Local Court of New South Wales CITATION: Police v Hanshaw [2006] NSWLC 53 JURISDICTION: Criminal PARTIES: Police Stephen Ross Hanshaw FILE NUMBER: PLACE OF HEARING: Inverell Local Court DATE OF DECISION: 05/26/2006 MAGISTRATE: Magistrate G Lerve CATCHWORDS: Sentence - Intimidate Police - Guideline Judgment - suspended sentence - nature of suspended sentence LEGISLATION CITED: Crimes Act 1900 Attorney General's Application under s. 37 Crimes (Sentencing Procedure) Act 1999 (Guidline Judgment on Assault Police (2002) 137 A Crim R 196. Dinsdale v The Queen 74 ALJR 1538 R v Doan (2000) 50 NSWLR 115 CASES CITED: R v Schofield (2002) 138 A Crim R 19 R v Taouk (1992) 65 A Crim R 387 R v Tolley [2004] NSWCCA 165 R v Zamagias [2002] NSWCCA 17 REPRESENTATION: Sgt. Quinn, Police Prosecutor Mr. S. Collins, Solicitor, for and with the accused ORDERS: REMARKS ON SENTENCE 1. By way of Court Attendance Notice, the offender Stephen Ross Hanshaw is charged for that he: "On 10 September 2005 at Inverell in the State of New South Wales did attempt to intimidate Constable Monckton, a police office while the said officer was executing his duty". 2. The matter was first before the Court on 27 October 2005 on which date the usual brief service orders were made. The matter was again before the Court on 1 December 2005 on which date a plea of not guilty was confirmed. It is not completely clear from the handwritten record (and this is all I have available) but it seems that the offender entered a plea of guilty to that charge on 13 January 2006. The matter was then adjourned for sentence and a full Pre Sentence Report was requested. The matter came initially before me on 18 May 2006 on which date another unrelated matter was also before the Court. Because of illness by the offender both matters were adjourned to 19 May 2006. The other unrelated matter was a charge of larceny (shop lifting) of which the offender was convicted after a defended hearing. He was placed on a supervised Bond pursuant to s. 9 of the Crimes (Sentencing Procedure) Act 1999 in respect of that matter. 3. I note that the sentence proceedings in respect of the charge of Intimidate Police did not come before me until well after 4pm on a Friday after two thoroughly frustrating days (parties not being ready, representatives being late, matters having to stand so that instructions could be obtained, and parties having the opportunity to look at material which had not been inspected prior to the day) of defended hearings at Inverell. That was but one reason why I considered it appropriate to adjourn these sentence proceedings in order that proper consideration could be given to the matter, including proper consideration of the prosecutor's forceful submission that no other sentence other than full time custody would be appropriate. Facts 4. The matter proceeded by way of tender of a Police Facts Sheet. That Fact Sheet had been previously tendered. Mr. Collins who appeared for the offender took no issue with the material contained therein. 5. At about 1.50pm police were called to 48 and 50 Short Street, Inverell in respect of a neighbourhood dispute between Gregory Hicks and Mrs. Betty Punton. It seems that the offender and some members of his family became involved in this dispute in the aid of Mrs. Punton. Later, while speaking to Mr. Hicks police heard the offender calling out words to the effect of, "I'll give them black cunts". The offender was walking towards Mr. Hicks' property. 6. The Fact Sheet then records the following: "Hanshaw was waving his arms around and trying to entice Hicks into a fight. Police walked out of the yard of 48 Short Street and walked towards Hanshaw. Police called out to Hanshaw to come over to them, as they had some paper work for him. Hanshaw yelled out, 'fuck you pig, fuck your paper work if you want to give me the paper work come up here'. Police then walked back to the policed vehicle and moved the vehicle up to 54 Short Street to serve a complaint and summons on Stephen Hanshaw and Rebecca Hanshaw. When police stopped the police vehicle and got out Stephen Hanshaw came from inside the house and raced up in a rage towards police. Hanshaw yelled at police saying things like, 'fuck off you pig, don't come into my yard or I'll put my dogs on to you'. Constable Monckton said, 'I don't intend coming into your yard. I only want to serve this paper work on you. I have a complaint summons for you'. Hanshaw yelled out, "fuck off pig, fuck your complaint summons.' Constable Monckton took a step closer to the fence, Hanshaw said, 'come on, come into the fuckin' yard and I'll have you, come on you pig cunt come down the back to the shed I'll have you'. Hanshaw was waving his hands around and pointing at Constable Monckton. Const. Jubb walked over the Hanshaw and asked him to calm down. Hanshaw said to Constable Jubb, 'Miss, I'll talk to you but not that pig cunt there, tell him to get back in the car'. Whilst this was happening Rebecca Hanshaw came out of the house. Constable Monckton tried to serve the complaint summons on her, Stephen Hanshaw came back over to where Rebecca Hanshaw was standing. Stephen Hanshaw said, 'don't take that off that pig, fuck off pig or I will have you, come on down the back shed. I'll have you when you are off duty. I should come out there and knock your fucking head off'. Constable Monckton said, 'come on out here and I will serve the paper work on you'. Hanshaw then came out the front and started bouncing around and shaping up to Constable Monckton and yelling things like, 'come on you pig cunt' and trying to entice Constable Monckton into a fight. Hanshaw got up in the face of Constable Monckton and made as swinging action towards Constable Monckton as if he were going to hit him, then moved back. Constable Monckton did not flinch, Hanshaw was still moving around and yelling, 'come on you pig cunt'. Hanshaw then started to move back towards Constable Monckton shaping up and bouncing around. Constable Monckton then produced his oleoresin capsicum spray, at which time several people male and female came out of the house. One of the males yelled out, 'look out he's got his spray out'. Hanshaw bowed his head and said, 'come on you weak cunt spray me, I don't give a fuck, come on'. The other males that came out of the house started to yell abuse at Constable Monckton. Constable Monckton did not use his spray due to the fear of the other person (sic) present overpowering police at the scene. Constable Jubb encourage(d) Hanshaw to come away from Constable Monckton and speak with her. Constable Jubb explained the complaint summons to Hanshaw whilst he was still abusing Constable Monckton. Hanshaw then took the paper work and crumpled it up in his hand and yelled, 'this is what I think of your fucking paper work you pig cunts'. Hanshaw then put the complaint summons down the back of his pants and wiped it up and down as if he were wiping his bottom. Hanshaw then pulled it out and threw it on the ground. Police called for back up via the radio. A short time later S/C Kelly arrived. Hanshaw continued to yell abuse at Constable Monckton, making threats that he was going to get Constable Monckton when he was off duty and continued to yell out, 'fuck off you pig cunt, I'll fuckin' knock your head off, come back when you finish work and I'll have you in the back shed.' S/C Kelly warned Hanshaw if he continued to make threats he would be arrested. Police believe that the actions and the manner in which the accused Stephen Hanshaw conducted himself towards police and being in the residential area of Short Street, Inverell, in plain view of the public constitutes the offences of Attempt Intimidation of Police and Offensive Behaviour". Assessment of the Criminality 7. It is to be observed immediately that the offender pleaded guilty and is to be sentenced in respect of a charge of Attempt Intimidate police. The prosecutor submitted at the sentence hearing that the offender could have been charged with Assault Police. When I inquired as to why he was not charged with that offence the prosecutor submitted that the charge before the Court was more serious. Assault and Intimidation of Police are alternatives within section 60(1) of the Crimes Act 1900, and accordingly, carry the same maximum penalty both on Indictment and in this jurisdiction. It is significant in this matter that the offender was charged (and is to be sentenced on) with the charge of Attempt Intimidate Police. Given that Constable Monckton (in my view appropriately) felt it necessary to produce the capsicum spray, and the general circumstances, it seems to me that the substantive charge of Intimidate Police would have been made out. 8. In R –v- Taouk (1992) 65 A Crim R 387 Badgery-Parker J (Clarke JA, Abadee J agreeing) said 390-1: "After a sentencing judge has established the facts of the offence, his prime task is to evaluate the objective seriousness of the offence. In making such an evaluation, where the charge is of an attempt to commit a substantive offence, it will be relevant for the judge to consider first, that the charge is of attempt only and, by hypothesis, the substantive offence was not completed; and it will be relevant to consider the chances of the attempt, if not interrupted, would have succeeded. If on the facts it appears that the attempt was unlikely to succeed or indeed, that although physically possible there was in reality no prospect that it would succeed, this is a matter which might be seen to reduce the objective seriousness of the crime. However it must also always be necessary for the sentencing judge to consider the seriousness of that which was attempted. In every case where a person is to be sentenced for an attempt to commit a substantive offence, such factors will need to be weighed if the evidence raises the question for consideration. It may be postulated that where the offence attempted is grave, a sophisticated attempt which came close to success is likely to attract a heavier sentence than a naïve and ill prepared attempt predestined to fail. On the other hand, a determined and all but effective attempt to commit a minor crime would attract perhaps a more severe sentence than a naïve and inefficient attempt to do the same thing, although the relative triviality of the offence would tend to narrow the margin between the two outcomes. It cannot necessarily be postulated, however, that a naïve and ill-prepared, even incompetent, attempt to commit a serious offence must necessarily attract a lesser sentence than would be incurred by a serious and all but effective attempt to commit an offence of less gravity. There is clearly an interrelationship between the seriousness of the intended consequences and the real prospects of having achieved them, and that relationship has to be weighed in each case in the light of all of the circumstances." 9. The decision in Taouk was followed by the Court of Criminal Appeal in R –v- Schofield (2003) 138 A Crim R 19. See the judgment of Hulme J at p. 33 (paragraph [61]) and the judgment of Carruthers AJ at p. 57 (paragraph [139]). 10. Whilst the matter presently under consideration is in my view not within the worst- case category of offending (for that particular offence) the conduct of the offender on 10 September 2005 is at about the half way mark on the scale of seriousness. There was no physical contact and there was no use or threatened use of a weapon. The attempt was very likely to succeed. However, there is a degree of artificiality about dealing with this matter as an attempt given what I have already observed. Discount for plea of guilty 11. The offender is not entitled to full 25% discount for an early plea of guilty. The matter remained defended for some time. It is appropriate, however, that an offender is able to assess the extent of the case against him. In the matter presently under consideration, the matter was never set down for hearing, nor were the witnesses ever assembled. Accordingly, there is still significant utilitarian value in the plea of guilty, which I would assess as being at least 15%. 12. In R –v- Thompson and Houlten (2000) 49 NSWLR 383 (Guideline Judgment on Pleas of Guilty) Spigelman CJ (Wood CJ at CL, Foster A-JA, Grove and James JJ agreeing) said at par [160] that: "(iv) In some cases the plea, in combination with other relevant factors will change the nature of the sentence imposed. In some cases a plea will not lead to any discount". Nature of the Offence 13. The prosecutor in his submissions relied upon the "Guideline Judgment" on Assault Police: Re Attorney-General's Application under s. 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No. 2 of 2002) (2002) 137 A Crim R 196; [2002] NSWCCA 515. That judgment related specifically to the charge of Assault Police, but I can perceive no reason why the principles would not be equally applicable to a charge of Intimidate or Attempt Intimidate Police. 14. Spigelman CJ (Wood CJ at CL, Grove Sully and James JJ agreeing) said at p. 203 (par [22]): "Offences involving assault of police officers in the execution of their duty are serious offences requiring a significant element of deterrence in the sentences to be imposed. The community is dependent to a substantial extent upon the courage of police officers for the protection of lives, personal security and property. The courts must support the police in the proper execution of their duties and must be seen to be supporting the police, and their authority in maintaining law and order, by the imposition of appropriate sentences in cases where assaults are committed against police". 15. The Chief Justice went on to say at pars [25] – [27] inclusive that: "As Gleeson CJ put it in R –v- Hamilton ((1993) 66 A Crim R 575) at 581: 'It is incumbent upon the court, in dealing with offences of this nature, to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task. The risks that were run by police officers who were involved in the present case were substantial'. 16. As the facts of the cases summaries for the court in the course of the present application indicate, significant risks are run by police officers throughout the State in the normal execution of their duties. The authority of the police, in the performance of their duties, must be supported by the courts. In cases involving assaults against police there is a need to give full weight to the objective of general deterrence and, accordingly, sentences at the high end of the scale, pertinent in the light of all the circumstances, are generally appropriate in such cases. 17. These principles apply irrespective of whether the offender is to be sentenced in the Local or District Courts. The jurisdictional maximum of two years imprisonment in the Local Court should not affect the actual level of sentence imposed. Magistrates must not regard the jurisdictional limit as some form of maximum sentence reserved for the worst case: see R –v- Doan (2000) 50 NSWLR 115; 115 A Crim R 497. 18. In dealing with the appropriateness of the proposed guideline the Chief Justice said at p. 205 (par [38]): "The first difficulty with the identification of a guideline in the form sought by the Attorney-General arises form the nature of the offence. Section 60(1) covers any form of common assault not leading to actual or grievous bodily harm. This encompasses a wide range of offending behaviour. An assault can be constituted merely by tapping on the shoulder or poking in the chest. On the other hand it may be constituted by pointing a gun to the head of a police officer and cocking it. There can be little doubt that in the latter case a custodial sentence would be required. In the former cases that will often not be the case. There is a wide range of behaviour capable of constituting an assault which does not involve the high public purpose of the courts supporting the authority of police". Criminal History of the offender 19. His record does not assist the offender. His record reeks of someone who has suffered a significant problem with drugs and or alcohol – particularly drugs – for some time. There are a number of matters of dishonesty; the last conviction for a matter of dishonesty was in 2000. There are also recorded against him a number of matters of violence. Of particular relevance are two separate convictions in 2003 for Intimidate Police and Stalk/Intimidate with the Intention of Causing fear of Physical or Mental Harm. In respect of the charge of Intimidate Police he was sentenced to perform 175 hours of community service. In respect of the charge of Stalk/Intimidate he was sentenced to 12 months imprisonment, which was wholly suspended under the provisions of s. 12 of the Crimes (Sentencing Procedure) Act 1999. The offender was also sentenced to a fixed term of imprisonment for 1 month on 6 June 2003 following a conviction for Resist Police. 20. The offender has an extensive record, which is recorded on 11 pages of Bail Report. The parties are assured that I have thoroughly read and considered the entries on that Bail Report. Subjective Features 21. The offender is married to Rebecca Hanshaw and they have four children, all living at home, and one of whom is said to be at high risk of offending. The offender has had a number of semi-skilled and labouring positions over the years, but for several years has been unemployed. 22. It is significant that according to the helpful and comprehensive Pre Sentence Report that the offender recognises the seriousness of his offending. He accepts that he "should have handled things better". He has been out of trouble generally since the middle of 2003, which although in reality is a relatively short time, it is better than what he has achieved in the past. In this regard I note also that the Pre Sentence Report indicates that the offender has made "some significant lifestyle changes". 23. Mrs. Betty Punton referred to within the facts is apparently an elderly widowed lady living some few doors from the offender. The offender and his wife apparently keep a watch on Mrs. Punton. I note there is a reference from Mrs. Punton on the Court papers supporting the offender. I take that into account. 24. However, the primary subjective feature of the offender is the state of his physical health. There is written material on the papers from the Hunter/New England Region of NSW Health and Dr. Thanh Huynh of the Aboriginal Health Service. Earlier this year the offender underwent surgery for the removal of a substantial quantity of what was described in layman's terms as "ingrown hairs on the back, a clump about the size of a tennis ball". He is receiving treatment for a deep post surgical wound, which is taking months to heal. In medical terms the wound was for the removal of pilonidal sinus. 25. The Probation and Parole Service maintains in the PSR that the offender is suitable for a medium level of supervision by the service. Further, the individualised case plan would include strategies to address impulse control and conflict resolution. It is trite that the offender should have had counselling to address these issues some considerable time ago. Submission by Prosecutor 26. The prosecutor, relying on the Guideline Judgement maintained that for the protection of police and the protection of the community the court should impose a sentence of full time custody. Further, as I understood the submission, even the suspension of a sentence would not provide adequate protection for the police and the community, particularly given that the offender was extended the leniency of a suspended sentence and community service for similar offences in 2003. Towards the end of his submissions the prosecutor submitted that the community and police need protection for longer than two years. He then explained (as I understood the submission) that with the imposition of a full time custodial sentence the offender and those like-minded in the community would be given the message that such conduct towards police will not be tolerated. Submission on behalf of the Offender 27. Mr. Collins relied on heavily on the two pre-sentence reports, the latest of which indicates that the offender is suitable for community service. Having had the opportunity to observe the offender over two days, I must express some reservations in this regard. Indeed, I commented to Mr. Collins that if community service was imposed it could well be setting the offender up to fail. The medical issues were emphasised. In the course of submissions Mr. Collins tendered an extract of the medications, which had been prescribed for the offender. That list clearly indicates significant ongoing medical health issues. Finally, Mr. Collins submitted that if the court did not impose community service, then the court should consider suspending any sentence of imprisonment. Nature of a suspended sentence 28. Before a court imposes a suspended sentence it is necessary for the Court to come to the conclusion that a sentence of imprisonment, and no other sentence is warranted in all the circumstances. 29. In Dinsdale –v- The Queen (2000) 74 ALJR 1538 Kirby J. (p. 1552 (paragraph [79]): "The starting point…is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first taken, the second does not arise." 30. Kirby J. reviewed the competing considerations in his judgment in Dinsdale at paragraphs [81] to [83] inclusive. Although the High Court was dealing with the relevant legislation in Western Australia, there does not seem to be any suggestion that the general principles enunciated in Dinsdale are not equally applicable in other Australian jurisdictions. Rehabilitation is an important factor, but clearly it is not the only or even most important factor to consider. His Honour said at 1553 (paragraph [81]): "There is a line of authority in Australian Courts that suggests that the primary consideration will be the effect such an order will have on rehabilitation of the offender, which will achieve the protection of the community which the sentence of imprisonment itself is designed to attain. But most such statements are qualified by judicial recognition that other factors may be taken into account. The point is therefore largely one of emphasis." 31. At 1553 (paragraph [82]) his Honour continued: "On the one hand some judges…consider the primary purpose of a suspended sentence is an 'aid to rehabilitation'. This view allows that mercy, in the circumstances of the particular case, might play a part along with other factors. But the closest attention is to be given to how the exercise of the discretion to suspend the term of imprisonment would contribute to the rehabilitation of the offender". 32. His Honour continued at 1553 (paragraph [83]): "On the other hand, other judges have regarded it is impermissible effectively to confine consideration of whether to exercise the discretion to the question of rehabilitation of the offender. According to this second view, there is no warrant for holding that the decision on suspension should depend 'only or largely on the prospects of rehabilitation, or contrition, or any other factor'. Such considerations are accepted as relevant. But they are not determinative. They do not excuse those with the responsibility of sentencing of the obligation to consider all of the circumstances". 33. The conclusion reached by his Honour at 1553 (paragraph 84]) was: "In my view, to limit the exercise of the discretion to suspend a entence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender would constitute error". 34. There could be no reasonable argument suggesting that a suspended sentence is not as severe as one that is not suspended. Howie J. in R –v- Tolley [2004] NSWCCA 165 said at [22]: "A suspended sentence has often been described as a 'sword of Damocles' having by a thread over the head of an offender while the period of the period of the bond is current. However in R –v- Brady (1998) ABCA 7 (Alberta Court of Appeal) Fraser CJ and Cote J said at [46]: 'This metaphor exaggerates the severity of a conditional sentence. Even if a conditional sentence could be equate to a sword, it does not hang by a thread, but by a rope, and the only way that this rope can break is if the offender himself cuts it. And with each passing day of the sentence, the 'sword' shrinks until if finally becomes a butter knife'." 35. In R –v- Zamagias [2002] NSWCCA 17 Howie J. said (paragraph [32]): "Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is to protect the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate." General Remarks 36. I am firmly of the view that in the matter presently under consideration that a sentence of imprisonment is the only appropriate sentence to impose. The question then arises as to whether that sentence is suspended, noting together with the various subjective matters, that Home Detention is not available in Inverell, and that the offender is precluded from Periodic Detention because of remoteness from the nearest facility. I observe that these are generally the prevailing circumstances for anyone living outside Sydney or a very major provincial centre. 37. The conduct of the offender on 10 September 2005 needs to be denunciated. It is principally for that reason that I have come to conclusion that a custodial sentence should be imposed. However, there is a strong subjective case with the offender, particularly because of his medical issues. As another consideration, it seems to me that ultimately the community will benefit if this offender now receives appropriate counselling and treatment in respect of impulse control and conflict resolution. With the orders that I propose, the offender will have a very good reason to ensure that his behaviour on 10 September 2005 will not be repeated. 38. My formal orders are: In respect of the charge of Attempt to Intimidate Police, the offender is convicted. Consequent upon that conviction the offender is sentenced to a non-parole period of 12 months. He is sentenced to a balance of term of 8 months, making a total sentence of 20 months. That sentence is wholly suspended upon the offender entering a bond pursuant to s. 12 of the Crimes (Sentencing Procedure) Act 1999 for 20 months, conditioned that: He be of good behaviour; He notify the Registrar of this Court of any change of residential address; and For the period of the Bond he is to be subject to the supervision and guidance of the Probation and Parole Service, and to obey all reasonable directions of that Service, in particular those directions of that service relating to ongoing counselling and treatment for impulse control and conflict resolution. 39. It follows that I have found Special Circumstances, principally because of the need for supervision and the medical issues to which I have alluded. The offender should be very well aware that any commission of any criminal act in the next 20 months will have the effect of lifting the suspension, and that, his medical condition in that event will not prevent him from being taken into full time custody. Gordon Lerve Magistrate – Inverell Local Court May 2006 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.