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District Court 12 April 2019

R v Attalah

[2019] NSWDC 381

Assault & violencePublic order & justice offences

Citation: R v Attalah [2019] NSWDC 381
Court: District Court of New South Wales
Date: 12 April 2019
Judge: Buscombe DCJ

Background

The appellant, a prisoner serving a lengthy sentence for serious drug supply, was convicted by a Magistrate of two offences arising from an incident at a correctional facility on 5 December 2017. The first offence was assaulting a law enforcement officer (Correctional Officer Cotter) in the execution of her duty. The second was resisting two Correctional Officers (Cotter and Martin) in the execution of their duty.

The prosecution case rested primarily on the evidence of Officer Cotter, supported by CCTV footage. Cotter alleged the appellant became aggressive at a gate, threatened to punch her, grabbed her hair, punched her head, and raked his hands across her face after both fell to the ground. The appellant denied any physical or verbal aggression, claiming he was the victim.

On appeal to the District Court, Buscombe DCJ conducted an independent review of the evidence, including watching the CCTV footage multiple times and at varying speeds.

  • Whether the assault conviction was established beyond reasonable doubt on the evidence, including the CCTV footage
  • Whether the resist conviction was established beyond reasonable doubt, given the conduct of Officer Martin while the appellant was on the ground
  • Whether Officer Martin was acting within the lawful execution of his duty when he struck the appellant approximately 11 times to the head
  • Whether special circumstances existed to justify adjusting the ratio of non-parole period to total sentence
  • How to sentence the appellant, taking into account his criminal history, age, time already in custody, and any extra-curial punishment he had received

Decision

Assault conviction upheld. Buscombe DCJ dismissed the appeal against the assault conviction. His Honour independently reviewed the CCTV footage and was satisfied beyond reasonable doubt that the appellant had pushed the gate aggressively, pushed Officer Cotter, and then assaulted her while both were on the ground. The CCTV footage supported Cotter's account of the encounter at the gate and the events that followed. The Magistrate's acceptance of Cotter's evidence as honest, credible, and reliable was not disturbed.

Resist conviction quashed. The appeal against the resist conviction was allowed. The critical issue was whether Officer Martin was acting within the lawful execution of his duty when the appellant was said to have resisted him. Buscombe DCJ found that Martin struck the appellant approximately 11 times to the head with his fist while the appellant was on the ground. Combined with Officer Cotter's apparent forceful dropping of her knee into the appellant's neck or upper back, the court was not satisfied beyond reasonable doubt that both officers were acting within a lawful use of force at the time of the alleged resistance. Martin's use of force was found to be excessive, taking him outside the lawful execution of his duty. The appellant was acquitted of this offence.

Sentence. Having acquitted the appellant of the resist offence, the court re-sentenced him on the assault offence alone. His Honour took into account the appellant's serious criminal history (including a prior custodial assault causing actual bodily harm), his age of 66, the need for specific and general deterrence, the time already spent in custody, and the extra-curial punishment the appellant had received from the officers' conduct. A finding of special circumstances was made, principally because of the length of time the appellant had already been in custody, resulting in an equal split between the non-parole period and the balance of parole rather than the standard ratio.

Orders Made

  • Appeal against conviction for assault on a law enforcement officer in the execution of duty: dismissed
  • Appeal against conviction for resisting an officer in the execution of duty: allowed
  • Appellant acquitted of the offence of resisting an officer in the execution of duty
  • Sentenced to 10 months' imprisonment commencing 9 July 2019 and expiring 8 May 2020, with a non-parole period of 5 months expiring 8 December 2019

Key Takeaways

  • A correctional officer who uses excessive force against a prisoner may fall outside the lawful execution of their duty, which is a necessary element of both the assault and resist offences under this legislative framework.
  • In dismissing the assault appeal, the District Court confirmed that an appellate court conducting a conviction appeal must form its own view of the facts while giving appropriate recognition to the advantage a trial magistrate had in observing witnesses firsthand.
  • CCTV footage played a decisive role in both outcomes: it corroborated Cotter's account of the assault but also revealed that Martin struck the appellant approximately 11 times to the head, a fact that undermined the resist charge.
  • Where a correctional officer's use of force is found to be excessive, a charge of resisting that officer "in the execution of duty" cannot be sustained, because the officer is no longer acting within the scope of lawful duty at the relevant time.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act can be grounded in the length of time a defendant has already spent in custody, justifying a departure from the standard non-parole to total sentence ratio.

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Regulation (cl 131, governing use of force by correctional officers)
- Crimes (Sentencing Procedure) Act (ss 44, 56, relating to non-parole periods and commencement of sentences)

Cases
- Dyason v Butterworth [2015] NSWCA 52 (principles governing conviction appeals from the Local Court to the District Court)