Burgoyne v Dixon [2004] NTSC 37

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Burgoyne v Dixon [2004] NTSC 37






FILE NO: JA 15/04 (20408790)

DELIVERED: 4 August 2004

HEARING DATES: 11 June 2004




Appellant: R Noble
Respondent: M O’Reilly

Appellant: Office of the Director of Public Prosecutions
Respondent: Central Australian Aboriginal Legal Aid Service

Judgment category classification: C
Judgment ID Number: tho200407
Number of pages: 10


Burgoyne v Dixon [2004] NTSC 37
No. JA 15/04 (20408790)







(Delivered 4 August 2004)

[1] This is a Crown Appeal from the sentence of a stipendiary magistrate imposed in the Court of Summary Jurisdiction at Alice Springs on 16 April 2004. On that date the learned stipendiary magistrate convicted the respondent of the following offences:
“Count 1: that on the 1st day of February 2004, the defendant unlawfully assaulted Police Constable Vic Dupont in the execution of his duty.
Contrary to s 189A of the Criminal Code.
Count 2: that on the 1st day of February 2004, drove a motor vehicle on a public street whilst having a concentration of alcohol in his blood equal to 80 milligrams or more of alcohol per 100 millilitres of blood, namely 156 milligrams of alcohol.
Contrary to s 19(2) of the Traffic Act.”
[2] With respect to these two offences the learned stipendiary magistrate made the following orders (tp 7):
“And on counts 1 and 2, for each of those charges you’ll be convicted and sentenced to 14 days’ imprisonment. That sentence is to commence today.”
[3] When he was queried by counsel for the respondent as to whether “those sentences are both to run from today?” the learned stipendiary magistrate replies “Yes”.
[4] His Worship also made orders for disqualification of the respondent’s licence and imposed a conviction and fine for a further offence of failing to have a licensed driver with him. These matters are not the subject of any appeal.
[5] The appellant lodged three grounds of appeal with respect to the sentence imposed on Counts 1 and 2. At the outset of the hearing of the appeal, Mr Noble who appeared as counsel for the appellant, conceded that Grounds 1 and 2 of the appeal could not be substantiated. On a proper reading of the transcript of proceedings before the Court of Summary Jurisdiction, the learned stipendiary magistrate had not imposed an aggregate sentence but rather a sentence of imprisonment on each offence to run concurrently.
[6] Accordingly, the only ground of appeal to be argued was Ground 3: “that the sentence imposed was manifestly inadequate in all the circumstances of the offence and the offender”. In particular, this ground was directed to the sentence of 14 days imprisonment on Count 1.
[7] The principles applying to a Crown Appeal have been set out in a number of authorities including R v Tait (1979) 46 FLR 386 at 388; R v Raggett (1990) 50 A Crim R 41 at 47 and R v Allpass (1993) 72 A Crim R 561 at 562:
“An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive.”
[8] With respect to the offence on Count 1, the court had been informed that the respondent had been driving a motor vehicle upon the South Stuart Highway. He had been stopped by police for the purpose of a random breath test, which returned a positive reading.
[9] The admitted facts with respect to Count 1 are as follows (tp 2):
“The defendant was then arrested and placed into the rear of the police van. One of the attending police members, Constable Dupont, approached the rear of the van and asked the defendant his name in relation to the offence. The defendant has then spat at the member through the rear of the cage with the member receiving saliva on the left side of his face and eye and upon his right forearm as he bent down, trying to talk to the defendant.”
[10] There was no Victim Impact Statement put forward by Constable Dupont. A record of prior convictions was tendered Exhibit P1. This record contains numerous prior convictions for offences of assault. In his submissions to the Court of Summary Jurisdiction, Mr O’Connell who appeared for Mr Dixon, conceded that his client had (tp 3) “a poor record as far as assaults is concerned”. Mr O’Connell also went on to point out that the last of these assaults was committed in December 2002 over a year prior to this particular offence.
[11] In the course of discussions with counsel, his Worship stated (tp 4) “Your client’s got an appalling record for violence over the years.” He indicated that the assault on the police officer warranted a period of imprisonment. Mr O’Connell had made a submission in which he referred to a sentence of the previous Martin CJ, in relation to spitting, where he said that “the appropriate sentence of imprisonment was something in the vicinity of 14 days for this type of offending”. Apparently in response to this submission the learned stipendiary magistrate stated (tp 4) “And even with the discount I can tell you now that I’m not thinking of a period of imprisonment of 14 days”. His Worship then indicated that if Mr O’Connell requested an adjournment to obtain the authority referred to in his submissions in mitigation, then the court would grant him this indulgence. The hearing of the matter was stood down to enable this to occur.
[12] Mr O’Connell then returned with a decision of Kearney J in the matter of William John Hayes v Robin Trenerry delivered 13 March 1995. Mr O’Connell pointed out that this decision referred to Jackaboy v O’Brien which was the decision of former Chief Justice BF Martin to which Mr O’Connell was previously alluding. In Jackaboy v O’Brien unreported, delivered 9 December 1992, Martin J as he then was, had been dealing with an offence of spitting on a police officer and said “two weeks would be about the upper end of the scale that one might impose for an offence of this sort”. The decision in Jackaboy v O’Brien (supra) was not before the Court of Summary Jurisdiction, neither was it obtainable for this Court and the reference to it is contained the decision of Hayes v Trenerry (supra).
[13] There were no other authorities put before the learned stipendiary magistrate. His Worship was not referred to a number of later decisions which were more relevant to his deliberations.
[14] His Worship stated at the commencement of his reasons for sentence (16/4/04 tp 7):
“Although I don’t think, and I don’t think it’s put, that the matters of Hayes and Jackaboy set any - fix any particular tariff for these sorts of offences. Seems pretty clear having regard to the factual scenario in the matter of Hayes and this case that the defendant’s offending is on par with the circumstances that were considered by His Honour Kearney J, and there seems to me to be no reason at this stage, after having read that authority, to attempt to distinguish it.
I’m satisfied, though, that the circumstances of the defendant’s conduct, so far as it relates to the police officer, fall within, as His Honour the former Chief Justice described as the more serious range for this type of offending, having regard to where the spittle landed on the officer, that it is appropriate to accept Mr O’Connell’s submission that a sentence of 14 days is appropriate.”
[15] In placing such reliance on these two authorities, I consider the learned stipendiary magistrate was led into error. There have been a number of significant developments since those two decisions were delivered. None of this was drawn to the attention of the learned stipendiary magistrate.
[16] In the matter of The Queen v Damien Charles Mitchell (unreported), a decision of Mildren J delivered 14 July 1999, SCC 9809824 and SCC 9616088, his Honour sentenced the defendant for unlawful aggravated entry, stealing and assaulting a police officer in the execution of his duty. The last offence was under s 189A of the Criminal Code which carries a maximum penalty of five years imprisonment. This is the same section of the Criminal Code as the respondent in the appeal before this Court faced.
[17] In the matter of The Queen v Mitchell (supra) the facts in respect of the charge of assault as found by his Honour, were as follows (p 43):
“… Another officer, Constable Jeremy English, then attempted to obtain the accused’s name and address, but the accused lurched forward in his direction and spat phlegm into his face. The spittle landed on his cheek and in his eyes.”
[18] In the course of his reasons for sentence with respect to the offence of assaulting a police officer in the execution of his duty, Mildren J said (p 47):
“I have been referred to a number of authorities by the prosecutor, Mr Tiffin, and by counsel for the prisoner, Mr Delaney. Included were a number of authorities of this court relating to assault police under section 158 of the Police Administration Act, which carries a maximum of six months’ imprisonment. The present section under which the prisoner is charged was enacted because the legislature no doubt considered that that maximum was inadequate. It is now a maximum of five years.
The fact that the maximum has been increased some ten times is a factor which I cannot ignore. Also, many of these decisions are made at a time when the risk of catching AIDS, as well as other diseases, may not have been fully appreciated by the courts. Certainly that factor is not mentioned, although it is recognised that to be spat on, in the eye or in the mouth, was more offensive to the victim.
I therefore distinguish Jackaboy v O’Brien, the judgment of Martin J on 9 December 1992 and the judgment of Hayes v Trenerry, the judgment of Kearney J on 13 March 1995, on these grounds.
In my opinion, the facts of this case warrant a sentence of immediate imprisonment, notwithstanding the prisoner’s intellectual problems, to protect police from this kind of behaviour and to deter the prisoner from re-offending in this way.”
[19] The principles of sentencing for an offence of assault police in the execution of their duty, have been set out by Mildren J in a Justices Appeal Matthew Conway Bellis v Robert Roland Burgoyne [2003] NTSC 103 (unreported) delivered 24 October 2003, paragraphs 14 to 18 inclusive and by the Queensland Court of Appeal in the matter of The Queen v Alquin George Williams ex parte Attorney-General of Queensland (unreported) [1997] QCA 385, delivered 21 November 1997.
[20] The magistrate was correct to find that there was no tariff for this offence. The principle that there is no tariff for the offence of assault police in the execution of their duty and that each case has to be individually assessed has been expounded and confirmed in a number of decisions of this Court; including the decision of Mildren J in Robertson v Flood (1992) 111 FLR 177, decision of Kearney J in Casey v Hayward (1997) 137 FLR 411 at 416 and Bellis v Burgoyne (supra).
[21] The magistrate was led into error by attaching the weight he did to the decision in Jackaboy v O’Brien (supra) and Hayes v Trenerry (supra) and concluding that 14 days imprisonment was an appropriate sentence.
[22] I consider the Crown have established that the sentence of 14 days imprisonment was manifestly inadequate in all the circumstances of the offence and the offender.
[23] I allow the appeal. The sentence of 14 days imprisonment imposed by his Worship is quashed pursuant to the provisions of s 177(2)(c) of the Justices Act. I propose to vary the order made by the learned stipendiary magistrate.
[24] The offence of assaulting a police officer in the execution of his duty contrary to s 189A of the Criminal Code carries a maximum of five years imprisonment.
[25] The respondent has six prior convictions for aggravated assault and one prior conviction for assault police. I agree with the submission made by Mr Noble for the Crown, that this offence is an example of contumacious offending that was deserving of a significant term of imprisonment. The act of spitting in an officer’s face is humiliating and degrading. It can have far more devastating consequences and be more difficult to fend off than the more common form of assault which involves kicks or punches to the body. There is a potential risk of contracting communicable diseases. To ascertain if any such disease has been communicated the officer concerned would need to undergo tests which can be quite extensive and or take some months to produce a result. In this matter there was no Victim Impact Statement as is required by s 106 of the Sentencing Act. It is not possible to make any specific findings as to the impact of offending on this particular police officer. However, the impact on a particular victim is only one aspect of the sentencing process. It is a matter of community knowledge that a consequence of being spat upon can be the transference of a disease. It is a serious offence.
[26] Society depends upon police officers to maintain law and order. Such officers deserve the protection of the courts. It is in the interests of the whole community that police officers proceed in the execution of their sometimes very difficult and onerous duties without being subjected to this type of offending.
[27] I do not consider the sentence should be concurrent with the sentence for the offence of driving with an excess level of alcohol. The offence of assault police is unrelated to the driving charges. It is a separate and distinct offence which falls into a completely different category of offending – see Hales v Garbe [2000] NTSC 49.
[28] General and specific deterrence are important aspects in the sentencing considerations for this offence.
[29] On the facts as admitted in support of this charge and the background of the respondent, I would have considered an appropriate sentence to be in the order of two to four months imprisonment. Taking into account the double jeopardy attendant upon a prosecution appeal I will reduce this to a period of one month imprisonment.
[30] The order I make is that the respondent be convicted and sentenced to one month imprisonment. Such sentence to be cumulative upon the sentence of 14 days imposed for the offence of drive exceed .08.