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Court of Criminal Appeal 24 October 2003

R v BELL

[2003] NSWCCA 305

Assault & violencePublic order & justice offences
CRIMINAL LAW APPLICATION FOR LEAVE TO APPEAL SEVERITY OF SENTENCE ASSAULT ON POLICE OFFICER PAROLE PERIOD

Citation: R v Bell [2003] NSWCCA 305
Court: NSW Court of Criminal Appeal
Date: 24 October 2003
Judges: Sheller JA, Sully J, Howie J

Background

The applicant pleaded guilty in the District Court to three counts of assaulting a police officer in the execution of duty, contrary to s 60(1) of the Crimes Act 1900, without occasioning actual bodily harm. The offences arose from a single incident on 2 March 2002, during which the applicant punched and kicked a police officer during an arrest and then threatened to spit hepatitis-infected saliva at him.

Judge Gibson sentenced the applicant to two years' imprisonment on the third count (the hepatitis threat), with a non-parole period of eighteen months, and fixed terms of twelve months each on the first two counts. All sentences were made concurrent, commencing 10 October 2002.

The applicant sought leave to appeal on the ground that the sentence was excessive. He argued, among other things, that the accumulation of his various sentences should have been recognised as a special circumstance justifying a reduction in the non-parole period relative to the total head sentence.

  • Whether the sentencing judge erred in failing to find special circumstances when fixing the non-parole period, given the applicant's accumulated period of continuous custody across multiple sentences
  • Whether the sentencing judge gave insufficient weight to the applicant's need for protective custody and his prospects for rehabilitation

Decision

The Court granted leave to appeal but dismissed the appeal, finding no error in the sentences imposed by Judge Gibson.

On the special circumstances argument, the applicant relied on the earlier Court of Criminal Appeal decision in R v Lyndon [2003] NSWCCA 152, in which an accumulation of sentences resulting in four and a half years of continuous custody was treated as a special circumstance. The Court found the present case factually distinguishable: the applicant had not been in continuous custody since his initial arrest. He was released on parole on 10 October 2002 and remained at liberty until 30 October 2002, when he was returned to custody on unrelated charges.

The Court also noted a practical limitation on any intervention. By the time of the appeal, the applicant had received a further fixed term of twelve months commencing 2 March 2003 for supply of a prohibited drug. Even if the Court had been minded to intervene, the best achievable outcome would have been release on parole on 1 March 2004, no earlier than under the existing sentences.

On the rehabilitation and protective custody grounds, the Court found no basis to conclude that Judge Gibson had failed to take those matters into account. Sheller JA noted the probation report's own observation that the applicant's conduct had deteriorated since March 2002, and concluded that the sentences were well within the available range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the mere accumulation of sentences does not automatically constitute a special circumstance warranting a reduced non-parole period; the factual circumstances of custody must be examined carefully.
  • Distinguishing R v Lyndon, the court held that a break in continuous custody, even a short one, can defeat an argument that accumulated sentences create a special circumstance.
  • Where a further sentence is imposed after the sentence under appeal, the practical ceiling on any appellate intervention becomes a relevant consideration in determining whether to interfere.
  • No error was established in the sentencing judge's treatment of subjective factors, including rehabilitation prospects and the applicant's protective custody status, where those matters were addressed in the sentencing remarks.
  • The Court of Criminal Appeal treated the hepatitis-threat count as representing the overall criminality of the incident, reflecting that psychological harm inflicted on a police officer can be regarded as more serious than the accompanying physical assaults.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 60(1) (assault on police officer in execution of duty without occasioning actual bodily harm)

Cases:
- R v Lyndon [2003] NSWCCA 152