Burling v Tasmania

[2007] TASSC 104

[2007] TASSC 104

CITATION:            Burling v Tasmania [2007] TASSC 104

PARTIES:  BURLING, Patrick Arthur
  v
  TASMANIA (THE STATE OF)

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  408/2007
DELIVERED ON:  19 December 2007
DELIVERED AT:  Hobart
HEARING DATES:  30 October 2007
JUDGMENT OF:  Underwood CJ, Crawford and Blow JJ

CATCHWORDS:

Criminal Law – Jurisdiction practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Parity – Generally – Relevance of "tariff".

Griffiths v R (1977) 137 CLR 293; Lowe v R (1984) 154 CLR 606, applied.
R v Liddy (No 2) (2002) 84 SASR 231; R v Cadd (1997) 69 SASR 150; R v Hooper (1995) 64 SASR 480; Harland-White v R 1/1998, followed.
Aust Dig Criminal Law [835]

REPRESENTATION:

Counsel:
           Appellant:  M Brett
           Respondent:  T J Ellis SC and J Hartnett
Solicitors:
           Appellant:  Legal Aid Commission of Tasmania
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2007] TASSC 104
Number of Paragraphs:  21

Serial No 104/2007
File No 408/2007

PATRICK ARTHUR BURLING v THE STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
CRAWFORD J
BLOW J
19 December 2007

Order of the Court

Appeal dismissed.

Serial No 104/2007
File No 408/2007

PATRICK ARTHUR BURLING v THE STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

UNDERWOOD CJ
19 December 2007

1. The appellant has brought this appeal against a sentence of 15 years' imprisonment with a non-parole period of 10 years, imposed upon his conviction for two counts of attempted murder and two counts of aggravated assault. 

1. The single ground of appeal is that the sentence is manifestly excessive.  At the hearing, the appellant's argument was based upon the single contention that with one exception (Martin Bryant), since 1978 the Supreme Court of Tasmania has not imposed a sentence in excess of 10 years for attempted murder and this indicates that some undefined error attended the exercise of the sentencing discretion in this case.

1. In Griffiths v R (1977) 137 CLR 293, Barwick CJ said, at 310:

"… consistency in the sentences imposed by the judges of the District Court is a desirable feature of criminal administration. Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle." [Emphasis added.]

1. In Lowe v R (1984) 154 CLR 606, Mason J (as he then was) stated the principle justifying resort to sentences imposed in the past in this oft-quoted passage at 610 – 611:

"Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."

1. Although his Honour was there speaking with reference to disparity between co-offenders, the principle has general application to the exercise of the sentencing discretion.

1. This Court adopted those principles in Inkson v R (1996) 6 Tas R 1, but with an important rider expressed by Crawford J at 22, where his Honour said, after referring to "the tariff" as a valuable tool:

"It must of course be kept in mind that it is the seriousness of the criminal conduct, more than the category of the crime, which is of paramount importance in the assessment of punishment under the Criminal Code which prescribes, for almost every crime, a maximum sentence of imprisonment of twenty-one years."

1. In R v Liddy (No 2) (2002) 84 SASR 231, Mullighan J said, at 238 that "there has never been a sentencing standard for the worst type of cases". His Honour said that in the worst type of cases proportionality to the gravity of the conduct was the yardstick and adopted the view expressed by Doyle CJ in R v Cadd (1997) 69 SASR 150 at 167:

"The ordinary punishment is applicable to the ordinary case. The ordinary punishment is an approximate standard to be applied making due allowance for the circumstances of the particular case".

1. Mullighan J then made reference to the following passage in the reasons for judgment of Cox J in R v Hooper (1995) 64 SASR 480 at 491:

"It is necessary to say again that a penalty range or tariff for a particular crime, established by the practice of sentencing judges or by decisions made on appeal, is not something rigid and immutable from which no departure, certainly no upward departure, may ever be made. Any standard range is intended to accommodate the ordinary run of cases, but there will be exceptional cases from time to time that fall outside the range: see R v King (1988) 145 LSJS 278 at 280; R v Prendergast (1988) 147 LSJS 486 at 487-488; R v Nixon (1993) 66 A Crim R 83 at 88-89. The overriding principle is always the need to fix a sentence that is proportionate to the gravity of the offence - the principle of proportionality, as it has been called."

1. The fact that a sentence for a particular crime is longer than any previous sentence imposed for the commission of the same crime does not, per se, indicate undefined error in the exercise of sentencing discretion.  Prior sentences set a framework to which reference should be made, and properly used, that reference will assist maintenance of the consistency principle, but in each case, sentence must be determined having regard to the gravity of the criminal conduct, its impact on, and consequences for, those affected by the conduct, and the circumstances of the individual offender.

1. I venture to repeat what I said about this matter in this Court in Harland-White v R 1/1998 at 3 of my reasons for judgment:

However, there is no rule of law that requires a sentence to fall within the range of sentences previously imposed for any particular crime. The sentencing discretion is unfettered by statute. The only requirement of the common law governing the exercise of that discretion is that all the relevant considerations must be taken into account and all irrelevant considerations must be excluded. A relevant matter is that there must be consistency in punishment. (Lowe v R (1984) 154 CLR 606 at 610 - 611). Punishment is imposed for criminal conduct in the commission of a crime or crimes. The seriousness of the conduct is more important than the name of the crime or crimes committed by such conduct. See R v Williscroft [1975] VR 292 at 299; R v Dowie [1989] Tas R 167 at 185. Of course, the range of sentences passed for similar crimes is a relevant matter but no so-called 'tariff' should be applied inflexibly. Any standard range is intended to accommodate the 'ordinary run' of cases but that does not mean that sentence for the same crime must always fall within the range, for that overlooks the importance of the criminal conduct in each case. In this respect I would adopt the following passage from the judgment of Cox J in R v King (1988) 34 A Crim R 412 at 414 - 415. It was subsequently approved by a differently constituted Court of Criminal Appeal (SA) in R v Nixon (1993) 66 A Crim R 83 at 88 - 89:

'In a word, this case is about sentencing standards, but it is important, I think, to bear in mind that when a standard is created, either by the cumulative force of individual sentences or by a deliberate act of policy on the part of the Full Court, there is nothing rigid about it. Such standards are general guides to those who have to sentence in the future, with certain tolerances built into or implied by the range to cater for particular cases. The terms of approximation in which such standards are usually expressed - "about" and "of the order of" and "suggest" and so on - are not merely conventional. The same notion must qualify, in my opinion, any inclination to apply the policy of s302 in a purely mechanical way. It follows that a particular sentence will not necessarily represent a departure from the standard because it is outside the usual or nominal range; before one could make that judgment it would be necessary to look at all of the circumstances of the case. Those circumstances will include, but of course not be confined to, the questions whether or not the offences charged are multiple or single and whether the defendant is a first offender with respect to the particular crime charged. That is not to undermine the established standard but simply to acknowledge that no two cases, not even two "standard" cases, are the same.'

This Court has previously said that the 'tariff' is but one factor to be taken into account in the proper exercise of the discretion. See Devine v R (1993) 2 Tas R 458 at 468; Smart v R A43/1995."

1. As Mr Brett, counsel for the appellant, properly conceded, this case was a worst type of case.  The learned sentencing judge's comments on passing sentence make that quite clear.  He said, in part:

"On the morning of 9 May 2006, the defendant was driving north on the Midlands Highway, south of Brighton.  His manner of driving was so dangerous that the police were notified.  He was swerving from one side of the road to the other and nearly collided with oncoming vehicles.  His driving must have improved as Sergeant Leslie Cooper, who was travelling south on the Midlands Highway passed the defendant without noticing anything untoward.  After Sergeant Cooper was notified of the reports of the defendant's driving, he turned around and drove north to check on the defendant.  As the sergeant came up behind the defendant's vehicle he did not notice anything unusual about the defendant's driving although it was not until the sergeant had driven alongside the defendant, sounded the horn and indicated to the defendant to pull over that he did so.  The sergeant was travelling in a marked police vehicle and he was wearing police uniform.

As Sergeant Cooper walked to the defendant's vehicle the defendant opened the driver's door and turned towards the sergeant but remained seated in his vehicle.  The sergeant asked the defendant if he was alright, inquired whether he had been drinking and told him there had been a complaint about his driving.  The defendant did not reply but moved his right hand in a manner that suggested to Sergeant Cooper that he had a firearm.  The defendant had a .22 calibre Colt self loading shortened pistol.  As the sergeant stepped back the defendant shot him in the face.  The bullet entered the sergeant's right cheek and fractured part of his jaw, passed through the back of his mouth damaging his soft palate, and traumatised his carotid artery.  The sergeant headed for the rear of the vehicle.  He was losing copious amounts of blood from his mouth.  At the rear passenger side corner of the vehicle, the sergeant stumbled and fell face down on the gravel.  He lay still in the hope the defendant would go away.  The defendant did not.  He got out of his vehicle, walked to where the sergeant lay on the ground and shot him in the back twice in rapid succession.  The bullet entry wounds are in the mid-thoracic region of his back.  One is within a centimetre of the spinal column and the other a little further to the right.  A large bullet fragment shattered his eighth rib on the right and there are bullet fragments abutting parts of his T8 vertebra and his T7 transverse process.  After shooting the sergeant, the defendant knelt beside him, said words to the effect of, how does that feel, or how does that make you feel and laughed.

There was a lot of traffic on the Midlands Highway at the time of the shooting.  Of those who went to the sergeant's aid, Charles Zerafa was conspicuous.  He showed great courage.  Although Mr Zerafa knew that the defendant was armed, he approached the sergeant.  The defendant had moved to the side of his vehicle and as he returned he pointed his pistol at Mr Zerafa for a few seconds.  Mr Zerafa stepped back, shouted at the defendant and unsuccessfully endeavoured to engage him in conversation.  After kneeling beside the sergeant, the defendant moved back to the side of his vehicle and Mr Zerafa followed him.  At a point when Mr Zerafa was within reaching distance of the defendant, he again pointed his pistol at Mr Zerafa for a few seconds.  The siren of an approaching police vehicle was then heard.  The defendant threw his pistol into his vehicle and waited until the police officer arrived."

1. At the outset, it must be noted that the impugned sentence was not imposed with respect to one count of attempted murder, but to two counts of attempted murder and two counts of aggravated assault.  The crimes involved two victims, one of whom went to the assistance of the other after he had been attacked, and reference to the Court's records of past sentences must bear in mind that although the sentences were sometimes imposed for a number of related crimes, they mostly concerned single counts of attempted murder (except in the case of Martin Bryant).

1. The crimes were all committed in daylight in a public place and having regard to their nature, no doubt caused alarm, not only for those present, but also for others in the community who later learned of them.  The impact on the victims, particularly the police officer, and their families, was extensive, horrific and permanent.  A serious aggravating circumstance was that the victim of both crimes of attempted murder was a police officer acting in the lawful execution of his duty, who, as the learned sentencing judge observed, put himself at risk in the service of the community.  A further serious circumstance of aggravation is that after shooting the police officer in the face with the intention of killing him, the appellant got out of his car and approached the officer as he lay face down near the back of the vehicle.  There the appellant again attempted to murder his victim by callously and deliberately firing two more bullets into his back.  He followed his criminal act by kneeling down, laughing, and saying words to the effect, "how does that feel?"  The motivation was an irrational hatred of police officers and there was no remorse.

1. During the course of his submissions on the appeal, Mr Brett, quite rightly, said that he could offer no mitigating factor.

1. The appellant was aged 40 years and suffered from hallucinations and paranoia caused by long term abuse of illicit drugs.  At the time the crimes were committed, the appellant was under the influence of drugs and alcohol, but as the learned sentencing judge rightly observed, "it must be borne in mind that his intoxication was self-induced and that he must, in the light of his past, have been well aware of the danger he presents when intoxicated and in possession of a weapon".

1. The reference to the appellant's knowledge about his conduct when intoxicated and in possession of guns, was a reference to the appellant's very extensive criminal record for crimes of violence that the learned sentencing judge detailed in his comments on passing sentence.  He regularly carried firearms and knives.  His criminal record included eight convictions for assault or aggravated assault, 19 convictions for assaulting police and resisting police, and two convictions for firearm offences.  On many occasions, police officers were the object of the appellant's serious criminal violence.

1. The foregoing brief summary of the circumstances of the crime and the circumstances of the appellant make it abundantly clear that this was criminal conduct of the most serious and outrageous kind, calling for the imposition of a penalty in excess of the penalties imposed in previous cases of attempted murder in this State.

1. Professor Warner's Sentencing in Tasmania, 2nd ed, at 272, and the Court's sentencing database, together disclose that in the last 29 years, there have been only 39 sentences imposed for attempted murder (excluding Martin Bryant), mostly single counts.  Having regard to the wide variety of conduct constituting this crime, it cannot be said that there really is any "tariff" for the crime of attempted murder.  It can, however, be said very clearly that in this case undefined error in the exercise of the sentencing judge's discretion is not demonstrated simply by pointing to the fact that this sentence is substantially in excess of any of the sentences imposed for a single count of attempted murder during the last 29 years.

1. Having regard to the gravity of the criminal conduct, its appalling consequences for his victims, and the appellant's extensive record for criminal violence, a sentence of 15 years' imprisonment, with a 10 year non-parole period, was within the proper exercise of the learned sentencing judge's discretion.  I would dismiss the appeal.

   File No 408/2007

PATRICK ARTHUR BURLING v THE STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD J
  19 December 2007

1. I agree.

   File No 408/2007

PATRICK ARTHUR BURLING v THE STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW J
19 December 2007

1. I agree that this appeal should be dismissed, for the reasons stated by the learned Chief Justice.