Medium Neutral Citation: R v Flentjar [2023] NSWDC 115
Hearing dates: 1 February 2023
Date of orders: 1 February 2023
Decision date: 01 February 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence 5 years imprisonment - non-parole period of 3 years

Catchwords:
CRIMINAL LAW - Police pursuit - not stop - drive at speed - Aggravated dangerous driving occasioning GBH - escaping pursuit - Fail to stop and assist after vehicle impact causing GBH - Police pursuit - not stop - drive dangerously - 2nd+off= Drive motor vehicle during disqualification period - 2nd+off - Take & drive conveyance w/o consent of owner -Assault police officer in execution of duty - Custody of knife in public place - subsequent offence - Drive motor vehicle during disqualification period - 2nd+off - Use unregistered registrable Class A motor vehicle on road - Use uninsured motor vehicle - Use class A vehicle displaying misleading number plate
SENTENCING – Relevant factors on sentence - early guilty plea- multiple driving related offences – two incidents involving police pursuits – desperately sad personal circumstances - no rehabilitation while in custody – traumatic incidents in custody - serious and persistent offending - drug and alcohol counselling and abstinence from drugs and alcohol recommended - lesser moral culpability - specific deterrence still required

Legislation Cited:
Crimes Act 1900
Crimes (Sentence Procedure) Act 1999

Cases Cited:
Attorney General's Application number 2 of 2002 [2002] NSWCCA 515
Bugmy v The Queen (2013) 249 CLR 571; ]2013] HCA 37
Clarke-Jeffries v R [2019] NSWCCA 56
Director of Public Prosecutions v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA
Hearne v R [2001] NSWCCA 37
Hoskins v R [2020] NSWCCA 18
KT v R [2008] NSWCCA 51
Legge v R [2007] NSWCCA 244
Nasrallah v R [2021] NSWCCA 207
R v Butler & Russel [2021] NSWDC 666
R v Errington [2005] NSWCCA 348
R v R v Gavel [2014] NSWCCA 56
R v Howland [1999] NSWCCA 10
R v Khatter [2000] NSWCCA 32
R v McKeown [2013] NSWDC 22
R v Millwood [2012] NSWCCA 2 at [69]
R v Musumeci NSWCCA, unreported, 30/10/97
R v Smith [2016] NSWCCA 75
Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14
Whyte v R [2002] NSWCCA 343; (2002) 55 NSWLR 252

Category: Sentence
Parties: Caleb Flentjar (Offender)
Director of Public Prosecutions
Representation: Solicitors:
N Ashby Legal Aid NSW
J Azad Director of Public Prosecutions

File Number(s): 2022/00060511, 2022/00126606

Judgment- Ex tempore revised

Introduction

This morning, Caleb Flentjar confirmed guilty pleas that were entered at the earliest opportunity in the Local Court. The pleas related to a number of serious offences that occurred during two incidents.
The first incident was on 29 December 2021. It involved a police pursuit. Flentjar was driving a vehicle that was unregistered, uninsured and displaying misleading number plates. He was also, as he well knew, disqualified from driving.
On 29 January 2022, he was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Flentjar

Details

AGLC: R v Flentjar [2023] NSWDC 115
Case: [2023] NSWDC 115
Decision Date: 01 February 2023

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of R v Flentjar involved an individual who was charged with multiple serious criminal offences. The accused was involved in two separate incidents where he engaged in dangerous driving while being pursued by police, resulting in significant harm to another person. Additionally, the accused was charged with other driving offences, possession of a knife in a public place, assault on a police officer, and driving a vehicle while disqualified, among other things. The court was tasked with determining the appropriate sentences for these multiple charges and considering the relevant factors that should be taken into account in sentencing.

The legal issues before the court included the appropriate penalties for the various offences and the consideration of mitigating factors that could influence the severity of the sentences. The court had to balance the need for specific deterrence and general deterrence with the personal circumstances of the accused, including his early guilty plea, his history of drug and alcohol abuse, and his lack of rehabilitation while in custody. The court also had to consider the severity of the harm caused by the accused's actions and the need to protect the community from further offending.

In delivering the judgment, the court noted the seriousness of the offences, particularly the harm caused to another person during the police pursuits. However, the court also took into account the accused's early guilty plea, his desperate personal circumstances, and his lack of rehabilitation while in custody. The court emphasised the need for specific deterrence and the importance of sending a strong message to the accused and others about the consequences of engaging in such dangerous and criminal behaviour. Ultimately, the court determined that an aggregate sentence of five years imprisonment, with a non-parole period of three years, was appropriate in the circumstances.

The court ordered that the accused be imprisoned for a total of five years, with a non-parole period of three years. This sentence reflects the seriousness of the offences and the need for both specific and general deterrence, while also taking into account the mitigating factors presented by the accused. The court recommended that the accused participate in drug and alcohol counselling and abstain from drugs and alcohol during his sentence.

Orders

Orders of the court

Aggregate sentence 5 years imprisonment - non-parole period of 3 years

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Flentjar [2023] NSWDC 115

Most Recent Citation

Flentjar v The King [2023] NSWCCA 303

Cases citing this decision · 1 of 1 shown

Flentjar v The King
[2023] NSWCCA 303

…2022/060511; 126606 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2023] NSWDC 115 Date of Decision: 1 February 2023 Before: Haesler SC DCJ File Number(s): 2022/060511; 126606…

View all 1 citing cases →

Cases cited in this decision · 20 of 20 shown

R v Butler; R v Russell
[2021] NSWDC 666 Para 26

…as a lawyer and judge I have had to deal with the consequences of motor vehicle fatalities on the roads involved. Most recently R v Butler & Russell [2021] NSWDC 666.…
Nasrallah v R
[2021] NSWCCA 207 Para 77

…ctims of sexual assault who come to be sentenced. They are always relevant by way of mitigation, and are never devalued by the Courts : Nasrallah v R [2021] NSWCCA 207…
Hoskins v R
[2020] NSWCCA 18 Para 36

…alty, the facts of this matter mean that he could not bear the same degree of moral culpability as for the more serious s 52A(4) offence: Hoskins v R [2020] NSWCCA 18 at [14]-[15]. But, nevertheless, it was another example of Flentjar’s complete lack of concern for others.…
Clarke-Jeffries v R
[2019] NSWCCA 56 Para 80

…nised that emotional maturity and impulse control develop progressively and may not be developed until the person's mid-twenties: Clarke-Jeffries v R [2019] NSWCCA 56 . This is particularly the case where there are other matters in the person's background that impair their capacity to mature and control their impul…
R v Jarad Smith
[2016] NSWCCA 75

…Khatter [2000] NSWCCA 32 R v McKeown [2013] NSWDC 22 R v Millwood [2012] NSWCCA 2 at [69] R v Musumeci NSWCCA, unreported, 30/10/97 R v Smith [2016] NSWCCA 75 Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14 Whyte v R [2002] NSWCCA 343; (2002) 55 NSWLR 252 Category: Sentence Parties: Caleb Flentjar (…
R v Gavel
[2014] NSWCCA 56 Para 77

…into account that such offences can have a profound and highly detrimental impact on a person assaulted, particularly if they are a child: R v Gavel [2014] NSWCCA 56. Th ose principals apply to victims of sexual assault who come to be sentenced. They are always relevant by way of mitigation, and are never devalued…
Bugmy v The Queen
[2013] HCA 37 Para 81

…ongness of his actions, or has the capacity, as others do, to control his actions. That background must be given full weight by me: Bugmy v The Queen (2013) 249 CLR 571; ]2013] HCA 37.…
R v McKeown
[2013] NSWDC 22

…SWDC 666 R v Errington [2005] NSWCCA 348 R v R v Gavel [2014] NSWCCA 56 R v Howland [1999] NSWCCA 10 R v Khatter [2000] NSWCCA 32 R v McKeown [2013] NSWDC 22 R v Millwood [2012] NSWCCA 2 at [69] R v Musumeci NSWCCA, unreported, 30/10/97 R v Smith [2016] NSWCCA 75 Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; […
R v Millwood
[2012] NSWCCA 2 Para 84

…fewer emotional or other resources to guide his decisions. Although that does not mean he does not bear responsibility for his actions: R v Millwood [2012] NSWCCA 2 at [69]..…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194

…ral's Application number 2 of 2002 [2002] NSWCCA 515 Bugmy v The Queen (2013) 249 CLR 571; ]2013] HCA 37 Clarke-Jeffries v R [2019] NSWCCA 56 Director of Public Prosecutions v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA Hearne v R [2001] NSWCCA 37 Hoskins v R [2020] NSWCCA 18 KT v R [2008] NSWCCA 51 Legge v R [2007] NSWCCA 244 Nasrallah v R [2021] N…
KT v R
[2008] NSWCCA 51 Para 78

…ure. There is a general sense in practice that lesser sentences can be imposed on youthful offenders than adults: Hearne v R [2001] NSWCCA 37: KT v R [2008] NSWCCA 51:…
Legge v R
[2007] NSWCCA 244 Para 53

…o account. The guideline is not set as tram lines and should not be used to impermissibly confine the exercise of my sentencing discretion: Legge v R [2007] NSWCCA 244, at [59]. A guideline is not a starting point, but it is an indication of principle which Courts must take into account: R v Errington [2005] NSWCCA…
R v Whyte
[2006] NSWCCA 75 Para 33

…the dangerous driving offence there is a guideline judgment; which is helpfully summarised in both written submissions: Whyte v R [2002] NSWCCA 343; (2002) 55 NSWLR 252 . I will take it into account, as is required: s 42A Crimes (Sentence Procedure) Act 1999 .…
R v Errington
[2005] NSWCCA 348 Para 53

…07] NSWCCA 244, at [59]. A guideline is not a starting point, but it is an indication of principle which Courts must take into account: R v Errington [2005] NSWCCA 348.…
Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002)
[2002] NSWCCA 515 Para 37

…he penalties imposed, indicate their support for the police's authority in maintaining law and order: Attorney General's application number 2 of 2002 [2002] NSWCCA 515 .…
R v Whyte
[2002] NSWCCA 343 Para 33

…the seriousness of the dangerous driving offence there is a guideline judgment; which is helpfully summarised in both written submissions: Whyte v R [2002] NSWCCA 343; (2002) 55 NSWLR 252 . I will take it into account, as is required: s 42A Crimes (Sentence Procedure) Act 1999 .…
R v Hearne
[2001] NSWCCA 37 Para 78

…young; he is still immature. There is a general sense in practice that lesser sentences can be imposed on youthful offenders than adults: Hearne v R [2001] NSWCCA 37: KT v R [2008] NSWCCA 51:…
R v Khatter
[2000] NSWCCA 32 Para 32

…Section 52A I offences have shades and gradations of moral culpability: R v Howland [1999] NSWCCA 10: R v Khatter [2000] NSWCCA 32, at [31]…
R v Howland
[1999] NSWCCA 10 Para 32

…Section 52A I offences have shades and gradations of moral culpability: R v Howland [1999] NSWCCA 10: R v Khatter [2000] NSWCCA 32, at [31]…
Veen v The Queen (No 2)
[1988] HCA 14 Para 42

…alty is warranted with additional focus on retribution, deterrence and protection of the community: Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14.…

Legislation cited in this decision · 2

Crimes (Sentence Procedure) Act 1999 (NSW)
1 mention (from Para 33)
Crimes Act 1900 (ACT)
1 mention (from Para 26)

Medium Neutral Citation:	R v Flentjar [2023] NSWDC 115
Hearing dates:	1 February 2023
Date of orders:	1 February 2023
Decision date:	01 February 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence 5 years imprisonment - non-parole period of 3 years
Catchwords:	CRIMINAL LAW - Police pursuit - not stop - drive at speed - Aggravated dangerous driving occasioning GBH - escaping pursuit - Fail to stop and assist after vehicle impact causing GBH - Police pursuit - not stop - drive dangerously - 2nd+off= Drive motor vehicle during disqualification period - 2nd+off - Take & drive conveyance w/o consent of owner -Assault police officer in execution of duty - Custody of knife in public place - subsequent offence - Drive motor vehicle during disqualification period - 2nd+off - Use unregistered registrable Class A motor vehicle on road - Use uninsured motor vehicle - Use class A vehicle displaying misleading number plate SENTENCING – Relevant factors on sentence - early guilty plea- multiple driving related offences – two incidents involving police pursuits – desperately sad personal circumstances - no rehabilitation while in custody – traumatic incidents in custody - serious and persistent offending - drug and alcohol counselling and abstinence from drugs and alcohol recommended - lesser moral culpability - specific deterrence still required
Legislation Cited:	Crimes Act 1900 Crimes (Sentence Procedure) Act 1999
Cases Cited:	Attorney General's Application number 2 of 2002 [2002] NSWCCA 515 Bugmy v The Queen (2013) 249 CLR 571; ]2013] HCA 37 Clarke-Jeffries v R [2019] NSWCCA 56 Director of Public Prosecutions v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA Hearne v R [2001] NSWCCA 37 Hoskins v R [2020] NSWCCA 18 KT v R [2008] NSWCCA 51 Legge v R [2007] NSWCCA 244 Nasrallah v R [2021] NSWCCA 207 R v Butler & Russel [2021] NSWDC 666 R v Errington [2005] NSWCCA 348 R v R v Gavel [2014] NSWCCA 56 R v Howland [1999] NSWCCA 10 R v Khatter [2000] NSWCCA 32 R v McKeown [2013] NSWDC 22 R v Millwood [2012] NSWCCA 2 at [69] R v Musumeci NSWCCA, unreported, 30/10/97 R v Smith [2016] NSWCCA 75 Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14 Whyte v R [2002] NSWCCA 343; (2002) 55 NSWLR 252
Category:	Sentence
Parties:	Caleb Flentjar (Offender) Director of Public Prosecutions
Representation:	Solicitors: N Ashby Legal Aid NSW J Azad Director of Public Prosecutions
File Number(s):	2022/00060511, 2022/00126606