R v York

[2024] NSWDC 327

District Court

New South Wales

Medium Neutral Citation:

R v York [2024] NSWDC 327

Hearing dates:

22 August 2022 (Arraignment)
18 October 2023 – 31 October 2023 (Trial)
08 March 2024 (Sentence Hearing)
05 July 2024 (Remarks)

Date of orders:

05 July 2024

Decision date:

05 July 2024

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Aggregate term of imprisonment comprising of a head sentence of 7 years and a non-parole period of 4 years 6 months

Catchwords:

CRIME – sentence after trial by jury – fact finding after trial – use etc offensive weapon in company to prevent detention – police pursuit not stop drive recklessly – damage property by fire/explosive

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Road Transport (Vehicle Registration) Regulation 2017

Road Transport Act 2013

Cases Cited:

Bugmy v The Queen [2013] HCA 27

Carl v R [2023] NSWCCA 190

DPP (Cth) v De La Rosa [2010] NSWCCA 194

Luque v R [2017] NSWCCA 226

Perkins v R [2018] NSWCCA 62

R v MacDonnell (Court of Criminal Appeal, unreported, 8 December 1995)

SS v R; JC v R [2009] NSWCCA 114

TA v R [2008] NSWCCA 179

The Queen v Olbrich (1999) 199 CLR 270

Texts Cited:

Bugmy Bar Book

Criminal Trial Courts Bench Book

Category:

Sentence

Parties:

Rex (Crown)
Joshua Samuel York (Offender)

Representation:

Counsel:
Mr Adam O’Connor (Crown)
Mr Dennis Stewart (Offender)
Solicitors:
Ms Hannah Middlebrook (Crown)
Mr Ross Hill (Offender)

File Number(s):

2020/00339548

Publication restriction:

None

JUDGMENT

CHARGES FOR SENTENCE

1. Joshua Samuel York was born in February 1974 and is presently 50 years of age. He appears today to be sentenced in relation to the following three counts on the indictment:

1. use etc offensive weapon in company to prevent detention in breach of s 33B(2) of the Crimes Act 1900. It carries a maximum penalty of 15 years imprisonment. It does not carry any standard non-parole period;

2. police pursuit not stop drive recklessly first offence in breach of s 51B(1) of the Crimes Act 1900. It attracts a maximum penalty of 3 years imprisonment, an automatic license disqualification period of 3 years and a minimum license disqualification period of 12 months. It does not carry any standard non-parole period; and

3. damage property by fire/explosive value of property damage exceeds $15,000 in breach of s 195(1)(b) of the Crimes Act 1900. It attracts a maximum penalty of 10 years imprisonment. It does not carry any standard non-parole period.

2. On a section 166 certificate there are three related charges:

1. drive motor vehicle during disqualification period prior offence in breach of s 54(1)(a) of the Road Transport Act 2013. It carries a maximum penalty of 12 months imprisonment and/or a fine of 50 penalty units. It attracts an automatic license disqualification period of 12 months or a minimum license disqualification period of 6 months;

2. drive conveyance taken without consent of owner in breach of s 154(1)(b) of the Crimes Act 1900. It attracts a maximum penalty of 5 years imprisonment or 2 years imprisonment when dealt with summarily; and

3. use class A vehicle displaying misleading etc number-plate in breach of s 129(3)(b) of the Road Transport (Vehicle Registration) Regulation 2017. It carries a maximum penalty of a fine of 20 penalty units and 3 demerit points.

3. The maximum penalties are guideposts for sentencing judges, reflecting the seriousness in which the community, through Parliament, views this type of offending. There is no doubt this offending is highly anti-social and serious, calling for condign punishment.

DATES OF OFFENDING

4. The offending took place on 15 October 2020. The offender was subsequently arrested on 18 October 2020. At the time of the offending, he was on bail for two other matters for which he was sentenced on 15 February 2021. He was refused bail and has spent a total of 670 days in pre-sentence custody solely referrable to these offences.

5. On 26 October 2022, the offender was released on conditional bail. The offender was committed for trial to the District Court on 7 September 2021. The matter was listed for trial on 22 August 2022 and the offender was arraigned before me on that date and entered pleas of not guilty in respect of the three charges on indictment version 4.2. A jury was empanelled on the following day and the trial commenced. On 26 August 2022, the jury was discharged, and the trial was aborted as a result of prejudicial evidence given unexpectedly by a Crown witness.

6. The matter was relisted for trial on 25 September 2023. This listing was later vacated due to the unavailability of Counsel following a delay in the commencement of the trial, and a second jury trial commenced on 18 October 2023 before me. On 31 October 2023, the jury returned unanimous verdicts in respect of all charges, after 10 hours and 45 minutes of deliberating. Guilty verdicts were returned for all three charges for which the offender is to be sentenced today. A detention application was made, and he was subsequently bail refused, and has been remanded in custody since that date.

FINDINGS OF FACT

7. I note the observations of Hunt CJ at CL in R v MacDonnell (Court of Criminal Appeal, unreported, 8 December 1995) that it is for the sentencer to determine the facts relevant for sentence.

8. As to the onus of proof, I note the observations of the High Court in The Queen v Olbrich (1999) 199 CLR 270 including:

1. that I cannot take facts into account adverse to the offender unless those facts have been established beyond reasonable doubt; and

2. the offender bears the onus of proving on the balance of probabilities matters which are submitted in his favour.

9. At [8] of MFI 1 the Crown advanced proposed factual findings which were not controverted by the offender. I have carefully examined the proposed facts and the evidence in the trial. I am satisfied that the proposed facts are in accordance with the evidence and consistent with the jury’s verdicts.

10. Between 10 and 12 October 2020, a Toyota Landcruiser was stolen from the lot of Karera Pty Ltd on Gavenlock Road in Tuggerah by unknown persons. On the morning of 15 October 2020, shortly before 9am, the co-offender Joshua Duke was in the passenger seat of the stolen vehicle while the offender Joshua York was driving.

11. Adam Jones, the son of the manager of Karera Pty Ltd, saw the stolen vehicle at the corner of the Pacific Highway and Louisiana Road, Wadalba around that time. He followed the vehicle. The vehicle accelerated south on Louisiana Road, neglecting to stop at the stop sign. It accelerated and travelled around the bend onto Wahroonga Road. Mr Jones then saw the vehicle stopped on the side of the road. As he slowed down and passed the vehicle, he saw both the occupants look at him. The vehicle then followed behind him for a short time before heading in a westerly direction on Wahroonga Road.

12. Mr Jones continued to follow the vehicle and saw it turn left, in contravention of a stop sign, back onto the Pacific Highway. It then turned in a southerly direction onto Figtree Boulevard from the wrong lane and in front of two other lanes of traffic. The traffic was quite heavy, and the vehicle turn was “pretty sharp, fast and dangerous” (Tcpt, 19 October 2023, p 74(18)).

13. The vehicle proceeded to drive straight over a set of roundabouts at speed as it travelled south on Figtree Boulevard. It then turned in an easterly direction on Johns Road, north on Kilpa Road and then back in a westerly direction on Wahroonga Road before turning onto a dirt track and heading in a south westerly direction towards some water towers. The vehicle navigated the route at “high speeds not too worried about any other traffic on the road” (Tcpt, 19 October 2023, p 75(28)).

14. Mr Jones then met up with Mr McLaughlin and the men followed the stolen vehicle onto the dirt track. The vehicle did a U-turn and came back towards them. Mr McLaughlin “saw a firearm being pointed in my generalised direction as they passed” on the driver’s side (Tcpt, 18 October 2023, p 30(24-25)). He saw it was pointed in his direction across the face of the driver. He was around one metre away from the vehicle at that time.

15. McLaughlin followed the vehicle out of the bushland area and onto Sirrocco Drive where it turned in an easterly direction onto Johns Road. The vehicle headed along Johns Road, onto Murrawal Road and turned right into a cul-de-sac. Two further Karera vehicles, with two occupants in each, had now began following the stolen vehicle. One of the vehicles, driven by Steven Cox with Wade Pearson as the passenger, pulled over to the left of the road at the start of the cul-de-sac. The other vehicle, driven by Joel Dawes with Alan Tisdell as the passenger, reversed back onto Murrawal Road and stopped.

16. The stolen vehicle drove back past both vehicles and headed in a westerly direction on Murrawal Road again. As it passed Mr Cox, he observed the passenger holding a firearm “with the butt in his lap and the barrel pointed up towards the passenger window with one hand on the barrel” (Tcpt 19 October 2023, p 86(14-15)). As it passed Mr Dawes, he observed that the gun was “pointed in my direction, so it was pointed across the front, like, towards the windscreen of the vehicle and across to the driver's side, so to the windscreen in the driver's side, gesturing at myself and Allan in our vehicle” (Tcpt 18 October 2023, p 40(12-15)).

17. The stolen vehicle then sped back in a westerly direction along Jones Road where it was then observed turning south on Pollack Avenue by police who commenced a police pursuit.

18. Senior Constable Callaghan was driving the first pursuit vehicle with Senior Constable Bishop and Senior Constable Keane in the vehicle. He observed the stolen vehicle turn “harshly” into Pollock Avenue and drive “erratically,” overtaking cars (Tcpt 19 October 2023, p 89(43,48)). The stolen vehicle then headed south at around 100km/h in a 50km/h zone. It passed by a school and narrowly avoided a school bus before braking harshly causing the police vehicle to collide with the rear-right of the vehicle. The stolen vehicle then reversed into the rear-left of the police vehicle and then accelerated again in a south-westerly direction.

19. The stolen vehicle continued for around 200m before again braking harshly. On this occasion the police vehicle was able to narrowly avoid a collision. The stolen vehicle then drove forward into the front left side of the police vehicle before reversing back 100m, turning around and heading in a north easterly direction on Pollock Avenue.

20. At this time, Senior Constable Bishop chased the stolen vehicle on foot with his firearm drawn and directed the occupants to stop the vehicle.

21. The vehicle then passed another police vehicle driven by Senior Constable Harrison with Constable Hand as a passenger. That police vehicle turned around and pursued the stolen vehicle as it turned in an easterly direction onto Jensen Road. It drove very rapidly along that road, at times swerving onto the wrong side of the road, until it swerved harshly into the driveway of 140 Jensen Road, breaking through the gate of that property. It then proceeded across paddocks between Jensen Road and Johns Road, breaking through a number of fences as it went. Senior Constable Harrison abandoned his pursuit at that time.

22. At around 9.21am the stolen vehicle was captured by CCTV on Goorangai Close, Wadalba. The offender was still driving the vehicle at this time.

23. At around 9.30am the vehicle was captured driving through the backyard of 30 Raintree Terrace. The offender had swapped to be in the passenger seat at that time. The vehicle broke through two fences to that property and narrowly missed colliding with the resident of the property who was in her garden.

24. At around 9.37am the vehicle entered 109 Minnesota Road, a rural property, and drove past the residents before breaking through a fence and driving through an estate and around behind some bushland where the vehicle was set on fire.

25. The offender hid in the bushland at the rear of 109 Minnesota Road while the co-offender Joshua Duke went back to 109 Minnesota Road to steal another vehicle. He was shot dead by police shortly after 9.55am.

26. The accused avoided police in the following days and was ultimately arrested on 18 October 2020.

27. On 30 November 2020, he participated in an interview where he denied knowing Joshua Duke or being present with him on 15 October 2020.

OTHER EVIDENCE ON SENTENCE

The Victim

28. Exhibit B is a police statement by Trevor Lee dated 7 March 2024. Trevor Lee is the owner of Karera Pty Ltd, a radio communication and rigging company. On Saturday 10 October 2020, one of the company’s vehicles, a Toyota Land Cruiser 75 series, was stolen from the workplace on Gavenlock Road in Tuggerah.

29. At the time the vehicle was stolen, it contained a large amount of work tools and equipment. A list of the tools and equipment contained in the vehicle was provided to the police. The tools and equipment have a value of $65,000.

30. The vehicle was insured with CGU insurance at the time it was stolen. Mr Lee contacted CGU and lodged an insurance claim. He received $37,000 from CGU for the theft and destruction of the vehicle, however, he received no financial compensation for the tools and equipment that were in the car when it was stolen.

The Offender

31. The offender gave evidence at the sentence hearing that an employment position is available upon his release and that he intends to take up that position. In relation to the offending, he gave evidence that he acted under duress and has nightmares about what happened that day.

32. He gave evidence that he sees himself as a victim because the co-accused pulled a shotgun on him (Tcpt 8 March 2024, p 6(42-43)):

“Q.   Do you see yourself as a victim?

A.   Of course.”

33. The offender stated that he received compensation in respect of the sexual abuse he suffered in a Catholic school as a child. He has not been using drugs for three and a half years and he wants to be a part of his children and grandchildren’s lives once he is released from custody. He believes that seeing a psychologist would have a big impact.

34. During cross-examination, the offender gave evidence that he takes no responsibility for the behaviour and blames the co-offender (Tcpt 8 March 2023, 10(8-10)):

“Q.   So, Mr York, you take no responsibility for the offending behaviour, you blame Mr Duke for what happened on 15 October 2020, is that correct?

A.   Yes, I do.”

35. This disentitles the offender to a positive finding of remorse as a mitigating factor. It also undermines his reliability as a witness of truth.

36. He gave evidence that he has struggled with a drug addiction since he was a juvenile and believes his offending flows from his drug addiction. He has never completed a residential rehabilitation program or a counselling program for his drug addiction. He has not sought out any counselling or rehabilitation whilst in custody, presumably as he remains on remand.

The Offender’s Employer

37. The offender’s employer, Tony Tamelkovski, also gave evidence at the sentence hearing. He is the owner of the panel beating shop in Hamilton North. He gave evidence that he met the offender in mid-November 2022 when the offender was on bail, and the offender worked for him until he went back into custody.

38. Mr Tamelkovski said the offender has a strong attention to detail and a lot of skill in his preferred trade. He gave evidence that the offender was very close with his family, and that he maintained contact with the offender once a week while the offender was in custody. He provided the offender accommodation while he was on bail, and said a position is available for the offender upon his release from custody.

FINDINGS ON DISPUTED FACT

39. It is the role of the trial judge to establish the facts as would have been accepted by the jury. During the trial, the accused raised the defence of duress, asserting that he was acting under duress at the time because he was being threatened by the co-offender. With respect to counts 1 and 3, the jury were directed to consider whether the accused entered into a joint criminal enterprise. By virtue of the verdicts of the jury in relation to counts 1 and 3, the jury rejected duress as an exculpatory defence and accepted that the offender did enter into a joint criminal enterprise. However, it was submitted on behalf of the offender that his decision to enter into that joint criminal enterprise was affected by duress.

40. At the sentence hearing, a legal issue arose as to whether non-exculpatory duress can arise in the context of a joint criminal enterprise. Since that time further submissions have been filed for the offender (MFI 4) and the Crown (MFI 5). Having carefully considered the remarks of Simpson J in TA v R [2008] NSWCCA 179 and Price J in SS v R; JC v R [2009] NSWCCA 114, I accept the submission that the acceptance by the jury that the offender acted pursuant to a joint criminal enterprise does not of itself exclude non-exculpatory duress as a mitigating factor on sentence.

41. The question, however, is whether I am satisfied on the balance of probabilities that the participation in the joint criminal enterprise by the offender was to any extent induced by duress imposed upon him by the conduct of the co-offender.

42. First, I observe that any factual finding I make on sentence must be consistent with the verdicts of the jury. It is plain that the jury rejected duress as a defence. Whilst this alone may prevent a finding favourable to the offender being made concerning duress, I am also not persuaded on the evidence of the offender that it has been established as a mitigating factor on the balance of probabilities.

43. In coming to that conclusion, I make the following observations:

1. I did not consider the offender to be a reliable or impressive witness, based on his demeanour as he was giving evidence;

2. I found his account implausible and inherently unlikely for reasons which follow:

1. after the offending, the offender avoided police for 3 days. Had he truly been a “victim” as he claims, one would have expected him to report this matter to police;

2. during the ERISP, the offender made no mention of participation in the joint criminal enterprise by reason of duress;

3. in the ERISP, the offender lied to the police, including as follows:

1. he said he had no idea what he was doing on 15 October 2020, the date of the offending;

2. he told them he had never been to 109 Minnesota Road, Hamlyn Terrace;

3. when asked about the co-offender driving at the time and the passenger wearing a yellow high-vis hoodie he responded “I don’t know what you’re talking about;”

4. when it was put to him that he drove the Land Cruiser further towards the back of the property where it was set on fire he responded “I don’t know what you’re talking about;”

5. he denied knowing Mitchell or Mitch Lewis on two occasions;

6. he denied knowing the co-offender three times.

4. the jury were directed that lies can show a consciousness of guilt. It is consistent with their verdict to find that the offender lied to police and did so as he was concerned that telling the truth would implicate him;

5. according to the evidence of Adam Jones, the erratic and dangerous driving took place before the offender says that he had was threatened by the co-offender;

6. the offender was concealing his face before the alleged threat was made;

7. the offender was the passenger for some time. It would be inconceivable that the co-offender could have sustained the threat and therefore the duress by holding the shotgun during the period when he was the driver, particularly given that he was driving a manual vehicle at high speed and in an erratic fashion. Both of his hands would have been required to guide the vehicle which means that the shotgun could not have been in the hands of the co-offender and pointed at the offender as claimed;

8. for the reasons put by the Crown to the jury, the sheer length of the shotgun would not permit it to be trained on the offender as claimed;

4. nobody saw the shotgun pointed in the direction of the offender at any time;

5. the offender’s account that the co-offender obtained kerosene from the back of the vehicle before destroying it simply cannot fit with the evidence of the offender that even at that time, he was acting under any degree of duress;

6. finally, the jury were directed that there are three elements which make up duress, and that a person acts under duress, and therefore will not be held to be criminally responsible if that person’s actions were performed:

1. because of threats of death or really serious injury to himself;

2. being threats of such a nature that a person of ordinary firmness and strength of will of the same maturity and sex as the accused and in the accused’s position;

3. would have given in to them and committed the crime demanded of him.

44. Plainly, the jury reasoned that either:

1. no threats were made; or

2. that the threats were not of such a nature that a person as described in the direction would have given into the threats and committed the crimes.

45. The finding most consistent with the verdicts of the jury is that the evidence of the offender was rejected, and they did not accept that the threat was made. I find that at the time of the offending, the actions of the offender were not the consequence of duress by reason of threat.

FINDINGS ON RELATED OFFENCES

46. The offender admits to his guilt in respect of sequence 1 of drive motor vehicle during disqualification period prior offence. He does not admit his guilt in respect of sequence 2 of drive conveyance taken without consent of owner or sequence 3 of use class A vehicle displaying misleading etc number-plate.

47. In respect of sequence 3, that is an offence of strict liability and I find it proved beyond reasonable doubt.

48. There is both direct and circumstantial evidence which supports a finding beyond reasonable doubt that the offender was aware that he was driving a vehicle taken without the consent of the owner.

49. I have given myself the usual direction about how to approach a circumstantial case (CTCBB at [2-500]) and [3-150]).

50. First, the direct evidence. The offender’s own evidence is that when the co-offender pulled the vehicle to the side of the road, he was told that the vehicle was stolen. That is an admission against interest relating to sequence 3 which I accept. I direct myself that I can accept part and reject part of a witness’ evidence (CTCBB at [4-255]).

51. Having been told that the vehicle was stolen, the offender continued to drive it. The elements of this offence are made out beyond reasonable doubt on the offender’s own evidence.

52. Facts which may permit an inference that the offender was aware he was driving a vehicle taken without the consent of the owner include:

1. his manner of driving to avoid arrest;

2. the offender attempted to disguise himself by partially covering his head to avoid identification; and

3. it was a vehicle not previously associated with the co-offender as obvious attempts were made to cover the signage which would have identified the actual owner.

53. In addition to the direct evidence, I find that this additional evidence permits the inference to be drawn that the offender was driving a vehicle which had been taken without the consent of the owner. I find that such an inference is justifiable and reasonable in the circumstances.

REPORT OF DR PUSEY

54. A report was prepared by clinical and forensic psychologist Dr Paul Pusey dated 25 February 2024 (exhibit 1). Dr Pusey interviewed and assessed the offender on 12 January 2024 via AVL.

55. The offender was born in Australia and at the time of the assessment was 49 years old. Dr Pusey observed that the offender “did not present as being overly guarded, suspicious or hostile … and did not present with evidence of a formal thought disorder.” The offender “displayed a restricted, however broadly congruent range of emotional expression during this process at times evidencing noticeable distress in relation to the topics being discussed.”

56. The offender has been incarcerated at Bathurst Correctional Centre since 6 November 2023. He had been in custody since October 2020, was then released on bail for a period of almost 12 months, and then returned to custody after guilty verdicts were returned at the trial. He noted that it was not his first time in custody, and that at the time of the assessment, the offender had spent about 10- or 11-years total in custody; the first time being in 1992 at Mount Penang.

57. Prior to his current episode of incarceration, the offender was in the community for seven years. He was released from custody in 2013, and his longest residence was on the Central Coast where he lived for three and a half years. In the seven years he has lived on the Central Coast, he has maintained employment. For one and a half years the offender had his own business, but it was unsuccessful.

58. In relation to the offending, the offender disclosed that he was found guilty at trial. The offender asserted “I was under duress at the time this happened and that’s why I’m here.” I have already rejected that assertion and the offender maintaining that position raises concerns about his insight into offending and remorse.

59. He stated that he has experienced a number of traumatic events which have contributed to deteriorations in his mental health and the use of maladaptive coping strategies in response. He described that “much of my offending reflects my poor decision making either in a genuine attempt to solve a problem using maladaptive means or the impact of my use of avoidant coping strategies.”

60. The offender was born in Australia and grew up in Sydney before moving to the Central Coast at age 15. He is the fifth of six children in his family. One of his brothers is deceased, and he has three living sisters and one living brother. He described a positive relationship with his siblings and identified himself as “the one who gets on with everyone. When my family pulls apart, I pull them back together.”

61. Both of the offender’s parents are deceased. His father died in 2001 and his mother died in 2008. The offender’s siblings continue to live on the Central Coast and the North Coast of NSW. He describes his upbringing as “great and not great simultaneously.” He says his parents loved each other but there was a lot of violence in the home. He recalled witnessing his mother stab his father, and says he saw a lot of things a child should not see.

62. The offender was raised in an intact family until the age of six. From this time until he was fifteen, his parents separated and were on and off. He stated that his sister has cerebral palsy, and that this added an additional strain on his parents’ relationship. The offender was kicked out of home at the age of fifteen by his mother, who told his father to take him because she thought he was going to end up in jail.

63. The offender denied any knowledge of abnormalities during his mother’s pregnancy or his birth. He denied any knowledge of developmental abnormalities or diagnoses impacting his global functioning.

64. He completed year 9 as his last year of school. He did not attend classes at the start of year 10 as he was surfing, and he left school to work with his father who put him through an apprenticeship. The offender reported attending thirteen schools between kindergarten and year 9. He went to public, Catholic, and private schools. He reported moving house every six months and that he found it difficult to accept authority after he was abused early in school.

65. The offender found school to be a difficult experience. He wore glasses and believed that he had undiagnosed ADHD. He experienced bullying at school, and at each new school would start to bully the bullies until he was asked to leave.

66. Prior to his arrest, the offender was employed building and reconstructing “muscle cars.” His boss had a shop in Hamilton North, and he was managing the shop. He worked from the time he was released from custody on bail until his trial. He had a positive relationship with his boss and said his boss wants to support him in court.

67. In 2013 the offender had a panel beating shop and had employed six men. Two months prior to his arrest in 2020, he was working between his panel shop and car restoration work in West Gosford. His panel shop was negatively impacted by COVID, and he had a down-turn in business.

68. The offender described an extensive history of abuse. He first experienced abuse when he was sexually abused at a Catholic school in 1980, when he was aged 5 years old and in kindergarten. The offender says he was taught not to show emotion growing up and thought that he had dealt with the abuse on his own until recently.

69. The offender was also physically and sexually assaulted in custody at Mount Penang in 1992. He was aged eighteen at the time and stated that it occurred 4-5 times during the night when he was at Mount Penang. He told the assessor he had not had the opportunity to seek redress in relation to this abuse. He stated that the abuse changed his attitude in life and hardened him up and that he struggled to trust people after those incidents.

70. His primary means of addressing the impact of his abuse has been avoidance. He also used this approach to address the death of his wife in 2005, and he believes, as earlier stated, that this is one of the main reasons for his offending.

71. At the time of the assessment, the offender was not in an intimate relationship. He is the father of seven children – four biological children and three stepchildren. All his children either reside on the Central Coast or in Newcastle. He talks to his children daily in custody and is close with them. He has a 4-year-old son who was born in December 2019. He did not approach his son or his son’s mother while he was on bail as he “didn’t want to come in and out their lives until I had my stuff sorted.” The offender has nine grandchildren.

72. He commenced using illicit substances at the age of 27 as a means of avoidance following the death of his father in 2001. He reported using speed for a short period of time but did not like it, and that his main drug of choice was ecstasy. He also reported using ice for about five months prior to the offending as a way of coping after his relationship broke down. He stated that about 4-6 weeks before his arrest he had gone “cold turkey” with respect to his ice use and retook the panel shop.

73. The offender rated his physical health as 8-9/10, with 0 being extremely poor and 10 being extremely good. He reported that his mental health was positive and that this was the first time he had come to jail believing that there were “better things for [him] outside.” He stated that he has a beautiful life outside and that he is done with the life that brings him to jail.

74. He trains every day in custody and does not receive any physical health treatment except for sciatica, which he believes is because of his age. He stated that physical exercise “helps [him] sleep, it stops [him] thinking and puts [him] in the right headspace.”

75. He described an unremarkable physical health history. He stated that both of his parents died from cancer and that his brother died from organ failure which he believes was related to substance abuse.

76. With respect to his mental health, the offender says it is good because of his support from his children and his grandchildren. He admitted that he has been diagnosed with Post Traumatic Stress Disorder in relation to his experience of childhood sexual assault.

77. The offender told the assessor “I see value in psychological treatment. Talking to someone unrelated helps me make sense of my experiences.” He denied any history of receiving treatment for mental health in custody or in the community because he was “told to suck it up” while growing up.

78. He rated his mood as being between 8-9/10, 0 being extremely low and 10 being extremely high. He stated that “being in jail breaks [his] heart, but [he] always [tries] to make the best of a bad situation.”

79. He admitted that coming to jail saved his life and that he has been clean from substances for three and a half years. He stated that he does not want to use despite the availability of illicit substances in custody.

80. The offender stated that he has not slept well for a long time and that it takes him a long time to fall asleep because of his thoughts. He has memories of what happened to him as a child and what his wife has gone through that keep him awake. He stated that the reason he has not had a partner since his wife’s death is because he looks for her in everyone else and realises he will never find her again. Other information suggests that the offender has had other relationships It is not necessary to resolve this question.

81. He denied that he was feeling an episode of depression at the time of the assessment but admitted that he did not like being in custody. He acknowledged that he previously has used avoidance strategies that have led to him being in a depressed mental state, but that he will not let himself get into that mental state.

82. He denied experiencing symptoms of anxiety, and Dr Pusey stated that there was no evidence of pathology consistent with a diagnosis of a psychotic disorder during the assessment.

83. The offender returned a False Disorder Probability Scale score of 0.09, and an IOP-M score of 33 out of 34 items. Dr Pusey opined that taken together, the offender’s scores are indicative of a credible presentation and suggest that he is neither over nor under-reporting the severity of his pathology or the significance of any functional impairment associated with his pathology.

84. Dr Pusey opined that based on the information provided for the purposes of the assessment that, at the time of the offending, it is likely the offender would have met the mental health diagnoses as described in the DSM5 of Adjustment Disorder, Post Traumatic Stress Disorder and Substance Use Disorder.

85. Dr Pusey is of the view that based on the offender’s description of his behaviour and mental state at the time of the offending as a function of the breakdown of his relationship with his partner, its impact on his functioning and behavioural decision making and its influence on his engagement in substance use demonstrates how he meets the criterion for the diagnosis of Adjustment Disorder.

86. He further opined that the offender’s description of the continuing impact of the abuse and trauma he experienced in a diverse array of contexts, but particularly the sexual abuse in school and the physical and sexual abuse in juvenile detention, and the pervasiveness of avoidance strategies to cope with the impact of the mental health pathology arising from this demonstrates how he meets the diagnostic criterion for Post Traumatic Stress Disorder.

87. The offender’s reporting of his substance use and the basis for his engagement in this behaviour, in Dr Pusey’s opinion, demonstrates how he meets the diagnostic criterion for a Substance Use Disorder.

88. Dr Pusey was not of the view that these pathologies are directly related to the offending behaviour, merely that he the offender would have been experiencing these disorders at the time of the offending. He states it is more likely that the offending behaviour may have exacerbated the mental health pathology already present when it was occurring.

89. Dr Pusey stated that the offender continues to present with pathology congruent with a diagnosis of Post Traumatic Stress Disorder. He stated that the pervasiveness of the offender’s avoidance strategies make it difficult to accurately assess the true nature of his presenting pathology. He believes it would be beneficial for the offender to be monitored on a more frequent basis and that his mental state and presenting pathology be assessed on a longitudinal basis to ascertain the exact nature of his presenting pathology. Dr Pusey believes that this will best support his management and treatment planning in the custodial environment.

90. The offender acknowledges his criminal history which predates this offending. He disclosed that he is able to recognise the influence of substance use and that it most prominently affects his use of a predominantly avoidant emotional coping and processing style on his historical engagement in offending behaviour.

91. Dr Pusey stated that the influence of untreated mental health pathology in combination with a pervasiveness of the offender’s avoidant coping responses on this phenomenon should not be underestimated. He opined that it is a positive prognostic indicator that the offender recognises the value he could receive from engaging in psychological treatment. The report states that the offender’s risk of recidivism is however elevated by his lack of treatment engagement to date and the risk that this poses in relation to further episodes of engagement in maladaptive behavioural decision making and emotional responding.

92. The offender’s psychosocial history is characterised by his experience of significantly adverse childhood events including physical and sexual abuse perpetrated in a diverse set of contexts, his early disengagement from the education system, as well as his experiences within the education system and the predominance of a diverse array of avoidant coping strategies as his only response to negative mood states or the impact of adverse experiences. The offender points to this as being a significant contributor to his history of offending.

93. Dr Pusey stated that an assessment of the offender’s risk of reoffending requires discussion regarding his criminogenic needs in particular the static and dynamic risk factors relevant to the offending behaviour.

94. The Risk Needs Responsivity Model identifies eight central risk and needs factors. These are:

1. history of antisocial behaviour;

2. antisocial personality pattern;

3. antisocial cognition;

4. antisocial associates;

5. family/marital circumstances;

6. school/work;

7. leisure/recreation; and

8. substance abuse.

95. The first four are identified as being the “Major 4” which are major predictor variables and “the major casual variable in the analysis of criminal behaviour in individuals.” Dr Pusey opined during the assessment that the Major 4 variable of history of antisocial behaviour appears to be related to this offending behaviour.

96. Dr Pusey stated the additional recidivism risks evident are school/work and substance use. He opined that supporting the offender’s capacity to continue to engage in appropriate mental health treatment aimed at processing his trauma will assist him with the development of as well as the ability to implement a wider array of coping responses to support him with the regulation of his emotional and behavioural responses, without such a significant reliance on avoidance, should assist him to reduce its risk on his behavioural decision making and potential recidivism.

97. Dr Pusey assessed the offender’s risk of recidivism as moderate to high. He opined that it is imperative for the offender to commence a period of engagement in evidence-based mental health and substance use treatment to reduce the impact that these factors have on his functioning and risk of recidivism.

98. He also opined that an appropriate treatment pathway would support the continued development of the offender’s insight into his psychological vulnerabilities and the role they played in the offending, support the development of alternative emotion regulation strategies, support his abstinence from substance use, and address his trauma and any comorbid mental health pathology. Further, he opined that the offender should be provided with a further comprehensive mental health assessment and treatment, and that an appropriate treatment pathway would be to engage in an evidence-based regime for at least 6-12 months.

SENTENCING ASSESSMENT REPORT

99. A Sentencing Assessment Report was prepared by Community Corrections and is dated 4 March 2024. It forms part of exhibit A.

Current Circumstances

Family and Social Circumstances

100. The offender is currently in custody on remand at Bathurst Correctional Centre. He is single and has seven children ranging between the ages of 30 and 4 years old. He has no contact with his youngest child.

101. The offender described a supportive relationship with his other children and grandchildren and benefits from their ongoing support in an out of custody. He resided in a factory where he was employed at the time of the offences due to financial issues but has since arrange accommodation with his new employer in Newcastle upon release.

Education and Employment

102. The offender has employment arranged upon his release from custody working as a panel beater and spray painter restoring vehicles. He has a history of regular employment in the community and was previously self-employed as a panel beater.

103. He is employed in the Technology section at Bathurst Correctional Centre, with satisfactory reports regarding his performance. He has consistently been employed while in custody.

Factors Relating to Offending

History of Anti-Social Behaviour

104. The offender has an extensive criminal history which commenced when he was a juvenile. His offending has continued in frequency but varied in type and includes matters of violence, domestic violence, driving offences, larceny, and supply of illicit substances.

Attitudes

105. The offender provided varied accounts of the incident when challenged on his offending factors. He accepted no responsibility for his role in the index offending and said he was under duress as his co-offender threatened to shoot him unless he complied.

Responsivity

Insight into Impact of Offending

106. The offender made statements of remorse for the index offending and identified the negative impact it has had on his family, NSW Police, and the community, however, he blamed his co-offender and maintained he feared or his life.

107. The offender was unable to identify his previous issues with mental health and drug use and how they affected his offending, however, was dismissive of treatment and opted to manage the problems himself.

Willingness and Ability to Undertake Intervention

108. The offender stated he is willing to undertake intervention, however, he did not identify any factors related to his offending behaviour.

Willingness and Ability to Undertake Community Service Work

109. During the assessment, the offender indicated he is willing and able to undertake community service work.

Response to Supervision

110. The offender has previously been supervised by Community Corrections and completed multiple orders but has not completed interventions to address his offending. His engagement throughout the Sentencing Assessment Report was satisfactory.

Assessment and Recommendations

Risk Assessment

111. The offender has been assessed at a T2/Medium-Low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).

112. The effect of this is that if the court makes a supervised order, Community Corrections would monitor him for any indicators of increased risk. The offender would be required to notify Community Corrections of any changes to his address or contact details. He would not be required to participate in face-to-face reporting with a Community Corrections officer.

Community Service Assessment

113. Community Corrections has assessed the offender as suitable to undertake community service work.

PROSPECTS OF REHABILITATION

114. It was conceded on behalf of the offender that the offender’s criminal history makes it difficult to find that the offender has good prospects of rehabilitation. I further note that the absence of insight into his offending and his refusal to accept responsibility also speak negatively as to his prospects of rehabilitation. Counsel for the offender submitted that the offender’s compliance with his strict bail conditions and his employment and positive relationship with his employer Tony Tamelkovski demonstrated that the offender has realistic prospects of rehabilitation.

115. My findings as to the offender’s prospects of rehabilitation are guarded as the offender has not engaged in any form of formal counselling or treatment and continues to shift responsibility for the offending to his co-offender. I do not find prospects of rehabilitation as a mitigating factor. Further, in terms of the risk of reoffending, I note the diversion views of the Community Corrections officer and Dr Pusey. It can probably safely be concluded that the risk of reoffending is in the medium range. In those circumstances, it does not give rise to a mitigating factor on sentence.

116. Further, given the finding regarding risk of reoffending, this does not arise on the balance of probabilities as a mitigating factor.

OBJECTIVE SERIOUSNESS

117. I was assisted by written submissions from the parties.

118. With respect to count 1, it was submitted by the Crown that the offending falls at the mid-range. On behalf of the offender, it was submitted that the offending was objectively serious. I accept the submissions and find the objective seriousness falls at the mid-range, having regard to the following factors:

1. at least five civilians saw the shotgun;

2. that the weapon was a dangerous weapon, not an offensive weapon, as it was a shotgun, and was therefore more intimidating than the weapon required to make out the offence; and

3. the role of the offender, in that the offender and co-offender were acting in a joint criminal enterprise, and it is immaterial who was driving and who was brandishing the shotgun;

119. With respect to count 2, it was submitted by the Crown that the offending falls at the upper end of the mid-range. It was submitted on behalf of the offender that the objective seriousness falls below the mid-range. I find the objective seriousness falls just above the mid-range, having regard to the following factors identified by the parties:

1. the length and distance of the police pursuit, commencing shortly after 9am and concluding at or about 9.55am when the co-offender was shot dead by police;

2. at least part of the driving was in a school zone;

3. the time of day and the traffic conditions, being mid-morning on a weekday;

4. the manner of the driving, being erratic and exceeding the speed limit excessively; and

5. the damage caused by the pursuit, including damage to the police vehicle and private property.

120. With respect to count 3, the Crown submitted that the objective seriousness falls at the mid-range. It was submitted on behalf of the offender that the objective seriousness falls at the mid-range. I accept the submissions and find the objective seriousness falls at the mid-range, having regard to the following factors:

1. the value of the stolen vehicle, being insured for $37,000 in addition to the equipment and tools worth $65,000;

2. the potential for endangering public safety due to the fire spreading to the surrounding bushland; and

3. the extent of the damage to the vehicle.

121. It was submitted on behalf of the offender that there is a reasonable possibility that the co-offender started the fire. I reject this submission and in any event, even if that were the case, the offender would be responsible for the damage by reason of the joint criminal enterprise.

STATUTORY AGGRAVATING FACTORS

122. Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999, hereinafter CSP Act, sets out the aggravating factors to be taken into account in determining the appropriate sentence for an offence.

123. The offender has a criminal history involving a variety of offences, including multiple driving related offences. The offender does not, however, have a history of like offences. In the circumstances, I decline to find his criminal history an aggravating factor pursuant to s21A(2)(d) of the CSP Act, but it does disentitle him to any leniency which may otherwise flow to an offender of good character.

124. The Crown submitted that the fact that the offending behaviour was committed while the offender was on bail and thus while he was on conditional liberty is an aggravating factor. I accept that submission and make a finding pursuant to s 21A(2)(j) of the CSP Act.

125. It was submitted by the Crown that by reason of the fact that there were five civilian victims in respect of count 1 that this rises to the level of an aggravating factor. Rather than treat this as an aggravating factor, I have taken it into account when assessing objective seriousness.

STATUTORY MITIGATING FACTORS

126. It was submitted on behalf of the offender that duress is a mitigating factor pursuant to s 21A(3)(d) of the CSP Act. I reject that submission and rely upon my reasons above concerning duress.

MORAL CULPABILITY

127. It was submitted on behalf of the offender that his moral culpability is reduced to some degree as a result of duress. I have already rejected that submission.

128. The Crown submitted that the report of Dr Pusey enlivens considerations of the case of Bugmy v The Queen [2013] HCA 27. It was submitted that the absence of a causal connection between the offending and the offender’s childhood deprivation precludes a reduction in the offender’s moral culpability. In the circumstances, whilst I am unable to find that the offender’s childhood deprivation directly contributed to his offending in a material way, it is a factor which I have, nevertheless, taken into account as moderating the offender’s moral culpability. I have given weight to the offender’s childhood deprivation including sexual abuse, physical abuse, domestic violence, and disrupted schooling. In relation to the latter, it is recognised in the Bugmy Bar Book that interrupted school attendance and suspension can lead to lower educational outcomes impacting a person’s adult life. In some cases, it can give rise to a reduction to the offender’s moral culpability and moderates the weight to be given to general deterrence and specific deterrence. It may also give rise to issues concerning hardship in custody, permitting a finding of special circumstances. The evidence in this case does demonstrate the offender’s schooling was interrupted, the extent to which however is not made clear from the evidence.

129. There is nothing in the High Court’s decision in Bugmy that says that deprivation will only be a mitigating factor lessening the moral culpability of the offender it if is linked to the offending. Like Fullerton J in Perkins v R [2018] NSWCCA 62 at [62], I am mindful of the approach of Gageler J in Bugmy that the effect of social deprivation and its weight in the sentencing exercise is a matter for individual assessment.

130. In the present case, there is sufficient evidence from Dr Pusey which permits a reasonable inference to be drawn that the ongoing effects of the offender’s traumatic childhood was a factor which contributed to his offending. The effects of his traumatic childhood must be given full weight and I find that it does mitigate the sentence by reducing the offender’s moral culpability.

131. Dr Pusey diagnosed a number of mental health issues which he said would have been present at the time of the offending. He stopped short of finding that they materially contributed to the offending. Whilst DPP (Cth) v De La Rosa [2010] NSWCCA 194 speaks of the need for there to be a nexus between mental health issues and offending, in recent times, intermediate courts of appeal have adopted a less strict approach.

132. I note the remarks of Hamill J in Luque v R [2017] NSWCCA 226 at [114] where his Honour urged sentencing judges to not adopt an unduly technical or restrictive approach in dealing with an offender’s mental health issues.

133. I also note the remarks of Yehia J in Carl v R [2023] NSWCCA 190 where it was held that although a causal connection may not be established on the evidence, such evidence may moderate general deterrence, retribution, and denunciation. I consider that the evidence in this case is sufficient to establish those factors in favour of the offender. I also consider that the sentence is mitigated to some degree on the basis that the mental health issues identified by Dr Pusey may cause this offender’s conditions in custody to be more onerous.

SECTION 5 THRESHOLD

134. I accept the submissions of the parties and find that no sentence other than one of imprisonment is appropriate.

PURPOSES OF SENTENCING

135. Section 3A of the CSP Act sets out the purposes for which a sentence may be imposed. Aside from the fundamental obligation ensuring adequate punishment, the purposes for sentence which are prominent in cases such as these are deterrence, denunciation, protection of the community, and to recognise the harm caused to victims of crime and the community by offending of this type. I take those factors into consideration.

COMMENCEMENT DATE

136. In determining the commencement date, I have backdated for the following periods of pre-sentence custody:

1. 18 October 2020 – 31 August 2021. This period is not solely referrable to the index offending, so I intend to allow half, which is 5 months, or 150 days;

2. 1 September 2021 – 26 October 2022. This period is solely referrable to the index offending, until the offender was granted Supreme Court bail on 26 October 2022, and amounts to a period of 421 days; and

3. 31 October 2023 – 5 July 2024, being 249 days.

137. The sentence is backdated by 820 days and will commence on 7 April 2022.

INDICATIVE TERMS

138. I intend to sentence the offender to an aggregate term of imprisonment. Before doing so, I must provide indicative terms for each sequence. The indicative terms are not discounted as the offender maintains that he is not guilty in respect of these charges.

Count	Objective Seriousness	Maximum Penalty	Indicative Term
1	Mid-range	15 years	4 years 6 months
2	Just above the mid-range	3 years	2 years 6 months
3	Mid-range	10 years	3 years
Sequence 2	Mid-range	2 years summarily	1 year 6 months

139. I intend to deal with sequences 1 and 3 separately below.

TOTALITY, CONCURRENCY AND ACCUMULATION

140. Before moving on to conviction and sentence, I make the following observations concerning totality, concurrency, and accumulation. Were I to simply accumulate the indicative terms, the sentence would be unduly harsh. Given the offending occurred in the course of a single episode on one day, I consider that a moderate degree of concurrency is appropriate, that is that the penalty for some of the offences can to a limited extent encapsulate the criminality of others. The overall sentence must be one which is just and appropriate in the circumstance.

SPECIAL CIRCUMSTANCES

141. It was submitted by the Crown that special circumstances exist, and that the offender would benefit from an extended time on parole to assist his treatment for mental health and substance use issues. A similar submission was made on behalf of the offender that the offender would benefit from an extended period of supervision in the community to assist with his mental health, his associations, and his history of illicit drug use. I therefore make a finding of special circumstances for those reasons.

RELATED CHARGES

142. I have found on the evidence the 3 related charges proved beyond reasonable doubt.

143. In my opinion, the criminality of the offending related to sequences 1 and 3 are captured by the sentence I intend to impose for counts 1, 2 and 3 and sequence 2.

144. Accordingly, in respect of the related offences for charge ending 548 sequences 1 and 3, I find that the objective seriousness falls at the mid-range, and I dispose of those charges pursuant to s 10A of the CSP Act. The offender is convicted of those related charges, but I do not impose any other penalty.

CONVICTION   

145. Mr York, please stand.

146. You are convicted of the following offences:

1. use etc offensive weapon in company to prevent detention in breach of s 33B(2) of the Crimes Act 1900 [count 1];

2. police pursuit not stop drive recklessly first offence in breach of s 51B(1) of the Crimes Act 1900 [count 2];

3. damage property by fire/explosive value of property damage exceeds $15,000 in breach of s 195(1)(b) of the Crimes Act 1900 [count 3];

4. drive motor vehicle during disqualification period prior offence in breach of s 54(1)(a) of the Road Transport Act 2013 [sequence 1];

5. drive conveyance taken without consent of owner in breach of s 154(1)(b) of the Crimes Act 1900 [sequence 2]; and

6. use class A vehicle displaying misleading etc number-plate in breach of s 129(3)(b) of the Road Transport (Vehicle Registration) Regulation 2017 [sequence 3].

SENTENCE

147. In respect of the convictions, I impose a total aggregate head sentence of 7 years imprisonment with a non-parole period of 4 years 6 months, meaning that:

1. allowing for time served, the head sentence commenced 7 April 2022 and expires 6 April 2029; and

2. the non-parole period commenced 7 April 2022 and expires 6 October 2026, at which time the offender will be eligible for consideration of parole.

148. I direct that the offender be supervised on parole and submit to all requests for supervision made to him by Community Corrections.

149. I order that the offender’s driver’s license be disqualified for a period of 3 years commencing today.

150. Do you understand the sentence?

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I CERTIFY THAT THIS JUDGMENT IS A TRUE COPY OF THE REASONS FOR SENTENCE HEREIN OF HIS HONOUR JUDGE WILSON SC.

G Hill

Associate

Decision last updated: 07 August 2024