A. No.
That answer gave rise to the sixth count on the indictment being the second charge of perjury.
13 The offences committed by the applicant did not come to light until the events of 22 July 1990 were the subject of an inquiry at the Royal Commission into the New South Wales Police Service when an indemnity was provided to Trevor Haken. He gave evidence before the Commission and admitted that police had assaulted Stockman and Brown. As a result of his evidence, in 1996 the matter was referred to police for investigation and on 20 March 2000 warrants were issued for the arrest of the applicant. He voluntarily surrendered himself to police on 18 April 2000. Evidence was placed before the sentencing judge as to the difficulties and delays in the investigation of the matter before charges were laid.
14 As a result of the investigation of this matter a number of police officers were charged. Two, who were convicted after trial of offences similar to that of the applicant and ultimately sentenced by this Court, were Ms Fish (who was at the time of the offence married to the applicant) and Mr Swan, see R v Fish and Swan [2002] NSWCCA 196. Fish was convicted by a jury of one count of perjury and sentenced after a successful appeal to imprisonment for 20 months with a non-parole period of 6 months. Swan was charged with two counts of perjury and was sentenced on appeal to 22 months with a non-parole period of 14 months. I will return to consider the effect of those sentences on this application shortly.
15 The applicant gave evidence before Acting Judge Stewart. His account of the beating of the young men at the police station was to the effect that it was instigated by senior officers, including Haken, after he returned to the police station. He said that he was angry over the violent conduct of the young men earlier that evening and voluntarily joined in the assaults upon them. He believed that Stockman and Brown were the main instigators of the original brawl. He told the court that he believed that the incident was a result of pressures of work and the fact that he was drinking too much alcohol at the time. However, he described his conduct as "shameful". He said that he committed perjury "to protect his job".
16 The applicant was dismissed from the police force in 1992 after a violent attack upon another prisoner. He was charged with assault and placed on a good behaviour bond. The sentencing judge expressly stated that he was not taking that matter into account in determining the sentences he was to impose. That is not a view that I would have taken of the further offending but the applicant has received the advantage of that approach. Otherwise the applicant has no criminal record and might generally be regarded as a worthwhile member of the community since his dismissal from the police service.
17 A psychological report, tendered on behalf of the applicant, indicated that he was not suffering from any psychological or psychiatric disorder nor was he displaying any significant psychopathy. He was suffering some lung disease as a result of smoking and experiences shortness of breath.
18 I can see no error in his Honour's remarks on sentence. He patently took into account all matters that were relevant to the determination of the appropriate sentence. The first four grounds relied upon are to a significant extent merely submissions upon which it is argued that the overall sentence is manifestly excessive. In my view that contention cannot succeed. The offences were all of the most serious nature. The submission was made that there were particular circumstances present to justify a sentence other than full-time custody. With respect that submission is completely unrealistic.
19 The affray must be toward the topmost rung of offences of its type. A number of unarmed young men were savagely and systematically beaten by police officers wielding batons. This was to be punishment inflicted over and above the criminal sanctions that were later to be imposed by courts. I reject the submission that the offences were provoked by the conduct of the young men to such an extent that the criminality was significantly mitigated. This was no spur of the moment retaliation or an isolated loss of temper after which there was immediate contrition. In fact there was no contrition until the applicant faced sentencing by a court. I can see little mitigation arising from the fact that the applicant was suffering from stress at the time and was not coping as a police officer.
20 The perjury offences were also serious, the evidence being given in a criminal prosecution by a police officer, see Regina v Chapman (unreported, NSWCCA, 21 May 1998). Although related to the criminal violence carried out on 22 July 1990, they were separate and distinct criminal acts committed in 1991 and then again in 1993. As was emphasised by this Court in R v Fish and Swan general deterrence was an important factor in sentencing for these offences. They themselves clearly warranted a full-time gaol sentence.
21 The delay in the prosecution was a matter to be taken into account, but much of that delay was caused by the secretive nature of the offences committed by the applicant and to some extent by the fact that the applicant was intending to defend the charges. There was in my view no significant disadvantage suffered by the applicant because of that delay. The trial judge reduced the sentence by 4 months in order to reflect that delay and in my view that was an adequate recognition of the effects of delay upon the applicant. That was, I might add, the view taken by the Court of Criminal Appeal in the sentencing of Ms Fish and Mr Swan.
22 The fact that the applicant had been rehabilitated meant that the sentence did not have to reflect specific deterrence nor did it have to seek to encourage or assist him in overcoming those matters which underlay the commission of the offences. It did not mean that he should not be appropriately punished for what he did. Denunciation of the conduct of a police officer using gratuitous violence and then lying on oath about it is a primary factor in the determination of the punishment for these offences. In so far as the applicant has relied in this Court upon the decision of R v Todd (1982) 2 NSWLR 517 and statements made by the then Chief Justice, and which have been referred to in later cases, I would indicate that I do not believe that these offences were stale, in the use of that term in the decision of Todd
23 Reliance was placed upon the sentences imposed by this Court on Fish and Swan. It is to be noted that they were sentenced only for offences of perjury and not for any participation in the conduct at the Kings Cross police station. However, this Court determined that the sentence imposed upon Swan was excessive by reason of the fact that the sentences for the two counts of perjury were made cumulative. Bell J who gave the principal judgment of the Court stated:
180. The offences were separated by a substantial interval of some two and a half years. However, they were linked in that they arose out of the same set of circumstances. I am persuaded that the sentencing judge erred in determining to make the two sentences wholly consecutive. In the result I am persuaded that the overall sentence imposed in respect of the two offences is excessive.
24 There is little significance in my view to the outcome of this application in the sentence imposed upon Fish. The non-parole period specified in that case was a reflection of the Court's view of the fact that she had been a victim of domestic violence by the applicant and her offence had to be seen in that light. While Swan was a more senior officer, that in my view has little relevance in the present case in light of the applicant's significant involvement in the assaults at the police station. Swan also received significant mitigation by reason of his service in the Vietnam conflict and the effect of that upon his mental health. He was also suffering from heart disease. In my view there can be no legitimate grievance held by the applicant in respect of the sentences imposed upon these offenders, notwithstanding that, unlike those persons, the applicant pleaded guilty.
25 Although the sentence in the present case was erroneous in that his Honour made the sentences imposed for perjury cumulative, in my view he was also in error in making the sentence for the affray concurrent with those sentences. The structure of the sentences imposed upon the applicant fails to reflect the seriousness of the offences that occurred at Kings Cross police station. The sentences for perjury could not, in my opinion, comprehend the criminality involved in the offences contained in the first four counts on the indictment. I reject the submission that the offences represented a single course of conduct and would be appropriately dealt with by concurrent sentences.
26 I would maintain the overall sentence of 3½ years but restructure the sentences so that the sentences for the perjury offences would be reduced and made partly cumulative upon the sentence for affray and partly cumulative upon the sentence for affray and partly cumulative as between themselves.
27 As against a head sentence of 3½ years a non-parole period of 3 years is manifestly excessive. His Honour seems to have failed to take into account the result of the cumulation of sentences. There will almost invariably be a finding of special circumstances required when cumulating non-parole periods, otherwise the consequence will be that the normal proportion between head sentence and parole period will be inappropriately reduced.
28 There are no special circumstances in the present case save for the fact that sentences for perjury are to be served cumulatively upon the other sentences. The simple fact that it is the applicant's first custodial sentence or that he will serve that sentence in protection does not necessarily require a finding that special circumstances exist. It is my view that there is no need for the applicant to have a longer than normal parole period and there is no other matter that would justify a reduction in the non-parole period other than a slight decrease from the statutory proportion by reason of the fact that the applicant was subjected to a delay in the prosecution of this matter. The decrease given to the applicant is a matter by way of some recognition of the effect of that delay upon him.
29 I propose that the following orders be made: