Bateman v Briskey [2012] QDC 232

1 DISTRICT COURT OF QUEENSLAND CITATION: Bateman v Briskey [2012] QDC 232 PARTIES: KASIA BATEMAN (applicant) v JAY LESLIE BRISKEY (respondent) FILE NO/S: D24/12 DIVISION: Appeal jurisdiction PROCEEDING: Appeal against sentence ORIGINATING COURT: Magistrates Court at Toowoomba DELIVERED ON: 28 June 2012 DELIVERED AT: Toowoomba HEARING DATE: 27 June 2012 JUDGE: Bradley DCJ ORDER: The appeal is dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where respondent pleaded guilty to serious assault – where sentence imposed was 12 months imprisonment with immediate parole – whether sentence manifestly inadequate Justices Act 1886 (Qld), s 222 Penalties and Sentences Act 1992 (Qld), s 9 Appeal Costs Fund Act 1973 (Qld), s 15 R v Wotton and Bourne, ex-parte Attorney-General [1999] QCA 382 R v Williams [1997] QCA 385 R v Kazakoff [1998] QCA 459 Ostaspovitch v Taumaletila-Maulolo [2012] QDC 029 COUNSEL: S Farnden for the applicant S Lynch for the respondent SOLICITORS: Office of the Director of Public Prosecutions for the applicant Bosscher Lawyers for the respondent -- 1 of 9 -- 2 JUDGMENT 1 10 20 30 40 50 60 HER HONOUR: Now, this is an appeal by the prosecution against a sentence that was imposed in the Toowoomba Magistrates Court on the 29th of February 2012 when the respondent pleaded guilty to a charge of serious assault in relation to an assault on a police officer which offence was committed on the 7th of May 2011 at Pittsworth. The sentence imposed was one of 12 months' imprisonment with immediate parole. The appellant contends that such a sentence is manifestly inadequate. The facts, as outlined in the appellant's outline of argument, and it seems to be accepted by the respondent, are as follows: the complainant police officer was performing patrol duties in the early hours of the morning in Pittsworth. He approached the respondent who was walking on his own and asked his name and what he was doing. The respondent ran at the police officer and assaulted him. The two of them struggled and the respondent was restrained before breaking free and continuing to assault the officer. Both men fell to the ground and the respondent punched the officer six times to the head. The officer lost consciousness briefly and the respondent fled. The police officer was transferred by ambulance to the Toowoomba Base Hospital in relation to head injuries. He suffered injuries to his head, namely abrasions to the right side of his forehead, a sore neck and bruising to his upper right shoulder and right hip. He had scans and tests completed. -- 2 of 9 -- 3 JUDGMENT 1 10 20 30 40 50 60 The respondent participated in an interview with police during which he falsely denied involvement in the offence. He gave a false excuse as to why he had an injured hand, and the plea of guilty was entered after the matter had been listed for committal with a cross-examination of witnesses. A preliminary issue on appeal was whether the respondent's plea of guilty could properly be described as having been entered at an early stage. The appellant argues that as the plea was entered on the day when the matter was set for a committal hearing with cross-examination of witnesses, some nine months after the respondent was charged, it could not be described as an early or timely plea. Leave was given to the respondent to adduce new evidence in the form of an affidavit by his solicitor which illustrates that, right up until the day before the matter was listed for a committal hearing, the prosecution maintained its election to have the matter proceed by way of indictment. The respondent's solicitor had, on behalf of the respondent, offered in writing in August 2011 to plead guilty if the prosecution elected summary jurisdiction. It was only the day before the matter was listed for committal that the prosecution did change its election to summary jurisdiction and the plea of guilty was then entered. In those circumstances, the Magistrate was correct in describing the respondent's plea of guilty as a, "relatively early plea". -- 3 of 9 -- 4 JUDGMENT 1 10 20 30 40 50 60 The appellant argues that the sentencing Magistrate gave insufficient weight to the considerations necessary under section 9, subsection 4, of the Penalties and Sentences Act; to the factors of general and personal deterrence; the need to protect police officers carrying out their duty, and the risk of harm to members of the community if a custodial sentence was not imposed, and the need to protect against such risk. Certainly, the Court of Appeal has often stated that, in most cases of assault of a police officer, the appropriate penalty is one of a custodial term, but also that it is not the only appropriate penalty. I refer here to the authority particularly of R v. Wotton and Bourne, ex-parte the Attorney- General [1999] QCA 382. The general principle is that as police officers are required by society to enforce the law and maintain order, Courts must ensure their protection, as far as it is possible, by imposing more than mere nominal sentences for assaults upon them, and reference here is to R v. Williams [1997] QCA 385 and R v. Kazakoff [1998] QCA 459. In this case, there's no issue with the imposition of a term of imprisonment or that it should be one of 12 months. The issue is whether the respondent should serve any time in actual custody. The sentencing Magistrate noted the way in which the assault had occurred and that it was an unprovoked attack on a police officer. He noted the injuries suffered by the police officer -- 4 of 9 -- 5 JUDGMENT 1 10 20 30 40 50 60 which, "disabled him for some weeks", but weren't, "serious, long-term injuries", which appears to be a correct way of describing the injuries. The sentencing Magistrate also noted the denial regarding the commission of the offence by the respondent when spoken to by the police after the offending. Reference was also made by the sentencing Magistrate to the respondent's criminal history which included, since 2003, convictions for vagrancy, wilful damage, obstructing a police officer and assault occasioning bodily harm and public nuisance in 2006, a further conviction for obstructing a police officer in 2006, and a further conviction for obstructing a police officer in 2008, and a wilful damage in 2010. A number of documents were tendered on behalf of the respondent during the sentencing proceedings including: written confirmation that the respondent had been assessed and had received counselling from the Toowoomba Alcohol, Tobacco and Other Drugs Service; a letter from his doctor confirming that the respondent is receiving treatment for suspected epilepsy and for depression; a character reference from his counsellor who attested to the respondent's determination to improve his career prospects and his commitment to others; and a character reference from a respected member of the Pittsworth community. -- 5 of 9 -- 6 JUDGMENT 1 10 20 30 40 50 60 The respondent was 32 years of age when sentenced. He was in a stable relationship. His partner has a six-year old child who has cardiac problems and the respondent acts as a father for that child and financially provides for her. The respondent had been on stringent bail conditions from the time of his arrest to sentence which included conditions that he reside with his mother and not consume alcohol and submit to alcohol testing which he had successfully passed. The respondent started binge-drinking from about the age of 20 but was diagnosed with depression some three years ago and was on medication for that. The respondent attempted suicide in January this year by way of an overdose, following which he sought counselling and had undergone a course of counselling. In addition, he'd obtained work with a transport company in January and it was submitted that he was now managing his depression. The appellant referred me to the decision of his Honour, Judge Farr, a recent decision handed down on the 1st of March this year in this Court. That was the decision of Ostaspovitch and Taumaletila-Maulolo. In that case, for the offence of assault of a police officer, a sentence was given in the Magistrates Court of 12 months wholly suspended for an operational period of two years, and an accompanying compensation order of $1,000 was made. On appeal, the respondent was ordered to serve three months' imprisonment before the balance of the term of -- 6 of 9 -- 7 JUDGMENT 1 10 20 30 40 50 60 imprisonment was suspended. There were similar factors at play in that case, but it certainly is of note that the matter had gone to trial and that the injuries of the police officer were rather more serious than they are in this case. In this case, the matter is finely balanced between denunciation of the respondent's behaviour, deterrence, protection of the community generally and police officers in particular on the one hand, and matters personal to the respondent in mitigation and particularly the steps he has taken towards rehabilitation and his mental and physical health issues on the other. Bearing in mind that balance that needs to be taken into account by any sentencing judicial officer, no error in this case in the Magistrate's reasoning regarding sentence has been demonstrated by the appellant. The sentence, although lenient, is not outside the range that could be imposed for this offending, and it is not imperative in this case that the respondent should serve some actual time in custody. The appeal is therefore dismissed. Now, there was a submission made by Mr Lynch that I should sign a certificate with respect to the Appeal Costs Fund. I actually haven't had the opportunity to look at the Act in that regard. You don't have a copy of it there, do you? MR BOUCHIER: Not in hard format, your Honour, only in electronic format, but I can take your Honour through the sections. HER HONOUR: Yes. MR BOUCHIER: The----- HER HONOUR: Can you bring up the Appeal Costs Fund, thanks, Lara? The Appeal Costs Fund Act. Yes, section 15, I think. MR BOUCHIER: Fifteen. Yes. -- 7 of 9 -- 8 JUDGMENT 1 10 20 30 40 50 60 HER HONOUR: Yes. MR BOUCHIER: So it's section 15, subsection 2, your Honour, gives the power. HER HONOUR: Did you have anything to say about that, Ms Helsdon? MS HELSDON: Your Honour, the section provides that it's a matter of whether it's a question of law. In my submission it's - that's a matter for your Honour to determine whether the appeal was on the basis of a question of law as to whether the respondent is entitled to costs from the Appeal Costs Fund. MR BOUCHIER: And then the enforcement - or the effect of that certificate is in section 16, subsection B. HER HONOUR: Subsection? MR BOUCHIER: Section 16, subsection 1, paragraph B. HER HONOUR: Right. MR BOUCHIER: Effectively, it entitles the respondent to be paid for the - from the fund an amount equal to the respondent's costs. HER HONOUR: Yes. All right. Just go back to 15(2). Well, Ms Helsdon, do you argue that it's not a question of law? You know, I imagine it is really. Whether there was an error in the sentencing process seems to me to be a question of law. MS HELSDON: Yes, I suppose that's the case, your Honour. HER HONOUR: All right. Well, in that case, I will grant the respondent an indemnity certificate in respect of the appeal pursuant to section 15, subsection 2 of the Appeal Costs Fund Act. MR BOUCHIER: Thanks, your Honour. My - I can undertake to email a draft to your Honour's associate this afternoon. HER HONOUR: Thank you. -- 8 of 9 -- 9 JUDGMENT 1 10 20 30 40 50 60 MR BOUCHIER: Your Honour, one has been prepared. There just had to be some matters added to that which could only be done following the hearing, so. HER HONOUR: Okay. That's fine. ----- -- 9 of 9 --