R v Grosser (No 2) No. Scciv-02-388

R v GROSSER
[2003] SASC 341
Court of Criminal Appeal: Doyle CJ, Prior and Vanstone JJ

DOYLE CJ: I would dismiss the appeal against sentence. I agree with the reasons given by Prior J.
PRIOR J: The appellant appeals against a sentence of imprisonment for 22 years and a non-parole period of 18 years. He says that the sentence imposed is manifestly excessive.
A jury found the appellant guilty of the attempted murder of one police officer and guilty on five charges of endangering the lives of other police officers. The offences occurred in the course of an incident at Nuriootpa in May 1994. STAR Force officers went to the appellant’s rented property in order to arrest him on a warrant issued when the appellant failed to attend the hearing of various fraud charges brought against him.
The STAR Force officers took up positions around the appellant’s house. The officer-in-charge called out the appellant’s name and indicated that police officers were present. The appellant fired several shots from a high-powered rifle shortly after that. A constable, who had taken up a position near a glass sliding door at the side of the house, was hit by a number of the bullets fired by the appellant. That officer suffered severe injuries. He lay where he was for some hours before being rescued. He was fortunate not to have been killed. He underwent a lengthy period of rehabilitation. However, the officer still suffers physically and mentally as a direct result of the shooting.
A siege ensued. It lasted some 40 hours from the afternoon of 3 May 1994. On 5 May 1994, the appellant fired hundreds of rounds of ammunition at the police. The evidence was that thousands of rounds of ammunition had been taken into the roof ahead of that exchange. On the occasion of the siege, the appellant was in possession of some three high-powered rifles.
The five offences of endangering lives of police officers related to shots fired in the direction of police, four of whom were STAR Force officers. The fifth was a detective. He was assisting to cordon the area. The siege ended when police demolished a section of the roof area of the appellant’s house.
The sentencing judge said that the incident which gave rise to the charges had to be considered against the background of a long history of dealings with the police, extending back some years during which the appellant embarked upon a lengthy process of reporting alleged police corruption. This meant that STAR Force officers visited the appellant at his premises on a few occasions. A number of the complaints made by the appellant were about STAR Force police officers. Those complaints related to the occasion the subject of the siege, as well as to others.
The sentencing judge indicated that, on the material before him, he had no doubt that the officers were acting legally and properly in the course of their duty at all times. As for the siege incident in particular, the sentencing judge said that it was plain that the jury rejected allegations made by the appellant against those officers to support his defence of self-defence.
The sentencing judge indicated that he was satisfied that, from the time police arrived on the appellant’s property on the occasion of the attempted murder and endangering lives charges, it was the appellant’s resolve that the police were not going to take him and that “a few of them would have to go down” before the appellant went to gaol. His Honour rejected suggestions made by the appellant that he thought the persons outside were criminals against whom he had informed and that he was therefore frightened of them.
When referring to victim impact statements, His Honour noted that the events have had long-term effects on a number of the victims. In particular, the victim of the attempted murder charge survived his ordeal because of his own strength and determination. The sentencing judge said that it appeared that this victim would not have survived if it had not been for the fact that a number of his colleagues were prepared to put their lives on the line in order to rescue him.
In considering the appellant’s personal circumstances the sentencing judge noted that the appellant had no convictions of relevance to the charges then being dealt with. The appellant claimed to have reformed during the time he had spent in gaol. He expressed extreme regret for the damage done to the police officers. Both those points were made again on appeal.
The sentencing judge’s view was that those expressions of contrition did not sit well with the many allegations made at the trial about the same officers and their alleged conduct during the siege. His Honour said he could not accept the appellant’s expression of remorse in that particular respect was genuine.
The sentencing judge referred to details of the appellant’s early life. His Honour also noted what the appellant had to say about the circumstances of his confinement in prison. Those circumstances were the subject of particular submissions again in the course of hearing this appeal. The trial judge accepted that for a lengthy period of time the appellant has been held in close confinement. His Honour acknowledged that to be a relevant factor to take into account, particularly as it might extend some time into the future.
The sentencing judge said he was prepared to accept that the appellant had a “persecutory” complex. However, His Honour did not accept that that led the appellant into believing as genuine the allegations he made against police officers in relation to the siege.
The sentencing judge also had regard to the sentence imposed by the trial judge who presided over the appellant’s first trial for the same offences. He decided to impose the same penalty after saying that he was firmly of the view that a lesser sentence than that passed by the first judge would be inappropriate. His Honour said that an attempt to murder a police officer in the course of duty was a grave offence and that that particular incident came within the more serious offences in that category. Besides that, the appellant went further and placed the lives of other police officers in danger. The global sentence identified was imposed with both the head sentence and non-parole period commencing from 5 May 1994, the day when the appellant was taken into custody on the charges.
In support of his appeal the appellant invited the Court to consider the same submissions as were put to the sentencing judge. He emphasised that the prospects of rehabilitation were good. The appellant referred again to his assertion that he had a severe “persecutory” complex. He said that this Court should consider that he had been partly punished by authorities already. The appellant referred to the great financial loss suffered as a result of these proceedings. He referred again to the fact that he has had to remain in protective custody since 1993. The appellant claims now to be rehabilitated. He referred to difficulties with his left arm and the additional burden of being in protective custody.
The appellant said he was sorry that people were hurt in the shooting incident. He referred to wanting to protect his two small daughters.
The appellant further invited the Court to act upon the fact that his lifestyle had turned around whilst in prison, especially since 1998. Since then, he says, he has helped other prisoners, especially those who cannot read and write very well, filling out request forms and writing letters for them, as well as telling them about his own spiritual renewal.
The appellant sought compassion from this Court, maintaining that the sentence imposed upon him was manifestly excessive.
The respondent’s submission was that the sentencing judge was right to impose the same sentence as was imposed at the appellant’s first trial. Any lesser sentence would be inappropriate. Whilst rehabilitation is a relevant matter when reviewing a sentence, it was submitted that an offence of this nature was one where general deterrence had to be paramount, not simply in the head sentence but in the non-parole period as well[1]. The appellant’s asserted remorse and contrition were disputed by reference to the allegations made against the victim of the attempted murder charge. Mr Grosser put to him at trial that he was shot by his colleagues because he was a paedophile. The woman who was in the appellant’s house at the time of the siege gave evidence for the prosecution in the second trial. It was put to her that she shot the police officer the subject of the attempted murder charge. There is no proper basis upon which this Court can take any different view from that of the sentencing judge as to remorse and contrition.
[1] R v Creed (1985) 37 SASR 566 at 568; R v Maddeford (2001) 79 SASR 1 at [22]
Nothing put by the appellant persuades me that this is a case which calls for interference by this Court. The offending was the most serious of its type, calling for a substantial and heavy penalty, particularly having regard to the importance of general and personal deterrence, in both the head sentence and the non-parole period. It must not be forgotten that the appellant’s conduct was aimed at police officers, with the appellant seeking to prevent his lawful apprehension. His conduct was planned and deliberate. The firing upon the officer the subject of the attempted murder charge involved two volleys of shots, the second being fired when the victim was already wounded and lying on the ground. After that, the attempted rescue of the wounded officer was inhibited by the appellant keeping the police at bay for some three hours before the wounded officer was rescued, only just in time to prevent his death.
Another circumstance of aggravation relates to the number of rounds of ammunition fired in various directions by the appellant, endangering the lives of many police officers, not to mention the background of hostility that the appellant plainly bore towards the police against the circumstances specifically mentioned by the sentencing judge. The offending has to be categorised as a most serious example of these offences. The head sentence and non-parole period had to reflect the punitive, deterrent and preventative purposes of punishment. In no way can the head sentence or the non-parole period be described as manifestly excessive[2].
[2] R v Creed (1985) 37 SASR 566 at 568; R v Maddeford (2001) 79 SASR 1 at 6
The appeal should be dismissed.
VANSTONE J: I would dismiss the appeal. I agree with the reasons given by Prior J.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.R v Creed (1985) 37 SASR 566 at 568; R v Maddeford (2001) 79 SASR 1 at [22]
2.R v Creed (1985) 37 SASR 566 at 568; R v Maddeford (2001) 79 SASR 1 at 6

[2003] SASC 341

2 October 2003