Shelley v Queensland Police Service

[2015] QDC 218

[2015] QDC 218

DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE HARRISON

Appeal No 84 of 2015

NEIL SHELLY  Appellant

and

QUEENSLAND POLICE SERVICE  Respondent

CAIRNS

10.31 AM, FRIDAY, 31 JULY 2015

JUDGMENT

HIS HONOUR: This is an appeal against sentence pursuant to the provisions of section 222 of the Justices Act 1886. On the 25th of May 2015 the applicant pleaded guilty in the Magistrates Court at Cairns to two offences of serious assault upon police officers which occurred on the 14th of February 2015 and to one breach of a bail condition on the 15th of March 2015. On each of the serious assault charges he was sentenced to 12 months’ imprisonment to be served concurrently, and in relation to the breach of the bail condition he was convicted and not further punished. His parole release date was fixed at the 15th of July 2015, which required him to serve four months of the sentence as he had previously spent 71 days in presentence custody following his breach of the bail condition.

Appeals under section 222 of the Justices Act are appeals by way of rehearing, but it is well accepted that this court should only interfere if it could be shown that the learned Magistrate was in error in law or in fact, or that the sentence was manifestly excessive.

The applicant appeals on the basis of his grounds as refined in the written submissions of counsel.  Essentially, it was argued that the learned Magistrate failed to give sufficient weight to personal factors such as his mental health, his character and his limited criminal history.  When the matter proceeded before the learned Magistrate the facts were presented by way of a schedule which was exhibit 1. 

Briefly, the facts were that two police officers attended at a premises at Trinity Beach at 1 pm on the 14th of February 2015 in response to a complaint that the applicant had been sending threatening text messages to others.  In her submissions on sentence the solicitor for the applicant argued that the threatening nature of the text messages was more in relation to threats to himself and the potential to harm himself.  No issue was taken as to that on the sentence. 

When the police got there on the first occasion it was obvious that he was grossly intoxicated.  Their main concern was for his welfare.  He assured them that he was all right and that he merely wanted to be alone and they left him. 

At about 2.30 pm the same two police officers were required to go back there after information had arrived that there had been further threatening text messages.  The police were told that he had sent someone a photo of himself which clearly showed a cut on his neck, and that he had threatened to kill himself.  They re-attended shortly afterwards and, again, it was clear that they did so out of concern for him. 

When he opened the door when the police arrived on the second occasion he was again abusive.  They noticed the wound on his neck which had not been there when they were there earlier and this would have heightened their concerns.  Because of this, and because of his rather erratic behaviour at the time, they considered, quite properly, that he was a danger to himself;  that there was a high risk that he would further self-harm.  They attempted to detain him for the purposes of getting an emergency examination order.  When they did grab him for that purpose, he tried to break away and a struggle ensued.  He eventually did break away and he

ran into the kitchen where he armed himself with a large knife.  The police chased after him.  He grabbed the knife, pointed the knife in the direction of the police and moved quickly towards them. 

At this stage they were in the hallway and they moved quickly out of the house on to the front lawn.  Needless to say they were fearful for their own safety in those circumstances in the confined area of the hallway.  He followed them out to the front and then told them to “fuck off.”  He then went and barricaded the front door with a large wooden table.  A siege developed and police negotiators arrived, and after five hours he eventually surrendered. 

The gravamen of the two offences under appeal related to his behaviour in that very short period of time from when he ran into the kitchen to when he effectively chased the police out of the place when he had the knife pointing at them.  It does not appear as though the police were under any threat at all once he barricaded the front door shortly after he got them out there. 

The breach of the Bail involved a breach of a condition which banned him from drinking alcohol.  He was found substantially affected by alcohol and it was clear that he had breached his bail.  I often wonder what the point is in making bail conditions with clauses such as that.  To me they invariably are not practical and merely set people up to fail.  But in any event, there clearly was a breach and it appears as though the breach resulted in his then spending 71 days in custody prior to being sentenced. 

The police prosecutor, in submissions made before the learned Magistrate, handed up two comparative decisions; one of R v Taylor [2004] QCA 447, and one of R v Lacey [1996] QCA 336. Lacey was also summarised in Taylor.

Taylor was a person who had an atrocious criminal history.  He was sentenced to two years’ imprisonment.  It was a totally different situation to here.  He was already armed before the police arrived at the premises in response to a complaint that he was in the house armed.  When police arrived, he threatened to kill them.  He approached the two officers involved, making stabbing gestures.  They backed away.  At one stage he was effectively inviting them to shoot him.  After that he approached them again a number of times and, on one occasion, actually rushed at them.  Eventually the police, who behaved quite commendably, as noted by the Court of Appeal, were able to talk him into going back to the house where he sat on the steps for some time with the knife before eventually surrendering. 

It was raised in that case that he was suffering from a combination of heavy consumption of alcohol and depression.  The legal representatives at first instance made submissions about the appropriateness of a prison/probation order, but these submissions were rejected by the sentencing judge who found that because of his shocking history he would not voluntarily participate in any programs.  In fairness, it must also be said that the head sentence in his case could even have been higher.  The sentencing judge decided that it would not have been appropriate to order a

release after suspension of part of the sentence in his case and may well have moderated the head sentence accordingly. 

Lacey was a different situation.  He rang the police and told them that he was holding someone hostage at knifepoint inside a dwelling.  When they arrived he was there and was armed but there was not, and never had been, any hostage.  When the police approached him he swung the knife in their direction and the police managed to disarm him.  He did not display any remorse.  He took the matter to trial and was sentenced after being convicted on trial.  There was a concession on trial by one of the police officers that the knife may not have struck him in any event the way it was swung.  The penalty in his case was nine months’ imprisonment. 

When Lacey was dealt with the maximum penalty was three years.  I understand that the maximum penalty when Taylor was dealt with was seven years, and it is now 14 years for the offence of seriously assaulting a police officer. 

In his submissions the police prosecutor argued that this matter was very similar to Taylor’s.  He said that it was similar in that “he swung a knife at police, he’s armed himself and chased them.”  Certainly as I read the admitted and agreed written facts, there was no suggestion that the applicant here swung the knife, and this was clearly a gloss placed on the facts by the police prosecutor.  This, to me, is concerning.  More and more matters where peoples liberty are at stake are being dealt with on a summary basis in the Magistrates Court where police themselves prosecute.  I would be amazed if any prosecutor employed by the DPP would put such a gloss on a set of facts, and be even more amazed if a judge ever let a prosecutor do that.  If the police prosecutors are to put themselves in the situation where they act in these matters, then clearly they too should be held to the same standards.  They should behave accordingly and be expected to behave accordingly. 

It is interesting to note in this case that when the solicitor for the applicant started talking about the facts in her submissions and started talking about what her client could remember of the facts, the learned Magistrate stopped her and reminded her what was contained in the schedule of facts.  It seems to me that the point she was making, in any event, was that he did not have much recollection and that this was to do with a combination of his alcoholic condition and his psychological condition which I will deal with further.  But either way, it seems that she was reminded very promptly that she was not to stray from the agreed set of facts.  This occurred after the prosecutor had been given the liberty that I spoke of earlier to put his own gloss on the facts.  This is a practice which should not be tolerated.  This is illustrated by the passage of the defence submissions on page 1-8 at line 35 through to page 1-9 line 20 of the record. 

The solicitor for the applicant in submissions tendered a series of documents.  There was a series of references which formed exhibit 4;  there were two reports from Carla Sherwood, a psychologist, which formed exhibit 5;  a report from his general practitioner Dr Fahey, which formed exhibit 6;  a further report from Sherwood

under the heading of ATODS which formed exhibit 7;  and a letter of apology which was exhibit 8. 

From the material contained in the reports from Dr Sherwood, and also from the general practitioner, it was clear that the applicant was suffering from a severe depressive problem at least as far back as January 2015, if not longer.  Dr Sherwood, in both of her reports, diagnosed complex trauma in the context of post-traumatic stress disorder and generalised anxiety, as well as a major depressive episode.  She based her diagnosis on a number of matters which were historical as well as matters relating to to her various attendances upon him in March and May of 2015, and the results of extensive psychological testing that she undertook in March of 2015, and it is important that we look at just what matters she did take into account. 

The author had access to records of Queensland Health and noted that on the 22nd of January 2015 the applicant was bought in by ambulance to the Emergency Department at Cairns due to suicidal ideation and was placed on an emergency examination order (“EEO”).  It was concluded that his behaviour was induced by alcohol and prescription medication and, further, that it was in the context of a relationship breakdown.  It was noted that he had been in a relationship for four years;  that they had broken up;  that there were children involved, and that he was clearly affected by the break-up.  He was discharged with planned continued support via ATODS and the Acute Care Team. 

He attended again on the 2nd of February 2015, 12 days prior to his offending here and, again, was brought into the Emergency Department by police on an EEO.  On this occasion it was again concluded that he was under the influence of alcohol, and on this occasion methylamphetamines were also mentioned.  There was reference to suicidal ideation, and confirmation that he was still grieving the loss of the relationship and struggling with what was referred to as the shared care of twin boys.  

On top of this, his GP also saw him on the 3rd of February 2015.  In paragraph 2 of his report which is exhibit 6 he said that:

In my opinion his actions on this day were precipitated by the alcohol he had consumed during the day and linked with a recent relationship breakdown and the major/adjustment disorder he is suffering from currently. 

I mention that not because of his diagnosis with him being a GP, but because of the fact that he recognised there were severe problems such that he had made an appointment with a psychologist for the applicant on the 16th of February 2015, which is two days after the incident. 

Dr Sherwood next saw the applicant in March of 2015, by which time he had been charged, and by which time it appears he was in custody.  She did extensive testing.  She also saw him again on two occasions in May of 2015 where his condition had clearly fluctuated from one of those visits to the other.  On page 9 of her first report

she spoke of the effect that his condition, as diagnosed by her, had on his behaviour.  She said:

Elevated results of the psychopathology assessment are considered consistent with complex trauma whereby severe to extreme anxiety and depression interfere with emotional regulation, decision-making, impulse control and a general inability to think clearly.  Psychopathology results indicate that Mr Shelly’s condition is not consistent with anti-social personality disorder and it is considered evidenced by Mr Shelly’s suicidal ideations which are underpinned by extremely low self-worth, regret and remorse. 

When the matter was argued before me, counsel for the appellant relied upon the principles espoused by the Court of Appeal in R v Goodger [2007] QCA 377. Unfortunately, Goodger was not placed before the sentencing Magistrate. In paragraph 19 of the decision in Goodger, Justice Keane spoke of the six ways in which impaired mental functioning, whether temporary or permanent, may be relevant to sentencing, and these six matters are as follows:

1.  The condition may reduce the moral culpability of the offending conduct as distinct from the offender’s legal responsibility.  Where that is so, the condition affects the punishment that is just in all the circumstances and denunciation is less likely to be a relevant sentencing objective; 

2.  The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served; 

3.  Whether general deterrence should be moderated or eliminated as a sentencing consideration depends on the nature and severity of the symptoms exhibited by the offender and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both; 

4.  Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both; 

5.  The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health; 

6.  Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, that will be a factor tending to mitigate punishment. 

Here the condition referred to in the reports clearly would appear to be impaired mental functioning when one looks at how that term was used in Goodger.  Time and time again in her reports Dr Sherwood describes the condition experienced by the applicant here as severe.  Furthermore, she had access to extensive records showing the problems experienced by him in the lead-up to the offending, and this was clearly relevant to her diagnosis.  It seems to me that at least the first four of the six ways in which these matters may be relevant applied in this case. 

In his reasons the learned Magistrate said he took into account the psychological reports.  It would appear, however, that no consideration was given whatsoever to whether or not this was one of those matters where denunciation was less likely to be a relevant sentencing objective, where the condition may have a bearing on the kind of sentence that was imposed, or whether there should be a moderation or elimination of the relevance of general deterrence and/or personal deterrence.  The mere fact that the learned Magistrate said that he took the report into account does not in any way show how he considered any of those issues.  The learned Magistrate did, however, place considerable weight on general deterrence.  This is apparent from his comments on lines 20 to 21 on page 3 of the reasons. 

It’s impossible to see, however, what weight, if any, he did place on the material contained in the reports from Dr Sherwood.  As Justice Keane said in paragraph 22 of Goodger, the sentencing judge in that case was quite entitled to treat the relevant report as having little claim on his discretion.  He noted that the report in that case was not compelling insofar as it dealt with the issue of how the appellant’s alleged depression played a role in her offending, and as to the nature and extent of that role. 

Goodger was a totally different situation.  The offender there gradually stole money from her employer over a period of five months.  The offender in this case did something in a matter of seconds.  Furthermore, whilst the report in Goodger’s case was clearly very general and light-on in substance, the report given to the learned Magistrate in this case was quite substantial.  The author had the benefit of documented contemporaneous history.  There was no such evidence in Goodger’s case.  She was able to base her ultimate diagnosis partly on her own observations, partly on her own psychological testing, and partly on the strength of those contemporaneous records.  Furthermore, she specifically dealt with the nature and extent of the role played by that depression in the offending in the passage that I referred to earlier. 

This seems to be one of those matters where the information in the report was so compelling that it would have reduced the moral culpability of the offending.  To put it another way, and to adopt the terminology used in the reference to the first of the six potential ways in which these matters could be relevant, it seems to me to be the sort of case where denunciation would be less likely to be a relevant sentencing objective. 

I believe also that this is the type of matter where it would have bearing on the kind of sentence that would be imposed and, importantly, the conditions in which it

should be served.  These matters always have to be balanced with the seriousness of the offending and I will come back to that, but it seems to me that there was no real consideration as to the extent to which the matters contained in the report did have a bearing on the kind of sentence and, more importantly, on the conditions in which it should be served.  Furthermore, it seems to me that this is the type of case where his condition was so severe, and supported by contemporaneous evidence in the lead-up to the event, that there should have been moderation of the extent to which both general and personal deterrence would be relevant.  His condition was described as severe and Dr Sherwood set out how it impacted upon him. 

It seems to me that sending out the message with a harsh sentence in a matter such as this is not going to have any impact whatsoever on anyone else who is suffering from such a severe condition as he was, and it is not going to have any impact on how they would behave in similar circumstances.  At the very least in this case it seems to me that there should have been consideration as to whether or not any of the first of the four matters summarised earlier were relevant to the exercise of the sentencing discretion.  It seems to me that far too much weight was placed on the matter of general deterrence with no weight at all placed on the relevant matters in this report. 

I note that he had a very limited criminal history, which included one matter for assault or obstruct police.  No circumstances were placed before the court as to what happened there other than to say this it was alcohol related.  And, again, it is not anything like the serious or atrocious history that Taylor had.  In submissions before the Magistrate the police prosecutor raised that Taylor himself was suffering from depression and alcohol-related problems and drew an analogy.  It would be very unfair to draw that analogy in this case for the simple reason that in Taylor the sentencing judge made the findings that he would not submit to the appropriate treatment.  Here the applicant gave every indication that he would be prepared to submit to treatment.  He did undertake some treatment himself when on bail before getting drunk on that occasion, which led to the further charge of breach of bail condition and which led to his time in detention.  And he also continued to receive treatment whilst he was in custody, and this is evidenced from the addendum report of Dr Sherwood. 

So this is clearly a totally different type of situation to that and does not justify the mere bland analogy to the effect that his behaviour was also similar to that in Taylor who was suffering from a similar condition.  There is no evidence as to the nature of and extent of the condition in Taylor, nor as to how it impacted on him, as is the case here.  In the end, the sentence came down to an analysis of the facts in Taylor and Lacey, and also two other cases that the learned Magistrate mentioned which were summarised in Taylor.  To me, that exercise became one of comparing apples with oranges because here was a man with a serious psychological condition which impacted upon him in a way as described by Dr Sherwood being compared with other people where there was no such a condition.  And it is clear that in the more serious cases, and in the relevant cases of impaired mental functioning, the courts do treat differently people who suffer from such serious conditions. 

For these reasons it appears to me that the exercise of the discretion on sentence clearly failed in this case with no weight whatsoever being placed on those matters which were particularly relevant and too much weight placed on the issue of general deterrence.  The issue of general deterrence cannot be looked at in isolation and is one of a number of balancing factors in matters such as this. 

I do not contend that the incident was anything but a serious one, and it is clear that the police would have been fearful for their safety.  I accept that in certain circumstances involving assaults on police the offending is so serious that even after allowing for a relative impaired mental functioning there would still have to be actual time in detention.  The obvious example of this is the spitting cases.  More and more of these cases are coming before the courts and the Court of Appeal has now made it clear that invariably those people should receive a period of time in custody.  This is clearly understandable because it is a far more serious situation than what we are dealing with here, particularly where the police officer involved, and in many cases their family, have to endure the agonising wait until testing comes back. 

One can understand in those circumstances why there would still be sentences imposed which required actual time in prison, even after moderating to some extent the relevance of general and personal deterrence.  Here, however, it seems to me that in the particular circumstances of this case, especially having regard to the fact that he’d already served 71 days in detention, any sentence which required further time in custody was manifestly excessive because of the failure to have regard to the matters relevant under the reports. 

It was argued on behalf of the respondent that the solicitor on sentence agreed that a prison term was appropriate.  There are probably two matters which need to be addressed there.  Firstly, I fail to see how this court would be bound by that.  It may well be if we had a very experienced counsel appearing, though it’s not the case here.  Furthermore, that concession was made in the context where she tried to get the Magistrate to impose an immediate prison parole release date after having made allowance for the 71 days already served.  So it was qualified to that extent. 

In short, it seems to me that the exercise of the discretion failed and that in the circumstances the sentence imposed is manifestly excessive and it falls to me to re-sentence him. 

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