ASSAULT POLICE03-Jul-2010 Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 3/7/2010
The offence provision for assaulting a police officer and other actions against a police officers is s60 of the Crimes Act 1900 (NSW). Section 60 is as follows:
(1) A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years.
(1A) A person who, during a public disorder, assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 7 years.
(2) A person who assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years.
(2A) A person who, during a public disorder, assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 9 years.
(3) A person who recklessly by any means:
(a) wounds a police officer, or
(b) inflicts grievous bodily harm on a police officer, while in the execution of the officer’s duty is liable to imprisonment for 12 years.
(3A) A person who, recklessly by any means, and during a public disorder:
(a) wounds a police officer, or
(b) inflicts grievous bodily harm on a police officer, while in the execution of the officer’s duty is liable to imprisonment for 14 years.
(4) For the purposes of this section, an action is taken to be carried out in relation to a police officer while in the execution of the officer’s duty, even though the police officer is not on duty at the time, if it is carried out:
(a) as a consequence of, or in retaliation for, actions undertaken by that police officer in the execution of the officer’s duty, or
(b) because the officer is a police officer.
Section 60 was introduced by Crimes Amendment (Assault Of Police Officers) Bill and as noted in the Second Reading speech on the 22nd June 1997, by the Hon. J.W. Shaw:
The effect of the bill will be to insert a new section 60 in the Crimes Act that will cover a range of assaults on police officers. The existing section 58, which applies in relation to a range of persons, not just police officers, will continue to operate in relation to those persons. It will also continue to apply to offences involving resistance or obstruction of, as opposed to assaults on, police officers.
Section 60(1) will retain the existing maximum penalty of five years gaol for an assault on an officer that does not occasion actual bodily harm.
Section 60(2) will increase the existing maximum penalty of five years to seven years for an assault on an officer that does occasion actual bodily harm. This increase will rectify an anomaly that presently exists, whereby an assault on an officer that occasions actual bodily harm attracts no greater sanction than a common assault on such an officer. In both cases, under the system that is to be replaced, the existing maximum penalty is five years gaol.
Section 60(3) will increase, from seven to twelve years, the maximum penalty for any person who maliciously wounds or inflicts grievous bodily harm on a police officer.
In each case, the maximum monetary penalty is specified by section 440A of the Crimes Act to be a fine of $100,000.
It goes without saying that each of the new offences only applies where the offence relates to the lawful execution by the officer of his or her duty. That is only fair.
However, by section 60(4), the concept of the lawful execution of the officer’s duty will be extended in one very important way. That is, in some cases, an assault that occurs while an officer is off-duty will be deemed to have occurred while the officer is acting "in the lawful execution" of his or her duty.
The cases to which I refer are those where the assault is committed while the officer is off-duty as a consequence of, or in retaliation for, actions undertaken by the officer in the execution of the officer’s duty.
This is most important. Not only will it prevent revenge attacks, but it will also prevent offenders from attempting to circumvent the effect of the legislation by waiting till the officer is not in uniform.
Whilst an element of the offence is that the victim must be a police officer – it is not an element of the offence that the accused knew the victim was a police officer: R v Reynhoudt (1962) 107 CLR 381. However, the police officer must be in the execution of his/her duty: R v K (1993) 118 ALR 596. Circumstances where these issues arise are in relation to plain clothes or undercover police – issues of self defence can also arise.
The offences of ‘intimidate” and “harasses” a police officer as per s60(1) were considered by His Honour Hall J, in Vella v DPP  NSWSC 897 who observed:
The offence of intimidation of police officers
24 In Meller (supra), there was an absence of any direct evidence that any of the police officers to whom the words were directed was in fact intimidated, put in fear or that they experienced any apprehension as a result of what the plaintiff said. It was the absence of such evidence that gave rise to the challenge to the magistrate’s rulings in that case. The issue was whether proof of actual intimidation is essential to support a charge under s.60(1). The court concluded that it was.
25 In the course of her decision in that case, Simpson, J. made a number of observations, including the following:-
There is no definition of the expression “intimidates” as it appears in s.60 of the Crimes Act.
The concept of intimidation appears elsewhere in the Act, where it is defined (s.545B(2) and s.562A(2)) but in each case the definition is expressly limited in its application to the specific section or Part of the Act in which it appears.
It is necessary to resort to fundamental principles of statutory construction in order to ascertain the meaning to be ascribed to the word as it is used in the section.
One thing common to the ordinary notion of intimidation, and to all the dictionary definitions given, is that the act constituting the intimidation has an effect on another person.
The word “intimidate” is a transitive verb. While particular behaviour may be intimidatory in its nature without causing actual fear or apprehension, there is no intimidation unless and until the behaviour has affected its object in the required manner, that is, by inducing fear or affecting conduct.
Behaviour that has a capacity to intimidate does not in fact intimidate until it has worked its effect in the person to whom it is directed. In other words, intimidation does not occur until the effect is created.
The concept of intimidation is two-fold: it necessarily consists both of a particular form of conduct and the effect the conduct has on another person. There is no intimidation until another person has in fact been intimidated.26 Simpson, J. concluded in Meller (supra) that in order to sustain a conviction for intimidation of a police officer acting in the execution of his duty under s.60 , it is necessary for the prosecution to prove that the police officer was put in fear or apprehension, and was forced into or deterred from some action by being put in fear, or was overawed or cowed (at p.520). The meaning of “harasses” in s.60(1) Mr. Stratton, SC. submitted that the meaning of “harass” or “harasses” should be given its ordinary dictionary meaning of “troubling” or “vexing”. Mr. Lakatos of counsel agreed that the dictionary meaning was appropriate for the purposes of s.60(1).
27 In the context of a statutory provision creating an offence, inter alia, in respect of any act calculated to harass, annoy or cause harm of distress to any person on account of his or her performance of duties ordinarily performed in the course of his or her employment in connection with the supply of electricity under s.5(1)(c) of the Electricity (Continuity of Supply) Act 1985 (Q), Gibbs, CJ. was prepared to accept that the word harass meant to trouble or vex: O’Sullivan v. Lunnon  HCA 57; (1986) 163 CLR 545, 550. 28 The Macquarie Dictionary, Revised 3rd Edition, defines harass as including:- 1. to trouble by repeated attacks, incursions, etc., as in war ... harry; raid. 2. to disturb persistently; torment, as with troubles, cares, etc.” (Emphasis is mine).
As to the more serious charges under this section ie. ss60(3) and 60(3A) - grievous bodily harm has been held to require that the injury be a really serious one, but it does not require that the injury be permanent or that the consequences of the injury are long lasting or life threatening: Haoui v R  NSWCCA 209.
Sentencing for s60 offences:
Section s60(1A) is a Table 2 offence. Section 60(2) is a Table 1 offence and s60(3) is strictly indictable. The more serious charges under this section namely, s60(2) and s60(3) carry Standard Non-Parole periods: s54A Crimes (Sentencing Procedure) Act 1999. The respective standard Non-Parole Period for such an offences committed after the 1 February 2003 is 3 years for s60(2) and 5 years for s60(3).
In 2002 the Attorney General sought a sentencing guideline under s37 of the Crimes (Sentencing Procedure) Act 1999 in respect of this offence however, the court declined to do so: Attorney-General’s Application under s37 Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 137 A Crim R 196. Despite the court declining to issue a guideline judgment, this case is informative as to how the courts are to approach such a sentence, per Spigelman CJ:
24 These sentencing principles have been asserted by this Court on numerous occasions. (See e.g. R v Kevin Gary Crump, unreported, NSWCCA, 7 February 1975 esp at p7; R v Wayne Anthony Myers, unreported, NSWCCA, 13 February 1990 esp at pp6-7; R v Hamilton (1993) 66 A Crim R 575 esp at 581; R v Edigarov  NSWCCA 436; (2002) 125 A Crim R 551 esp at -; R v Paris  NSWCCA 83 at - ; R v Knight  NSWCCA 334 esp at . See also R v Williams, unreported, QCA, 21 November 1997; R v Wotton, R v Byrne, unreported, QCA, 9 September 1999; Farmer v R, unreported, WACCA, 16 February 1994; Dhu v Ward  WASCA 140 at - ; Bull v Tuckey (1986) 40 SASR 321 at 324-325.)
25 As Gleeson CJ put it in R v Hamilton at 581:
“It is incumbent upon the Court, in dealing with offences of this nature, to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task. The risks that were run by the police officers who were involved in the present case were substantial.”
26 As the facts of the cases summarised for the Court in the course of the present application indicate, significant risks are run by police officers throughout the State in the normal execution of their duties. The authority of the police, in the performance of their duties, must be supported by the courts. In cases involving assaults against police there is a need to give full weight to the objective of general deterrence and, accordingly, sentences at the high end of the scale, pertinent in the light of all the circumstances, are generally appropriate in such cases. (Emphasis is mine).
Hence, general deterrence will feature prominently in any sentence for such an offence against a Police officer: R v Paris  NSWCCA 83.