Courtney v The The King

[2022] NSWCCA 223

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Courtney v R [2022] NSWCCA 223

Hearing dates:

8 June 2022

Date of orders:

14 October 2022

Decision date:

14 October 2022

Before:

Meagher JA at [1]
Mitchelmore JA at [8]
Bellew J at [18]

Decision:

(1) Leave to appeal is granted.

(2) The appeal is dismissed.

Catchwords:

CRIMINAL LAW – Offences – Sentence – Where applicant pleaded guilty to using an offensive weapon to avoid lawful apprehension or detention – Whether the sentencing judge erred in finding that the offending was aggravated by the fact that victims were police officers – Whether that finding reflected double counting – Whether the legislature specifically intended to protect police in enacting the statutory provision pursuant to which the applicant was charged – Where a number of other legislative provisions conferred a power of arrest on persons other than police – No error established

CRIMINAL LAW – Offences – Sentence – Where applicant pleaded guilty to using an offensive weapon to avoid lawful apprehension or detention – Where applicant asked the sentencing judge to take into account an additional matter on a Form 1 of taking and driving a conveyance without consent – Where further matter of driving whilst disqualified contained in a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) – Whether sentencing judge erred by taking into account the Form 1 offence when assessing the objective seriousness of the offence of driving whilst disqualified to which the Form 1 did not attach – Error established leading to the necessity to re-sentence – Serious offending requiring a strong element of general deterrence – Guarded prospects of rehabilitation dependent upon the applicant addressing his drug addiction – No lesser sentence warranted in law – Leave to appeal granted – Appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Customs Act 1901 (Cth)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Migration Act 1958 (Cth)

Road Transport Act 2013 (NSW)

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413

Aloniu v R [2017] NSWCCA 74

Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Cotter v R [2020] NSWCCA 299

Currie v R [2013] NSWCCA 267

Elyard v R [2006] NSWCCA 43

Mansour v R [2011] NSWCCA 28

Mulato v R [2006] NSWCCA 282

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v Bazzi [1999] NSWCCA 346

R v Hamilton (1993) 66 A Crim R 575

R v Perez Court of Criminal Appeal (NSW) 11 December 1991 (unreported)

R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145

R v Yildiz [2006] NSWCCA 97

Sharpe v R [2006] NSWCCA 255

Trejos v R [2017] NSWCCA 122

Warner v R [2013] NSWCCA 10

Category:

Principal judgment

Parties:

Jack Courtney – Applicant
Regina – Respondent

Representation:

Counsel:
T Ramrakha – Applicant
A Morris – Respondent

Solicitors:
Legal Aid NSW – Applicant
C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s):

2020/161357

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

14 May 2021

Before:

His Honour Judge Abadee SC

File Number(s):

2020/161357

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant came to the attention of police when, as he was driving his vehicle approaching an intersection, he cut the corner without slowing down before picking up speed. Police activated the warning lights on their vehicle and followed the applicant, who initially slowed down before accelerating away. Police then deactivated their warning lights but continued to follow the applicant's vehicle from a distance. After a period of time, police again activated their warning lights, following which the applicant stopped in the middle of the road. The police stopped behind him. The police then saw the reversing lights on the applicant's vehicle become illuminated, at which point the applicant reversed into the front of the police vehicle, damaging its bonnet. The applicant then drove 50m forward before stopping again. The police followed him and stopped their vehicle about 20m behind. Approximately 15 seconds later, police again saw the reversing lights on the applicant's vehicle become illuminated, at which point he again reversed into the front of the police vehicle causing further damage, including the dislodgement of the registration plate. The applicant then drove towards a nearby intersection. The police followed him again. The applicant stopped his vehicle and, at that point, what the sentencing judge described as the “already familiar pattern” occurred again. The applicant reversed into the front of the police vehicle, causing further damage. The applicant then drove away and was again followed by police. Having travelled a distance of approximately 100m, he stopped again before doing a U-turn and driving in the direction of the police. Despite the police attempting to take evasive action, the applicant collided with their vehicle, causing the airbags to deploy and the vehicle to be immobilised. The applicant drove away and his vehicle was found abandoned the following day. He was arrested by police several days later.

The applicant subsequently pleaded guilty in the District Court to an offence of using an offensive weapon with intent to prevent his lawful apprehension, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW) (the sequence 4 offence). When being sentenced for that offence, which carried a maximum penalty of 12 years imprisonment, the applicant asked the sentencing judge to take into account a further offence contained in a Form 1 of taking and driving a conveyance without the consent of the owner, contrary to s 154A(1)(a) of the same Act (the Form 1 offence) which carried a maximum penalty of 5 years imprisonment. There was a further offence contained in a certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) of driving whilst disqualified, contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW) which carried a maximum penalty of 12 months imprisonment and an automatic period of licence disqualification of 12 months (the sequence 2 offence).

The sentencing judge gave the following indicative sentences:

1. the sequence 4 offence (taking into account the Form 1 offence) – 5 years imprisonment; and

2. the sequence 2 offence – 6 months imprisonment, with a period of licence disqualification of 12 months.

The sentencing judge imposed an aggregate sentence of 5 years and 3 months imprisonment with a non-parole period of 3 years and 5 months imprisonment. The applicant sought leave to appeal against that sentence on the grounds that the sentencing Judge erred in:

3. double counting the fact that the sequence 4 offence was committed against police officers; and

4. assessing the objective seriousness of sequence 2 by taking into account the fact that the vehicle which was being driven at the time of the offending was stolen and was used to evade police.

Held granting leave to appeal and dismissing the appeal:

Ground 1

Per Bellew J (Meagher and Mitchelmore JJA agreeing):

1. In enacting s 33B of the Crimes Act 1900 (NSW), the Parliament did not intend to specifically protect the police. This had been recognised in a number of previous decisions of this Court: at [1], [8], [44].

R v Perez Court of Criminal Appeal (NSW) 11 December 1991 (unreported); R v Hamilton (1993) 66 A Crim R 575; R v Bazzi [1999] NSWCCA 346; Cotter v R [2020] NSWCCA 299; Sharpe v R [2006] NSWCCA 255 considered.

2. The power to apprehend or detain a person extends beyond police. The fact that a person can be lawfully apprehended or detained by a broad range of persons other than police officers is entirely inconsistent with the proposition that the intention of the Parliament in enacting s 33B was to protect only the police. The Parliament should be viewed as having intended to protect any person effecting the lawful apprehension or detention of an offender: at [1], [8], [51] – [52].

Sharpe v R [2006] NSWCCA 255 followed.

3. The conduct covered by s 33B is the use, by an offender, of an offensive weapon to avoid apprehension or detention. The characteristic that appertains generally to that conduct is the exercise of the power to apprehend or detain. The exercise of such power is not limited to police officers: at [1], [8], [56]

Elyard v R [2006] NSWCCA 43 considered.

4. A factor which is an inherent characteristic of an offence for which an offender is being sentenced cannot be taken into account as an aggravating factor pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) unless its nature or extent in the particular case is unusual. The fact that the present offending involved police officers was not an inherent characteristic of the offence for which the applicant was being sentenced: at [1], [8], [57].

R v Yildiz [2006] NSWCCA 97; Mansour vR [2011] NSWCCA 28; Trejos v R [2017] NSWCCA 122 referred to; Cotter v R [2020] NSWCCA 299 explained.

Ground 2

Per Bellew J:

5. Although not entirely clear, it appeared that the conclusion expressed by the sentencing judge incorporated a finding that the applicant's act of driving whilst disqualified (the sequence 2 offence) elevated the objective seriousness of the offence of using an offensive weapon with intent to avoid lawful apprehension (the sequence 4 offence). Notwithstanding that the applicant's offending arose from the one incident, the sentencing judge was required to fix an appropriate sentence for the offence of driving whilst disqualified (the sequence 2 offence), fix an appropriate sentence for the offence of using an offensive weapon to avoid apprehension (the sequence 4 offence), and then consider questions of cumulation, concurrence and of totality. What the sentencing judge did was sentence the applicant in respect of the sequence 4 offence on the basis that was aggravated by the sequence 2 offence. In doing so, the sentencing Judge engaged in a form of double punishment which was an error: at [68] – [69].

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 referred to.

Per Meagher JA:

6. There was a degree of ambiguity in the reasons of the sentencing Judge and two constructions of such reasons were open. On either construction, ground 2 was made out: [1]; [5] – [7].

Per Mitchelmore JA:

7. In construing the reasons of the sentencing judge, two possible conclusions were open. On either construction, the exercise of the sentencing discretion miscarried. In circumstances where the applicant was being sentenced separately for the sequence 2 offence and the sequence 4 offence, in accordance with the principle of totality, the sentencing judge erred in taking the conduct constituting one of the offences into account as elevating the objective seriousness of the other: at [14] – [15].

R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 referred to.

Re-sentence

Per Bellew J (Meagher and Mitchelmore JJA agreeing):

8. The offending in sequence 4 was obviously serious and involved several separate and distinct instances of the applicant “ramming” into the police vehicle, culminating in his actions of driving directly at that vehicle. The ultimate collision was of sufficient severity to immobilise the police vehicle and to cause the airbags within it to be deployed. The offending was aggravated by the fact that the victims were police officers, who were obviously put at risk by the applicant's conduct. There is a need to protect those who are lawfully apprehending or detaining offenders (in this case, the police). There was also a need for any sentence to incorporate considerations of general deterrence. Further, any sentence imposed for the sequence 4 offence was to be increased by virtue of the Form 1 offence: at [7], [17], [89].

Attorney-General’s Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002; (2002) 56 NSWLR 146; [2002] NSWCCA 518; R v Hamilton (1993) 66 A Crim R 575; R v Perez Court of Criminal Appeal (NSW) 11 December 1991 (unreported) referred to.

9. The offending in sequence 2 was also serious. It involved the applicant driving a motor vehicle whilst disqualified, and thus in breach of an order made by a Magistrate that he not do so: [7], [17], [89].

10. The applicant had expressed some remorse to a psychologist although he had not given evidence in his sentence proceedings. His pleas of guilty were some evidence of remorse and he was entitled to a discount of 25% to reflect the utilitarian value of those pleas: at [7], [17], [90].

11. Whilst there were some positive signs in terms of the applicant's prospects of rehabilitation, those prospects necessarily depended, in large measure, on his continued abstinence from the use of illicit drugs. His prospects of rehabilitation were to be viewed as guarded, as was the likelihood of his re-offending: at [7], [17], [91].

12. A finding of special circumstances was warranted so as to allow the applicant a longer period on parole in order to be given the opportunity to address ongoing issues arising from his drug addiction: at [7], [17], [92].

13. Taking all factors into account, and in the fresh exercise of the sentencing discretion, no other sentence was warranted or should have been passed: at [7], [17], [93].

Judgment

1. MEAGHER JA: There are two grounds of appeal. The first should be dismissed for the reasons given by Bellew J. Ground 2 is directed to the sentencing judge’s remarks extracted by Bellew J at [60] below. I read the last sentence of that paragraph differently from his Honour. At the same time I accept that the paragraph is capable of being understood otherwise than I consider it is to be read; and as it has been understood by Bellew J. On either view ground 2 is made out.

2. At the commencement of his remarks on sentence, the sentencing judge identifies the “principal” offence for which the offender was to be sentenced (using a vehicle as an offensive weapon to prevent his arrest), and the Form 1 offence (taking and driving a vehicle) to be taken into account in accordance with Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 in determining the appropriate penalty for that principal offence. His Honour also notes in that introductory paragraph that the offender is to be separately sentenced for a “related offence” (driving whilst disqualified) in accordance with the procedure in Criminal Procedure Act 1986 (NSW), s 166. Accordingly the offender was being sentenced for two offences, the principal or sequence 4 offence and the s 166 or sequence 2 offence.

3. The critical paragraph extracted at [60] below follows the sentencing judge’s assessment of the objective seriousness of the principal offence. The heading of that paragraph indicates that it is seeking to deal with the Form 1 offence and the s 166 offence. The first two sentences take the circumstances of the Form 1 offence into account with respect to the sentence to be imposed for the principal offence. His Honour does so by finding that the offender’s stealing augments the considerations of specific deterrence and retribution otherwise to be taken into account in respect of the sequence 4 offence. None of that is controversial. See Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22].

4. Focussing then on the last three sentences of the paragraph, the first acknowledges the offender’s guilty plea to the s 166 offence. The second, ignoring for the moment the words in parentheses, notes that at the time that offence was committed the offender was both driving a stolen vehicle (the Form 1 offence) and using it to evade arrest (the sequence 4 offence). The words in parentheses correctly record that the Form 1 offence is to be taken into account when sentencing for the sequence 4 offence.

5. The principal ambiguity arises in the last of the sentences and its two uses of the demonstrative pronoun “this”. The second use, referring to the “kind” of offence being addressed, having regard to the paragraph heading and structure, makes the most sense if it is taken to refer to the s 166 offence. The first “this” undoubtedly refers to something mentioned in the previous sentence which might be thought capable of elevating the objective seriousness of the driving whilst disqualified offence. It is not patently clear whether it is referring to the fact that the offender was driving a stolen vehicle and using it to evade arrest or only the latter, the former having already been “factored” or taken into account in sentencing for the principal offence. The better view, taking account of the use of the word “however”, suggests that in relation to the first “this” the antecedent reference is to the offender’s conduct in using the vehicle “to evade arrest”.

6. Adopting that reading, it follows that the sentencing judge erred in taking into account the sequence 4 offending when assessing the objective seriousness of the sequence 2 offending.

7. For that reason, ground 2 as formulated by the applicant is made out with the consequence that it is necessary for this Court to re-sentence in a fresh exercise of the sentencing discretion. In that respect I agree with Bellew J’s reasons in the exercise of that discretion for concluding that this is not a case in which any other sentence was warranted or should have been passed.

8. MITCHELMORE JA: I have had the benefit of reading in draft the comprehensive reasons for judgment of Bellew J. I agree with his Honour as to Ground 1. I also agree with his Honour’s conclusion that the sentencing judge erred on Ground 2, and wish to make some brief additional comments. What follows assumes familiarity with his Honour’s reasons.

9. The subject of Ground 2 was the sequence 2 offence of driving while disqualified contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW); that offence was the subject of a certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The applicant alleged that the sentencing judge erred in assessing the objective seriousness of sequence 2 by taking into account the fact that the vehicle he was driving was stolen (a separate offence taken into account on a Form 1 for the sequence 4 offence) and was used to evade police (a further offence, being sequence 4).

10. In Mulato v R [2006] NSWCCA 282, Simpson J made the following observations which are pertinent to consideration of Ground 2:

“[46]  The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.

[47]  One consequence of this (which might aptly be termed a separation of powers) is the need for first instance judges to make clear findings of fact, and clear evaluations of such matters as objective seriousness. Absence of clarity in such findings may result in the need for the appellate court to undertake the task itself.”

11. The sentencing judge’s assessment of the objective seriousness of the sequence 2 offence was brief:

“Form 1 offence and s 166 offence

[The applicant] accepts that he was aware that he stole the vehicle. I find that [the applicant’s] stealing of the car augments the considerations of specific deterrence and retribution, ordinarily taken into account for an offence of this kind, on the principal offence. In relation to the s 166 offence, [the applicant] also recognised that he was disqualified when he drove the car. The Court notes that [the applicant] was driving a stolen vehicle (that, however, is factored into the form 1 offence and indirectly in the principal offence) and was using it to evade arrest. I accept that this elevates the objective seriousness of this kind of offence.”

[Emphasis added.]

12. As Bellew J explains, there is no issue with the reasoning in the above passage until the second-last sentence. In that sentence, which is the first that I have emphasised above, his Honour “noted” the context in which the applicant committed the sequence 2 offence: he was driving a stolen vehicle (the Form 1 offence) and he was “using it”, being the stolen vehicle, to evade arrest (the sequence 4 offence). If that sentence were no more than a “note” it would not be problematic, but it is plainly intended to be read with the following sentence. Read together, those two sentences are capable of bearing two meanings, each of which is indicative of error.

13. The ambiguity arises from the use of the word “this” in two places in the last sentence, both of which I have underlined above. The first “this”, at the start of the sentence, can only sensibly be a reference to the content of the previous sentence. What is not clear is whether his Honour intended the “this” to pick up all of the conduct in that sentence, or only the conduct described after the parentheses. The second “this” raises a further ambiguity, as to which of the offences his Honour intended to describe as “this kind of offence”.

14. Bellew J has set out below his reasons for reaching the conclusion that the last sentence should be construed as incorporating a finding that the applicant’s act of driving whilst disqualified (the sequence 2 offence) elevated the objective seriousness of the offence of using an offensive weapon with intent to avoid lawful apprehension (the sequence 4 offence). The alternative reading of the last sentence is that it constitutes a finding that the applicant’s use of the vehicle to evade arrest (the sequence 4 offence) elevated the objective seriousness of the drive whilst disqualified offence (the sequence 2 offence). This alternative reading, which is the basis on which the applicant formulated Ground 2, draws some support from the subject matter of the paragraph, which is the objective seriousness of the Form 1 offence and the sequence 2 offence.

15. On either of the two readings to which I have just referred, even making all due allowance for the ex tempore nature of the sentencing remarks (as to which see [66] of Bellew J’s reasons below), the exercise of the sentencing discretion miscarried. In circumstances where the applicant was being sentenced separately for the sequence 2 offence and the sequence 4 offence (in accordance, of course, with the principle of totality), his Honour erred in taking the conduct constituting one of the offences into account as elevating the objective seriousness of the other: R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 at [28] per Howie J (Grove J and Hall J agreeing).

16. Unless the parenthetical comment is construed as neutralising any reliance on the Form 1 offence to elevate objective seriousness, on the alternative construction that I have identified above his Honour likely made a further error. On that construction, his Honour would have taken the Form 1 offence into account to elevate the objective seriousness of the sequence 2 offence, to which the Form 1 offence did not attach. In light of the error already identified, which itself calls for re-sentence, it is not necessary to consider this further.

17. I agree with the careful re-sentencing exercise that Bellew J has undertaken, and with the orders his Honour proposes.

18. BELLEW J: Jack Courtney (the applicant) pleaded guilty in the District Court to an offence of using an offensive weapon with intent to prevent his lawful apprehension (“the sequence 4 offence”), contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW) (“the Act”). When being sentenced for that offence, which carries a maximum penalty of 12 years imprisonment, the applicant asked the sentencing judge to take into account a further offence contained in a Form 1 (“the Form 1 offence”) of taking and driving a conveyance without the consent of the owner, contrary to s 154A(1)(a) the Act. The Form 1 offence carries a maximum penalty of 5 years imprisonment.

19. There was a further offence contained in a certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) of driving whilst disqualified, contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW) (“the sequence 2 offence”). The sequence 2 offence carries a maximum penalty of 12 months imprisonment, and an automatic period of licence disqualification of 12 months.

20. The sentencing judge gave the following indicative sentences:

1. the sequence 4 offence (taking into account the Form 1 offence) – 5 years imprisonment; and

2. the sequence 2 offence – 6 months imprisonment, with a period of licence disqualification of 12 months.

21. The sentencing judge imposed an aggregate sentence of 5 years and 3 months imprisonment commencing on 22 December 2020 and expiring on 21 March 2026, with a non-parole period of 3 years and 5 months imprisonment commencing on 22 December 2020 and expiring on 21 May 2024.

22. The applicant now seeks leave to appeal against that sentence on the grounds considered and discussed below.

THE FACTS OF THE OFFENDING

23. The sentencing judge found the facts of the offending to be as follows. [1]

    1. AB 18 – 20.

24. On 24 May 2020, police were patrolling in the vicinity of Erina on the NSW Central Coast. The applicant came to the attention of police when, as he was approaching an intersection, he cut a corner without slowing down before picking up speed. The police activated the warning lights on their vehicle and followed the applicant, who initially slowed down before accelerating away. Police then deactivated their warning lights but continued to follow the applicant's vehicle from a distance.

25. After a period of time, police again activated the warning lights on their vehicle, following which the applicant stopped in the middle of the road. The police stopped behind him. The police then saw the reversing lights on the applicant's vehicle become illuminated, at which point the applicant reversed into the front of the police vehicle, damaging its bonnet.

26. The applicant then drove 50m forward before stopping again. The police followed him and stopped their vehicle about 20m behind. Approximately 15 seconds later, the police again saw the reversing lights on the applicant's vehicle become illuminated, at which point he reversed into the front of the police vehicle causing further damage, including the dislodgement of the registration plate.

27. The applicant then drove towards a nearby intersection. The police followed him again. The applicant stopped his vehicle. At that point, what the sentencing judge described as “the already familiar pattern” happened again. The applicant reversed into the front of the police vehicle, causing further damage.

28. The applicant drove away and was again followed by the police. Having travelled a distance of approximately 100m, he stopped again before doing a U-turn and driving in the direction of the police. Despite the police attempting to take evasive action, the applicant collided with their vehicle, causing the airbags to deploy and the vehicle to be immobilised. The applicant drove off and his vehicle was found abandoned the following day. He was arrested by police six days later.

THE GROUNDS OF APPEAL

Ground 1 – The sentencing judge erred by double counting the fact that Sequence 4 was committed against police officers

The sentence proceedings

29. In written submissions provided to the sentencing judge, and by reference to s 21A(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”), the Crown made the following submission as to the aggravation of the sequence 4 offence:[2]

The victim was a police officer. It is an element of [the sequence 4 offence] that a weapon is used to prevent lawful apprehension, however it is not specifically an element that that apprehension is by a police officer. It is accepted by the Crown that no injuries were sustained by the officers attempting to apprehend the offender. The Crown submits however that the offensive weapon, namely the vehicle, was used against [the police] and so the offence was aggravated pursuant to s 21A(2)(a).

2. AB 103 at [14].

30. In advancing this submission, the Crown referred the sentencing judge to the decision of this Court in Sharpe v R. [3]

    3. [2006] NSWCCA 255 at [71].

31. In responding to the Crown’s position, the applicant’s solicitor put the following in written submissions: [4]

[The fact that the victim was a police officer] has also been recognised as an aggravating factor for matters such as the present. However, this has been in the context of the officer being a victim as a result of injuries being occasioned. It is submitted that this is not an aggravating factor in the present matter.

4. AB 112.

32. The applicant’s solicitor cited the decision of this Court in Cotter v R [5] as authority for the proposition that in the case of an offence contrary to s 33B(1)(a) of the Act (i.e. the sequence 4 offence) the fact that the victim is a police officer will only aggravate the offending if the officer is injured.

    5. [2020] NSWCCA 299.

33. In oral submissions, the following exchange took place between the applicant's solicitor and the sentencing judge in relation to this issue: [6]

    6. AB 167.37 – AB 169.5.

SOLICITOR: The Crown have also relied upon the aggravating factor that the victims were police officers. In my submission, your Honour, that aggravating factor does not apply in the present case. The potential danger to police is a matter which elevates the objective seriousness as the Crown, in my submission, correctly notes, however for it to operate – firstly, for the Court to take that fact into account as an aggravating factor – –

HIS HONOUR: Sorry, which factor is that, that you’re referring to?

SOLICITOR: Firstly, of the potential danger to the police.

HIS HONOUR: You say that can be taken into account?

SOLICITOR: That is a matter that is to be taken into account.

HIS HONOUR: But you say that the status of them as being police officers can't be?

SOLICITOR: No, your Honour, it can and it should be, in terms of the assessment of objective seriousness. My submission relates to whether the aggravating factor under section 21(a), [sic] that the police officers were victims actually applies.

HIS HONOUR: I see. Are you saying that the status comes into focus only in the objective gravity, but not the aggravation aspect?

SOLICITOR: Yes, your Honour, that's my submission.

HIS HONOUR: What, in practical terms, difference does it make? It elevates the objective gravity – –

SOLICITOR: It does.

HIS HONOUR: – – but it's not an aggravating circumstance.

SOLICITOR: In terms of the overall sentence, it may not make a difference. But there are cases, including one of the cases that I've cited of Cotter, where the aggravating factor of a victim being a police officer was found, but that was in the context of the police being injured by the act.

HIS HONOUR: If I look at Cotter though, I must say I found that distinction elusive. On para 33 of Cotter – –

SOLICITOR: Yes, your Honour:

HIS HONOUR: – – Court of Criminal Appeal separated what it identified as the aggravating factors and one of those was the status of the victim as being a police officer. And then it went on in 34 to say something else – 33 roman number 1. 34 was something additional which went more to the aspect of objective gravity.

SOLICITOR: Yes, that's correct, your Honour, that's right. At para 34, that is additional to the finding that the matter was aggravated by the fact that the offending was committed – –

HIS HONOUR: It doesn't use the word aggravation, which is [sic] does in 33. It seems to me, 34 is directed more towards the objective circumstances.

SOLICITOR: Yes, your Honour, and that's my submission. The fact that they were police officers elevates the objective seriousness of the offending.

HIS HONOUR: In 33, the Court of Criminal Appeals [sic] says the fact that they were police officers makes what would otherwise be the objective circumstances aggravated.

SOLICITOR: What it says, your Honour, is it was aggravated by the fact that a victim was a police officer. What I'm submitting is in Cotter, the police officer was a victim because the police officer occasioned injuries as a result of the offending.

The reasons of the sentencing judge

34. In addressing the objective seriousness of the offending, the sentencing judge made reference [7] to the observations of Gleeson CJ in R v Hamilton,[8] and to those of Kirby P in R v Perez, [9] regarding the nature of offending contrary to s 33B of the Act, before concluding that the offending in the present case fell in the mid-range. [10] Having addressed matters which are the subject of ground 2, his Honour turned to the issue of aggravating factors applicable to the sequence 4 offence and said the following: [11]

The Crown submitted that the circumstance that the victims were police officers is an aggravating circumstance for the purposes of s 21A(2)(a) of the Crimes Act (Sentencing Procedure) Act 1999 (NSW), (‘the CSP Act’). The Crown cited the Court of Criminal Appeal's decision in Sharke [sic] v R [2006] NSWCCA 255 at [71], to support its contention that the identity of the victim or victims as a police officer or officers was not inherent in the offence. In Sharke [sic], the Court of Criminal Appeal recognised that for the purposes of s 33B of the Crimes Act, arrests may be made by, for example, security officers. [The applicant] opposed this submission. His legal representative argued in his written submissions that the presence of a police officer could only aggravate the offending if the officer is an actual victim as a result of injuries occasioned by the use of offending, citing Cotter v R [2020] NSWCCA 299 (“Cotter”) at [34] where, on the same charge, the Court of Criminal Appeal noted that it was relevant to the objective gravity that the officer was injured.

However, [the applicant’s] submission neglects what the Court of Criminal Appeal said at [33], which supports the Crown construction that the circumstance that a victim as a police officer is, of itself, properly to be treated as an aggravating factor.

7. AB 20 – 22.

8. (1993) 66 A Crim R 575 (“Hamilton”).

9. (Court of Criminal Appeal (NSW) 11 December 1991, unreported (“Perez”).

10. AB 22.

11. AB 22 – 23.

Submissions of the applicant

35. Counsel for the applicant advanced three submissions in support of this ground.

36. First, it was submitted that this Court had, in previous decisions, recognised that Parliament’s enactment of s 33B of the Act was specifically intended to protect police officers acting in the course of detaining or apprehending suspected offenders. It was submitted that in finding that the offending was aggravated by the fact that the victims were police officers, the sentencing judge had effectively ignored those decisions and had erred by engaging in a process of double counting.

37. Secondly, counsel submitted that the fact that a police officer was acting in the course of detaining or apprehending a suspected offender was a characteristic which applied generally to the offence created by s 33B of the Act. It was submitted that this provided further support for the conclusion that the sentencing judge had erred by double counting.

38. Thirdly, whilst accepting that there may be cases in which an offence contrary to s 33B could be aggravated by the fact that the victim was a police officer, counsel submitted that the “better view” was that it was open to take that factor into account only if there was something particular or unusual about the circumstances of the offending. It was submitted that in such a case, it was necessary that there be some explanation of how and why that factor applied, and that the absence of such an explanation in the present case was a further indication of error.

Submissions of the Crown

39. The Crown acknowledged that it would be an error for a sentencing judge to take into account, as an aggravating factor, something that was already an element of the offence. However, it was submitted that there was no basis upon which to conclude that it had been the Parliament’s intention, in enacting s 33B of the Act, to protect only police officers. The Crown pointed out that in none of the authorities relied upon by the applicant had this Court been required to specifically consider the construction of s33B, or the legislative intention underlying it.

40. The Crown also acknowledged that an error would be made out if a sentencing judge took into account, as an aggravating factor, an inherent characteristic of the offence, or a characteristic that applied generally to conduct covered by the offence. However, the Crown submitted that lawful apprehension or detention of an offender by the police was not such a characteristic.

41. In all of these circumstances, it was submitted that no error had been established.

CONSIDERATION

42. Section 33B of the Act is in the following terms:

Use or possession of weapon to resist arrest etc

(1) Any person who--

(a) uses, attempts to use, threatens to use or possesses an offensive weapon or instrument, or

(b) threatens injury to any person or property,

with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself or herself or any other person or to prevent or hinder a police officer from investigating any act or circumstance which reasonably calls for investigation by the officer is liable to imprisonment for 12 years.

(2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 15 years.

43. Section 33B is contained in Division 6 of Part 3 of the Act. Division 6 addresses acts causing danger to life or bodily harm. Part 3 addresses offences against the person. Assaults and other acts against police and law enforcement officers are addressed separately in Division 8A. That general structure provides the context in which s 33B is to be considered.

44. The first proposition advanced by counsel for the applicant was that the parliamentary intention in enacting s 33B of the Act was specifically to protect the police, and that this had been recognised in a number of decisions of this Court. The first of those decisions relied upon by counsel was Perez in which, in the context of addressing a submission as to the imposition of a custodial sentence on the offender, Kirby P said the following:

Parliament has provided the subject offences to mark the special disapprobation of our community to the conduct of using weapons or otherwise threatening injury to escape lawful apprehension or detention by a member of the police force or to prevent or hinder police investigation where that is reasonably called for. The fact that the section has never previously come under the scrutiny of this Court is perhaps an indication that our society has been relatively free of such conduct. In this, it stands in stark contrast to the societies portrayed daily both in news items and dramas on the television screen. The provision of the specific offence found in s 33B of the Crimes Act was obviously intended by Parliament to keep our community free of just the kind of conduct of which the jury convicted the appellant in this case. I refer to driving a large, powerful motorcar at uniformed or identified policemen in an attempt to escape investigation by police where the requirement to submit to investigation is adequately clear and the identity of the member of the police force is sufficiently plain. The picture of such conduct as occurred in this case, with a police revolver firing and a chase through busy city streets on a weekday afternoon, defying red traffic lights and seeking recklessly to escape investigation is completely unacceptable (emphasis added).

45. The decision in Hamilton was also referred to by counsel for the applicant. In that case, Gleeson CJ said: [12]

… [O]ffences against section 33B, which make it unlawful to use an offensive weapon or instrument with intent to prevent lawful apprehension, are regarded by the Court extremely seriously. It is incumbent upon the Court, in dealing with offences of this nature, to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task (emphasis added).

12. At 581.

46. The observations of Kirby P in Perez, as well as those of Gleeson CJ in Hamilton, were obiter. The Court was not asked, in either case, to specifically consider the provisions of s 33B of the Act, or the Parliament’s intention in enacting them. These authorities provide limited assistance to the applicant in support of this ground.

47. Counsel for the applicant also relied upon the decision of this Court in R v Bazzi [13] in which Smart AJ (with whom Simpson J (as her Honour then was) agreed) said the following:

One of the objects of s 33B, when it was introduced into the Crimes Act 1900 in 1989 was to provide protection to the police and others who lawfully detained those reasonably suspected of committing an offence (emphasis added).

13. [1999] NSWCCA 346 at [11].

48. Those observations were again obiter. That said, the italicised portion does not support the first submission advanced by counsel for the applicant in support of this ground.

49. As I have outlined above,[14] it was put to the sentencing judge in the present case that the decision in Cotter v R [15] was authority for the proposition that offending of this kind against a police officer is aggravated only where the officer has been injured. That position was maintained, albeit with some reservation, by counsel for the applicant before this Court. [16] When re-sentencing the offender in Cotter, I concluded (with the concurrence of Payne JA and Wright J) that the relevant conduct (which was not dissimilar to that of the applicant in the present case) was aggravated by the fact that the victim was a police officer. No contrary submission was put to the Court on that occasion. The decision in Cotter does not stand as authority for the proposition that offending of this kind against a police officer is aggravated only where the officer has been injured. Nowhere in the judgment in Cotter is there any statement to that effect.

    14. At [16].

    15. [2020] NSWCCA 299 at [33].

    16. T 6.3 – 6.38.

50. In Sharpe v R [17] this Court dealt with an application for leave to appeal against a sentence imposed following the commission of an offence contrary to s 33B(2) of the Act. In addressing a submission that the sentence imposed was manifestly excessive, Johnson J (with whom the other members of the Court agreed) made reference to the observations of Gleeson CJ in Hamilton before saying the following:[18]

[71] In the present case, the s.33B offence was committed against a security officer who was attempting, in the discharge of his duties, to effect the lawful apprehension of the Appellant and his co-offenders. Of course, s.33B is not confined to apprehension by police officers. The security officer in this case was in uniform and was driving a marked vehicle. From his words and conduct, it was apparent to the Appellant that Mr Mahara was seeking to exercise his lawful functions with respect to persons who had been caught in the act of committing a serious crime. In my view, the serious approach adopted by the courts with respect to s.33B offences committed against police officers extends to such offences committed against security officers in the exercise of their lawful duties (my emphasis).

17. [2006] NSWCCA 255.

18. At [71].

51. It follows from the above analysis that the authorities relied upon by counsel for the applicant do not support the first submission advanced in respect of this ground. Further, the judgment of Johnson J in Sharpe tends wholly against the applicant’s position, and recognises that the power to apprehend or detain a person extends beyond police. Johnson J cited the example of a security guard as a person other than a police officer who had a power of arrest. There are many other examples, including the following:

1. s 100 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) confers a power on a person other than a police officer to arrest a person without a warrant in certain prescribed circumstances;

2. s 210 of the Customs Act 1901 (Cth) confers a power of arrest on a Customs officer;

3. s 189 of the Migration Act 1958 (Cth) confers a power of detention on a departmental officer;

4. s 253I(6) of the Crimes (Administration of Sentences) Act 1999 (NSW) confers a power of arrest on a correctional officer.

52. The fact that a person can be lawfully apprehended or detained by a broad range of persons other than police officers is entirely inconsistent with the proposition that the Parliament’s intention in enacting s 33B of the Act was to protect only the police. The Parliament should be viewed as having intended, by the enactment of s33B, to protect any person effecting the lawful apprehension or detention of an offender.

53. For all of these reasons I am unable to accept the first submission advanced by counsel in support of this ground.

54. Counsel’s second submission, namely that the fact of being a police officer acting in the course of apprehending a suspected offender is a characteristic which applies generally to the conduct covered by s 33B, was based primarily on the judgment of Basten JA in Elyard v R [19] where his Honour said the following:

[17] As discussed above, it is necessary to distinguish cases where a factor identified in sub-s 21A(2) as an aggravating factor is an element of an offence or, in the sense described above, an inherent characteristic or a characteristic that appertains generally to conduct covered by that offence, on the one hand, and other conduct which cannot properly be so described. Driving a motor vehicle whilst inebriated describes a range of conduct and a range of potential offences; in the case of some offences, including the present one, the conduct which includes the circumstance of aggravation in question, might be said to demonstrate an absence of regard for public safety in a more direct and obvious manner than a deemed supply of heroin. In any event it is sufficient to say that the distinction does not operate in the way suggested by Brownie AJA in Ancuta in relation to circumstances of the present case (my emphasis).

19. [2006] NSWCCA 43 at [17].

55. Counsel for the applicant relied upon the italicised portion of that passage of his Honour’s judgment to support the submission that the sentencing judge had engaged in double counting. It was submitted, in particular, that the characteristic of being a police officer effecting an offender’s apprehension was one which appertained generally to the conduct covered by s 33B.

56. I am unable to accept that submission. Adopting the terminology used by Basten JA, the conduct covered by s 33B is an offender’s use of an offensive weapon to avoid apprehension or detention. The characteristic that appertains generally to that conduct is the exercise of the power to apprehend or detain. For the reasons previously outlined, the exercise of such a power is not limited to police officers.

57. The third submission advanced in support of this ground, namely that the fact that the victim is a police officer can only be taken into account in sentencing for an offence contrary to s 33B if there is something particular or unusual about the circumstances of the offending, is not supported by the authorities on which counsel relied. Those authorities establish that a factor which is an inherent characteristic of the offence for which an offender is being sentenced cannot be taken into account as an aggravating factor under s 21A(2) of the Sentencing Act unless its nature or extent in the particular case is unusual. [20] For the reasons previously stated, the fact that the offending involved a police officer was not an inherent characteristic of the offence for which the applicant was being sentenced. As I understood it, counsel effectively conceded that to be the case in the course of oral argument before this Court. [21]

    20. See R v Yildiz [2006] NSWCCA 97 at [37]; Mansour v R [2011] NSWCCA 28 at [46]; Trejos v R [2017] NSWCCA 122 at [55].

    21. T 3.31 – T 3.37.

58. For all of these reasons, ground 1 is not made out.

Ground 2 – The sentencing judge erred in assessing the objective seriousness of sequence 2 by taking into account the fact that the vehicle the applicant was driving was stolen and was used to evade police

The reasons of the sentencing judge

59. In order to place the relevant part of the reasons of the sentencing judge into their proper context, it is necessary to bear in mind the following:

1. the sequence 2 offence (driving whilst disqualified) was referred to by his Honour as “the s 166 offence”;

2. the sequence 4 offence (the offending contrary to s 33B of the Act) was referred to by his Honour as “the principal offence”; and

3. the Form 1 offence was the offence of taking and driving a conveyance without the consent of the owner.

60. With those matters in mind, his Honour said the following: [22]

Form 1 offence and s 166 offence

[The applicant] accepts that he was aware that he stole the vehicle. I find that [the applicant’s] stealing of the car augments the considerations of specific deterrence and retribution, ordinarily taken into account for an offence of this kind, on the principal offence. In relation to the s 166 offence, [the applicant] also recognised that he was disqualified when he drove the car. The Court notes that [the applicant] was driving a stolen vehicle (that, however, is factored into the form 1 offence and indirectly in the principal offence) and was using it to evade arrest. I accept that this elevates the objective seriousness of this kind of offence.

22. AB 22.

Submissions of the applicant

61. Counsel for the applicant submitted that the above passage reflected that the sentencing judge had erred in:

1. taking into account the offending in sequence 4 when assessing the objective seriousness of the offending in sequence 2; and

2. taking into account the Form 1 offence when assessing the objective seriousness of the offending in sequence 2.

62. As to the first issue, counsel submitted that because the applicant was to be sentenced separately for the sequence 2 offence, it was impermissible for the sentencing judge, when assessing its objective seriousness, to take into account the sequence 4 offence.

63. As to the second issue, counsel submitted that the sentencing judge had erred because the Form 1 offence could be taken into account only in accordance with the procedure for which provision is made in the Sentencing Act. That procedure, it was submitted, permitted the Form 1 offence to be taken into account when determining the penalty for the offence to which it attached (i.e. the sequence 4 offence). Counsel submitted that the Form 1 procedure did not extend to allowing the sentencing judge to use the Form 1 offence to assess the objective seriousness of the sequence 2 offence.

Submissions of the Crown

64. The Crown submitted that the approach of counsel for the applicant to this ground would, if accepted, bring about an artificial result. The Crown pointed out that the entirety of the applicant’s offending arose out of the one episode of driving in which:

1. the applicant used the vehicle as an instrument to avoid apprehension;

2. the vehicle was stolen; and

3. the applicant was disqualified from driving.

65. It was submitted that it was permissible in these circumstances for the sentencing judge to adopt the approach that he did and that, properly understood, the passage of his Honour’s reasons extracted above did not reflect error.

Consideration

66. In considering this ground, I should acknowledge at the outset that the reasons of the sentencing judge were delivered ex-tempore, immediately following the submissions of the parties. I am therefore mindful of previous statements of this Court which emphasise that reasons which are delivered by a sentencing judge in those circumstances should not be over-analysed, much less parsed. [23] At the same time, given the bases on which this ground is put, there is a fundamental necessity to determine what finding(s) the sentencing judge actually reached in the passage of his reasons extracted above, and whether any such finding(s) reflect error, in circumstances where his Honour’s ultimate conclusion is somewhat opaque.

    23. See for example Warner v R [2013] NSWCCA 10 at [33]; Currie v R [2013] NSWCCA 267 at [50]; Aloniu v R [2017] NSWCCA 74 at [55].

67. It is apparent that his Honour found, firstly that the applicant's theft of the vehicle (the Form 1 offence) “augment[ed] the considerations of specific deterrence and retribution … on the principal offence” (i.e. the sequence 4 offence), and secondly that “[the applicant] was driving a stolen vehicle” and that this was “factored into the Form 1 offence” and “indirectly into the principal offence”. In my view, neither of those findings reflect error.

68. However, having then found that the applicant recognised that he was driving whilst disqualified, and having noted that the applicant was driving a stolen vehicle which he was using to evade arrest, his Honour concluded that “this elevates the objective seriousness of this kind of offence”. Although it is not entirely clear, I construe that conclusion as incorporating a finding that the applicant’s act of driving whilst disqualified (the sequence 2 offence) elevated the objective seriousness of the offence of using an offensive weapon with intent to avoid lawful apprehension (the sequence 4 offence).

69. Although the entirety of the applicant’s offending arose from the one incident, his Honour was required to fix an appropriate sentence for the offence of driving whilst disqualified (the sequence 2 offence), fix an appropriate sentence for the offence of using an offensive weapon to avoid apprehension (the sequence 4 offence), and then consider questions of cumulation, concurrence and totality. [24] In my view, what his Honour did was sentence the applicant for the sequence 4 offence on the basis that it was aggravated by the sequence 2 offence. In doing so, his Honour engaged in a form of double punishment, which was an error. For these reasons, ground 2 is made out.

    24. Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at 623-624; [45].

70. There was, as outlined above, a second error relied upon by counsel for the applicant concerning what was said to be his Honour’s impermissible use of the Form 1 offence to assess the objective seriousness of the sequence 2 offence. The manner in which a Form 1 offence is to be taken into account is governed by s 33 of the Sentencing Act. Section 33(2) confers a power upon a sentencing Court to take a further offence into account “in dealing with the offender for the principal offence”. The sentencing judge was required to take the Form 1 offence into account in a specific way, namely with a view to increasing the penalty for the sequence 4 offence by giving greater weight to the need for personal deterrence, and to the community’s entitlement to extract retribution for serious offences when there are other offences for which no punishment will be imposed. [25]

    25. Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 (“Attorney-General’s Reference”) at [42] per Spigelman CJ, Wood CJ at CL, Grove, Sully and James JJ agreeing.

71. The submissions of counsel for the applicant in this respect proceeded on the basis that the final sentence in the passage of his Honour’s reasons extracted above should be construed as reflecting his Honour having taken into account the Form 1 offence, not in the prescribed way as outlined above, but to elevate the objective seriousness of the sequence 2 offence. I have construed his Honour’s reasons differently and have concluded that on the basis of that construction, error is made out. If counsel’s construction were adopted, a different error would arguably be made out, because proceeding in the way counsel has submitted would be contrary to the Form 1 procedure outlined above. However in the circumstances, it is not necessary to consider the issue any further. Error having been established, it is necessary for this Court to re-sentence the applicant in the fresh exercise of the sentencing discretion.

RE-SENTENCE

72. The facts of the offending have already been set out. I adopt the factual findings of the sentencing judge for the purposes of re-sentence.

73. Two affidavits were read on the question of re-sentence, namely:

1. the applicant of 30 May 2022 (read by the applicant); and

2. the affidavit of Adrienne Ey of 30 May 2022 (read by the Crown).

74. I have made reference to relevant parts of each of these affidavits below.

The applicant’s subjective case

75. Tendered before the sentencing judge was a report of Anita Duffy, Psychologist, from which I draw the following summary of the applicant's background. [26]

    26. AB 116 – 127.

76. The applicant was born 30 January 1992 and is now 30 years of age. He is the youngest of three brothers and grew up in a supportive family environment. He left school at the end of Year 10, following which he pursued various forms of employment until he lost his driver’s licence and was unable to continue working. He has a daughter from a previous relationship who was born in September 2016.

77. The applicant reported binge drinking from age 16 to 17. He was a heavy user of cocaine from about 19 to 20 years of age. He commenced taking amphetamines in his early 20s. He described a pattern of using methamphetamine and alcohol together, which resulted in his resorting to heroin. He described this pattern of behaviour as a “crazy merry-go-round”.

78. The applicant told Ms Duffy that when he was stopped by the police on the day of the offending he had been convinced that the police were trying to kill him. He said that he went into “panic mode” with these thoughts in his head.

79. Significantly, in the light of the applicant’s custodial history discussed further below, Ms Duffy reported: [27]

Now that he is drug-free and sober, he has looked back on his offence with considerable horror, as someone could have been injured or killed. He said “no-one in their right mind would reverse into a police car”. He expressed remorse over his behaviour and keeps thinking “what have I done”.

27. AB 122.

80. With the benefit of psychometric testing, Ms Duffy diagnosed the applicant as suffering from:

1. a stimulant use disorder of moderate severity;

2. an alcohol use disorder of moderate severity; and

3. post-traumatic stress disorder.

81. She concluded: [28]

Since his arrest for the index offences, [the applicant] has been in a three-month residential rehabilitation program at Niagara Lodge, and has not resumed using substances. He acknowledged that he needs to address the underlying emotional issues related to his substance use disorder at the time of the offences and has expressed motivation to continue a rehabilitation program.

28. AB 126.

82. In terms of post-release arrangements, Ms Duffy said: [29]

After release, [the applicant] should have close supervision and monitoring to prevent a resumption of substance use. He could see a psychologist who is expert in providing therapy for trauma, and may be eligible for up to 22 sessions with an accredited professional for treating victims of crime via Victims Services …

In addition to addressing substance use disorder and if possible, the underlying depression, anxiety and trauma, [the applicant's] risk of re-offending would be substantially reduced if he were able to maintain regular employment. [The applicant] is also motivated to desist from drugs and associated crime by the desire to restore contact with his daughter. He has the support of his parents and prosocial friends, which is a further protective factor against recidivism.

29. AB 126.

83. The applicant's mother provided a letter to the sentencing judge, [30] the effect of which was to confirm the applicant's ongoing family support. She said:

With our continual help we will guide Jack to a better life and choices. We will assist him to stay in work, have somewhere to live and to see his daughter. It will be up to Jack to stay off drugs, get treatment and associate with his friends who do not commit crimes as he does have some very good friends. He knows that if he does not we will always love him but can't keep helping him in the same way we have this time.

30. AB 131.

84. The applicant has a criminal history dating back to 2015 which, on its face, appears to stem largely from his drug addiction. The history also includes a number of driving offences, including previous instances of driving whilst disqualified.

85. The applicant referred in his affidavit [31] to having been transferred to the Wellington Correctional Centre in May 2021 at the time of a mice plague. He was transferred to the Bathurst Correctional Centre on 1 July 2021 and made reference to the regular lockdowns brought about by the Covid pandemic. The applicant also made reference to the fact that he himself contracted Covid whilst in custody necessitating his segregation in his cell for a period of 5 days. I have taken all these factors into account.

    31. At [2] – [3].

86. In his affidavit, [32] that applicant stated that he has been employed in a print shop and in a confectionery shop whilst in custody, and has also undertaken educational courses including an infection control awareness program, a cleaning operations course, and a literary course. However, his progression through these courses has been interrupted due to Covid. There is no doubt that the Covid pandemic has had a generally adverse impact on the conditions of persons in custody, and it is a matter properly taken into account on sentence.

    32. At [4] – [5].

87. In terms of his drug addiction and related issues, the applicant said the following in his affidavit: [33]

6. I have had drug addiction issues for many years. At Macquarie I will be doing programs and work. I'm on the list to do IDAPT (Intensive Drug and Alcohol Treatment Program). I expect to be sent to the Geoffrey Pearce Goal at Windsor to do this course soon.

7. I went on the buprenorphine program in February this year. I get an injection once a month. I haven't been using and don't feel I need to use drugs.

8. My parents and my girlfriend, Felicia, are continuing to support me. I will live with my parents when I am released.

33. At [6] – [8].

88. The affidavit of Ms Ey establishes that the applicant has had two custodial infringements, both for failing a prescribed drug test, the first on 22 October 2021, and the second on 11 January 2022.

CONSIDERATION

89. The sequence 4 offence was obviously serious. It involved several separate and distinct instances of the applicant “ramming” into the police vehicle, culminating in his actions of driving directly at that vehicle, the ultimate collision being of sufficient severity to immobilise it, and to cause the airbags within it to be deployed. For the reasons previously set out, it was aggravated by the fact that the victims were police officers who were obviously put at risk by the applicant’s conduct. The observations of Kirby P in Perez and Gleeson CJ in Hamilton highlight the seriousness with which this kind of offending is to be viewed, the need to protect those who are lawfully apprehending or detaining offenders (in this case, the police), and the necessity for any sentence to incorporate considerations of general deterrence. Any sentence imposed for the sequence 4 offence must be increased by virtue of the Form 1 offence. [34] The sequence 2 offence was also serious. It involved the applicant driving a motor vehicle whilst disqualified, and thus in breach of an order made by a Magistrate that he not do so.

    34. Attorney-General’s Reference at [42] – [43].

90. The applicant expressed some remorse to Ms Duffy, although he did not give evidence on sentence. Accordingly, the assertions recorded by Ms Duffy are untested. The applicant’s pleas of guilty are some evidence of remorse and he is entitled to a discount of 25% to reflect the utilitarian value of those pleas.

91. In terms of his rehabilitation, the applicant has obviously used his time in custody productively. Although he has incurred the two custodial infringements to which I have referred, both occurred prior to his commencement on the Buprenorphine program earlier this year. There is no evidence of any custodial infringements having been incurred since that time. Consistent with that, the unchallenged evidence of the applicant is that as a consequence of participating in the Buprenorphine program he has not been using drugs, and does not feel the need to do so. It is also evident that the applicant has the support of his immediate family, with whom he proposes to live when he is released. All of these signs are positive. However, it remains the case that the applicant’s prospects of rehabilitation necessarily depend, in large measure, on his continued abstinence from illicit drugs. In the circumstances, the applicant's prospects of rehabilitation must be viewed as guarded. I have a similarly guarded view, for the same reasons, about the likelihood of the applicant re-offending.

92. A finding of special circumstances is warranted so as to allow the applicant a longer period on parole, during which he will be able to address his ongoing issues arising from his drug addiction and to enable him to reintegrate into the community when released. In that regard I would adopt the same ratio as that applied by the sentencing judge.

93. Having taken all these factors into account, and in the fresh exercise of the sentencing discretion, I am not of the view that any other sentence was warranted or should have been passed. [35]

    35. Criminal Appeal Act 1912 (NSW) s 6(3).

ORDERS

94. For these reasons I propose the following orders:

1. Leave to appeal is granted.

2. The appeal is dismissed.

**********

Endnotes

Decision last updated: 14 October 2022