R v Garry Robert Lacey

[2009] NSWDC 343

CITATION:	R v Garry Robert LACEY [2009] NSWDC 343
HEARING DATE(S):	13/11/09, 18/11/09, 20/11/09
JUDGMENT DATE:	20 November 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Count 1B Convicted: Sentenced to a term of imprisonment - non parole period 4 years and 3 months to commence on 28/04/2009 and to expire on 27/07/2013. The balance of the sentence being 2 years and 11 months is to expire on 27/06/2016. Total sentence of imprisonment is 7 years and 2 months. Special circumstances found. Eligible for release to parole on 27/07/2013. (Matters on a Form 1 taken into account) Count 2 Convicted: Sentenced to a term of imprisonment of 2 years to commence 28/07/08 and to expire on 27/07/2010. I decline to set a non-parole period. Count 3 Convicted: Sentenced to a term of imprisonment of 9 months to commence 28/07/08 and to expire on 27/04/09. s 166 matter – Drive manner dangerous Convicted: Sentenced to a term of imprisonment of 9 months to commence 28/07/08 and to expire on 27/04/09. Disqualification of drivers licence period is 3 years to commence 15/02/2021 and expire 14/02/2024
CATCHWORDS:	CRIMINAL LAW - sentencing - use offensive instrument to avoid lawful apprehension - resist police officer in execution of his duty
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Thomson and Houlton v TheQueen (2000) 49 NSWLR 383 Pearce v The Queen (1998) 194 CLR 610 Callaghan v The Queen [2006] NSWCCA 58
PARTIES:	Regina Garry Robert Lacey
FILE NUMBER(S):	2008/00019335
COUNSEL:	Mr J McLennan - Crown Mr C Smith - Accused

SENTENCE

1 HIS HONOUR: Mr Lacey just stand up for a moment. My practice is to tell people in advance what sentence they are to receive then I am going to give my reasons. The total sentence I propose to impose on your matter is a sentence of seven years and eleven months with a non-parole period of five years. The way I have calculated that sentence is as follows. You can sit down now thank you.

2 The starting point of the sentence for the offence committed of acting with intent to prevent lawful apprehension is nine years, the maximum penalty is twelve years. I have given you a discount as I am required to do by the decision of Thomson v Houlton of twenty per cent, for the utilitarian benefit of the plea of guilty.

3 In relation to the first resist arrest matter, the statutory maximum there is five years, I think you said Mr Crown is that correct?

4 CROWN PROSECUTOR: Yes your Honour.

5 HIS HONOUR: I propose to sentence you to two years six months imprisonment. For the second resist arrest I propose to sentence you to nine months imprisonment. Those sentences themselves will be concurrent with one another, but the sentence for the act with intent to prevent lawful apprehension will be accumulative to the extent of nine months upon the sentence for one of the resist arrest matters. So there is a partial accumulation of nine months. I have made a finding of special circumstances; I propose to date the sentence from 28 July. I know you have been sentenced to a term of one month imprisonment on appeal, but I do not see any point in partially accumulating the sentences I impose. So the earliest date you will be eligible for release to parole will be 27 July 2013. Do you understand that?

6 OFFENDER: Yes your Honour.

7 HIS HONOUR: I will give my reasons now.

8 Garry Robert Lacey appears today for sentence in relation to three offences, having been arraigned in this Court in respect of five offences, two of which he pleaded not guilty to. He was acquitted of the charges to which he pleaded not guilty.

9 The charges for which he was found not guilty were firstly, count 1A, which alleged that he, on 28 July 2008 at Coffs Harbour in the State of New South Wales did drive at Adam Williams, with intent to murder Adam Williams. The other charge for which he was found guilty was an allegation that he, on the same date at the same place, did assault Ann Cook, a senior constable of police whilst in the execution of her duty.

10 On arraignment, the prisoner pleaded guilty to count 1B alleging that he on 28 July 2008 at Coffs Harbour in the State of New South Wales used an offensive instrument, namely a motor vehicle, registration number AA89KH with intent to prevent the lawful apprehension of himself. The facts of that matter were encompassed within the Crown’s allegation in relation to Count 1A. That charge was left in the charge of the jury and in light of his plea of guilty and in light of the evidence of course, the jury returned a verdict of guilty in relation to that charge. The maximum penalty for that offence is twelve years imprisonment.

11 He also pleaded guilty to two charges of resisting Adam Williams, a senior constable of police whilst in the execution of his duty, these were counts 2 and 3. The jury were not required to consider those charges. The Crown did not accept the plea of guilty in relation to count 1B in discharge of the indictment, but there was no issue that counts 2 and 3 need be left with the jury. He pleaded ‘not guilty’ to count 4, an allegation of assaulting Senior Constable Cook in the execution of her duty, of which he was acquitted by the jury.

12 Having been found guilty by the jury in relation to count 1B and also being required to be sentenced in relation to counts 2 and 3, the prisoner has asked me to take into account a number of offences on a Form 1. These offences are offences that were committed either before or during or after the events giving rise particularly to count 1B.

13 On the Form 1 there were a number of offences including an offence of common assault committed upon Bruce Williams. Also there was an offence of larceny of fuel, valued at $32.65 from a service station in Coffs Harbour called the Bailey Centre, an offence of the use of an unregistered and uninsured motor vehicle at the time of the commission of the offence identified in 1B and beforehand, an offence of malicious damage to a motor vehicle, the property of Peter Hutchison, committed before the offence of using an offensive instrument with intent to prevent lawful apprehension and an offence of malicious damage to another vehicle, the property of the North Coast Area Health Service. Subsequent to his arrest, there are two offences committed of intimidating police officers in the execution of their duty, respectively Senior Constable Gregory Neville and Detective Senior Sergeant Peter O’Reilly, who was the investigating officer in respect of the matters on indictment.

14 The facts as I find them are from the facts presented in relation to the matters on the Form 1 and the evidence in the trial are as follows: the offender was a disqualified driver. On the morning of 28 July 2008 he drove his motor vehicle, a green coloured Ford station wagon, the subject of evidence in the trial, in the vicinity of Prince James Avenue Coffs Harbour.

15 Mr Williams drove past the accused in his vehicle and Mr Williams stopped his vehicle, at the intersection of Marshall Street and the Pacific Highway Coffs Harbour, at a red light. He noticed the prisoner’s vehicle very close to the back of his car, then accelerate quickly past him on his left hand side as he was turning in the Pacific Highway.

16 The prisoner then veered his motor vehicle into the lane Mr Williams was travelling in and cut him off. Mr Williams had to brake hard to avoid colliding with the prisoner’s vehicle. The prisoner’s vehicle went sideways, smoke came from the tyres and the tyres screeched. The prisoner’s vehicle slid on an angle and stopped approximately ten metres in front of Mr Williams’ car. Mr Williams’ drove past the prisoner’s car but stopped further down the road, in order to write down the prisoner’s registration number.

17 The prisoner drove his motor vehicle into the Caltex service station nearby and commenced putting petrol in his car. Mr Williams came over to him and took a photograph of him. Williams said, “What’s your problem mate? You’ll have to wait for the traffic in front of you because I can't go anywhere until they move.” The prisoner yelled, “Fuck off, I’ll bash your fucking head in.”

18 The prisoner was still holding the fuel filler in his right hand. He reached towards Mr Williams with his left hand, grabbed him around the throat, squeezed and applied pressure. Mr Williams attempted to take photographs of the prisoner with his camera. The prisoner faced Mr Williams and returned the fuel filler back to the bowser. The prisoner lost his grip, Mr Williams grabbed the front of the prisoner’s shirt to stop himself from falling over. Mr Williams was still being held by the shirt and also being held by the throat. Mr Williams began to walk backwards and the prisoner punched at his head a number of times, a number of these punches connected. Williams dropped his head and the prisoner grabbed him in a headlock and lifted him at the same time.

19 Mr Williams attempted to pull the prisoner towards the centre of the service station area, an attendant came out and attempted to break up the fight. The prisoner let go of Mr Williams and yelled at him, “I will get you, I won’t forget you”, amongst other things. The prisoner got back in his motor vehicle and drove off, not paying for the petrol that he used. Hence the charge of larceny of the petrol as set out on the Form 1.

20 He then drove at speed and collided with the back of a parked stationary vehicle which was a brown coloured Daihatsu and the front passenger side of a vehicle entering the service station, before he drove north again on Grafton Street. In other words, he collided with a white Toyota Corolla. Both vehicles contained passengers and were stationary at the time of impact. The prisoner’s vehicle exited the car park onto the Pacific Highway from the northern exit, travelling at speed. He did not stop to see if anyone was injured. Obviously he was only concerned for his own circumstances.

21 The prisoner was observed by Senior Constable Williams performing Highway Patrol duty with other police officers on the Pacific Highway on what I understood to be the eastern side of the highway, with Constable Williams’ car facing a southerly direction. The prisoner drove by, driving from the scene of the offences to which I have just referred in a northerly direction. He drove onto the median strip with hazard lights flashing and yelled some comments at the police. He was observed by Senior Constable Williams and Senior Constable Cook to drive through a set of red lights, causing vehicles entering that intersection to take evasive action.

22 As it transpired, he drove down Park Beach Road and eventually drove into Vincent Street, where he had formerly lived. His manner of driving along the Pacific Highway as observed by Senior Constable Williams was erratic.

23 In any event it is suggested that the prisoner was driving in a manner dangerous. I do not have to resolve that issue and I do not have to sentence the offender for that matter. The facts are, however, it is quite clear on the evidence of Senior Constable Williams, Senior Constable Cook, which I accept, and particularly that of Mr Williams, that the offender was driving in erratic manner. The driving of the motor vehicle occurred at a time when the vehicle itself was uninsured and unregistered. Those latter matters, as I have earlier pointed out are on the Form 1.

24 To return to the matters that are the subject of the charges on the indictment, Mr Williams gave chase and the court had an in-car video of his pursuit of the offender’s vehicle. The in-car video evidence shows that he obviously lost sight of the offender. The offender had ultimately made his way to Vincent Street at Park Beach about two to three kilometres from where he was first seen by Senior Constable Williams. Senior Constable Williams found his way to Vincent Street where he saw the offender’s vehicle.

25 The prisoner’s erratic driving continued into Vincent Street. This was a dead end street approximately one hundred and fifty to two hundred metres in length. It ran east-west from Ocean Parade which runs parallel with Park Beach to the east up to the dead end. The prisoner drove to the dead end, or western end of the street, did a U-turn and on the photographic evidence available, appears to have knocked over some plastic wheelie bins or garbage bins before parking his vehicle outside a friend’s place, with the car facing in an easterly direction. He left his motor vehicle and apparently went into one of the premises, either 22 or 20 Vincent Street. Shortly afterward Senior Constable Williams pulled up in front of the offender’s car. The evidence establishes quite clearly the prisoner’s car and the car of the police officer facing one another were something in the order of two to three metres apart.

26 Exhibit D, the in-car video shows in chilling detail what then happened. As the police officer got out of his car, the offender returned to his car. He can be seen clearly to stand at the doorway of his car for a short period of time - a matter of seconds - looking towards the Senior Constable, knowing full well that the Senior Constable was there to arrest him. In his mind, in relation to the events at the Bailey Centre, although the Senior Constable was not aware of those events. He was there to arrest him in relation to his erratic driving.

27 The prisoner got in the car. The car was stationary for some seconds. The prisoner himself gave evidence at the time he believed the officer was there in relation to the Bailey Centre incident.

28 The prisoner had completely failed to comply with the demands of the police officer, all reasonable in themselves, to stop and get out of the car. The offender, by whatever words the police officer used, knew that he was under arrest. He could see that the police officer had produced his firearm. The police car was partially blocking his exit from Vincent Street and of course he was aware of his own misbehaviour, including, I would imagine, his driving.

29 The prisoner hesitated for a period of time as he sat in the driver’s seat, revving his engine. He would appear from the video evidence and the other evidence, to drive off, initially turning slightly to the left and then deliberately steering the car towards the police car and the Senior Constable.

30 The evidence establishes that the Senior Constable had turned at this point and was trying to seek refuge at the rear of his vehicle. He was struck from behind in the buttocks or around the rear belt line and at that time he had his back turned to the car.

31 The prisoner knew at that time the Senior Constable was defenceless and I am satisfied that he intended to strike him with the motor vehicle to cause him some bodily harm. The prisoner drove on, knowing that he had struck the police officer. In fact on his own version, he saw the police officer hit the road after being struck. He saw his vehicle strike the police officer.

32 The prisoner drove approximately fifty metres up the road and then turned, either in a sharp U-turn or in a three point turn. The manner of his turning does not matter very much. There was some conflict in the evidence on this aspect. Whichever way he turned, at that point he had determined to return to where he had struck the police officer or nearby. On turning, he then drove directly at the police officer, observing the police officer to hobble quickly in a northerly direction away from the rear of the police car to supposed safety wherever he could find it.

33 The prisoner gave evidence at the trial that the policeman shot his service revolver at him as he drove in an easterly direction. This claim had no support from any evidence, either physical or eye witness.

34 The evidence establishes that the prisoner tracked the police officer’s movements and drove in an endeavour to strike him with the motor vehicle. I reject the account given by the prisoner that he intended only to scare the police officer and that he was deliberately avoiding attempting to hit him with the car. The facts are that he drove up onto the footpath and continued in a straight line, narrowly missing a colorbond fence and the tyre marks show him running directly into a brick wall.

35 The prisoner in my view was endeavouring to strike the police officer but to avoid any harm to himself. His claim in his evidence that if he wanted to hit the police officer he would have taken out the fence and the tree, to which the police officer was heading, I reject.

36 As it transpired, he missed the police officer by as little as a metre and perhaps as much as a few metres. He was so intent in his attention upon the police officer he did not realise that he was to drive unto a brick wall at 20 Vincent Road, approximately ten to fifteen metres beyond the position where he passed the officer.

37 Although his car was disabled, the prisoner was not finished with the police officer. As the prisoner sat behind the wheel the police officer not able to see his hands, told the prisoner to get out of the car and show his hands or vice versa. The prisoner either ignored, or did not hear, the warnings from the police officer. Then the police officer discharged his firearm twice. Two cartridges were found in the grass area, near the driveway to 20 Vincent Street and were in my view, in conjunction with other evidence, conclusive pieces of physical evidence to establish that the police officer’s account of the circumstances of the discharge of his firearm were truthful.

38 The prisoner got out of the motor vehicle, but rather than dissuaded by the use of the firearm, the officer’s demands, the collision and his success in striking the police officer, he engaged the police officer in a violent struggle leaving the police officer having to use his capsicum spray on him. This struggle was the basis of count 2 in the indictment.

39 I bear in mind at this point the police officer was weakened from the injuries he suffered and his exertions in trying to avoid being run over. Mr Lacey well knew the police officer was injured - to what extent of course he could not know.

40 The struggle with Mr Lacey further weakened the police officer as one would expect. But when sprayed with OC spray, Mr Lacey, who had deliberately engaged the police officer in the struggle, then disengaged himself and fled, eventually to 14 Vincent Street seeking water to spray on his face. Whilst washing his face at the rear of the premises in a laundry Senior Constable Williams, found him this time, with the assistance of Senior Constable Cook. The offender still resisted arrest by refusing to allow himself to be restrained or handcuffed although the extent of resistance at this point was much less than previous. This was the basis of count 3. He was eventually dragged and pulled to the front of the premises where he was made secure. Other police arrived and the secured the scene.

41 Senior Constable Williams is to be commended for his courage in continuing to engage and ultimately arrest the prisoner notwithstanding his injuries and the threat to his safety by the prisoner’s conduct. Similarly his colleague Senior Constable Cook is to be commended for her selfless willingness to assist her colleague. The offender’s hostility towards Senior Constable Williams and other police is exhibited in the facts of the events giving rise to the subjects of intimidation in the Form 1.

42 Notwithstanding all that I have outlined, the fact that he was adversely affected by OC spray, he was under arrest and he knew well that he was in a very precarious position in a forensic sense, when transported to Coffs Harbour Police Station his aggressive behaviour continued. Such was his behaviour that a support person was asked to attend and that person remained with the prisoner.

43 He was breath tested and underwent various forensic procedures. Apparently he did not have any alcohol in his blood stream, nor any drugs. So there is nothing in the nature of anything that he ingested to explain his behaviour.

44 He was a disqualified driver until February 2021.

45 At approximately 11.40am, this is almost two hours after the events relevant to count 1B, Detective Senior Sergeant Peter O’Reilly who was at that stage performing the role of Custody Manager, approached the dock to speak with the prisoner who appeared agitated and aggressive. After a heated discussion the prisoner said to Senior Sergeant O’Reilly,

“I know your wives, I know your children, you’re fucked, you’re all fucked”.

47 Detective Sergeant O’Reilly said “Gary is that a threat”? The prisoner said “you’re fucked”. At approximately 11.50am the prisoner stood up pointed at Senior Constable Neville and said “I’m gonna fuckin cut your head off and shit down your throat”. The prisoner also said “I’m gonna burn your house down and kill your family”. Neville said to the prisoner “did you just threaten me”? The prisoner said, “No threat it’s a promise”.

48 I have the prisoner’s criminal history as part of the material that has been presented by the Crown. The prisoner was born, according to the criminal history, on 5 May 1964. He started offending in the late 70s when, on my calculation, he would have been in his mid teens, charged in the Children’s Court with a PCA offence for which he was disqualified for three years. In 1979 he was convicted of driving in a manner dangerous as a child or found guilty I should say of driving in a manner dangerous as a child and driving whilst disqualified and was committed to an institution. A break enter and stealing matter followed in the Children’s Court. As a child he appeared in the Tweed Heads Petty Sessions, was convicted of high range PCA, disqualified driver and again committed to an institution until he was eighteen years. There was an appeal against the severity of that penalty and a fine was imposed in relation to at least one of those matters. He was convicted as an adult at the Murwillumbah Petty Sessions for PCA, a reading of .175 grams of alcohol per 100 ml of blood, and sentenced to a period of a hundred hours community service. At the same time he was convicted of being a disqualified driver giving a false name and a fraudulent use of a license. Therein follows a number of minor matters relating to the use of drugs of no great moment.

49 There was then, so far as his criminal history is concerned, a significant break between 1985 and 1999. In 1999 however he was convicted of driving a vehicle in a menacing manner. He was fined modestly and disqualified again for twelve months. He was also convicted of contravening an Apprehended Domestic Violence Order. In May 1999 he was convicted of assaulting a police officer in the execution of his duty and resisting or hindering police in respect of two counts in the execution of their duty and was placed on a reconnaissance and fined. Again in 1999 three months later he was convicted, as I would understand, in his absence of driving whilst disqualified having committed that offence in June 1999 within three weeks of being granted a reconnaissance for the assault police matter. He was dealt with on the disqualified driver matter it in September 1999. In fact at that time he was dealt with for three separate drive whilst disqualified matters and sentenced to various terms of imprisonment and charged with other offences. He appealed against what appears to be the severity of the penalty and the learned judge reduced the term of imprisonment.

50 He was convicted of shoplifting in 2001 and possessing a prohibited drug and convicted of stealing from a shop again in 2003.

51 In August 2004 he was convicted of resisting a police officer in the execution of his duty and fined and he was convicted of resisting a police officer in the execution of his duty in 2008 for an offence for which he was charged in January 2008. On 22 August 2008 he was convicted of resisting officer in execution of his duty, resisting or hindering an officer in the execution of his duty which offences were charged in January 2008. For the resist officer in the execution of his duty offence he was sentenced to two months imprisonment. He appealed against the severity of that penalty and the sentence of imprisonment was reduced to one month to commence on 22 August 2008 expiring on 21 September 2008. He was convicted for having goods in his custody, being reasonably suspected of being stolen or unlawfully obtained, on 12 June 2009. He was sentenced to a term of imprisonment for that offence to start from 9 January 2009. He was apparently charged in relation to that offence, according to the criminal history, on 9 July 2008.

52 He was also convicted on 7 July 2008 for an offence committed on 13 June 2008 of intimidating an officer in the execution of his duty for which he was fined $500. These latter details of his criminal history reveal that the offender was on bail in relation to two separate groups of offences, one a goods in custody and two offences relating to resisting or hindering police, at the time of the commission of the offences with which I am concerned.

53 I note those terms of imprisonment imposed both by the Local Court and on appeal to the District Court, but as I have indicated to the offender I propose to date the sentence I impose from the date he came into custody without making the sentences I impose partially accumulative or wholly accumulative on the other. I think the short length of those sentences makes such an accumulation academic. However, I have been provided with the facts in relation to the intimidate police matter which the offender was sentenced shortly before the events of 28 July. Those facts are quite revealing in the context of the events with which I am concerned.

54 Police attended upon the premises the offender was then living at on 13 June 2008 to execute a warrant. The offender was not present at his premises. But as the police were leaving the prisoner returned. He became agitated and aggressive towards the police. He declined to provide any information which of course is not something against him. But after a short period of time he approached the detective sergeant who was present and said “I’ll find you, I’m gonna come and kill you, you cunt, don’t go near my kid”. The police officer not unreasonably felt intimidated. Police took hold of the prisoner and informed him he was under arrest for intimidation of a police officer. Whilst attempting to handcuff him he remained highly agitated and made several attempts to remove his hands from the rear to his front. The prisoner was forced against the wall where he could be more effectively managed and eventually he was subdued but he continued to be aggressive and abuse police during the incident. He was taken to the police station, provided his rights under the LEPRA and when interviewed the prisoner said in passing when told he would be interviewed in relation to how he came to be arrested he said, “for telling the Sarge I’d kill him if he touches my boy”, confirming the allegation against him.

55 One of the matters that arose in the course of submissions was the fact that the offence in count 1B of the indictment is the most serious offence with which the prisoner has been charged to date.

56 His previous criminal convictions, serious in themselves, have all been dealt with in the Local Court or the Children’s Court. This led to a submission that I might regard the offence in count 1B as “uncharacteristic”. It is correct that the prisoner has not committed an offence of this seriousness or this type before. However from the facts of the circumstances of the commission of the offence with which I will call the principal offence, because it requires the taking into account of Form 1 matters; the underlying attitude and conduct demonstrated by the prisoner, which caused this offence to occur, cannot be seen as “uncharacteristic”.

57 This is so for two very important reasons. It is quite clear both from his criminal history, and the facts in relation to the earlier intimidation matter a month before, and the prisoner’s evidence in the trial, that the prisoner has hostility and anger towards police. Of course I do not have the facts of all the matters where the prisoner has been convicted of resisting or hindering police. In fact the only facts of matters other than the matters with which I am concerned are the facts to which I have referred in relation to the intimidation matter, for which he was convicted in early July 2008. The time is fast coming when sentencing judges should be provided as a matter of course, with the facts of any offence, dealt with summarily or on indictment that may be relevant to an understanding of the matter or matters for which the prisoner is to be sentenced in this Court.

58 But his criminal history and the facts of this matter, and the related intimidation matters on the Form 1, clearly show an attitude of anger and hostility on the part of the prisoner towards police. The prisoner sought to suggest in his evidence before the jury, in passing, that he had been subject to some injustice on the part of the police force, but not the police officers involved in this matter. That provided him with no excuse whatsoever to conduct himself in the way he did, towards Senior Constable Williams and Senior Constable Cook.

59 But even if there was some feeling of injustice in the back of the prisoner’s mind at the time, it is to be borne in mind the aggressive and violent way on which the prisoner had behaved himself, within the half hour before, towards people who were not police, Mr Williams and the owners of the cars into which the prisoner drove to make his escape from the Bailey Centre.

60 The other matters to take into account were not only that the prisoner disqualified until 2021, but he had a long history of offences for the misuse of motor vehicle. He was misusing his motor vehicle on this day when Senior Constable Williams saw him. He had no right to be driving a car. He has had findings of guilt as a juvenile for driving in a manner dangerous, driving in a menacing fashion, PCA matters and many convictions for driving whilst disqualified. And at the heart of the offence set out in count 1B is the prisoner’s misuse of a motor vehicle in that instance, exercising disregard for Senior Constable Williams’ welfare in his intent to prevent lawful apprehension.

61 There was reference in the evidence of the Pastor, to whom I will refer later in relation to some subjective matters, that the prisoner had been subject to some stresses in the time leading up to the commission of the offences with which I am now concerned. There had been some concern on the part of the prisoner, because one of his children had travelled to Melbourne to visit the child’s mother and had not returned, the prisoner having had the care of his children for some period, at least before the commission of these offences. I have no direct evidence from the prisoner in relation to the reason for his behaviour on this day and it may be that he was under some stress because of personal problems. But understanding that, does not provide any explanation for the conduct of the prisoner towards Senior Constable Williams, set out in the matters in the indictment, other than the fact that the prisoner acted in an angry and hostile fashion with no justification whatsoever. The facts of the matter are that the prisoner throughout this day, was only concerned with his own selfish interests, whatever they were, and they remain essentially unexplained.

62 When one analyses his criminal history in respect of count 1B, I have concluded that his criminal history and his driving history as it is relevant to the conduct in that count relating to the motor vehicle does not entitle him to any leniency. I have given close consideration to whether the evidence establishes an aggravating factor, under s 21A(2)(d), as a relevant aggravating factor for the purposes of that section. The fact that the offender has a record of previous convictions as a legislative aggravating factor is a matter of some subtlety and I need not digress to analyse the judgments of the Court of Criminal Appeal in relation to this matter.

63 I believe in the circumstances that, without the facts in relation to all of his previous offences committed against police I could not, for the purposes of sentencing him in relation count 1B, determine that sub para (d) is made out beyond reasonable doubt. I believe I should limit the relevance of is criminal history to that count to what I have outlined. I do however feel that the previous conduct of the offender towards police established by other convictions, is an aggravating factor in relation to counts 2 and 3, albeit that those other matters were dealt with in the Local Court and may be matters of less seriousness than the matter with which I am currently concerned in count 1B.

64 With regard to the prisoner’s subjective circumstances, I have some evidence but not a great deal of evidence. Certainly no direct evidence from the prisoner, other than what came from him in the trial, primarily addressing the events of 28 July. I had helpful evidence from Pastor Jones, who is the Pastor of the Abundant Life Ministry. As I said earlier in passing to Mr Smith and the Crown, he gave impressive evidence.

65 As I pointed out in the course of submissions, it struck me that the person that Mr Jones has dealt with is a different person than the person demonstrated in the facts of this matter and by the prisoner’s criminal history. There may be two Mr Laceys. But the facts of the matter are that the person that Pastor Jones has dealt with, certainly did not demonstrate himself in any way, shape or form, on 28 July in his dealings with his various victims, to whom I have referred. I have taken Pastor Jones’ evidence into account and I have given it weight, both as I am required to do in assessing mitigating matters in the general common law sense, in assessing the appropriate sentence and also in determining the issue of whether there are special circumstances, for the fixing of a non-parole period.

66 To summarise what Pastor Jones said in his evidence: he runs a Ministry that provides a great deal of help to underprivileged people in Coffs Harbour, providing a type of soup kitchen and a discount supermarket.

67 He first met the prisoner in July 2007, he knew that the prisoner had had a background of drug usage, had been depressed about his personal circumstances and came to the Ministry looking for changes in his life, and I accept that the prisoner demonstrated to Pastor Jones, his capacity to make changes in his life. In fact over a period of time, up until approximately some weeks at least before the offences with which I am concerned, the prisoner seemed to embarked upon a different path.

68 It should be noted when one considers the detail of Pastor Jones’ evidence, that whilst the prisoner did seek to pursue a different path in a range of ways, this did not stop him committing offences. As I have pointed out, he was charged with offences on 12 January 2008, in the middle of the period of which Pastor Jones speaks, of resisting arrest and resisting or hindering police. He was further charged on 13 June 2008 with intimidating a police officer when the police came to his home, as I earlier outlined.

69 The Pastor gave evidence that under his direction the prisoner’s personality appeared to change and the Pastor became something of a father figure. He provided counselling and the prisoner reciprocated this counselling by making a constructive contribution to the religious community, assisting with work around the site of the premises where the Ministry conducts its work.

70 It is from Pastor Jones that I had evidence that the prisoner has two brothers, one is a man of substance with a business in Coffs Harbour, the other has had trouble with the law, as it is euphemistically expressed, and is currently in prison.

71 Mr Jones has met the prisoner’s mother in Murwillumbah and also met the two children of the prisoner from a prior relationship. My understanding is that the children are aged seventeen and eleven and the boy had travelled to Melbourne as I said earlier, before these offences and now both children are with their mother. I do not have a complete picture of their circumstances, nor is it argued that their circumstances present exceptional circumstances - that is, presents circumstances concerning third parties that might exceptionally impact upon the sentencing proceedings.

72 I accept Pastor Jones’ evidence that the prisoner has a deep affection for his children, that he was a caring father for them for a period of time, that he is saddened by the fact that they are now separated from him which is inevitable, that he is concerned about their welfare. But other than that, the evidence is very sparse, and there are no other conclusions I can reasonably reach.

73 As I have said earlier, there is a suggestion from Pastor Jones that the prisoner was stressed and agitated by the circumstances of his son returning to Melbourne and then not coming back to Coffs Harbour, and this showed in the prisoner behaving in a somewhat unusual way, so far as Pastor Jones was concerned, in the weeks leading up to this offence.

74 It seems as though the prisoner had changed in his attitudes and behaviour in the weeks leading up to this offence. But whether this was simply a return to his normal ways, or an aberration in the context of the Ministry provided to him by Reverend Jones, I am unable to say.

75 Pastor Jones acted as his support person on the day of his arrest for these matters. He noted the prisoner was very upset and very angry and that is self-evident from the facts and the prisoner had no right whatsoever to be angry towards Senior Constable Williams, for simply trying to arrest him and creating the situation that he has now created for himself and the stress and fear that he created for Senior Constable Williams.

76 I accept that Pastor Jones will support the prisoner on his release and that the community offers him support and there is corroboration or support for Pastor Jones in the references that were tendered. There were three references, all from persons associated with the Abundant Life Church, and they saw a side of the prisoner that is not self-evident from his conduct on as far as his criminal history. They refer to him as honest and reliable, generous in his contribution to the community, which Pastor Jones was concerned. They never saw him act violently or in a hostile fashion. One referee refers to him erring on the side of easy-going. None of these people felt threatened by him in their dealings with him.

77 In this community’s context it is clear the prisoner showed a capacity to be well behaved, respectful, industrious and for taking positive steps to change his life, notwithstanding its slings and arrows in the past. Unfortunately, however, the lessons he may have learnt from this community, were not operating upon him on 28 July.

78 This evidence from this community largely through Pastor Jones particularly has weight, in my view, in the consideration of the appropriate non-parole period.

79 With regard to some of the more technical aspects of this sentencing exercise firstly the prisoner has been in custody since 28 July 2008 as one would expect and for the reasons I have outlined I propose to date the sentence I impose from 28 July 2008.

80 I have had regard to Callaghan’s case ([2006] NSWCCA 58) which deals primarily with the issue of fixing sentences where there has been a revocation of parole or an existing gaol sentence. I have given consideration to whether I should have made the sentence I imposed, in an artificial way, partially accumulative or accumulative upon the sentences imposed in the District and Local Court. As I have pointed out I see that exercise as academic. If the sentences imposed by other courts had been longer there would have been some utility in some partial accumulation. However, as now constructed there is no utility, in the context of this sentencing exercise, in my view.

81 I am required to sentence the offender in accordance with the principles of Pearce v The Queen (1998) 194 CLR 610. That means I am required to fix an appropriate sentence for each offence and also required to give close regard to the totality of the criminality and to determine thus the issues of concurrency and accumulation that might arise when fixing sentences for different offences.

82 There is an increase of the totality of the criminality by the prisoner’s conduct after he escaped from his motor vehicle. I have already pointed out that the first resistance of Senior Constable Williams is the more serious of the two matters. The two resist arrest matters however are very close in time and in my view they should be dealt with by concurrent sentences. I do not believe the totality of the criminality in relation to the first resist arrest is much if at all increased by the conduct of the prisoner in clenching his fists and holding his arms tight before being dragged out to the front of he premises. However, because that offending increases the criminality exhibited in count 1B, I propose an accumulation by nine months upon the sentences for the resist arrest matters by the sentence for the use offensive instrument to avoid lawful apprehension.

83 Most importantly in relation to the principal offence I am required to take into account the Form 1 matters which show a course of serious criminal conduct in itself. I have had close regard to Attorney General’s application Number 1 of 2002 ((2002) 56 NSWLR 147). There the court held that the fact that there is a matter or there are matters to be taken into account on a Form 1 means that greater weight should be given to the need for personal deterrence and the communities entitlement to extract retribution. “The entire point of the process” is to impose a longer sentence or to alter the nature of the sentence that would be imposed if the principal offence had stood alone for sentence. It was wrong to suggest that the additional penalty should be small, sometimes it will be substantial. However, the Court noted that the sentencing process is only concerned with the principal offence not to determine appropriate sentences for matters listed on a Form 1 or to determine an overall sentence that would be appropriate for all the offences and to apply a discount giving appropriate weight to the matters otherwise to be taken into account. The Court stated that deterrence and retribution are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. Of course there are matters which will limit the extent to which the sentence for the principal offence may be extended, the terms of the legislation, the maximum penalty for the principal offence, the principal of totality are all relevant matters. It would be rarely appropriate for a sentencing judge to attempt to quantify the effect of the sentence, that is, for the principal offence, from taking into account Form 1 matters.

84 The offences included on a Form 1 will have significant lower saliences in the sentencing process for various reasons. But a judge must be careful to assess whether it is appropriate to proceed to sentence on that basis as there may be matters where the administration of justice can be brought into disrepute by the court proceeding to sentence a person guilty of criminal conduct on a “manifestly and adequate unduly narrow or artificial basis”.

85 I am required in the context of those remarks to have regard to the maximum penalty for the principal offence as with the matters in counts 2 and 3. There is no standard non-parole period as I understand it in relation to the principal offence.

86 I am required to have regard obviously in the context of those remarks to s 3A Crimes (Sentencing Procedure) Act. It seems having regard to the seriousness of the offending, the context in which it occurred and of course the matters that I have already referred to, that this is a matter where there is a need to ensure adequate weight is given to deterrence, both general and personal, and a need to ensure that the prisoner is adequately punished for the offence. There is in this matter to some extent an element to protect the community from the offender. His obvious antipathy towards police in the past and in the context of the facts of this matter is a matter of considerable concern. The prisoner will need to adjust his attitude on his release otherwise there will be risks in my view for police officers particularly should the offender come within their attention. I have to make the prisoner accountable for his actions, to denounce his conduct and to recognise the harm done to Senior Constable Williams and to the other Mr Williams, although Mr Williams’ offence is on the Form 1 as are the offences of the damage to property. He also damaged property at 20 Vincent Street but of course he is not charged with any offence in relation to that. I do not have a Victim Impact Statement from Senior Constable Williams, but this must have been a frightening experience. I noted, and I believe it was entirely genuine, that at one point of his evidence-in-chief the senior constable, who is a big man and a robust man and obviously a very brave man, checked himself. Clearly the events of this day which would have caused him a great deal of distress still live with him for some time and that would be natural.

87 With regard to s 21A Crimes (Sentencing Procedure) Act I have already made observations of the relevance of s 21A(2)(d) of that Act. Obviously I am required to have regard to s 21A(1) general principles of sentencing apply subject to any further specific matters. In the legislation the Court is not to have regard to any aggravating factor in sentencing if it is an element of the offence. Whilst it is an aggravating factor for the victim to be a police officer, to threaten use of violence, to threaten to use or use a weapon and the like matters expressed somewhat differently in the offence, are all included within the elements of the offence and it has not been submitted to the contrary.

88 Ultimately in relation to all the offences for sentence today it is clear that a common aggravating factor is that the offences were committed whilst the offender was subject to conditional liberty. The offender was not subject to parole, a breach of which is probably the most serious form of breach of conditional liberty, but he was on bail in relation to offences involving resistance of lawful authority of the police. As subsequent events revealed at the courts, he was guilty of those offences as well.

89 I do not believe any other aggravating factors were urged. It may be fairly said that the injuries suffered by Mr Williams that were exhibited in the photographs that were tendered were substantial, in that they were of substance, but I have no evidence that the injuries were life threatening. Certainly they were not nor am I provided with any evidence that they had any permanent consequences. The only matter that seems to linger is the emotional effect of the prisoner’s conduct but I have taken that into account in a more general sense.

90 With regard to mitigating factors I find that the offences were not planned offences. Otherwise the only other matter that I can conclude is a mitigating factor under s 21A(3) is the plea of guilty of the offender. I note in relation to the pleas of guilty the offender however is entitled to a discrete discount for the utilitarian value of the pleas. It was agreed by the Crown as I understood his submission, given the history of the litigation and the restrictions upon the capacity of the prisoner to plead to the relevant charges, that the range of discount should be between fifteen and twenty per cent. Ordinarily a plea of guilty at trial would attract a discount not much greater than, and usually around, ten per cent. But it is clear on the evidence available to me that the prisoner was charged with the serious offence of attempted murder and the opportunity of pleading to the alternative count was a restricted. It, in reality, only arose on arraignment in the District Court or on the commencement of the trial and it was not suggested to the contrary by his counsel. I could not afford the prisoner in these circumstances the full discount for the utilitarian value of the plea. I must say from my memory, although I have no transcript of the sentencing submissions, no submission was made about the resist arrest matters. But for consistency I have determined in the context of the judgment of Thomson and Houlton in light of the concession of the Crown which was reasonable that the appropriate discount here for each of the offences for the utilitarian benefit of the pleas of guilty should be twenty per cent.

91 I cannot conclude that a mitigating factor in this matter is remorse. Firstly the prisoner in the course of his evidence at the trial did express an apology or regret for his conduct. This was something said by him however, with respect, in passing and I have not had in the sentencing proceedings in my view, notwithstanding Pastor Jones’ evidence, sufficient evidence to satisfy me that the prisoner is genuinely contrite such as to satisfy what is required under s 21A(3)(i). But I do note the prisoner has expressed remorse in the course of the proceedings and has done so to Constable Williams.

92 To come back to the principal offence just for the moment, ultimately, in concluding the appropriate sentence bearing in mind the salience of the matters on the Form 1, I have determined that this offence is a very serious offence of its type. I cannot conclude that it is the worst offence of its type committed by the worst offender thus requiring the imposition of the maximum penalty. The offender’s record of disobedience of the law represents disobedience and resistance to police officers of a far less serious nature than that with which I am concerned now and there is no suggestion in the past the prisoner has used weapons against police, just his tongue or his body it would seem. I am not required for the purposes of this matter, given the legislative framework that is relevant, to make a determination about the matters falling in the mid range or not. But in relation to the offence under count 1B I need only say as I said it is a very serious offence of its type and the fixing of the appropriate sentence here, of course, includes the consideration of the additional conduct in Form 1.

93 It may be the case, to borrow the language of Pt 4 Div 1A Crimes (Sentencing Procedure) Act, that if the prisoner was standing for sentence only for the first part of his conduct, that is the impetuous decision to drive at Senior Constable Williams and his car in order to get away, the conduct standing alone at that point could be viewed as within the “mid range”, given the nature of the offensive instrument he used, the fact that he deliberately struck the police officer short of having an intent to inflict grievous bodily harm and the like. In my view what substantially adds to the seriousness of his conduct was the conscious decision to turn and return driving at the police officer or towards the police officer as he sought to escape. The submission was made to me that this happened over a short period of time and the prisoner’s actions did not involve him having a great deal of time to deliberate. That is true and I bear that in mind as determining that the offence falls just short of the worst case of its type. But the truth of the matter is in my view the prisoner did deliberate about what he was to do, only perhaps for a few seconds on the first occasion, but on the second occasion over a greater period of time knowing that the police officer was injured and in a character that suggests no real regard for his welfare.

94 The facts of the matter are that many of the offences that come to the courts of this type are offences, by their very nature given the elements, that involve actions that occur over a short period of time without much opportunity to deliberate. Some people can act in a way where clearly there was no deliberation, just a desire to get away without thinking through the consequences. But the prisoner had the opportunity, having struck Senior Constable Williams, to get away, at least for a limited period of time. Inevitably he would have been arrested of course. But he chose to come back and he chose to come back in circumstances where he knew exactly what he was doing. His evidence before this court, accepted by the jury, or at least raising the reasonably possibility that he was not guilty for the purposes of count 1A, showed the extent of his deliberation. I make that finding knowing full well that that deliberation did not include an intention to kill the police officer.

95 With regard to the resist arrest matters so far as deliberation is concerned clearly the first of the resist arrest matters reflected a conscious and deliberate decision by the prisoner to engage Senior Constable Williams. The second matter involved a relatively minor resistance, and the criminality of that, as I said, was incorporated into count 2.

96 A crucial issue in this matter was the issue of special circumstances. I do not need to fix a non-parole period in relation to the resisting police matters because those sentences will be eventually overtaken by the sentence for the principal offence. I have determined, however, that I should make an adjustment of the non-parole period to be fixed in this matter for the prisoner for a range of reasons, notwithstanding the objective seriousness of the offences. That is one factor that is relevant to fixing a non-parole period, because one is to ensure that one does not fix a non-parole period that inadequately addresses the need for the prisoner to remain in full-time custody for a minimum period.

97 But here the features that are relevant are these: firstly, there is to be a partial accumulation of sentence, which is itself a special circumstance, and that is unarguable. Secondly, this prisoner, whilst he has been in gaol before and whilst he has committed many offences in the Local Court, has never sentenced in a superior court, if I be so bold as to call the District Court a superior court, and certainly has not been subject, as I understand it, to any sentence involving a non-parole period.

98 The sentence I impose by way of non-parole period is a very substantial sentence and certainly the longest sentence he has served. The prisoner has family commitments, albeit that he is separated from his former partner, he maintains his interest in his children. He is a person who appears to have had chequered employment history. He will need professional assistance, it seems to me, to adjust to community living on his release. This is to ensure amongst other things that he does not commit further offences.

99 One would trust ultimately that the sentence I impose will have deterred him from behaving this way or even in a similar way again. But he will need assistance to find employment. He may need assistance in relation to drug and alcohol matters, although drugs and alcohol are not a feature of this particular offence. He may need assistance in relation to training and education programs, if they are suitable for him. I bear in mind of course he is a man in his mid-40s, but he does not seem to have had the opportunity or taken the opportunity to pursue such matters in the past.

100 I note that there was no pre-sentence report sought in this particular matter. I am unaware of the full extent of his contact with the Probation and Parole Service. It may be that such a report may have been unhelpful, but at the same time it seems to me that ultimately the matters that I have to decide in fixing a non-parole period are matters that require consideration irrespective of what the views of the Probation and Parole Service may be. The Probation and Parole Service may have concluded that he may require a low level of intervention or something similar. I believe such a view, if it was held, and I have no evidence of it, would be contrary to the real situation in this case. I believe the offender needs a significant level of supervision. He needs the Probation and Parole Service to address his anger management. Clearly he has an anger problem that he needs to address.

101 He also may need some medical counselling again. There is no medical evidence available or psychological evidence available to assist me in that regard and the sentencing of this offender has been difficult in that respect because as I’ve said on several occasions the prisoner’s state of mind on this occasion is not fully revealed, not from the prisoner and not from the evidence of Pastor Jones. All I really have that I can be satisfied of is a level of anger which was unjustified.

102 I appreciate, of course, in making the determination I have about non-parole period, that I cannot find the prisoner has good prospects of rehabilitation. I cannot find, of course, that the prisoner is unlikely to re-offend. But the purpose of parole supervision should be, if it works properly, not only to assist the prisoner but to assist the community by endeavouring to assist offenders to avoid offending in the future and provide offenders with the skills to avoid offending. I am mindful of the fact that Pastor Jones’ community will continue to provide assistance, and that is a positive thing as well. But in my view that assistance should be marshalled by the Probation and Parole Service so the community can at least have some confidence that if the prisoner is making progress that progress is being monitored.

103 I have regard, as it would be noted from what I have said up until the present time to all the submissions that have been put by the parties, I need not dwell upon the De Simoni issue raised by the Crown. Clearly I have dealt with that aspect of the matter and I am grateful for the Crown’s assistance in that regard.

104 I have had very close regard to all that was skilfully put on Mr Lacey’s behalf by his counsel. His success at the trial was very much dependant, in my view, upon the skill of his counsel, that is his success in being acquitted in relation to count 1A. The essential submission relating to special circumstances put by Mr Smith I accept, notwithstanding my disagreement with him as to Mr Lacey’s prospects of rehabilitation. I do not believe there is any need for me to go through the detail of those submissions any further than I have.

105 Thus, hopefully having covered all matters that are required now to be covered in sentencing an offender such as this prisoner, I will make the orders in relation to this matter. Sorry, Mr Lacey, if you do not mind standing up? in relation to the principal offence, that is count 1(b) - no my apologies.

106 In relation to count 2, that is the offence of resisting Senior Constable Williams, you are convicted. You are sentenced to a term of imprisonment of two years. That represents a twenty per cent discount upon two years and six months. That sentence will commence on 28 July 2008 and expire on 27 July 2010. I decline to fix a non-parole period for that matter because of the sentence I will impose in relation to count 1B.

107 In relation to the second offence of resisting arrest you are convicted. You are sentenced to a term of imprisonment of nine months. A discount of twenty per cent might involve a sentence of nine-and-a-half months but I have rounded the sentence down. It is effectively a discount of twenty-five per cent but only for rounding down purposes and it is academic in any event. That sentence will commence on 28 July 2008 and will expire on 27 April 2009. That sentence has now expired in fact.

108 In relation to the offence, the principal offence, talking into account the matters on the Form 1, the starting point of that sentence was nine years imprisonment given the maximum penalty is twelve years and the discount of twenty per cent on my calculation leaves me with a sentence of seven years and two months. In relation to that sentence I fix a non-parole period of four years and three months. That sentence will commence on 28 April 2009 and expire on 27 July 2013. In respect of that sentence I fix a balance of sentence of two years eleven months, and that sentence will expire on 27 June 2016. On my calculation the earliest date that you are eligible for release to parole will be 27 July 2013. That is a sentence of five years. Whether you are released to parole will be a matter for the parole authorities. You may not be familiar with the parole system but I only have the power to direct a person be released to parole if the sentence is three years or less, and you will have to satisfy the parole authorities of your suitability for release to parole. Just take a seat, sir.

109 The total sentence thus as I understand it will be seven years and eleven months from 28 July 2008 and the non-parole period is five years. Does that accord, gentlemen, with your note?

110 SMITH: Yes your Honour.

111 MCLENNAN: If it please your Honour, yes.

oOo