1)
SOLICITORS:
P Price instructed by the Department of Public Prosecutions for the Appellant.
No appearance for the Respondent.
At about 9.00 pm on 25 June 2010 the respondent and four other males attempted to enter the Down Under Bar at Edward Street in the City. One of the respondent’s friends, Omaha Vaivela was denied entry by security staff as he did not have identification on him. As a consequence an altercation resulted between security and Mr Vaivela during which a security guard was assaulted. The respondent and his friends verbally involved themselves in the dispute immediately after that assault.
At around that time two motorcycle police officers Senior Constable Jordan and Constable Mieklejohn rode past. Both officers were in uniform and were wearing helmets. Officer Mieklejohn observed that some type of incident was taking place on the footpath and pulled over to investigate. Senior Constable Jordan followed.
During the ensuing moments Senior Constable Jordan arrested the respondent’s brother Michael for obstructing police. In the course of doing that he physically attempted to force the respondent’s brother onto the ground. The respondent, who at that time was being dealt with by Constable Mieklejohn, immediately shoulder charged Senior Constable Jordan and soon thereafter punched him in the face knocking him unconscious.
The respondent was subsequently charged with one count of assault occasioning bodily harm and the matter was dealt with in the Magistrates Court at Brisbane in a three day trial which commenced on 4 April 2011.
On 20 May 2011 the magistrate found the respondent guilty of the charge and sentenced him to twelve months’ imprisonment wholly suspended with an operational period of two years. He was further ordered to pay the respondent $1,000 in compensation.
This is an appeal against sentence.
Grounds of Appeal
The appellant appeals on two grounds:
(i) The magistrate mistook the facts and the Appeal Court should draw a different conclusion to that of the magistrate.
(ii) The sentence imposed was manifestly inadequate.
Standard to be met on Appeal
On appeal under s 223(1) Justices Act 1886 (Qld) a Judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses in their evidence, but the Judge is required to review the evidence, to weigh the conflicting evidence and to draw his or her own conclusions.[1]
[1]Fox v Percy (2003) 214 CLR 118 at [25]; Rowe v Kemper [2008] QCA 175 at [5]; Mbuzi v Torcetti [2008] QCA 231 at [17].
The appellant court’s interference with the magistrate’s exercising of sentencing discretion requires the demonstration that the magistrate:
“… act[ed] upon a wrong principle … allow[ed] extraneous or irrelevant matters to guide or affect him …[mistook] the facts …[or did] not take into account some material consideration.”[2]
[2]R v House (1936) 55 CLR 499 at p504.
Evidence at Trial
The evidence presented at the trial came from a number of sources. There was an independent observer who saw at least part of the relevant incident from a nearby hotel room window. The police officers themselves gave evidence as did some of the security staff. The respondent’s brother Michael was also a prosecution witness. Additionally the respondent gave evidence in his own defence and called as a witness one of his friends who was present at the scene. Furthermore, security camera CCTV footage of the incident was also presented to the court during the trial.
Factual Findings of Magistrate
The magistrate made the following factual findings:
(a) The defendant and his brother Michael and work colleagues arrived at the Down Under Bar just after 9.00 pm on 25 June 2010.
(b) The defendant had a solid build, being Polynesian descent or Maori, was tall and weighed about 100 kilograms.
(c) The defendant was wearing a blue/green t-shirt. His brother and colleagues were also of a solid build, although his brother Michael was shorter and smaller built. He was wearing a Tibetan style beanie.
(d) The defendant and his friends showed their identification at the Down Under Bar and had gone inside.
(e) Omaha Vaivela did not have identification and was not allowed into the bar. He became involved in an altercation with one of the bouncers and punched him.
(f) At about this time Officers Jordan and Mieklejohn were riding down Edward Street and observed an incident. They approached the group and Jordan spoke to Michael and Mieklejohn spoke to the defendant.
(g) The defendant told Mieklejohn he had done nothing wrong and at one time, pointed to one of the security guards saying “ask him, he knows we weren’t involved”.
(h) Michael was saying the defendant had done nothing wrong. Michael was arrested for obstructing police and a handcuff was placed on his right wrist.
(i) Jordan couldn’t get a cuff on the left wrist due to Michael’s size and because Michael was wearing a backpack.
(j) The defendant told Michael, “chill, just chill man. We’ll be all right.”
(k) The defendant was putting his right arm behind his back to allow Mieklejohn to cuff his wrist. Vaivela was constantly intervening, effectively preventing the Officers from cuffing the defendant and Michael. Vaivela was saying to police “yeah it was me”. Michael was being pulled around by the cuff and Jordan was fighting off Vaivela. When Jordan did a knee strike to Vaivela, Michael was seen on the CCTV footage to offer no resistance.
(l) Jordan became concerned and decided to escalate restraint techniques to handcuff Michael and force him to his knees. He put Michael’s right wrist up behind his back and as Michael began to stand Jordan pushed him to the ground. He hit Michael with two arm strikes between the shoulder blade area.
(m) Michael believed when he was on the ground his arm was being pulled up behind his back and that Jordan wanted him to stand.
(n) When the defendant saw Michael receiving the arm strikes, he reacted and pushed Jordan, then punched him.
(o) Jordan was knocked out by the punch and fell to the ground. He was unconscious on the ground.
(p) Jordan’s arrest of Michael was lawful but the defendant honestly and reasonably believed that his brother was being unlawfully assaulted in the course of the arrest.
(q) Notwithstanding that honest and reasonable belief, the force used by the defendant in striking Constable Jordan was excessive in the circumstances.
Conflicting Evidence
The prosecution case was that the respondent, his brother and Vaivela were behaving and speaking in an aggressive manner with the police officers. The Police Officers gave evidence that their attempts to arrest the respondent and Michael were obstructed by the actions of those two men as well as by the interference of Vaivela. Police also gave evidence that the respondent was using aggressive and foul language throughout the incident.
The respondent and his brother and Vaivela asserted however that no aggressive language was used by the respondent and that there was no attempt to obstruct the police in carrying out their duties. The respondent’s case at trial was that the police were over zealous and that Senior Constable Jordan’s striking of the respondent’s brother was unnecessary and therefore unlawful. The defence evidence was that the real troublemaker was Vaivela and that the respondent and his brother were simply trying to explain to police what had occurred with the security staff moments earlier.
Where conflict existed between the prosecution and the defence case the magistrate accepted the evidence of the defence witnesses. Notwithstanding the fact that the respondent was convicted the magistrate in essence accepted the defence version of events.
Appellant’s Submission
The appellant submits that the magistrate mistook the facts and that this court should draw a different conclusion to that of the magistrate. Specifically, it is submitted on behalf of the appellant that where the magistrate found that the respondent was acting in defence of his brother but that the amount of force used was excessive, this court should find that the punch was not an act in defence of his brother but rather an aggressive act which was motivated by the intent to inflict serious injury upon the complainant.
The applicant has acknowledged that it would be difficult for this court to overturn any of those findings of fact if the only evidence before the court came from the various witnesses. In that circumstance the magistrate would have had a clear advantage over this court in assessing the credibility of the witnesses’ evidence by virtue of the fact that the magistrate was able to observe the witnesses during the course of their evidence. However, it is submitted that in this case this court can intervene on findings of fact due to the existence of the CCTV footage. It has been submitted that such footage places this court in the same position as the trial magistrate. I agree with that submission.
CCTV Footage
The CCTV footage clearly shows the relevant lead up to the incident and the incident itself. The quality of the footage is good and there is no mistaking the identity of the various participants. Obviously, where any discrepancy exists between the evidence given by a witness and that which is depicted in the CCTV footage then reliance should be placed upon the CCTV footage. It should be noted however that the CCTV footage does not contain sound, so it is of limited assistance in determining or assessing the accuracy of the evidence regarding the words that were allegedly spoken.
No Appearance By The Respondent
Despite being given many opportunities to present a written outline of submissions the respondent failed to do so. He also failed to appear at the hearing of this appeal despite it having been adjourned previously to ensure that he was given ample notification of it.
The consequence is that this matter was conducted without submissions being made to the court on behalf of the respondent. Nevertheless, given the opportunities that were provided to the respondent, it was appropriate for this matter to have proceeded in this way.
I note also, that the existence of the CCTV footage means that this court is able to conduct a clear viewing of the incident itself.
Conclusion
After viewing the CCTV footage on numerous occasions I find myself in the position of agreeing with the majority of the magistrate’s findings of fact.
It is quite apparent that Senior Constable Jordan used a great deal of force in striking the respondent’s brother at the base of his neck between the shoulder blades when attempting to get him to lie on the ground. Senior Constable Jordan conceded in evidence that he used as much force as he could. He also gave evidence that he did so after all previous attempts and orders to have the offender lie on the ground failed. The respondent’s brother Michael gave evidence that whilst he remembered being struck in that region it didn’t cause any particular pain to him and he needed no medical treatment.
The CCTV footage clearly shows that the respondent reacted to the blows delivered by Senior Constable Jordan to his brother by instantaneously pushing past or away from Constable Mieklejohn and shoulder charging Senior Constable Jordan. I have no doubt that that action was conducted for the purposes of the defence of his brother. Equally, I accept the magistrate’s findings that the prosecution failed to prove beyond reasonable doubt that the respondent did not at that time have an honest and reasonable but mistaken belief that Senior Constable Jordan had unlawfully assaulted his brother.
The punch which followed occurred after a delay of approximately one second. Even though it occurred when the respondent was standing in a position between Senior Constable Jordan and his brother, the fact that it was thrown so soon after that push is a relevant consideration in determining whether the respondent was still at that time acting in defence of his brother. The magistrate took the view that he was but that he used excessive force. I agree with that assessment.
Accordingly, in my view the findings of fact made by the magistrate were reasonably open upon the evidence and consistent with the best evidence placed before the court, that is, the CCTV footage.
Sentence
Where I do find myself in disagreement with the magistrate however is in relation to the sentence which was imposed.
The appellant has submitted that the sentence imposed was manifestly inadequate in the circumstances. I agree.
The punch delivered by the respondent involved significant force causing the following injuries:
· compressed fracture to the right cheek bone;
· laceration to the inside of his upper lip that extended up to the nasal area requiring six stitches;
· blurred vision and temporary loss of peripheral vision in the left eye;
· swelling to the cheek in an area above the lip; and
· pain in the lower back and the right shoulder.
Senior Constable Jordan also had difficulty sleeping after this event and suffered severe headaches for a period of time.
At the time of the commission of this offence the respondent was aged in his mid twenties. He had an excellent employment history having never been unemployed and was in employment at the time of his conviction.
I infer from the submissions made in the court below that he was married. He has three children who were aged seven, six and five at the time of his conviction. References were tendered on his behalf which spoke of him as being a person of otherwise excellent character, a strong family man and a good provider for his family. References also indicated that he was a good and trusted employee.
He has prior convictions for offences such as behaving in a disorderly manner, breach of bail and for contravening a direction. Also, he was convicted in 2005 in the Brisbane District Court of one count of assault occasioning bodily harm in company. He was sentenced to six months’ imprisonment which was fully suspended with an operational period of eighteen months. That offence occurred at a hotel when he was eighteen years of age. The sentencing judge in that matter described the respondent’s behaviour as “disgraceful” and “thuggish”.
In the current matter, the police prosecutor made detailed submissions to the effect that a term of imprisonment involving actual custody was the only appropriate penalty. He submitted that a head sentence of twelve to fifteen months’ imprisonment was appropriate. He further submitted that a period of two to three months actual custody should be served. The appellant now submits that the sentence imposed was manifestly inadequate considering the offending behaviour and the respondent’s criminal history. He further submits that the punch, by nature of its force and ferocity, warranted a penalty that imposed not only personal but general deterrence and that the sentence imposed failed to adequately recognise those considerations. It was further submitted that the magistrate placed too much weight upon the actions leading up to the punch and paid insufficient weight to the fact that the punch was unnecessary. It is also submitted that the magistrate inadequately recognised the serious aggravating circumstance that the complainant was acting in the course of his duty at the time the offence was committed.
Sentencing Principles
In R v Howard, Telfer & Jarrett [1968] 2 NSWR 429, the New South Wales Court of Appeal said:
“The police force must be protected from attacks. The sentence must indicate the community’s displeasure and be a warning to others who may chose to do what had been done here. It is necessary for the court to indicate very clearly that behaviour of this type, that is assaults on police officers, will attract salutary sentences because an assault on uniformed police officers in the execution of their duty is a grave matter.”
In R v Williams [1997] CA No 385 Dowsett J said:
“The maintenance of order in our society depends upon those who are charged with enforcing it being adequately protected to the greatest extent possible in the performance of their duties. Where police officers, innocently and with goodwill, are going about their duties, it is not fair to them that they should be exposed to assaults of this kind, nor is it in the best interests of the community, … that they should be so exposed. … If there is to be peace in a community and if those charged with maintaining it are to go about their duties in an acceptable way, then they must be protected. … It is … important that the sentence not appear to be merely a nominal one.”
In R v Kazakoff [1998] QCA 459 Byrne J said:
“The protection of police officers acting in the execution of their duty must surely be a matter of considerable concern to the courts and the community. Those who like this respondent, acting in company, mete out violence with a weapon to a police officer must expect condign punishment.”
In the case of R v Wotton & Bourne; ex parte Attorney-General [1999] QCA 382 the Attorney General appealed against sentences imposed after pleas of guilty were entered to a charge of assault occasioning bodily harm while in company.
The judgment describes the offending behaviour as follows:
“The victims of the assaults committed on 17 April 1998 were police officers who were stationed on the island. They were called to a disturbance at about 3.30 am. One of the officers, Senior Constable Baade, was a married woman who was three or four months pregnant. When the officers arrived at the trouble they noticed between 30 and 40 Aboriginal people all of whom were intoxicated. The respondent Wotton was engaged in a fight and was restrained by Constable Sodhi. The two officers were then surrounded by the crowd.
Wotton had submitted to Constable Sodhi’s restraint but Bourne incited him to “bash and flog the coppers,” and to “hit him”. Wotton obeyed and punched Constable Sodhi twice in the face. Constable Baade went to assist him but was struck a severe blow from behind by Bourne. She fell to the ground and lost consciousness.
Meanwhile, Wotton had broken free from Constable Sodhi’s hold and continued to punch him in the head. Bourne also threw punches at the Constable and then held him so that he was unable to defend himself. Whilst restrained by Bourne Wotton continued to punch him. Constable Sodhi also fell to the ground when he was kicked by Wotton. He too lost consciousness. When he regained it some in the crowd helped him to his feet. Constable Baade had also been helped. She was dizzy and had blurred vision. The two officers returned to their car and left the scene.
Constable Sodhi suffered grazing to his chin, nose and upper lip and bruising to his nose. His ribs and back were hurt, two front teeth were loosened. He suffered headaches and pain for about two weeks after the assault. Senior Constable Baade suffered facial bruising and bleeding to her right eye. She experienced considerable concern for the wellbeing of her unborn child and requested a transfer to non-operational duties.”
The court noted that Wotton was significantly depressed at the time of his offending behaviour and that his psychological state reduced his level of self control. It was accepted that he was ordinarily a quiet family man who avoided violence, that he was responsible for the care of his young children and an eight year old niece and had demonstrated genuine remorse. He had also apologised to Constable Baade for her ordeal and offered to provide a statement to assist in the prosecution of his co-offender. He was young and had no prior convictions.
Justice Chesterman took the view that even allowing for the factors personal to Wotton the sentence imposed fell outside the permissible range for offences of that kind, that is assaults occasioning bodily harm to police officers endeavouring to uphold peace and order in the community. It should be noted that Bourne was twenty seven years of age at the time of the commission of the offence and had a previous conviction for assault occasioning bodily harm and for other minor offences. For the assault committed in company on Constable Sodhi, each of the accused were initially sentenced to nine months’ imprisonment wholly suspended for an operational period of two years. Bourne was sentenced to perform two hundred and forty hours of community service for the assault on Constable Baade.
The Court of Appeal set aside the sentences imposed for the assault on Constable Sodhi. It then sentenced Bourne to a term of twelve months’ imprisonment to be suspended after serving six months with an operational period of two years. Wotton was sentenced to twelve months’ imprisonment to be suspended after serving three months again with an operational period of two years. As Bourne had completed the community service order in relation to the offence on Constable Baade, the Attorney General did not seek an increase in that sentence.
In my view the facts in that matter involve behaviour which is more serious than that which occurred here although the consequence for the complainant in this matter was far more serious. Again I note that unlike Wotton the respondent in this matter had a prior conviction for an offence of violence.
In R v Conway [2005] QCA 194 the accused pushed a police officer, who had just arrested him, before punching him to the face approximately six times. The police officer suffered a fractured nose with a slight depression, ongoing thoracic and lumbar pain, concussion, two black eyes, multiple abrasions, facial and head swelling, soft tissue bruising and a small cut to his forearm. He also suffered a post traumatic stress disorder with a secondary co-morbid diagnosis of major depressive disorder, single episode, severe and without psychotic features.
Conway was convicted of the charge of serious assault after trial and was sentenced to twelve months’ imprisonment. He was thirty six years old at the time of sentence. He had been previously convicted of common assault (in 2004) for which he was fined $200 without a conviction being recorded. In 2001 he had been fined $1,000 without conviction for assaulting a female, his then partner. The court accepted that he was otherwise a successful member of the community.
The President of the Court of Appeal McMurdo P said in the course of the judgment (at [54]):
“Mr Conway has some relevant criminal history and he does not have the mitigating benefit of an early plea of guilty. These circumstances require that he must serve a period of actual custody as a deterrent to him and to others who might otherwise think they can with impunity unlawfully and seriously assault police officers acting in the course of their duty; police officers acting properly and reasonably in the execution of their duty must know they have the support of the community and the protection of the courts.”
The court further noted and took into account the fact that Mr Conway had made attempts to address his anger management problems by counselling sessions, that he had achieved well educationally, had a good work history and that he had promising prospects of rehabilitation. It was accepted that the fact that he conducted a trial did not indicate an absence of remorse. Nevertheless, despite those mitigating factors the court held that a term of actual imprisonment was still appropriate in the circumstances although it ordered that the term of imprisonment be suspended after a period of three months with a twelve month operational period.
Conclusion
Taking all relevant matters into account I am of the view that the sentence imposed in this matter was manifestly inadequate as it failed to properly recognise the principles as annunciated above. The punch thrown by the respondent involved extreme force and occurred in the context of Senior Constable Jordan attempting to carry out his duties. Notwithstanding that I accept that the respondent was motivated by the desire to defend his brother, the degree of force was well beyond that which might be considered reasonable in the circumstances. In fact, in my view there was no necessity for the punch to be thrown at all as the Respondent was standing between Senior Constable Jordan and his brother at the time. I nevertheless accept that everything happened very quickly and that the Respondent did not have time for calm reflection on the situation. That being said, the degree of force was disproportionate in the extreme.
Whilst the context in which that punch was thrown is relevant for sentencing purposes, it does not overcome the principles that have been often repeated in Courts of Appeal around the country. Police officers acting in the execution of their duty are well entitled to receive protection from the courts and quite rightly expect that such protection should be given. The general public would require nothing less.
Accordingly I will allow the appeal, and vary the order of the court below by ordering that the term of imprisonment be suspended after the respondent has served a period of actual imprisonment of three months.
I order that a warrant issue for the arrest of the respondent and that such warrant lie in the Registry for seven days.
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