R v AA
[2014] NSWDC 190
•07 November 2014
District Court
New South Wales
Medium Neutral Citation: R v AA [2014] NSWDC 190 Hearing dates: 1 October 2014 Decision date: 07 November 2014 Before: Mahony SC DCJ Decision: Custodial Sentence. For Orders see [77] & [78]
Catchwords: Dangerous driving occasioning death; dangerous driving occasioning grievous bodily harm; police pursuit; application of guideline judgment. Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Children (Criminal Proceedings) Act 1987Cases Cited: CM v R [2008] NSWCCA 195
IE v R [2008] NSWCCA 70
R v AB (2005) 156 A Crim R 577
R v Bus & AS (Unreported 3 November 1995) NSWCCA
R v Elkassir [2013] NSWCCA 181
R v GDP (1991) 53 A Crim R 112
R v Gordon (1994) 71 A Crim R 459
R v Jurisic (1999) 101 A Crim R 259
R v SDM [2001] NSWCCA 158
R v Shankley [2003] NSWCCA 253
R v Smith (1997) 95 A Crim R 373
R v Veatufunga [2007] NSWCCA 54
R v White [2002] NSWCCA 343
R v Winchester (1992) 58 A Crim R 345
R v XYJ (unreported 15 June 1992 NSWCCA)
SBF v R [2009] NSWCCA 231
Veen v R (No. 2) (1988) 164 CLR 465Category: Sentence Parties: Department of Public Prosecutions (Crown)
AA (Offender)Representation: A Chatterton (Crown)
J Jardim (Offender)
File Number(s): 12/60843 Publication restriction: Order made pursuant to s7 of the Court Suppression and Non-Publication Orders Act 2010 as to the offender's name and names of any young persons named in the matter.
REMARKS ON SENTENCE
The offender has pleaded guilty to the following offences:
(1) An offence of aggravated dangerous driving occasioning death (police pursuit) pursuant to s 52A(2) of the Crimes Act 1900.
The offence carries a maximum penalty of fourteen years imprisonment and an automatic disqualification of three years with a minimum of twelve months.
(2) Aggravated dangerous driving occasioning grievous bodily harm (police pursuit) pursuant to s 52A(4) of the Crimes Act 1900.
The offence carries a maximum penalty of eleven years imprisonment and an automatic disqualification of three years with a minimum of twelve months.
The offender has asked to be taken into account in sentencing two matters on a Form 1. They are two Counts of Aggravated dangerous driving occasioning grievous bodily harm (police pursuit) pursuant to s 52A(4) of the Crimes Act 1900.
The offences occurred on 22 February 2012 in the circumstances described below. The offender was in custody following his arrest from 22 February 2012 until 21 May 2012. He subsequently re-offended on 14 April 2014 and his bail was revoked on 6 May 2014. He was sentenced in relation to that offence at the Fairfield Local Court on 25 August 2014. He has therefore been in custody since 6 May 2014, however, in respect of that offence, he was sentenced by way of a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 ("C(SP)A"). Up until the sentence hearing on 1 October 2014, he had spent 133 days in custody.
Sentence Hearing
The Crown bundle, exhibit A, included a statement of agreed facts, the Form 1, the criminal and custodial history of the offender, a Juvenile Justice report dated 2 July 2014, together with the offender's traffic history.
Tendered on behalf of the offender were the following:
Exhibit 1 - Psychological report of Caroline Hare dated 25 September 2014, including a previous report dated 11 July 2014.
Exhibit 2 - Letter from the Offender
Exhibit 3 - Letter from the Offender's mother dated 3 July 2014
Exhibit 4 - Letter of Rafic El Chami dated 23 June 2014
Exhibit 5 - Report of Elizabeth Brown dated 14 June 2014
Exhibit 6 - Report of Anthony Becker, Corrective Services, dated 10 July 2014.
Exhibit 7 - Two statements of attainment
Exhibit 8 - Letter from the offender's father dated 14 July 2014
Exhibit 9 - Psychological report from Amina Ahmed dated 14 July 2014.
In addition, the offender's sister, MA, gave evidence on his behalf. That evidence is referred to below.
Circumstances of the Offending
The agreed Statement of Facts may be summarised as follows. At 12.20am on 22 February 2012 Sergeant Blackburn was patrolling in a northerly direction along Park Road Auburn and observed a bluecoloured Mitsubishi 380 sedan, being driven by the offender, turn onto Park Road at an excessive speed, travel south and pass over double separation lines. The police officer made a u-turn and followed it. In the vehicle were three passengers, RB, HI and AL. They were all friends of the offender. The warning devices on the police vehicle were activated and the offender failed to stop and commenced to accelerate away from the police vehicle. The offender made a left-hand turn onto Cumberland Road and accelerated away. Police lost sight of the vehicle as it travelled over a crest in the roadway. At the intersection of Cumberland Road and Albert Road, the offender disobeyed three visible stop signs facing him as he approached the intersection. After entering the intersection he collided with another vehicle being driven by Michael Patten. As a result of that collision, Mr Patten's vehicle was propelled into a timber power pole. The offender's vehicle continued in a southerly direction, colliding with a stop sign, an Australian Post box, a garbage bin and a brick fence on the eastern side of Cumberland Road.
The offender and his three passengers were conveyed to Westmead Hospital, all suffering serious injuries. HI, who was seated in the backseat, was pronounced as deceased at Westmead Hospital. RD, who had been seated in the front passenger seat, suffered a fractured left femur and fractured pelvis. AL, who had been in the backseat, suffered a fractured right shoulder and a lacerated liver and kidney.
The driver of the other vehicle, Mr Patten, was also admitted to Westmead Hospital suffering very serious injuries. He was admitted to the Intensive Care Unit and found to be suffering a right humerus fracture, comminuted fracture of the pelvis, right ankle fracture, compression haematoma of the right brachial artery, compartment syndrome, mutilating laceration to right arm resulting in damage to important functional structures, a right transverse process fracture of the third lumbar vertebrae, a right scapular fracture, and a right forearm laceration. He underwent procedures to fix a plate in his right humerus and to have a rod inserted in his left femur. He has undergone plastic and reconstructive surgery and suffers nerve injuries and has no function of the right arm. He requires ongoing medical intervention.
The Offender's Criminal Antecents
The offender had been placed on bonds pursuant to s 33(1)B in respect of two charges of recklessly wounding on 4 August 2011. Those offences occurred on 15 August 2010. The bonds involved two years supervision by Juvenile Justice. Subsequent to the current offences, he was sentenced to a further period of probation for 12 months by the Parramatta Children's Court in respect of a charge of supply prohibited drug which occurred on 3 September 2012. On 25 August 2014 he was sentenced by way of a bond pursuant to s 9 to be of good behaviour for 2 years in respect of an offence which occurred on 14 April 2014 of driving recklessly when pursued by police. He was also fined for driving a motor vehicle whilst his licence was suspended.
The Juvenile Justice Report
A report under the hand of Renee Dean and Angel Lee-Aube dated 2 July 2014 was relied on by the Crown. The authors stated that the offender reported having no recollection of the driving and was unable to explain why he did not respond to the police activating their warning lights and siren. The authors were of the opinion that the offender's expression of remorse appeared to have been egotistically driven rather than an indication of victim empathy. He appeared unable to acknowledge the implications of his conduct. However, it was stated that it was unclear whether that was due to his own psychological trauma related to the accident or his inability to empathise with other people.
The authors acknowledged that the offender's psychologist had indicated his difficulty in discussing the offence, and his relationship with his deceased friend, was trauma related, and a coping mechanism rather than an attempt to avoid acceptance of the consequences of his actions.
The offender was one of three children who had a close relationship with his mother. He had a good relationship with his two older sisters, both of whom were married and living independently with their husbands.
The offender had completed his school certificate in 2010, but his schooling was problematic. He had been suspended for truancy and disciplined for being involved in physical altercations with other students. He was expelled during the school year in 2011 due to "oppositional attitudes towards teachers, being verbally aggressive in class and his involvement in a physical altercation with another student".
He commenced full time employment with a demolition and excavation company where his father also worked. After a year he left that employment and at the time of the offence was working as a form worker. The employer is aware of the current matters and he is able to return to that work upon his release from custody. He was regarded as a good employee.
Following the offence, the offender was referred to a psychiatrist who diagnosed him with schizophrenia. However, his treating psychologist, who has been seeing him on a regular basis since September 2012, is of the opinion that his symptoms are trauma-related. Those symptoms included hallucinations and symptoms of anxiety and depression, including sleep disturbance, loss of appetite and paranoia. If those symptoms are not resolved then he requires further psychological intervention.
During previous supervision by Juvenile Justice the offender had struggled to consider the effect of his offending behaviour on others. The 12 month probation order he received on 23 May 2013 for the offence of supply prohibited drug had occurred in breach of previous orders.
The authors expressed concern that the offender did not accept responsibility for his actions and identified the effects of his behaviour on others. Rather, he focussed on his own personal inconvenience as a result of the offence and therefore continued counselling was required to resolve any trauma-based issues that were interfering with his ability to understand the effect of his actions on others.
The authors referred to s 19 of the Children (Criminal Proceedings) Act 1987 ("the C(CP)A"), as the offender is under 21 years of age and the Court has a discretion to make an order directing that the young person serve any sentence as a juvenile offender. To do so, the Court must find special circumstances exist pursuant to s 19(4) of the Act.
Evidence Relied on by the Offender
The offender's sister, MA, gave evidence on his behalf. She was now 23 years of age and was employed by the Commonwealth Bank of Australia as a home loans officer, whilst also completing her practical legal training, having recently qualified. She was fully aware of the charges and had read the agreed facts and was aware of the penalties imposed on 25 August 2014 at the Fairfield Local Court.
MA gave evidence that she had a good relationship with the offender prior to 2012. Their parents were separated and their mother worked fulltime to support them, so she and the offender were close. The offender had been quite affected by the fact that his father had been incarcerated when the offender was aged 11 years. He had no male role model thereafter and MA noted that he released his anxiety and stress to cope with things in his life by resorting to cannabis.
MA gave evidence that the offender had a very close relationship with the deceased, HI. HI was older and the offender tended to seek advice and guidance from him. The two other passengers were also good friends from the offender's school.
MA had discussed with the offender how he felt about the offending on numerous occasions. She knew that it was hard for him to talk about it but she had confronted him. He had expressed remorse to her and said that he wished he didn't have to be in this situation. She was aware of the ongoing psychological treatment which was helping him to come to terms with his offending. After the offences he had been ashamed of himself and had "closed up completely". She was aware that he had not pleaded guilty for a long time after the offences. She believed that he was afraid that he was going to lose the support and love of his family and community. He had difficulty trusting people and had taken a while to come to terms with his actions.
Since entering a plea of guilty he had been transferred to adult custody and had been moved around by Corrective Services. His visits were confined to one hour per week and he had had no access to any rehabilitative programs. He had obtained a number of statements of attainment, and had been employed doing sweeping duties in a number of the gaols. However, there was no treatment and no similar educational opportunities as were available in Juvenile custody.
The Crown Submissions
The Crown relied on a comprehensive outline of written submissions. It set out the principles relating to sentencing young persons to the effect that considerations of punishment and general deterrence should and may properly be given less weight in favour of individual treatment directed to rehabilitation, referring to R v GDP (1991) 53 A Crim R 112 and R v XYJ (unreported 15 June 1992 NSWCCA). It is clear from those authorities that general deterrence must not be completely ignored. Further, a sentencing judge is entitled to identify emotional immaturity as a matter justifying greater weight to be given to rehabilitation and less weight to general deterrence.
The Crown also identified the principles set out in s 6 of the Children (Criminal Proceedings) Act 1987 which are general indicative principles which are relevant to sentencing of young persons. The application of the principles in each case is a matter for judgment, degree and balance and depends to a very large extent upon the age of the young person and the nature of the offending, relying on R v SDM [2001] NSWCCA 158 and R v Bus & AS (unreported 3 November 1995) NSWCCA, IE v R [2008] NSWCCA 70, and CM v R [2008] NSWCCA 195.
The Crown submitted that less weight is given to the above principles when a young person conducts themselves like an adult and commits a serious offence. With those circumstances, the function of the courts to protect the community requires deterrence and retribution to remain significant elements in sentencing, relying on inter alia R v Gordon (1994) 71 A Crim R 459 at 469. The Crown further submitted that the usual rule that general deterrence applies with less force to the sentencing of young persons does not apply to dangerous driving offences because there is a prevalence of these offences amongst young drivers and the courts have a duty to seek to deter this behaviour, relying on R v Smith (1997) 95 A Crim R 373.
The Crown further submitted that the gravamen of the offence of dangerous driving causing death is not just the dangerous driving - it is the dangerous driving in association with the taking of a human life. This was referred to in the guideline judgments of R v Jurisic (1999) 101 A Crim R 259 and R v White [2002] NSWCCA 343.
The Crown relied on the guideline judgments in R v Jurisic, supra and R v White, supra. In the latter case the following characteristics were identified as frequently occurring in offences under s 52A:
(1) Young offender
(2) Of good Character with no or limited prior convictions.
(3) Death or permanent injury to a single person.
(4) The victim is a stranger.
(5) No or limited injury to the driver or the driver's intimates.
(6) Genuine remorse.
(7) Plea of guilty of limited utilitarian value.
The Court held that a custodial sentence would be usually appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement. It was submitted that the current offending went beyond the typical case in that one of the driver's intimates died, and two others were seriously injured and multiple injuries were suffered by the innocent driver of the other vehicle. Further, there was no evidence of genuine remorse.
The Crown further submitted that of the aggravating factors set out in R v Jurisic, the following were relevant here:
(i) Extent and nature of injuries inflicted.
(ii) Number of people put at risk.
(iii) Degree of speed.
(v) Erratic or aggressive driving.
It was further submitted that the degree of speed and escaping police pursuit indicated a high level of moral culpability. In such a case, it was submitted that a full time custodial head sentence of less than 3 years (in the case of death) and 2 years (in the case of grievous bodily harm) would not generally be appropriate as held in R v White. Further, the number of victims involved here also required an appropriate increment as an aggravated version of the offence under s 52A.
The Crown submitted the following aggravating factors were relevant pursuant to s 21A(2) of the C(SP)A:
(1) The offender's previous convictions, which included two counts of reckless wounding (4 August 2011), destroy/damage property (13 December 2011), supply prohibited drug (23 May 2013), together with the subsequent conviction for police pursuit and drive a vehicle whilst licence suspended (25 August 2014).
(2) It was further submitted that the offence was committed without regard to public safety in that the nature of his dangerous driving put other road users at risk. That risk involved a grave risk of death to another person or persons.
(3) Finally, the offender was subject to s 33(1)(b) bonds imposed at the Parramatta Children's Court on 4 August 2011.
The Crown accepted that, as mitigating factors, the offences were not committed as part of a planned or organised criminal activity and that the offender had pleaded guilty. However, the Crown submitted that a plea of guilty entered in the face of such a strong Crown case was simply a recognition of the inevitable, relying on R v Winchester (1992) 58 A Crim R 345. The plea of guilty was entered on the first day the matter was listed for trial. The matter was committed for trial following a committal hearing, during which, the Crown was put to strict proof and six witnesses were called, including the victim, Mr Patten and two of the passengers in the offender's vehicle. In those circumstances it was submitted that the plea of guilty to each charge had a limited utilitarian value.
As to the time spent by the offender in custody, the Crown submitted that the only time in custody referrable solely to this matter was the period 22 February 2012, following his arrest, until he was granted bail on 21 May 2012.
In respect of the criminal antecedents of the accused, the Crown referred to the High Court's decision in Veen v R (No. 2) (1988) 164 CLR 465 and R v Shankley [2003] NSWCCA 253 where Howie J said:
"The effect of the prior criminal record of the Young Person, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed, but rather that 'retribution, deterrence and protection of society may indicate a more severe sentence is warranted'".
The Crown submitted that the prior convictions of the offender showed a continuing attitude of disobedience to the law here.
The Crown submitted that an appropriate sentence would partially accumulate sentences imposed in relation to each count on the indictment. There was a special need to ensure that insufficient recognition is not given to the fact that more than one victim has been impacted by the criminal activity, therefore the imposition of concurrent sentences was inappropriate, relying on R v AB (2005) 156 A Crim R 577.
The Crown submitted that the offender could not rely on good character as a subjective factor as he had committed these offences whilst on conditional liberty, and had subsequently offended whilst on conditional liberty.
The Court would also have regard to the very serious injuries suffered by the victim Mr Patten.
With respect to the subjective matters, the Crown noted the qualified expressions of opinion in respect of the offender's capacity to accept responsibility for his criminal behaviour expressed by the authors of the background report. It was submitted that his prospects of rehabilitation are not good and that he had a history of failing to accept responsibility for his actions. Further, there was little remorse expressed by way of the plea of guilty because it had been a contested committal hearing.
The Crown also submitted that the Court had a discretion to impose a greater period of disqualification than the automatic period of disqualification of 3 years, or the minimum period of 12 months. It was submitted that a longer period of disqualification would be appropriate in the circumstances, given the seriousness of this case. It was submitted that a longer period of disqualification extending beyond any custodial period imposed by the Court was warranted in these circumstances, relying on R v Veatufunga [2007] NSWCCA 54.
The Crown also referred to JIRS statistics for s 52A(2) offences, derived from the period January 2007 to July 2014. Of those, three persons aged less than 18 years appeared in New South Wales higher courts charged with the offence. It was submitted that there were parallels to the present offending with SBF v R [2009] NSWCCA 231, where the young person was impaired by alcohol, drove at a grossly excessive speed and collided with a power pole, killing two passengers in his car and seriously injuring another. He was sentenced to a total sentence of 6 years and 4 months imprisonment, with a non-parole period of 4 years and 3 months overall.
Submissions on behalf of the Offender
The offender was born on 18 November 1994 and was therefore 17 years and 3 months at the time of the offence. He will turn 21 on 18 November 2015. Whilst the Children's Court has jurisdiction to hear and determine the proceedings, this Court has the power to deal with the matter according to law, or pursuant to the Children's Court sentencing regime, or it may remit the matter back to the Children's Court.
Counsel for the offender conceded that the offences were serious, and that there were statutory aggravating factors present by reason of the manner of driving and the offender's endeavour to escape the police pursuit. Whilst the offence largely falls within the guideline judgment reformulated in R v White, the offender was a juvenile as opposed to a young offender and the deceased and the two injured passengers were close friends as opposed to strangers.
It was conceded that the offending was further aggravated by virtue of the offences taking place whilst the offender was on conditional liberty. However, it was submitted that there were no further aggravating features present that would increase his moral culpability and therefore increase his sentence.
Counsel submitted that the evidence contained in the psychological and Juvenile Justice reports demonstrated a difficult upbringing marred by family instability, dysfunction and financial hardship. This left the offender with an inability to cope with difficulties and impulsive risk taking behaviour.
It was submitted that the offender was suffering symptoms consistent with post-traumatic stress disorder and had suffered a general decline in his psychological well-being since the offence in February 2012. The evidence clearly illustrated that the offender required intensive counselling and support to adequately come to terms with his mental health issues, to develop an understanding of his offending behaviour and to develop appropriate strategies to help him cope.
It was submitted that the offender had expressed genuine remorse as demonstrated by the evidence of his sister and letters from members of his family. He continued to have the support of his family. He had also demonstrated an ability to obtain and maintain employment, together with an ability to seek and persevere with psychological treatment and counselling.
Since his arrest on 15 April 2014, in respect of the subsequent police pursuit offence, the offender has been detained within the adult correctional system. Thus, he has had no access to counselling and/or educational programs, has had limited opportunities for employment, and has been transferred between facilities.
It was submitted that s 6 of the Children (Criminal Proceedings) Act was applicable to sentencing. This required a delicate balancing of the need to provide opportunity for rehabilitation of the young person against the necessary considerations of general deterrence and principles of retribution.
The plea of guilty entered on 6 May 2014 would result in a utilitarian discount on sentence in the range of 10-15%.
It was submitted that special circumstances should be found here given his young age, the fact that it is his first period of incarceration and his need for ongoing rehabilitation and psychological counselling.
Counsel submitted that any sentence should be backdated to 16 January 2014 to account for his pre-sentence custody. Further, the Court should direct that all or any part of the sentence imposed be served in a Juvenile Detention Facility pursuant to s 19 CCPA. There were greater rehabilitation resources available in the Juvenile Justice system, including educational and therapeutic programs, than were available within the adult correctional system.
It was conceded that some degree of accumulation was required to properly reflect the multiple victims of the offender's criminal conduct. However, the offender submitted that the Court should impose a short nonparole component of any sentence, recognising the prospects of and need for rehabilitation and the discount to which the offender was entitled as a consequence of his plea.
Counsel submitted that the following areas of divergence from the Crown submissions arose:
(1) In respect of pre-sentence custody, the Court held a discretion as to what proportion of the custody should be attributable to the present offending. As the offender had been dealt with by way of s 9 bond, being sentenced on 28 August 2014, the Court should exercise its discretion to attribute the whole of the offender's pre-sentence custody to any sentence. Therefore it should be backdated to 16 January 2014.
(2) The order under s 19 of CCPA could be given effect until the offender turns 21 years of age, except if the sentence was due to expire, in which case an additional six months could be added for the non-parole period. Thus, an order that the sentence be served in a juvenile facility could be made only if the non-parole period expires prior to 18 November 2015, or within six months of that date, i.e. before 18 April 2016. There were more appropriate educational programs available for him within the juvenile system and therapeutic counselling was available there. It was, however, noted that he had been in adult custody since 15 April 2014, for a period of five months and 16 days up to the sentence hearing.
(3) The Crown had submitted that there was no evidence of genuine remorse here. However, having regard to the offender's sister's evidence and the psychological reports, it was clear that the offender had difficulty expressing himself in coming to terms with his own culpability.
(4) The additional aggravating features relied on by the Crown of excessive speed and aggressive driving already featured in the offence of dangerous driving. There was nothing about the speed or manner of driving which is not already included in the offence.
(5) Finally, in respect of the Court of Criminal Appeal's decision in SBF v R, supra, it was submitted that the driving there was more dangerous and the head sentence reflected that the conduct had resulted in two individual deaths.
Counsel for the offender referred the Court to R v Elkassir [2013] NSWCCA 181, where the Court of Criminal Appeal had dismissed an appeal against a sentence of three years, with a non-parole period of 12 months in respect of an offender who was just under 18 years of age and whose driving resulted in the death of a close friend, similar to the circumstances here.
Determination
In assessing the objective seriousness of the offending in respect of the first offence pursuant to s 52A(2) of the Crimes Act 1900, it is clear that the moral culpability of the offender was aggravated here by the following matters:
(1) The extent and nature of the injuries inflicted.
(2) The number of people put at risk.
(3) The degree of speed involved.
(4) The erratic or aggressive driving of the offender leading to him proceeding into the intersection whilst disregarding the stop sign.
In combination, all of those factors indicate that the moral culpability of the offender here is high. Pursuant to R v White, "where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm), would not generally be appropriate". Given the aggravating features which apply, the Court held that an appropriate increment in sentence is required to reflect a higher level of moral culpability.
Similarly, in relation to the second offence, given the aggravating features present, the moral culpability involved in the offending is high, and the sentencing process should reflect an increment in respect of those aggravating features.
I find a further aggravating feature here was that the offences occurred whilst the offender was subject to conditional liberty by way of bonds imposed by the Parramatta Children's Court on 4 August 2011 pursuant to s 33(1)(b) in respect of offences for reckless wounding. A further aggravating factor is that the offences were committed without regard to public safety and involved grave risk of death to another person or persons (s 23A(2) of the Sentencing Act).
Further, the offender's previous convictions were such as to disentitle him from leniency, particularly having regard to the fact that he was subsequently sentenced in respect of a police pursuit and drive a vehicle whilst licence suspended on 25 August 2014, for which a bond was imposed pursuant to s 9 for him to be of good behaviour for two years.
It is not in dispute that the offences were not committed as part of a planned or organised criminal activity, which amounts to a mitigating factor here.
A further mitigating factor on sentencing are the pleas of guilty entered to each charge. However, they were entered on the first day the matter was listed for trial in the District Court, following a contested committal hearing, during which the Crown was put to strict proof and the six witnesses were called, including the victim Mr Patten. In those circumstances, the plea is of limited utilitarian value, and the range for such a discount is between 10 and 15%. In this case, I accept that there is some utilitarian value in the plea of guilty which was somewhat late but also partly explained by the psychological reaction of the offender in coming to terms with his criminal conduct. For that reason, I will allow a discount of 15% for the plea of guilty.
The question of remorse is more problematical for the offender. The Juvenile Justice report stated that the offender appeared unable to acknowledge the implications of his conduct. His psychologist had indicated that he had difficulty discussing the offence or his relationship with his deceased friend. However, that was, in the opinion of the psychologist, trauma related, and amounted to a coping mechanism rather than an attempt to avoid responsibility for his actions. Moreover, I accept the evidence of the offender's sister, MA, that he was at the time following the incident ashamed of his actions and had withdrawn into himself. He has since expressed remorse to her and had also done so to the Court in his letter, exhibit 2. I therefore give some weight to the remorse of the offender, but not full weight because of that history.
I must have regard to the subjective factors here. The offender had a somewhat disrupted family life and was cared for by his mother who had to work full time to support him and his two older sisters. He had no male role model in his life from age 11 years and formed a close bond with his sisters, particularly his older sister MA. He had a very close friendship with the deceased HI, who was older than the offender, and provided some guidance to him. In addition, the other two passengers were good friends from his school days. Both suffered serious injuries.
The offender had also suffered some physical injuries, but more importantly, had suffered a psychological injury for which he was seeking treatment. The Court has to be mindful also of his young age at the time of the offending, the principles set out in s 6 of the CCPA, which are relevant to the sentencing of young persons, and the prominence that must be given to the question of rehabilitation in sentencing someone of such a young age as opposed to questions of protection of the community, deterrence and retribution.
The Court must also have regard to the maximum penalty of 14 years imprisonment in respect of the offence pursuant to s 52A(2) and the maximum penalty of 11 years imprisonment in respect of the offence pursuant to s 52A(4). Those maximum penalties are guideposts in the sentencing process.
The guideline judgment in R v White is also that, namely, a guideline. As Spigelman CJ said at [232]:
"232 The guideline is, to reiterate, a "guide" or a "check". The sentence imposed in a particular case involves the exercise of a broad discretion taking into account all of the factors required to be taken into account by s 21A of the Crimes (Sentencing Procedure) Act.
233 This guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration ..."
In considering the sentence, I have also taken into account the two matters on the Form 1 which reflect the injuries suffered by RD and AL. I have certified on the Form 1 that I have taken those matters into account, and any sentence should reflect an increment in relation to that.
I have also had regard to the time in custody spent by the offender whilst awaiting sentence. Whilst on bail in respect of this offence, the offender reoffended and his bail was revoked. He then spent time in custody on remand in respect of the subsequent matter for which he was sentenced on 25 August 2014 by way of a bond to be of good behaviour for a period of two years pursuant to s 9 of the Sentencing Act. It is a matter of discretion as to whether the total time spent in custody can be attributed to this offence. Having regard to the sentence imposed on 25 August 2014, I accept that the whole of the offender's time in custody should be taken into account, and any custodial sentence should therefore be backdated to 16 January 2014.
In addition to the maximum penalties of imprisonment for each offence, each offence carries an automatic disqualification period of three years, together with a minimum period of 12 months. The Court has a discretion to impose a longer period of disqualification. The circumstances of the offending here, in my view, warrant a longer period of disqualification, extending beyond the period of time that the offender spends in custody. For that reason, I am going to impose a further penalty of disqualification on him of a total of five years.
I find that there are special circumstances here, given the young person's need for rehabilitation, his ongoing need for psychological treatment and counselling, and his need to address those issues. I also find special circumstances exist pursuant to s19(4) of the CCPA to warrant a direction pursuant to s 19 of that Act that the offender serve his sentence as a juvenile offender. I note that Corrective Services has a discretion as to whether that direction should be implemented.
In respect of the first offence, pursuant to s 52A(2) of the Crimes Act 1900, I intend to impose a total sentence of 4 years imprisonment, and set a nonparole period of 2 years commencing on 16 January 2014.
In respect of the second offence, pursuant to s 52A(4) of the Crimes Act 1900, I intend to sentence the offender to a total sentence of 2 years and 6 months, and a non-parole period of 1 year and 3 months to commence on 16 January 2015.
In respect of both offences I disqualify you from driving for a period of five years from today.
Orders
I make the following orders:
(1) You are convicted of the offence of aggravated dangerous driving occasioning death (police pursuit) pursuant to s 52A(2) of the Crimes Act 1900 and you are convicted of the offence of aggravated dangerous driving occasioning grievous bodily harm (police pursuit) pursuant to s 52A(4) of the Crimes Act 1900.
(2) In respect of the first offence pursuant to s 52A(2) of the Crimes Act 1900, I sentence you to a non-parole period of 2 years to commence on 16 January 2014 and to expire on 15 January 2016.
(3) I sentence you to a balance of term of 2 years, terminating on 15 January 2018.
(4) In respect of the second offence pursuant to s 52A(4) of the Crimes Act 1900, I sentence you to a non-parole period of 1 year and 3 months to commence on 16 January 2015 and terminating on 15 April 2016.
(5) I sentence you to a further term of 9 months imprisonment terminating on 15 January 2017. The total term of imprisonment for that offence is a period of 2 years.
(6) You will be eligible for parole on 15 April 2016.
(7) You are disqualified from driving for a period of five years expiring on 6 November 2019.
I note that the above sentences involve an effective non-parole period that will terminate less than six months after your 21st birthday on 18 November 2015. For that reason, I make an order pursuant to s 19 of the CCPA that your time in custody be spent in a Juvenile Justice facility.
I direct that this judgment, together with the Juvenile Justice Report, and the report of Caroline Hare dated 25 September 2014, including her previous report dated 11 July 2014, be forwarded to the Director of the Department of Corrective Services, and Juvenile Justice.
As noted above, your parole eligibility date will be 15 April 2016.
Decision last updated: 10 November 2014