Director of Public Prosecutions v Callow
[2006] TASSC 39
•1 June 2006
[2006] TASSC 39
CITATION: Director of Public Prosecutions v Callow [2006] TASSC 39
PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS
v
CALLOW, Dwayne Albert
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 12/2006
DELIVERED ON: 1 June 2006
DELIVERED AT: Hobart
HEARING DATE: 22 May 2006
JUDGMENT OF: Crawford, Evans and Tennent JJ
CATCHWORDS:
Criminal Law – Appeal and new trial and inquiry after conviction - Appeal and new trial – Appeal against sentence – Appeal by Attorney-General or other Crown Law officer – Application to increase sentence – Offences against the person – Assaulting police officer – Whether circumstances warrant appellate interference.
Her Majesty's Attorney-General v O [2004] TASSC 53, applied.
Aust Dig Criminal Law [1023]
REPRESENTATION:
Counsel:
Appellant: T J Ellis SC
Respondent: T Jago
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Legal Aid Commission of Tasmania
Judgment Number: [2006] TASSC 39
Number of paragraphs: 29
Serial No 39/2006
File No CCA 12/2006
DIRECTOR OF PUBLIC PROSECUTIONS
v DWAYNE ALBERT CALLOW
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
EVANS J
TENNENT J
1 June 2006
Orders of the Court
Appeal allowed.
In addition to the order of 42 hours' community service that was made on 1 February 2005, the respondent is sentenced to 6 months' imprisonment, all of which is suspended on condition that he is of good behaviour for two years.
Serial No 39/2006
File No CCA 12/2006
DIRECTOR OF PUBLIC PROSECUTIONS
v DWAYNE ALBERT CALLOW
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
1 June 2006
I agree with the reasons for judgment of Tennent J and the orders she proposes.
File No CCA 12/2006
DIRECTOR OF PUBLIC PROSECUTIONS
v DWAYNE ALBERT CALLOW
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
1 June 2006
I agree with Tennent J.
File No CCA 12/2006
DIRECTOR OF PUBLIC PROSECUTIONS
v DWAYNE ALBERT CALLOW
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
1 June 2006
On 1 February 2006 the respondent was sentenced to perform 42 hours' community service in respect of convictions for two counts of assaulting a police officer pursuant to the Criminal Code, s114(1). This is an appeal against that sentence on the basis that in all the circumstances it is manifestly inadequate.
Facts
On the night of 3 and 4 September 2004, the respondent and his partner, Miss Shackcloth, were at the Queenstown RSL Club drinking. At the time there was a restraint order in place requiring the respondent to keep the peace towards Miss Shackcloth and not assault her. However, they continued to live together. At about 1.30am on 4 September, two police officers were waved down in the street by Miss Shackcloth who asked for a lift home to avoid trouble with the accused, who was nearby. Shortly after, the respondent contacted police about her whereabouts. The police then went to the parties' home. In the meantime Miss Shackcloth had come home and the police found the parties arguing. They tried to get the respondent to leave the home but he refused and locked himself in the house.
Miss Shackcloth was outside and became aggressive, banging on windows and smashing them. The respondent came outside with a large kitchen knife. He was told to drop it by police. Instead, he went back inside and the police followed. The respondent faced an officer and yelled, "Fuck off or I will kill you, this is my house and I am not leaving." The officer then drew his firearm and again told the respondent to drop the knife. The respondent refused and waved the knife in the officer's direction. He also turned the knife on himself and threatened self-harm. The officer replaced his gun in its holder.
The officer attempted to negotiate with the respondent. The respondent lunged at him with the knife, forcing the officer to move back to avoid being struck. The respondent then ran off. As he was chased, he threw the knife at the officer, not to harm him but to give up the knife. The respondent was intercepted soon after and handcuffed. He continued to struggle with police at the police station and in fact slipped and fell, cutting his lip. He then spat blood at a police officer, the spittle landing on the officer's shirt.
Prior convictions
The respondent was convicted for resisting a police officer in June 2001 and May 2002 and, on both occasions, fined. In November 2002, he was convicted of trespass and abusing police and again fined. In April 2005, he was convicted for urinating beside a police vehicle, disorderly conduct, injure property (two), assault police and breach of a restraint order. He was sentenced globally to three months' imprisonment which was wholly suspended. There were other convictions for traffic and breach of bail matters and a drink driving offence in 2003. The convictions in 2005 were, of course, not convictions prior to the commission of these offences and they were for offences committed after them.
Plea in mitigation
The respondent was 25 years old at the time of sentence and living still with Miss Shackcloth and her two children, in respect of whom the Court was told the respondent had taken on the role of father. Since leaving school at the age of 16, he has been in continuous employment. He was earning $1,600 per fortnight. Many of his prior matters were alcohol related, which his counsel related to the hard working, hard drinking environment of Queenstown. She said the respondent acknowledged that had got him into trouble and he was trying to distance himself from it, cutting back on his alcohol consumption and drinking more at home.
At the time of these crimes, the respondent's relationship with Miss Shackcloth was volatile. There were numerous arguments and she, in fact, had stabbed him. The parties' relationship, more particularly in the period since April 2005, was more settled. On the particular night, Miss Shackcloth had become involved in an altercation with another male and been threatened. The respondent and Miss Shackcloth left the club. She got a lift with police, the respondent said, because of fear of this other male and not him. The respondent went home, found Miss Shackcloth was not there and rang police. She came home shortly after and they argued.
The respondent had been drinking, he was upset and conceded he reacted badly to police presence. The fact that he turned the knife on himself, it was said, indicted the degree of upset. As to the first assault, it was submitted the respondent lunged at the officer once, he caused no actual harm, the threat to kill was made out of anger, frustration and intoxication, the accused ran away and did not carry the incident on and he surrendered his knife to police. As to the second, it was submitted that while the spitting of blood was serious, the spittle landed on the officer's shirt and as such there was little risk of contamination since it did not touch skin.
Counsel for the respondent submitted that the suspended sentence imposed in April 2005 was having the desired deterrent effect and that in all the circumstances any period of imprisonment which should be imposed now to reflect the seriousness of the crimes could be suspended.
Sentencing remarks
The learned sentencing judge recited the facts, noted the respondent's age, penalties previously imposed for relevant offences, that he had a good, I infer work, record and that he was a family man working at improving the relationship with his partner, which seemed to be the source of trouble. He noted the respondent was drinking less, had pleaded guilty and did not ever intend to use the knife, only to threaten police. He did no actual harm.
His Honour also noted the difficulties police officers face in dealing with drunken angry people and that being lunged at with a knife and having blood spat at you would be a terrifying experience.
He then said:
"In all the circumstances, though, I do not think I should send you to prison. You have never been there before and I do not think you should go there now. I think the appropriate sentence is a community service order."
His Honour then imposed a sentence of 42 hours' community service.
The appeal
The Director of Public Prosecutions made reference to a number of sentences imposed by the Court between 1990 and 2004 for the same, or similar, crimes. All of these matters involved the use of knives, and almost all involved offenders with histories before the courts far worse than the respondent's. All the more recent matters involved periods of actual imprisonment for various periods. Counsel for the respondent sought to distinguish these by reference to the nature and circumstances of the crimes dealt with and the histories disclosed for the offenders.
Both counsel referred to Professor Warner's text, Sentencing in Tasmania, 2nd ed, and the discussion commencing at par11.314 about sentencing for this type of offence. Professor Warner said at 292:
"Therefore, ordinarily, a sentence of imprisonment is the proper penalty. This general rule is subject to the qualification that the need to vindicate the authority of the police does not relieve the court of the obligation to consider the particular circumstances of the offender and the offence. ... There is no burden on the defendant to establish exceptional circumstances to justify a non-custodial penalty."
The Director of Public Prosecutions submitted that in this case there was little which could support a conclusion other than a custodial sentence was the appropriate penalty and that the learned sentencing judge's failure to impose such a penalty represented such a departure from the range of appropriate penalties that it demonstrated error which required correction.
As to the first count to which the respondent had pleaded guilty, the Director of Public Prosecutions said that there was a lunge with a large knife which, but for the officer having taken evasive action, could have hit him; there was a threat to kill; and there was a waving of the knife in the direction of the officer. As to the second count, there was a spitting of blood which landed on the officer's shirt.
Following this incident, the respondent was convicted of similar offences in the Magistrates Court, for which he received a three month suspended term of imprisonment. Counsel for the respondent pointed out the offences for which the respondent was sentenced on that occasion included a breach of a restraint order, which in the climate at the time, and now, of emphasis on family violence matters, made it impossible to tell what weight the assault of police may have had in that sentence.
Counsel for the respondent conceded this sentence was at the low end of the range which could be said to be appropriate. However, she submitted that it was not so low that it required correction. The imposition of community service, for a person working full time who was thus required to give up Saturdays to do it, was a deterrent penalty and adequately recognised the need for personal and general deterrence.
Counsel accepted these were serous offences, but submitted there was no public display of degradation of authority, no intention to harm and no actual harm. The fact that the blood spat at the officer landed on his shirt meant he did not suffer the anxiety which might otherwise have been present, associated with waiting for results of medical tests to determine if there were any adverse effects.
She referred to Professor Warner's words set out above and argued that what the learned sentencing judge did was balance all the factors and conclude the sentence he imposed was an adequate one. She also submitted that the Court should take into account, in determining whether to uphold the appeal, the issue of double jeopardy and the prospect of the respondent again having to face sentence for these crimes and possible loss of liberty. This was particularly so when he had already completed seven hours of his community service. It was also suggested he had suffered anxiety and uncertainty over the whole process.
The Director of Public Prosecutions did not argue with the applicability of the "double jeopardy" principle, that the respondent may have suffered anxiety, or that he had completed part of his community service.
The law
In Her Majesty's Attorney-General v O [2004] TASSC 53 at pars31 to 35 inclusive, Blow J canvassed a number of authorities relating to the principles to be applied in appeals by the State. In par33, a passage from R v Clarke [1996] 2 VR 520 at 522 was quoted. It was said that "Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle." His Honour also said at par36 in relation to the appeal with which he was then dealing:
"36The authorities to which I have referred make it clear that on some occasions a Crown appeal against sentence should succeed even though there is no need for the appellate court to give guidance to sentencing judges or correct the idiosyncratic views of individual judges. In my view the indecent assault committed by the respondent, taking into account the circumstances in which it was committed, was so serious a crime, and the community service order so inadequate a penalty, that this appeal should be allowed."
His Honour went on to deal with the "double jeopardy" principle discussed in Attorney-General v McDonald [2002] TASSC 120. He concluded that the impact of double jeopardy factors was not such as to override the fact that the sentence imposed was so manifestly inadequate.
Underwood J (as he then was) in the same case considered at pars4 and 5 the impact of the "double jeopardy" rule in Crown appeals. He came to a different conclusion, saying at pars7 and 8:
"7If the appeal were to be upheld, and the respondent re-sentenced, the period that he would have to spend in custody would be unlikely to exceed 6 months and, so far as I can see, would not serve to establish any particular principle. In these circumstances, and absent some point of principle, it seems to me unjust to take away the respondent’s liberty and put him in prison because an undefined error, not caused or contributed to by him in any way, infected the sentencing discretion exercised with respect to crimes that occurred two and three years ago.
8Accordingly, I am of the view that although the sentence imposed was manifestly inadequate, and although in lieu thereof a sentence of relevantly short actual imprisonment should have been imposed, the appeal should be dismissed."
This conclusion followed comments at pas4 and 5 of his judgment, where he said:
"4However, I regret to say that I differ from Blow J with respect to the ultimate disposition of this appeal. It is well established that in the case of a Crown appeal against sentence, an appellate court will be slow to intervene because of the so-called 'double jeopardy' rule. The relevant principles applicable in this State were set out in R v Dowie [1989] Tas R 167. The authorities were examined by Deane and McHugh JJ in Malvaso v R (1989) 168 CLR 227 at 234 and approval was expressed of the following passage in the judgment of Barwick CJ in Griffiths v R (1977) 137 CLR 293 at 310:
'On my view of the proper meaning of s 5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.'
5In expressing approval of that statement of principle, Deane and McHugh JJ said that it could be expanded to include an express reference to the need to avoid the kind of manifest disparity or inconsistency in sentencing standards which could be described as being 'error in point of principle'. Their Honours then said, also at 234, that 'Otherwise, [the statement of Barwick CJ] should be accepted as representing general and authoritative guidance to the Courts of Criminal Appeal of this country'. This Court has since proceeded in accordance with those statements of principle. See for example, R v Harland-White CCA 23/1997; R v McDonald [2002] TASSC 120."
Conclusion
In sentencing the respondent in this matter, the starting point should have been a term of imprisonment. The offences were serious. While they did not involve actual physical harm, one involved the significant potential for it. Had, for example, the police officer not taken evasive action, the likelihood is he would have been stabbed. The respondent was waving a knife around in the direction of the officer and threatened to kill him. The respondent may very well have been affected by alcohol, and angry. However, that does not mitigate what was potentially life threatening behaviour.
There would appear to be a perception that violence, or threatened violence, as a first resort when a person is angry or frustrated is somehow acceptable, and if the person is drunk or stressed, such violence should be excused in whole or part. That should not, in my view, be a perception that is fostered by sentences imposed by the Court. That does not mean the Court should not take into account the circumstances surrounding the offence and the circumstances of the offender. However, those should not be given so much weight that they produce a sentence which fails to mark the seriousness of the criminal conduct.
To that end, a sentence of imprisonment albeit wholly suspended would have been appropriate, particularly given the nature of the offences and the respondent's offending history. He clearly had little respect for the police or their authority. I am satisfied the sentence, in those circumstances, was manifestly inadequate and discloses "manifest disparity or inconsistency in sentencing standards which could be described as being 'error in point of principle'" (see Her Majsety's Attorney-General v O (supra)).
I would, in all the circumstances, therefore allow the appeal, and, in addition to the community service order already imposed, impose a sentence of 6 months imprisonment wholly suspended on condition the respondent be of good behaviour for a period of 2 years.
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