R v Dale Anton Reynders

District Court of NSW|2016-05-24

REMARKS ON SENTENCE

The offender, who was born on 29 June 1980, was committed for trial on 4 June 2015 from the Cooma Local Court. Guilty pleas were entered to the following offences at the Queanbeyan District Court on 7 March 2016: 1. Assault occasioning actual bodily harm pursuant to s 59(1) of the Crimes Act 1900. The maximum penalty is 5 years imprisonment. 2. Assault police officer pursuant to s 58 of the Crimes Act 1900. The maximum penalty is 5 years imprisonment. 3. Cause grievous bodily harm to police officer and reckless as to causing actual bodily harm pursuant to s 60(3) of the Crimes Act 1900. The maximum penalty is 12 years and there is a standard non-parole period of 5 years. 4. Assault police officer and cause actual bodily harm pursuant to s 60(2) of the Crimes Act 1900. The maximum penalty is 7 years and there is a standard non-parole period of 3 years.
In addition, the offender has asked the court to take into account three charges on a Form 1. They are as follows: 1. Sequence 1 - Excluded person fail to leave premises. 2. Sequence 6 - Common assault. 3. Sequence 5 - Assault officer whilst in execution of duty.
The offences occurred on 4 September 2014 in the circumstances described below. The offender was arrested the same day and has spent one day in custody.

The offender's evidence

Exhibit 1 was a report by Mr Marshall O'Brien, clinical psychologist, dated 19 May 2016, which was admitted over a number of objections.
The offender's solicitors had qualified Mr O'Brien, informing him that the offender had a prior experience in 2007 when he and others at the City Watchouse in Canberra, and had been sprayed with capsicum spray by a senior police officer, which led to that officer being disciplined. Mr O'Brien's opinion was sought as to whether there was any likelihood that the former experience could have had an effect on the offender's subsequent behaviour when he was sprayed with capsicum spray during his arrest in September 2014.
The offender undertook eight consultations with Mr O'Brien between February and May 2016, focussing on his understanding of his behaviour and how he might make changes to his life. He had been able to take steps to reduce his drinking by attending AA meetings and had begun to plan for the future with respect to his social life and preferred occupation.
Upon assessment, the offender appeared to Mr O'Brien to be distressed and somewhat depressed in mood. He had difficulty recalling the details of the incident on 4 September 2014. The offender admitted he was intoxicated at the time, and had no real memory of the incident. He told Mr O'Brien that he recalled being dropped onto his face outside the Banjo Patterson Inn by security staff, and he believes that he may have suffered from concussion.
Following clinical assessment and testing, the offender's test results indicated a very significant depression with social detachment contributing to his difficulty with interpersonal communications. The offender was suffering severe anxiety and had an inability to manage stressful events, often leading to physical symptoms, which led to self-medication, including the use of alcohol. His profile was that of a person who was severely depressed and withdrawn.
The offender had suffered other injuries during his life, for example, at work, concrete formwork had collapsed on his head, he had suffered a king hit when attacked by another person, he had witnessed other persons suffer serious injury, and had previously suffered a previous assault by police with capsicum spray. As a result of this incident, the offender, who had previously begun training as a police officer, became cynical and distrusting of police officers, which was a significant pre-disposition to his arrest in September 2014.
Mr O'Brien noted that the offender was at a loss to explain his criminal conduct, or to understand what caused him to behave as he did. He claimed not to be an aggressive person, but stated "but I will not walk away if provoked". Mr O'Brien was of the opinion that his psychological profile supported that statement.
Mr O'Brien noted that the offender concedes that he significantly overreacted to any perceived threat on this occasion. He had developed a sense of defensiveness around negative interactions socially, and the previous incident where he had been subjected to capsicum spray, had left a significant effect of harm on him.
Mr O'Brien was of the opinion that the offender initially reacted to his handling by security staff and police as if he was being unfairly treated, and this progressed to experiencing threat, and finally reached a stage of severe distress as a result of the effect of the application of a capsicum spray. It was the offender's experience of such a high level of distress which may account for his failure to be aware of striking the injured police officer, Constable White, and for his inability to recall most of the preceding events. In those circumstances, having perceived a serious threat to his well-being, that led to a severe stress reaction characteristic of sufferers of Post Traumatic Stress Disorder. In the opinion of Mr O'Brien, that would adequately explain the offender's inability to remember the events of that night.
Exhibit 2 comprised a bundle of references and testimonials which attest to the offences being out of character for the offender. They bespeak of a man of otherwise good character who has been a person who has shown consideration for others. He was also a good employer who looked after his employees.
Exhibit 3 was two photographs of the offender taken in the early hours of 4 September 2014, which showed injuries on the left temple region and the nose of the offender.
In respect of the 2007 incident when the offender was sprayed with capsicum spray at the ACT Police Watchhouse, learned Counsel for the offender relied on the reported decision in Lukatela v Birch [2008] ACTSC 99, which contained factual findings in which it was said that the offender was sufficiently identified, in terms, as the "seventh victim" (see [62]). It was said that the offender recognised himself as speaking the words attributed to that victim in that paragraph.
The offender gave oral evidence. He stated that he did not dispute the Agreed Facts. He accepted that the police had properly arrested him and his reaction when Constable White reached into the back of the police vehicle to obtain his ID, was that he perceived that as a threat. That was a mistake on his part. He had limited memory of the events and did not dispute the criminal conduct.
The offender gave evidence that he had seen the psychologist, Mr O'Brien, to try to understand why he acted in that way. He had seen Mr O'Brien on eight occasions and now had some understanding as to the connection with the Watchhouse incident in 2007, following which, he had developed a fear of being around police officers and was very wary around them.
The offender gave evidence that he had been going to Alcoholics Anonymous for a period of months, but did not believe that he had a problem with alcohol previously. He now admitted that he did, and on occasions that he drank to excess. As a result of these offences, he very rarely went out and refrained from drinking to extremes.
The offender described the circumstances of the Watchhouse incident in 2007. He had been asleep and drunk in a public place and had been taken to the Watchhouse by police for his own safety. Whilst there, he had been sprayed with a very strong capsicum spray, which had been very painful and caused him to collapse. The police officer involved had been disciplined.
The offender had suffered long-term depression and anxiety since his twenties, and had been on anti-depressant medications. He gave evidence that when he read the facts, he felt quite saddened. They were obviously terrible and within a few days, he had been referred to a psychologist, Ms Paula Zohm, to assist with his depression and anxiety. He now understood that he had perceived Constable White as a threat at the back of the police vehicle, but he now knew that he was not. What he had done was a big mistake. When he had been sprayed with capsicum spray outside the hotel, it had brought back the fear that he had felt after what had happened in 2007. In respect of Constable White's victim impact statement, the offender said that he understood that his actions had hurt Constable White extremely seriously, and had impacted seriously on his physical and mental health, his family and friends, and that he wished that he could take it back. The offender gave evidence that he had tried to arrange an apology to be sent through his solicitor, but that had not been sent. He said in open court, "Mr White I'm extremely sorry. I'm extremely ashamed of my behaviour. I am sorry for my behaviour and the ramifications it has had on you".
The offender gave evidence that he took full responsibility for his actions which he described as, "inexcusable". He had grown up in a "blue collar working family", where it was customary to drink after work and at family functions. He described himself as a binge drinker who found it hard to stop once he had started. As a result of his involvement in AA, he was abstinent for nine months.
When asked about the commentary by Mr O'Brien, that he would not walk away from a problem, the offender said that he meant that he would stand up for himself and be assertive, not be violent towards others. He also gave evidence about an incident referred to in one of the testimonials in Ex 2, where he had assisted an elderly lady by intervening in a domestic dispute.
The offender also gave evidence that he wanted to say sorry to Ms Keddle for all the pain he had caused that security officer.
In cross-examination, the offender gave evidence that he had been drinking on the day in question since 3.00pm. He only remembered flashes of being manhandled by the security staff, but agreed with the facts, and that he had been asked to leave several times. He described his actions as "utterly appalling", and that he made the job of the security officers much harder.
He agreed that one hour before this incident he had had a conversation inside the premises with Constable White, and that it was a friendly conversation in which he told Constable White that he had been to the Police Academy at age 19 years. He had left because he was told he was too young. He did not know why he had perceived Constable White's actions as a threat at the back of the police vehicle. He said that he had hit his head on the ground, and he was inebriated. He agreed that Constable White was just doing his job. It was put to him that he had told the psychologist that these events had "ruined my life". It was put to the offender that he was not concerned for the victims, but he denied that, saying that he had gone to the psychologist to gain an understanding of the impact of events, not just on his life, but on the life of everyone who was involved.

Crown submissions

The Crown submitted that the objective seriousness of the offending here for each offence was somewhere around the mid-range. These were unjustified attacks, and involved an ongoing course of violent conduct, not just a momentary lapse of judgment. There were a number of victims of the offender's violence which took place over an extended period of time from the time he was asked to leave the hotel until the police station. The Crown submitted that Count 2 involved Constable White being punched several times in the head and kicked. The injuries he sustained were quite substantial and therefore the offending was towards the mid-range. The Crown submitted that the injury caused by Count 3 was a fracture of the right eye socket, and Count 4 involved a fractured nose.
Constable White had had surgery on his right eye involving the fixation of a plate and screws, and would require ongoing treatment. His victim impact statement demonstrated the tremendous effect on himself, his career and personal life. It was supported by the photographs in Ex A of himself and Ms Keddle.
The court would also have regard to the standard non-parole period of 5 years in respect of Count 3, and 3 years in respect of Count 4, respectively.
The Crown also relied on the application for guideline judgments, notwithstanding the application was refused (see [2002] NSWCCA 515). The Full Court had emphasised the importance of general and specific deterrence in offences involving assault of police officers in the execution of their duty (see [22] to [26]). At [22], the court had said: "The community is dependent to a substantial extent upon the courage of police officers for protection of lives, personal security, and property. The courts must support the police in the proper execution of their duties and must be seen to be supporting the police, and their authority in maintaining law and order, by the imposition of appropriate sentences in cases where assaults are committed against police."
The Crown submitted that the plea of guilty to the offences occurred on the first day of the offender's trial. There had been some negotiations beforehand, however, the plea was entered at a late stage, and the appropriate discount was between 5 and 10%.
The Crown submitted that a full time custodial sentence was appropriate, given the serious offending on all four counts. There was an ongoing course of conduct and serious injuries to the victims. In answer to a question from the court, the Crown agreed that this was an appropriate case for aggregate sentencing pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 ("C(SP)A") and that partial accumulation was required. In respect of each of the three matters in the Form 1, extra punishment was required to denounce the conduct involved in each of the three offences.

Offender's submissions

Learned counsel for the offender agreed with the Crown, that the starting point was the guideline application referred to above, and the fact that the offences required a significant element of deterrence in the sentencing process.
Counsel submitted that the court should not have regard to any aggravating factor which is an element of the offence, for example, the fact that the victim was a police officer, was an aggravating factor under s 21A (2)(a), however, it was an element of the offences under s 58, s 60(2), and s 60(3), and therefore could not be used as an aggravating factor. Further, it was submitted that the fact that the offence involved the actual threatened use of violence (s 21A (2)(b)), could not be used as an aggravating feature of the offending here, when each of the offences was an assault which involved the actual threatened use of violence.
Again, the aggravating factor contained in s 21A (2) (g), namely, that "the injury, emotional harm, loss or damage caused by the offence was substantial", could not be used, because notwithstanding that the injuries were substantial, they were an element of s 60 (3), namely, grievous bodily harm as defined in s 4 of the Crimes Act.
Counsel submitted that there were some mitigating factors applicable here, namely, pursuant to s 21A (3)(d), i.e. no planning, and s 21A (3)(e), the fact that the offender had no criminal record at 36 years of age.
It was further submitted that pursuant to s 21A (3)(g), the offender was unlikely to re-offend and, pursuant to s 21A (3)(h), he had good prospects of rehabilitation. He had demonstrated that by his action once he had read the facts and realised the seriousness of his conduct, he went for treatment with Ms Zohm and then to Mr O'Brien. This treatment was sought not to just to get a report, but involved eight sessions of counselling, the purpose of which was for him to gain an understanding of the causes of his offending. It was further submitted that the court would accept the offender's expression of remorse. Whilst that may be seen as somewhat late, it was genuine and he had tried to make an apology. By his actions, it was submitted that the offender had shown remorse.
On the question of concurrency and accumulation of sentence, Counsel submitted that this offending conduct could be seen as one continuing incident involving several offences. Whilst there may be some need for partial accumulation, the offences were all over in a few minutes.
Learned counsel submitted that for the plea of guilty, the offender should receive a utilitarian discount on sentence within the range of 15 to 20%. There had been an offence charged under s 33 of the Crimes Act, and a number of negotiations in respect of that. Counsel also referred to JIRS statistics in respect of the offending pursuant to s 60(2) and 60(3). It was submitted that, having regard to those statistics, it would be within range for the court to consider a suspended sentence pursuant to s 12 of the C(SP)A, or an ICO pursuant to s 7 of the Act. The offender was a mature person with no priors, and his offending, it was submitted, was borne of his experience in 2007 in the Watchhouse incident in the ACT, which caused him to react in the way in which he did. That, it was submitted, affected the question of moral culpability here, which meant that the court could impose a sentence of 2 years or less, and not be outside the appropriate range.
Alternatively, it was submitted that the court should find special circumstances pursuant to s 44 of the C(SP)A based on the fact that it would be his first time in custody, he suffered from depression and anxiety, his need for rehabilitation with drug and alcohol counselling, and that the trauma involved in the Watchhouse incident had led to him being suspicious of the police.

Determination

Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
I accept the Crown's submission here that the objective seriousness of the offending in respect of each of the four counts on the Indictment were towards the mid-range of seriousness for the offences pursuant to s 59(1), s 58, s 60(3) and s 60(2) of the Crimes Act. Whilst the offending fell just below the mid-range of offending for each of those sections, it was not far below and constituted serious offending, particularly Counts 3 and 4, where the injuries, particularly those in respect of Count 3 caused to Constable White, were very serious. I wish to emphasise that I have not had regard to the substantial harm caused to the police officer to aggravate the sentences in both Counts 3 and 4, as the injuries caused were an element of the offence, as was the use of violence.
I reject the submission made on behalf of the offender that the offending conduct was borne of the 2007 incident that occurred in the ACT Watchhouse, and the fear the offender suffered as a result of that incident and distrust of police officers generally, made him react in the way in which he did on this occasion. Rather, his offending was borne by his excessive consumption of alcohol on the night in question, which is indicated by his refusal when asked on more than three occasions by the security officers, to leave the premises and his refusal to do so. I do not accept that the earlier incident in 2007, which occurred some seven years beforehand, had the effect of diminishing his moral culpability in the offending here.
The offender entered a late plea of guilty to the offences. I accept the plea came after some negotiations between the prosecuting authority and the offender's legal representatives, and that a charge under s 33 of the Crimes Act was not proceeded with. However, the plea was entered on the first day of trial and is limited in its utilitarian value. I intend to allow a discount of 10% for the late plea of guilty, to that which was otherwise a strong Crown case.
I find that the offender is remorseful for his conduct, and that as a result of his eight sessions of counselling with Mr O'Brien, now has some insight into his criminal conduct and accepts responsibility for it. I also accept that he is genuine in his remorse for the impact his criminal behaviour has had on the two police officers, particularly Constable White.
I have had regard to the victim impact statement of Constable White, and accept, as the offender did, the impact of these serious injuries on his life, his career, and his daily life activities. Whilst there is no medical evidence before the court, I accept that Constable White has undergone a complex surgical procedure to reconstruct his eye socket, and that injury makes him more vulnerable to any further injury to his right eye. I wish to emphasise that I do not take those matters into account so as to aggravate the sentence so as to doubly punish the offender.
The offender is entitled to rely on his prior good character and lack of criminal convictions in the sentencing process. In Veen v R (No. 2) (1998) 164 CLR 465 at 477 the plurality said: "The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."
As outlined by the High Court, the offender is entitled to rely on his prior good character as a mitigating factor in sentence.
The offender is also entitled to rely on his good prospects of rehabilitation. He has already taken substantive steps towards rehabilitating himself from his alcohol problems and gaining some insight into his behaviour.
I have had regard to the maximum penalties of 5 years imprisonment for the offence pursuant to s 59(1) of the Crimes Act, 5 years imprisonment for the offence pursuant to s 58 of the Crimes Act, 12 years imprisonment and 5 years standard non-parole period for the offence pursuant to s 60(3) of the Crimes Act, and 7 years imprisonment and 3 years standard non-parole period for the offence pursuant to s 60(2) of the Crimes Act. The maximum penalties and standard non-parole periods in respect of the last two counts are guideposts in the sentencing process.
I have also taken into account in sentence the three matters listed on the Form 1 herein, and I have Certified that I have that I have taken into account those three offences in sentencing the offender here.
I am satisfied pursuant to s 5 of the C(SP)A, having considered all possible alternatives, that no penalty other than imprisonment is appropriate for the various offences. I also note that the offender spent one day in custody following his arrest.
S 53A of the C(SP)A provides as follows: "S 53A Aggregate sentences of imprisonment (1) A court may in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following: (a) The fact that an aggregate sentence is being imposed, (b) The sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section."
In R v Van Ryn [2016] NSWCCA 1, the court had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved: "[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
The court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. … Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
See also R v Caldwell [2016] NSWCCA 55.
The Court is required to indicate the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. This provides transparency in the sentencing process - see McIntosh v R [2015] NSWCCA 184 at [135]. It is clear that in indicating the sentences, there is no requirement to specify non-parole periods unless the offence is one for which a standard non-parole period is prescribed - see McIntosh v R, supra at [142], JM v R [2014] NSWCCA 297 at [8].
The indicative sentences that I would have imposed for each offence are as follows: 1. Offence of assault occasioning actual bodily harm pursuant to s 59(1) of the Crimes Act - 3 months imprisonment. 2. Assault police officer pursuant to s 58 of the Crimes Act - 9 months imprisonment. 3. Cause grievous bodily harm to police officer pursuant to s 60(3) of the Crimes Act - 18months imprisonment, together with a non-parole period of 10 months imprisonment. 4. Assault police officer causing actual bodily harm pursuant to s 60(2) of the Crimes Act - 18 months imprisonment, together with a non-parole period of 9 months imprisonment.
I do not accept the submission made on behalf of the offender that the offences require a high degree of concurrency because they arose out of the same course of criminal conduct. There was in fact criminal conduct that occurred in the hotel itself, at the rear of the police vehicle situated outside the hotel, and then later at the police station. It is clear that an aggregated sentence must show some accumulation - see R v Rae [2013] NSWCCA 9. The question is one of totality of sentence, as articulated by Howie J in Cahyadi v R, as set out above.
I intend to accumulate the sentences here so as to reflect the total criminality of the four offences which were discrete acts, particularly Counts 3 and 4, and could not be seen to be one single episode of criminal conduct.
I find that there are special circumstances made out pursuant to s 44(2) of the C(SP)A based on your alcohol abuse and your need for ongoing psychological counselling, so as to vary the usual ratio of any non-parole period and head sentence.

Sentence

I hereby order as follows: 1. You are convicted of the offence of assault occasioning actual bodily harm pursuant to s 59(1) of the Crimes Act 1900. You are also convicted of the offence of assault police officer pursuant to s 58 of the Crimes Act 1900, the offence of cause grievous bodily harm to a police officer pursuant to s 60(3) of the Crimes Act 1900, and you are convicted of the offence of assault police officer causing actual bodily harm pursuant to s 60(2) of the Crimes Act 1900. 2. I have certified that I have taken into account the three offences on the Form 1 in arriving at an appropriate sentence. 3. The sentence I impose pursuant to s 53A of the C(SP)A is a non-parole period of 15 months to date from 9 June 2016 to 8 September 2017. 4. I order a further term of imprisonment of 15 months dating from 9 September 2017 and expiring on 8 December 2018. 5. The total term will be 2 years and 6 months. 6. Your parole eligibility date is 8 September 2017.
I further note that the following back-up charges pursuant to the s 166 Certificate being court attendance notices H 55733776 - sequences 7, 8, 2 and 3, are withdrawn and dismissed.
I direct that upon your release to parole, that you accept the supervision of Community Corrections and follow any direction that you are given that you attend rehabilitative services for alcohol abuse problems.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 June 2016

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