R v Brown

[2013] QCA 185

SUPREME COURT OF QUEENSLAND

CITATION:

R v Brown [2013] QCA 185

PARTIES:

R
v
BROWN, Imelda Joyce
(applicant)

FILE NO/S:

CA No 338 of 2012
DC No 410 of 2012
DC No 435 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

16 July 2013

DELIVERED AT:

Brisbane

HEARING DATE:

2 May 2013

JUDGES:

Holmes and Fraser JJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal against sentence is granted.

2.   The appeal is allowed.

3.   The sentences imposed on the indictment below are set aside, and substitute a sentence of 203 days imprisonment in respect of each with the declaration that the applicant has already served 203 days, between 4 February 2012 and 3 April 2012, and between 30 April 2012 and 19 September 2012, on each of those sentences.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of serious assault, the first of which involved punching a police officer and the second spitting at him – where the applicant was sentenced to nine months imprisonment in respect of the first charge, and 15 months imprisonment in respect of the second, to be served concurrently – where the sentences were suspended after 203 days, which the applicant had already served in pre-sentence custody – where the applicant, a middle-aged woman in poor health, was from a disadvantaged background, had no relevant criminal history and had entered an early plea of guilty – whether the sentences imposed were manifestly excessive

Criminal Code 1899 (Qld), s 340(b)
Police Powers and Responsibilities Act 2000 (Qld), s 790(1)

R v Barry[2007] QCA 48, cited
R v Hamilton[2006] QCA 122, cited
R v Hawton[2009] QCA 248, cited
R v Holden[2006] QCA 416, cited
R v Juric[2003] QCA 132,cited
R v King (2008) 179 A Crim R 600; [2008] QCA 1, cited
R v Laskus[1996] QCA 120, cited
R v McLean (2011) 212 A Crim R 199, [2011] QCA 218, cited
R v Reuben[2001] QCA 322, cited

COUNSEL:

F D Richards for the applicant
R W Griffith for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES JA: The applicant pleaded guilty to a series of offences committed in a confrontation with police. They consisted of two counts of serious assault, contrary to s 340(b) of the Criminal Code, on one of which she was sentenced to nine months imprisonment and the other, 15 months imprisonment, and three summary charges: assaulting police[1] (brought under the Police Powers and Responsibilities Act 2000) and committing a public nuisance, in respect of each of which she was sentenced to one month imprisonment, and possessing a knife in public, for which she was convicted, but not punished. All the sentences were to be served concurrently. The serious assault sentences were suspended after 203 days, which the applicant had already served in pre-sentence custody, for an operational period of two years. She now seeks leave to appeal those sentences, on the ground that they were manifestly excessive. Essentially, her argument is that the period of imprisonment imposed should have been confined in each case to the time she had actually served.

   [1]This charge seems to have been unparticularised on the charge sheet as to whether it was assault or obstruct police. On the facts, it was clearly the latter, but the applicant was charged for the purposes of sentence with assault. That oddity is not material to the disposition of this application.

The offences

1. The offences occurred when the police attended a house in Townsville where the applicant was creating something of a disturbance.  She had been staying at the house, but had been told to leave and had nowhere else to go.  One of the police officers told her that she was being arrested for being drunk and disorderly and would be taken to a diversion centre.  The two officers started to move the applicant to the police vehicle, but she was unco‑operative, falling to the ground and refusing to get up.  That behaviour gave rise to the summary charge of assaulting police.  The applicant began to yell abuse at onlookers as well at the police officers, to whom she shouted, “Fuck off, you dog. Captain Cook white cunts”; which led to her being arrested for committing a public nuisance.

1. A man then advanced aggressively towards the applicant and the police officers.  One of the police officers turned to deal with him, at which point the applicant punched the officer hard in the chest.  That was the first of the assaults, on which the applicant was sentenced to nine months imprisonment.  It was not alleged that the officer was injured by the punch.  The applicant continued to lash out and was restrained by the other police officer.  She began to make a noise suggesting that she was accumulating saliva in her mouth.  The police officer who had already been assaulted told her not to spit at him.  However, she did so, spitting saliva over his face, mouth, hair and uniform.  That gave rise to the second count of serious assault, for which she was sentenced to 15 months imprisonment.  The applicant was then put in the police vehicle and taken to the watch-house, where a knife was found in her pocket, leading to the charge of possession of a knife in a public place, for which she was convicted and not punished.

1. The officer who had been the subject of the assaults described the unpleasantness of having to endure the applicant’s saliva on his person and the anxiety of the ensuing four months during which he was tested for disease.  The possibility of contracting a disease deterred him and his partner from attempts to conceive a child until the issue was resolved.  He was also anxious about having physical contact with others, such as young relatives and individuals he instructed in a martial arts school, because of the risk of transmission of any disease he might have contracted.  In the result, he was not infected.

The applicant’s antecedents and the submissions at the sentence hearing

1. The applicant was 50 years old at sentence.  She suffered from diabetes and an (unidentified) heart problem.  She was born on Palm Island and raised in Townsville, living thereafter between there and Yarrabah.  Her counsel said that as a child she had been raped by a white man, which was the source of the particular animosity evident in her abuse of the police officers.  She had two children from an early relationship and later married a man whose violence led to their separation.  In the late 1990s, the applicant’s father had died, and a brother had committed suicide, which led her, in her late 30s, to develop an addiction to alcohol.

1. That problem with alcohol was reflected in the applicant’s lengthy criminal history, which commenced in early 2001, when she was 39.  Her history consisted entirely of summary offences, the vast majority of which were offences of consuming liquor on council land and committing public nuisance, with the occasional trespass.  The only offences of any conceivable relevance were three of contravening a requirement under the Police Powers and Responsibilities Act and two breaches of a domestic violence order; although there was no information as to the latter and as to whether they had actually involved any violent behaviour.  She was almost invariably fined, and had never been sentenced to imprisonment, suspended or actual.

1. At the time of the incident which had led to the charges, another of the applicant’s brothers had hanged himself; she was upset about his death and about having nowhere to live, had consumed an entire bottle of rum and was very intoxicated.  In her struggle with police, she had sustained an eye injury causing some loss of vision which would require surgery, and a broken collar bone.  Since her release from custody on remand, she had enrolled in group sessions dealing with alcohol addiction at a rehabilitation centre and was shortly due to move into housing arranged by the Red Cross; she had not had the benefit of secure accommodation for a long time.  Her counsel said that she had “expressed a level of regret” about her conduct.

1. At the time of the offending, the maximum penalty for serious assault under s 340 of the Criminal Code was seven years imprisonment.  By the time of sentence the applicant had spent 203 days – just short of seven months – on remand for the offences.  The Crown prosecutor submitted that the sentencing range for such offences could extend from a head sentence of three months up to 18 months (imposed in R v Juric[2]), although a sentence of the latter proportions would be reserved for those occasions where the offender had gone to trial and had a relevant criminal history.  Referring the sentencing judge to Juric and another decision of this court, in R v King,[3]  the prosecutor did not suggest any sentence involving more actual custody should be imposed.  Defence counsel submitted that no further sentence at all should be imposed.

   [2][2003] QCA 132.

   [3][2008] QCA 1.

1. The learned sentencing judge expressed some doubt that six or seven months imprisonment was appropriate for spitting a great deal of saliva on a police officer and, after an adjournment, defence counsel provided the sentencing judge with a number of cases involving offences of spitting at police officers.  In R vKing, other Court of Appeal decisions in cases involving spitting and biting - R v Reuben,[4] R v Barry,[5] R v Hamilton,[6] and R v Laskus[7] - had been reviewed.  The decisions in King, Barry, Hamilton, and Laskus indicated, counsel submitted, that a head sentence of six months, with two months to be served, would have been appropriate; but since the applicant had already served in excess of six months, no further sentence ought be imposed.

   [4][2001] QCA 322.

   [5][2007] QCA 48.

   [6][2006] QCA 122.

   [7][1996] QCA 120.

The sentencing remarks

1. The learned judge in sentencing noted that the applicant had had a difficult life, had taken steps to seek treatment for her alcohol addiction and had the prospect of obtaining accommodation.  He took account of the fact that the events occurred when the applicant had recently suffered a family tragedy, and that she herself had been injured in the altercation with police.  He noted too, that she had entered an early plea of guilty.  However, his Honour rejected defence counsel’s submission that a sentence of six months would be appropriate.  He distinguished King on its facts, and described Juric as involving more extensive offending, but as indicating that a sentence of 18 months imprisonment would not be outside the range for “this sort of offending”.

1. The serious aspects of the offending, the sentencing judge said, were that it was a protracted incident; that the applicant had

“assaulted the police officer on no less than three occasions, though the third may have been really more of an obstruction than an assault”;

and that the conduct was deliberate and calculated.  The applicant’s intoxication might explain what had happened, but did not excuse it.  Sentences significantly more than six months were appropriate in cases of the kind.

The submissions on the application for leave to appeal against sentence

1. Here, it was submitted for the applicant that the facts of the case were closer to those in King than those in Juric.  The learned sentencing judge had not given sufficient weight to the applicant’s having served seven months in custody; the “extra-curial punishment” she had sustained, in the form of her injuries; her unfortunate background, alcohol problems and homelessness; the recent loss of her brother; the fact that she had no relevant history of violence or defiance of the police; her plea of guilty, within a month of her arrest; and the fact that her history demonstrated that it was almost inevitable that she would commit minor offences during the operational period of the suspended sentences.  The proper sentencing range was between six and nine months imprisonment, suspended after one third;  but given that the applicant had already spent almost seven months in custody, she should have been sentenced to that period with a declaration that she had served it in pre-sentence custody.

1. The respondent offered a review of the spitting and biting cases referred to at first instance: Juric, Reuben, King, Barry, Hamilton, and Laskus, as well as three other decisions: R v Holden,[8] R v Hawton[9] and R v McLean.[10]  Counsel submitted that, on the authorities, a sentence of 12 months imprisonment with parole fixed on the day of sentence would have been within range, but it would have involved more onerous obligations for the applicant.  Other than the plea of guilty, there were no mitigating features which might have rendered the sentence imposed excessive, such as an apology, youth or other special or unusual features of the kind found in King or Barry; and the applicant’s history was “concerning”.

   [8][2006] QCA 416.

   [9][2009] QCA 248.

   [10][2011] QCA 218.

The comparable cases

1. I will begin my consideration of the cases which the respondent drew to our attention with the two to which the sentencing judge referred, Juric and King.  In Juric, the applicant was convicted after a trial of three charges of serious assault, one of which involved striking a police officer in the face, and the others spitting blood and saliva into the faces of two police officers.  They had restrained the intoxicated applicant after he was involved in an incident with a security officer; he committed the assaults in the course of being taken to a police car.  The offences were in breach of a 10 month suspended sentence.  The applicant had a very extensive criminal history which included at least a dozen assaults, a number of which were serious assaults on police officers, and had served sentences of imprisonment in the past.  There were no mitigating factors to be considered.  He was sentenced at first instance to 18 months imprisonment in respect of the striking assault and two and a half years imprisonment in respect of each of the spitting offences, cumulative on the 10 month suspended sentence.

1. The court observed that, having regard to the applicant’s “extensive history of violence particularly directed at police, and the absence of any discounting factors”, there was no comparable authority; but no decision of the court supported a sentence of two and a half years imprisonment for the offences.  Having regard to the totality of Juric’s sentence, including the cumulative 10 month period, a sentence in excess of 18 months for the assaults was manifestly excessive.  The existing sentences were set aside and sentences of 18 months imprisonment substituted.

1. In King, the applicant was a 30 year old man, an Irish national visiting Australia.  He had no prior criminal history.  He was sentenced to six months imprisonment, suspended after three months, for a serious assault, and to two months imprisonment concurrent for a common assault.  The applicant was heavily intoxicated and was being removed from a bar when he assaulted a security officer.  Police were called, and put him in the back of a police van.  He gestured to an officer to approach him, then spat blood and phlegm onto the officer’s face and into his mouth and, during the ensuing struggle, over his arm and shirt.  A couple of days later, he delivered a written apology and an assurance that he had no communicable disease.  That was taken into account together with his early plea and the fact that at the time he was, according to a psychiatrist, suffering from a depressive illness.  The applicant had had to stay in the country, away from his family and without funds, for almost a year after being charged.

1. This court concluded that the sentencing judge was right to impose a sentence involving actual imprisonment, but that, having regard to previous cases such as Barry, Hamilton and Laskus and the significant mitigating factors, the penalty imposed, of six months imprisonment, was excessive.  A sentence of four months imprisonment, suspended after two months with an operational period of two years, was substituted.

1. Of the other cases referred to at first instance, Laskus involved a 19 year old applicant without prior convictions.  She had attended a police station in the hope of retrieving some confiscated money and in conversation with a police officer who rejected her arguments, lost control and spat at him.  The saliva hit the officer’s mouth, nose and eyes.  The applicant, who was in the early stages of pregnancy, entered an early plea of guilty.  The sentence imposed, of four months imprisonment suspended after two months, with an operational period of 12 months, was upheld on appeal.  The issue on the application for leave to appeal against sentence was whether she should have been required to undergo any actual period of custody.  This court said that there was no identifiable error in the magistrate’s approach; he had given proper consideration to the possibility of imposing a non‑custodial sentence.  As counsel for the respondent here observed, Laskus is of limited usefulness as a comparable authority because it pre-dated an amendment to the Criminal Code in 1997 to increase the maximum penalty for serious assault from three years to seven years imprisonment.

1. Reuben involved a biting of a police officer rather than a spitting.  The applicant there was 27 years old, in a stable relationship, with what was described as a reasonable work history.  He had a relevant criminal history in that he had previously been convicted of assault and assault occasioning bodily harm as well as a breach of a domestic violence order.  The offence was committed on Palm Island. It occurred, as the present one did, in the context of a domestic disturbance while the applicant was affected by alcohol.  He had been throwing rocks through a window, resulting in wilful damage charges.  He engaged in a struggle with the police officers who attended, in the course of which he bit one on the knee, without breaking the skin.

1. Davies JA observed that although the biting carried with it a risk of disease, there were distinctions to be drawn between that offence and spitting, which was often premeditated, had a degrading aspect to it and showed contempt for the authority of the police.  The sentence imposed on Reuben at first instance, of eight months imprisonment, suspended after three months with an operational period of two years, was set aside on appeal, with a sentence of three months, wholly suspended, substituted.  (In the later case of Juric, the court described the substituted sentence as “towards the lower end of the appropriate range”.)

1. In R v Hamilton, the applicant sought leave to appeal against a sentence of nine months imprisonment, suspended after three months, with an operational period of 12 months, imposed on his plea of guilty to two counts of assaulting a police officer.  The offences arose out of an altercation outside a hotel.  In an attempt to prevent his younger brother’s arrest, the applicant had charged at police, swinging punches and hitting an officer in the head and upper torso.  As he was being placed into a police van, he spat saliva into another officer’s open eyes and mouth.  That officer had to undertake blood testing, but contracted no disease.  The applicant had some minor criminal history which included a charge of obstructing police in circumstances similar to those involving the offences for which he had been sentenced.

1. Although the applicant suffered from depression, Fryberg J, delivering the leading judgment, observed that it was not relevant to the offences.  His Honour went on to note that although the plea of guilty was timely, there was no evidence of remorse, and the applicant had offered no apology to the police officers concerned.  He was not intoxicated; there were two separate offences; the conduct had an element of premeditation, involving a public display of contempt for police; and the applicant had a relevant criminal history.  The sentence imposed was not manifestly excessive.

1. In Barry, the female applicant had pleaded guilty to serious assault and was sentenced to six months imprisonment, with a parole release date fixed after one month.  Police officers had had to extract her from a taxi in which, intoxicated, she was sleeping.  While they were attempting to take her to a police station, she spat in the eyes and mouth of a police officer, telling her that her (the applicant’s) husband was Hepatitis C positive.  The officer had to undergo 12 months of blood tests, which caused her considerable stress.  The sentence was contested, with the applicant giving evidence that the police officers had assaulted her; something denied by the two police officers, whose evidence the sentencing judge accepted.

1. The applicant in Barry had a previous conviction for assaulting police.  At the time of the offences, she had been in a violent relationship, suffered from depression and was given to binge drinking.  She was the sole carer for her four year old son.  In refusing leave to appeal, this court noted the significant adverse effects on the police officer, as well as the facts that the applicant was offending for a second time against police officers doing their duty and showed no regret for what she had done.

1. Holden was the first of the three additional cases on which the respondent here relied.  The applicant in that case was convicted by a jury of seven counts of serious assault and was sentenced to 12 months imprisonment on each count.  He had a criminal history stretching over some 15 years, which included sentences of imprisonment for wilful damage and assault occasioning bodily harm; he had also committed a number of street offences, including obstruction of police.  The assaults in question  began when police attempted to handcuff him in the course of an arrest, and continued over a period during which they took him to the watch‑house and then to hospital for treatment of a head injury and back to the watch-house.  Three of the assaults involved physical resistance to the police officers.  In another, the appellant wiped blood on a police officer’s arm, telling her that he had Hepatitis C.  In another three instances, he spat at police officers without making contact, other than on one occasion striking the officer’s boot.  Having regard to the absence of mitigating factors and the appellant’s lengthy criminal history, it was held that a sentence of 12 months imprisonment, although substantial, was not outside a proper exercise of sentencing discretion.

1. In Hawton, the applicant was convicted after a trial of two counts of serious assault. He was sentenced on each count to 12 months imprisonment, each sentence to be served concurrently with the other and with the unserved five month balance of a six month term of suspended imprisonment. His parole release date was fixed at 12 months. Police officers had arrested him for breach of a domestic violence order. As they attempted to take him to the watch-house, he struggled with them, biting one officer on the leg and another on the finger. He had a prior criminal history which included a conviction for common assault, another for obstructing a police officer and two breaches of domestic violence orders. He was 48 years of age and had shown no remorse. It was held that the sentences of 12 months imprisonment, all of which would have to be served, were not manifestly excessive.

1. In McLean, the applicant, an 18 year old Aboriginal man, pleaded guilty to one count of wilful damage and one of serious assault.  In respect of the latter, he was sentenced to six months imprisonment to be suspended after two months with an operational period of two years.  Police attended an altercation on Palm Island in which he was throwing rocks at his mother’s house and arrested him for wilful damage.  When police officers were attempting to put him in a police van, he spat saliva over the face of one of them.  That applicant had a criminal history which involved a number of street offences and some breaches of bail undertakings.

1. On McLean’s application for leave to appeal against sentence, it was submitted that the sentencing judge had not properly taken into account his socially and economically disadvantaged background; the proper order would have been an intensive correction order.  This court noted, however, that the applicant’s history of disregarding bail undertakings did not suggest that he would abide by such an order.  He had not expressed remorse for the offending, and his calculated defiance and contempt made it appropriate that he serve a term of actual imprisonment.  Nonetheless, given the importance of rehabilitation for a young man with a relatively minor criminal record, to impose a suspended sentence was not a proper exercise of discretion; it meant that he would spend the operational period without guidance and exposed to a risk of return to custody.  The appeal was allowed and a sentence of imprisonment of six months, with parole fixed after two months, was substituted.

Discussion

1. A feature which marks out this case from others is the fact that the applicant had already served 203 days in custody.  That would have been an extraordinary result were she being sentenced without having spent time on remand, allowing for the usual discount of the order of two thirds of the sentence in recognition of the early plea of guilty, and, possibly, a further reduction to allow for her disadvantaged background and lack of any relevant criminal history.  While I do not suggest that they constitute an exhaustive range, the authorities reviewed indicate a period of actual custody in spitting and biting cases where there has been a plea of guilty varying between no time to be served and three months.  The sentencing judge, with respect, in observing that a sentence of six months was inadequate, failed to take into account the fact that the applicant had actually served almost seven months.

1. This court’s decision in R v King would suggest that his Honour’s observation that “sentences significantly more than six months are appropriate in cases of this sort” may be an over-statement, at least for an offender without a relevant or otherwise serious criminal history.  Certainly the review of authorities I have undertaken does not suggest that a sentence of 15 months as a head sentence was appropriate here.  The sentence most nearly approaching that period was that imposed in Juric which involved separate acts of spitting both saliva and blood into two police officer’s faces by an applicant with a history of similar assaults; a far more serious case than this.  This case did not involve the use of blood as occurred in Juric, and in King and Hawton; nor an offender with any previous criminal history for offences of the kind, as in Juric, Reuben, Hamilton, Hawton, Barry and Holden.

1. Neither counsel addressed, in their written submissions, the appropriateness of the sentence of 12 months for the punch delivered to the police officer.  In oral argument, counsel for the applicant pointed out that not only was it not suggested that it caused any injury, but the officer’s victim impact statement, beyond mentioning that it had occurred, contained no indication of any pain or distress caused by it, his focus being entirely on the spitting incident.  The respondent did not point to any authority for the proposition that a sentence of 12 months imprisonment for that physical act would have been appropriate in the circumstances of this case.  In my view, the same considerations in relation to the period of actual custody served and mitigating circumstances apply to it.

Conclusions

1. The mitigating factors in this case were insufficiently recognised and the significance of the applicant’s having served such a substantial period in custody was overlooked.  Seven months actual imprisonment was more than adequate by way of punishment and in providing for personal and general deterrence.  The sentence imposed was manifestly excessive.  I would:

(1)        grant the application for leave to appeal;

(2)        allow the appeal;

(3)set aside the sentences imposed on the indictment below and substitute a sentence of 203 days imprisonment in respect of each with the declaration that the applicant has already served 203 days, between 4 February 2012 and 3 April 2012, and between 30 April 2012 and 19 September 2012, on each of those sentences.

1. FRASER JA: I agree with the reasons for judgment of Holmes JA and the orders proposed by her Honour.

1. NORTH J: I agree with the reasons for judgment of Holmes JA and the orders proposed by her Honour.