R v White

[1992] QCA 419

COURT OF APPEAL [1992] QCA 419

DAVIES JA
McPHERSON JA

de JERSEY J

CA NO. 244 OF 1992
THE QUEEN
v.

PAUL BERNARD WHITE Appellant

CA NO. 263 OF 1992

GARTH NOBLE KIRKWOOD and

RAYMOND IAN RAINE Respondents

and

PAUL BERNARD WHITE Appellant

BRISBANE
... DATE 19/10/92
JUDGMENT

McPHERSON JA: These are applications for leave to appeal against sentences imposed, two of them in the District Court of Bundaberg, and the others in the Magistrates Court of Bundaberg.

In respect of the latter, we have already extended the time

within which to make the application for leave to appeal.

The applicant is Paul Bernard White. He was a man of some 29 years of age, who was driving his vehicle in Bundaberg one day

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when the police attempted to stop him. They were carrying out standard breathalyser procedures of motorists, and were attempting to apply that procedure to him. The applicant did not stop. He was pursued, and eventually was apprehended. It was evident that he was quite substantially intoxicated and he was, in due course, dealt with for the offence of driving in that condition.

To remain, however, with the matter before us now, when the applicant was placed in the police van, he struggled, had to be handcuffed, and proceeded to kick the back of the van so as to bend or, to some extent, buckle it. That represents one of the two charges, namely the charge of wilful damage, which was brought against him in the District Court of Bundaberg.

The other charge in the District Court was of a similar kind, that is to say, it was wilful damage constituted in this instance by the applicant's "stomping" on a police typewriter when the police were attempting to deal with him in the police station.

In respect of those two offences, the District Court Judge before whom the matter came on pleas of guilty, imposed terms of 15 months imprisonment to be served concurrently.

The offences dealt with in the Magistrates Court were charges of

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assault committed in each case against the members of the police force who were attempting to restrain the applicant after he had been conveyed to the police station. At the police station he continued to behave violently, and had to be carried to a cell. There he spat in the face of Constable Kirkwood, which gave rise to count 1 before the Magistrate.

He punched another police officer, whose name was Jensen, and when it became necessary to bring the applicant from the cell in order to have a blood sample taken, he punched Sergeant Raine - that represented count 2 - and he had to be handcuffed again. He also, it is said, spat in Raine's face and told him he hoped that Raine would get AIDS. He threatened to bite Raine, he attempted to strike him in the genitals, but Raine avoided the blow. He was required to provide a breath specimen, but remained violent and refused to do so.

In respect of those three offences, what the magistrate did was to impose sentences of six months imprisonment in each case. He made one of those sentences cumulative on one of the other, or the other sentences for assault. He also made those sentences cumulative on the sentence or sentences imposed in the District Court. The result was that the effective sentence to be served by the applicant in consequence of his actions that were the subject of this series of applications was imprisonment for 27

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months.

The application for leave to appeal is based essentially on the ground that the effective sentence of 27 months is manifestly excessive. Mr. Ridgeway, on behalf of the Crown, has candidly acknowledged that he finds it difficult to sustain an effective sentence of that duration in the case of the offences dealt with here. They were, in fact, before the District Court and the Magistrates Court on successive days, and one cannot escape the feeling that, had they been dealt with by one judicial officer rather than two, the result might have better accorded with what one would expect in this case.

The applicant has, it must be said, a very considerable history of criminal offences. They include a series of convictions in respect of the use of prohibited drugs and the like. There are also a number of offences concerned with breaking and entering buildings, and stealing property, and matters of that kind. On top of that, there are further offences falling into a class like these; that is to say, assaulting police and resisting police in the course of their duty. He has, we are told, also been proceeded against for another offence, involving the commission of grievous bodily harm, as to which he was given probation by the sentencing Court in that instance.

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It is said that he had an unsatisfactory upbringing, though one would expect that a point has so often been made of that that he must now be taken to have pretty well exhausted whatever goodwill might be expected to flow from that circumstances.

It was also pointed out that he spent some three days or so in the watch-house in Bundaberg under conditions which were not comfortable - by which is meant that he was evidently unable to have a shower or change of clothes.

It is a possible mitigating factor also to be taken into account that he was obviously fairly heavily intoxicated at the time. Indeed many of his problems appear to arise from alcohol or drug abuse, of which there is ample evidence in the convictions he has previously sustained.

When all these matters are taken into account, it seems to me that the proper course to have taken, and the course that should be taken now, is to impose sentences of six months each in respect of the offences of wilful damage to property that were dealt with in the District Court, but to leave untouched the penalties imposed in respect of the offences of assault that were dealt with in the Magistrates Court.

That would, in my view, give effect to the impression that I have

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that the overall sentence of 27 months is excessive, without derogating from the seriousness of the assaults carried out by the applicant on the police officers, who were simply doing their duty in attempting to restrain his violence in the police station.

In the result I would allow the applications for leave to appeal in respect of the two sentences imposed in the District Court. I would allow those appeals and substitute for the sentences of 15 months imposed in respect of each of them sentences of six months imprisonment. I would do so without disturbing in any way the sentences imposed in the Magistrates Court, with the consequence that the effective sentence in respect of all these offences would become 18 months instead of 27 months imprisonment.

DAVIES JA: I agree.

de JERSEY J: I agree.

DAVIES JA: That is the order of the Court. Adjourn the Court.

THE COURT ADJOURNED AT 3.26 P.M. TILL 10.15 A.M. ON TUESDAY 10

OCTOBER 1992.

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