R v Flentjar

[2023] NSWDC 115

District Court

New South Wales

• Amendment notes

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

1. 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.

2. 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.

3. On 29 January 2022, he was subject to another police pursuit. In the course of that pursuit, he drove dangerously, and as a consequence of his dangerous driving, he hit another car and a person was seriously injured. He failed to stop, and when fleeing the scene, assaulted a police officer. He had taken the motor vehicle without the consent of the owner. He had a meat cleaver in the vehicle. The objective seriousness of every one of his offences for sentence is so high that custodial sentences must be imposed for each of them.

4. It is also clear from the material before the Court that the matters that led up to the commission of these offences and the background of the offender are, as Flentjar’s solicitor, Mr Ashby, said in his submissions, “desperately sad.”

5. In many respects, both the juvenile and adult justice systems have failed Flentjar and the community. Rather than allowing him, during his time in custody, the opportunity for improvement and rehabilitation, he has been subject to traumatic incidents, including sexual assaults. He has not had any opportunity to learn from or appreciate consequence of his actions. As a result, on release, he has, almost immediately, fallen in with criminal associates, and returned to crime. He has not been in a position to take up any assistance that was offered to him.

6. He must be punished for these recent offences. I hope that, as he matures, he will learn enough to know that such behaviour cannot and will not be tolerated. I also hope that when he is released, and during his time in custody, he will be able to get the help that he desperately needs. If not just for his benefit, but for the benefit of the community who continue to suffer from the crimes that he has committed.

The guilty pleas

7. Flentjar’s guilty pleas reflect an acceptance of responsibility. I will take that into account. His guilty pleas mean that the sentences that I will indicate must be reduced by 25%for their utilitarian value.

8. I will be imposing an aggregate sentence. I will take care that those reductions are not eroded by the process of accumulation because there must be accumulation of penalty in relation to the various matters before the Court.

Agreed Facts

9. At about midday on 29 December 2021, police performing speed checks on the M1 motorway near Haywards Bay, in an 80-kilometre zone, observed a silver Mazda exceeding the speed limit. The offender was driving the vehicle. It was uninsured and unregistered. That vehicle was displaying number plates that were not allocated to the vehicle. Those plates have been stolen from another car. Flentjar is not charged with nor is he to be punished for that offence.

10. There were two passengers in the vehicle. Despite the fact that he was on parole at the time, and despite the fact that he was disqualified from driving, the offender brought himself to the notice of police by speeding. This demonstrated his immaturity, his lack of foresight and lack concern for himself and others. Police estimate that at times the vehicle was travelling at more than 140 kilometres per hour.

11. Police pursued the speeding vehicle. The police car’s warning devices were activated. They caught up to the offender's vehicle at a turn. It appeared that the offender as going to stop, but he slowed and then drove across a painted traffic island. He continued north and accelerated away from the police at well in excess of the speed limit. The police followed.

12. He overtook other vehicles, using the breakdown lane. He merged into other lanes but made no attempt to slow down or stop. As he approached slowing traffic, he merged right and overtook on the shoulder. His speeds reached up to 130 kilometres per hour.

13. He then overtook vehicles on the right shoulder beeping his horn at the vehicles ahead of him. At times he reached speed of 185 kilometres per hour. Police terminated the pursuit, given the nature of his driving and their concerns for safety of other road users.

14. The offender’s vehicle headed north and turned into Northcliffe Drive. Soon after a witness saw it just off Northcliffe Drive in Tom Brown Parade. They noted that the Mazda had its front tyres hanging off and saw three people exit the vehicle. The offender and his associates were recognised by people in the area. Having escaped police on that occasion, he was not arrested until after the next incident.

15. On 29 January 2021, Flentjar was with a friend in southern Wollongong. She gave him her car keys, expecting him to collect something from her car, a gold-coloured Commodore. Instead, he drove off with her car. Later that afternoon, at about 3.13pm, police travelling to Willowvale, near Nowra, and south of Berry, saw the vehicle speeding in a 100 zone. It was travelling at about 130-140 kilometres per hour.

16. Once again, despite his history, Flentjar was attracting attention by his driving. Police did a U-turn and followed the speeding vehicle. They activated their car’s lights and sirens. The offender, again, failed to stop. Rather, he increased his speed. He drove on the wrong side of the road, overtaking many vehicles.

17. At one stage he pulled over. The police thought he was going to stop, but he then accelerated off onto the shoulder, overtaking other vehicles. His speed, as he approached Berry, reached 180 kilometres per hour. At that point the pursuing, sensibly and in accordance with protocol, terminated the pursuit due to safety concerns.

18. Shortly afterwards, police sighted the Commodore driven by the offender travelling south on the Princes Highway through Meroo Meadow. He was speeding. The speed limit at the time due to roadworks was 80 kilometres per hour. He was travelling in excess of 100 kilometres per hour. Police sought, and were granted permission, to re-engage the pursuit. They know that he reached speeds of 130 kilometres in 70 and 80 speed zones.

19. I note at this point some the places nominated in the agreed facts do not actually match what streets he was in. As the local List judge I am familiar with the area. But the misdescriptions are inconsequential. While engaged in the pursuit, police noticed that pieces of the Commodore’s rear tyre delaminating. The offender made corrections, and manoeuvred the vehicle onto the wrong side of the road. The vehicle lost traction, but he was still accelerating.

20. Police then deployed what are called stop sticks, or road spikes, which "influenced three of the tyres." I presume that means, deflated them. At that time another car was approaching the intersection of Bolong Road heading south. They had a green light. The Commodore travelled through the intersection at high speed. It “t-boned” the passenger side of the other car, where the victim was seated.

21. On impact both vehicles spun and came to stop in the middle of the intersection. Police ran to the accused's vehicle. He climbed from the passenger seat and ran. Leaving his passenger in the vehicle. The police gave chase.

22. Sergeant Benton managed to grab Flentjar’s right leg, but the offender kicked him in the chest, causing him to fall. The offender ran to a nearby creek, jumped into the water, swam to the other side, and ran away.

23. Inside the vehicle, police found his passenger and the key, which belonged to his friend who owned the now damaged Commodore. They also found a large silver meat cleaver, the knife the subject to one of the Form 1 matters.

24. Ambulances were called. The male passenger of the “t-boned” vehicle was treated and taken to Shoalhaven Hospital. He had severe pain in his hip, thigh and knee, and the side of his chest. He was given morphine. Scans revealed a complex fracture of the left side of his pelvis. He was transferred to St George Hospital. His injuries included a displaced pelvic ring fracture and non-displaced fractures to the ribs. His injuries, as can be expected, are likely to cause him prolonged pain and distress, and there is a possibility of long‑term pain and reduced mobility of his leg.

25. Although I have received no victim impact statement, it takes little imagination to understand the impact - both immediate and future - on the victim off the collision and his injuries. The absence of a victim impact statement does not mitigate. I also note that given the location of the collision, several hours of heavy traffic congestion followed.

Objective seriousness

The offences of 29 December 2021

26. The driving, in this instance, involving a police pursuit, is similar to other cases I see on appeal from the Local Court. That does not mean it was not a serious example of a s 51B Crimes Act 1900 offence. I know the area well .And as a lawyer and judge I have had to deal with the consequences of motor vehicle fatalities on the roads involved. Most recently R vButler & Russell [2021] NSWDC 666.

27. The offence was; given the time of day, the distance involved, the speeds reached relative to posted speed limits, the driving out of lanes, the fact that many people were put at risk, a gross breach of the proper use of a motor vehicle and the road rules. Every driver, whoever they are, has an obligation to others, if not themselves.

28. Here, the police were also put at risk. The community is dependent upon the hard work and courage of police officers. They were doing their job to protect others. The offender’s actions meant they took necessary risks in order to prevent further crime.

29. To blatantly ignore the road rules by speeding; to avoid the police tasked to prevent such illegal activity, and then flee puts others at risk. Such actions show a high degree of moral culpability; that can only be reflected in a sentence of some length.

30. I also not that when someone is disqualified from driving, they have, by driving, shown contempt for the orders of the Court, the Road Rules and the rules that bind us as a community.

The offences of 29 January 2022

31. My comments in relation to the earlier matter also apply to the drive while disqualified, and police pursuit on 29 January 2022. These crimes had some similarities with the earlier matters.

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]

“While every Judge has an individual sentencing discretion, that discretion must be informed by proper principle, and those principles should be applied consistently.” R v McKeown [2013] NSWDC 22 at [17] approved in R v Smith [2016] NSWCCA 75 at [18] & [19].

33. In assessing 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.

34. In her written submissions, Ms Azad, solicitor for the Director of Public Prosecutions, notes that by reference to the guideline; that the offender was young, the victim of the was a stranger to him, there was no injury to either the offender or his passenger; the plea of guilty was early, but the evidence against him was overwhelming. He also put a number of people at risk, given the speed.

35. By own admissions to his social worker, Flentjar was intoxicated with illicit substances. His driving was aggressive, erratic. He exposed others to risk and, as is clear from the facts, ignored warnings as he was escaping police pursuit, and despite multiple opportunities to stop, he failed to do so. This was a serious example of this type of offence.

36. It is a serious offence to not stop and render assistance after an accident. However, this is not a case where that failure led to a police investigation being compromised, or the charge of dangerous driving being avoided. This is not a case where death could have resulted from such a failure. Although a s 52AB(2) Crimes Act offence carries a substantial penalty, 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.

37. A police officer was assaulted. The sergeant was subject to a kick when he was simply doing his job Penalties must be proportionate to the crime committed but where police are assaulted Courts must, by the imposition of attempt to deter this offender and others from similar offending. Courts must, also by the 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.

The Forms 1

38. I will take into account the Form 1 matters for December 2021 offences but as they form part of the facts already taken into account, and in any event, would generally result in fines, they will not add significantly to the penalty for the matter for sentence.

39. So far as the Form 1 for the January 20022 matter, there must be some increase in sentence to recognise the need for personal deterrence and retribution for the crime for sentence.

Other offences

40. The cleaver, given the offender’s record, should never have been carried. But it was not used, it was just found in the vehicle. But he took and then destroyed a friend's car. Unless you are lucky enough to own a home, a motor vehicle is, generally, the most expensive and valuable item a person can own. This vehicle was destroyed, which meant that his friend lost the ability to move freely about the community, and I do not know whether it was insured or not, but if it was not, he is unlikely to ever compensate her for it and if she was, the costs will pass on to the community.

Other Matters

41. There are other matters I have to take into account. There are matters that aggravate the sentences I must impose; his criminal record, and the fact he was on parole. On 25 June 2020, Flentjar was sentenced for a serious offence. He was released to parole on 26 June

42. His criminal history is relevant to determining the proper sentences. It indicates that the offending here was not uncharacteristic or an aberration. It demonstrates his continuing disobedience of the law, and while his prior history cannot result in a sentence which is disproportionate to the seriousness of the offences I am dealing with, it means a more severe penalty 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.

43. He has Children's Court matters involving two police pursuits for which control orders were imposed. He was released from juvenile detention to parole on 26 June 2019. He committed a robbery in company on 25 July 2019 and went into custody again on 28 July 2019. He received parole on 27 January 2021.

44. He then committed a reckless driving offence, and a drive while disqualified in March 2021, and went into custody. He served a six-month sentence and most of the balance of parole, but he was given special consideration by the State Parole Authority and released to parole on 13 December 2021. This offending occurred on 29 December 2021, and again on 29 January.

45. He has been in custody since 2 March 2021. His balance of parole continues until 5 March 2023.

46. I am informed, and it is clear from the corrections record, that he has had a difficult time in custody. He is in the Special Management Unit. His file is marked “under threat.” He has served most of his time in custody subject to the COVID pandemic restrictions, which I take into account.

47. The fact that he committed offences while on parole is an aggravating circumstance. I could date the sentence from today or some earlier date. Considering the need for appropriate penalty for all his matters and taking care not to double-count as I have taken into account the parole breach as an aggravating circumstance, I propose to start this sentence on 2 April 2022. That one month after he went into custody.

Maximum penalties

48. The following maximum penalties apply:

49. Police pursuit, s 51B1 Crimes Act 1900 carries a maximum penalty of five years' imprisonment, driving licence disqualifications apply.

50. Drive while disqualified carries a maximum penalty of 12 months' imprisonment for a second offence and licence disqualifications apply.

51. Aggravated dangerous driving occasioning grievous bodily harm, s 52A for Crimes Act, carries a maximum penalty of 11 years’ imprisonment.

52. Failing to stop and assist after vehicle impact occasioning grievous bodily harm, s 52AB2 Crimes Act, carries a maximum penalty of seven years' imprisonment.

53. Careful attention to maximum penalties is required, not just because Parliament has fixed them. They provide sentencing measures to be balanced with all other relevant factors. As I noted earlier, for the 52A offence, the guideline judgment of Whyte applies and must be taken into 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 348.

Driving licence disqualifications

54. The offender was disqualified from driving on previous matters. He is disqualified until September 2023, but that date does not take into account stays of suspension while in custody.

55. Flentjar must be disqualified for periods as a consequence of his actions. He is not fit to be a driver; he has demonstrated his unfitness. But if he is to be eventually rehabilitated in the community, he will need a driver's licence. He can, if he is able to demonstrate a commitment to normal community life on release, apply for a reduction in that disqualification period, but that is a matter for the future.

The offender’s subjective case

56. A subjective case for the offender is set out in the report from Justice Health and a Psychosocial Report of Ms Assaf. Dr Chew for Justice Health, succinctly described the offender’s multiple diagnoses; including schizophrenia, intellectual disability, ADHD, ODD, depression, personality disorder, and a substance use disorder.

57. Dr Chew notes chronic problems with self-harm, and a long history of heroin, methylamphetamine and Xanax abuse. It appears that Flentjar is benefiting from taking long‑acting buvidal/buprenorphine, and largactil. When Dr Chew saw him, he was not demonstrating any psychotic symptoms, but he was being managed by the Risk Intervention Team. There is also reference to, in the records, seen by Dr Chew, of a significant traumatic history involving sexual assaults.

58. There is an indication that the offender cannot read or write. He is in frequent contact with Justice Health. His multiple psychological and psychiatric symptoms, Dr Chew notes, were in the context of developmental trauma, including sexual assault.

59. The offender told Dr Chew that he was intent on maintaining his compliance with his buvidal, and that he wished to attend drug and alcohol counselling and remain abstinent from drugs and alcohol. He expressed a willingness to attend residential rehabilitation, and Dr Chew comments "I think this would be a good pathway for him from custody."

60. I have the benefit of a very comprehensive report from Ms Assaf. In it she sets out the offender's personal history. Through his mother, Flentjar identifies as indigenous. She is a Djuwin/Yuin, woman from the south coast of New South Wales. That said, he has been unable to engage in his culture, because most of his short life has been spent in custody.

61. His mother, who has significant problems of her own. When with her growing u, he witnessed her drug use and violence towards his father. Family members introduced him to drugs when he was 11. He rarely had the benefit of going to school. He spent most of his teens in and out of juvenile detention.

62. At times he lived with his father, but his father's attempts to keep him straight, and force him to go to school, were rebuffed. He has rarely attended school and when he did he struggled academically. While he would like to get some qualifications, he has never worked, and supported himself, primarily, by committing crime. There is a report which has confirmed, by some material, that he was sexually assaulted at 14, while in juvenile detention. He has not yet been able to access, Victim Services.

63. He has used copious amounts of drugs during his young life. He has never engaged in form of rehabilitation. He had a child when he himself was still a child, but he has not ever been in a position to provide parental assistance to that child.

64. Attempts were made in 2019to refer him to a number of rehabilitation centres. He did not follow up with the Aboriginal Medical Service. It is hard to say whether he has declined their support, or whether he is simply incapable, until now, of appreciating that he has to show some initiative if he is to engage in treatment,

65. Given his history and his underlying mental health problems, the best that can be hoped is that growing maturity and abstinence from drugs, with the help from buvidal, will mean that the promises he has made to seek help and engage while in custody, will be followed through. Plans could be put in place, if he is willing, for him to engage in residential rehabilitation. It is hoped that the State Parole Authority will facilitate that when he comes eligible for release to parole.

66. Ms Assaf notes that Flentjar at present has poor insight and still tends to blame others. He still has impaired judgment although there is some hope, she suggests. She notes that he could not return to his mother, his home, or the local area, as this would provide constant triggers to relapse into drugs and crime.

67. She notes that he has, over time, been increasingly disconnected from, his culture, his community and himself. This is rooted in his adverse childhood experiences and, effectively, a lifetime, in some form of detention.

68. She notes that trauma is a response to threat and danger, and since very, very young, he has been subject to multiple traumas that have helped to form his identity. She describes him as a person whose meaning system is ruptured and who views the world with little sense of purpose. She notes that institutions have historically failed him, as is evident from all the material before the Court.

69. While he presently remains motivated to change and break the cycle, given his intellectual cognitive deficits, he will require considerable assistance. This includes; psychological assessment and programs' for help on release and getting NDIS funding. He will need a mental health care plan. He will need - all of these matters to be trauma-informed, and he will need trauma treatment.

70. She concludes that he is a high risk of recidivism, especially if he returns to his local community. He needs to develop internal and external resources to disengage from this cycle. His father has suggested that eventually, he may be able to go to Queensland.

71. He made some remarks to Ms Assaf, but so far as remorse is concerned, at the moment, Flentjar has little concern for himself, let alone others. I do not think he understands how serious his offending was, but that is partly a product of his cognitive deficits and the trauma he has suffered. He did, however, accept responsibility at the very earliest, and he is aware of the consequence of his actions. I will take those matters into account.

72. His early uptake of drugs is entirely understandable, given his history and family history, but the fact that he was affected by drugs during the second incident that does not mitigate. It, in fact, made him more dangerous to himself and others. As is clear from what occurred he was not thinking about himself. He acts impulsively. He was not even thinking about the fact that he might be seen by police and followed.

73. His drug use, and what is being done to deal with it are however important matters I must take into account, as must a number of underlying mental illnesses and conditions. His underlying conditions do impact here on his moral culpability: Mr Ashby referred me to Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]..

74. There is evidence that he is doing his time in gaol harder than most, being under threat and in the Special Management Unit. But that does not mean there is no need for special deterrence. Flentjar has to understand, somehow, that to continue to behave as he did and put others at risk, can only attract heavier and harsher penalties. And, paradoxically, the risk he posed, and poses, if not given assistance, means that community protection looms large as an issue in these proceedings.

75. As Mr Ashby said, the community may be protected from his driving related offending while he is in custody, but he cannot be detained forever. He must be released, and if he is released in a better position to appreciate his obligations to others as a citizen, then the community will be protected.

76. But Flentjar has much to learn. He has never had an opportunity to lead a normal life in a community. He has never led a normal life in the community.

77. The sexual assaults reported and recorded, and the developmental trauma suffered in his mother's home, and in custody, must be taken into account. When I sentence sexual offenders, I take 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. Those principals apply to victims 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

78. There were many other incidents, destructive of the adolescence of this offender, that must be taken into account. They help explain why he took up drug use and why he behaves as he did. He is still 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:

79. In some cases, particularly driving matters, those principals are said to have lesser weight: R v Musumeci NSWCCA, unreported, 30/10/97. But I will, so far as I am able, take them into account, particularly as here it is demonstrated that his immaturity, was influenced by many other factors.

80. The law recognises that there is a potential for the cognitive and emotional and psychological of immaturity of young people to contribute to their breaches of the law. It is also recognised 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 impulses.

81. All of these matters mean that, compared to many other offenders, this offender's moral culpability is reduced; his blameworthiness is reduced. It is clear that his personal circumstances, his capacity to reason, his lack of education, in fact, he was educated in juvenile detention or adult gaols, effectively, means that he does not, I believe, fully appreciate the wrongness 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.

Submissions

82. I am indebted to Ms Azad, and Mr Ashby, for their comprehensive written submissions, which were supplemented by oral submissions. There is no significant difference between them when it comes to matters of principle. Both agree that sentences proportionate to the crime must be imposed but that those can be mitigated because of the offender’s background.

83. Both agree that the finding of special circumstances should be made, even though his prognosis is poor. It is accepted that the longer he is supervised, monitored, and assisted in the community, the greater there is a chance of community protection.

84. It is also accepted that common humanity dictates that a person with a background such as this offender, will have 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]..

85. Both submissions note that the dangerous driving matter falls within the middle of the rang of objective seriousness. I will proceed on that basis. It is accepted that this is an aggravated matter within the Whyte guideline, and I will proceed on that basis.

Structure of the sentence

86. There has to be some aggregation of penalty. I take care not to double‑count where there is an overlap in the factual matrix or elements of an offence. For the second incident, there are some matters that do overlap, but there are also a series of distinct offences on two distinct days.

87. I am required to impose appropriate sentence for every offence, to structure the sentence so that it is just and appropriate the totality of his offending. I have to avoid the suggestion that multiple offences attract a discount, but I also have to take care that if I was simply to add all the penalties together, this would result in an inappropriate sentence that in turn might exacerbate the harm to the community by institutionalising the offender.

Synthesis

88. There is a real risk; no - Flentjar has been institutionalised. While his prognosis remains bleak, every effort has to be made to ensure protection of the community and minimise chance of recidivism. But his release will be entirely dependent on the State Parole Authority.

89. I have to consider all the purposes of sentencing and recognise the harm done. The offender's conduct must be denounced, and he must be, despite his background, held accountable for what he did. He has to learn, I hope, the consequence of his actions.

90. I have to take into account the risk he posed, in both instances, to members of the community and the individual police officers involved. I cannot and do not ignore that, as a consequence of his driving, another man was seriously injured, hospitalised, and may have to endure the pain, stress, and possibly, long term consequences for Flentjar's behaviour.

91. I hope it sinks through, Mr Flentjar, that hurting others, has consequences that they may bear for the rest of their lives.

92. That said, an offender who had a start in life like Flentjar did, cannot be held to be of equal moral responsibility with one who had what might be described as a normal or advantaged upbringing. That background has left a mark on for all the reasons I have summarised and are detailed in the reports. That background has compromised his capacity to mature and learn from experience. Those matters do not diminish over time and will be given full weight.

93. Each of the indicted sentences must still, however, retain some reasonable proportionality to the objective circumstances and the seriousness of the offences, as I have indicated.

94. A persuasive, subjective case cannot lead to an inadequate sentence. Given the objective circumstances her; while those matters are s not determinative, there must still be a retributive sentence, others in the community must understand the consequences of behaving as Flentjar did. While there is a broad discretion, as indicated in Whye, I must be guided by the application of principle.

95. There are some positive sides, if Flentjar continues with this depo medication, And, for the first time, he has indicated some willingness to engage in treatment. He is getting older. But despite my finding of special circumstances, there is a minimum period that must be served to meet the purposes of sentencing.

Orders

96. I have to indicate sentences. Those indicated sentences have a reduction of 25%. I will commence the sentence from 2 April 2022.

29 December 2021

97. For the police pursuit, matters on the Form 1, there will be a sentence of 1 year and 6 months, with a driving licence disqualification of 2 years.

98. For the drive while disqualified, there will be a sentence of 9 months, and a driving licence disqualification of 1 year.

29 January 2022

99. For the police pursuit, there will be an indicated sentence of 1 year and 10 months, and a driving disqualification for 2 years.

100. For the aggravated dangerous drive, plus the Form 1 matters, I indicate a sentence of 3 years and 4 months, driving disqualification of 2 years.

101. For the fail to stop there will be a sentence of 9 months. That does not carry a driving disqualification.

102. And for the assault police I indicate a sentence of 4 months.

103. There will be an aggregate sentence of 5 years imprisonment. There will be a non-parole period of 3 years. The sentence will commence on 2 April 2022, making you eligible for consideration for release to parole, subject to a determination of the State Parole Authority, on 1 April 2025. The balance of the two will commence on 2 April 2025. The total sentence will expire on 1 April 2027.

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Amendments

24 April 2023 - Typographical error only

Decision last updated: 24 April 2023