REGINA v. KING [1999] NSWCCA 16

GREG JAMES, J: 1 This appeal is brought by the Director of Public Prosecutions against a sentence of 12 months penal servitude comprising a minimum term of six months commencing on 2 October 1998 and expiring in a little under a month's time, and an additional term of six months to commence on 2 April 1999. That sentence was imposed by his Honour Judge Taylor in the District Court in consequence of the respondent having been convicted of the offence under s.33B of the Crimes Act 1990 of use offensive instrument to prevent lawful apprehension after a plea of not guilty at trial. 2 That offence is punishable by a maximum penalty of penal servitude for 12 years. The offence was committed on 1 December 1997 and subsequently, until his incarceration on 2 October 1998, the respondent had been on bail. 3 The sole ground asserted for the appeal in the notice of appeal which was given on 12 November 1998, that is, somewhat more than a month after the sentence had commenced, was, " On the ground that the said sentence is inadequate". No other particulars are given. 4 The Criminal Appeal Act 1912, by s.5D(1), confers on the Attorney General or the Director of Public Prosecutions a right to appeal "against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party" and provides that this court "may in its discretion vary the sentence and impose such sentences as to the said court may seem proper". 5 That provision and equivalents have been the subject of extensive jurisprudence, in particular, in Griffiths v. The Queen (1977) 137 CLR 293; Everett v. The Queen (1994) 181 CLR 295 (considering the Tasmanian equivalent which, however, requires a grant of leave to the Crown); and Malvaso v. The Queen (1989) 168 CLR 227 (involving the South Australian equivalent and applying Griffiths (supra)). In New South Wales, Regina v. Allpass (1994) 72 A. Crim. R. 561 and Regina v. Hallocoglu (1992) 29 NSWLR 67 both considered s.5D and in the latter, apropos of the ground here and the submissions asserted here, Hunt, CJ. at CL. said:- "A Crown appeal against inadequacy will not usually be allowed unless the judge has acted upon a wrong principle or upon a misunderstanding or a wrong assessment of the evidence. Such an error may be demonstrated by the sentence itself, where it is not merely inadequate but manifestly so. In the absence of a well documented mistake, the discretion of the sentencing judge will be interfered with only in a compelling case; it is not sufficient that this court would have imposed a more severe sentence: see, generally, Regina v. Tait (1979) 46 FLR 386 at 387-390; 24 ALR 473 at 476-477; Regina v. Holder [1983] 3 NSWLR 245 at 252-256; Regina v. Dodd (at 353)." 6 Grove and Sharpe, JJ. agreed with his Honour's reasons. 7 The individual discretion reposed in a sentencing judge is specifically noted in the summary of principles set out in point form in the judgment of the court in Allpass (supra) at 562-563. None of this jurisprudence supports the proposition that a sentence appeal will be allowed where the sentence is simply, in the opinion of the appellate judges, inadequate. 8 There needs to be shown some such error of principle or fact as meet the necessary criteria for appellate correction of a discretionary judgment: Everett (supra), Malvaso (supra), Griffiths (supra), Cranssen v. The Queen (1936) 55 CLR 509 at 519-520 and the particular necessity for intervention in the instant case. Caution is noted by King, CJ. in The Queen v. Osenkowski (1982) 30 SASR 212 at 212-213:- "The sentence was undoubtedly less than the standard which has become established in this court for this type of offence. The question is whether it is an appropriate case for interference by this court. It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. 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." 9 These remarks have often been commended on appeal. 10 Where the case involves peculiar circumstances or circumstances peculiar to a respondent such that the sentence necessarily reflects elements from which the extraction of some general principle of guidance for other cases is unlikely, questions of the court's discretion to entertain the appeal or, if the appeal is entertained, to interfere with the sentence in the upshot, arise:, Regina v. Hayes (1987) 29 A. Crim. R. 452 at 470-471. Nonetheless, if there has been such an error of principle, it is this court's duty to intervene, subject to a recognition of the discretion to stay its hand in an appropriate case, eg. to promote the application of a proper sentencing goal in a particular case, eg. Regina v. Lansdell (CCA, unreported 25 May 1996). 11 Here, the Crown contends that his Honour's sentence was manifestly inadequate as failing to reflect the objective gravity of the offender's conduct, having regard to the necessity, in the light of the respondent's appalling prior record of assaults on police when drunk and his having been on a recognizance at the time of the commission of the instant offence, to impose a sentence which provides sufficiently for personal deterrence and provides sufficiently for general deterrence. 12 It is submitted the sentence breached the principle requiring it to pay sufficient regard to community protection by reflecting general deterrence. In this regard the Crown has submitted that offences against s.33B are regarded by this court extremely seriously and that it is incumbent upon the court to show support for police officers who undertake a difficult, dangerous and usually thankless task: Regina v. Hamilton (1993) 66 A. Crim. R. 575 at 581 per Gleeson, CJ. 13 To support the submission that the public interest demanded more regard to deterrence it was submitted that the respondent's criminal history was such as to show that the instant offence was not an uncharacteristic aberration but manifested a continuing attitude of disobedience of the law such that a more severe penalty was warranted in order to accord with values of retribution, deterrence and protection of society (see Veen v. The Queen (No. 2) (1988) 164 CLR 465 at 477). The Crown has drawn our attention to those cases dealing with the aggravating feature of the commission of the offence whilst on a recognizance for an offence of a similar nature and the general statistics which indicate that the sentence received by this respondent in these circumstances is not in accord with the bulk of sentences passed in respect of this crime according to the statistics provided by the Judicial Commission of New South Wales. Beyond this I do not regard the statistical material as of any assistance. 14 The Crown's general submission needs to be examined in the light of the particular circumstances of the case. His Honour found the facts surrounding the offence to be:- "On Monday 1 December 1997, police went to Langley Crescent at Blackett in response to a radio message they had received. When police arrived there was some uncertainty as to which premises they ought to approach. The offender was seen on a grassed area near his own premises walking around in what appeared to be in circles and he was saying words to the effect of, 'when I find my axe I will attack ...' certain people and he was referring to the man who earlier in the evening had presented a shotgun to his head. He said that he would not allow people to get away with that and he was walking around looking for his axe. The axe was tendered in evidence and it was a, what is generally described as a tomahawk and police found it and secured it. Police noticed at the time that he was perspiring heavily, he was unsteady on his feet and it was easy enough to tell that he was significantly affected by alcohol. The offender was trying to confront the people in Langley Crescent and the police were talking to him and it became apparent to the offender that the police were not going to do much in support of his allegation. The police evidence was fairly clear and that was that they were very interested in calming him down and trying to resolve the issue without further action on their part. At this point the police acted with great sensitivity and managed to control the offender and he walked back to his house and it looked at that point that the police would not need to take any further action. However, when he went back into his house he went up onto a little porch and started shouting out again and police formed the view that they would need to arrest him for a breach of the peace to control the situation. This was particularly so as some police heard him say that the police would have to go soon and he intended to burn the Langley Crescent house down. And he kept on saying that no-one pointed a shotgun at him and would get away with it. At that point the police realised that it was necessary to apprehend him given his state and persisting comments and aggression. They entered the offender's premises through a gate. The offender tried to resist them by pushing against the gate. The police were successful and once inside the offender picked up a U-shaped shiny metal object and began to wave it at police. He threatened police. He lost control of the metal object and picked up another bigger bar and started swinging it around he hit Constable Hughes on the right hand. He received a laceration which was later attended to at hospital. The police rushed him with their batons and struck him around the lower limbs and were able to apprehend him. At that point one of his neighbours came up and said that she would lock his house and look after his pets and that seemed to calm him down. They then took him to Mount Druitt police station. He was not interviewed there because of his state of intoxication." 15 His Honour referred to the special features of intoxication in the case in accordance with authority. (See Regina v. Coleman (1990) 19 NSWLR 467; (1990) 47 A. Crim. R. 306 at 327 per Hunt, CJ. At CL., with whom Finlay and Allen. JJ. agreed), noting that the respondent had drunk some sixty cans of beer, was "as drunk as a skunk" and claimed the moral high ground when asserting he had been assaulted with a shotgun as a result of attempting to discharge what he saw as his social responsibilities by confronting the drug users who were creating a public danger with discarded syringes. His Honour held the respondent became frustrated when, rather than deal with the cause of his complaint, the police (as they had to do) sought to deal with his method of resolving it and in his drunkenness and frustration (but with the necessary intent for the offence) he resisted them. The judge found:- "So what you have then is a case where the offender was very aggressive, he was very drunk. It must have been quite a frightening situation even for experienced police. You never know what someone is going to do in those circumstances. They overcame him after a violent struggle with him, by virtue of their numbers and use of their batons." 16 The offender has a significant criminal history. He has been to gaol before for alcohol related driving offences. His Honour correctly held the offence was seriously anti-social and that the respondent had a history of alcohol related, serious anti-social behaviour disregarding previous sentencing options including the current recognizance. 17 His Honour referred to the level of culpability in his remarks on the general seriousness of the crimes under s.33B and the particular offence of the respondent, and referred to matters of general and personal deterrence. He plainly recognised in his remarks the objective seriousness of the offence and the respondent's previous record. He held these circumstances required a full-time custodial sentence but appears to have recognised that in relation to the respondent's drink driving offences, a full-time gaol sentence had resulted in effective personal deterrence and a change of behaviour by way of apparently refraining from driving if not drinking, although this was not expressly stated by his Honour. The evidence pointed to compliance with supervising probation and parole requirements nor was this challenged below. 18 His Honour held:- "The objective seriousness of the matter, the need for general deterrence, the aggravating circumstances I have referred to require that a full-time custodial sentence be imposed. However, there are subjective factors that amount to special circumstances that I will refer to and the court should fix a sentence which does not crush this man but recognises the seriousness of what he has done and gives him a period under supervision where hopefully with some assistance he can learn to control his anger, particularly when he becomes intoxicated." 19 His Honour then adverted to the respondent's subjective circumstances, noting his hard life, his crippling amputation and its severe effects on him. The evidence as to these matters and as to the respondent's circumstances painted a picture which might have commanded sympathy, but it was necessary that his Honour did not allow subjective considerations to overcome his appreciation of the seriousness of the crime in the context of the repeated anti-social behaviour. I note that even though it would be obvious that full-time custody would be more onerous for such an offender, his Honour did not expressly afford that consideration much regard, no doubt because he had in mind that all other reasonably available sentencing options appeared to have been tried without success. 20 His Honour was concerned to achieve rehabilitation and punishment by trying to break the cycle again by imposing a period of imprisonment sufficient to achieve that effect. He was encouraged to try to do this by the results of the previous imprisonment for the drink driving offences and sought to repeat what he considered had been achieved in this different context by imposing a short period in custody with an attendant period of conditional liberty under supervision. This would accord with principle in the appropriate particular case, eg. Regina v Lansdell (supra). 21 The submissions of the respondent suggest that this is such a case, but in my view his Honour erroneously underweighed the necessity to denounce the offender's conduct to serve the purposes of general deterrence and the sentence is manifestly inadequate. Notwithstanding the custodial portion of the sentence has almost been served and the notice of appeal has been filed after such a time as here (see the remarks of Street, CJ. in Hayes (supra)), and taking into account the other discretionary considerations advanced, I do not see any sufficient basis in this case to refrain from intervention. 22 There are other problems with the sentence. Regrettably, in this case, the trial judge did not expressly categorise any of the matters he referred to as "special circumstances", as required by s.5 of the Sentencing Act 1989 for the components of the sentence to diverge from the statutory proportions, otherwise than by reference to "subjective factors". This does not accord with the principles in Bugmy v. The Queen (1990) 169 CLR 525 and his Honour did not express his reasons as to why the sentence required a lengthier additional term. 23 Further, his Honour is recorded as having directed the release of the prisoner on parole on 1 October 1999, ie., one year, not six months, after sentence. This may well be some form of inadvertent mistake, but it does not accord with his Honour's otherwise stated intention. 24 His Honour directed supervision on release under Form 1 of Schedule 1 of the Sentencing Regulation 1989. His Honour was no doubt concerned to apply ss.24 and 27(1) and (3) of the Sentencing Act of 1989 and Regulations 6, 10 and 11 of the Sentencing (General) Regulation 1996 pursuant to which Form 2 not Form 1 is the relevant form containing the relevant conditions for supervised release, which should have appropriately included a condition that the offender accept such counselling, guidance and treatment for his alcohol dependency as is reasonably required of him by the Probation and Parole officer, to accord with his Honour's intention. 25 Even absent such errors, I regard this as an appropriate case for the court to intervene, as I have said. I bear in mind in considering the appropriate sentence, as I have in considering the discretionary aspects of the Crown appeal, the double jeopardy consideration arising in the Crown appeals; the matters I have earlier referred to, noted in Hayes (supra); the imminent expiry of the original custodial period of the sentence; the special facts of the day's events; the offender's medical and physical problems; and the sentencer's emphasis on potential rehabilitation; further, that any increase we impose should, in accord with general principle, result in a sentence towards the bottom of the range so that in the upshot and considering the breadth of the circumstances by which more culpable offences under s.33B might be committed, such an increase should not result in a sentence as long as others, but should adequately reflect the community concern that there be a sufficient appreciation of general deterrence yet not defeat the expectation of rehabilitation in which the community also has a real interest as part of the goal of community protection. 26 I would propose that to correct the errors below and to pass a sentence which affords an opportunity for rehabilitation and supervision, which overall reflects a sufficient denunciation of this conduct to the community and seeks to serve the goal of protecting it by incorporating elements of personal and general deterrence, the appeal be upheld, the sentence quashed and in lieu thereof the respondent be sentenced to penal servitude for two years, six months comprising a minimum term of 12 months to date from 2 October 1998 and expiring on 1 October 1999, and an additional term of 18 months to date from 2 October 1999 and expiring on 1 April 2001, that it be ordered he be released to parole accordingly, subject to supervision pursuant to the terms and conditions prescribed by the regulations by Form 2 to the Sentencing (General) Regulations 1996. 27 I note that the special circumstances which mind me to extend the additional term include the respondent's alcoholism, his other physical disabilities and the desirability of lengthy supervision in the community interest to try to avoid any repetition of the offensive conduct. I further note that breach of the supervision provisions could produce a return to custody for up to the duration of whole sentence. 28 GROVE, J: I agree with Justice Greg James. 29 DUNFORD, J: I also agree. 30 GROVE, J: The orders of the court therefore will be as proposed by Justice Greg James.

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