Citation: Police v Hanshaw [2006] NSWLC 53
Court: Local Court of New South Wales (Inverell)
Date: 26 May 2006
Judge(s): Magistrate G Lerve
Background
A neighbourhood dispute in Inverell on 10 September 2005 brought police into contact with the offender, who became increasingly aggressive and confrontational toward attending officers. The offender directed a prolonged and sustained torrent of threatening and abusive language at Constable Monckton, challenged him to fight, made a swinging action toward him as though to strike, and threatened to assault him when off duty. The situation became sufficiently serious that Constable Monckton produced his oleoresin capsicum spray (commonly known as pepper spray), though he did not deploy it due to concerns about being overpowered by bystanders.
The offender was charged with attempting to intimidate a police officer in the execution of duty, an offence under section 60(1) of the Crimes Act 1900. He entered a plea of guilty and appeared for sentence at Inverell Local Court. A full Pre-Sentence Report was obtained before sentencing proceeded.
Legal Issues
- What was the objective seriousness of the offending, having regard to the guideline judgment on assault police?
- What weight should be given to the offender's subjective circumstances, including medical issues and personal history?
- Whether a sentence other than full-time custody was appropriate, given the nature of the conduct.
- What sentencing alternatives were available given the absence of home detention and periodic detention facilities in the Inverell region.
- Whether special circumstances existed to justify a non-standard ratio between the non-parole period and the balance of term.
Decision
Magistrate Lerve assessed the offending as objectively serious. Although the charge was attempting to intimidate police (rather than assault), the Magistrate considered the substantive offence of intimidation would have been made out on the facts, given the sustained threats, the confrontational physical behaviour, and the necessity for Constable Monckton to draw his capsicum spray. The prosecution's suggestion that the charge of attempted intimidation was more serious than assault police was noted, though the Magistrate did not expressly accept that characterisation.
The Magistrate applied the guideline judgment on assault police (Attorney General's Application (2002) 137 A Crim R 196) and the sentencing principles discussed in cases including R v Taouk, R v Zamagias, R v Tolley, and Dinsdale v The Queen. The court found that the conduct warranted denunciation and that imprisonment was the only appropriate sentence. However, the offender's subjective case was characterised as strong, with significant weight placed on medical issues (described as relating to impulse control) and the broader community benefit of requiring the offender to undertake counselling and treatment.
The Magistrate was constrained in the available sentencing options by the absence of home detention and periodic detention services in Inverell. Acknowledging this as a systemic issue affecting those living outside major centres, the court concluded that a wholly suspended sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999 was appropriate. Special circumstances were found to exist, principally because of the offender's medical issues and the need for ongoing supervision, which justified a longer balance of term relative to the non-parole period.
Orders Made
- The offender was convicted of attempting to intimidate a police officer.
- Sentenced to a non-parole period of 12 months and a balance of term of 8 months, making a total sentence of 20 months.
- The sentence was wholly suspended on the offender entering a bond of 20 months under section 12 of the Crimes (Sentencing Procedure) Act 1999, conditioned on:
- Good behaviour;
- Notifying the Registrar of any change of residential address;
- Submission to the supervision and guidance of the Probation and Parole Service, including compliance with directions relating to counselling and treatment for impulse control and conflict resolution.
Key Takeaways
- A sentence of imprisonment, even if wholly suspended, remains appropriate for sustained and threatening conduct directed at police in the execution of their duty, even where the offender has a strong subjective case.
- The guideline judgment on assault police applies to inform sentencing for intimidation of police under section 60(1) of the Crimes Act 1900, which carries equivalent maximum penalties for both assault and intimidation as alternatives within the same provision.
- Geographic remoteness from detention facilities is a relevant sentencing consideration in NSW, with home detention and periodic detention practically unavailable to offenders outside Sydney and major provincial centres, leaving suspended imprisonment as the only non-custodial alternative in some cases.
- Special circumstances justifying a departure from the standard non-parole to balance-of-term ratio can be established where an offender's medical condition and the need for supervised community treatment are identified as significant factors.
- Attempting to intimidate police, even where the substantive offence might also have been charged, remains a serious matter warranting denunciation as a primary sentencing purpose.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), section 60(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 9, 12, 37
Cases:
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (Guideline Judgment on Assault Police) (2002) 137 A Crim R 196
- Dinsdale v The Queen (2000) 74 ALJR 1538
- R v Doan (2000) 50 NSWLR 115
- R v Schofield (2002) 138 A Crim R 19
- R v Taouk (1992) 65 A Crim R 387
- R v Tolley [2004] NSWCCA 165
- R v Zamagias [2002] NSWCCA 17