DISTRICT COURT OF QUEENSLAND

CITATION:	Fuller v Commissioner of Police [2021] QDC 96	
PARTIES:	SHANIA MARGARET LILLIAN FULLER 
(Appellant)
v
COMMISSIONER OF POLICE
(Respondent)	
FILE NO/S:	816 of 2021	
DIVISION:	Appellate	
PROCEEDING:	Appeal	
ORIGINATING COURT:	Richlands Magistrates Court	
DELIVERED ON:	29 April 2021 (ex tempore reasons given)	
DELIVERED AT:	Brisbane	
HEARING DATE:	29 April 2021	
JUDGE:	Farr SC DCJ	
ORDERS:	1.	Appeal upheld;
2.	The sentences of nine months imprisonment on each of Charges 1 and 2 with a parole release date of the 12th of June 2021, which were imposed on the 12th of March 2021 at the Richlands Magistrates Court are set aside;
3.	The appellant is sentenced to 3 months imprisonment on Charge 1 and 6 months imprisonment on Charge 2 with a parole release date of the 12th of May 2021; 
4.	48 days of pre-sentence custody from the 12th of March 2021 until the 28th of April 2021 is declared as time served under the sentence just imposed.	
CATCHWORDS:	CRIMINAL LAW – APPEAL – Justices Act 1886 – section 222 – appeal against sentence – where the appellant pleaded guilty to one charge of serious assault, one charge of serious assault causing bodily harm and one charge of disqualified driving – where the learned sentencing magistrate imposed sentences of nine months imprisonment on each of the serious assault charges with a parole release date set after the defendant had served three months imprisonment – whether, with respect to the serious assault charges, the learned sentencing magistrate acted on an incorrect principle that actual imprisonment was mandated – whether, with respect to Charge 1, the learned sentencing magistrate failed to have regard to section 9, subsection (2)(a) of the Penalties and Sentences Act 1992 – whether the imposition of actual imprisonment rendered the sentence manifestly excessive	
SOLICITORS:	D Hans (Hans Legal) for the appellant 
M Parfitt (Director of Public Prosecutions (Qld)) for the respondent	

HIS HONOUR:   All right.  Given that the appellant has currently served a period of 45 days in custody post-sentence, and the fact that I am unlikely to be able to return to this matter for a couple of weeks because of other court commitments, I intend to deliver the decision now in an ex tempore fashion.  This is an appeal pursuant to section 222 of the Justices Act 1886.  The appellant was convicted after entering pleas of guilty to one charge of serious assault, one charge of serious assault causing bodily harm and one charge of disqualified driving.  For each of the assault offences, she was sentenced to nine months imprisonment and she was sentenced to three months imprisonment for the driving offence.  The terms of imprisonment were ordered to be served concurrently and a parole release date was set after she served a period of three months in custody.  That period of three months would end on the 11th of June this year.

The appellant was 24 years of age at the time the offences were committed and she has a criminal history of little relevance for today’s purposes.  The circumstances of the offending conduct are as follows:  in relation to the driving offence, she was pulled over for a random breath test on the 12th of October last year;  she advised police she did not have a licence and was disqualified;  checks confirmed that was correct, and those are the relevant facts relating to that particular charge.  The other two charges both arise from the same incident.  That was on the 15th of November last year at about 8.30 in the evening.  The appellant was at South Bank Parklands with another person, consuming alcohol.  They were approached by police officers and told that they were not allowed to consume alcohol in the Parklands and they were told to pour their drinks out.

The appellant stood up and was verbally aggressive towards one officer.  That officer instructed her to sit on the ground, but she ignored that request.  Now, that series of behaviours on her part, to that point in time, constitutes Charge 1.  Charge 1 is, in reality, an obstruction of police.  The incident continued, however.  The other officer attempted to move the appellant away; the appellant grabbed onto her friend, who had stood up, as well as the other police officer.  The appellant then kicked one of the police officers – Officer Hayes, in the leg/stomach area.  The appellant’s companion, another female, then turned her attention to Officer Hayes and also struck her with a closed fist to the face.  This caused Officer Hayes to fall to the ground and the appellant’s companion then stood over the top of her and inflicted a further five or six blows to her face.

The other officer then deployed OC spray and these two women were arrested.  As a consequence of the blows to the face, Officer Hayes sustained a broken nose and a deviated septum, which required surgery for correction.  In relation to Charge 2, that is the assault upon Officer Hayes, the appellant entered a plea of guilty on the basis that she was a party to the offence, and as has been gleaned during the course of submissions today, the basis for that plea of guilty was that she gave verbal encouragement during the course of her companion’s assault of Officer Hayes.  There are three grounds of appeal.  The first is that with respect to the serious assault offences, the learned sentencing magistrate acted on an incorrect principle that actual imprisonment was mandated; the second is that with respect to Charge 1, the 
learned sentencing magistrate failed to have regard to section 9, subsection (2)(a) of the Penalties and Sentences Act 1992 and the third ground of appeal is that the imposition of actual imprisonment rendered the sentence manifestly excessive.

These three grounds of appeal relate, in reality, only to the assault charges because the sentence of actual imprisonment that was imposed did not relate to the charge of driving whilst disqualified.  It has been submitted from the bar table today that this court might take the view that that sentence for that charge was also excessive, but as I have indicated to counsel, given that there are no grounds of appeal before the court in relation to it, it seems to me to be a matter that I have no power in relation to, at the present time.  Section 225 of the Justices Act sets out the powers of the District Court sitting in its appellate jurisdiction – I will not repeat that for the – in the course of these ex tempore remarks.  A section 222 appeal is by way of rehearing of the evidence and the court must review the record of proceedings and form its own opinion as to the appropriate sentence having regard to the learned magistrate’s view.  The principles governing when an appellate court may interfere with the exercise of the sentencing discretion are well-established, including those principles as enunciated in House v The King.

Again, in the course of these ex tempore remarks, I will not go through that in detail.  Both legal representatives have referred to the standard to be met on appeal and I agree with their submissions in that regard.  This matter proceeds in a curious way.  The respondent agrees with the appellant’s submission in relation to the first two grounds of appeal and that the learned magistrate acted on – or acted erroneously, as indicated, in those two grounds.  Upon reading all of the material, including the transcript of the proceeding below, as well as the submissions, viewing the video recordings that form part of the exhibits and the exhibits that were tendered below, it is clear to me that the magistrate did act erroneously, as alleged, in respect of each of those matters and that as a consequence, the discretion of this court to – well, the duty of this court to resentence is enlivened.  I do not intend to go through the details of those grounds and the submissions that accompany them, given that there is no dispute in that regard.

It falls then, to this court, to resentence in relation to the two assault charges unless, in the separate and independent exercise of this court’s discretion, it is concluded that no different sentence should have been passed to that which was passed below.  In relation to Charge 1, it is immediately apparent that a sentence of nine months imprisonment, to serve actual imprisonment for a period of three months, is demonstrably excessive on a charge of serious assault when that serious assault is constituted by nothing more than an obstruction, the obstruction being speaking aggressively, failing to pour out an alcoholic drink on the ground and failing to sit down.  The fact that the same penalty was imposed in relation to each of Charges 1 and 2 is a further demonstration that there was insufficient consideration given to the particulars of Charge 1 and that an error has occurred in the sentence that was imposed and manifestly so.

Insofar as the second charge is concerned, which is, obviously, the more serious of the two, it has been submitted on behalf of the appellant that a sentence that did not warrant actual imprisonment, or alternatively, three months of actual imprisonment is appropriate in the circumstances.  The appellant, as I have indicated, was, I think, 24 years of age with little by way of relevant criminal history.  There can be no doubt that her behaviour on the night in question was poor, as evidenced by the video recordings that have been played in this court during the course of this hearing.  She did involve herself in this behaviour quite deliberately and irrationally, it must be said, and instigated the assault upon Officer Hayes by the kick to that police officer to her leg/stomach region.  It must be noted Officer Hayes was another female – a female police officer.

It would seem that it was that kick which, in turn, caused her companion to assault Officer Hayes in the way described, urged on as she was by the appellant verbally.  Each of the police officers were doing nothing other than their duty in accordance with the law.  I note, as has been noted by the courts on many occasions over many years, police officers are deserving of the protection of the courts against those who might be minded to assault them in the course of their duty and that can only realistically be achieved by the imposition of sentences which not only act as a personal deterrent to the individual concerned, but also to the public at large.  I have been referred during the course of submissions to a number of comparable decisions, but it must be noted as I have in the course of submissions that none of those decisions involved a person who was being sentenced on the basis of being a party to the offence; that is, someone who did not himself or herself physically cause the injury to the police officer or inflict the majority of the blows to the police officer.

Yet it is equally to be noted that in none of those cases did a sentence result that was greater than the period of time that was required by the magistrate, in this case, to be served by the appellant.  Having said that, the appellant was convicted of Charge 2 not only on the basis of being a party but also on the basis of being a principal offender in that she kicked a police officer in the leg/stomach region.  That is, in and of itself, serious misconduct.  It is fortunate for the appellant that the police officer did not suffer any serious injury as a consequence of that blow, but that factual feature, nevertheless, is a relevant consideration in the determination of an appropriate sentence in this matter.  I note that the appellant entered an early plea of guilty to these charges and I take that into account in the determination of an appropriate sentence.  I also note that the appellant indicated through her legal representatives in the court below, at least – and I infer that the situation has not changed now – that she is remorseful for her behaviour and is ashamed of it.  I accept that they were genuine sentiments on her part given the fact that she did enter an early plea of guilty to these charges.

Taking all of those matters into account – and I do not intend to go through the individual comparable decisions to which I have been referred in any great – greater detail than that which – to which I have already made reference, I do find myself of the view that the sentence imposed below was an inappropriate sentence in respect of each of Charges 1 and 2.  It, therefore, falls to this court to resentence the appellant 
afresh.  In relation to each of Charges 1 and 2, the order below is set aside and on Charge 1, the serious assault, the appellant is sentenced to three months imprisonment, and on Charge 2, serious assault causing bodily harm, the appellant is sentenced to six months imprisonment.  Given that the appellant did, in fact, involve herself in the kicking of a police officer in the course of that police officer’s attempt to deal with her in a reasonably responsible way, the behaviour is such that a period of some custody is warranted.

I note that the appellant has spent 45 days in presentence custody, so I will set the appellant’s parole release date as at the 12th of May 2021;  that is after a period of two months and I declare that she has spent 45 days, I think it works out to, Mr Hans, in presentence custody?

MR HANS:   My friend and I have made some comments about that.  We thought that it was 48 days.

HIS HONOUR:   Forty-eight, is it?

MR HANS:   But ‑ ‑ ‑ 

HIS HONOUR:   Do you agree?

MS PARFITT:   I agree with that, your Honour.

MR HANS:   The 12th of ‑ ‑ ‑ 

HIS HONOUR:   Sorry.  You said it was six weeks and three days;  that would be 45 days.

MR HANS:   That is where you got that maths from.  I figured that out;  that is what my calendar told me but we did a – I did a day to day calculation and it is 48.

HIS HONOUR:   All right.  Anyway, so it is – I take it it is from the 12th of March?

MR HANS:   Yes, your Honour.

HIS HONOUR:   All right.

MR HANS:   And so the end date of 12 May, of course, still is perfectly fine.

HIS HONOUR:   Yes.  All right.  I declare that she has spent 48 days in presentence custody from the 12th of March 2021 to the 28th of April 2021 and I declare that to be time served on the sentence that I just imposed.  Have I overlooked anything there? 

MR HANS:   No.  I just – out of complete caution, your Honour did not, of course, make any comment about the disqualified driving charge, but I would hope that 
sentence management would see your Honour’s adjustment to the parole release date as also applying to that charge.  There can only be one parole release date anyway.

HIS HONOUR:   There can only be one parole release date.  I have just set the parole release date for this woman.  That will, of necessity, vary the parole release date that was imposed in relation to that other charge.  So that parole release date must now, of necessity, apply to all three charges.

MR HANS:   Thank you, your Honour.

HIS HONOUR:   So I am sure that makes it clear ‑ ‑ ‑ 

MR HANS:   I think so.

HIS HONOUR:   ‑ ‑ ‑ for those at Corrective Services.  Anything else?

MR HANS:   No, your Honour.  Thank you.

MS PARFITT:   No, your Honour.  Thank you.

HIS HONOUR:   All right.  Thank you for your assistance, both of you.  Have you got those discs there?  I will just put them back where they came from.  Thank you.

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