The Queen v Solberg
[1987] TASSC 48
•27 August 1987
44/1987
List “A”
CITATION: The Queen v Solberg [1987] TASSC 48; A44/1987
PARTIES: THE QUEEN
v
SOLBERG
TITLE OF COURT: COURT OF CRIMINAL APPEAL
JURISDICTION: APPELLATE
FILE NO/S: CCA 45/1987
DELIVERED ON: 27 August 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF: Nettlefold, Underwood and Wright JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:
Respondent:
Solicitors:
Appellant:
Respondent:
Judgment Number: A44/1987
Number of paragraphs: 51
Serial No A44/1987
File No CCA 45/1987
THE QUEEN v SOLBERG
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NETTLEFOLD J
UNDERWOOD J
WRIGHT J
27 August 1987
Orders of the Court:
Leave to appeal granted.
Appeal against sentence allowed.
The orders made by the Court below are set aside and in lieu thereof the respondent is sentence to imprisonment for 14 months to date from 19 August 1987. Further, he is disqualified from holding or obtaining a licence to drive a motor vehicle for a period of 12 months from the date of his release from prison.
Serial No A44/1987
File No CCA 45/1987
THE QUEEN v SOLBERG
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NETTLEFOLD J
27 August 1987
Application by the Attorney–General for leave of the Court to appeal against the sentence imposed in the Criminal Court at Hobart on the 6 May 1987 on the respondent. The sentence was nine months' imprisonment to date from 17 February 1987, such sentence to be suspended from the 11 May 1987 on condition that he be of good behaviour for a period of 18 months. A further order was made requiring him to submit to the supervision of a probation officer for a period of 18 months. The application is based on the ground that the sentence was manifestly inadequate having regard to all the circumstances of the case.
The sentence was imposed following a plea of guilty on 30 April 1987 to each of five counts in an indictment filed 30 April 1987. Those counts were:
First count – being unlawfully armed in public contrary to s78 of the Criminal Code.
Second count – driving in a manner dangerous to the public contrary to s32(1) of the Traffic Act.
Third count – assaulting a police officer contrary to s114 of the Criminal Code.
Fourth count – aggravated assault contrary to s183(a) of the Criminal Code.
Fifth count – aggravated assault contrary to s183(a) of the Criminal Code.
At about 1.30 am on the morning of 17 February last the respondent arrived at the house of a friend, Mrs Chatters, at 6 Walker Crescent, Bridgewater. He was driving a Ford transit van. As he drove into the driveway of that residence the vehicle collided with a boundary fence. He was assisted inside by Mrs Chatters. He asked Mrs Chatters to get him a gun and some shells from the van. The gun was a single barrelled shotgun. Mrs Chatters hid the gun and the box of ammunition in the linen closet. However, the respondent found the gun and left Mrs Chatters' residence before 7.45 am Before leaving he informed one of Mrs Chatters' children that he had gone to find a Paul Carew. It was said that, a week or so before, Carew had damaged a van belonging to the respondent with a hammer.
At about 9.15 am on 17 February last the respondent arrived at a Caltex service station belonging to Mr A C Cantrell. Mr Cantrell was on the forecourt of the service station when he was approached by the respondent who was carrying a shotgun. The respondent told Mr Cantrell that he was looking for a man named Paul. He was told that there was not a Paul who worked there and when told that he appeared to Mr Cantrell to become agitated. The gun which the respondent was carrying had been waved about. When the respondent was told that there was not a Paul who worked there, he pointed the gun in the direction of Mr Cantrell's shoulder saying "I'll find him. This is loaded and it will make a mess of you." Mr Cantrell became very frightened until the respondent had left. However, as the respondent left the service station he called out "I'm sorry about frightening you".
Mr Cantrell reported that incident to the police. As a result of that report, at about 9.20 am on the same day Detective Sergeant Rezek and Detective First Class Constable Butler were headed north on the Northern Outlet at Chigwell when they observed the vehicle being driven by the respondent heading towards Hobart. That vehicle was observed to cross double white lines on the roadway at that point. The police vehicle turned and followed the respondent in a southerly direction towards Hobart. Numerous attempts were made by the police to intercept the vehicle but their attempts were thwarted by the manner in which the vehicle was being driven.
The respondent's vehicle proceeded along the Northern Outlet and the police vehicle drew alongside and Detective Butler held up a police sign and Detective Sergeant Rezek sounded the vehicle's horn. At that point, which was near the Chigwell cutting, the respondent's van went off the roadway on to the gravel verge. The respondent's vehicle then pulled out sharply across in front of the police vehicle. When the vehicles were near to the factory of William Adams Tractors Pty. Ltd. the respondent's vehicle crossed the centre line and then veered off left on to the gravel verge. The police again tried to stop the vehicle by drawing alongside but were forced to desist.
On the Brooker Highway the respondent's van travelled in the middle of the two southbound lanes and was swerving from left to right. The police continued to attempt to intercept the van. However, the vehicle went to turn off left towards Berriedale and then veered sharply right across the Brooker Highway. The respondent then continued on driving toward the city.
The police had made a road block south of Montrose and stopped all the southbound traffic. Approaching that area, the respondent was travelling at about 90 kilometres per hour and moving from left to right between both lanes. Near the road block the respondent's van suddenly veered to the right, slid sideways across the grass median strip and changed direction, to travel north. The police vehicle followed. Approaching the Rosetta High School overpass the police vehicle drew alongside again and a police sign was shown from the passenger side window of their vehicle. At that time, the detectives observed the barrel of a shotgun poked out of the open window of the van towards the police officers. A police officer heard the respondent scream out "Fuck off or I'll blow your fucking head off". When those words were uttered Sergeant Rezek braked and then pulled in behind the respondent's vehicle. That conduct of the respondent is the subject of count 3 in the indictment.
The respondent's vehicle then travelled on to the Main Road, and, turning left to travel towards Glenorchy, failed to give way at a give way sign causing a brown Suburu station wagon, which was travelling south, to swerve and brake to avoid a collision.
In Main Road the respondent's vehicle crossed double white lines. It continued south on Main Road between Mary's Hope Road and Continental Road and overtook five vehicles forcing three oncoming vehicles to swerve to their left to avoid a collision. The speed of the respondent's vehicle in that part of Main Road was 80 kilometres per hour. On passing the Club Hotel the vehicle crossed double white lines and swerved back to the correct side of the road. The traffic lights situate at Chapel Street were red against the respondent and there was a Datsun 120Y sedan stationary at those lights. The respondent's van ran into the rear of the Datsun vehicle. At collision the speed of the respondent's vehicle was estimated at about 20 kilometres an hour.
On collision the respondent's vehicle rolled backwards. The two detectives and the two officers from another police car, First Class Constable Gunton and Constable Sherman stopped at the rear of the respondent's vehicle. First Class Constable Gunton went to the passenger side of the respondent's vehicle with Constable Sherman and Detective First Class Constable Butler. As they moved along the van, crouching below the window line, First Class Constable Gunton saw the respondent and saw that he had the shotgun in his hands. The officer then called on the respondent to drop the weapon and the respondent aimed the shotgun towards the officer and said "Piss off. You're dead". That conduct is the subject of the charge in count 4.
Constable Sherman, who was crouching below the window line called out "drop the gun". First Class Constable Gunton then had an opportunity to duck below the window line of the vehicle. Sergeant Rezek, who had gone to the driver's side of the vehicle, saw the respondent facing towards the passenger side pointing the gun in that direction. Sergeant Rezek reached through the window and got hold of the respondent by the right arm and attempted to grab hold of the shotgun. The respondent twisted around towards the Sergeant and punched him to the side of the face and chest . On doing that, the respondent raised the barrel of the shotgun and commenced to turn it over from the passenger side towards the driver's side, in the direction of Sergeant Rezek shouting "I'll kill you". That conduct is the subject of the fifth count.
Detective Butler was at the passenger side of the van and a little back from the vehicle. He had a clear unobstructed view of the respondent turning the gun over towards the Sergeant. He called on the respondent to stop. He was fearful that the Sergeant was in danger. He then shot at the respondent with his service pistol. The bullet "disintegrated" the passenger side window of the respondent's vehicle. However, just prior to the gun being discharged the respondent's van rolled back slightly causing the bullet to be deflected. The respondent momentarily cowered in the driver's seat and the door of the vehicle was slid open by Sergeant Rezek and the respondent was removed from the vehicle. Constable Sherman disarmed the respondent and, on breaking the weapon, found that it contained a live shell.
A violent struggle ensued between all of the police officers and the respondent after the respondent had been placed in a headlock. He was restrained, handcuffed and removed from the scene.
At the time the respondent was 35 years of age. He has a long record dating back to 1967. Leaving out of account a conviction for driving without a licence on 26 April 1985, his record does not disclose any conviction since 30 April 1982 when he received sentences of two years' imprisonment and one year's imprisonment concurrent for crimes of break and enter dwelling house with intent and unlawful use motor vehicle. His record is mainly for crimes of dishonesty although there are several convictions for escape lawful custody and one for self administration of Mandrax on 23 January 1978.
Mr Blissenden for the respondent, in his plea in mitigation to the learned judge at first instance, submitted that the crimes were totally out of character. The respondent did not think that he was capable of acting in the fashion in which he did. He submitted that the respondent was shocked at his behaviour and very much regretted it. Reference was made to the respondent's list of prior convictions by way of support for this submission.
It was submitted that, in April 1982, when the respondent received his last sentence of imprisonment, he was 30 years of age and in the period of 15 years prior to that time he could not remember being free for any continuous period exceeding 6–9 months.
It was submitted that his earlier background, before the commencement of his criminal record, was deprived. He is the third eldest of seven children whose father died when he was six years of age. He and his brothers and sisters were placed in orphanages in New South Wales by his mother. Over the years he lost contact with his family. He now knows only two of his sisters and has regular contact with only one of them. Some years ago he located his mother only to find that she was not interested in him. He was educated to the level of first year high school only. He did not obtain any trade skills and any employment he had up to the time of his last sentence was irregular and of an unskilled nature.
He had not had a great deal of success in his personal life with only one relationship of any duration, a de facto relationship which subsisted from 1973 until 1978. There was a child born of that union but he has been denied access to that child.
He was released from prison in September 1983. Counsel submitted that the respondent then decided to change his ways. He moved to Tasmania to make a fresh start. It was submitted that, until the beginning of this year, the respondent was "fairly successful" in making a fresh start.
A few months after arriving in this State the respondent met his wife. They cohabited for 10 months before their marriage in October 1985. The respondent found employment as a filing clerk and held it for a period of 12 months. He lost that employment only because of a re–organisation in the employing company. He produced a reference from the Administration Manager of the company which testified that the respondent had been employed for approximately 12 months and during that time had worked willingly and efficiently and that his services would be missed. It confirmed that he had lost the position because of a re–organisation and recommended him to any prospective employer.
There was also a reference produced to the Court from a welfare officer employed by the Northern Mens Housing Association Inc. The author of the reference affirms that he had known the respondent since October 1984 and found that the respondent "really tried hard to pick himself up in society". He found the respondent "to be faithful in his duties" and "a good willing hard working person". He had "no hesitation at all in recommending his character".
Counsel submitted to his Honour that, after the respondent lost his employment at ISAS he found difficulty in obtaining employment. He entered into a second hand dealing business which was operated successfully from Elphin Markets until January 1987.
Counsel informed his Honour that the respondent's wife described him as a kind, generous person who was not violent and who in fact avoided arguments and preferred quiet activities. She also described him as a man who did not drink alcoholic drinks, was helpful with household duties and spoke often of a desire not to return to the lifestyle he had left on the Mainland. Counsel informed his Honour that the respondent's wife was still residing in Launceston with her four children and was a computer operator at APPM in Launceston.
It was submitted that from September 1983 until the beginning of this year there were a number of signs that he had made every effort to rehabilitate himself, had led a quiet life and was not violent.
Counsel submitted that things started to go wrong for the respondent when he and his wife separated in August 1986. The separation was said to be not so much because of difficulties between the parties to the marriage but because of his wife's children who, with the exception of the youngest child, did not accept him and were disrespectful and disobedient. The separation was to be temporary. The respondent moved into alternative accommodation in Launceston. Between August and November 1986 the respondent and his wife continued "regular contact" and even attended marriage guidance sessions.
However in November 1986 the respondent met a Mrs Chatters who shared his interest in CB radio. The tenancy of his accommodation in Launceston came to an end and he decided to move to Hobart because of this friendship with Mrs Chatters. His plan was to re–establish eventually his second hand dealership from the markets operating in the Hobart area.
He obtained accommodation in Bridgewater. He lived alone there for some weeks. Then Mrs Chatters moved in with her four children. Counsel submitted that that was the beginning of a disastrous period for the respondent.
Mrs Chatters is an epileptic who has prescribed for her phenobarbitone drugs and also phenytoin. Counsel asserted that Mrs Chatters abused those drugs and several other drugs and on several occasions the respondent was obliged to take her to the Royal Hobart Hospital because she had taken an overdose. It was asserted that Mrs Chatters also used the respondent for baby sitting while she went out at night. It was submitted that the respondent felt emotions and pressures which he found it difficult to cope with. On the one hand he felt guilt about what he was doing to his wife and their relationship. On the other hand, he was supporting Mrs Chatters, "running after her", caring for her children and was expecting little more than she was offering him. The respondent's solution, it was said, was to start to take the very drugs that Mrs Chatters had available to her and she became his source of those drugs. It was said that a doctor had described Mrs Chatters as "extremely good at manipulating others". It was said that the respondent was the victim of such manipulation.
4It was said that he has been opposed to the taking of drugs since his conviction for self administration of Mandrax in 1978. It was said that he could not explain why, despite having that attitude to drugs, he began taking them as a solution to coping with what he saw as the pressures he was under at that time. The result was that there were three attendances at the Royal Hobart Hospital by the respondent, two in January and one in early February, before the date of these crimes, for suspected overdoses of these drugs. On these occasions he was the patient and not Mrs Chatters. The most serious of these admissions was on 19 January and that was the subject of a report from a Psychiatric Registrar which was submitted to his Honour.
It was submitted that, despite all, the wife of the respondent remained quite supportive during this period. She supplied financial assistance and often spoke of having the respondent return home and, in fact, in early February last it was decided that they would attempt a reconciliation. However, the respondent was unable to move himself and his things back to Launceston until 13 February.
The respondent had to return to Hobart for an appointment with his solicitor on 16 February and to appear in court on 17 February. When he left Launceston he intended to stay with friends in Hobart. On the way down to Hobart he was worried about the court appearance and for his personal safety. For those reasons he brought with him the shotgun. He also began taking tablets. His concern for his personal safety arose out of an incident a few weeks previously with a man named Paul, the latter having damaged the respondent's vehicle using a hammer. At that time the respondent was inside the car and received a personal threat. It was said that the respondent has no idea why he was attacked on that occasion. The person responsible for the attack identified the respondent by his C.B. call sign and, once he was aware of that identity, he commenced the attack. It was said that the respondent's car had been forced off the road by a white Holden vehicle on 16 February and the respondent was aware that the man Paul had such a vehicle. It was submitted that the respondent estimated that between mid afternoon on 16 February and the early morning of 17 February he took a total of 80 tablets of various descriptions.
The contention was that the respondent had little recollection of what occurred after he left the premises in Walker Street, Bridgewater. He remembered going to the service station at Granton looking for a friend of the person "Paul" and asking where Paul was. It was said that he remembered specifically that at that time the shotgun was not loaded. He remembered driving away from the service station. He remembered talking to somebody on his CB radio. He remembered a white car travelling close to him. He also remembered that his vehicle came into collision with another vehicle. Otherwise he had no useful recollection of the events surrounding the crimes.
His Honour was informed that the respondent had been in prison since 17 February. It was said this period in prison had a positive effect in that he had been able to break away from the "vicious cycle" he had found himself in in January and February last. Also, he and his wife had agreed on a basis upon which, when possible, they can proceed with their planned reconciliation. This would be made easier by the fact that his wife's adult children shortly would be moving out of home leaving only the youngest child with the respondent and his wife thus lessening the tensions between the respondent and his wife's children. That was presented as an important consideration. Important because it would be "a completely different environment from that which led up to the taking and abuse of drugs and was the background against which these crimes were committed and in fact is the environment in which over the past three years to the beginning of this year the accused was acting and living, in my submission, a useful and responsible life. In conclusion, your Honour, I would ask this Court to show leniency to this accused and impose a sentence particularly which would not discourage the apparent attempt at rehabilitation since September of 1983 bar of course these particular crimes." Finally, his Honour was told that the relationship with Mrs Chatters had ended.
A portion of the sample of blood taken from the respondent was analysed by Dr Parsons. The significant results were:
Phenytoin at a concentration of 6.3 micrograms/ml., a therapeutic concentration being 10–20 micrograms/ml.
Phenobarbitone isolated at a concentration of 45 micrograms/ml., a therapeutic concentration being 15–41 micrograms/ml.
The doctor commented as follows:
"Phenobarbitone is a long acting hypnotic and is not usually prescribed today. This drug can bring on sleep and used with Phenytoin is the treatment or one of the treatments for epilepsy. The side effects of the drug can cause restlessness, euphoria, excitement and hallucinations."
Having regard to this report, and particularly having regard to the quantity of the drugs isolated, it is very difficult to see drug taking as having a significant exculpatory effect. With respect I say that not overlooking what his Honour said when passing sentence and some comments in a psychiatric report.
Psychiatric reports were presented to his Honour. They show that, at about the relevant time, he was emotionally disturbed to some undefined degree. He had attempted suicide at one time, but that was a month before these crimes were committed. The reports do not show that he was suffering from any recognised mental illness at the critical time.
In passing sentence his Honour said:
"Harold Stewart Solberg. You have pleaded guilty to one count of being armed in public, one count of dangerous driving, one of assaulting a police officer and two of aggravated assault with a shotgun.
These are very serious offences and it's extremely fortunate that no–one was hurt, at least not seriously.
I accept that you were emotionally disturbed at the time and that the consumption of drugs not prescribed for you had lowered your inhibitions. This episode does appear to be out of character for you, for although you have a lengthy history of criminal conduct, it is primarily of dishonesty and you do not appear to be a violent man. Further, despite the lengthy periods that you have spent in gaol and the fact that you gave every indication of becoming institutionalised, your conduct, apart from this episode, in the last three years has shown a complete change in your way of life and gives one hope that you can effectively rehabilitate yourself.
I propose to give those prospects of rehabilitation some encouragement. I note that you have been in custody in respect of these matters since they were committed on the 17th of February, 1987. You will be sentenced to nine months imprisonment to date from that day, the 17th of February, 1987, but the further execution of that sentence from next Monday, the 11th of May, will be suspended on condition that you are of good behaviour for a period of eighteen months.
In addition, a probation order will be made to take effect from your release next Monday from gaol and will continue for a period of eighteen months and during that time you will be under the supervision of the probation officer at Launceston.
Now I am keeping you until next Monday rather than releasing you immediately, so that appropriate arrangements can be made for your accommodation and your transport without you coming into contact with certain influences that appear to be undesirable.
I want you to understand that if you behave yourself that will be the end of this matter. Once you are released from gaol next Monday you will hear no more of this, provided that you are of good behaviour and provided also that you obey the proper directions of your probation officer and otherwise comply with that probation order.
However, if you do get into trouble you could be brought back to this court and you could be called upon to serve the rest of the sentence in addition to whatever else brings you before the court."
A conspicuous feature of the plea in mitigation is that, apart from an assertion that the shotgun was not loaded when the crime the subject of the first count was committed, it does nothing to mitigate the seriousness of the crimes assessed objectively. They are serious crimes. By the assault the subject of the first count a citizen was, quite understandably, put in fear. The dangerous driving involved that element of deliberate risk taking which, in accordance with the sentencing practice of the Court, merits a term of imprisonment. It was described by counsel on both sides as in the "middle range" of seriousness for crimes of that class and one has no difficulty in adopting that description. The crimes the subject of the remaining counts plainly required condign punishment in order to condemn them adequately and to deter those who may be minded to act in a similar way. A brief statement as to why those crimes are so serious is required. No less than three police officers were subjected to a dangerous and frightening experience when discharging their duty to take the respondent into custody and thus put an end to his activities in which he was endangering the public. There was an obvious risk of really serious injury. Also the experiences to which they were subjected were capable of having serious psychological effects although, of course, there is no evidence that such effects in fact resulted in the case of any officer. The risks to which they were subjected were created by the respondent for his own criminal purpose, and were risks which, consistent with his duty, none of those officers could avoid. The criminal purpose in question is one which is not foreign to this respondent. His purpose, presumably, was to avoid being taken into lawful custody. There are a number of convictions on his record for escaping from lawful custody.
With respect, the sentence passed gave far too little weight to these considerations.
An unfortunate feature of the case is that the respondent has been released from prison for some months. However, the fact that the appeal was not brought on earlier is not a circumstance for which the Crown can be held responsible.
An appropriate sentence would be 18 month's imprisonment. But, having regard to the time he has already spent in custody in respect of these crimes, he should be sentenced to 14 months' imprisonment, that sentence to commence on 19 August 1987.
The Court should make the following orders:
1 Leave to appeal granted.
2 Appeal against sentence allowed.
3The orders made by the Court below are set aside and in lieu thereof the respondent is sentenced to imprisonment for 14 months to date from 19 August 1987. Further, he is disqualified from holding or obtaining a licence to drive a motor vehicle for a period of 12 months from the date of his release from prison.
Serial No A44/1987
File No CCA 45/1987
THE QUEEN v SOLBERG
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
27 August 1987
I agree with the orders proposed by Nettlefold J and the reasons expressed by him.
Serial No A44/1987
File No CCA 45/1987
THE QUEEN v SOLBERG
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WRIGHT J
27 August 1987
I have had the opportunity of reading the reasons for judgment now published by my learned brother Nettlefold J. I agree with his analysis of the facts and his assessment of the seriousness of the criminal offences committed by the respondent. The extreme danger attendant upon an assault with a loaded firearm is obvious. When such conduct is present as a factor in some other offence, such as robbery, it is always regarded as a matter of substantial aggravation (see Osborn v The Queen TASSC 58/1970; The Queen v Smith and Hinds TASSC 78/1984. It is well recognised that violence of this kind may result in as much trauma to people threatened as a direct physical assault and battery.
This Court has consistently emphasized that resort to firearms as a means of overbearing the will of others, solving disputes or seeking attention will attract a significant gaol sentence. (See Nichols v the Queen TASSC 28/1979; King v The Queen TASSC 19/1979 and Prokopiec v The Queen TASSC 7l/1982).
It is only in the most exceptional circumstances that such punitive consequences may be avoided by the offender (eg Sutcliffe v The Queen TASSC 44/1979). As Burbury CJ said with the concurrence of his learned colleagues in Pullen v The Queen TASSC 15/1972 at 2:
"It must be borne in mind that notwithstanding modern principles of individualisation of punishment, that there are still many serious crimes which come before the Court in which the principle of deterrence overweighs the personal circumstances of the offender".
This was not a case of a man unaccustomed to drugs suffering a bizarre and unforeseen alteration to his mental state in consequence of taking pills for therapeutic purposes. The respondent's prior involvement with drugs must have made him aware that if he took non–prescribed capsules or tablets of the kind alleged by his counsel and in substantial quantities, his behaviour and powers of self control may be adversely affected.
However in my view these considerations are somewhat academic in any event, as there is no real basis for suggesting that the respondent was drastically affected by drugs when he committed the crimes mentioned in the indictment.
In my opinion there is nothing exceptional about this case in the nature of mitigation and with respect to the learned sentencing judge I take the view that the punishment which he imposed was plainly inadequate in the circumstances.
The application for leave to appeal should be granted and the appeal should be allowed. I concur in the orders proposed by Nettlefold J.
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