Regina v Peter BLANCH [1999] NSWCCA 389

New South Wales Court of Criminal Appeal CITATION : Regina v Peter BLANCH [1999] NSWCCA 389 FILE NUMBER(S) : CCA 60821/98 HEARING DATE(S) : 23 November 1999 JUDGMENT DATE : 23 November 1999

PARTIES : Regina Peter Blanch JUDGMENT OF : Sully J at 1; Hulme J at 35; Sperling J at 39

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70051/96 LOWER COURT JUDICIAL OFFICER : Smart J

COUNSEL : T.L. Buddin SC - Crown In person - Applicant SOLICITORS : S.E. O'Connor - Crown In person - Applicant CATCHWORDS : DECISION : Grant an extension to and including this day, of the time for applying for leave to appeal against sentence; grant leave to appeal against sentence; appeal against sentence dismissed

IN THE COURT OF CRIMINAL APPEAL

60821/98

SULLY J HULME J SPERLING J

23 November 1999

REGINA v Peter BLANCH

JUDGMENT

1 SULLY J: On 20 April 1998 the present applicant, Mr Peter Lawrence Blanch, was presented in the Supreme Court and before Smart J of the Court charged with a number of serious offences. 2 An indictment was presented against Mr Blanch containing five counts. The first count charged him with the offence of wounding with intent to murder, a contravention of s.27 of the Crimes Act attracting upon conviction a maximum penalty of penal servitude for twenty-five years. Count 2 was laid in the alternative and charged Mr Blanch with malicious wounding with intent to do grievous bodily harm, a contravention of s.33 of the Crimes Act and attracting upon conviction a maximum penalty of penal servitude for twenty-five years. 3 Mr Blanch pleaded not guilty to count 1 but guilty to count 2 and the Crown accepted the plea of guilty to count 2 as satisfying both counts 1 and 2 in the indictment. 4 Count 3 charged Mr Blanch with robbery in company, a contravention of s.97 of the Crimes Act and attracting upon conviction a statutory maximum penalty of penal servitude for twenty years. In due course the Crown did not press this particular charge against Mr Blanch. 5 Count 4 charged Mr Blanch with having escaped from lawful custody, a contravention of s.34 of the Prisons Act 1952 and attracting upon conviction a statutory maximum penalty of penal servitude for ten years. To that count Mr Blanch pleaded guilty. 6 The fifth and final count in the indictment charged Mr Blanch with the theft of a motor vehicle, a contravention of s.154A of the Crimes Act and attracting upon conviction a statutory maximum penalty of penal servitude for five years. To that count also Mr Blanch pleaded guilty. 7 In due course and on 25 September 1998 Mr Blanch stood for sentence before Smart J. He so stood in company with two other offenders, one Simon Taylor and one Lance Matthews. His Honour dealt with all three offenders in the one set of remarks on sentence. 8 The comparative way in which the offenders were dealt with can be summarised as follows. Mr Blanch, the present applicant, was sentenced to a fixed term of penal servitude of four years in respect of the offence of malicious wounding with intent. In connection with the offence of escaping from lawful custody Mr Blanch was sentenced to imprisonment for five years to comprise a minimum term of two years and an additional term of three years. That sentence was made cumulative upon the sentence imposed in respect of the malicious wounding with intent. 9 Upon the charge of stealing a motor vehicle Mr Blanch was sentenced to penal servitude for a period of one year imposed as a fixed and concurrent term; the result therefore being that sentences totalling minimum or fixed terms of six years, with an accompanying additional term of three years, were imposed upon Mr Blanch. 10 Mr Taylor was dealt with somewhat more severely. In respect of the count of malicious wounding with intent with which he too had been charged in circumstances to which I shall come presently, he was sentenced to a fixed term of penal servitude of five years. Unlike Mr Blanch, Mr Taylor was dealt with for the offence of robbery in company; and in respect of that offence he was sentenced to penal servitude for a fixed and concurrent term of two years. 11 In respect of the escape from lawful custody he was sentenced to penal servitude for four and three quarter years divided between a minimum term of one and three-quarter years and an additional term of three years, that sentence being cumulative upon the other sentences passed upon him. In respect of the offence of stealing a motor vehicle Mr Taylor too was sentenced to penal servitude for a fixed term of a year imposed concurrently with the other sentences to which I have referred. 12 Mr Taylor finished therefore with fixed or minimum terms of six and three-quarter years, with an accompanying additional term of three years. 13 Mr Matthews, the third of the three co-offenders, received in respect of the malicious wounding with intent a fixed term of penal servitude of three years. He too was dealt with in respect of the offence of robbery in company for which a sentence of penal servitude for two years as a fixed and concurrent term was passed upon him. 14 In respect of escape from lawful custody Mr Matthews was sentenced to penal servitude for three years divided between a minimum term of one year and an additional term of two years. That sentence was made cumulative upon the other sentences passed upon him. 15 In respect of the offence of stealing a motor vehicle he was sentenced to a fixed term of penal servitude for one year. Mr Matthews finished, therefore, subject to fixed or minimum terms of four years, with an accompanying additional term of two years. 16 It is now necessary to say something more particular about the relevant facts. On 26 October 1995 the three offenders of whom I have been speaking, that is Blanch, Taylor and Matthews, all of whom were then prisoners in the same correctional institution, escaped from that lawful custody. What they actually did, as found by the learned sentencing Judge, appears sufficiently for present purposes in the following passages which I extract from his Honour's remarks on sentence (p.214): "Prior to 26 October 1995 the three men, who shared a cell, had decided to escape and had made plans accordingly. Blanch made three keys which would open the lock which secured their cell. On 26 October 1995 Blanch broke the latch system on the storeroom but this was not apparent. About 6pm Taylor and Blanch were locked away in their cell, cell 13. They had a 'B' classification. Mr Matthews had a 'C' classification which gave him much greater freedom in the gaol. He was not usually locked up until 9pm. The three men were aware that, after the C prisoners were locked away at 9pm, the officers did not come around and check the cells by opening the doors or the observation panel. About 8pm Matthews opened up the door of cell 13 with the key Blanch had given him. Blanch left cell 13 and hid in the storeroom. Matthews then arranged for a prison officer to lock him inside cell 13. The beds in the cell were made up to look as though they were occupied. Shortly afterwards Blanch came out of the storeroom and using another key let Matthews and Taylor out of cell 13. The three men waited in the storeroom until about 9.20pm. They went into the back compound area. Matthews had obtained some wire cutters. Blanch cut the razor wire and pinned it back with a hook. It is unnecessary to relate how the men gained access to the top of the wall from inside the gaol. A 'rope' made out of a series of sheets tied together by Blanch and Taylor was put into position. The men used that to lower themselves down the outside of the gaol. Blanch went straight to the Lodge Motel having changed his clothes in gaol. Taylor and Matthews, having first gone to the motel, went to another address in a different part of Broken Hill and obtained some non-prison clothes. They then returned to room 16, Lodge Motel. Some liquor was obtained and some drinks were had. Unsuccessful efforts were made to have the motel night officer open up and to gain access to another motel room occupied by two older people. It seems that while Mr Curran had shut the door to his room he had not locked it and that this permitted the three men to gain easy access to his room." 17 Mr Curran to whom reference is made in the passages which I have quoted was a State public servant who was spending the night at the Lodge Motel during the course of a journey related to his professional duties, when the three escapees broke into his unlocked room. There at various times and in various ways the three escapees subjected Mr Curran to what must have been for him a terrifying experience. 18 If one takes that view of the facts for which the applicant himself contends, he at the very least slapped Mr Curran around. One of his co-offenders - the man Taylor - actually stabbed Mr Curran a number of times. 19 Whoever did precisely what to Mr Curran, it seems to me that it is a fair approach to what happened to understand that all three escapees were determined to wring out of Mr Curran his PIN number so that they could obtain moneys which they desperately needed in order to continue to make good their escape from lawful custody. 20 In order to do that, each one of the three was prepared to visit upon Mr Curran considerable and continuing violence. What they did to him need not be detailed in any extended way; but it is important to understand that the consequences of what they did to him could not be thought by any reasonable mind to have been inconsiderable. 21 In the end result, Mr Curran was admitted to hospital, and had to undergo surgery in order to correct the injuries that had been inflicted upon him, and at least to attempt to correct some of the serious consequences of those injuries. He suffered from, relevantly for present purposes, injuries to his eyes from which, as I understand the findings made by the learned sentencing Judge he, Mr Curran, continues to suffer. 22 Let there be no mistake about it: these assaults were not so much brutal as brutish; they were carried out over a period of time; they were appalling in their incidents; and dreadful in their consequences to the victim. 23 In terms of the objective facts, the criminality of all three offenders stands, in my view, at a significantly high level of criminal culpability. 24 The remarks on sentence of his Honour Smart J are, if I may respectfully so say, careful and detailed. His Honour makes particular findings of fact as to the relevant objective matters, and also as to the relevant subjective matters particular to the case of each of the three offenders. 25 I have read those remarks with care In my respectful opinion none of them is vulnerable to present attack. In my opinion, his Honour was entirely entitled to reach the findings of fact that he did make, and upon the basis of which he imposed the sentences of which I have earlier spoken. 26 Mr Blanch has not had the benefit, in connection with the present appeal, of representation. He has therefore been at the comparative disadvantage of having to put for himself the things that he wishes this Court in particular now to take into consideration. I think it is fair to say the substance of what Mr Blanch wishes now to have considered is set out in a handwritten document provided by him in connection with his present application and forming pages 4, 5 and 6 of the first volume of the appeal papers. There Mr Blanch sets out in clear and careful terms some thirteen points which he asks to receive present consideration, and present consideration favourable to his present application. 27 Some of those grounds can be paraphrased sufficiently for present purposes by saying that they question the findings of fact made by the learned primary Judge as to Mr Blanch's own particular involvement in the events that I have described, both as those events bear upon the escape from custody, and as they bear upon the assaults and associated offences committed upon, and in connection with, Mr Curran. 28 As I have said, I have considered the remarks of the learned sentencing Judge, and I have considered alongside them the points thus made by Mr Blanch in his document. I reaffirm what I said earlier: I do not think that it can be fairly argued that it was not open to the learned trial Judge to make the findings of fact that his Honour did make. 29 Several others of the grounds put by Mr Blanch can be dealt with together and upon the basis that they put forward matters personal to him and suggestive in this way and that of incidents of hardship to which the sentences passed upon him make him vulnerable. 30 I do not wish to sound improperly or inappropriately harsh in what I say, but it seems to me that the short answer to those submissions is that the hardship thus described by Mr Blanch in those portions of his written document needs to be considered in a level-headed kind of way, and by reference to the consequences to the victim. I say again: they were serious; and they were not insignificant as to their continuing consequences. 31 The written submissions put in by Mr Blanch raise what might be described as a conventional parity point. The essential thrust of that argument is that the man Taylor was the principal offender, and the person who did the most damage, if I may put the point that way, to Mr Curran; and that his, Taylor's, end result in terms of penalty is practically the same as that of Mr Blanch. This, it is said, manifests an appealable error in terms of parity. I do not agree. 32 The relevant law is quite simple. It is not that the person who is complaining on the grounds of parity has a grievance or a sense of grievance. The proposition is that for the argument to succeed, he must have a justifiable sense of grievance. 33 Given the enormity of the conduct here in question, I wholly fail to see that Mr Blanch has any reasonable ground for feeling aggrieved by the comparative way in which he was treated, and in which the men Taylor and Matthews were treated. 34 The present application for leave to appeal was brought out of time. I would favour an order granting such an extension of time as to permit of the present application's being dealt with on its merits. I would grant leave to appeal. In the circumstances as I have outlined them, I am wholly unpersuaded that any appealable error has been demonstrated; and I would dismiss the substantive appeal against sentence. They are the proposed orders. 35 HULME J: I agree with the orders proposed and with his Honour's reasons although I would add this. In my view Mr Blanch is extremely fortunate that he was not given a much heavier penalty than he was. The sentence imposed for malicious wounding was four years compared with a maximum of twenty-five. 36 This offence was at least the sixth in which Mr Blanch has been guilty of criminal conduct involving assaults or robbery and there is much to be said for the view that he should have been given a much higher proportion of the twenty-five years maximum prescribed than he was. 37 The penalty imposed for escaping from lawful custody of two years minimum and three years additional term is but half of the maximum prescribed by law for his offence. This was the third occasion on which he had escaped. At some stage the Court must consider in circumstances such as his imposing the maximum penalty of ten years additional to anything otherwise imposed. 38 As I say I regard Mr Blanch not only as having no justifiable sense of grievance but as having been extremely fortunate not to have suffered a substantially greater penalty than he did. 39 SPERLING J: I agree with the orders proposed by his Honour the presiding judge and with his reasons for those orders. 40 SULLY J: The orders of the Court are as follows: