Director of Public Prosecutions v Savage (No 2)
[2025] ACTSC 121
•28 March 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Savage (No 2) |
Citation: | [2025] ACTSC 121 |
Hearing Date: | 28 March 2025 |
Decision Date: | 28 March 2025 |
Before: | Christensen AJ |
Decision: | See [9] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Non-graduate completion of Drug and Alcohol Treatment Order – participant remains committed to life of rehabilitation – fish breeding – science – participant moved to good behaviour order– order confirmed UNREPORTED DECISION – history of victim impact statements – drive motor vehicle at police officer – cause grievous bodily harm – failing to stop for police – possession of offensive weapon – drive with prescribed drug in oral fluid – drug and alcohol treatment order imposed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12A, 80O, 80ZH |
Cases Cited: | DPP v Savage (Supreme Court of the Australian Capital Territory, Refshauge AJ, 16 March 2023) |
Parties: | Director of Public Prosecutions ( Crown) Dale Savage ( Participant) |
Representation: | Counsel J Churchill ( Crown) C Duffy ( Participant) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Participant) | |
File Numbers: | SCC 260, 261 of 2022 |
CHRISTENSEN AJ:
Introduction
1․On 16 March 2023, Mr Savage was sentenced for six offences: DPP v Savage (Supreme Court of the Australian Capital Territory, Refshauge AJ, 16 March 2023) (DPP v Savage). That unpublished decision is incorporated as a schedule to these reasons. The offending involved driving a motor vehicle at a police officer, aggravated dangerous driving, causing grievous bodily harm, failing to stop for police, possession of an offensive weapon, and driving with a prescribed drug in his oral fluid (repeat offender). All offences arose from Mr Savage engaging in what was described as “some quite inappropriate and dangerous driving on 17 July 2022”: DPP v Savage 8.
2․Mr Savage was sentenced to a total term of 40 months imprisonment, to be served by way of a drug and alcohol treatment order: s 12A Crimes (Sentencing) Act 2005 (ACT).
3․Mr Savage has progressed through the treatment order steadily, but not perfectly. There have been occasions of lapses with substance use, but Mr Savage remained committed to rehabilitation. He has not been returned to custody during the order. Most significantly, he has not reoffended. This is a remarkable achievement from where he began. He has shown throughout the order his commitment to a more positive life for himself and his family. He has also shown his capability in fish breeding, and his keen intellect and interest in science.
4․In March 2025, Mr Savage reached the conclusion of the treatment and supervision part of the treatment order, as originally ordered under the sentence. His sentence order is due to continue with supervision under a good behaviour order. Typically, in the case of participants who reach the end of the treatment and supervision component, the participant is regarded as having graduated. This reflects successful completion of the treatment and supervision part of the treatment order.
5․However, in a number of examples, there is what is regarded as a ‘non-graduate completion’. This is where the participant completes the treatment and supervision asked of them, but for any number of reasons, cannot be regarded as having met all expectations such that they are ‘graduated’. The reasons are varied, but include where medical issues arise, or compliance with the order has become challenging due to their work or family circumstances.
6․In the case of Mr Savage, who is to be regarded as a ‘non-graduate completion’ of the treatment order, there has been an exposure to substance use that has resulted in a positive urinalysis test in the final week of the order. The experience of the drug and alcohol sentencing list is that such testing results do occur, and that they are not necessarily a reflection of an abandonment from abstinence. In the case of Mr Savage, it is accepted that the test result does not reflect a complete abandonment from his abstinence. He remains committed to a life free from offending behaviour driven by substance dependency.
7․It is sought on his behalf to confirm the original order and move Mr Savage to the good behaviour order component of the treatment order. The prosecution support this. The treatment team are also supportive of this course. I am satisfied that it is in the interests of justice to review the order, and that an order confirming the order is appropriate.
8․Mr Savage no longer requires the intensive supports provided under the treatment and supervision component. He will continue to be subject to supervision for the remainder of the order, and the Court is satisfied that he is someone who is to be regarded as having, to date, met the objects of a treatment order as provided by s 80O of the Crimes (Sentencing) Act 2005 (ACT):
80O Objects of drug and alcohol treatment orders
The objects of making a treatment order in relation to an offender is to—
(a)facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime; and
(b)reduce the offender’s dependency on alcohol or a controlled drug; and
(c)reduce the health risks associated with the offender’s dependency on alcohol or controlled drugs; and
(d)assist with the offender’s integration into the community; and
(e)promote community safety by reducing the level of criminal activity caused by alcohol or controlled drug dependence in offenders.
Orders
9․For those reasons, the following orders are made:
(1)A review of the drug and alcohol treatment order made on 16 March 2023 and last amended 14 March 2025 is conducted pursuant to s 80ZH of the Crimes (Sentencing) Act 2005 (ACT).
(2)The drug and alcohol treatment order made on 16 March 2023 and last amended 14 March 2025 is confirmed.
| I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Christensen Associate: Date: 1 April 2025 |
Schedule: Transcript of reasons of Refshauge AJ dated 16 March 2023
[Transcript edited]
HIS HONOUR: There is no doubt that the role of the victim or victims of crime in the criminal justice system was relegated to an unsatisfactory position when the prosecution of offences was taken out of their, of the hands of the victim and given to public officials: Tyrone Kirchengast, The Victim in Criminal Law and Justice.
While, as noted in decisions such as R v Webb, R v Shepherd, R v RKB, R v Ali, the harm done to a victim by an offence has always been relevant to sentence, the way it has been able to be introduced was really only effectively through the victim impact statement which was fairly recently a feature of the current justice system. The victim was effectively relegated to the role of a witness; thus, the rule – the role of the victim was changed in the 20th century with provision for victims being able to make victim impact statements as a special method of having their voice heard.
It appears that the first victim impact statement was read to a court on 24 February 1976 in Fresno, California when Doris Tate, the mother of Sharon Tate, read one at the trial of her daughter's killer in the trials of Charles Manson and his so-called family.
In December 1985 the general assembly of the United Nations formally approved a declaration of fair treatment and assistance for victims of crime and victims of abuse of power. It specifically mentions, 'Allowing the views and concerns of victims to be presented and considered at appropriate stages of the process': see Edna Erez, Victim Impact Statements – Trends & Issues of the Australian Institute of Criminology.
These statements were first introduced into Australia in South Australia in 1988 and are now permitted throughout Australia. They were first introduced in this territory in 1994: see the Acts Revision (Victims of Crime) Act 1994 of the ACT, section 12. They are very valuable for the court: see R v West.
The role of such statements in sentencing has been somewhat controversial, but some principles are emerging. Insofar as it describes the harm done, it is uncontroversial, though the circumstances of what is said is not always straightforward; for example, care must be taken by the court not to rely on a victim impact statement that includes circumstances that breach the principles in R v De Simoni. Similarly, if statements are made that are challenged, then the court can only accept any matters of aggravation if proved beyond reasonable doubt – R v Carney. As explained in R v Dowlan:
The evident purpose of the 1994 legislation…established in Victoria victim impact statements:
…was to give victims of crime an opportunity to place before the courts their own statement of the impact a crime has had upon them and their families and in doing so both to involve victims in the workings of the criminal justice system and to ensure that judges are educated as to the consequences of the crimes with which they are concerned in sentencing.
The general principle of fact-finding in sentencing proceedings applies to a victim impact statement: see, for example, Dhol v MacKenzie. Further, the court is not required to accept the statements just because they have not been challenged: Valenchit v Johnson. The weight to be given to what is in – what is in such statements is for the court to determine: R v Slack.
The use of victim impact statement has been considered by the New South Wales Court of Criminal Appeal in R v FD; thus, care needs to be taken in ensuring the prejudicial material is carefully used: R v Singh. After all, 'Vengeance is not to be equated with justice': R v P.
In this case the court must sentence Dale Alfred Savage for six offences, some of which have had very serious effects on the victim of them. The offences are driving a motor vehicle at police, causing grievous bodily harm, failing to stop a motor vehicle when directed, driving with a prescribed drug in his oral fluid, aggravated reckless driving and possessing an offensive weapon with intent to use it. Mr Savage has pleaded guilty to each of these offences.
On sentencing the Director of Public Prosecutions, who was ably represented by Mr C Wanigaratne, tendered, without objection, the prescribed prosecution tender bundle: see Practice Direction (No 4) of 2018, Standard Sentence Directions. It contains, in addition to the helpful and required cover sheet, the committal and transfer documents, the statement of facts, a victim impact statement, physiotherapy appointments list for the victim, and a compensation schedule for the victim.
In addition, Mr Wanigaratne tendered, without objection, the drug and alcohol treatment assessment – assessments, suitability assessments prepared under section 46J of the Crimes (Sentencing) Act 2005 of the ACT (the Sentencing Act). These were the Drug and Alcohol Sentencing List suitability assessment report dated 22 February 2023 of the Alcohol and Drug Services with a case plan, and the drug and alcohol treatment assessment dated 23 February 2023 of ACT Corrective Services.
Mr Wanigaratne then tendered, without objection, a DVD which recorded video footage from the in car fixed camera, known as a dash cam camera, in a police vehicle. Later, after the proceedings had been adjourned for the sentence to be imposed, the prosecution delivered to the court, for tender, a discharge summary relating to surgery conducted, by the victim. Those have been admitted today. Unfortunately, there were no submissions about – made about these documents which were largely in medical terminology.
Mr FJ Purnell SC, who was acting very professionally for Mr Savage, tendered, without objection, a tender bundle containing character references for Mr Savage, being that of his wife dated 24 February 2023, his mother dated 24 February 2023, his father-in-law dated 24 February 2023, and by a close friend of his mother dated 24 February 2023. Mr Savage's mother and wife both gave oral evidence on a bail application and were cross-examined.
Mr Purnell also tendered a letter from Karralika Programs Inc dated 28 February 2023. He also filed the prescribed consent form signed by Mr Savage on 11 January 2023 consenting to the making of a drug and alcohol treatment order, a treatment order, under section 12A of the Sentencing Act.
Mr Purnell SC provided short, targeted written submissions. Both Mr Wanigaratne and Mr Purnell SC made oral submissions and answered questions, helpfully engaging in debate with the court. From this material the following findings are made.
The Facts
It is, of course, essential to find the facts that found the charges for the offences that Mr Savage has committed. In this case they were able to be found from the statement of facts included in the prosecution tender bundle and the DVD of the video footage taken from dash cams of police vehicles at the various scenes.
All the offences arose from Mr Savage engaging in some quite inappropriate and dangerous driving on 17 July 2022. At the time Mr Savage was driving a black Honda Civic motor vehicle. Police noticed him when he was driving along Northbourne Avenue, Turner, ACT at about 11.12 pm. He was travelling in excess of 90 kilometres per hour, even though the posted speed limit was 60 kilometres per hour. These were the facts leading to the charge of aggravated reckless driving, the circumstances of aggravation being that the speed exceeded more than 30 per cent of the speed limit; in fact, it exceeded it by 50 per cent.
Police sought to intercept the motor vehicle by pursuing it. They activated their emergency lights and sirens on the police vehicle in which they were following Mr Savage when he was driving the Honda Civic motor vehicle. Mr Savage simply drove away, sticking his right arm out of the driver's side window of the vehicle and extending his middle finger at police in a sign of mockery or contempt. Mr Savage then drove down the Federal Highway, failing to stop for a round red traffic signal facing him at the intersection with Flemington Road. He drove across the ACT-New South Wales border and came to a stop along the Federal Highway. Police, in an unmarked car, drew alongside him and had a good view of him as the driver.
Mr Savage then continued along the highway, crossed at the Eaglehawk overpass and turned back towards the ACT. Police followed him and coordinated with other police to place tyre deflation devices in the path of the Honda Civic motor vehicle to intercept it. Two police officers were at the side of the highway with the tyre deflation device on the road, but Mr Savage decelerated to about 20 kilometres per hour, mounted the kerb, and 'drove near' the two constables at the slow speed so that they jumped away to the front of the police vehicle.
This event was also captured from what appears to be the dash cam of a police vehicle. It shows the two police officers, one in the middle of the road putting out the tyre deployment device. The other police officer joins him. They appear to be expecting that the Honda Civic motor vehicle will drive past them on the right side of the motor vehicle. The lights of the Honda Civic motor vehicle can be seen in the footage approaching, but on the left side of the road, and then on to the side of the road over the curve into the grassed area.
While the Honda Civic motor vehicle is travelling towards the police officers, one moves briefly some small way towards the path of the Honda Civic motor vehicle, both are approximately a lane away from the motor vehicle and neither are in the direct path of it. One of the police officers throws the device towards where the motor vehicle is driving past, but it does not land in the path of the vehicle.
A number of police vehicles with lights activated are seen following the Honda Civic motor vehicle and a little time later so does the police vehicle in which the dash cam is situated. It's clear that the night is wet and with light rain, and the motor vehicle is later seen to have rain on the windscreen, though not enough for the windscreen wipers to be activated. These are the facts on which the charge of driving a motor vehicle at police, at or near police was based.
Police then successfully managed to deploy three sets of tyre deflation devices on the Honda Civic motor vehicle, but Mr Savage continued to drive, though with sparks coming from the rims of the wheels of the motor vehicle as the tyres had been deflated.
Mr Savage suddenly stopped at the intersection of Northbourne Avenue and Antill Street, Dickson, ACT, at about 11.19 pm. He got out of the motor vehicle with his arms and hands held out. A police constable attempted to apprehend Mr Savage. A statement of facts says that the police officer, the victim of the offence of causing grievous bodily harm, had 'attempted to apprehend Mr Savage who pushed back'. The dash cam of the police vehicle capturing the scene shows what happened in a slightly more complicated way.
After the court looked at the dash cam footage some five times, stopping to see exactly what happens, it appears to show the following. Mr Savage is shown standing beside the Honda Civic motor vehicle with his arm and – arms and hands stretched out on either side. The police officer gets out of the passenger side of the motor vehicle which is parked nearest to Mr Savage. He approached, apparently quite quickly, Mr Savage. He approached Mr Savage apparently quite quickly, but is mostly hidden from view because he's directly behind Mr Savage from the point of the view of the dash cam camera.
As the police officer approaches him Mr Savage puts his arms down and the police officer takes hold of Mr Savage's arms and it appears that there is something of a struggle, clearly some physical interaction. It's not clear whether Mr Savage pushes or hits the police officer, but there is no sign of Mr Savage drawing his arm back in order to hit the police officer.
The police officer appears to pull Mr Savage towards him, though that may be because he is overbalancing, and Mr Savage appears to resist and the police officer falls over and Mr Savage also falls over him on to the ground. Mr Savage then gets up and runs away. Other police officers chase him, but one police officer approaches the victim who is lying on the ground. He is then joined by four other officers who appear to be providing assistance.
There is further footage from the dash cam of one of at least seven police vehicles which were at the scene. The footage is from one which just arrived as the incident was occurring with its windscreen wipers activated. It is, however, not particularly close and adds little to the footage. This incident caused the police officer to injure himself when he fell to the ground. He had to be transported to the Canberra Hospital and underwent surgery later.
Mr Savage ran a short distance away and police deployed three devices, commonly called tasers – see R v Hancock – which caused Mr Savage to fall to the ground whereupon the police officers handcuffed him and arrested him. These events led to Mr Savage being charged with causing grievous bodily harm to the victim.
A search of Mr Savage revealed that he was carrying a serrated kitchen knife approximately 25 centimetres long in his jumper pocket. He did not, at any time, produce it. The police also found a pair of scissors in his trouser pocket and another longer kitchen knife, approximately 35 centimetres in length, on the front passenger seat of the Honda Civic motor vehicle. The 25-centimetre long knife was the subject of the charge of possessing an offensive weapon with intent to use it. Neither the scissors nor the other knife were the subject of this or any other charges, though there is little relevance to this – R v De Simoni.
Mr Savage was subject to alcohol and drug screening and though the test for alcohol produced a negative result, the test for drugs was positive and he was required later to produce a sample of oral fluid which, on analysis, revealed the presence of a prescribed drug. Mr Savage admitted to having consumed cannabis recently. This led to Mr Savage being charged with driving with a prescribed drug in his oral fluid.
The Proceedings
As noted above, Mr Savage was arrested on 17 July 2022. He appeared the next day in the ACT Magistrates Court when he was charged with all of the offences to which he – which he is now to be sentenced, except for the offence of causing grievous bodily harm. He was remanded in custody and the proceedings adjourned to 8 August 2022 when he entered a plea of not guilty to all of the charges he was then facing. He continued to be remanded in custody and the prosecution then prepared and provided to him and his legal representatives the required brief of evidence.
After three more adjournments to 17 October 2022 the final offence, namely causing grievous bodily harm, was preferred. He pleaded guilty at the first available chance to do so. He also entered pleas of guilty to all of the other charges. He was then committed to this court for sentence and the associated charges were transferred to this court and he sought to be referred to the Drug and Alcohol Sentencing List.
The court heard the evidence and sentencing submissions on 2 March 2023. He was found eligible on 7 December 2022 for an assessment for a treatment order and suitability assessments were directed to be prepared and the sentencing date of 2 March 2023 was set. He also sought bail but that was refused – R v Savage.
He initially denied that he still wanted to serve any sentence of imprisonment by a treatment order, saying that he had not used cannabis for five months and was not dependent on alcohol. Nevertheless, he changed his mind prior to the final sentencing hearing, and as noted, has signed the consent in January of this year. He has remained in custody since he was arrested, a total of 243 days; that is, eight months. This must be taken into account when sentence is imposed and will be done by backdating the commencement of the sentence under section 63 of the Sentencing Act.
The Offences
Section 33 of the Sentencing Act requires a number of matters to be considered by a court sentencing an offender insofar as the court knows them. The first matters set out in section 33(1)(a) of that Act are the nature and circumstances of the offences. Of course, the facts as the court finds them, are an integral part of this.
There are also, however, other matters which must be considered. The first is the maximum penalty prescribed for the offence, emphasised in many occasions by the High Court, recently in Park v The Queen. This is important in that it is that prescribed by the legislature and must be given the respect that this requires. It also serves as an indication of the relative seriousness of the offence – Muldrock v The Queen – and it provides a comparison between the worst category of case and the case before the court, as well taken with all of the other relevant factors a yardstick – Markarian v The Queen.
The next matter arises because most offences can be committed in a variety of ways which will have an effect on the seriousness of the offence objectively. This is to be assessed by considering whether there are aggravating or mitigating factors that the courts have identified over time to show the comparative greater or lesser seriousness of the offence.
Driving a motor vehicle at or near a police officer is made a crime by section 29A of the Crimes Act 1900 of the ACT which prescribes a maximum penalty of 15 years' imprisonment. It is, thus, a serious offence, though not the most serious in the criminal calendar. It's a crime only inserted by the legislation in 2020 so there are not many decisions about the relevant factors.
The offence has, however, been considered in R v Seymour. Factors there identified that aggravate the offence include whether the driving is in the course of a police pursuit or whether the driver is seeking to avoid apprehension. Any damage done, for example, to a police vehicle, will aggravate the offence. The nature of the locality is also relevant, as is engaging in highly dangerous behaviour, especially if without regard to the welfare or safety of the victims or the community at large. Matters such as whether there are passengers, the nature of the streets travelled, whether the police officers were particularly vulnerable, such as on foot or on a motorcycle, will also aggravate the offence.
Here Mr Savage was engaged in a police pursuit along Northbourne Avenue and was attempting to evade arrest. The police officers were vulnerable as they were on foot, but they were not particularly close to the vehicle, about the distance of a lane of traffic from the vehicle. Mr Savage was driving quite slowly, but even at 20 kilometres per hour there is a risk of unforeseen events which raise a real chance of injury. There were not many other road users around; indeed, very few were shown on any of the dash cam video which the court has seen, apart from quite a number of police vehicles, not, of course, to be ignored. The roads were wide and not in residential areas.
This was not a very serious version of the offence. Certainly the footage cannot suggest that Mr Savage was driving towards police, as opposed to near them, also a version of the offence, and certainly not, insofar as can be ascertained, intending to frighten the police. Nevertheless, as was said in R v Seymour:
The law is designed to protect police officers who are, in the course of their duty, executing their duties on ACT roads, and to make it clear to the community that such conduct is entirely unacceptable. Police officers carry out difficult work in circumstances where they are often dealing with challenging behaviour of members of the public, and yet their work is for the benefit, safety and welfare of the entire community. It is reasonable for them to feel vindicated when their safety is intentionally jeopardised: see DPP v Guruge.
Causing grievous bodily harm is prohibited by section 25 of the Crimes Act which attracts a maximum penalty of five years' imprisonment. It is, thus, not the most serious of offences, but still a reasonably serious one.
The harm done is highly relevant: see R v Bloomfield. Of course, being grievous bodily harm, it is already really serious harm. The nature of the attack and the surrounding circumstances are also relevant: Ross v The Queen. In this case the cause of the injury does not, from a careful, sustained inspection of the footage available, seem to be a direct attack on the police officer, but rather, a scuffle where Mr Savage was clearly trying to escape and endeavour – and ended also on the ground, though obviously not with anything like the serious injuries suffered by the police officer. The full extent of the harm to the police officer is dealt with below. In the Director of Public Prosecution v Bradford the court adopted what had been said in other earlier cases that:
It is well-established that in dealing with offenders such as the applicant regard must be had to the proposition that in the lawful execution of their duty police officers are exposed to risks of violence and the courts should uphold the authority the community has vested in them.
…the Chief Justice of this Court…[that's the Tasmanian Supreme Court]:
…expressed the view that it was the duty of the Court to vindicate the authority of the police by imposing substantial punishment for the offences of resisting arrest or assaulting a police officer, and that ordinarily nothing less than a gaol sentence would be appropriate to vindicate the authority of the police. I take that to have been meant as a statement of the general line of approach which the Court ought to take in cases of this sort, although such a general approach must of course yield to the overall result of taking into account all considerations proper to the exercise of judicial discretion in the particular case.
Aggravated dangerous driving is made an offence by sections 7(1) and 7A of the Road Transport (Safety and Traffic Management) Act 1999 of the ACT which renders Mr Savage liable to a maximum penalty of two years' imprisonment or a fine of $32,000 or both. It also attracts an automatic disqualification from holding or obtaining a driver licence for three months, or such longer period as the court may order: section 63 of the Road Transport (General) Act 1999 of the ACT.
The relevant factors have been identified in R v Law after considering a number of authorities. It's not necessary to set them all out here, but only to identify those that are relevant.
The statement of facts is not entirely clear about the scope of this offence in this case. The reference was only to the driving by Mr Savage at 90 kilometres per hour on Northbourne Avenue from Turner, though Mr Savage did continue at speed up to the border of the territory with New South Wales. The structure of the statement of facts and the actual terms of the information laid did not seem to encompass all of the driving, and not, in particular, the driving through a round red light facing him at the intersection of Flemington Road and Northbourne Avenue in Dickson.
Again, there were few vehicles seen in the video footage, apart from the police vehicles, and this is unsurprising given the time of night. Nevertheless, at least a significant part of Northbourne Avenue is a built-up area, though the street is a multi-lane one with a wider verge than is usual in suburban streets. The speed, though an element of the offence, was much greater than that and that makes the offence more serious.
The distance travelled was likely to be something of the order of 5 kilometres. It's noted that he was noticed by police at 11.12 pm and that he returned to Northbourne Avenue, the Northbourne Avenue intersection with Antill Street by, according to the time on the video footage of the dash cam, 11.19 pm, so the time was not great. There were no passengers in the motor vehicle and he failed to stop, but that was separately charged and so will call for a degree of concurrency in sentence. Mr Savage also had a prescribed drug of alcohol – a prescribed drug in his oral fluid. There was, however, no competitive driving or damage done to other persons or vehicles.
Failing to stop a motor vehicle when signalled by police is prescribed by section 5C of the Road Transport – the Road Transport (Safety and Management) Act which specifies a maximum penalty of 12 months' imprisonment or a fine of $16,000 or both. It also attracts an automatic licence disqualification of three months or a longer period as the court may order.
As explained in R v Dowling (No 2), this is a serious offence as it is part of the regime for management of driving, especially safe driving. It's also an important investigative tool for police, especially as in this case, limiting the ability of persons to evade arrest or from hiding from police; thus, there must be consequences to protect the regime.
Often, as here, this offence is committed by people who engage in dangerous driving, though the offences are separate, but the manner of driving is relevant to the seriousness of the offence; however, that leads to a degree of concurrency in the criminality.
Possessing an offensive weapon with an intent to use it is criminalised by section 381(1) of the Crimes Act which sets a maximum penalty of one year's imprisonment or a fine of $7,000 or both. In this case the weapon was a knife. The courts have always found that the use of knives is to be somewhat – something that 'the community abhors': Ashdown v The Queen. While the offence is one that specifies an intent, the knife was not being wielded or, indeed, even in public view. That makes the offence less serious: Law v Ilievski.
Section 21 of the Road Transport (Alcohol and Drugs) Act 1977 of the ACT makes driving with a prescribed drug in the oral fluid of a driver and as a repeat offender and prescribes a maximum penalty of 12 months' imprisonment or a fine or both. Section 34 of the Act also provides for an automatic disqualification from holding or obtaining a driver licence for five years or such lesser period, not less than 12 months as the court may order. The risk to safety of impaired drivers is clearly obvious and the source of the need to make this behaviour a crime.
Subjective Circumstances
In addition to the offences themselves courts sentencing offenders must take into account their personal circumstances, both by common law – R v Killick – and by statute, section 33(1) of the Sentencing Act.
Mr Savage was born in Sydney 41 years ago, the eldest of three children of his parents. He had an unremarkable and generally positive upbringing. The family moved to Canberra when he was two years old. His parents, however, regularly relocated which made it difficult for him to settle and make friends. He was educated in Australia and in the United Kingdom, apparently completing his schooling in year 11 there. He was an average student, occasionally getting into trouble through fighting.
His father separated from his mother when Mr Savage was 25 years old, so did not have a major impact on him, especially as it was expected. He remains close to his mother, though they have challenges over his use of drugs which she detests. He seldom sees his father from whom he is quite distant. He does not have much contact with his brother, but was close to his sister, and it was quite traumatic for him when she died in 2021. A number of his referees have commented on the effect this had on him.
Mr Savage had a relationship with a woman with whom he had a daughter, now 17 years old, who now also lives with him. His relationship with his former partner is, however, toxic.
He is now married to his wife, whom he knew for about 20 years. He converted to Islam to marry her. She had two children by a previous relationship and they now have one child, five months old, born while Mr Savage has been in custody. He wants to be a good father to his children and to his wife's children, especially their new child. His wife indicated that he was fond of and caring for her children.
Mr Savage has had employment, though mostly short-term work in construction, retail and waste management. Prior to his arrest he was employed by an online auction house.
Mr Savage was involved in a serious motor vehicle collision in 2016 when he fractured his vertebrae. He seems to have been generally rehabilitated, but it's not clear whether this will impact on his employment going forward. He has also suffered a hernia for which he is expecting to have surgery soon. He suffered chest infections and kidney stones, but is generally in reasonable physical health.
His mental health is somewhat more complicated. He has some anxiety and depression and a history of [redacted]. He has also had two mental health admissions for drug induced psychosis, one in Goulburn in 2016 and one in Canberra in 2019. He has, however, not been diagnosed with a serious psychiatric disorder, though his mental health did deteriorate after his sister's death.
Mr Savage started drinking alcohol when he was 14 or 15, initially sporadically, but more regularly when about 16 or 17. He was drinking three standard drinks a day, but in the fortnight before his arrest, increased it to 10 standard drinks a day. He had been drinking on the day of the offences. He says, however, that he has not used since his arrest, though he has been in custody. He is said to have some difficulty in abstaining.
He started smoking tobacco when he was 15 years old and has continued to do so, now smoking about 20 cigarettes a day. His main drug of choice has been cannabis, which he started consuming when he was 15 years old, leading to daily use by the time he was 18 years old. He has been able to abstain for short periods, but used at the time of his arrest but not since.
He has also consumed methamphetamine, first when he was 19 years old, then sporadically on binges for a couple of months, consuming 'a couple of points' a day and then abstaining for some months. He has not used the drug for about 12 months.
He has also used heroin for a while, from the time he first used it when he was 26 years old,but has not used since about 2019. He has used GHB twice and hallucinogens occasionally, but no more and no other illicit drugs. He enjoys gambling. Mr Savage has had some counselling for his drug use at Directions Health Services, and as noted above, some hospital admissions.
Mr Savage has a criminal record. It started in 2000, and prior to the current offending, his last offences were committed in April 2019. He has, however, 21 offences on his record. He was convicted of burglary in 2002 in the ACT and convicted and sentenced to a lengthy prison, period of imprisonment for robbery in New South Wales in 2016, but his offences since then have been less serious. Unsurprisingly, he has four offences of drug driving and two of driving with a prescribed concentration of alcohol on his record. Some of the worrying offences are a conviction for common assault and three convictions of assault occasioning actual bodily harm. Also worryingly, he has three convictions for failing to comply with bail undertakings.
His character references are uniformly positive. His wife says that he's a good husband and he is a father figure for her children. He supports her significantly. She says that he is responsible – he is remorseful and she finds it difficult to understand how he committed the offences, though she acknowledges that his mental health has been affected by his sister's death. She described him as a caring person, a description that comes through from those who know him. His wife relies on him significantly because if he does not support her she is likely to be homeless.
Mr Savage's mother noted that he – his adult life has 'been plagued by alcohol use and mental health.' I'm sorry, 'plagued by drug and alcohol use and mental health issues'. She, nevertheless, describes him as 'funny, intelligent, responsible, hardworking and of good character'. Again, she refers to the – to the effect of his sister's death as some explanation for his offending. She notes that he adores his five-month-old baby and hopefully that will motivate him to reform.
His father-in-law refers to the support he has provided to his family, especially when his wife was terminally ill – terminally ill. He says he – he says he was 'there for us at a time when we needed him'. He also refers to his sincere belief that Mr Savage is remorseful and the regret he had in missing out on the birth of his daughter. A good friend of Mr Savage's mother also provided a character reference and knows him as 'a kind and caring' – man – 'person,' helping when needed, volunteering to help her and displaying 'a kind and caring parent role to his wife and her sons'.
Mr Savage did engage in the assessment process for a treatment order. He was forthcoming, but somewhat ambivalent about the order; indeed, on 7 December 2022 he announced to the court that he did not want such an order to be made, but has changed his mind, and as noted above, given informed consent since then. He was a little reluctant to discuss some issues, but did ask questions about the treatment order.
He did reject some of the allegations in the statement of facts. It might be fair to say that the video footage does put a somewhat different perspective on the interaction with the victim of his offence of causing grievous bodily harm; nevertheless, he has pleaded guilty and did not challenge the statement of facts before the court.
Victim Impact Statement
The court is fortunate to have had a victim impact statement for the police officer who was injured and suffered grievous bodily harm in one of the offences committed by Mr Savage. The range of consequences from the harm suffered by offending is not always easy to understand, and as the statement in this case shows, they can be very serious, long-lasting and quite life-changing, usually not for the better.
The victim described the ordinary expectation he and many of his co-workers, and of course others, had, saying 'I went to work as usual, expecting to come home the next night to my heavily pregnant fiancée.' Of course, that turned upside down through the incident for which Mr Savage must be sentenced.
The victim described the physical injury, the waiting for surgery, the immobility he suffered, and despite pain medication, the ongoing 'dull pain' when 'every movement hurt'. Since surgery he has 'not had a full night's sleep'. He finds that to move will hurt. He originally had to move with crutches, but that's not relieved after he started to wear a surgical boot. He has lost the chance to continue the physical training which he took seriously.
As well as the pain, his disability led to 'the worst and darkest point in his life.' His hobbies were curtailed significantly and he could not rely on his normal coping mechanisms. It was then 'a heavy toll' on his mental health which he thinks will continue for some time.
He was also restricted in the support that he wanted to give his fiancée. Small things can be memorable and the loss significant, such as being 'unable to walk with my partner and first child out of the hospital, being unable to carry his infant’ leading to a sense of uselessness and guilt.
There was, also, his economic loss, being unable to earn his usual fortnightly shift penalties, nor to earn overtime pay. He also had to pay for medical services and then seek reimbursement from Comcare. While not economic loss, as there is reimbursement, that does put stress on someone otherwise financially restricted and he said that he had to 'sacrifice rehabilitation and sacrifice appointments'.
His career was also affected. He had applied for a new position, but without the required experience will not now be able to gain that, at least for two or three more years, thus the injury has affected many parts of his life and this is an important matter to be taken into account in sentencing. It's hoped that he will make a full recovery in the not too distant future and the court wishes him well.
Current Sentencing Practice
Including in the matters that the court sentencing an offender must take into account, insofar as it's known, is current sentencing practice: section 33(1)(za) of the Sentencing Act. Some of this has already been addressed in the factors identified that aggravate or mitigate the actual offence committed. The other matters to be considered under this heading are the actual sentences that have been imposed currently. This can be done in two ways; by considering the statistics recorded in the ACT sentencing database and by considering comparable cases. There are limiting – limitations in the information recorded in the database, but it can provide some information that has been of value to the courts.
Insofar as the offence of driving at police is concerned, the offence is so recent that the number of cases is still very small; thus, there are three recorded sentences, all of which were of – were sentences of imprisonment, though the record only shows the length of sentence of two, one for 12 months and the other for 22 months. In both cases the sentencing – sentences were, however, being served by an intensive corrections order, not by full-time imprisonment, but the active sentence in one case was served, according to a sentencing – the sentencing remarks, by a treatment order. Only one of those sentencing remarks, R v Crawford (a pseudonym), where a sentence of 12 months was imposed, was a much more serious offence than that in this case where there was no actual harm caused.
One not recorded in the database is that of R v Seymour where Mr Seymour was sentenced to 20 months' imprisonment, but again, it was a much more serious case.
As for causing grievous bodily harm, the sentences in this court range from 10 months to two years and six months. In the Magistrates Court, which deals with more such offences, 12 of 17 sentences are of imprisonment; 10 fully or partly suspended and the sentences of full-time imprisonment range from five months to 21 months. Unsurprisingly, no comparable cases were referred to the court by either counsel as the range of circumstances for such an offence is very wide and would be likely very difficult to find cases that were sufficiently similar.
For aggravated dangerous driving the database shows sentences of between two months and two years, with the majority being of between six and 14 months' imprisonment.
Consideration
There's no doubt that sentencing is most difficult, as explained in R v Massey. Part of this is because there are various factors to be considered, many of which point in different directions. Part of it is that the purposes for which a sentence is to be imposed give different emphasis – emphases to the construction of the sentence. It's important, however, that these matters are considered carefully and the ultimate result is a sentence which the judge will synthesise together, largely using instinct and experience. Clearly the task can be easier if the purposes for which the sentence is to be imposed are identified. Nowadays that is made easier because the legislation has identified the purposes of sentence, though they will not all carry the same weight in each case: see section 7 of the Sentencing Act.
Here the conduct of Mr Savage severely and significantly breached the norms of conduct expected in a civilised community; thus, consequences must follow and punishment will be a relevant factor. Such a sentence will also denounce his conduct, deter others inclined to behave similarly from doing so, and perhaps deter him from continuing himself to act in the same way again.
An important factor is to recognise the harm done to the victim. That is not because this will heal the victim from his injuries, but will show what he has suffered is completely unacceptable and his suffering is not something to be minimised, much less ignored.
At the end of the day most crimes do disrupt the lives of members of the community and the courts must recognise this; nevertheless, the overall purpose is the protection of the community, as has been said in many cases, and if it can be achieved, rehabilitation is the best purpose to achieve that, so long as it's not inconsistent with, for example, denouncing the conduct and recognising the harm done to victims.
Mr Savage pleaded guilty in the Magistrates Court, justifying a significant discount on the sentence to be imposed. Insofar as the offence of causing grievous bodily harm is concerned, the plea was entered on the day that Mr Savage was first charged with the offence, justifying a significant discount. The evidence against him was strong, but not overwhelming. As noted above, the evidence as to the offence of causing grievous bodily harm was not crystal clear and incontrovertible.
Mr Savage has expressed remorse. While that is relevant, it's not demonstrated with exactly enthusiastic conviction and, in particular, does not seem to show as much insight into the harm done to the victims as is necessary for the full extent of remorse to be shown: see Fusimalohi v The Queen. An expression of remorse to his family is relevant, and to some extent, reinforced by his plea of guilty which is ordinarily accepted by the court as expressing remorse; thus, some account must be taken of remorse.
The court then takes into account, as well as the plea of guilty and his somewhat limited remorse, all of the other relevant factors: the facts of the offence; the nature and circumstances of them; his personal circumstances; the harm done and continuing to be felt by the victim, especially the ongoing trauma that the victim who suffered grievous bodily harm and his personal circumstances as evidenced in the victim impact statement; that the offending was all part of a course of conduct and, indeed, some elements of culpability overlap; that Mr Savage was wholly responsible for the offending, though his acceptance of that is somewhat muted; the effect of the sentence on his wife who feels she and her children are likely to be homeless if he is incarcerated; that Mr Savage recognises and is seeking some rehabilitation; and, his compliance with the assessment for that assessment and current sentencing practice.
Nevertheless, having taken all of this into account and having considered other reasonably possible alternatives, no sentence but a sentence of imprisonment is appropriate: section 10 of the Sentencing Act.
There are, of course, six sentences to be imposed and each offence must be given a separate sentence. In doing so, care must be taken to ensure that they are just and adequate, but do not result in Mr Savage being punished twice for the same culpability. This applies, for example, in relation to the offence of failing to stop when signalled by police, driving with a drug in his oral fluid and aggravated dangerous driving. It's also important to decide whether the sentences be cumulative or be partly or wholly concurrent. This will often apply where the offending constitutes a course of conduct as here.
Then it's necessary to consider carefully the total sentence arrived at from the – from this cumulation and concurrency to ensure that the important principle of totality is respected and that the total sentence adequately reflects the total criminality, but no more than that, and that the total sentence is not excessive but will leave open for a realistic prospect of reform for Mr Savage when he can return to the community and engage effectively in it.
It's also important to note that Mr Savage has now been in custody since 17 July 2022, some eight months, and this must be taken into account. In part, this can be done by backdating the start of the sentence which should ordinarily be done under section 63 of the Sentencing Act. This may result in what some see as leniency in that some of the sentences are partly concurrent because of the application of these principles, but it must be recognised that the total criminality is what is primarily relevant and no more may be considered, and that this leaves open for Mr Savage to return to the community in due course and participate in a civilised way.
Nevertheless, the sentence must, while taking into account all of these principles, not leave Mr Savage or others under the illusion that multiple offences can be committed with impunity, but ensure that he receives justice. It's also important to mark the seriousness of the offending, but appropriately motivate him to reform.
Mr Savage, please stand.
I convict you of driving a motor vehicle at or near police. I sentence you to six months' imprisonment to commence on 17 July 2022 and expire on 16 January 2023.
I convict you of causing grievous bodily harm. I sentence you to 26 months' imprisonment commencing on 17 August 2022 and expiring on 16 October 2024. That's to be cumulative as to 21 months on the offence of driving a motor vehicle at police. Had you not pleaded guilty I would have sentenced you to three years' imprisonment.
I convict you of failing to stop when signalled to do so by police. I sentence you to three months' imprisonment to commence on 17 September 2024 and expiring on 16 December 2024. That is to be cumulative as to two months on the sentence for causing grievous bodily harm. Had you not pleaded guilty I would have sentenced you to four months' imprisonment.
I convict you of driving with a prescribed drug and I sentence you to two months' imprisonment to commence on 17 November 2024 and expiring on 16 January 2025. That is to be cumulative as to one month on the sentence for failing to stop. Had you not pleaded guilty I would have sentenced you to six weeks' imprisonment.
I convict you of aggravated dangerous driving. I sentence you to 12 months' imprisonment to commence on 17 September 2024 and expiring on 16 September 2025. That is to be cumulative as to eight months on the sentence of driving with a prescribed drug. Had you not pleaded guilty I would have sentenced you to 15 months' imprisonment.
I convict you of possessing an offensive weapon. I sentence you to three months' imprisonment to commence on 17 August 2025 and expiring on 16 November 2025. That is to be cumulative as to two months on the sentence for aggravated dangerous driving. Had you not pleaded guilty I would have sentenced you to four months' imprisonment. That's an overall sentence of three years and four months commencing on 17 July 2022 and expiring on 16 November 2025. Mr Savage, you will also be disqualified from holding or obtaining a driver licence. If you would just pardon me a moment.
So in relation to the failing to stop the motor vehicle, there's an automatic disqualification of three months from today. For the driving with the prescribed drug in the oral fluid, there's an automatic disqualification of five years, which I will reduce to 18 months from today, that is to be concurrent, and for the aggravated reckless driving there is a disqualification of three months which I will impose cumulatively on the 18 months' imprisonment. You may be seated.
The next question to answer is how the sentence should be served. Mr Savage has requested that he be able to serve it by a treatment order. That's not opposed by the prosecution and accords with the opinion and recommendations of the suitability assessment.
The first issue is whether Mr Savage is eligible for his sentence to be served by a treatment order. The eligibility of such an order is set out in sections 12A and 80S of the Sentencing Act. While both refer to eligibility, the criteria in section 80S, whether Mr Savage is suitable and whether there are suitable arrangements for him to serve the treatment order properly available; thus, these matters can be dealt with when considering suitability after considering the stricter eligibility criteria in section 12A.
Mr Savage has been sentenced on his plea of guilty to imprisonment for two years and two months for causing grievous bodily harm, an eligible offence. That sentence is more than the minimum period of imprisonment for eligibility. He has also been sentenced on his pleas of guilty to five other offences, to terms of imprisonment which altogether constitute three years and four months' imprisonment, which is less than the maximum period of four years' imprisonment for eligibility.
The suitability assessments, supported by his mother's reference, suggest that, to the court's satisfaction, that he has a dependence on drugs, especially cannabis, and probably alcohol, and that his dependence substantially contributed to his offending. Mr Savage is not subject to any other sentencing order within the meaning of section 12A of the Sentencing Act.
Mr Savage has lived for some years now in the ACT. His family are here. His mother is here and his wife's family are here. It's satisfactorily shown to the court that he will live in the ACT for the length of the sentence.
Mr Savage recently signed a further consent form for the making of a treatment order after he had initially changed his mind. He has agreed that in that form, supported by evidence from the suitability assessment, that he has had a clear explanation of the treatment order with sufficient information to enable him to make a balanced judgment about that and has had an opportunity to ask any questions about the order and has had those questions explained in terms that he appeared to understand.
The making of a treatment order seems, given the circumstances, appropriate and Mr Savage is eligible, thus the question posed by section 80S of the Sentencing Act must be addressed; that is, would such an order be suitable and is it appropriate for him to serve his term of imprisonment by being suspended so that he can serve the treatment order and are appropriate arrangements practicable?
Having carefully considered the professionally prepared and competent suitability assessment it is satisfactorily shown that Mr Savage is suitable for a treatment order. The case plan prepared by Alcohol and Drug Services show that there are suitable arrangements for Mr Savage to serve his sentence of imprisonment by a treatment order. There is no reason why the sentence should not, as required, be suspended in order that he do so, and both suitability assessments recommend that he is suitable for the making of a treatment order. There are no matters set out in table 46K of the Sentencing Act that would render Mr Savage unsuitable for a treatment order.
Finally, although the sentence of imprisonment has commenced on 17 July 2022, which period prior to today has, in part, been served in custody so that the sentence must now be partially suspended, that does not prevent Mr Savage from being subject to a treatment and supervision – a treatment order for the reasons set out in R v Crawford (No 1).
Mr Savage, please stand
I make a drug and alcohol treatment order under section 12A of the Crimes (Sentencing) Act 2005 of the ACT in respect to the primary offence of causing grievous bodily harm of which you have been convicted and for which you have been sentenced to two years and two months' imprisonment.
That order is extended to the offences of driving a motor vehicle at police, failing to stop a motor vehicle when signalled by police, driving with a prescribed drug in your oral fluid, dangerous driving and possessing an aggravated – an offence of aggravated dangerous driving and possessing an offensive weapon of which you have been convicted and which you have been sentenced and which are associated offences of the primary offence.
It's noted that the convictions and sentences imposed for the primary and associated offences have been recorded and are hereby incorporated into the drug and alcohol treatment order in the custodial part of the order. The treatment order will be for 32 months and one day from today, 16 March 2023 to 16 November 2025.
The treatment and supervision part of the drug and alcohol treatment order will be for two years from today, 16 March 2023 until 15 March 2025. The custodial part of the drug and alcohol treatment order for the primary and associated offences is hereby suspended under section 80W of the Crimes (Sentencing) Act 2005 from today, 16 March 2023 until 16 November 2025.
Under section 80ZA of the Crimes (Sentencing) Act 2005 you will be required to sign an undertaking to comply with the offender's good behaviour obligations under section 85 of the Crimes (Sentence Administration) Act 2005 of the ACT from the day after the end of the treatment and supervision part of the drug and alcohol treatment order, 16 March 2025, until the end of the total sentence, 16 November 2025, with a probation condition that you accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you, including as to urinalysis, counselling and treatment.
For the treatment and supervision part of the drug and alcohol treatment order the core conditions of the order set out in section 80Y of the Crimes (Sentencing) Act 2005 are hereby imposed. You're directed to admit yourself and complete the residential day program at Karralika Community Programs Inc, to not leave the program until you have completed the course, and to comply with all of the directions of the person in charge of the program and all of the rules of the program and the facility. Should you leave or be discharged from the program before completing it you are to report to ACT Corrective Services by 4.00 pm on the next business day with a view to having your drug and alcohol treatment order reviewed.
You are to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the treatment and supervision team, and obey all reasonable directions of any member of that team about where you reside, with whom you associate and your attendance from time to time. You are not to return a positive test sample under alcohol and drug testing, and you are to comply with any directions of the court from time to time about attendance at court, in person or by electronic means.
You are directed to attend the court registry before you leave the court precincts today to sign a sealed copy of this order and an undertaking to comply with the order and any obligations under the Crimes (Sentence Administration) Act 2005 of the ACT for the period that this order is in force, and you are directed to appear in court on Friday, 24 March 2023 at 11.30 am.
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