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R v Pagett

R v Pagett

Case [2024] NSWDC 186 5 April 2024

Mental health disorders

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Pagett [2024] NSWDC 186
Hearing dates: 5 April 2024
Date of orders: 5 April 2024
Decision date: 05 April 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate imprisonment sentence of 4 years with a non-parole period of 2 years 6 months

Catchwords:
CRIME — Violent offences — Recklessly cause grievous bodily harm — Use offensive instrument with intent to prevent lawful apprehension
TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Reckless and dangerous driving — Drive whilst disqualified
SENTENCING — Penalties — Imprisonment — Intensive Correction Order not appropriate
SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions — Victim a police officer
SENTENCING — Guidelines for sentencing — Role of guidelines
SENTENCING — Mitigating factors — Plea of guilty — Remorse
SENTENCING — Relevant factors on sentence — Dispute about objective seriousness — Form 1 offences — Purposes of sentencing
SENTENCING — Relevant factors on sentence — Multiple traffic offences — Totality— Co-offenders — Parity
SENTENCING — Sentencing procedure — Agreed facts — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Drug addiction — Impoverished childhood — Institutionalisation — Institutional abuse — Mental health disorders — Special circumstances

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Bolamatu v R [2003] NSWCCA 58
Bugmy v The Queen; [2013] HCA 37 (2013) 249 CLR 571
Decision restricted [2022] NSWCCA 246
Devaney v R [2012] NSWCCA 285
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
G v R (No 1) [2023] NSWCCA 320
Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346
Lloyd v R [2022] NSWCCA 18
Luque v R [2017] NSWCCA 226
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
Nasrallah v R [2021] NSWCCA 207
Owen v R [2022] NSWCCA 214
Paterson v R [2021] NSWCCA 273
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Pym v R [2014] NSWCCA 182
R vCahyadi [2007] NSWCCA 1; 168 A Crim R 41
R v Franks [2005] NSWCCA 196
R v Harris [2007] NSWCCA 130; 171 A Crim R 267
R v Holder; R v Johnston [1983] 3 NSWLR 245
R v Millwood [2012] NSWCCA 2
R v Sharpe [2006] NSWCCA 255
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Wheeler [2000] NSWCCA 34
R v XX (2009) 195 A Crim R 38
R v Zamagias [2002] NSWCCA 17
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
Van Ryn v R [2016] NSWCCA 1
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Category:

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Pagett

Details

AGLC: R v Pagett [2024] NSWDC 186
Case: [2024] NSWDC 186
Decision Date: 05 April 2024

CaseChat Overview and Summary

In the matter of R v Pagett, the defendant stood before the court on charges stemming from multiple incidents of violence, reckless driving, and driving while disqualified. The charges arose from an incident where Pagett allegedly used a firearm to resist arrest by police officers, causing them grievous bodily harm. Additionally, he was charged with driving while disqualified and driving in a reckless and dangerous manner. The case was heard in a higher court where sentencing was the primary issue.

The court was tasked with determining the appropriate sentence for Pagett, considering both aggravating and mitigating factors. Aggravating factors included the breach of conditional liberty, Pagett's criminal record, and the fact that the victims were police officers. The court also considered the serious nature of the traffic offences and the totality principle in relation to co-offenders. Mitigating factors considered were Pagett's plea of guilty and expressions of remorse, along with his drug addiction, troubled childhood, institutionalisation, abuse, and mental health disorders. The court had to balance these factors against the purposes of sentencing, particularly deterrence and retribution.

The court found that while Pagett's background and circumstances warranted some consideration, the severity of his actions necessitated a substantial sentence. The court concluded that an intensive correction order was not appropriate given the seriousness of the offences. After weighing all the factors, the court imposed an aggregate imprisonment sentence of four years with a non-parole period of two years and six months. The court meticulously applied sentencing guidelines, ensuring that the sentence reflected the objective seriousness of the offences and adhered to the principles of parity and proportionality.

Orders

Orders of the court

Aggregate imprisonment sentence of 4 years with a non-parole period of 2 years 6 months

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Pagett [2024] NSWDC 186

Most Recent Citation

R v McLachlan [2000] VSC 516

Cases citing this decision · 9 of 9 shown

R v Tawa
[2019] NZHC 2451

…d R v Hare CA332/99, 15 November 1999. 8 R v Myatt [1991] 1 NZLR 674, (1990) 7 CRNZ 304. 9 R v McKinnon [1980] 2 NZLR 31 (CA) at 37. 10 At 36. 11 See R v Pagett (1983) 76 CAR 729.…
Moss v Police
[2015] NZHC 2094

…ourse, be broken by an intervening act. A “free, deliberate and informed” act of a third party will usually be considered an intervening act. See R v Pagett (1983) 76 Cr App R 279. But note the comments of Lord Hoffmann in Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] 1 All ER 481 (HL) to the e…
R v Donjerkovic
[2012] SASCFC 2 Para 25

…Four members of the Court took the approach that the question was whether the relevant connection was “sufficiently substantial”: Deane and Dawson JJ at 412, Toohey and Gaudron JJ at 423. In Royall McHugh J differed from the other members of the Court on the question of whether or not the Judge’s di…
Krakouer v The State of Western Australia
[2006] WASCA 81 Para 6

…McHugh J considered the issue of causation in greater length. He said (at 441 ‑ 442): "Causation is a question of fact: Reg. v. Evans & Gardiner [No. 2] [1976] V.R. 523, at p. 527; Reg. v. Pagett (1983) 76 Cr. App. R. 279, at pp. 290 ‑ 291. To constitute a cause for the purposes of the criminal law,…
R v Japaljarri
[2002] VSCA 154 Para 1

…The applicant contends that there was a reasonable possibility that death was not due to any blow struck by him and, therefore, the Crown had not established causation, beyond a reasonable doubt. The issue of causation was a question of fact, to be determined by the jury.[29] The fundamental questio…
Stanik v The Queen
[2001] WASCA 333 Para 4

…in attempting to escape the violence of the accused did not destroy the causative connection with such violence: Reg v Pitts (1842) Car & M 284; Reg v Pagett (1983) 76 Cr App R 279 at 289 per Robert Goff LJ. Mason CJ at 389 mentioned a variant on this formulation in terms that: "... the victim's act which results in…
R v McLachlan
[2000] VSC 516 Para 1

…The authorities on the topic of causation cover a wide variety of fact situations. However, there are a number of statements of general principle. In R v. Pagett (1983) 76 C.A.R. 279, the English Court of Appeal said, at p.288:…
The Queen v Ten Bohmer
[2000] NZCA 189 Para 6

…an intervening act. A “free, deliberate and informed” act of a third party will usually be considered an intervening act. See R v Pagett (1983) Cr App R 279. But note the comments of Lord Hoffman in Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] 1 All ER 481 (HL) to the effect that this approach…
R v Hind and Harwood
[1995] QCA 202

…[No. 2] [1976] V.R. 523 at p. 527 ; Reg. v. Pagett (1983) 76 Cr.App.R. 279, at pp. 290-291 . To constitute a cause for the purposes of the criminal law, it is not necessary that an act or omission be the sole or main cause of a wrong: Pagett . But, as I have indicated, the purpose of the legal doctr…

View all 9 citing cases →

Cases cited in this decision · 31 of 31 shown

DG v R (No 1)
[2023] NSWCCA 320 Para 65

…a of guilty, could not be met: Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, adopting R v Zamagias [2002] NSWCCA 17 and DG v R (No 1) [2023] NSWCCA 320.…
Stanley v DPP (NSW)
[2023] HCA 3 Para 65

…a sentence of less than three years, even making allowance for the plea of guilty, could not be met: Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, adopting R v Zamagias [2002] NSWCCA 17 and DG v R (No 1) [2023] NSWCCA 320.…
Bektasovski v The the King
[2022] NSWCCA 246 Para 28

…believe it necessary to locate objective seriousness of offences on a hypothetical range and that such attempts can be unhelpful: Decision restricted [2022] NSWCCA 246 at [11]; Paterson v R [2021] NSWCCA 273 at [32]-[33]. But I am obliged to resolve disputes about such matters: Owen v R [2022] NSWCCA 214.…
Owen v R
[2022] NSWCCA 214 Para 28

…restricted [2022] NSWCCA 246 at [11]; Paterson v R [2021] NSWCCA 273 at [32]-[33]. But I am obliged to resolve disputes about such matters: Owen v R [2022] NSWCCA 214.…
Lloyd v R
[2022] NSWCCA 18 Para 42

…here a person is attempting to put false or inconsistent material before the court. She does not simply parrot what fell from the offender: Lloyd v R [2022] NSWCCA 18; Devaney v R [2012] NSWCCA 285 at [88]; Luque v R [2017] NSWCCA 226 at [116]; Pym v R [2014] NSWCCA 182 at [79].…
Paterson v R
[2021] NSWCCA 273 Para 28

…seriousness of offences on a hypothetical range and that such attempts can be unhelpful: Decision restricted [2022] NSWCCA 246 at [11]; Paterson v R [2021] NSWCCA 273 at [32]-[33]. But I am obliged to resolve disputes about such matters: Owen v R [2022] NSWCCA 214.…
Nasrallah v R
[2021] NSWCCA 207 Para 2

…Childhood trauma, as a victim of assaults, witnessing domestic violence and sexual assault: Nasrallah v R [2021] NSWCCA 207; and…
R v Holder
[2019] SASCFC 73 Para 67

…te sentence to achieve an appropriate relativity between the total of the criminality and the total of the sentences: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ). As I will be giving an aggregate sentence, I am required to indicate an appropriate sentence for each offence and then structur…
Luque v R
[2017] NSWCCA 226 Para 42

…efore the court. She does not simply parrot what fell from the offender: Lloyd v R [2022] NSWCCA 18; Devaney v R [2012] NSWCCA 285 at [88]; Luque v R [2017] NSWCCA 226 at [116]; Pym v R [2014] NSWCCA 182 at [79].…
R v Van Ryn
[2016] NSWCCA 1 Para 68

…fences. But here, while they are different, each offence form part of the one incident and the two most serious matters are interrelated: Van Ryn v R [2016] NSWCCA 1 at [228]-[230]; R v Wheeler [2000] NSWCCA 34 at [36]-[37]; R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46]; R v Cahyadi [2007] NSWCCA 1; 168 A…
Pym v R
[2014] NSWCCA 182 Para 42

…parrot what fell from the offender: Lloyd v R [2022] NSWCCA 18; Devaney v R [2012] NSWCCA 285 at [88]; Luque v R [2017] NSWCCA 226 at [116]; Pym v R [2014] NSWCCA 182 at [79].…
Munda v Western Australia
[2013] HCA 38 Para 71

…the dignity of a victim of violence and express the community’s disapproval of the offending by a retributive sentence: Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [52]-[58].…
Bugmy v The Queen
[2013] HCA 37 Para 1

…Childhood deprivation: Bugmy v The Queen ; [2013] HCA 37 (2013) 249 CLR 571;…
Devaney v R
[2012] NSWCCA 285 Para 42

…put false or inconsistent material before the court. She does not simply parrot what fell from the offender: Lloyd v R [2022] NSWCCA 18; Devaney v R [2012] NSWCCA 285 at [88]; Luque v R [2017] NSWCCA 226 at [116]; Pym v R [2014] NSWCCA 182 at [79].…
R v Millwood
[2012] NSWCCA 2 Para 60

…ecause Pagett’s moral culpability is less than the culpability of an offender whose formative years were not so marred: Bugmy at [40]; R v Millwood [2012] NSWCCA 2 at [69]. Common sense, common humanity, dictates that he will have fewer emotional resources to guide his behavioural decisions.…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 3

…Also underlying mental health issues: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].…
R v Harris
[2007] NSWCCA 130 Para 68

…and the two most serious matters are interrelated: Van Ryn v R [2016] NSWCCA 1 at [228]-[230]; R v Wheeler [2000] NSWCCA 34 at [36]-[37]; R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46]; R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41 at [27]; R v XX (2009) 195 A Crim R 38 at [52].…
Cahyadi v R
[2007] NSWCCA 1 Para 68

…and the two most serious matters are interrelated: Van Ryn v R [2016] NSWCCA 1 at [228]-[230]; R v Wheeler [2000] NSWCCA 34 at [36]-[37]; R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46]; R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41 at [27]; R v XX (2009) 195 A Crim R 38 at [52].…
Sharpe v R
[2006] NSWCCA 255 Para 24

…s crime and the courts, as I have said, adopt a serious approach with respect to offences such as this, committed against police officers: R v Sharpe [2006] NSWCCA 255 at [72].…
R v Franks
[2005] NSWCCA 196 Para 22

…d had been directed to stop. I accept that this case is different from a case where multiple blows with a weapon are struck to an officer: R v Franks [2005] NSWCCA 196 at [26]-[27].…
Bolamatu v The Queen
[2003] NSWCCA 58 Para 63

…I have had a chance to refer to other cases such as Bolamatu v R [2003] NSWCCA 58, but every offence and every offender is different and requires individual consideration.…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 6

…of Criminal Appeal in relation to those matters: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39]-[42].…
R v Zamagias
[2002] NSWCCA 17 Para 65

…, even making allowance for the plea of guilty, could not be met: Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, adopting R v Zamagias [2002] NSWCCA 17 and DG v R (No 1) [2023] NSWCCA 320.…
R v Simpson
[2001] NSWCCA 534 Para 66

…ery minimum that the purposes of sentencing require, even though I have taken into account the strong subjective case made on his behalf: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
R v Wheeler
[2000] NSWCCA 34 Para 68

…each offence form part of the one incident and the two most serious matters are interrelated: Van Ryn v R [2016] NSWCCA 1 at [228]-[230]; R v Wheeler [2000] NSWCCA 34 at [36]-[37]; R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46]; R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41 at [27]; R v XX (2009) 195 A Crim…
Regina v Simpson
[1999] NSWCCA 367 Para 66

…e purposes of sentencing require, even though I have taken into account the strong subjective case made on his behalf: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
R v Henry
[1999] NSWCCA 111 Para 52

…as the origin and extent of his addiction, and his attempts to overcome it, will impact on his prospects of either recidivism or reform: Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273].…
R v Henry
[1999] NSWCA 111 Para 52

…extent of his addiction, and his attempts to overcome it, will impact on his prospects of either recidivism or reform: Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273].…
Postiglione v the Queen
[1997] HCA 26 Para 62

…rs, the respective degrees of culpability of Pagett and Nobrega must be considered – “like must be compared with like”: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. But that principle only applies to the traffic matters. Given the penalties that were imposed on Nobrega by Judge Sutherland SC, I do…
Mill v The Queen
[1988] HCA 70 Para 67

…ropriate sentence for each offence and then structure the sentence so that it is just and appropriate to the totality of his crimes: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63].…
Veen v The Queen (No 2)
[1988] HCA 14 Para 35

…nce which is disproportionate to the seriousness of the offence, a more severe penalty is warranted because of that record: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [477]. At the same time, his record must also be taken into account when I come to consider the question of institutionalisation…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 6)
Criminal Procedure Act 1986 (NSW)
1 mention

Medium Neutral Citation:	R v Pagett [2024] NSWDC 186
Hearing dates:	5 April 2024
Date of orders:	5 April 2024
Decision date:	05 April 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate imprisonment sentence of 4 years with a non-parole period of 2 years 6 months
Catchwords:	CRIME — Violent offences — Recklessly cause grievous bodily harm — Use offensive instrument with intent to prevent lawful apprehension TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Reckless and dangerous driving — Drive whilst disqualified SENTENCING — Penalties — Imprisonment — Intensive Correction Order not appropriate SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions — Victim a police officer SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty — Remorse SENTENCING — Relevant factors on sentence — Dispute about objective seriousness — Form 1 offences — Purposes of sentencing SENTENCING — Relevant factors on sentence — Multiple traffic offences — Totality— Co-offenders — Parity SENTENCING — Sentencing procedure — Agreed facts — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Drug addiction — Impoverished childhood — Institutionalisation — Institutional abuse — Mental health disorders — Special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Bolamatu v R [2003] NSWCCA 58 Bugmy v The Queen; [2013] HCA 37 (2013) 249 CLR 571 Decision restricted [2022] NSWCCA 246 Devaney v R [2012] NSWCCA 285 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 G v R (No 1) [2023] NSWCCA 320 Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346 Lloyd v R [2022] NSWCCA 18 Luque v R [2017] NSWCCA 226 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 Nasrallah v R [2021] NSWCCA 207 Owen v R [2022] NSWCCA 214 Paterson v R [2021] NSWCCA 273 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Pym v R [2014] NSWCCA 182 R vCahyadi [2007] NSWCCA 1; 168 A Crim R 41 R v Franks [2005] NSWCCA 196 R v Harris [2007] NSWCCA 130; 171 A Crim R 267 R v Holder; R v Johnston [1983] 3 NSWLR 245 R v Millwood [2012] NSWCCA 2 R v Sharpe [2006] NSWCCA 255 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Wheeler [2000] NSWCCA 34 R v XX (2009) 195 A Crim R 38 R v Zamagias [2002] NSWCCA 17 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 Van Ryn v R [2016] NSWCCA 1 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
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