The Queen v Arthur John Prindable [1979] FCA 24

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY

BETWEEN : THE QUEEN Appellant AND : ARTHUR JOHN PRINDABLE Respondent

These are appeals against sentences imposed in the Supreme Court of the Northern Territory following the conviction of the respondent on four charges of shooting at police officers with intent to resist or prevent his lawful apprehension.

When the jury returned its verdict, Mr. Justice Muirhead heard submissions on sentence and remanded the respondent in custody in order that his Honour might obtain the benefit of a pre-sentence report and a report on the respondent's psychiatric condition, Nine days later no pre-sentence report had been obtained and no psychiatrist

had examined the respondent, It was then 21 December 1978.

The respondent asked the learned sentencing judge to deal with him without waiting for those reports, and his Honour acceded to that request.

On 22 December 1978 his Honour sentenced the respondent on each charge to four years' imprisonment, with a non-parole period of 18 months, and ordered that the sentences be served concurrently, and he further ordered that the sentences be suspended and that the respondent be "released on his giving security himself in the sum of $1,000 with one surety in the sum of $1,000 to be of good behaviour for three years",

The Crown appeals against this sentence, submitting that the sentence is so inadequate as to manifest an error in principle on the part of the learned sentencing judge. Although no error appears on the face of his Honour's remarks, the sentence imposed is said to fall so far short of the range of sentences which would be dictated by the exercise of a sound judicial discretion that this Court should -intervene and impose a sentence which 1s appropriate in the circumstances,

The relevant events took place between the late afternoon of 29 January 1978 and 3.00 o'clock on the following morning. It is clear that the respondent engaged in violent and bizarre behaviour inspired by a combination

The respondent rose about 1.30 p.m. on 29 January, and soon thereafter drove his car a short distance to visit some friends by the name of Fitzgerald and Whitbread at their premises at Coconut Grove in the suburb of Nightcliff , the suburb in which the respondent himself lived.

The premises of Mr. Whitbread consisted of a caravan owned by Mr. and Mrs. Boyle. In addition to the caravan occupied by Mr. Whitbread, there was on the same land another caravan and a residence occupied by the Boyle family.

Soon after the respondent arrived at Mr. Whitbread's premises he and his friend Whitbread went to a nearby self- service store and purchased a 26-ounce bottle of tequila, They returned to Whitbread's caravan at about 2,30 p.m. and commenced to drink the liquor they had purchased. The respondent ate nothing during the whole of that day, except perhaps a few lemons which it appears are generally consumed in conjunction with tequila.

They were joined by various people during the course of the afternoon and continued to drink virtually for the whole of the remainder of the afternoon. In the course of the afternoon another large bottle of tequila was purchased, the greater part of which was consumed.

The evidence clearly establishes that the respondent became increasingly intoxicated during the course of the afternoon. By the time the events relevant to the proceedings before us commenced, the respondent was in an advanced state

Mrs. Boyle arrived at her premises and during the afternoon she noticed the group, which included the respondent, drinking. They did not cause any disturbance until 6.30 ot 7.30 that evening. She noticed that there was considerable argument between members of the group, which included the respondent, and some kind of horseplay. With Mrs. Boyle was a man in his fifties who sat down with her to share the evening meal. Not long after, the respondent entered the kitchen, attacked this man and abused him in strong language. The respondent was physically restrained by others who came to the aid of the older man, and in so doing inflicted some minor injuries upon the respondent, He was thrown out of the house, mouthing vengeance and showing manifest signs of anger and hostility and indicating by his words that he would return and do physical harm to the members of the Boyle household, Mrs. Boyle was convinced that the respondent was serious in what he said, so she took the wise precaution of having her family and visitors leave the house. The respondent went to his own home and obtained an automatic 12-gauge shotgun and a high powered magnum rifle together with ammunition for both weapons. He then returned on foot to the Boyle house, about a mile away.

Having thus armed himself and returned to the Boyle premises, he shot the lock off the front door and locks off other doors inside the house once he had gained entry, He shot at various houschold effects within the premiscs,

including a television set, refrigerator and deep freeze.

The police were called to the premises and two police cars arrived at the scene. The first was a divisional van and the second was a CIB car containing Detective-Sergeant Carolan and Detective-Constable Grass. Detectives Carolan and Grass arrived at the Boyle premises at about 8.50 p.m., that 1s some six hours or more after the respondent had commenced drinking. The respondent in the meantime drove a vehicle north in Coconut Grove away from the scene. The CIB car gave chase. It did not bear any insignia of the police force upon it, but was fitted with a siren and a portable-flashing light both of which were operated, The chase did not last very long. The respondent's vehicle got a flat tyre and he drove it into the driveway of the bottle department of the hotel known as the Dolphin Hotel. By the time the respondent had stopped his vehicle, the CIB car was close behind. Not far behind 1t in turn was the divisional van. Sergeant Carolan who was the passenger in the CIB car was somewhere between 20 to 40 feet behind the respondent's vehicle at a time when the respondent jumped out of his vehicle, faced the CIB vehicle and pointed the shotgun, He held it in a hip position and pointed it directly at the police car which at that stage had approached within about 20 feet of the respondent's vehicle. Before either of the police officers could alight from the C1B vehicle,

the respondent fired two shots from his shotgun in its

direction. The shots struck the vehicle in different places.

The two shots having been fired, Sergeant Carolan alighted from the vehicle and took cover at the rear passenger side of it. At that time, the divisional van pulled up close to the CIB car. The respondent fired another shot in the direction of the CIB car, The respondent then fired two more shots in quick succession in the direction of the CIB car where Sergeant Carolan was taking cover. At least one of the shots hit that vehicle and deflated a tyre,

The three vehicles were all in the open on the apron of the driveway of the bottle department of the hotel. Soon afterwards, the respondent went into the hotel through the bottle department and ordered persons occupying the hotel to leave immediately, waving the shotgun in their general direction. Not unnaturally, they complied quickly.

The police encircled the hotel and during the night attempted to persuade the respondent by a variety of means to lay down his arms and surrender. In the course of the evening or early morning two further shots were fired by the respondent out of the door of the saloon bar in the general direction of a service station nearby. A large group of people had congregated near that position,

During the course of the night and early morning, facilities were established whereby the respondent was able to speak by telephone to an aunt of his in Brisbane, to a priest and to police officers all of whom endeavoured to calm him down and persuade him to surrender, At about 3.30 a.m., the respondent surrendered, was taken into custody and later charged with the offences which led to his convictions.

It is essential that crimes of violence should be visited with punishment sufficiently severe to demonstrate the community's concern that its members be allowed to live in peace and to demonstrate that the courts, for their part, will take whatever action is appropriate to deter others who might disturb that peace.

The respondent's conduct was violent in the extreme during an extended period. When the police, whose duty it was to endeavour to contain that violence,arrived on the scene at the Dolphin Hotel, their lives were put at risk and the fact that they did not lose their lives is a matter of good fortune.

To impose anything less than the head sentences which his Honour did impose would have given no acknowledgment to the importance of securing the peace of the community and the safety of police officers whose duty so frequently

requires them, in the interests of the public, to contain

Although his Honour imposed penalties for each conviction, they all arose out of the same set of facts and within a limited time and it was appropriate to order that the sentences be served concurrently. The head sentences imposed by his Honour appear to be entirely appropriate,

We now turn to the question of the specification of a non-parole period. In the Northern Territory of Australia a judge sentencing a convicted person in relation to offences involving a term of imprisonment of 12 months or longer is required to specify a non-parole period, except where the court considers that the nature of the offence or offences or the antecedents of the offender do not warrant the specifying of a lesser term of imprisonment

or if the offender is sentenced to imprisonment for life;

The non-parole period which his Honour fixed no doubt reflected his Honour's view as to the prospects of the respondent's rehabilitation. The psychologist's report stated that the respondent realized "upon reflection that his behaviour was reprehensible and of course could have resulted in tragedy", The evidence clearly established a capacity in the respondent to reform and this is most material in the decision whether to fix a non-parole period

and the length of the period; see Power v. The Queen (1974)

131 C.L.R.623 at p.629. His Honour gave full weight to those

circumstances in balancing elements of punishment and

deterrence against the desirability of rehabilitation. Making due provision for the operation of the parole system, his Honour was justified in the circumstances of these offences in fixing a period of 18 months during which the respondent will not become eligible for parole, We should regard this period as the minimum period of imprisonment to be served, for the crimes committed called for such detention.

His Honour went beyond the fixing of a non-parole period, Though noting that a long sentence of imprisonment was merited by the offences themselves, he was concerned - and rightly concerned - to determine whether the prospects of rehabilitating the respondent could be met by suspending the sentence upon which he had resolved. He said:

"My anxiety has been to determine whether my duty to the community to impose sentences which may operate as a deterrent to those who are tempted to commit such crimes - crimes of this nature - whether that duty enables me to give you one final chance. Rightly or wrongly this I have decided to do, and I only trust you realise that if you should ever offend again you will not receive

another opportunity and you are likely to spend a long, long time in custody, "

The review by an appellate court of a sentencing judge's discretion to suspend sentence involves the same principles as a review of the judicial discretion to impose the head

sentence itself: see The Queen v, Shueard (1972) 4 S.A.S.R.

36 at p.43. If the sentence as a whole is seen to be so

10,* disproportionate to the sentence which the circumstances require as to indicate an error of principle the appellate court should intervene.

The result of his Honour's decision to suspend the sentences was, in our view, to produce a sentence so lenient that it did not accord with the general moral sense of the community and so lenient that it was unlikely to be a sufficient deterrent to others; see per Jordan C.J. in R, v. Geddes (1936) 36 S.R. (N.S.W.)554; Channon v. R. (1978) 20 ALR 1 at p.S.

There was therefore an error of principle in his Honour's sentence and it thus becomes our duty to fix the

sentence which we think appropriate, "In the circumstances"

as Smithers J, said in Anderson v. R. (1977) 19 ALR 212 at

p.221, "one is required to consider what sentence would represent the appropriate duly proportioned and properly balanced sentence". Such a sentence must accord with the general moral sense of the community and be a deterrent

to others who may be tempted to engage in crimes of violence. The error in his Honour's sentence was manifested by the suspension of the order of imprisonment and it can be remedied by omitting from the order that part of his Honour's order which suspended the order of imprisonment, In the result, we think that the appropriate order should require the respondent to undergo a custodial sentence of four years,

The judgment of the Court is that the appeal be allowed and that the respondent be imprisoned on each charge for a period of four years, the sentences to be served concurrently, and that a term of 18 months' imprisonment be specified during which the respondent be not eligible to be released upon parole, and it is ordered that the cause be remitted to the Supreme Court

of the Northern Territory for execution of this judgment.

I certify that this and the 10 preceding pages are a true copy of the Reasons for Judgment herein of the Court (Brennan,Gallop and Lockhart JJ).