R v Barber

[1997] QCA 282

[1997] QCA 282

COURT OF APPEAL

DAVIES JA
McPHERSON JA
WILLIAMS J

CA No 204 of 1997

THE QUEEN

v.

MICHAEL RAYMOND BARBER

BRISBANE

..DATE 16/07/97

JUDGMENT

WILLIAMS J:  This is an application for leave to appeal against sentences imposed on the applicant in the District Court at Brisbane on 30 April 1997.  The applicant was charged with three offences arising out of incidents which occurred on 31 August 1996.

The first was that of resisting arrest.  The second was that of assaulting police and the third was another charge of assaulting police; in each case it was alleged that the police officer was acting in the course of his duty.

On the day in question police officers were called to a shopping centre following reports of a person acting strangely.  They subsequently traced the person to a particular address and there located the accused.   He was taken into custody, primarily it would seem because a check of police records that had been made in the intervening period revealed that he was wanted on a warrant for failing to supply a specimen of his breath.

When he was placed under arrest he became violent and struck out at the female police officer Constable Livett who had hold of his right arm.  He struggled violently, used obscenities and kicked out with his arms and legs.  It is that incident which constituted the count of resisting a police officer in the execution of her duty.

Constable Billington, a male police officer, then came to the assistance of Constable Livett.  Again, the applicant kicked out and struck Constable Billington a blow on the right thigh with his foot.  That constituted the second count, that of assaulting Billington whilst acting in the course of his duty.

The applicant was then, despite his violent struggles, placed in the rear of the police vehicle.  Constable Billington was sitting to one side of him.  Whilst that vehicle was on route to the Petrie Watch-house the applicant turned his head towards Billington and sank his teeth into Billington's left upper arm.

At the time he screamed out, "I've got AIDS.  You are going to die.  You are not going to have any more kids."  The bite was of sufficient force to puncture the skin and cause bleeding.  It is that incident which gives rise to the third count.

After a period of time the applicant was subjected to medical testing which revealed that he was negative to HIV,
hepatitis B and syphilis but he returned a positive result to hepatitis C testing.  In consequence, Constable Billington has had to undergo regular testing to ascertain whether or not he has been contaminated with the hepatitis C virus. To date, those tests have been negative but the incubation period has not yet passed and there will be a couple of more months before it can be said that Constable Billington is clear.

That understandably has had a very significant effect on the police officer.  His family life has been severely affected by his concern as to possible hepatitis C contamination.  Given what occurred in the vehicle and given the contemporaneous statement it is clear that, though the applicant did not then know that he was infected with hepatitis C, he made the statement about having AIDS with a view to creating fear in the mind of Constable Billington; it was an intentional act on his part designed to generate that fear.

The learned sentencing Judge recognised all of those matters in approaching the question of sentence.  I should also record that the applicant has a very lengthy criminal history commencing in March 1977 and going through until May 1993.  Many of the convictions are for drug or alcohol associated crimes.

It is certainly a very lengthy record of antisocial behaviour.  It is also worth noting that, albeit some time ago, he does have two convictions for resisting police.  Those offences occurred when he was being apprehended in relation to other matters.  Against that background the learned sentencing Judge came to the conclusion that a substantial penalty had to be imposed, particularly in relation to count 3, the biting incident.

But she also said that she would take into account that he had pleaded guilty and that he was acting in a irrational way at the time the offences were committed.  He had clearly lost his self control.  It was because of those matters that she determined that she should make an early recommendation for release on parole with respect to the penalty on count 3.

On count 1, that of resisting arrest, he was sentenced to six months' imprisonment.  On count 2, that of assaulting police, he was given six months' imprisonment and on count 3, the biting, he was sentenced to two and a half years' imprisonment with a recommendation that he be eligible to apply for parole after serving nine months of the sentence.

For reasons that I need not go into he had been held in presentence custody for a period of 205 days prior to the sentence being imposed and the sentence took that into account.  In fact he had served 205 days of the nine month period prior to his being eligible to apply for parole as at the date of sentence.

In my view the biting incident was a particularly serious assault.  It was committed with a view to instilling fear in the mind of Constable Billington and to that extent the applicant was successful.  I have already referred to the consequences for Constable Billington.

In my view, the sentence is not out of line with other sentences imposed or confirmed by this Court for offences of like nature.  In all the circumstances I would refuse the application for leave to appeal.

DAVIES JA:  I agree.

McPHERSON JA:  I agree. 

DAVIES JA:  The order is as indicated by Mr Justice Williams.

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