DPP v Druett

[2024] ACTSC 56

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Director of Public Prosecutions v Druett

Citation: 

[2024] ACTSC 56

Hearing Date: 

29 February 2024

Decision Date: 

01 March 2024

Before:

Loukas-Karlsson J

Decision: 

See [80]-[85]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drive motor vehicle at police – drive unlicensed – low objective seriousness – prospects for rehabilitation – application of Bugmy  principles – suspended sentence imposed

Legislation Cited: 

Crimes Act 1900 (ACT) s 29A

Crimes (Sentence Administration) Act 2005 (ACT) ss 86, 107, 108

Crimes (Sentencing) Act 2005 (ACT) ss 33, 35

Road Transport (Driver Licensing) Act 1999 (ACT)

Cases Cited: 

Blundell v The Queen [2019] ACTCA 34 at [12] 

Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299

Director of Public Prosecutions v Clarke (No 2) [2023] ACTSC 261

Director of Public Prosecutions v Holder (No 2) [2023] ACTSC 167

Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

Director of Public Prosecutions v Manns (No 2) [2023] ACTSC 405

Elias v The Queen [2013] HCA 31; 248 CLR 483

Forster-Jones v The Queen [2020] ACTCA 31

Hili v The Queen [2010] HCA 45; 242 CLR 520

Hogan v Hinch [2011] HCA 4; 243 CLR 506

Markarian v The Queen [2005] HCA 25; 228 CLR 357

R v Anquetil [2021] NSWCCA 59; 373 FLR 1

R v Bandy [2018] ACTSC 261

R v Carpenter [2022] ACTSC 6

R v Crawford [2022] ACTSC 166

R v Irwin [2019] NSWCCA 133

R v Pham [2015] HCA 39; 256 CLR 550

R v Seymour [2021] ACTSC 152

R v Tran [1999] NSWCCA 109

R v Van Ryn [2016] NSWCCA 1

Smith v The Queen [2011] NSWCCA 163

Texts Cited:

Bugmy Bar Book, Incarceration of a Parent or Caregiver (November 2019)

Parties: 

Director of Public Prosecutions

M Druett ( Offender)

Representation: 

Counsel

T Kelliher ( DPP)

S Lynch ( Offender)

Solicitors

ACT Director of Public Prosecutions

Aboriginal Legal Service ( Offender)

File Numbers:

SCC 1 and 2 of 2024

LOUKAS-KARLSSON J:     

Introduction

1․On 17 January 2024, Mr Druett (the offender) pleaded guilty to the following offence:

(a)An offence of drive motor vehicle at a police officer, contrary to s 29A of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 15 years imprisonment.

2․On 17 January 2024 the offender also plead guilty to the following transferred charge for which he is also to be sentenced:

(a)A charge of drive unlicensed, contrary to section 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT). The maximum penalty for this offence is a fine of 20 penalty units.

3․I note at the outset two matters. First, though the offence is described as “drive motor vehicle at police” the facts in this case do not in fact involve driving at police. It is not the prosecution’s position that the offender drove at police, but rather having driven near a police officer recklessly.

4․Second, the Court acknowledges the importance to the community of police officers being able to properly carry out their duties on behalf of the community.

Agreed facts

5․The agreed facts are set out in the Agreed Statement of Facts, which forms part of the Crown Tender Bundle. The agreed facts may be summarised as follows.

6․At 2:34am on 25 September 2023, police were conducting mobile patrols in a marked Police vehicle on Limestone Avenue, in Reid ACT. At this time, a Silver coloured Holden Captive was travelling ahead of the police vehicle. This vehicle came to the attention of police.

7․Police drove ahead of the vehicle to view the front number plate. A short time later the vehicle came to a stop at a set of traffic lights. Police drove alongside the vehicle and had a conversation through the opened window with the offender, who was driving the vehicle.

8․Once the traffic light had turned green, police activated their emergency lights and sirens and signalled for the vehicle to stop. The offender complied with the request, pulling over to the side of the road.

9․Constables Nicholls and Prosser exited their police vehicle and proceeded towards the vehicle. Constable Nicholls examined the rear number plate. Constable Nicholls approached the offender and requested that he produce his driver licence. While the offender was looking for his driver licence, Constable Nicholls approached the front of the vehicle and again examined the number plate. Constable Nicholls walked back to the driver’s window and the offender produced an expired New South Wales Provisional Driver Licence in his name.

10․Also present, seated in the front passenger seat, was a male. As submitted by defence counsel, the offender was driving the passenger home because the passenger had been drinking.

11․While Constable Nicholls and the offender had a conversation about the vehicle, two other Police vehicles arrived to assist Constable Nicholls and Prosser. Constable Nicholls then spoke with an officer in one of the Police vehicles to provide an explanation of the situation. Constable Prosser advised Constable Nicholls that police indices indicated that the plates did not match to the vehicle. Constable Prosser then proceeded to the front passenger side of the vehicle to locate the Vehicle Identification Number. Up until this point, the offender had been polite and cooperative with Police.

12․Constable Nicholls returned to the driver’s window to speak with the offender and directed him to turn off the vehicle. Constable Nicholls observed that the offender turned the steering wheel and the vehicle accelerated forward. Fearing for his safety, Constable Nicholls reached through the driver’s window and grabbed the key to turn off the vehicle. The offender was actively pushing Constable Nicholls away preventing him from turning off the vehicle. The vehicle continued to accelerate forwards while Constable Nicholls’ arm was still inside the opened window. Importantly I note that this is the conduct that forms the offence of drive motor vehicle at police. As stated at the outset of this judgment it is not the prosecution’s submission that the offender drove directly at Constable Nicholls. Further, it is not the prosecution submission that the offender intended to risk Constable Nicholls’ safety by his conduct.

13․The vehicle came to a stop and Constable Nicholls drew and activated his Taser aiming it at the offender. Constable Nicholls was concerned that the offender would re-start the Vehicle and once again place him in danger. He yelled at the offender directing him to get out of the Vehicle. Acting Sergeant Nigel Laverty and Constable Nicholls rushed towards the vehicle to assist Constable Nicholl. They told the offender that if he did not exit the vehicle he would be tasered. The offender did not comply with these directions.

14․Constable Nicholls was standing at the front right quarter panel of the Vehicle, near the driver’s window and, fearing for his safety, in order to stop the offender Constable Nicholls fired his taser, striking the offender in the chest. The vehicle then accelerated forward. Constable Nicholls ran after the Vehicle and successfully removed the keys from the ignition causing the Vehicle to come to a stop. Again, importantly I note this conduct is accepted to be involuntary, as the vehicle accelerated as a result of the offender being struck with the taser.

15․A short time later, police were able to remove the offender from the vehicle and placed him under arrest.

16․Subsequent enquiries revealed that the offender was not the holder of an Australian driver licence authorising him to drive a motor vehicle.

Victim Impact

17․While there is no Victim Impact Statement before the Court, the Court acknowledges that the commission of this offence would have been undoubtedly alarming for the police officer in question.

18․The Court acknowledges the special vulnerability that police officers experience while conducting their regular, lawful duties on roads. Police are routinely called upon to attend both routine and emergency incidents. The Court acknowledges the impact on the police officer that arose in the course of his lawful employment as a police officer on behalf of the community.

Objective seriousness

19․An assessment of the objective gravity of the offending is a fundamental part of determining the appropriate sentence for the offences: see Forster-Jones v The Queen [2020] ACTCA 31 at [29]-[30]; see also R v Van Ryn [2016] NSWCCA 1 at [135].

Drive motor vehicle at police

20․Both the prosecution and counsel for the offender made submissions in accordance with the features of an offence of driving a motor vehicle at a police officer identified by Refshauge J in R v Seymour [2021] ACTSC 152 (Seymour) at [34]-[37], that inform the objective seriousness of such offending. These factors include:

(a)Whether a police vehicle was damaged in the process. Both the prosecution and counsel for the offender appropriately conceded that, in this matter, no damage was occasioned to a police vehicle.

(b)Whether the offender was engaged in a police pursuit. Both the prosecution and counsel for the offender correctly submitted that the offender was not engaged in a police pursuit. It is noted that the incident began with the offender complying with police directions to pull his vehicle over.

(c)Whether the offending took place in a busy locality. Both prosecution and counsel for the offender correctly submitted that the offending occurred at a time when vehicular and pedestrian traffic was minimal.

(d)Whether the offender was engaging in highly dangerous behaviour. Counsel for the prosecution conceded that the offender’s conduct, up until the actions that constitute the instant charge before this Court, was not dangerous – “highly” or otherwise.

(e)Whether there was an intention to impede arrest without regard to the welfare or safety of the police officer or the community at large. Counsel for the defendant made written submissions that the offending did not arise in circumstances where the offender was evading arrest. The prosecution made oral submissions to the contrary, that the offending conduct occurred as an attempt to flee after Constable Nicholls directed the offender to turn off the vehicle. Counsel for the offender correctly accepted the prosecution submissions on this point. I consider on the evidence that the offender displayed a short-lived intention to impede or evade arrest, that is, a matter of seconds on the basis of the Body Worn Camera footage that I have viewed in court.

(f)Where the police officer was located (in a police vehicle, or on a police motorcycle, or on foot). Both the prosecution and counsel for the offender submitted that Constable Nicholls was on foot. This increases the objective seriousness of the offending; I accept the prosecution’s submissions that being on foot placed the police officer in a vulnerable position.

(g)Whether the person drove directly at the police officer. As stated at the outset of this judgment, there is no suggestion on the facts that this occurred.

(h)Whether there were any physical injuries caused. It was conceded that no injuries were sustained by Constable Nicholls.

(i)Whether there were other road users present. Counsel for the prosecution accepted that there were no other road users present.

(j)Whether there were any houses or footpaths bordering the road. Both the prosecution and counsel for the offender identified that there were no houses or footpaths bordering the road.

(k)Whether there were any passengers in the offender’s vehicle. On the facts, there was a passenger in the offender’s vehicle.

21․In addition to the above features, counsel for the offender submitted that the instant offence is less objectively serious, as the offending conduct is particularised as having driven near a police officer recklessly, in contrast with the more serious alternative conduct of having driven a motor vehicle at police intentionally, which is also an offence which carries the same maximum penalty contrary to s 29A of the Crimes Act. This submission was properly accepted by the prosecution, who conceded that this offence is made out on the basis that the offender drove near Constable Nicholls and was reckless about risking his safety. I agree with the prosecution that this conduct is to be distinguished from driving directly at a police officer or intentionally risking a police officer’s safety.

22․Counsel for the offender additionally submitted that the offending was very brief, and the distance that the vehicle travelled was short. I note that I have reviewed the Body Worn Camera footage and agree with this submission as a result of viewing this footage.

23․It was also correctly submitted that the offender was not under the influence of drugs or alcohol.

24․Counsel for the offender ultimately submitted that this offending is a less serious example for an offence of this type.

25․The prosecution properly accepted on the facts the submission that this offending is at the lower end of objective seriousness for offending of this kind. I agree with this classification as it accords with my assessment of the facts and viewing of the Body Worn Camera footage.

26․Nevertheless the offending is serious and the Court must take into account the maximum penalty for this offence as a “yardstick”: Elias v the Queen [2013] HCA 31; 208 CLR 483 and Markarian v R [2005] HCA 25. Counsel for the offender properly accepted that an offence contrary to s29A of the Crimes Act is serious offending.

27․Judges have a duty to classify offences from low to high objective seriousness. In this case it is clear that the offending is at the lower end of objective seriousness in comparison with the much more objectively serious offence of driving at a police officer.

Drive unlicensed

28․Counsel for the offender did not make submissions as to the objective seriousness of the offending, nor are offences of drive unlicensed often dealt with in the Supreme Court.

29․The prosecution submitted that this offending occurred in the following relevant circumstances:

(a)The driving occurred in the context other criminal offending, noting that it would not be appropriate to double punish the offender as the other criminal offending is the subject of charges before this Court.

(b)The distance driven by the offender is unknown but could be inferred to not merely be minimal given a conversation with police about the time the car was purchased.

(c)There was a period of 3 months and 26 days between when the offender was eligible to apply for a probationary licence and the incident, noting that the offender’s previous licence had expired and the offender was then subject to a disqualification period.

(d)The offender has a previous conviction from 2023 for the same offence.

30․In these circumstances I find that the objective seriousness of the drive unlicensed charge approaches the mid-range of seriousness.

Subjective circumstances

31․In evidence before me is a pre-sentence report (PSR) prepared for the offender which includes the following in relation to the offender’s subjective circumstances.

32․The offender is a 29 year old Aboriginal man of Wiradjuri descent, who was born in Canberra ACT.

Supervision

33․The offender has been known to ACT Corrective Services since 2013, when a Pre-Sentence Report (PSR) was ordered in relation to a number of offences before the ACT Magistrates Court. From this time, the offender has been subject to supervised community-based orders. After 2016, Mr Druett had no contact with the Service until the current request for preparation of a PSR for these offences. During interviews, the offender advised the birth of his children in 2016 and 2018 motivated him to become a prosocial role model for them. At the time of this offending, the offender was subject to an unsupervised Good Behaviour Order (GBO) in the ACT for the offence of driving with prescribed concentration of alcohol in blood/breath committed in 2022. It is noted the current offences constitute a breach of this GBO. For this offending, the offender was granted a supervised bail order, which he was found to have breached after approximately one month.

Remand

34․Since November 2023, the offender has been on remand. Service records indicate the offender behaviour towards staff in custody has been poor. Regrettably his record on remand is not unblemished. Nevertheless, on a positive note the offender reported he has self-referred to multiple support services. He claimed to be motivated to engage in interventions in custody or the community and was forthcoming identifying his risk factors. In custody, the offender was working for a short period as a sweeper. He was subsequently found unsuitable for employment. The offender has successfully completed educational courses to assist his prospects of employment upon release. That is a positive factor in my view. To his credit, the offender has been positively engaged in the Aboriginal cultural arts program while in custody.

Family background and childhood deprivation

35․The offender has two children, aged 5 and 7 years old. He is one of five siblings to his parent’s union, however advised he had multiple half siblings with whom he had positive and supportive relationships. The offender disclosed witnessing domestic violence in the family home as well as experiencing financial, emotional and physical neglect.

36․The offender reported his parents separated when he was approximately eight years old and he remained in the care of his mother for a few years. Around this time, he began to engage in criminal activity and his mother refused to care for him any longer, resulting in the offender relocating to reside with his father. The offender reported living a transient life with his father, including periods of homelessness and exposure to antisocial activity. He advised his father re-partnered and his step-mother was a positive support in his life. When the offender was 16 years old, his step-mother died and he began living independently from his parents.

37․The offender advised the relationship with his parents had improved. He reported seeing his father occasionally, due to them working in similar trades and having regular contact with his mother. The offender reported residing with and caring for his mother prior to his incarceration, due to her health being poor.

Employment and other matters

38․The offender commenced employment aged 14, due to financial neglect from his parents. The offender completed Year 11 through formal education before ceasing school to focus on his employment. The offender has held mostly consistent employment as a steel fixer since he was 16. Since the deterioration of his relationship, the offender has struggled to maintain employment. In the year prior to his incarceration, he worked sporadically on short-term jobs. The offender was insightful regarding employment being an important protective factor in his life. Counsel for the offender submitted that he has a job in steel fixing available to him upon his release from custody.

39․The offender disclosed having some antisocial acquaintances, however denied having regular contact with these people for many years due to focusing on his family. He described his friends as prosocial and family orientated, however acknowledged being isolated from this support system in the year prior to these offences due to struggling with his mental health.

40․The offender acknowledged a history of alcohol misuse, having commenced drinking aged 14. As he became older, he realised he needed to seek support for his drinking and approximately three years ago he successfully completed a residential rehabilitation program for alcohol use. He emphasised he was not under the influence of any substances when these offences occurred and had not been drinking excessively in the period prior to the charges.

41․The offender reported having a long history of playing football in social competitions as a hobby. He advised aside from this he predominantly spent time with his children or working. In the year prior to these offences, Mr Druett reported having isolated himself including not engaging in any organised prosocial activities and recognised this was a risk factor. 

Support services

42․The offender reported having been diagnosed with depression, anxiety and post-traumatic stress disorder (PTSD). Approximately three years ago he commenced engaging with multiple support services for self-improvement as he recognised his use of alcohol and mental health concerns were impacting his life. He reported commencing psychological treatment through his union, eventually self-referring to a psychologist at Winnunga Nimmityjah Aboriginal Health and Community Services (Winnunga). The offender had commenced, but did not complete, the Everyman Men Choosing Change Program. The offender described these Services positively and was able to identify benefits from having sought support in these areas including having more tools to manage stressors.

43․Despite these positive steps, the offender acknowledged that after the deterioration of his relationship, his mental health had become extremely poor. He stated at the time of the offending he was experiencing strong depressive symptoms and recognised this had likely contributed to the offending behaviour.

Conditional liberty

44․The offender was subject to a Good Behaviour Order at the time the offences were committed. Therefore the offences were committed while the offender was on conditional liberty. This Good Behaviour Order will be discussed at [73]-[79] in this judgment.

45․In R v Tran [1999] NSWCCA 109 at [15], Wood CJ stated:

Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent.

The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence. I take the conditional liberty into account as an aggravating factor on sentence.

46․Both the prosecution and defence appropriately acknowledged that the offending being committed while the offender was on conditional liberty, is an aggravating factor on this sentence: see Director of Public Prosecutions v Manns (No 2) [2023] ACTSC 405 at [191]-[193].

Criminal History

47․The offender has a criminal history, which includes previous convictions for road related offending, including a conviction more recently for driving unlicensed in 2023 and a conviction for the offence of furious/reckless/dangerous driving a decade ago in 2013.

48․The criminal history cannot be used to impose a sentence disproportionate to the gravity of the offences before me. I do note that his criminal history is relevant to the level of leniency that can be afforded to the offender: see Cotter v Corvisy [2008] ACTSC 64 and R v Carpenter [2022] ACTSC 6.

Plea(s) of guilty

49․The offender entered pleas of guilty at a relatively early stage of proceedings. The offender was originally charged with 5 charges and the offender had initially entered pleas of not guilty. Following receipt of the brief of evidence, parties engaged in negotiations, culminating in the offender pleading guilty to the two charges before the Court and the matter being committed to the Supreme Court for sentence.

50․Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.

51․Pursuant to section 35(2)(c) of the Sentencing Act, I note that the pleas were the subject of negotiations between the parties. In Blundell v The Queen [2019] ACTCA 34 (Blundell) at [12], the ACT Court of Appeal stated that the utilitarian value of pleas indicated at criminal case conferencing is such that “a discount in excess of 10%, and almost always within the range of 15 to 20%, is required”.

52․I distinguish the instant matter from Blundell, noting that pleas were entered in the Magistrates Court after negotiations and not in circumstances where the offender maintained pleas of not guilty after committal, such that the matter required the resources involved in case management and case conferencing. Therefore a discount above 20% is appropriate in this regard.  

53․Counsel for the offender submits that there was utilitarian value in the timing of the pleas of guilty, as the resolution of the matter meant that Supreme Court trial resources, as well as police and other court resources, were saved. It was submitted that a discount in the range of 20-25% would be appropriate.

54․The prosecution accepts that pleas were entered at an early stage and there was utilitarian value in the pleas being entered at the relevant time. The prosecution indicated they would not be heard against a discount in the range of 20-25%.

55․Taking into account the relevant matters, in my view, a discount of approximately 25% is appropriate.

Time in custody

56․The offender has spent 141 days in custody from 25 September 2023 to 18 October 2023, and then from 6 November 2023 to 01 March 2024, solely referable to these offences.

Comparable cases

57․Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences.  Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:

[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.

58․The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].

59․It was stated at the haring that the available cases did not provide much assistance, due to the fact that the charge of drive motor vehicle at police in this case arose from the less serious conduct of the offender driving a motor vehicle near police recklessly.

60․I was referred to the following cases by the prosecution:

(a)DPP v Clarke (No 2) [2023] ACTSC 261 involved offending resulting in charges of driving motor vehicle at police; aggravated furious/reckless/dangerous driving; failing to stop for police; driving disqualified; using a motor vehicle with a numberplate issued for another vehicle; using an unregistered registerable vehicle and using an uninsured motor vehicle. The offender failed to stop for police when signalled to do so and was observed travelling more than the speed limit. Police deployed a tyre deflation device which damaged the front left tyre. The pursuit continued and the left tyre fell off the vehicle. A police officer walked onto the road to place another tyre deflation device in the path of the offender’s vehicle. The officer was on foot in the middle of a three lane arterial road. The offender was travelling at a speed of 120 km/h and was rapidly moving from the furthermost lane to the same lane that the police officer was standing in, while attempting to deploy the tyre deflation device. The police officer was forced to quickly run out of the path of the vehicle onto the median strip to avoid being hit. The vehicle then continued driving before eventually stopping on the greenbelt and running from police. For the charge of drive motor vehicle at police the offender was sentenced to a term of imprisonment for 30 months, to be served by way of Intensive Corrections Order.

(b)DPP v Holder (No 2) [2023] ACTSC 167 involved offending that gave rise to two charges of aggravated furious/reckless/dangerous driving; one charge of drive motor vehicle at police and one charge of drive disqualified. Police observed the offender driving a motor vehicle at speed in a residential area. A police officer on a police motorcycle attempted to pull the vehicle over. A pursuit was initiated over a period of about ten minutes. The offender reached speeds approaching 180 km/h at times without headlights, through red traffic lights and on the wrong side of a major road against oncoming traffic. Ultimately the vehicle crashed into a roundabout guardrail near Isabella Pond. During the pursuit, the offender almost collided with multiple police and civilian vehicles and would have done so had those vehicles not taken urgent evasive action. Many of the civilian drivers were shaken and at least one was in tears. At one point while driving through a residential zone the offender was travelling at 80km/h in a 50km/h zone. The police officer on the police motorcycle had to take urgent evasive action to avoid a collision. Another police officer in a police vehicle positioned his vehicle at a 90 degree angle to block the offender. When he realised that the offender was not going to stop he turned his police vehicle onto the median strip to avoid a head-on collision. The offender was sentenced to 2 years and 6 month imprisonment to be served by way of Intensive Corrections Order.

(c)R v Crawford [2022] ACTSC 166 considered a course of offending which gave rise to two charges of driving a motor vehicle without consent; 2 charges of aggravated furious/reckless/dangerous driving; one charge of driving at police; two charges of driving disqualified and one charge of possessing a drug of dependence. Two stolen motor vehicles were observed being driven at high speed parallel to one another. Police attempted to set up a tyre deflation system on the road they were travelling on. The two vehicles avoided the police by driving across the grass median strip and then travelled on the highway in the opposite direction to the appropriate direction of travel. Police pursued the vehicles, reaching speeds of 130 km/h in a 100km/h zone. The vehicle being driven by the offender in this case exited an offramp and police ceased pursuit of this vehicle, instead they pursued the other vehicle. The following day, police observed the offender in the same vehicle proceed through a red light and proceed at high speed in a residential suburb. Police pursued the offender, who failed to stop. The offender drove into a residential complex and Police blocked the entrance. Police officers exited their vehicle and proceeded towards the offender’s vehicle. The offender reversed his vehicle towards one of the police officers who had to move swiftly into a garden bed to avoid being hit. The vehicle collided with a bollard and then departed the scene. Later that day the offender was still driving the same vehicle. He mounted a footpath in order to avoid police vehicles attempting to block his path. He drove at speed along the foot path ignoring police directions to stop and almost collided with another police officer. The offender collided with a police vehicle pushing it several meters. He was subsequently forcibly removed from the vehicle with the aid of a Taser. The police officer seated in the police vehicle that was rammed sustained minor injuries. The offender was sentenced for the drive motor vehicle at police offence to a period of 12 months imprisonment, to be served by way of Intensive Corrections Order.

(d)R v Seymour [2021] ACTSC 152 considered a course of offending that gave rise to one charge of driving at police; two charges of aggravated dangerous drive; one charge of drive disqualified and two charges of driving with prescribed drug in oral fluid. The offender was driving a vehicle and evaded police by making a U-turn and driving 107 km/h in a 60 km/h zone, crossing onto the wrong side of the road multiple times. The offender then drove at 112 km/h and 90 km/h in a 60 km/hr and 50 km/hr zone, respectively. The offender increased his speed to 170 km/h in an 80 km/h zone for 5.5 km and crossed onto the wrong side of the road to exit. A short time later, the offender drove approximately 10 km/h over the posted 60 km/h speed limit without their lights on. The offender performed a handbrake turn to drive on the wrong side of the road, directly at a police officer on a motorcycle, who moved swiftly to avoid a collision. The offender continued to drive away from police at 140 km/h in an 80 km/h zone. After performing another handbrake turn to face the police officer, the offender drove away onto the incorrect side of the road and collided with a guardrail. For the offence of drive motor vehicle at police, the offender was sentenced to 27 months imprisonment, which was suspended and served as a Drug and Alcohol Treatment Order.

Application of Bugmy principles

61․In Bugmy, the High Court found that the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way: at [40]. Further, the High Court held that the effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: Bugmy [42]-[43]. A background of that kind may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending: at [43]. Attributing “full weight” in every case is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment: Bugmy at [43]. Social deprivation may impact on those purposes in different ways. The court in Bugmy explained at [44]-[45]:

An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

62․In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear from Bugmy, and subsequent case law, is that:

(a)the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44];

(b)the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [44] and R v Irwin [2019] NSWCCA 133 at [3] (Irwin); and

(c)the application of the Bugmy principles is not discretionary: Irwin at [3].

63․There is no doubt on the evidence before me that the offender has experienced significant childhood disadvantage, and it is appropriate that I take this into account on sentence, in the manner set out in Bugmy. 

64․I further note it was a choice of the offender not to expose his young children to a custodial setting through visits and knowledge that he is in prison. Consequently he has not seen his children for a number of months. I note the negative effects of parental incarceration identified in the Bugmy Bar Book:

Parental incarceration may interfere with the attachment relationship between a child and their parent or caregiver, cause financial hardship, disrupt care and living arrangements, and subject children to stigmatisation and shame. This may impact upon a child’s emotional, behavioural, and psychological development, educational performance, delinquency and risk of offending.

Statutory and other relevant considerations

65․In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.

66․The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.

67․I note the Explanatory Statement in connection with the introduction of the s 29A Crimes Act offence, which states the following:

Police officers, firefighters and paramedics have duties and responsibilities which mean they are routinely called upon to attend emergency incidents and render assistance in volatile and dangerous situations where they are exposed to an increased risk of violence. When undertaking operational duties, these workers are obliged to attend, render assistance and stay at a scene, as opposed to members of the public who may elect to leave an escalating incident. The frequency and severity of assaults against emergency frontline workers in the ACT is a growing concern. A new offence for assaults against police officers, firefighters and paramedics recognises the discrete criminality of this offending and reflects clear community expectation that these assaults are unacceptable. Specific offences against driving at police officers and their vehicles recognises the special vulnerability these workers experience while executing their duties on our roads. These offences aim to reflect the serious criminality of dangerous driving activity targeting police officers and police vehicles and seek to deter others from engaging in this type of violent conduct.

(emphasis added.)

68․As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357. However, the maximum penalty is not something which will necessarily play a decisive role in the final determination: see R v Anquetil [2021] NSWCCA 59 per Bathurst CJ (as his Honour then was) at [14].

69․The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it was submitted by counsel for the offender that a term of imprisonment could be imposed and immediately suspended upon entering a Good Behaviour Order with conditions that require the offender to engage in culturally appropriate support services.

Rehabilitation

70․Rehabilitation is an important consideration having regard to the offender’s subjective circumstances. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:

Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.

71․On the evidence, the offender does have prospects for rehabilitation. While prospects may be considered somewhat guarded, nevertheless the self-referrals to support services while in custody are a positive proactive sign on the part of the offender.

72․I note the offender’s previous rehabilitative efforts and further note that in the court’s collective experience, rehabilitation is not necessarily a linear process for all who come before the courts.

Breach matters

73․The offender was sentenced by Magistrate Morrison to an 18-month GBO on 31 May 2022 for the offence of driving with prescribed concentration of alcohol in blood/breath. As discussed earlier, at the time of the offending, the offender was subject to this GBO.

74․Upon recording a conviction in the matters before me, the offender will be in breach of the GBO. Section 107 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act) provides that this Court may deal with the offender for breach of the offender’s good behaviour obligations.

75․Section 108(2) of the Sentence Administration Act provides the following:

108 Court powers—breach of good behaviour obligations

(1)This section applies if—

(a)a court is satisfied an offender has breached any of the offender’s good behaviour obligations; and

(b)section 110 (Cancellation of good behaviour order with suspended sentence order) does not apply to the offender’s good behaviour order.

(2)The court may do 1 or more of the following:

(a)take no further action;

(b)give the offender a warning about the need to comply with the offender’s good behaviour obligations;

(c)give the director‑general directions about the offender’s supervision;

(d)amend the good behaviour order;

(e)if the offender has given security under the order—

(i)   order payment of the security to be enforced; and

(ii)     order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended);

(f)cancel the order.

Examples for par (d)

impose or amend an additional condition of the order, or amend the term of the order

(3)If the court cancels the good behaviour order, the court must—

(a)if section 109 applies to the offender’s good behaviour order—deal with the offender under that section; or

(b)in any other case—re-sentence the offender for the offence for which the good behaviour order was made (the relevant offence).

(4)The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on a conviction for the relevant offence.

(5)The court’s powers under this section are subject to section 113 (Good behaviour orders—limitations on amendment or discharge).

(6)To remove any doubt, an offender re-sentenced by a court under this section has the same right of appeal as the offender would have had if sentenced by the court on being convicted of the relevant offence.

76․The following documents were tendered in the original proceedings in the ACT Magistrates Court on 31 May 2022:

(a)Statement of Facts

(b)Criminal History

(c)Letter under the hand of Heather Nicol dated 10 May 2022

(d)Letter under the hand of Jessica Higgins-Ansu undated

(e)Letter under the hand of Jason Kair dated 4 May 2022

(f)Letter under the hand of Dr Eugene Tshibangu dated 17 May

(g)Letter under the hand of Dr Karim Ahmed dated 17 May 2022

(h)Letter under the hand of Rhiannan Richards dated 18 May 2022

(i)Letter under the hand of Dr Scott Mills dated 23 May 2022

77․I am further assisted by the inclusion of these documents in Exhibit 1 on sentence.

78․Counsel for the offender invited the court to take no further action on the breach of the GBO. It was submitted that this was an appropriate disposition because the offender was very close to successfully completing the GBO, the breach offending was generally of a different type of offending, the offender was not under the influence of drugs or alcohol at the time and that the GBO had now expired.

79․The prosecution submitted that it is open to the Court to take no further action on the breach of the GBO because of the dissimilarity in the current offending conduct and the offending the subject of the breach, the fact that the offender only had 2 months and 6 days remaining on the GBO when he committed the instant offence and that the breach ought to be taken into account as an aggravating factor on sentence for the current offence. That is a sensible submission. I propose to take no action on the breach. I propose nevertheless to take the breach of conditional liberty into account as an aggravating matter on sentence: see R v Carpenter [2022] ACTSC 6, R v Bandy [2018] ACTSC 261, Smith v The Queen [2011] NSWCCA 163 at [26].

Sentence

80․It is recognised by the Court that the offence committed against the victim is serious.

81․In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence and subjective matters of the offender.

82․The appropriate sentence for driving a motor vehicle at a police officer (which as I have noted earlier was not constituted in this case by driving at police but rather near a police officer recklessly) is 12 months of imprisonment, reduced to 9 months on account of the plea of guilty. The offence will be backdated to commence on 13 October 2023 to account for the time already spent in custody.

83․This period of imprisonment is to be suspended after the offender has served 4 months and 18 days imprisonment, upon entry into a Good Behaviour Order for 12 months, commencing on 01 March 2024, with the core conditions: s 86 Sentence Administration Act.

84․The Good Behaviour Order is to include an additional condition that the offender is required to engage with Yeddung Mura.

85․The offender is convicted of the offence of driving unlicenced, with no further penalty in light of the imprisonment on the more serious offence.

Orders

86․For the above reasons, I make the following orders:

(1)In respect of the offence of driving a motor vehicle at a police officer (CC2023/9444) the offender is sentenced to 9 months imprisonment. The offence will be backdated to commence on 13 October 2023 to account for the time already spent in custody.

(2)This period of imprisonment is to be suspended after the offender has served 4 months and 18 days imprisonment, upon entry into a Good Behaviour Order for 12 months, commencing on 01 March 2024, with core conditions.

(3)The Good Behaviour Order is to include an additional condition that the offender is required to engage with Yeddung Mura.

(4)The offender is convicted of the offence of driving unlicenced (CC2023/11189) with further no penalty to be imposed.

(5)In respect of the breach of the Good Behaviour Order imposed on 31 May 2022 (CC2022/1607), I take no further action.

I certify that the preceding eighty-six [86] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Loukas-Karlsson

Associate:

Date: 1 March 2023