R v BELL [2003] NSWCCA 305

New South Wales Court of Criminal Appeal

CITATION : R v BELL [2003] NSWCCA 305 HEARING DATE(S) : 14 October 2003 JUDGMENT DATE : 24 October 2003

JUDGMENT OF : Sheller JA at 1; Sully J at 15; Howie J at 16 DECISION : Grant the application for leave to appeal.; Dismiss the appeal

CATCHWORDS : CRIMINAL LAW - application for leave to appeal - severity of sentence - assault on police officer - whether accumulation of sentences amounts to a special circumstance in fixing the non-parole period LEGISLATION CITED : Crimes Act 1900 CASES CITED : R v Lyndon [2003] NSWCCA 152 PARTIES : Stephen Charles Bell - Applicant Crown - Respondent FILE NUMBER(S) : CCA 60214/03 COUNSEL : A Francis - Applicant D Arnott - Crown SOLICITORS : Steve O'Connor - Legal Aid Commission C K Smith - Crown

LOWER COURT District Court JURISDICTION : LOWER COURT 02/61/0129 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60214/03

SHELLER JA SULLY J HOWIE J

Friday, 24 October 2003 R v Stephen Charles BELL Judgment 1 SHELLER JA: The applicant, Stephen Charles Bell, pleaded guilty to three counts of assaulting a police officer acting in the execution of his duty but without occasioning actual bodily harm; s60(1) of the Crimes Act 1900. On 16 December 2002 his Honour Judge Gibson sentenced the applicant on the third count to imprisonment for two years commencing on 10 October 2002 with a non-parole period of eighteen months to commence on the same date. On each of the first two counts his Honour sentenced the applicant to imprisonment for a fixed term of twelve months to commence on 10 October 2002. The applicant seeks leave to appeal against severity. 2 The offences charged occurred on 2 March 2002. At about 11.40 pm on that date police observed the applicant's motor vehicle being driven at high speed. Pursuit resulted in the vehicle colliding with the kerb at which point a passenger fled and the applicant who had been observed in the driver's seat tried to get out of the front passenger's seat. Police ran to the vehicle and told the applicant, who was familiar to them as a disqualified driver, that he was under arrest. The applicant refused to get out of the vehicle and became aggressive. During a struggle one of the police officers drew his extendable baton and the applicant punched him on the left arm and chest (count 1). The officer struck the applicant on his left arm with the baton and attempted to restrain him again. Police attempted to handcuff him but the applicant continued to struggle and was pushed to the ground. The applicant kicked out at the same police officer striking him in the left leg several times (count 2). The applicant, who was then lying on his back, yelled out to the officer "I have hepatitis and I'm going to spit in your face so that you get it too and have a life of misery" (count 3). 3 In his remarks on sentence, Judge Gibson said that the applicant, who was drunk, behaved in an appalling manner both as to his language and physical actions towards the police officers who were there and later at the hospital to which he was taken. Had it not been for the intervention of two people who had been in the car with the applicant and who put their hands over his face the preparations he had made to spit at the police officer might have been carried into effect. The applicant's actions were appalling and frightening. 4 At the time of sentencing the applicant was 35 years of age. According to the probation report, he had a very dysfunctional background as a young person and his problems had continued into adult life. He was a drug user and had only worked occasionally. The applicant was a passenger in a car which was involved in an accident. As a result he was incapacitated for work. The sentencing Judge noted that despite this incapacity with a bad back the applicant was still prepared to engage in physical contact with others. 5 The applicant had two children from a long-standing de facto relationship. The elder of these children, a teenage boy, was doing school exams. He had never been in trouble and the applicant was very proud of him. 6 At about the time of the incident in March 2002 the applicant had trouble with criminal associates which resulted in his possessions being stolen, his vehicle destroyed and his home firebombed. He apparently had difficulty in eliciting an appropriate response from the police when he sought help. Certain people were charged and the applicant gave evidence. However, those persons were acquitted. As a result, at the time of sentencing the applicant, who was in custody, was held in special segregation. The sentencing Judge took that factor into account. 7 His Honour said: "He has a long record and gains very little assistance from that by way of mitigation. He does not receive more because of his record, but he does not receive the mitigation that others with a lesser record would. I take into consideration the early plea as some evidence of his remorse, but I also note the circumstances and strength of the Crown case. I take into consideration his physical condition and note that the Commission has facilities for the physic [sic] well being of inmates. I make allowance for the utilitarian value of the plea and the early plea and I take both those matters into consideration, in allowing an overall figure of 20 per cent. I take into consideration all matters relevant under s21A of the Sentencing Procedures Act. It has been suggested that I should find special circumstances in his prospects of rehabilitation, but on the evidence before me, including the facts that he was on two bonds at the time of this offence, I make no such finding. It was submitted that these matters should all carry concurrent sentences as they were all part of the one sentence [sic offence] and with that I agree. However, the fact that no one was injured does not carry any weight as the section makes specific provision for when bodily harm is occasioned by increasing the penalty. Objectively, the assaults were very serious, they were committed whilst the prisoner was on two separate bonds and while it can be expected that police officers will, while carrying out their duties, be in situations that means that they will encounter violence, that is not to say that the law or these Courts regard what happens to police officers as of little moment, they do not. The mental anguish occasioned by the threat in the first [sic third] count is worse in my view, than what occurred in the first two. Whilst it is true the threat was not carried out, the uttering of it, and the inability of the victim to do anything made it very real for that period of time. It is the third count upon which I will sentence the prisoner for the overall criminality of the offences, and it was submitted that there should be some adjustment due to the fact that the matters were not dealt with at the same time as the matter in July, through no fault of the prisoner and also I should also take into consideration the fact that the matters could have been dealt with in the Local Court. Whilst that is true, and I will take it into consideration, there is no doubt that these matters were deliberately and in my view, properly laid in this Court. The matter for which he was sentenced on 25 July, was a separate and distinct breach of the law, and if the matters had all been dealt with at the same time, there is no doubt there would have been some overlapping of the sentences, and for that reason I propose to commence these sentences as from 10 October. In relation to count three, which is the sentence for the overall criminality, I would have imposed a sentence of two and a half years, but I allow a 20 per cent discount which reduced it to two years. It will commence on 10 October 2002, and will expire on 9 October 2004. There will be a non-parole period of 18 months, which will commence on 10 October 2002 and expire on 9 April 2004, upon which date he will be released subject to supervision and such other orders as the Parole Board deems meet. In relation to counts one and two, there will be a 12 months fixed term on each count, commencing on 10/10/02 and expiring on 9/10/03 upon which date he will be discharged on those matters." 8 The applicant was not charged for the three offences until 11 April 2002 when he was arrested. On 25 July 2002 he was sentenced at Dubbo Local Court to twelve months imprisonment with a six months non-parole period. This sentence was for a series of other matters and the applicant's breach of the terms of a suspended sentence imposed on 1 September 2001. It was backdated to begin on 11 April 2002 so that the applicant was eligible for parole on 10 October 2002. On 10 October the applicant was released on parole. On 30 October he was arrested on other charges and refused bail. Hence, he was in custody at the time of sentence by Judge Gibson. Even though the applicant had been released on 10 October for a period of twenty days the sentencing Judge commenced the sentences from that date. 9 The ground of the applicant's application for leave to appeal against severity was expressed as follows: "His Honour erred in considering special circumstances by failing to have regard to the effect of accumulation upon existing sentences." 10 Ms Francis appeared for the applicant. The nub of her written submissions was that the applicant had been in continuous custody since 11 April 2002 and would remain in custody until 9 April 2004. This was translated into a submission that the applicant would serve a sentence of two years and six months with an effective non-parole period of two years. This was claimed to be disproportionate. It was submitted that the accumulation was a special circumstance to be considered in fixing the non-parole period which the sentencing Judge did not take into account and which should have resulted in a reduction of the non-parole period for the third count, so as to make the applicant eligible for parole before 9 April 2004. In support of this argument particular reference was made to R v Lyndon [2003] NSWCCA 152, particularly para 16. In that case Smart AJ, with the concurrence of James J, found that an accumulation of sentences which, when added to the sentence imposed, resulted in continuous custody for four and a half years, was a special circumstance to be taken into account when fixing the non-parole period. 11 Ms Francis conceded, as the Crown had pointed out in its written submissions, that on 2 April 2003 the applicant was sentenced to a fixed term of twelve months to commence on 2 March 2003 and to expire on 1 March 2004 for the offence of supply prohibited drug. Thus, even if this Court were minded to intervene, no more could be achieved on the present appeal than to order the applicant to be released on parole on 1 March 2004. Factually this case is distinguishable from Lyndon. The applicant has not been in continuous custody since 11 April 2002 but was released on 10 October 2002 and was at liberty until 30 October 2002 when he was returned to custody on other matters. 12 In the course of her oral submissions Ms Francis enlarged upon the matters relied upon in the notice of appeal to suggest error. She emphasised the need for the applicant to be held in some form of protective custody and his prospects of rehabilitation to which, she submitted, the sentencing Judge did not give sufficient weight. 13 I entirely agree with what the sentencing Judge said about the seriousness of these assaults on a police officer and particularly what his Honour said about the third count and the threat made to the police officer in the course of performing his duty, which his Honour rightly regarded as likely to occasion great mental anguish to that officer. In the probation report available to the sentencing Judge and dated 21 June 2002 it was said: "In recent months he [the applicant] has shown some definite progress towards resolving some long standing criminogenic factors of his lifestyle. However, since March 2002 his lifestyle has deteriorated and he has reverted to the former well entrenched pattern of drug abuse and offending behaviours." 14 With due respect to the submissions put, no basis whatever is shown to support a suggestion that the sentencing Judge did not take into account and give weight to all appropriate considerations both objective and subjective. In my opinion, the sentences were well within the range and no error is shown which would entitle this Court to intervene. I would grant the applicant's application for leave to appeal but dismiss the appeal. 15 SULLY J: I agree with Sheller JA. 16 HOWIE J: I agree with Sheller JA. **********