R v Hawton

[2009] QCA 248

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hawton [2009] QCA 248

PARTIES:

R
v
HAWTON, Michael John
(applicant/appellant)

FILE NO/S:

CA No 7 of 2009
DC No 940 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 June 2009

JUDGES:

Keane and Muir JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal against conviction dismissed

2.   Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where appellant was convicted, after trial, of two counts of assaulting a police officer acting in the execution of duty – where primary judge directed the jury in relation to the existence of a possible defence under s 31(1)(c) Criminal Code 1899 (Qld) but did not direct the jury in respect of s 25 of the Code – whether primary judge erred in ruling s 25 of the Code did not apply and failing to direct the jury in terms of that section

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant sentenced to 12 months imprisonment on each count – where sentences served concurrently with one another and with the unserved five month balance of a six month term of suspended imprisonment – where parole release dates were set as the last day of the 12 month terms – whether set parole release dates resulted in sentences being manifestly excessive

Corrective Services Act 2006 (Qld), s 184
Criminal Code 1899 (Qld), s 25, s 31(1)(a), s 31(1)(c), s 254
Penalties and Sentences Act 1992 (Qld), s 160B(3), s 160G(1)

Drew v Makita (Australia) PL[2009] QCA 66, cited
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, cited
R v Barry[2007] QCA 48, considered
R v Hamilton[2006] QCA 122, considered
R v Juric[2003] QCA 132, considered
R v Kitson[2008] QCA 86, cited
R v Mokoena [2009] QCA 36, cited
R v Reuben[2001] QCA 322, considered

COUNSEL:

D S Shepherd for the appellant
M J Copley SC for the respondent

SOLICITORS:

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

1. KEANE JA:  I have had the advantage of reading the reasons for judgment prepared by Muir JA.  I agree with those reasons and with the orders proposed by his Honour.

1. MUIR JA:  Introduction

The appellant was convicted on 11 December 2008 after a trial in the District Court of two counts of assaulting a police officer acting in the execution of duty.  He was sentenced on each count to 12 months imprisonment.  Those terms were ordered to be served concurrently with each other and with the unserved five month balance of a six month term of suspended imprisonment imposed on 8 November 2005.  The appellant had already served one month of that term consequent upon an order made in the Magistrates Court on 17 November 2006.  The primary judge fixed the appellant's parole release date at 11 December 2009.

1. On the hearing of the appeal, leave was granted for the appellant to add the ground of appeal that the primary judge erred in ruling that s 25 of the Criminal Code did not apply and in failing to direct the jury in terms of that section.  Grounds 1, 2 and 3 on the notice of appeal were abandoned.  The remaining ground was that "the sentence imposed was manifestly excessive."

1. The appellant signed and filed on 19 May 2009 a notice of abandonment of his appeal against conviction and of his application for leave to appeal against sentence.  On 4 June 2009 the appellant made an application for an order that the notice of abandonment be set aside.  The respondent did not oppose the application and it is appropriate in the circumstances that the notice of abandonment be set aside.  The appellant abandoned his appeal after being advised by Legal Aid Queensland that he had been refused legal aid in relation to his appeal and application.  He was of the belief at the time, as a result of advice given to him, that if he proceeded with his appeal, his sentence could be increased.  He took that advice to mean that the sentence could be increased without his having an opportunity to withdraw his appeal and/or application.  He was subsequently advised that his opinion in this regard was incorrect and also that Legal Aid Queensland had agreed to act for him on his appeal.

The evidence

1. The complainants were Constables Hunt and Strang.  They and two other police officers gave evidence of the events relating to the subject offences.  In broad terms, their evidence was to this effect.  On the afternoon of 5 May 2006, Senior Constable Kleidon and Constables Hunt, Strang and Scott went to a dwelling at 2 Madelin Court, Thorneside.  Constable Scott spoke to the appellant in a room in the house and told him that he was under arrest for breach of a domestic violence order and was required to accompany police officers to the Cleveland watch-house.  The appellant became angry, aggressive and abusive.

1. The appellant picked up his wallet and started to look through it.  Constable Scott repeated that the appellant was under arrest and was required to accompany the police officers "straight away".  The appellant continued to be abusive and began to stand up.  A police officer moved to restrain him and the other officers also took hold of him as the appellant endeavoured to free himself from the police officers.  A struggle ensued.  The group moved from inside the house to the grassed area outside.

1. In the course of the struggle, after the appellant had been handcuffed, Senior Constable Kleidon placed the ball of one of his feet on the appellant's head so as to keep the appellant's body flat on the ground.  Although handcuffed, the appellant continued to struggle.  After the appellant went to the ground, Constable Hunt called out that he had been bitten.  Shortly afterwards, Constable Strang also called out that he had been bitten and he rolled up his trouser leg and displayed a small laceration near his left knee.

1. Constable Scott said that she did not hear the appellant claim that he could not breathe or mention anything about his blood pressure.

1. Constable Hunt recalled joining in a struggle with the appellant after Senior Constable Kleidon grabbed the appellant's wrist and Constable Strang had taken hold of his other hand.  He said that when the appellant was in a crouched position on the ground and police were trying to get his hands out in order to handcuff him, the appellant bit Constable Hunt's left ring finger.  He told the appellant to stop biting him and the appellant replied, "I will bite you".  Constable Hunt said that he kneed the appellant in the thigh to get him to straighten out his legs.  He recalled that Senior Constable Kleidon and Constable Strang both knelt on the appellant, each having a knee on a shoulder and the other knee on the appellant's hip.  He does not recall the appellant saying that he had any difficulty in breathing or that he showed signs of any such difficulty.  He recalled that after being taken to the ground the appellant continued to flail about and yell obscenities.

1. Constable Strang's account of relevant events generally accords with that of Constable Hunt.  He recalls Constable Scott informing the appellant that he was being arrested for breach of a domestic violence order and the appellant asserting he wasn't going anywhere and becoming abusive.  He said that in the course of the struggle he saw and felt the appellant bite him on the leg and that the appellant was still struggling when placed in the back of the police van.

1. The prosecution called a Mr Newell, who shared the house with the appellant.  His evidence was to the following effect.  The appellant was inebriated when the police officers arrived at the premises.  Constable Scott told the appellant that he was under arrest for breach of a domestic violence order.  The appellant spoke of ringing a barrister.  One of the police officers looked as if he touched the appellant on the shoulder, saying as he did so, "Come on, Mick.  Let's just go, hey?"  The appellant remonstrated with the police officer and a scuffle started.  He said, "It was just – they were trying to defend themselves like when he's thrown his arm back to that other police officer … and they grabbed him and they tried to hold him.  He put up a good fight.  Then they sort of went over the ground.  Then just put him to the ground and just took two male officers and a female police officer to try and hold him down and then the fourth police officer came over to – to assist them."  When the appellant was being held on the ground he said, "I can't breathe."  At that time, one of the police officers had his knee in his back but the appellant "was still pushing up".  They eventually "got his arm out and put the cuffs on him and one police officer put his heel on the ground like that, and put his foot on the side of his face, so he couldn't keep arching up."  When on the ground, the appellant kept pushing, trying to get back up.

1. A medical practitioner who had examined the complainants on 5 May 2006 gave the opinion that the injuries shown to him by the complainants were consistent with their having been bitten.  He described the injuries to Constable Hunt's hand as a "deep gouge", "a deepish gouge", an "abrasion" and a "superficial abrasion".  The description of Constable Strang's knee injuries included a "deep abrasion".

1. The appellant was examined by Dr Soon at the Redlands Hospital on 6 May 2006.  Dr Soon observed that the appellant had multiple abrasions, multiple bruises and a probable minor fracture of a right rib.  He said that the injury was consistent with a heavy fall to the ground.

1. Ms Hughes was called in the defence case and gave evidence to the following effect.  She had known the appellant for about six years and was present in the house on 5 May 2006 when the police arrived.  The appellant offered to go to the police station but one of the police officers took hold of his wrist.  The others joined in, "pushed him over towards the garden awkwardly and then placed him to the ground in a wristlock."  He was pushed to the ground and he struggled to get out of the wristlock.  The police were, in her opinion, "a bit forceful".  As soon as the appellant was on the ground, two of them had their knees on his back, having jumped on him.  The appellant was asking to be let up onto his knees so that he could breathe.  A police officer placed the sole and part of the heel of one foot on the appellant's head, leaving an imprint of the sole of the shoe on the appellant's face, which was blue, purple and red.  She did not hear the word "arrest" mentioned and the appellant's demeanour was polite "all the way through".

1. The appellant's evidence was to the effect that:  he was "pretty drunk", he was not told that he was being arrested; he was speared into the ground head first and kneed in the ribs four or five times; he was winded when he went down and was yelling out that he couldn't breathe; as one police officer pulled his arm up behind his back, another jumped on the back of his legs; one police officer had his boot pressed on his face; he didn't struggle, remained calm and stayed perfectly still; he was then picked up and moved into a police van.  In cross-examination he denied having bitten the police officers.

The appellant's counsel's submissions 

1. Counsel for the appellant argues that the primary judge erred in not directing the jury in respect of a possible defence under s 25 of the Criminal Code 1899 (Qld). The primary judge directed in relation to the existence of a possible defence under s 31(1)(c) of the Code which relevantly provides:

"A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say –

…

(c)    when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person's presence …"

1. Section 25 of the Code provides:

"Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise." (emphasis added)

1. It was submitted that s 31(1)(c) had no application because the section cannot apply where the threat of violence is lawful. The section requires as a pre-condition to the consideration of the acts of the accused, that the violence threatened be actual and unlawful. If the threat was of unlawful violence, then the subject offences were not made out, because the complainants would not have been acting in the exercise of their duty. Consequently, there was no scope for the operation of any defence under s 31. Section 25 thus applied and had to be excluded by the prosecution.

The respondent's counsel's submissions

1. It was submitted that the appellant's contentions were similar to those made on behalf of the offender and rejected in R v Smith[1] in which Davies JA, with whose reasons the other members of the Court agreed, said:

"I would construe the opening words of s. 25 as excluding its operation where the provisions of the Code relating to acts done upon compulsion are brought into operation; that is, where the act and what is said to be the compulsion require the application of s. 31(1)(c) or s. 31(1)(d). This will be when the evidence establishes an act which, arguably, was done in response to actual and unlawful violence or serious harm threatened to the actor or to some other person. That was the case here. The act said to be done upon compulsion was the act of handing over the gun and the act of compulsion was said to be Emmett's threat.

A somewhat similar construction has been given to a similar phrase in s. 23: 'Subject to the express provisions of this Code relating to negligent acts and omissions'. It was held that s.23 was excluded by these words in circumstances in which, on the evidence, the accused was in charge of a motor vehicle. The Crown was thereby obliged to prove criminal negligence. Here, by analogy, s. 25 is excluded once the evidence establishes a threat and an act done apparently in response to it. The Crown is then obliged to exclude the operation of s. 31(1)(c) and s. 31(1)(d)." (footnotes deleted)

[1][2005] 2 Qd R 69 at 74.

1. The fact that the evidence capable of negating that part of s 31(1)(c) concerning unlawful violence was also capable of establishing that the police acted in the execution of their duty did not make s 31(1)(c) inapplicable. If there existed evidence which raised the issue of whether the appellant acted in response to unlawful violence then s 25 was rightly withheld from the jury's consideration.

Consideration

1. The submission that police officers would not be acting in the exercise of their duty if they threatened unlawful violence cannot be accepted.  Police officers acting in the execution of their duty may lawfully use "such force as may be reasonably necessary to overcome any force used in resisting such … arrest"[2] and where the use of force is lawful, "the use of more force than is justified by law under the circumstances is unlawful".[3] But the use by such police officers of excessive force, although depriving them of the protection s 254 of the Code, would not alter the character of their general conduct. The use of excessive force by arresting officers would not produce the result that the arrest itself was unlawful and not effected in the exercise of their duty. It is unnecessary for present purposes to consider the relationship between s 254 and s 31(1)(a). Nor is it necessary to express a view on the competing contentions of counsel as there was no scope for the possible application of s 25.

   [2]Criminal Code 1899 (Qld), s 254.

   [3]Criminal Code 1899 (Qld), s 283.

1. If the evidence led in support of the appellant's case was to be accepted, although set upon by four police officers and winded so that he had difficulty in breathing, he was able to keep calling out that he couldn't breathe.  Moreover, according to him, he remained calm and, on the evidence of Ms Hughes, he remained polite.  In her opinion the police officers were "a bit forceful".  The appellant at no time suggested that he feared death by asphyxiation, that he took action against his assailants to prevent further harm to himself or that he felt compelled to take any such action.

1. There was thus no evidence capable of supporting a rational conclusion that when the appellant bit the police officers he did so "under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to" do otherwise than bite the complainants as the appellant had done.

1. For the above reasons, the appeal against conviction should be dismissed.

Application for leave to appeal against sentence – the appellant's submissions

1. Counsel for the appellant accepts that the 12 month head sentences were within the range of a sound sentencing discretion "although at the higher end of any range".  It is submitted, however, that the sentences were excessive because the parole release dates were set at the last day of each 12 month term.  The only explanation given for the primary judge's decision in relation to the parole release date appears to be the lack of remorse demonstrated by the appellant in going to trial.  Such lack of remorse is not a circumstance which can aggravate a penalty.[4]

   [4]Cameron v The Queen (2002) 209 CLR 339 at 343.

1. While s 160B(3) of the Penalties and Sentences Act 1992 (Qld) gives the sentencing court a discretion as to when the parole release date should be set, the removal of the statutory eligibility for parole at the halfway mark for those sentenced to three years or less for non-sexual offences or where serious violent offence declarations are not made, does not bring with it an indication that the discretion ought be exercised by extending the period of imprisonment actually served beyond the halfway point if no good reason exists for so doing.

Consideration

1. The sentences imposed were for terms of less than three years and were not for serious violent offences or sexual offences. The primary judge was required by s 160B of the Penalties and Sentences Act 1992 (Qld) to fix a parole release date. Section 160G(1) provides:

"If, under this Act, the court must fix a parole release date for an offender, the court may fix any day of the offender's sentence as the offender's parole release date."

1. The discretion thus conferred on a sentencing judge is broad, but it must "be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent."[5]  In Oshlack v Richmond River Council,[6] McHugh J, discussing the Court's discretion in relation to awards of costs, observed in words which have relevance to the question now being considered:

"Although the statutory discretion is broadly stated, it is not unqualified.  It clearly cannot be exercised capriciously.  Importantly, the discretion must be exercised judicially in accordance with established principle and the factors directly connected with the litigation." (footnote deleted)

[5]C.f. Oshlack v Richmond River Council (1998) 193 CLR 72 at 81 per Gaudron and Gummow JJ.

[6](1998) 193 CLR 72.

1. Holmes JA explained the historical approach in Queensland in relation to parole eligibility in R v Mokoena as follows:[7]

"… in Queensland for many years, eligibility for parole for a prisoner not serving a life term, or (since 1997) not subject to a serious violent offence declaration, commenced, in the absence of an order, after the prisoner had served half of his term of imprisonment.[8] That regime still applies, albeit to a more limited class of prisoner.[9] As a result, the tendency has been to recognise mitigating factors such as co-operation with the authorities by setting a non-parole date earlier than that statutory half-way mark..."

[7][2009] QCA 36 at [12].

[8]Corrective Services Act 1988 (Qld), s 166(1)(d); Corrective Services Act 2000 (Qld), s 135(2)(e).

[9]Corrective Services Act 2006 (Qld), s 184.

1. The second sentence of the quotation refers to s 184 of the Corrective Services Act 2006 (Qld) which, in general terms, applies to a prisoner sentenced after the commencement of the Act to a term of imprisonment of more than three years. A sentence which is unusual in that it deprives the prisoner of an early release date to which he had a legitimate expectation, in normal circumstances, would require the sentencing remarks to explain the reasons for the course taken.[10] In my view, despite the discretion conferred by s 160G, a sentence of three years or less imposed after conviction on trial which makes no provision for release on parole would also require, in normal circumstances, some explanation in the sentencing remarks. Without such an explanation, the prisoner and any appellate court would be left to speculate as to the reasons for the course taken: the prisoner could be left with "a justifiable sense of grievance".[11]

   [10]See e.g. discussion in R v Kitson [2008] QCA 86, [16]-[19].

   [11]See the decision in Drew v Makita (Australia) P/L [2009] QCA 66 at [58].

1. In his sentencing remarks, the primary judge referred to the appellant's prior criminal history.  He noted a conviction in 1997 for common assault and a conviction in April 1998 for obstructing a police officer.  Other convictions referred to were ones on 8 November 2005 and 17 November 2006 for breach of domestic violence orders.  The primary judge stated that a probation order had been made in respect of the appellant on 17 November 2006 and that during its term he had failed to report on occasions.  He then noted that the appellant had completed a life skills programme in 2008 and had attempted to rehabilitate himself.  The primary judge observed:

"The Crown have conceded in this case that a concurrent sentence is appropriate and, given your attempts to rehabilitate in this instance, that seems to be a fair submission."

1. No express reason was given in the sentencing remarks for the selection of the parole release date.

1. Shortly after the sentence was imposed, the Court was reconvened at the behest of the learned Crown Prosecutor who had become concerned about the parole release date.  When the matter came on for hearing she said, in effect, that since approaching the judge's associate, she had given the matter further consideration.  In consequence of her further consideration, it may be inferred, she did not submit that another parole release date should be fixed.

1. There was a brief discussion between the primary judge and the Crown prosecutor concerning the exercise of the discretion to fix parole release dates.  The prosecutor stated, in effect, that the primary judge was entitled to fix the last date of the term of the sentences imposed as the parole release date.

1. The following discussion then took place:

"HIS HONOUR:  Yes.  Was there anything in my reasons that didn't touch upon the need, as such?  I mentioned that he had shown no remorse, et cetera, that – actually your submissions were 12 to 18 months.  I took the 12 months as being appropriate, and the question was whether it be cumulative or not.  It was in my discretion to make it cumulative, but because of his rehabilitation I resisted that temptation to make it cumulative, which the Court did in that case you referred me to of the Queen and Juric.

[CROWN PROSECUTOR]:  Juric, yes.

HIS HONOUR:  And this would have been justified.  But because of his attempts to rehabilitate, I made it concurrent and understood why you made that submission."

1. Counsel for the appellant was invited to make further submissions but declined to do so beyond conceding that the primary judge was entitled by virtue of s 160G of the Penalties and Sentences Act to take the course he did.

1. Although the quoted observations of the primary judge are not as clear as they might have been, I consider that, fairly construed, they are to be seen as the primary judge's reasons for fixing the parole release date.  In substance, his reasoning is that it was appropriate for the appellant to serve a full 12 months of actual custody because the 12 month sentences were at the bottom end of the applicable 12 to 18 month range and the appellant had the benefit of the order that the five month term of the activated suspended sentence be served concurrently.

1. In my respectful opinion the primary judge was entitled to conclude that the 12 month sentences were light.  Counsel for the appellant submitted that 12 months was "at the higher end of any range" in reliance on R v Reuben [2001] QCA 322 (eight months reduced to three months on appeal); R v Juric [2003] QCA 132 (two and a half years reduced to 18 months on appeal), R v Hamilton [2006] QCA 122 (a nine months sentence undisturbed on appeal) and R v Barry [2007] QCA 48 (a sentence of six months which was undisturbed on appeal). In all of those cases the sentence was imposed after a plea of guilty.

1. The appellant in Reuben was a 27 year old Palm Islander resident in a stable relationship with responsibility for a young family.  He had a reasonable work history and had demonstrated genuine remorse.  He had served 15 days pre-sentence custody and, significantly, his bite did not break the complainant's skin.

1. The applicant in Juric had an extensive prior criminal history which included assaults on police offers.  Inebriated on New Year's Eve the applicant, who was being escorted to a police car by police officers, struck one on the face and spat into the faces of two other officers.  The report does not suggest that any of the officers sustained obvious physical injuries.  A sentence of 18 months was imposed for the striking offence and two and a half years for the spitting offences.  A ten month suspended sentence was activated and made cumulative on the other sentences.  Having regard, in particular, to the totality principle the two and a half year sentences were reduced to 18 months.

1. The applicant in Hamilton was a 28 year old soldier who had been recommended for discharge on account of major depressive and panic disorders.  At the time of the offence he was on convalescent leave and there was evidence that imprisonment would be detrimental to his recovery.  Of course, the appellate court in Hamilton did no more than determine that the sentence was not manifestly excessive.

1. The same observation applies to Barry.  In that case the applicant was sentenced to a six month term of imprisonment for assaulting a police officer.  The applicant spat in the face of the complainant police officer on two occasions and also bit him on the hand.  She was the sole carer of her four year son and she was a disability pensioner on medication for depression.

1. The appellant was 48 years of age.  He had a minor, although relevant, prior criminal history.  He was convicted after a trial and showed no remorse.

Conclusion

1. For the above reasons, I am unable to accept that the sentences imposed were manifestly excessive or that the exercise of the sentencing discretion otherwise miscarried.  I would order that the application for leave to appeal against sentence be dismissed.

1. FRYBERG J:  I agree with the orders proposed by Muir JA and with his Honour's reasons for those orders.