Saunders v Brownlie
[2014] ACTSC 289
•22 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Saunders v Brownlie & Anor |
Citation: | [2014] ACTSC 289 |
Hearing Date: | 22 October 2014 |
DecisionDate: | 22 October 2014 |
Before: | Burns J |
Decision: | See [12] – [13] |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Offences Against Police – common assault – spitting on a police officer – re-sentence APPEAL – Appeals From and Control Over Magistrates – whether sentence is manifestly excessive – appeal upheld – re-sentenced |
Cases Cited: | Burgoyne v Dixon (2004) 150 A Crim R 1 Dodd v Byrne [2014] NTSC 31 |
Parties: | Peter Saunders (Appellant) Matthew Brownlie (First Respondent) Scott Noack (Second Respondent) |
Representation: | Counsel Mr Jorgensen (Appellant) Mr Hiscox (Respondents) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number(s): | SCA 53 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 2 June 2014 Case Title: Peter James Saunders v Scott Andrew Noak & Anor Court File Numbers: CC13/11787;CC13/11788;CC13/11789; CC14/3442 |
Burns J:
On 2 June this year, the appellant was sentenced by a magistrate with respect to four offences. On a charge of common assault (CC13/11789), he was sentenced to seven months’ imprisonment commencing on 1 April this year and expiring on 31 October. For an offence of resisting a public official (CC13/11788), he was sentenced to four months’ imprisonment commencing on 1 April this year and expiring on 31 July. For an offence of minor theft (CC13/11787), he was sentenced to one month’s imprisonment commencing on 1 November this year and expiring on 30 November. Finally, for an offence of failing to appear with respect to a bail undertaking (CC14/3442), he was sentenced to two months’ imprisonment commencing on 1 November and expiring on 31 December this year. As such, the sentence imposed by the Magistrate, in an aggregate sense, was one of nine months’ imprisonment. None of the sentence was suspended and no non-parole period was specified by the Magistrate.
The appellant now appeals against the sentence imposed for the offence of common assault on the basis that the sentence was manifestly excessive. The circumstances of the common assault may be very briefly put as spitting on a police officer during the course of an arrest of the appellant by police. The spittle from the appellant landed partly on the clothing of the police officer and partly on the side of her face.
There can be no doubt that offences of this nature may properly be the subject of a term of imprisonment. In R v The King (2008) 179 A Crim R 600, de Jersey CJ said in an appeal to the Full Bench of the Supreme Court of Queensland:
One begins with the proposition that those who treat a police officer in this way should ordinarily expect to be imprisoned, meaning actual imprisonment. Police officers carry out duties with are usually onerous and often dangerous. It is abhorrent that a police officer, responsibly going about his or her business, is subject to the indignity and risk of being spat upon. The risk in contemporary society relates obviously to communicable disease. Related to the indignity is the display of contempt for civil authority which will often be involved in these incidents. An appropriate level of deterrence will, in such cases, usually be secured only through actual imprisonment of the offender.
His Honour went on, however, to note that:
In cases like this, it is often the fact of imprisonment rather than the particular duration of the term imposed which secures the necessary deterrence.
The sentence imposed by the Magistrate was a discretionary judgment. As such, I am not to interfere with such a judgment unless it is demonstrated that the Magistrate has made some error of fact or law or, alternatively, it is clear that the sentence is manifestly excessive. It has been said that a sentence is either manifestly excessive or it is not, and it does not allow for a great deal of argument. A sentence is not manifestly excessive simply because an appeal court would have imposed some different or lesser sentence than that which was imposed at first instance. The sentence must be such as to strike the appeal court as being plainly unjust in the circumstances of the offence and the offender.
In support of the proposition that the sentence imposed by the Magistrate with respect of the charge of assault was manifestly excessive, the appellant has referred to a number of sentences imposed, mostly in other jurisdictions, but one of which was imposed in the Australian Capital Territory. In the matter of Joyce v Jevtovic & Ors [2012] ACTSC 92, a sentence of three months’ imprisonment was imposed in this Court for an offence of spitting on a security guard.
In the case of Burgoyne v Dixon (2004) 150 A Crim R 1, a Crown appeal from a term of imprisonment for 14 days imposed on an accused for spitting on a police officer was upheld and the sentence was increased to one of one month’s imprisonment. Thomas J found that the appropriate sentence was in the order of two to four months’ imprisonment, but ultimately imposed a sentence of one month’s imprisonment taking into account the double jeopardy attendant upon a prosecution appeal. That was against the background of a matter where the defendant had a significant record of violence.
In the case of Dodd v Byrne [2014] NTSC 31, the Northern Territory Supreme Court heard an appeal from a magistrate’s decision to impose a 12-month term of imprisonment for an offence of spitting on a police officer. Blokland J was ultimately persuaded that the sentence imposed was disproportionate to the offending, and her Honour indicated that, but for a plea of guilty, a term of imprisonment in the vicinity of seven to eight months was appropriate.
However, I note in respect to Dodd v Byrne, that determination of the appropriate sentence was against a maximum penalty of seven years’ imprisonment. Similarly, in Burgoyne v Dixon, the maximum penalty for the offence then before Thomas J was five years’ imprisonment. I remind myself that the maximum penalty with respect to the offence with which the appellant in this case was charged was two years’ imprisonment. I am mindful of the undesirability of being seen to tinker with sentences imposed in the Magistrates Court. That, however, is not a reason why, if I am satisfied that the sentence imposed with respect to the common assault matter is manifestly excessive, I should not intervene and vary that sentence.
I will, of course, then have to consider the question of totality with respect to all of the sentences imposed by the Magistrate. It is clear that that was a matter which weighed heavily on the mind of the Magistrate because he made the sentences which he imposed very significantly concurrent. Whilst it would be unjust on the appellant not to vary a manifestly excessive sentence on one offence because at the end of the day the aggregate sentence may not vary significantly from that which was imposed by the Magistrate, it would be unjust upon the prosecution and, I think, inappropriate not to appropriately vary the way in which the sentences are to be served in order to properly reflect the totality of the offending after having varied one of the sentences on appeal.
I am satisfied, on the basis of the objective circumstances, that the Magistrate has overstated the objective seriousness of the offending. I accept that there is not much to be said for the appellant in terms of subjective factors and the Magistrate was entitled to take the view that he was not a particularly good candidate for rehabilitation at this point in time, and as such that it was not appropriate to impose a non-parole period or alternatively to suspend part of the sentences imposed, but as I have said, based upon the material before me, I am satisfied that the sentence imposed with respect to the offence of assault was manifestly excessive.
The appeal will be upheld to the extent that the sentence imposed by the Magistrate with respect of the offence of assault is set aside. The other sentences are confirmed. The sentence with respect to the offence of resisting a police official (CC13/11788) remains one of four months commencing on 1 April this year and expiring on 31 July. For the offence of common assault (CC13/11789), I will impose a sentence of four months’ imprisonment commencing on 1 May this year and expiring on 31 August this year. For the offence of minor theft (CC13/11787), the sentence of one month’s imprisonment is confirmed, commencing, however, on 1 September and expiring on 30 September. With respect to the offence of failing to appear (CC14/3442), the sentence of two months’ imprisonment is confirmed, commencing on 1 September and expiring on 31 October.
As such, there is an aggregate sentence of seven months’ imprisonment commencing on 1 April this year and expiring on 31 October.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 5 November 2014 |
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