R v Callebaut

[2019] NSWDC 352

District Court

New South Wales

Medium Neutral Citation:	R v Callebaut [2019] NSWDC 352
Hearing dates:	11 April 2019
Date of orders:	11 April 2019
Decision date:	11 April 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 2 years with a non-parole period of 13 months: at [20].
Catchwords:	SENTENCING — Aggravating factors — Breach of conditional liberty — Grave risk of death to another person or persons — Planned or organised criminal activity — Record of previous convictions s — Series of criminal acts — Without regard for public safety SENTENCING — Mitigating factors — Plea of guilty — Remorse — Rehabilitation SENTENCING — Relevant factors on sentence — Moral culpability SENTENCING — Subjective considerations on sentence — Mental illness — Intoxication — Special circumstances — Drug addiction
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Mental Health Act 2007
Cases Cited:	McDowall v R [2019] NSWCCA 29
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Daniel Callebaut (Offender)
Representation:	Ms J van Lieven (Crown)   Mr P Ye (Offender)
File Number(s):	2018/180436

Judgment

1. Over a period of about an hour and a half, shortly after midnight on 10 June 2018 Daniel Callebaut, who is only 19 years of age, led police on a high speed chase through the streets and freeways of Sydney. He travelled about 135 kilometres in that time, often significantly faster than the posted speed limits, on the incorrect side of the road with his headlights off, through red lights and through intersections without slowing. The weather conditions were overcast with periods of rain and the surfaces were generally wet. Twenty-five police vehicles were involved at some point, along with a Police helicopter. To make matters worse, he was driving a stolen vehicle, under the influence of alcohol, and a reading of .105 was found on a subsequent breath analysis. Furthermore, he had never held an Australian driving licence.

2. He faces sentence today having pleaded guilty at an early opportunity, which entitles him to a 25% discount on any term of imprisonment to, first, count of not stop during police pursuit and drive dangerously contrary to s 51B of the Crimes Act 1990, which carries a maximum penalty of three years imprisonment with no standard non‑parole period, and secondly, knowingly drive a stolen car under s 154A(1)(b) of the Crimes Act, which carries a maximum of five years and no standard non‑parole period.

3. There are two matters to be dealt with on a section 166 certificate; sequence 005 never licensed driving a vehicle contrary to s 53(3) of the Road Transport Act 2013, which carries a fine, and sequence 006, drive with a middle range PCA contrary to s 110(4)(a) of the Road Transport Act 2013, which carries an automatic disqualification of 12 months and a maximum of nine months’ imprisonment.

4. He was taken into custody on 10 June 2018 and has been in custody, strictly speaking on this matter only, since 24 February 2019. At the time of the offences he was on parole, having been sentenced for aggravated break and enter and reckless wounding. His parole was revoked and he served the balance of his parole until 24 February 2019.

5. The very helpful written submissions prepared by the Crown Prosecutor and by Mr Ye for the offender, addressed the issue of totality and the discretion of the Court as to the commencement of the term of imprisonment, which Mr Ye concedes is required in this case so that it is unnecessary to consider any alternatives under s 5 of the Crimes (Sentencing Procedure) Act 1999. Mr Ye’s optimistic submission is that the sentence should commence on the date of arrest, whereas the Crown’s submission is that the sentence should be wholly consecutive on the balance of parole. In my view, taking into account the principles of totality, it would be appropriate to commence a term of imprisonment on 10 September 2018, three months after his arrest.

6. The offender was born in New Zealand and spent much of his time in Australia. He has a very lengthy record, extending over 14 pages, for one so young. His mother is an Australian citizen, a teacher at a private school on the Northern Beaches, and candidly tells me that she intends to stay in Australia. The prospect is that he will be deported, subject to the result of any appeal process. If deportation occurs he will arrive in New Zealand with no family or support network. However, as the authorities, show, that is not a matter that I can take into account in the sentencing process.

7. He has had a lengthy history of appearances in the Children’s Court involving control orders, and most recently for two years commencing on 25 February 2017. As Mr Ye calculates he spent almost 1,300 days in custody since he was 15 years of age, that is about 78% of his time. He has been in almost continuous custody but for a period of six weeks on parole since February 2017.

8. Although the offender has not given evidence, there is a significant quantity of contemporaneous medical material indicating a troubled upbringing in recent years. His mother said that he was incredibly energetic, happy, confident, clever and a gregarious child. He was popular in the community but changes started to occur in about Year 5. She first took him to a psychologist when he was in Year 6. His behaviour worsened dramatically, became disengaged in his learning and uninterested in activities. This was apparently due to self-medication with cannabis which his mother knew about.

9. He has experienced the loss of a close friend and he has expressed genuine remorse and regret to his mother, who hopes to have him reside with her on his ultimate release, if he were able to avoid drug and alcohol abuse.

10. A Sentencing Assessment Report summarises a history of substance abuse since the age of 13, including methamphetamine and cannabis and binge drinking on a regular basis, with a diagnosis of anxiety and depression at age 15. He acknowledged that it had been a stupid decision to drive a stolen car in the manner that he did. He was assessed as being of medium risk of reoffending.

11. The medical records from the family GP in Narrabeen show a history of self‑harm in 2015, ADHD, psychotic disorder-substance induced, and depression and anxiety, amongst others. The GP described him as having a tumultuous adolescence and adulthood with illicit drug use, leading to incarceration and underlying depression and anxiety, and psychosis triggered by drugs and alcohol. He was last year motivated to get work and training in landscaping, but was finding memory difficulties and tremor were affecting him.

12. He was referred to a psychiatrist Dr Cassimatis in 2016, who thought at that stage that he would not respond to psychotherapy, but he should continue to take GP prescribed medication, being Avanza and Quetiapine. The history of behavioural difficulties is further set out in the report of the psychiatrist, Dr Wiltshire in 2012, and it is picked up in the report of Dr Dayalan, who has become his treating psychiatrist while in custody. He diagnosed alcohol, cannabis, stimulant and opiate use disorder, noting at the time of the offence his poor impulse control stemming from his ADHD and impaired cognition secondary to alcohol intoxication would have contributed to his offending behaviour. He has noted a willingness to engage in substance use rehabilitation and he has been abstinent from illicit use for some time.

13. Dr Chew, psychiatrist, had prepared a report for the Magistrate in August 2018, diagnosing a number of psychiatric conditions including the substance use disorder, mild depression and anxiety, on top of the previous drug‑induced psychosis and ADHD. Those constituted a mental condition for which treatment was available, but did not constitute him as a mentally ill person within the Mental Health Act 2007.

14. As the Crown points out, an assessment of moral culpability is the central inquiry with regard to the objective circumstances of a particular offence. Here, the facts which loom large in that assessment are that he was driving at speeds up to 160km/h in an erratic and aggressive fashion. He demonstrated a complete disregard for Police directions to stop and did things such as drive past a police car with his high beam on, sounding the horn and sticking his finger up at the Police, indicating that he was deliberately ignoring their instructions to stop. As I have said he had never held a licence. He was under the influence and the pursuit was only terminated when he impeded by a line of four cars stopped at a red light.

15. The offending is, in my view, above the mid-range, even though as the Courts recently said in McDowall v R [2019] NSWCCA 29, it is unnecessary to classify objective seriousness by reference to some scale, it is often of assistance.

16. A number of aggravating factors are not disputed by Mr Ye, including the offender’s previous record, the offence had been committed without regard for public safety, there was a serious risk of death or injury to others, he was on conditional liberty, the offences were a series of criminal acts and there was a very limited degree of planning in the sense that there were multiple opportunities to pull over which were not taken.

17. In terms of mitigating factors, the plea of guilty is noted and I have taken into account the expressions of remorse and regret and his prospects of rehabilitation and reoffending. As the Crown submits, youth and other subjective circumstances such as mental health should not override the need for community protection and punishment for what the Crown submitted was a high level of moral culpability. However they are matters which should be taken into account for the reasons set out by Mr Ye in his submissions, which focus on the matters to which I have referred, namely, the underlying mental health issues, the increasing reliance on illicit substances and alcohol, untreated emotional and psychiatric issues and immaturity due to his young age. The weight of general deterrence is somewhat moderated in this case.

18. There is no contest from the Crown that a finding of special circumstances is justified, given his youth and the diagnosis of mental conditions requiring treatment and medication, and it will be appropriate to adjust the statutory period. There is also, as Mr Ye submits, a risk of institutionalisation given the significant length of time that he has already spent in custody and this will be his first time in adult custody.

19. The orders I make are:

1. The offender is convicted of each offence.

2. I impose an aggregate sentence of imprisonment of 2 years, to commence on 10 September 2018 and expiring on 9 September 2020.

3. I impose a non-parole period of 13 months, expiring on 9 October 2019. The offender is eligible for release to parole on that date.

4. The indicative sentences are:

1. Seq 002 Police pursuit: 20 months

2. Seq 008 Knowingly drive stolen conveyance: 12 months

5. I find special circumstances.

005 s 166 certificate: Drive whilst never licensed – s 53(3) RTA

1. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act the offender is convicted without any further penalty.

2. The offender’s licence is disqualified for 12 months commencing today.

006 s 166 certificate: Drive with middle range PCA – s 110(4)(a) RTA

1. Pursuant to s 10A of the Crimes (Sentencing Procedure) Act the offender is convicted without any further penalty.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 25 July 2019