R v LOACH [1999] NSWCCA 128

New South Wales Court of Criminal Appeal CITATION : R v LOACH [1999] NSWCCA 128 FILE NUMBER(S) : CCA 60496 of 1998 HEARING DATE(S) : Thursday 20 May 1999 JUDGMENT DATE : 28 May 1999

PARTIES : REGINA v. LOACH, Mark Spencer JUDGMENT OF : James J at 1; Barr J at 2; Carruthers AJ at 31

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0388 LOWER COURT JUDICIAL OFFICER : Nader, DCJ.

COUNSEL : Crown: R.D. Ellis Appellant: R. Burgess SOLICITORS : Crown: C.K. Smith Appellant: T.A. Murphy CATCHWORDS : Criminal law - sentencing - assaulting and resisting police officers in the execution of their duty - whether irrelevant evidence taken into account.; Criminal law - sentencing - assaulting and resisting police officers in the execution of their duty - whether sentences imposed excessive. DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60496/98

JAMES J BARR J CARRUTHERS AJ

FRIDAY 28 MAY 1999 REGINA v Mark Spencer LOACH

JUDGMENT

1 JAMES J: I agree with the judgment of Barr J.

IN THE COURT OF CRIMINAL APPEAL 60496/98

BM JAMES J BARR J CARRUTHERS AJ

FRIDAY 28 MAY 1999 REGINA v Mark Spencer LOACH JUDGMENT

2 BARR J: The applicant seeks leave to appeal against sentences imposed upon him by Acting Judge Nader of Queen's Counsel in the District Court. He originally appealed against his convictions as well, but abandoned that part of his appeal. 3 The applicant pleaded guilty of three offences and asked the sentencing judge to take a fourth matter into account under the provisions of the Criminal Procedure Act. For the offence of escaping from lawful custody he was sentenced to a fixed term of 12 months' imprisonment, commencing on 21 August 1998 and expiring on 20 August 1999. For the offence of assaulting a police officer in the execution of his duty and the offence of resisting two police officers in the execution of their duty he was sentenced to concurrent terms each of two years' imprisonment commencing on 21 August 1999 and expiring on 20 August 2001, each comprising a minimum term of six months and an additional term of 18 months. The total effective sentence, taking into account the fourth offence, was therefore a three year term, comprising a minimum term of 18 months and an additional term of 18 months. 4 The facts are as follows. On 31 July 1997 police officers approached the applicant and his girlfriend in a shopping arcade in Scone believing that they might have heroin. Detective Ford told the applicant that he was going to be taken to a police car and searched. When they arrived at the car the applicant tried to get rid of a packet, which turned out to contain five small balloons of rock heroin, weighing 1.48 grams, and a struggle ensued which lasted for about four minutes. It was very violent. The applicant punched Detective Ford in the head and shoulders a number of times. He broke free and ran away. 5 On the following day, having received some information, four police officers went to a large shed on a property in the nearby township of Wingen. They saw the applicant in the shed. When he saw them he bent down towards a knife lying on the floor. Detective Ford and Constable Conway charged him and another struggle took place. Detective Morrall and Constable Craig ran to help the other two. After a struggle which appears to have been no less violent than the one that took place on the day before, the applicant was subdued, handcuffed and taken into custody. 6 Detective Ford suffered swelling and soreness of the right side of the face, of the shoulders and back. Constable Conway's right palm was lacerated and his glasses were broken. Senior Constable Craig sustained a small laceration on the right knuckle. The applicant was injured as well. 7 The accused was kept in custody bail refused from then until 20 August 1997 when he entered conditional bail. 8 The first ground of appeal asserts that his Honour erred in identifying the offence charged and taking into account irrelevant material. The struggle which took place on 31 July led to the charges of assaulting Constable Ford in the execution of his duty and escaping from the lawful custody of Constable Ford. The charge resulting from the events of the following day was of resisting Constable Ford and Constable Craig in the execution of their duty. 9 Having recited the facts of the events of both days, his Honour dealt with injuries received by the appellant and then said this - As a result of the assault by the prisoner on police, Detective Ford received swelling and soreness to the right side of his face, shoulders and back area, Constable Conway received a laceration to his right palm. During the struggle Constable Conway's optical glasses were also smashed, Senior Constable Craig received a small laceration to the right knuckle … 10 His Honour went on to note that photographs of the injuries had been put into evidence. 11 The first submission was that his Honour erred in taking into account injuries received by Constable Conway because he was not one of the officers the applicant had pleaded guilty to resisting. Then it was submitted that the manner in which his Honour accumulated the sentence for the assault of Constable Ford on 31 July on the sentence imposed for escaping from lawful custody and made it concurrent with the sentence for resisting arrest on 1 August showed that his Honour had treated the facts relevant to the resistance of Detective Ford on 1 August as constituting an assault, with which he was not charged. Then it was submitted that it was inappropriate to accumulate the sentence for the assault on 31 July upon the sentence for the escape. 12 His Honour's judgment was given ex tempore and during the course of it he read verbatim from a statement of facts agreed by the parties to be accurate and from portions of the statement of a police officer about which there was no dispute. The passage I have extracted was his Honour's only mention of injuries received. There was no attempt to attribute injuries received by the applicant or Detective Ford to either of the two incidents. 13 The injuries were not an element of either of the assault and resist charges, of course, and it is not submitted that his Honour erred by taking them into account as an aggravating feature. The description of the two incidents read by his Honour shows how violent they were. His Honour was obliged to assess the degree of violence, and was entitled for that purpose to look at the injuries received. That is presumably why his Honour mentioned injuries received by the applicant and Constable Conway as well as by the two officers named in the indictment. 14 That was the relevance of Constable Conway's injuries. 15 I do not think that his Honour took into account irrelevant material or sentenced the applicant for resisting Constable Conway, an offence with which he was not charged. 16 In my opinion his Honour did not apply any wrong principle in the manner in which he structured accumulated and concurrent sentences. The duty of a sentencing judge where there is more than one offence is to assess the total criminality and to structure a total effective sentence which accords with it. That is what his Honour did. In his remarks on sentence his Honour said this - So that his overall sentence, and that is what I have sought to achieve, an overall sentence representing the total criminality will be a sentence of a minimum term, an effective minimum term of 18 months and an effective additional term of 18 months. 17 The first ground of appeal should fail. 18 Then it was submitted that his Honour erred in failing to consider sentencing alternatives to full-time imprisonment. Criticism was made of a statement by his Honour to this effect - However, (defence counsel) has asked me in this case to deal with him in an non-custodial way, but I am afraid that is out of the question, the matters are far too serious. 19 It is submitted that his Honour made no mention of the alternatives to full-time imprisonment which had been set out in the pre-sentence report which was before his Honour and that his Honour did not appear to have given any of those options any proper consideration. 20 The first of those submissions has no substance. His Honour could scarcely have forgotten the pre-sentence report which he had read a few minutes before delivering judgment. To say that a non-custodial sentence is out of the question does not suggest to me that the speaker has failed to consider alternatives, but rather that they have been considered and adjudged inappropriate. 21 The second submission really falls to be considered with the principal submission made in the application, namely that the total effective sentence was so great that it fell outside the discretionary range reasonably open to his Honour. 22 Counsel for the applicant summarised for the Court statistics of sentences imposed in the Local Court for assaulting or resisting police officers in the course of their duty. It was submitted that it was appropriate to consider them because the applicant appeared to have been dealt with in the District Court only because he was first committed to that Court for a more serious offence, concerning the knife which I have mentioned, and which was later withdrawn. It was put that the other offences could have been dealt with by a magistrate. 23 The Crown conceded that if the present three offences had been the only ones charged against the applicant in the Local Court and if he had pleaded guilty, there was a reasonable possibility that all matters would have been dealt with in the Local Court. It is not a matter about which there can be any certainty, since the consent of the prosecutor would have been necessary, and these were serious offences. 24 Local Court magistrates have a lower sentencing jurisdiction than judges of higher courts. For example, the maximum penalty for each of the assault and resist charges would have been two years, and a magistrate would have been unable to impose a total sentence for all charges exceeding three years. That does not mean that this Court should regard three years as a maximum sentence. However, it is a matter which the Court may take into account. 25 The sentencing statistics for higher courts are helpful, I think, because they incorporate a substantial number of cases. Between 1990 and 1998 155 sentences were imposed for assaulting police officers or resisting them and 50 resulted in gaol terms. Half were for fixed terms of six months. The other half ranged up to four years. The statistics are for single counts, however, and it has to be remembered that his Honour was sentencing the applicant for two such offences. 26 Higher court statistics for escaping from lawful custody show that 26 out of 30 offenders were given gaol terms. 16 of them were six month fixed terms. The maximum was two years. 27 It seems to me that his Honour was really sentencing the applicant for three criminal acts or episodes of criminality. The first was his responsibility for the struggle that took place when Detective Ford tried to search and restrain him on 31 July. I regard the assault and the escape as incidents of the one episode. The second was the struggle which took place when he was arrested in the shed on the following day. The third was the possession of the heroin, which was criminally unrelated to the other two. 28 As his Honour pointed out, it is a matter of considerable seriousness to assault police in the execution of their duty and to resist them, especially in the violent way in which it was done in this case. As his Honour remarked, that happened twice, and the second occasion took place after the applicant had had time to cool down. In my opinion his Honour was correct in regarding those two events in combination as being very serious. 29 As well, his Honour was obliged to have in mind that the applicant had escaped from lawful custody and to take account of the offence of possessing the heroin, though it was not serious. 30 In view of these matters, the sentencing statistics do not demonstrate that the total sentence imposed by his Honour was outside the range of his proper sentencing discretion. The matter becomes one of impression. His Honour is a highly experienced sentencing judge. Although the sentence was substantial, I do not think that it was outside the limits of his Honour's discretion and I would not interfere with it. I would grant leave to appeal but would dismiss the appeal.