R v Benson

[1994] QCA 394

[1994] QCA 394

COURT OF APPEAL

McPHERSON JA
PINCUS JA
MACKENZIE J

CA No 304 of 1994

THE QUEEN

v.

MICHELLE BENSON  Applicant

BRISBANE

..DATE 22/08/94

JUDGMENT

McPHERSON JA:  This is an application for leave to appeal against an effective sentence of four months' imprisonment imposed on the applicant in the Magistrates Court at Cairns for two offences of assault, and one of wilful damage, committed on 18 July 1994.  Specifically the sentence in respect of each of those offences was imprisonment for four months, to be served concurrently.

The circumstances of the offences are that at about 9.30 p.m. on 18 July 1994 the police went to a house at 14 Digger Street, Cairns where the applicant was living, or at any rate where she was present at the time. She was detained under the Drugs Misuse Act and asked to accompany the police back to the Cairns Police Station.

As the party was about to leave the residence with Constable Pemberton going ahead of the applicant, the applicant began to abuse the police and spat on Constable Pemberton.  The spittle hit Constable Pemberton on the back and on the back of her neck.  The defendant was then restrained and placed in the back of the police vehicle and taken to the Cairns Police Station.

She was, as I have said, at that time under detention under the provisions of the Drugs Misuse Act. She was waiting to be searched when she decided to leave the police station. Constable Faint told her that she was not free to go until she had been searched. The defendant said that she was "sick of this shit" and was going home. She started to walk toward the door of the police station.

Constable Faint approached her and asked her to calm down.  She became abusive towards him and began to swing her arms about.  He attempted to restrain her and place her in a chair.  She grabbed hold of the epaulette on Constable Faint's uniform shirt and ripped it from the shirt.  She threw the epaulette on the floor and then grabbed his shirt again and tore the sleeve of it.  Other officers in the police station came to Constable Faint's assistance and the defendant was restrained and conveyed towards the Cairns watch-house.

When she and the other constables were inside, or partly inside, she proceeded to yell abuse at Constable Faint.  Then she turned and spat directly on him, hitting him on the neck and chest.  She was again restrained, but succeeded in scratching Constable Faint on the face, opening a small cut on the left cheekbone.  When taken into the Cairns watch-house, and while waiting at the charge counter, the defendant announced that she hoped she had AIDS as she had spat on coppers.  While reading the charge to her she became abusive again and tried to spit on Constable Faint once more.

The applicant is a woman aged some 30 years.  She has an extensive history of minor offences of a kind that used, at one time, to be more commonly seen on records than they are now.  I refer to the offence of vagrancy or being with insufficient lawful means.  She has recorded convictions for that offence on four or five occasions since 1982.  In addition, there are several obscene language convictions and a number of others in which resisting police appears as one of the counts along with other offences like wilful damage to property, obscene language and assaulting police.  In all, she has four prior convictions for assaulting police, two for unlawful assault, and six for resisting a police officer.

She has served a term of imprisonment on one previous occasion.  That was in 1985 when she was sentenced for stealing and for assaulting police, and on that occasion sentenced to imprisonment for one month. 

Spitting at police when they are in the course of attempting to restrain or arrest a person, or holding them in custody in the execution of their proper duties, has consistently been regarded by this Court and its predecessor as an offence of a serious kind.  The police are not obliged to submit to humiliation of that kind in the course of performing their duty.  The only thing that may explain the applicant's behaviour on this occasion, and what appears to be her behaviour over some years past in relation to other offences of a generally similar kind, is what her solicitor told the Magistrate at the time of sentencing.  He said that his instructions from his client was that she was schizophrenic and his observations, he told the Magistrate, tended to support that view of the matter.

It is, of course, distressing to find someone who, possibly through no reason of their own, becomes involved in offences of this kind.  Mental impairment or psychiatric problems have always been circumstances that are taken into account in the course of sentencing.  However, they are not ordinarily such as to excuse a person entirely from the penal consequences of what they have done.

In this instance the evidence with respect to the applicant's mental state is not by any means particularly cogent, but even if one accepts it at its face value, the case is one which called for a sentence of imprisonment of some duration.  The sentences imposed in respect of these three offences viewed together do not seem to me to be excessive.  They are consistent with the range of sentences imposed in similar cases in the past which have been upheld on appeals to this Court.

In all the circumstances I can see no basis for disturbing the sentences imposed for these offences in the Courts below, and I would therefore refuse the application for leave to appeal.

PINCUS JA:  I agree, and I would add this:  that there was no proper information, as the presiding Judge has mentioned, placed before the Court below as to the mental state of the applicant, and nor was any attempt made to place any before us.  In these circumstances, one merely has the assertion that, to some degree, there was a condition of abnormality and it does not seem to me that the Magistrate could rationally take that into account to any significant extent.

More importantly, the applicant had not committed any offence, so far as the record goes, for quite some years, and in those circumstances, although the incident was a fairly serious one of its kind, the Magistrate might perhaps have taken a more lenient view.  That is, I do not regard the sentence as being a light one but nevertheless plainly, I would have thought, within the range of permissible exercise of discretion.  I therefore agree with the presiding Judge's suggested order.

MACKENZIE J:  I agree.

McPHERSON JA:  The order is that the application for leave to appeal against sentence is dismissed.

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