New South Wales Court of Criminal Appeal CITATION : R v Paris [2001] NSWCCA 83 FILE NUMBER(S) : CCA 60819/2000 HEARING DATE(S) : 14 March 2001 JUDGMENT DATE : 14 March 2001 PARTIES : Crown - Appellant Robert John PARIS - Respondent JUDGMENT OF : Ipp AJA at 48; Wood CJ at CL at 49; Simpson J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/41/0196 LOWER COURT JUDICIAL Goldring DCJ OFFICER : COUNSEL : P G Berman - Crown P J D Hamil - Respondent SOLICITORS : S E O'Connor - Crown D J Humphreys - Respondent CATCHWORDS : Criminal law - Crown appeal against leniency of sentence - threatening to use offensive weapons with intent to prevent a member of the police force investigating an act or circumstance that reasonably called for police investigation. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 R v Hamilton 1993) 66 A Crim R 575 CASES CITED: R v Smith (1982) 7 A Crim R 253 R v Myers, unreported, CCA 13 February 1990 DECISION : The respondent sentenced to prison for two years, execution of the sentence suspended for the whole of that term and in accordance with the section, the respondent be released from custody on condition he enter into a good behaviour bond for the whole of the term of the sentence. IN THE COURT OF CRIMINAL APPEAL 60819/00 IPP AJA WOOD CJ at CL SIMPSON J Wednesday 14 March 2001 REGINA v Robert John PARIS Judgment SIMPSON J : 1 On 4 December 2000 the defendant pleaded guilty to a charge that, between 3 and 4 August 1999, he threatened to use offensive weapons with intent to prevent a member of the police force from investigating an act or circumstance that reasonably called for police investigation. He asked that two counts of assault be taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act".) 2 The charge on the indictment was laid under s 33B of the Crimes Act 1900, which imposes a maximum penalty of imprisonment for twelve years for the offence. Pursuant to s 10 of the Sentencing Procedure Act Goldring DCJ discharged the respondent on condition that he enter into a bond for a period of two years, further conditioned upon the respondent, during the currency of the bond, appearing before the court if called upon to do so at any time, being of good behaviour, and advising the clerk of the court of any change in his residential address. The Crown appeals against the asserted leniency of the sentence. 3 The offence arose out of serious matrimonial discord between the respondent and his wife, Mrs Anna Paris. The accused lived with his wife and two children in Narooma. There were conflicting accounts given by the respondent and his wife of what had preceded the events of 3 and 4 August, and particularly what had occurred in the 24 hours or so before 3 August, which was a Tuesday. In a statement tendered to the court Mrs Paris accused her husband of physically attacking her while they were in bed on the morning of Sunday 1 August; again on the morning of Monday 2 August and of threatening in the early hours of Tuesday 3 August to kill himself and the children. 4 In an interview on 4 August the respondent claimed that his wife had assaulted him and that he had responded in self-defence by kicking her out of bed. The sentencing Judge did not attempt to resolve these factual issues. It was not necessary for him to do so. 5 The respondent wrote a note which he attached to a cushion which, in turn, he hung on the door knob of the main bedroom. By this time he was the sole occupant of the bedroom. His wife was sleeping in the bedroom of one of the children. The note clearly suggested that the respondent had committed suicide. Early on Tuesday morning Mrs Paris read the note and drew the intended inference. She called out to the respondent but he did not answer. She telephoned her sister and two friends who arrived shortly after. One friend took the children away, the other telephoned police. They opened the bedroom door. The respondent was lying motionless on the bed, but his eyes were flickering. One of Mrs Paris's friends shook him but he did not respond. There was another note on the bed, also indicating that the respondent had committed or attempted to commit suicide. 6 Shortly after 8.20 am an ambulance officer arrived and entered the bedroom with an oxygen container. As he placed the container on the bed the respondent jumped up and shouted at him to leave. He rummaged under the mattress and produced a piece of wood about a foot long which he waved at the ambulance officer, ordering him out of the house. 7 Another ambulance officer arrived, followed by police. The respondent emerged from the house and stood at the verandah, with his hands behind his back. He then produced a knife which he pointed towards police, using threatening language. He re-entered the house. Police asked him to come to the door but he told them to leave him alone. He shouted at them, again intimating that he was going to kill himself. He continued to hold a large knife. Police treated the incident as a siege. They surrounded the house. They continued to attempt to communicate with the respondent. They cut off the electricity supply and a telephone line. However, as the respondent was a member of the local fire brigade and captain of it, an additional line linked with the fire station had been connected to his home. This was not disconnected. The respondent used the telephone line to maintain communication with police and with others. He made a number of telephone calls, some to local journalists and several to an inspector of police. He threatened to shoot police at his house. 8 The siege continued during the whole of the night. Police negotiators maintained contact with the respondent by repeatedly telephoning him and engaging him in conversation. He participated in these conversations but frequently abruptly terminated the calls. He continued to threaten to harm himself and also threatened to shoot or otherwise harm police. He claimed to be in possession of a double-barrelled shotgun (which later proved to be untrue) and of nine molotov cocktails (which proved to be only partly true: he had two bottles, one containing mineral turpentine and one containing methylated spirits, each fitted with a wick such as to transform the bottles of liquid into explosive devices). He threatened to ignite these. He also made a threat directed to the children of one of the negotiators. All conversations between the respondent and the negotiators were recorded and the transcripts were in evidence. They show, among other things, that the respondent repeatedly asked for the electricity supply to be restored. He was firmly told that this would not happen. 9 The respondent eventually emerged from the house at 9.32 am on Wednesday 4 August. He complied with police instructions to lie on the ground and was arrested. Police asked the respondent if there was any danger to any person entering the house but he declined to give any such information. On entering the premises, police found the two homemade bombs but no evidence of any firearms. 10 The respondent remained in custody until 25 August 1999 (that is, exactly three weeks) when conditional bail was granted. 11 Within two hours of his arrest the respondent was interviewed by police, and the interview was electronically recorded. He claimed to have no recollection of the events of Tuesday morning until the time when he made a cup of coffee, looked outside, and saw that the house was surrounded by police. He claimed to have no recollection of making any threats to or against any person. He said that the bottles of flammable fluid had been prepared with a view to burning off some garden refuse later in the day. 12 The respondent entered his plea of guilty on the morning of 4 December, which appears to have been the day fixed for trial. During the sentencing hearing the following subjective matters emerged. The respondent was born on 15 January 1960. He was, accordingly, 39 years of age at the time of the offence. He gave evidence in the sentencing proceedings of a troubled early life. He was the eldest of four children. Family life had been reasonably happy until, when the respondent was 8 or 9 years of age, his parents separated. His mother took up employment and the respondent became responsible for looking after the younger children. 13 A year or two later the respondent's mother formed a relationship with another man who the respondent described as a "moronic maniac", who used violence as his principal means of disciplining the children. He was also violent to the respondent's mother. The respondent was declared a neglected child and placed in a church boys' home, and apparently various other institutions thereafter. From the age of 13 he effectively fended for himself. He had various forms of employment and ran a number of small businesses of his own. For a short time, at the age of 15 or 16, he returned to his mother's household but this lasted only a month. His stepfather was still physically abusing the respondent's sisters and attempted also physically to abuse the respondent. The respondent reciprocated and was charged with assault. He left the house, and resumed living alone in a boarding house. One sister has since died of a drug overdose. 14 The respondent has had significant physical illnesses. At the age of 24 or 25 he suffered "burnout" and a collapsed lung. He subsequently suffered chickenpox which caused a recurrence of the collapsed lung and a similar problem in the other lung. This was in about 1997. Since then he has been on different forms of medication, including antidepressants. 15 At the age of 31 he met and later married his wife, and two daughters were born in 1994 and 1996 respectively. The family lived for a time in Condobolin and then moved to Narooma. 16 From about the age of 12 the respondent has been involved as a volunteer fire fighter, initially with the Bush Fire Brigade and later with the New South Wales Fire Brigade. For this he was paid a monthly retainer. By about 1997 he had attained the position of station commander. This work had involved him, on ten or more occasions, in dealing with fatalities. He received no counselling. 17 In his evidence the respondent repeated that his first recollection of the events constituting the offence was of walking onto the verandah with a cup of coffee and seeing the police with guns directed at him. He said the evening before he had taken eight or ten sleeping tablets after he had found himself unable to sleep. He denied that he had been contemplating suicide or any other form of self harm and said that he had intended moving out of the house. He had no recollection of writing the suicide notes, but accepted that one of them, at least, was in his handwriting. He said that he had been stressed and very, very upset because of the situation with his wife. He denied that he had ever intended to use the molotov cocktails to injure police or himself. He claimed to have no idea why police were present. 18 There was surprisingly little before his Honour by way of psychiatric or psychological evidence. Such evidence as there was was limited to a psychiatric report prepared by Dr Koller, a visiting psychiatrist in the Corrections Health Service. Dr Koller examined the respondent on 9 August 1999, while he was in custody. The resultant report is succinct; Dr Koller found the respondent not to be a suicide risk and considered that the problem was essentially a matrimonial one and should have been managed as such. 19 By the time the respondent came to be sentenced, he had moved to a small town near Goulburn. He had undertaken voluntary work with Mission Australia, supervising developmentally disabled workers at a meatworks. He had, for 10 years, been involved with children suffering from cancer, in an organization called Camp Quality. For many more years he had been an active member of the Lions Club, also doing community work. He had been suspended from his position in the New South Wales Fire Brigade and recognized that it was unlikely that he would be able to engage in this volunteer work in the future. This was a significant personal loss. 20 The respondent had some criminal record. He had been convicted of assault in 1978 (presumably the assault on his stepfather, although the date would suggest that his recollection of his age at the time of that event was erroneous), of supplying Indian hemp, and goods in custody (on separate occasions in 1981) and stealing in 1983. Most significantly, he was convicted of assault occasioning actual bodily harm in 1989. For this offence he was fined $500 and subjected to a bond to be of good behaviour. Thereafter he had no convictions. 21 In his remarks on sentence Goldring DCJ characterised the offence as, "really a domestic upset gone wild which led to a most unfortunate situation". Goldring DCJ recounted the subjective material that had been placed before him and the facts of the offences. He noted that the threats made by the respondent to others were confined in that he only threatened them if they attempted to enter his house and remove him. He was somewhat critical of the negotiating tactics adopted by the police. He thought their techniques "were not calculated to dampen the situation down" and he observed, in a critical tone, that police did not make any concessions to the respondent. Although he acknowledged that a number of the police involved were general duties police, untrained in the specialised area of negotiating in a siege situation, he observed that the techniques used had caused "a reaction in Mr Paris which I cannot criticise" and that, while what was said to him was probably not intended to incite or inflame him, that was its effect and led to "a stalemate". His Honour then said: "I find the offence proved but under s 10 of the Crimes (Sentencing Procedure) Act , having regard to the extenuating circumstances, I am satisfied that it is expedient to release the offender on a good behaviour bond." 22 The principal submission advanced on behalf of the Crown was that the sentence imposed is manifestly inadequate. The Crown sought to support this contention, not only by reference to the sentence itself, but also to errors it asserted could be identified in the remarks on sentence. 23 Firstly, the Crown relied upon a passage in the remarks on sentence which reads: "The Crown says this is not a case that calls for a custodial sentence and I certainly agree with that." 24 This calls for some examination of what, in fact, occurred and what was said during the course of the sentencing proceedings. At an early stage, the judge having been given quite voluminous documentary material, the Crown Prosecutor said: "If it assists your Honour's deliberations in this matter can I indicate from the outset that the Crown's position in this matter is one that it would not be necessary for your Honour to impose a full-time custodial sentence on this prisoner. But that is the Crown's position from the outset." I emphasise the words "full-time" and note that emphasis is added. 25 Thereafter the transcript records only that "counsel addressed on penalty". It does not disclose whether any more was said on behalf of the Crown to assist his Honour in the determination of the appropriate sentence. Given what was said by his Honour it is, I think, a reasonable inference that no more was said about the appropriate penalty. 26 The statement made by his Honour was, as the Crown properly submitted, a misstatement of what had, very fairly, been conceded by the Crown Prosecutor. The Crown argued that: "It was certainly not the Crown's position that custody of any form was unwarranted, the Crown concession being limited to it not seeking full-time custody." 27 One answer made by the respondent to this proposition is that it was incumbent on the Crown's representative clearly to enunciate the distinction, had it truly been his intention to make a concession about full-time custody, but to leave open the possibility of, or the need for, some lesser custodial sentence. 28 Initially, I found this response unattractive but on further examination I consider that it has some merit, although that is limited. As I have said, I infer that nothing specific was said by the Crown about alternative penalties and the matter was left to his Honour. Had it been the Crown's position that his Honour should at least have considered alternative penalties, in my view it would have been preferable that that was expressly drawn to his Honour's attention. Of course, a sentencing Judge is not bound by any concession made by the Crown. He or she retains an overriding obligation to impose a sentence that properly reflects the criminality, taking into account subjective circumstances. Nor is this court bound by such a concession but where a party, whether Crown or offender, in a criminal case makes a concession that is accepted by a judge, it is difficult for the subsequent representative of that party to resile from that concession on appeal. The Crown does not here attempt to take that course, acknowledging that it ought not now argue for a sentence of full-time custody. It does not accept that it is precluded from arguing for a lesser custodial penalty. 29 A second answer made on behalf of the respondent concerned the identification of alternative custodial penalties that the Crown now argues were available. These are periodic detention and home detention, now provided for by ss 6 and 7 of the Sentencing Procedure Act. Either order may only be made in specified circumstances, including the provision of a favourable assessment for such an order. There was no such assessment and there is nothing in the transcript to indicate either party invited his Honour to make an order for such an assessment. 30 This was undoubtedly a very serious offence. Once the Crown had conceded that full-time custody was not called for, and that concession was accepted by his Honour, proper sentencing procedure called for an assessment of alternatives other than the bond that was ultimately imposed. There are a number of intermediate possibilities, such as those I have mentioned and also Community Service orders. 31 The question which now arises encompasses not only whether his Honour was in error in misunderstanding the Crown concession and in acting on this misconception and in failing to consider alternatives falling short of the s 10 bond, but also whether the Crown participated in or was responsible for any such error in such a way as to preclude it now relying upon the error. 32 I make it clear now that, in my view, there was error in his Honour's misunderstanding of the concession made by the Crown Prosecutor, in his reliance on that misconception and also in his failure to consider alternative sentences. Less clear is whether the Crown should accept any responsibility for that error such as to preclude present reliance upon it. 33 In matters of sentencing, the Crown does have an obligation to draw to the attention of the judge all relevant sentencing options and to ensure that appropriate options are not overlooked. In my opinion there is room for the conclusion that this obligation was not, in this case, fully discharged. I am reluctant to be too critical of the Crown who exercised a legitimate discretion and did so in the best traditions of the Crown: that is, in acting fairly to an offender. The Crown's role is not to secure a conviction at any cost, nor is it the Crown's role to secure the heaviest available penalty. A Crown Prosecutor is not ordinarily to be criticised for encouraging a merciful sentence in appropriate circumstances, even if minds may differ about the extent of the leniency that is appropriate. In this case, in my opinion, it would have been better if the Crown had expanded on the Crown's position in order to put beyond doubt that it sought either periodic detention, home detention, or some other penalty. What was in the mind of the Crown and what was the submission of the Crown in this respect is not entirely clear. However, as I have said, the real issue in relation to this aspect of the appeal is whether, by its conduct of the case at first instance, the Crown has forfeited the right to complain on appeal that the sentencing process miscarried in this respect. A sentencing judge is entitled to expect a full measure of assistance from both counsel. An offender might lose the right to complain if relevant facts and circumstances are not brought to a trial or sentencing judge's notice. The Crown is in no different position. 34 After considering all of those matters, on balance I have concluded that the Crown conduct was not such as to preclude it now taking the point. Properly analysed, the concession did not exclude alternative sentencing options more severe than that provided for by s 10. 35 The second matter argued on behalf of the Crown involved an assertion that his Honour failed to give due weight to an important principle concerning sentencing where police officers, acting in the execution of their duty, are the victims of crime. It relied upon a passage in the judgment of this court in the Queen v Hamilton (1993) 66 A Crim R 575, also dealing with an offence against s 33B, which reads: "It is incumbent on the court to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task." 36 Similar sentiments were expressed in R v Smith (1982) 7 A Crim R 253 and R v Myers, unreported, CCA 13 February 1990. In one aspect of this argument the Crown drew attention to the criticisms made by his Honour of the negotiators and characterised these as unfair. I agree that the criticisms were unfair. There was no evidence about the appropriate or preferred method or methods of negotiating in the particular circumstances that had arisen, or indeed in any circumstances. I am prepared to assume that negotiating in a siege situation requires a degree of training and skill and the exercise of judgment. It is a field of specialised expertise. In the absence of evidence about the extent of adherence on this occasion to accepted practices, it was quite unfair to criticise the negotiators. It is another question altogether whether those criticisms played any part in the determination of the sentence. Unless they did, I would not regard those remarks as demonstrative of relevant error. During the course of his observations about the police, his Honour said: "The effect of some of those techniques was to cause a reaction in Mr Paris which I cannot criticise". Later he said, "it shows that domestic situations and the mental anguish that people go through when they are involved in domestic differences do escalate." 37 These remarks are open to the interpretation that the judge regarded the respondent's culpability as somewhat diminished by reason of the negotiating techniques of which he disapproved. Counsel for the respondent pointed out that the remarks were prefaced and interspersed by observations that most of the police involved were not trained negotiators, the obvious intention being to soften the effect of the criticism. But this is not the point. The point is whether his Honour erroneously assessed the respondent's culpability by reason of his opinion of police authorities. I think he did. 38 Further, it remains the case that his Honour made no reference, explicit or implicit, to the principles stated in Hamilton. General deterrence is an important aspect of this principle. His Honour made no reference to that principle, either in general terms or by special reference to the Hamilton dictum. Despite his Honour's observation that the only threats made by the respondent to police were made in the context of his anticipation that they would enter the house, the fact remains that he threatened the police with a weapon (which he did not possess) and with others (which he did possess) and he expressly threatened the family of one police officer. 39 The siege continued over a continuous period of 24 hours. In my opinion, his Honour gave inadequate weight to these important circumstances. 40 The third aspect argued on behalf of the Crown related to the use of the provisions of s 10 of the Sentencing Procedure Act. "10. Dismissal of charges and conditional discharge of offender. (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider." 41 All his Honour said was: "I find the offence proved but under s 10 of the Crimes (Sentencing Procedure) Act , having regard to the extenuating circumstances, I am satisfied that it is expedient to release the offender on a good behaviour bond." 42 Subs 3 requires the court to have regard to the four factors listed. This is not intended to preclude the court having regard to any other relevant factors but it does require express regard to those matters identified. All that his Honour expressly mentioned in his conclusion were the extenuating circumstances in which the offence was committed. True it is that he had, in his earlier remarks on sentence, outlined matters related to the respondent's character, antecedents, age, health and mental condition but he did not clearly relate these to his views of s 10. He did, of course, set out at some length the circumstances of the offence and was therefore fully aware of its nature. On no view of it could it have been regarded as trivial. It is not necessary to the application of s 10 that the offence be characterised as trivial; the four factors mentioned in subs 3 are, in my view, intended to be disjunctive and nonexhaustive. 43 In my opinion, the Crown's argument about s 10 is made good. In particular, the extenuating circumstances in which the offence was committed appear to have overshadowed other important matters such as the nature of the offence. There was, regrettably, only the scantiest evidence about the respondent's mental condition, but his Honour appears to have made certain assumptions about it. It may be doubted whether an offence of the nature of this one could ever properly be brought within the bounds of s 10 but, if that were to be done, it would be necessary for a sentencing judge to pay very careful regard to all of the subs (3) matters. In my view, this is manifestly not a case for the application of s 10. 44 There was one final matter on which the Crown relied. At the commencement of the proceedings a document detailing the s 33 offences (two counts of assault, one on the ambulance officer and one on the friend of Mrs Paris who entered the respondent's bedroom) was put before his Honour. He mentioned this at the commencement of his remarks on sentence but did not specifically mention it again in a consequential way when finally imposing sentence. I would not be prepared to infer that his Honour did not have regard to these offences. In my opinion, the view he took encompassed all the relevant behaviour of the respondent which was before him. 45 The effect of what I have said is that a number of errors have been established in the sentencing process. As a fall-back position, counsel for the respondent urged that the court would exercise its discretion to dismiss the Crown appeal, even where error has been established. Against the possibility of resentencing, the court received an affidavit sworn by the respondent on or about 12 March. He deposed to the continuation of his community work, his work with developmentally disabled people which is for nine hours a day, five days a week. His only payment is by way of food vouchers. He is on several kinds of medication, including medication for depression, painkillers for a back injury and desensitisation medication for his lung condition. 46 I am of the opinion that the contents of this affidavit can be taken into account, not only against the possibility of resentencing but also in relation to the exercise of the residual discretion the court retains in relation to Crown appeals. Notwithstanding these matters, I have concluded that this is not a case that warrants the exercise of that discretion. I would not, however, make an order that would have the effect of returning the respondent to full-time custody - that is, in the absence of further offences. 47 The order I propose would be a suspended sentence under s 12 of the Sentencing Procedure Act. I propose that the respondent be sentenced to prison for two years but that execution of the sentence be suspended for the whole of that term and I would direct, in accordance with the section, that the respondent be released from custody on condition he enter into a good behaviour bond for the whole of the term of the sentence. 48 IPP AJA: I agree with everything Simpson J has said, save that I wish to comment as to the effect of s 10(3) of the Crimes (Sentencing Procedure) Act. In my view section 10(3) sets out what may be termed as criteria to be borne in mind in deciding whether or not to make an order referred to in subs 1. While none of these criteria is conclusive, all are to be taken into account 49 WOOD CJ AT CL: I agree with the proposed judgment of Simpson J and with the qualification additional thereto suggested by the Presiding Judge. 50 IPP AJA: The orders of the court will be as proposed by Simpson J and the conviction of the respondent will be entered. ********** 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.