Evitts v R [2015] NSWDC 415

District Court New South Wales

Medium Neutral Citation: Evitts v R [2015] NSWDC 415 Hearing dates: 15 December 2015 Date of orders: 15 December 2015 Decision date: 15 December 2015 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal dismissed Catchwords: CRIMINAL LAW – Severity appeal – Assault police officer in execution of duty – Fail to leave licensed premises – Appellant intoxicated at time of offence – Argumentative and quarrelsome – Appellant refused to leave premises as directed by security; police then attended – Appellant kicked police officer while officers were attempting to remove her high heels – Appellant told officer "you deserve to be kicked" – Appellant of prior good character – Low probability of conviction interfering with career prospects Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Liquor Act 2007 Category: Principal judgment Parties: Emily Evitts (Appellant) Director of Public Prosecutions (NSW) (Respondent) Representation: Ms Talbert (Appellant) Solicitor for the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2015/81200 Publication restriction: No Decision under appeal Court or tribunal: Downing Centre Local Court Jurisdiction: Criminal Date of Decision: 30 September 2015 Before: Henson CLCM File Number(s): 2015/81200

Judgment 1. HIS HONOUR: This is an appeal against the severity of sentences passed by the Chief Magistrate, His Honour Judge Henson, sitting in the Downing Centre Local Court on 30 September 2015. 2. The appellant was charged with two offences. The first charge was that late in the evening of 17 March 2015 or early in the morning of 18 March 2015 the appellant assaulted Constable Samantha Almond, a police officer, when she was executing her duty, by kicking her in the crotch with her high healed shoe. The second offence was that in the same period of time the appellant failed to leave licenced premises, namely, Jacksons on George, situated at 175 George Street, Sydney when required to do so by an authorised person, she being a person to whom an authorised person was entitled to refuse admission to the licensed premises under s 77 of the Liquor Act 2007. The offence is constituted by s 77(4) of that Act. 3. The maximum penalty for assaulting a police officer in the execution of his or her duty is imprisonment for two years and or a fine of $5,500 if the matter be prosecuted in the Local Court. If the matter were prosecuted in this Court the appellant would have been liable for imprisonment for up to five years. The maximum penalty for the offence under the Liquor Act 2007 is a fine of $5,500. 4. 17 March in any year is St Patrick's Day. In 2015 St Patrick's Day fell on a Tuesday. At about 11.30pm on St Patrick's Day 2015 the appellant was in Jackson's on George. She approached the bar in order to purchase a drink but was observed by bar staff to be moderately intoxicated, slurring her speech, displaying pale, flushed skin and bloodshot watery eyes. She was refused service by the bar staff. The appellant then argued with the bar staff that she was not intoxicated. She was then approached by security guards who advised her that because of her level of intoxication she was required to leave the premises. The appellant then started arguing with the security guards and according to the agreed facts was "quarrelsome". She repeatedly called the bar staff "twats". She was to use that terminology throughout the evening. That terminology is slang for female genitalia. It now also has come to mean the buttocks. During her argument with the security staff the security staff showed her an information card advising her of the fact that it was a criminal offence punishable by a fine of up $550 to refuse to leave premises when intoxicated. According to the agreed facts the appellant read the card out aloud to the security staff making a joke of the situation. Because she failed to leave the premises as was required by the security staff, the police were called. 5. The police arrived at 10 minutes to midnight. They were identified in the Facts Sheet as being five in number but the only relevant member of the New South Wales Police was Constable Almond whom I have already mentioned. The police identified themselves to the appellant and told her that by failing to leave the premises upon being directed to do so by the security staff she had committed an offence. The appellant then commenced arguing with the police. She protested that she was not intoxicated. Nevertheless, the police could smell intoxicating liquor on her breath, and observed her to display pale, flushed skin. She was slurring her speech, she was unsteady on her feet and her eyes were bloodshot. Still protesting that she was not intoxicated the appellant was escorted out of the premises by the police. Outside the premises there was a further argument between the appellant and the police. She requested them to administer a breath test to her, calling the police "twats". She protested that she had done nothing wrong. She also protested that she had never been told to leave by the security staff which was obviously untrue. When asked to provide identification she protested that she had none on her. Because of her argumentative and quarrelsome behaviour she was arrested for a breach of s 77 of the Liquor Act 2007. She was then escorted to the rear of a police caged vehicle and directed to sit down on the floor of the cage. She was then told to keep her feet still whilst the police took her pink high heels from her feet. 6. The agreed facts continue thus: "Swearing at police the accused has again stated: 'You fucking twats, I haven't done anything wrong'. Immediately pushing herself towards the back, the rear back wall of the caged section of the vehicle, the accused has quickly brought back both her legs, tucking her knees in towards her chest. Police were trying to remove the accused's shoes and the accused pushed her legs forwards extending them out straight in the direction of the police. Coming into contact with Constable Almond, the accused has dug the heels of her pink high heels into the crotch region of Constable Almond. Constable Almond has felt immediate pain to her crotch region. Police have immediately grabbed the accused's legs. Holding her legs, police then removed the accused's pink high heels from her feet. The appellant was then advised that she was now also under arrest for assaulting a police officer in the execution of her duty. The appellant was then conveyed to the Day Street Police Station but whilst in custody continued to be quarrelsome, argumentative and belligerent and continued to swear at the police." In her evidence today the appellant said that she only swore once at the police but that is inconsistent with the agreed facts on which the appellant stood for sentence, before the learned Chief Magistrate. 1. According to the agreed facts when the appellant had the charges explained to her, she said to Constable Almond "you deserved to be kicked". The appellant denied saying that in her oral evidence today but clearly that was an agreed fact on which she stood for sentence before the learned Chief Magistrate. 2. At the time of these offences the appellant was 26 years old. She remains that age. She came before the Local Court as a lady of prior good character. She has no criminal record in Australia and has given evidence, which I am prepared to accept, that she had no prior record in the United Kingdom. The appellant was born and grew up in and was educated in the United Kingdom. She graduated from Loughborough University where she obtained a Bachelor of Science in Sports and Exercise Science. She then joined Deloitte in the United Kingdom and became a qualified accountant. She became a chartered accountant in 2004, gaining that qualification from the Institute of Chartered Accountants of England and Wales. She came to Australia in late 2014 and is working in Australia for Deloitte on a 457 visa. She works for Deloitte as a senior analyst here in Sydney. 3. The original court attendance notices were first returnable on 22 April 2015. They were next mentioned on 3 June 2015. On 10 June 2015 they were again mentioned before Magistrate O'Brien who confirmed that pleas of not guilty had been entered. I can only assume that the first pleas of not guilty were entered either on 22 April or 3 June. On 10 June the Deputy Chief Magistrate, Magistrate O'Brien, set the matter down for hearing on 16 September 2015. When the matter came on for hearing on that day the appellant entered pleas of guilty before Magistrate Keogh and the matter was then adjourned until 30 September 2015 when the appellant stood for sentence before his Honour Judge Henson the Chief Magistrate. His Honour fined the appellant $1,000 for the offence of assaulting a police office in the execution of the officer's duty and fined the appellant $500 for the offence contrary to s 77(4) of the Liquor Act 2007. 4. In essence, the appellant asks me to deal with her under s 10 of the Crimes (Sentencing Procedure) Act 1999. She wishes me to set the convictions aside and to place her on a bond to be of good behaviour under s 10. In the alternative to my dealing with her on that basis, in respect of both the offences, the appellant asks that I deal with her for assaulting the police officer under s 10 but the fine entered for the offence against the Liquor Act 2007 stand. 5. Clearly, this young lady was a woman of prior good character. She has contributed much to our community, perhaps I should say 'to our communities'. There is evidence before me of her doing work for the disadvantaged in the United Kingdom when she was a student and of assisting those less fortunate than her. She represented the United Kingdom in karate. She was obviously also a keen sportswoman and still is an active sportswoman. In a reference from her sister the following is stated: "Prior to Emily's corporate career she has worked with a local sporting initiative within the community on an employed and volunteer basis, and has worked in a boarding school environment where she has demonstrated her compassionate and caring nature, as well as leadership, moral guidance and overall decency of character." There are a large number of references before me, as there were before the learned Chief Magistrate, attesting to this event being out of character. I accept that it is unlikely that the appellant will offend again in any similar manner, chastened as she has been by the legal process to date and the odium that she has experienced as a result of her being prosecuted for these offences. She clearly has been ashamed and embarrassed. 1. Under s 10 of the Crimes (Sentencing Procedure) Act 1999 the things which I can take into consideration are: the appellant's character, her antecedents, her age, her health and her mental condition, the trivial nature of the offence, any extenuating circumstances in which the offence was committed, or any other matter that a Court thinks proper to consider. 2. The offence of assaulting a police officer, is not trivial. I cannot see any extenuating circumstance. This was, as has been submitted by the Crown, alcohol-fuelled violence. There is no matter other than those specifically stated in s 10(3) that has been drawn to my attention. In essence, the appellant relies on her prior good character, her relative youth, and she also relies on a "medical condition". She also relies upon the fact that the convictions recorded may interfere with her professional career path. As a member of the Institute of Chartered Accountants of England and Wales she is required to notify that Institute of any conviction. Such is common in many professions, not only accountancy, but also in law and medicine. However, I believe it unlikely that the sort of offence which the offender has been convicted will lead to any change of status as a chartered accountant. One would think that any conviction for any crime involving dishonesty would interfere with such a qualification but it is difficult to see how this crime could affect a person's ability to work as an accountant. 3. The appellant relied upon a report of Tracey Cahn, a clinical psychologist, dated 28 September 2015 following upon an interview on 21 September 2015. Ms Cahn diagnosed "adjustment disorder mixed anxiety and depressed mood". Quite frankly anybody who is about to appear for sentence would be expected to be suffering from anxiety and depression. According to Ms Cahn's report a number of events were identified as contributing factors to the emotional distress precipitating "the incident" which I assume is meant the two criminal offences committed by the appellant. The list of events is this: * "Moderate drinking at the time of the incident. * Lack of knowledge of Australian Liquor Laws relating to removal from premises/failure to leave. * Perception of provocative actions by the security guard, which triggered a reactive response by Ms Evitts. * A strong belief that she was not intoxicated and her behaviour at the time of the incident was not unruly. * Poor strategies for the management of alcohol." The first is the moderate drinking at the time of the incident. Ms Cahn had a history that the appellant went out with a group of work colleagues for work drinks at approximately 9pm. According to Ms Cahn's history the appellant consumed four small glasses of wine at an establishment called "The Hart" and then proceeded to Jacksons on George at approximately 10pm. As I have earlier stated she was refused service at 11.30pm at Jacksons on George. According to the appellant's oral evidence before me she had nothing to drink at Jacksons on George and when she approached the bar to obtain her first drink there she was denied service. However, what the appellant actually consumed on this evening is a matter of conjecture. The appellant told me not that she went drinking at 9pm but that she went drinking at 6.30pm. She did not have "four small glasses of wine" but four large glasses of wine. Whether the glasses of wine were large or small one would not expect if only four had been consumed between 6.30 and 11.30pm one would not expect the level of intoxication noted by bar staff, security staff and the police. Inherently, what the appellant says about the extent of her intoxication and the extent of her alcohol consumption is extremely unreliable. 1. The next point raised by the psychologist was a lack of knowledge of "Australian Liquor Laws". There is no Australian Liquor Law. There are laws in each State and Territory of the Commonwealth which are different. However, most of our law is still based on English law and the extent of the differences between the law in the States and the United Kingdom is not great. Furthermore, ignorance of the law is no excuse. 2. The next point raised by the psychologist was "perception of provocative actions by the security guard". That is only her perception and the perception of people when intoxicated is often erroneous. Nothing can be attributed to such a perception other than intoxication. 3. The next point raised by the psychologist was a "strong belief" that the appellant was not intoxicated. She protested her sobriety to both the bar staff, the security staff and the police but none of them accepted that, nor does the appellant now accept that, because she has pleaded guilty to the offence under the Liquor Act 2007. Her "strong belief" was in fact a misunderstanding of the situation based on her intoxication. 4. That the appellant had "poor strategies for the management of alcohol" consumption is axiomatic. There is nothing in the report other than an attempt to medicalise what is in fact criminal behaviour. 5. The provisions in s 10 about taking into account the offender's health and mental condition is not here apposite. If it were so, it would mean that anyone who committed an offence whilst intoxicated ought be given the benefit of s 10. 6. There are two things which point in the opposite direction to the path that the appellant asks me to take. The first point is that police do a very important job in our community. Without the police there would be disorder. The police keep the peace. They do dangerous work often and often, for it, are abused. They expose themselves to danger and here Constable Almond was assaulted and suffered pain in her groin. Police often do work for which they are abused but which ultimately is in the interests of everybody concerned. They run risks, they are entitled to protection of not only the Courts and the law but also the general community. As I said earlier, assaulting a police office is not a trivial offence. The appellant's general behaviour was self-indulgent and belligerent. Not only did she assault Constable Almond but she told Constable Almond that she deserved to be kicked. Clearly, the appellant intended to kick the constable despite what she said in the witness box today. 7. The other thing which stands against the course which the appellant asksme to take is that she appeared for sentence before another Judge of this Court who also holds the position as Chief Magistrate of this State. His Honour is a very experienced Judge who hears many more cases of this nature than I do. For example, if one goes to look at statistics one finds that since July 2011, 959 persons have been sentenced in the Local Court for assaulting police but only three people have been sentenced in the District Court for assaulting police. In other words, the vast majority of these cases are dealt with by magistrates who have greater exposure to the prevalence of this offence than judges of this Court do. The sentences passed by the Chief Magistrate are entitled to be given weight because of the extent of his experience and his oversight of the other magistrates who also deal with the same sort of offence. 8. I am not persuaded that this is an appropriate case in which I should interfere with the sentences passed in the Local Court. The appeal is accordingly dismissed.