R v Langton

[2002] NSWCCA 382

CITATION:	R v Langton [2002] NSWCCA 382
FILE NUMBER(S):	CCA 60844/2001
HEARING DATE(S):	10/09/2002
JUDGMENT DATE:	10 September 2002
PARTIES :	Regina v David John Langton
JUDGMENT OF:	Howie J at 1; Smart AJ at 30

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0207
LOWER COURT JUDICIAL OFFICER :	Stewart ADCJ

COUNSEL :	L M B Lampratti - Crown B W Cross - Applicant
SOLICITORS:	S E O'Connor - Crown Stephen Dack & Associates - Applicant
CATCHWORDS:	Criminal Practice and Procedure - Sentence - Totality - whether cumulative sentences appropriate - whether special circumstances exist for a reduction in the non-parole period.
LEGISLATION CITED:	Crimes Act 1900 - ss 93C, 61, 327
CASES CITED:	R v Fish and Swan [2002] NSWCCA 196 Regina v Chapman (unreported, NSWCCA, 21 May 1998) R v Todd (1982) 2 NSWLR 517
DECISION:	See paragraph 29.

60844/2001

HOWIE J
SMART AJ

TUESDAY 10 SEPTEMBER 2002

REGINA v DAVID JOHN LANGTON

Judgment

1 HOWIE J: On 10 September 2001 the applicant was arraigned before Acting Judge Stewart on an indictment containing six counts as follows:

Count 1: On 22 July 1990 at Kings Cross in the State of New South Wales did use unlawful violence towards another by conduct that would cause a person of reasonable firmness present at the scene to fear for his personal safety.

Count 2: On 22 July 1990 at Kings Cross in the State of New South Wales did assault Cory Brown.

Count 3: On 22 July 1990 at Kings Cross in the State of New South Wales did assault Jason Stockman.

Count 4: On 22 July 1990 at Kings Cross in the State of New South Wales did assault Gregory Mate.

Count 5: On 8 February 1991 at Sydney in the State of New South Wales in judicial proceedings against Cory Robert Brown at the Downing Centre Local Court did make a false statement on oath concerning a matter material to the proceedings knowing the statement to be false, namely a statement to the effect that it was incorrect that, as prisoners were removed from the van, they were assaulted by various police using batons.

Count 6: On 8 September 1993 at Sydney in the State of New South Wales in judicial proceedings concerning Cory Robert Brown in the District Court of New South Wales did make a false statement on oath concerning a matter material to the proceedings knowing the statement to be false, namely a statement to the effect that it was incorrect that, as each person emerged from the truck, those persons were hit on a number of occasions by police with batons, and also punched.

The applicant pleaded guilty to each of those charges.

2 The maximum penalties prescribed by the legislature for each of the offences for which the applicant was to be sentenced are as follows:

Count 1: affray contrary to s. 93C of the Crimes Act - 5 years imprisonment.

Counts 2 - 4: assault contrary to s. 61 of the Crimes Act -2 years imprisonment.

Counts 5 – 6: perjury contrary to s. 327 of the Crimes Act - 10 years imprisonment.

3 On 12 November 2001 his Honour sentenced the applicant as follows:

Count 5 (perjury): imprisonment for two years commencing on 12 November 2001 with a non-parole period of 18 months commencing 12 November 2001 and expiring on 11 May 2003.

Count 6 (perjury): imprisonment for two years commencing on 12 May 2003 with a non-parole period of 18 months commencing on 12 May 2003 and expiring on 11 November 2004.

Count 1 (affray): imprisonment for a fixed term of two years commencing on 12 November 2001 and expiring on 11 November 2003.

Counts 2-4 (assault): on each count imprisonment for a fixed term of 12 months commencing 12 November 2001 and expiring 11 November 2002.

4 The applicant contends that the sentences are excessive and relies upon a number of specific grounds to support the application for leave to appeal. They are as follows:

Ground 1: the sentence failed to adequately take into account matters in relation to the objective seriousness of the offences.

Ground 2: the sentence failed to adequately reflect the period of delay.

Ground 3: the sentence failed to adequately reflect the applicant's rehabilitation.

Ground 4: the sentence failed to adequately reflect the mental state of the applicant at the relevant times.

Ground 5: special circumstances existed which ought to have resulted in a significant adjustment of the non-parole period.

Ground 6: considerations of parity with the sentences imposed upon co-offenders Christine Fish and John Swan require an adjustment downwards of the overall sentence and non-parole periods.

Ground 7: the accumulation of sentences resulted in the overall sentence and non-parole period being unduly lengthy.

Ground 8: no weight, or insufficient weight was given to the fact that the sentences would need to be served in an environment of protection.

5 At the sentencing proceedings on 2 November 2001 the Crown tendered by consent a statement of agreed facts and a number of statements of witnesses from the brief of evidence. It is unnecessary for the resolution of the present application to set out in full the eight pages of the statement of agreed facts tendered before the sentencing judge. The facts of the matters can be dealt with shortly. The first four counts in the indictment arose from a number of connected incidents that occurred in the early hours of 22 July 1990. As a result of a brawl between a number of young men, on the one hand, and a group of off-duty police officers, of which the applicant was one, on the other, the three victims of the assault offences and six other persons were arrested and conveyed in police vehicles to Kings Cross police station. The group of police officers involved in the brawl and other police who witnessed it also made their way to the police station. When they arrived, they obtained police-issued batons from one of the senior officers present, Detective Sergeant Trevor Haken.

6 When the young men, who had been arrested, reached the police station, they were each required to leave the police truck and walk through two lines of police who struck at them with the batons. The applicant was one of the police involved in this activity and it was the subject of the first count in the indictment. One of the young men subjected to this beating was Corey Brown. He was struck a number of times to various parts of his body. He was also kicked when he lay on the ground trying to protect himself. The sentencing judge remarked that Brown and others were injured quite severely as a result of the attacks upon them. Photographs showing welts to his body were tendered.

7 Brown was later removed from a cell where he had been detained and taken to an interview room. He was pushed into a chair by the applicant and punched by him to the mouth with a closed fist. The applicant and other police then punched him repeatedly. This conduct gave rise to the second count on the indictment.

8 Another of the young men arrested was Jason Stockman. After he had been made to run the gauntlet of police officers, he too was taken to an interview room at the police station. There the applicant and other police punched Mr Stockman in the face a number of times. This conduct gave rise to the third count on the indictment.

9 Some time later in the evening seven of the arrested men were returned to a police truck for transport to the Sydney Police Centre where they were to be charged. While taking one of the detainees, Gregory Mate, to the truck, the applicant struck him in the stomach and on the back with a baton he was carrying. This conduct gave rise to the fourth count on the indictment.

10 Each of the eight men arrested were later charged with various offences arising from their participation in the brawl in Kings Cross. Mr Stockton and Mr Brown were charged with the most serious offences including Assault Occasioning Actual Bodily Harm upon two of the off-duty police officers. They all pleaded guilty in the Local Court except for Brown. Charges against him were defended and heard by a magistrate on 7 and 8 February 1991.

11 On 8 February the applicant gave evidence on behalf of the prosecution. During the course of his cross-examination, the following question and answer occurred:

Q. I put it to you that as each person emerged from the van they were assaulted by various police using batons?

A. That's incorrect.

That answer gave rise to the fifth count on the indictment, being the first charge of perjury.

12 Brown was convicted by the magistrate of a number of charges and appealed against his convictions to the District Court. The appeal was heard on 8 September 1993. Once more the applicant gave evidence on behalf of the prosecution and during his cross-examination the following question and answer took place:

Q. And I put it to you that as each person emerged from the truck, those persons were hit on a number of occasions by police with batons and also punched?

A. No.

That answer gave rise to the sixth count on the indictment being the second charge of perjury.

13 The offences committed by the applicant did not come to light until the events of 22 July 1990 were the subject of an inquiry at the Royal Commission into the New South Wales Police Service when an indemnity was provided to Trevor Haken. He gave evidence before the Commission and admitted that police had assaulted Stockman and Brown. As a result of his evidence, in 1996 the matter was referred to police for investigation and on 20 March 2000 warrants were issued for the arrest of the applicant. He voluntarily surrendered himself to police on 18 April 2000. Evidence was placed before the sentencing judge as to the difficulties and delays in the investigation of the matter before charges were laid.

14 As a result of the investigation of this matter a number of police officers were charged. Two, who were convicted after trial of offences similar to that of the applicant and ultimately sentenced by this Court, were Ms Fish (who was at the time of the offence married to the applicant) and Mr Swan, see R v Fish and Swan [2002] NSWCCA 196. Fish was convicted by a jury of one count of perjury and sentenced after a successful appeal to imprisonment for 20 months with a non-parole period of 6 months. Swan was charged with two counts of perjury and was sentenced on appeal to 22 months with a non-parole period of 14 months. I will return to consider the effect of those sentences on this application shortly.

15 The applicant gave evidence before Acting Judge Stewart. His account of the beating of the young men at the police station was to the effect that it was instigated by senior officers, including Haken, after he returned to the police station. He said that he was angry over the violent conduct of the young men earlier that evening and voluntarily joined in the assaults upon them. He believed that Stockman and Brown were the main instigators of the original brawl. He told the court that he believed that the incident was a result of pressures of work and the fact that he was drinking too much alcohol at the time. However, he described his conduct as “shameful”. He said that he committed perjury “to protect his job”.

16 The applicant was dismissed from the police force in 1992 after a violent attack upon another prisoner. He was charged with assault and placed on a good behaviour bond. The sentencing judge expressly stated that he was not taking that matter into account in determining the sentences he was to impose. That is not a view that I would have taken of the further offending but the applicant has received the advantage of that approach. Otherwise the applicant has no criminal record and might generally be regarded as a worthwhile member of the community since his dismissal from the police service.

17 A psychological report, tendered on behalf of the applicant, indicated that he was not suffering from any psychological or psychiatric disorder nor was he displaying any significant psychopathy. He was suffering some lung disease as a result of smoking and experiences shortness of breath.

18 I can see no error in his Honour’s remarks on sentence. He patently took into account all matters that were relevant to the determination of the appropriate sentence. The first four grounds relied upon are to a significant extent merely submissions upon which it is argued that the overall sentence is manifestly excessive. In my view that contention cannot succeed. The offences were all of the most serious nature. The submission was made that there were particular circumstances present to justify a sentence other than full-time custody. With respect that submission is completely unrealistic.

19 The affray must be toward the topmost rung of offences of its type. A number of unarmed young men were savagely and systematically beaten by police officers wielding batons. This was to be punishment inflicted over and above the criminal sanctions that were later to be imposed by courts. I reject the submission that the offences were provoked by the conduct of the young men to such an extent that the criminality was significantly mitigated. This was no spur of the moment retaliation or an isolated loss of temper after which there was immediate contrition. In fact there was no contrition until the applicant faced sentencing by a court. I can see little mitigation arising from the fact that the applicant was suffering from stress at the time and was not coping as a police officer.

20 The perjury offences were also serious, the evidence being given in a criminal prosecution by a police officer, see Regina v Chapman (unreported, NSWCCA, 21 May 1998). Although related to the criminal violence carried out on 22 July 1990, they were separate and distinct criminal acts committed in 1991 and then again in 1993. As was emphasised by this Court in R v Fish and Swan general deterrence was an important factor in sentencing for these offences. They themselves clearly warranted a full-time gaol sentence.

21 The delay in the prosecution was a matter to be taken into account, but much of that delay was caused by the secretive nature of the offences committed by the applicant and to some extent by the fact that the applicant was intending to defend the charges. There was in my view no significant disadvantage suffered by the applicant because of that delay. The trial judge reduced the sentence by 4 months in order to reflect that delay and in my view that was an adequate recognition of the effects of delay upon the applicant. That was, I might add, the view taken by the Court of Criminal Appeal in the sentencing of Ms Fish and Mr Swan.

22 The fact that the applicant had been rehabilitated meant that the sentence did not have to reflect specific deterrence nor did it have to seek to encourage or assist him in overcoming those matters which underlay the commission of the offences. It did not mean that he should not be appropriately punished for what he did. Denunciation of the conduct of a police officer using gratuitous violence and then lying on oath about it is a primary factor in the determination of the punishment for these offences. In so far as the applicant has relied in this Court upon the decision of R v Todd (1982) 2 NSWLR 517 and statements made by the then Chief Justice, and which have been referred to in later cases, I would indicate that I do not believe that these offences were stale, in the use of that term in the decision of Todd

23 Reliance was placed upon the sentences imposed by this Court on Fish and Swan. It is to be noted that they were sentenced only for offences of perjury and not for any participation in the conduct at the Kings Cross police station. However, this Court determined that the sentence imposed upon Swan was excessive by reason of the fact that the sentences for the two counts of perjury were made cumulative. Bell J who gave the principal judgment of the Court stated:

180. The offences were separated by a substantial interval of some two and a half years. However, they were linked in that they arose out of the same set of circumstances. I am persuaded that the sentencing judge erred in determining to make the two sentences wholly consecutive. In the result I am persuaded that the overall sentence imposed in respect of the two offences is excessive.

24 There is little significance in my view to the outcome of this application in the sentence imposed upon Fish. The non-parole period specified in that case was a reflection of the Court’s view of the fact that she had been a victim of domestic violence by the applicant and her offence had to be seen in that light. While Swan was a more senior officer, that in my view has little relevance in the present case in light of the applicant’s significant involvement in the assaults at the police station. Swan also received significant mitigation by reason of his service in the Vietnam conflict and the effect of that upon his mental health. He was also suffering from heart disease. In my view there can be no legitimate grievance held by the applicant in respect of the sentences imposed upon these offenders, notwithstanding that, unlike those persons, the applicant pleaded guilty.

25 Although the sentence in the present case was erroneous in that his Honour made the sentences imposed for perjury cumulative, in my view he was also in error in making the sentence for the affray concurrent with those sentences. The structure of the sentences imposed upon the applicant fails to reflect the seriousness of the offences that occurred at Kings Cross police station. The sentences for perjury could not, in my opinion, comprehend the criminality involved in the offences contained in the first four counts on the indictment. I reject the submission that the offences represented a single course of conduct and would be appropriately dealt with by concurrent sentences.

26 I would maintain the overall sentence of 3½ years but restructure the sentences so that the sentences for the perjury offences would be reduced and made partly cumulative upon the sentence for affray and partly cumulative upon the sentence for affray and partly cumulative as between themselves.

27 As against a head sentence of 3½ years a non-parole period of 3 years is manifestly excessive. His Honour seems to have failed to take into account the result of the cumulation of sentences. There will almost invariably be a finding of special circumstances required when cumulating non-parole periods, otherwise the consequence will be that the normal proportion between head sentence and parole period will be inappropriately reduced.

28 There are no special circumstances in the present case save for the fact that sentences for perjury are to be served cumulatively upon the other sentences. The simple fact that it is the applicant’s first custodial sentence or that he will serve that sentence in protection does not necessarily require a finding that special circumstances exist. It is my view that there is no need for the applicant to have a longer than normal parole period and there is no other matter that would justify a reduction in the non-parole period other than a slight decrease from the statutory proportion by reason of the fact that the applicant was subjected to a delay in the prosecution of this matter. The decrease given to the applicant is a matter by way of some recognition of the effect of that delay upon him.

29 I propose that the following orders be made:

1. The application for leave to appeal is granted and the appeal allowed in part.

2. The sentence for count 5 is quashed. In lieu the applicant is sentenced to imprisonment for 18 months to date from 12 May 2003. There is to be a non-parole period of 6 months to expire on 11 November 2003 the date upon which the applicant is, subject to the next sentence I will impose, to be released to parole.

3. The sentence for count 6 is quashed. In lieu the applicant is sentenced to imprisonment for 18 months to date from 12 November 2003. There is to be a non-parole period of 3 months expiring on 11 February 2004 the date upon which the applicant is to be released to parole.

30 SMART AJ: I agree with Howie J.

31 HOWIE J: The orders of the Court are as I proposed.

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