New South Wales Court of Criminal Appeal CITATION : R v Newton [2004] NSWCCA 47 HEARING DATE(S) : 3 February 2004 JUDGMENT DATE : 3 February 2004 JUDGMENT OF : James J at 1, 39; Buddin J at 38 DECISION : Leave to appeal granted - appeal dismissed CATCHWORDS : Criminal law - sentence appeal - maliciously damaging property - assaulting a police officer - using an offensive weapon to avoid apprehension LEGISLATION CITED : Attorney General's application under s 57 of the Crimes (Sentencing Procedure) Act 1997 No 1 (2002) 56 NSWLR 146 Crimes (Sentencing Procedure) Act CASES CITED : The Queen v De Simoni (1980-1981) 147 CLR 383 PARTIES : Regina v Timothy Adam Newton FILE NUMBER(S) : CCA 60189/03 COUNSEL : C Steirn SC - Applicant BJ Knox SC - Crown SOLICITORS : V Havryliv - Applicant CK Smith - Crown LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0587; 02/11/1019 FILE NUMBER(S) : LOWER COURT Berman DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60189/03 James J Buddin J Tuesday 3 February 2004 REGINA v TIMOTHY ADAM NEWTON Judgment 1 JAMES J : Timothy Adam Newton has applied for leave to appeal against sentences imposed on him in the District Court on 6 December 2002 by his Honour Judge Berman of senior counsel. 2 His Honour sentenced the applicant for three offences to all of which the applicant had pleaded guilty, namely: 1. Two offences committed on 24 October 2001, one of maliciously damaging property, being an offence under s 195 of the Crimes Act for which the maximum penalty is imprisonment for five years, and the other of assaulting a police officer in the execution of his duty, being an offence under s 58 of the Crimes Act, for which the maximum penalty is imprisonment for five years. These two offences had been charged in an indictment on which the applicant had been arraigned. 2. An offence committed on 9 June 2002 of using an offensive weapon to avoid apprehension, an offence under s 33B(1) of the Crimes Act , for which the maximum penalty is imprisonment for twelve years. 3 In sentencing the applicant for the last offence, Judge Berman took into account three further offences committed on 9 June 2002 which were: (1) An offence of assaulting a police officer in the execution of his duty. (2) An offence of contravening an apprehended domestic violence order. (3) An offence of common assault. 4 The applicant had been committed for sentence from a Local Court on the charge of using an offensive weapon to avoid apprehension. 5 For the offence of maliciously damaging property committed on 24 October 2001, his Honour imposed a sentence of a fixed term of imprisonment of twelve months. For the offence of assaulting a police officer in the execution of his duty which was committed on 24 October 2001, his Honour imposed a sentence of a fixed term of imprisonment of two years. For the offence of using an offensive weapon to avoid apprehension which was committed on 9 June 2002, his Honour imposed a sentence of four years with a non-parole period of two years. 6 His Honour ordered that the first two sentences commence from 7 May 2002. The applicant had been continuously in custody referable to these three offences from the time he was arrested on 9 June 2002 but his Honour back-dated the commencement of the sentences for the offences committed on 24 October 2001 to 7 May 2002, so as to allow for a discrete period of pre-sentence custody between 24 October 2001, when the applicant had been arrested for committing the first two offences, and 27 November 2001, when he had been released on bail. The offences committed on 9 June 2002 were committed whilst the applicant was on this bail. His Honour ordered that the sentence for the offence under s 33B committed on 9 June 2002 should commence from 7 May 2003, thus making that sentence partly cumulative on the sentences for the offences committed on 24 October 2001 The total effect of the sentences was that the applicant was sentenced to terms of imprisonment totalling five years with a non-parole period of three years. 7 The facts of the offences can be briefly stated as follows. The applicant and a woman who I will refer to simply as SH had been in a relationship for about eight years. SH had applied for an apprehended domestic violence order against the applicant and the application had been set down for hearing on 24 October 2001. On the morning of 24 October 2001 SH began to make preparations to attend the court at which her application would be heard. The applicant became aware of what SH was doing. He spoke abusively to her and made threats to her. SH got into her car. The applicant took the keys of the car, got a baseball bat from inside the house and, using the baseball bat, smashed the driver's side front window of the car. This conduct was the subject of the charge of maliciously damaging property. SH ran from the house and attended the court, where she obtained an apprehended domestic violence order. 8 It was determined by police that service of the apprehended domestic violence order should be undertaken with the assistance of the State Protection Group. At about 6 o'clock in the evening of 24 October 2001 negotiaters from the State Protection Group asked the applicant to come out of the house. The applicant refused. His Honour in his statement of the facts of the offences in his remarks on sentence recorded that the applicant armed himself with a firework, walked from the house and fired the firework at police. The firework exploded. The conduct of the applicant in projecting the firework was the basis, or part of the basis, of the charge of assaulting a police officer in the execution of his duty. A statement by a police officer named Poole was admitted into evidence in the proceedings on sentence in which Constable Poole said that, apart from the firework, which was referred to in paragraph 4 of Constable Poole's statement, the applicant had discharged an explosive device like a Roman candle (para 5 of Constable Poole's statement) and another firework (para 6 of Constable Poole's statement). 9 As indicated earlier in this judgment, the applicant was arrested on 24 October 2001 but was released on bail on 27 November 2001. While on bail for the offences committed on 24 October 2001, the applicant committed the offences of 9 June 2002. 10 On 9 June 2002 police went to the same premises where the applicant and SH lived, after SH had made an emergency call. The applicant refused to allow police to enter the house and made abusive and threatening remarks to the police. Among other things, he said: "You'll fucking need an army. There is going to be another siege. You aren't coming in here you fucking coppers." 11 At one stage the applicant appeared at the door of the house with a knife in his hand. On a number of subsequent occasions he appeared with a knife in his hand. Constable Poole managed to enter the house and after a struggle with the applicant succeeded in taking the knife from the applicant. The applicant's use of the knife grounded the charge under s 33B of the Crimes Act . The applicant continued to struggle with police inside the house and later at a police station. 12 The applicant's conduct in the struggle with Constable Poole led to the charge of assaulting a police officer in the execution of his duty, which was one of the offences taken into account in sentencing the applicant for the offence under s 33B. 13 Earlier in the day the applicant had breached the apprehended domestic violence order which SH had obtained and had assaulted SH. This conduct by the applicant grounded the other two offences which were taken into account when sentencing the applicant for the offence under s 33B. 14 In his remarks on sentence his Honour noted the subjective features of the applicant. The applicant had had a dysfunctional childhood and had what his Honour described as a quite lengthy criminal history. He had had a "volatile" relationship with SH for about eight years. His Honour referred to a report from Dr Westmore, psychiatrist, which his Honour considered was particularly relevant in two respects, namely: 1. The applicant became aggressive after he had been drinking alcohol. 2. The applicant had a personality disorder which was most appropriately described as an adjustment disorder with depression and anxiety. 15 His Honour accepted that general deterrence has less of a role to play when sentencing an offender whose mental functioning is impaired. However, his Honour considered that in sentencing the applicant there was a strong need for a sentence to be imposed which would operate as a personal deterrent to the applicant. His Honour specifically referred to the offences on 9 June 2002 having been committed while the applicant was on bail and to the applicant's challenge to police on 9 June 2002, that the police would need an army to subdue him and that there would be another siege. His Honour also found that the applicant had not shown any remorse and his Honour held that the absence of any remorse increased the need for sentences to be imposed which would operate as a personal deterrent to the applicant. His Honour allowed a discount of twenty-five per cent for the early pleas of guilty. His Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act in the need to encourage the applicant to seek and receive psychiatric help. 16 Two separate sets of written submissions referring to various grounds of appeal were filed on behalf of the applicant but we were informed by senior counsel at the hearing of the application that the grounds of appeal relied on by the applicant were the first three grounds in written submissions dated 25 October 2003. I will deal with these grounds of appeal in turn. 17 Ground 1: The sentencing judge took into account facts not relied upon by the Crown in relation to the charge. 18 In his statement of the facts of the offence under s 58 of the Crimes Act committed on 24 October 2001, his Honour said that the applicant armed himself with two large knives and that he brandished those knives at police. These words in his Honour's remarks on sentence were taken verbatim by his Honour from a statement of the facts of the offences committed on 24 October 2001, which had been admitted into evidence in the proceedings on sentence without any objection from the legal representative of the applicant in the proceedings on sentence. 19 It was submitted on the hearing of this application that his Honour should not have had any regard to the facts that the applicant had armed himself with a knife (or knives) and had brandished the knife (or knives) at police, because during the argument in the proceedings on sentence the sentencing judge had said to the Crown's representative: "The assault that you rely on, Mr Crown, is one continuing episode involving the discharge of some fireball in paragraph 4 of Poole's statement, with a Roman candle type thing in paragraph 5, and the cracker in paragraph 6. They are all part of the assault, are they?" The Crown's representative had agreed with what was put by his Honour. 20 It was submitted that it was apparent from his Honour's remarks on sentence that his Honour had attached some significance to the applicant having armed himself with a knife or knives and having brandished them, because, apart from including those facts in his recitation of the facts of the offences, his Honour had expressly stated that he did not accept the applicant's denial made to a Probation and Parole officer, which was recorded in a pre-sentence report made by the officer, that he had armed himself with knives and brandished them. 21 I do not consider that this ground of appeal should be upheld, even if the assault by the applicant should be regarded as restricted to the discharging of the fireworks as described in paragraphs 4, 5 and 6 of Constable Poole's statement. As I have already stated, there was no objection by the applicant's legal representative to the tender of the statement of the facts of the offences which included these facts or to the tender of the statement of Constable Poole, which, subject to a qualification which I will come to later in this judgment, included those facts. 22 Those acts of the applicant in arming himself with a knife or knives and brandishing the knife or knives were part of what happened during the continuing episode and, even if not constituting part of the actual assault relied on by the Crown, were relevant to assessing the objective gravity of the actual assault committed by the applicant, particularly by way of illuminating the applicant's state of mind during the continuing episode and his defiance of the police, which were matters the sentencing judge could properly take into account, particularly in considering the degree to which the need for personal deterrence should be given effect to in the sentencing of the applicant. 23 The entitlement, and indeed the obligation of a sentencing judge to take into account all of the circumstances in which an offence has been committed, is subject to the principle stated in The Queen v De Simoni (1980-1981) 147 CLR 383. However, I do not discern any breach of the principles in De Simoni in what the sentencing judge did in the present case. 24 A further point was taken that, although the statement of the facts of the offences admitted into evidence from which his Honour took his statement of the facts of the offences in his remarks on sentence, referred to two knives, Constable Poole's statement, which was the primary source of the facts of the offences, referred to only one knife, albeit a knife which the applicant produced on a number of separate occasions during the siege. It would seem to be correct that, according to Constable Poole's statement, the applicant produced only one knife, which Constable Poole described as a very large carving knife, and that the statement of the facts of the offences admitted into evidence and his Honour's remarks on sentence are incorrect in asserting the applicant produced two knives. However, I am of the opinion there is not really any material difference between an assertion that the applicant armed himself with two large knives, which he brandished, and an assertion that on a number of different occasions during the siege the applicant armed himself with the same large knife, which he brandished. 25 I would reject the first ground of appeal. 26 Ground 2: The sentencing judge, having previously accepted a view of the facts favourable to the appellant changed his mind and took a more serious view of the facts, without informing the appellant before passing sentence . 27 In his remarks on sentence his Honour said: "At about 8.30pm on 24 October 2001, the accused armed himself with a firework. He walked from the residence and fired a projectile at police. A fireball exploded and Senior Constable Poole felt intense heat from the explosion upon his face and a shock wave of the explosion against his body. He said that the noise was deafening and it caused him immediate pain and ringing to his ears. The projectile consisted of an explosive based substance. One such projectile was found to have penetrated the ground area in close proximity to police personnel. The offender carried out this action on two further occasions." This part of his Honour's remarks on sentence was taken virtually verbatim from the statement of the facts of the offences which had been admitted without objection in the proceedings on sentence. 28 It was submitted that what his Honour said in this part of his remarks on sentence departed from what his Honour had earlier said in the course of the argument in the proceedings on sentence. In response to a submission made by the applicant's legal representative that the discharge of fireworks had not caused any injury to Constable Poole, his Honour had said: "So, didn't suffer, did not cause injury. Okay, well, I'll proceed on the basis that it was an improvised weapon and all that was used was a firework and I know what they do." 29 It was submitted that what his Honour said in his remarks on sentence represented a change from what his Honour had said in argument, that his Honour had not informed the applicant's legal representative of his change of mind and that thereby the applicant had been denied procedural fairness. 30 I do not consider that there is any substance at all in this ground of appeal. There was no departure whatever by the sentencing judge in his remarks on sentence from what his Honour had said in argument or, indeed, from what was contained in the statement of the facts of the offences which had been admitted without objection. In the part of his remarks on sentence following the part which has just been quoted, his Honour recorded that no one had actually been injured. In both what his Honour had said in argument and in what his Honour said in his remarks on sentence, his Honour distinguished between the heat, shock and ringing in his ears experienced by Constable Poole as a result of the explosion of the projectile on the one hand and, on the other hand, the inflicting of actual injury. 31 There being no departure by the sentencing judge in his remarks on sentence from what he had said in argument, there was no denial of procedural fairness. 32 Ground 3: The sentencing judge failed to apply the principle of totality in relation to the matters dealt with on sentence. 33 It was submitted that the sentencing judge had failed to apply the sentencing principle of totality in the determination of the sentences which he imposed. Counsel referred to the guideline judgment concerning the taking of offences into account in sentencing for a principal offence – the Attorney General's application under s 57 of the Crimes (Sentencing Procedure) Act 1997 No 1 (2002) 56 NSWLR 146. It was submitted that the offences to be taken into account in sentencing the applicant for the offence committed on 9 June 2002 were so inextricably bound up with the principal offence that there should have been no increase in penalty for the principal offence by reason of the offences to be taken into account. 34 In his remarks on sentence the sentencing judge did not indicate, and he was not required to indicate, the extent, if at all, to which the sentence for the principal offence committed on 9 June 2002 had been increased by reason of the offences to be taken into account. 35 In his remarks on sentence his Honour rejected a submission that the criminality in the principal offence was "at the lower end of the scale" and I would infer that the sentence his Honour imposed for the principal offence was mainly, if not entirely, attributable to the criminality in the principal offence and his Honour gave little weight to the offences to be taken into account. His Honour would have been entitled to give some weight at least to the offences of contravening an apprehended domestic violence order and assaulting SH, which were quite distinct from the commission of the offence under s 33B. In my opinion, this ground of appeal is not made out. 36 It was put in oral argument that the sentences were manifestly excessive but having regard to the objective facts of the offences and the subjective features of the applicant to which I have already referred, I would reject that submission. 37 In my opinion leave to appeal should be granted but the appeal against sentence should be dismissed. 38 BUDDIN J : I agree. 39 JAMES J : The orders will be as I proposed. ******** Last Modified: 03/16/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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