R v Adam Harrison

[2022] NSWDC 9

District Court

New South Wales

Medium Neutral Citation:

R v Adam HARRISON [2022] NSWDC 9

Hearing dates:

9 February 2022

Date of orders:

10 February 2022

Decision date:

10 February 2022

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced

Catchwords:

Sentence – police pursuit – use offensive weapon to avoid apprehension – deliberately driving at a police officer – need for general deterrence

Legislation Cited:

Crimes Act, 1900

Criminal Procedure Act, 1986

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Hamilton v R (1993) 66 A Crim R 575

Jibran v R [2020] NSWCCA 86

Mbele v R [2021] NSWCCA 184

The Attorney General's Application pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 (2002) 56 NSWLR 146

Toller v R [2021] NSWCCA 204

Valentine v R [2020] NSWCCA 116

Veen v The Queen (No 2) (1988) 164 CLR 465

Category:

Sentence

Parties:

Regina
Adam HARRISON (Offender)

Representation:

Counsel:
Mr P Williams (for the offender)

Solicitors:
Ms L Hanshaw (for the Director of Public Prosecutions)
Mr D Wilson (for the offender)

File Number(s):

2021/47281, 2021/68326

Publication restriction:

No

Judgment

1. Adam Murray Harrison appears for sentence in respect of three matter on an indictment and three matters attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986. There is also a Form 1 matter attaching to count 1 on the indictment.

2. An Indictment was presented against the offender at the Wagga Wagga District Court on 7 February 2022. Mr Harrison pleaded guilty to counts 1 and 4 which are both counts of Drive in a Manner Dangerous in a Police Pursuit contrary to s 51B of the Crimes Act, 1900. The maximum penalty is five years imprisonment as they are both what are commonly referred to as "second plus" offences. There is no standard non-parole period specified in respect of those matters. The pleas of guilty were entered on the day of trial and accordingly the appropriate discount for the utilitarian value of the pleas of guilty is 5%.

3. The remaining matter on the indictment is a charge of Use Offensive Weapon with Intent to Avoid Lawful Apprehension contrary to s 33B(1)(a) of the Crimes Act. That matter carries a maximum penalty of 12 years imprisonment. There is no standard non-parole period specified in respect of that charge. That matter was defended and was determined by judge alone. For reasons given on 9 February 2022 I found the offender guilty of that charge. As the offender put the Crown to proof on that matter there can be no discount or consideration for a plea of guilty. That is not to say that the penalty is increased because of the fact that the matter was defended merely that there can be no discount or consideration for any plea of guilty.

4. Attaching to count 1 is a further charge of Drive Manner Dangerous in a Police Pursuit on a Form 1 document. In passing sentence I will need to properly apply the principles enunciated by the Court of Criminal Appeal in The Attorney General's Application pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 otherwise known as the Guideline Judgment on Form 1 matters reported at (2002) 56 NSWLR 146. As the Crown correctly submitted the offence on the form 1 must have some meaningful impact on the sentence to imposed in respect of count 1 on the indictment.

5. The matters attaching to the Certificate Pursuant to s 166 of the Criminal Procedure Act are two charges of Drive While Disqualified and one charge of Drive unregistered vehicle. The second of the Drive While Disqualified charges is what is commonly known as a "second plus" offence, which increases the maximum penalty. The maximum penalty for the first of those charges is 6 months imprisonment and the maximum for the "second plus" offence is one of 12 months.

Facts

6. The facts in respect of the charges of Drive Manner Dangerous in a Police Pursuit are set out in a set of agreed facts within the Crown tender bundle, exhibit A on sentence. It will be necessary for me to set out the facts of the charge contrary to s 33B of the Crimes Act that conform to my findings in the judge alone trial.

7. Relevant especially to counts 1 and 4, i.e. the police pursuit matters, the offender was disqualified from driving by reason of a court order and further he had never held a licence. He was 34 years of age at the time of all the offending. The offending in respect of count 1 and the matter attaching to the form 1 occurred on 7 February 2021 and the offending in respect of the s 33B charge and the police pursuit matter contained in count 4 occurred on 1 March 2021,

8. Drawing on my knowledge of the local geography having presided as the resident judge in Wagga Wagga for almost 5 years, I will say something about the geography of the area. Goldfields Way is the road from Wagga Wagga to Temora but only after a turn off (T intersection) from the Olympic Way to Junee some 30 odd kilometres to the north of Wagga Wagga. Old Junee is a settlement adjacent to Goldfields Way some few kilometres to the north of the T intersection of Goldfields Way and the Olympic Way. Canola Way is the road from Old Junee to Ganmain and Coolamon. The agreed facts in respect of count 4 describe Goldfields Way as the main thoroughfare/highway between Wagga Wagga/Junee and Temora with medium to high density traffic flowing during the day.

9. Going initially to count 1 at about 1.25 pm on 7 February 2021 Senior Constable Patten was travelling north on Goldfields Way Old Junee when he observed a red Alfa Romeo vehicle CW10TI parked outside an address in Railway Street facing in a westerly direction. Senior Constable Patten continued driving and made his way to Railway Street. As he turned into Railway Street he observed that the red sedan was on the bitumen roadway with the brake lights illuminated and the vehicle was stationary. The offender was driving the vehicle.

10. When he was about 20 metres from the vehicle Constable Patten activated the warning lights of the police vehicle as he was going to administer a random breath test to the driver. As the offender drove west on Railway Street a large plume of smoke came from the vehicle the offender was driving.

11. The offender accelerated and turned north on to Alfred Street Old Junee. Constable Patten activated the warning lights and sirens and followed the vehicle as it failed to stop. Senior Constable Patten informed police radio of the pursuit which initiated at 1.28pm.

12. Senior Constable Patten continued to follow the red sedan as it turned east onto Broad Street, Old Junee. The vehicle increased its speed as it approached the intersection of Broad Street and Goldfields Way, the vehicle braked harshly and crossed the double lines of the roadway crossing onto the opposite side of the roadway as it took a wide turn north onto Goldfields Way, Old Junee. The vehicle increased its speed travelling north on Goldfields Way. The vehicle reached a speed of 110 km/h after about 300 metres. The red sedan increased its speed and the gap between the vehicles increased. Constable Patten estimated the speed of the vehicle at this point to be 150 km/h. The speed limit at that point was 100 km/h. Constable Patten was about 200 metres behind the vehicle and decided to terminate the pursuit at 1.38 pm due to the other vehicle's speed.

13. As there are a number of offences I will deal with an assessment of the seriousness of the matters after the facts of each matter. The pursuit to which count 1 relates lasted for 10 minutes. The vehicle being driven by the offender reached an estimated speed of 150 km/h in a 100 km/h zone. There was some erratic driving given what is described as to the path the vehicle took.

14. I initially indicated a preliminary view that this matter was well below mid-range. However the Crown reminded me that the vehicle reached a speed of 150 km/h in a 100 zone. The pursuit lasted ten minutes. There is no indication of other traffic and accordingly I must proceed on the basis that the traffic was light and that there was no immediate danger to any other person on or in the vicinity of the roadway. The offender was a disqualified driver. All police pursuits are serious. Taking these factors into account the matter is below mid-range but not significantly so.

15. The matter which attaches to the Form 1 is a further police pursuit that occurred a little later in the day on 7 February 2021. After terminating the pursuit, Senior Constable Patten returned to the Junee township in an attempt to locate the offending vehicle. At 1.46 pm the officer observed the vehicle at the intersection of William and Docker Streets. The vehicle turned north into Docker Street and drove directly past Senior Constable Patten. Senior Constable Patten executed a u-turn and began to follow the vehicle. The warning lights and sirens of the police vehicle were activated. The offender increased speed and his vehicle crossed the bridge and came up behind two other vehicles, coming very close to them as he overtook them crossing double separation lines and driving on the incorrect side of the roadway. The offender overtook two vehicles and another vehicle was forced to brake harshly to avoid an impact. The offender accelerated after the overtaking manoeuvre. Senior Constable Patten determined that it was unsafe to continue the pursuit and accordingly terminated the pursuit.

16. The pursuit occurred within the town ship of Junee. The facts are silent as to the speeds reached by the offender. Other road users were put at risk with one having to brake harshly. This matter is also below mid-range and a little less serious than the matter to which count 1 relates.

17. Count 3 on the indictment is the matter that was defended. I found the following facts established beyond reasonable doubt. Senior Constable Giddings was actively looking for the offender and had an arrest warrant for the apprehension of the offender. On 26 February 2021 Senior Constable Giddings went to a number of addresses in Wagga Wagga in an attempt to locate the offender. During his inquiries he was told that the offender may be driving a silver coloured Holden Astra hatchback.

18. On 1 March 2021 Constable Giddings and other police went to Old Junee in an attempt to locate the offender. The other police officers went to other addresses and Constable Giddings went to 3 William Street, Old Junee. Whilst at that address the officer observed a silver coloured Holden Astra driving towards him. He noticed that the vehicle appeared to pause for a prolonged period at the intersection of William and Alfred Street. He could not identify the driver but could see that there two occupants of the vehicle. He determined that he would pull over the vehicle to ensure that the accused was not in the vehicle. The officer was using an unmarked Holden Commodore police motor vehicle.

19. Constable Giddings observed the Astra sedan on Alfred Street but lost sight of the vehicle. A little later he saw the vehicle parked in the front yard of a residence being 29 Canola Way or 29 Broad Street. Canola Way is the name given to the roadway and Broad Street is what that part of Canola Way is known as at the settlement of Old Junee.

20. Constable Giddings got out of his police vehicle and walked through the gate of the property towards the Astra motor vehicle. As the officer approached the vehicle he recognised the offender as the driver. The officer gave evidence, which I accept beyond reasonable doubt, that he heard the engine of the vehicle commence to rev loudly and he noticed that the front wheels lost traction and began to spin.

21. Further I accept beyond reasonable doubt that Constable Giddings extended his right hand out and held it in a universal stop signal and loudly yelled out, "Stop Police". The vehicle's engine revved louder and drove directly at the officer. He formed the opinion that it was not going to stop. He also estimated that the speed was 30 km/h. I am satisfied beyond reasonable doubt on the evidence of the officer that the vehicle reached a speed of approximately 30 km/h. Constable Giddings formed the opinion that the vehicle was not going to stop and so he took evasive action in the form of taking four or five quick steps to the left. I also found beyond reasonable doubt that the offender yelled to Constable Giddings the words, "Ya not taking me back to gaol cunt". Clearly the actions of the accused were a deliberate attempt to avoid his lawful apprehension.

22. The actions of the offender were opportunistic and on the "spur of the moment". The Crown submitted that that is generally the case with any offence contrary to s 33B as the offence only occurs after the police attempt the arrest. There is some substance to that submission. The accused deliberately drove the vehicle at the police officer. The officer was not harmed although that is a matter of good fortune rather than anything else. In all the circumstances the matter is slightly below mid-range.

23. That leaves the police pursuit that occurred immediately after the offender drove at Constable Giddings to prevent his apprehension. Constable Giddings went to the police vehicle and activated all lights and sirens. He observed the offender accelerate on Canola Way towards the intersection of Parkwood Lane. Constable Giddings accelerated to 160 km/h in the 80 km/h and 100 km/h zones and when at 160 km/h observed that the distance between himself and the offender was remaining constant.

24. The offender braked harshly and turned right into Parkwood Lane and then accelerated harshly to 140 km/h in a 100 km/h zone. Senior Constable Giddings was able to maintain a three second gap of distance between himself and the offender. Senior Constable Giddings estimated the offender's speed to be 140 km/h.

25. The offender braked heavily and turned right into Murrelbale Road then travelling east. The offender accelerated harshly and Senior Constable Giddings estimated the speed of the offender to be 160 km/h in a 100 km/h zone. The offender rapidly approached the intersection of Murrelbale Road and Goldfields Way which is governed by a "Stop" sign for traffic travelling on Murrelbale Road. The offender went through that intersection at no less than 80 km/h. The vehicle appeared to be what the facts describe as "somewhat out of control" with the suspension decompressing and the vehicle bouncing down the roadway.

26. Once Senior Constable Giddings negotiated that intersection he observed the offender several hundred metres ahead. He accelerated until there was a 3 second gap between him and the offender, at which time he estimated the speed of the offender's vehicle to be approximately 150 km/h. The offender approached a built up area and out of safety concerns the pursuit was terminated. The facts recite that the roads were dry and there was minimal vehicular traffic. The weather was clear.

27. I have no difficulty with the estimates of speeds given by Constable Giddings. He gave evidence that he had been a police officer for 17 years, 7 years of which was as a Highway Patrol officer during which time he developed the skill of estimating the speeds of vehicles.

28. Despite the facts setting out that there was minimal vehicular traffic the driving in count 4 was sustained and reached significant and dangerous speeds. Some of the driving was on roadways on which one could expect traffic at any time. Noting the speeds and the sustained nature of the pursuit I am of the opinion that the matter in count 4 is slightly above mid-range.

General Deterrence

29. In respect of the charge contrary to s 33B, I note the observations of Gleeson CJ in Hamilton v R (1993) 66 A Crim R 575 where the Honourable the Chief Justice (Hunt CJ at CL, Ireland J agreeing) said at 581:

“In that regard I should make it clear that offences against s33B, which make it unlawful to use an offensive weapon or instrument with intent to prevent lawful apprehension, are regarded by the Court extremely seriously. It is incumbent upon the Court, in dealing with offences of this nature, to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task.”

30. There is also an issue of general deterrence to be addressed in the police pursuit matters. The conduct of the offender was inherently and significantly dangerous to the police officers concerned and anyone else who may on or in the vicinity of the roadway. What is extracted immediately above from Hamilton is also apposite to the police pursuit matters.

31. Although the Drive While Disqualified offences attach to a s 166 Certificate it is appropriate to note what Johnson J said in Jibran v R [2020] NSWCCA 86 at [186]-[200]. As his Honour observed at [200] "A very strong measure of specific and general deterrence is required for the offence of driving whilst disqualified."

32. However, as I observed at the sentence hearing as I have taken the factor of the offender being disqualified into account in assessing the seriousness of all of the offending, any sentence to be imposed for the Disqualified Driving charges would be wholly concurrent with the sentences imposed in respect of the matters on the indictment. I did not understand either counsel to dissent from that indication.

Criminal History

33. The offender was born 21 December 1986 and accordingly is now 35 years of age and was 34 at the time of offending. As indicated at the sentence hearing, I ignore the entries on the criminal history from the Children's Court. The offender has been convicted numerous times of serious driving offences including PCA offences and Drive While Disqualified. He has received custodial sentences for Driving While Disqualified. He also has been convicted of Affray, Damage to Property, Contravene Domestic Violence Order, Supply Prohibited Drug, Police Pursuit, and other traffic offences. In 2016 the offender was sentenced to an aggregated sentence of 5 years with a non-parole period of 3 years for Armed Robbery offences. In February 2020 the offender was sentenced at the Wollongong Local Court to an aggregate sentence of 2 years for firearm offences, including Supply Firearm to Person Unauthorised to Possess Firearm. The sentence was reduced slightly on appeal.

34. The offender was subject to parole in respect of that sentence at the time of the offending in respect of which I am passing sentence therefore enlivening the factor of statutory aggravation contained in s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.

35. Reasonable minds might differ on the use a sentencing court should make of the offender's record. I proceed on the basis that it is a record that does not entitle the offender to any particular leniency. However, as I made clear to the offender at the sentencing hearing if he were to re-offend while on parole again he may well find the principles enunciated in Veen v The Queen (No 2) (1988) 164 CLR 465 being applied.

Subjective Case

36. No written material was tendered on behalf of the offender. However, the offender's mother, Narelle Harrison gave evidence at the sentence hearing. I accept without hesitation the evidence of the offender's mother.

37. Ms Harrison lives at Old Junee. The offender is one of four children, the others currently being 39, 31 and 26 years of age. She works as an Aged Care Worker regularly going to the homes of the elderly to assist with daily living including showering and the like, cleaning and preparing meals. She has a Certificate III in aged care. She gave evidence that she rearranged appointments in order to be at court at the sentence hearing.

38. Her evidence continued that she and her husband separated when the offender was 16. He had apparently been well behaved until then. He attended school and was involved in the Cadets and Scouts and played rugby league. The offender's father had been a "pretty good dad" but the offender was usually excluded from attention and things like birthday and Christmas presents by his father after the separation.

36. On one occasion the offender's father gave the offender a severe beating including what was described as a "belting around the head". I accept, given Ms Harrison's evidence, the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened but to a very limited extent reducing to that limited extent the moral culpability of the offender.

37. The offender has a son Tyson, who is now 13 and lives with Ms Harrison. She is Tyson's full time carer.

38. Ms Harrison's evidence continued that the offender left school at 16 and worked in various jobs including seasonal farm work. The offender has had issues with alcohol and drugs in the past. Ms Harrison was of the opinion that the offender had an issue with cannabis but she obviously has serious concerns about the offender using other "hard" drugs.

39. The offender called his mother every day when he was able, i.e. when the gaol in which he was housed was not in lock down because of the COVID-19 pandemic. Clearly, custody is more onerous in the pandemic for all prisoners. Face to face visits cannot occur and the gaols are regularly "locked down" meaning prisoners are kept in their cells for extended periods of time. I take into account decisions of the Court of Criminal Appeal such as Valentine v R [2020] NSWCCA 116, Mbele v R [2021] NSWCCA 184 and Toller v R [2021] NSWCCA 204.

40. The offender is now 35 years of age. He has expressed to his mother that he has wasted years of his life by being in gaol. He has also expressed a desire to change his ways and to stay out of gaol. However, nothing specific was indicated as to what steps the offender might take in this regard. The offender accepts that he is missing out on his son growing up. The offender's older brother has his own business as a builder and handyman.

41. I understood Ms Harrison to say that her son has a good work ethic when he is working. They have worked together at a chicken hatchery in the Junee area. She is hopeful as is apparently the offender that the offender will be able to obtain work in the farming area upon his eventual release. The offender is able to live with his mother at Old Junee after his eventual release.

42. There is no material on which I could make a finding that the offender is remorseful. I did not understand a submission made as to remorse in any event. Given the criminal history and the breaches of conditional liberty I could not be satisfied on balance that the offender is unlikely to re-offend or that there are good prospects of rehabilitation.

Submissions

46. Mr Williams made submissions as to the seriousness of the matters. I have already made a determination of the seriousness of the offending. Essentially Mr Williams urged that the matters were less serious than I have found. I have given reasons for the findings that I have made.

47. A submission was made that the offender's son is in the same position as was the offender in his teenage years when his father left and had minimal contact with him. It can only be to the benefit of the offender and Tyson if the offender realises this and determines to lead a law abiding lifestyle upon his eventual release from custody. The offender enjoys the family support of his mother.

48. Further, I understood Mr Williams to make a submission that there is at least some hope for rehabilitation given the offender's age, his work history and his work ethic. As I observed at the sentence hearing the offender must surely be reaching the age where he realises that custody is more difficult the older he gets.

49. It was put that I make a finding of special circumstances. The Crown submitted that if such a finding was made it would not be particularly generous noting the history of the offender and the breach of parole. There is some force to the Crown's submission. However, I am of the opinion that I should make a finding of special circumstances. The offender will need intensive and extensive supervision to ensure his re integration into the community and to ensure that he remains free from illicit substances and alcohol to ensure that he remains offence free. There is also the issue of partial accumulation of sentences.

50. The Crown submitted that the offender had the support of his mother at the time of the commission of the present offending. There is also substance to that submission. I cannot find that there are good prospects of rehabilitation. The Crown reminded the court of the need to give proper regard to the issue of general deterrence, particularly with the matter contrary to s 33B of the Crimes Act.

51. The Crown submitted that the sentence commence on 11 March 2021, which was the date on which the offender was arrested and was taken into custody. Mr Williams did not submit otherwise. In all of the circumstances I am of the opinion that that is the appropriate date from which to date the sentence I will be imposing.

General Remarks

52. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

53. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the offending, the need for general deterrence, the criminal history of the offender and the breach of parole clearly there must be a sentence of imprisonment imposed in this matter. Essentially for those same reasons but also the length of the total sentence, the sentence must be one of full time custody. I did not understand counsel for the offender to submit otherwise.

54. If separate sentences were imposed there would need to be some meaningful partial accumulation between the offending on 7 February 2021 and 1 March 2021. There would also need to be some partial accumulation of sentences for the s 33B charge and the police pursuit that followed. I have already indicated that the sentences for the drive while disqualified offences would be wholly concurrent with the sentences imposed for the police pursuit matters.

55. Periods of disqualification will have to be imposed. Given that the Police Pursuit matters are "second plus" offences the automatic Disqualification is one of 5 years which can be reduced to a statutory minimum of 2 years. Given the record of the offender it is not appropriate to reduce the disqualification to the statutory minimum. The offender has never been licenced. It occurs to me that the offender should be left with some hope that one day he might obtain his driver licence.

56. This is an appropriate matter for the invocation of s 53A of the Crimes (Sentencing Procedure) Act and the imposition of an aggregate sentence. It will be necessary to indicate what sentences would have been imposed had separate sentences been imposed. Those sentences are:

1. In respect of the Police Pursuit in Count 1 of the indictment, taking into account the Form 1 matter a total sentence of 1 year 10 months indicating a starting point of 2 years;

2. In respect of the offence of Use Offensive Weapon to Avoid Lawful Apprehension a total sentence of 2 years 9 months;

3. In respect of the Police Pursuit in count 4 of the indictment a total sentence of 2 years 4 months indicating a starting point of 2 years 6 months;

4. In respect of the charge of Drive While Disqualified on 7 February 2021 a total sentence of 3 months; and

5. In respect of the charge of Drive While Disqualified on 1 March 2021 a total sentence of 7 months.

Orders

57. The offender is convicted of the two counts of Drive Manner Dangerous in a Police Pursuit to which he pleaded guilty and the one count of Use Offensive Weapon of which he was found guilty.

58. The offender is also convicted of the two offences of Drive While Disqualified attaching to the s 166 Certificate to which he pleaded guilty and the charge of Use Unregistered Vehicle.

59. The offender is sentenced to an aggregate sentence of 4 years and 3 months with a non-parole period of 2 years 10 months.

60. The non-parole period will date from 11 March 2021 and with expire on 10 January 2024. The balance of term of 1 year 5 months will commence on 11 November 2023 and expire on 10 June 2025.

61. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

62. The sentence indicates a finding of special circumstances for reasons enunciated within the reasons but include the need for intensive and extensive supervision to ensure the offender's proper reintegration into the community. The non-parole period is approximately 68% of the total sentence.

63. In respect of each of the police pursuit offences in counts 1 and 3 of the indictment the offender is disqualified for 3 years. In respect of the charge of Drive While Disqualified on H810854882 sequence 2 the offender is disqualified for 6 months. In respect of the charge of Drive While Disqualified on H78541844 sequence 2 the offender is disqualified for 12 months. All periods of disqualification are concurrent.

64. In respect of the charge of Use Unregistered Vehicle I record a conviction and impose no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act, 1999.

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Decision last updated: 09 May 2022