19 The learned judge also had what I would describe as very insightful evidence from David Edward Bracks, a man aged fifty four years, who worked as a volunteer community worker in and around the local aboriginal community. His family had lived in the district for over a century and, although he himself lived away for a time, he had a lifetime of association with that community. Mr Bracks went to see Sergeant Davidson about a week after the offence. He gave evidence that
"I apologized from the community's point of view, that nobody wanted to see this happen, nor that nobody wished for any harm to him or to anyone else in the community, and that sometimes because of alcohol there is a madness that happens and that we are trying to address this, and it is a very difficult situation, and that I thought that these boys needed care and not necessarily strong prosecution, and they need welfare, they need people to talk to them and look after them."
20 Mr Bracks was acquainted with both respondents. As I have said, he gave considerable insightful evidence about the continuing tragedy in the community of unoccupied and consequently bored and vulnerable people, especially the youth.
21 Hickling is the youngest of ten children. His parents separated when he was born and they are both now deceased. He left school at the age of twelve and is unable to read or write. He commenced to abuse alcohol and drugs before reaching his teen years. Dr Roland, a psychologist, concluded that he had disorders of alcohol dependence and attention deficit hyperactivity with possible brain impairment.
22 Without elaborating the detail which is not in dispute, it is apparent that the circumstances of Hickling's upbringing and life have been in an environment or disadvantage, alcohol abuse and violence.
23 Hickling's youth has already been mentioned, but nevertheless he is the father of two children from two different mothers and it was said that he maintained contact. Mr Bracks had observed that in the community a huge amount of alcohol was consumed and that there was a lot of aggression particularly when alcohol was involved. He observed that there had not been a lot of guidance given about proper social behaviour and that promiscuous relationships were extremely common.
24 Avery is the fifth eldest of his mother's ten children and shares the same father with three of his siblings. Both of his parents were alcoholics and when he was a young child his mother's problems were such that he was taken away from her and placed in the care of an uncle. His father played no part in his upbringing. At the age of five he was treated with drugs for what was diagnosed as attention deficit hyperactivity disorder. He was expelled from school at the age of fifteen. At school he has taunted due to a speech impediment. This has later been identified as a congenital overgrowth syndrome, a symptom of which was an enlarged tongue and when he was aged seventeen there was surgical intervention to reduce the width of his tongue. The syndrome with which that is connected also caused complications with liver, kidney and pancreas. He has had remedial operations on both kidneys and eventually one was removed when he was very young. He has had a bowel operation to correct an abdominal wall defect. He was also subjected to surgery to correct hip and leg problems caused when he was struck by a car at a very young age.
25 He has also been seen by Dr Roland. He cannot read or write. He has poor impulse control and assessment places him in the borderline range of intelligence.
26 I have already observed that both respondents were drunk at the time of the offences, but both fit the profile of the observations of Wood J in R v Fernando 1992 70 A Crim R 58 (properly understood):
"While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the Court of the endemic presence of alcohol within aboriginal communities, and the grave social difficulties faced by those communities where poor self image, absence of education and work opportunity and other demoralizing factors have placed heavy stresses on them, forcing their resort to alcohol and compounding its worst effects".
27 The learned sentencing judge did not disguise his view that, despite the objectively serious offences, gaol was "the last possible place that one should send them to". It is plain that his view was that the wider community's interest would be best served by some attempt to address the deep rooted problems of these respondents and an attempt to do this could be undertaken in the course of parole but would be highly unlikely whilst they were members of the prison population.
28 The respondents were notified that the Director of Public Prosecutions was considering an appeal on 7 January 2004 approximately three weeks after sentence. However, the appeal notice was not signed for a further month until 10 February 2004. As already stated their respective release dates are now imminent. Despite the considerable weight that must attach to the subjective circumstances of these respondents, I reach an overall conclusion that the Crown's contention that the sentences were inadequate is made out. Nevertheless there remains a discretion in this Court to dismiss a Crown appeal. It is submitted that there are no discretionary matters which ought militate against the intervention of this Court but I would regard the circumstance that the respondents are at the threshold of freedom as such a matter. Even if the Court were to intervene, any increase would be modest and it is difficult to discern any practical purpose for so doing.
29 It is important in my view that sentences of full time custody were imposed in order to reflect the gravity of attacks upon a police officer honourably seeking to exercise his duty to maintain peace and order in the community. Such sentences were imposed but as the Crown has pointed out their effect was in each individual case less onerous than might appear. Nevertheless that conclusion can only be reached by analysis of the individual circumstances and as a matter of general deterrence the impositions were of value.
30 I reiterate my view that the sentences were inadequate, however in the exercise of the residual discretion of this Court I would in each case dismiss the Crown appeal.
31 HOWIE J: I agree. The sentences were, in my view, manifestly inadequate. In particular the comment by his Honour when he said, "I do not propose to particularly add to their misfortune as young men, who are spending more of their time in gaol than out" reflects an erroneous approach to sentencing for the particular offences before the Court.
32 The respondents, that is you two there, should understand that you were dealt with far too leniently by his Honour and that your behaviour was serious criminal conduct which required and justified a significant gaol sentence over and above what you were serving at the time and what you will serve before being released. You should not expect such leniency in the future, particularly in regard to any act of violence by yourself against any person and, in particular, police officers, and that is whether you are under the influence of alcohol or not.
33 I agree that the appeal should be dismissed.
34 NEWMAN AJ: I would also agree and add that I agree with the reasons given by the presiding Judge and by Howie J.
35 GROVE J: The orders of the Court, therefore, will be in each case the Crown appeal is dismissed.
36 The respondents can be removed.
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