Gregson v State of Tasmania

[2010] TASCCA 4

[2010] TASCCA 4

COURT:       SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:              Gregson v State of Tasmania [2010] TASCCA 4

PARTIES:  GREGSON, Jarrett Duane
  v
  STATE OF TASMANIA (THE)

FILE NO/S:  CCA 957/2009
DELIVERED ON:  24 March 2010
DELIVERED AT:  Hobart
HEARING DATE:  1 March 2010
JUDGMENT OF:  Evans, Tennent and Wood JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Whether head sentence of 15 months' imprisonment for offences including assaulting a police officer manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  T Jago
           Respondent:  J Hartnett
Solicitors:
           Appellant:  Legal Aid Commission of Tasmania
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2010] TASCCA 4
Number of paragraphs:  18

Serial No 4/2010
File No CCA 957/2009

JARRETT DUANE GREGSON v THE STATE OF TASMANIA

REASONS FOR JUDGMENT  EVANS J

TENNENT J
WOOD J
24 March 2010

Order of the Court

1. Appeal dismissed.

Serial No 4/2010
File No CCA 957/2009

JARRETT DUANE GREGSON v THE STATE OF TASMANIA

REASONS FOR JUDGMENT  EVANS J

24 March 2010

1. Arising from a series of incidents on the night of 17 June 2009, the appellant was convicted on his plea of guilty to two charges of assaulting a police officer, and a number of offences that were dealt with pursuant to the Criminal CodeAct 1924, s385A. Those offences are destroying property (2), unlawfully carrying a dangerous article in a public place, using abusive language to a police officer, threatening a police officer, possessing a thing used for the administration of a controlled drug and possessing a controlled drug or its products. I will refer to these offences and the crimes together as "the offences". The appellant was sentenced to 15 months' imprisonment and it was ordered that he be eligible to apply for parole after serving 10 months of the sentence. He has appealed against the sentence on the ground that it is manifestly excessive.

1. The appellant was 36 years of age when sentenced.  He had a then 6½ year old son by a woman who was referred to in the sentencing hearing as Ms Wylie.  Prior to 17 June 2009, at Ms Wylie's request, the appellant moved to Burnie with a view to resuming a relationship with her.  Their efforts in this regard were not harmonious.  They argued continuously.  The appellant's counsel informed the learned sentencing judge that the appellant had struggled over the years with an addiction to benzodiazepine and with alcohol abuse, and that he had been diagnosed with a number of mental health conditions, including obsessive compulsive disorder.  Counsel said the appellant's arguments with Ms Wylie caused him stress and this stress was accentuated by his inability to obtain medication for his obsessive compulsive disorder, as medical practitioners were aware of his addiction to benzodiazepine and refused to prescribe medication for him.  It was explained that these matters had a bearing on the appellant's mental state on the night of the offences.

1. In June 2009 Ms Wylie and her and the appellant's son were residing with Ms Wylie's mother, Heather Johnson, in a unit in Thirkell Street, Cooee.  On the night of 17 June  they were all at that unit together with a friend.  On the previous night the appellant had been advised that his aunt had been diagnosed with cancer.  During the day on 17 June he received his Centrelink benefit and he exhausted it on groceries, rent and alcohol.  He drank alcohol all that day.  That night, Ms Wylie made a comment in relation to the appellant's aunt which caused him to lose his temper and damage property.  In the course of what then ensued the appellant was denied access to the unit.  Following this he punched and kicked the back door of the unit in an effort to gain entry and in doing so, he broke a glass panel in that door.  (This conduct is the basis of his first conviction for destroying property.)

1. The police were called to the unit at approximately 9.30pm.  At some time, which was probably prior to the arrival of the police, those in the unit, other than the appellant, left.  The first police to arrive at the unit were Constables Cripps, Stanley and Webb.  They saw the appellant smashing property in a very aggressive manner.  Constable Stanley tried to reason with the appellant, but the appellant locked himself behind a glass sliding door to the unit and said, "Yes, I have hostages and I am going to fucking kill them."  As Constables Stanley and Webb tried to speak to the accused, Constable Cripps went to speak to witnesses in an endeavour to ascertain what had happened and whether people were in fact inside the unit.  The appellant then left the unit and approached the police officers, armed with a large butcher's knife.  The police officers retreated.  At this stage Sergeant Turfrey arrived at the scene.  The appellant walked down the unit's driveway towards Constable Cripps whilst pointing the knife in her direction and yelling general abuse.  Constable Cripps called for the appellant to stop.  In fear for her own safety, Constable Cripps drew her pistol and again called on the appellant to stop.  He continued to edge closer to the police officers, and as he did so he waved the knife at Constable Cripps and yelled, "Go on, fucking shoot me, just fucking shoot me".  (This conduct is the basis of his first conviction for assaulting a police officer.)

1. At this point Sergeant Turfrey approached the appellant who then pointed the knife towards the Sergeant and said, "Come any closer and I'll kill you".  (This conduct is the basis of his second conviction for assaulting a police officer.)  Sergeant Turfrey drew his pistol to protect himself and the other officers.  In the course of his career as a police officer, he has not previously found it necessary to draw his pistol in such circumstances. 

1. A total of six police officers attended the scene.  The appellant abused the officers by repeatedly saying, "Fuck off you pig dog cunts" and he threatened them by saying, "You can all get fucked you dog cunt maggots, wait till I see you in the street and I'll fuck you up".  (This abuse is the basis of his conviction for abusive language to a police officer and the threat is the basis of his conviction for threatening a police officer.)

1. At some point during these events the appellant stabbed the bonnet of a police divisional van which was at the scene, leaving eight stab marks on it, and he smashed the driver's side mirror of that van.  (This conduct is the basis of his second conviction for destroying property.)  Some of that which took place occurred in Thirkell Street.  (This is the basis of his conviction for unlawfully carrying a dangerous article in a public place.)

1. After Sergeant Turfrey had drawn his pistol, he approached the appellant who backed away towards the unit.  Constable Stanley then sprayed the appellant with capsicum spray and the appellant re-entered the unit.

1. The police were concerned for the safety of anybody who was inside the unit, as well as the appellant. They broke into the unit where they found the appellant lying on the floor beside a lit smoking device and a bowl of cannabis leaf.  (This is the basis of his conviction for possessing a controlled plant or its products and his conviction for possessing a thing used for the administration of a controlled drug.)  The appellant was again sprayed with capsicum spray, restrained and arrested.

1. The learned sentencing judge noted that the appellant has a lengthy record of prior convictions going back to 1989.  It includes convictions for offences of both dishonesty and violence.  He has five convictions for common assault, three convictions for assaulting police, numerous convictions for resisting arrest, and eight convictions for destroying or injuring property.  The appellant's counsel told the learned sentencing judge that the appellant's record should be attributed to his addiction to benzodiazepine, his abuse of alcohol and his mental health problems.  The appellant's record shows that on 12 November 2008, he was convicted of a number of offences and sentenced to nine months' imprisonment.  Five months of that sentence were suspended on condition that for three years following his release he be of good behaviour and commit no offence involving dishonesty, violence, damage to property, or a breach of a family violence order.  On 23 March 2009 the appellant was convicted of a common assault.  There was some confusion before the learned sentencing judge about the effect of the prison sentence then imposed.  It is accordingly not clear how long before the offences in question were committed that the appellant was released from prison.  What can be said with certainty is that his release was not more than a few months prior to that conduct, and that at the relevant time he was subject to the terms of the partially suspended sentence imposed on 12 November 2008.

1. Counsel for the appellant informed the learned sentencing judge that a matter that had influenced the appellant's behaviour on the night in question was that Ms Wylie had asked him to leave the unit.  Counsel explained that the appellant had nowhere else to go, so he thought he would do something to be arrested in order to get a roof over his head and food.  Counsel said that the appellant had not intended to stab any of the police officers, but acknowledged that he intended to threaten them.  As to remorse, counsel informed the learned sentencing judge that once the appellant sobered up he realised the gravity of what he had done and apologised to one of the police officers involved for wasting that officer's time.  Counsel said that the appellant was very remorseful about what had occurred.  The appellant's pleas of guilty were consistent with that remorse.  However, little more could be made of those pleas as it is difficult to see them as other than bowing to the inevitable.

1. The appellant's counsel on this appeal acknowledged that his convictions clearly warranted a relatively substantial period of imprisonment.  However, she submitted that the sentence that was imposed was too long and went beyond the range that was appropriate for his conduct.  Matters she relied upon as militating against the gravity of the appellant's conduct included that:

·   his conduct amounted to no more than threats;

·   no physical injuries were inflicted or caused;

·   he did not lunge at a police officer;

·   his proximity to the police officers and his conduct towards them were not such as to require an officer to take urgent evasive action:

·   the officers did not have to use physical force in order to disarm the appellant.  The knife was picked up off the floor of the unit near where the appellant was lying when the officers entered the unit; and

·   there is no evidence that there was a large number of people in the vicinity at the time of the incidents. 

1. When, as here, a course of criminal conduct is the subject of an in globo sentence, it is very difficult to establish the sentencing range applicable to the conduct.  Insofar as a range may be gleaned from sentences that counsel have referred to, I am not persuaded that the appellant's sentence goes beyond that range.  By way of illustration I refer to the sentence imposed on Dustin Curtin on 22 April 2009, he was convicted of assaulting a police officer (3), stealing, attempted motor vehicle stealing, injuring property (2), and unlicensed driving.  When interrupted by police as he was stealing a motor vehicle from a car yard, that offender manoeuvred the vehicle so as to face a police officer and threaten to run over the officer.  In driving from the car yard the offender twice rammed two vehicles.  When the offender later came upon a parked police vehicle containing two police officers, he drove at the parked vehicle putting both officers in fear, but swerved away at the last second.  He was sentenced to 15 months' imprisonment and it was ordered that he not be eligible for parole until he had served nine months of that sentence. That offender was 26 years of age and had a poor record of prior convictions, however it was by no means as bad a record as that of the appellant who was 36 years of age.

1. Counsel for the respondent conceded that the sentence imposed on the appellant was at the higher end of the range of sentences for conduct such as the appellant's, but submitted that it was an appropriate sentence given the gravity of his conduct and his circumstances.  As to the gravity of his conduct, counsel referred to:

·   his use of a knife;

·   his threats to kill police officers;

·   the fact that part of his conduct occurred in public;

·   his failure to desist when police arrived;

·   his assertion at the outset of what occurred that he had hostages and was going to kill them, an assertion that had the potential to add significantly to the tension of the confrontation;

·   the need for the Court to denounce conduct that threatens those, like police officers, who put themselves at risk in the service of the community; and

·   the stress and anxiety suffered by the two police officers directly threatened by the appellant.

1. I agree with counsel for the respondent that the sentence is towards the upper end of the applicable range.  In my view, it should be.  The appellant's antecedent history is to be taken into account when considering the appropriate sentence for his offences, albeit that it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of his conduct.  As explained by Johnson J (Hunt AJA and Latham J agreeing) in R v Hamid (2006) 164 A Crim R 179 at par145, the upper boundary of a sentence is to be set by the objective circumstances of the criminal conduct in question, and those circumstances do not encompass prior convictions. However, the offender's prior convictions are pertinent to an assessment of where, within the boundary set by the objective circumstances, a sentence should lie, by reference to the offender's attitude towards the law and any increased weight to be given to retribution, personal deterrence and the protection of society. I add that an offender's history may also disentitle him to any leniency that his circumstances might otherwise have attracted. In this case that history includes the comparatively short period that had elapsed between the appellant's release from prison and the offences in question, and the fact that when he committed the offences he was subject to a sentence that had been suspended on conditions that required him be of good behaviour. As already mentioned, the appellant has a lengthy record of prior convictions going back to 1989. It includes five convictions for common assault, three convictions for assaulting police, numerous convictions for resisting or threatening or abusing police, eight convictions for destroying or injuring property, a firearms conviction, and three convictions for unlawfully possessing a dangerous article in a public place. In 1997 he was sentenced to 2½ years' imprisonment for robbery. He was released on parole in 1999 but that parole was revoked. Between his subsequent release in 2000 and 2006, he was, on six occasions, sentenced to imprisonment, and, on one occasion, sentenced to a suspended term of imprisonment. In some instances, those sentences were imposed on the same date, but each of the sentences referred to was in respect of a different offence or different group of offences. On 2 February 2007, he was sentenced for a number of offences, as well as re-sentenced for a number of offences. He received an effective sentence of eight months' imprisonment from 3 November 2006. Those offences included assault, breaching a restraint order, resisting a police officer (4), threatening a police officer, and abusing a police officer. I have already mentioned the partially suspended sentence of nine months' imprisonment imposed on 12 November 2008. The offences to which it related included convictions for destroying property, common assault, and breaching an interim family violence order. On 20 March 2009 the appellant was convicted of common assault.

1. When regard is had to these matters it can be seen that the subject sentence had to be at the upper end of the applicable range.  In my view the sentence was not manifestly excessive.  I would dismiss the appeal.

Serial No 4/2010
File No CCA 957/2009

JARRETT DUANE GREGSON v THE STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J

24 March 2010

1. I have had the opportunity to read the draft reasons of Evans J in this matter. I agree with those reasons and the outcome he proposes.  I would also dismiss the appeal

Serial No 4/2010
File No CCA 957/2009

JARRETT DUANE GREGSON v THE STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J

24 March 2009

1. I have read the draft reasons of Evans J.  I agree with those reasons and I would also dismiss the appeal.