Winn v The Queen - [2007] NSWCCA 44

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Winn v R [2007] NSWCCA 44

FILE NUMBER(S):
2006/2055

HEARING DATE(S): 22/01/07

JUDGMENT DATE: 27 February 2007

PARTIES:
Richard Peter Winn
Regina

JUDGMENT OF: Adams J Howie J Price J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/3098

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

LOWER COURT DATE OF DECISION: 02/12/2005

COUNSEL:
Applicant: Mr P Boulten SC
Respondent: Mr R Herps

SOLICITORS:
Applicant: Mr L D Lock
Respondent: Director of Public Prosecutions

CATCHWORDS:
sentence appeal
violent assaults on police
whether difference between remorse and contrition
standard non-parole period
failure to consider
sentences reduced

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Way (2004) 60 NSWLR 168

DECISION:
The sentences imposed in the District Court should be quashed and the following sentences substituted – (i) in respect of the first count, a minimum term of one year and six months’ imprisonment to commence on 9 September 2005 and expire on 8 March 2007 with a balance of term of two years to expire on 8 March 2009
(ii) in respect of the second count, a fixed term of one year, to commence on 9 September 2005 and expire on 8 September 2006
(iii) the applicant is to be released to parole at the expiration of the minimum term specified on count one.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2006/2055
ADAMS J
HOWIE J
PRICE J
Tuesday 27 February 2007

Richard Peter WINN v Regina

Judgment

ADAMS J: The applicant, Richard Peter Winn, pleaded guilty on 6 May 2005 to two offences involving violence on police officers: count 1 alleged the malicious infliction of grievous bodily harm contrary to s60(3)(b) of the Crimes Act 1900, for which the maximum penalty is imprisonment for twelve years; and the second, assault occasioning actual bodily harm on a police officer contrary to s60(2)of the Crimes Act 1900, for which the maximum penalty is imprisonment for seven years. The standard non-parole period in respect of the first of these offences is five years and in respect of the second, three years. The applicant was sentenced on 2 December 2005 in respect of count 1 to imprisonment for a minimum term of three years commencing on 9 September 2005 and expiring on 8 September 2008 with a balance of term of twelve months expiring on 8 September 2009. In respect of the second count the applicant was sentenced to a term of imprisonment of eighteen months to commence on 9 September 2005 and expire on 8 March 2007 with a balance of term of six months to expire on 8 September 2007. Accordingly, the sentences were to be served wholly concurrently. The applicant seeks leave to appeal to this Court against these sentences.
The Facts
The facts were not in dispute and a statement of agreed facts was tendered on the hearing. The following is a summary drawn largely from that statement. The offender and his wife had been in a domestic partnership for thirty-one years and lived together with their two sons. At about 8 pm on 2 March 2003 the applicant returned home having consumed six schooners of beer at a tavern and an argument over various domestic issues ensued between the applicant and his wife. During the argument the applicant threw a number of items around the house, causing them to break. The applicant’s wife and elder son left the house followed by the applicant, who threw a terracotta pot onto the roadway. The applicant returned into the premises and locked the door. His younger son was inside the house. The applicant then telephoned police indicating that he wanted the police to attend the house but he hung up before completing the call. When the radio operator called back the applicant said that the argument was only verbal and police attendance was no longer required. The applicant was told, however, that police would still attend. A short time later, Constable Jason Madsen knocked on the front door, which the applicant opened leaving the security screen locked. The applicant yelled abuse and slammed the door. Constable Madsen knocked again and the applicant swore at him adding, “She is dead”. Of course, this was not true. Constable Madsen then asked him, “Can I come in and see her?” after which the applicant slammed the front door again. The constable then heard the sound of breaking glass coming from inside the house. The constable saw that a windowpane in the front of the house was smashed. Concerned about the welfare of the wife, Constable Madsen called for urgent assistance. The applicant again came to the door with his younger son. Constable Madsen asked if he could come inside but the applicant again slammed the door closed. Shortly after, the son left the house and told Constable Madsen that his stepmother and stepbrother had already left.
A short time later the duty officer, Inspector Why, attended the premises and spoke to the applicant on the phone and then through the security screen at the front door. The applicant again refused to allow police to enter the house, swearing and saying, “I’m going to kill myself”. He slammed the door shut. A number of police were at the premises by this time. The inspector was approached by the applicant’s wife and older stepson. She indicated that she was concerned about her husband’s welfare, as he had recently lost his job. The older stepson then went to the front of the house. The applicant opened the security door. A Constable Dixon was standing near the bedroom window at the front of the premises and, when the security door was opened, attempted to gain entry. Some words were exchanged. Ryan attempted to stand between the applicant and the constable but the applicant punched Constable Dixon in the mouth. The constable fell backwards and injured his left ankle. He was then assisted by four other police officers in an attempt to subdue the applicant who continued to struggle until capsicum spray was administered. His hands were cuffed to the front of his body and he was forcibly removed from the premises. He continued to resist police who struggled to place him into a caged vehicle. Whilst being placed in the rear of the vehicle, the applicant kicked at the rear door on a number of occasions, on one of which the door was kicked back with such force that Constable Robyn Tanti, who was attempting to secure the rear door, was struck on the hand and knocked back several paces. Capsicum spray was again used to restrain the applicant who was hitting his head on the cage of the police vehicle. The rear door was then secured.
As a result of the applicant’s violence, Constable Dixon suffered a cut to his lower lip requiring three stitches and fracture to his left ankle, which was placed in a plaster cast at hospital. He also sustained a chipped tooth and the derangement of the hinge on the right-hand side of the jaw. Constable Dixon was off work for six weeks. Constable Tanti’s right thumb/wrist was fractured and she was also off work for six weeks. In his victim impact statement, Constable Dixon said in respect of his injuries –
“11.        The injury I suffered was a fracture to the underside of the left tibia and serious tears and strains to the tendons surrounding the ankle. As a result of this injury, I began a routine of visiting doctors, specialists and physiotherapists for rehabilitation.
12.          I was then off work for a month, during which time my ankle was unable to bear weight and I had to use crutches in order to get around. I was also unable to drive, and became reliant on friends to take me to medical appointments and do basic chores around the house.
13.          After being off work for four weeks, I became able to bear weight on the left ankle and returned to work wearing a large ankle brace. I was placed on restricted duties, namely desk and office work. The injury meant that I continued to perform restricted duties for a period of three months. In this period I was still attending doctors and physiotherapists several times each week, as well as swimming exercises.
14.          I returned to full duties at the beginning of July, 2003. I attended an independent specialist for Workers Compensation where it was determined I suffered 8% permanent whole body impairment as a result of the injury to my left ankle. Doctors have stated that I have an increased risk of suffering arthritis later in life as a direct result of the injury. I still suffer pain in the tendons of the ankle, and the injury continues to prevent me from performing continuous exercise.
15.          I have received a permanent scar on my lip as a result of the laceration received from the punch.”
Some of the material in the statement was not consistent with the agreed facts and objection was taken to that material. However, the applicant’s solicitor did not object to that part of the statement that described the injuries sustained and how they affected the officer. It is this part of the statement which I have set out above.
The applicant was interviewed at about 11 pm on the day of the incident. Amongst other things, he said, in effect, that he punched Constable Dixon when police rushed him when he was talking to Ryan and that he just reacted to people grabbing him. He said that he continued to struggle with police after he had been handcuffed saying, “I wasn’t too happy about being pulled out of me own house”. He also agreed that he kicked the back door of the police vehicle saying, “I kicked the back of the door because I was very upset about being taken out of my own house”. He claimed that just before he was rushed by police he said, “There’s no dramas”, commenting, “It was sweet, then I got rushed”. He agreed that he was attempting to hurt himself in the back of the police vehicle saying that he was “pretty distressed” and “sort of hyperventilated”.
It is implicit, I think, from the applicant’s interview that the pepper spray had blinded him and it seems likely that this was, indeed, the fact. The interview then went on to deal briefly with the argument between the applicant and his wife. Although he could not remember what it was that he said that led to his breaking objects in the house, he went on to say (omitting swear words) –
“I’ve been very depressed lately cause I lost me job that I’ve had for sixteen years. Me son’s been driving me insane for money… She’s been out of work and she’s just got a job and she’s been driving me insane for money and I haven’t got much money left and they drive me mad so I just had a blow-up.”
The applicant said that he had paid his wife’s gambling debts, which totalled thousands of dollars. He said, when asked why he would not come out of the house, that he was “really getting cranky. I’ve had a lot of problems as I’ve said and I was really losing it. I was really getting cranky, right”. He said, in effect, that he rang the police so that, when they arrived he would be able to settle down but then he calmed down at all events and he tried to say that he had calmed down and there was no need for them to be there but they took no notice. He did not recall telling police that he had murdered his wife saying, “I can’t remember because I was really, really very upset at the time and I can’t remember the exact words that I said then”. He added –
“I could have said that and if I have, I’m really sorry that I said it, because I was probably trying to, as you’ve heard before, people try to commit suicide by police, right...and at one stage, I’ve been very depressed in the last few weeks and I’ve been going to neck myself and I’ve told a couple of good friends of mine I’ve been going to neck myself. And at one stage I thought about running out there with a…me young bloke’s got a plastic gun like a toy one …I was going to run out and just shoot, you know what I mean and that’s how close it is. I was thinking about that. I was thinking about that.”
His recollection of Constable Dixon was not much more than that the constable rushed at him and “I just pushed him away to protect myself and that’s all I remember”. When he was told that the officer suffered a cut lip and a broken tooth the applicant said, “I am sorry if that happened. I can’t remember doing that maliciously”. The applicant conceded that he had, just before the incident with Constable Dixon, told Ryan that he was suicidal and a short time before that had said that he would get some petrol and “blow the house up”. He said that after he was first sprayed with pepper spray he did not remember any more after that, “I was disoriented”. The applicant added, when he intimated that he wished to end the interview –
“I’d just like to say that I am very sorry for the whole situation. I’ve been going through a lot of drama and I know it’s no excuse but I would like to say that I am very sorry that I put everyone out. I am sorry if anyone’s got hurt. I never planned for anyone to get hurt, when I got rushed in me own home, all I did was try to – mate, if I wanted to cause trouble, I would have been running out there, running into people, bashing people, run out with a stick or whatever. I would have been doing it, wouldn’t I?”
The applicant added some details about the considerable stresses he was under at the time, attempting to support a wife with a serious gambling problem and a son who was “ex drug addict”, having to put up with people driving stolen cars through his bedroom window, attempting to attack his son who owed thousands of dollars, threatening to kill his son, the applicant and his mother all of which the applicant attempted to cope with.
The applicant’s prior record
The applicant was convicted in September 1995 of one offence of resisting police and five offences of assaulting police, in respect of which he was fined and placed on a Section 558 recognizance for two years. On 11 October 2002, he was convicted of common assault, fined $750 and placed on a Section 9 bond for twelve months subject to the supervision of the Probation and Parole Service. He was also fined for offences of offensive language and malicious damage to property, for which he was fined respectively $200 and $780. It follows that the applicant was subject to a bond at the time of the present offences. However, it is important, I think, to note that the applicant, who was sixty years of age when the current offences were committed, had no convictions before those of September 1995.
Reports
A number of reports were tendered in the proceedings: a Probation and Parole Service pre-sentence report of 3 July 2005; three reports from Dr David Taylor, a consultant cardiologist dated 20 June 2005, 22 August 2005 and 8 November 2004; a report of Dr John Williams, the applicant’s general practitioner, of 10 September 2004; a report of Dr Bruce Westmore, forensic psychologist of 19 July 2005 and a report of 20 July 2005 from Mr H Cannon of the Sydney Counselling and Family Therapy Services.
The pre-sentence report referred to the applicant’s response to supervision undergone in consequence of the bond that he received in respect of the offence of common assault for which he was convicted on 11 October 2002. The applicant was reported to have responded well to supervision, including accepting referrals for counselling. It was noted that when the applicant committed the present offences he made what was described as “significant changes in his life” namely ceasing all drinking and attending for counselling. The report noted that the applicant resided with his wife and son, that he had a stepdaughter and three children from different mothers aged 42, 36, 25 and 15. He was a significant figure in the lives of his children. It appears that one of his children had a heroin addiction, to which I have already adverted, and another had emotional and behavioural issues. The relationship of the applicant with his wife was described as “tumultuous” and “plagued by [the applicant’s] alcoholism, violence, infidelity and his wife’s gambling addiction” but that, despite this, “both remain highly committed to each other”. The applicant’s wife also informed the Probation Service that for the past two years the applicant had ceased drinking, had become much more calm and had not been violent, aggressive or intimidating. The applicant was self-employed in a business in which he worked six days a week. Prior to this he was employed for sixteen years as the operations manager at a large Sydney club and had worked before that as a police officer for some fifteen years. The applicant said that he left, or was retrenched, from both of these positions due to his issues with alcohol. He reported that his alcohol consumption became problematic when he was 29 years of age and described frequent binge drinking episodes leading to blackouts, memory loss and episodes of aggression, particularly towards his family. The applicant said that it was his involvement with the present offences which led him to a decision to change his drinking habits and he resolved to abstain completely.
As I have mentioned, the applicant’s wife confirmed that he had been sober for the previous two years.
The applicant underwent regular counselling with an appropriately qualified counsellor and a psychologist who confirmed his positive progress.
The applicant informed the Probation officer that on the day of the offence he had been drinking at a club with friends for nearly six hours and had consumed approximately twenty-four schooners of beer and that he arrived home and argued with his son. His account of the events differs in some significant respects with the agreed facts but it is reasonable to infer that this different perspective reflects the combined effects of the applicant’s intoxication and state of extreme emotional disturbance. The Probation officer concluded, having regard to the applicant’s successful maintenance of sobriety for an extended period in the context of serious alcoholism for something like thirty years, that continued supervision was not required.
Dr Taylor confirmed that the applicant had serious problems with high blood pressure and cardiac arrhythmia requiring corrective procedures for fibrillation. Medication is necessary to control his heart rate and thin his blood and prevent clots which might result in a catastrophic stroke. The drug taken for the latter condition needed, according to Dr Taylor, to be “well regimented with regular blood tests as frequently as every two to three days when dose adjustments are required”. Dr Taylor suggested that this supervision would be more difficult to do in the custodial environment. Having regard to the connection between the applicant’s cardiovascular problem and stress, the doctor thought that custody would impact unfavourably upon the management of his condition. I think it is self-evident that prison is far from an ideal environment for any person with significant health issues. However, there is no evidence that the applicant’s condition is not being appropriately managed within the prison system. Dr Williams’ report does not add anything significant to those of Dr Taylor.
Mr Cannon is a consultant psychologist and counsellor who has worked extensively with Probation and Parole district offices across Sydney for some years and was, for several years, the clinical director of the Maryfields Recovery Centre in Campbelltown. His report contains an extensive discussion of the applicant’s history noting, amongst other things, the gambling addiction of his wife resulting in large amounts of debt which the applicant had been required to pay and also that she had tried to commit suicide four times over the previous four years and had been hospitalised on each occasion. The report also noted the addiction of the applicant’s then twenty-six year old son who, since the age of twenty, had suffered from a heroin, amphetamine and cannabis addiction in respect of which the applicant had supported him. Mr Cannon also reported being given a history by the applicant of very traumatic experiences undergone by him whilst working as a policeman. Mr Cannon described some of these, fairly, as “horrific events”. It is unnecessary to detail them for present purposes but there is no reason to doubt that these experiences had a significant effect on the applicant’s psychological wellbeing. The applicant expressed to Mr Cannon what were described as “deep feelings of shame and remorse over what happened”. Mr Cannon’s assessment was that the applicant was then beginning his third year in recovery and that with each year of recovery the risks of relapse generally become less. He thought that the applicant was at low risk, if any, of re-offending and would remain so as long as he maintained his recovery and continued to develop his state of mental health.

Dr Westmore’s report sets out a detailed history which it is not necessary for present purposes to repeat. The doctor made a provisional diagnosis of posttraumatic stress disorder based on the applicant’s history of being exposed to workplace traumas when employed with the Police Service. Dr Westmore’s report is careful and thorough and includes the following opinion –
“Mr Winn is a sixty-two year old man, the eldest of three children. He grew up in Sydney and he appears to have a good work history. He worked with the police service for fifteen years and later with a rugby league club for fifteen or sixteen years. Throughout his life, however, his alcohol abuse has affected his employment and probably his relationships.
The matters now before the court occurred on a day when Mr Winn had been drinking. He has an ambivalent relationship with his twenty-six year old son. On the one hand he reports that his son has a drug abuse problem but on the other hand he also indicates that he had gone to considerable efforts to try and assist his son get off drugs. To date that assistance has been unsuccessful.
He has had a number of medical problems including suffering atrial fibrillation.
He has had no extended psychiatric care although his alcohol abuse problems have resulted in behavioural disturbances and he has a history of depression.
Fortunately he stopped drinking on 3 March 2003 and he has been able to maintain his sobriety despite the extent of his previous alcohol-related difficulties.
I do not think he has an anti-social personality disorder and the aggression he demonstrates leading to the charges arose initially from his alcohol abuse and secondly following a conflict with his eldest son and perhaps his wife.
If his history is correct when he reports he stopped drinking in March 2003 then this is a significant achievement for this man. I think the matters now before the court have been particularly stressful for him. If he can maintain his sobriety his risks of re-offending will be significantly reduced.”
Testimonials
A number of testimonials were tendered from responsible members of the community. These persons had known the applicant over many years and were aware both of his family situation and the offences which he committed. They testified to the applicant’s generosity and support for his family and the difficulties which he has had to endure. A number of them confirmed the problems with his wife’s gambling and his son’s drug addiction. They attested to the rehabilitative changes in the applicant’s life; several also record the sincere and significant degree of remorse that the applicant had displayed. One referee referred to witnessing “immense remorse and a complete character change in the past two years”. None of these testimonials were purely formal. All were from responsible people who knew him well. This documentary material was relevant in three important respects: firstly, it provided cogent evidence of the applicant’s excellent working history despite his alcoholism; secondly, it provided convincing evidence of the applicant’s remorse and contrition; and thirdly, it provided considerable support for the rehabilitation which had occurred in the applicant’s life since the offences.
The applicant’s evidence
The applicant wrote a letter in July 2005 to the Superintendent in charge of police at Fairfield police station. That letter, amongst other things, referred to the applicant’s attendance at the Fairfield police station to receive a statement relating to the brief of evidence in his case. He said that he was shown by the investigating constable colour photographs of Senior Constable Dixon as he lay injured in hospital. The applicant said that he was shocked when he saw these photographs and felt “great remorse”. He said that he was also informed of injuries to Constable Tanti, which he described as serious. He asked the Superintendent “to convey my sincere apologies” to the injured police and also to any other officers who were involved in the incident. In my view, there was no evidence capable of justifying a conclusion that this letter was other than the sincere expression of the applicant’s regret for the injuries he had caused.
The applicant also gave evidence. Amongst other things he said that, when he was interviewed, he was still affected by alcohol and did not have a good recollection of exactly what he said or, indeed, how much he had been drinking. He said that he told Dr Westmore that he had drunk twenty-four schooners of beer but this was a reconstruction, in light of the fact that he was with other heavy drinkers for some hours and that usually he drank between four and five schooners an hour. The applicant could not recall actually punching Constable Dixon in the face although he does recall hitting a police officer with the back of his hand after he struggled with a number of police at the door and was sprayed. (This struggle occurred after the striking of Constable Dixon, of course.) He said that he was kicking the car door because he was frustrated, having been sprayed with capsicum spray and feeling claustrophobic. He said that he thought the door was shut and in the melee he was just kicking out and kicking the door and it suddenly came open. He said that he was suffering a panic attack and was trying to get out. He described what he had done as a “disaster…caused to these constables” which he sincerely regretted and that his realisation of the serious nature of what had occurred had become more real as his period of abstention from alcohol proceeded. The applicant’s failure to recollect punching the police officer cannot, in my view, fairly be characterised as an attempt to avoid or explain away his responsibility. To the contrary, it seems to me that the substance of the applicant’s evidence is that, although he did not recall it occurring, he accepted that he did it. He repeated that when he saw the photographs of the constable “I couldn’t believe…that he looked so injured …I was shocked and mortified by it…I couldn’t believe it when the constable showed me the photos”.
The applicant was asked about his problem with alcohol and said –
A.           I can honestly say I have not had an alcoholic drink pass my lips since that day. The day of the Court case, when I had been in custody for eighteen hours in the cells at Fairfield Court. And the Magistrate looked down and said, ‘Mr Winn, I think you’ve been in self-denial’ and he said some other words, something about what had happened and I sat there in handcuffs and I still remember it to this day and I said, ‘He’s right, I have got a problem’. And I just made up my mind at that time. I said I’m never going to touch another drink and I have not touched another drink since.
Q.           Mr Winn, what do you want to tell his Honour about this incident, these offences on that day and why you decided to stop drinking?
A.           Because of the disaster that it caused to these constables, which I’d never, ever – I sincerely regret that it happened. But because of my clouded, being in alcohol abuse, which my last two occupations, I never realised that I was drinking so much because it was like a normal situation and I didn’t think it was, but I was really in a fog because I’ve noticed it since I’ve been off the drink. The first four months were a bit rough and then, after that you know, reality starts to come back and I’ve realised what terrible things have happened and how easy it is for it to happen. That’s why I’ve decided to stay off the alcohol and I sincerely regret any injuries…[not transcribable]…what has happened to the police and the whole situation. Plus, things that have happened before at home, even before with my wife and son. When I’ve had troubles, I’ve just, the alcohol has made it worse than what it was. I’ve realized that since I’ve been off it. That’s a different situation of life now because its just so much, we get on a lot better. My wife and I get on better because she’s not scared of me blowing up and my son, when he’s going through his problems, I can talk to him sensibly without getting, just going off and using alcohol as an excuse.
…
Q.           And you have said to his Honour you have shame for the whole ugly episode now?
A.           I sincerely regret it and wished that it had never happened and I just wish I could just take it back, wind the clock back and just say that it never happened. But it has happened and I admit that it probably exploded worse and worse because of my alcohol abuse and since then I’ve given it up and I just can’t believe how, why it happened. Why, you know, it just got out of control.
It was put to him in cross-examination that his attitude was an attempt to minimise his role in the assaults. The applicant denied that he was doing so, saying, “I know that [these are things I did] and I take full responsibility for it”. There was nothing in the applicant’s evidence that supported an inference that his failure of recollection was feigned or that he was doing anything less than accepting responsibility for what occurred.
The reasons for sentence
The learned sentencing judge commenced with a description of the offences, noting the maximum penalties prescribed by the Act as well as the standard non-parole periods of five years in respect of the first count and three years in respect of the second. His Honour then summarised the agreed statement of facts, referred to the applicant’s prior offences and his age and set out extensively the material in the Probation and Parole Report and Dr Taylor’s reports. The learned sentencing judge, commented of Dr Westmore’s report that it “tells me little except that he regards the offender as being in need of psychiatric care”. It was submitted by Mr Boulton SC for the applicant that this dismissive observation was not justified. In my view, his Honour meant no more than that the material in Dr Westmore’s report duplicated, to a greater or lesser extent, what had already been stated in the other reports including, in particular, the report of Mr Cannon, who the learned sentencing judge described (fairly, in my respectful view) as “an experienced addiction counsellor”. In my opinion, counsel’s criticism as to how his Honour dealt with Dr Westmore’s report is unjustified. His Honour cited the conclusion of Mr Cannon that “I believe that Mr Winn is at a low risk, if any, at this stage of re-offending and will remain so as long as he maintains his recovery and continues to develop his state of mental health”.
His Honour apparently formed the view that the opinions of Dr Westmore and Mr Cannon that the applicant’s continued rehabilitation depended on his continuing abstinence meant that there was a particular need for continuing personal deterrence and, more, that such a need could only be satisfied by imprisonment as distinct from being subject to a longer than usual parole period. Where the applicant’s rehabilitation was completed in the sense that the applicant had remained abstinent whilst at liberty, (with all the stress of unresolved criminal proceedings) this conclusion is surprising, indeed to my mind unfair, unless there was some material – which was certainly not present here – that suggested that the applicant was likely to relapse. If it could be inferred that the applicant did not accept that what he had done was wrong, then of course his rehabilitation must be regarded as somewhat limited but, nevertheless, there was no particular need for personal deterrence unless there was a reasonable basis to conclude that he was likely to re-offend. It is to this aspect of the evidence that I now turn.
The learned sentencing judge briefly referred to the applicant’s evidence, accepting, in particular, that the applicant had been totally abstinent since the night in question and had resolved to remain so. His Honour added –
“He was questioned about the events giving rise to his previous convictions. It is clear that they all arose out of overindulgence in alcohol and that his reaction to problems appears to be a resort to violence. Anyone in his way, police, hotel staff, his family have been dealt with either by direct violence or by the destruction of property in their presence. His expressions of regret now appear to be real but they appear to me to fall short of contrition.
Giving evidence he referred to things as ‘having happened’. There does not seem even now to be a realisation that the court is dealing not with things that simply happened but with the actions of the offender himself. He does not appear to understand that had he got his life under control twenty or even ten years ago, he would not have committed the crimes that I am now dealing with. He tendered a number of testimonials from associates. I accept that his life has been positive in many respects and useful…”
The destruction of one’s own property in anger may be inappropriate and sometimes frightening, but it is not a criminal offence. It is necessary, also, to place his prior offences in perspective: they were assaults but apparently without injury; there was one offence of malicious damage to property of less than $2000 in respect of which he was fined $780. This scarcely represents a crime spree. And there was the substantial gap between the first set of offences in 1995 and the second in 2002, with the second set being very much less serious. With respect, the remark to the effect that, “had the applicant [got] his life under control twenty or even ten years ago” the present offences would not have occurred is mere supposition. Some of the major problems in the applicant’s life to which I have referred were not within his control. There could be few problems more intractable and frightening for a parent (especially, perhaps, someone with police experience) than to have a child addicted to heroin. No doubt his resort to alcohol was not a solution and, of itself, created more problems but, although regrettable and unwise, it was neither a criminal nor a relevant moral failing.
Furthermore, there was no proper basis for concluding that the applicant did not understand that the offences resulted from his drunkenness: first of all, there was the very significant fact of his abstinence; there was the extensive counselling he underwent that must have dealt with this issue; his insight about his alcoholism is referred to and clearly thought to be important in the reports of the Probation and Parole Service, Dr Westmore and Mr Cannon; I have set out above part of the applicant’s evidence about this issue.
The learned sentencing judge said that the applicant “is in need of deterrence”. This was a reference, I think, to the proviso in Mr Cannon’s report set out above and to his conclusion that the applicant was not contrite. His Honour appears to have concluded that the requirement of specific deterrence was of particular importance (above the ordinary) in the applicant’s case and, it cannot be doubted, significantly influenced the sentence his Honour passed. In my view, this finding was not open. The applicant had made very significant changes to his life and had undertaken substantial counselling, the utility of which was demonstrated by his abstinence from alcohol. Until 1995 he led a productive, useful and respectable life. There was a gap of seven years before he came under notice for offences that could not be regarded as serious. It is reasonable to ascribe part of his fragility to his experiences as a police officer which I have mentioned and, in this respect, the connection between those experiences and his condition was the subject of Dr Westmore’s provisional diagnosis of PTSD. He was clearly a florid alcoholic for a long time before this. With respect, it was unfair to describe the applicant’s reaction to his problems as a resort to violence. Certainly, there were occasional episodes of violence but no evidence that they were serious or continuing and, at the time of these offences, he was under very great and unusual personal pressures.
Although it may readily be accepted that the commission of the offences and the possible consequences made it clear to the applicant how essential a change in his drinking habits and conduct was and provided a powerful motive for the applicant’s changes of lifestyle, that is frequently the case with persons who are moved to rehabilitation. In my view, the evidence did not justify the conclusion that any special emphasis should be given to the need for specific deterrence in the applicant’s case.
It is submitted on the applicant’s behalf that the evidence of the applicant’s contrition was overwhelming, especially when regard is had to the applicant’s abstinence from alcohol since the offences. In my respectful view, this submission should be accepted. For a long-term alcoholic to abstain completely from alcohol in the way achieved by the applicant is very significant indeed. Overcoming any addiction is a difficult task but one which is so longstanding and so insidious and powerful as addiction to alcohol is especially difficult to overcome. The fact that the applicant did so is powerful evidence of his essential strength of character and of contrition.
Whether an applicant is contrite is very much a matter of fact and degree and it is a rare case in which a finding by the primary judge about it would not be accepted by this Court. Yet, a careful reading of the learned sentencing judge’s reasons for sentence illustrate, I think, that his Honour did not regard the applicant’s abstinence from alcohol as even relevant to the question of contrition. Furthermore, accepting (as his Honour did) the applicant’s expressions of regret as “real” is, I think, inconsistent with a finding that he was not contrite. Whatever the different nuance of meaning there might be between remorse and contrition, there is no real distinction for the purposes of the criminal law.
As I have mentioned, the testimonials do more than attest to the positive aspects of the applicant’s life and character. They make unequivocal and convincing assertions about the considerable remorse for his actions demonstrated by the applicant. The learned sentencing judge does not refer to these aspects of this material, still less give reasons why they should not be accepted, unless his Honour, again, thought that they went merely to remorse rather than to contrition. Moreover, if there was a continuing theme, given added poignancy by his voluntary abstinence, of all the applicant’s statements about his offences, including his evidence in court, it was that they would not have occurred had he not been intoxicated and that his intoxication arose from his alcoholism. There was nothing in the cross-examination that suggested otherwise than that the applicant fully understood the connexion between his drinking and his conduct, an understanding all the more evident by his lengthy period of abstinence. Of course, the applicant had a strong motive to abstain, considering the sentence that he was facing, but this is scarcely a criticism.
Accordingly, making every allowance for the advantage of the learned sentencing judge in seeing the applicant give evidence, I would not, with respect, accept his Honour’s view about the significance of the applicant’s remorse and the reality of his contrition. Nor do I think that there was any sound basis for concluding (as I think his Honour implicitly did) that the sentence should reflect a need for continued personal deterrence upon the basis that the applicant was unlikely to continue the rehabilitation that had already been demonstrated or that it was unlikely that he would not relapse into violence. The Probation and Parole Service report stated that the applicant did not need continued supervision in light of the rehabilitation already evident. It appears that his Honour accepted this conclusion but did not appreciate that it was significant, not only as to whether special circumstances were present, but also as to whether, in the Service’s opinion, further rehabilitation was needed.

In point of principle, a more fundamental problem of the reasons for sentence is the absence of any discussion of the objective seriousness of the offences as compared with a case in the middle of the range of objective seriousness. His Honour’s reference to the objective circumstances was confined to a brief description of the facts extracted from the agreed statement of facts, an observation that “attacks on police officers who were doing no more than their job are very serious and the community expects that they will be punished” and a description of the applicant’s violence as “extreme”.
Where the offence in question carries a standard non-parole period, the appropriate approach to sentencing was specified in R v Way (2004) 60 NSWLR 168 as follows –
“[117] In order to give the Division practical utility it seems to us, in the light ofthe foregoing analysis, that a sentencing judge must ask and answer the following question: “are there reasons for not imposing the standard non-parole period?”
[118] That question will be answered by considering:
(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;
(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender,as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1).
[119] Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one forwhich the standard non-parole period specified in the Table was intended to apply.
[120] Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from thestandard non-parole period.
[121] If the question, which we consider should be posed, is answered in theaffirmative, then it seems to us that the court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in ss 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of theCrimes (Sentencing Procedure) Act 1999.
[122] In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along withthe other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offend erentered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount.
[123] The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as aguide for cases that are outside the mid range.
[124] The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R vMcGourty [2002] NSWCCA 335 at [45]), cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.”
It is clear that his Honour did not follow the process propounded in Way, nor a process which focused on the seriousness of the offences in the context of the range of factual circumstances which might place an offence in the middle of the range of objective seriousness.
So far as the first count is concerned, the actual violence involved a single, though no doubt forceful, blow to the face of the police officer which split his lip and required three stitches. That blow did not itself cause grievous bodily harm and, it may fairly be inferred, was most unlikely to do so. That injury was caused when the police officer was forced backwards through the screen door and fell onto his back, injuring his ankle in the way that I have described. The blow was impulsive, there was no continuing violence towards the officer, no weapon or object was used and the applicant was extremely upset at the time. The injury, though having some permanent effects, was significantly less than many injuries that might reasonably be described as grievous bodily harm. The second count arose when the victim’s hand was struck violently by the door of the vehicle, kicked open by the applicant at a time when he was undoubtedly severely affected by CS gas. It appears to be accepted that he was blinded at the time. Certainly he was attacking the cage in which he was being kept but there is no suggestion that he was intending to attack any police officer at the time. It is not suggested that the injury, though undoubtedly painful, was long lived, let alone permanent. Of course, violence committed against police officers engaged in the performance of their duties must be regarded as serious of itself and the fact that the applicant was on a bond at the time is an aggravating feature.
The circumstances to which I have referred place the offences well below the middle of the range of objective seriousness. The violence, though completely unjustified and wrongful, could not be fairly described as extreme or even approaching the extreme; nor could the injuries be so described. Looking overall at the objective features of the offences, in my view, they were close to, if not at, the bottom of the range of objective seriousness for offences under sub ss60(2)and (3) of the Crimes Act 1900 even before taking into account the favourable subjective features. In the result, the non-parole periods imposed were, in respect of the first count, 60% and, in respect of the second, 50% of the standard non-parole periods. These sentences resulted from a utilitarian discount of 20% (not the subject of controversy here) as well also the significant subjective features of the case. I think it must be concluded, with respect, that the failure of the learned sentencing judge to refer to the standard non-parole periods as indicatively reflective of a case in middle of the range of objective seriousness was an error that led his Honour to higher sentences than should otherwise have been imposed.
Utilisation of the standard non-parole period as an indication of objective seriousness is very much a matter of fact and degree and, in the normal course, this Court would defer to the determination of the primary judge about it. However, as I have pointed out, his Honour made no appropriate reference to its use and expressed no conclusion except for the description “extreme” and insofar as one might be gathered from the sentences imposed. I am of the view that, in the present context, this is a significant error of law requiring this Court to re-sentence the applicant.
Proposed orders
I have already set out the material facts of the offences and the relevant subjective features and mentioned those factors that place the objective circumstances well below the middle of the range of objective seriousness for the relevant offences. For the purposes of s54B(4) of the Crimes (Sentencing Procedure) Act 1999, the reasons for reducing the standard non-parole periods are: the objective and subjective circumstances to which I have already referred (vide s21A(1)(c)) and, with reference to the matters mentioned in s21A(3): though the injuries were significant, they were close to the bottom of the range of seriousness for injuries within sub ss60(2)and (3) of the Crimes Act 1900; the offences were impulsive; the offender is substantially a person of good character; the offender is unlikely to re-offend and has good prospects of rehabilitation; and the plea of guilty. Although continuing supervision, as is stated by the report of the Probation and Parole Service is unnecessary, I think that it must be recognized that the applicant’s abstinence and control of his conduct was stimulated, at least in part, by the impending sentencing proceedings. He has made good progress but I think that it is desirable to impose a longer parole period than would result from the application of the statutory ratio in s44 of the Crimes (Sentencing Procedure) Act 1997 to encourage continuance of this rehabilitation. So far as the second count is concerned, for the reason that the sentence is to be served concurrently with that on the first count, there is no utility in specifying a minimum and balance of term and a fixed term should be imposed. In my view the sentences imposed in the District Court should be quashed and the following sentences substituted –
(i)in respect of the first count, a minimum term of one year and six months’ imprisonment to commence on 9 September 2005 and expire on 8 March 2007 with a balance of term of two years to expire on 8 March 2009;
(ii)in respect of the second count, a fixed term of one year, to commence on 9 September 2005 and expire on 8 September 2006;
(iii)the applicant is to be released to parole at the expiration of the minimum term specified on count one.
HOWIE J: I agree with Adams J.
PRICE J: I agree.

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LAST UPDATED: 27 February 2007