R v Pearce 156 ALR 684

COUNSEL : Mr Mr Grogan (Crown) Mr J S Stratton (App) SOLICITORS : S.E O'Connor T A Murphy CATCHWORDS : Possess Offensive Weapon - Sentence excessive - Totality LEGISLATION CITED : Crimes Act 1900 CASES CITED: R v Pearce 156 ALR 684 DECISION : Leave granted; Appellant re-sentenced

1 DOWD J: The applicant was indicted before Freeman DCJ and a jury on 1 February 1999 for one count of possessing an offensive weapon with an intent to commit an indictable offence in breach of s 33B(a) of the Crimes Act 1900 ("the Act"), and three counts of use offensive implement with intent to commit an indictable offence pursuant to s 33B(a) of the Act. Both offences carry a maximum penalty of twelve years penal servitude. 2 The appellant pleaded not guilty to each count, and on 10 February 1999 he was found guilty of counts one to three and not guilty of count four. The applicant was sentenced to a minimum term of six years and an additional term of two years consisting on the first count of a fixed term of two years imprisonment to commence on 10 February 1999 and to expire on 9 February 2001. 3 On the second count of two years imprisonment was to commence on 10 February 2001 cumulative on that earlier two year sentence, and to expire on 9 February 2003, and on the third count cumulative on both of those offences a minimum term of two years imprisonment to commence on 10 February 2003 and to expire on 9 February 2005, and an additional term of two years to commence on 10 February 2005 and to expire on 9 February 2007. 4 The facts, shortly, were that on Sunday, 29 December 1996 the applicant approached a small fire which had been started by members of the Toshack family who were camping near the Wyangala Dam. The camp fire was ignited in an area between that family campsite and another family campsite where the applicant had pitched his tent. 5 The applicant asked a member of the first family if she minded if he sat near the fire. She indicated that she did mind. The applicant commenced asserting his right to sit near the fire, and was asked to leave by the husband of the woman. The applicant refused and became more intransigent. He then got into a brawl with two men and threw a punch and whacked one of them and the applicant left. 6 The applicant obtained a rifle from his car and pointed it at the head of one of the men and said to him, "How'd you like it if I blew your head off?" The appellant then pointed the gun at the genitals of the person and said, "How'd you like it if I blew them off." Some of the members of the Toshack family were able to disarm the applicant, and after repeatedly demanding his gun back the appellant drove through the campsite a number of times in an erratic and dangerous manner deliberately aiming his vehicle at two members of the group near the camp. By coincidence police were camped nearby and were able to observe the appellant's driving. He was arrested and charged with the subject offences. 7 The applicant's case was that whilst sitting with the woman at the fire he was told to "fuck off" by her husband, and that when he told this man not to sit in front of a child that man punched him. The applicant said that he could not remember anything until the police arrested him. 8 The applicant called two witnesses who gave evidence that the man punched the applicant when he was getting out of his chair. Their evidence was that the applicant after being punched went to get his rifle and drove his car doing "burn outs" and "donuts". 9 The applicant had drunk about sixteen stubbies of beer and a 750 millilitre bottle of bourbon. 10 The applicant submits that the sentence was manifestly excessive, and that Freeman DCJ erred in not giving sufficient weight to the principles of totality. On the issue of excessiveness the applicant has submitted that these offences were not in the worst category of offences, that the weapon was an air rifle and probably not loaded. And indeed the safety catch was on. It has been submitted that the worst class of an offence of this kind would be a person using or attempting to use a loaded firearm of some calibre to avoid arrest, or to commit a robbery. 11 The applicant has also submitted that Freeman DCJ gave insufficient weight to the subjective factors of the case, particularly the applicant's sad family history and alcohol problem, and that far too much emphasis was placed on the applicant's record. 12 It was also submitted on the question of totality that the offences arose out of the same incident, and as such concurrent sentences should be imposed. 13 The applicant also has had submitted on his behalf that his Honour erred on finding that there were no special circumstances within the meaning of s 5(2) of the Sentencing Act 1989. It has been submitted that his Honour should have found that there was a need for an extended period of supervision for the applicant, particularly given that his Honour made a finding that there was a need for supervision in relation to the applicant's alcoholic tendencies. 14 The applicant was married in 1968 and has two children from that marriage. He has quite a lengthy criminal record commencing in 1971 with an offence of goods in custody. 15 The applicant who is a carpenter by trade suffered a work related injury to his shoulder in around 1995 which prevented him from lifting for a year. He received some workers' compensation. 16 The applicant is seriously addicted to alcohol. He has however enrolled in a drug and alcohol programme at Bathurst Correctional Centre. 17 It is submitted by the Crown that the accumulation of sentences is high, but not outside the range that was available to his Honour. The difficulty about the finding of special circumstances, is that special circumstances is relative to the head sentence, and that if a head sentence is lowered then the relativity alters, and what may be adequate special circumstances as to one minimum sentence term is different for another. The Crown therefore opposes the application. 18 It seems to me that there was an error in his Honour's approach to the totality question. That is not just in the total sentence, but the totality of criminality involved in each of the sentences. Each offence quite correctly constitutes a separate offence, but being a separate offence does not mean that his Honour should not have looked at the relationship between the offences and the short compass of time involved and the criminality involved in the acts committed in that time. 19 It has been submitted on the applicant's behalf that the principles of totality were really not applied in the assessment of the totality principle, and I accept that submission. 20 It seems to me that in applying the principles in R v Pearce (1998) 156 ALR 684, or thereabouts, that one should look at each of the three offences and determine what should be the sentence one should fix for each of them, and look at the total sentence and structure a sentence reflecting that totality. It seems to me that if that occurs that there is then a requirement then to look at the question of special circumstances. 21 His Honour found that the two year period that was the additional term on the third count was the correct period. I agree with his Honour that two years is about right for the need to supervise, but of course if there is a reduction in the minimum term then, of course, that alters the relativity for s.5(2)of the Sentencing Act. 22 I conclude, in any event, that looking at the material that has been placed before us, that the applicant's movement towards rehabilitation warrants reflection in an additional term. 23 In my view each offence looked at separately, and looking at the maximum penalty that was available to his Honour of twelve years, that a proper sentence for each of the three offences should have been fixed at three years with a non parole period of two years three months. 24 It seems to me then looking at not only on the principles of totality, but applying the totality of criminality to these not unrelated offences, that the proper sentence which this Court should impose, as I am of the view that leave should be granted, and that another sentence less severe is warranted and should have been passed so as not to interfere with count one. 25 As I have indicated I would not interfere with the first count and leave that a two year penalty stand. Taking into account that the total of the three sentences I propose to reflect the totality of the criminality involved. The two year sentence on the first count would be from 10 February 1999 to 9 February 2001. That on the second count the appellant is convicted and a sentence of one year is imposed, commences cumulative upon the sentence on count one, commencing on 10 February 2001 and concluding on 9 February 2002. And on the third count he is convicted and sentenced to a period of three years commencing on 10 February 2002 and concluding on 9 February 2005 comprising a one year non parole period commencing on 10 February 2002 and concluding on 9 February 2003. From which date he is eligible for release to parole and to reflect special circumstances under the Crimes Sentencing Procedure Act 1999, I would impose an additional term of two years. On the third count commencing on 9 February 2003 to end on 10 February 2005. 26 HULME J: I agree with what his Honour has proposed and his Honour's reasons. The orders of the Court will be that as stated by Dowd J.

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