R v Sharman
[2017] ACTSC 399
•29 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sharman |
Citation: | [2017] ACTSC 399 |
Hearing Date: | 24 November 2017 |
DecisionDate: | 29 November 2017 |
Before: | Burns J |
Decision: | See [14] – [19] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using offensive weapon likely to endanger human life or cause a person grievous bodily harm – intending to prevent or hinder a police officer from lawfully investigating act or matter reasonably calling for investigation by officer – high level of risk to others – recklessness – mid-range of offences – driving whilst disqualified as a repeat offender – prior convictions – Pre-Sentence Report – deterrent sentences – pleas of guilty – sentences of imprisonment – summary offences – Good Behaviour Orders |
Legislation Cited: | Crimes Act 1900 (ACT) s 27(4) Road Transport (Driver Licensing) Act 1999 (ACT) s 32(1)(a) |
Cases Cited: | R v O’Neill [2004] ACTSC 64 R v Williams [2017] ACTSC 298 |
Parties: | The Queen (Crown) Joshua Sharman (Offender) |
Representation: | Counsel Mr D Sahu Khan (Crown) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird & Co Solicitors (Offender) | |
File Numbers: | SCC 3 of 2017; SCC 4 of 2017; SCC 5 of 2017 |
BURNS J:
Joshua Kyle Sharman, you appear before me today for sentence with respect to a number of offences. The principal offence is one of using an offensive weapon likely to endanger human life or cause a person grievous bodily harm, and at the time intended to prevent or hinder a police officer from lawfully investigating an act or matter that reasonably called for investigation by the officer. That is an offence contrary to s 27(4) of the Crimes Act 1900 (ACT) and the maximum penalty for that offence is 15 years imprisonment.
The second significant offence is one of driving whilst disqualified as a repeat offender. That is an offence contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) and is punishable by a fine of $15,000, imprisonment for 12 months, or both. There is also an automatic disqualification period for 24 months or, if the Court orders, a longer period.
You are also to be sentenced with respect to offences of failure to prevent the use of a vehicle with a number plate not attached as required and also failing to stop when requested by police.
An agreed Statement of Facts was tendered at the sentence hearing. I will not now recite the facts. I note that on 4 September 2017, you pleaded guilty to the principal charge and that plea was entered on the day on which you were due to take your trial. On the same day, you pleaded guilty to the summary charges which are now before this Court. On 22 September 2016, you pleaded guilty to the charge of driving whilst disqualified in the Magistrates Court, a plea which was entered at the first mention.
With regard to the objective seriousness of the principal offence, I note that the offence occurred in the middle of the day in a suburban area. It involved a high level of risk to others and, in particular, to those police who were present. In that regard, I am not satisfied beyond reasonable doubt that you actually intended to strike police with the car that you were driving or to actually cause them injury but the facts reveal a degree of recklessness bordering on indifference to the possibility that police could have been harmed or killed by the way in which you drove the motor vehicle. The course of driving was so threatening that one of the police reasonably drew a firearm during the course of your actions. The offensive weapon used, a motor vehicle, when used in the way in which it was, is a particularly dangerous weapon. I also note that multiple police officers were endangered throughout the course of this offence. I would assess this offence as being in the mid-range of such offences.
Turning to the objective seriousness of the offence of driving whilst disqualified, I note that you have seven prior convictions for driving whilst disqualified recorded between 2010 and 2016 although the last such offence was actually committed on 5 May 2015. Your history reveals a contumacious disregard for court orders prohibiting you from driving motor vehicles. You were originally disqualified from holding a licence because of drink driving offences, that is offences that posed a potential danger to other members of the public. The current offence also involves driving that posed a danger to others. I note that whilst this is a common feature with respect to the principal offence and also the charge of driving whilst disqualified, you are not to be punished twice for that feature. In my opinion, this charge of driving whilst disqualified falls into the worst category of such offences. You are a multiple offender beyond that which is necessary to constitute a repeat offender for the purposes of the particular charge. You have frequently presented a danger to the public when driving motor vehicles. You appear to have an attitude that the laws relating to the use of motor vehicles do not apply to you and you have also been sentenced to imprisonment for this offence previously but it has not deterred you from committing further offences.
A Pre-Sentence Report was prepared for the sentence hearing. You are a 29‑year‑old Indigenous man. Corrections records show poor compliance with previous community-based orders. There have been problems with your conduct previously in custody but on this occasion, your conduct in custody has been described as satisfactory. Your parents divorced when you were eight years old and you have a poor relationship with your father. You continue to have a supportive relationship with your mother. You are currently single.
You completed Year 11 at Tuggeranong College despite several suspensions for violence. Subsequently, you had intermittent employment in unskilled work. You were, however, unemployed at the time of these offences. Corrections records show that you have been employed in the AMC and you have also participated in horticulture and art programs.
The Pre-Sentence Report notes that you have prior diagnoses of dissocial personality disorder borderline type and oppositional defiance disorder. You reported commencing alcohol use at age nine and by age eighteen, you were drinking to intoxication daily. You also commenced cannabis use at about age nine. I note that there is no suggestion in the material before me that either alcohol abuse or cannabis use played any part in the commission of these offences. You commenced the SMART Recovery Program in the Alexander Maconochie Centre but you were exited in April this year for non‑attendance. You have applied for residential rehabilitation programs at Bennelong’s Haven and Arcadia House but you were found unsuitable for these programs. You told the author of the Pre-Sentence Report that you last used methylamphetamine in September this year whilst in custody. You were assessed by the author of the Pre-Sentence Report as at medium to high risk of reoffending.
A forensic psychological report dated 20 November 2017 was also tendered. It noted a history of engagement with mental health services since 1998 when you were ten years old. You have a prior history of suicidal ideation and behaviour. Your prior history of psychosis type symptoms is, according to the author of the report, most likely drug-related rather than indicative of an underlying illness such as schizophrenia. The author of the report considered that you would benefit from engagement with a psychologist to further develop insight and skills in the domains of interpersonal and coping strategies and you would also benefit from addressing drug use. The author of the report also expressed the opinion that you are at heightened risk of future psychosis given your history and your difficulties abstaining from methylamphetamine use.
The principal offence and the offence of driving whilst disqualified are clearly very serious offences and call for deterrent sentences. Your prior history demonstrates that it is necessary to deter you from further offending, particularly involving the use of motor vehicles. It is also necessary to make it known generally that this Court will act to deter offences involving the endangerment of police officers in the execution of their duties. Your pleas of guilty were not entered at an early opportunity except for the plea of guilty with respect to the charge of driving whilst disqualified. The other pleas were entered on the day on which you were due to commence your trial. A very limited utilitarian value was evident with respect to these late pleas and they indicate no real remorse on your behalf. I would reduce the otherwise appropriate sentences with respect to the offences upon which late pleas were entered by five per cent. I will reduce by approximately 25 per cent the sentence that would otherwise be appropriate with respect to the offence of driving whilst disqualified. I am guarded about your prospects for rehabilitation although you have improved your conduct in custody on this occasion and your willingness to seek out residential rehabilitation options may be signs of a growing maturity.
I was taken to the decision of Mossop J in R v Williams [2017] ACTSC 298 (Williams) where his Honour imposed a sentence of three years for an offence under the same provision to the principal offence, but which was described by your counsel as worse than the present offence. First, I do not accept that the facts in Williams made that offence objectively more serious than the present offence. It appears to me that greater danger was presented to more police in the present case than in the case of Williams.
Secondly, whilst the sentencing judge in Williams described that offence as in the mid to upper range of objective seriousness, his Honour only imposed a sentence of 20 per cent of the maximum prescribed. Even allowing for a 15 per cent reduction in sentence for a plea of guilty in Williams, this must be seen as towards the bottom of the range for appropriate sentences. I also note that in R v O’Neill [2004] ACTSC 64, a decision of Connolly J delivered in this Court on 16 September 2004, his Honour imposed a sentence of five years imprisonment for an offence which was similar to the present. In my opinion, nothing less than immediate terms of full-time imprisonment are appropriate with respect to the principal offence and also the offence of driving whilst disqualified. Your counsel very properly conceded that only sentences of imprisonment were appropriate with respect to those offences. I note that you have been in custody now for some time, albeit that part of the period that you have spent in custody has, in effect, been serving sentences imposed in the Magistrates Court on 22 September 2016. On that date, you were convicted of a number of offences, including a charge of driving whilst disqualified and a charge of robbery. Those offences occurred in May 2015 some 15 months prior to the offences which are now before me. As such, there is little reason with respect to the timing of these offences to order any significant concurrency between the sentences imposed by the Magistrate and the sentences which I will impose. In my opinion, the principles of totality do not require concurrency with respect to these sentences.
Sentence
With respect to the principal offence (XO2017/31083), I record a conviction and a sentence of five years imprisonment is the appropriate starting point for that offence. I will reduce that by three months to mark your plea of guilty, leaving a sentence of four years and nine months imprisonment. This will commence on 25 August 2017.
With respect to the charge of driving whilst disqualified (CC16/9246), I will record a conviction. I would have imposed, but for your plea of guilty, a sentence of 10 months imprisonment but I will reduce that to seven months imprisonment in order to mark your plea of guilty. Of that period, four months will be served concurrently with the sentence imposed on the principal offence and three months will be served consecutively upon that sentence. This will commence on 25 January 2022.
The sentence will therefore be one of five years imprisonment commencing on 25 August 2017 which is the date that I was advised by counsel is the appropriate date, bearing in mind the periods of pre-sentence custody applicable to the present offences, and will expire on 24 August 2022.
I will set a non-parole period of three years commencing on 25 August 2017 and expiring on 24 August 2020.
With regard to the charge of driving whilst disqualified, I simply note that the automatic disqualification will apply.
With regard to the remaining summary matters (charge of fail to stop motor vehicle for police (CC16/9249); charge of fail to prevent use of vehicle with number plate not attached as required (CC 16/9248)), I will simply record convictions and there will be Good Behaviour Orders for a period of three months from today limited to the core conditions, bearing in mind the sentences that I have otherwise imposed.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns. Associate: Date: 22 March 2018 |