Consideration
34The Crown submits that the sentencing judge did not use an approach contrary to Muldrock , contending that his Honour did not use the standard non-parole period as a starting point. Nor, it is submitted, did his Honour engage in two-stage sentencing. The Crown submits that, whilst it may not be necessary to classify the objective seriousness of an offence on the hypothetical range, it would not be an error to do so, nor would it indicate two-stage sentencing.
35However, this was not the approach taken by the sentencing judge, which I have described above. It seems to me unarguable that his Honour was following the sequence of reasoning that s54B of the Act apparently required. In my respectful view, the sentencing judge approached the sentence by answering the Way question and dealing with the objective seriousness of the applicant's conduct as determining the non-parole period rather than as material to the sentence as a whole. In my view, this omitted to apply the emphasis expressed in Way of the importance of exercising the court's discretion by way of intuitive or instinctive synthesis in accordance with established sentencing practice and the need to avoid an approach which would lead to the standard non-parole period dominating "the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act": ibid at [131]. It is inescapable, with respect, that the standard non-parole period dominated the sentencing judge's determination of the sentence for this offence. For reasons that are made clear above, the approach of his Honour significantly differed from that required by Muldrock .
36Accordingly, this Court must resentence the applicant in respect of this offence.
37So far as the second count on the indictment is concerned, the sentencing judge noted that the police officer clearly announced himself as such and implored the applicant not to do anything stupid. Even when confronted with the capsicum spray, the applicant did not relinquish his weapon but continually charged at the officer, causing him to take evasive action. His Honour regarded this as an aggravating feature. That the applicant resisted lawful apprehension by attacking the officer and repeating this aggression several times plainly makes the offence more serious than it would have been had there been a mere non-aggressive presentation of the weapon and a momentary hindering of his apprehension. His Honour assessed the objective seriousness of this offence as "falling within about the mid-range or perhaps slightly above".
38Counsel for the applicant referred to the fact that the weapon used was a pair of scissors as opposed to a firearm or a knife and pointed to the statistics kept by the Judicial Commission which showed, in a sample of 74 cases only two were sentenced to six years, one to seven years and one to nine years' imprisonment, the bell curve topping at about three years (23 cases). So far as the non-parole period statistics are concerned (a sample of 42 cases) seven were given non-parole periods of three years, one of four years and one of six years, 23 having non-periods of 18 months or less. It is necessary to exercise considerable caution when dealing with statistics of this kind, as has been repeatedly stated in this Court. Were that the sole matter relied on, I would take it as indicating, if anything, that his Honour imposed a sentence that was higher than the middle of the range of sentences usually imposed for offences of this kind and not for this reason justifying a conclusion that he erred in the exercise of his discretion.
39Furthermore, as the Crown points out, all of the cases specified in the non-parole periods/ fixed terms statistics were pleas of guilty whilst the total sentence statistics contained only five cases where the pleas were not guilty.
40There was no finding by the sentencing judge that the police officer was ever at serious risk of being injured, although it was necessary for the officer to evade the applicant and use the capsicum spray a number of times. As I have already mentioned the applicant was so significantly intoxicated that he was unable to control a motor vehicle for any substantial distance. Though on one level, this meant he was not amenable to reason, it also meant that he was a far less dangerous assailant than otherwise. The judge was quite right to emphasise the need to deter attacks on police officers who are doing their duty to protect the public and this certainly required the imposition of a significant gaol sentence.
41The sentencing judge assessed the objective seriousness of this offence as being in or near the middle of the range, but gave no further explanation of this assessment than describing the circumstances of the offence itself. Whether or not this description were justified, the question, at the end, is whether the sentence is manifestly excessive having regard to all the relevant circumstances, including the subjective features.
42Subjectively, it is relevant to the assessment of the need for personal deterrence in particular to note that the applicant had been convicted on some ten prior occasions of either resisting an officer in the execution of his duty or assaulting police. The first occurred in 1983 when the applicant was seventeen years of age (apparently connected with an assault occasioning actual bodily harm); four years later he was convicted of three offences of assault police (almost certainly arising out of the same situation) and fined $150 on each charge; in July 1989, an offence of resisting arrest and fined $150; in January 1990, two charges of assaulting police (again I think arising out of the same situation) for which he was sentenced to concurrent terms of three months imprisonment; in March 1990 one offence of assaulting police and hindering police and two offences of resisting police (also apparently arising out of the same incident); in August 2001, two charges of assaulting police for which he was fined $150 and placed on a s9 bond. There are then no other offences until he was charged in December 2008 with resisting police. He apparently had absconded and was eventually sentenced to three months imprisonment on 6 October 2009, in the meantime having been arrested for another resisting police offence on 20 September 2009 for which he received a concurrent three month sentence also on 6 October 2009. Most of the offences involving police were associated with offensive behaviour, with some of common assault or malicious damage. Without minimising his criminal record, leaving aside charges in March 1984 of breaking, entering and stealing and armed robbery and a breaking and entering with wounding to which the primary judge has referred, it contains nothing approaching the seriousness of the present offences. It is difficult to assess the seriousness of the offences involving police. Judging by the penalties, they were not significantly serious. Resisting or hindering police will usually be less serious than assaulting police. Using an offensive weapon certainly increases the criminality by a substantial margin.
43The fact that there was a substantial period during which the applicant had not committed any offences was a most significant matter and required at least some consideration to be given to the likelihood that, had it not been for the circumstance of his separation and his excessive drinking, these offences would not have occurred. It also suggests that he is capable of rehabilitation.
44I have mentioned that the primary judge did not advert to the intoxicated state in which the applicant committed these offences. Intoxication is not, of itself, mitigation. However, it is not immaterial, since it might explain the offences, if it did not excuse them. In this case, it seems to me fair, given the very substantial gap in the applicant's offending to which I have referred, to ascribe the applicant's relapse as at least significantly contributed to by his drinking brought on by the break-up of his relationship. It therefore reflected a judgment warped by drunkenness rather a deliberate return to criminality. This is material both to the criminality of the offences themselves as well as prospects for rehabilitation.
45Personal deterrence needed to be given some greater emphasis in the applicant's case, having regard to his past dealings with police. Although the applicant's drunkenness apparently made him impervious to reason and thus more dangerous, it also made his brandishing of the scissors easier to evade and him easier to subdue. The offence was impulsive rather than premeditated. In my respectful view, the sentence was manifestly excessive in all the circumstances of the case.
Proposed sentences
46It is therefore necessary to re-sentence the applicant for both offences charged on the indictment.
47Having regard to the recent adoption by the High Court in Muldrock of the principles of sentencing emphatically stated by McHugh J in Markarian v R [2005] HCA 25; (2006) 228 CLR 357; (2005) 215 ALR 213; (2005) 79 ALJR 1048 (18 May 2005), I think it is helpful to set out parts of his Honour's judgment which are of particular importance (most references omitted) -
[50] ... The appellant was granted special leave to appeal in this case because he contended that the key question in the case was whether "two-tier sentencing" in contrast to "instinctive synthesis" is the correct approach to sentencing. In this case, the Court of Criminal Appeal applied the "two-tier" approach. It erred in doing so.
[51] By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the "objective circumstances" of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.
[52] The two-tier sentencer contends that using the instinctive synthesis is inimical to the judicial process and is an exercise of arbitrary judicial power, unchecked by the giving of reasons. The two-tier sentencer claims ... [as the primary judge] did in this case, that, where the sentence is the result of an instinctive synthesis, it makes one "wonder whether figures have not just been plucked out of the air ..." The instinctive synthesiser, on the other hand, contends that the two-tier sentencer mistakes an illusion of exactitude for the reality of sentencing because there is no method of sequential arithmetical reasoning that produces the correct sentence for any case. A sentence can only be the product of human judgment, based on all the facts of the case, the judge's experience, the data derived from comparable sentences and the guidelines and principles authoritatively laid down in statutes and authoritative judgments. The instinctive synthesiser asserts that sentencing is not an exercise in linear reasoning because the result of each step in the process is not the logical foundation for the next step in the process. Nor in practice can it be an exercise in multiple regression where one starts with particular coefficients and adds to or subtracts from their result by changing the weighting of each variable as new variables are added to the process. The circumstances of criminal cases are so various that they cannot be the subject of mathematical equations. Sociological variables do not easily lend themselves to mathematization. Hence, when judges embark on a process that seeks to adjust incrementally or decrementally a hypothetical sentence, "they but illustrate the way in which the human mind tries, and vainly tries, to give to a particular subject matter a higher degree of definition than it will admit", as Lord Porter said ... in another context.
...
[54] Moreover, by concentrating on the objective circumstances of a crime, the judge is giving effect, and ultimately greater weight, to the retributive or deterrent theory of sentencing. Indeed, the judgment of the Court of Criminal Appeal in this case makes it clear that the Court thought that the issues of retribution and deterrence were the dominant issues in the case. Consciously or unconsciously, the judge who commences with a notional sentence downplays the importance of mitigation, reformation and rehabilitation in the sentencing process. Cognitive psychology has long emphasised the difficulty that the human mind has in giving correct weightings to each of a number of variables. In particular, people frequently fail to distinguish between the strength of evidence and its relative weight in determining the outcome or prediction...
The tendency of the mind is to seize on one or two variables - usually those with which the decision-maker is most familiar or which seem most cogent - and give that variable or those variables undue weight. Overconfidence - but sometimes underconfidence - in the significance of factors or the accuracy of the assessment is very common. The tendency to err must increase when particular circumstances are selected as the starting point for the decision and further factors are allowed to modify the starting point.
[55] One fact that critics of the instinctive synthesis approach do not face up to - assuming they are aware of it - is that the first tier of the two-tier approach - unless it is the maximum sentence - is itself derived by an instinctive synthesis of the "objective circumstances" of the case. Or on another view of the two-tier approach, the first-tier sentence is the product of a value judgment that is proportionate to the offence. But as the Victorian Court of Criminal Appeal said in R v Young [1990] VicRp 84; [1990] VR 951 at 960:
"What is a sentence proportionate to an offence is a matter of discretion and there must in most cases be a range of sentences open to a sentencing judge which are proportionate to the offence. There cannot be said to be a sentence which is the proportionate sentence ... Thus to attempt to fix a proportionate sentence before fixing the sentence to be imposed will only multiply the possibilities of error. Upon what facts is the proportionate sentence to be fixed?" (Emphasis in original.)
[56] Analysing the process involved in two-tier sentencing reveals that its appearance of objectivity and unfolding reason is illusory. Whether the starting point is a sentence derived from the objective circumstances or a sentence proportionate to the offence, the correctness of the sentence always depends on the correctness of the value judgment involved in assessing the first-tier sentence. But even if the judge can correctly assess the first-tier sentence, the judge must still correctly assess the quantum of the increment or decrement for each factor in the process. With great respect to those who think the contrary, it would require a judge to have the statistical genius and mental agility of a Carl Friedrich Gauss ... to arrive at the correct sentence using these methods. As Gaudron, Gummow and Hayne JJ pointed out in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611 [74], "mathematical increments and decrements to some pre-determined notional sentence are "apt to give rise to error".
48The necessity that, in the end, the sentence must reflect the sentencing judge's view of the way in which the interlocking considerations apply in the particular case, leads to the requirement that the sentence which the judge imposes should not be greater (or, for that matter, lesser) than those considerations imply. I am not suggesting that the judge should pass a sentence at the bottom of what might be thought to be the available discretionary range. It seems to me, however, that it is helpful, as a useful check, to ask the question whether a lesser sentence will adequately answer the case as the sentencing judge sees it . It may be naive to say so, but surely it must be the case that it is unjust to pass a sentence that is greater than the relevant considerations of sentencing require. Of course, reasonable minds may well differ as to what result those considerations entail. But to seek to pass the sentence that is the least that satisfies the function of criminal punishment is, I think, appropriate. I would ask rhetorically, why, if that sentence fulfils the interests of criminal justice, would one wish to pass a heavier sentence?
49Since writing the above, I have had the benefit of seeing, in draft, the judgment of McClellan CJ at CL, in which his Honour discusses this passage in light of my remarks in DB v The Queen (2007) NSWCCA 27, 167 A Crim R 393 at 396 [10] and subsequent decisions of this Court. In DB I said -
[10] The first part of the requirement is not difficult to apply. It is a fundamental assumption of sentencing jurisprudence that in no case will only one sentence be correct. The sole exception might be life sentences under s 61 of the Crimes Act 1900, not only in principle but also because of the terms of the section itself. In every other case the circumstances will justify a range of sentences, often quite a wide range, that may properly be passed. Although not articulated, so far as I am aware, in the decisions of this Court, it seems to me that it is also fundamental that the minimum sentence that [it] reflects the objective and subjective features of a case and satisfies the purposes of sentencing (such as protection of the public: Veen v The Queen [No.2] (1988) 164 465 at 473) should be that which is imposed. This has been called the principle of parsimony, a phrase that originated in the judgment of Napier CJ in Webb v O'Sullivan (1952) SASR 65 at 66 and has become common in Victoria see, eg, R v Storey (1996) [1998] 1 VR 359 at 366; R v PP (2003) 142 A Crim R 369 at 374. To impose a more severe sentence is, ex hypothesi , to intrude other inappropriate purposes into the administration of criminal justice. It is trite that minds may well reasonably differ as to what this minimum sentence might be in the circumstances of any particular case. Whether one applies this approach or not, it is unarguable that more than one sentence will invariably be warranted in law. This assumption is fundamental to the application of s6(3) of the Act.
50It is not possible to maintain that it is proper to pass a sentence that is greater than the requirements of criminal justice require. Of course, reasonable minds might well differ as to what this sentence will be. Thus it is accepted that, in respect of any case, a range of sentences will be available. There is no bright line at the "borders" but, when considering an appropriate sentence, the sentencing judge will not wish to pass a sentence that is either manifestly excessive or manifestly too lenient. Weighing up all the relevant considerations will yield a term even though the judge would accept that another judge might come to a different sentence. By suggesting that the sentencing judge should take a step back and ask whether his or her proposed term could be less and still answer, in his or her view, the requirements of the case, I did not say and I did not mean to suggest that the bottom of the discretionary range should be the resulting sentence. The sentencing judge might well consider that such a sentence, though within his or her discretion to pass - in the sense that it will not represent appealable error as manifestly excessive or manifestly too lenient - will not in a particular case answer the requirements of criminal justice.
51As McClellan CJ at CL points out, the Court in R v Blundell (2008) NSWCCA 63, 70 NSWLR 660 disapproved the approach I proposed. Simpson J, with whom the other judges agreed said -
[39] The other members of the bench in DB; DNN were McClellan CJ at CL and Latham J, neither of whom endorsed the observations. Neither do I. Indeed, it seems to me that there is a fundamental contradiction in the paragraph: his Honour plainly accepts, as indeed he must, the well recognised and thoroughly entrenched principle that, in any case, a range of sentences exists. Where a sentencing judge imposes a sentence within that range, it will not be held to be erroneous, notwithstanding that another judge might have selected a different sentence. That cannot stand with the proposition, said to be "fundamental", that the minimum sentence that reflects the objective and subjective features of a case and satisfies the purposes of sentencing should be that which is imposed. The two simply cannot stand together.
52I regret that perhaps I did not make it completely clear that I was not suggesting that a sentence at the bottom of the range should always be imposed or that a sentence that was within the discretionary range might nevertheless be appealably wrong simply because it was not the minimum sentence that satisfied the requirements of criminal justice. By proposing that the sentencing judge should consider what sentence criminal justice required and inflict no heavier penalty or, as I put it, should impose the minimum sentence that he or she considered to be adequate to achieve that result, I was not suggesting a ground of appeal. In no way was I seeking to qualify the "entrenched" principle to which Simpson J refers. On the contrary, my suggestion was proposed as a guide as to how to approach the placing of the case within that range. To say that a sentence should not be heavier than the case calls for may be not much more than saying that a sentence should be appropriate having regard to all the circumstances. But it is a way of casting that question that provides, to my mind, a helpful perspective.
53In Kelly v The Queen (2007) NSWCCA 357 Basten JA said -
[30] To suggest that there will not be, almost inevitably, a range of sentences which could appropriately be characterised as "warranted in law" is to misunderstand his Honour's judgment; Adams J expressly stated the contrary in the balance of [10] through to [12]. If the "principle of parsimony" is taken to imply that there cannot be such a range, that language should be abandoned. Indeed, "parsimony" is a slightly curious word to use in this context, albeit it has, as his Honour noted, a respectable lineage in Victoria. In the South Australian case to which Adams J referred, Webb v O'Sullivan [1952] SASR 65 at 66, Napier CJ, in dealing with a traffic offence, had merely stated:
"Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest."
I agreed with Basten JA because, of course, I had not suggested that what I called the "principle of parsimony" implied that there was not a range of appropriate sentences; indeed, as his Honour pointed out, quite the opposite was the case. As it happened, the phrase struck me as a reasonable description of the approach I suggest, but obviously the label is unimportant. Although Napier CJ, in the passage quoted, was dealing with a traffic offence (and, as Simpson J rightly pointed out, did not actually refer to parsimony), his Honour's observation struck me as generally applicable, self-evidently correct and certainly unobjectionable although, given the present time, and in this Court, I chose rather to base the principle on rationality than mercy.
54In respect of the first count on the indictment, I have described above the objective circumstances and the relevant subjective features, limited though they are. This is a serious example of an offence of this kind and requires a sentence of imprisonment. Bearing in mind the maximum term of imprisonment and the standard non-parole period for a case falling in the middle of the range of objective seriousness, I propose a sentence of four years' imprisonment to date from 2 October 2009. Having regard to the period of apparent rehabilitation and the likely cause of his relapse, I consider that a longer period on parole than would be available if the statutory ratio provided by s44 of the Act were to apply is necessary to encourage and support the applicant's rehabilitation, which his record suggests is within his capacity to undertake. These constitute special circumstances justifying a variation of that ratio. Accordingly, I would impose a non-parole period in respect of this offence of two years. In respect of the second count on the indictment I would impose a sentence of four years' imprisonment commencing on 2 October 2010 with a non-parole period of two years. The effective sentence will therefore be a head sentence of five years imprisonment with a non-parole period of three years imprisonment.
55Hoeben J:
The factual background and remarks on sentence have been fully reviewed by Adams J in paragraphs [1] - [17] of his judgment. While I agree with his Honour's conclusion that the approach of the trial judge to the first count on the indictment was not in accordance with the guidance provided by the High Court in Muldrock v The Queen [2011] HCA 39 I am not prepared to endorse his Honour's comprehensive analysis of the meaning and application of that decision. This is not because I necessarily disagree with his Honour's conclusions, but the matter was not fully argued before the Court and I would prefer to defer reaching a final decision on that issue until full argument takes place in an appropriate case. Accordingly, I agree that the applicant has to be re-sentenced in respect of count 1.
56I also agree with the conclusion of Adams J that the sentence imposed for count 2 was manifestly excessive and that the applicant is to be re-sentenced in respect of that offence.
57Regrettably I differ from his Honour's assessment of what the appropriate sentence should be on re-sentencing. As his Honour pointed out personal deterrence in this matter needs to be given greater emphasis. I also assess the level of risk to the driver of the car and to the police officer from the actions of the applicant to be more serious than does his Honour. Finally, while I accept that the applicant's intoxication explains how these offences occurred, it should not be taken to excuse them.
58The orders which I propose are as follows:
(1) Leave to appeal is granted and the appeal is allowed.
(2) The sentence in respect of count 1 on the indictment is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 5 years commencing 2 October 2009 and expiring 1 October 2014 with a balance of term of 2 years to expire on 1 October 2016.
(3) The sentence imposed in respect of count 2 on the indictment is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 2 years commencing 2 October 2013 and expiring 1 October 2015 with a balance of term of 3 years expiring 1 October 2018.
59The effective overall sentence is one of 9 years with a non-parole period of 6 years. The applicant will be eligible for release on parole on 1 October 2015.