Citation: Regina v Jouayde [2003] NSWCCA 240
Court: New South Wales Court of Criminal Appeal
Date: 5 September 2003
Judge(s): Meagher JA, Sully J, Kirby J (judgment delivered by Kirby J)
Background
The applicant pleaded guilty in the District Court to two counts of assaulting a police officer in the execution of duty, occasioning actual bodily harm, contrary to s 60(2) of the Crimes Act 1900. The maximum penalty for each offence was seven years imprisonment. Two further matters (resisting a police officer and offensive language) were placed before the court on a Form 1.
The offences arose from a street incident in Auburn in January 2001, involving the applicant, his brother, and his father. When police attempted to arrest the applicant after he refused to comply with directions regarding a motorcycle, a violent struggle broke out. The applicant punched one constable three times in the face and, after a second constable was knocked to the ground, punched and kicked that officer in the face while he lay motionless. The second officer sustained a fractured nose requiring surgery, among other injuries.
Williams DCJ sentenced the applicant to 18 months imprisonment on the first count, with a non-parole period of six months, noting special circumstances. A fixed term of six months concurrent was imposed on the second count. The applicant sought leave to appeal against those sentences.
Legal Issues
- Whether the applicant had a justifiable sense of grievance arising from a disparity between his sentence and the more lenient sentences received by his father and brother for their involvement in the same incident
- Whether the sentencing judge erred by failing to take into account that the offences could have been dealt with summarily in the Local Court
- Whether the sentence of 18 months imprisonment with a six-month non-parole period was manifestly excessive
Decision
On the parity ground, the Court examined the circumstances of the father and brother and found that neither was in the same position as the applicant. The father had separated the applicant and the police constable at the outset, which was ambiguous conduct, and was elderly with no relevant criminal history. The brother had been subjected to capsicum spray before his assault on police. Most significantly, neither had committed conduct comparable to the applicant's act of kicking an unconscious officer in the face with significant force. No justifiable sense of grievance was established.
On the summary jurisdiction ground, the Court acknowledged that the sentencing judge had been critical of the arresting officer's decision to arrest rather than proceed by summons. However, the Court found that the resulting violence was so serious that the manner in which the matter was initiated had no bearing on the appropriate sentence. The Court also noted that while individual charges might have been dealt with summarily, the combination of offences and the gravity of the conduct made the District Court the appropriate forum.
On the question of manifest excess, the Court dismissed the ground emphatically. Kirby J described the sentence as "remarkably lenient" given the nature of the attack, particularly the kick to the face of an incapacitated officer. The Court reaffirmed that general deterrence carries significant weight in sentencing for assaults on police, and that courts should give full support to officers performing difficult and dangerous duties. The non-parole period of six months reflected the applicant's concurrent drug sentence and the totality principle, which the sentencing judge had expressly acknowledged.
Orders Made
- Leave to appeal granted
- Appeal dismissed and sentence confirmed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that parity arguments require the applicant to demonstrate a justifiable sense of grievance, which is not established where co-offenders' conduct and personal circumstances differ materially from those of the applicant.
- A sentencing court's failure to expressly address the availability of summary jurisdiction will not constitute error where the gravity of the overall conduct plainly justified indictment proceedings in a higher court.
- Under s 60(2) of the Crimes Act 1900, sentencing for assault on police occasioning actual bodily harm attracts significant weight on general deterrence, with sentences at the higher end of the range generally appropriate.
- The totality principle was properly engaged: because the applicant was already serving a drug sentence, the sentencing judge found special circumstances and fixed a non-parole period of six months, commencing at the end of the existing non-parole period.
- No error was established in the sentence of 18 months imprisonment; the Court characterised it as lenient rather than excessive given the applicant's act of kicking an unconscious officer in the face.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 58, 60(2)
- Summary Offences Act 1988 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37
Cases:
- DPP v Carr (2001) 127 A Crim R 151
- Royall v The Queen (1990) 172 CLR 378
- R v Richards [1981] 2 NSWLR 464
- R v Crombie [1999] NSWCCA 297
- Regina v Doan [2000] NSWCCA 317
- R v Hamilton (1993) 66 A Crim R 575
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 2 of 2002 [2002] NSWCA 515