R v Whalen-Johnson

[2024] NSWDC 430

District Court

New South Wales

Medium Neutral Citation:

R v WHALEN-JOHNSON [2024] NSWDC 430

Hearing dates:

24 May 2024

Date of orders:

05 July 2024

Decision date:

05 July 2024

Jurisdiction:

Criminal

Before:

D Barrow SC DCJ

Decision:

See [108]-[114]

Catchwords:

Sentence - Aggravated dangerous driving, causing grievous bodily harm - escaping police pursuit

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Road Transport Act 2013

Cases Cited:

Tepania v R [2018] NSWCCA 247, 275 A Crim R 233

Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118

R v Geddes (1936) 36 SR (NSW) 554

R v Dodd (1991) 57 A Crim R 349

Markarian v R [2005] HCA 25; 228 CLR 357

Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Muldrock v The Queen [2011] HCA 39

Khoury v R [2011] NSWCCA 118

R v Jurisic (1998) 45 NSWLR 209

R v Whyte (2002) 55 NSWLR 252

R v Errington (2005) 157 A Crim R 553

Kerr v R [2016] NSWCCA 218

Bugmy v R [2013] HCA 37, 249 CLR 571

Veen (No 2) [1988] HCA 14, 164 CLR 465

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Category:

Sentence

Parties:

Rex (Crown)
Mr Whalen-Johnson (Offender)

Representation:

For Mr Whalen-Johnson:
Ms K Grimsby, Solicitor

For the Crown:
Mr R Harris, Solicitor

File Number(s):

2022/00389727

JUDGMENT

1. Craig Whalen-Johnson (“the offender”) is to be sentenced for the following offences:

1. Aggravated dangerous driving, causing grievous bodily harm, escaping police pursuit, contrary to s 52A(4) of the Crimes Act 1900.(Sequence 1). The maximum penalty is 11 years imprisonment. There is an automatic licence disqualification of three years with a minimum disqualification period of 12 months. No standard non-parole period.

2. Failing to stop and assist after his vehicle caused grievous bodily harm contrary to s 52AB(2) of the Crimes Act 1900 (Sequence 4). The maximum penalty for this offence is seven years imprisonment. Automatic disqualification period is three years with a minimum disqualification of 12 months. There is no standard non-parole period.

3. Driving a conveyance taken without the consent of the owner contrary to s 154A(1)(b) Crimes Act, sequence 7. The maximum penalty for this offence is five years imprisonment, there is no standard non-parole period.

Form 1 matter

2. The offender also asked that an offence of common assault be taken into account when he is sentenced with regard to the aggravated dangerous driving occasioning grievous bodily harm offence. Consistent with the guideline judgment, Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 56 NSWLR 146, a separate penalty is not to be imposed, however, the existence of an offence on the Form 1 does in some circumstances allow for upward pressure on a sentence because of the need to give greater weight to personal deterrence and retribution.

S166 matter

3. A further offence of driving whilst unlicensed, contrary to s53(1)(a) of the Road Transport Act 2013 is before the Court pursuant to s166 of the Criminal Procedure Act 1986.

Purposes of sentencing

4. Section 3A of the Crimes (Sentencing Procedure) Act 1999 requires the Court to have regard to all the purposes of sentencing: adequate punishment, general and specific deterrence, the protection of the community, promotion of the rehabilitation of the offender, accountability, denunciation and recognition of the harm done to the victim of the crimes and to the community. In this case all these factors are engaged.

Discount for guilty pleas

5. Pleas of guilty were entered in the Local Court on 16 February 2024 with regard to the above offending. The offender is entitled to a 25% discount for the utilitarian value of his guilty pleas, consistent with s25D of the Crimes (Sentencing Procedure) Act 1999.

The agreed facts

6. On 23 December 2022, a 2010 Volkswagen Jetta owned by Courtney Hill was stolen in Albury. On 26 December 2022 at about 1AM, the offender drove the stolen vehicle and picked up 19-year-old Jake Freyer and 16-year-old KR. The car was then driven by the offender and Mr Freyer from Albury to the Central Coast. A subsequent review of the mobile phone belonging to KR revealed 12 videos that captured the vehicle travelling at speeds far in excess of the 110 km per hour speed limit appropriate for the Hume Highway. Many of these video snippets recorded the offender as the driver. The high-speed recorded was a nine-second video of the offender driving at between 216 and 217 km an hour at 6AM.

7. Although there is no discrete charge solely referable to this protracted period of high-speed and dangerous driving, it is relevant to an assessment of the objective seriousness of Sequence 7, the drive conveyance taken without the consent of the owner offence. In my view, the offender’s driving recorded on the mobile phone between 1.43AM and 6.05AM makes this offence significantly more serious than the typical offence of this type.

8. At about 9.05AM on 26 December 2022, the stolen vehicle was identified as such by a police highway patrol car. An attempt was made by a second highway patrol car to follow the vehicle in the northbound lane of the Old Pacific Highway at Somersby at 9.11AM, but the police were unable to catch up to it.The offender’s vehicle was observed in the distance, travelling on the Central Coast Highway at Kariong and then observed at the Ampol Service Station on Manns Road in Gosford West. The offender was driving the car at the time. After refuelling, the offender reversed the car and drove away from the service station without paying. A police pursuit then commenced.

9. Sergeant Kunicki was riding a police motorbike during the pursuit, and although he reached speeds of up to 150 kilometres per hour in the 60 kilometres per hour residential zone, the stolen vehicle was travelling more quickly. By 9.18AM the police pursuit was terminated after the offender overtook a vehicle on the incorrect side of the road over double unbroken white lines and narrowly missed an oncoming southbound vehicle. The agreed facts at [11] display a still shot of this moment taken from footage.

10. The agreed facts note that at 9.19.45 AM, the offender was still driving dangerously, KR sent a message to his mother saying, “I love you so much.” At 9.21AM, road spikes were deployed on a crossing outside 9 Washington Avenue, prompting the offender to brake heavily at high speed and perform a U-turn before driving away in the direction he had come from.

11. At 9.21AM, the police pursuit recommenced with Senior Constable Bulger pursuing the vehicle with his lights and sirens activated. Sergeant Kunicki was still riding his motorbike and travelling in the opposite direction to the offender. As the offender’s vehicle approached Sergeant Kunicki, his speed increased to about 100 kilometres an hour. The offender’s vehicle drove towards Sergeant Kunicki, who was forced to take evasive action by making a left-hand turn to avoid a collision. The officer considered that his life would have been in danger if he had not moved out of the path of the vehicle driven by the offender. The agreed facts include still shots taken from the officer’s helmet and footage of the incident was played during the sentencing hearing.

12. The offender then continued to drive along Narara Valley Drive on both the correct and the incorrect sides of the road. The manner of his driving was recorded and played during the sentence hearing. His driving was extremely dangerous and displayed an absolute abandonment of responsibility for the safety of anyone unlucky enough to be in his path.

13. The passengers in the stolen vehicle, Jake Freyer and KR, both asked the offender to stop and let them out. Instead, the offender repeatedly punched Jake Freyer in the head. This conduct constituted the basis for the common assault offence on the Form 1. It is not a trivial example of a common assault offence given the context in which it occurred, and I note the maximum penalty is imprisonment for two years.

14. At 9.22AM Senior Constable Owen, in preparation for deploying further road spikes near the Narara train station, walked towards a pedestrian refuge on the Narara Valley Drive at a point level with the railway station. He waited for a civilian vehicle to pass so that he could cross the road to deploy the road spikes. As he waited near the pedestrian refuge in the middle of the road, he saw the offender’s stolen vehicle approaching at about 120 kilometres per hour. Footage captures what followed with the stolen vehicle moving in a sideways skid described as a ‘yaw’. The vehicle then changed direction in a harsh manner and began sliding in the opposite direction with the offender beginning to lose control. The vehicle narrowly missed a head-on collision with a northbound car prior to returning to the correct side of the road just behind a white sedan that was also travelling in a southbound direction. The offender’s vehicle narrowly missed a raised pedestrian refuge at the northern side of the Narara train station.

15. The offender’s vehicle then overtook the white northbound vehicle. CCTV footage from the Narara railway station captures both the white vehicle and the stolen vehicle travelling about 40 metres from the pedestrian island adjacent to where Senior Constable Owen was located. He threw road spikes across the southbound lane, prompting the offender to take evasive action, crossing onto the incorrect side of the road. The offender’s vehicle mounted the concrete part of the pedestrian refuge and collided on the passenger side of the vehicle with the curved metal bar designed to protect pedestrians. The stolen vehicle was travelling between 80 and 100 kilometres an hour as it approached Senior Constable Owen, who jumped but could not avoid being struck.

Factual dispute

16. The Court was informed that there was a factual dispute about whether the offender intentionally drove his vehicle directly towards Senior Constable Owen and whether he used his brakes either immediately before, during or after the vehicle’s impact with him.

17. The Crown position was not that the offender intentionally tried to cause grievous bodily harm to the officer but instead that the change of direction of the vehicle was intentional and occurred to scare the officer and to deter the pursuit that was occurring at that time. (T12.34 on 24 May 2024)

18. On the offender’s behalf it was submitted that the available footage of the offender’s driving would result in the Court concluding that he was not a skilled driver and that in the moments before the collision with Senior Constable Owen, the offender was “barely in control” of the vehicle and the collision was not a consequence of the offender deliberately driving at the officer. On the related issue of braking, the submission was made that it was not possible to conclude whether or not the brakes of the vehicle were applied.

19. Having repeatedly reviewed the footage of the incident, it is apparent that the offender’s vehicle swerved right and towards Senior Constable Owen at almost the same moment that Senior Constable Owen threw the road spikes directly in front of the path of the offender’s vehicle.

20. Any conclusion that the offender deliberately drove the car in the direction of the officer would be an aggravating fact required to be proved beyond a reasonable doubt. In my view, the offender took evasive action to avoid the road spikes, as he had done earlier, and attempted to avoid them by abruptly swerving towards the northbound lane. The throwing of the road spikes and the change in direction of the offender’s car happened in an instant. The offender’s attempt to avoid the road spikes, together with the speed at which he was travelling, the absence of any concern on his part for the safety of others and his own limited competence as a driver, are more likely to be the reasons in combination why the collision with Senior Constable Owen occurred. I am not satisfied beyond a reasonable doubt that the offender drove in the direction of Senior Constable Owen to scare him or to deter the police from continuing their pursuit.

21. Having viewed the footage repeatedly, I was unable to reach any conclusion as to whether or not the offender’s vehicle’s brake lights appeared, either before, during or after the collision between the vehicle and Senior Constable Owen.

The collision with Senior Constable Owen

22. Returning to the agreed facts, the still shots contained within the agreed facts, together with the CCTV footage, depict the offender’s vehicle striking Senior Constable Owen and propelling him well above the roof of the offender’s vehicle. As Senior Constable Owen came downwards, he was struck a second time by the car and then, when he hit the ground, he was dragged about 20 to 30 metres by the vehicle. Remarkably, Senior Constable Owen was able to get up. He could have been killed. The footage is horrifying.

23. The police pursuit lasted for 14 minutes. The distance from the Ampol Service Station to the point where the collision with Senior Constable Owen occurred was 9.1 kilometres. Traffic in the area on Boxing Day was moderate and much of the area of the pursuit was residential. This is obvious from the footage available to be viewed. The speed limit in the areas between the two locations of road spikes was 50 kilometres per hour.

The failure to stop and assist Senior Constable Owen

24. After the collision with Senior Constable Owen, the offender failed to stop and instead accelerated along Deane Street, reaching speeds over 100 kilometres an hour. At 100-108 Deane Street, the vehicle was abandoned after it became undriveable. All three occupants ran from the car and hid in bushland.

Aftermath

25. On inspection by police, the stolen vehicle had suffered substantial damage. This included damage to the windscreen, the front guard on the driver’s side and the driver’s side rear wing mirror, all considered to have likely been caused by the impact of the vehicle upon Senior Constable Owen.

26. The three occupants of the vehicle were arrested separately that afternoon. The offender was arrested at 12.42 PM sitting in an elderly lady’s front deck chair on Carrington Road Narara, after she had called the police and hidden in her bedroom. The offender gave a false name and asserted that he lived at the address.

Physical injuries sustained by Senior Constable Owen

27. The agreed facts set out the injuries suffered by Senior Constable Owen. He was airlifted by a Care Flight helicopter and admitted to the Royal North Shore Hospital. He remained in hospital for three days and experienced the following injuries:

1. A left bicondylar tibial plateau fracture that required open reduction internal fixation surgery on 27 December 2022. A plate was inserted to stabilise the fracture, to avoid the risk of ongoing pain and deformity to Senior Constable Owen's leg.

2. Right fifth, sixth and seventh rib fractures.

3. Left fifth and seventh rib fractures.

4. A small right sided pneumothorax with the collapse of the lower parts of both lungs.

5. A 2 cm long laceration to the elbow that required stitches.

6. Bursitis of the left elbow.

7. Gravel rash.

8. Three friction burns to the right-hand/wrist and a friction burn to his left palm.

9. Upper inner lip laceration.

10. Scalp haematoma overlying left frontal region.

28. Senior Constable Owen also sustained facial and hand injuries that required plastic surgery to:

1. his left upper eyelid

2. his left lateral eyebrow (that was missing and included a medial laceration)

3. a full thickness nasal bridge laceration

4. a forehead laceration, including multiple small forehead lacerations

5. a small facial laceration

6. bilateral hand wounds.

29. On 24 April 2023, Senior Constable Owen was still using crutches and was experiencing ongoing significant problems with his left knee joint. He had been unable to return to work in any capacity.

30. On 21 July 2023, Senior Constable Owen had surgery known as a chondroplasty to smooth over loose, damaged articular cartilage flaps from the surface of the bone, together with minor meniscectomy involving the removal of damaged meniscus. The plates and screws that had been utilised soon after the incident were removed. By 10 August 2023, the wound was noted to have been well healed with Senior Constable Owen able to walk normally and unaided.

Accounts provided to the police by the offender and his passengers

31. Returning to the events of 26 December 2022, the offender falsely told police that Jake Freyer had been driving the vehicle during the pursuit. He told police he had been visiting his son in Albury, and they were in a stolen car because he needed to get home to Newcastle. He knew the car was stolen, and they had stolen petrol to refuel the vehicle in Yass and again in West Gosford. The offender repeated his lies about living in a house where he had been arrested.

32. Jake Freyer told police that the offender had been the driver, and he had been in the passenger seat, KR had been in the back seat.

33. KR told police that he had been in the back seat and that the offender had attempted to have the pursuit terminated by driving dangerously, driving on the wrong side of the road and swerving at police cars. He and Freyer had asked the offender to pull over prior to the collision with Senior Constable Owen, however, the offender would not stop and had begun to hit Freyer in the head.

Other features of the agreed facts

34. The vehicle was examined and was found to not have any mechanical defect which contributed to the collision.

35. The stolen vehicle had been insured and was written off because of the events. NRMA paid Ms Hill $8,860.92.

36. The offender did not hold a driver’s licence. He had previously been convicted on 9 August 2019 for two offences of driving whilst unlicensed. He has never held a driver’s licence in New South Wales.

Victim Impact Statement

37. The court received a victim impact statement from Senior Constable Owen, in the following terms:

“At the end of the day, the physical and physiological effects have forced me out of a job that I really enjoyed. I was always someone who gave 100%, and it nearly cost me my life. The strain, stress and fear this incident caused my family is something I feel guilty about to this day. I see the toll this has taken on my wife and two young boys, and it is not a pleasant thing to see.

I thought I was about to be killed as the car hit me, and although I’m left with physical and psychological scars I’m still here with my family.

I’m sore most of the day and have good and bad days emotionally. It’s become a daily effort to keep myself up emotionally. It’s a weird thing, but I’m so glad I’m still around but at the same time it’s draining to fight off sadness and depression.

Although I have limitations physically, and psychologically it’s a daily effort to keep pushing forward.

This incident cost me my job, a job I enjoyed and was good at for over 20 years, but somehow it didn’t cost me and my family my life.”

38. Senior Constable Owen’s actions in trying to stop the offender are captured in the CCTV footage. He courageously and selflessly took on the dangerous task of distributing the road spikes in the seconds before the vehicle driven by the offender was upon him. His actions were motivated to protect the public. It is difficult to watch what happened, and it is amazing he was not killed. His courage needs to be recognised. The loss of his career as a police officer and the harm that he and his family have suffered, was entirely avoidable and entirely the fault of the offender.

39. The Crown did not submit that the harm caused to Senior Constable Owen is a factor of aggravation consistent with s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.

40. The seriousness of the offending

41. In Tepania v R [2018] NSWCCA 247, 275 A Crim R 233 at [107]-[108] Johnson J noted:

103.   …… Assessment of the objective gravity of an offence forms a significant part of the sentencing process with respect to all offences. As Simpson J (Davies J and Grove AJ agreeing) said in Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at 523 [71]:

“Assessment of the objective gravity of any offence has traditionally been an essential element of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349. It should not be doubted that any sentencing decision calls for attention to be paid to the objective gravity of the offence: Markarian v R [2005] HCA 25; 228 CLR 357.”

108.   In Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44, with the concurrence of McClellan CJ at CL, I said at 473 [46]:

“The process of instinctive synthesis to be undertaken by a sentencing court involves the sentencing judge identifying all the factors that are relevant to the sentence and then making a value judgment as to the appropriate sentence in all the circumstances of the case: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 377-378 [51]; Muldrock v The Queen at 1162 [26]. Assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]. It is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence, which adequately punishes an offender: s.3A(a) Crimes (Sentencing Procedure) Act 1999.”

42. The driving subject regarding the two main offences occurred over a period of 14 minutes. During that time, the offender drove at high speeds in built-up residential areas. His driving was consistently reckless and at times very dangerous to other road users, his passengers and people in the immediate area. The footage tendered on sentence amply demonstrates just how dangerous his driving was. It displayed a complete disregard for the safety of people in his way or nearby.

43. The offending occurred on a public holiday, Boxing Day, a time when it was inevitable there would be numerous other road users and the likelihood of pedestrians.

44. The Crown made submissions based on the guideline judgment in R v Jurisic (1998) 45 NSWLR 209, reformulated in R v Whyte (2002) 55 NSWLR 252 and noted the following factors:

• The offender is a young offender, consistent with the guideline judgment.

• He was not a person of good character or someone with limited prior convictions, unlike the guideline judgment.

• His driving resulted in permanent injury, consistent with the guideline judgment.

• The victim was a stranger, a police officer trying to ensure the safety of the community.

• There were no injuries occasioned to the driver or passengers.

45. In R v Whyte (2002) 55 NSWLR 252 (‘Whyte’) the CCA identified aggravating factors that increased an offender’s moral culpability, because they relate to an abandonment of responsibility. Relevant to this case, those factors are:

• The number of people at risk was significant.

• The degree of speed was high.

• The driving was erratic and dangerous. It was noted that the offender told the police he had engaged in aggressive driving in the hope that the police would call off the pursuit.

• The length of the journey was not short although it was a lot shorter than many similar offences.

• The offender ignored warnings, both from the police and his passengers.

• He was involved in a police pursuit.

46. In Whyte the CCA noted that where an offender’s moral culpability is high, which it is in this case, even after applying the principles in Bugmy and having regard to the impact of the offender’s mental health on the offending, a fulltime sentence of less than two years is not generally appropriate and where an aggravated version of the offence exists, as it does in this case, an ‘appropriate increment’ is required.

47. The guideline is to be a reference point and a ‘check or sound board’, per R v Errington (2005) 157 A Crim R 553 at [10]; Kerr v R [2016] NSWCCA 218 at [96]

48. The Crown also submitted that the conduct resulted in serious injury to Senior Constable Owen. This is an element of both sequences 1 and 4. There is a spectrum of injury falling within the category of grievous bodily harm and in this instance the harm suffered by Senior Constable Owen falls within the middle of the range. It is only a matter of chance that his injuries were not more serious.

49. Although in written submissions the Crown also sought to rely on the videos taken during the early hours of the morning to establish competitive driving or showing off as relevant to an appropriate sentence for Sequence 1, it was conceded in oral argument that those instances pre-dated the commission of the two main offences and are not relevant to an assessment of their objective gravity. As noted earlier, the videos are relevant to an assessment of the gravity of Sequence 7, the offence of driving the stolen vehicle.

50. The Crown submitted that sequences 1 and 4 were also aggravated because Senior Constable Owen was a police officer and because the offender would have known he was a police officer discharging his duties, pursuant to s 21A(2)(a). I accept that this is the case.

51. The Crown submitted that the offender’s manner of driving, namely swerving onto the wrong side of the road, driving towards police officers and other vehicles, was aimed at encouraging the abandonment of the pursuit. It was submitted that this was a further aggravating factor with regard to Sequence 1, because it involved the threat of violence pursuant to s 21A(2)(b). Having viewed the footage, I accept this submission.

52. Summarising the position with regard to the gravity of the offences for sentence:

1. Sequence 7, the offence of driving a conveyance taken without the consent of the owner is a reasonably serious example of this offence, given the distance that the vehicle was driven, the manner of driving the vehicle over an extended period and the substantial damage done to the vehicle.

2. Sequence 1, the offence of aggravated dangerous driving occasioning grievous bodily harm is a serious example of this offence, given the circumstances of the pursuit as described above, the manner in which grievous bodily harm was inflicted and the overall injuries suffered as a consequence by Senior Constable Owen.

3. Sequence 4, the offence of failing to stop and assist after vehicle impact causing grievous bodily harm is intrinsically connected to Sequence 1. Counsel for the offender submitted that one of the legislative purposes of this offence was to deter offenders from simply leaving an injured person on the roadway to fend for themselves. In this instance, there were numerous police at hand. It is clear from the available footage that Senior Constable Owen's fellow officers rushed immediately to his assistance. Although the offender's failure to stop and render assistance himself was a disgraceful failing on his part, the fact that assistance was at hand does moderate the seriousness of this particular offence. For this reason, I consider it to be considerably less serious than Sequence 1.

The offender’s criminal history

53. As noted earlier, the offender has an extensive criminal history. At the time of these offences, he was 24 years old.

54. The Court was also provided with his juvenile history. It goes back to 2010 when he was only twelve. It is apparent that as a child he spent significant time in juvenile detention.

55. From 24 March 2017, he served his first sentence in adult prison, aged eighteen, for offences including aggravated break and enter and being armed with intent to commit an indictable offence.

56. In 2018, he served an aggregate sentence of 14 months for offences of break and enter a dwelling with intent to steal, resisting or hindering the police in the execution of their duty, affray, larceny, intimidation and custody of a knife in a public place.

57. After this sentence was served, he was sentenced to an Intensive Correction Order dating from 9 August 2019 for a period of two years for offences of aggravated break and enter in company.

58. In 2020 he was sentenced to serve a term of three years four months imprisonment from 19 June 2020 with a non-parole period of 23 months for a further offence of aggravated break and enter and commit serious indictable offence.

59. Also in 2020, he was sentenced to serve an eight-month fixed term for an offence of damaging property by fire.

60. On 29 May 2023, after he entered custody for this matter, he was sentenced to four months imprisonment for an offence of possession or use of a prohibited weapon without a permit. This offence was committed on 15 June 2022.

61. On 20 July 2023, he was sentenced to a term of 20 months imprisonment from the date of his arrest in this matter, for an offence of assault occasioning actual bodily harm in company, committed on 6 November 2022.

62. The matters I refer to are the most serious matters on the offender’s criminal history where full-time imprisonment or a term of imprisonment has been imposed. There are other convictions dealt with by way of non-custodial outcomes.

63. The offender’s criminal record disentitles him to leniency and demonstrates an ongoing disobedience to the law.

64. Relatedly, and consistent with Dr Furst’s conclusion about institutionalisation, the custodial history records that since 9 May 2017, when he was only eighteen, the offender has been in custody for all but 17 months. Even more starkly, since 27 January 2019, he has been in custody for all but six months. Added to that is the time also spent in juvenile detention.

65. Included in the Crown bundle were Breach of Parole Reports prepared by Community Corrections. The offender was released to parole on 18 May 2022 for the earlier sentence of aggravated break and enter and commit serious indictable offence. On 19 June 2022 he was arrested for offences of dishonestly obtaining a financial advantage by deception. Bail was refused. He was also charged with common assault, intimidation and bail was refused on those matters as well.

66. In a report dated 29 June 2022, the report author, a Community Corrections officer, noted that in the early weeks following his release, the offender had attended most appointments. Whilst incarcerated, he had been receiving depot injections for drug addiction, however, he had not maintained compliance with this once he was released. At that point, the recommendation was that parole should not be revoked and if the offender was to be released to bail a supervision plan outlined in the report would be implemented.

67. The custodial history records that the offender was released again on 19 October 2022. A further Community Corrections report dated 15 December 2022 recommended that parole be revoked because of the offender’s failure to report on seven occasions in October, November and December 2022. The report author noted that his whereabouts were unknown and his response to parole had been unsatisfactory. It was noted by the report author “the perceived risk to the community remains high.” This was prescient.

68. The third report, dated 28 December 2022, written shortly after the relevant offences, noted that the offender had been charged over the events on 26 December 2022. The report recommended that his parole be revoked.

69. On 11 January 2023, the State Parole Authority made an order revoking the offender’s parole. The balance of parole, a period of 11 months, one week and six days, was to commence on 26 December 2022.

70. That the current offences were committed on parole is an aggravating factor. This feature does not make the objective seriousness or gravity of the offending any worse, but instead is an aggravating factor on sentence.

Subjective matters

71. On the offender's behalf, the following documents were tendered:

1. The report of Dr Richard Furst, forensic psychiatrist, dated 17 May 2024

2. The report of Nihal Kucuk, psychologist, dated 28 January 2022, for the limited purpose of providing evidence, adopted by the offender when he gave evidence, relevant to the repeated sexual abuse suffered by the offender when detained in a number of Juvenile Justice detention centres.

3. A letter from Ms Kerry Packer, the offender's stepmother, dated 24 May 2024.

72. The offender also gave sworn evidence.

73. Ms Packer wrote a supportive letter and described the offender's childhood in these terms:

"Mr Johnson had a very sad childhood with very young parents who loved him very much but struggled being kids themselves. This in no way excuses his actions, but he had not a good start to life. He has spent most of his young life from age 11 in prison. He has recently been told his father only has a short time to live and he also lost a close aunt a week ago to Covid."

74. In his own evidence, the offender adopted the contents of the two expert reports.

75. Dr Furst set out the offender's developmental history in the following terms:

Mr Whalen-Johnson was born in Newcastle, having two older brothers, one younger brother, one older sister and one younger sister. His mother is aboriginal. His parents separated/divorced when he was five years of age, and he was removed from his mother's care when he was seven years of age, being the victim of abuse and neglect. His mother suffered from schizophrenia and his father works in construction.

He was placed in foster care and had some 150 placements in total. [1] Mr Whalen-Johnson had persistent emotional and behavioural problems throughout his childhood and teenage years. He was the victim of further abuse and neglect in foster care. He was cared for by his grandmother at times. He would often run away from his foster placements and spent time on the streets in his late childhood and teenage years, where he was vulnerable to the influence of older antisocial and drug abusing peers.

1. I note that in his evidence, the offender said it may have been closer to 100 placements.

Mr Whalen-Johnson attended school in New Lambton South, Muswellbrook and Fennell Bay Public Schools, amongst other schools, being oppositional and often being in trouble at school.

He does not appear to have an intellectual disability; however, Mr Whalen-Johnson suffered an acquired brain injury in 2017, after being assaulted at the MRRC, Silverwater, which left him with a cognitive impairment.

His criminal history outlines the extent of his offending over the last 13 ½ years, which speaks for itself and is hardly encouraging in relation to his future prospects of rehabilitation. He had been incarcerated for a three-year period for various offences between 2019 and 2022 prior to being released on parole in 2022.

Mr Whalen-Johnson reported suffering mood swings, frustration and anger issues. He is easily irritated. He gets anxious around other people, especially if they sneak up on him from behind, and he describes feeling 'jumpy'. He feels uncomfortable in crowded places.

He said he has "bad PTSD" and that he has intrusive memories and "flashbacks" of childhood trauma/victimisation. Apart from the purported sexual victimisation at Juvenile Detention centres, Mr Whalen-Johnson also witnessed his father physically assault his mother on a regular basis in his early childhood. His mother also stabbed his father in his childhood and let her subsequent partner and his siblings "bash him", a reference to physical abuse suffered by Mr Whalen-Johnson.

He hardly worked in paid employment, apart from recent bricklaying work, and he appears to be institutionalised.

Drug and alcohol history

Mr Whalen-Johnson has been using cannabis since he was 10 years of age, initially about 1 g daily and then increasing to about 7 g a day by the time he was 14 to 15 years of age. The frequent and prolonged periods he was detained as a juvenile limited his access to cannabis to some extent, Mr Whalen-Johnson using again when released into the community.

He used 'ice' (methylamphetamines) from the age of 13- 14 years, which also became a regular habit in his teens and adolescence.

Mr Whalen-Johnson also drank alcohol on a regular basis and in fairly large amounts from the age of 15 to 16 years.

He stated he was "trying to do the right thing" and stay away from drugs when released on parole in 2022. He was apparently bricklaying with his father. He then relapsed into using 'ice' on 22 December 2022, using the drug again on 26 December 2022.

Medical History

Mr Whalen-Johnson's brain injury in 2017 was severe, leaving him mobilising in a wheelchair and requiring extensive rehabilitation and physiotherapy over the following 1-2 years.

He suffered persistent seizures after his brain injury, indicative of traumatic epilepsy. His seizures have been common, up to 3 times per week, and are treated with Epilim (sodium valproate).

76. Whilst not setting out the details, Doctor Furst referred to the impact of the child sexual abuse inflicted upon the offender in juvenile detention. I have read the account as documented in the report of Ms Kucuk. I accept on the balance of probabilities that these events took place.

77. After reviewing relevant documents regarding the offender's medical history, Dr Furst concluded that the offender meets the criteria for: Post Traumatic Stress Disorder (PTSD), Alcohol/Substance Use Disorder (cannabis, methylamphetamines) and Attention Deficit Hyperactivity Disorder (ADHD).

78. Dr Furst considered that there were psychiatric and psychological mitigating factors applicable because of the disadvantage the offender suffered from an early age, with a mentally ill mother, childhood exposure to drug use and multiple forms of physical, emotional and sexual abuse as well as neglect.

79. Dr Furst noted that child sexual abuse is strongly correlated with mental disorder including, relevantly, depression, anxiety, post-traumatic stress disorder, and substance use disorders. Childhood sexual abuse is also more common in those from disturbed and disrupted families and in those who also reported difficult and emotional abuse. Dr Furst noted that an Australian twin study demonstrated a causative effect between childhood sexual abuse and the subsequent onset of mental disorder/mental illness. A further study revealed that there was a strong correlation between experiences of child maltreatment and sexual abuse together with other forms of childhood abuse, neglect and/or maltreatment. Sexual abuse and emotional abuse in childhood were associated with a significantly higher rate of binge drinking, cannabis dependence, smoking, obesity, self-harm, and suicide attempts, behaviours/disorders that typically commenced during adolescence.

80. Dr Furst considered:

"The relevance of this literature in relation to Mr Whalen-Johnson is that he struggled to cope throughout his childhood, teenage years and adolescence as a consequence of his addictive disorder and the longer-term effects of childhood trauma, sexual abuse and parental neglect.

The negative childhood role modelling and traumatic experiences of his childhood predisposed Mr Whalen-Johnson to drink and use drugs habitually over the last 12 years or so.

He now has a well-established pattern of drug abuse, criminal offending, and incarceration dating back to the age of 11. He is unskilled and tends not to survive very long in the community when released from juvenile detention/adult custody. This was also the case in December 2022, when Mr Whalen-Johnson relapsed into using methylamphetamines again and committed the driving offences before the court."

81. Dr Furst made a series of recommendations regarding treatment that include psychotropic medication, regular reviews by a psychiatrist and a mental health nurse, drug and alcohol counselling including programs available in custody such as the Intensive Drug and Alcohol Treatment Program (IDATP) [2] and/or the EQUIPS (Addiction) program. He also recommended that the offender engage in psychological treatment/counselling aimed at improving his coping skills and addressing childhood trauma/abuse issues.

    2. The offender does not appear to be an ‘eligible convicted offender’ because his place of residence is not within the catchment area, as defined in the Drug Court Regulation 2020 at s5(a).

81. Dr Furst recommended follow-up with mental health services and local drug and alcohol services upon release to parole, together with access to Victims Services New South Wales in relation to trauma informed counselling.

82. Dr Furst noted that the offender's history of PTSD, immaturity and general emotional instability places him at increased vulnerability compared to other inmates and would likely make a custodial sentence more onerous for him. He considered the offender to be more vulnerable to the effects of stress in the goal environment and/or the effects of being stood over, intimidated, threatened and/or assaulted by other more mentally robust inmates. This stress would probably make the risk of him relapsing into more acute phases of PTSD higher.

83. I accept both the history recorded by Dr Furst and his conclusions.

84. Several conclusions arise from the evidence relied on by the offender:

1. The offender has experienced quite extreme childhood deprivation that reduces his moral culpability for his offending conduct. See Bugmy v R [2013] HCA 37, 249 CLR 571 at [40]. This reduces the objective seriousness of the offences. See Veen (No 2) [1988] HCA 14, 164 CLR 465 at 476-7

2. A consequence of that deprivation has been the development of mental health problems including a substance abuse disorder. In the context of this case, this also reduces his moral culpability for his offending conduct.

3. He will find imprisonment more onerous than would the average inmate, by reason of his mental health disorders, per DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, McClellan CJ at CL at [177].

4. His background of childhood disadvantage and early onset substance abuse disorder provides a basis for reduced weight to be given to general and specific deterrence and increased weight given to rehabilitation. Despite these factors, his criminal record and the circumstances of these offences also increase the importance of protecting the community from the offender, see Bugmy at [44].

5. His ongoing institutionalisation and desperate need for long-term rehabilitation provides a basis for a finding of special circumstances.

86. The offender also gave evidence. He explained that his attempt to flee from the police was a consequence of being scared of going back to prison. He was scared of going back to prison because of the number of occasions in his life that he had been incarcerated and because he had been previously sexually abused in Juvenile Justice facilities and seriously assaulted in adult corrections, resulting in being wheelchair bound for about 18 months.

87. He said that his decision to try and flee was not a good decision and his behaviour was stupid:

"People got hurt, and I'm in jail and look at the end of the day, to be honest, I'm not the type of person who wants to go out of my way just to run people over. That's not who I am. I don't hurt people for no reason, and every day I have flashbacks and dreams about what happened. I could have killed the officer, and that's just not who I am. I don't think it should have happened. If I could go back and stop, I would have stopped, and I would have come to jail, and I would have did, like, a year. Now, I'm looking at three years, and an officer hurt for no reason. Just for pretty stupid behaviour."

88. He was asked why he had not written a letter to the victim and explained that he is illiterate. He did not attribute his conduct to immaturity and said it was a consequence of stupidity. He gave further evidence about his hopes for the future and his acceptance of the need to receive medication both for ADHD and PTSD. He had also returned to the Buprenorphine program.

Remorse

89. By reason of his pleas of guilty and his sworn evidence, I accept the offender is remorseful for his conduct, and sorry for the consequences that flowed from it.

Consideration

90. This case involves extremely serious criminal conduct committed by an extremely disadvantaged young man who has not had anything approaching a normal childhood or the opportunity to grow up and become a balanced, mature, stable member of the community.

91. Sentencing him requires close attention to all the purposes of sentencing. The appalling driving and the tragic consequences for Senior Constable Owen must be denounced. The offender has a criminal record that enlivens the need for specific deterrence and his current offending also requires the protection of the community.

92. His conduct in attempting to escape from the police in the stolen vehicle, putting the lives of numerous people at risk, and in bringing about such serious harm also makes general deterrence a still important sentencing feature in the case, despite the reduction of his moral culpability arising from his severe childhood disadvantage.

93. On the other side of the ledger, the offender’s impulsive and reckless decision-making on 26 December 2022 did not occur in a vacuum. His early life and his very significant social deprivation and consequential mental health and substance abuse problems clearly contributed to the offending.

94. Added to this, he is still a young man and for the reasons set out in the report of Dr Furst, he has a compelling need for long-term intensive rehabilitation. Additionally, aside from being institutionalised, he has been the victim whilst in custody of serious criminal conduct. Further time in prison will be more difficult for him than it would normally be.

95. On all the material, the current likelihood of further offending remains high and his current prospects of rehabilitation are bleak.

96. There is no alternative to a term full-time imprisonment in this case.

97. I intend to impose an aggregate term.

98. The sentence I intend to impose is structured with all the above factors in mind. It is unavoidable that a significant term of imprisonment must be imposed. An additional factor warranting a finding of special circumstances is the aggregate sentence being partially cumulative upon the sentences imposed earlier on the offender.

99. The finding of special circumstances will only be of benefit to the offender if he can progress well in custody such that he is able to be released to parole and after that his future prospects of remaining in the community will depend upon both his efforts and hopefully the availability of appropriate treatment and support as outlined by Dr Furst.

Sentence commencement date

100. The offender was arrested on 26 December 2022, the date that the offences were committed. He has been in custody since then. The question of an appropriate backdate is complicated because the offender was on parole, having been sentenced on 12 May 2021 to serve three years, four months imprisonment, dating from 19 June 2020, with a non-parole period of 23 months, for an offence of aggravated break, enter and commit serious indictable offence.

101. The offender was released to parole on 18 May 2022. Parole was revoked on 11 March 2023, with the revocation backdated to 26 December 2022, after he had been apprehended for these matters. The Court has been informed that parole was revoked for several reasons, including his poor performance to supervision and the commission of the offences that are for sentence.The Crown sentence summary notes that the revocation of parole period was from 26 December 2022 to 8 December 2023, a period of 348 days.

102. Complicating the matter further, whilst in custody the offender was sentenced to a term of 20 months imprisonment with a non-parole period of 12 months, dating from 26 December 2022, for an offence of assault occasioning actual bodily harm in company. He was sentenced separately to a term of four months imprisonment from 29 May 2023 for an offence of possession or use of a prohibited weapon without a permit. Both these offences pre-dated the commission of this matter.

103. In short, for the first 12 months following his arrest on these matters, the offender was serving either the balance of parole for the sentence imposed on 19 June 2020 or one or both sentences imposed in the Local Court.

104. The question of an appropriate backdate, noting that this is a discretionary decision, needs to have regard to the reasons for the revocation of parole, the issue of totality that includes both the current matters and any pre-existing sentences being served by an offender, and the need to ensure that the offender is held to account for all of his offending. Callaghan v R [2006] NSWCCA 58 at [22]; Murray v R [2024] NSWCCA 107, per Yehia J at [58]-[60].

105. I accept the submissions made by the offender in his written submissions at WS[60]-[62] and conclude that this further sentence should commence on 26 June 2023, six months after his arrest.

106. The indicative sentences are as follows:

1. For Sequence 1, the aggravated dangerous driving occasioning grievous bodily harm offence, taking into account the matter on the Form 1, an indicative term of six years imprisonment, reduced by 25% to 4 years 6 months.

2. For Sequence 4, the related offence of failing to stop and assist after vehicle impact causing grievous bodily harm: an indicative term of two years imprisonment, reduced by 25% to 18 months.

3. For Sequence 7, the offence of driving a conveyance taken without the consent of the owner: an indicative term of 24 months imprisonment, reduced by 25% to 18 months imprisonment.

Totality

107. Consistent with the Crown WS at [37]-[38] and considering that the offender has served time in custody since 22 December 2022 for other matters, I consider it is appropriate that there be significant nominal concurrency between the sentences as they represent a course of conduct. The conduct relevant to Sequences 1 and 4 was intrinsically linked, occurring at almost the same time.

The sentence

108. I impose an aggregate term of five years, six months imprisonment with a non-parole period of three years, three months, dating from 22 June 2023. The offender’s earliest release date for parole is 21 September 2026.

109. The whole sentence will have been served on 21 December 2028.

110. I direct that the report of Dr Furst be forwarded to the Chief Executive Officer of Justice Health.

Disqualification periods

111. For Sequence 1: the offender is disqualified from driving for two years 6 months from the date of his release from custody, pursuant s 206A(3) Road Transport Act 2013.

112. For Sequence 4: the offender is disqualified from driving for 18 months from the date of his release from custody, pursuant to s 206A(3) Road Transport Act 2013.

The unlicensed driving offence

113. For Sequence 8: the offender is convicted pursuant to s10A of the Crimes (Sentencing Procedure) Act 1999 without further penalty.

Endnotes

Decision last updated: 20 September 2024