Brasher v Tasmania
[2015] TASCCA 16
•27 August 2015
[2015] TASCCA 16
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Brasher v Tasmania [2015] TASCCA 16
PARTIES: BRASHER, Cameron James
v
STATE OF TASMANIA
FILE NO: CCA 981/2014
DELIVERED ON: 27 August 2015
DELIVERED AT: Hobart
HEARING DATE: 5 June 2015
JUDGMENT OF: Blow CJ, Wood and Estcourt JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Charges of aggravated assault, recklessly discharging firearm and unlawfully injuring property – Sentence of 7 years' imprisonment with 4½ years' parole ineligibility – Whether sentence manifestly excessive – Shooting at police officers.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: A R Hensley
Respondent: D G Coates SC
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Acting Director of Public Prosecutions
Judgment Number: [2015] TASCCA 16
Number of paragraphs: 46
Serial No 16/2015
File No CCA 981/2014
CAMERON JAMES BRASHER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
WOOD J
ESTCOURT J (Dissenting)
27 August 2015
Order of the Court
Appeal dismissed.
Serial No 16/2015
File No CCA 981/2014
CAMERON JAMES BRASHER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
27 August 2015
On the morning of 25 February 2014, at two locations near Poatina, the appellant, Cameron Brasher, fired shots towards police officers. In relation to those events, on three counts of aggravated assault and a number of other charges, he was sentenced by Pearce J to 7 years' imprisonment, with a parole ineligibility period of 4½ years. This is an appeal from that sentence. The appellant contends that it was manifestly excessive.
The appellant pleaded guilty to five charges on an indictment, the details of which are as follows:
· Recklessly discharging a firearm, by firing a shotgun from inside a car without due regard for the safety of the appellant's companion, Tereza Loone, who was a passenger in the car. (Count 1.)
· Aggravated assault, committed by pointing his shotgun at Constable Ayers and firing it twice, when Constable Ayers was in the driver's seat of a police car. (Count 2.) Count 1 relates to the firing of the first of those shots. Constable Ayers was alone in the first police vehicle to catch up with the appellant when he crashed his rented car after a 35Km chase.
· Aggravated assault, committed by pointing his shotgun at Inspector McCreadie and Senior Sergeant Bray and firing it towards them, when they were sitting in the front seat of another police vehicle at the same place. The appellant had alighted from his vehicle. (Count 3.)
· Aggravated assault, committed by subsequently pointing and firing his shotgun at Inspector McCreadie and Senior Sergeant Bray, who were still in the same vehicle. (Count 4.)
· Unlawfully injuring property, committed by damaging his rented vehicle. After driving over road spikes, the appellant drove the vehicle about 33Km with two punctured tyres, and caused it to crash into a roadside embankment. After that he fired the first shot at Constable Ayers through a window, which was closed. (Count 5.)
The impugned sentence related not just to those five charges, but also to a number of summary charges, to which the appellant pleaded guilty, and which were dealt with under s 385A of the Criminal Code. Those charges were as follows:
· Evading police, by failing to stop when signalled to do so and driving off from Arthur's Lake with four police vehicles in pursuit.
· Possessing a loaded firearm when not the holder of a firearm licence.
· Possessing a shortened firearm.
· Possessing ammunition when not the holder of the appropriate firearm licence.
· Resisting a police officer in the execution of his duty. This charge relates to a struggle between the appellant and Constable Jago when the appellant was arrested about four hours after the last shots were fired.
· Threatening a police officer. This charge relates to a threat to Constable Jago after the arrest and struggle.
Full details of the appellant's crimes and offences are set out in the reasons of Estcourt J, which I have had the advantage of reading. My descriptions of the relevant circumstances can therefore be quite brief. His Honour has also set out details of the factors relevant to sentencing and the principles relevant to sentencing appeals. I regret that I do not agree with the conclusion that he has reached.
These were serious crimes. The appellant fired four shots at police officers. He fired at three officers. He shot at them in order to prevent his lawful apprehension. They all put themselves at risk in the service of the community. Each of them was at risk of being shot. There was also some risk that the appellant's companion might have been injured. The struggle with Constable Jago, in an attempt to seize his firearm, was a particularly serious example of the offence of resisting a police officer. The apprehension and arrest of the appellant took several hours involving the commission of crimes on public roads and considerable use of police resources. The crimes and offences had significant impacts on a number of police officers, details of which are set out in the sentencing comments that are quoted in the reasons of Estcourt J. The damage to the rented vehicle resulted in an insurance company suffering a loss in the vicinity of $24,000.
It is true that no physical injuries were suffered by any of the officers whom the appellant shot at. It was not suggested that the appellant intended to wound or kill any of the officers. The learned sentencing judge accepted that the appellant had an honest, but mistaken, belief that police officers had fired shots towards him at Arthur's Lake. The threat to Constable Jago was made in the heat of the moment, when the appellant was not in a position to carry out any threat.
The appellant was 25 years old on the day in question. His only serious conviction was for a crime of attempted aggravated armed robbery committed when he was 15 years old. He had no significant convictions as an adult. He had had a traumatic adolescence. He had been in stable employment after completing grade 10 and leaving school, except for a period when he was a full-time father. His offending was out of character. He had excellent prospects for rehabilitation. His plea of guilty saved the State the cost and inconvenience of a trial. Although he showed absolutely no remorse on the day of his arrest, he subsequently regretted his conduct and apologised for it. His offending occurred during a personal crisis so extreme that he had made arrangements to commit suicide, but that personal crisis came about because of his abuse of illicit drugs, and his offending was also a consequence of that abuse of illicit drugs.
Having regard to the appellant's background, his lack of significant convictions as an adult, and his excellent prospects for rehabilitation, I accept that a heavy sentence was not needed to deter him from re-offending. However it was reasonable for the learned sentencing judge to impose a long prison sentence with a view to fulfilling other sentencing objectives, particularly denunciation and the deterrence of others. The firing of a shotgun at police officers, first at one officer and then at two others, was so serious that a long prison sentence was the only appropriate penalty. Having regard to all the circumstances, including the other charges and the mitigating factors, I think it is very clear that the head sentence of seven years' imprisonment was not unreasonable, unjust or manifestly excessive. In my view it was a very appropriate sentence in all the circumstances.
However it is necessary also to consider whether the non-parole period of 4½ years was manifestly excessive. A non-parole period must not be less than half the length of the head sentence: Sentencing Act 1997, s 17(3). In this case, the non-parole period represents about 64% of the head sentence. A non-parole period should be the minimum time that justice requires an offender to serve, having regard to all the circumstances of the offence: Power v The Queen (1974) 131 CLR 623 at 629; Carr v The Queen (2002) 11 Tas R 362 at 389 [96]; Richman v Tasmania [2011] TASCCA 18 at [47]. The non-parole period in this case was certainly a very long one. However because of the seriousness of the appellant's conduct in repeatedly shooting at police officers, I am not persuaded that, in all the circumstances, it should be regarded as manifestly excessive.
I would therefore dismiss the appeal.
File No CCA 981/2014
CAMERON JAMES BRASHER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
27 August 2015
I agree with the conclusion reached by Blow CJ that the sentence was not manifestly excessive and that the appeal should be dismissed. I agree with all that Blow CJ has said and wish to add some remarks addressing aspects of the appellant's argument.
It was submitted that a substantial part of the global sentence of seven years' imprisonment imposed on the appellant is attributable to the three counts of aggravated assault and that, with reference to a decision of this Court in Crosswell v Tasmania [2012] TASCCA 1, the global sentence imposed upon the appellant was manifestly excessive. In Crosswell, the Court reviewed a sentence imposed for various crimes, one of which was the crime of assaulting a police officer, and substituted a sentence of eight years. Evans J (Tennent J agreeing) indicated at [49] that a sentence of two and a half years would be appropriate for the offence of assaulting a police officer before considerations such as totality and the plea of guilty were taken into account. In cases of assaults upon police officers involving the use of, or a threat to use, a firearm, the conduct may attract the charge of assaulting a police officer or aggravated assault. Because the charges overlap in their application, there is sense in considering sentences for both crimes.
However, there are many dissimilarities between the facts of Crosswell and this case. Here, there are three counts of aggravated assault instead of one count of assaulting a police officer. Four shots were fired, not one. There are three victims rather than one. In Crosswell, the defendant discharged a firearm in the direction of a police officer amounting to an assault by threatening gesture; the police officer was unaware until afterwards that a shot had been fired. Here, the firearm was discharged on each occasion when the complainants were fully aware of the appellant's actions. The appellant assaulted Constable Ayers by attempting to shoot him. His conduct amounted to an assault in another respect, in that force was applied to Constable Ayers when the windscreen glass, which shattered, fell on him.
Constable Ayers saw the appellant look at him, raise the shortened double-barrel shotgun, point it across the front passenger seat where Ms Loone was seated, and point it directly at him. He feared for his life. At the time the firearm discharged, Constable Ayers was leaning across, trying to get down as low as possible, hindered by his ballistics vest. Senior Sergeant Bray and Inspector McCreadie were together in the same vehicle when the appellant aimed, pointed the shotgun directly at the officers and fired two shots at their vehicle. The appellant assaulted Inspector McCreadie and Senior Sergeant Bray by attempting to shoot them, and again, his intention was to prevent his lawful apprehension. While it is to be noted that the appellant is not to be sentenced on the basis that he attempted to wound, cause grievous bodily harm or kill the officers, these crimes are, as the learned sentencing judge stated, extremely serious crimes.
It is submitted for the appellant that the sentence is also markedly higher than other sentences imposed by the Supreme Court since the decision of Crosswell for aggravated assaults by way of discharge of a firearm. In illustrating this point, nine sentences were specifically referred to. In three of those cases, the complainant involved was actually struck and injured. Having considered those sentences, it is clear that the sentence of seven years' imprisonment is markedly higher. However, this comparison is unhelpful. None of the sentences referred to concerned conduct of the kind here. In particular, none of them involved a confrontation with police, shooting at a police officer or an assault committed in evading lawful apprehension.
There are special considerations that arise in cases involving assaults upon police officers with a lethal weapon. In such cases, general deterrence is of substantial importance. I pause to discuss this a little further.
As a general principle, crimes involving violence towards police officers performing their public duty are viewed very seriously and "general deterrence weighs heavily in the sentencing process": Attorney-General (Tas) v Knight [2003] TASSC 77 at [13]; see also Burling v Tasmania [2007] TASSC 104 at [13]. By the imposition of such penalties, the courts seek to support the authority of the police and protect the police from acts of violence by deterring other offenders. In Attorney-General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 137 A Crim R 196, Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) said at 203 [22]:
"Offences involving assault of police officers in the execution of their duty are serious offences requiring a significant element of deterrence in the sentences to be imposed. The community is dependent to a substantial extent upon the courage of police officers for protection of lives, personal security and property."
See too R v Hamilton (1993) 66 A Crim R 575, per Gleeson CJ (Hunt CJ at CL and Ireland J agreeing); Director of Public Prosecutions (Vic) v Arvanitidis (2008) 202 A Crim R 300, per Redlich JA at [50].
In the normal execution of their duties, police officers are required to respond to situations fraught with danger. This was one such situation, requiring the apprehension of an armed and emotionally unstable individual in a remote location. The police officers were exposed to a high level of personal risk as they carried out their public duty. The community needs police officers to respond to such volatile situations, and the carrying out of their duty is vital for the protection of the community (including the protection of offenders).
Of course, the weight to be given to general deterrence and competing considerations such as rehabilitation, and ultimately the sentence that is to be imposed in any particular case, will turn on the facts of each case. Here, the need for general deterrence was particularly marked and, in my view, was a dominant consideration. The appellant fired at three police officers at relatively close range. His actions had the potential to inflict fatal or serious injuries. He subjected the officers to a terrifying experience and the prospect of lasting psychological harm. One police officer has suffered debilitating harm and has experienced serious effects on his family, and his personal and professional life. His ability to continue his career as a police officer is uncertain.
It is evident that the importance of general deterrence was prominent in reasons for imposing a heavy sentence. The learned sentencing judge stated:
"The community's security depends in large measure upon the police force for its safety and security. The members of that force and the community generally are entitled to expect the courts to pass heavy sentences upon those who commit serious assaults on police officers who are in the lawful execution of their duty. By doing this, the courts uphold the lawful authority of the police. Sentences for serious and frightening assaults, such as those committed by the defendant, must punish and condemn such conduct and operate as a deterrent not only to the offender but to others."
In my view, the criminal conduct warranted a heavy sanction and I share the view expressed by Blow CJ as to the appropriateness of the sentence, notwithstanding the mitigating considerations. The non-parole period was lengthy, but I also hold the view that it was a proper exercise of discretion having regard to all the circumstances, and noting the sentencing aims of denunciation and general deterrence.
File No CCA 981/2014
CAMERON BRASHER v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
27 August 2015
The appeal
The appellant, Cameron Brasher, has appealed on the sole ground of manifest excess against a sentence of seven years' imprisonment with a non-parole period of four years and six months. The sentence was imposed by Pearce J on 5 November 2014. No specific error is asserted in the notice of appeal.
The appellant pleaded guilty to three counts of aggravated assault, one count of recklessly discharging a firearm and one count of unlawfully injuring property. The learned sentencing judge also agreed, under s 385A of the Criminal Code, to deal with the appellant's pleas of guilty on a summary complaint to charges of evading police, resisting and threatening police, firearms offences and three counts of stealing.
The facts
The following statement of the facts and circumstances of the appellant's offending appears in the learned sentencing judge's comments on passing sentence. The statement is somewhat lengthy but the appellant's criminal conduct occurred on 23 and 24 February 2014, and culminated over a five hour period on 25 February, before he was restrained by officers of the Tasmania Police Special Operations Group:
"On 23 February 2014 the defendant stole petrol worth $94.54 from a petrol station at Latrobe. On 24 February 2014 the defendant stole petrol worth $93.60 from a business in Derwent Bridge. On the same day he stole groceries worth $25.08 from a supermarket in Ouse. The crisis arose from his fear that he would lose care of the children that had, until a few weeks earlier, been in his custody. His paranoid and disordered thinking was fuelled by the heavy abuse of methylamphetamine over a period of two or three months leading up to these events. He fell into a dispute with his mother from whom he rented the house he had been living in with his children, culminating with him threatening to her that he would kill himself and burn her house. This combination of events led the police to look for the defendant and Ms Loone. Their car was found by the police officer from Liawenee just after midnight on Tuesday 25 February 2014, parked in the parking area near the dam wall at Arthur's Lake. Because it was believed that the defendant may be armed, the police officer did not immediately approach the vehicle and other police were notified. The police suspicion that the defendant was armed turned out to be correct. The defendant had with him a loaded double barrel shotgun for which he had no licence, as well as a supply of 18 shotgun cartridges carried in a toiletry bag. The barrel of the shotgun had been shortened to a length less than 65 centimetres.
At about 6.15am four marked police vehicles containing six police officers in total went to the car park. Inspector Matthew McCreadie and Senior Sergeant David Bray were in one vehicle. Constable Adrian Ayers was alone in another of the vehicles. The lights and siren of one police vehicle were briefly activated to attract the attention of the defendant and Ms Loone. Inspector McCreadie asked them to get out of their car. However, instead, the defendant started his car, accelerated heavily and drove about 50 metres away from the police towards the rear of the car park. They were again asked to get out of the car, but the defendant drove back towards the police who were between him and the exit. The defendant accelerated past the police ignoring Inspector McCreadie, who was waving and shouting for him to stop. Two officers were forced to move out of the way of the vehicle as it approached them. The Crown accepts that the defendant believed, wrongly, that as he drove past the police, one officer fired his police weapon at the defendant's car. The defendant drove from the car park to Arthur's Lake Road and then towards Poatina Road thereby evading police. On Arthur's Lake Road the car travelled across road spikes the police had placed earlier, damaging the two driver's side tyres. Despite this the vehicle continued to Poatina Road from where it travelled north. The tyres of the vehicle progressively disintegrated but the vehicle continued to travel on its rims, leaving gouge marks in the road as it did so. The defendant eventually lost control of the car on a sharp bend on the descent from the Great Western Tiers. The journey from the car park to this point was about 35 kilometres and throughout the journey the defendant drove, despite the condition of his car, at such speed that the police had trouble keeping up with him. Constable Ayers was the first to come across the defendant's vehicle. He saw the vehicle at the apex of the corner facing across the road with the passenger side closest to him about 10 metres away. He saw the defendant seated in the driver's seat. He then saw the defendant look directly at him, and then, across Ms Loone who was in the front passenger seat, raise the firearm and point it at him. In an attempt to protect himself Constable Ayers, from his seat, leaned across towards the centre of the vehicle, but his ballistics vest hindered his ability to get down. He then heard the gun discharged twice. Those two shots constitute the first aggravated assault. The shotgun was fired through the front passenger window of the defendant's car. The force of the shotgun pellets shattered the driver's window of Constable Ayers' police car and some of the glass landed on him. The defendant assaulted Constable Ayers by attempting to shoot him. He also applied force to Constable Ayers who was contacted by the window glass. Because the gun was fired so close Ms Loone, the discharge of the firearm was reckless and without due regard for her safety.
Having been shot at, Constable Ayers reversed his vehicle away. The other police arrived. Radio despatch services contacted the defendant's phone. A female, who could only have been Ms Loone, said, 'back off or we'll shoot'. Inspector McCreadie's vehicle, in which Senior Sergeant Bray was a front seat passenger, stopped not far from the defendant's vehicle. The defendant got out of his car, walked to a position at about 2 o'clock to the front of the police vehicle and, from a distance of about 12 – 15 metres, raised the sawn-off shotgun, pointed it at the officers and fired one shot directly at the vehicle. That is the second aggravated assault. The defendant took a few steps to a more square on position in front of the police vehicle and, from a distance of about 15 to 18 metres, again raised the shotgun, aimed, and fired one shot directly at the vehicle. That is the third aggravated assault. None of the windows of the police vehicle were broken, although some shot lodged in the trim around the windows. Again, these acts constitute assault as an attempt to intentionally apply force to both Inspector McCreadie and Sgt Bray by shooting them with the shotgun. Each of the three assaults is an aggravated assault because it involved use of a firearm and also because it was committed by the defendant with intent to resist or prevent his lawful apprehension.
The defendant and Ms Loone then ran off, into the bush on foot. At that time further police resources were requested, including the Special Operations Group, a police negotiator and the police helicopter. Over the following hours the area was searched and some public roads were closed. However at about 11am the defendant and Ms Loone emerged from the bush not far from where Inspector McCreadie was conducting a briefing. The defendant was carrying the shotgun and the bag containing shotgun cartridges. Ms Loone was with him. Detective Constable Britten, Constable Ayers and Inspector McCreadie produced their weapons and moved toward the defendant. He was instructed to drop his gun and get onto the ground. Although he dropped his shotgun at the side of the roadway he remained standing. Special Operations Group officers move forward. Constable Adam Jago of the Special Operations Group repeatedly requested the defendant to get onto his knees. The defendant responded by goading Constable Jago to shoot him while aggressively and repeatedly thumping his chest with a right clenched fist. The defendant's aggressive behaviour escalated and he picked up the firearm which was, by then, in two pieces. He attempted to reassemble the weapon. He ignored repeated police instructions to get onto the ground and continued to advance towards the police aggressively, pulling his T-shirt up and thumping his chest.
Constable Jago moved to the defendant and attempted to restrain him. The defendant grabbed at the firearm Constable Jago was carrying and continued to struggle. The retaining pin of the officer's sling came open and the firearm became loose. Constable Jago struck the accused twice to prevent him from taking control of the firearm, but the defendant continued to struggle and try to grab other police equipment Constable Jago was wearing. This conduct is the basis of the charge of resisting police. With the assistance of other Special Operations Group officers, the defendant was eventually handcuffed and restrained. While handcuffed, the accused threatened Constable Jago by saying to him, 'I will never forget your face, one day you will be walking down the street and you'll get shot at'. The defendant was then taken to the Launceston Police Station. While waiting to be presented to the custody sergeant, the accused asked 'Is that copper dead I shot at? I hope he is. Did I hit him?'"
The sentence
The learned sentencing judge imposed one sentence on all counts on which he sentenced the appellant. That sentence was a term of imprisonment for a period of seven years from the date the appellant was taken into custody, namely, 26 February 2014. His Honour ordered that the appellant not be eligible for parole until he had served four years and six months of his sentence.
In passing sentence the learned judge made the following comments:
"The defendant is aged 26. He was 25 at the time of offending. He has no prior convictions for violence. He got into some trouble as a youth. He was then fined for minor drug offences in 2007 and 2011. Otherwise his record is for driving offences, including driving with alcohol and drugs in his system. He had a normal upbringing until he was about 14. As a teenager he was the victim of a serious offence, but completed his education to grade 10. He entered the workforce and demonstrated a capacity to hold positions of responsibility. With his then partner he had one child and assumed a parental role with her other child. After the breakdown of that relationship he was awarded custody of the children and left work to look after them. He formed a relationship with Ms Loone. It was his fear about the impact of his behaviour on his ability to retain permanent care of his children which prompted at least the start of these events. He decided to commence a journey around Tasmania that would culminate in him and Ms Loone both ending their lives. He now says that she dissuaded him from that course before the police arrived at the car park at Arthur's Lake, but as events unfolded he again attempted to commit suicide by goading the police to shoot him. He has been in custody since 26 February 2014. While in custody he has become determined to address his abuse of drugs and has engaged in programs for that purpose. That points to the prospect of rehabilitation, but, as to the crimes, the self-induced effects of drug use are not a mitigating factor. Some mitigation arises from the plea of guilty although it cannot be said he gave up much chance of acquittal on any count.
For shooting at the police officers the defendant is charged with assault. He is not to be sentenced on the basis that he attempted to wound, cause grievous bodily harm or kill them. Nevertheless these are extremely serious crimes. The community's security depends in large measure upon the police force for its safety and security. The members of that force and the community generally are entitled to expect the courts to pass heavy sentences upon those who commit serious assaults on police officers who are in the lawful execution of their duty. By doing this, the courts uphold the lawful authority of the police. Sentences for serious and frightening assaults, such as those committed by the defendant, must punish and condemn such conduct and operate as a deterrent not only to the offender but to others.
It is extremely fortunate that none of the police officers suffered any physical injury. The risk that they might have been seriously injured is obvious. The defendant's mistaken and irrational belief that he had earlier been fired on does not lessen the gravity of his conduct. The most serious crimes are the aggravated assaults. The manner in which he aimed and fired the shotgun from relatively close range, first at Constable Ayers and then at Inspector McCreadie and Senior Sergeant Bray, was menacing, deliberate and frightening. As to the second and third counts, the defendant either mostly missed, or the force of the discharge was not sufficient to penetrate the car body or windows, but he had already fired shots of sufficient force to break the window of Constable Ayers' car from a similar range. The psychological effects on the victims of such acts can be profound, even for police officers who routinely put their personal safety at risk in the service of the community. Constable Ayers, understandably, feared for his life. He has been particularly affected. The impact of the defendant's conduct has had a serious and continuing effect on his family, personal and professional life and has made his ability to continue his career as a police officer uncertain. The other offending is also serious. The defendant's resisting of Constable Jago is a serious example of that offence, involving as it did a struggle over a firearm and other police equipment, after the defendant had already discharged another firearm at police officers. The threat the defendant later made to Constable Jago is a particularly nasty and troubling one, even though the defendant now says he regrets making it and poses no threat. The criminal conduct of the defendant throughout these events put the police at risk – through the police chase resulting from his evasion, during the search and immediately prior to his eventual apprehension. His overall conduct was contemptuous of the police, a challenge to their authority and an affront to their dignity. He had ample opportunity to desist but continued over a prolonged period. Considerable public resources were required to eventually secure his apprehension. At the time of his arrest he demonstrated none of the remorse he now says he has.
A heavy sentence of imprisonment is required. I have regard to the maximum sentences prescribed for the summary offences."
The task of this Court on an appeal of this nature needs to be borne steadily in mind. It has been explained many times in this Court and in others. Perhaps the most recent restatement of the relevant principles is to be found in Hall v Tasmania [2015] TASCCA 6 where Pearce J said at [51]–[52]:
"51 To succeed in an appeal on the ground that a sentence is manifestly excessive the appellant must show that the sentencing discretion must have miscarried and the sentence is definitely outside the appropriate range of sentences for the crime: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, per McHugh J at 306. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at [13]. Manifest excess must be plainly apparent: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, per Gleeson CJ and Hayne J at [6]. The sentence must be 'unreasonable or plainly unjust': House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.
52 The appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different way: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. A wide measure of latitude should be accorded sentencing judges: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. There is no single correct sentence and a sentencing judge 'should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected': Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [26], cited with approval in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [58]."
In a recent decision of the Western Australian Court of Appeal in Taylor v The State of Western Australia [2015] WASCA 72, McLure JA at [27]-[31] made the following observations, which also touch upon the relevance of the totality principle in cases of multiple offences:
"Legal principles
27 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion.
28 In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
29 Sentences imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect.
30 Manifest excess applies to an individual sentence. The totality principle applies to the total effective sentence for multiple offences. A breach of the totality principle is also a claim of implied error.
31 The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally."
Notwithstanding that it is not raised specifically by the single ground of appeal, the totality principle arises in the present case on any examination of the question of implied error, given the aggregation of offences for which the appellant was convicted, all of which, at least over a five hour period on 25 February 2014, constituted one multifaceted course of criminal conduct.
In Coles v Tasmania [2013] TASCCA 9, a case with some similarities to the present, I set out several passages from decisions considering the totality principle. At [26]-[27] I noted as follows:
"26 Gaudron and McHugh JJ observed, obiter, in Griffiths v R (1989) 167 CLR 372 at 393:
'It is well established that in sentencing a person in respect of multiple offences regard must be had to the total effect of the sentence on the offender: Reg v Smith (1983) 32 SASR 219, at pp 220, 221, 222; Boyle and Allen, Sentencing Law and Practice (1985), p 282; Hall, Sentencing in New Zealand (1987), p 195. This may be done through the imposition of consecutive sentences of reduced length with or without other sentences to be served concurrently or through the imposition of a head sentence appropriate to the total criminality with all other sentences to be served concurrently.'
27 In Attorney-General v Tichy (1982) 30 SASR 84, Wells J said at 92 - 93:
'It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct …'."(My emphasis.)
In Coles v State of Tasmania (above), at [28], I made the following observation:
"28 These [the above] passages were cited with approval by Cox CJ in Hyland v R [1996] TASSC 144 at [14] - [15] and to my mind the analysis of Wells J in Attorney-General v Tichy (supra) is particularly helpful in approaching the question arising in the present case of what is a just and appropriate sentence that takes account of the appellant's total criminality on this evening, involving as it did 'one multifaceted course of criminal conduct' or 'one transaction' or 'spree', (Thomas v The State of Western Australia [2012] WASCA 182 at [29] per Mazza JA). The dictum of Gaudron and McHugh JJ, and the analysis of Wells J, and the many cases dealing with the first limb of the totality principle are equally applicable to the selection of a single sentence and its length as they are to the selection of consecutive sentences of reduced length, or to the selection of concurrent sentences."
The appellant's submissions
The appellant's counsel, Mr Hensley, in his written submissions, after conceding the aggravating features associated with the more serious of the appellant's crimes and offences, listed a number of mitigatory factors as follows:
"• The Appellant was 25 years of age at time of offending. He had one prior conviction for assaulting a police officer in 2003 when he was 15 years old. He had one prior conviction for attempted aggravated armed robbery also dating back to 2003 when he was 15 years old. He had no other convictions involving an element of violence and no such convictions as an adult.
• His other prior convictions involve matters of dishonesty and property damage as a youth. His adult criminal record is restricted to traffic matters and summary drugs (cannabis) matters.
• The Appellant had a traumatic adolescence beginning with being evicted from the family home at age 14 for questioning the religious beliefs of his mother. While homeless he suffered a traumatic rape at the hands of an adult male, leading to a period of offending for which he was brought before the courts.
• The Appellant was able to maintain his education through to completing grade 10. He entered the work force and remained in stable employment, graduating to positions of responsibility. He left the workforce only to become the primary carer for his children (one biological, one the child of his ex-partner for whom he assumed a parental role).
• The offending took place at a time of situational crisis for the Appellant. It was out of character. He shows excellent prospects for rehabilitation.
• The Appellant pleaded guilty, and indicated that plea of guilty to the State with respect to the substantive charges well before the final indictment was lodged."
Mr Hensley then submitted that the head sentence of seven years' imprisonment imposed on the appellant was manifestly excessive having regard to the decision of this Court in Crosswell v Tasmania [2012] TASCCA 1, and to a number of other sentences imposed by judges of this Court in cases of aggravated assault by way of the discharge of a firearm in cases where no person was injured, and conversely, in cases where injuries actually occurred.
Discussion
I do not find a detailed comparative analysis of the circumstances of the individual cases referred to by Mr Hensley as particularly helpful. In particular I gain no real assistance from a detailed analysis of the sentence imposed in Crosswell. In that case the appellant successfully appealed against a sentence of ten years and six months' imprisonment, and this Court substituted a sentence of eight years' imprisonment. However, the appellant in that case was sentenced for crimes which, to my mind, were of an essentially different nature to those presently under consideration. The relevant counts on the indictment to which the appellant pleaded guilty in Crosswell comprised the following:
• Assaulting a police officer. He assaulted Holly Dillon, a police officer, acting in the due execution of her duty by pointing and discharging a .410 calibre single barrel sawn-off shotgun in her direction.
• Stealing. He stole a Commodore sedan.
• Armed robbery. When armed with a .22LR calibre single shot sawn-off rifle, he robbed the proprietor of a newsagency of approximately $1,970.
• Aggravated assault. In the course of the above armed robbery he unlawfully assaulted a customer of the newsagency by pushing her in the back with the rifle and pointing it at her whilst threatening her.
• Unlawfully setting fire to property. Setting fire to the stolen Commodore sedan.
• Perverting justice. With intent to pervert the due course of justice in relation to the crimes he had committed, he instigated a friend to provide him with a false alibi, and burnt clothes associated with his commission of the crimes.
In Crosswell the appellant's antecedents were also markedly different to those of the present appellant. In Crosswell the appellant's record of prior convictions included in excess of 125 convictions for burglary, aggravated burglary and stealing, and 24 convictions for motor vehicle stealing or attempting to commit that offence, as well as convictions for other offences of dishonesty. He also had five convictions for escape and three convictions for destroying property. In addition, he had six convictions for threatening, abusing or resisting a police officer, two convictions for assaulting a police officer, one conviction for common assault and one conviction for aggravated assault.
In the light of these fundamental differences I do not accept Mr Hensley's submission that the seven year sentence imposed upon the present appellant can be seen as patently unjust by "reference to the considerations in Crosswell". Equally however, I do not accept the submission of Mr Coates SC, counsel for the respondent, "that the overall conduct in this [the present] case is no less serious than in Crosswell". Even at that higher level of abstraction of "overall conduct" I do not find the comparison of assistance.
I do accept however, as McLure JA said in Taylor v State of Western Australia (above) at [29], that sentences imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing which is useful because of the unifying principles which such sentences reflect.
In Coles, this Court was of the view that a single sentence of four and a half years' imprisonment with a non-parole period of three years was a just and appropriate sentence in respect of two counts of attempting to unlawfully wound, and two counts of aggravated assault, involving threatening persons with a shotgun in a residential area and firing directly at one of them on two occasions, missing only by chance.
In Coles I also drew attention to some other examples generally reflective of a course of criminal conduct broadly similar in terms of seriousness to that in that case and indeed broadly very similar to the gravity of the conduct in the present case. I said at [23]-[24]:
"23 In a case such as this, involving as it does a series of several serious offences committed over a short space in time on one day, and forming in reality one incident of criminal behaviour, I do not find it helpful to resort to sentencing statistics or to speak of a range of penalties for 'actual serious injury', particularly when none, fortuitously perhaps, occurred. Neither is a search for comparable sentences a particularly worthwhile endeavour.
24 Having made those observations however, I note, by way of random example, that two charges of wounding by firing a shotgun and striking two persons with many pellets in the arms and chest attracted a sentence of three and a half years' imprisonment in Wynwood (Evans J, 16 October 1998) and a shooting spree in public, described by Crawford J (as he then was) as 'cold blooded', and in which the defendant shot and wounded four police officers, causing 'terror and fear to them and many others', attracted a sentence of eight years' imprisonment (Graham, 25 June 1996). More recently, one count of aggravated assault and one count of wounding involving the firing of two shots in a public street by a 32 year old man with a history of violent offending and with little prospect of rehabilitation, where one shot actually wounded the victim, attracted a sentence of four years imprisonment with six months suspended and a non-parole period of two years and eight months Denman (Tennent J, 20 August 2013)." (My emphasis.)
I regard a head sentence of seven years in the present case as manifestly excessive. Adopting the words of McLure JA in Taylor v State of Western Australia (above) at [27], I regard a head sentence of seven years as unreasonable, plainly unjust and outside the range of a sound sentencing discretion. Whilst acknowledging the sentences set out in the table of sentences provided to the Court by Mr Coates as part of his written submissions, I reject his contention that the sentence imposed in the present case was within the proper exercise of the learned sentencing judge's discretion.
In so concluding I have, against the backdrop of the sentencing standards of judges of this Court generally, including all of the sentences referred to by both counsel, paid close regard to the sentences to which I referred in Coles as comprising a helpful yardstick, in particular Graham and Denman and Coles.
The level of sentencing that I apprehend has been observed in the past, and the position which the appellant's criminal conduct occupies on the scale of seriousness in that sentencing range, points, in my view, to apparent excess in the learned sentencing judge's orders in this case. I regard this as particularly so given the appellant was still a relatively young man, had a demonstrated work record and had no relevant prior convictions. As the learned sentencing judge said in his comments on passing sentence:
"The defendant is aged 26. He was 25 at the time of offending. He has no prior convictions for violence. He got into some trouble as a youth. He was then fined for minor drug offences in 2007 and 2011. Otherwise his record is for driving offences, including driving with alcohol and drugs in his system. He had a normal upbringing until he was about 14. As a teenager he was the victim of a serious offence, but completed his education to grade 10. He entered the workforce and demonstrated a capacity to hold positions of responsibility."
In my view implied error is also apparent in that the sentence does not take proper account of the first limb of the totality principle. The total effective sentence does not appear to me to bear a proper relationship to the overall criminality involved in all of the offences. When those offences, at least those over five hours on 25 February 2015, are viewed in their entirety as a single multifaceted course of conduct, the sentence is, to my mind, disproportionate to the totality of the criminality involved.
Disposition
I would allow the appeal and I would substitute a sentence of five years' imprisonment with a non-parole period of three years. I would impose a non-parole period of greater than half of the head sentence, in particular because of the very serious affront to authority and to the personal well-being of the individual police officers involved, and because of the impact of the appellant's conduct on those police officers.
In my view, a period of three years is the minimum period of imprisonment justice requires to be served in all of the circumstances of the case. Such period, to my mind, also adequately mitigates the deterrence, punishment and denunciation reflected in the head sentence in favour of rehabilitation in the case of a still relatively young man with a demonstrated capacity to hold positions of responsibility in the workforce.
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