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Court of Criminal Appeal 28 May 1999

R v LOACH

[1999] NSWCCA 128

Assault & violenceDrugs
CRIMINAL LAW SENTENCING CRIMINAL LAW SENTENCING WHETHER SENTENCES IMPOSED EXCESSIVE.

Citation: LOACH v R [1999] NSWCCA 128
Court: NSW Court of Criminal Appeal
Date: 28 May 1999
Judge(s): James J, Barr J, Carruthers AJ

Background

The appellant pleaded guilty in the District Court to three offences arising from two separate violent incidents in July 1997, with a fourth offence taken into account. On 31 July 1997, police attempted to search him in a shopping arcade in Scone after suspecting he was in possession of heroin. A violent struggle followed in which the appellant punched a detective repeatedly, then broke free and fled. Police later located a small quantity of rock heroin.

The following day, four officers found the appellant in a shed on a rural property near Wingen. When he saw the officers, he moved toward a knife on the floor. Another violent struggle ensued before he was subdued and taken into custody. Several officers sustained injuries across both incidents.

Acting Judge Nader DCJ sentenced the appellant to an effective total of three years imprisonment, comprising a minimum term of 18 months and an additional term of 18 months. The appellant sought leave to appeal against sentence, having abandoned his earlier appeal against conviction.

  • Whether the sentencing judge took irrelevant material into account, specifically by referring to injuries sustained by an officer not named in any charge and by treating the facts of the second incident as constituting an assault rather than resistance
  • Whether the sentencing judge erred by failing to give proper consideration to non-custodial sentencing alternatives
  • Whether the total effective sentence was excessive and fell outside the range of the sentencing discretion properly available

Decision

On the first ground, Barr J held that the sentencing judge had not taken irrelevant material into account. The reference to the injuries sustained by Constable Conway, who was not named in any charge, was relevant to the assessment of the degree of violence involved in the offending. The sentencing judge was entitled to examine all injuries to gauge that violence, and there was no finding that Constable Conway's injuries were attributed to the appellant as a separate wrong.

Barr J also rejected the submission that the structure of the accumulated and concurrent sentences revealed that the judge had sentenced the appellant for an assault with which he was not charged. The duty of a sentencing judge dealing with multiple offences is to assess total criminality and impose a sentence that reflects it, which is precisely what Acting Judge Nader did. His Honour expressly stated that his objective was a total effective sentence representing the totality of the criminal conduct.

On the second ground, the Court found no substance in the complaint that non-custodial alternatives were overlooked. The remark that a non-custodial sentence was "out of the question" indicated the alternatives had been considered and rejected as inappropriate, not that they had been ignored. The pre-sentence report had been read shortly before sentence was delivered.

On the question of manifest excess, Barr J noted that the sentencing statistics, while providing useful reference points, did not demonstrate that the total sentence was outside the available range. The offending involved two separate episodes of serious violence toward police officers in the execution of their duty, the second occurring after the appellant had time to reflect. When assessed as a matter of impression, and having regard to the sentencing judge's extensive experience, the Court found no basis to interfere.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is entitled to refer to injuries sustained by officers not named in charges where those injuries are relevant to assessing the overall degree of violence in the offending.
  • The principle of totality requires a sentencing judge dealing with multiple offences to structure accumulated and concurrent sentences so that the total effective sentence reflects the overall criminality, rather than treating each charge in isolation.
  • Where a sentencing judge expressly dismisses non-custodial options as inappropriate, this indicates the alternatives were considered, not that they were overlooked.
  • Sentencing statistics for single counts provide a useful reference point but carry limited weight where a defendant is being sentenced for multiple related offences arising from distinct criminal episodes.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an appellate court will not interfere with a sentence merely because it is substantial, provided it remains within the range of the sentencing discretion reasonably available on the facts.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act (NSW) (provisions relating to the taking of additional matters into account on sentence)

Cases cited:
No cases were cited in the portions of the judgment provided.