Dawson v The Queen
[2015] NSWCCA 236
•2 September 2015
|
New South Wales |
Case Name: | Dawson v R |
Medium Neutral Citation: | [2015] NSWCCA 236 |
Hearing Date(s): | 7 August 2015 |
Date of Orders: | 2 September 2015 |
Decision Date: | 2 September 2015 |
Before: | Macfarlan JA |
Decision: | (1) Leave to appeal granted. |
Catchwords: | CRIMINAL LAW – appeal against sentence – whether sentencing judge erred in applying principle of totality – concurrency or accumulation – manifest excess |
Legislation Cited: | Crimes Act 1900 (NSW) |
Category: | Principal judgment |
Parties: | James Timothy Dawson (Applicant) |
Representation: | Counsel: |
File Number(s): | 2013/220210 |
Publication Restriction: | None |
Decision under appeal: | |
Court or Tribunal: | District Court at Newcastle |
Jurisdiction: | Criminal |
Citation: | [2014] NSWDC 117 |
Date of Decision: | 27 June 2014 |
Before: | Judge P Berman SC |
File Number(s): | 2013/220210 |
JUDGMENT
MACFARLAN JA: I agree with Fagan J.
ADAMS J: I agree with Fagan J.
FAGAN J: James Dawson applies for leave to appeal against sentences passed upon him in the District Court at Newcastle on 27 June 2014 for four offences, all committed on 7 July 2013. The Applicant pleaded guilty to each charge. The sentences determined in the District Court were as follows. The maximum penalty for each offence is shown in brackets.
(1)Count 1: Drive whilst subject of police pursuit (s 51B, Crimes Act 1900 (NSW)). Imprisonment for 18 months, comprising a non-parole period of 9 months and a balance of the term of 9 months. (Maximum 3 years).
(2)Count 2: Use of offensive weapon, a knife, to prevent lawful apprehension of himself (s 33B(1)(a), Crimes Act). Imprisonment for 4 years, with a non-parole period of 3 years and a balance of the term of 1 year. (Maximum 12 years).
(3)Count 3: Aggravated carjacking (s 154C(2), Crimes Act). Imprisonment for 7 years with a non-parole period of 4 years and a balance of the term of 3 years. (Maximum 14 years, standard non-parole period 5 years).
(4)Count 4: Drive whilst subject of police pursuit (s 51B, Crimes Act). Imprisonment for 2 years with a non-parole period of 12 months and a balance of the term of 12 months. (Maximum penalty 5 years, for a second offence).
On Count 3 the learned sentencing judge took into account four further offences on a Form 1 pursuant to s 33, Crimes (Sentencing Procedure) Act 1999 (NSW). Those offences were also committed on 7 July 2013. They were as follows:
(a)Larceny of a motor vehicle (s 154(1)(a), Crimes Act), being a Honda Prelude motor vehicle which the Applicant drove during the first police pursuit, the subject of Count 1. (Maximum 5 years).
(b)Dishonestly obtain financial advantage by deception (s 192E(1)(a), Crimes Act). Shortly before the first pursuit the Applicant put 41 litres of petrol into the stolen Honda Prelude at a service station and drove off without paying. (Maximum 10 years).
(c)Fail to stop and assist after motor vehicle impact causing injury (s 146, Road Transport Act2013 (NSW)). During the first police pursuit (Count 1) the Applicant crashed the Honda Prelude into another vehicle and injured the two occupants. He did not stop. (Maximum 18 months).
(d)Detain person with intent to obtain advantage (s 86(1)(b), Crimes Act). After the first police pursuit had ended with the Honda Prelude off the road and undrivable, the Applicant flagged down another vehicle and forced the driver of it at knifepoint to drive away from the location. The taking of the vehicle in these circumstances is the carjacking, the subject of Count 1. This Form 3 offence is concerned with the Applicant having detained the driver. (Maximum 14 years).
Counts 1 to 4 may be ranked in ascending order of seriousness as follows: Count 1, followed by Count 4, then Count 2, then Count 3. Appropriately, the individual sentences were determined by his Honour in a corresponding order of severity.
The learned sentencing judge ordered that the shortest sentence, that for Count 1, should commence first on 7 January 2014. That date appears to have been selected in the following circumstances. The second of the police pursuits on 7 July 2013 (the subject of Count 4) ended with the Applicant escaping. He was arrested twelve days later on 19 July 2014 in the course of committing other offences. From that date he remained in custody. He was then charged with yet further offences which had been committed on 17 July 2013. In April 2014 he was sentenced by the Local Court for the offences of both 17 and 19 July 2013. The Local Court imposed terms of imprisonment, for which the last expiring non-parole period ended on 21 May 2014.
The learned sentencing judge considered that there should be only partial accumulation of the sentences for Counts 1 to 4 concerning the offences of 7 July 2013 with the sentences for the offences committed on 17 and 19 July 2013. The effect of his Honour ordering that the terms of imprisonment with which this Court is now concerned should commence on 7 January 2014 was to allow four and a half months of concurrency with the Local Court sentences in respect of the offences of 17 and 19 July 2013. The Applicant makes no complaint about this aspect of the custody dates determined by his Honour.
The sentences for Counts 4, 2 and 3 were ordered to commence on 7 July 2014, 7 January 2015 and 7 July 2016, respectively. This resulted in an accumulation of 2 years and 6 months to be served in addition to the longest individual sentence, being that for Count 3 (7 years with a non-parole period of 4 years). The result was an effective non-parole period of 6 years and 6 months and a balance of the term, overall, of 3 years.
The grounds of appeal are:
(1)The sentencing judge, in determining totality of sentence, erred by inadequately applying partial concurrency as between each individual sentence.
(2)As a consequence of Ground 1 the overall sentence imposed was manifestly excessive.
In written submissions on behalf of the Applicant it was expressly “not submitted that any of the four individual sentences imposed are manifestly excessive”. Further:
“It is equally not submitted that the learned sentencing judge erred in not making any sentence imposed totally concurrent with any other sentence.”
Affirmatively, written submissions on behalf of the Applicant asserted specific error in that his Honour did not adopt a measure of concurrency which, so it was said, was called for by the following features of the entire episode of 7 July 2013:
“similarity between offences”;
“similarity in criminality”;
“common intention of avoiding apprehension (and in this sense forming one episode of criminality)”;
“shortness of time over which the offences occurred”.
It was submitted that these features “point more toward concurrence than accumulation”.
In respect of Ground 2 it was argued that even if this Court should not be persuaded as to specific error in the manner in which his Honour partly accumulated the sentences, nevertheless “the overall sentence imposed, applying totality, is manifestly excessive”. Both grounds, thus argued, require consideration of the facts of the offences and a review of the Applicant’s antecedents and subjective circumstances.
Facts
On the evening of 6 to 7 July 2013 the Applicant stole a blue Honda Prelude motor vehicle from outside the home of its owner in Lake Munmorah, a locality approximately 40 kilometres south of Newcastle (the first count of the Form 1). About 11:52am the next day, 7 July, he filled the car with petrol at a service station in Killarney Vale, a further 27 kilometres further south (approximately). This is the petrol he did not pay for (the second count on the Form 1). He then drove north and at about 3:35pm was observed driving the Prelude on Main Road, Jesmond approximately 9 kilometres east of Newcastle. The police officer who made this observation was carrying out stationary speed enforcement duties. He recorded the Prelude, initially, at 120 km/h in a 90 lm/h zone, then accelerating rapidly to 146 km/h. The officer gave chase in his police vehicle.
In committing the offence charged as Count 1 the Applicant’s means of evading interception by the police vehicle included driving in a southerly direction in the northbound breakdown lane of Maitland Road, cutting through built-up traffic to mount a median strip and to perform a U-turn, travelling at high speeds through areas with heavy traffic volume and swerving harshly at an intersection when the police vehicle in pursuit was within 100 metres. This last manoeuvre caused the Applicant to lose control of the Prelude in Maitland Road at Hexham, leading to a collision with another vehicle. The two occupants of the other vehicle were injured and their vehicle was rendered undrivable.
The Applicant remained in his vehicle near the point of this collision until the police officer who had been in pursuit approached him on foot. The Applicant then accelerated away from the scene in a southerly direction on Maitland Road.
The events giving rise to Count 2 are as follows. An off duty police officer named Hopkins driving his private vehicle followed the Prelude from the collision scene referred to above. Some distance to the south he saw that the Prelude had left the road and come to rest in a swamp. He approached it. He said “Mate, I’m a cop, get on the ground”. He took hold of the Applicant’s left shoulder and arm and began to push him to the ground. However Hopkins moved away when he noticed that the Applicant had a knife in his right hand. The Applicant swung the knife at Hopkins and advanced towards him. After searching in Hopkins’ own vehicle for keys and stating “I’ll take your car then”, the Applicant entered the waters of the Hunter River adjacent to the swamp and attempted to swim to a nearby island. He shortly returned to the shore and again moved towards Hopkins threatening him with the knife.
Next, and giving rise to Count 3, the Applicant crossed Maitland Road on foot, to the northbound lanes. He still held the knife but concealed it. He caused a Mr Phillips, who was driving his Land Rover in a northerly direction, to stop in order to avoid hitting him. The Applicant then got into the front passenger seat of Mr Phillips’ vehicle and asked Mr Phillips to drive him to Maitland. The off duty officer, Hopkins, commenced to follow Mr Phillips’ Land Rover, in his private vehicle. The Applicant then produced his knife, held it towards Mr Phillips and directed him to “lose” Hopkins. He threatened Mr Phillips saying “Drive. Drive. Drive. I don’t want to hurt ya”.
Marked police vehicles joined the pursuit of the Land Rover. The Applicant directed Mr Phillips to undertake dangerous manoeuvres to evade the police. Mr Phillips was after some time able to slow his vehicle to about 30 km/h at which point he opened the driver’s door and jumped from the moving vehicle.
At this point the events of Count 4 commenced. The Applicant moved to the driver’s seat of the Land Rover, accelerated towards a roundabout, performed a U-turn, swerved to the incorrect side of the roadway and proceeded in the face of oncoming civilian and marked police vehicles. He thus caused the pursuing police to terminate the pursuit. The Land Rover was last seen by police travelling in the breakdown lane of the New England Highway toward Newcastle.
The Applicant’s points in favour of concurrency
None of the four points raised by the Applicant as set out at [9] carries any significant weight in favour of total concurrency of the sentences or towards any lesser degree of accumulation than that determined by his Honour. There is no basis for concluding that his Honour overlooked those four considerations. However none of them required discussion in his Honour’s sentencing remarks because they did not mitigate the seriousness of each offence individually or of the criminality involved in the four offences viewed together.
The primary consideration tending towards a degree of accumulation is that each of the four offences constituted a discrete additional criminal act involving, in each case, a fresh determination of the Applicant to commit a dangerous and unlawful act in order to escape apprehension. The events of the first pursuit, in Count 1, ended with the Honda Prelude crashed in a swamp beside Maitland Road, Hexham. The Applicant had, up to that point, endangered numerous other road users and collided with one other vehicle injuring its occupants. His criminal behaviour for the day could have ended there. Instead he initiated a second and different phase by threatening with a knife a police officer who identified himself as such and who endeavoured to arrest him.
The avoidance of apprehension by threatening Officer Hopkins concluded with the Applicant crossing Maitland Road away from the officer. Again the Applicant had the choice to refrain from further criminal activity. Instead, he embarked upon a new and still more serious criminal enterprise by hijacking Mr Phillips’ car. Even when this ended with Mr Phillips’ desperate escape from the moving vehicle the Applicant did not stop. Rather, he commenced another course of driving dangerously to outrun police, in the second vehicle he had stolen within 24 hours.
It is inapposite for the Applicant’s submissions to speak of “the shortness of time over which the offences occurred”. The whole course of offending, comprising the four counts, was protracted, relative to the type of offences concerned. The “similarity between offences” and the “similarity in criminality” are of no significance to the issue. The offences took place one after the other, each commencing in discrete and separate circumstances. This was not a case of several charges all arising out of one incident and constituting a number of different criminal characterisations of the same conduct.
The “common intention of avoiding apprehension” is self evident. But contrary to the Applicant’s submissions that common intention does not weld the facts into “one episode of criminality” in any sense relevant to the issue of accumulation or concurrency. It was an “episode” comprising four offences, distinct in particulars and in time, committed one after the other.
The Applicant’s submission that the “criminal conduct in each offence was spontaneous” is equally of no weight in support of the proposition that his Honour erred in accumulating to the degree that he did. Given the separate points of departure for each aspect of offending, the Applicant’s submission must involve the proposition that he acted spontaneously and on the spur of the moment on each of the four occasions when he commenced each new unlawful act. In reality what is shown by the above description of the events is a sustained and persistent determination on the Applicant’s part to defy the lawful authority of police, exposing them and the public to significant danger in the process.
Antecedents
The facts set out above speak for themselves as to the objective seriousness of each of the offences and of the total criminality. The Applicant’s antecedents and subjective circumstances will now be stated so that all aspects may be taken together in evaluating whether the overall result arrived at by his Honour, with the degree of partial accumulation which he adopted, was disproportionate to the entire sequence of counts.
His Honour drew upon a clinical psychologist’s report, commissioned by the Applicant’s solicitor, to which this Court has again been referred on the hearing of the appeal. The Applicant was born on 24 February 1985 and was therefore 28 years old at the date of these offences. He is the second of six children. His psychologist assessed him as “a reserved individual of low but functional intelligence”. Early stages of his childhood development were compromised by his father’s involvement with drugs and, from the age of about 11 years, a lack of “meaningful contact with his parents or his siblings”. Other aspects of his early childhood years were traumatic and likely to have had lasting adverse effects on his psychological well-being. These are referred to in the psychologist’s report and are taken into account but it is not necessary to detail them here.
The Applicant failed to learn to read or write at school. Truancy resulted in his expulsion in year 8. He attempted to gain literacy and numeracy at a TAFE College over three years to the age of 16 but made no significant improvement. He was first imprisoned at the age of 23 and gained some further education in custody.
The Applicant has had a relationship with a female partner over a period of nine years from the age of 17. They have three children together.
The Applicant used cannabis extensively from the age of 10 until his early 20’s. He has continued using it since at a reduced intake. He also used methylamphetamine or “ice” in his late teens and early twenties. He does not appear ever to have had any employment and has been supported by Commonwealth benefits from Centrelink since his mid to late adolescence.
His criminal history includes the following (omitting reference to a Children’s Court matter, having regard to s 15A, Children (Criminal Proceedings) Act 1987 (NSW) and given that this judgment will be published on the internet):
January 2004 (aged 19 years): carried in a vehicle without consent of owner. Ordered 2 years supervision.
March 2004 (aged 19 years): break and enter a building and steal goods. Community service order, 150 hours.
April 2008: (aged 23 years): take and drive a motor vehicle without consent of owner. Imprisonment for 12 months with a non-parole period of 9 months, commencing 9 December 2009 (concurrent with the sentence for the offence next mentioned).
15 December 2008 (aged 23 years): drive dangerously occasioning death and drive a vehicle taken without consent of owner. Imprisonment for 5 years and for 2 years 6 months, respectively, with an effective combined non-parole period of 3 years and 6 months commencing 21 September 2009 and concluding 20 March 2013.
The Applicant was released from prison, after serving his sentence for the offences of December 2008, only 3½ months before commission of the offences now under consideration in this Court. In March 2013 the Applicant told his psychologist that he considered himself still separated from his ex-partner although they resided together, with the Applicant’s parents, following his release. Then in April 2013 they had an argument which ended with the ex-partner stabbing herself five times. She was hospitalised but upon discharge attempted to gain full custody of their three children and to prevent the Applicant from having access to them.
The Applicant further told his psychiatrist that on the day of the offence he had received a call from his ex-partner to the effect that she was going to harm herself again. He claimed to have stolen the first motor vehicle for the purpose of going to see her. None of these subjective consideration is particularly influential in a case which called for an overall sentence of sufficient length to meet the requirements of specific and general deterrence and protection of the community.
Proportionality of overall sentence to total criminal conduct
The Applicant’s criminal record involves repeated unauthorised use of other people’s motor vehicles and repeated instances of driving dangerously, on one occasion having caused the death of a passenger travelling with him. Against that background each of the offences committed on 7 July 2013 represented a progression of his disregard for the safety of other road users, a continuance of his lack of respect for property rights of motor vehicle owners and an escalation of his defiance of the law and of police. Taking into account all of the objective and subjective circumstances of the offending there appears no basis for disturbing the orders made in the District Court.
I propose the following orders:
(1)Leave to appeal granted.
(2)Appeal dismissed.
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