Burke v Commissioner of Police [2017] QDC 227

DISTRICT COURT OF QUEENSLAND CITATION: Burke v Commissioner of Police [2017] QDC 227 PARTIES: DOMINIC MICHAEL BURKE (applicant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 20/2017 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Toowoomba Magistrates Court DELIVERED ON: 8 September 2017 DELIVERED AT: Toowoomba HEARING DATE: 28 August 2017 JUDGE: Richards DCJ ORDER: Appeal temporarily stayed. Matter remitted back to Magistrates Court. CATCHWORDS: Sentence where offence not sufficiently particularised COUNSEL: Mr Burke appeared for himself SOLICITORS: CMZ Wilkins - solicitor for the Office of the Director of Public Prosecutions [1] On 28 October 2016 the applicant was sentenced on his own pleas of guilty in the Toowoomba Magistrates Court in relation to a series of offences as follows:  Serious assault with circumstance of aggravation – 12 months imprisonment  Serious assault of a police officer – 9 months imprisonment  Failed to provide specimen of breath, convicted and not further punished, disqualified from driving for six months. -- 1 of 5 -- 2  Using a carriage service to menace, harass or cause offence, recognisance of $1,500 and ordered to be of good behaviour for 12 months  Breach of bail (two charges) convicted and not further punished  Assault obstruct police – two months’ imprisonment  Commit public nuisance – two months’ imprisonment All those offences were to be served concurrently. [2] The offending was committed during the currency of the suspended sentence for serious assault, assault obstruct police and drunk or disorderly in premises. The learned magistrate activated the six months that was suspended and ordered that the sentence be served cumulatively on top of the activated period of imprisonment. He was given immediate parole with 176 days of pre-sentence custody declared. Facts [3] Late in the evening on 4 April 2006 police intercepted the applicant for a random breath test which returned a positive result. He was transported to a police station where he failed to provide a specimen of breath. He asked to be given a blood test but that was refused. Whilst being processed, he became verbally aggressive. He turned to face Officer Winnett and took a step towards him. Winnett and the other officers present attempted to restrain him and during the course of that melee the applicant was said to have elbowed Officer Winnett to his right cheek. They continued to attempt to restrain the applicant and he kicked out and connected with Officer Burrell’s leg. By this stage they were on the ground. There were two breach of bail offences where he failed to report. On 6 May 2016 he was advised that failure to report he became abusive and was charged with obstruct police, commit public -- 2 of 5 -- 3 nuisance. On 20 April 2016, 21 April 2016 and 25 April 2016 he made abusive phone calls to police officers. [4] Mr Burke’s notice of appeal relates chiefly to his protest at not being given a fair chance at trial, poor representation by lawyers and a failure by the police to properly disclose items relevant material. He further appeals on the basis that the 18 months’ imprisonment imposed was manifestly excessive and refers to a case of Asiata. [5] The right to appeal lies under s 222 of the Justices Act 1866. That section provides at subsection 2(c): “If a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.” This is the only ground on which an appeal after a plea of guilty can be entertained. [6] The applicant contends that the serious assault offences are better classified as obstruct police and that the CCTV footage indicates that this was not a serious assault with a circumstance of aggravation. At the hearing of this matter the Crown agreed to the admission of the CCTV footage. That footage was watched by the court. It makes it clear that the charge of serious assault with a circumstance of aggravation which drew a sentence of 12 months imprisonment is not made out on the evidence. [7] It was submitted in court by the crown that the injury that occasioned bodily harm was a large bruise to the hip occasioned by a fall to the ground during the struggle. The facts presented at sentence were that the police officer Winnett was being abused by the applicant. He turned to face Winnett and stepped forward in an aggressive manner at which point Winnett attempted to restrain the defendant. This much is borne out on the CCTV footage. It was submitted by the applicant’s lawyer to the -- 3 of 5 -- 4 magistrate that the police officer said before this happened “Do not face up to me like that. Do you understand?” and then attempted to restrain him. The police submitted that the appellant became increasingly aggressive at this point and has lashed out using a right elbow that connected with Senior Constable Winnett’s right cheek. The police went on to say: “Police have attempted to restrain the defendant further against the charge counter he struck out ultimately kicking Constable Stephanie Burrell in the leg. As a result of this the three have fallen to the ground.” [8] It is unfortunate that the police did not tender the CCTV footage to the court because what is obvious is that the assault occasioning bodily harm was not made out on the footage. The CCTV footage shows the applicant acting aggressively towards the police officer. The police officer reacts by attempting to restrain him. During the course of that restraint his shirt is being pulled in two different directions and the applicant pulls his elbow back to break the restraint and may have connected with the police officer’s chin (there does not appear to be any connection with the left cheek). There is a further struggle against a counter where the police officers, three in total, are attempting to restrain the applicant. A further police officer comes in and attempts to help and in the course of that assistance it appears they all fall to the ground whereupon it can be seen that the applicant is kicking out and presumably kicks the officer who was the complainant in the second serious assault charge. [9] The bodily harm namely the bruise to the hip caused by the fall to the ground it is not a direct consequence of the elbow to the chin. The elbow going back during the course of the struggle did not lead to anyone overbalancing and falling. The chain of causation is clearly broken and the assault occasioning bodily harm is not made out. There was no suggestion that any injury amounting to bodily harm was occasioned to the left cheek. -- 4 of 5 -- 5 [10] During the course of the hearing the Crown conceded that the assault occasioning bodily harm was not made out at law. It was explained to the appellant that there was no power in the Justices Act 1866 for this court to order that the conviction be set aside and the appropriate course would be to apply for the plea to be set aside. In those circumstances it was indicated that the matter would be remitted back to the Magistrates Court to allow Mr Burke to apply to have the plea of guilty set aside. [11] I understand Mr Burke is eager to have all of his pleas set aside. That is a matter for the magistrate but it seems very clear that the serious assault with circumstance of aggravation is not made out on the independent evidence in the CCTV footage and in fact the kicking as particularised does not appear on the CCTV footage either (although there does appear to be kicking when the applicant is restrained on the ground). [12] In the circumstances it seems to me the appropriate order is one that the appeal should be temporarily stayed pending an application in the Magistrates Court for the plea to be set aside. I should add that in my view if the plea had been properly entered and the offence known to law that the incident was not so serious as to warrant a sentence of 12 months imprisonment. It was not a particularly violent incident nor was it prolonged. The appellant was very quickly subdued. Having regard to the comparable sentences relied on by the respondent the sentence imposed was manifestly excessive. -- 5 of 5 --