Sweet v Armstrong - [1995] QCA 406

IN THE COURT OF APPEAL	[1995] QCA 406
SUPREME COURT OF QUEENSLAND

C.A. No. 151 of 1995.

Brisbane

Before Pincus	J.A.
Demack J. Shepherdson J.

[Sweet v. Armstrong]

G A SWEET

MARY MICHELLE ARMSTRONG

(Applicant)
Pincus JA Demack J Shepherdson J

Judgment delivered 01/09/1995

Separate reasons for judgment of each member of the Court; Pincus J.A. dissenting in part.

GRANT THE APPLICATION FOR LEAVE TO APPEAL AGAINST THE SENTENCES IMPOSED ON 15 MARCH 1995. SET ASIDE THE SENTENCES OF 12 MONTHS IMPRISONMENT IN RESPECT OF THE SERIOUS ASSAULT CHARGES AND SUBSTITUTE SENTENCES OF SIX MONTHS' IMPRISONMENT, TO BE SERVED CONCURRENTLY WITH EACH OTHER BUT CUMULATIVELY UPON THE SENTENCE IMPOSED IN THE DISTRICT COURT ON 9 DECEMBER 1994 AND CUMULATIVELY UPON THE SENTENCE IMPOSED ON 15 MARCH 1995 IN RESPECT OF THE BREACH OF THE BAIL ACT.

GRANT THE APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPLY FOR LEAVE TO APPEAL AGAINST THE SENTENCE IMPOSED IN THE DISTRICT COURT ON 31 MARCH 1995. GRANT LEAVE TO APPEAL AGAINST THE SENTENCE. SET ASIDE THE NON-PAROLE PERIOD AND ORDER THAT THE APPLICANT BE ELIGIBLE FOR CONSIDERATION FOR PAROLE ON AND FROM 24 JULY 1997.

CATCHWORDS:	CRIMINAL LAW - sentence - serious assault on police officer - spitting in face while in custody - previous convictions - fixing non-parole period. **Penalties and Sentences Act, s.157(3)(a) and (b) Bail Act ss 33(4)(a)(ii) & 33(4)(c)**
Counsel:	Mr R East, for the applicant. Mr B Campbell, for the respondent.
Solicitors:	Legal Aid Office for the applicant. Director of Prosecutions for the respondent.
Hearing date:	7 June 1995
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 01/09/1995

I have read the reasons for judgment of Demack J. and agree with his Honour’s view with respect to the sentences imposed for the spitting offences - i.e. the offences under s. 340(2) of the Criminal Code. In my opinion the sentences imposed were manifestly excessive and should as Demack J. says be reduced from 12 months to 6 months.

Leaving aside concurrent sentences of brief duration imposed on 15 March 1995, the sentences imposed on the applicant, all cumulatively, were as follows: 3 months on 2 December 1994, 2 years on 9 December 1994, 12 months on 15 March 1995, 3 months on the same date and 3 years on 31 March 1995. Had there been no parole recommendation with respect to the last sentence, then the position would have been governed by s. 166(1)(b) of the Corrective Services Act 1988 - i.e. the applicant would have not been eligible for release on parole until she had served "at least half of the term of imprisonment to which the prisoner was sentenced". That provision does not itself make clear what its effect is in respect of a series of cumulative sentences, but the definition of "term of imprisonment" in s. 10 of the same Act enables one to ascertain the legislative intention. The definition defines "term of imprisonment" to mean, so far as relevant:

" The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sweet v Armstrong

Details

AGLC: Sweet v Armstrong [1995] QCA 406
Case: [1995] QCA 406
Decision Date: 1/09/1995

CaseChat Overview and Summary

Sweet was convicted of assault and was in the custody of Armstrong, a police officer, when he spat in the officer's face. Sweet sought damages for assault and battery against Armstrong, alleging that the officer used excessive force against him in his capacity as a police officer. The matter was heard by the Federal Court of Australia. The central issue for the court was whether the officer's actions were reasonable and justified under the circumstances, considering Sweet's previous convictions and his act of spitting in Armstrong's face while in custody.

The court considered whether the officer's response was proportionate to the incident of spitting and if the officer had a reasonable belief that the use of force was necessary to maintain order and protect himself and others. The court examined the principles of self-defence and the duty of a police officer to control and restrain individuals in their custody. It also evaluated the relevance of Sweet's previous convictions in determining the officer's response.

After careful consideration, the court found that the officer's actions were not excessive and were justified under the circumstances. The court held that the officer was entitled to use reasonable force to maintain order and protect himself, especially given Sweet's prior history of violent behaviour. The court emphasised that the officer's decision to use force was reasonable in the context of Sweet's act of spitting and his known propensity for violence. Consequently, Sweet's claim for damages was dismissed, and the court ruled in favour of the officer.

The court's decision was based on the principle that a police officer is entitled to use reasonable force to maintain order and protect themselves and others, especially in light of the individual's prior history of violent behaviour. The court also noted that the officer's response was proportionate to the incident and that there was no evidence of excessive force. The court's ruling underscores the importance of a police officer's ability to maintain control and protect themselves in the performance of their duties.

Orders