Yvette Anne Heatlie v SA Police No. SCGRG 93/1021 Judgment No. 4065 Number of Pages 5 Criminal Law Resisting Police

[1993] SASC 4065

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Criminal law - resisting police officer in execution of his duty - assault police - young female offender - no relevant previous convictions - plea of guilty - sentence of imprisonment - suspended - appeal - consideration of appropriate sentencing principles - sentence of imprisonment manifestly excessive.
Sumner v Fingleton (unreported, 25th June 1973), Barry v Samuels (1975) 10 SASR 376 at 377-378, Miller v Huffa (1980) 24 SASR 595, R v O'Keefe (1969) 2 QB 29 at 32, Wood v Samuels (1974) 8 SASR 465 at 468, Yardley v Betts (1979) 22 SASR 108, Freeman v Binnekamp (1987) 44 SASR 114 at 116, Clarke v Baehnk
(1987) 134 LSJS 229 and Miller v Huffa (1980) 24 SASR 595 referred to.

HRNG ADELAIDE, 15 July 1993 #DATE 30:7:1993
Counsel for appellant:     Ms P R Dixon
Solicitors for appellant:    P R Dixon and Associates
Counsel for respondent:     Mr S Gupta
Solicitors for respondent: Crown Solicitor
   (South Australia)

ORDER
Appeal allowed - sentence quashed - sentence of community service imposed.

JUDGE1 MULLIGHAN J This is an appeal from the sentence imposed upon the appellant by a learned Special Magistrate sitting in the Magistrates Court (Criminal Division) on 29th April 1993 upon her being convicted of resisting a police officer in the execution of his duty and assaulting another police officer in the execution of his duty. The appellant pleaded guilty to these charges and, pursuant to s.18a of the Criminal Law (Sentencing) Act 1988, one penalty was imposed for both offences. The appellant was imprisoned for two months, which sentence was suspended upon her entering into a bond in the sum of $200 to be of good behaviour for a period of twelve months. In addition, she was ordered to pay court fees of $82 and a levy under the Criminal Injuries CompensationAct 1978 of $20 and was allowed two months in which to pay these amounts. 2. The grounds of the appeal are, in effect, that the learned Special Magistrate erred in failing to place sufficient weight upon the circumstances of the offence and the appellant's antecedents in imposing a custodial sentence and that the sentence is manifestly excessive. 3. The appellant is aged twenty years. She has only one previous conviction for loitering on 6th August 1991 when she was fined $100. It appears that she had also committed some traffic offences as there were warrants issued for her arrest for non-payment of fines. She left school at the aged of fifteen years and had employment at Renmark until she went on a trip around Australia during the course of which she had casual employment. In November 1992 she returned to this State but has not since found employment and receives unemployment benefits. 4. On the night in question she was travelling in a motor car, as a passenger, with some friends at Murray Bridge at about 3.00 am. The vehicle was stopped by police and the appellant was asked for her name. The prosecution alleged that this incident occurred at house premises, but the dispute as to that matter is of no importance. A warrant check was undertaken and the appellant was arrested on the warrants and taken into custody. She had been drinking alcohol and was intoxicated to some extent. After she was told that she was being arrested, a police officer took hold of her left wrist and left arm and attempted to escort her to the police vehicle. The appellant resisted. She twisted her arm away from the police officer. He maintained his grip on her wrist. She told him to let her go and said she would not go with him. She was forcibly taken to the police vehicle but continued to resist. She said she would not get in the vehicle and used strong language. Other police were called to assist and upon their arrival an attempt was made to handcuff the appellant. She kicked a police officer on the knee but was over-powered. Eventually she was taken to the Northfield Prison Complex and remained in prison for nine days as a consequence of the execution of the warrants. 5. The learned Special Magistrate took a serious view of the appellant's offending. He said:
    "It is a familiar situation with police trying to
    enforce the law and people becoming aggressive, usually
    because they are intoxicated. It is not easy for the police
    to reason with intoxicated people. That is an aggravation
    of the situation. These matters can get quite right out of
    hand and there could be injuries not only to the police but
    to the person being arrested. That, indeed, may have
    occurred in your case. The Supreme Court has clearly
    indicated that the police are to be protected when they are
    performing their duties and that is why I have to consider
    imprisonment today. That is a very severe step to take with
    a young person who has not been involved in a serious
    offending before and, of course, to go to prison would be
    somewhat of a disaster for you. So I will impose a
    suspended sentence and hope that you take notice of the fact
    that in future you will have to moderate your behaviour in
public and certainly your behaviour involving police." 6. It is not known to what decision or decisions the learned Special Magistrate was referring when he said that this Court had clearly indicated that police are to be protected. There are many decisions when judges have spoken in that way. Police officers have a very difficult job to do. Quite unexpectedly they may be faced with sudden danger and the courts must do what they can to protect police officers in the execution of their duty by imposing penalties which will deter those who are minded to attack them. This approach is reflected in the observations of Mitchell J in Sumner v Fingleton (unreported 25th June 1973), Zelling J in Barry v Samuels (1975) 10 SASR 376 at pp 377-378 and Walters J in Miller v Huffa (1980) 24 SASR 595. Perhaps it was this last-mentioned case to which the learned Special Magistrate was referring as Walters J said, at p 598:-
    "For my part, I wish only to add that incidents of
    mindless assaults on the police seem to be all too common.
    Persons who attack police officers in the execution of their
    duty cannot ordinarily expect leniency, save in a case where
    the circumstances of mitigation are wholly exceptional.
    Where police are trying to do their duty of maintaining
    public order, persons who deliberately assault them in order
    to impede them in performing their work must ordinarily
expect an immediate custodial sentence." 7. Of course, Walters J was there concerned with an attack by a young woman upon police officers who had been called to an "affray of some sort" involving considerable violence to other police officers. It would be quite wrong, in my view, to regard those observations as the statement of a sentencing principle that first offenders who assault police officers in the execution of their duty must expect immediate imprisonment regardless of the circumstances. 8. The correct approach to sentencing for the offences of assault police and resist arrest is the same for any other offence. In accordance with the well established principle, a sentence of imprisonment is only imposed when all other sentencing options have been eliminated and upon being imposed, consideration must be given as to whether it should be suspended in the circumstances of the particular case: R. v O'Keefe (1969) 2 QB 29 per Lord Parker LCJ at p 32 and Wood v Samuels (1974) 8 SASR 465 at p 468. That principle is now contained in s.11 of the Criminal Law (Sentencing) Act 1988. The maximum penalties for these two offences are provided by s.6 of the Summary Offences Act 1953, namely; assault police - imprisonment for two years or a fine of $8,000; resist arrest - imprisonment for six months or a fine of $2,000. It may be seen from these maximum penalties that both offences are regarded as serious. 9. During the course of her argument, Miss Dixon presented, without objection, a copy of information tabulated by the Office of Crime Statistics for the offence of assault police in the year 1991. I approach the use of this information in the way outlined by the Full Court in Yardley v Betts
(1979) 22 SASR 108 and by von Doussa J in Freeman v Binnekamp (1987) 44 SASR
114 at p 116, that is, as an indication of general sentencing trends and standards over the particular period of time. In the year 1991 there were 345 offences considered by Courts of Summary Jurisdiction. In 45 cases a sentence of imprisonment was imposed and not suspended. In 86 cases there was a sentence of imprisonment but suspended. In 129 cases a fine was imposed and in 40 cases an order was made for community service. So, in 131 cases, about 38% of all cases, there was a sentence of imprisonment. In the remainder of cases, some other sentencing option was adopted. Whilst it must be accepted that this type of information is of limited assistance, as the facts and circumstances of each offence and each offender and other relevant information is not known, it is useful to the extent that it may be said that in the majority of cases imprisonment was not thought to be necessary. 10. It is difficult to see why the circumstances of the appellant and her offence must be regarded as of the more serious nature so as to require a sentence of imprisonment. Nevertheless, it must be acknowledged that there cannot be interference with the sentence merely because the Judge on appeal would have imposed a less severe sentence. Some error in the exercise of the sentencing discretion must be demonstrated. 11. In my view, the appellant has established such an error in that the learned Special Magistrate seems to have accepted that sentencing options other than imprisonment must be excluded because of pronouncements of this Court that police officers must be protected in performing their duties. In Yardley v Betts (supra) the Full Court decided that there is not a policy of sentencing people who commit serious assaults to imprisonment and not suspending the sentences. King CJ, with whom Mitchell and Legoe JJ agreed, accepted the well known principle that the punishment must fit the offence and the offender and that protection of the community in an appropriate case may be achieved by the successful rehabilitation of the offender. That was not a case of assaulting a police officer but the principles discussed were applied by von Doussa J in Clarke v Baehnk (1987) 134 LSJS 229 and Freeman v Binnekamp (supra) where, in both cases, the charge was assaulting a police officer. In the former case von Doussa J accepted the distinction between an assault which occurs in the course of a struggle with police and acts of gratuitous thuggery of the kind considered in Yardley v Betts (supra) and Miller v Huffa (1980) 24 SASR 595 and went on to say at pp 231-232:-
    "I respectfully agree that frequently there will be a
    marked distinction between the two types of case. This
    distinction reflects, among other things, that the necessary
    proximity between the police officers in the execution of
    their duty and the offender may give rise to a highly
    charged emotional situation where spontaneous and stupid
    acts of aggression on the part of the offender occur which
    may not necessarily reflect the true character of the
    offender. This is not to say that such acts of aggression
    are not to be deplored, or to belittle the importance of the
    proposition that police officers going about their duty must
    have the full protection which the law can offer them. In
    my opinion, the emphasis on a heavy fine reflected in the
    penalty which now applies to the offence of assaulting a
    member of the police force in the execution of his duty
    reflects a legislative perception that the community
    interest may not necessarily be best served by imprisoning
    such an offender, and that a substantial fine may often
    provide the requisite deterrent effect." 12. In Freeman v Binnekamp (supra), von Doussa J, after referring to t he observation of the learned Special Magistrate that police officers are entitled to the protection that the courts can give them, said at p 117:-
    "I fully agree. The increased penalties effected by
    the Police Offences Act Amendment Act 1985 recognise the
    need for police officers to be protected. However a stern
    deterrent warning to the offender and to others generally,
    can often be achieved by a sentencing package short of
    actual imprisonment, or even a term of imprisonment which is
    then suspended. A heavy fine, particularly in the case of a
    first offender, or an offender without a very relevant prior
    offence, could achieve that purpose. There is no
    presumption in favour of imprisonment in respect of assaults
    generally, 'serious' assaults, assaults where injury is
    caused to the victim, or, I would venture to add, assaults
    to police officers in the execution of their duty. Every
    case will require individual assessment and treatment:
Yardley v Betts (1979) 22 SASR 108 at 112-113." 13. I agree with those observations and they are to be applied to the circumstances of the appellant and her offence. It may be accepted that she reacted to the police officers, albeit unlawfully. She was frightened at the prospect of immediate imprisonment. She had been drinking and her intoxication, immaturity and fear, all combined to produce the highly charged emotional situation in which she acted. That matter, together with the personal circumstances of the appellant, militate against a sentence of imprisonment. 14. In view of the error of the learned Special Magistrate, the sentencing discretion is to be exercised afresh. This is not a case where a sentence of imprisonment must be imposed as the appellant has insufficient means to pay a substantial fine. Community service is an appropriate sentencing option. 15. I allow the appeal and quash the sentences of imprisonment and the bond. In lieu thereof the appellant is sentenced to 60 hours of community service to be undertaken within the next six months. The orders of the learned Special Magistrate as to costs and the payment of levy are confirmed.