R v Dunne; ex parte

[2006] QCA 290

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dunne;  ex parte A-G (Qld) [2006] QCA 290

PARTIES:

R
v
DUNNE, Barbara Anne
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 112 of 2006
DC No 2068 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Mt Isa

DELIVERED ON:

11 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2006

JUDGES:

McMurdo P, Jerrard and Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - where respondent and co-offenders pleaded guilty to one count of threatening to enter a police station in the night with intent to intimidate two police officers - where respondent was sentenced to 12 months probation and 60 hours community service - where respondent's daughter was arrested - where some local people gathered outside watch house protesting against her arrest and threatening officers and their families - where respondent encouraged these people to help her release her daughter - where respondent believed one of the officers had previously unfairly harassed members of her family - where Attorney-General is appealing against sentence imposed on respondent - whether any issue of parity of sentence between co-offenders - whether sentence was manifestly inadequate

Criminal Code 1899 (Qld), s 669A

R v D [1996] 1 Qd R 363, applied
R v Felsman, Baker, Baker & Baker [2005] QCA 453; CA Nos 308, 309, 310 and 311 of 2005, 7 December 2005, considered
R v Toby [1998] QCA 452; CA No 374 of 1998, 2 December 1998, considered

COUNSEL:

P F Rutledge for appellant
P J Callaghan SC for respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for appellant
Legal Aid Queensland for respondent

1. McMURDO P:  In the Mt Isa District Court on 30 March 2006 the prosecutor presented an ex officio indictment charging Margaret Dunne with one count of assaulting a police officer while acting in the execution of his duty;  Richelle Dempsey with one count of assaulting police officers while acting in the execution of their duty and the respondent, together with Theo Patrick Corporal, Richelle Dempsey and a juvenile with threatening to enter a police station in the night with intent to intimidate Darren John Hunt and Stephen Francis Shackell.  The named accused all pleaded guilty.[1]  The respondent was convicted and sentenced to 12 months probation and 60 hours community service.  The other named offenders all received similar sentences.  The appellant, the Attorney‑General of Queensland, contends the respondent's sentence was manifestly inadequate.  There is no appeal against the other offenders' sentences.

   [1]A number of summary offences were also dealt with but they have no direct relevance to the appeal before this Court.

1. The respondent was 39 at the time of the offence and 40 at sentence.  She had two minor matters on her criminal history:  in 1981 she was convicted and fined for obscene language and in 2000 she was fined without a conviction for obstructing a police officer.

1. Margaret (Rita) Dunne, the respondent's daughter, was 23 at the time of her offence and 24 at sentence.  She had a minor criminal history, all recorded in the Boulia Magistrates Court.  It commenced in 2000 when she was fined without conviction for common assault.  In 2002 she was again fined without conviction for common assault and convicted and fined $100 for behaving in a riotous manner.  Later that year she was convicted and fined $75 for behaving in a disorderly manner.  In 2004 she was convicted and fined $200 for committing a public nuisance.  Richelle Dempsey was 18 years old at the time of her offences and at sentence and had no prior convictions.  Theo Corporal was 22 when his offence occurred, 23 at sentence and had no prior convictions.

1. I turn now to the facts of and surrounding the offence to which the respondent pleaded guilty.  The prosecutor at sentence tendered statements from the two complainant police officers.  Sergeant Hunt, the officer in charge at Boulia Police Station, set out in detail his perception of the events on Saturday 23 July 2005 which unfolded over several hours.  At about 12.10 am he received information about a disturbance and commenced to walk to the police station from his home.  He heard screaming from a house about 200 metres away.  He walked up the driveway of the house with Senior Constable Shackell.  He saw Margaret Dunne in the driver's seat of a white Nissan hatchback.  The keys were in the ignition.  She had a can of rum and coke in her hand.  She said "What do you fucking cunts want?"  He said "We need you to do a breath test."  She responded "Get fucked you white cunt.  You're not doing fuck all."  Hunt said "Rita I require you to supply a specimen of breath.  You're going to have to come with me."  She answered "You think you're smart you white cunt.  Fuck you."  Hunt's response was "Right you're under arrest."  He led her to the police vehicle parked on the street in front of the house.  She said "Help.  Help me.  Get these white cunts.  Help me."  Margaret Dunne struggled and resisted the police officers' efforts to take her to the police vehicle.  Richelle Dempsey ran towards them and pulled at the police officers' arms in an attempt to free Margaret Dunne.  Richelle said "Let her go you white cunts.  Help, they're taking Rita.  Help.  Get these white cunts."  Margaret Dunne added "Fuck you cunts.  Let me go you white cunt.  Get these white cunts."  Margaret Dunne and Richelle Dempsey struggled with the police officers.  A group of about six or seven men including Theo Corporal were abusing and threatening to assault the police officers.  Richelle Dempsey and Margaret Dunne continued to struggle with the police officers.  Theo Corporal raised his fists in a threatening manner;  he walked towards and then rushed at the police.  Sergeant Hunt drew his capsicum spray and threatened him with it.  Corporal motioned to throw a punch and Hunt sprayed him.  He told Corporal he was under arrest and to stay there.  Richelle Dempsey finally let go of Margaret Dunne who was placed in the rear of the police vehicle.  Margaret Dunne spat at police officer Shackell;  her saliva hit his overalls.  A juvenile was also involved in the fracas.  Hunt told him he was under arrest.  The juvenile said "Fuck you, you white mother fucker" and fled.

1. The police drove Margaret Dunne to the Boulia watch house and locked her in.  They then walked towards the police station.  The respondent and Neil Dunne (Margaret's parents) walked down the driveway towards them.  Other people were walking and driving towards the police station.  The respondent screamed "What the fuck have you arrested Rita for.  She hasn't done anything wrong.  You cunts think you're smart.  You wait.  I'm sick of you white cunts."  She pointed her finger in a threatening manner at the police officers.  Hunt said "There's no need for that Barbara.  Rita's been arrested and she's going to be charged."  The respondent screamed "What the fuck for?  She didn't do anything.  You fucken let her out now or you white cunts are going to be sorry."  Sergeant Hunt said "I'm not speaking to you about it when you're carrying on like this.  Neil I'm happy to explain it to you but I'm not going to be abused and spoken to like that by Barbara."  The respondent screamed "Eh talk to Neil but not me eh?  You white cunts think you're smart.  You're too big for your boots.  Fucken white cunts always harassing my family.  I'm sick of you white cunts."  Hunt said "I'm not being spoken to like that.  Neil, if you want to know, fine but I'm not speaking to Barbara like this."  The respondent screamed "Right you cunts are gonna be sorry.  I'm getting on to McGrady's office you white cunts."

1. The two police officers walked inside the police station.  A group of people were gathering outside.  Hunt heard the respondent inciting others to help her attack police and she continued to yell racial abuse at the police.  Some in the group threw rocks at the police station and threw wheelie bins around the adjoining park.  The juvenile and Theo Corporal joined the group.  Hunt heard them say words to the effect that they would bash the police and burn down the police station like on Palm Island.  Margaret Dunne kicked the metal doors of the watch house.  She said "Fuck you white cunts.  Let me out.  I haven't done anything.  Mum get a big mob down here and smash these cunts.  I'm gonna get Uncle Murandoo down here.  He'll smash you white cunts."  The respondent said "I'm sick of these white mother fuckers.  Let's bust Rita out."

1. Sergeant Hunt briefed his superiors and requested assistance.  As he and Shackell prepared to leave the police station he heard some in the group threatening to burn down the police station.  He heard one member of the group whom he thought was the respondent say that they were going to attack the police officers' families if they could not get the police officers.  Hunt feared for the lives of his and Shackell's families.  Hunt and Shackell came out of the police station.  Corporal yelled "They're coming out of the cave."  The police officers then video-recorded the group.  Included amongst many others in the main group in front of the station were the respondent, Neil Dunne, Corporal and Richelle Dempsey.  The respondent incited others to try to free Margaret Dunne from the watch house.

1. Hunt and Shackell returned to the police station to make arrangements for their families' safe evacuation.  Neil Dunne returned to the police station with Boulia Shire mayor, Trevor Jones.  Hunt explained to Dunne the circumstances of his daughter's arrest, that they did not intend to keep her in custody but that they could not process and release her because of the volatile mob.  Neil Dunne attempted to explain this to the respondent who continued yelling racial abuse.  Mayor Jones also attempted to explain the situation to her but she continued to incite the assembled group.  Sergeant Hunt saw Richelle Dempsey in a nearby telephone box using the telephone.

1. Hunt and Shackell again walked outside.  The group remained abusive and continued to threaten the police officers.  The respondent continued to incite others to try to break Margaret Dunne out of the watch house.  She said "I'm gonna bust Rita out."  At least two other males, one of whom was the juvenile, agreed to help.  Three males including the juvenile and Corporal started to walk towards the watch house with the respondent.  Margaret Dunne was kicking the doors of the watch house and yelling abuse and racial slurs at the police.  The respondent said "And what are you doing about that party over there?" referring to a party at a residence at the rear of the nearby park.  Others in the group suggested that the police were not doing their job by allowing a noisy "white fella" party to take place without police intervention.  Sergeant Hunt again explained that he could not release Margaret Dunne whilst the respondent was inciting others because there could be an escalation of offences.  Margaret Dunne pleaded with her mother to leave so she could be released.  The respondent continued to abuse the police officers.  Margaret Dunne became hysterical and kicked at the cell doors.  Richelle Dempsey tried to calm her down.  The respondent walked to the front of the police station.  Sergeant Hunt was then able to speak with Margaret Dunne who calmed down once the assembled mob left.  She apologized for her actions.  He explained she would be released shortly and she became calm.

1. Extra police arrived at about 2.00 am.  Sergeant Hunt arrested Richelle Dempsey and placed her in the watch house with Margaret Dunne.  Dempsey was charged and released on bail at about 6.00 am with Margaret Dunne.  The next morning he arrested Theo Corporal.  At 10.40 am he went to the respondent's home.  She said "Fucken arrest me you white cunts, arrest me.  Go on."  They asked her the whereabouts of the juvenile.  She said "What the fuck do you want him for?  What did he do?  This is harassment.  I'm sick of you cunts."  Senior Constable Shackell video-recorded the incident.  Sergeant Hunt placed the respondent in the police vehicle.  Margaret Dunne pointed at Shackell and said in a threatening manner "I'll fucking kill you Steve."  The respondent was taken to the watch house and charged.  She said that she understood the police had locked up Margaret Dunne and handcuffed her for nothing and that they had treated her roughly;  the respondent thought the police were harassing her family.  Sergeant Hunt complained about the respondent's conduct in standing in the main street and calling the police officers racial names, threatening their families and encouraging others to start a riot.  The respondent said "Well I'm not taking it back and I won't apologize."

1. During the incident Sergeant Hunt feared for the safety of his family.  His young children have been emotionally distressed by these incidents.

1. The prosecutor submitted that the respondent was the most culpable of all the offenders because she was the eldest in the group and incited others to behave in an inflammatory way.  Her behaviour warranted a term of imprisonment because of principles of general deterrence.  He emphasized that police are particularly vulnerable in remote communities such as Boulia;  to do other than sentence her to a term of imprisonment would send the wrong message to the Queensland police service;  a term of imprisonment of nine to 12 months was appropriate but because there was no damage to property or personal injury it could be wholly suspended.

1. Defence counsel at sentence submitted that in relation to all four of the adult offenders, probation and community service was the appropriate penalty.  They had all accepted their wrongdoing and pleaded guilty.  The respondent had lived in the Boulia community all her life and was the first Indigenous councillor on the Boulia Shire Council.  She was a councillor at the time of the offence.  He submitted that for many years Boulia had been a happy community.  When Sergeant Hunt arrived, the perception developed amongst the local Indigenous community that he had a set against them.  The respondent also held that view and she and others in the local Indigenous community perceived that Sergeant Hunt treated the Indigenous citizens differently to the local non-Indigenous population.  Sergeant Hunt and the respondent frequently clashed over his treatment of Indigenous people.  They had been in conflict over some of her Indigenous foster children and their attendance at school.  She perceived Sergeant Hunt was harassing the children on days when she felt they had legitimate reasons not to attend school.  She felt that she and other members of her family had been harassed by police officers in the days leading up to this offence.  On the night of the offence there was a noisy party in a non‑Indigenous household but the police attended only the party at the Indigenous household.  The respondent felt that her daughter Margaret was being unfairly harassed by the police.  This perception was inflamed when Margaret was arrested.  Technically she may have been in control of a motor vehicle, but she was on private property and was merely listening to loud music in the vehicle, not driving it.  When the respondent became aware that Margaret had been arrested in these circumstances she went to the mayor, Trevor Jones, to get his assistance in having her daughter released.  He could not attend until he had closed his hotel.  The respondent's subsequent conduct and comments that night were made out of frustration and in anger against the background and with the perceptions described.

1. The prosecutor did not dispute the facts put forward by defence counsel.

1. In sentencing the primary judge expressed his concern about all the offenders' behaviour on the night of the offences.  For the purposes of sentencing only, his Honour accepted defence counsel's submissions that the respondent and the other offenders perceived that Sergeant Hunt had been treating members of the Boulia Indigenous community unfairly for some time and that their anger and frustration erupted that night in the commission of these offences.  His Honour found that the offenders did not intend to burn the police station or to carry out the threats that they made.  He referred to the very serious aspect of the offences.  He noted that the prosecutor did not contend that any time in actual custody be served by the offenders.  The judge considered that all the offenders would benefit from the assistance given to them by probation over a 12 month period and that they should also do something useful by way of community service.  He urged them to live in peace with the police officers and the rest of the community.

1. Neither the appellant nor the respondent have been able to refer this Court to any closely comparable cases.  They agree there is no established range of sentencing to cover the respondent's offending.  R v Toby[2] has some similarity.  Toby pleaded guilty to assembling in a manner so as to cause persons in the neighbourhood fear that the persons so assembled would tumultuously disturb the peace.  Toby was sentenced to three months imprisonment wholly suspended for nine months.  He contended the sentence was manifestly excessive.  This Court dismissed his application for leave to appeal.  I expressed the view, with which Pincus JA agreed, that actual or fully suspended imprisonment was not the only appropriate sentence for that type of offence and that other non-custodial sentences may also be open.  Although the maximum penalty for Toby's offence was imprisonment for one year whilst the maximum penalty for the offence to which the respondent pleaded guilty was five years imprisonment, those observations remain apposite to the present case.

   [2][1998] QCA 452; CA No 374 of 1998, 2 December 1998.

1. The respondent's offence was undoubtedly serious.  Sergeant Hunt and Senior Constable Shackell would have been understandably concerned for their safety and the safety of the police station.  They were also concerned for their families but threatening the families was not part of the charge to which the respondent (or any of her co-offenders on the indictment) pleaded guilty.  The respondent can only be punished for the conduct to which she has admitted guilt, namely threatening to enter a police station in the night with intent to intimidate the two police officers:  see R v D.[3]

   [3][1996] 1 Qd R 363, 403 - 404.

1. The conduct of the offenders and those who supported them was an entirely inappropriate response to their perception that Sergeant Hunt had wrongly arrested Margaret Dunne because of her Aboriginality.  The respondent was a Boulia Shire councillor.  She clearly understood that there were lawful avenues in which to voice her complaints, for example, through her local member of Parliament to whom she referred in her police-directed rantings.  She let down herself, her family and her community in behaving as she did at this time instead of showing measured leadership.  The appellant and the prosecutor at sentence correctly submitted that deterrent sentences were required for such unacceptable behaviour, which amounted to an attack on the rule of law in a relatively remote rural community.  There were however significant mitigating factors.  The judge accepted for the purposes of sentencing that the respondent genuinely perceived that her daughter had been wrongly arrested and was being unfairly discriminated against because of her Aboriginality.  In the end, despite the potentially volatile situation, no-one suffered personal injury, no property was damaged, the offenders realized the foolishness of their words, actions and general bad behaviour and returned to their homes;  the police reaffirmed their authority.  The next day the police ensured the respondent and her co-offenders faced the full force of the rule of law.  The subsequent events (the respondent's charging and arrest, her early plea of guilty to an ex officio indictment, her recorded conviction, her completion of a community service order and subjection to a probation order) demonstrate that the rule of law has had full application to the respondent's case, despite Boulia's relative remoteness.

1. The appropriate sentence for an offence of this type always turns on the particular circumstances of each case.  I have referred to the serious aspects of the respondent's offending but it was not at the most serious end of the range of offending for this type of offence.  The respondent has very little criminal history and has achieved an important milestone in becoming the first Indigenous councillor on the Boulia Shire Council.  Her court appearances on this matter and her recorded conviction combined with the ignominy of having to complete a 12 month probation order and 60 hours community service were public and substantial punishment.  The appellant does not contend that the sentences imposed on the respondent's co-offenders were inadequate;  yet Margaret Dunne, although younger, had a worse criminal history than the respondent;  furthermore Margaret Dunne and Richelle Dempsey were charged with a more serious offence than the respondent, punishable by up to seven rather than five years imprisonment.  Despite the respondent's greater maturity, issues of parity of sentence between co-offenders tend to support the sentence imposed.  Certainly a longer probation and community service period could have been imposed on all offenders, as could a wholly suspended term of imprisonment:  cf, for example, R v Felsman, Baker, Baker & Baker.[4] I am not however persuaded that the sentence imposed was outside the appropriate range so as to justify this Court's interference under s 669A(1) Criminal Code.

   [4][2005] QCA 453; CA Nos 308, 309, 310 and 311 of 2005, 7 December 2005.

1. I would dismiss the appeal.

1. JERRARD JA:  In this appeal I have read and respectfully agree with the reasons and order proposed by the President.

1. HOLMES JA:  I agree with the President's reasons and would dismiss the appeal.