R v Ebsworth

[2024] NSWDC 377

District Court

New South Wales

Medium Neutral Citation:	R v EBSWORTH [2024] NSWDC 377
Hearing dates:	23 August 2024
Date of orders:	23 August 2024
Decision date:	23 August 2024
Jurisdiction:	Criminal
Before:	Everson SC, DCJ
Decision:	(1) The offender is convicted of charge sequences 1, 4, 6 and 8 on the Amended Charge Certificate dated 24 April 2024. (2) I impose an aggregate sentence of imprisonment of 5 years 9 months that expires on 12 May 2029. (3) I impose a non-parole period of 3 years 3 months that expires on 12 November 2026. (4) I refer the offender to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Road Transport Act 2013 (NSW)
Cases Cited:	Bugmy v the Queen (2013) 249 CLR 571 Munda v Western Australia (2013) 249 CLR 600 DPP (Cth) v De La Rosa (2010) 79 NSWLR Fisher v R [2021] NSWCCA 92 R v Hamilton (1993) 66 A Crim R 575 R v Hearne [2001] NSWCCA 37 R v Henry (1999) 46 NSWLR 346 Lloyd v The Queen [2022] NSWCCA 18 R v McNaughton (2006) 66 NSWLR 566 R v Qutami [2001] NSWCCA 353
Category:	Sentence
Parties:	Rex Brandon Ebsworth
Representation:	Counsel: Ms R Thampapillai (for Brandon Ebsworth) Solicitors: Solicitor for Public Prosecutions (NSW) for the Crown; Karim Criminal Defence Lawyers for the offender.
File Number(s):	2023/00223807
Publication restriction:	There is a self-executing statutory non-publication order prohibiting the publication of any information that may reveal criminal offending by or towards the offender when he was a child.

JUDGMENT

INTRODUCTION

1. Brandon Ebsworth is before this Court pursuant to the Amended Charge Certificate dated 24 April 2024. He is to be sentenced on the four principal offences set out in that charge certificate, each of which is an offence contrary to sections of the Crimes Act 1900, committed on 13 July 2023:-

• Charge sequence 1 is the offence of failing to stop whilst pursued by police and driving dangerously, contrary to sub-section 51B(1). The maximum penalty for that offence is imprisonment for 5 years.

• Charge sequence 4 is the offence of using an offensive weapon to prevent his lawful apprehension, contrary to sub-section 33B(1)(a). The maximum penalty for that offence is imprisonment for 12 years.

• Charge sequences 6 and 8 are offences of assaulting, and thereby occasioning actual bodily harm to, respectively Constable Graham and Senior Constable Furner, in the execution of their duty, contrary to sub-section 60(2). The maximum penalty for that offence is imprisonment for 7 years and a standard non-parole period of 3 years is prescribed.

2. Mr Ebsworth pleaded guilty to those offences in the Local Court at Penrith on 26 April 2024 and he has previously and personally adhered to those guilty pleas in this Court. In addition to those four principal offences, the prosecutor has filed in Court a Form 1 document, listing additional charges, to which the offender has admitted his guilt: sequence 2, a charge of driving whilst disqualified on 13 July 2023, contrary to sub-section 54(1)(a) of the Crimes Act 1900;and sequence 9, a charge of driving on 13 July 2023, whilst the illicit drug methylamphetamine was in his blood, contrary to sub-section 111(1)(a) of the Road Transport Act 2013.

3. Mr Ebsworth asks, and the Court considers it appropriate to, take those additional charges into account when sentencing him for sequence 1, which is the offence of failing to stop whilst pursued by police and driving dangerously, in accordance with the Form 1 procedure provided for in s.33(1) of the Crimes (Sentencing Procedure) Act.

THE OFFENCES

4. The agreed facts reveal that in Laurel Place, Lalor Park at about 7am, on 13 July 2023, Brandon Ebsworth removed the number plates from a Black Holden Commodore motor car and replaced them with two others. Thirty minutes later, a message was broadcast on police radio concerning that same Black Commodore. At about 8:30am, the Black Commodore driven by Mr Ebsworth and containing another male drove out of Lalor Place and that began the offending by Mr Ebsworth on 13 July 2023.

Sequence 2 (on the Form 1 attached to sequence 1)

5. At around 9:30am, police officers within an unmarked police car with the callsign "BN141" saw the Black Commodore, being driven by Mr Ebsworth and with a Daniel ROBINSON as a passenger, driving along Northcott Road in Lalor Park. At all times on 13 July 2023, Mr Ebsworth was disqualified from holding a driver's licence. That is the basis of charge sequence 2 which is the additional charge on the Form 1 document attached to charge sequence 1.

Sequence 1

6. That unmarked police car BN141 followed behind the Black Commodore, being driven by Mr Ebsworth. The warning lights and sirens of the unmarked police car were activated thereby signalling for the driver of the Black Commodore to stop. Mr Ebsworth did not do that. He continued driving along Northcott Road, then turned harshly to the right into Commercial Road and accelerated away with the police in pursuit. That was the commencement of the commission of the offence charged in sequence 1.

7. Mr Ebsworth (who will also be referred to in this judgment as "the offender") drove the Black Commodore to the right and onto Freeman Street, at around 70 kilometres per hour ("kph") in a 50kph speed zone. He then turned left onto Lucas Road, Seven Hills towards the Prospect Highway. He drove onto Johnson Avenue and accelerated, reaching speeds of about 100kph in a 60kph road. He drove to Seven Hills Road where the traffic was backed up at the traffic lights at the intersection of Old Windsor Road. There, the offender continually weaved through slower moving traffic, turned left and made his way onto Old Windsor Road, whilst driving at speeds of about 120kph in an 80kph speed zone. He continued to switch lanes and used the breakdown lane to pass other traffic.

8. Mr Ebsworth negotiated the backed-up traffic at the intersection of Sunnyholt Road by causing the Black Holden to mount the median strip, execute a U-turn and drive back in the opposite direction along Old Windsor Road using the breakdown lane. At that point, police travelling in a fully marked NSW Police vehicle, with the call sign BN10, took over the primary pursuit of the Black Commodore with BN141 following. The offender turned left onto Seven Hills Road. It has a single lane in each direction. The offender repeatedly drove on the wrong side of the road in seeking to overtake vehicles travelling in the same direction as him. Near the intersection of Old Windsor Road and Lexington Drive in Bella Vista, a third police vehicle, the fully marked police car BN14 unsuccessfully attempted to stop the Black Commodore by deploying road spikes.

9. At around 9:45am, the Aviation Command of the NSW Police Force, more commonly known as "PolAir", advised that they had located the Black Commodore and thereafter monitored it for the remainder of the police pursuit and provided updates to other police as to its location. The active pursuit of the Black Commodore, involving police cars being driven with activated lights and sirens, including BN141 and BN10, was terminated due to the danger posed to the public. However, with the assistance of Polair, other Police continued to follow and monitor the Black Commodore, including with the use of fully marked police vehicles. Further, unsuccessful attempts were made by the police to stop the Black Commodore. The agreed facts state that the offender knew he was being pursued and that he was required to stop but he did not stop. Mr Ebsworth drove the Black Commodore along Old Northern Road, weaving in and out of traffic. Followed by five or so fully marked NSW Police cars, he drove through Baulkham Hills, Castle Hill, Kellyville and onto Old Windsor Road.

10. At about 10:40am, he emerged from behind a truck and entered the right-hand turning lane at the Gibbon Road intersection. Seeking to evade another attempted stopping of his car by road spikes, the offender drove into the intersection, ignored the right-hand turn lane, merged left across two northbound lanes and entered the T-way on the western side of Gibbon Road. Then he braked harshly and attempted to turn right but was blocked by another police vehicle. He hit the grassed median strip and came to a stop.

11. Approximately four police vehicles surrounded the Black Commodore and their occupants got out and yelled at the offender and his passenger to get out of the Black Commodore. Some police approached it and banged on its driver's and passenger's side windows. One constable used his extendable baton to hit the driver's side window several times in an unsuccessful attempt at breaking the glass and taking the car's keys. Senior Constable Keith FURNER rushed towards the passenger side of Black Commodore where he saw that its rear window was open about 10-15 centimetres. He grabbed the top of the window with his hands and pulled on the frame.

Sequence 4

12. Instead of stopping and complying with police requests and efforts to cease his criminal conduct, the offender committed the offence charged in sequence 4. He used the Black Commodore intending to prevent his lawful apprehension. The offender reversed at speed, the several police officers standing behind the Black Commodore jumped out of the way to avoided being hit and the Black Commodore hit a police car causing minor damage to the bumper of the police car. Then it accelerated forward towards other police officers, most of whom jumped out of the way.

13. Senior Constable SNEESBY was standing behind the Black Commodore as it reversed and jumped out of the way. However, the Black Commodore clipped his right knee.

Sequence 6

14. Constable Jamie GRAHAM, is the victim of the offence committed by the offender in sequence 6. Constable GRAHAM was standing approximately 20 metres from the Black Commodore as it moved towards him. He was struck by it. He contacted the top of the bonnet of the Black Commodore before dropping onto the road. Constable GRAHAM sustained a dislocated right shoulder, which required him to wear a sling for a fortnight. He took pain medication and underwent physiotherapy to aid his recovery.

Sequence 8

15. Senior Constable FURNER is the victim of the offence committed by the offender in sequence 8. He was also struck by the Black Commodore when it accelerated forward. He was thrown onto the bonnet of another police vehicle. Senior Constable FURNER sustained moderate posterior disc bulges on his spine and a broken back left molar tooth that required dental treatment.

16. He continues to experience ongoing back pain that adversely impacts his sleep, which in turn necessitates medication. He underwent physiotherapy treatment and has had to modify his approach to work tasks and exercise.

Sequence 1 (continued)

17. While the offender was driving the Black Commodore towards the police officers, some police officers discharged a total of 10-15 bullets at the Black Commodore. The offender drove away on a T-way which is reserved for authorised buses and associated service vehicles. He stopped at a bus stop where the passenger Daniel Robinson got out, placed his hands on his head and surrendered to Police. The offender continued on the T-Way and merged back onto Old Windsor Road, before he turned left onto Sunnyholt Road, and then subsequently made his way onto the M7 motorway, M4 motorway and then onto the Great Western Highway.

18. At about 10:50am, Police received three 000 calls from members of the public who reported the offender's erratic driving, weaving in and out of traffic along the M7 and M4. The Black Commodore was monitored moving northwest and eventually into the Blue Mountains area.

19. At around 11am, the Black Commodore stopped to fill up at a Shell Service Station at Blaxland along the Great Western Highway before continuing on the Great Western Highway. He drove in the right lane and came to be behind a blue 2017 Suzuki Swift motor car driven by the pregnant Ms Katelyn HORNBY. Her 3-year-old son was seated in a back seat. Without indicating, the Black Commodore moved into the left lane and tailgated the car in front of it. Then the Black Commodore moved from the left lane into the right lane and in front of a white Hiace van, causing it to dramatically stop and the blue Suzuki to impact the rear of the van, thereby damaging the left headlight, hood and side of the blue Suzuki. Ms HORNBY suffered from pain to her abdomen. She feared losing her unborn child. She attended a hospital following the incident, where she was examined and monitored. She was unable to work for 5 days due to the pain she experienced because of the accident.

20. Travelling in two unmarked Landcruisers were members of the Tactical Operation Unit of the NSW Police Force who had been deployed to stop the offender. And they did. At about 11:30am, one of those Landcruisers collided with the front of the Black Commodore which was pushed onto the median strip and came to a stop. Police surrounded the Black Commodore, and the resisting offender was eventually subdued. By that time around 30 police officers were involved in the pursuit of the accused.

21. The offender was placed under arrest and then taken to Katoomba Hospital. During a conversation between Police and the offender under caution, the offender stated, "Can you tell those cops I'm sorry, I didn't realise I hit them until I looked back". He also told Police that he had consumed the drug ice the previous night. When asked how much ice he consumed, the offender replied, "too much".

Sequence 9 (on the Form 1 attached to sequence 1)

22. Subsequent testing detected the presence of methylamphetamine, amphetamine and morphine in the offender's blood. By driving with such illicit drugs in his blood, Mr Ebsworth committed the offence in charge sequence 9 on the Form 1 document attached to sequence 1.

THE OFFENDER

23. I have had the benefit of the February 2022 judgment of Judge Ellis who sentenced Mr Ebsworth for robbery in company and two counts of failing to stop during a police pursuit and driving dangerously committed in 2020. I have also had regard to Mr Ebsworth's extensive history of criminal convictions, and the breach of parole report dated 14 July 2023. The personal history of the offender is recounted in the reports of the forensic psychologist Jason Borkowski dated 31 July 2024 and the consultant psychiatrist, Dr Matthew Tagkalidis dated 2 August 2022. All of that material is internally and mutually consistent.

R v Qutami Considerations

24. The proposition that a sentencing court should not necessarily afford weight to untested statements made to, and then repeated by, third parties, has its origin in R v Qutami [2001] NSWCCA 353. In Qutami, Smart AJ made a "general observation" at [58] that "very considerable caution should be exercised" in relying upon statements made by a prisoner to a psychiatrist or a psychologist when the prisoner does not give evidence. As McCallum JA, as her Honour then was, and with whom Hamill and Cavanagh JJ agreed, said in Lloyd v The Queen [2022] NSWCCA 18 at [45]:

"Smart AJ's general observation in Qutami is sometimes mistaken for a principle. It is not. If it were, it would be a wrong principle which required correction. Leaving aside the fact that the rules of evidence do not apply to proceedings on sentence unless the court so directs, the weight to be given to particular kinds of evidence in such proceedings cannot be pre-empted as a matter of principle. The weight and cogency of the evidence is always a matter for the individual assessment of the sentencing judge."

25. Her Honour went on to observe that:

"The current practice of the District Court is to require any report prepared by a mental health expert to be served in advance of the sentence hearing: District Court Criminal Practice Note 20, cl 15. The clear purpose of that practice is to afford the Crown an opportunity to consider whether to accept or challenge the contents of such reports. [ … ]

"Where the report of a mental health professional is admitted without objection, qualification as to its use or cross-examination of the author, no principle of law requires the sentencing judge to exercise "very considerable caution" before relying on its contents absent evidence from the offender. It is by no means beyond debate that the court is the only forum in which a reliable medical history can be obtained. To sweep aside the considered opinions of medical experts with clinical experience in taking psychosocial histories and assessing their significance is, with respect, a lawyerly arrogance."

The Offender's Personal History

26. I find the following facts concerning Mr Ebsworth. He was born in Orange, NSW and identifies as a Wiradjuri and Dunghutti man. In his childhood he lived mostly in the western suburbs of Sydney, where he was raised by his biological parents. At around 9-10 years of age, Mr Ebsworth advised he was placed into foster care, and due to frequently changing foster care placements in his late childhood and adolescence he had numerous residential locations throughout NSW.

27. He has several siblings and continues to be supported by them and his mother.

28. Mr Jason Borkowski summarised the personal history of the offender in the following terms.

"Mr Ebsworth presents with a significantly disadvantaged upbringing in which he was exposed to a range of developmental vulnerabilities. That includes a dearth of parental support or nurturance, and an overall lack of adequate parental care and role-modelling. In his domestic and familial environment, Mr Ebsworth was exposed to illicit substance abuse by his parents, as well as witnessing and being victim of violence and abuse perpetrated by his father.

"As a result of those circumstances, Mr Ebsworth was removed from the custody of his parents at around 9-10 years of age, and thereafter he had minimal stable care arrangements, due to frequently being placed into multiple different foster care settings. Further complicating his developmental history are reported instances of being [ REDACTED ] abused in one of Mr Ebsworth's early foster placements, by an older female foster carer. [ … Mr Ebsworth attended … ] multiple different schools and [had] limited opportunities to establish and maintain secure and stable social connections, or adhere to his educational responsibilities.

" … Mr Ebsworth started experimenting with the use of cannabis at approximately 11 years of age, and he reported patterns of ongoing cannabis use thereafter. Similarly, Mr Ebsworth also began using 'Ice' and MDMA from around 12 years of age onwards, and he established and maintained a physical and psychological dependence on illicit substances primarily 'Ice', interspersed with a several year period of Heroin use, which continued until the time of the current offence.

"Mr Ebsworth maintained a severe physical and psychological dependence on 'Ice' throughout his mid to late adolescence, and it appears those substances also became a means of suppressing negative affectivity, and unwanted or uncomfortable emotions associated with past experiences of abuse and trauma and associated psychological discomfort. In turn however, Mr Ebsworth's substance abuse likely exacerbated his negative moods, and thus his drug and alcohol use, and his psychological symptoms became cyclical and bi-directional in their interactions."

29. When Judge Ellis sentenced Mr Ebsworth to an aggregate sentence of imprisonment for five years with a non-parole period of two years and six months that expired on 18 June 2023, his Honour remarked that, "the stressful and chronic nature of [Mr Ebsworth's] development history has likely interfered with the normal development of the frontal areas of his brain, where higher level cognitive processes take place, such as emotional and behavioural regulation and moral reasoning and judgment."

30. Dr Tagkalidis concluded that as at the time he conducted his examination and assessment on 4 August 2022, Mr Ebsworth was suffering from a chronic Dysthymic Disorder otherwise known as a Persistent Depressive Disorder, complex Post Traumatic Stress Disorder with associated personality disruption (of an Antisocial type) and Polysubstance Use Disorder. The contributing causes were said to be the early family abuse and probable neglect, subsequently followed by [ REDACTED ] abuse that included [ REDACTED ] at the juvenile justice centre he was being detained in at the age of 14 years.

29. I understand that the diagnoses by Dr Tagkalidis means that Mr Ebsworth's mental ill-health historically manifested itself in, "variable concentration with persistent feelings of hopelessness, worthlessness and suicidality". As Dr Tagkalidis went to state that his diagnosis also reflects the fact that [Mr Ebsworth] has, "ingested polysubstances maladaptively in a recurrent, excessive and potentially hazardous manner producing some social and occupational dysfunction and has been unable to reduce his intake despite knowledge and advice that it is clearly unhealthy".

30. It is understatement to describe the prognosis opined by Dr Tagkalidis as being grim. According to Dr Tagkalidis, the forecast for Mr Ebsworth,

"remains extremely poor, and will be so for the foreseeable future. He will continue to struggle on the very margins of society, in relationships, internally and in life in general for the foreseeable future. He is at medium and long term risk of premature death due either to suicide or misadventure."

33. This sad history of a profoundly deprived childhood and adolescence goes a long way in explaining why Mr Ebsworth lasted less than a month in the community before his parole was revoked because he committed the offences of the 13 July 2023, in circumstances aggravated by his unsatisfactory response to parole supervision.

34. Mr Ebsworth told Mr Borkowski that in the weeks between being released on parole on 18 June 2023 and being arrested on 13 July 2023, he attempted to establish himself in the community, and abstain from illicit substance use. However, Mr Ebsworth said that he lacked the internal resources or external supports to enable him to effectively cope with the challenges he was confronted with and a perceived lack of progress in settling into the community. Mr BORKOWSKI recounts that Mr Ebsworth lost hope, re-established connections with antisocial acquaintances, and relapsed to further use of the prohibited drug methylamphetamine.

35. Mr Borkowski continued in his report to state that,

"At the time of the offence Mr Ebsworth reported he had consumed [methylamphetamine] consistently for a number of days prior, and in his intoxicated state he engaged in irrational, and unfortunately harmful behaviour. Mr Ebsworth maintained having minimal clear decision-making abilities, and he was unable to offer any insights into his specific intentions at the time of the offending, apart from attempting to evade police".

Pleas of Guilty and Remorse

36. Mr Ebsworth pleaded guilty to the principal (or present) offences for which he is to be sentenced. The utilitarian value of those pleas of guilty entitle him to a discount of 25% from the otherwise appropriate sentence. Additionally, I accept that the offender has shown genuine remorse and victim empathy. Indeed, and as earlier noted, after he was arrested and cautioned, he said to the arresting officers, "Can you tell those cops I'm sorry, I didn't realise I hit them until I looked back".

37. According to Mr Borkowski, "Mr Ebsworth expressed what appeared to be genuine remorse and victim empathy. He did not attempt to minimise or justify his behaviour, nor did he express any attitudes or beliefs to suggest he condones or is supportive of violent behaviour, or antisocial behaviour generally".

The Future

38. According to Mr Borkowski, Mr Ebsworth, "also reported being motivated to abstinent from ongoing substance abuse, and he indicated his willingness to engage in any treatment available to him as means of trying to cease his drug use and establish a more stable and responsible lifestyle." Mr Borkowski opines that, "Mr Ebsworth presents with comorbid DSM-5 Disorders which are able to be effectively managed through combined Cognitive-Behavioural Therapy (CBT), psychosocial intervention, and pharmacological treatment." The support of his mother and siblings is a positive factor in the assessment of the prospects of the offender's rehabilitation, although it is not possible to further quantify it.

OBJECTIVE SERIOUSNESS and MORAL CULPABILITY

39. The objective seriousness of the crime is a separate consideration from the notion of the offender's moral culpability. I accept that in assessing the objective seriousness of an offence, regard may be had to factors personal to the offender that materially contributed to the offending. That includes the factors that go to the mens rea of the offence such as motive, mental illness or cognitive impairment.

40. I acknowledge that the maximum penalties of the present offences and any standard non-parole period are legislative guideposts to be taken into account as part of the instinctive synthesis that characterises the sentencing process.

Planning and Public Safety

41. Although there was "some level of planning" involved in each of the offences for which the offender is to be sentenced, I am not satisfied that they were part of a planned, organised criminal activity such as to constitute an aggravating factor on sentence.

42. Similarly, although the principal offences were committed without regard for public safety, the offender's conduct was so very aligned with the elements of the offences that the disregard for public safety ought not sound in further aggravation.

Distance and Time

43. The offender failed to stop when directed to do so by police and drove dangerously, including at excessive speeds, in attempting to outrun or otherwise avoid the police for such a considerable distance over a two-hour period that those two factors - distance and time - aggravate the objective seriousness of sequence 1.

Past Convictions and Conditional Liberty

44. The police pursuit offence charged in sequence 1 is the third such offence the offender has committed in under 4 years. I have taken that, and his other past convictions, into account in the manner set out by five judges of the Court of Criminal Appeal in R v McNaughton (2006) 66 NSWLR 566. That means the offender's previous convictions do not themselves play a role in determining the objectivity gravity of the offence. However, it is fair to say that the offender's criminal history demonstrates an attitude of disobedience to the law and the need to consider increasing the weight to be given to retribution, to personal deterrence and the protection of society.

45. Mr Ebsworth was released on parole on 18 June 2023. On 13 July 2023 when he committed the offences for which is to be sentenced today, he was serving the unexpired balance of the head sentence imposed upon him for offences he committed in the Newcastle area, including two police pursuit offences. He was therefore on conditional liberty when he committed the offences of 13 July 2023.

46. The courts have long recognised that the commission of an offence whilst the offender is subject to a form of conditional liberty is an aggravating factor at sentence. However, as with an offender's antecedent criminal convictions it is not to be considered as part of the objective seriousness of the offence or offences.

47. The commission of an offence whilst an offender is subject to conditional liberty affects the personal circumstances of the offender such as by casting doubt on an offender's prospects of rehabilitation. As with an offender's antecedent criminal convictions it requires consideration of increasing the weight to be given to retribution, to personal deterrence and the protection of society.

The Additional Charges attached to Sequence 1

48. As earlier stated, there are two additional charges on the Form 1 document attached to sequence 1, namely, sequence 2, a charge of driving whilst disqualified and sequence 9, a charge of driving whilst the illicit drug methylamphetamine was in the offender's blood. In accordance with well-settled authority, this court will take those two additional charges into account, with a view to considering an increase in the penalty that would otherwise be appropriate for sequence 1.

49. However, the manner and degree to which those two Form 1 offences impinge upon elements relevant to sentencing for the sequence 1 depend on the interplay of a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason, it is inappropriate to attempt to a quantification of the effect on the sentence of taking into account the Form 1 offences.

Re: Sequence 4

50. As far as sequence 4 is concerned, I have reminded myself of the decision in R vHamilton (1993) 66 A Crim R 575, in which the appellant Hamilton had been convicted of using an offensive instrument with intent to prevent his lawful apprehension in contravention of section 33B of the Crimes Act 1900. He drove his car directly at a police officer who was attempting to arrest him. In dismissing the appeal against sentence, Gleeson CJ (with whom Hunt CJ at CL and Ireland J agreed) said at 581:

" … offences against section 33B, 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. The risks that were run by the police officers who were involved in the present case were substantial."

Re: Sequences 6 and 8

51. As far as sequences 6 and 8 are concerned, the injuries sustained by Constables Graham and Furner are not the most serious instances of actual bodily harm, however, as the prosecutor put it in his submissions, the conduct was brief, but it was ferocious and no doubt frightening for the officers involved.

Profound Childhood Deprivation

52. The way an offender's background interacts with the purposes of sentencing in section 3A of the Crimes (Sentencing Procedure) Act 1999, relevant sentencing principles and the exercise of judicial discretion is complex. Giving proper effect to an offender's background of deprivation and disadvantage in criminal proceedings was considered by the High Court in Bugmy v the Queen (2013) 249 CLR 571 and Munda v Western Australia (2013) 249 CLR 600.

53. As the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is appropriate to give "full weight" to an offender's deprived background in every sentencing decision, although that does not mean that they must or should be given the same weight in every case. It is apparent that the principles in Bugmy are readily engaged in the circumstances of the offender.

54. I have concluded that there was a causal connection between the Mr Ebsworth's profoundly deprived upbringing and his offending behaviour. That conclusion justifies my further conclusion that his moral culpability is reduced so as to moderate the weight to be given to personal and general deterrence, to a degree. As to latter, I note that in the case of Lloyd v The Queen cited earlier, McCallum JA (with whom Hamill and Cavanagh JJ agreed) said (at [42]):

"Wherever one stands on the policy debate about general deterrence, that purpose of sentencing is not understood to require sentencing judges to send a strong message to would-be criminals that they should avoid a dysfunctional childhood".

Youth

55. It is well-settled that an offender's youth is a recognised mitigating factor and, generally, the younger the offender, the greater the weight it should be given. Mr Ebsworth was 21 years old, and therefore at adult at law, when he committed the present offences on 13 July 2023.

56. However, the relevance of youth does not solely depend upon the offender's biological age. The cognitive, emotional and/or psychological immaturity of a young person is a recognised contributor to a young person's breach of the law. Where that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years: R v Hearne [2001] NSWCCA 37 at [25].

Mental Ill-Health

57. The principles to be applied when sentencing a mentally ill or cognitively impaired offender are well-known: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 per McClellan CJ at CL at [177]. An offender's mental condition can have the effect of reducing their moral culpability. General deterrence, retribution and denunciation may have less weight, especially where the mental condition contributes to the commission of the offence in a material way. In the circumstances of the present offences and this offender a sensitive discretionary decision is called for.

58. The repeated offending by Mr Ebsworth raises the concern that he is someone who, because of his mental ill-health, poses more of a danger to the community. However, that cannot lead to a heavier sentence than would be appropriate if the offender had not been suffering from a mental abnormality. Equally relevant is the concern that imprisonment has and will exacerbate the offender's mental ill-health.

59. As earlier stated, the offender's profound childhood deprivation and exposure to trauma significantly contributed to his mental ill-health and that it is important not to double count for the same factor.

Self-Induced Intoxication

60. I am also conscious of the need to properly identify the role and consequences of the offender's self-induced intoxication at the time of the present offences.

61. In 1999, the NSWCCA delivered the guideline sentencing judgment in R v Henry (1999) 46 NSWLR 346 in which Spigelman CJ stated at [197]: "drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary, just as it varies for individuals who are not affected by addiction".

62. In any event, since the January 2014 introduction of section 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999, an offender's intoxication cannot sound in mitigation of penalty. Section 21A(5AA) states that in, "determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor". Subsequent judicial consideration of s21A(5AA) has confirmed that point. In Fisher v R [2021] NSWCCA 92, Adamson JA (with whom Fullerton J agreed) held (at [225]) that section 21A(5AA), prevents a sentencing court such as this one, from taking into account self-induced intoxication to explain an offender's conduct, where such explanation reduces the offender's moral culpability and/or the objective seriousness of the offending.

63. Accordingly, I bear that in mind when considering the opinion of the psychologist Jason Borkowski who states in his report:

"When considering the disadvantage he experienced in his formative years, and the apparent inadequacy of appropriate role-modelling in his life, Mr Ebsworth was limited in his opportunities to develop and maintain a stable and functional lifestyle, and he described ongoing patterns of instability and dysfunction in various aspects of his life, including up to the time of the current offence. That included periods of incarceration in both juvenile and adult correctional facilities, where his antisocial connections and lifestyle was further reinforced.

"I am of the opinion that Mr Ebsworth's actions occurred in the context of his ongoing dysfunctional lifestyle at the time, and were a function of his substance abuse and his associated level of drug intoxication at the time of the offence, which when combined, impaired his capacity for rational judgement and decision making."

CONSIDERATION AND CONCLUSIONS (SYNTHESIS)

64. Although variably moderated or heightened, all of the purposes of sentencing are engaged in this case. Those purposes are articulated in s 3A Crimes (Sentencing Procedure) Act. I have received and considered the submissions by the prosecutor and counsel for the offender. I have concluded that notwithstanding the significant subjective matters that mitigate the moral culpability of the offender, it remains that these offences each demand a sentence that will protect the community and appropriately denounce the offending, and deter the offender and others so minded to commit such crimes. In the circumstances of this case, having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate.

Totality

65. As a result of his further offending, the State Parole Authority revoked the offender's parole. That balance of the term of imprisonment he is serving expires on 18 December 2025. But for awaiting the resolution of sentencing for the 13 July 2023 offences, Mr Ebsworth was eligible to apply for release on parole since that date. Where a court sentences an offender serving an existing sentence and/or for multiple offences, the overall sentence must be "just and appropriate" to the totality of the offending behaviour. Totality both constrains and sets a lower limit and is "not-unrelated" to the principle of proportionality.

66. I am conscious that in adjusting the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences, the totality principle must be applied without a suggestion that a discount is being given for multiple offences. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending.

67. The same consideration applies to the commencement date for the sentence to imposed upon the offender for the 13 July 2023 offences. I consider it is important to bear in mind that having served the non-parole period of the sentence imposed upon him by Judge Ellis, by 18 June 2023, Mr Ebsworth had spent the minimum period of necessary actual incarceration, having regard to all the objectives of sentencing.

68. I have had regard to a further two particular matters. First, there is a direct but not exclusive connection between the offences committed on 13 July 2023 and the reason for the revocation of parole that occurred with effect from that same day. Secondly, I have had regard to the fact that a month or so after Mr Ebsworth turned 18 years of age in October 2019 he was in continuous custody from 27 November 2019 to 24 August 2020 (9 months), from 5 October 2020 to 18 June 2023 (2 years, 8 months, 14 days) and from 13 July 2023 to date (1 year, 1 month, 11 days). In other words, Mr Ebsworth has spent less than 6 months out of gaol since he turned 18 years of age in 2019.

Community Protection, Rehabilitation and Special Circumstances

69. The prognosis advanced by Mr Borkowski includes his identification of a number of dynamic risk factors that should be targets of intervention concerning the treatment and management of Mr Ebsworth's drug use and offending. The cognitive behaviour therapy recommended by Mr Borkowski as being highly effective in managing substance use disorders and the potential to treat past trauma and associated mood disorders is apparently available if Mr Ebsworth entered an intensive and long-term residential drug rehabilitation program.

70. That possibility is conditional upon a sentence other than full-time imprisonment. Mr Borkowski is of the view that if a custody-based sentence is the outcome for Mr Ebsworth, the most suitable program to assist him would be the Compulsory Drug Treatment Program, although his offences may preclude him from being eligible for the program.

71. On any reasonable view, Mr Ebsworth will need an extended period of parole supervision to ensure he has access to and support in establishing and engaging with relevant professional service providers. In the long term, the protection of the community will most likely be achieved by the rehabilitation of the offender. That justifies a finding of special circumstances to set a balance of the term of the sentence that significantly exceeds one-third of the non-parole period of the aggregate sentence that will be imposed.

69. Along with the offender's pleas of guilty, that finding also explains why, when indicating the sentences for sequences 6 and 8 the non-parole period will be less than the standard non-parole period.

IMPOSITION OF SENTENCE

73. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, I will impose an aggregate sentence of imprisonment instead of imposing a separate sentence of imprisonment for each.

74. The sentence that would have been imposed for each offence (after taking into account the 25% discount for the utilitarian value of the plea of guilty) had separate sentences been imposed instead of an aggregate sentence is as follows:

• On charge sequence 1, the offence of failing to stop whilst pursued by police and driving dangerously, I indicate a sentence of imprisonment for 2 years and 3 months.

• On charge sequence 4, the offence of using an offensive weapon to prevent his lawful apprehension, I indicate a sentence of imprisonment for 4 years.

• On charge sequences 6 and 8, the offences of assaulting, and thereby occasioning actual bodily harm to a police officer in the execution of his duty, I indicate for each sequence a sentence of imprisonment for 3 years and a non-parole period of 1 year and 9 months.

Orders

75. Brandon Ebsworth, the orders of this Court are as follows:

1. You are convicted of charge sequences 1, 4, 6 and 8 on the Amended Charge Certificate dated 24 April 2024.

2. You are sentenced to an aggregate term of imprisonment for 5 years and 9 months.

3. That sentence is backdated to commence on 13 August 2023. It expires on 12 May 2029.

4. Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a non-parole period of 3 years and 3 months is set. It expires on 12 November 2026.

5. I am satisfied that there are grounds on which the Drug Court might find that you are an eligible convicted offender, and accordingly I refer you to the Drug Court to determine whether you should be the subject of a compulsory drug treatment order.

6. I recommend that the report of the psychologist Jason Borkowski accompanies the warrant of commitment and is provided to the Drug Court registry, Justice Health and the State Parole Authority as soon as possible.

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Decision last updated: 27 August 2024