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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sloane

Details

AGLC: R v Sloane [2001] NSWCCA 421
Case: [2001] NSWCCA 421
Decision Date: 3 October 2001

CaseChat Overview and Summary

In the case of R v Sloane, the Crown sought an appeal against the sentence imposed by the trial judge on the respondent, who was convicted of assault causing bodily harm. The trial judge sentenced the respondent to a term of periodic detention, which the Crown argued was unduly lenient given the gravity of the crime. The Court of Criminal Appeal was tasked with determining whether the sentence was manifestly lenient and whether the trial judge had adequately considered the relevant sentencing principles, including general deterrence and the objective gravity of the crime.

The court examined whether the trial judge's reasons for the sentence were adequate and whether they had made clear and explicit findings of fact. It was noted that some of the concerns raised by the trial judge related to the respondent's behaviour post-arrest rather than the actual assault, potentially leading to an unfair treatment of the police witnesses. The court also considered whether the sentence was commensurate with the objective seriousness of the offence and whether the trial judge had given sufficient weight to the need for general deterrence. Furthermore, the court assessed whether the sentence of periodic detention was unduly lenient and if the trial judge had erred in law, thereby justifying interference with the sentence.

The Court of Criminal Appeal found that the sentence imposed by the trial judge was not manifestly lenient. The court upheld the principle of double jeopardy and recognised that any unfairness to the police witnesses could not be addressed at this stage. The court concluded that the sentence was appropriate given the circumstances and that there was no basis to interfere with the trial judge's decision. Consequently, the appeal was dismissed, and the original sentence of periodic detention was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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".

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WOOD CJ WOOD CJ

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Ratio Decidendi

Legal Principle Established

Established by: WOOD CJ, WOOD CJ

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