WHITE, A J

STATE OF TASMANIA v ALANYA JOY WHITE                                         GEASON J

COMMENTS ON PASSING SENTENCE                                                    3 APRIL 2020

Ms White, you appear for sentence on a charge of assaulting a police officer in Devonport on 20 December 2018.

I am also dealing with a number of matters, at your request, pursuant to s 385A of the Criminal Code.  Those charges are driving whilst not the holder of a driver’s licence; resisting a police officer; wilfully obstructing a police officer; using abusive language to a police officer; and possessing a thing used for the administration of a controlled drug.  I am required, under the Misuse of Drugs Act, to deal with the last matter separately.

On the afternoon of 20 December 2018 your vehicle was intercepted on Chichester Drive in Devonport.  It was the intention of police officers when your vehicle was intercepted to conduct a random breath test.  You were driving with a female passenger.

When spoken to you told police that you were unlicensed.  Your licence had in fact expired on 11 May 2018, some 7 months before this interception.

You were tested for drugs and alcohol.  The oral fluid test returned a positive reading for drugs.  As a result of that and admissions made by you, police determined that they would search the vehicle for illicit drugs and you were asked to remove yourself from the vehicle.

You told police that there were two dogs in the rear of the vehicle, and that they would bite.  One of those dogs was a mature Rottweiler.  You opened the door of the vehicle and grabbed that dog.  Police asked you to shut the door and leave the dogs inside until you had been searched.  You refused to do so.  You also refused to move away from the door to allow police to shut it.  You were then arrested for obstructing police.  As police held you, one of the dogs became agitated.

One of the officers took her capsicum spray from her utility belt and told you that the dog would be sprayed if it attacked.

You were pulled away from the door of the vehicle and the other officer closed the door securing the dogs inside.  You were taken to the ground but refused to put your arms behind your back when directed to do so.  In fact you continued to attempt to light a cigarette.  You braced your arms in front of your body, pulling your arms away and wrestling with police, frustrating their attempts to handcuff you.  You abused police, calling them “cunts”.  During this the capsicum spray was knocked from one of the officer’s hands.  You took it and turned it towards her and said “How’s this going to go for you bitch?”, and you sprayed her.  The other officer wrestled the canister from you and you were sprayed in order to subdue you.  You then became compliant and police were able to handcuff you.

You were taken to the hospital for assessment of your condition.

The police officer you assaulted attended the North-West Regional Hospital with shortness of breath and severe burning and watering in her eyes.  She was treated by rinsing her eyes and face with water and a pH balanced soap.

Fortunately there were no lasting changes to her vision, and while her skin was red, it did not blister.  Serious bodily injury did not result for the officer, and accordingly, as the State acknowledges, s 16A of the Sentencing Act is not engaged.

I have had regard to the matters put in mitigation by Mr Hilly and today by Mr. Brinken on your behalf.  It appears, and I accept that your initial exchange with police in relation to the dogs was intended to warn them of a risk because of the dogs’ protective nature towards you.

But it is also clear that your cooperation with police deteriorated after that, to the point where not only did you fail to cooperate with them, but you assaulted one of the officers. Your behaviour generally was intended to frustrate the police in carrying out the search, and to make their task as difficult as possible.

It is put to me that a mental health condition explains your conduct, at least in relation to the assault and the circumstances surrounding that assault, which are comprised in counts 2, 3 and 4 on the complaint, and that your condition enlivens Verdins principles.  To that end a report has been prepared for the Court.

I acknowledge, as I indicated a moment ago to Mr Brinken, the request that details of past traumas relevant to the diagnosis not be disclosed in open court and I will respect that request. It is enough if I record that I have read the report and noted the circumstances which underpin its conclusions.

Your diagnosis is one of post-traumatic stress disorder, and it is said by the psychologist to provide an explanation for your reaction to the police officer you assaulted.

In the report you are described as having difficulty tolerating stress and being overwhelmed by it very easily, such that you become distressed. Your condition has resulted in your behaviour quickly escalating in response to a stressful event, the perceived threats to yourself and your dogs.  I accept that the report provides a basis upon which it is appropriate to conclude that the moral culpability of your conduct is reduced by reason of your mental health. That is one of the considerations articulated in Verdins.  Accordingly I accept Mr Hilly’s submission that in this respect, Verdins is relevant in sentencing you.

Further as to that, I observe that you have not ignored your mental health condition and that you have actively engaged with a professional over an extended period in order to address it.  I am told that you propose to continue that engagement.  In light of that, and the opinion contained in the report more generally, I am satisfied that denunciation is less relevant in sentencing you.

There is however nothing in the psychologist’s opinion which suggests the need to modify the form of punishment because of particular consequences which might accrue having regard to your mental health, or which in my view engages any other aspect of Verdins.

Your record is not a good one. Again I emphasise that I do not ignore your mental health as described in the report, in weighing that record, and of course you are not to be punished twice for your prior offending.  I think it is fair to observe that your history exhibits a propensity to be careless about your obligations to driving, to being licenced to drive, and your capacity to drive, and show a lack of respect for those in authority. Indeed just a day before these offences you obstructed the execution of a warrant to search premises, and you used abusive language to an emergency services worker.  The Court has an obligation to uphold the authority of police officers by imposing penalties which serve to deter behaviour such as yours, and it must also vindicate the victim of your offending by fixing a sentence which marks appropriately the conduct she was forced to endure.

I note your plea of guilty, late though it was, some advantage nevertheless accrues to the administration of justice and I take account of it in fixing penalty.

Ms White I convict you of all charges.  On the charge of driving without a licence, I record a conviction and fine you $300.

On the indictment and counts 2, 3 and 4 of complaint 55301/18 I intend to impose a global sentence, because all of those matters arise out of a single episode.  I sentence you to 3 months’ imprisonment.  I am required to suspend the operation of that sentence according to Dinsdale and other cases if I am satisfied that the relevant sentencing objectives can be met, despite doing so.  I have decided that in all the circumstances those sentencing considerations can be met if I suspend the operation of the sentence.  That is because the condition I will attach to the sentence will serve to deter you from further offending; secondly it is in fact a term of imprisonment, even if its operation is suspended, and thus a deterrent to others, and as a sentence of imprisonment, it serves to vindicate your victim.

I will suspend the operation of that sentence for 3 years on condition you commit no offence punishable by imprisonment in that period. If you do, an application may be made to activate the sentence that I have imposed and you may be required to serve it.

On the charge of possessing a thing used for the administration of a drug I record a conviction and fine you $100.  I have previously ordered the forfeiture of that item.

In fixing the quantum of your fines I have regard to your circumstances. You have 28 days to pay those fines. You must liaise with the Monetary Penalties Enforcement Unit to negotiate an extension of time for payment if that is required.

The net effect of the sentence I have imposed today is that you have fines of $400 and you have a sentence of 3 months’ imprisonment, wholly suspended for 3 years on condition you commit no offence punishable by imprisonment in that period.