R v Miekle

[1992] QCA 250

COURT OF APPEAL [1992] QCA 250

MACROSSAN CJ McPHERSON JA DAVIES JA

CA NO. 134 OF 1992

THE QUEEN
v.

MICHAEL SCOTT MIEKLE

(Applicant)

BRISBANE
... DATE 21/7/92

JUDGMENT sentences imposed on 24 April this year in the Brisbane Magistrates Court. The applicant is a 21 year old and on the day referred to he was dealt with on five charges. They arose out of the same episode and its aftermath. He was fined on one charge the sum of $50 for the use of obscene language, on the second $75 for resisting a police officer in the execution of his duty and on the third a fine of $150 for assaulting police in the execution of his duty. No challenge is made to those sentences.

The application is made in respect of the next two, charges 4 and 5, where he assaulted police in the execution of duty, and on each was sentenced to a term of four months' imprisonment, those terms to be served concurrently.

On one evening in Fortitude Valley, Brisbane, the applicant was approached by police. He had been drinking, it seems, but he was not drunk. An argument followed, and the applicant was taken into custody. While he was being taken into custody, he spat at one of the arresting constables. Somewhat later then, when he was taken to the watch-house, his behaviour was worse in that it involved a repetition. After that interval he spat again at a police officer, who approached him there.

The Magistrate, in sentencing him on his plea of guilty, said quite properly that the two assaults that we are concerned with were disgusting acts, that there was currently a feeling of apprehension in the community because of the diseases which are a feature of modern times, and he mentioned also, it would seem from some of the material, that that type of offence in the Magistrate's view usually attracts a custodial sentence.

Some little challenge is made to this last observation, but no material is put before us one way or the other. The Magistrate sitting in Brisbane District and dealing with the busy work of that Court, would be as well placed as anyone, unless there is some better material available, to know whether such offences usually attract a custodial sentence.

Our attention was in fact drawn to one matter, Gabriel and Campbell, in the Court of Criminal Appeal, Court of Appeal No. 130 of 1990, where a sentence of three months' imprisonment for spitting on a complainant police officer was not interfered with by the Court.

The Magistrate was told that the applicant had no previous criminal history, and his date of birth was given also to the Magistrate. Amongst the other things that the Magistrate was informed of was that the applicant was employed by a newspaper company and had been since 1986 and that he was in the fourth year of his apprenticeship as a printer. Nothing more was said to the Magistrate about the effect which the imposition of a custodial term would have on the course of his apprenticeship, just those bare facts and some other non-related matters were drawn to the Magistrate's attention.

It is necessary to say that the Court takes an extremely serious view of the behaviour of the applicant. The fact that this disgusting kind of assault took place when the police were executing their duty is especially an aggravating feature.

There is need, always, for an appropriate deterrent to uphold the authority of the legal processes and the execution of police duties; however, we are informed by counsel appearing on behalf of this young man today that he has been on bail since the imposition of the sentences. And it is said to us, although there is no material to support it, that it is likely that he will lose his apprenticeship if he has to serve the custodial term.

The Crown does not accept that that is so, so we are merely left with the risk that the imposition of a custodial term will have some effect on this young man's apprenticeship. He is now in his fourth year and it is a time when apprenticeships cannot freely be obtained in the community, we can assume due to current economic conditions. His counsel says that he pleaded guilty as a demonstration of the remorse which he feels about his actions.

And there would be no justification, as I see it, for interference if appropriate regrets were not felt by the applicant and also if there were not this risk which we see that the apprenticeship would be jeopardised by a custodial term.

We are told that, if we were disposed and felt ourselves free to interfere with the penalties imposed below, the applicant would accept the imposition of a term of community service. That is so, you confirm do you not, Mr. Bain?

MR. BAIN: Yes, Your Honour. applicant would accept a community service order. What the Court would impose would be 100 hours community service on each of the offences, that is a total of 200 hours community service. It is indicated to us that he does.

THE CHIEF JUSTICE: And he is present in Court?
MR. BAIN: He is, Your Honour.

The order would be made on the basis that the applicant reports in person within 24 hours to the correctional officer or supervisor appointed in his case; that he perform in a satisfactory manner for the number of hours specified in the order, and that will be 100 hours in each case, such community service as a community correctional officer or a supervisor directs and at such times; and that he perform that service, complying with every reasonable direction of the supervisor; that he advise the community correctional officer of every change of his place of his residence within 48 hours of that change. On the basis that that is accepted the Court will proceed to make those orders - they are accepted?

APPLICANT: Yes, Your Honour. it will be necessary for you to comply strictly with all of the terms of those orders - they will be similar in each case. If you fail to comply with the order or breach the orders in any way, you render yourself liable to be dealt with for those breaches or non-compliance. And the result of it would be that you would be committing an offence against the Corrective Services Act.

Very well then, in this case I would favour granting the application for leave to appeal against sentence and allowing the appeals setting aside the penalties - the terms of imprisonment imposed below and substituting in each case an order that the applicant perform 100 hours of community service as described, that is, 100 on the first and a further 100 hours on the second.

It also appears from the record that the notice lodged on 5 May was in form an appeal against conviction as well against sentence.

MR. BAIN: Abandoned, Your Honour. No one is obliged - the more so when acting in the course of his public or official duty - to submit to the humiliation and degrading experience of being spat upon by another person. The only reason that persuades me to join in the course we are adopting here is a pressing concern to avoid the risk of destroying the future of a young man who, so we are assured, now appreciates the seriousness of what he has done and is appropriately remorseful.

THE CHIEF JUSTICE: It is abandoned. So I will favour, then,
making an order accordingly dismissing the appeal against
conviction.

For my part, I would be pleased to think that the applicant might carry his remorse to the point of making a personal apology to the two police officers concerned but I should make it quite clear that that is a personal wish and not part of any order that we are making. I agree with the remarks that the Chief Justice has made and with the order that he proposes.

DAVIES JA: I AGREE.

THE CHIEF JUSTICE: The orders will then be as we have indicated.