Andrews v The Queen

[2021] NSWDC 592

District Court

New South Wales

Medium Neutral Citation:

Andrews v R [2021] NSWDC 592

Hearing dates:

17 February 2021

Date of orders:

17 February 2021

Decision date:

17 February 2021

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

First offence: Imprisonment for 1 year, 8 months NPP

Second offence: CCO 18 months after release on parole.

Catchwords:

CRIME – APPEAL AGAINST SENTENCE

Offences: 1. Seeking to avoid police pursuit, driving in a manner dangerous to others – 2. Driving whilst disqualified.

At time of offending, appellant subject of an ICO – As a result of offending ICO revoked, and imprisonment from 18 June 2020 to 23 February 2021 – ICO imposed for a number of offences including seeking to avoid police pursuit, driving in a manner dangerous to others and driving whilst disqualified.

As a result of this offending, appellant sustained injuries with long term sequelae, and his girlfriend was also injured.

Sentence under appeal: 22 months heads sentence, 15 months NPP.

Disadvantaged background – 20 years old – First experience of adult custody – Onerous conditions of imprisonment.

Legislation Cited:

Crimes Sentencing Procedure Act 1990

Category:

Principal judgment

Parties:

Appellant – Kane Andrews
Crown - Regina

Representation:

Appellant – D. Wilson
Crown – B. Goodson

File Number(s):

2020/00181929

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: This is an appeal against the severity of sentences imposed by Magistrate Maiden sitting in the Local Court at Maitland on 10 November 2020.

2. The appellant pleaded guilty to two charges. The first was that on 18 June 2020 at Telarah he did drive a motor vehicle, namely a white Holden Commodore, knowing that police officers were in pursuit of the said vehicle and that he was required to the stop the vehicle and he did not stop the vehicle and then drove the vehicle in a manner dangerous to others. The second offence to which the appellant pleaded guilty is that he drove on a road during a period of disqualification, his being a person who was disqualified from holding a driver’s licence. The relevant driving was the same driving that led to the offender’s pleading guilty to the first charge.

3. At the time the appellant committed these offences, he was the subject of an Intensive Correction Order imposed by the Local Court at Newcastle on 24 February 2020. That Intensive Correction Order was for a number of offences. They were destroying or damaging property, two charges of common assault, failing to appear in accordance with a bail acknowledgement, a further common assault, escaping from police custody, dishonestly obtaining property by deception and again driving at speed in order to avoid a police pursuit, driving recklessly furiously or a speed or manner dangerous to the public, and drive whilst his licence was cancelled. In other words, the two offences which are the subject to this appeal are offences that the offender had previously committed and in respect of which he was serving an ICO. That is a significant circumstance of aggravation.

4. However, it must be pointed out that because of COVID-19 the supervision imposed by Community Corrections under the ICO was only by means of the telephone and not a requirement to attend at a Community Corrections office and be interviewed by a Community Corrections officer or by a Community Corrections officer attending upon the appellant in his home. In other words, it was a “Clayton’s” ICO because of the pandemic.

5. The offender had tried to get his life back in order, to lead a lawful life, after spending time at his mother’s residence after being released from custody. He had found his own accommodation and had found employment. There is no suggestion that the vehicle that he was driving at the time of these offences was not his own or one which he was lawfully entitled to drive. However, he sought to escape police pursuit on this occasion because his girlfriend encouraged him to do so, because she knew that a warrant had been issued for her arrest and, if the police pulled up the appellant in his vehicle, she would be arrested. Furthermore, the appellant knew that he was committing an offence because he was driving when he was disqualified from driving. Another circumstance which prompted his seeking to escape from the police was the fact that there was a small amount of illegal drug in the vehicle.

6. The offences occurred at 2.20pm on Thursday 18 June 2020. The offender was driving a white-coloured Holden Commodore in a north-westerly direction along the New England Highway at Telarah. That was a township in which he was living. His girlfriend, India Orrock, was his passenger. His vehicle was being followed by a fully-marked Highway Patrol vehicle. For a reason which is not clear from the full facts provided by the police, the police activated their warning devices and called upon the appellant to stop. The appellant turned left into Brooks Street, Telarah, having indicated by his light that he was making such a turn. He brought his vehicle to a standstill for a short time but then accelerated harshly away in a southerly direction along Brooks Street. The Highway Patrol officer gave chase in his Highway Patrol vehicle. The offender increased his speed to well in excess of the 50 kilometres per hour speed limit. He overtook a vehicle, travelling at 90 kilometres per hour and was observed to maintain a speed further of 120 kilometres per hour.

7. Whilst approaching the intersection of Brooks Street and Raymond Street, the offender lost control of his vehicle, which spun sideways and hit the kerb. That caused the vehicle to leave the roadway and become airborne, colliding with the perimeter fencing of number 55 Brooks Street. The vehicle continued to travel through the front yards of neighbouring properties and eventually collided with the front of the house at 51 Brooks Street. It then came to a stop in the front yard of 51 Brooks Street, resting on its roof.

8. Fortunately for this offender and the occupants of 51 Brooks Street, which included a small child, the occupants of 51 Brooks Street were not in the front room at the time of the collision. Fortunately, they were not injured. However, both the appellant and Ms Orrock were injured.

9. The offender told me, and I accept, that he fractured both his scapula and clavicle on the left side and has plates covering the fracture sites in his body and those plates will remain in situ indefinitely. He has restricted movement in his left upper limb. He was in hospital as a result of those injuries for two weeks after the offences occurred. In other words, the offender has suffered from his own criminality and that can be seen as a form of extra-curial punishment, mitigating the sentence that ought be passed upon him.

10. Ms Orrock’s injuries appear, from my reading of the material made available to me, to be a fracture of the mid shaft of the ulna which was undisplaced and one would expect to heal with no residual problem. There was also an undisplaced fracture of the styloid process of the fifth metatarsal. Again, that was undisplaced, so one would expect a full recovery from that fracture of the long fifth bone in the left foot. In other words, Ms Orrock appears to have made a complete recovery, whereas the offender himself has not.

11. As a result of the offending, the State Parole Authority made an order revoking the intensive correction order on 14 July 2020. The SPA sentenced the offender to imprisonment for eight months and six days. That dated from 18 June 2020 to 23 February 2021; that is, for the unexpired period of the ICO imposed by the Newcastle Local Court back on 24 February 2020.

12. In respect of the driving whilst disqualified offence, Magistrate Maiden imposed a fixed period of imprisonment of five months commencing on 3 July 2020 in respect of the police pursuit. His Honour imposed a head sentence of 22 months imprisonment with a non-parole period of 15 months. That sentence also commenced on 3 July 2020. The non-parole period is due to expire on 2 October 2021. Of course, the evidence that was before the learned magistrate is unknown to me but often the evidence before me on appeal is much more extensive than it ever was before a sentencing magistrate.

13. The offender comes from a disadvantaged family background. He was one of seven siblings, the second youngest in his family group. Not all of his siblings were full siblings. There were a number of fathers to the siblingship. The offender’s natural father was abusive towards the offender’s mother and children, and an order was made against him which I understand to have been made when the offender was five years old. However, he returned to live with his father at the age of 12, and at the age of 13 his father introduced him to illicit drugs, giving him methamphetamine to celebrate his 13th birthday. Unsurprisingly, the offender would not have realised the addictive nature of the drug and he went on to become addicted to drugs.

14. His schooling was interrupted. He told me that he only served half of year 7 and half of year 9 and missed year 8 completely. He did not obtain the School Certificate. He has had different jobs since then, the significant jobs being in scaffolding and bricklaying. His work history has been gravely affected by his addiction to illicit drugs.

15. He underwent a drug rehabilitation programme with The Glen which finished on 6 February 2020 and no doubt influenced the Newcastle Local Court in imposing the ICO on 24 February 2020. The offender again wants the opportunity to go back and find his own accommodation, find work which he believes he can easily do in the scaffolding industry and told me why and that appears to be a good plan, and he wants to stay abstinent from drugs because of the problems that he has found himself in, in particular being in gaol and suffering as a result of it.

16. For some reason, he is suspected by a group of prisoners of being a “dog” and has been assaulted on at least three occasions; 7 January 2021, 13 January 2021 and 1 February 2021. As a result, he is now in segregation. He is a sole prisoner in a single cell, allowed out of his cell for one hour a day to exercise in a “cage”. It may be that things could be improved for him custodially if he were moved to another correctional centre but unfortunately the criminal gang who are inflicting the punishment on him have a reach into most correctional centres. In other words, not only is the offender a person with a disadvantaged background, for which he bears no responsibility whatever, but also he is finding his experience of custody extremely difficult and that has led him to be treated for various problems, including a fracture of the frontal process of the right maxilla and an undisplaced fracture of the nasal bone.

17. The appellant is currently 20 years old. This was his first experience of adult custody. He did have a short period in juvenile detention but that was for less than a month. The circumstances are completely different.

18. I have reached the view that the penalty imposed is excessive and that the community can be adequately protected by the sentences which I intend to impose.

19. For those reasons, I set aside the sentences passed by the Local Court at Maitland on 10 November 2020. In lieu thereof for the sequence 1 offence the offender is sentenced to imprisonment. I set a non-parole period of eight months commencing on 3 July 2020 and expiring on 2 March 2021. I impose a further period of imprisonment of four months to commence upon the expiration of the non-parole period and expiring on 2 July 2021. The total sentences therefore is one year comprising the non-parole period and the balance of the sentence. I have found special circumstances. The offender is eligible to be considered for release on parole at the expiration of the non-parole period.

20. For the sequence 3 offence under s 8 of the Crimes Sentencing Procedure Act 1990, I order that you be released on a Community Correction Order for a period of 18 months commencing on 2 March 2021. The conditions of the order are as follows:

1. you are not to commit any offence;

2. you are to appear before the Court if called upon to do so at any time during the term of the Community Correction Order;

3. you must participate in rehabilitation/treatment programme as directed by Community Corrections;

4. you must abstain from illicit drugs;

5. you are to submit to supervision by a Community Corrections officer.

You are to report to a Community Corrections office within seven days of your release.

21. In respect of the sequence 1 offence, disqualified for two years. In respect to the sequence 3 offence, disqualified for six months.

**********

Decision last updated: 01 November 2021