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District Court 15 December 2015

Evitts v R

[2015] NSWDC 415

Assault & violencePublic order & justice offences
CRIMINAL LAW SEVERITY APPEAL FAIL TO LEAVE LICENSED PREMISES ARGUMENTATIVE AND QUARRELSOME POLICE THEN ATTENDED APPELLANT OF PRIOR GOOD CHARACTER

Citation: Evitts v R [2015] NSWDC 415
Court: District Court of New South Wales
Date: 15 December 2015
Judge(s): Neilson DCJ

Background

The appellant, a 26-year-old chartered accountant working in Sydney on a temporary visa, was convicted in the Local Court of two offences arising from an incident in the early hours of 18 March 2015 (St Patrick's Day). She was found to be moderately intoxicated at a licensed venue on George Street, Sydney, and repeatedly refused to leave when directed by security staff. Police were called and she continued to argue and swear at officers outside the premises.

After her arrest, police attempted to remove her high-heeled shoes while she was seated in the rear of a police vehicle. She tucked her knees to her chest and then thrust her legs forward, driving her heel into the crotch of Constable Almond, causing immediate pain. She later told the constable: "you deserved to be kicked."

The Chief Magistrate fined the appellant $1,000 for assaulting a police officer in the execution of duty and $500 for failing to leave licensed premises. The appellant appealed to the District Court on the ground that the sentences were too severe, seeking to have the convictions set aside under s 10 of the Crimes (Sentencing Procedure) Act 1999 and replaced with a good behaviour bond.

  • Whether the sentences imposed in the Local Court were manifestly excessive, warranting appellate intervention.
  • Whether this was an appropriate case for a s 10 order under the Crimes (Sentencing Procedure) Act 1999, which would allow convictions to be set aside in favour of a good behaviour bond.
  • What weight, if any, should be given to the appellant's prior good character, professional circumstances, and personal background when considering s 10.

Decision

Neilson DCJ accepted that the appellant had prior good character, no criminal record in Australia or the United Kingdom, and had made genuine contributions to her community. He also acknowledged the professional consequences a conviction might carry for someone working in her field on a temporary visa.

Despite these mitigating factors, his Honour declined to apply s 10. He identified two considerations that weighed heavily against that course. First, assaulting a police officer is a serious offence, not a trivial one. Police perform dangerous and important community work and are entitled to the protection of both the law and the courts. The appellant's conduct was characterised as self-indulgent and belligerent, and her statement that the officer "deserved to be kicked" made clear that the kick was intentional.

Second, the Chief Magistrate was a highly experienced judicial officer with significant exposure to offences of this type. His Honour noted that the overwhelming majority of police assault matters are dealt with in the Local Court, making magistrates better placed than District Court judges to assess the appropriate sentencing range and the prevalence of such offending. The sentences imposed by the Chief Magistrate were entitled to considerable weight for that reason.

His Honour also rejected the suggestion that a psychological report tendered on the appellant's behalf provided a basis for leniency under the health and mental condition provisions of the sentencing legislation. He found that the report amounted to an attempt to medicalise what was in fact criminal behaviour, noting that accepting such reasoning would mean any offender who acted while intoxicated could claim the benefit of s 10.

Orders Made

  • The severity appeal was dismissed.
  • The Local Court sentences (fine of $1,000 for assaulting a police officer; fine of $500 for failing to leave licensed premises) were confirmed.

Key Takeaways

  • In dismissing the appeal, the District Court affirmed that prior good character, professional standing, and potential career consequences, while relevant, do not automatically warrant a non-conviction order under s 10 of the Crimes (Sentencing Procedure) Act 1999.
  • Assaulting a police officer in the execution of duty is treated as a serious offence carrying significant denunciatory weight, particularly where the offender's post-incident conduct demonstrated an intention to cause harm.
  • A psychological report framing intoxicated criminal behaviour in medical terms will not readily enliven the health and mental condition considerations under sentencing legislation; such an approach risks excusing any offending connected to voluntary intoxication.
  • Sentences passed by highly experienced magistrates, particularly in offence categories they encounter frequently, carry meaningful weight on appeal to the District Court.
  • Under s 77(4) of the Liquor Act 2007, failing to leave licensed premises when directed by an authorised person constitutes a criminal offence, carrying a maximum fine of $5,500 in the Local Court.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Liquor Act 2007 (NSW), ss 77, 77(4)

Cases cited: None reported in the judgment text.