Regina v Webb [2004] NSWCCA 330 | Case summary

Wednesday 1 September 2004 REGINA v PAUL JOHN WEBB Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Freeman DCJ on 16 December 2003 in Sydney District Court. On that occasion the applicant pleaded guilty to counts of maliciously damaging property; possession of a prohibited firearm, namely a submachine gun and possession of a prohibited weapon namely handcuffs. The prescribed maximum penalties for each of those offences are five years imprisonment, fourteen years imprisonment and fourteen years imprisonment respectively. His Honour was also asked to, and took into account offences of possessing an unregistered firearm, not keeping a firearm safely and possessing ammunition without holding an appropriate licence. 2 On the first and third counts his Honour sentenced the applicant to fixed terms of imprisonment of twelve months and nine months respectively dating from 16 December 2003. On count 2 (taking into consideration the matters on Form 1) he imposed imprisonment for two years and eight months commencing upon that date with a non parole period of sixteen months expiring on 15 April 2005. The applicant was ordered released to parole on that date. 3 The applicant had been arrested on 17 December 2001 and was in custody until released to conditional bail on 26 April 2002. Thus the practical effect of his Honour's sentences and orders was that the applicant would serve twenty months and nine days in custody. 4 An agreed statement of facts was tendered to his Honour and he and this Court are dependent upon its content. The applicant also gave evidence in the sentencing proceedings. 5 In December 2001 the applicant was occupying premises with his then girlfriend Ms Hall. A daughter of Ms Hall from a previous relationship of hers was in the house. Ms Hall observed the applicant displaying signs of what his Honour later described as, in lay terms, paranoia. He had previously been a member of the Life and Death motorcycle gang and was concerned about repercussions because of his withdrawal from membership. He installed surveillance cameras in the premises. 6 During the night of 16 December 2001 Ms Hall retired to bed in a back room which she occupied with her daughter. When she retired the house was tidy and intact. 7 During the night neighbours heard sounds like the tapping of a hammer emanating from the house. An acquaintance of the applicant had also been in the house but he departed at about 4 am. 8 At about 7.30 or 8 am Ms Hall was awakened by the sound of disturbance which included walls of the premises being penetrated by a samurai sword wielded by the applicant. Upon leaving her room she saw the house in a state of ruin including damage to internal walls and items within the house. Ms Hall saw the applicant wielding a submachine gun (later the subject of the second count) but he was using it in effect as a club and he smashed televisions, video players, a fish tank and bathroom mirrors. Windows, tiles and floorboards were also destroyed. He told Ms Hall that he was looking for people hiding behind the walls. She retreated to the bedroom with her daughter. 9 By about 9.30 am a neighbour heard the voice of the applicant and he contacted the property manager of the house who arrived shortly thereafter. She noticed the clothesline torn out of the ground and heard glass being broken inside the house. Such sounds continued and she caused the police to be contacted. 10 A colleague of the property manager arrived shortly after 10 am and this person saw the applicant wielding a gun. He noticed the butt of this gun being used to break more windows. The applicant acceded to a request from the child not to break her things. 11 At about 10.45 am three uniformed police officers arrived. What happened thereafter is described in scant detail, namely: "Demands were made by the police of the (applicant). Due to fears alleged to have been held by the police in relation to the (applicant's) possession of the submachine gun, the applicant was shot a total of five times by the police over a couple of episodes of firings. Some of the police who arrested the applicant noticed that he appeared to be affected by some substance". 12 In his evidence the applicant stated that he had an explanation for committing these offences and this was "speed psychosis and grieving". The applicant had given evidence that his mother had died after a lengthy illness with cancer "in the year before". A psychiatrist, Dr Oak, expressed the opinion that the applicant was most likely suffering at the time from a drug induced psychosis. 13 The agreed statement of facts however includes the following: "The (applicant) did not, however, express psychotic ideation in hospital. The (applicant) furthermore appeared to demonstrate moments of lucidity during the incident. For example, when the (applicant) was being restrained, he asked ambulance officers for water. Despite his repeated requests the (applicant) was not given water as he had to be treated for his injuries. The (applicant) then said, 'there's a bomb in the house. Give me a drink of water and I will tell you where it is.' There was no bomb in the house. The (applicant) was taken to hospital. He declined to be interviewed by the police." 14 As the learned sentencing judge noted, every aspect of the history of proceedings is not clear and the applicant was originally committed for trial on some thirteen charges but an indictment later presented containing six counts. Trial on that indictment commenced on 17 March 2003. On the first two counts of that indictment an acquittal was directed. Among the counts in the indictment presented before the jury was a charge of possessing a prohibited weapon and to this count the applicant pleaded guilty. In submissions it is noted that the sentencing judge did not make specific reference to that circumstance. 15 It appears that after the acquittal on two counts of the indictment the trial did not proceed further and in July 2003 the applicant was again arraigned before the District Court and pleaded guilty to the three counts which were ultimately the subject of sentences imposed by Freeman DCJ. 16 The applicant has given notice of three grounds of appeal: "1. His Honour erred in not making a discrete allowance reflecting the appellant's compliance with bail conditions of particular restrictiveness. 2. His Honour erred in not making sufficient discrete allowance for the utilitarian allowance of the applicant's pleas of guilty. 3. The sentence imposed was in all the circumstances manifestly excessive." 17 I have already mentioned the period of custody immediately following the applicant's arrest. The bail conditions thereafter were changed from time to time and the Crown Prosecutor has epitomized the situation in these terms: "For approximately the first three weeks of his bail he was prohibited from leaving home except to report to police and to attend court and medical appointments. Thereafter, the bail conditions were varied to allow him to attend his father's work premises with his father. The pre sentence report indicates that he had worked in his father's and his brother's panel beating business for about fourteen years. It also records that the applicant had been frequently seeing his former partner and had full access to their three children while he was on bail. There was no restriction on the applicant receiving visitors at home. ……. For the majority of his time on bail the applicant was permitted to go to work at his father's premises. He was restricted in going out socially. However there was no restriction on him having visitors at home." 18 The Crown notes that at the time of these offences the applicant was subject to a current recognizance to be of good behaviour. The issue is whether the conditions of bail were such as to require a conclusion that his Honour was in error in not treating, at least some part of the period on bail as the notional equivalent of custody for which the applicant should be given credit in sentence assessment. I am unpersuaded that his Honour committed such an error. Submissions on behalf of the applicant repeat matters which had been put at the first instance proceedings. It is undoubtedly open to a sentencing judge to take into account onerous conditions of bail in assessing sentence but he is not obliged so to do. The circumstances in which the applicant was on bail in this case do not mandate any such mitigation of sentence and I would reject ground 1. 19 The second ground recognizes that his Honour did make a discrete allowance for the utilitarian value of the applicant's plea of guilty. As noted he assessed it at 10 percent. It is perhaps an indication of the narrowness of the issue sought to be ventilated on behalf of the applicant that a written submission concludes "in all these circumstances an allowance of greater than 10 percent was warranted for the plea, and not less than 15 percent". 20 As abovementioned, in the course of proceedings there were some apparent changes to charges, following representations on behalf of the applicant, which can be taken to have been directed towards his advantage. It is said that the expert's psychiatric report was not available until March 2003 and, given the date of Dr Oak's statement, I would accept that as accurate, but the circumstance that the applicant and/or his advisers might have wished to await that report before deciding what to do resulted in the plea being late. The utilitarian value of an early plea is a reflection of a practical set of matters applicable when such a plea is offered and it does not invite an investigation as to why an accused person may or may not wish to plead at some later time. I do not think that it is apt to investigate whether delay emanated from tactical or other reasons when considering this issue. The discount for utilitarian value reflects exactly what that expression conveys. I would reject ground 2. 21 Ground 3 is set out in the terms abovementioned. As observed in submissions on behalf of the Crown, the applicant's written submissions canvass a number of matters which are not the subject of the ground of appeal but it is convenient to deal with them in connection with the proposition that the sentences were manifestly excessive. 22 Although, as I have stated, there is no elaboration as to how it came to pass, there is no doubt that the applicant suffered several gunshot wounds in the course of police efforts to apprehend him. In submissions by both counsel it has been convenient to refer to the resultant suffering and handicaps on the part of the applicant as "extra curial punishment". Reliance was placed on behalf of the applicant upon the decision in R v Daetz [2003] NSWCCA 216. In that case the offender had approached victims demanding money with menaces. Following this and reports of his activities to police he was located, arrested and charged. He was released on bail. For present purposes the significant matter is that about two months later the offender committed a robbery in company but thereafter remained in the vicinity. Whilst he was there a group of persons carrying objects variously described as metal poles or garden stakes approached him and some enquiries suggested that they were seeking to avenge one of the victims in the previous offences. The offender was seriously injured particularly about the head. The leading judgment was given by James J (with whom Tobias JA and Hulme J agreed) and his Honour stated that the first instance judge: "Was in error in considering that as a matter of principle it was impermissible for him to take into account the assault on (the offender) as an independent mitigating factor. Furthermore, given his Honour's findings about the seriousness of the assault and the seriousness of the injuries (the offender) had suffered as a result of the assault and about the connection between the assault and the offence (the offender) had himself committed the assault on (the offender) was a matter his Honour was obliged to take into account as being a form of extra curial punishment (the offender) had suffered, quite apart from any relevance the assault might have to whether there was any contrition on the part of (the offender)." 23 This authority was drawn to the attention of Freeman DCJ. The Crown is not presently prepared to concede that Daetz was correctly decided but this is not a matter which requires determination as the learned sentencing judge applied the principle which I have mentioned and, observing that in Daetz there had been a discount of 10 percent on account of extra curial punishment, he concluded that in this case he would allow a far greater discount on account of the applicant's continuing disabilities. 24 His Honour's approach to the matter and application of extant authority does not give rise to a ground for intervention in sentence by this Court. 25 Complaint is made about a passing reference by his Honour to the enactment of legislation setting standard non parole periods. He specifically noted that the new legislation did not apply to this case nor did he seek to apply it. His observation was no more than that the action of the legislature in passing a public statute conveyed an indication of the seriousness with which it regarded offences including offences of the nature currently being dealt with. 26 Reference was made to the criminality of possessing a prohibited weapon. The weapon involved was a machine gun. There was no evidence that it was fired in the course of the events giving rise to the arrest of the applicant and later examination showed that it was in fact disabled. Nevertheless it is self evidently a serious matter for a person to be in possession of a prohibited weapon by reason of the prescription of maximum penalty of fourteen years imprisonment. 27 It might be observed that recently in this Court (R v Goktas [2004] NSWCCA 296) a sentence of two years imprisonment with a non parole period of fifteen months was substituted for an imposition at first instance of four years imprisonment with a non parole period of two years and six months where a single sub machine gun was in joint possession of the offender for a period which could be measured in minutes. That particular weapon was the subject of sale to an undercover police operative but it was not suggested that that offender was involved in the sale but his involvement was limited to joint possession of the weapon when it was being delivered to the purchaser. 28 The sentencing judge did not err in assessing the criminality of the applicant in this instance. 29 Reference was made to his Honour's finding that the applicant had shown no contrition such as would attract some exercise of further leniency. As observed by the Crown Prosecutor the applicant was in effect given an opportunity to express contrition when asked about his behaviour whilst Ms Hall and her child were in the house but he responded by referring to the action of police in shooting him. 30 It is convenient to mention that there was evidence that the estimated cost of restoration of the damaged house (excluding the contents) was in the order of $35,000. The applicant has made no restitution in respect of that damage. When asked about any offer in that regard in the course of his testimony in the sentencing proceedings he said: "Well I have been stuck at home at my father's house for months, I wasn't allowed to leave the house." 31 He then referred to difficulties in obtaining a pension. Nevertheless it might be observed that his paraphrase of bail conditions was not correct. 32 Some detail in written submissions on behalf of the applicant was given concerning the passage of the charges against the applicant through the legal system. There was a variety of causes for delay, some of which could have been avoided at the election of the applicant and some of which could not. In the event, I am unable to perceive that his Honour fell into some error in failing to discount the sentences assessed on the express basis that the applicant was stressed during the period of time whilst he was awaiting either trial or being dealt with. 33 Neither do I perceive error in failing to grant to the applicant some special leniency by reason of mental state. The evidence before his Honour was that the applicant was likely to be psychotic as a result of his ingestion of amphetamines. This is not only consistent with diagnosis but with observations made by Ms Hall as to his consumption of such drugs. 34 The applicant himself gave evidence that in the four years prior to the offence he had been "working little and involved heavily in the use of amphetamines". It is true that the applicant had made promising steps towards rehabilitation. He had employment as a car salesman and the employer had provided evidence of the availability of that work. He gave evidence himself that in the month prior to appearing for sentence he had successfully sold five vehicles. He also testified that he had ceased drug abuse. 35 The matters favouring the applicant were appropriately considered by the sentencing judge. 36 Given the whole of the material, I am unpersuaded that the sentences imposed lay outside the sound exercise of judicial discretion. Nor am I satisfied that some other sentence was warranted in law and should have been passed. 37 I would grant leave to the applicant to appeal against sentence but dismiss that appeal. 38 SIMPSON J: I agree. 39 SHAW J: I also agree. 40 GROVE J: The order of the court is, therefore, as I have proposed. **********

Regina v Webb

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