Resist Police x 2; Drunk in a Public Place, Breach of Suspended Sentence.
The client was at a pub, where earlier some patrons had been yelling profanities at police on the other side of the road. The client was unaware of this. When police arrived at the pub, the client made a comment about a police officer’s tattoo. The police officer, already agitated due to the earlier verbal abuse, arrested the client for being drunk in a public place. The client was sprayed with capsicum spray, locked up for four hours and charged with ‘Resist Arrest’. This is a common charge when capsicum spray has been used.
Unfortunately, in this case the client already had an active suspended sentence of four months for a previous crime. This new charge, if sustained, would mean the client had breached the conditions of the suspended sentence (i.e. allegedly committed an offence capable of attracting a gaol sentence during the operational period of the suspended sentence) and would have to serve gaol time.
We had to demonstrate that there were exceptional circumstances which meant the client should not serve the four month gaol sentence. We relied mostly on the circumstances of the new offence. Firstly, there was no premeditation, and secondly, the offence was different in character to the original offence. Also, the client now had full custody of his three young children.
Upon hearing the above reasons, His Honour formed the view that exceptional circumstances did indeed exist. He fined the client and extended the operational period of the suspended sentence by 12 months. Most importantly for the client, he did not go to gaol.