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Court of Criminal Appeal 4 July 2012

Wykamp v R

[2012] NSWCCA 145

Public order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Wykamp v R [2012] NSWCCA 145
Court: Court of Criminal Appeal, New South Wales
Date: 4 July 2012
Judge(s): McClellan CJ at CL, Price J, Button J (all agreeing)

Background

The appellant pleaded guilty in the District Court at Orange to one count of threatening to injure a police officer with intent to hinder the lawful detention of another person while in company, contrary to s 33B(2) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 15 years' imprisonment. The sentencing judge imposed a total term of 18 months with a non-parole period of 12 months.

The offence arose on the night of 26-27 December 2010 in the small town of Eugowra, during a flood emergency. The sole local police officer had arrested the appellant's son for drink driving and placed him in a caged police vehicle. The appellant, along with a group of approximately ten others, confronted the officer and engaged in threatening and intimidating behaviour until the officer, fearing for his safety, released the prisoner.

The appellant sought leave to appeal against the sentence, contending primarily that the full-time custodial term was manifestly excessive. He also challenged the sentencing judge's finding that he had not demonstrated genuine remorse or contrition.

  • Whether the sentence of 18 months' imprisonment (with a 12-month non-parole period) was manifestly excessive in all the circumstances
  • Whether the sentencing judge erred in finding that the appellant lacked genuine remorse and victim empathy

Decision

On the question of remorse, Button J examined the evidence closely. The appellant had said "this is a fucking joke" upon arrest, had not fully admitted his conduct in his police interview, and the pre-sentence report recorded that he justified his behaviour as defending his son. Although the appellant gave evidence of regret at the sentencing hearing, the sentencing judge found that his contrition was directed at the community consequences of his actions rather than at the harm caused to the police officer. The Court of Criminal Appeal found no error in that assessment.

On manifest excess, Button J reviewed three comparable sentencing decisions and found that none of them led to the conclusion that the sentence was outside the available range. The Court acknowledged that a suspended sentence may well have been within the sentencing judge's discretion and may not have attracted a Crown appeal. However, the applicable test on a sentence appeal is whether the sentence actually imposed bespeaks error, and that is a high hurdle for an appellant to clear.

The Court emphasised the seriousness of the offence. A police officer was surrounded and overawed by a threatening group in circumstances of geographical isolation, with the result that a lawfully detained person was released. Button J found that, although some of the more explicit threats came from others in the group rather than directly from the appellant, the appellant's own conduct was designed to intimidate and it achieved that purpose.

The Court accepted the appellant's powerful subjective circumstances, including the stress of the flood emergency, his community standing, and his lengthy service as Deputy Captain of the local Bush Fire Brigade. Those factors were weighed against the gravity of the offending. In the result, the Court found no error in imposing a full-time custodial sentence of the length imposed, and dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentence of 18 months' imprisonment for threatening a police officer with intent to hinder a lawful detention while in company was not manifestly excessive, even where the offender was a person of otherwise good character with significant community ties.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the test on a sentence appeal is whether the sentence actually imposed bespeaks error in the exercise of discretion, not whether some other sentence would also have been open.
  • A sentencing court is entitled to remain sceptical about remorse where the evidence suggests an offender's contrition is directed at personal consequences rather than at the impact of the offence on the victim.
  • Geographical isolation of a police officer confronted by a threatening group is a factor that heightens the gravity of an offence under s 33B(2) of the Crimes Act 1900.
  • The fact that the Crown did not press for a full-time custodial sentence at first instance did not constrain the sentencing judge's discretion, nor did it assist the appellant on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33B(2)

Cases:
- R v Hamilton (1993) 66 A Crim R 575
- R v Sainsbury [2000] NSWCCA 496
- R v William John Murray [2008] NSWDC 285