Emerson v Commissioner of Police [2012] QDC 186

QDC [2012] 186 DISTRICT COURT APPELLATE JURISDICTION JUDGE REID CHRISTOPHER LUKE EMERSON Appellant and COMMISSIONER OF POLICE Respondent BRISBANE ..DATE 17/02/2012 ORDER -- 1 of 9 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The appellant, Christopher Emerson, has appealed against a decision of a Magistrate at the Wynnum Magistrates Court made on the 22nd of July 2011, convicting him of an offence of obstructing a police officer on the 12th of February 2011. He does not appeal against a finding of guilt in respect of a public nuisance offence said to have been committed on the same day. In addition, for the purposes of his appeal against sentence, he had also pleaded guilty to two offences of unlawful entry of a motor vehicle on the 31st of March 2011. The circumstances of the obstructing a police officer are that, at about 8 to 9.30 p.m. on the 12th of February, the appellant, who was significantly affected by liquor, had alighted from a train at Manly Train Station. He had been observed by officers of Queensland Rail and had been asked to leave Queensland Rail property by a security guard, no doubt because of his intoxicated state. Twenty minutes later, he returned to the train station and used abusive language and displayed threatening conduct towards an officer of Queensland Rail. He then walked down Curtis Street, Manly, and spoke to two men who were drinking in a park. During the course of discussions with them, he adopted a threatening stance and raised his voice towards one of them. Police attended soon after. They arrived at the scene at about 9.45 p.m. The police vehicle was flagged down by Queensland Rail employees, one of whom directed them towards the appellant. One of the police officers, a Constable -- 2 of 9 -- 3 ORDER 1 10 20 30 40 50 60 Randall, walked towards the appellant and the two men who he had been speaking to in the park. Constable Randall said, "Hey, fellas, police. Is everything all right here?" and the defendant replied, "What's up, Mr Officer?" Constable Randall said, "What's going on here?" One of the males to whom the appellant had been speaking said, "Thank God you're here." Constable Randall, presumably on the basis of that comment and any comments that might have been made to him by officers of Queensland Rail and having himself observed that the appellant was under the influence of liquor, speaking with slurred speech, smelling of liquor and being unsteady on his feet, said to the appellant, "Stop there, mate, I want to find out what's happening here." In response, the appellant said, "Mr Officer, nothing happening here, Mr Officer. I'm going home, Mr Officer." Constable Randall again said, "Stop there" and the appellant replied, "No, I'm going home now. I'm tired." Once again, Constable Randall asked him to stop but the appellant replied, "No, Mr Officer. I'm tired. I'm going home." It seems to me that Constable Randall may well have, at that stage, in conformity with his powers under section 365 of the Police Powers and Responsibility Act, have made inquiries of the appellant to establish the appellant's identity, or even to have arrested him to have prevented the continuation of a public nuisance offence. Instead, Constable Randall grabbed or attempted to grab the appellant's arm. The appellant, in response, threw his arm around in a swinging motion. He was taken to the ground by Constable Randall who used his leg to -- 3 of 9 -- 4 ORDER 1 10 20 30 40 50 60 bring him down. The appellant landed on his stomach with his left arm underneath him. After a struggle, he was restrained and handcuffed. It was this latter conduct that constituted the alleged offence of obstructing a police officer. In my view, the police officer had not complied with the requirements of the Police Powers and Responsibilities Act. In my view, he could have made inquiries to establish the appellant’s identity, as he was entitled to under section 365(1)(b) of the Act. Asking him to stop is not a power that he has under the Act. If he had asked the appellant his identity and the appellant had refused to provide it, then he could no doubt have been arrested if the police officer had then complied with section 633 of the Police Powers and Responsibilities Act. In my view, the police officer made no attempt to do so and it could not be said that it was impractical in the circumstances to do so. In my view, all the appellant had ever done was to walk away. There was no suggestion he was fleeing or that his conduct was such as to entitle the police officer to have acted as he did. Furthermore, if he was going to arrest him in respect of the public nuisance offence, the requirements set out in Couchy v. Birchley [2005] QDC 334 that (1) the police officer reasonably suspect that an adult has committed or is committing an offence; (2) that it's reasonably necessary to arrest him and (3) that there must be grounds to arrest pursuant to section 365 were not made out. It seems to me that unless and until inquiries had been made of the appellant to establish his -- 4 of 9 -- 5 ORDER 1 10 20 30 40 50 60 identity and he'd refused to provide them, that the police officer, if he wished to charget him, ought to have proceeded by way of summons. In the circumstances, it's my view that there is no sufficient evidence that the appellant's conduct constituted the offence of obstructing a police officer and the appeal is allowed in respect of that matter. In addition, the appellant appeals against the sentence that was imposed. The penalty that the Magistrate imposed was one of 12 months' probation in respect of all four offences of which he was convicted. Necessarily because of the decision I have come to in respect of the instructing police officer, the penalty in respect of that matter will not stand. Counsel for the appellant submits that the appropriate penalty in a case such as this should have been an order for between six and 12 months' good behaviour bond or, alternatively, perhaps a fine. It is necessary to briefly consider the circumstances of the unlawful entry of a motor vehicle offence committed on the 31st of March 2011 in order to consider the defendant's overall criminality. In respect of those matters, the appellant, at about 10.20 -- 5 of 9 -- 6 ORDER 1 10 20 30 40 50 60 p.m. on Thursday, the 31st of March, was standing between two motor vehicles, a green Toyota HiLux and a silver Mazda utility owned by a Darren Wilson. Wilson became aware of the appellant's standing between them, presumably on or near to his property. He ran downstairs and observed the appellant attempting to open the front driver's door of the HiLux. Wilson called out and the appellant then threw a scooter of some sort at him. The scooter had been in the back rear tray of the HiLux utility. Necessarily, his throwing it must have meant he entered the tray for the purpose of taking possession of it. The appellant then ran south along the street but was chased by Mr Wilson. When the appellant slipped, Mr Wilson took hold of him. Police were called and they took over responsibility for the matter. At the time, the appellant was once again intoxicated. It seems to me that the Magistrate was entitled to conclude that (1) the appellant had a difficulty with alcohol since he had been engaged in two episodes of unlawful conduct on the 12th of February 2011 and the 31st of March 2011; (2) that although he was only 17 at the time of the offence and 18 at the time of sentencing and had no criminal history, he was in fact at the time of the offences of the 31st of March 2011, on bail in respect of the public nuisance and the obstruct police matters of the 12th of February 2011. That's a significant aggravating factor, in my view. In support of the appellant's counsel’s submissions in respect of sentence, it was said that he had himself taken significant -- 6 of 9 -- 7 ORDER 1 10 20 30 40 50 60 steps towards rehabilitation. He had sought help with his alcohol problems by commencing counselling with ATODS. He had obtained a traineeship driving trucks with BMA, a BHP Billiton Mitsubishi Alliance mining company and was working in Emerald, had been receiving assistance from a local Youth Connections Program, was attending an educational program for maths and English one afternoon a week and had attended a personal development Young Leadership Program. In my view, the conclusion to draw from such matters is in fact that he is benefiting from probation and appears to have significantly ameliorated his previous unlawful conduct. In my view, the imposition of a probation order in respect of the offences of dishonesty and public nuisance, of which he has been convicted, was not inappropriate. I am conscious that during the course of sentencing submissions the Magistrate conceded that if he'd entered a plea to the public nuisance and obstructing police officer charges at the first opportunity, he would "without question" have been given a good behaviour bond. In circumstances where the obstructing police officer charge has been dismissed by me on appeal, the fact remains that he did not enter an early plea to the public nuisance charge. In my view, it was incorrect to submit that the Magistrate approached the matter on the basis that he was imposing an additional penalty on what would otherwise have been the appropriate sentence in view of the appellant's requiring the matter to proceed to trial. -- 7 of 9 -- 8 ORDER 1 10 20 30 40 50 60 In my view, the concession by the Magistrate that he would have given a bond if there had been a plea at the earliest opportunity does not mean and could not amount to a concession by him that, without consideration of whether or not there was an early plea, a bond was an appropriate sentence and that the penalty he was imposing was being increased because of the fact that ultimately the public nuisance matter was determined after a trial. In my view, what the Magistrate was stating was that having given consideration to what was an appropriate sentence and ameliorating it for the fact that there had been (if there had been one) a plea at the earliest available opportunity, he would have given a bond. In my view, there is no proper basis for asserting that the imposition of a 12-month probation order in respect of each of the unlawful entry of a motor vehicle and the public nuisance offences, for which he remains convicted, was inappropriate, particularly in circumstances where no conviction was recorded. In the circumstances, I reject the appellant's argument in respect of the appeal against sentence. So the orders I make are that the appeal in respect of the conviction of obstructing a police officer is allowed but the appeal in respect of sentence is dismissed. MS TAYLOR: Thank you, your Honour. HIS HONOUR: Are there any other orders? MS TAYLOR: I don't believe there would be. MS FARINE: No, thank you, your Honour. HIS HONOUR: Thanks very much. -- 8 of 9 -- 9 ORDER 1 10 20 30 40 50 60 MS TAYLOR: Thank you, your Honour. HIS HONOUR: Thank you. ----- -- 9 of 9 --