R v Crawford (a pseudonym)
[2022] ACTSC 166
•11 July 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Crawford (a pseudonym) |
Citation: | [2022] ACTSC 166 |
Hearing Date: | 11 July 2022 |
DecisionDate: | 11 July 2022 |
Before: | Elkaim J |
Decision: | (i) For the offence of driving a motor vehicle without consent the offender is sentenced to 4 months and 14 days imprisonment (reduced from six months) to commence on 14 July 2022 and end on 27 November 2022. (ii) For the second offence of driving a motor vehicle without consent the offender is sentenced to 4 months and 14 days imprisonment (reduced from six months) to commence on 15 September 2022 and end on 28 January 2023. (iii) For the offence of aggravated driving the offender is sentenced to 6 months imprisonment (reduced from eight months) to commence on 15 December 2022 and end on 14 June 2023. (iv) For the second offence of aggravated driving the offender is sentenced to 6 months imprisonment (reduced from eight months) to commence on 15 March 2023 and end on 14 September 2023. (v) For the offence of driving at or near police contrary to s 29A of the Crimes Act 1900 the offender is sentenced to 12 months imprisonment (reduced from 16 months) to commence on 13 September 2023 and end on 12 September 2024. (vi) For the count of driving while disqualified the offender is sentenced to 3 months imprisonment to commence on 14 July 2022 and end on 13 October 2022. (vii) For the second count of driving while disqualified the offender is sentenced to 3 months imprisonment to commence on 14 July 2022 and end on 13 October 2022. (viii) For the offence of possessing a drug of dependence the offender is sentenced to 3 months imprisonment to commence on 14 July 2022 and end on 13 October 2022. (ix) The total period of imprisonment is 2 years, 1 month and 30 days to commence on 14 July 2022 and end on 12 September 2024. (x) The above imprisonment is to be served by way of an Intensive Corrections Order subject to core conditions. (xi) It is noted that the disqualifications of the offender’s drivers licence follow automatically. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – driving a motor vehicle without consent – aggravated driving – driving at or near police – driving while disqualified – possessing a drug of dependence – where offender has criminal history as a juvenile – where offender assessed as suitable for an Intensive Corrections Order |
Legislation Cited: | Crimes Act 1900 (ACT)s 29A Criminal Code 2002 (ACT) s 318 Drug of Dependence Act 1989 (ACT) s 169 |
Parties: | The Queen ( Crown) Zack Crawford (a pseudonym) ( Offender) |
Representation: | Counsel M Howe ( Crown) J Cooper ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Aboriginal Legal Service ( Offender) | |
File Numbers: | SCC 120 of 2022 SCC 121 of 2022 |
Elkaim J:
On 15 March 2022 the offender pleaded guilty to the following charges:
(a)Two counts of driving a motor vehicle without consent contrary to s 318 of the Criminal Code 2002 (ACT).
The maximum penalty for this offence is five years imprisonment, a fine of $80,000 or both.
(b)Two counts of aggravated driving contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT)
The maximum penalty for this offence is five years imprisonment, a fine of $80,000 or both for a repeat offending. The disqualification period is 12 months or longer if the Court orders.
(c)
One count of driving at or near police contrary to s 29A of the Crimes Act 1900 (ACT).
The maximum penalty for this offence is 15 years imprisonment.
The offender also pleaded guilty on 15 March 2022 to the following transfer charges:
(a)Two counts of driving while disqualified contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT).
The maximum penalty is 12 months imprisonment, a fine of $16,00 or both for a repeat offender. The disqualification period is 24 months or longer if the Court orders.
(b)Possessing a drug of dependence contrary to s 169 of the Drug of Dependence Act 1989 (ACT).
The maximum penalty is two years imprisonment, a fine of $8,000 or both.
Exhibit A contains an agreed statement of facts. The following is a summary.
On 18 October 2021 a Mercedes-Benz CLA 43 (a normally sedate sedan) was stolen from an address in Macarthur in the ACT. Very early the next morning this vehicle was being driven by the offender at high speed on the Monaro Highway. It was being driven in parallel with a Toyota Prado.
The police, who had observed the two vehicles, were endeavouring to set up a tyre deflation system on the highway. The two vehicles avoided the police by driving across a grass median strip. They then travelled back on the highway but in the opposite direction to the appropriate direction of travel. Police pursued the vehicles which reached estimated speeds of about 130 km/h in 100 km/h zone. The Mercedes went up the Hindmarsh Drive ramp, again in the opposite direction to legal travel. The police did not follow the Mercedes; rather they followed the Toyota.
Later on 19 October 2021 the offender was driving the Mercedes in Gungahlin. He went through a red light. A little later he was travelling at high speed in Harrison. Police pursued. The offender did not stop. The offender drove into a residential complex. Police blocked the entrance and approached the Mercedes. The offender reversed towards one of the police officers who swiftly moved into a garden bed to avoid being hit. The Mercedes collided with a bollard but was then able to depart from the scene.
Shortly after 6 PM on the same day the offender, still driving the Mercedes, mounted a footpath in order to avoid police vehicles that were attempting to block his path. He drove at high speed along a footpath and he ignored police directions to stop. He almost collided with an officer. The offender’s escape was blocked by a police vehicle.
The Mercedes then collided with the police vehicle, pushing it several metres onto the other side of the road. The police asked the offender to leave the Mercedes. He refused. He was forcibly removed from the vehicle, with the aid of a “Conducted Energy Weapon” (also known as a taser).
A police officer who had been seated in the police car was taken to hospital by ambulance. Fortunately his injuries were minor, although having seen the CCTV footage, the experience would have been terrifying.
When the above offending occurred, the offender was on conditional liberty, a condition of which was not to drive a motor vehicle.
When police officers carry out their duties they are doing so in order to protect the public. I am sure they know there is a risk involved but they are entitled to assume that their lives and health will not be unreasonably placed in jeopardy. A young man, high on drugs, driving stupidly and dangerously, is an unfortunate example of the type of event that police have to deal with all too regularly. But that does not mean that when they are placed in danger that should be regarded as an expected result or part of their employment.
Any offence involving danger to a police officer is in my view very serious. The overall objective seriousness of the offences in this matter I regard as towards midway.
The offender was taken into custody on 20 October 2021. On 15 November 2021 he was sentenced in the Childrens Court for a number of offences committed between May and July 2021. He received a sentence of one year and 19 days imprisonment without a non-parole period. The sentence started on 25 June 2021 and will conclude on 13 July 2022.
On 14 June 2022 the offender was sentenced, again in the Childrens Court for two offences. Although terms of imprisonment were imposed they were concurrent with his previous sentences. His custody will not extend beyond 13 July 2022. He is serving his current custody in the AMC, where he is occupied as a sweeper.
The offender has a long and appalling record of driving offences together with some drug and assault convictions. These have all been dealt with in the Childrens Court.
The offender was born in 2003 in Canberra. He is of indigenous heritage but does not have a history of connection to his culture. He has more recently engaged with Aboriginal organisations and liaison officers at the prison.
The offender’s parents separated when he was five years of age and he was brought up by his mother. His father was often in prison. The offender has a good relationship with his stepfather who visits him with his mother frequently at the prison. He was living with them before he went into custody. He also has a good relationship with his grandfather, who has written a letter of support to the Court. There is a letter from his mother setting out his background and the trauma that he has experienced.
The offender left school in Year 8. He has a diagnosis of ADHD which impaired his capacity to study. In 2009 he also had a diagnosis of severe anxiety and depression. He has never been employed but apparently has some work opportunities when he is released. Most of his friends are criminals. He hopes to make new friends when he leaves prison.
The offender has been using illegal drugs for some time. Attempts to stop taking drugs have so far been unsuccessful. His intention in stealing the motorcar was to sell it for drugs. He recognised the danger in his actions. He said to the authors of the Pre-Sentence Report:
I could have lost the police officers their lives when they were just doing their job.
The authors assessed him as having a medium risk of general re-offending. They recognise that his mother and stepfather are a positive support network. They assessed him as suitable for an Intensive Correction Order (ICO).
Dr Chew is a psychiatrist who conducted a psychiatric assessment of the offender on 30 June 2022. He describes the offender’s current depression and thoughts of suicide. He said that he has been depressed and anxious while in the AMC. He expressed remorse for his behaviour. Dr Chew describes the extent of the offender’s drug use.
According to Dr Chew the offender has a primary diagnosis of major depressive disorder with anxious distress. He said that the offender’s drug use “spiralled out of control and he found himself in a situation needing substantial amounts of money to feed his addiction”. The doctor goes on to say:
I think that with treatment, rehabilitation and abstinence from illicit drugs that his prognosis is improved and his risk of reoffending will be much reduced.
As stated by his legal representative, the best thing for this offender would be to enter the drug and alcohol program. Unfortunately that option is not available. The next best option is an ICO.
The Crown’s attitude to an ICO is that while it has its advantages, it carries the risk that if the offender is released into the community without proper protections being immediately available he will once again be at risk. The Crown suggested that perhaps a further period of imprisonment followed by a suspended sentence might be more appropriate. This would enable the offender to at least begin to deal with his drug problem while in prison. Unfortunately, that has not been able to occur so far.
According to Dr Chew, as I have already noted, the offender is finding adult prison difficult. This is the time for him to make a choice. Either he gets used to being in an adult prison, because that is where he will be for a good deal of his life if he continues to behave the way he has so far. Alternatively, he can take advantage of the ICO that I intend to impose and begin a new chapter in his life.
Perhaps it is naïve on my part to think it is easy to start a new chapter for a person with severe drug problems, but he has to do so. He will have the support of his mother, his stepfather and his grandfather. He should draw on that support and on their experiences in life. Alternatively he should simply change his usual address to the AMC.
I have rejected the further period of imprisonment plus a suspension, primarily because of the stricter controls that are available to Corrections under an ICO.
Another factor is that a breach of an ICO will almost certainly be treated as a path straight back into prison. The ICO will necessarily be for a fairly lengthy period. The offender will need to behave for this period.
In imposing the ICO I have had regard to the provisions of s 11(3) of the Crimes (Sentencing) Act 2005. No submissions were made to the contrary.
The Crown accepts that there should be a fair amount of concurrency in the sentences. They all effectively arise from the same incident, namely the theft of the Mercedes-Benz. I agree with the Crown that the sentence for the s 29A offence should be distinct from the other sentences.
The offender pleaded guilty at a relatively early stage. He is entitled to a discount which I assess at 25 per cent.
It is of course incumbent upon me to take into account the provisions of the Crimes (Sentencing) Act 2005, in particular ss 6, 7 and 33.
The sentences I impose will commence on 14 July 2022, the day after his current sentence expires.
I make the following orders:
(i)For the offence of driving a motor vehicle without consent the offender is sentenced to 4 months and 14 days imprisonment (reduced from six months) to commence on 14 July 2022 and end on 27 November 2022.
(ii)For the second offence of driving a motor vehicle without consent the offender is sentenced to 4 months and 14 days imprisonment (reduced from six months) to commence on 15 September 2022 and end on 28 January 2023.
(iii)For the offence of aggravated driving the offender is sentenced to 6 months imprisonment (reduced from eight months) to commence on 15 December 2022 and end on 14 June 2023.
(iv)For the second offence of aggravated driving the offender is sentenced to 6 months imprisonment (reduced from eight months) to commence on 15 March 2023 and end on 14 September 2023.
(v)For the offence of driving at or near police contrary to s 29A of the Crimes Act 1900 the offender is sentenced to 12 months imprisonment (reduced from 16 months) to commence on 13 September 2023 and end on 12 September 2024.
(vi)For the count of driving while disqualified the offender is sentenced to 3 months imprisonment to commence on 14 July 2022 and end on 13 October 2022.
(vii)For the second count of driving while disqualified the offender is sentenced to 3 months imprisonment to commence on 14 July 2022 and end on 13 October 2022.
(viii)For the offence of possessing a drug of dependence the offender is sentenced to 3 months imprisonment to commence on 14 July 2022 and end on 13 October 2022.
(ix)The total period of imprisonment is 2 years, 1 month and 30 days to commence on 14 July 2022 and end on 12 September 2024.
(x)The above imprisonment is to be served by way of an Intensive Corrections Order subject to core conditions.
(xi)It is noted that the disqualifications of the offender’s driver’s licence follow automatically.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
11
0
6