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15
Court of Criminal Appeal 14 March 2001

R v Paris

[2001] NSWCCA 83

Assault & violenceFirearms & weaponsPublic order & justice offences
CRIMINAL LAW

Citation: R v Paris [2001] NSWCCA 83
Court: NSW Court of Criminal Appeal
Date: 14 March 2001
Judge(s): Simpson J, Ipp AJA, Wood CJ at CL

Background

The respondent pleaded guilty to threatening to use offensive weapons with intent to prevent police from investigating a matter that reasonably called for their attention, an offence under s 33B of the Crimes Act 1900 carrying a maximum penalty of 12 years imprisonment. The charge arose from a protracted domestic dispute in Narooma in August 1999, during which the respondent staged a prolonged siege of his home.

The incident began when the respondent left notes suggesting he had taken his own life, prompting his wife to call police and ambulance services. When emergency responders arrived, the respondent produced a piece of timber and threatened ambulance officers, then emerged onto his verandah brandishing a knife at police. He retreated inside and the siege continued for approximately 25 hours, during which he threatened to shoot police, claimed to possess a shotgun (later found to be false), and had fashioned two improvised incendiary devices from bottles of flammable liquid fitted with wicks.

The respondent was ultimately arrested without further incident. At the sentencing hearing in the District Court, Goldring DCJ discharged the respondent under s 10 of the Crimes (Sentencing Procedure) Act 1999, requiring only that he enter into a two-year good behaviour bond. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the District Court erred in imposing a s 10 bond discharge rather than a more substantial sentence for an offence of this gravity
  • Whether errors in the sentencing process were established sufficient to justify the Court of Criminal Appeal intervening
  • Whether the court should exercise its residual discretion to decline to interfere with the sentence even where error was found
  • What the appropriate sentence was upon resentencing, having regard to both the seriousness of the offence and the respondent's subjective circumstances

Decision

The Court of Criminal Appeal found that a number of errors had been made in the sentencing process at first instance and that the s 10 discharge was not an appropriate outcome for an offence of this character. The offence was serious: it involved a lengthy armed siege, explicit threats directed at police, improvised explosive devices, and threats extended even to the children of a police negotiator.

Simpson J acknowledged the respondent's significant subjective circumstances, including a troubled childhood involving institutional care, an absence of prior criminal history, genuine community contributions, and ongoing health issues including depression, chronic pain, and a lung condition. At the time of the appeal, the respondent was working nine hours a day, five days a week with developmentally disabled people, receiving only food vouchers as payment.

Despite those mitigating factors, the Court concluded this was not a case where the residual discretion to dismiss a Crown appeal should be exercised. However, the Court also declined to impose a sentence that would result in the respondent returning to full-time custody, noting he had already served three weeks on remand and had demonstrated positive rehabilitation.

Ipp AJA agreed with Simpson J's proposed orders but added a brief observation about the operation of s 10(3) of the Crimes (Sentencing Procedure) Act 1999, noting that the criteria set out in that subsection are all to be taken into account when considering a s 10 order, though none is individually conclusive. Wood CJ at CL agreed with both.

Orders Made

  • The respondent is sentenced to imprisonment for two years.
  • Execution of the sentence is suspended for the whole of the two-year term under s 12 of the Crimes (Sentencing Procedure) Act 1999.
  • The respondent is released from custody on condition that he enter into a good behaviour bond for the full term of the sentence.
  • The respondent's conviction is formally entered.

Key Takeaways

  • A s 10 discharge (which results in no conviction being recorded) was found to be an inappropriate outcome for a serious offence involving an extended armed siege, explicit threats to kill police, and the possession of improvised incendiary devices, even where the offender had no prior criminal history and significant personal hardship.
  • The Court of Criminal Appeal confirmed that errors in the original sentencing process can ground a successful Crown appeal, but that establishing error does not automatically lead to full-time custody on resentencing.
  • Where a respondent has made genuine and documented rehabilitative progress between the original sentence and the appeal hearing, that material may be placed before the appellate court and taken into account both in the exercise of the residual discretion and in determining the resentence.
  • Under s 10(3) of the Crimes (Sentencing Procedure) Act 1999, all specified criteria bear on whether a s 10 order is appropriate; no single criterion is conclusive on its own.
  • Suspended sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999 represent a recognised intermediate option allowing a court to reflect the seriousness of an offence through a custodial term while avoiding the return of a respondent to actual imprisonment where the circumstances warrant it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33B (threatening to use offensive weapons to prevent police investigation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 12, 33

Cases:
- R v Hamilton (1993) 66 A Crim R 575
- R v Smith (1982) 7 A Crim R 253
- R v Myers (unreported, NSW CCA, 13 February 1990)