Williams v Police No. Scciv-02-914
[2002] SASC 270
•7 August 2002
WILLIAMS v POLICE
[2002] SASC 270Magistrates Appeal: Criminal
PERRY J. (ex tempore) The appellant appeals against the sentence imposed upon him in the Magistrates Court sitting at Adelaide following his plea of guilty to three Commonwealth offences.
In the information which was before the court six counts were alleged, but the remaining three were withdrawn following the appellant’s plea of guilty.
The offences to which he pleaded guilty are particularised in the information as follows:
“2.On the 11th day of July 2001, at ADELAIDE AIRPORT in the said state, intentionally engaged in conduct which caused harm to a Commonwealth public official, namely an Australian Protective` Service Officer, such harm being caused without the consent of the official and because of the official’s status as a Commonwealth public official.
Section 147.1(1) of the Criminal Code Act 1995.
This is a major indictable offence.
The defendant punched and otherwise unlawfully physically contacted with Australian Protective Service Officer Robert John JAMESON whilst that officer’s status was that of an Australian Protective Service Officer.
3.On the 11th day of July 2001, at ADELAIDE AIRPORT in the said state, intentionally engaged in conduct which caused harm to a Commonwealth public official, namely an Australian Protective Service Officer, such harm being caused without the consent of the official and because of the official’s status as a Commonwealth public official.
Section 147.1(1) of the Criminal Code Act 1995.
This is a major indictable offence.
The defendant punched and otherwise unlawfully physically contacted with Australian Protective Service Officer Gordon Kirkham LIVINGSTONE whilst that officer’s status was that of an Australian Protective Service Officer.
5.On the 11th day of July 2001, at ADELAIDE AIRPORT in the said state, assaulted Matthew Ian PENHALL a member of the Police Force in the execution of his duty.
Section 6(1) of the Summary Offences Act 1953 and by virtue of section 4 of the Commonwealth Places (Application of Laws) Act 1970.
This is a summary offence.”
After hearing submissions from counsel who appeared on the appellant’s behalf, the learned sentencing magistrate convicted the appellant on the first two counts, that is, the counts numbered 2 and 3, as to which he imposed one penalty, namely, a sentence of 6 months imprisonment.
He further ordered that the appellant be released at the expiration of 2 months upon his entry into a bond in the sum of $1000 to be of good behaviour for 12 months.
The bond was expressed to be subject to conditions, namely, that the appellant be under the supervision of a probation officer and obey his or her directions, particularly in respect of anger management and counselling.
In respect of the third count to which the appellant pleaded, that is, the count numbered 5, the learned sentencing magistrate imposed a conviction, but without further penalty.
There is one ground of appeal only, namely, that:
“The Honourable Magistrate erred in not exercising his discretion to suspend all of the sentence in respect to the appellant.”
I have been furnished with an affidavit sworn by Mr Ford who appeared both in the court below and in this Court as counsel on behalf of the Commonwealth Director of Public Prosecutions. From this, it appears that following the appellant’s plea, Mr Ford gave an explanation of the circumstances of the offending to the magistrate and tendered a copy of a list of the appellant’s prior convictions. I will summarise the facts as set out in the affidavit.
The offence occurred at Adelaide Airport at about 7.30 pm on the day in question. The appellant together with another man, Simon Reynolds, intended to board an Ansett aircraft due to depart for Melbourne. Before boarding they both drank a considerable quantity of liquor at the airport bar, as a result of which the appellant appeared to be intoxicated.
Once on board the aircraft, the appellant approached a female flight attendant and invited her to join the “Mile High Club”. He then made offensive remarks of a sexual nature to a female passenger.
The captain of the aircraft then made a decision to put both men off the plane. Two members of the Australian Protective Service, being the victims of the assaults the subject of the charges, Gordon Livingstone and Robert Jameson, were called to the plane. They made two requests of the appellant and Mr Reynolds to leave with them, which they eventually did.
At the bottom of the boarding stairs, the appellant, who was being escorted by Mr Jameson, turned and began to abuse an Ansett employee who was standing at the top of the stairs. He attempted to walk back up the stairs but was restrained by Mr Jameson, who attempted to place handcuffs on him. The appellant responded by pushing Mr Jameson so that he fell to the ground after colliding with a wheelie bin.
The appellant then stood over Mr Jameson and punched him three times to the head, each blow causing Mr Jameson’s head to hit the tarmac. Mr Livingstone went to Mr Jameson’s aid. He tried to pull the appellant away.
The appellant responded by turning and punching Mr Livingstone on the nose and eye. The appellant then broke away from Mr Jameson after Mr Reynolds had jumped onto Mr Livingstone’s back. The appellant then proceeded to climb onto an Ansett golf buggy, as it was called.
Other Ansett employees assisted Mr Jameson and Mr Livingstone to restrain both the appellant and Mr Reynolds, who were then taken to the duty manager’s office inside the terminal building.
Subsequently, at about 7.45 pm, members of the South Australian Police force attended. One of them, Constable Penhall, advised the appellant he was under arrest. When he attempted to place handcuffs on the appellant’s wrists, the appellant set upon Constable Penhall, causing him to fall against a cabinet. The appellant then attempted to punch Constable Penhall in the face, but the latter moved his head and was hit on the back of his head.
The appellant was then taken to the Sturt Police Complex where he was charged.
As a result of the fracas, Mr Jameson sustained a laceration of the forehead, swelling to the head, and sore neck and shoulders. Mr Livingstone sustained a fracture to the nose and torn ligaments to the right shoulder. Constable Penhall escaped injury.
The appellant is a 38 year old man who has a record of prior convictions dating back to 1982. Most of the prior offending has been with respect to either traffic or street offences, but it is not without significance that there are several convictions involving assault or violence. The first of these was in 1983, which was a conviction for simple assault. In 1985 he was convicted of offensive language, and in 1986 of destroying or damaging property and resisting police.
In 1999, which is much more recent than the other offending, he was convicted of common assault on a person other than a family member. I was informed on the hearing of the appeal by Mr Patterson, who appeared for the appellant, that this conviction resulted from an altercation with persons euphemistically described as bouncers. The 1999 convictions resulted in the release of the appellant on a good behaviour bond for a period of twelve months, coupled with an obligation to perform community service.
The appeal the principal argument advanced by Mr Patterson in support of the appeal was what he described as the disparity between the penalties imposed by the learned sentencing magistrate on the co-offender Mr Reynolds and the appellant. Mr Reynolds was dealt with at the same time as the appellant. Without the entry of a conviction against him, Mr Reynolds was released on a bond to be of good behaviour for twelve months in the amount of $600, and also on one of the counts he was fined $450. Mr Reynolds did not have a criminal record.
The two sentences are very different. That this should be so demands some explanation.
The explanation which was given by Mr Ford of counsel for the respondent, apart from the difference in antecedents, was that the conduct of the appellant was very much more serious than that of Mr Reynolds, that Mr Reynolds only intervened after Mr Williams began struggling with the officers, and, as was conceded by Mr Patterson, it was Mr Williams who was guilty of first resorting to violence.
I would add that it may well be that the sentence imposed on Mr Reynolds is, in my view, lighter than the sentence which his offending might be thought to have deserved. So that the difference does not necessarily mean that the appellant was treated more severely than he should have been.
The other point made by Mr Patterson for the appellant was that his client had suffered a number of injuries, which are depicted in photographs which were before the learned sentencing magistrate and which were before me on the hearing of the appeal. Those injuries were relatively minor, and amounted mainly to bruising, although I was informed that he is still suffering from the results of the injuries.
While the mere fact that he suffered injuries may not be a circumstance of mitigation, it was suggested that the injuries were suffered because of his response to what was described as a heavy-handed use of batons by the officers concerned.
The other points made were that this appellant has never had the opportunity of a suspended sentence, and the learned sentencing magistrate should have suspended the whole sentence, so as to give to Mr Williams the chance of demonstrating that he was able to respond appropriately and undertake appropriate counselling with respect to anger management.
I have taken heed of the points made by Mr Patterson and I have carefully considered whether or not it can be demonstrated that the sentence under review was manifestly excessive in all the circumstances. In doing so, however, I must have regard to the fact that officers, whether they be police officers or in this case officers of the Australian Protective Service, who are attempting to maintain public order in situations of violence or potential violence, are in a vulnerable position. There is ample authority from this Court[1] and from other courts in favour of the view that offences of this kind are to be treated as serious, and will often attract the need for an immediate custodial sentence, even for persons who do not have a record of prior offending to the extent of the appellant’s record.
[1] See, for example, Miller v Huffa (1980) 24 SASR 595, Barry v Samuels (1975) 10 SASR 376, Statham v Huffa (1975) 13 SASR 205 and Hewett v Lloyd (1992) 58 SASR 146.
In all the circumstances, I have reached the view that the sentence under appeal was well within the proper exercise of the learned magistrate’s sentencing discretion, and it has not been demonstrated that the penalty imposed was manifestly excessive.
I dismiss the appeal.
There is no order as to the costs of the appeal.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT1. See, for example, Miller v Huffa (1980) 24 SASR 595, Barry v Samuels (1975) 10 SASR 376, Stathan v Huffa (1975) 13 SASR 205 and Hewett v Lloyd (1992) 58 SASR 146.
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