District Court New South Wales Medium Neutral Citation: Lane v R [2014] NSWDC 102 Decision date: 06 May 2014 Before: Cogswell SC DCJ Decision: (1) Appeal allowed. (2) Local Court sentence of 1 month imprisonment set aside. (3) Good behaviour bond for 18 months imposed. Catchwords: CRIMINAL LAW - Appeal from Local Court sentence - intimidate police - isolated police station - purposes of sentencing - deterrence and denunciation balanced against rehabilitation - young offender - minor prior offences - first significant offence - first time facing gaol. Legislation Cited: Crimes Act 1900 (NSW) s 60(1). Crimes (Appeal and Review) Act 2001 (NSW) s 20(2). Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 21A. Category: Principal judgment Parties: Troy Lane (appellant) Regina (respondent) Representation: Solicitors: C Dane, Aboriginal Legal Service (NSW/ACT) Limited (appellant) T Hennessy, Office of the Director of Public Prosecutions (respondent) File Number(s): DC 2013/00188349 Judgment 1This is a case where the paperwork comprises only a few pages and the prosecution and the defence are in essential agreement about the outcome. But the case raises some serious issues for a sentencing judge. What will not be recorded in the transcript is that I have spent some minutes in silence on the Bench considering what my options are and what I should do. It raises the issues of the tension which always exists for a sentencing judge between the need for deterring offenders from committing further crimes; deterring other members of the community from committing crimes; protection of the community and those who are at the front line of protecting the community; rehabilitation; as well as the perennial question of mercy for a judge to take into account. This is the stuff of justice which a judge has to administer. Some cases, although quite short, can raise these fundamental issues very starkly. 2The case I have to decide is an appeal. It is an appeal by Troy Lane. He was given a month gaol sentence by Magistrate Grogan sitting at the Local Court at Walgett on 25 September 2013. Troy Lane had pleaded guilty to a crime called intimidating police. That is an offence under s 60(1) of the Crimes Act 1900 (NSW) and Parliament has fixed a maximum of 5 years imprisonment to that crime. The jurisdictional limit of his Honour, however, was 2 years. The seriousness of the offence will become apparent once I start describing it. 3It was Troy Lane's 20th birthday. He lived in Goodooga. He was celebrating and had had too much to drink. He went to the local hotel and the barman saw that he was too drunk and denied him service. He tried to climb over the bar. The barman sensibly told him that he would call the police. He got upset and said "Fuck this, I'm going down there." 4Troy Lane then left the hotel and walked down to the Goodooga Police Station. Senior Constable Bennett and his partner were inside the police residence at the police station. They heard Troy Lane yelling outside. They saw him standing about two metres in front of the house with his shirt off and his hands raised. He was actually standing in the front yard of the police residence. He was yelling out "Graham you cunt, come out here and fight me, you cunt. I heard you want a piece of me, well here I am you cunt so come out and fight me". He looked very agitated and kept kicking and punching the Colorbond fence next to the police residence. He tried to get in but could not because of a bolt. He got more upset at that and started yelling out again loudly "Come on you cunt, get out here." He got hold of both gates and shook them, he kicked them and punched them. 5The facts agreed between the prosecution and the defence, which are part of exhibit A, then say that the "force of the accused shaking these gates so violently could be felt inside the nearby police residence." He had another attempt to get through a gate but fortunately that was padlocked. Senior Constable Bennett left the police residence and ordered Troy Lane to leave the private police premises immediately. Troy Lane's response was to raise his fists in a boxing stance. He continued to threaten and intimidate the police officer. The facts record that he was "yelling in a loud aggressive and uncontrollable manner" further abusive words which were "Ya nothing but a fucking cunt, I'll fight you, come out here you white copper cunt". Bravely, Senior Constable Bennett called out, "How dare you come here and threaten me at my private residence, now leave or you'll get locked up". Troy Lane continued to yell at and threaten the police officer as well as punching and kicking the fence. Fortunately, a few moments later a car arrived. Obviously they were men who knew Troy Lane. They calmed him down and pulled him away. 6The facts go on to record that as "a result of this incident, the partner of Senior Constable Bennett was visibly shaken and upset by the threatening nature of the accused and the prolonged attempts he made to gain access to the private police residence." Troy Lane had damaged the fence of the police residence. Although compensation is asked for, there is no detail before me for such a claim and apparently not before his Honour, the learned Magistrate. 7The facts record that it is "the view of Senior Constable Bennett that it is a gross display of disrespect that the accused act in a manner he acted towards Senior Constable Bennett and his partner by attempting to gain access to the private police residence. It was evidence that if access was gained, the accused would assault the sole police officer who was off duty at this time". Senior Constable Bennett was quite right in expressing that view. It was not only a gross display of disrespect but a serious crime. 8There are reasons for Parliament enacting legislation for crimes such as this. Police officers form the frontline of protection for other members of the community. It is the police officers who put themselves in the line of fire so that general members of the community can feel safe and secure and get about their own business. This must be particularly so, and this is one of the factors which concerns me most, in an isolated police station in a country town. Senior Constable Bennett was there, off duty, and with his partner. Despite this he was threatened and intimidated over an extended period of time. 9I at first thought that s 21A(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) would apply as an aggravating factor but Mr C Dane, who appears for Troy Lane before me, corrected me appropriately because the offence itself concerns Parliament ensuring the protection of a police officer. In other words, the maximum penalty which has been fixed has taken into account that the offence is committed against a police officer. 10I can quite understand his Honour imposing a sentence of 1 month imprisonment. The maximum is 5 years which would be for the most extreme case. On one view, a sentence of 1 month might be regarded as lenient. The available limit of 2 years to his Honour is a jurisdictional limit. I still must look at the seriousness of the offence by reference to the maximum of 5 years which Parliament regards as appropriate for the most serious kind of offence of this nature. 11It has been said many times that one of the roles of a sentencing court is to impose penalties which will back up and support police officers in the role which they perform in protecting the community. That is why I can understand the sentence imposed. Such a sentence is important for not only stopping Troy Lane from doing such a thing again but would hopefully be taken into account by others who might think of committing the same offence. It is also a sentence which would serve to support the role of the police officer. 12On the other hand - and this is where the tension arises - I am a sentencing judge and it is my job to take into account not only the seriousness of the crime but the circumstances of the individual who committed it. Troy Lane literally turned 20 on that day. He was a young man. When I look at his criminal record it contains only two offences; one was a traffic offence and the other was possessing a prohibited drug. He was fined for both offences. He comes before the Court as a young man who has no history of violent offending or assaults against the police whatsoever. 13Mr Dane who appears for Mr Lane drew my attention to the need for a sentencing judge to take into account rehabilitation as well as the need to punish an offender. That is especially so when dealing with younger people. The Courts well know that young men who are yet to reach maturity and affected by alcohol can behave in very offensive ways. Not only was Troy Lane's behaviour very offensive but it was a serious crime committed against a person charged with a duty of protecting the community that he lived in. 14A judge always pauses and then pauses again before sending a person into full time gaol for the first time. That causes me great concern. Although on one view, Troy Lane deserves a short sharp stint in full time custody because of what he did on that night, other factors point against that, namely, his own rehabilitation and the obvious fact that sending him to gaol means that he has a gaol sentence on his record which a future judge or magistrate would take into account. It also would expose him to influences which may, at his young age, lead him in the wrong direction in his life. He is apparently employed or obtains employment as a shearer when it is available. 15I had thought that one option would be to suspend the 1 month sentence imposed by his Honour. Ms T Hennessy who appears for the respondent Director of Public Prosecutions correctly pointed out that it would leave too little time for supervision and the rehabilitation that Troy Lane obviously needs so far as mixing alcohol and his bad behaviour. I then thought of perhaps warning Mr Troy Lane that I propose to increase the sentence to 6 months or more and then imposing a suspended sentence. That option had many attractions but it was still a prison sentence which a future judicial officer may take into account. 16I have to bear in mind that this is the first significant offence which Troy Lane has committed and hopefully the last. To receive a prison sentence for his first offence is a significant step for a judicial officer to take. Both Ms Hennessy and Mr Dane have suggested a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act. They point to the fact that Troy Lane could be supervised and get assistance with issues such as alcohol and anger management. That option has a lot of appeal so far as Troy Lane's rehabilitation is concerned. Regrettably, it has very little appeal so far as punishment is concerned. Troy Lane must understand that he has committed a very serious crime. 17Once again, I am confronted by the difficulty of imposing a sentence and suspending it or giving him a good behaviour bond. On balance, because of his young age and because of the fact that this is his first significant offence, I am going to favour imposing upon him a good behaviour bond. I am going to allow his appeal and give him a bond instead of a prison sentence. 18The formal orders which I make are these. Under s 20(2) of the Crimes (Appeal and Review) Act 2001 (NSW), I determine this appeal against sentence by setting aside the sentence. Instead of that sentence and instead of imposing a sentence of imprisonment, I make an order directing Troy Lane to enter into a good behaviour bond for 18 months. The good behaviour bond will have the following conditions: (1)That he be of good behaviour. (2)That he notify the Registrar of this Court of any change in his residential address. (3)That he attend Court if he receives a notice to do so. (4)That he accepts supervision from the Community Corrections Office and any reasonable recommendations and directions from officers at that Service particularly with regard to anger management and alcohol issues. For that purpose he should report to the Community Corrections Office at Coonamble on or before this Friday, 9 May 2014. HIS HONOUR: Stand up, Troy Lane. 19You have won your appeal and I have heard what Mr Dane has said on your behalf but you are so lucky to win your appeal. I think the Magistrate in a lot of ways did the right thing to send you to gaol for what you did to that police officer whose job is to look after the community and you scared the wits out of him and his partner and I am not surprised that you got the gaol sentence. But because of what Mr Dane said and Ms Hennessy acknowledged - your young age and the fact that you do not have any serious convictions, which is a credit to you - I am giving you a good behaviour bond for 18 months. You have got to stay out of trouble. That means no drink driving, no brawling, no dope or cannabis or stuff like that being found because if you breach your good behaviour bond you come back before me and I am the one who will remember what you did. If you change your address you have got to write or email to the Court here and tell them so they know where you are and if you get a notice in the mail to come to Court, you turn up and you let Community Corrections Office, the old Probation and Parole, look after you, manage you. Mr Dane will tell you where to go. You have got to go there by Friday and you let them supervise you so far as grog questions are concerned and your behaviour and anger management because the combination of the grog and your behaviour is why you are standing here in front of me and very lucky not to be in gaol. Do you understand that? All right. I expect you will stay out of trouble from here on by the sounds of it and I hope you have received a big fright because of what you did. Have you apologised yet? APPELLANT: Yes, I have apologised to him in the Local Court. HIS HONOUR: You have, say that again. APPELLANT: I apologised to him at the Court-- HIS HONOUR: Thank you, good that is appropriate. Mr Dane will take you to the Registry now and sign you up for the bond. Good luck. APPELLANT: Yes, your Honour, thank you. ********** 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. Decision last updated: 18 July 2014