Wykamp v The Queen
[2012] NSWCCA 145
•04 July 2012
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Wykamp v R [2012] NSWCCA 145 Hearing dates: 22 June 2012 Decision date: 04 July 2012 Before: McClellan CJ at CL at [1]
Price J at [2]
Button J at [3]Decision: (1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords: CRIMINAL LAW - appeal against sentence - threatening to injure officer with intent to hinder lawful detention in company - full time custodial sentence not manifestly excessive - no error in finding lack of remorse and contrition Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: R v Hamilton (1993) 66 A Crim R 575
R v Sainsbury [2000] NSWCCA 496
R v William John Murray [2008] NSWDC 285Category: Principal judgment Parties: Peter Andrew John Wykamp (applicant)
Regina (respondent)Representation: Counsel:
D Murray (applicant)
J Pickering (respondent)
Solicitors:
Boulevarde Lawyers (applicant)
Solicitor for Public Prosecutions
File Number(s): 2010/431004 Decision under appeal
- Jurisdiction:
- 9101
- Date of Decision:
- 2011-09-06 00:00:00
- Before:
- Neilson DCJ
- File Number(s):
- 2010/431004
Judgment
McClellan CJ at CL: I agree with Button J.
Price J: I agree with Button J.
Button J:
Introduction
On 6 September 2011 in the District Court at Orange, Judge Neilson convicted Peter Andrew John Wykamp ("the applicant"), pursuant to a plea of guilty, of one count of threatening to injure Constable Miles Burden with intent to hinder the lawful detention of Mitchell Wykamp while in company. The charge was brought pursuant to s 33B(2) of the Crimes Act 1900. It attracted a maximum penalty of imprisonment for 15 years. There was no applicable standard non-parole period. Immediately thereafter, his Honour sentenced the applicant to a total term of imprisonment for 18 months, with a non-parole period of imprisonment for 12 months. It can be seen that a slight adjustment was made to the length of the non-parole period on the basis of a finding of special circumstances; if that had not occurred, the non-parole period would have been 13 months and 2 weeks. The applicant seeks leave to appeal against that sentence to this Court.
Objective features
Eugowra is a small country town of about 500 citizens located between Orange and Forbes. As at Boxing Day 2010, Constable Burden was the sole police officer stationed in the town. In the evening of that day he travelled to Canowindra to assist with rising floodwaters. He returned to Eugowra at about 12:30am on 27 December 2010. That town was also endangered by floods.
Constable Burden was informed that a vehicle had been seen driving erratically. Very shortly after, a vehicle consistent with the description given drove past. Constable Burden stopped the vehicle. The driver was the young son of the applicant. He was on his provisional license. Mitchell Wykamp returned a roadside breath reading of 0.115. He was arrested, handcuffed and placed in the rear of the caged police vehicle.
Meanwhile the applicant was at his business, preparing for the flood. As soon as he was told about the arrest of his son, he, along with others, ran to the police vehicle.
It is convenient from this stage to quote precisely from the statement of Agreed Facts that was tendered in the proceedings on sentence:
"At this stage the Accused said to Constable BURDEN: "Let my son out please". Someone then said "You better fucking let him out or your life won't be worth living". Constable BURDEN said to the Accused, "I can't do that, he's arrested for drink drinking". The Accused said, "I don't give a fuck. Everyone is drink driving, let him out now". .
Constable BURDEN formed the view from the Accused's actions, the smell of intoxicating liquor, the slurring his words and his unsteadiness on his feet that the Accused was well affected by alcohol.
Constable BURDEN noticed that about 10 other people had gathered around him and the police vehicle. He remained focused however on the Accused as the actions of the Accused caused him to fear that he would be assaulted.
Constable BURDEN could hear other people in the crowd also yelling at him. "You were alright until now. Now you're fucked" and "Are you stupid, did you forget we know where you live!" It was at this time that Constable BURDEN formed the opinion that he may be seriously injured.
Constable BURDEN attempted to call for assistance however in his portable radio did not have coverage. The Accused was still standing in front of Constable BURDEN, yelling at him "You don't know what you're doing, you're not in fucking Sydney anymore, let him out."
Constable BURDEN was forced to push his way past the Accused to get to the police vehicle to use the police radio. When he did this, Constable BURDEN was followed by the Accused. After Constable BURDEN had requested assistance via the Police radio he was effectively pinned against the passenger door of the police vehicle with Accused waving his arms as he yelled at him, "Look around, everyone is fucking pissed. Go breath test us all you cunt. We are out here trying to save the town. Where the fuck have you been all night. You then come in here and want to start arresting people. That's not right. Let him out". Constable BURDEN said, "He's not getting out. I know everyone has been drinking, he was just the first car I stopped". .
Constable BURDEN was becoming more and more concerned about his welfare and he states that he was in fear of being assaulted by the Accused. Constable BURDEN asked the Accused to step back and attempted to push him away but this was unsuccessful.
One of the SES volunteers approached the group and he too was asking people to move away. Constable BURDEN then noted that members of the group started yelling abuse at that SES volunteer. It was at this time that Constable BURDEN formed the view that it may not only be himself that would be harmed and the way to "de-escalate" the situation was to release his prisoner, Mitchell.
Constable BURDEN said to the ACCUSED, "Okay, I'll let him out". The Accused said, "Good. That's the right thing to do. You're doing the right thing". Constable BURDEN walked to the left hand side of the rear cage and released the young man and noticed that he walked away with his mother, the Accused's wife.
After this happened, the group of people quickly dispersed. The Accused then shook Constable BURDEN's hand and said "Thank you"".
It is not in dispute in the proceedings that Constable Burden believed that he would have been seriously harmed if he had not freed the son of the applicant.
The applicant was arrested on 30 December 2010.
He took part in an interview about what had occurred. During that interview, the applicant conceded that he knew that, as a result of obtaining the release of his son from the caged vehicle, his son would not have to be subjected to a breath analysis.
Subjective features
The applicant pleaded guilty at the first opportunity. He was given a discount of 25 per cent with regard to the utilitarian value of that plea.
As for the question of remorse, there were a number of important pieces of evidence. First, on arrest, a few days after the commission of the offence, the applicant said "This is a fucking joke" and "He's only been there for four months, what the fuck would he know". Secondly, in the ERISP, the applicant did not admit all that he ultimately admitted in the proceedings on sentence. Thirdly, a pre-sentence report was tendered in the proceedings on sentence. The following appears within that document:
"Attitude to the Offence
In discussing the offence the offender relayed that at that time he reacted in defence of his son. He further asserted a degree of animosity towards the local police officer and justified his actions."
Fourthly, the applicant gave evidence in the proceedings on sentence of 5 September 2011. The following exchanges occurred:
"Q. What about your attitude towards Constable Burden, how did you feel about what had occurred to him that night?
A. Yeah - oh just didn't - I know I shouldn't have done it, I'm sorry I've done it and - yeah, ashamed. Letting the community down and - especially the fire brigade.
...
Q. And your behaviour it's suggested that you're not sorry for it or ashamed for it but you're only ashamed for your - you're only sorry that you've been caught and subjected yourself to this trouble, what is the case are you genuinely sorry about that?
A. Genuinely sorry, I've upset the township, I've really upset the fire brigade and the local captain there, my father was captain for 50 years so - yeah."
In the remarks on sentence, his Honour made the following findings with regard to remorse:
"As to mitigating factors, there is clearly the plea of guilty entered by the offender. I remain diffident, if not sceptical, about true contrition and remorse. What the Court is concerned with is victim empathy. What the Court is concerned with is whether the offender realises what he did to Constable Burden, how Constable Burden would have felt being surrounded by the people he was called upon to protect and care for and threatened by them. Clearly the offender is contrite because he has been called to account for his actions. He is contrite because part of his actions caused a police crackdown on the local community and a lot of people were charged with driving offences and the like in the police crackdown on Eugowra, and that, no doubt, generated some ill will amongst his fellow townsmen to the offender. No doubt he feels remorseful about that. However, I remain as I said, sceptical about whether there was true victim empathy."
The applicant was born on 25 May 1966 and was therefore 45 years of age on the day he stood for sentence. He was very highly regarded in Eugowra; indeed, it could be said he was a leading citizen of that town. The applicant was a successful businessman, member of the Lions Club and Apex Club, and active in the local Rugby League Club. He was the Deputy Captain of the local Bush Fire Brigade, and had been a member of that Brigade for some 30 years. He had stood down from that position whilst the proceedings were pending. There was a plethora of evidence of the esteem in which the applicant was held by his fellow citizens.
Having said that, his criminal record was not unblemished. In 2001, the applicant had been sentenced to a term of imprisonment for 18 months with a non-parole period of 10 months in the District Court for an offence of maliciously inflicting grievous bodily harm. The facts of that offence were not placed before his Honour. His Honour, generously in my opinion, regarded that offence as "spent" and declined to take it into account.
Pursuant to conditional bail, the applicant was prohibited for some time from living in Eugowra and ended up in Queensland. Eventually he was permitted to return to his lifelong home in the area in which his family had resided for decades.
Procedural history
In the proceedings on sentence, counsel for the applicant (who also appeared in this Court) submitted that a sentence of imprisonment for 2 years or less was open to the discretion of his Honour. Furthermore, counsel submitted that a suspended sentence would be an appropriate disposition of the matter. The solicitor then appearing for the respondent conceded that his Honour would not be falling into appellable error if such a sentence were to be imposed. His Honour took time to reflect on the sentence overnight.
In remarks on sentence that I respectfully regard as comprehensive and considered, his Honour said with regard to the ultimate disposition of the matter:
"A large amount of time has been spent on discussing the objective seriousness of this offence, or perhaps I should have said the seriousness of this offence. There is no standard non-parole period. True it is that there is no actual violence, no actual weapon. There was only the threat of violence. But there is a clear determination to have Constable Burden act otherwise than in accordance of his duty, to act contrary to his sworn duty and to override his standing in the community, to override his position as the sole authority of the Crown in the town of Eugowra upholding law and order.
The offender would, but for this event, be described, quite properly, as a leading member of the community, a pillar of its society, a civic leader. However, it is incumbent upon those holding such positions in the community to give to those in authority their support and respect. It has been submitted on behalf of the offender that I should impose a suspended sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act. The Crown has accepted that that is within my statutory discretion. I have great sympathy for that submission. I have no doubt that a suspended sentence would be sufficient to deter this offender from ever again committing this offence. Indeed, I have no doubt that whatever penalty I impose, whether it be a small fine or a s 9 bond, would be more than sufficient to deter Peter Wykamp from doing again what he has done and for which he now stands for sentence."
A little later his Honour remarked:
"I am afraid that were I to pass a suspended sentence upon this offender, I would not be carrying out my duty to deter members of the public from acting in a similar fashion, to how this offender acted, unfortunately, on 27 December 2010. I would not be denouncing his conduct. The citizens of Eugowra would look upon the offender as having been caned with a feather. The members of the New South Wales Police would look upon themselves as completely unsupported by the Court in doing their often demanding, dangerous and largely thankless task."
Shortly after that, his Honour imposed the sentence now under consideration.
Grounds
Two grounds have been notified. One asserts patent error and one asserts latent error. For convenience I shall deal with the ground asserting latent error last.
Ground Two
"That the learned sentencing Judge erred in his findings regarding the Appellant's lack of remorse and contrition."
The submissions of the applicant in truth raised two related issues concerning the topic of remorse: first, whether an error of fact occurred in the findings of his Honour in the remarks on sentence and recited above; and, secondly, whether the sentence failed adequately to take into account contrition and remorse. As for the latter issue, I regard it as in truth a particular of Ground One, and will deal with it in my discussion of that ground.
As for the former issue, I consider that the reticent approach of his Honour was reasonably open on all of the evidence. I refer to the things said by the applicant on arrest, the failure to fully admit his actions in the ERISP, the contents of the pre-sentence report, and the two portions of the evidence of the applicant to which I have referred. In particular, that evidence could be said to suggest a regret on the part of the applicant that his offence had caused trouble and inconvenience to himself and the town, rather than reflecting an acceptance of the harm done not only to the police officer but also to the maintenance of the law in Eugowra. Finally, it should be noted that his Honour had the opportunity to observe the way in which the applicant gave all of his evidence, including with regard to this topic, an opportunity of course denied to this Court.
I would reject Ground Two.
Ground One
"That the Sentence was, in all respects, manifestly excessive having regard to the objective and subjective circumstances of the offence."
In support of this Ground, counsel for the applicant invited attention to the remarkable subjective circumstances, not least of which was the fact that the town was in the middle of a flood emergency at the time of the commission of the offence. He eloquently emphasised the leading role that the applicant played in the town, and submitted that, in truth, the sentence imposed did not reflect the remorse of the applicant. He submitted that a suspended sentence could even now be imposed; in the alternative he submitted that the sentence could be shortened, both with regard to the total term and the non-parole period, with the effect that the applicant would be released immediately.
Counsel for the applicant referred the Court to the decisions of R v William John Murray [2008] NSWDC 285 and R v Sainsbury [2000] NSWCCA 496. The Crown referred to R v Hamilton (1993) 66 A Crim R 575.
Decision
I shall deal first with the three cases to which the Court was taken.
In R v Hamilton, the offender was convicted after trial of an offence of using an offensive instrument with intent to prevent lawful apprehension. In short, he had driven a stolen motor vehicle directly at a police officer, missing him by less than 30cm. For that offence, the offender received a total term of imprisonment for 3 years 4 months with a non-parole period of 2 years 6 months, within a larger sentence structure. In a well-known passage, Gleeson CJ (with whom Hunt CJ at CL and Ireland J agreed) emphasised that offences against s 33B are viewed extremely seriously by the Court of Criminal Appeal. An appeal against sentence was dismissed.
In R v Sainsbury, the Crown appealed against a sentence of 100 hours of community service that had been imposed for an offence of using an instrument to prevent apprehension. In short, the offender had driven a stolen motor vehicle directly at a police vehicle that contained a police officer who was partly out of the vehicle. The subjective circumstances were compelling, and included the fact that the offender had experienced the murder of her mother when the offender was aged 14 years. Dunford J (with whom Wood CJ at CL and Carruthers J agreed) regarded the case as wholly exceptional. Applying principles of double jeopardy then applicable, and taking into account the fact that the 100 hours community service had already been served, the Court upheld the Crown appeal and sentenced the offender to imprisonment by way of periodic detention for 18 months with a non-parole period of imprisonment for 12 months.
In R v Murray, the offender was convicted after trial of, amongst other offences, an offence of attempting to use an offensive weapon to prevent lawful apprehension. In short, the offender violently resisted when two police officers attempted to arrest him. That resistance included the offender seeking to take the loaded pistol of one of the police officers in order to use it to prevent his apprehension. With regard to that offence, a total term of imprisonment of 2 years and 6 months with a non-parole period of 12 months was imposed. That sentence formed part of a larger sentence structure. It is noteworthy that R v Murray is a sentence of the District Court at first instance, and is therefore not binding upon this Court, but merely forms part of a large range of first instance decisions.
Consideration of the three decisions to which the Court was invited does not lead me to the view that the sentence under consideration is manifestly excessive.
As noted above, in the District Court, counsel for the applicant submitted that a suspended sentence would be appropriate, and the solicitor for the respondent did not submit that such a sentence would be an error. It may well be that such a sentence was reasonably open to the discretion of his Honour, and that such a sentence would not have attracted a Crown appeal. However, that is not the test that this Court is called upon to apply. It is incumbent upon the applicant to demonstrate that the sentence actually imposed by his Honour itself bespeaks error in the exercise of his Honour's discretion. That is a high hurdle for the applicant to clear.
I accept the powerful subjective circumstances, not the least of which was the stress and upset caused by the rising waters. I also accept that it is regrettable that a leading member of the community within a small country town has suffered the degradation of imprisonment.
However, I consider that the offence committed by the applicant was a serious one. The gravity of a police officer being overawed by threats of violence emanating from a group of people, with the result that a person is released who has been lawfully detained, is apparent. The situation was heightened by the geographical and physical isolation of the police officer. Although it could be said that threats of violence did not emanate directly from the mouth of the applicant, but rather from those with whom he was acting in company, I have no doubt that the behaviour and language of the applicant was designed to intimidate, and it achieved its goal.
In the circumstances, I do not consider that the decision to impose a sentence of fulltime imprisonment was inherently erroneous. I am of the same view with regard to the length of the total term and the non-parole period. It follows that I would reject Ground One.
Orders
I propose the following orders:
(1) Leave to appeal granted.
(2) Appeal dismissed.
**********
Decision last updated: 04 July 2012
0
2
1