R v Cranston

[2019] NSWDC 619

District Court

New South Wales

Medium Neutral Citation:	R v Cranston [2019] NSWDC 619
Hearing dates:	28 October 2019
Date of orders:	01 November 2019
Decision date:	01 November 2019
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 74 – 77.
Catchwords:	CRIMINAL – sentencing – common assault – domestic violence – assaulting police officers in the execution of duty and occasioning actual bodily harm – attempting to use an offensive weapon with intent to commit an indictable offence – subjective features – whether Bugmy considerations applicable – special circumstances.
Legislation Cited:	Crimes Act, 1999 Crimes (Sentencing Procedure) Act
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) 1999, No. 2 of 2002 [2002] NSWCCA 515 Bugmy v The Queen (2013) 244 CLR 571 Crimes (Sentencing Procedure) Act Kennedy [2008] NSWCCA 21 Killen [2005] NSWCCA 17 Ohanian [2017] NSWCCA 268 Pearce v The Queen (1998) 194 CLR 610 R v Hamilton (1993) 66 A Crim R 575 TC [2009] NSWCCA 296
Category:	Sentence
Parties:	Director of Public Prosecutions Mr K Cranston
Representation:	Counsel: Ms L Precup (Crown) Ms C Wasley (Defence)   Solicitors: Solicitor for the Director of Public Prosecutions Marsdens Law Group
File Number(s):	2017/332792
Publication restriction:	Nil

Sentencing remarks

Background

1. On 2 November 2017, the offender was involved in a domestic quarrel with his partner. He and his partner resided with two daughters. The offender was intoxicated throughout as a result of the consumption of alcohol: he smelt of alcohol and his speech was slurred. The quarrel escalated into an act of domestic violence against the partner. The partner had the presence of mind to ask one of the daughters to call the police. Police officers arrived but this only enraged the offender. He engaged in a physical struggle and assaulted the police officers; before he was eventually detained.

2. On 20 May 2019, two days after a trial having commenced and after negotiations with the Crown, the offender entered pleas of guilty to the following six counts:

1. common assault [1] , pursuant to s 61 of the Crimes Act.

   1. Given that it was committed against the offender’s then partner, it also constitutes a ‘domestic violence offence’

2. assaulting a police officer (LSC Craig), acting in the execution of her duty and occasioning actual bodily harm, pursuant to s 60(2) of the Crimes Act.

3. assaulting a police officer (Constable Gorgees), acting in the execution of her duty and occasioning actual bodily harm, pursuant to s 60(2) of the Crimes Act.

4. Attempting to use an offensive weapon with intent to commit an indictable offence, namely intimidation, pursuant to s 33B(1)(a) of the Crimes Act.

5. Choking Constable Gorgees and being reckless as to render her incapable of resistance, pursuant to s 37(1) of the Crimes Act.

6. Assaulting a police officer (SC Hollis), acting in the execution of his duty, pursuant to s 60(1) of the Crimes Act.

3. The maximum punishment for these offences and applicable standard non-parole periods for these offences are as follows:

Maximum punishment         

Section 61: 2 years’ imprisonment

Section 60(2): 7 years’ imprisonment (SNPP: 3 years)

Section 33B(1)(a): 12 years’ imprisonment

Section 37(1): 10 years’ imprisonment

Section 60(1): 5 years’ imprisonment

Circumstances of offending

4. The following circumstances are taken from Agreed Facts put before the Court for the purposes of sentencing. The offender is 52 years old. At the time of offending, he was 50 years of age.

5. As at 2 November 2017, the offender was in a relationship with the victim the subject of the first count, Ms Diana Martin. They shared a 12 year old daughter.. Diana Martin had a child from a previous relationship who also resided with her and the offender.

6. At around 4:30pm on Thursday 2 November 2017, Diana arrived home with her daughters to find the offender was already home.

7. The offender and Diana had a conversation. The offender then went out on the balcony and consumed a number of Vodka orange drinks.

8. At some point throughout the evening Diana and the offender began to argue about the children.

9. The offender and Diana were in their bedroom. The offender pushed Diana, causing her to stumble (Count 1).

10. Diana told the offender not to push her and she went towards the kitchen. Due to the offender’s behaviour, Diana asked her daughter to call police, and she did.

11. Leading Senior Constable Craig and Constable Gorgees attended the address and were met at the door by the offender.

12. The offender was intoxicated, smelt of alcohol and was slurring his words. The offender went onto the balcony. Constable Gorgees approaches the offender and spoke with him. Senior Constable Craig spoke with Diana and the children.

13. Constable Gorgees said to the offender, ‘Come off the balcony please I’m concerned about you.’ The offender refused to go inside.

14. Constable Gorgees and the Leading Senior Constable Craig approached the offender placing their hands on his arms. Diana’s mother, Terri Martin, arrived at the unit at this time and stayed with the children.

15. The offender struggled with both officers. The offender’s left leg then pushed out in front of Leading Senior Constable Craig’s path and then pushed against her, causing her to fall onto the couch. Constable Gorgees grabbed at the offender and wrapped her arms around the offender.

16. Both officers struggled with the offender on the floor and asked him to calm down. The offender continued to lash out physically at both officers.

17. Leading Senior Constable Craig requested assistance over the Police Radio and simultaneously the offender grabbed at her handset. Leading Senior Constable Craig wrestled the hand piece away but the offender then grabbed at Constable Gorgees radio cord. The cord was pushed up and around her neck and she said ‘Let go of my cord, you’re choking me’. The offender said, ‘Fuck you choke’ and continued to pull on the cord wrapped around Constable Gorgees’ throat (count 5).

18. Constable Gorgees began to hit the offender with her baton. Leading Senior Constable Craig also tried to stop the offender, he continued to lash out. Leading Senior Constable Craig was able to grab the cord and called out to Diana to try and calm the offender.

19. The officers were able to place a handcuff on his wrist while Leading Senior Constable Craig continued to struggle with the offender.

20. The offender then reached for Constable Gorgees firearm and was able to push the retention strap in an attempt to pull her firearm from the holster.

21. Constable Gorgees called out to Diana’s daughters to get out of the room. The offender threatened to use the gun on the police (count 4).

22. Constable Gorgees yelled out that the offender was grabbing at her firearm. Leading Senior Constable Craig used her body to squash the offender’s hand and continued to hit it until he let go.

23. Constable Gorgees continued to strike the offender with her baton. The offender still had the cord of Constable Gorgees’ radio which caused her to start falling backwards and the offender bit her lower arm. The offender grabbed Leading Senior Constable Craig’s hair and pulled back strongly for three minutes. Both officers continued to struggle with the offender.

24. Other police officers arrived, including Senior Constable Hollis. As the other officers took control of the offender, Senior Constable Hollis was bitten by the offender on the left hand pointer finger through his search glove (count 6).

25. The offender was escorted out of the unit and downstairs to a waiting Police caged vehicle.

Injuries

26. Constable Gorgees suffered two small circular bruises around radial and ulnar border of left forearm and a superficial abrasion of left forearm with two small areas of bruising (count 3).

27. Leading Senior Constable Craig suffered bruising to her head, left wrist and forearm and some bruising

Objective seriousness

28. It is accepted that the offender was intoxicated. Under that condition, his offending was impulsive or spontaneous; and not pre-planned. Although the precise duration of the period when all of this offending occurred is not known, it appears as though it occurred over a relatively short period.

29. As to count 1, the Crown accepted that, given the relatively low level of violence that was involved: there was a push, which caused the offender’s partner to stumble. There was no threat made against the partner. But the offending occurred in the victim’s home. Nevertheless, the offender’s conduct fell very much at the low end of the range.

30. There was no victim impact statement from the partner. I was informed from the Bar table that the partner was generally supportive of the offender in this proceeding.

31. As to count 2, concerning officer Craig, the assault occasioned bruising to the officer’s head, left wrist and forearm, with some bruising and superficial abrasion over the left upper arm. This was not the most serious form of actual bodily harm. The circumstances that the victim was a police officer and that she was assaulted during the course of her performing her duties are already elements to the subject offence, and cannot be regarded as aggravating factors. What is, however, aggravating is that the assault occurred in circumstances where there was:

• a violent struggle (involving hair pulling) (s 21A(2)(a));

• in the presence of children (s 21A(2)(ea)).

32. In relation to this count, the Court received a victim impact statement from officer Craig. In summary, Officer Craig referred to a range of physical issues, the emotional impact of the assault; the impact upon her social life and relationship to others, behavioural changes, financial impact and significant changes to her work environment that were consequential upon the assault upon her. The statement concluded with the following:

“I love my job. I love helping people. I don’t like watching my family worry about me because I am injured. I want a fulfilling career as a full functioning productive police officer. And most importantly, I don’t like seeing families torn apart by incidents such as this one.”

33. In my view, this conduct fell within the mid-range of seriousness for this offence.

34. In relation to count 3, similar considerations apply here as they do for count 2. Here there was also bruising and abrasions, but in the case of the assault on officer Gorgees there was also biting of the officer’s lower arm. The Crown referred me to and I respectfully adopt the observation made by Nicholson SC DCJ in R v Hammond [2006] NSWDC 75 that:

“It should be understood that in this day and age, particularly among people who have had custodial experience, that biting of somebody causes them tremendous stress because of the fear of HIV or hepatitis. That is because those sorts of diseases, which are pretty lethal and disenabling diseases, are transmitted through saliva transfer.”

35. In relation to count 4, which is the most serious of the offences, there is no dispute that this conduct occurred in the context of a struggle with two officers and a threat to use the firearm on the officers. This all took place in the presence of children. I agree, also, with the Crown’s submission that it occurred in a context of escalating violence. Fortunately, the attempt was unsuccessful (a circumstance which the offender’s counsel surprisingly submitted makes the conduct less serious), given the intervention of other officers. I would characterise the conduct as falling beyond the mid-range and towards the high range of objective seriousness.

36. In relation to count 5, this is the next most serious offence in terms of maximum penalty. The conduct involved the use of a police radio to choke a police officer (s 21A(2)(c); if not s 21A(2)(b)). It occurred in the context of offensive, if not threatening language to the officer and in the presence of children. It was conduct that was not planned, but rather the result of an escalation in violence and loss of self-control on the part of the offender. Absent the intervention of other officers, there was nothing to suggest that it would not have continued. I agree with the submission of the Crown that the conduct could not be characterised as a momentary lapse in judgement. I would characterise the conduct as approaching the high range of objective seriousness.

37. In relation to both counts 4 & 5, the circumstance that the victim was a police officer is an aggravating factor (s 21A(2)(a) of the Crimes (Sentencing Procedure) Act).

38. In relation to count 6, the conduct here consisted of biting during arrest. The Crown says that it falls within the lower range of objective seriousness. I agree.

39. My discussion of the objective seriousness of the offences should be read as being subject to the considerations of childhood disadvantage and alcoholism which I refer to further below; which factors, both individually and collectively, lessen the seriousness of each of the offences.

Subjective circumstances

40. The offender is 52 years of age and was aged 50 at the time of the offending.

41. He has antecedents, including some offences of a violent character, however, as his Counsel points out, these last occurred in 2005, so he has been of good character in that regard since. Nevertheless, the occurrence of these earlier offences disentitles him to leniency. The earlier offences do not aggravate the circumstances of the offending to which I have referred.

42. The offender did enter pleas for each count, but that was not at the earliest opportunity. Counsel for the offender submitted that this was the consequence of plea bargaining in which the offender had been faced with a more serious offence (whose maximum penalty was 25 years imprisonment) which, as a result of the bargaining resulted in the withdrawal of the more serious charge. In my view, a discount of 15% on each sentence is appropriate.

43. The Crown accepts that the offending conduct did not involve any planned or organised criminal activity. It also accepts that he is genuinely remorseful. I make those findings in the offender’s favour.

44. The most significant issue in the sentencing hearing concerned the offender’s background. Counsel for the offender submits that there was a family background of dysfunction, featuring exposure to and the actual experience of both domestic violence and sexual abuse. The accused self-medicated with alcohol from a young age. In this way it is suggested that the principles of Bugmy v The Queen (2013) 244 CLR 571 apply. These submissions are centred around the psychological report of Bradley Jones.

45. Mr Jones identified, in particular, two features relevant to the offender’s background. First, alcohol and drug use. He reported that the offender had informed him that he had begun to be given alcohol as early as the age of 6 to get him to sleep and began regularly using alcohol from the age of 14.

46. Secondly, and related to the first point, the offender reported to Mr Jones as having been the victim of sexual assault between the ages of 6 to 14 years, perpetrated by his sisters. He was even part of a ‘sex circuit’ in which children were said to have sex together and adults had sex with children; with parents watching on for their sexual gratification.

47. Mr Jones’ opinion was that the offender’s abuse of alcohol arose as a coping mechanism to manage his feelings of shame, guilt and emotional upset. This fed into a history of a difficulty in being able to sustain relationships. It also had the consequence that alcohol was used as a medicated form of therapy when the offender felt upset and distressed. Mr Jones diagnosed that he had an adjustment disorder with mixed anxiety and depressed mood; an alcohol use disorder of moderate severity.

48. Mr Jones has developed a treatment plan in the realistic understanding of the offender’s past alcoholic use, consisting of cognitive behavioural therapy (to address depression and his history of child sexual abuse), psychotherapy; alcohol relapse prevention counselling and monitoring his support networks. Engagement in this plan, Mr Jones says, should reduce the risk of recidivism and enhance his rehabilitation prognosis.

49. Childhood disadvantage, by itself, is a factor which can reduce the seriousness of an offence. I do not read the High Court’s decision in Bugmy as being confined to institutional social or economic disadvantage of the kind suffered by indigenous offenders[2] . The evidence of sexual abuse of the offender before the Court does support a finding that the offender did have a severely dysfunctional background owing to family sex abuse.

    2. Kennedy [2008] NSWCCA 21 at [53]; also Ohanian [2017] NSWCCA 268 at [14].

50. Although self-induced intoxication is not itself a mitigating factor, a condition of alcoholism may also reduce the seriousness of offensive conduct as it can impair the offender’s capacity to exercise judgment. The Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346 generally indicated that (drug) addiction may be partly viewed as influenced by personal choice, but the element of choice is diminished in a range of circumstances, including where the offender became addicted at a young age, was clearly related to an extremely dysfunctional upbringing [3] and the addiction is a product of sexual abuse [4] . In my view, all these factors are present here. In particular, the alcoholism attributed to the offender is a coping mechanism to his dysfunctional background and it did play a causal role in the conduct of the offender on 2 November. Accordingly, notwithstanding that the general circumstance of intoxication does not mitigate the conduct, the influence of alcohol is relevant in the assessment of the overall seriousness of the conduct and, as I will later indicate, to the weight to be given to general deterrence.

    3. TC [2009] NSWCCA 296 at [51]

    4. Killen [2005] NSWCCA 17 at [16]-[17]

51. The Crown says that the content of the psychologist’s report should be treated with some scepticism because of its self-serving nature. But Counsel for the offender submits that the content is corroborated by the circumstances of the offender having been independently investigated, in the lead up to the Sentencing Assessment report, and also in the letter of Ms Catharine Webb of the NSW Health South Western Sydney Local Health District indicating the offender’s self-referral.

52. It was submitted that it has been only now, as a result of the offending conduct that has resulted in the counts, that the offender has developed a proper appreciation of the extent of his problems and has taken, with some success, steps to rectify his alcoholism.

53. In that regard, Counsel for the offender refers to the statement of Mr Holebeach, the offender’s sponsor in the Alcoholics Anonymous, referring to his success in addressing his ‘dependency’ issues. Against this, the Crown says that abstention from alcohol was part of the offender’s bail conditions. Be that as it may, the success referred to does augur well for his prospects of rehabilitation.

54. The offender wrote a statement to the Court in which he has referred to his own sense of trauma in recalling the events giving rise to the counts, his proactive steps to enrol in Alcoholics Anonymous, and his intention to continue with the counselling he has received in the last two years. I am satisfied, and it is not disputed, that the offender is remorseful.

55. The offender described his conduct as being out of character and, in this regard, relies upon references. One of those is from a participator in the Alcoholics Anonymous, and that referee has indicated his willingness to be his sponsor within the program. He considered that the offender was progressing well within that program and believes that the offender does not pose a serious risk of re-offending.

56. The other reference is from one of the offender’s daughters, Ms Amber Cranston. She confirmed the offender’s attempts at counselling and attendance at AA meetings, his subsequent abstinence and apparent remorse and indications of shame and guilt.

40. The sentence assessment report indicates compliance with bail conditions and the apprehended violence order. That this has occurred over a period of two years advances the submission made on the offender’s behalf as to his good prospects of rehabilitation.

41. He was identified by the corrections officer as presenting with a ‘medium/low’ risk of reoffending. That finding has caused the Community Corrections office to say that if a supervised order is made, it will suspend supervision of him. He has been assessed by Community Corrections as “suitable” to undertake community service work.

42. He has also continued his gainful employment as a boilermaker.

43. Counsel for the offender also submitted that these offences could all have been tried in the Local Court. In my view, however the number of the offences, the objective gravity of the offending conduct and presence of aggravating factors suggest that this Court was far from an inappropriate forum for the institution of proceedings and this matter is of no weight in the circumstances.

Overall assessment

Application of sentencing principles

61. I have had regard to the principles of sentencing under s 3A of the Crimes (Sentencing Procedure) Act. This case is a vivid illustration of those principles pulling in different directions.

62. There is no doubt that general deterrence is of primary importance, particularly when dealing with offences involving police officers. As Gleeson CJ said in R v Hamilton (1993) 66 A Crim R 575 at 581:

“It is incumbent upon the Court, in dealing with offences of this nature, to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task”

63. In the Court of Criminal Appeal’s decision in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) 1999, No. 2 of 2002 [2002] NSWCCA 515, Spigelman CJ, when delivering the leading judgment, said at [22] and [26]:

“The community is dependent to a substantial extent upon the courage of police officers for the protection of lives, personal security, and property. The courts must support the police in the proper execution of their duties and must be seen to be supporting the police, and their authority in maintaining law and order, by the imposition of appropriate sentences in cases where assaults are committed against the police.

….

The authority of the police, in the performance of their duties, must be supported by the courts. In cases involving assaults against police there is a need to give full weight to the objective of general deterrence and, accordingly, sentences at the high end of the scale, pertinent in the light of all the circumstances, are generally appropriate in such cases.”

64. This has obvious salience to counts 2-6 (inclusive). I also accept that general deterrence is very significant in the context of a domestic violence offence of the kind that is count 1. Closely associated with this principle is that of the need for denunciation of conduct. Further, allied to that is recognising the harm to the victims at the time of the conduct: in this case the offender’s partner as well as the physical and emotional effects of the assaults upon the police officers.

65. Nevertheless, as I have indicated, the circumstances, as I have found them, of a dysfunctional childhood marked by sexual abuse and alcoholism moderate, to a degree, the weight ordinarily given to the principles of general deterrence, retribution and denunciation, in favour of rehabilitation.

66. Another important concern given the context for the offending conduct is protection of the community. The evidence before me identifies up to a moderate risk of re-offending so the principle has salience. Nevertheless, an aspect of this principle, relevant to the principle of rehabilitation, which was emphasised by the offender’s counsel was the need for the offender to re-integrate into the community after his punishment and there is a legitimate concern that a crushing punishment will impede that progress. There are, at any rate, (at least) reasonable prospects of rehabilitation.

67. Although I recognise the offender’s good behaviour over the two year period since the offending conduct, his remorse and apparent appreciation and acknowledgement of wrongdoing, the principle of personal deterrence remains applicable. So too is the need to make the offender accountable for his conduct.

68. I take into account, generally the offender’s subjective circumstances, including the more onerous nature of imprisonment on the offender’s age and with the disorders identified. I acknowledge the validity of the submission advanced on behalf of the offender’s Counsel that his treatment plan and general rehabilitation prospects are more likely to be enhanced and less disrupted by a non-custodial sentence. These are all factors which are not only to be weighed in the overall sentence, but they also affect my consideration of an appropriate non-parole period (in addition to the overall consideration of the level of criminality).

Synthesising the considerations

69. Notwithstanding the strong subjective case and the moderated weight given to general deterrence, I am satisfied that, in terms of the totality of the criminal conduct, the section 5 threshold is passed such that there is no other penalty other than a full-time custodial sentence which is appropriate. Counsel for the offender acknowledged that this was so; although she cast counts 1 & 6 as an exception.

70. Counsel suggested that an intensive correction order was an appropriate option. However, given the aggregate sentence I impose in relation to the multiple offences is greater than 3 years, that option is not available (s 68(1) of the Crimes (Sentencing Procedure) Act).

‘Special circumstances’

71. Taking into account the offender’s disadvantaged background, the desirability that his rehabilitation be enhanced by an extended period on parole, the circumstance that imprisonment is likely to be onerous for someone with the disorders identified in the offender, ‘special circumstances’ exist which entitle the offender to reduction in the usual non-parole period.

72. It was common ground as between the Crown and the offender’s counsel that there should be some modest accumulation, on account of the multiple offences, involving multiple victims; even if the criminality might be viewed as the rapid escalation of violence over a relatively short period of time. Most of the factors point to concurrency.

73. The offender has already spent 97 days in custody and that will be factored into the sentence by backdating it.

Sentence

74. Mr Cranston, could you please stand. The orders I make are as follows.

75. You are convicted of counts 1-6 on the indictment (as amended).

76. I propose to order an aggregate sentence to fit the totality of the criminal conduct overall[5] . As to count 1, but for its inclusion with other more serious offences, and had it stood in isolation, I would have been inclined not to impose a term of imprisonment. However, it did precipitate the more serious offences that followed and on that account, a small term of imprisonment is warranted. The indicative sentences that would have been imposed in relation to each count are as follows, after the 15% discount for each sentence:

    5. Pearce v The Queen (1998) 194 CLR 610 at [45]

1. Count 1:                 1 month’s imprisonment
2. Count 2:                 8 months’ imprisonment
3. Count 3:                 8 months’ imprisonment
4. Count 4:                 15 months’ imprisonment
5. Count 5:                 12 months’ imprisonment
6. Count 6                  6 month’s imprisonment  

77. I sentence you for the aggregate period of imprisonment of 3 years and 6 months. The non-parole period is 1 year 9 months. The sentence is backdated because of the period of pre-sentence custody to commence on 27 July 2019 and expire on 26 January 2023. The non-parole period expires on 26 April 2021 and the earliest date you will be eligible for consideration for release on parole will be 26 April 2021.

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Endnotes

Decision last updated: 05 November 2019