Sentence
165 I agree with Justice Howie's reasons and orders in relation to the appellant's appeal against sentence.
166 STUDDERT J: I have read the judgment of McColl JA in draft form, and I agree that the appeal against conviction should be dismissed for the reasons stated by her Honour.
167 I agree that the sentences imposed should be quashed and that the appellant should be resentenced as proposed by Howie J for the reasons which his Honour has expressed.
168 HOWIE J: I have read in draft the judgment of McColl JA and I agree, for the reasons given by her Honour, that the appeal against conviction should be dismissed.
169 The appellant seeks leave to appeal against the severity of the sentence imposed upon him. The submission made on behalf of the appellant is that the initial starting point chosen by her Honour before she applied certain discounts, to which reference will be made shortly, was excessive. It is unnecessary for me to again set out the facts upon which the applicant was to be sentenced and I gratefully adopt the summary of the Crown case contained in the judgment of McColl JA.
170 The appellant was to be sentenced for three offences, all arising from the one incident of criminality. They were as follows: maliciously inflict grievous bodily harm contrary to s 35 of the Crimes Act, the maximum penalty being 7 years imprisonment; assault contrary to s 61, maximum 2 years imprisonment; use an offensive weapon with intent to avoid his apprehension contrary to s 33B, maximum 12 years imprisonment. In addition the appellant asked her Honour to take into account three related matters arising from his misuse of a firearm and an offence of carrying a cutting weapon. As her Honour noted, the criminality of the three matters on the Form 1 relating to his misuse of a firearm was substantially reflected in the offence under s 33B.
171 In respect of the s 61 offence, the fourth count in the indictment, her Honour sentenced the appellant to a fixed term of 10 months to date from 22 June 2002 and which expired on 21 April 2003. In respect of the s 35 offence, the third count on the indictment, the appellant was sentenced to imprisonment for 3 years to date from 22 February 2003 with a non-parole period of 2 years and 3 months expiring on 21 May 2005. In respect of the s 33B offence, the fourth count, and taking into account the matters on the Form 1, the appellant was sentenced to imprisonment for 4 years to date from 22 February 2005 with a non-parole period of 2 years and 4 months to expire on 21 June 2007.
172 The overall sentence was thus one of 6 years and 8 months imprisonment with an effective non-parole period of 5 years, both dating from 22 June 2002. The date upon which the appellant will be eligible to be released to parole is 21 June 2007.
173 It is clear that her Honour approached the construction of the sentence in accordance with the practice adopted in this State following the decision in Pearce v The Queen (1998) 194 CLR 610. Her Honour determined what she considered to be the appropriate sentence for each offence taken separately and then, having considered the totality of the criminality involved, made orders providing for partial concurrence of the three sentences. The appellant submits that each sentence imposed exceeded that which was required and the total length of the overall sentence was excessive.
174 There were two matters taken into account by the sentencing judge that resulted in a discount being applied to the sentences that might otherwise have been appropriate for the offences for which the appellant was convicted. The first was the fact that the appellant had pleaded guilty to the s 33B offence at the commencement of the trial and was remorseful in respect of his conduct toward the police that gave rise to that offence.
175 The second matter was the assistance that the appellant had provided while in custody to police and the prosecuting authorities in respect of the commission of a very serious offence by other prison inmates. Although this was not a case where the appellant had given an undertaking to give evidence for the prosecution, material placed before her Honour indicated that it was expected that he would do so. Her Honour determined that, as a result of that assistance, there should be a discount of 40 per cent in respect of the sentences for the trial matters. That assistance and the plea of guilty resulted in a discount of 50 per cent for the s 33B offence.
176 There is no challenge to those discounts by the appellant: nor could there be. On the basis that this Court might be called upon to re-sentence the appellant, the sealed envelope that was before her Honour was tendered before us. The Crown, having read the material at the Court's invitation, declined to make any submission as to the quantum of the discount.
178 The material placed before her Honour indicated that the appellant was not seeking to be placed on protection but wanted to be classified to a minimum security prison outside the Sydney Metropolitan Area. Apparently the Crime Commission, the body investigating the offence for which assistance had been given, had promised him that he would be sent to some such institution. Her Honour was initially asked to make recommendations for his protection in prison pending sentence but understood that shortly thereafter he was to be transferred to a prison for protected prisoners. At that stage Junee Correctional Centre was in contemplation. I do not believe that in those circumstances a discount of the order as that given by her Honour was justified, notwithstanding the value of the information and the seriousness of the allegation, in respect of which the assistance had been given.
179 The material raises once again the issue of what mitigation of a sentence should be made on the basis that the offender might spend all or some of his sentence in protective custody. The matter has been recently considered in R v Totten [2003] NSWCCA 207 and R v Durocher-Yvon [2003] NSWCCA 299. It can no longer be assumed that a prisoner, by reason of the fact that he will serve his sentence on protection, will find prison life more difficult or onerous than other prisoners in the general prison population or that the prisoner will be deprived of amenities or opportunities for self improvement courses and education. The present is another instance where a sentencing judge has presumably taken into account in favour of the offender the fact that he will serve his sentence under the harsh conditions and deprivations of protective custody, but that has not proved to be the case. It is an example of the difficulty of a sentencing court taking into account possible executive or administrative action in respect of a prisoner's custody when predicting how a sentence will be served. Although in Durocher-Yvon the Court indicated that a sentencing judge was entitled to assume that an informer would find himself in strict protection for the best part, if not the whole, of his sentence, that assumption would have proved to be erroneous in the present case.
180 As was recognised in Totten, the court is placed in a difficult position. On the one hand, the sentencer should take into account the conditions of the prisoner's custody where it appears that they will be unduly onerous because of some matter particular to that prisoner. This requires that, at the time of sentence, the court make some prediction about the nature of the custody that will be endured by the prisoner. On the other hand, the courts should now be aware that assumptions or predictions, which have been made in the past about the nature of an offender's custody because, for example, the offender has given assistance to the authorities, no longer hold good. But the vagaries of prison life are such that it could never be confidently assumed or predicted that a prisoner will serve the whole of his sentence in any particular type of custodial arrangement.
181 It is unnecessary in the present case to do more than refer to this conundrum without trying to solve it, but if this Court is required to re-sentence the appellant, it cannot ignore the fact that he is not apparently serving his sentence under any more onerous conditions than any other prisoner in the general population and is unlikely in the future to do so. To the contrary, we are asked to take into account the progress he has made in prison by undertaking courses to address those problems that might have given rise to the present offences. Although the assistance proffered, and so far given, is of considerable benefit to the community in relation to a very serious offence, the Court cannot overlook the fact that the detriment suffered by the prisoner as a result is not as significant as might have been assumed in the past or with other prisoners.
182 A further matter that arises in this regard is the fact that the prisoner has never been required to give a formal undertaking as to future assistance. However, he gave evidence before Judge Hock that, at the date of sentence, he still intended to assist the authorities and that this assistance would involve his giving sworn evidence at a trial. I would be prepared to accept, as her Honour did, that this was in effect an undertaking to give evidence, but with respect I do not think that it is a satisfactory way of dealing with the matter. It is of some concern to me that a discount of 40 per cent was given, part of which no doubt was for future assistance, but the prosecuting authorities did not seek to have the appellant give an undertaking as to the evidence he was prepared to give. It is not clear whether the appellant understands that a failure to give future assistance by way of evidence in accordance with the statements he has made, would result in the loss of some part of the discount he has been granted by the trial judge.
183 Be that as it may, the appellant's challenge is principally to the starting point that her Honour chose before applying those discounts. The sentence for the assault, before the application of the discount for assistance, was imprisonment for about 16 months; that for the s 35 offence was imprisonment for 5 years; and that for the s 33B offence imprisonment for 8 years. The written submissions on behalf of the appellant contend that her Honour sentenced the respondent to a total sentence of over 14 years and 4 months against an overall maximum penalty for the three offences of 21 years. This calculation, however, overlooks the fact that there was an overlap of five months between the sentences by reason of them being made only partially cumulative, so that the overall undiscounted sentence was, therefore, one of 13 years and 11 months.
184 Her Honour appropriately described the offences as "extremely serious". She noted that the injury to Ms Miner was a very painful one and resulted in her requiring the aid of a walking stick for about 7 months after the attack. There was no evidence as to how that injury was inflicted but it required a significant amount of force being applied to the victim's back. The jury's verdict meant that the appellant had applied that force in circumstances when the victim was unable to ward off the blow or otherwise protect herself. Even if one assumes that the injury was inflicted recklessly rather than intentionally, it was still a serious instance of the offence notwithstanding the appellant's intoxicated state. By the date of the sentencing proceedings the victim had returned to Canada and there was no victim impact statement before the court as to the state of her injury at that time.
185 Although the s 61 offence did not involve any physical touching of the victim, it was a grave example of an assault because it involved a significant threat of violence to the victim for a not insignificant period of time. Although the "hunting" of the victim was in all probabilities merely intended to scare her, there was no doubt that it did so to a very substantial degree at a time when she was suffering from her painful back injury.
186 It is unnecessary to emphasise once again the serious nature of the s 33B offence or to refer to decisions of this Court that have emphasised the importance of general deterrence when sentencing for offences directed at police officers who are simply carrying out their duties. The offence was aggravated by the fact that, as a result of the offence, one of the officers suffered from a Post Trauma Distress Disorder that left him permanently disabled so far as his police duties were concerned. Her Honour described this as "catastrophic" for the officer.
187 It was clearly a serious example of the offence notwithstanding that the firearm could not be discharged. The officer was obviously not aware of that fact and the rifle was pointed at him for a significant period. The officer was placed in the highly stressful position of being confronted with the possibility of having to shoot the appellant in order to defend himself from what he perceived as a real and present danger to himself. It must be every police officer's nightmare that he or she will attend a domestic disturbance and find one of the occupants brandishing a firearm in his or her direction. Persons who put police officers in that position must expect the courts to react with severe sentences.
188 The appellant was aged 39 years at the date of sentence. He has a criminal record from May 1985 for firearms offences and was sentenced in 1991 to imprisonment for 3 months. The sentencing judge noted that this sentence did nothing to deter the appellant from further offending by the misuse of firearms and that specific deterrence was a relevant sentencing consideration. There was also a breach of a domestic violence order in 1991 for which the appellant was placed on a bond. However, as her Honour noted, otherwise his record is of little relevance and she assessed the appellant's prospects for rehabilitation as "reasonable".
189 There was a pre-sentence report before the sentencing judge. It indicated that a person, who had previously been in a de facto relationship with the appellant, stated that he had never displayed violence toward her and she was surprised by the commission of the offences. Under the heading "Factors relating to offending" was the following: