Regina v Patricia Ann Fuller

[2007] NSWDC 354

CITATION:	Regina v Patricia Ann Fuller [2007] NSWDC 354 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT DATE:	7 August 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Appeal allowed. Sentence set aside. Two months imprisonment suspended upon entering into a good behaviour bond under s12 Crimes (Sentencing Procedure) Act 1999.
CATCHWORDS:	Criminal law - Sentence appeal - Assault police officer - Obstruct police - Alcohol problem - Need for courts to support police
LEGISLATION CITED:	s60 Crimes Act 1900 ss 12, 21A Crimes (Sentencing Procedure) Act 1999
PARTIES:	Regina Patricia Ann Fuller
FILE NUMBER(S):	07/32/0394
SOLICITORS:	Ms Harris for the NSW DPP Mr North for the appellant

JUDGMENT
1. The question in this case is how I should deal with an offender who has an alcohol problem and who is attempting to combat that alcohol problem but committed the serious offence of assaulting a police officer.

2. The offender is Patricia Ann Fuller. She was dealt with by a Local Court magistrate for two offences. One was ‘obstructing a police officer in the execution of duty’ and the other was ‘assaulting an officer in the execution of duty’. In respect of the first offence she was fined $400 by the learned magistrate and in respect of the second offence she was imprisoned for two months to commence on 12 June 2007.

HIS HONOUR: Mr North, is there an appeal from the ‘wilfully obstruct officer’?

NORTH: No your Honour.

3. The appeal to this court is from the conviction for assaulting a police officer in the execution of duty. The police facts are these and are contained in exhibit A. Ms Fuller was at a hotel on 4 April 2007 at Coopernook. She was there with her de facto Shane Miller. There was some incident which prompted Ms Fuller to call the police in respect of Mr Miller but when the police arrived and determined that they should arrest Mr Miller, Ms Fuller had changed her mind about the desirability of Mr Miller being arrested. She held onto Mr Miller preventing the police from taking him away. She stood between Mr Miller and the police at one stage. As the police were trying to remove Mr Miller from Ms Fuller’s hold she at one stage swung around and started to punch into the chest and face of one of the police officers, Senior Constable Murray. She continued to punch him in the body area until she was arrested. She herself was placed in the rear of the police vehicle.

4. As I have said for this offence the learned magistrate imposed upon her a term of full time imprisonment for two months. I can well understand the magistrate’s imposition of a period of full time custody. That, in my opinion, was a sentence which was in the available range for this reason. Both the Court of Criminal Appeal and Parliament have emphasised the importance of sentencing courts imposing sentences which will support police officers in performing their duties. Police officers are sworn to protect members of the community and by the nature of their jobs are obliged to place themselves in circumstances where they are particularly vulnerable. They do that on behalf of the community in general and in order to protect specific members of the community from violence.

5. Parliament by enacting s21A of the Crimes (Sentencing Procedure) Act 1999 included as one of the aggravating factors to be taken into account in determining a sentence for an offence the fact that the victim was a police officer.

6. This is a classic example of a police officer who sustained a physical assault upon his person as a result of his efforts to perform his duty. Ironically in this case it was the offender, Ms Fuller, who had originally summonsed the police to deal with Mr Miller.

7. Ms Fuller’s criminal history is before me. She has remained free of involvement with the law for close to ten years. In 1998 she was fined and placed on a bond for assaults and she breached that bond in 1999. Between 1999 and being sentenced for these offences she has not been in trouble. She has convictions extending back to 1992 for assault and driving matters but until now has not been sent to full-time gaol. She has had a series of bonds, at least two of which she has breached.

8. There is a pre-sentence report before me which refers to the fact that Ms Fuller had been drinking on the occasion in question which probably affected her behaviour. The pre-sentence report noted that at the time of interview Ms Fuller was unconcerned by her current drinking levels and did not feel that she would benefit from intervention. The pre-sentence report is dated 5 June 2007. In fact, from the bar table Mr North, who appears for Ms Fuller, tells me that she has not had anything to drink since the date of this offence, namely 4 April 2007.

9. There does appear to be an inconsistency which I have not drawn to Mr North’s attention to or asked him to comment on or get instructions on, so I will give Ms Fuller here the benefit of the doubt and proceed upon the basis that she has not been drinking since April 2007. In any event, if it is the case that she had ceased drinking on or after 5 June 2007, that indicates a period of some two months of being alcohol free.

10. Mr North’s submission is this on behalf of his client. He acknowledges that alcohol is a problem but that she has not been in trouble with the law for some time. She would therefore benefit, he says, from a bond accompanied by supervision to encourage her to adhere to her commendable efforts to abstain from drinking.

11. Ms Harris for the Crown agrees that alcohol is clearly the problem which needs to be focused upon in this case.

12. I am concerned about weighing a number of competing factors in sentencing Ms Fuller. One is the seriousness of this offence and the clear need or duty which I have to reflect in sentence the desirability of protecting police from being assaulted in the course of discharging responsibilities on behalf of the whole community. A second factor is to encourage Ms Fuller in the rehabilitation which she has already commenced. A third is to acknowledge her criminal record to date which indicates that she has been the beneficiary of a number of bonds, some of which she appears to have breached.

13. I should have added in referring to the pre-sentence report that the option of periodic detention is not available because the facility is too far away for a person reliant on public transport, as Ms Fuller is.

14. A number of sentencing options were canvassed by the legal representatives in response to my questioning. Three options were discussed, another bond, a suspended sentence or a community service order.

15. I regard another bond as an inadequate form of punishment for two reasons. One, it does not reflect the seriousness of the offence and the desirability of protecting the police. The second reason is that Ms Fuller has been the beneficiary of a bond before but has offended again and therefore needs to be subjected to a more serious penalty.

16. As for a community service order, whereas that would be an appropriate form of punishment and more serious than penalties she has received so far, it does not permit me to order a supervision for Ms Fuller which would support her in her rehabilitation.

17. The third option of suspending the sentence combines both the reflection of the seriousness of the offence and the ability to provide for supervision.

18. I will proceed to making formal orders shortly, but what I propose to do is to allow the appeal and to set aside the orders of the magistrate and to substitute for them an order that Ms Fuller be subject to a suspended sentence of two months with supervision. Before proclaiming those orders I should record that I regard a sentence of imprisonment as an appropriate penalty in this case for the reasons which I indicated earlier, and I regard an appropriate term as being two months. But I also consider it desirable, in Ms Fuller’s case, to suspend the execution of the whole of the sentence for its duration and to subject her to a bond.

19. Accordingly the formal orders which I make pursuant to s20(2) of the Crimes Appeal and Review Act 2001 are that I set aside the sentence imposed by the learned magistrate. I impose a sentence of imprisonment on Ms Fuller for a term of two months. I suspend the execution of the whole of the sentence for the period of two months and I direct that Ms Fuller be released from custody on condition that she enters into a good behaviour bond for a term of two months.

NORTH: I’ll just indicate, your Honour, she has spent no time in custody at this point in time.

HIS HONOUR: Just say that again?

NORTH: She hasn’t spent any time in custody so any date would go from today.
HIS HONOUR: I date the sentence from today 7 August 2007. And so the two months will expire on 6 October 2007.
NORTH: That is under Section 12, your Honour.
HIS HONOUR: It is a Section 12 bond, but I have to explain things, I think. I make it a condition of the bond that Ms Fuller participate in such programs as may be recommended by the Probation and Parole Service to assist her in alcohol rehabilitation.

20. Now Ms Fuller, I have now finished the formal orders. I have decided to allow your appeal. I hope you understood what I was saying. The magistrate gave you two months. I am also giving you two months but I am suspending that. Now you are going to be on a good behaviour bond. And I understand from what Mr North says that you have tried to stay off the alcohol for the last few months and I think that is very commendable and should be encouraged. Now that is why I have given you a bond. And you have got to be of good behaviour, no more offending.

21. Now, you have had eight years since 1999 without getting into trouble, so that has been very good so far. So you need to continue with that. But if you do breach the bond and you come back before the court, which you will if you breach the bond, you have really got to convince the court that there are good reasons why I should not send you to gaol for two months full time. You have got to show that it was a trivial breach or there are good reasons. So I am giving you a chance but, as you have heard me say, the courts are - it is their job to protect the police in the execution of their duty when they are doing their job because they are the people who have to put themselves on the line for us. And if I do not impose serious sentences there then the police are going to feel completely unprotected. So that is why I have given you a sentence as serious as I have, but on the other hand I want to encourage your rehabilitation which is why I have suspended it. Do you understand that?

22. The sentence commences today and finishes on 6 October 2007, and it is suspended. And you need to go to the registry to sign for that.

oOo

08/10/2008 - Typographical error - Paragraph(s) Date of decision