No. 146 of
2004
CRIMINAL LAW - Sentencing - Appeal by Director of Public Prosecutions -
Principles applicable to appeals by Director - Industrial
dispute - Deliberate,
carefully planned affray at two industrial premises - Common assault -
Intentionally and unlawfully causing
damage to property - Whether total
effective sentence of 12 months' imprisonment wholly suspended and fine of
$10,000 is manifestly
inadequate - Lack of remorse - Deliberate refusal to
submit to sentencing judge that offender remorseful - No error by sentencing
judge in finding of lack of remorse - Elements of offence of affray - Affray on
private premises - Victims of affray likely to be
terrified for own
safety - Risk of reoffending - Offending not in course of genuine
industrial dispute - Harm caused at premises
premeditated.
- The Director of Public Prosecutions ("the DPP") has appealed
against sentences imposed in May 2004 on Craig John Johnston after
he pleaded
guilty to a presentment containing four counts, two of affray, one of assault
and one of intentionally and unlawfully
damaging property. On count 1, the
first count of affray (for which a maximum term of five years' imprisonment is
prescribed) the
respondent was sentenced to six months' imprisonment. On count
2, that of common assault (for which the same maximum term is prescribed),
he
was sentenced to three months' imprisonment. On count 3, the second count of
affray, he was sentenced to eight months' imprisonment.
Finally on counts 4,
that relating to the damaging of property (for which a maximum term of ten
years' imprisonment is prescribed),
he was sentenced to four months'
imprisonment. Orders were made that three months of the sentence imposed on
count 1 and one month
of the sentence imposed on count 4 should be served
cumulatively on the sentence imposed on count 3 and on each other. In
consequence
there was a total effective sentence of twelve months'
imprisonment, and the judge ordered that the sentence be wholly suspended
for a
period of three years. In addition his Honour ordered that the respondent pay
a fine of $10,000, in respect of all offences,
payment of which was stayed for
six months. Finally, a compensation order was made in the sum of $44,560.18 in
favour of Skilled
Engineering Pty. Ltd., the company whose property was damaged
in the course of the events that were covered by count 4.
- From these sentences and orders the DPP has appealed on the
sole ground that the sentence imposed is "manifestly inadequate" but
refers in
his particulars to contentions that the learned judge failed adequately to
reflect the gravity of the offences, that he
failed to take into account or
sufficiently to take into account aspects of general and specific deterrence,
that he gave too much
weight to mitigatory factors, that he gave insufficient
weight to lack of remorse, that he gave insufficient weight to the serious
effects upon the victims of the offences, that he gave insufficient weight to
the planning and premeditation of the offences and,
finally, that he gave
insufficient weight to the fact that there was a "real risk" in the judge's
stated view that the respondent
would in the future become "involved in further
offending of this type".
The facts giving rise to and surrounding the commission
of the offences
- Before examining further the ground and particulars relied upon
and the opposing contentions put in relation to this appeal, it
is both
desirable and necessary to set out some detail of what occurred on the day in
question, 15 June 2001, when all four offences
took place. They grew out of an
industrial dispute, conceded by the prosecution to have been genuine, between,
on the one side,
two unions, the Australian Manufacturing Workers Union
("AMWU"), of which Mr Johnston was the Victorian State Secretary, and the
Electrical Trades Union, and, on the other side, Johnson Tiles Pty. Ltd.
("Johnson Tiles") and its management. Somewhat over a month
earlier Johnson
Tiles announced that it had decided to reorganise its operations and in
particular to make redundant some 80 employees
and staff, all with the
intention of "out-sourcing" the work performed by those employees to persons on
the books of another company,
Skilled Engineering Pty. Ltd. ("Skilled
Engineering"), which Johnson Tiles intended should provide casual or part-time
staff in their
stead. There had been a number of meetings between the unions
and the companies but at one of them Mr Johnston said there would
be "trouble"
and that the AMWU would set up a picket line outside Johnson Tiles. On 8 June
2001 29 maintenance workers were
in fact made redundant and immediately
thereafter a picket line was put in place. A few days later a further threat
was made by
the respondent to Mr Triggs, the State Manager of Skilled
Engineering, and on 14 June Mr Johnston told Mr Tony Fitzgerald, the National
Industrial Relations Manager of Skilled Engineering, that they would "just have
to kick the shit out of Skilled then". It was on
the same day that members of
the union had a meeting, which the learned judge was satisfied that Mr Johnston
did not attend, but
at which they agreed on a plan to invade the Johnson Tiles'
factory at Bayswater. There they would try to identify staff from Skilled
Engineering who were taking the place of the sacked maintenance workers, and
then to photograph them as being "scabs" and put their
photographs on what was
to be called a "shame board".
- Although Mr Johnston had not been present at that time, the
learned judge was satisfied beyond reasonable doubt that by the following
morning he was well aware of the plan to enter Johnson Tiles' premises and to
photograph the people out-sourced by Skilled Engineering.
In the event, by the
time he addressed those union members who had assembled outside the factory at
7.30 a.m., he had a balaclava
and a camera for the purpose of the incursion.
Moreover, in the course of his address, he knew enough of the plan to tell the
unionists
they would go in a side entrance and would then "take photos of the
scabs". Thereafter, a considerable number of the group, including
Mr Johnston,
put on their balaclavas and went to Johnson Tiles' north gate where
bolt-cutters were used to cut the chain and open
the double gates to the
factory. Although the judge was satisfied that there was no agreement
beforehand to damage property or to
assault persons in the factory, we are by
no means so confident of the latter finding because of the union members' plan
to take
the photographs and the manner in which that was ultimately achieved.
The workers from Skilled Engineering were singled out and some
of them were
forced to have their photographs taken against their will. Some were held
against a wall and others had their faces
forcibly lifted to face a camera;
others had their hair pulled back so their faces could be photographed. Some
of them were pushed
to the ground, abused verbally and otherwise pushed around.
Although wearing a balaclava the respondent was identified by one of
the
victims by reason of his voice and his red whiskers protruding from underneath
the balaclava. The judge was satisfied that on
occasions the respondent took a
number of the photographs. His Honour likewise found that the staff from
Skilled Engineering were
subjected to "a terrifying experience by aggressive,
abusive men", who used threatening language and described some of them as
"fucking
scabs". In the course of this melée, although not planned in
the first place, some damage was caused by the pulling out of
electrical wires
and the smashing of tiles, leaving total damage estimated at some $4,200. All
this was the subject of count 1,
the count of affray.
- In the course of these events Mr Johnston threatened one of
those present, Claude Ceccomancini, who was a manager with Skilled Engineering
present on the day. While attempting to take a photograph of him, Mr Johnston
confronted him and shouted: "I know who you are,
you are a fucking dead man".
He repeated the threat adding that he knew where he lived. Not surprisingly Mr
Ceccomancini was frightened
by these threats. The threatening acts causing
this immediate fear were the subject of count 2, a count alleging common
assault
upon Mr Ceccomancini. It is, however, not being contended that the
circumstances arose outside the course of the affray, except
to the extent that
specific fear was caused by the nature of the threats. Nor has it been
suggested that the sentence of three months
on that count is necessarily
manifestly inadequate, nor that it should be dealt with otherwise than by a
wholly concurrent sentence.
- These incidents at the Johnson Tiles' factory at Bayswater
seemed to come to an end shortly after Mr Johnston had said to the group:
"Is
everyone right to go?" He then participated in giving directions to union
members to go to Skilled Engineering, whose premises
were in Box Hill. They
met at the Whitehorse Plaza at about 9 a.m. The respondent seemed still to be
one of those in charge as
he again asked if all were ready and the group then
moved towards Skilled Engineering's premises. Most of the group went to the
front door and forced an entry to the premises, which was an office building
housing mainly administrative staff. Although some
union members were still
wearing balaclavas, Mr Johnston had taken his off by the time he entered. On
this occasion the group were
not interested so much in the individuals present
as in the carrying out of what the judge called an "unbridled rampage" inside.
Filing cabinets were upturned, computers were thrown to the floor and damaged,
files and papers were strewn around, pictures were
taken off the walls and
smashed, a drinking fountain was torn from the wall, furniture was up-ended and
several glass doors or partitions
were broken. At one stage a fire
extinguisher was set off spraying acrid powder into the air over some of the
staff present. The
staff were left in what has been described as "stunned
amazement" but eventually moved towards the foyer area. Several of them were
upset and scared and one in particular, who was five months pregnant at the
time, was particularly scared because she believed she
was breathing in the
contents of the fire extinguisher and was worried as to its possible effect
thereafter on her child. Several
staff needed counselling later. The total
amount of damage was calculated as amounting to $44,560.18, which was the
amount awarded
in the compensation order. Ultimately the union members left.
Again it seemed that Mr Johnston was in charge as he was heard to
say: "That's
it, we're out of here", wishing the unhappy staff at Skilled Engineering "a
nice day". Shortly afterwards he again
telephoned Mr Triggs asking him
whether he was ready to negotiate, although pretending that he had had a cold
and had just woken
up.
- From these matters the learned judge was able to conclude
beyond reasonable doubt that Mr Johnston was -
"... the leader of the invading group in respect to each incident.
I am satisfied beyond reasonable doubt that you were personally
involved in
both incidents and that you were in a responsible position as Secretary of the
Union and in that position you were, had
you wished, in a position to stop what
was going on. You did nothing to stop what was going on at either premises.
Indeed, I am
satisfied beyond reasonable doubt that you encouraged and incited
a number of activities at each location."
Personal circumstances
- It should be understood that Mr Johnston did not admit
responsibility or participation in these events until a very late stage in
the
proceedings, indeed on the day on which his trial was listed for hearing. When
he was first arrested a few weeks after the events
and interviewed by the
police on 6 July 2001, he remained mute throughout the interview. He was not
the only person charged in relation
to these events and nearly a year before
his plea, in July 2003, some sixteen other members of the union had pleaded
guilty to either
one or two counts of unlawful assembly.[1] The same judge heard the pleas of these other union
members, none of whom seems to have had prior convictions, and he adjourned
the
proceedings in all of the cases upon an undertaking by the offender to be of
good behaviour for periods varying between twelve
and thirty months, and
imposed fines on them at the same time varying from $1,000 to $3,000. It
should be noted that detailed argument
subsequently took place on
Mr Johnston's plea before his Honour that the rules as to parity should be
applied so as to reduce
significantly the sentence that might properly be
imposed on him. At one stage counsel even suggested that the issue of parity
should
be resolved first before the rest of the plea was heard, but the learned
judge rightly rejected that submission and heard a plea
based on all relevant
matters. However, in his sentencing reasons his Honour rejected the parity
arguments, saying that they had
no foundation and putting forward some eleven
different factors for rejecting them, including the nature of the unlawful
assembly
in each case and the fact that Mr Johnston both incited and was the
leader of each invasion onto the subject premises. Rightly,
in our opinion, no
such argument was pressed at the hearing of this appeal.
- In the absence of a plea last year, a contested trial was
listed for May of this year. On the date fixed for the trial the respondent
pleaded to a slightly modified presentment in which a count of issuing threats
to kill was reduced to the count of common assault,
but it was not suggested in
argument before this Court that the plea had been delayed for that reason.
Naturally, his delay in pleading
guilty cannot be considered as an aggravating
factor, but it may well, as will be seen later, be treated as a reason for
treating
the mitigatory effect of his plea as in part lessened.
- Although the learned judge said that Mr Johnston had "no
significant prior convictions", that is correct only to the extent that
none of
the offences could be characterised as very serious. They all, however, had
some element of a breach of public order. Of
the eight matters admitted by
him, which were dealt with on four previous occasions in Magistrates' Courts,
the first related to
events in October 1993 leading to convictions for
"discharging a missile to injure another and for depositing litter", for which
he was fined. Of these convictions Mr Johnston said, in a less than
informative unsworn statement handed up at the plea hearing,
that they arose
out of a throwing of an egg at the former Premier which hit a fellow worker but
that he "wore this charge", whatever
that may connote. In November 1995 he was
convicted and fined for possession of a dangerous article, which in the same
statement
Mr Johnston said was a chair leg found under a seat in his car, but
one may doubt that that was the whole story. Thirdly, he admitted
that in 1996
he had been convicted of using indecent language in a public place, resisting a
police officer in the execution of his
duty, hindering police and refusing to
give his name and address, for each of which he was fined $250. He alleges
that these were
"payback for [a] picket line", which had taken place earlier in
the day and which had led to a heated exchange that night. Again
one may doubt
that what appears in the unsworn statement sets out the whole of the
circumstances. Finally, he admitted to having
been convicted in October 1997
for trespassing on Commonwealth land and being fined for that offence, which he
said related to a
"trespass at a demonstration in Canberra". Whatever be the
full circumstances, it was again a public order offence, albeit of a
minor
kind.
- As to other matters personal to the respondent, he was born on
7 November 1956 and thus was 44 years old at the time that the offences
took
place. He was then, as already stated, the State Secretary of his union. (He
was 47 when he was sentenced this year.) From
his statement one may gather
that he had had a "pretty happy, ordinary childhood", during which his father
had worked hard, first
as a builder and then in a number of office jobs, while
his mother had worked part-time in a kindergarten. The family had moved
from
Maribyrnong to Balwyn from which he attended Trinity Grammar School from the
age of about 11 until he had left school after
completing Year 11 at about the
age of 16 or 17. There can be no doubt from what the respondent himself says
that his parents were
determined to provide for him well and to give him a good
education.
- After leaving school Mr Johnston went to a technical college
for a short time, and then took a number of short-term jobs eventually
leading
him to working in metal fabrication both at factories and on construction sites
up to about 1980. He was then engaged by
Commonwealth Aircraft Corporation as
an aircraft welder, where he became one of a number of shop stewards and
eventually a member
of the State Council of the AMWU. After being made
redundant by that corporation, he worked briefly on construction sites before
commencing full-time work for the AMWU in 1990. He was a union organiser for a
number of years, before being elected as Assistant
State Secretary in 1998 and
as State Secretary in 2000.
- The respondent was married in 1980 and the three children of
the marriage are now young adults. Two daughters still live with him
but he
separated from his wife in 1994 and was later divorced. A good relationship
with his former wife has led to his making a
substantial contribution to the
children's upbringing that continues to the present day. The learned judge
found that the respondent
had contributed to the community in a number of ways,
in particular in activities associated with the Keilor Little Athletics Club
and the Keilor Park Football Club. His Honour likewise found that he devoted
most of his working life to the union movement for
the betterment of its
members and that he had contributed to the community by fundraising for many
social issues, in particular relating
to East Timor; that he had sacrificed
his own financial interests to achieve his ambitions to help unionists and
others less fortunate
than him; that he had paid the price of personal
relationships in order to achieve his objectives; that he had made other
substantial
contributions to the community and that he lived a modest life
consistent with his exercising responsibility as a single parent for
the
upbringing of his children. A considerable number of people regarded him as a
worthy citizen and there were a significant number
of character references
tendered on his behalf. These matters were each treated as factors in his
favour by the learned judge, but
his Honour added, in addition, several other
factors, such as his plea of guilty, his absence of "significant" prior
convictions,
that there were no other criminal matters pending from 2001 to the
present day, that the offending occurred "in the course of a genuine
industrial
dispute" (although we would cavil at the use of the words "in the course of")
and that, as is the fact, he had lost his
position as State Secretary of the
AMWU as a result of his criminal offending. One should add, although it was
not suggested it
was relevant to the sentence imposed by the judge or to the
present appeal, that he has subsequently lost his membership of that
union for
other reasons.
- Otherwise both the facts surrounding the offences and the
circumstances relating to Mr Johnston are very comprehensively set out
in the
learned judge's sentencing reasons. There is only one question of fact that
needs to be examined further, largely because
of the way in which the argument
has been put on behalf of the respondent in this Court. It has been contended
that there was "some
evidence of the respondent's remorse which was
unchallenged", notwithstanding that the learned judge had concluded that in his
opinion
"you have not shown any remorse for your criminal conduct", other than
that which might be inferred from his plea of guilty.
- The difficulty has arisen in this way. On the third day of
the plea hearing a considerable number, ten at that stage, of character
statements and references were filed with the Court, which eventually became
Exhibit 4. In one such statement Senator Marshall,
a Victorian senator, stated
that he had been told that the respondent had pleaded guilty to serious charges
and had "stood up and
owned up for his crimes, for he knows that he did the
wrong thing on this occasion" and that he had overstepped the mark. He
continued
by saying: "I know he is genuinely remorseful for these unfortunate
events." In another statement, Roderick Kelly, an industrial
relations
practitioner, concluded his statement by saying that he was at a loss to
understand why Mr Johnston had acted in the manner
he did, "which lead [sic] me
to believe that it was some form of aberration of [sic] which he now profoundly
regrets". Finally,
a Father Giacobbe stated that he had known Mr Johnston
for over 20 years but he had been notified by him a few months earlier
that he
was going to court. He said: "Craig expressed embarrassment and remorse over
the incident." When he asked Mr Johnston
why he had not contacted Father
Giacobbe earlier, the respondent had replied that "he was ashamed to canvass my
support", but in
Father Giacobbe's view "this is a unique and isolated instance
in terms of Craig's prevailing disposition".
- It was these passages which have been relied on in this appeal
as supporting the contention that the judge reached the wrong conclusion
on the
issue of remorse. However, what occurred on the hearing of the plea, after
these statements were tendered, points in a different
direction. At the time
they were tendered defence counsel (who was not counsel who appeared on this
appeal) said that he understood
that the makers were not required for
cross-examination but were present in court. The judge remarked that counsel
had not put on
behalf of his client, "understandably, in view of the materials
and what's transpired", that Mr Johnston was remorseful or contrite.
His
Honour was referring not only to the oral submissions up to that time but also
to a detailed written outline of argument on
the plea that had also been handed
up that morning. The judge then said to counsel that, nevertheless, a number
of the witnesses
had spoken about the respondent's "remorse and embarrassment
for having become involved in this exercise". His Honour commented
that there
was no evidence in any of the materials about that as far as he was aware and
it seemed "that to suggest that your client
is remorseful, in view of the way
the matter has been run and been presented, is something that's not open on the
material". Counsel
responded by conceding that it was "certainly not open on
the depositional material and insofar as it is open it's based on the opinion
of witnesses, whatever weight that carries". The judge persisted in enquiring
as to whether he had put the submission anywhere,
to which counsel responded by
saying that he was "not making it remorse in the usual way but I mean, the plea
of guilty itself can
include an element of remorse ...".
- After a brief discussion of other matters the learned judge
then returned to the issue by saying:
"Well, I just thought that I don't want to be confronted with
somebody making an issue that there was evidence of remorse which I
have
ignored, and it seems to me that if it's been put as a matter of law that I'm
entitled to take into account - of course I can't
use the lack of remorse as an
aggravating factor but it loses the benefit which is available to people who
are remorseful, who demonstrate
genuine remorse."
His Honour then repeated that, as he understood it, "that
submission is not made on his behalf by you". Counsel again said "No, what
is
made is that the plea of guilty includes an element of remorse and certainly
we've conceded that this conduct was wrong, it went
too far and so on. [H]e
concedes that and those concessions are made throughout the submission ...".
Counsel continued by saying
that it was certainly not their position that what
the respondent did was justified or appropriate and "so that's not his
position".
Counsel concluded his response by saying:
"It's to the contrary, and it's throughout ... our submissions
are based upon instructions and the instructions are that this went too
far. It shouldn't have happened." (Emphasis added.)
The discussion continued as to whether Mr Johnston maintained
that he was justified in what he was doing to which counsel replied
that his
conduct could be explained without being justified. After a further exchange
counsel repeated:
"We're not saying the conduct was legal. He's pleaded guilty and
we're not saying it's appropriate. We're saying it was inappropriate
conduct
that went too far. Now that's said throughout the submission."
Again the discussion reverted to the nature of the industrial
dispute and the extent to which it went beyond that which was justifiable
with
counsel arguing that the context should be taken into account but that the
respondent was not now contending that it was in
fact justified. Counsel
reiterated that by reason of the fact that he had pleaded guilty the respondent
had admitted that he had
gone too far but that it was submitted that everyone
"got carried away in the heat of the moment and these wrong decisions were made
and we concede that".
- We would observe that counsel's concessions seem to have been
very carefully expressed and repeated, doubtless upon instructions,
and that
counsel never appeared thereafter to change the submission on the respondent's
behalf so as to include any argument based
on remorse. It was not surprising,
therefore, that counsel for the prosecution, when asked to respond, made no
comments on the issue,
nor at any time did he seek to test what the character
witnesses had said in the statements to which we have referred.
The sentencing judge's reasoning and
conclusions
- The learned judge's sentencing reasons comprehensively set out
and summarised the relevant factual matters and then sought in detail
to deal
with various contending arguments and to reach conclusions on them. We need
not repeat in this judgment any more of the
factual matters than those we have
already described but it is necessary to deal with the judge's reasoning
towards his ultimate
sentences.
- As to the factual matters, we have already set out in
paragraph [7] the judge's conclusions that Mr Johnston was personally involved
in both incidents, that he was in a responsible position as secretary to stop
what occurred if he had wished and that he had encouraged
and incited several
of the activities carried out by the union members at each site. We have
already briefly dealt with the judge's
conclusions for rejecting the plea of
parity, as appear at the end of paragraph [8]. Again we have set out in
paragraph [13] the
judge's conclusions as to a considerable number of factors
in the respondent's favour.
- His Honour then proceeded to deal with the submissions made on
behalf of Mr Johnston, although we will not repeat conclusions already
stated.
It was argued that the earlier threats made by the respondent were part of
normal industrial relations, unrelated to the
incidents, but his Honour was
satisfied beyond reasonable doubt that, when Mr Johnston had stated his
intention to "kick the shit
out of Skill", he had meant (broadly) what he had
said and that he carried out his threat, as was demonstrated by what in fact
occurred
at both premises. It was also argued that the wearing of balaclavas
was intended to conceal the identity of the leaders and not
to cause terror, in
fact resulting in only momentary distress, but his Honour was likewise
satisfied that their use had the dual
purpose of not merely disguising the
wearers but "also to intimidate and cause fear in the minds of those who were
confronted".
As to the contention that the additional charges were part and
parcel of the principal offences of affray, so that there should be
no
cumulation, the judge agreed that the respondent should not be subjected to
double punishment, but in respect of the count of
criminal damage the court was
entitled to take account of the seriousness of that count, as it carried a
higher maximum penalty,
and that he and others had caused over $44,000 worth of
damage, so providing "a basis for some cumulation". Certainly counsel had
conceded that the additional offences had aggravated the conduct which was the
subject of the two affray counts. In dealing with
the respondent's guilty plea
counsel had submitted that he was entitled to a discount and the judge said
that, as already noted,
he had not shown any remorse for his criminal conduct
and that his plea was entered at the eleventh hour, so not being "indicative
of
contrition or remorse". The judge was prepared to treat it as an indication of
his willingness to accept responsibility for his
conduct and to facilitate the
course of justice. Counsel had submitted that the intention of entering
Skilled Engineering was to
occupy the premises but that the events inside
"erupted spontaneously", with the occupants being told to stay out of the way
to avoid
harm. The judge, however, was satisfied beyond reasonable doubt that,
although there was no intent to harm those persons, a number
of employees were
in fact "terrified and traumatised" by those events. The judge noted that
counsel had not submitted that the respondent
was entitled to any discount for
delay in sentencing, doubtless, we would infer, because of his earlier attitude
to pleading guilty.
- The judge then turned to counsel's submissions as to the
effect of the nine victim impact statements. Counsel maintained that the
events had caused only momentary distress and some victims were not concerned
for their own safety. This submission the learned
judge rejected, referring to
certain specific statements by the victims, for example, the statement of one
secretary that she had
suffered nightmares and had images of hooded persons,
and to that of another who had been constantly on edge when dealing afterwards
with any union matters. His Honour referred to the pregnant woman who had
panicked because of the possible effects of the fire extinguisher
discharge,
which led to her needing counselling. Finally, the judge referred to an
employee of Johnson Tiles who had stated that
it was a terrifying and
intimidating experience to see the group in balaclavas yelling and physically
abusing people, so that she
could not sleep properly afterwards for some time.
- His Honour then proceeded to set out eighteen matters that he
regarded as significant for sentencing purposes, some of which were
favourable
and some unfavourable to the respondent. They may be summarised as
follows: (1) the conduct arose in the course[2]
1[3]
of a "genuine industrial dispute"; (2) there were two separate
invasions of premises; (3) the guilty plea; (4) Mr Johnston
was party to
the agreement to identify and photograph the workers from Skilled
Engineering; (5) he led the invading party;
(6) he and others wore
balaclavas; (7) there was no intention to assault[3]
[4]
or cause damage at Johnson Tiles; (8) Mr Johnston and others
"engaged in acts of thuggery" there; (9) he assaulted Mr Ceccomancini
by
threats; (10) his actions there caused fear and terror to those present;
(11) he was involved in organising people to go to
Skilled Engineering and to
enter the premises by force and to cause damage inside; (12) he led the group
who carried out the damage
to the property there; (13) there was no agreement
to hurt staff at Skilled Engineering, though the effect was traumatic; (14)
the offence of criminal damage is serious and that in his Honour's view Mr
Johnston's "conduct is at the higher end of that type
of offence that comes
before the court"; (15) both specific and general deterrence were significant
matters; (16) at 47, with
no significant prior convictions, the respondent
faced imprisonment for the first time; (17) the character references; and
(18)
the respondent's dedication to the union movement and his contributions
to the community.
- Thereafter, after stating that relevant considerations in a
case such as the present included the seriousness of the offences and
the
respondent's culpability for them, as well as his personal circumstances and
the prospects of rehabilitation, the learned judge
concluded:
"On the materials available to me I have determined that you have
the capacity to be a useful and contributing member of the community
and have
been throughout your life. However, it is clear from the materials that you
are committed to your views and there is a real risk in my view that you
will in the future become involved in further offending of this type. You
have demonstrated a willingness to step over the line as to what is proper and
acceptable behaviour by a unionist or trade
union official. You, personally,
must be deterred from offending in a similar manner again in the future."
(Emphasis added.)
Then, after referring again to general deterrence as a
significant matter, the judge continued by stating that the case involved two
invasions "by numerous men, some hooded" at the first premises and by a
substantial group at the other premises, which were "an infringement
[of] the
right of persons to go about their employment in a safe and secure and peaceful
environment". His Honour said that those
who were minded to carry out
invasions of workplaces and commit offences, as the respondent had done,
resulting in citizens "being
terrorised in [their] the workplaces, must expect
that the courts will denounce such conduct" and impose appropriate punishment.
Finally, without further discussion, the judge stated that a term of
imprisonment should be imposed but that he had been persuaded
by all the
materials that that term should be wholly suspended and that an appropriate
fine should also be imposed.
The appeal - Legal issues
- As earlier stated, there is a single ground of appeal, that of
manifest inadequacy, supported by a series of particulars, essentially
four
items to which the learned judge gave undue weight and four items to which he
gave too little weight. It was made clear that
the appeal went to all aspects
of the sentence, the individual terms imposed, the total effective sentence
imposed (implicitly criticising
the insufficiency of cumulation) and the
decision wholly to suspend the sentence. (It should be noted, again, that no
particular
attack was made on the sentence on the assault count and in addition
no attack was made on the $10,000 fine, though it was conceded
that, if
re-sentencing involved the imposition of a term to be served in custody - i.e.
in this case, no or no full suspension -
the imposition of a fine would then no
longer be appropriate.) In the end, therefore, the principal attacks were on
the claimed
inadequacy of the terms on counts 1, 3 and 4 and on the total
effective term and on the decision to suspend that sentence in the
circumstances of the case. It should be noted at this stage that, whatever may
be said as to the suspension of the term of twelve
months in fact here imposed
by the judge, different considerations may well be relevant to a decision to
suspend, if the proper sentences
to be served are to be significantly longer.
For this purpose, notwithstanding what had been said about the Western
Australian legislation
in Dinsdale v. The Queen[4], it is necessary in this State, by reason of the provisions
of s.27 of the Sentencing Act 1991, and in particular sub-ss.(1) and
(3), to determine in the first place what would be an appropriate term of
imprisonment if it in
fact is not to be suspended. That does not mean, of
course, that this Court is not obliged to consider all relevant sentencing
dispositions
as set out in s.7 of that Act and in particular that referred to
in sub-s.(1)(c). The Court must necessarily have regard also to the principles
laid
down in s.5 of the Act and in particular sub-s.(4) of that section.
- Further, insofar as this is an appeal brought by the DPP, we
may first acknowledge the restrictions placed on the Court's power
to allow
such an appeal and on the manner of its exercise, if allowed, by reason of the
interpretation placed by the High Court and
this Court on sections permitting
Crown appeals. As recently as a few months ago, the High Court reiterated that
the principles
relating to prosecution appeals, as stated by this Court in
R. v. Clarke[5], were "not in
dispute": see GAS v. The Queen; SJK v. The Queen[6].
- We were asked to restate those principles, if only to ensure
that all the restrictions were taken into account. Having regard to
recent
endorsement of Clarke in the High Court, it is unnecessary to do so,
except to state some of the principal considerations relevant to this appeal.
It is,
of course, well understood that Crown appeals should be brought only in
"rare and exceptional" circumstances to establish some "point
of principle"[7]. The latter expression must be considered in
its general sense and not in the technical sense of requiring restatement of
some specific
principle of the law.[8] This may
be gathered, clearly enough, from proposition 2[9] in Clarke, where some six alternative and
non-exhaustive bases for intervention are stated, only two of which refer
directly to issues of legal
principle: see paras.(a) and (b) of proposition 2.
Counsel for the respondent at first urged the Court that it could find manifest
inadequacy only where it "must be such as to constitute error of principle" but
he later properly conceded that the use of "must"
was an overstatement.
Proposition 2(a) in Clarke is merely one example of the rare and
exceptional cases justifying intervention. Equally the jurisdiction is
enlivened where "idiosyncratic
views" of particular judges need to be corrected
(proposition 2(d)), or when it is necessary to ensure uniformity in sentencing
(proposition
2(f)). Arguably more relevant to this appeal are two other
alternative bases for exercising jurisdiction, namely, where it is necessary
to
establish and maintain "adequate standards of punishment" (see proposition
2(c)), and where it is proper to correct a sentence
which is "so
disproportionate to the seriousness of the crime as to shock the public
conscience": (proposition 2(e)).[10]
- Needless to say, however, it is necessary to keep in mind
other aspects of the accepted principles. In the first place, it is not
merely
a question of concluding that a sentence is insufficient; it must be such as
to establish clear and egregious inadequacy.
Secondly, where a sentence has
been suspended, weight must be placed on the fact that a judge has chosen, as
here, to exercise his
discretion to suspend the whole sentence and it is the
exercise of that discretion that must be shown to be manifestly erroneous
if
the discretion is to be exercised differently (or not exercised) on appeal.[11] Finally, the Court is bound by authority to
apply the well-recognised concept of "double jeopardy" in two ways to this
sentence
and to this appeal. The respondent is seen to have been at risk twice
of serving a term in custody, inasmuch as the sentencing judge
decided that the
respondent should not be required to serve any of his term in actual custody.
Secondly, if the Court feels itself
impelled to re-sentence, the range for
appropriate sentences is limited by the need, in an ordinary case of this kind,
to impose
only a moderately increased sentence, again because of the risk faced
twice by the respondent.[12]
- Although the matter argued concentrated on the ground relied
upon, namely manifest inadequacy, some legal and more general issues
arose in
the course of argument that may conveniently be dealt with at this stage.
- In the first place, issues arose as to what precisely were the
acts which constituted the various offences charged, the related
acts which
could be taken into consideration and the extent to which it was necessary to
make the sentences in part or in whole concurrent.
Over the centuries the
ancient offence of affray has evolved and been expressed in different ways.
There was no dispute that it
could now be carried out on private premises as
well as in public places: see R. v. Button[13], so there is no need to examine and differentiate between
what occurred outside on the pavement and what occurred inside the premises
invaded by Mr Johnston and his fellow union workers. Nor is it necessary to
consider whether those invading the premises intended
to engage in fighting
with the Skilled Engineering workers at the first premises and with its staff
at its office in Box Hill. It
is difficult to believe that no violence was
intended at the first premises inasmuch as the union members intended to take
photographs
of the workers with or without their consent, but there seems no
reason to believe that there was any intention to fight with the
staff at
Skilled Engineering's office, for their intention plainly enough was only to
cause damage to office property and the like.
Nevertheless it was not
suggested that the kind of violent incursion which took place at the latter
premises, involving deliberate
but haphazard and violent damage to property,
could not constitute an affray. As Lord Hailsham said in R. v. Taylor[14] "It is not necessary to prove a reciprocity
of blows".[15]
- In each case there seemed little dispute as to the final
necessary element required for each affray count, namely that a considerable
number of people at both Johnson Tiles and Skilled Engineering's premises were
likely to be terrified by what the respondent did
and what he encouraged his
fellow union members to do. What is required is that the degree of violence
"must be such as to be calculated
to terrify a person of reasonably firm
character".[16] That was explained to mean
(by use of the word "calculated") that the violence must be such as "might
reasonably be expected to
terrify".[17] It is
unnecessary to reach a conclusion on the question, but it seems that, although
affray in a public place may be established
by showing that members of the
public might be present and reasonably likely to be terrified, on the
other hand, where the offence is charged in relation to private premises,
there
must be shown to be some persons actually present who would be likely to be
terrified by the melée in which the offender
participated. Here there
was no dispute that there were considerable numbers of people present at each
site, Mr Johnston's plea
of necessity conceding that there were numbers of
people likely to be terrified in the accepted sense.
- One moves therefore to the second count of assault where the
necessary elements are well-known. In the present case it was only
the events
relating to Mr Ceccomancini that were made the subject of a separate count
of common assault. It seems that the
reason for there being that single count
was the nature of the threats made, which meant that it was conceded that the
nature of
the attack on Mr Ceccomancini in which Mr Johnston participated,
although it did not involve any direct violence (or "battery") of
the victim,
nevertheless caused him to apprehend immediate and unlawful violence. It can
be seen that the nature of the fear or
apprehension is therefore more specific
than that required for affray.
- Finally under count 4 Mr Johnston pleaded to a charge of
intentionally and without lawful excuse damaging office equipment belonging
to
Skilled Engineering. This is the most serious of the charges, at least in
terms of the prescribed maximum penalty but in addition
the judge likewise
viewed it, not only as serious, but also "at the higher end of that type of
offence". Nevertheless the Court
must recognise significant overlapping
elements of the conduct relied on for this count as compared with the conduct
relied on to
establish count 3, alleging the second charge of affray. The
violent infliction of the property damage should be seen as largely
that relied
on to show the kind of violence forming an element of the affray under count 3.
There is, however, a relevant difference
in intent and purpose, in the case of
the affray, the striking of terror into the office workers, and, in the charge
of intentionally
causing damage, the specific intent to cause damage to the
property of another person. Thus a degree of concurrence is called for
but
there is no reason to ignore the different purposes served by the two offences.
The actual causing of damage with intent is properly
to be recognised under
count 4, inasmuch as the actual outcome of the affray under count 3 should be
seen as additional to the events,
especially the terror, which constituted the
affray itself.
The appeal - Factual issues
- Although many of the matters raised in the course of argument
were essentially matters of emphasis, as they frequently are in cases
alleging
manifest inadequacy or excess, a few not unimportant factual matters remained
in dispute.
- The first disputed issue was the matter of remorse, to which
we have made detailed reference earlier: see paras.[14] to [18].
Counsel for
the respondent contended that, although counsel at the sentencing hearing had
not put any submissions based on any alleged
remorse by Mr Johnston,
nevertheless there was evidence contained in the three character references
which the judge should have relied
upon to find that in fact there was remorse.
This might appear to raise again the difficult question of the judge's
responsibility
to find facts not directly relied on in the course of a plea.
It is not necessary to canvass the relevant authorities (none of which
was
cited) as to the well-recognised power of a judge to make findings based on the
evidence for the purpose of sentencing an offender.
This is not a case where
the judge has reached a conclusion contrary to any submission made on behalf of
the respondent, nor was
there any failure to draw counsel's attention to the
possibility that a particular fact-finding might be made contrary to a
concession
by the prosecution or based on any fact not relied on in the course
of the plea. More importantly, it does not appear that counsel
then appearing
for Mr Johnston made any concession that is now said to have been based on
counsel's misunderstanding of the relevant
factual materials or upon a
misunderstanding of counsel's instructions, which occasionally occurs and must
be established by appropriate
evidence.
- Here every document now relied upon by counsel on this appeal
was delivered to the judge on the morning when the discussion took
place. The
documents were in fact marked as exhibits shortly before the precise nature of
the submission was sought by the judge.
As appears above, armed with that
material counsel clearly chose not to put any argument based on Mr Johnston's
remorse. The judge,
a very experienced criminal lawyer, was acutely conscious
of the decision then being made, so that he repeated his enquiry of counsel
in
the terms appearing at the beginning of paragraph [17] whereby he wished to
avoid the possibility of it being said later that
he had failed to take into
account the relevant evidence of remorse. It is, however, counsel's response
to that questioning and
his submissions immediately thereafter that made it
perfectly clear what Mr Johnston was conceding and what he was not conceding.
Counsel had the opportunity to change the stance being taken on behalf of Mr
Johnston but chose deliberately not to put any plea
based on remorse other than
that which flowed from the plea of guilty. Likewise he had the opportunity to
state, even though it
did not appear in Mr Johnston's written statement,
that he had instructions that his client was remorseful. In fact he stated
precisely what his instructions were and they were only that Mr Johnston
conceded that his conduct was inappropriate and that it
went too far. It was
clear that that was the limit of his instructions and there could have been no
doubt in the minds of either
counsel or judge that those instructions did not
include any claim of remorse or contrition.
- In those circumstances and in the absence of any claim of
error or misunderstanding on the part of counsel, we do not think it is
open to
Mr Johnston to claim remorse. Counsel, apparently for good reason, refrained
from relying on the three somewhat vaguely
worded statements upon which counsel
now rely on this appeal. In our opinion the judge was correct in his findings
on this issue
of remorse and it cannot be said now that the evidence to which
we have referred should have been accepted, having regard to the
failure to
rely on remorse during the course of the plea by Mr Johnston's own counsel,
except to the extent that it flowed from his
guilty plea. Counsel's direct
instructions at the time must have been contrary to any such
claim.
- A not unrelated factual issue was a claim that the sentencing
judge had made a mistake in concluding that there was "a real risk"
that Mr
Johnston "will in the future become involved in further offending of this
type". Naturally an erroneous finding on the issue
of remorse may have borne
on this conclusion also but the judge had properly rejected that contention.
It seemed open then to the
judge to deal with the conventional issue as to the
possibility of reoffending by reaching the conclusion he did as to the risk of
further offending arising out of industrial disputes. The judge was entitled
to take account of the fact that, although not serious,
the majority of
Mr Johnston's previous convictions arose out of public order offences and
that the two incursions which he was
involved in leading on 15 June 2001 were
each deliberate and serious examples of breaches of public order. Having
regard to the
very qualified admission of wrongdoing and the absence of any
true remorse, there would seem to be a strong basis for finding that
there was
a "real risk" of the relevant kind. Indeed one of counsel's submissions on
this appeal was that "the respondent was committed
to his views". Not only was
there evidence to support that contention, but it pointed strongly to the
possibility that he might
in future be engaged in similar industrial disputes
which might get out of hand in the way that the disputes with the two companies
did on this occasion. At the time of sentencing the appellant was only 47,
still apparently fit and still working in the same kind
of occupation which he
had followed for many years. Although his conviction for these offences makes
him ineligible to hold any
statutory office in a union, it does not prevent him
from being a shop steward, or generally from participating in any industrial
dispute. (It seems now that he is no longer a member of the AMWU but that does
not prevent him from joining another union and certainly
does not prevent him
from taking part in industrial agitation.) Reliance was placed on the fact
that he had not been in trouble
for the three years since the offences took
place but, although that is to be commended, it would not inhibit him in the
years ahead
from participating in industrial action which might get out of
hand. In the absence of remorse we consider the judge's finding was
clearly
open to him. Moreover we do not accept the contention that the words "real
risk" was intended to indicate that it was probable
that he would be involved
in such offending, only that there was a significant possibility.
- Further, the respondent contended on a number of occasions
that the offence took place in the course of a genuine industrial dispute.
The
assertion seems to confuse and conflate two different matters. The first,
which need not be disputed in the light of the judge's
findings, was that there
was a dispute between members of the union and the particular employers up to
that time which could be characterised
as genuine in that they had real
differences over the use of non-union labour. One might fairly say that the
demonstration outside
the gates of the two premises was part of that dispute,
albeit that a number of members of the union had pleaded guilty to unlawful
assembly at that stage. Nor need it be denied that that dispute led
Mr Johnston and his fellow union members to decide to invade
the two
premises and causing the affrays upon which he has been convicted. It is
another thing altogether to say that the offending
occurred "in the course of a
genuine industrial dispute". The dispute existed, doubtless, but the four
offences cannot be excused
by saying that they took place in the course of the
dispute because, even by Mr Johnston's own admissions, the later events were
inappropriate and "went too far". In short the dispute could have been
genuinely pursued without the need for the criminal incursions
onto the two
premises which took place. The dispute may have provided the occasion for the
criminal behaviour but not, in our view,
any justification.
- There is one other question of fact which appears, at least in
part, to be in dispute, namely the extent to which the harm caused
at each of
the two factories was premeditated. The contention that it was not might
appear to be supported by the judge's finding
at one stage that there was "no
pre-planning for violence and damage at Johnson Tiles", although he made no
such finding with respect
to the invasion of Skilled Engineering's premises.
The finding of "no pre-planning", we believe, flowed out of his earlier finding
that there was "no agreement ... to damage property or assault persons in
Johnson Tiles". If by that the judge meant only that there
was no intention to
cause injury to people at Johnson Tiles or to damage any property there, then
such a finding was consistent with
the evidence. But the later statement seems
not to have been so carefully expressed. The affray was planned, and indeed
one of
the essential characteristics of affray is violence, though not
directed, necessarily, at causing injury to specific individuals.
Nor can it
be said that the plan was merely to walk on to the premises, shout a few
slogans and then leave again. The first step
was clearly the cutting of the
chains at the front gate and the intention was certainly to cause fear.
Although there was no intent
to cause injury, there was an intention to assault
a considerable number of people in that it was planned by all, including
Mr Johnston,
that certain people, being "scab" workers, would be forced to
have their photographs taken and in that activity, having regard to
the
relationship of the parties, neither Mr Johnston nor his fellow unionists could
have contemplated ready acquiescence. Thus,
to the extent that they were to be
forced to have their photographs taken, there would clearly have been some
assaults, albeit of
a technical kind. On the other hand we would not conclude
that it was planned that there should be any battery or other kind of
injury,
or that there should be any injury to property at Johnson Tiles.
- Still less could it be denied that there was an intention to
cause damage at Skilled Engineering. There was no other purpose to
the
invasion of Skilled Engineering's premises for, as seems to have been conceded
in the respondent's favour, the object was not
to injure any of the staff there
but merely to show displeasure by wreaking the havoc which the union members
did when they went
through the offices. To that end there was a deliberate
affray and one might have thought that those responsible, including Mr
Johnston,
would have anticipated that their activities were likely to cause
much fear and apprehension amongst the employees present, but the
plea was
conducted upon the basis that no direct harm to those employees was
specifically intended.
- Moreover, we do not accept the contention that Mr Johnston's
part was limited and that he had no significant responsibility for
the planning
of the two raids. It may be conceded that he was not present at the meeting
the day before but there cannot be the
slightest doubt that he knew of that
plan the next day, for he was at the site early in the morning, and that, if he
was not the
prime leader, he was at least a leader who took a significant part
in causing the affray at Johnson Tiles. Moreover, although it
may not have
been shown that Mr Johnston gave the first "order" to move to Skilled
Engineering's premises, he was certainly present,
understood what was to
happen, took part in the incursion and was clearly, as the judge found, one of
the "leaders". As the judge
found, he encouraged and incited a number of
activities at each premises and, as secretary of the union, he was in a
position to
stop what was going on. That he was well aware of what was
intended can be demonstrated from the facts that he turned up early in
the
morning with both a balaclava and a camera, essential for the first incursion,
and that thereafter his leadership activities
showed that he had a full
understanding as to what was to occur at both premises. To say that there was
no premeditated violence
or causing of fear can easily be rebutted by reference
to his role and in particular to the use of balaclavas by him and his fellow
union members for the purpose of that first attack. Although arguably intended
in part to prevent identification, the use of balaclavas
in such a context is
shared only with common criminals such as armed robbers and thus inevitably
likely to strike fear into those
affected.
The appeal - Contentions of the
parties
- As we have said before, two questions are raised by this
appeal: the first, whether the sentences, including the total effective
sentence, were manifestly inadequate in themselves; and secondly, whether the
decision to suspend the whole of the effective term
was manifestly
inappropriate. An answer to the first question may well resolve this appeal,
for if the base sentence, including
the component sentences, was manifestly
inadequate then the hypothesis upon which the sentencing judge suspended the
sentence no
longer stands, and the issue as to suspension arises afresh in the
context of what the proper terms, and total effective term, should
be. On the
other hand, if the Court is not satisfied that the relevant terms were
manifestly inadequate, for example, if they were
thought to be within range,
there will still remain a question whether, applying the accepted tests in
cases such as Clarke, the decision to suspend the total effective
sentence wholly was such that it can be described as so improper as to render
the ultimate
sentence as manifestly inadequate.
- For these purposes the DPP pointed to certain aspects relating
to the gravity of the offences which were said to demonstrate that
general
deterrence had been given insufficient weight. This was said to be supported
by four considerations which showed that four
aspects of the sentencing
exercise had been given insufficient weight, namely the gravity of the
offences, the need to give effect
to general deterrence, the failure to give
sufficient weight to the serious effect on the victims and fourthly, the
insufficient
weight given to premeditation and the planning of the offences.
In addition, three aspects of the sentencing process were given insufficient
weight, according to the Director, namely the excessive weight given to
mitigation, and the insufficient weight given to the absence
of remorse, to
specific deterrence and to the likelihood of reoffending. It was also
contended that excessive weight was given to
mitigation.
- As to matters of aggravation we are persuaded that the judge
gave insufficient weight to the gravity of these offences generally,
so much so
that, unless there were mitigating circumstances out of the ordinary, the
sentences imposed were in themselves manifestly
inadequate. It is,
nevertheless, preferable to return to this general issue after dealing with the
specific matters of complaint.
As to general deterrence, a similar conclusion
might fairly be drawn, unless there be significant mitigating factors, and
likewise
as to specific deterrence there seems to be nothing to have prevented
that from properly being reflected in the sentences, unless,
of course, there
were powerful mitigating circumstances. Again those issues are of such
generality as to make it desirable to defer
final consideration of
them.
- Turning then to the specific matters relied upon by the
appellant as aggravating circumstances, the first was a failure to give
sufficient weight to the serious effect of the offences upon the victims.
There is no doubt that the learned judge referred in some
detail to the effects
of the various offences on the victims at both premises and, in particular,
recounted in detail (over several
pages) the stated recollections of those
people. There can be little doubt that his Honour saw those experiences as
"traumatic",
as he expressly described the effect on the staff at Skilled
Engineering, and that he saw the invasion of Johnson Tiles as causing
"fear and
terror in those present". It is hard, therefore, to see why such light
sentences were imposed, unless there were countervailing
circumstances.
- Secondly, it has been argued that the judge gave insufficient
weight to the fact that all offences, especially the two offences
of affray and
the criminal damage offence, were planned and premeditated. There is some
substance in this complaint inasmuch as
the judge was inclined to downplay the
extent to which Mr Johnston and his fellow union members had taken into account
beforehand
the potential harm to the people in the two premises. In the first
place there can be no doubt that both the respondent and his
many colleagues
had clearly in mind to strike fear into the hearts and minds of those who had
been engaged by Johnson Tiles and who
had been hired out by Skilled
Engineering. As already noted there could be little doubt, for example, that
the wearing of balaclavas
might in most cases cause their victims great
apprehension. Moreover, the scheme to photograph them must have been designed
to leave
them fearful as to what the union members, including Mr Johnston,
would do subsequently to those workers. One must concede,
however, that the
judge was satisfied, to the requisite standard, that there was an intention on
the part of Mr Johnston and
his colleagues to intimidate and cause fear.
On the other hand, the light sentences imposed would appear on the surface to
reflect
a failure to take into account all relevant circumstances such as this
specific and very serious aspect unless there be countervailing
considerations
in favour of the respondent. Likewise Mr Johnston's intended actions directed
at Skilled Engineering ought to have
been perceived by him and his group as
likely to cause fear, albeit that their primary concentration and purpose was
to destroy office
furniture and fittings. Whatever they had hoped the staff
would do in reaction to this, they surely could not have thought that
those
staff would not have been terrified at least in the first place by the noisy
and marauding tactics of the invading group.
Although recognised by the
learned judge, Mr Johnston's appreciation of potential terror appears, at least
at first blush, not to
have been reflected in the sentences.
- The Director's arguments then concentrated on the judge's
alleged giving of excessive weight to mitigating factors such as the absence
of
"significant prior criminal convictions". We are not persuaded that in
themselves any of those convictions was very serious but
to describe them as
without significance places insufficient weight on their true relevance in the
present context. Though leading
to small penalties, they all evidenced an
unwillingness to comply with the ordinary legal precepts of behaviour in public
places
and a preparedness to breach the law when it suited Mr Johnston to do
so. The present set of charges arose in a far more serious
context but the
earlier offences cannot be considered, as the judge tended to view them, as
having no bearing on an overall assessment
of Mr Johnston's character. The
same might be said of the judge's reference to the events occurring in the
course of a genuine industrial
dispute, about which we have already made
comment.
- We have likewise discussed the judge's finding as to the "real
risk" that the respondent would in the future become involved in
further
offending of this type so that, by concluding that the judge had not misstated
the degree of risk, it is not possible to
say that the judge reached a wrong
finding in relation to this factor, but it is another question whether he
placed incorrect weight
on it.
- If there was a failure by the judge in his assessment of the
respondent, it was, in our opinion, that he placed too much significance
on the
various factors which may be said to have demonstrated his good behaviour and
concern for others in the past. It is not that
the judge's findings were
incorrect: it is rather that he gave too much weight to them having regard to
the nature of the present
offending. Many offenders can claim to have had an
exemplary past but it does not follow, when found guilty of serious breaches
of
the law, that they should be treated as persons deserving of slight punishment
where serious offences have been committed deliberately,
in circumstances where
the offender ought to have had a clear apprehension of likely harm to others.
In the present case there is
nothing to suggest that Mr Johnston suffered from
any defect in intelligence; rather he seems to have been sufficiently
successful
in his union career to have reached the top ranks of the Victorian
branch of a very significant union. Nor did he claim that circumstances
were
such that he was unable to comprehend the nature of his offending or the
potential for harm to others. It is not often that
persons of intelligence
come before the courts charged with serious offences but, when they do, there
is little basis for saying
that specific deterrence is irrelevant to them,
unless there be quite exceptional contrary factors.
- For the respondent it was argued, in reliance on the
authorities already cited (see paras [26] to [28), that the Court should only
increase the sentences if rare and exceptional circumstances had been
demonstrated, more especially as the respondent was placed
in double jeopardy
of serving a term of actual custody. Thus it was said that these sentences did
not satisfy those stringent tests
for showing manifest inadequacy and that,
even if they did, the Court should refrain from interference.
- Specifically it was contended that this was not a case where
general deterrence was of special significance, more especially as
it had not
been relied upon below. Whether or not it was mentioned, it would not, in our
opinion, be a fatal error for we cannot
assume, having regard to the manner in
which pleas are conducted, that any concession was thereby made by the
prosecution. The most
that can be argued is that the judge did say he had
considered that factor, so that it cannot be assumed that he placed inadequate
weight on it. Again it is another question whether the sentences imposed
demonstrated the contrary.
- Again it was argued on behalf of the respondent that the harm
actually resulting from these offences was not premeditated. We have
analysed
this issue in some detail already, but the contention was that Mr Johnston did
not set out to cause the specific harm in
fact suffered. Emphasis was placed
on his absence from the meeting on the day before. The argument concentrated
on the invasion
of the Johnson Tiles premises, for there could be no argument
but that the purpose of the second incursion was to damage furniture
and other
property of Skilled Engineering - indeed the emphasis was on the accepted
absence of any intention to injure any individuals
at its offices. The
respondent's argument seemed to concentrate on the absence of any specific
proof of any intention to strike
fear or terror into the minds of those
present. It may be observed that that a reasonable expectation of such terror
is an element
of each count of affray, but the argument assumed that nothing of
that kind was contemplated, at least in the original planning.
- Naturally the respondent's case placed weight on the various
factors accepted as going to mitigate Mr Johnston's criminal responsibility.
Again the argument tended to concentrate on the disputed issues such as remorse
and the nature of the industrial dispute. They have
each been examined in
detail already. In particular it was contended that, whatever be the proper
bounds of behaviour in such disputes,
at least it could be said that Mr
Johnston had a genuine belief in the righteousness of his cause and that of his
fellow union members,
so that the fact that it "got out of hand" could not
detract from that genuineness. It was an explanation without being a
justification.
- Finally it was said, as again noted earlier, that there was
nothing to suggest that Mr Johnston would offend again in the future,
because
of his demonstrated capacity to be a "useful and contributing member of the
community". These factors were said to have
formed a solid basis for the judge
to take a lenient view of the offending and, in particular, to have justified
full suspension
of the whole sentence of imprisonment.
The appeal - Conclusions
- We must now express our conclusions in this complex case.
Despite the many issues raised, the sentences pronounced below, with the
possible exception of that on the assault count, must be seen as manifestly
inadequate. None of the many factors relied upon, most
of which were disputed
only as to their significance, could justify imposing such low sentences for
affray and intentionally causing
damage. In particular, the latter sentence of
four months, imposed for the planned damage to Skilled Engineering's offices,
is not
only totally insufficient, but is moreover inconsistent with the affray
sentences, in that by comparison the sentence is far less
than ought to have
been given for a deliberate and planned causing of damage and for an offence
carrying double the relevant maximum
penalty. Whatever sentence might have
been given for a casual or impetuous act or one in which the offender played
only an inconsequential
part, no such claim could be made by Mr Johnston.
Moreover it was quite inconsistent with the judge's own characterisation of the
offence as both serious and at "the higher end" of the scale of seriousness.
The term of four months was not further explained and
is not, in our opinion,
remotely commensurate with the seriousness of the offence, whatever be the
respondent's other virtues. Mr Johnston
was one of the ringleaders, not
surprisingly having regard to his post as Secretary of the Victorian branch of
the AMWU, the destruction
was not only planned but wanton, and it could have
been expected to and did create shock and fear to innocent
employees.
- The latter factor, though relevant to count four, was properly
to be considered once only, for the purpose of the relevant count
of affray.
On each count of affray it was that factor which took the case out of the
ordinary, so that we again think that each of
the terms imposed on counts 1 and
3 was manifestly inadequate. We may observe that this shows again how
insufficient the sentence
on the fourth count was. But the factor primarily to
be considered in cases of affray is the degree of terror likely to be imposed
on casual bystanders or on those carrying on their ordinary affairs
nearby.
- Turning specifically to the first count of affray, that in our
opinion was the more serious example of the offences described by
counts 1 and
3. It was more serious, in terms of the law of affray, because there can be no
doubt that it was intended to strike
fear and terror into the hearts and minds
of at least those workers at Johnson Tiles whose services were being supplied
by Skilled
Engineering. Mr Johnston and his colleagues were determined to
photograph these so-called "scabs" in order to shame them, to
expose them to
ridicule and to cause them to fear for their own safety should they continue
working there. The respondent and a
considerable number of union members whom
he led chose deliberately to wear masks to hide their features and he must have
been aware
that this would heighten this feeling of apprehension. Not only
that, but the manner of entry and the photographing of the Skilled
Engineering
workers must have been seen as likely to cause terror to others working at
Johnson Tiles. The facts speak for themselves.
- It is necessary to ask why such a low sentence was imposed for
this count of affray. No direct reasons were given by the learned
judge and
one must conclude that either he thought the nature of the offending was slight
or that Mr Johnston's personal attributes
were such as to justify a
significant lessening of what otherwise should have been imposed, or a
combination of the two. There does
not, however, appear to be any true
justification for a term of only six months' imprisonment.
- Again there seems to be no justification for the imposing of
so low a sentence as was imposed on the respondent for count 3, i.e.
eight
months for the affray at Skilled Engineering. Doubtless there was an intention
to cause a great deal of damage and necessarily
Mr Johnston and his colleagues
must have contemplated that the office staff would have been not merely
inconvenienced but frightened
by the marauding group that entered the premises.
It is the latter element, the causing of terror and fright, which is essential,
but that was inadequately reflected in the term of eight months'
imprisonment.
- Accordingly, giving full weight to the principles applicable
to Crown appeals and also to the factors which can properly be taken
into
account in favour of Mr Johnston, we are clearly of the opinion that the
various sentences, including the total effective
sentence, were inadequate and
manifestly so. Moreover the imposition of the fine of $10,000 did not make
them adequate.
- Furthermore we do not believe that it was appropriate for the
judge to suspend the whole of Mr Johnston's sentence. Each of the
respondent's
acts in perpetrating the four offences was deliberate and the consequences must
largely have been contemplated by him.
He was a leader of each incursion, he
has proffered no excuse except that "it got out of hand", he has shown no
proper remorse and
so he must face the consequences of his acts on the day.
These were no idle, casual, impetuous acts, nor were they to be explained
by
any event or illness, save that he perceived them to be part of his union's
dispute and battle with Skilled Engineering, in particular.
There can be no
justification for the offences, looked at as a whole, nor could Mr Johnston's
belief in the union's case properly
be a basis for wholly suspending the
sentences imposed. Nor, again having regard to the deliberate but wanton
nature of the acts
charged, could his personal circumstances or characteristics
properly found the suspension. Of course, we do not know how the judge
would
have resolved this issue if more substantial terms had been imposed.
Nevertheless we should commend the judge for his careful
exposition of the
facts and issues: regrettably it has been his conclusions and ultimate
reasoning with which we disagree.
- We therefore turn to what this Court should now do.[18] In the first place it is necessary to
determine the individual sentences which should be imposed and the total
effective sentence
which should result from proper orders for cumulation. We
do so having regard not merely to the many factors already described,
including
those personal to Mr Johnston, but to the accepted precepts of "double
jeopardy" which constrain appellate courts in resentencing.
On the first count
of affray at Johnson Tiles, which we believe (for reasons stated) to be the
more serious, we consider that a
term of twenty-one months' imprisonment should
be imposed. On the second count of common assault we would not alter the term
presently
imposed of three months, light though it is, having regard to the
DPP's concession. On the third count, the count of affray at Skilled
Engineering, we consider that a term of eighteen months' imprisonment should be
imposed, for reasons already stated. Finally, on
count 4, that relating to the
intentional causing of damage to property at Skilled Engineering, we consider
that a term of two years'
imprisonment should be imposed, for reasons likewise
already explained.
- As to cumulation, the issue of totality must here especially
be taken into account. Proper allowance must be made for the fact
that all
offences formed part of one episode of offending, albeit a lengthy episode,
occurring at different places and affecting
different groups of people. For
that reason we would not cumulate on the sentence on count 4 any part of the
sentence on count 2
and would cumulate only three months of the sentence on
count 3, but we would cumulate six months of the sentence on count 1. Perhaps
that insufficiently recognises the varying factors, but no greater cumulation
should here be ordered. Consequently the total effective
sentence should now
be two years and nine months. We add, lest it be misunderstood in some
quarters, that more severe sentences
would properly have been imposed by a
sentencing court at first instance and possibly greater cumulation orders made,
though the
principles in R. v. Grabovac[19] should be observed. Moreover, as already mentioned, it
is no longer appropriate (if it ever was) to impose any fine.[20]
- Finally, we come to the difficult issue of suspension. We are
very conscious of the discretion exercised by the judge and of the
choice of
penalty made by him, and in particular, that to fail to order full suspension
will result in Mr Johnston serving some period
in actual custody in
circumstances where he has been at liberty since being sentenced. However, it
must be noted that the sentences
we intend to pronounce are substantially
greater than were imposed in the County Court, so that one cannot be certain
whether the
judge would have suspended the whole or part of a more lengthy
sentence. We have said the judge was wrong in the first place, but
the issue
now for this Court is whether we should make any order for full or partial
suspension. There is much to be said for the
view that suspension is not
appropriate if the judge, as here, perceives a real risk of reoffending. We do
not disagree with that
assessment of the risk, but, nevertheless, having regard
to the double jeopardy precept, we believe it desirable that we should,
but
only in part, follow that course again. It should not be taken that it
would have been a desirable or appropriate course for a judge at first
instance. However, having regard to all relevant factors, we would require
Mr Johnston to serve nine months in custody, suspending
the remaining two
years for a period of two-and-a-half years. We are fully conscious that a
decision to require Mr Johnston to serve
part of his term in actual custody may
be misunderstood, but the seriousness of the offences charged in counts 1, 3
and 4 and the
deliberate and wanton manner in which they were committed, has
made that decision inevitable in all the circumstances.
- We therefore would allow the appeal, set aside the sentences
including the fine and resentence the respondent in the manner just
described.
---
[1] In fact only three of the
group pleaded to two counts of unlawful assembly, the remaining thirteen
pleading to a count relating
to the events at Johnson Tiles.
[2] Note again our disagreement with this
characterisation of the offences: see the end of para.[[].
3]
Again note our disagreement with this finding: see para.[[].
4]
[2000] HCA 54; (2000) 202 C.L.R. 321.
[5] [1996] 2 V.R. 520 at 522.
[6] [2004] HCA 22 at para.[14]; [2004] HCA 22; 78 A.L.J.R.
786 at 790.
[7] See proposition 1 in the judgment of
Charles, J.A. at 522.
[8] See Everett v. The Queen [1994] HCA 49; (1994) 181
C.L.R. 295 at 300.
[9] [1996] 2 V.R. at 522.
[10] Ibid.
[11] Cf. Dinsdale v. The Queen, but
having regard to the differences in legislation between Western Australia and
Victoria.
[12] As to these aspects, see again
Dinsdale, passim.
[13] [1966] A.C. at 591.
[14] [1973] A.C. 964 at 986.
[15] It should be noted that in all other
States, apart from South Australia, the offence of affray has been redefined by
statute.
[16] R. v. Taylor at 987 per Lord
Hailsham, as applied in Attorney-General's Reference (No. 3 of 1983)
[1985] 1 Q.B. 242 esp. at 246 and 249 per Lord Lane, C.J.
[17] R. v. Taylor at 987;
Attorney-General's Reference (No. 3 of 1983) at 246.
[18] We have tried to set out the major
issues raised, but for the purpose, in particular, of resentencing we have also
taken into account
the many other matters raised which it is impracticable to
repeat in this judgment.
[19] [1998] 1 V.R. 664.
[20] For obvious reasons the compensation
order should stand.
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