R v Sloane - [2001] NSWCCA 421

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Sloane [2001] NSWCCA 421 revised - 17/10/2001

FILE NUMBER(S):
60518/01

HEARING DATE(S): 3 October 2001

JUDGMENT DATE: 03/10/2001

PARTIES:
Regina
Adam Claude Sloane

JUDGMENT OF: Wood CJ at CL Studdert J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 61/0068

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

COUNSEL:
Mr L. Lamprati for Crown
Ms E Fullerton for Applicant

SOLICITORS:
S E O'Connor
D J Humphreys

CATCHWORDS:
CRIMINAL LAW - appeals - Crown appeal against sentence - whether sentence manifestly lenient - assault - where reasons for sentence inadequate - failure to make clear and explicit findings of fact - purpose of report of trial Judge to Court of Criminal Appeal - whether sentence commensurate with objective gravity of crime - whether insufficient weight given to element of general deterrence - whether sentence by way of periodic detention unduly lenient - error of law - whether court should interfere - principle of double jeopardy - commencement of rehabilitation - delay - no interference with sentence - appeal dismissed.

LEGISLATION CITED:

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No 60518/01
WOOD CJ AT CL
STUDDERT J
BELL J

WEDNESDAY 3 OCTOBER 2001

REGINA v ADAM CLAUDE SLOANE

JUDGMENT

WOOD CJ AT CL: This is an appeal by the Director of Public Prosecutions, pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed upon the respondent by his Honour, Judge Goldring in the District Court, on 22 June 2001.
That sentence was passed following the respondent's conviction, after trial, of an offence of maliciously inflicting grievous bodily harm upon an off duty police officer, Senior Constable Clive Swanston. Two offences of assault were committed upon two other men in the course of the same incident in which Senior Constable Swanston received his injuries. They were taken into account on a Form 1.
The sentence imposed was one of imprisonment for two years and eleven months to be served by way of periodic detention. A non-parole period of two years was set. In imposing this sentence, his Honour took into account a period of broken pre-sentence custody amounting to sixty-five days. It may be observed that since the sentence was passed the respondent has performed the equivalent of nine weeks of periodic detention.
Reasons for Sentence Inadequate
The remarks on sentence were noticeably sparse in relation to the facts upon the basis of which his Honour passed sentence. In part, this seems to have been due to the suspicions which his Honour expressed more than once, although without stating the reasons for them, that the victim and other police witnesses had embellished their evidence, and that in some way the incident had been provoked by Senior Constable Swanston in circumstances where he had been unduly affected by alcohol.
In fairness to the relevant witnesses, and for the assistance of any Court required to review the sentence upon appeal, it was incumbent upon his Honour to have articulated, at the time of passing sentence, the reasons for any doubts which he had, and to make clear and explicit his findings on the facts. This he regrettably and noticeably failed to do. The most which can be drawn from the reasons is that his Honour accepted that the minimum had been established consistent with the jury's verdict.
However, his Honour has since articulated, in a Report to the Court of Criminal Appeal, the reasons for the doubts which he had held in relation to the evidence of the victim and the other police witnesses, and for not imposing "a more severe sentence".
It would appear from this report that he formed a conclusion, in relation to the respondent's objective criminality, solely upon the basis of the evidence of the witnesses other than the victim, his wife, the police and members of their families, whose evidence he reported was "almost totally lacking in credibility".
The observations made in this report, concerning those witnesses, are of an extremely serious kind, so far as they involved conclusions that Senior Constable Swanston had behaved in ways which were "highly provocative and offensively racist", and that the "police evidence gave the impression of having been fabricated in order to prejudice the respondents."
The purpose of a Report to the Court of Criminal Appeal is not to justify or to explain why a Judge has dealt with a matter in a particular way. The proper place for the exposure of reasoning of this kind is in the Reasons for Sentence, and nowhere else. The reasons for that are obvious:
(a) the Reasons for Sentence are the published statement of the Court, addressed to the community at large, as well as to those immediately involved in the case, as to why an offender was dealt with in a particular way;
(b) the provision of an explanation directed to the Court of Criminal Appeal, after a sentence is handed down and an appeal is lodged, risks conveying an impression that the Judge, whose decision has been appealed, is seeking to justify or to support it.
An important function of a Report under s 11 of the Criminal Appeal Act is to inform the Court of Criminal Appeal of any problems which might have emerged during the trial, which either do not appear on the face of the record, or which are imperfectly or ambiguously recorded.
Another permissible and relevant function of such a Report is its use, by a trial Judge, to raise any matters of irregularity or otherwise, which may give cause for significant doubt in relation to a guilty verdict, and which again are not apparent upon a bare reading of the record.
A third permissible reason for such a Report is its provision, in response to a specific request from the Court of Criminal Appeal, in relation to any matter which may be of concern to it.
Otherwise, in times where there is in existence an adequate system for Court reporting, occasion for the provision of a s 11 Report should only arise in exceptional circumstances. Its use in order to justify, or to explain a decision for which reasons should have been provided, is not such a circumstance.
In the present case his Honour offered, as a reason for not having expressed the reasons for sentence more fully, his concern that to do so might inflame what appeared to be a situation of serious racial tension in Condobolin. That did not, in my view, constitute a sufficient reason for the course taken, particularly in circumstances where the trial had been heard in Parkes, more than five years after the date of the offence, where the victim had not returned to work as a police officer, and where only one of the four other police witnesses was still stationed at Condobolin.
Notwithstanding those considerations, and notwithstanding the difficult position in which the Crown and this Court are left, (the former because of the absence of any specific or timely indication of the full nature and extent of his Honour's concerns, to which the Crown Prosecutor might have responded) I consider it proper for this Report, now that it has been provided, to be taken into account.
That is the case because, without having had the advantage of seeing and hearing the witnesses, this Court is not in a position to come to any conclusion itself as to the circumstances in which the incident began, or as to whether anything was in fact done by the victim which bore on the assessment of the respondent's criminality.
I do, however, observe that some of the matters which were of apparent concern to his Honour arose out of the evidence concerning the behaviour of the respondent once he was taken into custody and not out of that related to the actual assault. I am, in these circumstances, left with a distinct and uncomfortable impression that an unfairness may have been occasioned to the police witnesses that cannot now be addressed.
Facts
However, all that we can do, I believe, is to approach the sentence upon the same basis as his Honour, namely by reference to the existence of those bare elements of the offence which were necessary for the jury verdict. That involves the existence of an assault committed in the following circumstances, namely that:
(a)           at about 2am on 25 May 1996 Senior Constable Swanston remonstrated with a group of persons, including the respondent, who had gathered outside the Condobolin Hotel, where he had been drinking, and asked them to move on;
(b)          when he was challenged as to what authority he had to make this request, he showed them his police badge;
(c)           a confrontation developed between Senior Constable Swanston and the group, in the course of which there was some pushing and shoving and words were spoken;
(d)          Senior Constable Swanston's wife, who had also come out of the hotel, became involved in an altercation with some of the women in the group, which left her with a serious injury;
(e)           Senior Constable Swanston went over towards her, leading to the respondent and him “facing up”. At some stage he slipped to the ground whereupon the respondent and another man, Turner, repeatedly kicked him while he was lying defenceless on the ground, leaving him unconscious;
(f)           when admitted to hospital Senior Constable Swanston was seen to have blood all over his face and considerable swelling and bruising. He was admitted to surgery under the care of a maxillo-facial surgeon who found that he had two black eyes and multiple fractures of his mid-face, including a broken nose, broken cheekbones and a displaced broken jaw. As a result of these injuries he has been rendered unfit to return to work as a police officer.
It was the respondent's case at trial, variously, that he had acted in self-defence in kicking Senior Constable Swanston once, that he had been mistakenly identified by those witnesses who said that he had been responsible for the other kicks, and that Senior Constable Swanston had behaved aggressively and in a manner not befitting an off duty police officer so far as he had taunted persons in the group or punched them. There was evidence called by the defence in support of these allegations, as well as evidence called by the prosecution refuting any such misconduct on the victim's part.
Despite the reservations which his Honour had about the manner in which the incident began and then evolved, he nevertheless classified the offence, of which the respondent was convicted, as "a vicious crime which went beyond anything reasonably necessary for his own self-defence", and as "a vicious and extremely serious offence".
In arriving at an appropriate sentence, his Honour paid express regard to that imposed by her Honour, Payne DCJ, upon the co-accused Turner. That was one of imprisonment for two years and eleven months to be served by way of periodic detention, with a non-parole period of seventeen months, taking into account a period of one month's pre-sentence custody. An offence of assault of one other man, arising out of the same incident, was taken into account on a Form 1.
By the time he appeared for sentence the respondent was aged twenty-nine years and had a number of convictions for the theft of motor vehicles, receiving, imposition, and offensive behaviour, as well as for assaults, one being an offence of assault occasioning actual bodily harm. He had served one term of imprisonment for the offence of imposition.
The Pre-sentence Report showed that he had been the victim of a neglected background, having received minimal care from his parents and having been fostered out at the age of six years. He had entered into several relationships as an adult which had been characterised by illicit substance abuse and by domestic violence.
In his twenties he had suffered adverse psychological reactions to his substance abuse, for which he was treated. After this, it was reported, he had refrained from drug use and had moderated his consumption of alcohol. He was planning to marry at the time of being sentenced, had worked as a builders' labourer and had experience as a trainee nurse. In that regard he had commenced but had not completed studies in Aboriginal Health Science.
The Pre-sentence Report suggested that he was a man who was able to control his aggressive nature when not experiencing frustrations. Conflict, however, triggered violent responses. The overall assessment was that he was not lacking a future and that with proper support and assistance there was reason to assume that he could control his behaviour. He expressed contrition in the sentencing proceedings so far as he apologised to the victim.
Submissions
The Crown submits that the sentence was manifestly lenient for an offence that had been categorised by his Honour as "vicious and extremely serious", such as to give rise to an error in law in that:
(a)           the sentence imposed was not one that was commensurate with the objective gravity of the crime;
(b)          insufficient weight had been given to the element of general deterrence, which was important in a case involving an assault of a victim who was known by the offender to be a police officer, albeit off duty, while he was attempting to enforce public order;
(c)           the sentence did not adequately reflect the total criminality involved in the offence charged and the matters on the Form 1; and that
(d)          an order for the sentence to be served by way of periodic detention involved an undue degree of leniency.
It is submitted on behalf of the respondent, by way of a reverse parity argument, that to now increase the sentence for the respondent would be to leave him with a sense of injustice, since:
(a)           the culpability of each of the respondent and Turner was comparable;
(b)          the difference in their subjective circumstances was adequately reflected by the lesser non-parole period given to Turner; and that
(c)           the respondent had progressed well in terms of rehabilitation by the time at which he appeared for sentence.
It was further submitted that the objective seriousness of the offence was mitigated by the circumstances found by his Honour concerning the bearing which the victim's own conduct had in relation to the incident, that being a matter in respect of which the evidence before him was somewhat different from that before her Honour, Payne DCJ.
Finally, it was submitted that, since amendment of the legislation relating to periodic detention, which requires attention to be given to that option once a term of imprisonment has been selected, (R v Wegener (1999) NSWCCA 405); and the consequences which apply in the event of a failure to comply with such an order, the approach previously taken in relation to this form of sentencing option requires some qualification.
Conclusions
In my view insufficient weight was given to the gravity of the offence charged in the indictment. In R v Camilleri NSW CCA, 8 February 1990, Allen J (Gleeson CJ and Finlay J concurring) said:
"In seeking to determine in any case the sentence appropriate to a particular crime, it is always of importance to have regard to the gravity of the offence viewed objectively. Unless that is done, the other factors requiring consideration in order to arrive at the proper sentence cannot be given their rightful place. A sentence imposed must be commensurate with the seriousness of the crime in the sense that it should, having regard to all the proved circumstances accord with the general moral sense of the community. It should also serve as a sufficient deterrent both to the offender and to others. The purpose of that deterrence is to prevent the commission of such offences and, whilst justice and humanity require that the previous character and conduct and the probable future life and conduct of the individual offender should be given the most careful consideration, those are factors which are necessarily subsidiary to the main consideration which determines the appropriate amount of punishment that is the protection of the public. The fundamental purpose of punishment is the protection of society."
See also R v Rushby (1977) 1 NSWLR 594, and R v Dodd (1991) 57 A Crim R 349 at 354 where similar observations were made by this Court.
It is important that sentencing judges maintain a reasonable proportionality between the need to impose sentences which serve to deter others from similar crimes and the need to temper the effect of such sentences with humanity. It is the former to which the latter is usually subsidiary, and persuasive subjective features must not be allowed to blind justice to the objective circumstances of the case. See R v Martin NSW CCA 19 March 1992.
It is this principle, which it appears to me that his Honour has overlooked, in insufficiently weighing the seriousness of an assault which he had otherwise characterised as “vicious”, and which involved a man being repeatedly kicked to the head while lying defenceless on the ground. Any concerns which his Honour held, in relation to the post-event remarks attributed by the police witnesses to the respondent, were of no relevance whatsoever, in that regard.
There are three other aspects which his Honour appears to have overlooked.
First, the courts have consistently stressed that there is a need to impose deterrent sentences upon those who assault police officers whilst discharging the duties of their office: See R v Myers NSW CCA 13 February 1990; R v Cheng, NSW CCA 30 September 1994; and R v Stone (1995) 84 A Crim R 218 at 225. There is no reason to distinguish between police who have been formally rostered on duty and those who, although off duty, seek to exercise their policing powers in order to arrest an offender or to maintain public order. His Honour at best paid lip service to this principle.
Secondly, in cases where an offender has committed more than one offence, the ultimate sentence imposed must reflect the totality of the criminality involved both in relation to the offence charged, as well as any matters included in a Form 1. While the other offences in this case arose out of the same incident, they were not trivial in that the respondent struck one of the other victims in the face and kicked the other man several times in the chest. The fact that such offences have been "taken into account" does not mean that only very little by way of additional penalty should be imposed in relation to the total sentence: See R v Morgan (1993) 70 A Crim R 368 at 372.
Thirdly, periodic detention has been recognised as having a strong element of built in leniency. It is less severe in its denunciation of crime than a sentence involving full time custody: See R v Hallocoglu (1992) 63 A Crim R 287 at 292-294, particularly having regard to the way in which it has been administered. Such a sentence conveys little by way of deterrence and insufficient by way of punishment for an assault that left the victim with very serious injuries having lasting and serious consequences. This was not, in my view, an appropriate case for the option of periodic detention having regard to the objective seriousness of the offence of which the respondent was convicted.
Yet another further error in his Honour's approach to sentencing is apparent on the face of the reasons in that a finding of special circumstances was made without any reasons given for that finding, and without any basis for it being apparent on the face of the record.
So far as the question of parity is concerned, it is the fact that the co-offender Turner was considerably younger and had only one prior entry for a relatively minor matter which had been dealt with by way of a recognisance. He had never previously served any sentence of imprisonment and he had found the short period of pre-sentence custody to be a salutary experience. Moreover, he had pleaded guilty upon arraignment whereupon the respondent had elected to go to trial. Those matters would have justified the respondent being dealt with on a significantly different basis to Turner.
Discretion

Since I am satisfied that the Crown has established material errors of law in the several respects identified, it is next necessary to determine whether the Court should or should not should intervene.
The proper approach, that is to be taken in relation to a Crown appeal, is settled. First, a Court of Criminal Appeal which is dealing with an appeal against sentence does not simply embark upon a process of sentencing afresh, substituting its own opinion for that of the sentencing Judge, and increasing the sentence if it considers it to have been inadequate.
Secondly, this Court exercises a restraint in relation to Crown appeals, not only by reason of the discretion which has long been recognised, but also by reason of the principle of double jeopardy. That principle has particular importance when an offender has already been released from custody and has resumed his place in the community and is on the way to rehabilitation. It is also relevant where the sentencing order is one which does not involve full time custody, since to send an offender subject to periodic or home detention to prison on a full time basis can involve considerable hardship, and can interfere with rehabilitation.
Having regard to the view which I believe the Court should take in relation to this appeal, I consider it appropriate to have regard to the additional material provided to us this morning. Apart from a series of testimonials concerning the respondent, his own affidavit does throw some light on the question of discretion and double jeopardy.
Inter alia it indicates that he does have a supporting family in the community, that he has been undertaking some form of work, although the extent to which he has been able to do so has been affected by the fact that he has been held in limbo pending the hearing of this appeal. It appears that he does have a continuing relationship with his family and he has stayed out of trouble over the period since he was sentenced.
During that period, as I have observed he has commenced to perform the periodic detention, and if this Court declines to interfere, then he will be expected to continue to serve the balance of that sentence and to face the consequences should he fail to perform his obligations.
A further matter of relevance is that this is a matter which is affected by delay. As I observed the offence occurred as far back as 1996. It is true that a significant aspect of that delay is to be sheeted home to the respondent since he failed to appear for trial before her Honour, Payne DCJ, when he was due to appear in the District Court. However, it seems that he has been brought before the Court on a number of subsequent occasions to be dealt with for other offences. Why it is that a warrant was not issued or executed so as to bring him to trial in a timely way has not been explained.
It is always difficult for this Court to deal with a matter which has a delay of a kind which is here present, particularly where, as I observed, rehabilitation has commenced.
Having regard to these very special circumstances, while I am well satisfied that his Honour failed to carry out his duty in this case, it is my view that this Court should exercise its discretion and decline to interfere.
For those reasons I would that propose that the appeal be dismissed.
STUDDERT J: I agree.
BELL J: I also agree.
WOOD CJ AT CL: The order of the Court will be as I have proposed.

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LAST UPDATED: 25/10/2001