Supreme Court of the ACT|2008-09-30

Lukatela v Birch [2008] ACTSC 99 (30 September 2008)

[2008] ACTSC 99 (30 September 2008)

CRIMINAL LAW - sentencing - Crown appeal against sentence by Magistrates Court - power to interfere with discretionary judgment - whether nine concurrent sentences of suspended term of imprisonment manifestly inadequate in sense of unreasonable or plainly unjust - whether sentence otherwise in error because sentence failed to apply totality principle correctly or at all, made an error of fact, took into account an irrelevant matter or failed to take into account a relevant one

CRIMINAL LAW - aims of sentencing - individual deterrence - general deterrence - treatment of persons in custody by police officer - inappropriate use by police officer of capsicum foam - public interest in observance of due process by law enforcement authorities - abuse of position of trust - consideration of mitigating circumstances - whether immediate full-time term of imprisonment was warranted because no other sentence would achieve the aim of sentencing

CRIMINAL LAW - nature of appeal under Div 3.10.2 of Magistrates Court Act 1930 (ACT) - whether appeal by way of rehearing in sense of new trial or whether appellant must demonstrate that order appealed from is result of legal, factual or discretionary error

CRIMINAL LAW - sentencing - totality principle - sentencing for multiple offences -magistrate failed to consider each offence individually - magistrate failed to consider totality principle

Held: Sentences manifestly inadequate - magistrate failed to give adequate weight to offences as unprovoked attacks by police officer which called for significant general deterrence - magistrate erred by failing to consider or apply principle of sentencing for multiple offences - appeal under Div 3.10.2 of the Magistrates Court Act 1930 (ACT) by way of rehearing is not a new trial or completely fresh hearing

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 followed

Birch v Fitzgerald (1975) 11 SASR 114 cited

CGU Insurance Ltd v Porthouse [2008] HCA 30; (2008) 248 ALR 240 cited

Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 followed

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 applied

Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 244 ALR 257 cited

Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 considered

Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36 cited

Fleury v Madden (unreported, Sup Ct, ACT, SCA 10 of 1988, 21 November 1988) not followed

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 followed

Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43 cited

Groves v The Commonwealth [1982] HCA 21; (1982) 150 CLR 113 cited

Hook v Ralphs (1987) 45 SASR 529 considered

House v The King [1936] HCA 40; (1936) 55 CLR 499 cited

Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177 cited

Johnson v R [2004] HCA 15; (2004) 205 ALR 346 cited

Markarian v The Queen (2005) 228 CLR 35 followed

Mill v The Queen (1988) 166 CLR 59 applied

Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 cited

R v Hilder (unreported, NSWCCA, 13 May 1993) cited

R v Relph [2002] ACTCA 6 cited

R v Todd [1982] 2 NSWLR 517 cited

R v Valentine [2003] WASCA 7 cited

Raymond v Honey [1983] 1 AC 1 cited

RH McL v The Queen [2000] HCA 46; (2000) 203 CLR 452 referred to

Rogers v Green [2008] ACTSC 78 cited

Singh v The Commonwealth [2004] HCA 43; (2004) 222 CLR 322 cited

Thwaites v The State of Western Australia [2004] WASCA 197 cited

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 cited

Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 cited

York v The Queen [2005] HCA 60; (2005) 225 CLR 466 cited

Orders that the proceedings be set down for further hearing on 11 November 2008.
Directs the appellant, on or before 21 October 2008, to file and serve any further written submissions for the purposes of the final hearing on 11 November 2008.
Directs the respondent, on or before 3 November 2008, to file and serve any further written submissions for the purposes of the hearing on 11 November 2008.
Orders that ACT Corrective Services prepare a pre-sentence report for the hearing on 11 November 2008.
Directs the respondent to attend upon ACT Corrective Services on or before 4.00pm on 3 October 2008 and make himself available as quickly as reasonably possible to cooperate with ACT Corrective Services for the preparation of a pre-sentence report.
Grants the parties liberty to apply in chambers.

1. John Birch, the respondent, was a sergeant in the Australian Federal Police. In 2006, he was the officer in charge of the ACT regional watchhouse at the city police station in Canberra. He pleaded guilty to nine charges of intentionally and unlawfully administering to nine persons an injurious substance, commonly known as capsicum foam, with intent to cause pain or discomfort to each of them. The offences occurred on separate occasions over seven months in 2006 in the early hours of the morning. All the victims were very intoxicated. They were to a greater or lesser extent obstreperous or obnoxious, but not threatening, at the time of the offences.

2. The Magistrate found, when sentencing Mr Birch, that the facts revealed offending of a very serious nature. He found that Mr Birch had not used the capsicum foam for any proper purpose. Rather, his Honour found that Mr Birch used the capsicum foam as a means of offender management, of bending detainees to his will and of punishing those who would not comply. The Magistrate found that Mr Birch's offences:

"... involve a very serious breach of the trust reposed in [Mr Birch] by this community as a police officer and as the officer in charge of the watch-house."

3. There is a considerable public interest in the observance of due process by law enforcement authorities: Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43 at [25] per Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ. This public interest can be traced to at least the provisions of Magna Carta (1297) 25 Edw 1 c 29, which today still form part of the law of the Australian Capital Territory. It provides that:

"No freeman shall be taken or imprisoned, or disseised of his freehold, liberties or free customs, or be outlawed or exiled or in any other wise destroyed; nor will We pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land."

And its concluding clause promised that "... this Charter and all and singular its articles for ever shall be steadfastly, firmly and inviolably observed".

4. While that latter hope may not always have been fulfilled, in his Commentaries on the Laws of England, Sir William Blackstone said (1st ed, Clarendon Press, 1765-69, at Book 1, p 122):

"[E]very wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny."

5. These values enure in our society to this day. It remains the law that a person lawfully detained in custody by a police officer, as much as a free citizen and all others within the jurisdiction of the courts, retains all his or her common law rights and remedies unless some right or rights is or are excluded by statute: Groves v The Commonwealth [1982] HCA 21; (1982) 150 CLR 113 at 126 per Stephen, Mason, Aickin and Wilson JJ who drew on c 29 of Magna Carta; see too Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177 at 183 per Dixon CJ, Fullagar and Taylor JJ; Raymond v Honey [1983] 1 AC 1 at 10G-H per Lord Wilberforce. Historical context is a lens through which courts understand meanings in legislation: cp: Singh v The Commonwealth [2004] HCA 43; (2004) 222 CLR 322 at 332-333 [12]- [14] per Gleeson CJ. And, in Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36 at 79 Isaacs J described c 29 of Magna Carta as "that great confirmatory instrument ... which is the groundwork of all our Constitutions". He saw it as inscribing fundamental principles which form the base of our social structure.

6. In 2004, the Legislative Assembly enacted the Human Rights Act 2004 (ACT). That Act provides that no-one may be tortured or treated or punished in a cruel, inhuman or degrading way (s 10). And, s 19(1) provides:

"Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person."

7. Similar values are repeated in the Crimes (Sentence) Administration Act 2005 (ACT) and in ss 8(1) and 9(2). Those provisions require that, so far as practicable, a person in remand (s 8) or otherwise detained in lawful custody (s 9) is to have his or her human rights protected and respected and to be treated decently, humanely and justly. Those sections also require that functions under that Act must be exercised so as to preclude torture, or cruel, inhuman or degrading treatment for any person on remand or otherwise in lawful custody.

8. The Magistrate imposed a suspended sentence of three months' imprisonment in respect of all nine charges and made Mr Birch subject to a good behaviour order for a period of 12 months. By then he had lost his career, was suffering from depression both at the times of the offences and sentencing, and had been the subject of considerable adverse publicity.

9. The informant, who is in the position of the Crown, has appealed on the sole ground that this sentence was manifestly inadequate and that his Honour ought to have imposed a sentence of immediate imprisonment. Both parties agreed that, if I were to find that the sentence was manifestly inadequate, I would need to hear further submissions for the purposes of considering an appropriate sentence for Mr Birch.

10. Under s 208(1)(e)(i) of the Magistrates Court Act 1930 (ACT), the Supreme Court of the Australian Capital Territory is given jurisdiction to hear appeals against sentences of imprisonment imposed under Pt 3.2 of the Crimes (Sentencing) Act 2005 (ACT) from decisions of the Magistrates Court. A suspended sentence of imprisonment imposed by the Magistrates Court is, thus, within this Court's appellate jurisdiction under Div 3.10.2 of the Magistrates Court Act. Once an appeal under Div 3.10.2 has been instituted, the orders made by the Magistrates Court, and from which the appeal is taken, are stayed, including any sentence or penalty (s 216(1)).

The Court's powers on an appeal under Div 3.10.2 of the Magistrates Court Act

11. The Supreme Court must have regard to the evidence given in the Magistrates Court but has the power to draw its own inferences of fact (s 214(2)). The Court must receive evidence with the consent of the parties to the appeal (s 214(3)(b)). The Supreme Court also has power, if it considers it necessary or expedient to do so in the interests of justice, to receive further evidence on appeal in certain circumstances, not relevant here (s 214(3)(a)).

12. The Supreme Court is given power, on the appeal, to confirm, reverse or vary, relevantly, any sentence or penalty, or to give the judgment, or make the order, that, in all the circumstances, it considers appropriate (s 218(1)(a) and (b)). The Supreme Court may also set aside, relevantly, a sentence or penalty wholly or partly and can remit the matter to the Magistrates Court for further hearing and decision subject to the Supreme Court's directions (s 218(1)(c)).

13. The power to receive further evidence on an appeal under s 214 of the Magistrates Court Act, is like, but not identical to, the powers in exercise of the appellate jurisdiction in s 27 of the Federal Court of Australia Act 1976 (Cth) and s 93A(2) of the Family Law Act 1975 (Cth): see too Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 244 ALR 257 at 262-263 [22]- [25] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. In CDJ v VAJ (1998) 197 CLR 172 at 199 [100] McHugh, Gummow and Callinan JJ noted the similarity of the expression "further evidence" in both of the later Acts which vested appellate power in the federal courts. They held it to confer a power different to that of receiving "fresh evidence". Their Honours found that the discretion conferred by a power such as s 93A(2) of the Family Law Act was remedial in nature. Its principal purpose was to give the appeal court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous: CDJ 197 CLR at 201 [109]. I am of opinion that a similar construction should be given to s 214 of the Magistrates Court Act.

14. Under s 214(4) the Supreme Court must admit evidence which appears likely to be credible and to have been admissible in the Magistrates Court on an issue relevant to the appeal if the Supreme Court is satisfied there is a reasonable explanation for the failure to adduce the evidence below. Given that s 214(3)(b) requires the Supreme Court to receive evidence with the consent of the parties to the appeal, that evidence is in a different category to other forms of evidence which the Court has power to receive under s 214.

15. The circumstances in which the power operates is not exactly the same as under the two federal statutes. For instance, s 214(4) requires the Supreme Court to receive evidence tendered in an appeal unless it is satisfied that it would not afford any ground for allowing the appeal. In contrast, in CDJ 197 CLR at 201 [109], McHugh, Gummow and Callinan JJ said that the one purpose of the power to admit further evidence was to buttress findings which had already been made. It is not necessary fully to examine the power under s 214 here.

16. At the hearing of the appeal the parties tendered, by consent pursuant to s 214(3)(b), par 6.1 of the Australian Federal Police Commissioner's Order on the Use of Force (known as "CO 3") concerning the use of chemical agents, although this had been substantially reproduced in the facts admitted by Mr Birch for the purposes of the pleas of guilty below.

The nature of an appeal under Div 3.10.2 of the Magistrates Court Act

17. The appellant relied on the decision of Gallop J in Fleury v Madden (unreported, Sup Ct, ACT, SCA 10 of 1988, 21 November 1988) as identifying the nature of the appeal by way of rehearing under the then provisions in ss 208(1), 214 and 218 of the Magistrates Court Ordinance 1930. Gallop J held (at p 8) that such an appeal was:

"... a re-hearing in the sense that it is a new trial of the issue raised by the Notice of Appeal using the evidence in the Court below with the discretion to receive further evidence."

18. However, subsequently in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 180-181 [23] per Gaudron, McHugh, Gummow and Hayne JJ, and 187 [44] per Kirby, the High Court reiterated the critical difference between an appeal by way of rehearing and a hearing de novo. Generally (in the absence of a wider statutory power) in an appeal by way of rehearing, the appellate court can only exercise its powers where, having regard to all the evidence before it, the appellant demonstrates that the order appealed from is the result of some legal, factual or discretionary error. In a hearing de novo, those powers can be exercised regardless of any such error. But, in an appeal by way of rehearing, once error below has been found, the appellate court can substitute its own decision based on the facts and the law as they now stand: Allesch 203 CLR at 180-181 [23], 187 [44].

19. I am of opinion that the provisions of Div 3.10.2 of the Magistrates Court Act in their present form provide for an appeal by way of rehearing of the same nature as in Allesch [2000] HCA 40; 203 CLR 172 (see at 179-180 [20]-[22] where the provisions of the Family Law Act 1975 (Cth) are set out, which are analogous to ss 214(2), (4) and 218). Accordingly, Gallop J's view that the nature of an appeal by way of rehearing under the then provisions of ss 214 and 218 as being "... a new trial of the issue raised by the Notice of Appeal" does not state what Div 3.10.2 now provides. It is not necessary for the present purposes to consider whether there is any relevant difference in the statutory schemes before Gallop J and me. This is because the more recent decisions of the High Court have demonstrated that an appeal by way of rehearing is not a new trial. Rather, it is a proceeding that requires the appellant to establish, on the evidence before the Court below and any further evidence adduced in the appeal, a legal, factual or discretionary error in the Court below which led to the order challenged in the appeal.

20. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 126-127 [25] Gleeson CJ, Gummow and Kirby JJ held that:

"... the appellate court is obliged to conduct a real review of the trial and ... of [the trial] judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287)."

21. And, although the appeal is by way of rehearing, the appellate does not have a free hand. Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties in accordance with the statute: Fox 214 CLR at 127-128 [27] per Gleeson CJ, Gummow and Kirby JJ.

22. Ordinarily, if there has been no further evidence admitted and no relevant change in the law, a court entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on part of the court below: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 203 [14] per Gleeson CJ, Gaudron and Hayne JJ. Here, the admission of evidence by consent, which simply confirmed what was before his Honour, thus required the appellant to demonstrate error in the discretionary judgment.

23. I am of opinion that the nature of an appeal under Div 3.10.2 is of an appeal by way of re-hearing on the evidence below, together with such further evidence as may be admitted under s 214 of the Magistrates Court Act. Such a "re-hearing" does not involve a completely fresh hearing by the Supreme Court on appeal. The Court would ordinarily proceed on the basis of the record in the court below, together with any additional evidence that is admitted under s 214.

24. Where no oral evidence was given below, or the trial judge's findings based on oral evidence are not challenged, the Supreme Court on appeal is in as good a position as the Magistrate to decide the proper inference to be drawn from the undisputed facts which were in evidence. In deciding the proper inference to be drawn, the Supreme Court must give respect and weight to the conclusion of the Magistrate, but, once having reached its own conclusion, must give effect to it: Fox 214 CLR at 126-127 [25] per Gleeson CJ, Gummow and Kirby JJ, applying Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551; see too CGU Insurance Ltd v Porthouse [2008] HCA 30; (2008) 248 ALR 240 at 252-253 [69]; [2008] HCA 30; 82 ALJR 1135 at 1144 [69] per Gummow, Kirby, Heydon, Crennan and Kiefel JJ.

25. The appellant, the informant below, argued that his Honour's sentence for the nine offences was manifestly inadequate. The Magistrate exercised a judicial discretion in imposing nine sentences of three months' imprisonment wholly suspended and a 12 month good behaviour order. The power to interfere with a discretionary judgment, such as the imposition of sentence on an offender, is governed by established principles identified by Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 370-371 [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ. The sentence must be manifestly inadequate or otherwise in error because the sentence failed to apply a principle correctly or at all, made an error of fact, took into account an irrelevant matter or failed to take into account a relevant one: Markarian 228 CLR at 370-371 [25].

26. The Court will not interfere merely because, on appeal, it considers that it would have given a different sentence. Manifest inadequacy of sentence is a conclusion arrived at by an appellate court having regard to all relevant matters going to the imposition of the sentence complained of: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325-326 [5]- [6] per Gleeson CJ and Hayne J; 340 [59] per Kirby J; see also 329 [21] per Gaudron and Gummow JJ. But, as Gleeson CJ noted in York v The Queen [2005] HCA 60; (2005) 225 CLR 466 at 470 [8] a conclusion that a sentence is manifestly inadequate may not be susceptible of much elaboration. If there is no identified error, the appellate court can only intervene on the ground that the sentence is manifestly inadequate if it was unreasonable or plainly unjust: Markarian 228 CLR at 370-371 [25]. An appellate court must recognise that the sentencer has a very flexible discretion to mould an appropriate sentence within the parameters set by legislation and the need for consistency of approach: Markarian 228 CLR at 371 [27]; Johnson v R [2004] HCA 15; (2004) 205 ALR 346 at 348 [5] per Gleeson CJ, at 356 [26] per Gummow, Callinan and Heydon JJ; see also Rogers v Green [2008] ACTSC 78 (27 August 2008) at [12]-[13] per Penfold J.

27. Mr Birch pleaded guilty before the Magistrate to nine charges under s 28(2)(a) of the Crimes Act 1900 (ACT), which provided:

(a) administers to ... another person any ... injurious substance with intent to ... cause pain or discomfort to that person ...

is guilty of an offence punishable, on conviction, by imprisonment for 5 years."

28. Because the proceedings were conducted under s 375 of the Crimes Act 1900, the Magistrates Court, relevantly, could not impose a sentence of imprisonment exceeding two years in respect of each offence (s 375(10)). This Court's power on appeal is similarly constrained by s 218(2) of the Magistrates Court Act.

29. The offences occurred on nine different occasions between 25 February 2006 and 24 September 2006. Originally, Mr Birch had been charged with alternative counts of common assault under s 26 of the Crimes Act 1900. Each of those charges carried a maximum penalty of two years' imprisonment. However, on entry of Mr Birch's pleas of guilty to the nine charges under s 28(2)(a), the charges of assault were dismissed on the informant offering no evidence.

30. Six of the victims were not under arrest when attacked by Mr Birch. They had been detained under the Intoxicated People (Care and Protection) Act 1994 (ACT) because they vulnerable as a result of their inebriation. That Act authorised a police officer to take into custody a person whom the officer believed was intoxicated and by reason of that intoxication was behaving in a disorderly way, in a way likely to cause injury to himself, herself or another person or to damage property or was incapable of protecting himself or herself from physical harm (s 4(1)). The police were able to exercise that power where there was no other reasonable alternative for the intoxicated person's care and protection (s 4(2)).

31. Mr Birch sprayed each of his victims with oleoresin capsicum foam (commonly called capsicum foam or "OC" foam). The capsicum foam contained 10% oleoresin capsicum as its active ingredient and was stored in canisters. As sergeant in charge of the watchhouse, Mr Birch had access to the two canisters kept there.

32. Another means used by the Australian Federal Police to deploy oleoresin capsicum was through a spray. Officers were issued with a small container that could spray a stream of liquid which contained about 5% oleoresin capsicum as the active ingredient.

33. Oleoresin capsicum irritates pain receptors in the mouth, stomach, nose, eyes and mucus membranes. Generally, it causes a burning sensation in the affected area, as well as reddening of the skin with which it makes contact. It also causes extreme pain in the eyes and a feeling that they have sand in them, making them close involuntarily. If inhaled, it leads to coughing and shallow breathing.

34. The use of oleoresin capsicum by Australian Federal Police (AFP) was governed by par 6.1 of CO 3 which provided that:

"An AFP employee or special member may only use chemical agents against another person where he or she believes on reasonable ground that their use is reasonably necessary in order to:

(a) defend him or herself, or others from physical injury in circumstances where protection cannot be afforded less forcefully;

(b) arrest a suspect whom he or she suspects, on reasonable grounds, poses a threat of physical violence and the arrest cannot be affected less forcefully;

(c) resolve an incident where a person is acting in a manner likely to seriously injure him or herself and the incident cannot reasonably be resolved less forcefully; or

35. His Honour found that Mr Birch was well-aware of the Commissioner's orders at the time of the commission of the offences. Federal police officers were required to undertake mandatory training and testing on the use of force every twelve months. The training assessed officers' knowledge of relevant Commissioner's orders, AFP guidelines and legislation that could impact on the use of force (including par 6.1 of CO 3). They were also assessed on their ongoing competence in the use of firearms, battons and, relevantly, OC products. Mr Birch had passed his annual training and testing in the use of force both on 29 May 2005 and again on 6 June 2006.

36. The watchhouse was monitored by closed circuit television from a number of positions, including from behind the charge counter. The images from the closed circuit television were recorded on video tape which also recorded the sound, date and time of the images as they were recorded. Each of the offences had been recorded on a DVD which was played in evidence before his Honour.

37. When assessing the objective seriousness of the offences, his Honour observed that none of the victims had occasioned any lasting injury. It was common ground that, almost immediately after Mr Birch sprayed them with capsicum foam, the victims were decontaminated by using cold water, which was a neutralising agent. He found that this decontamination minimised the pain inflicted. However, the Magistrate found that it was beyond doubt that considerable, if temporary, pain was inflicted by the capsicum foam administered by Mr Birch and that he was clearly acting outside of his authority.

38. His Honour observed that the factual circumstances surrounding Mr Birch's use of the capsicum foam in each case varied slightly. But, having considered the evidence, he determined that he should not distinguish between the various incidents. In some cases the detainee was clearly agitated, in others abusive. Some were obstructive and obnoxious. However, as his Honour said, other detainees were simply not responding in a timely manner to directions or questions posed by Mr Birch.

39. The Magistrate was certain, based on the video evidence, that, no matter how obnoxious or agitated the detainee was, on each occasion when Mr Birch employed the capsicum foam:

"... there was no immediate threat to any of the staff of the watch-house. The challenging behaviours displayed by some of the victims of these offences were adequately addressed by the use of handcuffs or by the simple expedient of positioning other officers close to the detainee."

40. He held that none of the detainees' behaviours had degenerated to the stage where the use of capsicum foam was reasonably necessary for the purpose of Mr Birch protecting himself or his staff from physical injury or using it in accordance with par 6.1 of CO 3. His Honour observed (while acknowledging that this was not relevant to sentencing) that Mr Birch's demeanour towards and interaction with some of the detainees was hardly calculated to reduce any of their tension or animosity.

41. His Honour also recognised that Mr Birch's conduct was not one isolated offence occurring in the heat of the moment, but a series of offences over a period of seven months. He found that "[t]hese facts reveal offending of a very serious nature".

42. His Honour dealt with the subjective factors which he considered in arriving at the sentence. Mr Birch was then 52 years old. He had resigned from the police as a result of the offences and had lost his police salary of about $110,000 per annum. Mr Birch was then employed on a salary of about $44,000 per annum. In addition, Mr Birch's wife gave evidence. She spoke of the impact a sentence of imprisonment would have on her and their three adult children. Mrs Birch also said that her husband had loved his job with the police, but in the last year when he was in the watchhouse, she had noticed that he was showing signs of disenchantment. She said he had begun to complain of severe headaches and lack of sleep and he had sought medical treatment. These were new experiences and Mrs Birch also said that her husband seemed very stressed in that period. Several testimonials were tendered which spoke of Mr Birch's good character and his devotion to his family and his career. His Honour also recognised the importance of Mr Birch having pleaded guilty in a timely manner.

43. His Honour rejected the explanation that Mr Birch's conduct leading up to the commission of the offences was affected by a culture in the watchhouse for the use of capsicum products. He stated that a report by the Commonwealth Ombudsman and Australian Federal Police, on which Mr Birch had relied, "does not provide a cogent basis for accepting" that claim.

44. The Magistrate noted that when Mr Birch used the capsicum foam on his victims the video showed that the other police present displayed no indications of surprise, shock or concern about his actions. Indeed, some clearly anticipated them and moved away from the victim immediately before he was sprayed. His Honour found that Mr Birch's actions were not perceived as unusual in the daily life of the watchhouse even though this might not be a "culture".

45. His Honour recognised that the reactions of the other police did not mitigate the seriousness of the offences. Rather, he reasoned that the acceptance of a breach of the criminal law, especially in a service such as the police, called for the Court to impose a sentence which would be directed towards general deterrence and make clear that this type of behaviour would not be tolerated. And his Honour found that, as officer in charge of the watchhouse, it was Mr Birch's duty to provide leadership by setting an example for less senior officers in their dealings with detainees. He found that Mr Birch could not rely on the existence of any practice or culture, such as he alleged, so as to mitigate significantly his crimes.

46. Next, his Honour considered whether Mr Birch's actions might be the result of a lack of training. The Magistrate accepted that there was some merit in that submission, and that appropriate training and techniques of dealing with intoxicated and difficult people may have assisted Mr Birch in dealing with detainees, without resorting to the expedient of using capsicum foam. However, as his Honour noted, Mr Birch already had had a wealth of experience in dealing with such persons in his years as a police officer.

47. The Magistrate found that clearer guidelines on command responsibilities and the provision of more staff during abusive periods would have lessened the stress of Mr Birch's employment. That would have made it less likely that he would develop stress-related conditions such as depression, which might bear upon his judgment. But his Honour noted that it was important that Mr Birch had been trained in and found proficient in his knowledge of the Commissioner's orders governing the use of OC products.

48. His Honour found that every person taken into custody and held at the watchhouse was, to a greater or lesser extent, vulnerable and that each of the victims was further vulnerable due to his level of intoxication. And, significantly, again his Honour remarked on "the serious breach of trust involved in the offences before [the] court" immediately before imposing sentence.

49. Lastly, his Honour accepted that, based on Professor Stevens' evidence, Mr Birch was depressed at the time of the offending. He had found work in the watchhouse difficult to cope with, and this had been exacerbated because Mr Birch had not sought or desired the posting there. During his time at the watchhouse, Mr Birch had become progressively disenchanted and he suffered from severe headaches, lack of sleep and other stress-related symptoms. His Honour took these matters into account. He found that Mr Birch suffered from undiagnosed and untreated depression at the time of the offending, which was a significant factor in sentence. That was because Professor Stevens had explained that "[d]epression may have made him more impulsive and would have affected his judgment".

50. His Honour accepted that Mr Birch had shown true remorse for his actions. His contrition, lack of any prior criminal history, and resignation from the police force, led his Honour to find that individual deterrence was not an important sentencing consideration. Moreover, Mr Birch's circumstances had received considerable publicity.

51. Critically, his Honour said that while the general deterrence was an important sentencing consideration, the facts of Mr Birch's having been charged and his loss of his police employment had been widely reported and were in themselves likely to serve as deterrence to others. The Magistrate said that there was no reason to assume that his conviction for the offences and the penalty imposed would not also be widely reported.

52. In the end, his Honour rejected the appellant's submission that an immediate full-time custodial sentence should be imposed. He said that he had been referred to no case in which an offender was actually sentenced to an immediate prison sentence for offences akin to those for which Mr Birch had pleaded guilty.

53. His Honour relied on the decision of von Doussa J, then a judge of the Supreme Court of South Australia, in Hook v Ralphs (1987) 45 SASR 529. There, a police officer was sentenced to a suspended sentence of three months' imprisonment for ramming the face of a handcuffed offender into a road surface on several occasions and kicking his body as he lay handcuffed and dazed on the road. As the Magistrate pointed out, von Doussa J had referred to the offender's conduct having occurred in the heat of the moment and after dangerous conduct by the victim during the course of a car chase, as a reason for suspending the sentence. However, the Magistrate said that the conduct of the offender in that case was objectively more serious than that of Mr Birch.

54. Ultimately, his Honour said that an immediate full-time term of imprisonment was a sentence of last resort only to be imposed if no other sentence would achieve the aim of sentencing: see s 10(2) of the Crimes (Sentencing) Act 2005 (ACT). He said that while the serious breach of trust involved in the offences called for the imposition for the term of imprisonment, bearing in mind Mr Birch's loss of his employment and the consequential financial loss which had already been widely reported, a wholly suspended term would be adequate to punish him and to deter others from committing those types of offences. He then recorded a conviction for each charge and sentenced Mr Birch to three months' imprisonment wholly suspended and required him to comply with a good behaviour order under the Crimes (Sentencing) Act 2005 for a period of twelve months.

55. The appellant argued that the sentence was manifestly inadequate because:

• it made all the sentences concurrent and the same, thus failing to give sufficient weight to the number of offences;

• it failed to give sufficient weight to both general deterrence and to punishing Mr Birch;

• it failed to deal appropriately with the circumstances of each offence.

56. When persons were brought into the watchhouse in protective custody or to be formally charged, they were taken to a charge counter which was approximately 1.8 metres high. The sergeant in charge stood behind the counter. There was a yellow line about one metre in front of the counter where persons in custody were required to stand. That was for police operational safety reasons. The video footage in evidence shows Mr Birch standing behind the counter and each of his victims in front of it in the area of the yellow line. The footage also showed two police officers standing on either side of each victim, as well as, in some cases, other police present. The two incidents constituting the first and second offences were played on a DVD in open court on the hearing of the appeal. The parties accepted that I could view the whole nine incidents recorded in chambers and I have.

57. Mr Birch, as officer in charge, had to ask each of these intoxicated persons a number of standard form questions concerning their identity and state of health. Each victim was required, while standing in front of the charge counter, to remove items of clothing and jewellery which might be capable of misuse, such as belts, coats and shoes. While I agree with his Honour that the factual circumstances of each offence are similar, it is appropriate to describe two of them below to illustrate those circumstances.

58. The second victim had been detained outside a city bar, at about 4.30am on Saturday 1 April 2006, as an intoxicated person because he was considered, presumably, to be a danger to himself and others. He had not committed an offence. As depicted on the video, when brought to the charge counter, he was plainly very intoxicated and assertive but not threatening. He asked to know why he was being held in custody. He also asked to see a lawyer. Mr Birch ignored these requests. I accept that this occurred in the context where the second victim (like the other victims) was likely to have been told by other police, before he was brought to the charge counter, why he was being detained. However, he was asking the person who appeared to be (and was in fact) in charge about what subordinate police officers had done to constrain his liberty. Although this is not relevant to the issues in this appeal and I do not have regard to it, I would observe that however drunk, irritating or insolent he appeared to be, the second victim was entitled to an answer to these questions from the officer in charge.

59. In response to the second victim's questions, Mr Birch put a canister of capsicum foam on the charge counter in his victim's sight. It is not clear whether the second victim appreciated the significance of the canister. That victim was standing on the yellow line in front of the charge counter, where he should have been, with his arms folded and continued to be argumentative and verbally abusive to Mr Birch. He posed no threat or danger to anybody.

60. After he placed the canister on the charge counter Mr Birch said to him:

"I'm gonna ask you some further questions, you either answer them or your don't."

[At this point Mr Birch sprayed a burst of capsicum foam into the second victim's face and then continued:]

Then, the two police officers on either side of the second victim forcibly pushed him to the ground.

61. The seventh offence occurred at about 5.40am on the morning of Sunday 11 June 2006. The victim had been taken into protective custody because he had been involved in a physical altercation with another male outside a nightclub. The police who detained him formed the opinion that he was heavily intoxicated by alcohol, which his appearance on the video confirmed. He was brought into the watchhouse and taken before the charge counter. Mr Birch and other police officers were present.

62. The seventh victim was told to stand on the yellow line in front of the charge desk and he complied. Mr Birch told him to take his belongings out of his clothing and he did so. During that process Mr Birch took a canister of capsicum foam from beneath the counter and held it. He had an exchange with the seventh victim as follows:

"Seventh Victim: Yeah righto blah blah blah - oh so now you're getting the capsicum spray out.

63. During this exchange the seventh victim was obviously intoxicated, but was still in the process of complying with the request to empty his pockets onto the charge desk. However, immediately after the last remark, Mr Birch sprayed a burst of capsicum foam into the seventh victim's face. That caused him to become unsteady and fall to the ground.

64. Nothing had occurred which justified the use of the capsicum foam. It was a serious, brutal attack calculated to punish the seventh victim. This attack occurred five days after Mr Birch had been tested on 6 June 2006 and approved in using, among other things, the capsicum products. The eighth offence occurred the next day.

65. It was not appropriate for Mr Birch, as a senior police officer, to use a powerful chemical agent deliberately to cause pain or discomfort to persons who had posed no threat to anyone at the time. It was, as the Magistrate found, a serious breach of the trust reposed in Mr Birch as officer in charge of the watchhouse. The other police present appear to have anticipated that Mr Birch would use the capsicum foam, even though they were able to restrain the victims, had they begun to pose any threat at all. In my opinion, the other officers' actions demonstrated that they were aware of Mr Birch's technique to deal with persons whom he wished to punish or discipline. In any event, they were his subordinates.

66. In each of the offences, there were at least three police present, two on either side of the victim in front of the charge counter, and Mr Birch. Sometimes the victim was handcuffed. Sometimes he was obviously suffering from the effects of having been sprayed with capsicum spray prior to being brought before Sergeant Birch in the watchhouse. In a number of the incidents, other police officers can be seen on the video recording near Mr Birch behind the charge counter within one or two metres of the victims, albeit separated from the victim by the charge counter.

67. Of course, each of the victims was drunk, and to greater or lesser degrees unco-operative. Not all of them were abusive or aggressive, although most of them were. And, their behaviour would have tried most people's patience, particularly given that they were evidently intoxicated and uncooperative. Additionally, the events occurred in the early hours of the morning. It is possible to understand why Mr Birch would not have sought the position of sergeant in charge of the watchhouse. There, his nightly routine would involve him processing intoxicated people exhibiting various degrees of unpleasantness towards those in authority.

68. But the video demonstrated that Mr Birch's behaviour in committing the offences was as the Magistrate found: namely that he used the capsicum foam "as a means of offender management, as a means of bending detainees to his will and punishing those who would not comply". And, Mr Birch intended to cause his victims considerable pain and discomfort by spraying them with foam.

69. The video recording of each of the nine offences demonstrated that there was no justification for any of the attacks made by Mr Birch on each of his nine victims. I am satisfied beyond reasonable doubt that Mr Birch had no basis consistent with par 6.1 of CO 3 on which he could possibly have believed, let alone had reasonable grounds to believe, that the use of the capsicum foam was reasonably necessary in the circumstances of each offence.

70. Each use of the capsicum foam was an act of violence. It would have been no more justifiable for Mr Birch to have hit any of his victims than spray them. A punch would usually inflict a considerable degree of pain. If no bones were broken, the punch would not have long-term physical effects, although it might result in some contusion or bruising. That, however, would not detract from the objective seriousness of the violence constituted by the punch.

71. Mr Birch's spraying of the capsicum foam was intended to hurt and demonstrate to the victim that, if he persisted, then he could be sprayed (and hurt) again. The subsequent decontamination did not detract from the violence of Mr Birch's attack or the intended intimidation of the victim. His Honour found, and I agree, that it was beyond doubt that considerable, if temporary, pain was inflicted by Mr Birch who was, he found "clearly acting outside his authority".

72. However, as his senior counsel pointed out, Mr Birch was conscious that the incidents were being recorded contemporaneously from the closed circuit television. This was part of the procedure operating in the watchhouse. So, it is clear that Mr Birch did not feel that he was providing evidence of his own breaches of the law. It would have been simple, had he been conscious that what he was doing was wrong or criminal, for the spraying to have occurred out of sight of the cameras. It is unlikely that an experienced officer, such as Mr Birch, would have willingly exposed himself to prosecution by providing cogent evidence of his own wrongdoing on the closed circuit television recording. This lends some support to Professor Stevens' diagnosis that, at the time of the offences, Mr Birch's judgment was impaired through his depression.

73. Nonetheless, it is difficult to see the difference between Mr Birch's use of the foam, and a similar situation, had he hit or punched each of his victims. Each species of conduct is a deliberate attack on another with the intent of causing pain or discomfort on that person. In each instance, the conduct would have been unjustified and plainly wrong to any person of ordinary intelligence, particularly one with his experience in the police force. Professor Stevens did not suggest that Mr Birch was incapable of distinguishing right from wrong.

74. Further, the Ombudsman's and AFP's report concluded that most watchhouse sergeants had never found it necessary to use the foam and believed that most situations were resolvable by negotiation and that physical force was rarely required.

75. When a court is considering the imposition on an offender of sentences for a number of offences, it must first assess individual sentences for each offence. But, before finally passing sentence, the Court must look at and, if need be, adjust the resulting total sentence for all the offences so as to produce an appropriate overall sentence for all the offences: Mill v The Queen (1988) 166 CLR 59 at 62-63. There, Wilson, Deane, Dawson, Toohey and Gaudron JJ said that the appropriate result may be achieved either by making sentences wholly or partially concurrent (which they said was the preferable method, where practicable) or by lowering the individual sentences below what would otherwise be appropriate to reflect the fact that a number of sentences were being imposed: Mill 166 CLR at 63; RH McL v The Queen [2000] HCA 46; (2000) 203 CLR 452 at 457 [15]- [16]; 462-464 [32]-[34], per Gleeson CJ, Gaudron and Callinan JJ; 476 [75] per McHugh, Gummow and Hayne JJ; Johnson 205 ALR at 348 [4]-[5] per Gleeson CJ; 356 [26] per Gummow, Callinan and Heydon JJ. One consideration in this process is the relative closeness of the relationship in time and character of the offences: Mill 166 CLR at 64 approving R v Todd [1982] 2 NSWLR 517 at 519 per LW Street CJ.

76. And, as McHugh, Hayne and Callinan JJ said in Pearce v The Queen (1998) 194 CLR 610 at 622-623 [39] it is highly undesirable that the process of sentencing should become any more technical than it is already. They exhorted that: "'[E]xcessive subtleties and refinements' must be avoided" (see too Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at 638 [24]). McHugh, Hayne and Callinan JJ also said (Pearce 194 CLR at 623-624 [44]-[46]):

"[44] Does that matter if, as was the case here, an order was made that the sentences be served concurrently?

[45] To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen (1988) 166 CLR 59).

[46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision (cf House v The King [1936] HCA 40; (1936) 55 CLR 499). It is, then, all the more important that proper principle be applied throughout the process."

77. A judge (or magistrate) imposing a sentence after a trial or plea of guilty must be allowed as much flexibility in sentencing as in consonant with consistency of approach by the courts and the applicable statutory requirements: Johnson 205 ALR at 356 [26] per Gummow, Callinan and Heydon JJ; see also Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 at 401-403 [59]- [68] per Stone and Buchanan JJ.

Consideration of the totality principle in the proceedings below

78. The Magistrate gave no reasons why he imposed concurrent suspended sentences or how that determination applied the totality principle. This was an error of principle. His Honour had to consider the questions of cumulation or concurrence of the sentences and of their totality: Pearce 194 CLR at 624 [45] per McHugh, Hayne and Callinan JJ. Here, there were nine separate, but similar, offences committed over seven months. Would the same result have been appropriate if there were only two, or perhaps fifteen, offences? This question shows why his Honour had to explain, in accordance with the proper principles, why he selected the actual sentences imposed as appropriate for each offence and for the totality of the offences. It is not apparent whether the Magistrate followed one, or other, or neither of the approaches in Mill 166 CLR at 63 to arrive at the sentences: Johnson 205 ALR at 356 [26] per Gummow, Callinan and Heydon JJ.

79. His Honour said that, in none of the authorities to which he had been referred, had an offender been sentenced to an immediate term of imprisonment for offences akin to those to which Mr Birch had pleaded guilty. That may be true, but it is not relevant. The conduct was akin to nine deliberate assaults committed with intent to inflict pain and which did so. Assaults are commonplace crimes. The maximum penalty for an offence under s 28(2)(a) was five years' imprisonment (although his Honour could impose only a maximum of two years). In RH McL 203 CLR at 474 [69] McHugh, Gummow and Hayne JJ said:

"[69] Moreover, sentencing is not a matter of interest only to the prosecution and the appellant. The principal object of the criminal law is to protect the safety and property of the people and the State. Members of the public, as well as the prosecution, have a vital interest in ensuring that those found guilty of crimes receive the sentences which are appropriate to their criminality."

80. His Honour recognised that the conduct was not one isolated offence occurring in the heat of the moment, but was a series of offences over a period of seven months and involved offending of a very serious nature. He did not, however, consider a separate sentence for each of the nine offences. Rather, he imposed the same sentence for each of the charges, without differentiating between them or expressly addressing the totality of the penalty he imposed. It appears only that his Honour considered that these nine offences should be punished with the nine concurrent suspended sentences.

81. His Honour said that he took cognisance of the matters of principle referred to in the decisions on which the appellant had relied below. He referred to what von Doussa J had held in Hook 45 SASR at 542. However, von Doussa J said that the police officer's conduct there was not able:

"... to be likened to an act of unprovoked gratuitous thuggery, which made a custodial sentence a necessity on the ground of general deterrence. Had the appellant's assault been a premeditated one committed on a prisoner in custody, or had it been committed after there had been time for raised tempers and the excitement of the victim's apprehension to die down, then it would have been such a case. The well-known observation of Bray CJ in Birch v Fitzgerald (1975) 11 SASR 114 at 116-117 would have been directly applicable; indeed the case for imprisonment would be even stronger because of the abuse of power by a person in authority. But this was not such a case." (emphasis added)

82. Bray CJ expressed the view in Birch v Fitzgerald (1975) 11 SASR 114 at 117 that often a Court would be justified in treating unprovoked violence as warranting a sentence of imprisonment in the absence of mitigating circumstances, even in the case of a first offence. The Chief Justice said that a sentence of imprisonment in such a case may be appropriate "... to impress on the community at large that such behaviour will not be tolerated": Birch v Fitzgerald 11 SASR at 117. However, von Doussa J also acknowledged that circumstances of the assault necessarily bore on the question of penalty as did the consequences of a conviction itself: Hook 45 SASR at 542-543.

83. Another decision to which the Magistrate was referred was that of the Court of Criminal Appeal of the Supreme Court of New South Wales in Jones & Kelly v R (1985) 20 A Crim R 142. There LW Street CJ (with whom Lee and Maxwell JJ agreed) re-sentenced a sergeant of police who had conducted an art union for the purposes of a Police Citizen's Boys' Club and engaged in a series of frauds so as to enable him to obtain payment of the cash value of the first prize. LW Street CJ held that the sentence had to reflect a proper measure of criminal judgment in order to reassure the community that the criminal courts would not tolerate the handling of the affairs of Police Citizen's Boys' Clubs otherwise than with complete integrity and reliability: Jones & Kelly 20 A Crim R at 153.

84. LW Street CJ accepted there that there were significant subjective aspects which would fall particularly heavily on the sergeant and have a significant impact on his life. He also would lose his office in the force and his pension. LW Street CJ determined that the four counts involving the fraudulent scheme required substantial head sentences, albeit with a significantly lesser non-parole period. That case involved the police officer being in a position of trust which he abused. However, there, no violence was involved.

85. While one or two of Mr Birch's offences may have been met by a suspended sentence of three months' imprisonment, in my opinion, the gravity of nine offences, committed as officer in charge of the watchhouse, spread over seven months, in circumstances where he had been trained and reminded of the guidelines concerning the use of the capsicum foam (at least prior to the commission of the last three offences), called for a sentence of immediate imprisonment, totalling some period of time. As his Honour found there was a "serious breach of trust involved in the offences": s 33(1)(u) of the Crimes (Sentencing) Act 2005 (ACT)

86. The Magistrate found that these offences were a very serious abuse of power by a senior police officer. Police must not use chemical agents merely to punish persons in their custody. Those agents are provided to the police for the purposes of protecting themselves or others from harm. Rather than enforcing or obeying the law, Mr Birch was taking it into his own hands, disobeying the Commissioner's written orders, of which he knew, and attacking his victims to punish them or exercise dominion over them. I agree with the Magistrate's finding that this was a very serious abuse of Mr Birch's position of trust. Such criminal conduct must be appropriately punished by the Courts in upholding the rule of law.

87. Of course, there were a number of powerful subjective circumstances to which his Honour properly had regard in arriving at his sentence. Mr Birch relied on the joint report by the Ombudsman and the AFP which found that watchhouse staff received no structured training at all, and that newly appointed sergeants had little or no prior experience of watchhouse operations before commencing their role. He also referred to the fact that the report concluded that there was no formal approval for use of capsicum foam in the watchhouse, nor were there any standards regulating its safe handling or use. The report stated that very few staff had received training in the use of the capsicum foam in circumstances where officers in the watchhouse were not permitted to carry firearms, and some techniques for the use of force were not appropriate there.

88. I am of opinion that those matters do not detract from the seriousness of Mr Birch's attacks by his use of force to punish his victims. Commonsense dictates that it is not a police officer's role to punish persons at all. Commonsense, in the context of each offence, shows that there was no reason to spray any of the victims with capsicum foam. No training was necessary to tell an experienced police officer, such as Mr Birch, or indeed a novice, that attacking someone, who was not posing a threat, with a substance intended to inflict pain on him or her was plainly wrong. Our society has not reached the position where a police officer has to be trained not to hurt someone without good reason. And, the Court must reinforce basic values by imposing appropriate sentences for such unreasonable and unjustified conduct.

89. Mr Birch resigned from his position with the Australian Federal Police, losing his salary of $110,000 per year. The laying of charges, his plea and conviction were rightly seen by the Magistrate as bringing Mr Birch into considerable public disgrace. He had no prior criminal record and had a long career with the Australian Federal Police and, before that, the Army, in which he provided service to the community. A considerable body of character evidence supported his otherwise unblemished record. And, Mr Birch was genuinely remorseful. These were all factors which his Honour considered in mitigation, as he was entitled to do: Ryan v The Queen (2001) 206 CLR 267 at 285-286 [56]-[59] per McHugh J, 303-304 [123] per Kirby J, 318-319 [177] 322 [186] per Callinan J.

90. When I sought assistance from counsel for the appellant in respect of comparable sentences, he was unable to provide any such cases. Unfortunately, the Director of Public Prosecutions in the Territory and the Courts of the Territory do not have access to the helpful resource of the Judicial Commission of New South Wales' Judicial Information Research System (JIRS) on sentencing statistics and information. It is high time that all courts required to impose sentences on persons convicted of offences are provided with proper resources enabling them to assess appropriate comparable sentences so as to achieve greater consistency and transparency of sentencing outcomes. That assistance should also be given by prosecuting authorities using such resources as the JIRS database with which to assist courts.

91. Of course, sentencing is not a purely logical exercise. The Magistrate was faced with a body of evidence which raised complex issues as to the appropriate sentence to impose. The sentencing decision was undoubtedly difficult. There was scope for the sentence to be merciful in light of factors I have mentioned as well as the impact on Mr Birch that the revelation of his offending has had and the impact that any imprisonment would have on him, as a former police officer: cp: Jones & Kelly 20 A Crim R at 153 per LW Street CJ; Dinsdale 202 CLR at 328-329 [16]-[18] per Gleeson CJ and Hayne J, 330 [26] per Gaudron and Gummow JJ, 348-349 [86]-[88] per Kirby J.

92. I am satisfied that the Magistrate committed an error by failing to give any reasons why he imposed concurrent sentences for the nine offences without express regard to the applicable principles. Moreover, having regard to the objective seriousness of the offending and the need for general deterrence, I am of opinion that his Honour's sentencing discretion miscarried. A wholly suspended term of three months' imprisonment with a 12 months' good behaviour order, concurrent for nine deliberate attacks during a period of seven months, on persons in custody, by the officer in charge of the watchhouse, was a manifestly inadequate punishment.

93. The use of chemical spray to inflict punishment on persons in custody by any police officer in charge of a watchhouse is a matter of considerable seriousness. (Indeed, in other contexts the use of capsicum spray has been treated as the use of a weapon: R v Valentine [2003] WASCA 7; Thwaites v The State of Western Australia [2004] WASCA 197 at [77], [96] per Templeman J with whom Murray and Wheeler JJ agreed.) Such attacks cannot be tolerated in a civilised community. They involved a fundamental, on going, and substantial departure from the position of trust and authority in which Mr Birch was placed. The conduct was also likely to harm the reputation and morale of other police who did not use capsicum spray inappropriately: cf: R v Hilder (unreported, NSWCCA, 13 May 1993) per Wood J with whom Handley JA and Sully J agreed.

94. While Mr Birch's judgment may have been affected by his depression, that cannot palliate from the objective seriousness of the offending and the need for its public denunciation in the sentences imposed: Ryan 206 CLR at 302 [118] per Kirby J; see too at 279 [38], 282-284 [46]-[49] per McHugh J, 320 [181] per Callinan J; R v Nguyen [2004] NSWCCA 332; (2004) 149 A Crim R 343 at 350 [43], 352 [57]-[59] per Spigelman CJ with whom Barr and Hoeben JJ agreed. Any unprovoked attack on a person to punish them is a matter of considerable seriousness in our community. The more is this so because there were nine offences.

95. Each offence was an unjustifiable attack using a chemical agent intended to punish each victim. If even one such unprovoked attack had been committed by a civilian offender in the street, a custodial sentence might well be appropriate. Instead, each attack occurred in a police station. It was not committed by a member of the public, but by the officer in charge of the station in front of subordinates and in contravention of the Commissioner's orders for the purpose of punishing someone who was questioning or defying his authority. Most of the victims were there because they were vulnerable and too intoxicated to be safely left alone.

96. I do not consider that I should dismiss the appeal on the ground that this is an inappropriate matter in which to permit the Crown, which is represented by the appellant, to appeal against sentence. As Brennan, Deane, Dawson and Gaudron JJ said in Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 300 (and see too at 306 per McHugh J; Dinsdale 202 CLR at 340-341 [61]-[62] per Kirby J) a Crown appeal against sentence should be a rarity. But, they noted that one basis on which such an appeal should be permitted is to establish a matter of principle, including avoiding manifest inadequacy or inconsistency in sentencing standards. The Magistrate observed that there were no precedents in the Territory for offences under s 28(2)(a) of the Crimes Act. However, he failed to give adequate weight to these offences as unprovoked attacks by a police officer which called for significant general deterrence and to consider or apply the proper principles of sentencing for multiple offences.

97. The parties asked that I hold a further hearing to determine appropriate sentences in the event that I found that his Honour's sentence was manifestly inadequate. It is not appropriate to make any orders at this time except for the conduct of a further hearing. I am mindful that any re-sentencing will need to take into account any changes in the present circumstances of Mr Birch, the further submissions of the parties, as well as what was before his Honour. In addition, there are the well-recognised constraints imposed by the position he faces of being in jeopardy for a second time in a sentencing hearing: Everett 181 CLR at 299 per Brennan, Deane, Dawson and Gaudron JJ; R v Cobb [1999] FCA 158; (1999) 84 FCR 450 at 453 [19] per Spender, Higgins and Weinberg JJ; R v Relph [2002] ACTCA 6 at [23] per Spender J with whom Cooper J and Crispin P agreed at [36] and [37] respectively.

98. I will make directions for the parties to file and serve any further written submissions and fix a further hearing to determine what final orders should be made in light of these reasons, further submissions and any further evidence which may be tendered at that hearing.

I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Rares

Solicitor for the Appellant: The Director of Public Prosecutions for the ACT

(Sentence) Administration Act 2005

(Sentencing) Act 2005

Court of Australia Act 1976

Magistrates Court Ordinance 1930

People (Care and Protection) Act 1994

(Sentence) Administration Act 2005

(Sentencing) Act 2005

Court of Australia Act 1976

Magistrates Court Ordinance 1930

People (Care and Protection) Act 1994

Lukatela v Birch [2008] ACTSC 99

At a glance

Court

Decision date

Source

Judgment (174 paragraphs)

Lukatela v Birch [2008] ACTSC 99 (30 September 2008)

Parties

Legislation Cited (16)

Cases Cited (28)