Strahan v Brennan
[2014] WASC 190
•28 MAY 2014
STRAHAN -v- BRENNAN [2014] WASC 190
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 190 | |
| 28/05/2014 | |||
| Case No: | SJA:1007/2014 | 1 MAY 2014 | |
| Coram: | MARTIN CJ | 1/05/14 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | AARON GRANT STRAHAN JAMIE BRUCE BRENNAN TROY GREGORY TOMLIN |
Catchwords: | Criminal law Appeal against conviction and sentence Assaults by police officers Use of taser Whether magistrate's reasons were sufficient Selfdefence Defence under s 16 of Criminal Investigation Act 2006 (WA) Whether sentence manifestly excessive |
Legislation: | Criminal Appeals Act 2004 (WA), s 8, s 14(2) Criminal Code (WA), s 222, s 248 Criminal Investigation Act 2006 (WA), s 16, s 70, s 135 Evidence Act 1906 (WA), s 32 Magistrates Court Act 2004 (WA), s 31 |
Case References: | Bennett v Carruthers [2010] WASCA 131 Chan v The Queen (1989) 38 A Crim R 337 Francis v Todd [2011] WASC 185 Johnson v Ayling [2013] WASC 312 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 M v O'Neill [2013] WASC 187 R v Jacob (Unreported, WASC, Library No 2362, 22 June 1978) Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506 Vagh v The State of Western Australia [2007] WASCA 17 Waters v Page [2011] WASC 31 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
JAMIE BRUCE BRENNAN
Respondent
- Appellant
AND
JAMIE BRUCE BRENNAN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE BROMFIELD
File No : PE 19206-19209 of 2013, PE 19201-19212 of 2013
Catchwords:
Criminal law - Appeal against conviction and sentence - Assaults by police officers - Use of taser - Whether magistrate's reasons were sufficient - Selfdefence - Defence under s 16 of Criminal Investigation Act 2006 (WA) - Whether sentence manifestly excessive
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 14(2)
Criminal Code (WA), s 222, s 248
Criminal Investigation Act 2006 (WA), s 16, s 70, s 135
Evidence Act 1906 (WA), s 32
Magistrates Court Act 2004 (WA), s 31
Result:
Appeal dismissed
Category: A
Representation:
SJA 1007 of 2014
Counsel:
Appellant : Ms K A Vernon
Respondent : Mr J Mactaggart
Solicitors:
Appellant : Darren Jones Barrister and Solicitor
Respondent : Director of Public Prosecutions (WA)
SJA 1008 of 2014
Counsel:
Appellant : Ms K A Vernon
Respondent : Mr J Mactaggart
Solicitors:
Appellant : Darren Jones Barrister and Solicitor
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bennett v Carruthers [2010] WASCA 131
Chan v The Queen (1989) 38 A Crim R 337
Francis v Todd [2011] WASC 185
Johnson v Ayling [2013] WASC 312
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v O'Neill [2013] WASC 187
R v Jacob (Unreported, WASC, Library No 2362, 22 June 1978)
Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506
Vagh v The State of Western Australia [2007] WASCA 17
Waters v Page [2011] WASC 31
- MARTIN CJ:
(This judgment was delivered extemporaneously on 1 May 2014 and has been edited from the transcript.)
Introduction
1 On 21 January 2014, Aaron Grant Strahan and Troy Gregory Tomlin were each convicted of three counts of unlawfully assaulting Kevin John Spratt at the Perth Watch House in East Perth on 31 August 2008, following a summary trial in the Magistrates Court. The charges arose from a single series of incidents, and both men and all charges were tried jointly in a single trial. Mr Strahan was acquitted of a fourth count of unlawful assault.
2 Each man was sentenced to a term of 8 months imprisonment on each offence, suspended for a period of 6 months, with each term to be served concurrently. In addition, fines totalling $3,800 were imposed on Mr Tomlin and fines totalling $3,250 were imposed upon Mr Strahan. Each man applies for leave to appeal from his conviction on each count and for leave to appeal from the sentences imposed.
Magistrate's reasons
3 Because of the nature of the grounds of appeal it is appropriate to commence with a brief review of the reasons given by the magistrate. The trial ran over six days of hearing and reasons for decision were given by the magistrate on the seventh day. It can be reasonably inferred that the evidence and the submissions of counsel were fresh in his mind at the time his reasons were given.
4 The magistrate commenced by referring to the charges brought against each accused. At the commencement of the hearing, as the magistrate recorded, each accused admitted (in accordance with s 32 of the Evidence Act 1906 (WA)) that on Sunday, 31 August 2008 they were on-duty police officers with WA Police when each deployed specifically identified tasers against Mr Kevin Spratt in what is described as the Perth Watch House.
5 The magistrate went on to describe the role of each applicant. Mr Tomlin was a senior police constable at the time and was stationed at the Perth Watch House. He was on a shift of 12 hours between 7.00 am and 7.00 pm as a reception receivable officer. He was experienced at working at East Perth where he had been stationed since November 2005. Mr Strahan was at the time a senior police constable and was stationed at the Bayswater Police Station.
6 Mr Strahan and another police officer had arrested Mr Spratt earlier on the day in question in Bayswater. There was a struggle during the course of that arrest and Mr Strahan and the other police officer accompanying him were each kicked by Mr Spratt during the course of that struggle, as the magistrate found.
7 A secure van from the Morley Police Station was summoned and attended the scene, and upon its arrival Mr Spratt was conveyed to East Perth. Mr Strahan gave evidence which was apparently accepted by the magistrate to the effect that another fight took place, and that it took three police officers to put Mr Spratt into the back of the secure van. The van was followed by Mr Strahan and the police officer accompanying him, and Mr Spratt was observed to be kicking the window of the van while travelling to East Perth.
8 Mr Strahan described Mr Spratt's demeanour at the lockup as seeming 'all right' and 'quite normal'. The magistrate also accepted Police Constable Fowler's evidence, in which he described Mr Spratt as 'not aggressive'. Acting Sergeant Gary Christopher Thwaites, who was the officer in charge of the day shift at the Watch House, described Mr Spratt as having arrived just before midday and that he appeared to have been affected by alcohol and/or drugs.
9 The magistrate then described the reception area at the Watch House into which Mr Spratt was taken. He set out his findings as to what occurred in that area in the following terms:
Upon entering the reception area, Mr Spratt walked and appeared to be compliant to the officers' directions and took up a seat, the seat on the bench that is nearest to the reception desk. Once seated, one of his arms was secured to a fixed handcuff attached to the armrest of the bench and the cuffs which had been applied to his wrists at Bayswater were removed by one of the officers. After a period of about eight minutes or so, during which Mr Tomlin asked some standard security questions of Mr Spratt and some property was removed from him - the bum bag and an earring being thrown by Mr Spratt across the reception area and retrieved by one of the officers and placed on to the property desk - the fixed handcuffs were then removed and several of the police officers present, Mr Strahan, being one of them, asked or encouraged Mr Spratt to go down the passageway to the room where the strip searches were regularly conducted (ts 384).
10 The magistrate found that initially Mr Spratt appears to have commenced to comply with these requests. He stood up and started to walk slowly in the direction of the passageway. He is then observed in the video footage to bend over, moving to his left in a 180-degree arc before walking slowly back to the same bench seat and occupying the same seat at which he had previously been seated. Mr Spratt was then described by various witnesses as either taking hold of or wrapping his arms around the lower portions of the two arm rests on either side of him.
11 The magistrate then referred to the two closed circuit television cameras that were located at each end of the reception area, each pointing towards the other.
12 The magistrate then referred to the particulars of the charges which had been brought, which he had ordered to be provided by the prosecutor in relation to each assault. Those particulars set out the specific point in time measured by reference to the time stamp on the video recording at which each offence was said to have taken place. The particulars also refer to the time shown on the taser download report which went into evidence as exhibit D as being the time recorded on each taser as the time at which the particular device was deployed.
13 After setting out those particulars, the magistrate turned to the specific evidence which had been adduced, starting with the evidence of Mr Christopher Damien Markham who gave expert evidence on the subject of taser devices. As the magistrate found, Mr Markham's evidence was to the effect that when operating in probe mode, if the two probes found in those devices come in contact with a person, the apparatus passes the voltage through the person's body causing the experience of discomfort, pain and also incapacitating their control of their motor and muscular operation. As the magistrate went on to find, on the basis of Mr Markham's evidence, when operated in drive stun mode the taser apparatus only affects the central nervous system causing the sensation of pain. The magistrate also found, based on Mr Markham's evidence:
In the event that one of the probes doesn't touch the party's body then the drive stun mode can be used with the other probe still attached and the current, from the evidence of Mr Markham, would then pass from the muzzle of the device through the body, again causing incapacitation. If the other probe is not in situ on the intended recipient's body then only the sensation of pain would be experienced (ts 389).
14 Significantly, according to the magistrate, Mr Markham in his evidence indicated that members of the police force are instructed that these devices are not to be used for the purposes of compliance.
15 The magistrate went on to find that Sergeant Thwaites had authorised Mr Tomlin to draw a taser prior to the arrival of Mr Spratt at the Watch House and that Mr Tomlin carried the device on a belt in a holster positioned on his left hip, with the butt of the taser positioned so that it could be readily drawn out of the holster with his right arm. Mr Strahan was carrying a taser at the time he and his companion were on patrol in Bayswater, and brought that device with him to the Watch House.
16 The magistrate went on to refer to the recordings that were made on the two closed circuit television cameras. He described those images and made various findings based on them. He found that the images show Mr Spratt seated and after being well behaved during the period prior to being requested to go for a strip search, his apparently cooperative mood changed. He also observed that the evidence suggested that while in custody on the previous evening, Mr Spratt had also been the subject of a strip search. It was apparent that he was not prepared to cooperate to undergo such a procedure again.
17 As outlined, after initially appearing to cooperate with the request of the various officers encouraging him to move to the room used for the strip search, while seated on the bench seat between the two arm rests Mr Spratt positioned his body so that his arms were holding or wrapped around the arm rest. This body posture was clearly indicative, and could reasonably be perceived by those who were seeking to have his cooperation in going to have a strip search conducted in private, that he was preparing himself to resist the officers' endeavours to take him for the strip search, and that was done by holding onto the arm rests.
18 The magistrate then described the conduct and actions giving rise to the convictions based on what was obviously a detailed and careful review of the video recordings. He referred to the first count brought against Mr Tomlin in these terms:
Mr Tomlin, after this kicking at or near the hand of Mr Sprat, then endeavoured to remove Mr Spratt's fingers from the armrest. He was unsuccessful. He then said, 'Give me your arm or I'm going to fucking taser you'. Moments later there was another utterance which I found was that of Mr Tomlin and he says in a loud and assertive voice, 'Now'. Mr Spratt is then heard to cry out, 'Ah' and the audio records a crackling sound, something like static on a radio (ts 390).
19 The second count brought against Mr Tomlin was described by the magistrate, based on his observations of the video recordings. Mr Tomlin is described as attempting to reholster his taser but being unsuccessful, Mr Strahan is shown to have holstered the taser that he was holding in his right hand and moving forward and taking hold of Mr Spratt's legs. Another police officer is observed in the video images to move in towards Mr Strahan's right-hand side and appears to also take hold of his leg. At this point Mr Spratt yells out, 'Ah', and the crackling sound is heard on the video.
20 At this point in his reasons the magistrate appears to make no reference to the third count brought against Mr Tomlin. He does, however, go on to refer to the various counts brought against Mr Strahan. In relation to the first count against Mr Strahan, after describing the fact that Mr Spratt had raised himself onto his knees to a vertical position facing the left-hand side of Mr Strahan and the corner of the room away from the reception desk, the magistrate then observed that:
Mr Spratt is heard to utter a scream … and the crackling sound which I find is emitted from the laser [sic] held by Mr Strahan is clearly audible and Mr Spratt then falls to the floor, lying on his left-hand side, near to and parallel to the front of the bench seat with his head towards the sallyport end of the reception area (ts 391).
21 The magistrate then referred to the second count against Mr Strahan. He observed:
Just prior to the time recorded on the video, 12.10.09 a voice is heard to call out, 'Do you want to go again? Do you want to go again?(ts 391)'
22 The magistrate found that those words were uttered by Mr Strahan who, at the time, was depicted on video as standing in close proximity to Mr Spratt. A glimpse of the taser, yellow in colour, could be seen in his right hand at the time those words were spoken. The magistrate found that Mr Spratt yelled out again, and that the sound of crackling, found to be deployment of the taser, was once again clearly audible.
23 The third count against Mr Strahan was referred to by the magistrate as occurring at 12.10.28 when Mr Strahan was depicted on the video unholstering his taser and immediately thereafter the crackling sound of its deployment is heard. Then the magistrate observes that Mr Spratt was moved by various police officers present towards the reception desk which was the furthest from the sallyport. At 12.10.40 a cry, which the magistrate found to be that of Mr Spratt, can be heard in the video.
24 The particulars provided by the prosecution alleged that a tasering by Mr Strahan occurred at 12.10.42. The magistrate found that at that time there was no audio nor was there any camera view of Mr Strahan having contact with Mr Spratt. The magistrate described the images as inconclusive as to whether Mr Strahan was in close enough proximity to Mr Spratt to apply electrical force to him. This count, the fourth count on Mr Strahan's indictment, was ultimately dismissed.
25 After referring to the conclusions which he drew from the video recordings the magistrate referred to a number of statutory provisions including provisions of the Criminal Code (WA) (the Code). He observed that Mr Spratt was a detainee in lawful custody and was therefore covered by the provisions of the Criminal Investigation Act 2006 (WA) (CI Act) and referred to a number of the sections of that Act. He also referred to ch 26 of the Code which provides a number of lawful excuses for other criminal conduct, and in particular s 248 of that Code which relates to self-defence.
26 The magistrate then dealt with evidence given by Mr Tomlin with respect to a threat which, according to Mr Tomlin, Mr Spratt made to him before the taser was applied. The magistrate made his findings in respect of that evidence in these terms:
Now, in his evidence the accused, Mr Tomlin, described that, whilst he was in close proximity to the face of Mr Spratt, that he heard Mr Spratt utter, 'I am God. I am the devil. I'm going to kill you'. Mr Tomlin also described that Mr Spratt glared at him and that he was, at the time, grinding his teeth at him. These words weren't heard by any of the other witnesses who were called, however, the reference to the devil is consistent with the evidence given by Mr Strahan and also Mr Fowler regarding utterances made where [sic] the two of them were detaining Mr Spratt awaiting assistance in the form of the security van from the Morley Police Station.
The utterances attributed to Mr Spratt by Mr Tomlin were not recorded and are not able to be heard audibly on the exhibit C that is the DVD with visual and audio recordings and as I've already mentioned, that recording, on occasions, cuts out audio altogether and there are images of Mr Spratt mumbling whilst he was waiting prior to the request to accompany officers to the room for the strip search where his utterances are not decipherable from the audio and, indeed, officers describe that they couldn't understand clearly what he was talking about (ts 395 - 396).
27 The magistrate went on:
It is significant when viewing the video carefully, as the court has now had the opportunity to do, that at the time when Mr Tomlin says the words, 'Give me your hand or I am going to fucking taser you', and then after a momentary pause, there's the other words said which I attribute to Mr Tomlin and I find was Mr Tomlin's statement now, that Mr Tomlin was not then leaning down. I do not believe the accused Tomlin that the words were either said, as the actions that he took in respect of the use of the taser were immediately after he made the utterances, 'Give me your arm or I am going to fucking taser you now', and then we hear and see the consequences of the deployment of the taser with Mr Spratt yelling out, as I perceive, in anguish and then falling face down on the floor (ts 396).
28 The magistrate applied that finding to the issue of self-defence which had been raised before him and observed:
The issue of self-defence in the court's assessment as a result of this finding of facts does not have any application to these circumstances (ts 396).
29 He went on to observe in the same context that:
Mr Markham's evidence would indicate that the use of the taser in that mode [the drive stun mode], would only give rise to a sensation of pain and not incapacitation (ts 396).
30 In relation to the second count brought against Mr Tomlin the magistrate went on to observe that:
The further application of force in respect to the second deployment of the taser by Mr Tomlin was also in the drive stun mode. It's clear that he had difficulty holding on to the [sic] Mr Spratt, because he only had one hand on Mr Spratt's arm, but the use of the taser, again, to administer the sensation of pain, was neither authorised, justified or excused by any provision contained in the Criminal Code. Mr Spratt was being held by both arms and immediately prior to the - discharging the taser, Mr Tomlin had his foot in the small of Mr Spratt's back (ts 396).
31 I digress to observe that the references by the magistrate to the lack of justification or excuse would appear to be an implicit reference to s 248 of the Criminal Code relating to self-defence.
32 In relation to the third count the magistrate went on to observe:
The images in the footage, as I have already described, showed that there was application of force by Mr Tomlin on a third occasion and, as particularised, I find that that was an assault neither authorised, justified or excused in respect of any provision contained in the Criminal Code (ts 396).
33 I digress to observe that it is not correct that the magistrate had earlier described images in the footage which depicted the third count brought against Mr Tomlin. That is a matter to which I will refer in the context of ground 6 of the appeal brought by Mr Tomlin. Again, the reference to lack of authorisation, justification or excuse appears to refer to the provision of the Code relating to self-defence.
34 Having dealt with the charges against Mr Tomlin, the magistrate went on to refer to the counts brought against Mr Strahan. In relation to the first count he repeated his earlier finding to the effect that, contrary to evidence initially given by Mr Strahan but later modified, in fact Mr Spratt was in a kneeling position with his legs and upper torso vertical when Mr Strahan first discharged the taser in the probe mode. Then, as the magistrate found, Mr Spratt is shown clearly to be incapacitated, falling and positioning himself parallel to and immediately in front the front of the bench seat in the Watch House.
35 In relation to the second count against Mr Strahan the magistrate repeated his earlier finding to the effect that Mr Strahan said, 'Do you want to go again? Do you want to go again?', and that the device is then heard being deployed as the crackling sound indicates.
36 In relation to the third count against Mr Strahan the magistrate observed that:
[T]he third deployment suggested that Mr Tomlin was in danger of being injured by Mr Spratt with whom Mr Tomlin was then grappling, but the video footage did not suggest that that was, in fact, the case (ts 397).
37 Again, that seems to be a finding quite expressly excluding the possibility of self-defence based upon the threat of harm to Mr Tomlin.
38 In relation to the fourth count against Mr Strahan, the magistrate concluded that the evidence did not allow him to conclude that the deployment of the device had made any contact with Mr Spratt at the time the subject of the fourth count and for that reason he acquitted Mr Strahan on the fourth charge.
39 Submissions were then made with respect to penalty and the magistrate reserved his decision on sentence until the following day. That day he gave reasons for the sentences to which I have already referred. He commenced those reasons by referring to the maximum penalty available in respect of the offences of which each man had been convicted; 18 months imprisonment and a fine of up to $18,000 on each count. He referred to Mr Spratt's status as a detainee and went on to observe that:
There are, no doubt, many occasions where officers are also confronted with violent detainees. In this instance, most significantly, the fact that the footage, none of it, none of the images depicted therein show Mr Spratt acting in that manner during the period within which the three unlawful assaults committed by each of you upon him. The images do show that he was struggling which is an understandable reaction to the persistent application of an electrical force upon him by you, Mr Tomlin, by the deployment of a taser in the drive stun mode which clearly caused him personal discomfort by, and as evidenced by the audible utterances in which he loudly and protractedly cries in anguish (ts 423 - 424).
40 The magistrate went on:
Similarly, Mr Strahan, you deployed the taser upon Mr Spratt on the first occasion in the probe mode which resulted in him falling to the ground, as the images clearly show. You then on two further occasions deployed the taser upon Mr Spratt in the drive stun mode, and all of these deployments resulted in him crying out in anguish. I suggest respectfully, that to categorise Mr Spratt's utterances as being cries of joy is fanciful. At the time of the offences the victim was in custody. He could not flee from either of you once whilst those unlawful assaults were committed upon him.
He, like many detainees, was in an extremely vulnerable position at the time and each of you had a duty of care towards him (ts 424).
41 The magistrate then referred to a number of provisions of the Sentencing Act 1995 (WA) and to the personal circumstances of each applicant, noting that neither had any previous convictions and that each was of exemplary character, having devoted a significant part of their working lives to their occupation as sworn police officers. The magistrate went on to note that the events which had brought the applicants before the court had had an 'obvious significant deleterious effect' on their chosen careers and went on to note that the offences were committed over a relatively brief period of time (ts 426). What was significant, however, in the view of the magistrate, was that the offences were committed whilst the victim was in custody.
42 The magistrate went on to find that there was no evidence to the effect that the assaults upon Mr Spratt had caused him any long-term harm and concluded that specific deterrence was not a significant factor in either case because there was no appreciable risk of reoffending in the case of either offender. The magistrate also noted that penalties had previously been imposed upon each man as a result of internal disciplinary proceedings undertaken by the police force.
43 The magistrate concluded that imprisonment was the only appropriate penalty and that each would be sentenced to a term of 8 months imprisonment in respect of each of the three charges. He then went on, in the second step of the process, to express his conclusion that each term of imprisonment should be suspended because neither man represented a threat to the community and that taking into account the protracted way in which the case had come before the court it was appropriate to apply a somewhat briefer period of suspension than would ordinarily be the case. He fixed the period of suspension at six months. He then imposed the sentences to which I have referred.
44 It is clear from the remarks as a whole that for the magistrate the most significant factor was the circumstance in which the offences were committed, particularly that Mr Spratt was in custody and vulnerable, not only because he was in custody but also because of his evident physical condition, and the need in that circumstance for general deterrence.
Grounds of appeal
45 There are a number of grounds of appeal in each application. Some of them overlap and some of them are separate and distinct. The first ground in each notice of appeal concerns an alleged inadequacy of the reasons given by the magistrate but, as counsel for each applicant pointed out, that ground depends significantly upon assertions made in support of separate grounds of appeal to the effect that not only are the magistrate's reasons inadequate but also that there was no evidence capable of sustaining any adverse finding with the result that the conviction should be set aside. In those circumstances it is more convenient to deal with the question of the adequacy of the magistrate's reasons after dealing with those specific grounds of appeal.
46 Ground 2 in the Tomlin appeal raises an issue which is pertinent only to Mr Tomlin. It asserts that the magistrate erred in fact in finding that after Acting Sergeant Moore had kicked at or near the hands of Mr Spratt, Mr Tomlin endeavoured to remove Spratt's fingers from the arm rest when such a finding was against the weight of the evidence. I have already set out the magistrate's findings in that regard and it is clear that he did find that Acting Sergeant Moore delivered a kick in the direction of Mr Spratt's arm prior to the application of the taser.
47 It is also clear from my careful and repeated observation of the video recordings, both of which capture Sergeant Moore's kick, that in this respect the magistrate was in error. The kick was plainly delivered either simultaneously with the application of the taser or perhaps after the taser was first applied.
48 The question which then arises, by reason of s 14(2) of the Criminal Appeals Act 2004 (WA), is whether that erroneous finding of fact has caused a miscarriage of justice or more correctly whether the court is satisfied that notwithstanding the factual error made by the magistrate no substantial miscarriage of justice has occurred. In this context it is said by counsel for the applicant that the error was relevant to the issue of self-defence. I do not agree.
49 It does not appear to me that the timing of the kick had any material significance to the issue of self-defence. It is clear from the video recordings and also from the magistrate's findings, both in relation to conviction and in respect of sentence, that there is no evidence of any action or bodily movement by Mr Spratt while in the reception area which would be capable of giving rise to any reasonable apprehension that it was his intention to harm anybody or to cause harm to anybody at the Watch House.
50 In those circumstances it seems clear that the issue of self-defence turned very much upon Mr Tomlin's evidence of the verbal threat which he said Mr Spratt made at the time when Mr Tomlin was leaning over Mr Spratt when Mr Spratt was seated in the chair. In my view, the kick by Acting Sergeant Moore has no significance to the issue of self-defence and that, if anything, the fact that the kick was delivered simultaneously or perhaps after the application of the taser demonstrates its immateriality to the issue of self-defence. For that reason I am satisfied that the magistrate's error did not give rise to any substantial miscarriage of justice. For that reason I would grant leave to appeal in respect of this ground but I would dismiss the ground.
51 The third ground of appeal in Mr Tomlin's application is also specific only to him. It concerns the matter to which I have already referred, namely, the magistrate's rejection of Mr Tomlin's evidence of the threat which he said was made by Mr Spratt shortly prior to the application of the taser. I have set out above the precise findings made by the magistrate with respect to that evidence. It is clear that he relied upon a number of factors to arrive at the conclusion that those words were not spoken.
52 The first was that the words were not heard by others in the terms in which Mr Tomlin related them. It is true that Acting Sergeant Moore gave evidence to the effect that he heard Mr Spratt use the word 'god' and the word 'kill' and the word 'devil' at some point during the incident but that evidence, which I have reviewed carefully, was given at a level of generality which certainly fell well short of corroborating Mr Tomlin's evidence with respect to the threat that was made to him. It was open to the magistrate to give that evidence limited weight.
53 The magistrate also relied upon the fact that on neither of the video recordings can any statement, of the kind which Mr Tomlin asserts was made be heard. The magistrate acknowledges in that context that there are breaks in the audio recording, so it is possible that the sentence might have been spoken during those breaks. However, in my view the magistrate was entitled to rely on the fact that neither of the two recordings record a statement of the kind which Mr Tomlin attributes to Mr Spratt. The magistrate was also entitled to rely on the observation that none of the others present other than Acting Sergeant Moore gave evidence supporting the evidence of Mr Tomlin with respect to the terms of the threat which he said was made.
54 Another aspect in the magistrate's reasoning was the evidence given by Mr Tomlin to the effect that the threat was made while he was leaning over Mr Spratt (ts 396). The magistrate observed that that evidence was not correct because from the video record it could be seen and heard what was happening at the time Mr Tomlin was bending over Mr Spratt; the threatening words from Mr Spratt could not be heard.
55 Another critical part of the magistrate's reasoning was his observation that the application of the taser did not appear to bear any relationship to any threat made by Mr Spratt. That was because, as the magistrate observed, there was a very quick sequence of events. What happened was that Mr Tomlin left the booth in which he was employed, went around to the reception area, bent over Mr Spratt, told him to shift his arm or he would be tasered, used the word 'now' and then used the taser.
56 The magistrate clearly found inferentially that the application of the taser was the consequence of Mr Spratt's failure to respond promptly to Mr Tomlin's demand that he remove his arm from the chair armrest and had nothing to do with any prior threat, reducing the likelihood that any such threat was made. The evidence on this subject was carefully reviewed by the magistrate. The process of reasoning which he adopted was sound, or at the very least not attended by sufficient error to overturn that process of reasoning on appeal. The finding made by the magistrate was well open to him on the evidence.
57 There is no inference that the magistrate overlooked any relevant evidence and I am satisfied that the finding which he made should not be disturbed. In relation to this ground I would grant leave to appeal but would dismiss the ground of appeal.
58 There are next three grounds in each application which are common to each applicant, one ground in each appeal relating to each of the three convictions sustained by each applicant. There are two aspects of the issues raised by these grounds, one of which is common to both applicants and one of which is particular to Mr Tomlin and goes only to the third count of which he was convicted. The issue common to each of the applicants is the proposition that the magistrate did not find, nor was there evidence capable of sustaining a finding that the electrical force applied to Mr Spratt came within the definition of assault contained in s 222 of the Code as it was not established or found by the magistrate that the electrical force had caused personal discomfort.
59 Having regard to the findings made by the magistrate and the video recordings which I have reviewed this assertion is baseless. The magistrate clearly found on a number of occasions that Mr Spratt cried out in pain or, in his words, anguish, as a result of the application of the taser. It is evident from the most superficial viewing of the video that the application of the taser caused Mr Spratt to respond by moving his body spasmodically and forcefully as a consequence of the application of the electrical force.
60 The magistrate clearly accepted the evidence of Mr Markham which was to the effect that the application of the taser would cause pain. That effect on Mr Spratt is clearly visible and audible on the video recording that was in evidence. The requirement of s 222 of the Code to the effect that the electrical force cause discomfort is a relatively low threshold (R v Jacob (Unreported, WASC, Library No 2362, 22 June 1978) 2). I have no doubt whatever that the threshold was clearly crossed by the evidence adduced in support of the prosecution case, nor do I have any doubt that the magistrate quite adequately and correctly found that the threshold was crossed in relation to each of the counts which he considered. His reasons cannot be construed sensibly in any other way.
61 The aspect of these grounds which is particular to Mr Tomlin is ground 6 in his application which was amended during the course of the hearing so as to include an assertion to the effect that the magistrate did not find nor was there evidence enabling the magistrate to find that the taser was actually employed against Mr Spratt on the occasion the subject of the third count brought against Mr Tomlin.
62 I have already referred to what might be described as an infelicity in the magistrate's reasons where, in summarising his conclusion in relation to the third count, he asserted wrongly that he had earlier described the images in the video which depict the third application of the taser by Mr Tomlin. However, at that point in the magistrate's reasons he does clearly make a finding to the effect that the images show that there was an application of electrical force by Mr Tomlin on a third occasion. For that reason I reject the assertion that there was no finding by the magistrate to the effect that Mr Tomlin deployed the taser against Mr Spratt on three separate occasions.
63 The next aspect of this ground is the assertion that there was insufficient evidence to sustain that finding. The evidence relied upon by the magistrate has two components. The first is the video recording and the second is the download report relating to the deployment of Mr Tomlin's taser. It is clear from the terms of his reasons that he relied upon each. I have carefully reviewed the video recordings with particular reference to this aspect of the case and have no hesitation in concluding that there was evidence on the recordings which is capable of sustaining the magistrate's conclusion that the taser was deployed by Mr Tomlin on three separate occasions. In the video recordings it can be clearly seen that there are three separate deployments of the taser by Mr Tomlin against Mr Spratt. The taser download report, exhibit D, is also consistent with the proposition that Mr Tomlin's taser was deployed on three separate occasions.
64 Counsel for Mr Tomlin points to an apparent anomaly in the times shown on the download report for each deployment, given that the second occasion upon which the taser was said to have been used, for five seconds, overlaps with the time at which the taser is said to have been deployed on the third occasion. However, that issue does not appear to have been pursued in any detail on the evidence, nor does the evidence appear to me to be capable of establishing that the accuracy of the time recording on the download device was such as to cause any serious doubt in relation to the conclusions which one would draw from a careful viewing of the video recordings. Those recordings appear to me to clearly show three separate deployments of the taser by Mr Tomlin. So while there is some infelicity in the language used by the magistrate on this topic I have concluded that he did find clearly and unequivocally that the taser was deployed on three separate occasions by Mr Tomlin and that he was justified in making that finding.
65 Because of the view which I take with respect to the hopelessness of the argument based upon the question of whether discomfort was caused by the use of the tasers by Mr Strahan and Mr Tomlin I would refuse leave to appeal in respect of grounds 4 and 5 in the application by Mr Tomlin and in respect of grounds 2, 3 and 4 in the application by Mr Strahan. I would however grant leave to appeal in respect of ground 6 of the Tomlin application because of the issue which it raises with respect to the third count brought against Mr Tomlin but I would dismiss that ground for the reasons I have given.
66 Ground 7 in the Tomlin application and ground 5 in the Strahan application are each concerned with the issue of self-defence. The first aspect of each ground is concerned with allegations of inadequacy of reasons given by the magistrate and the second aspect of each ground involves the assertion that the magistrate was wrong if he did in fact conclude that self-defence had been negated by the prosecution.
67 In relation to the magistrate's reasons it seems to me to be clear, as I have already suggested, that he expressly rejected any possibility of the application of self-defence in relation to Mr Tomlin's case and in particular in relation to the first count brought against Mr Tomlin. There is a clear inference that he rejected self-defence in relation to the second count as well, given his finding that Mr Spratt was lying face down with Mr Tomlin's foot in his back at the time the taser was applied. Similarly, in relation to the third count, although the magistrate's findings in that area are a little cryptic, his reference to a lack of justification again suggests that there must have been consideration given of the issue of self-defence (ts 396).
68 In relation to the first two counts brought against Mr Strahan, the findings made by the magistrate involve the implicit rejection of self-defence, particularly in his findings that Mr Spratt was in a kneeling position at the time the first count was committed and lying down at the time of the second count.
69 In relation to the third count brought against Mr Strahan the magistrate's rejection of the evidence given by Mr Strahan with respect to his perception of a threat to Mr Tomlin can only be a reference to the express rejection of any possible application of self-defence (ts 397).
70 So, although the magistrate's reasons could perhaps have been a little more specifically directed to the issue of self-defence, the findings that he made with respect to the issues pertinent to self-defence do emerge relatively clearly from his reasons.
71 Turning then to the proposition that there was no basis upon which the magistrate could properly conclude that self-defence had been negated by the prosecution, the starting point for that consideration is of course the magistrate's rejection of the evidence given by Mr Tomlin with respect to the threat made to him by Mr Spratt. For the reasons I have already given I find that the magistrate's conclusion in that regard must stand. Once that evidence is removed it is difficult to see what else could provide any basis for an objectively reasonable belief that Mr Spratt was likely to cause harm to anybody in accordance with s 248(4)(b) of the Code.
72 As the magistrate found, and as the video recordings demonstrate, prior to Mr Tomlin approaching Mr Spratt, Mr Spratt had not behaved in any way that would suggest to any reasonable person that he was likely to cause harm to anybody. If one excludes from consideration the alleged threat to kill Mr Tomlin the next thing that occurred was that Mr Spratt was tasered, causing him to move to the ground upon which he lay when he was set upon by a number of policemen and again tasered.
73 Looking at the videos thereafter the next thing that occurred was, after the third tasering by Mr Tomlin, Mr Spratt was on his knees when he is again tasered by Mr Strahan. He was then again on the ground when tasered again and on the third occasion he was sitting in a chair being manhandled by police when he was again tasered by Mr Strahan. It is clear that there is absolutely no evidence capable of providing any reasonable basis for an objectively held view that Mr Spratt was likely to cause harm to anybody so as to give rise to any issue with respect to self-defence.
74 So, even though it might have been preferable for the magistrate to have been more specific in his reasons in relation to self-defence, and even if there is some infelicity in those reasons it seems clear to me that there has been no miscarriage of justice. I would grant leave to appeal in respect of these grounds but dismiss each ground.
75 The next two grounds concern the issues that were raised under the Criminal Investigation Act. Counsel for Mr Strahan properly conceded that ground 6 of his application which relates to that issue had to be abandoned because there was no issue with respect to the CI Act properly applicable to the counts brought against him given that the defence was only open in relation to the first count against Mr Tomlin. However, ground 8 of the application brought by Mr Tomlin alleges that there are two deficiencies in the way in which the magistrate deal with the defence available under s 16 of the CI Act in relation to Mr Tomlin's first offence.
76 The first concerns the alleged inadequacy of his reasons and the second concerns the proposition that the prosecution failed to exclude the prospect that Mr Tomlin's use of force was authorised by s 16 of the CI Act, being force that was reasonably necessary in order to exercise the powers conferred upon him by that Act.
77 As I have mentioned, the magistrate made reference to a number of provisions of the CI Act earlier in his reasons. However, he then made no reference or ruling in relation to the application of those provisions to the facts which he had found. With the benefit of hindsight, it would have been preferable if the magistrate had made express rulings in relation to those issues. However, it is clear from his reasons that he found that in the case of Mr Tomlin the application of the taser in the first instance was the direct and immediate consequence of Mr Spratt's refusal to comply with the request that he take his arm from the arm rest, and nothing more. There is no suggestion that at the time immediately preceding the taser Mr Tomlin made any reference to a strip search pursuant to s 165 of the CI Act, although plainly Mr Spratt had been asked by other police officers to go to the adjacent room for that to occur earlier.
78 It seems clear that the magistrate in fact found that the purpose for Mr Tomlin's initial assault upon Mr Spratt was in order to secure compliance with his request that he remove his arm from the arm rest. That appears to have resulted in the magistrate's failure to expressly rule upon the application of the provisions of the CI Act, those provisions not being enlivened because the application of the force had nothing directly or indirectly to do with the exercise of the powers under that Act.
79 But in any event there is no possibility that any infelicity in the magistrate's reasons in this regard gave rise to a substantial miscarriage of justice. That is because it is clear that there is no basis in the evidence for any issue with respect to authorisation for the application of force under s 16 of the CI Act.
80 The first reason I express that view is the reason inferentially adopted by the magistrate, and that is that the taser was applied by Mr Tomlin in order to secure compliance with a request that Mr Spratt remove his arm from the arm rest. The taser was not applied for the purpose of ensuring that Mr Spratt undergo a search under the provisions of the CI Act. That conclusion is sustained by the fact that Mr Tomlin made no attempt to explain to Mr Spratt why he wanted him to remove his arm from the arm rest or to comply with the obligations imposed by s 70 of the CI Act before any strip search is carried out under s 135 of the Act. It can be reasonably inferred that Mr Tomlin would have been familiar with those requirements. Nor was there any attempt by Mr Tomlin to counsel Mr Spratt as to the consequences of failing to comply with a request to participate in a strip search under the CI Act, nor any attempt to encourage or solicit Mr Spratt to co-operate, or to wait any reasonable period to see if Mr Spratt changed his mind. It is clear the magistrate was correct to find that the reason Mr Tomlin applied his taser in the first instance was in order to secure compliance with a request that he had just made and was quite unrelated to what was proposed to occur later under s 135 of the CI Act.
81 It is also clear that there is no basis upon which it could be concluded that the degree of force used was reasonably necessary for the purposes of enforcing the powers conferred by the Act in accordance with the requirement articulated in s 16(1). In the circumstances to which I have referred, namely, without any prior attempt to properly encourage Mr Spratt to participate in the search, the application of the taser immediately after Mr Spratt declined to shift his arm from the armrest was an unreasonable application of force not justified by the circumstances or by the purported exercise of any power under the CI Act.
82 As stated, it is also clear that this issue could only go to the first count against Mr Tomlin and that proposition was accepted by his counsel (appeal ts 14). For these reasons I would grant leave in relation to this ground of appeal but would dismiss the ground.
83 The next two grounds, ground 7 in the Strahan application and ground 9 in the Tomlin application are common and go to an assertion of error because of the magistrate's failure to properly apply or refer to evidence of good character that was adduced in respect of each applicant during the course of their trial and which it is said was relevant to the question of whether the offences were committed or not.
84 It is clear that the magistrate did not refer to the good character evidence in the reasons which he gave prior to conviction. Before any error would be demonstrated by that fact it would be necessary to demonstrate that the good character evidence was material and indeed sufficiently material to the issues which the magistrate was required to determine such that a failure to refer to the evidence was indicative of error in accordance with s 31 of the Magistrates Court Act 2004 (WA). However, in the circumstances of this case the evidence of good character was not significant in relation to any contentious issue going to the question of whether or not either applicant was guilty of the offences with which they were charged.
85 In the end, as a result of the video recordings, there was really only one seriously contentious issue which the magistrate was required to resolve, and that concerned the question of whether Mr Spratt had threatened Mr Tomlin in the terms of which Mr Tomlin gave evidence. I have already set out the magistrate's processes of reasoning in arriving at the conclusion that Mr Tomlin's evidence should be rejected and that reasoning was not based upon the credibility of Mr Tomlin, or his demeanour, or anything of that character.
86 Rather, it was based upon the objective facts and circumstances by the fact that the words were not heard by others; the fact that they were not recorded on the video recordings; that Mr Tomlin's evidence with respect to the time at which the threat was made was inconsistent with the video recordings, and that the application of the taser was directly related to Mr Spratt's failure to remove his arm upon request and apparently unrelated to any threat. In those circumstances, the character evidence adduced in respect of Mr Tomlin was not significant to the resolution of that contentious question of fact.
87 In relation to the other counts, that is to say, the two other counts against Mr Tomlin and the three counts against Mr Strahan, there was, in the end, no significant contention in relation to the circumstances of those offences. They are depicted on the video recordings. They were clearly seen by the magistrate and he drew his conclusions from that evidence. Given the nature of that evidence, these are not cases in which evidence of good character was of any particular relevance or assistance and no inference of error should be drawn from the magistrate's failure to refer to that evidence in his reasons.
88 It is necessary then to return to the first ground in each appeal which alleges that the magistrate's reasons were inadequate. Plainly, magistrates must give adequate reasons for their decision. However, the content of the obligation imposed upon magistrates and the question of whether that obligation has been satisfied in any particular case depends upon a number of considerations elucidated in the Magistrates Court Act and relevant case law.
89 The first is that Magistrates Courts are summary courts. The very nature of the word 'summary' requires and connotes that the magistrates are to conduct their business with expedition and with a degree of informality appropriate to the disposition of the large volume of cases which are brought before those courts every day. Consistently with that notion s 31(1) of the Magistrates Court Act expressly provides that:
31. Judgments, content of
(1) The Court's reasons for a judgment in a case -
(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;
(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;
(c) need not canvass all the evidence given in the case; and
(d) need not canvass all the factual and legal arguments or issues arising in the case.
91 Nevertheless it is clear that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions - Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506 [36] - [37] (McLure J, Steytler P & Johnson J agreeing). It is also clear that the adequacy of any magistrate's reasons is to be assessed by looking at the reasons as a whole and includes not only findings expressly made but findings to be inferred from the findings expressly made - Bennett v Carruthers [2010] WASCA 131 [27] (Mazza JA, McLure P & Newnes JA agreeing).
92 Further, the adequacy of the magistrate's reasons in any particular case must be assessed in the context of that particular case so that what might appear to be unacceptable economy of language might be justified by the manner in which the case was conducted or by the evidence that was adduced - Francis v Todd [2011] WASC 185 [18] (Edelman J). That principle is, I think, particularly germane to this case because the reasons of the magistrate have to construed in the context of the video recordings to which I have referred and which provide quite ample explanation for some economy of language in the magistrate's reasons. It is clear from my review of the transcript of the trial that those video recordings were of course a central feature of the trial and were seen many times by the magistrate and by the witnesses.
93 The magistrate's reasons are said to be inadequate in three respects: firstly, in relation to the findings with respect to personal discomfort caused by the application of the taser; secondly, in relation to self-defence; and, thirdly, in relation to the CI Act.
94 In relation to the first area of inadequacy I have no hesitation in rejecting the proposition that the magistrate's reasons were inadequate. Findings were made by the magistrate with respect to personal discomfort which quite clearly satisfied the obligation to disclose the underlying intellectual process of his reasoning. The situation is not so clear in relation to the two other issues identified, namely, the issues relating to self-defence and the CI Act and, as I have already suggested, it may well have been preferable for the magistrate to have more expressly and explicitly enunciated the conclusions at which he arrived in relation to each of those two matters.
95 However, it is clear that they were prominent in his mind. That is clear from the fact that he referred to significant provisions of the relevant legislation in the introduction to his reasons. It is therefore to be inferred that those matters were in his mind at the time he enunciated his conclusions and, as I have suggested, in relation to each of those areas inferences can be extracted from the reasons which he gave to the effect that in each case there was simply no basis upon which any issue was raised, either with respect to self-defence or in relation to the authorisation of the use of force under s 16 of the CI Act.
96 This is one of those cases in which the magistrate's reasons might be said to be infelicitous in some respects and perhaps unduly economic, but as a matter of substance, the reasons have exposed the underlying intellectual process and therefore have adequately discharged the duty imposed upon the magistrate.
97 In any event, I have concluded that in each of the three areas which are alleged to be areas of deficiency, on the evidence there was no significant issue. In particular, there was abundant evidence to sustain the conclusion that the application of the taser caused personal discomfort on each occasion, there was no evidence sufficient to enliven any issue with respect to self-defence, and there was no evidence capable of sustaining a conclusion of authorisation of the use of force under s 16 of the CI Act. In light of those conclusions, even if there were some inadequacy in the magistrate's reasons, I would nevertheless be satisfied that there was no substantial miscarriage of justice. It is for that reason I would grant leave to appeal in respect of these grounds but those grounds will be dismissed.
98 It follows from those reasons that I am satisfied that the appeals against conviction should each be dismissed.
99 It is necessary then to move to the appeals against sentence. The grounds of appeal against sentence are found in ground 8 in the Strahan application and ground 10 in the Tomlin application. Each of those grounds invokes s 8(1)(a)(iii) of the Criminal Appeals Act and alleges error in that the magistrate imposed a sentence that was excessive.
100 It is clear therefore, and counsel for the applicants confirmed, that the sole ground of appeal against sentence is the ground which has been held many times to assert implied error rather than express error to be derived from the reasons given by the magistrate (Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts-Smith JA, McLure & Pullin JJA agreeing). It is said that the error is to be implied from the fact that the sentence was excessive from which it must follow that there has been some erroneous process of reasoning applied by the court.
101 The authorities clearly establish that when a ground of this kind is raised it is necessary to review the sentence having regard to the maximum penalty available, which in this case was a term of 18 months imprisonment and/or a fine of up to $18,000, having regard also to the standards of sentencing customarily observed in relation to offences of this character, having regard to the place which the criminal conduct occupies in the scale of seriousness of offences of this type, and having regard to the personal circumstances of the offender, taking into account all aggravating and mitigating circumstances, see Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ).
102 It is also well established that it is not appropriate for an appellate court to interfere with a sentence imposed merely because the appellate court might itself have imposed a different sentence. Rather, interference will only be justified if the appellate court is satisfied of error: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
103 It is clear that the circumstances of the offence of unlawful assault may vary widely and it was accepted by counsel for all sides that there is no tariff or range of sentences applicable to that offence. It is also clear that (happily) because of the paucity of cases dealing with abuse of office by police officers there is an insufficient data set to enable any conclusion to be drawn with respect to standards of sentencing customarily observed in relation to cases of this particular kind (see for example: M v O'Neill [2013] WASC 187; Johnson v Ayling [2013] WASC 312; Waters v Page [2011] WASC 31). So then the question is whether, having regard to the other factors applicable to the sentences, it can be concluded that error can be implied from the excessive nature of the sentences imposed. One approaches that task of course starting from the point that imprisonment is a last resort, only to be ordered when no other sentence appropriately reflects the seriousness of the offending and the culpability of the offenders. It is clear from his express language that the magistrate adopted that approach.
104 It is also clear that the magistrate took the approach that the critical factor applicable to sentence was the fact that Mr Spratt was in custody and vulnerable, not only because of the fact that he was in custody but also because of his intoxicated condition at the time he was arrested. It is also clear that the magistrate rightly rejected the need for specific deterrence in the case of each of these applicants but inferentially gave significant weight to general deterrence because of the importance which he placed upon the fact that Mr Spratt was in custody and vulnerable to any abuse of authority by those responsible for his care and custody.
105 In my view the magistrate was right to take this approach. There have unfortunately been times in the history of this state when injury and death to those in custody has risen to unacceptable levels. Happily, now is not such a time, but it is necessary to prevent any recurrence of those unhappy times by sending a clear and unequivocal message through the mechanism of general deterrence to those who are responsible for the custody of others to the effect that any breach of the law by them in the discharge of their duties will be taken extremely seriously and will be visited with significant consequences.
106 It is well understood that the police have important and onerous obligations to perform. That is recognised in the special provisions of the law which provide particular penalties for assaults that are committed against public officers including police. It must also be recognised however that police have particular obligations to those who come within their custody, care and control such as those who are under detention and that the importance of the proper performance of those obligations needs to be emphasised by the imposition of sentences which reflect the seriousness with which any departure from appropriate standards of behaviour obligations will be correctly viewed.
107 For these reasons general deterrence is a significant factor in cases of this kind so that others in the position in which Mr Tomlin and Mr Strahan found themselves that day are well aware of the serious consequences for any breach of their obligations to detainees.
108 In those circumstances it seems to me that the personal circumstances of each applicant necessarily carry less weight because the dominant sentencing consideration was general deterrence. Nevertheless, there is no suggestion that the magistrate failed to take proper account and give proper weight to those personal circumstances.
109 For these reasons it seems to me that the sentences imposed by the magistrate were within the range of sentences reasonably open to him. It is not to the point that I or some other judge might have imposed a difference sentence. The question is whether error is to be implied from the sentences that were imposed. It does not seem to me that any error can be implied from the sentences that were imposed and the appeals against sentence should be dismissed, although I would grant leave to appeal.
110 For these reasons I have concluded that leave to appeal should be refused in respect of the grounds that I have identified (2, 3, 4 and 7 of the Strahan application and 4, 5 and 9 of the Tomlin application) and that leave should be granted in respect of the other grounds that I have identified (1, 5 and 8 in the Strahan application and 1, 2, 3, 6, 7, 8 and 10 in the Tomlin application) but in all cases the grounds of appeal should be dismissed.
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