Criminal Code (Assaults Against Police and Others) Amendment Bill
Posted by Administrator (admin) on Feb 28 2008
2008 >>

Mr LAWLOR (Southport—ALP) (9.12 pm):

I oppose this ill-considered bill introduced by the
opposition member for Burnett. The objective of this bill is to introduce minimum sentencing principles for the offence of serious assault under section 340(1) (b) and section 340(2) of the Criminal Code and to extend the operation of section 340(2) to include emergency services personnel. According to the second reading speech, this is supposed to ensure consistency in sentencing and send a clear message to any would-be offender that the people of Queensland will not tolerate any assaults on our hardworking front line service delivery officers. That is a very admirable objective but it does nothing of the sort.

The bill purports to amend section 340(2), which currently makes it an offence for a prisoner to assault a working corrective services officer to include references to ambulance and fire service officers.

Mr Moorhead: I think the Leader of the Liberal Party has drafted the bill.

Mr LAWLOR: I think the investment adviser for the Liberal Party probably did draft the bill. The amendment proposed will result in the provision applying to ‘a prisoner who assaults a working ambulance officer, corrective services officer or fire service officer’. The amendment bill precludes the application of the serious assault offence to assaults against ambulance and fire officers where the offender is not a ‘prisoner’. The proposed amendment is nonsensical and fails to meet its policy objective of expanding the offence to include assaults on ambulance and fire officers generally.

The bill will require a court to make an order sentencing a person convicted of assaulting,
resisting or wilfully obstructing a police officer—section 340(1)(b)—or a prisoner convicted of assaulting an ambulance, corrective services or fire service officer—section 340(2)—to a period of imprisonment. This period of imprisonment must include a period of detention in custody for a minimum of three months. The bill is opposed for a number of reasons. Firstly, it fails to meet the policy objectives but also the inclusion of mandatory minimum sentences violates fundamental principles of sentencing including
that punishment should be appropriate to the circumstances and to the nature of the crime.

The penalty in any case must be judged on a factual basis and on a case-by-case basis. The Queensland government has previously indicated that it does not support mandatory sentencing. Pursuant to section 340 of the Criminal Code, behaviour which would otherwise constitute a common assault is deemed to be a serious assault in certain cases. For example, a person who assaults, resists or wilfully obstructs a police officer while acting in the execution of the officer’s duty is guilty of the offence—that is section 340(1) (b). Section 340(2) also provides that the offence is committed when a prisoner assaults a working corrective services officer. Unlike common assaults, which are punishable by three years imprisonment, serious assaults have a higher maximum penalty of seven years imprisonment.

A forthcoming government bill entitled the Criminal Code and Other Acts Amendment Bill will include an amendment to section 340(1(e) of the Criminal Code. Section 340(1) (e) provides for the offence of serious assault on a person on account of any act done by the person in the performance of a duty imposed by law. The purpose behind amending that section of the act is that it offers protection to
persons ‘performing a lawful duty’ which will be defined to include a public officer performing a function of the officer’s office or employment. The amendment will make clear that, for the purpose of the provision, ‘public officer’ includes a member, officer or employee of a service established for a public purpose under an act—for example, a fire service and ambulance officer. In those cases where injury or bodily harm is caused to an officer by the assault, other more serious offences of a generic nature can be charged which carry similar or higher maximum penalties.

These offences include assault occasioning bodily harm, with a maximum penalty of seven to 10 years; lawful wounding, with a maximum penalty of seven years; and grievous bodily harm, with a maximum penalty of 14 years. Under Queensland’s criminal justice system the imposition of a sentence is a discretionary matter
for the judicial officer presiding over the case. The exercise of this discretion allows the judicial officer to consider the relevant circumstances of the offence and the offender to enable the most appropriate penalty to be imposed. Such considerations include the punishment required, rehabilitation issues, deterrence, denunciation or community protection. There are rare cases of limiting discretion and they include, for instance, the case of murder where the punishment is life imprisonment. That is a rare example of a mandatory sentence. Mandatory minimum sentencing is not supported by the government for the following reasons. Mandatory minimum sentencing is contrary to the sentencing principle that punishment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime. As in reality two crimes are rarely identical, either in the conduct of the offender or in the impact on the victim or the community, it is important that the particular facts of each case, the impact on the victim or community, and the circumstance of the offender are taken into account during the sentencing process.

There is also, of course, a checking mechanism. There is an appeal process in Queensland to ensure that sentences imposed by the judiciary are consistent and appropriate. We have had numerous
examples even in recent months of appeals being taken by the Attorney. Research indicates that, rather than acting as a deterrent, a sentencing system that accelerates contact with either the juvenile detention system or the adult correctional system will lead to higher or more serious reoffending, higher rates of recidivism and ultimately higher crime rates. A good example of that is America, where they have the largest per head of population in prisons and yet they have the highest level of crime.

Mr Elmes interjected.

Mr LAWLOR: They are protected by the Criminal Code as it is. Mandatory sentencing has a direct adverse effect on the administration of the criminal justice system by removing any incentive for defendants charged with those offences to plead guilty, as the court will be unable to take cooperation and remorse into consideration when sentencing. That places an increased burden on police, the prosecution, courts, juries, witnesses and the
defence. More matters will go to trial and they will increase delays in the progression of court lists. There is less chance of conviction when there is a mandatory minimum sentence because juries are reluctant to convict. There are degrees of every crime and if there is a mandatory minimum sentence a jury would be more inclined to let a person off for a relatively trivial offence than convict in the knowledge that there is a minimum jail sentence. With a minimum mandatory sentence of three months, say, a jury would not
convict because they do not consider that it is fair.


The increased incarceration rates as a result of detaining certain offenders for a mandatory prison time will involve significant additional costs. In the recent Court of Appeal decision in the case of R v King, the Chief Justice stated that those people who spit on police—and this is something that apparently concerns the opposition—should ordinarily expect to be imprisoned. The Chief Justice went
on to provide that— It is abhorrent that a police officer responsibly going about his or her business be subject to the indignity and risk of being spat upon ... an appropriate level of deterrence will in such cases usually be secured only through actual imprisonment of the offender.

Mr Shine: That is the law now.

Mr LAWLOR: Exactly. That is the law now and that is the law which has been enunciated by the Chief Justice—that ordinarily people will be imprisoned for an offence of that nature. That is the ordinary
course of events. That is the law as it exists. That decision not only confirms the appropriateness of the existing sentencing system, whereby judges retain the discretion to craft an appropriate sentence, but also confirms that the courts do take assaults on police, particularly those involving spitting, seriously. I suggest to the opposition, in particular the member for Burnett, that in future with these illconsidered bills they seek comment from the Law Society, the Bar Association and even the Police
Service, for that matter. That way they will understand how dangerous it could be if the opposition ever took over the treasury benches.

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