R v Pearson

Case [2004] NSWCCA 129

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v Pearson [2004]  NSWCCA 129

FILE NUMBER(S):
60450/03

HEARING DATE(S):               29 March 2004

JUDGMENT DATE: 07/05/2004

PARTIES:
Regina
David Wayne Pearson

JUDGMENT OF:       Sperling J Kirby J Bell J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          02/21/3393

LOWER COURT JUDICIAL OFFICER:     Sides DCJ

COUNSEL:
Mr P G Ingram with Mr M Seymour for the Crown
Ms R Burgess for the Applicant

SOLICITORS:
Director of Public Prosecutions
Legal Aid Commission of NSW for the Applicant

CATCHWORDS:
Criminal Law
detaining with intent to obtain advantage
appeal against severity of sentence
no question of principle

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999, s22

DECISION:
(1) Grant leave to appeal
(2) Appeal allowed
(3) Sentence quashed, and in lieu thereof the applicant be sentenced to a term of imprisonment for five years commencing on 18 November 2002, with a non-parole period of three years commencing on 18 November 2002 and expiring on 17 November 2005, that being the earliest date on which the applicant will be eligible for release.

JUDGMENT:

- 9 -

IN THE COURT OF
CRIMINAL APPEAL

60450/03

Sperling J
Kirby J
Bell J

Friday, 7 May 2004

Regina v David Wayne Pearson

Judgment

  1. Sperling J: The applicant seeks leave to appeal against sentences imposed by Sides DCJ. The applicant had been committed for trial on 15 counts under s85A(1) of the Crimes Act 1900, detaining with intent to obtain advantage. The maximum penalty for an offence under s85A(1) is fourteen years imprisonment.

  2. When the matter was listed for trial on 3 February 2003, the Crown accepted a plea to three of the charges, with the 12 other matters of detaining with intent to obtain advantage and one matter of having custody of a knife at a school being taken into account on Form 1. 

  3. On 1 April 2003, the applicant was sentenced on one count, taking into account the Form 1 matters, to eight and a half years imprisonment with a non-parole period of five and a half years.  On each of the remaining two counts, the applicant was sentenced to six years imprisonment with a non-parole period of four years, all sentences to be served concurrently.  In view of time in custody before trial, the sentences were dated to commence on 18 November 2002.  The effective aggregate sentence was accordingly imprisonment for eight and a half years with a non-parole period of five and a half years.

    Grounds of appeal

  4. The applicant relies on the following grounds of appeal:

    (1)(a) His Honour erred in taking into account the objective seriousness of the offences when applying s22 of the Crimes (Sentencing Procedure) Act and assessing the utilitarian value of the plea.

    (b) His Honour erred in his assessment of the applicant’s contrition by:

    (i) taking into account the objective seriousness of the offences,

    (ii) concluding that, because the applicant was prepared to accept legal advice in relation to his plea, he did not demonstrate any genuine remorse.

    (2)His Honour…

Continue reading R v Pearson

Sign in free to access the full text

Details
AGLC
R v Pearson [2004] NSWCCA 129
Case
[2004] NSWCCA 129
Decision Date

CaseChat Overview and Summary

In the case of R v Pearson, the applicant was appealing against the severity of his sentence, imposed by the District Court of New South Wales. The applicant, Wayne Pearson, had pleaded guilty to charges of detaining a teacher and students in a classroom with intent to obtain advantage. The incident occurred due to a family law dispute over access to his daughter. Pearson had entered the classroom with a can of petrol, a knife, and other items, and had barricaded the doors. The situation was resolved peacefully after negotiations with the police and school authorities, and Pearson was arrested without further incident.

The key legal issues in this appeal were whether the sentencing judge had erred in considering the objective seriousness of the offences, the applicant's contrition, and his mental illness. The applicant argued that the judge had not given sufficient weight to his mental health issues and that the sentence was manifestly excessive. The applicant also contended that the judge had erred in his assessment of the applicant's contrition.

The Court of Appeal considered the arguments and found that there was no error in the sentencing judge's approach. The Court held that the sentencing judge had appropriately considered the objective seriousness of the offences, the applicant's contrition, and his mental illness. The Court found that the applicant's mental illness did not absolve him of responsibility for his actions and that the judge had correctly assessed the applicant's contrition. The Court also held that the sentence was not manifestly excessive, taking into account all the relevant factors.

The Court of Appeal dismissed the appeal against the severity of the sentence. The applicant was therefore required to serve the sentence imposed by the District Court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant relies on the following grounds of appeal:(1)(a) His Honour erred in taking into account the objective seriousness of the offences when applying s22 of the Crimes (Sentencing Procedure) Act and assessing the utilitarian value of the plea.(b) His Honour erred in his assessment of the applicant’s contrition by:(i) taking into account the objective seriousness of the offences,(ii) concluding that, because the applicant was prepared to accept legal advice in relation to his plea, he did not demonstrate any genuine remorse.(2)His Honour gave insufficient weight to the applicant’s mental illness.(3)The sentences are manifestly excessive, taking into account the pleas of guilty, the applicant’s mental illness, the fact the he will have to serve his sentences in protective custody, his prospects of rehabilitation, his prior good character and his subjective background.Statement of facts and handwritten note The facts of the episode giving rise to the charges were recorded in a statement of facts which was before the sentencing judge.Throughout the later half of 2001 the prisoner Wayne Pearson was having a family law dispute with his defacto over access to their 12 month old daughter Skye. Family law proceedings at Goulburn court in December 2001 had been adjourned until February 2002 which resulted in a delay in access orders being made. The prisoner was subsequently devastated that he would not have access to his daughter for her first Christmas. On the morning of 20 December 2001 the prisoner purchased a tube of glue and a Wiltshire knife in a sharpening holder from Woolworths at Miller shopping centre. He then attended a Caltex petrol station where he purchased a 5 litre petrol can which he filled with unleaded petrol. He placed these items in a black sports type bag which already contained a cigarette lighter and a pair of scissors.In an effort to contact his defacto regarding the access dispute, the prisoner attended the nearby Miller High School where his defacto’s young brothers attended school as students.At the High School the prisoner was seen to be acting suspiciously. The principal, Mr David Horton, was informed and escorted him off the school grounds. Pearson then went to the nearby Miller primary school still carrying the black bag.Shortly after 9am the victim Miss May Dare was teaching a class of 14 Year 5 students in a classroom at Miller public school. It was the last day of the school term. At about 10.15am the prisoner walked into the classroom where Miss Dare and her students were. This classroom was constructed of wood and was separate from the other buildings at the school and located on the edge of the school boundary. All the windows to the room were covered by heavy duty steel security bars.Pearson placed the black bag on a table and he said to Miss Dare “I want to see the principal”. At this stage Miss Dare was not sure what was happening. She inquired whether she should send a student to the principal’s office and the prisoner stated “yes”. A student, Amne Alrifai, was despatched to the principal’s office. The principal, Mark Myles, was advised by Amne Arifai that he was urgently required in Miss Dare’s classroom. Together with the assistant principal, Vicki Craze, he went to the classroom. The prisoner saw Mr Myles and he said to Miss Dare “I don’t want to speak to him, I don’t like him.”The prisoner then barricaded the 2 doors to the classroom with a table and fridge and a book case. As he was doing this the prisoner was saying “I just want to see my daughter, this is the only way they will listen”. Mr Myles immediately returned to his office and made arrangements for the Police to be notified. He returned to the classroom. Police arrived a short time afterwards and took up positions around the classroom out of sight. Fire Brigade, Ambulance and State Protection Group personnel and trained negotiators subsequently attended the school also.The accused them removed the can of petrol from the bag and sat it on the floor. He stated “I’m not going to hurt the kids.” Miss Dare and the children had to remain in the classroom. Miss Dare yelled from a window “He’s got petrol”.Mr Myles noticed from the verandah window the can of petrol on the floor and saw the accused take the lid off the can. The prisoner then moved more furniture from the classroom in front of the doors to further barricade them. The children remaining in the room were screaming and panicking. Mr Myles then spoke to Pearson through a window on the verandah and requested he come to the rear window to talk. This window was situated at the opposite end of the classroom away from where the children were. The prisoner came to the window and Mr Myles stated “What’s up”. The prisoner was in an agitated state and replied “I just want my daughter. Get me a phone, I want a phone.” Mr Myles arranged for a mobile phone to be brought immediately.The children by this stage were terrified. A few children became hysterical and were physically sick. Mr Myles requested the prisoner release some of the children. Initially Pearson refused saying “No, you’re just trying to get into the room and arrest me.” After being assured by Mr Myles this would not occur, the prisoner gradually permitted the most hysterical children to leave. These students were Kirsty McLennan, Kiera Ellis, Samya Abouschmiess, Monique Osgood and Karen Henry. Karen Henry suffers from an intellectual handicap and was particularly distressed.Mr Myles continued talking with Pearson through the window in an effort to calm him down. He demanded to speak on the phone with his solicitor who was dealing with the family law matter. Pearson had difficulty having the solicitor respond to his phone call. He said to Mr Myles “Okay, tell em I’ve got kids in here and a can of petrol and Police all around the building. I want to speak to my solicitor. Mr Myles then took the phone and attempted to contact the solicitor and explain the predicament he was in. However the solicitor’s office did not take his call seriously and could not assist. Mr Myles then requested the prisoner release more of the children because it was hot and they were scared. He replied “Don’t worry, I don’t want to hurt the kids. I’’ll kill myself before I kill them. I’ve got petrol over my clothes and skin.” He then offered to buy the children drinks and passed a $10.00 note to Mr Myles saying “I’m holding them here, I’ll buy them some drinks and show them that I don’t really want to hurt them.” Mr Myles then left the verandah and walked towards Inspector Colin Patemen who was the Officer in Charge at the scene. Pearson called out to Mr Myles “You make sure you come back and tell them if they do anything stupid they’ll be sorry.”Mr Myles then approached Inspector Patemen. It was decided that as Mr Myles was making good progress with the prisoner then he should continue in the role of negotiator. The drinks arrived and Mr Myles took them to the window. He said to the prisoner “The Police asked if you want to talk to them.” He replied “Get some negotiators here.”Inspector Pateman spoke to the prisoner on the mobile phone and it was agreed he could approach. He walked onto the verandah of the class room and spoke with the prisoner through the window. Mr Myles remained at the window also. Pearson was still in a distressed state and said to the Inspector “I’ve got petrol, don’t do anything stupid, don’t come in here or I’ll light myself.” Inspector Patemen then questioned Pearson as to his reasons for his behaviour and he replied “I want to talk to a negotiator, I want to see my daughter. I want to see my daughter here now.” Inspector Pateman then told the prisoner to calm down before leaving the verandah for a short time to update the State Protection Group of the situation and the prisoner’s demands. The Inspector returned to the verandah and observed the prisoner to be holding an orange coloured cigarette lighter in his right hand. The Inspector spoke at length with Pearson about his family law dispute. During this conversation the prisoner’s moods would change dramatically. At times he would appear rational and in control and at other times he became distressed and agitated. At the end of this conversation the Inspector again left the verandah area and updated other Police and Emergency personnel on the situation. Contingency plans were made to force an entry to the classroom in the event of an emergency.Inspector Pateman returned to the verandah and continued his conversation with the prisoner. During this conversation the prisoner removed a piece of paper from his pocket and appeared to read from the document. He renewed his demand for his daughter to be brought to him. He said “I want my daughter here now, I want her at the window now.” The Inspector made it clear to the prisoner that under no circumstances could his young daughter be brought to the scene. The prisoner again became upset. Pearson then stated he wanted to buy the children some lunch and handed Mr Myles a further $10.00 note for the purchase of some McDonalds.After further discussions and negotiation Inspector Pateman was eventually able to have the prisoner agree to leave the classroom on the condition that a Police car be brought to the area just outside the classroom and he and the Inspector travel alone to the Police Station to further discuss his problems. The prisoner then passed through the window to the Inspector a jumper containing an object wrapped inside. The prisoner said “Don’t worry. It’s not a gun it’s only a knife. I was going to cut my wrists with it.” The Inspector left the verandah and passed the jumper and knife to other Police waiting nearby out of sight. He then returned to the verandah and had a further brief conversation with the prisoner. A marked Police vehicle was driven to a position outside the classroom.The prisoner then commenced to remove furniture from a door. The door then opened and Pearson walked out onto the verandah. The time was 11.26am. The siege of the classroom and the detention of the teacher and students had lasted about one hour and ten minutes.Inspector Pateman removed the cigarette lighter from Pearson’s hand. Other Police then arrested and handcuffed Pearson and escorted him to the Police vehicle. Other Police then entered the classroom and checked on the welfare of Miss Dare and the remaining children. The petrol can and black bag were retrieved.The prisoner was taken to Green Valley Police Station. At 12.53 pm that day he was formally interviewed on video tape by Detectives Gary Miller and Christie Moran. He admitted to going to the class room (Q28) and to barricading the doors. (Q43)He gave a detailed account of his family law dispute. (Q69-72)He agreed that he had written on the piece of paper he had in the classroom a list of the problems he was having at the time (Q86-89) He admitted to purchasing the petrol can and petrol and the knife that morning. (Q90-98)He stated that what he hoped to gain from going to the classroom and keeping the children and teacher there was for someone to listen to him for once. (Q135)After the event Miss Dare and each of the children received formal trauma counselling for four to six weeks. Some children required continued counselling for some months. Reshana Carney continues with counselling to this date.

Evidence

Evidence Before The Court

His Honour reviewed the medical evidence.There is no reliable evidence that he was intoxicated at the time of the commission of the offence. He may have consumed liquor or drugs on the previous evening but I am not persuaded upon the evidence before me that they had any part to play in the commission of these offences. I note that his excessive consumption of liquor in the past had not led to him being involved in criminal activity or breaches of the law, such as drink driving.The Offender was seen by Dr Read a psychiatrist in Silverwater Remand Centre on 23 December 2001. Dr Reznic saw him on 15 February 2002. I accept the opinions of Drs Reznic and Westmore. I accept that, at the time of the offences, the Offender was suffering a major depressive illness. It is also probable that he might have had residual symptoms of post traumatic distress disorder.Dr Westmore expressed the following opinion, that at the time of the offences: “He had a disturbed mood state, a significant disturbance in his biological functions, suicidal thoughts and self harming behaviours. His depression arose in the context of the break down in his family relationships, in particular the separation from his daughter. There was no evidence in his history or documents available about him to indicate that he has suffering from a psychotic condition at the time of the incident and while he was suffering from a mental illness, it is my opinion that he would have been aware of the nature and quality of his actions and he would have had some understanding that his actions were wrong. This latter opinion is supported by his repeated statements that he did not intend to harm any of the children and his other behaviours of concealing the knife from the children and releasing some of the children from the class room after they had demonstrated distress. He does not, therefore, in my opinion have a mental illness defence available to him. The Court however might consider by way of mitigation the nature and severity of this man’s psychiatric problems at the time this incident occurred. The extreme nature of his alleged offending behaviour appears to be quite inconsistent with his autobiographical history and his personality structure. This man does not for example have an anti social personality disorder. While his behaviour has a multi dimensioned aetiology, the role of his major depression in his apparent behaviour was, in my opinion, significant”.The Offender has been treated with appropriate medication, psychiatric care and counselling since the offence. He has insight into the fact that he has been psychiatrically unwell and remains so. He has received counselling in connection with his abuse of cannabis and liquor. He asserts that he has remained abstinent from these two substances since the offences. I note Dr Westmore’s opinion that, notwithstanding the treatment he received since the offence, the Offender’s depressive illness was only in partial remission. Dr Westmore saw the Offender on 13 January 2003. His opinion is consistent with the contents set out in the document from Hunter Health (exhibit 5) dated 23 October 2002. Dr Spruce is his most recent treating doctor. In his report of 24 March 2003 he expresses the view that the Offender’s condition is now controlled by medication. Dr Westmore’s opinion demonstrates that the Offender’s depression has only come under control in relatively recent times. Other evidence available at sentencing hearing concerning the applicant’s mental condition

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.