R v Fleming

[2006] QCA 26

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fleming [2006] QCA 26

PARTIES:

R
v
FLEMING, Larry Henry
(applicant)

FILE NO/S:

CA No 28 of 2006
DC No 20 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED EX TEMPORE ON:

10 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2006

JUDGES:

de Jersey CJ, Williams and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – DETERRANCE – where applicant pleaded guilty to one count of threatening to do an injury with intent – where applicant sought to prevent public officers from lawfully conducting an approved inspection program on his property – where applicant had an extensive criminal history of comparable offending but had never been imprisoned – where applicant had shown no signs of reforming conduct or rehabilitation – where applicant was sentenced to four months imprisonment suspended after six weeks for an operational period of 12 months – whether sentence was manifestly excessive

Criminal Code 1899 (Qld), s 359

COUNSEL:

A J Rafter SC for the applicant
B G Campbell for the respondent

SOLICITORS:

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

THE CHIEF JUSTICE: The applicant pleaded guilty to an offence under s 359 of the Criminal Code in that on 17 August 2004 at Dalby he threatened to do an injury to one Leahy and one Vidler with intent to prevent them lawfully conducting an approved inspection program on his property.  Mr Leahy was a parking inspector with whom the applicant had previously had some disagreement.  Mr Vidler was an animal control officer. 

At about 8.40 am on the day in question.  Those two men attended the applicant's house in order to inspect for the possible presence of any unregistered dogs.  For obvious reasons they had not notified the applicant in advance of their intention to attend.  They were met with a tirade of abuse from the applicant over some five to 10 minutes in which he made many threats, especially to Leahy.  For example, to smash his head in, to pursue Leahy at his address of which the applicant claimed to be aware and to blow his brains out.

When the men were on the footpath the applicant made threatening gestures with a long handed shovel banging it on the ground and against the fence.  The threats were cast in grossly obscene terms.  The officers taped the exchange.  The playing of the tape illustrates the extremely aggressive nature of the applicant's conduct and confirms that the officers did not in any way provoke or contribute to the applicant's abusive and threatening attitude.  In fact, they are to be commended for having remained so apparently calm through this disturbing incident.  We have listened to the tape.

At the time of these events, the applicant was a 45 year old unemployed man.  It was suggested he was put out because he had an appointment in town at 9 am that day.  Significantly, the applicant had a long history of criminal offending dating back to 1976 including many drug offences, resisting police, breaching domestic violence orders, using threatening words, assaulting police, assault occasioning bodily harm, disorderly behaviour and using insulting words.  His last conviction for behaving in a threatening manner was in July 2003.

He had never been imprisoned but always either fined or given probation and/or community service.  He regularly breached the community orders but, perhaps surprisingly, always avoided imprisonment.  For the instant offence he was imprisoned for four months suspended after six weeks for an operational period of 12 months.  The maximum penalty for the offence is five years' imprisonment.

The Judge was pressed with the significance of his timely plea of guilty and his unfortunate personal circumstances.  He suffered from depression and had not been taking his medication so was stressed and anxious.  Also there was some delay in the prosecution, though it is not suggested that unduly concerned the applicant.  Also he further offended during the period of the delay.

Notwithstanding all of those particular features, it was plainly open to the Judge actually to imprison the applicant for a short term for this quite serious example of threats to public officers lawfully and reasonably going about their public duty.  They are entitled to expect from the courts appropriately deterrent sentences having regard to their need for protection in circumstances like this when, from time-to-time, unfortunately, they may arise.  The Judge was entitled to imprison the applicant for a short term also having regard especially to the applicant's record for persistent and, in some instances, roughly comparable offending.

It was not necessary for the learned Judge before actually imprisoning the applicant to give him the benefit of a fully suspended term of imprisonment.  The applicant had spurned a very large number of opportunities in the past to conduct himself in accordance with the law while standing in jeopardy of further penalty.  The sentencing Judge was perfectly entitled to identify this as a reasonable opportunity to impose a penalty which might at last work some actual personal deterrence in relation to the applicant.  Also, and obviously, the Judge was not bound by the Prosecutor's initial submission that a substantial fine would have sufficed.  The Judge was entitled to consider achieving deterrence demanded a more severe penalty than that.

For these reasons I would refuse the application.

WILLIAMS JA:  I agree.

KEANE JA:  I agree.  It is usually a strong thing to sentence a person to prison for the first time for a short period and especially that may be so where the offences occurred nearly 18 months before the date of sentence, but the course taken below was, it seems to me, one that was open to the learned sentencing judge in the present case.

The applicant's conduct was particularly aggressive.  His threats were couched in terms which were meant to be taken seriously.  The applicant has a stubborn history of aggressive and threatening behaviour which has not been improved by the imposition of other forms of punishment.  The claims of public officers to protection against such behaviour warrant that deterrent sentence imposed by his Honour, bearing in mind the very aggressive behaviour of the applicant and the need for deterrents both generally in relation to this particular offender, I am not satisfied that the sentence was manifestly excessive.  I, too, would dismiss the application for leave to appeal against sentence.

THE CHIEF JUSTICE:  The application is refused.

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