R v Bell

[2022] NSWDC 685

District Court

New South Wales

Medium Neutral Citation:

R v Bell [2022] NSWDC 685

Hearing dates:

26/8/22, 9/9/22, 18/11/22, 28/11/22, 2/12/22, 9/12/22

Date of orders:

9/12/22

Decision date:

09 December 2022

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

1.   An aggregate term of imprisonment is imposed.

2.   The indicative sentences are as follows:

a.   Seq 2 (incl. Form 1 offences [Seqs 3 & 13]): After a 25% discount, the indicative sentence is 2 years and 7 months’ imprisonment.

b.   Seq 11: After a 25% discount, the indicative sentence is 2 years and 6 months’ imprisonment.

c.   Seq 1: After a 25% discount, the indicative sentence is 6 months’ imprisonment.

3.   The aggregate head sentence imposed is 3 years and 10 months’ imprisonment.

4.   There is a finding of special circumstances.

5.   The non-parole period imposed is 2 years and 7 months’ imprisonment.

6.   The head sentence and non-parole period are to date from 29 December 2021.

7.   The head sentence will expire on 28 October 2025.

8.   The non-parole period will expire on 28 July 2024.

9.   In relation to each of the pursuit offences, there is a disqualification period of 3 years in each case.

10.   In relation to Seq 1, there is a disqualification period of 8 months

Catchwords:

Crime – Sentence – Police pursuit – Drive manner dangerous

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Josefski v R [2010] NSWCCA 41

Swan v R [2016] NSWCCA 79

Bugmy v The Queen [2013] HCA 37

Nasrallah v R [2021] NSWCCA 169

Lloyd v R [2022] NSWCCA 18

Category:

Sentence

Parties:

NSW DPP – Crown
Andrew Leigh Bell - Offender

Representation:

Ms E Winborne for Crown
Ms J Ghabrial for Offender

File Number(s):

21/39791

Judgment

1. The offender, Mr Andrew Bell is for sentence in relation to the following offences. Firstly, sequence 2 and sequence 11, which are offences under s 51B(1) of the Crimes Act 1900 of driving and failing to stop a vehicle involved in a police pursuit and driving recklessly or in a manner or speed dangerous to others. The maximum penalty for each of those offences is five years imprisonment.

2. In addition, he asks that in sentencing him for the sequence 2 offence, I take into account on a Form 1 document two other offences committed on the same day, those being firstly drive whilst disqualified, committed at Swansea and other places, and secondly drive in a manner or speed dangerous to the public committed at Bushells Ridge and other places. The maximum penalty for each of those offences is 12 months imprisonment.

3. In addition, the offender is to be dealt with on a s 166 certificate for an offence of driving whilst disqualified committed on a different day, namely between 6 and 7 February 2021 at Belmont. The maximum penalty for that offence is 12 months imprisonment.

4. The maximum penalties are of course important guideposts in the sentencing exercise to which I have regard. The offender pleaded guilty at the earliest opportunity and I intend to allow a discount of 25% on account of the utilitarian value of those pleas of guilty.

FACTS

5. The offender at the time of the events did not hold a driver’s licence and in fact, was disqualified from driving until 2026. The relevant events start on 6 February 2021. On that day, the offender drove a black Mercedes along Ross Street towards The Parade at Belmont. At about 10.50pm, he drove the Mercedes into the car park of the Belmont 16s, a sailing club located on The Parade. At that time, as recorded on CCTV, the offender got out of the driver’s seat and a female companion exited the front passenger side and they both entered the club. At about 11.54pm, the offender and the female left the club and entered the Mercedes and the offender drove it away. This conduct is the subject of the sequence 1 drive whilst disqualified offence which is on a s 166 certificate.

6. I move then to the sequence 3 offence which is on a Form 1. On the morning of 11 February 2021 at about 8am, police drove past a house on Catherine Street, Swansea and saw a black Mercedes in the driveway under a soft cover. It is apparent from the statement of facts that this was a house where the offender had been living or at least staying.

7. At about 9.30am, police approached the house to make inquiries about the whereabouts of the offender. They also removed the soft cover and confirmed that the Mercedes was the same as that driven by the offender on 6 February 2021. When police knocked at the front door, they were met by Sara Kerslake, the mother of Jasmine Kerslake who said that the offender was not home. Sara Kerslake also told the police that they could not search the premises until Jasmine returned home. The police then left but continued to observe the premises.

8. Shortly after 10am, Jasmine Kerslake, who police had falsely been told was not home, exited the premises and put the soft car cover back onto the black Mercedes. About 40 minutes later, Jasmine Kerslake was seen to exit the house and remove the cover from the Mercedes after which two police officers began to approach the house suspecting that, contrary to what they had been told, the offender was inside the house.

9. As police were approaching the house, however, the offender began reversing the Mercedes onto the road. Police in vehicle LM 101 then followed as the offender accelerated harshly to a speed in excess of the 50 kilometre per hour limit. The offender then drove south towards the Old Pacific Highway. At the intersection of the Old Pacific Highway and Wallace Street, Swansea, the Mercedes came close to police car LM 105 which was being driven east such that the police car had to veer left, presumably to avoid the risk of a collision. The driving I have just described is the subject of the sequence 3 drive whilst disqualified offence, which is to be taken into account on a Form 1 document.

10. I turn then to the facts of the sequence 2 police pursuit offence. At about 10.42am, police in LM 105 initiated a pursuit and activated lights and sirens. They were followed by LM 101 as the Mercedes was followed onto the roundabout connecting Old Pacific Highway with the Pacific Highway at Swansea. At the time the pursuit was commenced, the offender’s car was travelling at 120 kph in an 80 kph zone. Police in LM 105 continued following the Mercedes which accelerated to around 140 kph in a zone posted as 100 and subsequently 90 kph. The two police vehicles pursued the offender along the Pacific Highway as far as the Flower Drive/Nords Wharf intersection at which point the offender evaded police by travelling at high speeds and swerving between civilian vehicles. Due to the offender’s dangerous driving and the risks he was causing to others, police temporarily terminated the pursuit at around 10.45am.

11. Objection was taken during the sentence hearing to Google Maps which had been marked up by the Crown in an attempt to demonstrate the distances covered in various parts of the police pursuits. It was argued that these were potentially misleading as there was no precision as to the points on a particular road where a pursuit started or finished. Given this objection, I did not admit the marked up maps into evidence. However, I indicated in the course of the hearing that I would nonetheless inform myself of the approximate distances by having regard to open sources which I consider reliable and not reasonably open to question. It was submitted on behalf of the offender that this was impermissible, but I do not accept this submission.

12. I therefore informed myself by reference to Google and other maps of the approximate distances involved by reference to the various road intersections referred to in the agreed facts. In assessing distance, I rounded downwards to give the offender the benefit of any doubt. I conclude that the first part of this pursuit which started near the roundabout connecting Old Pacific Highway with the Pacific Highway and ended at the Flower Drive/Nords Wharf intersection, involved about six to seven kilometres.

13. At about 10.47am, in other words about two minutes after the first part of the pursuit ended, another police car, CC 221 re-engaged the offender some kilometres further south as he crossed the intersection of the Pacific Highway and Kanangra Drive, Crangan Bay. The offender continued driving south using the left side breakdown lane to illegally overtake civilian vehicles and travelled at speeds of up to 145 kph in an 80 kph zone.

14. As the offender reached the intersection of the Pacific Highway and Boronia Road, the car reached 167 kph and at this time another police car, LM 10,2 took over the primary position in the pursuit. The offender drove through a red light at the intersection of Tall Timbers Road and the Pacific highway, continuing south.

15. Around this time an attempt was made to stop the offender near the Doyalson RSL Club by deploying road spikes but this was unsuccessful and the offender continued south towards Doyalson, eventually leaving the Pacific Highway onto the Doyalson link road. At this time, four police cars from three different locations, namely Lake Macquarie, Tuggerah Lakes and Central Coast were in pursuit.

16. Shortly after 10.50am, the offender’s vehicle entered the M1 Pacific Motorway via the Doyalson link road. As he exited the on ramp however, the offender stopped and did a U-turn. He then travelled north in the south bound lane of the M1 towards oncoming traffic. Police terminated this first pursuit at this time due to the obvious risk to other road users. I conclude that the distance covered in this part of the pursuit which commenced on the Pacific Highway at the Kanangra Drive intersection, and ended at the M1 on ramp was about 15 kilometres.

17. The events I have just described are the facts of the sequence 2 police pursuit offence for which the offender is to be sentenced.

18. Turning then to the sequence 13 offence which is to be dealt with on a Form 1 document, the facts are as follows. After the first pursuit was terminated, the offender continued driving north against oncoming traffic on the M1 motorway towards Morisset and in excess of the posted speed limit. At some point between the Hue Hue Road overpass and Mandalong Road, however, he did another U-turn and began travelling south on the correct side of the road. This, however, was after he had driven for a minimum of five kilometres on the incorrect side of the road.

19. After turning the car around, the offender continued south past the Sparks Road exit at Warnervale where he was seen by police and civilians driving at speed past the Twin Petrol Stations at Wyong. This driving is the subject of the sequence 13 drive manner dangerous offence which the offender asks that I take into account on a Form 1.

20. Turning then to the facts of the sequence 11 police pursuit offence. At about 11.10am, that is, about 15 to 20 minutes after the first pursuit had been terminated, Central Coast Highway police in cars CC 201 and CC 208 were travelling north on the Pacific Highway near Ourimbah where, at the intersection of the Pacific Highway and Station Street they saw the offender’s car driving south at about 160 kph in a 70 kph zone swerving in between civilian vehicles. As a result, the two highway patrol cars did a U-turn and commenced a pursuit.

21. The offender, who was travelling south, was seen to use the break down lane and shoulders of the road to overtake various vehicles. As he approached the Ourimbah Street intersection, the offender slowed and performed a 90 degree turn through a small gap between two stationary vehicles, driving over several plastic lane delineators and then travelled north along the Pacific Highway pursued by CC 201 and CC 208 and a third police car, BW 140 which had joined the pursuit.

22. The offender continued north through Ourimbah reaching 150 kph in a 70 kph zone and also passed through a red light at the intersection of Glen Road, Ourimbah as he continued back towards the M1 motorway. He then turned south onto the M1 and continued at varying high speeds overtaking other vehicles across various lanes including the break down lane.

23. At the Peats Ridge/Somersby overpass, the offender tried to perform a U‑turn but failed, and swerved back onto the road continuing south. As the offender approached the Wisemans Ferry Road overpass travelling south, his car reached 190 kph in an area with a 110 kph limit.

24. At about 11.18am where the M1 Motorway merges with the Central Coast Highway at Kariong, the offender’s car veered left crossing two lanes of traffic. He then began to perform a U-turn on the shoulder of the road to the left of the on ramp, seemingly intending to drive north in the wrong direction up the Kariong southbound on ramp or in the southbound lanes of the M1. As the offender’s car turned to face north, Highway Patrol car CC 201 crossed over the southbound lanes in between traffic and across the Kariong on ramp cutting the offender’s vehicle off. Highway patrol car CC 208 also drove up to block the offender’s car from the other side. During this manoeuvre the offender’s car collided heavily with the right front guard of CC 201 and the front bumper of CC 208 which had both moved to a position to block the offender from continuing to drive against oncoming traffic.

25. The distance travelled by the offender during this second pursuit which commenced at the intersection of the Pacific Highway and Station Street, Ourimbah, and ended at the Central Coast/M1 intersection at Kariong, was at least 16 kilometres.

26. There is a dispute in relation to para 45 of the facts document in that the offender does not accept that the matters referred to in that paragraph arise from or are reasonably connected with his actions. Paragraph 45 states as follows:

27. “As a result of the collision with the offender’s car, Senior Constable Owen”-- who I note was in CC 208:

--”suffered a superficial laceration to his forehead and a fractured right wrist requiring open reduction internal fixation surgery as well as a rotator cuff tear to his left shoulder with associated inflammation requiring arthroscopic surgery and tenodesis.”

28. There is no dispute that Senior Constable Owen suffered these injuries and had to undergo these medical procedures but it was argued that these consequences were the result of unnecessary and in effect unlawful actions by Senior Constable Owen himself. I will return to this issue later.

29. Due to the angle of the collision, the offender was unable to open the driver’s door fully as part of the door area of his car was pressed against CC 201. Sergeant Robins exited CC 201 and pulled the offender out of the Mercedes placing him under arrest. During the arrest the offender was taken to the ground by a number of officers with OC spray also being used. He was taken to Gosford Police Station where he was charged.

OBJECTIVE SERIOUSNESS

30. I turn then to consider matters of objective seriousness. Firstly, with respect to the drive disqualified offence on 6 February 2021 which is being dealt with on a s 166 certificate. This offence involved the offender, who was disqualified until 2026, making a deliberate choice to drive with a companion to a sailing club, presumably to some social outing. While there was no aggravating aspect to the driving, it has not been suggested that the offender had any compelling reason to drive and I conclude that he chose to do so essentially for his own convenience and in complete disregard of his disqualification. It is a relatively serious form of this type of offence.

31. Turning then to the pursuit offences and their objective seriousness. Each of the two police pursuit offences carry a maximum of five years imprisonment, which mark them as quite serious offences. But, apart from that, offences involving or reckless or dangerous driving have been regarded as very serious offences by the community and the courts for a long time and essentially since motor vehicles were invented. That is because of the obvious and potentially lethal nature of a vehicle being driven dangerously or at an excessive speed.

32. However, it is of fundamental importance that I have regard to the facts of this particular case, and make an assessment of the objective seriousness of the offences committed by this particular offender. The sequence 2 offence, as noted in the agreed facts, commenced with police activating lights and sirens, which the offender ignored, or perhaps more correctly did not ignore but used as a reason to accelerate sharply to 120 kph in an 80 kph zone. He was at that stage being chased by two police vehicles. After this, he accelerated to 140 kph in areas posted as either 90 or 100 whilst swerving in and out of other vehicles, which led police temporarily to suspend the pursuit. However, the offender’s dangerous driving continued at speeds up to 145 kph in an 80 zone and overtaking other vehicles in the break down lane. Not long after this, the offender reached 167 kph at which time there were three police vehicles following. At this time the offender drove through a red light and eventually entered the M1 motorway at which point there were four police cars in pursuit. After entering the M1, he did a U-turn and drove towards oncoming traffic.

33. It was at this point where police sensibly ceased the pursuit. The distance covered in the two parts of this first pursuit was about 22 kilometres over a total period of at least six minutes. Clearly the driving I have described can only be regarded as utterly reckless and was carried out with no regard whatsoever for the lives of others.

34. Although the facts indicate that all these events took place over a period of about six minutes, that is a significant period of time given the speeds at which the offender was driving.

35. In the offender’s favour to some extent is the fact that he was alone in the car, but given the many lives he put at risk, this in my opinion reduces the seriousness of the offence to only a minimal degree. In my view, this was a very serious example of this type of offence and towards the upper range of objective seriousness.

36. The sequence 11 pursuit commenced about 20 minutes later when the driver of Highway Patrol car CC 208 saw the offender driving in the opposite direction at about 160 kph in a 70 zone whilst swerving in and between other vehicles. The offender’s car was then being pursued by two Highway Patrol cars as he continued in a similar manner using the break down lane and shoulders of the road to overtake other vehicles. The offender then, in another attempt to evade police, did a 90 degree turn through a small gap between stationary vehicles over the top of lane delineators and then, with police in pursuit, accelerated to about 150 kph in a 70 zone before passing through a red light as he continued on the Pacific Highway towards the M1. Once on the M1, the offender continued to drive in a similar manner swerving in and out of traffic and using the break down lane to overtake and also failed in an attempted U-turn near Somersby before continuing south at enormous speeds of up to 190 kph in a 110 kilometre zone.

37. As shown in the in car video material, he then again used the break down lane to overtake a civilian car, then swerved to the right across two lanes of traffic before pulling to the left in front of another car causing it to brake to avoid a collision. The offender then again tried to perform a U-turn with the apparent intention of once more driving in the wrong direction against oncoming traffic. It was only at this point that he was stopped when he collided with the two highway patrol cars and was arrested. This pursuit occurred over a period of about eight minutes and a distance of at least 16 kilometres.

38. As earlier noted, there is a dispute about the circumstances in which the offender’s car came to a stop. It was argued for the offender that I should reject the suggestion in para 45 of the facts that the injuries to Senior Constable Owen can be attributed to the offender’s actions. It was submitted that at the time the offender’s car came into contact with Senior Constable Owen’s vehicle, the offender had already been subdued and that his car was “completely stationary”. It was also argued in effect that the actions of the driver, Senior Constable Owen, were excessive or unnecessary and that he was in effect responsible for his own injuries.

30. In order to determine this dispute, I was provided with the dash cam footage from both CC 201 and CC 208, which I have examined many times and considered carefully. I have also been provided with extracts from Pt 7 of a New South Wales Police document entitled “Silver Response Course Safe Driving Policy - Pursuits”.

31. Having considered all of the material, I do not accept the argument on behalf of the offender. Firstly, the two in car video pieces of footage show clearly that the offender was desperately trying to escape from the police cars and would have done so if he had not been stopped. Furthermore, and contrary to submissions by counsel for the offender, his car had not stopped. Rather, he was desperately trying once again to evade police by driving away from them. The video from CC 201 clearly shows that the offender had turned his car around and was attempting to drive in the opposite direction when his car hit the front of CC 201 which at the time was coming to a halt. Video from CC 208 which was being driven by Senior Constable Owen shows that the impact between the offender’s vehicle and CC 208 occurred at about the same time as the impact with CC 201.

32. It was in my assessment the combined effects of contact by the offender’s vehicle with the two police cars which prevented the offender’s escape. On my assessment of the in-car video material, it is likely that if CC 208 had not been alongside CC 201 and in the position that it was, the offender would have again evaded police and continued to drive without regard for the lives of other road users.

33. Counsel for the offender pointed to the contents of the Silver Response Safe Driving Policy document which in part says that a police officer engaged in a pursuit will not, among other things, use a police vehicle to “block” the offending vehicle without authorisation from certain designated persons and will “not ram or intentionally bring the police vehicle into contact with any vehicle being pursued”. Counsel for the offender submitted that there is no evidence that the actions of the drivers of CC 201 or CC 208 had been authorised by the relevant senior officers, that the actions of the police were in contravention of the Safe Driver Policy, and that any injuries suffered by Senior Constable Owen driving CC 208 were a result of his own actions and were in effect unjustified and unlawful and cannot in any way be attributed to the actions of the offender.

34. I do not accept these submissions. These submissions attempt to treat the terms of the Safe Driver Policy as an all‑encompassing and inflexible code regulating every action which might reasonably be taken in the course of driving a vehicle during a police pursuit. To apply the policy in the rigid and restrictive manner argued on behalf of the offender assumes that the driving of a car at speed, let alone in the course of a police pursuit, is an activity in which the driver has the luxury of time to reflect, consult with others and obtain approval for every action or reaction in what is fundamentally an extremely dynamic, fluid and dangerous activity. In making these observations, I do not suggest that the instructions in a policy document such as the Safe Driver Policy are inappropriate or should not be followed. Clearly their content is sensible and should ordinarily be followed.

35. However, to apply the terms of the policy in the strict manner advocated by the offender to the facts of this case defies common sense because it ignores the reality that, as is demonstrated in this case, split second decisions often need to be made, sometimes without the opportunity for reflection, consultation or approval by others. I specifically also do not accept the argument that either of the police cars were used to “ram” the offender’s vehicle.

36. In my view, the actions of the drivers of both CC 201 and CC 208 in driving them into a position where they prevented the offender from escaping, once again, were justified and necessary and quite possibly saved the lives of other road users.

37. I am also satisfied that, given the manner and circumstances of the driving engaged in by the offender and his obvious knowledge that police were pursuing him, that the injuries suffered by Senior Constable Owen were, to say the least, foreseeable: see Josefski v R [2010] NSWCCA 41.

38. In taking into account the injuries to Senior Constable Owen, I have taken care to avoid De Simoni error which might arise if the injuries had involved grievous bodily harm. However, it seems to me that, while the officer’s injuries were substantial, they do not amount to “really serious bodily injury”: see Swan v R [2016] NSWCCA 79.

39. I assess the sequence 11 pursuit offence as a very serious example of this type of offence and as being within the upper range of objective seriousness.

40. It was argued by the Crown at one stage that each of the pursuit offences are aggravated by reason of the offender’s admission to the psychologist, Dr Sidhu, that he had used Ice on the day of the offences. However, in the absence of evidence as to the amount of drug taken and in the absence of evidence that this had a material effect on the offender’s actions at the relevant time, I do not regard this as an aggravating factor.

SUBJECTIVE MATTERS

50. Turning then to subjective factors relating to the offender. The offender is 28 years old and was 27 at the time of the offences. Leaving aside Children’s Court matters, the offender’s criminal history as an adult does not assist any claims to leniency. Most serious, however, is the fact that at the time of the offences before the Court, the offender was on parole for a number of serious offences committed in 2019 and 2020, one of which was an earlier police pursuit. Furthermore, he was also subject to bail which had been imposed in the Local Court on 21 January 2021.

51. The fact that he was subject to these forms of conditional liberty is not a matter that increases the objective seriousness of any of his offences but it does aggravate his overall criminality.

52. The Court has been provided with a volume of written material on behalf of the offender. His background is set out in the psychological report of Dr Sidhu who assessed the offender in July 2022 and took a history which included the following. The offender’s mother was an abuser of illicit drugs and the offender was born with hepatitis. His father separated from his mother when the offender was only about ten months old and the offender moved with his father who formed a new relationship with a woman who became the offender’s stepmother.

53. The offender reunited with his mother, who is of Aboriginal heritage, when he was about ten but had only sporadic contact with her due to his father’s opposition. The offender reported that he was exposed to domestic violence and some drug use in the home and that his stepmother abused alcohol and favoured her own son over him and that this worsened when his father moved to Western Australia for work when the offender was 12. The offender reported feeling abandoned by his father and being subject to abuse by his stepmother.

54. The offender left school in year 9 after a history of behavioural problems which led to his expulsion from a mainstream school. He did some work from about age 15 in his uncle’s plumbing business, but his first paid job was not until a couple of years ago when he was about 26 which he lost when he was placed into custody.

55. He described a history of polysubstance abuse from about age 10 until he was around 23 years old, which mainly involved cannabis and methamphetamine. He also has a history of problematic gambling.

56. The offender told the psychologist that he was sexually abused at age 12 while detained in a youth detention centre. While I do not intend to set out the details of the sexual abuse, it was described by the offender in terms indicating that it was both serious and violent and this was not disputed by the Crown. The offender is currently pursuing civil proceedings in relation to this alleged abuse, the effects of which the offender claims have ruined his life.

57. The psychologist reached the conclusions that the offender currently meets the criteria for major depressive disorder and generalised anxiety disorder as well as severe substance use disorder and although he does not meet the diagnosis for Post Traumatic Stress Disorder, he is still impacted by the trauma he experienced as a child and that his mental health is complex. While the psychologist concluded that his severe substance abuse disorder and use of drugs at the time of the offences contributed to his poor decision making and impulsiveness in committing those offences, the use of drugs in the immediate lead up to the offences is not a matter that mitigates the seriousness.

58. Counsel for the offender made submissions to the effect that the offender’s history is such as to attract the principles in the well known decision of the High Court of Australia in Bugmy v The Queen [2013] HCA 37. There is of course no bright line test to identify “Bugmy cases” from “non Bugmy cases” and it seems to me that there never can be, given the complexity and variable nature of the backgrounds of persons who come before the criminal courts for sentence. See for example, Nasrallah v R [2021] NSWCCA 169 at paras 11, 12 and 21. Each case must, however, depend on the evidence and the findings of fact made on that evidence.

59. On the evidence in this case, I am satisfied that the offender’s early years were marred by his exposure to drugs, alcohol and domestic violence and that he lacked access to good role models and appropriate primary attachment figures. I am also satisfied that the likely impact of the offender’s problematic childhood was exacerbated by his experiences of being placed into custody from a young age and in particular by the fact that he was seriously sexually abused while in that custody. In my view, this background contributed to some extent to the offender’s poor decision making and reduces to some degree his moral culpability for the offences before the Court.

60. I am also satisfied that the offender’s diagnosed psychological conditions and history of having been sexually abused in a custodial environment are such that they have made and will continue to make his time in custody more difficult.

REMORSE AND REHABILITATION

61. I turn to questions of remorse and prospects of rehabilitation. In commenting on his offences, the offender told the psychologist that he “regrets it so much” and acknowledged that he “put so many people in danger”. The offender has also provided an “apology letter” to the Court in which he expresses regret for his actions and this is echoed in the letters from his partner and his aunt.

62. The fact that he gave no evidence on oath diminishes to some degree the weight that I attach to these expressions of remorse. However, on balance, I do accept that there is some remorse.

63. The psychologist concluded that the offender had a good understanding of his criminogenic needs and accepted the need for drug and other treatment to help him “adjust to the outside” and that his insight into his areas of need bodes well for his future rehabilitation but is reliant on his remaining motivated to change his behaviour. As the psychologist notes, the offender has some protective factors available to him, namely the support of his father and his current partner and the recent birth of his son.

64. There are also two Sentencing Assessment Reports before the Court. The first report dated 17 June 2022 indicates that the offender refused to engage in the interview process and was therefore limited to a review of documentation which included a record of ten institutional misconduct charges since going into custody. The second report, in which the offender did engage with the author, noted that the offender did express some remorse but also attempted to justify his actions. He did, however, show some insight in acknowledging that he could have caused an accident, but the author notes that the offender became aggressive during the assessment and that the regret he expressed appeared to be self-serving. Both Sentencing Assessment Reports note that the offender was assessed as high risk of re-offending.

65. In my view, the offender has some prospects of rehabilitation but those prospects are fragile. His prospects of rehabilitation lie largely within his own hands and whether he can exercise the maturity and self-control required to avoid drugs and negative influences, engage with treatment, and focus on his responsibilities to his child and partner. However, at present, he remains a significant risk of future offending.

THE PANDEMIC

66. I have taken into account the fact that the offender’s period in custody to date has been during the current pandemic with its many adverse effects on persons in custody which have included restrictions in access to visits, programs and other services as well as frequent lockdowns, combined with the general anxiety associated with contracting the disease. In this offender’s case, there is specific evidence from his solicitor, Ms Black, documenting these adverse consequences, including many days of lock ins, periods in segregation, restrictive contact with outsiders and limitations on access to various programs and other services. I take into account also that the remainder of the offender’s period in custody will likely continue to be more difficult by reason of at least some of these continuing problems.

67. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which of course are the need for adequate punishment, the importance of deterrence of the offender and others, of protecting the community, of making the offender accountable, of denouncing his conduct and recognising the harm done but also promoting his rehabilitation. I am satisfied that the s 5 threshold in that Act has been crossed. In other words, that no sentence other than one of full time imprisonment is appropriate.

DETERMINATION

68. I intend to impose an aggregate sentence given that I am sentencing for more than one offence. As noted earlier, in sentencing Mr Bell for the sequence 2 pursuit offence, I will take into account the sequence 3 drive while disqualified offence and the sequence 13 drive in a manner dangerous offence, each of which have a maximum penalty of 12 months imprisonment.

69. While Form 1 matters can operate to increase the weight to be given to personal deterrence and the community entitlement to exact retribution, it is for me to determine, based on the circumstances of this particular case, whether they should have that effect: Lloyd v R [2022] NSWCCA 18 at para 13. In this regard, I note that each of the offences on the Form 1 were committed on the same day as the two pursuit offences and were in one sense part of a continuing course of conduct which commenced when the offender drove disqualified out of the driveway at Swansea and ended with his apprehension after his car collided with CC 201 and CC 208.

70. On the other hand, each of the Form 1 offences involved discrete and deliberate unlawful actions. The first in choosing, with no justification, to drive while disqualified, and the second in continuing to drive dangerously and in part on the wrong side of the road after the first police pursuit had been terminated. In the circumstances, I am satisfied that each offence, but in particular the dangerous driving offence, is such that they ought to impose some upward pressure on the sentence for the sequence 2 offence.

71. As I am imposing an aggregate sentence, it is a requirement that I set out the indicative sentences. In other words, those that I would have imposed had I not imposed an aggregate sentence. The sentences I am about to refer to are not the ultimate sentence. These are the indicative sentences.

72. Firstly, for the sequence 2 offence, after a 25% discount, the indicative is two years seven months. For the sequence 11 offence, after the 25% discount, the indicative is two years six months and for the sequence 1 offence on the 166 certificate, after the 25% discount, the indicative sentence is six months. I should note that in relation to the indicative sentence on the sequence 2 offence, that of course also takes into account the matters on the Form 1.

TOTALITY AND ACCUMULATION

73. As I am sentencing for three offences, I have given close consideration to questions of totality and in particular the need to ensure that the sentence is not inappropriately a crushing one but balancing this against the possible perception that a discount is being given for multiple offending.

74. In my view, there does need to be some degree of notional accumulation of the sentences. Each of the pursuit offences involved individual episodes of very serious offending separated in location and time and the sequence 1 offence was committed on a different day, in fact five days earlier.

DECISION

75. I impose an aggregate head sentence of three years ten months. I make a finding of special circumstances based upon the offender’s mental health issues, the need for an extended period of supervision on parole during which he will need treatment to avoid relapses into drug taking, and also the risk of institutionalisation. I impose a non-parole period of two years seven months.

BACKDATING

76. I have given consideration to the date upon which that sentence should commence. The offender was arrested on 11 February 2021 for the offences before the Court and has been in custody since then. However, that custody has not been solely referable to the offences now before the Court. On 10 February 2021, the State Parole Authority for reasons not connected with the offences now before the Court revoked his parole on a sentence for offences committed in 2019 and 2020. As a result, the offender served the remaining portion of an existing sentence until 29 December 2021.

77. Furthermore, on 8 November 2021, he was sentenced by the Local Court to a three month fixed term from 26 May until 25 August 2021. In addition, he has since 2 February 2022 been bail refused on charges for which he is soon to be sentenced in the Local Court.

78. Having had regard to these matters and to totality principles, I order that the head sentence and non-parole period date from 29 December 2021. The head sentence of three years ten months will therefore expire on 28 October 2025 and the non-parole period of two years seven months will expire on 28 July 2024.

79. Now, Ms Crown, what do you say in relation to the disqualification issue?

80. WALKER: Your Honour, the Crown would be seeking that the Court impose a disqualification period for the offences where it’s applicable.

81. BLACK: Your Honour, I believe it’s a five year automatic disqualification and a two year minimum for a subsequent offence. Our submission would be that your Honour could find somewhere in the middle of that. He is currently serving a disqualification period until 2026. Any term that your Honour does impose will not commence until Mr Bell is released from custody following this term of imprisonment. In that regard, it’s obvious that Mr Bell has a need for his licence to continue living his life. He has not had a licence for many years but our submission would be your Honour could find somewhere in the middle between a two year and a five year period.

82. HIS HONOUR: I think there’s an automatic of 12 month and a minimum of six months that applies to the sequence 1 drive disqualified offence.

83. BLACK: That’s correct, your Honour.

84. HIS HONOUR: Given the period of time from which the offender is already disqualified, I impose in relation to each of the pursuit offences, a disqualification period of three years in each case and for the sequence 1, a disqualification of eight months.

85. BLACK: As the Court pleases.

86. HIS HONOUR: Thank you, the Court will adjourn.

**********

Decision last updated: 20 February 2023