R v MADDEFORD No. SCCRM-01-17 [2001] SASC 38

1 DOYLE CJ. I would grant leave to the Director of Public Prosecutions to appeal against the sentence imposed by this Court, allow the appeal, set aside the sentence imposed, and substitute a sentence of imprisonment for seven years to be served on the completion of the sentence of six years' imprisonment already being served by the respondent. I would extend the respondent's non-parole period by four years, making a non-parole period of six years six months.

2 I agree with the reasons given by Williams J for so ordering. There is nothing that I wish to add to those reasons.

3 DUGGAN J. I would grant leave to the Director of Public Prosecutions and allow the appeal. I agree with the orders proposed by Williams J and his reasons for decision.

4 WILLIAMS J This is an application by the Director of Public Prosecutions for leave to appeal against sentence imposed by a Judge of this Court on 19 December 2000. In hearing this application, the Court required counsel to address all issues which would arise upon appeal as if leave had been granted.

5 Maddeford was sentenced by a Judge of this Court on 19 December 2000 for false imprisonment (a common law offence) and threatening life (contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA.) He had previously been found guilty of these offences on 24 November 2000 after a trial by Judge alone. The offences occurred in Court Room 2 of the Sir Samuel Way Building, Victoria Square, Adelaide on 9 September 1999 immediately after District Court Judge David had sentenced Maddeford for armed robbery and assault with intent to resist arrest committed on 8 August 1997. Judge David imposed a head sentence of imprisonment for six years with a non-parole period of two years six months. He declined to suspend the sentence. Maddeford at knifepoint then took a court reporter as hostage in the Court room with a view to avoiding being removed to gaol to commence service of that sentence.

6 Particulars of these offences of 9 September 1999 as shown in the information are that Maddeford:

"(i) ...unlawfully imprisoned Jacintya Gaye Gillespie and detained her for about 2 1/2 hours against her will.

(ii) ...without lawful excuse, threatened to kill Jacintya Gaye Gillespie, intending to arouse a fear that the threat was likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused."

7 In sentencing Maddeford for the two offences of 9 September 1999 which are the subject of the present application the sentencing Judge (exercising power under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) imposed one sentence of imprisonment for seven years cumulative upon the sentence of six years imposed in the District Court and extended the non-parole period by two years to a total of four years six months.

"1. The learned sentencing judge erred in imposing a sentence which was manifestly inadequate.

(a) In giving inappropriate weight to the factors personal to the respondent, in particular his mental illness.

(b) In imposing a non parole period which is so disproportionate to the head sentence as to shock the public conscience.

2. The sentence fails to maintain an adequate standard of punishment for "conduct which constitutes a serious attack on our justice system".

9 The Director's oral argument was essentially directed to the extension of the non-parole period by only two years, although the Director's application is with respect generally to the alleged inadequacy of the sentence. The language used in the Director's application adopts that used in the cases next mentioned.

10 In R v Osenkowski (1982) 30 SASR 212, King CJ at 213 identified the role of the Court with respect to prosecution appeals against sentence. His Honour said:

"The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

11 In Everett v R [1994] HCA 49; (1994) 181 CLR 295, the High Court identified the way in which the Court should approach applications by the Crown for leave to appeal against sentence. At 299 - 300 the Court said:

"An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a "court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified". In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen:

"an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons."

The reference to "matter of principle" in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting "error in point of principle".

12 It should be acknowledged at the outset that the sentence imposed by Judge David on 9 September 1999 was merciful. That sentence is not under challenge by the Director and Maddeford is entitled to retain the full benefit of that exercise of the sentencing discretion in the course of any reconsideration of the later sentence of 19 December 2000.

13 A sentence of six years for armed robbery upon a guilty plea is unremarkable, but the comparatively low non-parole period of two and a half years brought to account the offender's mental state which (according to Judge David) made Maddeford vulnerable to temptation. In addition, Judge David in fixing sentence said that he was influenced by the fact that Maddeford, then a first offender, was unlikely to offend again. This leniency (in which the non-parole period was 40 per cent of the head sentence) must be carefully preserved. It must not be eroded in the course of extending the non-parole period upon sentence for the later offences.

14 On 9 September 1999 Maddeford (who had previously been on bail) surrendered before Judge David to be sentenced. He took with him into the dock a knife (with a 115 millimetre stainless steel blade) which he had previously taped to his left arm before he left home. He also secreted in his pocket a canister of irritant gas or pepper spray called Reizgas (referred to by the prosecutor as "mace"). As Judge David completed his sentencing remarks and before he left the Court, Maddeford vaulted from the dock and approached the bench after producing the knife. He grabbed a Court reporter around her throat with his left arm and treating her as a hostage, pulled her to the ground from her workstation. With the knife in his hand he said to the assembled Court, "stand back or I'll kill her". Thereafter he kept saying "I'm not going to gaol" and waved the knife before the hostage's face. After initially overpowering the reporter, Maddeford dragged her nearer to the Judge's bench. For the next two and a half hours after clearing the public from the Court, police negotiated with Maddeford with assistance from Maddeford's family until he was eventually persuaded to release the hostage and to surrender himself. A dangerous situation was gradually diffused by police. A significant feature was the self-control and presence of mind on the part of the court reporter who, although restrained under difficult circumstances, was able to open up a conversation with her captor and gradually secured his confidence.

15 Maddeford was sentenced by Judge David at about 9.40 am and it was not until 2 pm that Maddeford was eventually led from the Court in custody so that normal business could proceed.

16 The reporter suffered minor physical injuries to the back and front of her neck and shoulders and bruising to her upper arms. The victim impact statement discloses more severe longer term damage.

17 In the sentencing remarks of 19 December 2000 the sentencing Judge acknowledged the particular importance of general deterrence in this instance but that does not appear to have been reflected in the sentence itself. Having regard to the seriousness of the crime and the primary purpose of the sentence one would expect the need for punishment as a deterrent to weigh heavily in the sentencing process so as to be evident upon the face of the non-parole period as well as in the head sentence. It appears in this instance, that matters personal to the appellant have been given a weighting in sentencing which has resulted in a non-parole period extension which is a relatively low period and also a low proportion of the head sentence. There was evidence before the sentencing Judge that Maddeford, although mentally competent to commit the offences in question, suffered from a longstanding mental disorder involving a state of anxiety which contributed to his state of distress and abnormal agitation on 9 September 1999. The sentencing Judge brought this fact to account and also some extraordinary difficulties which Maddeford was having in coping with prison life. Maddeford's contrition for his actions was also brought to account in a sentence described by the sentencing Judge as treating the offender "with some leniency with respect to the extension of the non-parole period."

(1) Although the sentencing Judge was unable to reach any conclusion as to what was in Maddeford's mind when he vaulted from the dock, his actions could not be treated as simply a spur of the moment decision. There was an element of premeditation in the way in which he prepared himself with a knife and spray can before he left home. His statement to the police negotiator and others as he held Ms Gillespie hostage showed that he was determined not to go to gaol. I accept the finding of the sentencing Judge who was unable to reach any firm conclusion either as to motive in concealing these items on his person or as to intention at the point when he leapt from the dock. Nevertheless, Maddeford's plan to avoid gaol very quickly crystallised after he seized the court reporter.

(2) Maddeford's use of a knife as a weapon is itself an aggravating factor.

(3) Maddeford's actions go considerably beyond momentary loss of self-control when the sentence was announced. He maintained his stand for two and a half hours.

(4) Maddeford randomly selected an innocent bystander as a hostage. As one might expect, the experience had a devastating effect upon the reporter despite her attempts to remain calm.

(5) The actions of Maddeford constitute a serious attack on the administration of the criminal justice system. Attacks upon warders and other law enforcement officers must attract particular consideration in the sentencing processes and in my opinion this should extend to the Court staff. The protection of those whose work places them at risk in the Court precinct requires that the sentence be severe.

(6) This was not the first occasion upon which Maddeford had resorted to violence and had terrorised members of the public in the commission of crime. His antecedent offending some two years previously also contained these features.

(7) Unlawful imprisonment is itself a serious crime and in this instance continued for an extended period . It is aggravated on this occasion by the distressing circumstances under which the court reporter was detained and physically restrained.

19 These matters individually and collectively are factors pointing to the need for a punishment to deter Maddeford and any other like minded person from this type of offending.

20 This case falls within the rare category where leave to appeal against sentence should be granted to the Crown.

21 The sentence in the present case is manifestly inadequate and the crime is an unusual one. This Court should now set a sentencing standard as guidance for courts in the future. Leave to appeal should be granted so that adequate sentencing standards be maintained.

22 There appears to be a clear error in principle disclosed in the sentencing process in this case. The non-parole period is so low and so disproportionate to the head sentence that community confidence in the criminal justice system would be undermined if the sentence is not corrected together with a firm statement as to how the Court may be expected to react to such a serious crime. General deterrence (almost inevitably resulting in a heavy sentence of imprisonment) will necessarily be the dominant factor affecting the construction of the sentence. All other matters listed in s 10 of the Criminal Law (Sentencing) Act must be considered (as the Act requires) but in cases such as the present, there will generally be only a limited scope for giving effect to matters personal to the offender when assessing the adequacy of the sentence. In cases of such serious crime, the non-parole period as well as the head sentence should reflect the punitive deterrent and prevention purposes of the Court's order (see R v Creed (1985) 37 SASR 566 at 568).

23 The Court's approach to the sentencing of persons suffering from mental disorder was dealt with by this Court recently. Speaking for the Court, Martin J in R v Wiskich (2000) 207 LSJS 431 at 457 said:

"The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender's thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced."

24 Maddeford's mental condition lies between the two extremes referred to by Martin J and his condition is to be recognised to some extent as a mitigating factor.

25 Counsel for Maddeford submitted that the Court should treat the present case as falling within the principle discussed in Mason-Stuart v R [1993] SASC 4322; (1993) 61 SASR 204 where King CJ at 205-206 discussed the approach to be taken when sentencing a person whose subjective moral responsibility is seriously diminished. In such a case the importance of general deterrence becomes considerably less than otherwise would be the case because the offender is not likely to be a useful example to others. (In that case, by reason of impaired intellect, the offender's capacity to appreciate the consequences of his actions was lessened). That is not the present case.

26 Maddeford has suffered from an obsessive compulsive disorder since about the age of sixteen. At first it caused him to repeat routine tasks (such as checking a locked door) over and over again. His obsession developed. It led him to wash his hands repeatedly to avoid germs. He was eventually affected to the point where his fears of the germs associated with physical contact with members of the public in the course of performing duties as a police constable became too much and he was transferred to other duties.

27 His obsession was recognised by Judge David as a factor which would make service of a gaol sentence more difficult. Maddeford's mental disorder also served to heighten his anxiety on the morning of 9 September 1999 when he was preparing himself for court in anticipation that he might be sent to prison for his armed robbery. According to Professor AC McFarlane, Maddeford at the time of sentencing would then have been "in a state of considerable distress and abnormal agitation". It is the effect of this state of anguish which must now be brought to account. Professor McFarlane considered that Maddeford was suicidal and consumed by despair and by his concern as to how he would be treated in prison and as to how he might combat the germs which he associated with this environment. His condition contributed in some measure to him seeking a way out of what he believed to lie ahead.

28 Despite all that Maddeford must have suffered, he acted with full knowledge of what he was doing. He may have been spurred on by his special fears which were fuelled by his disorder. Nevertheless, in terms of sentencing example, anyone in his anxious state must be firmly deterred from acting as he chose to do. It is necessary that anyone contemplating such action in the future should be aware of the severe penalty which such an offence will attract.

29 Maddeford's mental condition played some part in his offending but it cannot be allowed to play such a major part in the sentencing process as here occurred. To be weighed against a very serious crime is a mental disorder which had the effect of increasing Maddeford's distress and to this limited extent had a part to play in his offending. When the balance is struck with this mitigating factor the need for general deterrence as a feature of the non-parole period is still very strong.

30 Although the Director complains generally about the adequacy of the sentence, I do not consider that the head sentence of seven years imprisonment requires any adjustment. However, the non-parole period (involving an extension of two years upon that previously in force) places undue weight upon factors personal to the offender and gives too little weight to the need for general deterrence.

31 The appeal should be allowed for the purposes of enlarging the extension of the non-parole period. The sentence now under review should be varied accordingly.

32 In my view the head sentence of seven years (fixed by the sentencing Judge) is appropriate but the extension of the non-parole period should be substantially more than the two years as originally fixed. The extension of the non-parole period as fixed by the sentencing Judge should be varied by increasing it from two years to four years. I consider a non-parole period of four years to be still relatively modest and it brings to account with proper weighting, the factors personal to the offender which the sentencing Judge mentioned. There is a link between the offender's mental disorder and the offending. Imprisonment will be harder for Maddeford by virtue of him being a former police officer and also by reason of his mental condition. These are mitigating factors. The sentence which I propose includes some sentencing restraint which makes allowance for the double jeopardy to which Maddeford has been subject by reason of this appeal.

33 In the result, the head sentence of seven years should be confirmed to be served cumulatively upon the sentence of six years previously imposed. The non-parole period of two and a half years which was set on 9 September 1999 should be extended by four years to make the new non-parole period six years six months.