Regina v Holton

[2002] NSWSC 775

CITATION:	Regina v Holton [2002] NSWSC 775
FILE NUMBER(S):	SC 70112/01
HEARING DATE(S):	13 May 2002 - 18 June 2002
JUDGMENT DATE:	23 August 2002
PARTIES :	Regina v Trevor Edward HOLTON
JUDGMENT OF:	Davidson AJ

COUNSEL :	M Tedeschi QC - Crown J O'Loughlin - Prisoner
SOLICITORS:	D.P.Ross Hill & Associaes
CATCHWORDS:	Remarks on sentence
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Road Transport (General) Act 1999
DECISION:	Sentence imposed - see paragraphs 42,43,44

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL

DAVIDSON AJ

23 August 2002

70112/01 - REGINA v Trevor Edward HOLTON

SENTENCE

1 HIS HONOUR: The prisoner was indicted on two counts. The first count charged that on 14 January 2001 at Campbelltown he murdered James Affleck. The second charge of manslaughter was laid in the alternative. The prisoner pleaded not guilty to the first count but guilty to the second count. He was convicted of the first count of murder and no verdict, of course, was taken on the alternative count. The maximum penalty prescribed for murder is life imprisonment.

2 By reason of the prisoner's plea of guilty there was no live issue before the jury that he had caused the death of the deceased by an unlawful and dangerous act, namely his manner of driving a Prado motor vehicle. It was by impact of this vehicle with him that the deceased, Senior Constable Affleck, a serving member of the New South Wales Police Service was killed.

3 Although the Crown opened its case on the basis of the prisoner having caused the death with an intention to kill or inflict grievous bodily harm or with reckless indifference to human life, ultimately the Crown case was left to the jury as one of reckless indifference to human life only, the Crown having abandoned the other heads of murder.

4 Although not expressly relied on by Mr O'Loughlin of counsel for the prisoner, an issue of self defence was left to the jury which was, of course, eliminated by its verdict. There was also an issue of intoxication going to the accused's state of mind and this, too, was obviously resolved against the accused although Mr O'Loughlin submits that the evidence relating to the prisoner's consumption of drugs before the chain of events leading to Senior Constable Affleck's death continues to be relevant to sentence.

5 Consistently, I trust, with the jury's verdict I find the following facts established by the evidence. On 14 January 2001, at a distance of about 43 kilometres south of the point of impact on the M5 expressway, the prisoner was driving a stolen Prado motor vehicle. Another male was with him in the car, together with a four year old child

6 The prisoner stopped the vehicle and a bag snatching offence was committed by the man with him who then returned to the car. The evidence that the vehicle was stolen and the evidence relating to this bag snatching was admitted as explaining what followed as far as the prisoner's driving was concerned, the prisoner consistently asserting that he was motivated by a desire to evade arrest.

7 He made off at a speed travelling on to the freeway going in the wrong direction up the ramp towards and proceeding for a distance in the wrong direction along it. He stopped and his male companion left the vehicle, the child still being in the car.

8 The prisoner then drove off. He was pursued intermittently over the following forty or so kilometres by the police, the pursuit being called off from time to time in the interests of safety.

9 During the course of the journey he exceeded the speed limit by substantial margins. He travelled on two occasions against the flow of traffic. He narrowly evaded a head on collision with a motorist and he overtook a number of vehicles whilst he was in the breakdown lane.

10 Notwithstanding that Constable Andrikis, the driver of a police vehicle following the Prado up to the point of impact, expressed his opinion as an experienced pursuit police driver that the prisoner's manner of driving was not dangerous or only dangerous in a limited respect or respects, Mr O'Loughlin of counsel conceded that it was both unlawful and dangerous and a formal admission was made as to this being the cause of death.

11 In my view, the concession is clearly correct and if I may so say so entirely in accordance with what was apparently in the best interests of the prisoner at his trial.

12 During the course of the pursuit, arrangements were made over the police radio communication system for the deceased to deploy road spikes or road sticks on the M5. Mr O'Loughlin, in his submissions to me on sentence, emphasised that this procedure had not been previously used in New South Wales and that the deceased had only had about four hours in training before he proceeded to deploy them. He had never done so previously outside his period of training.

13 I accept Mr O'Loughlin's submission that the deceased did emerge from behind the safety of a metal crash barrier on the eastern side of the north bound lane in order to deploy these road spikes but in my view he did so conscientiously with a view to more effectively doing his duty. For reasons not explained in the evidence the stop sticks were designed so that they could cover one lane only of this northbound stretch of the expressway.

14 The evidence of the prisoner's course of driving up until a point where he veered to the right approaching the deceased went to the jury as evidence of his state of mind at and immediately before the impact, as did the evidence that the prisoner had in the vehicle with him, the four year old child who, for at least part of the journey to the point of impact was not restrained by a seatbelt. It was his driving from the time of veering to the right up to the point of impact which was the act causing death and which was therefore the relevant period in which the culpability of the state of mind of the prisoner was to be considered and assessed by the jury.

15 In a recorded interview, Ex 24 in the trial, the prisoner said that he first saw the police officer laying the road spikes in lane two as he was travelling north. He then moved into lane number one. He said that the police officer moved into that lane and had thrown the spikes out, trying to get them in front of the Prado. He said to the interrogating police that he knew that they were road spikes being thrown out and it was clear from a video game found in his possession that he was well aware of the purpose of them as a method of bringing to an end unlawful and dangerous pursuits, such as the one which had taken place intermittently over the previous forty odd kilometres of public roadway.

16 He claimed to have been two or three hundred metres away from the police officer when he first saw him with the road spikes. They were laid in lane number two, the lane nearest to the grass median strip and the prisoner said he then moved into lane one. He said that by this time he had slowed from a speed of about 180 kilometres per hour to about 166 kilometres per hour. He was asked whether he had considered stopping and he said,

“I did at first but then I thought I could get around it because they, I thought they were, the spikes went right across so I was ready to stop but when I seen it was only one lane of spikes I thought I would get around them". (Q & A 240 Ex 24).

17 He claimed that the deceased ran from lane two over to lane one and had grasped the spikes again. He said he tried to get away from the deceased by entering the second lane and the officer ran back from lane one to lane two with the spikes. He said,

“And there was a bit of a gap between the car and himself and the spikes where the grass median was".

18 The car referred to was a marked police car conspicuously parked on the median strip. It is clear from his own version that he had endeavoured to get between the deceased and the parked car but,

“I was going too fast and I was too close to swerve back and go back around the way, so I went this way and I tried to get between the car and the policeman but the policeman kept running back in front of the car trying to get the spikes under the wheels and I had nowhere to go and swerved. I couldn't dodge him, I was going too fast to do anything". (Q & A 256).

He claims that he braked,

“As soon as I realised that he was standing right there and that, it was only a split second before but because I thought I would make it through the gap, as soon as I realised I didn't I put on the brake".

19 The vehicle came into impact with the deceased while still at high speed. It then careered across the median strip, traversed the south bound lane and overturned on the grassy slope of the eastern side of the M5. Although, as Mr O'Loughlin has put to me today, there was evidence that the vehicle was out of control, I am of the view that it was out of control only after the point of impact and that at all material times up to the point of impact it was fully within the control of the prisoner.

20 Whilst there was evidence tending to support the contention of the prisoner that the deceased had found it necessary to cast the spikes twice in order to attempt to make them effective, the picture the prisoner suggests of the deceased, virtually running in front of the Prado vehicle, if this is what he intended to convey, was in my view rejected by the jury. It is a necessary conclusion from the verdict that the prisoner knew that from the moment he swerved to the right at a speed well in excess of the speed limit it was likely that someone would be killed and that recognising and foreseeing that, he continued in this manner of driving.

21 I am satisfied, as I believe the jury was satisfied, that by the simple expedient of stopping the vehicle, the police officer's death would have been avoided. The prisoner did not take that step, motivated as he was by his own interests in evading lawful arrest for his manner of driving a stolen vehicle, and implication in the earlier bag snatching offence.

22 After the vehicle overturned he ran off, leaving the child apparently physically unharmed but in a state of evident distress.

23 I turn to other matters, that is to say matters other than the objective circumstances of the offence and I note firstly that the prisoner has been in custody in relation to this matter since the date of his arrest on 15 January 2001.

24 He was 25 years of age at the date of the offence, 14 January 2001 and is now 27. He has had a troubled childhood according to the pre-sentence report and his pattern of resultant misbehaviour tended to intensify when he was told the man he thought was his father was not his father. He claims to have been sexually assaulted as a child and the assertion was borne out by the fact that the culprit was convicted of this and of other offences. The prisoner has received an award under the Victims Compensation Legislation.

25 Whilst he has above average intelligence, his work record seems to have been almost nonexistent. According to the pre-sentence report he has smoked marijuana since the age of thirteen. He has experimented with amphetamines and used them since the age of 19 but ceased after an 11 week rehabilitative programme. Following this, however, it seems he became addicted to heroin.

26 As I have indicated there was evidence before the jury of drug consumption but not so as to prevent the jury from finding beyond reasonable doubt that he had the knowledge and foresight necessary for the crime. I reject the contention, if indeed it was the contention of Mr O'Loughlin that any drug consumption which he had shortly prior to the Commission of this offence is to be taken into consideration in his favour in assessing the appropriate sentence to be imposed.

27 There is also in evidence a psychologist’s report which canvasses the disrupted childhood of the prisoner, his strained family relationships, his being sent to a school for disorderly children and other aspects of his childhood and youth which I find it unnecessary to canvas in detail here, but which include being expelled from a number of schools including the school for disorderly children. The psychologist states he was diagnosed with an attention deficit disorder in his early teens and was prescribed medication for it. The report appears to accept the proposition that the prisoner's mental health became adversely affected after he had been the victim of the sexual assault at the age of fourteen to which I have already referred.

28 The prisoner claimed that he suffered from depression for a number of years and attempted suicide. It is also reported that he described current symptoms consistent with major depressive disorder and also post traumatic stress disorder which, however, appear to be traceable to his present custodial position. The report also canvasses his drug consumption history.

29 The report places his intellectual function at greater than eighty-seven per cent of the population. It concludes that the prisoner had exaggerated his psychological symptoms but nevertheless currently suffers from a significant level of psychological stress.

30 The prisoner has an extensive conviction record. These are principally in the Local Court for offences of dishonesty, driving offences and a small number of offences of violence. There is nothing, however, in his record in any way approaching the seriousness of the conviction for which he now stands to be sentenced. His criminal history is consistent with the history of a disrupted childhood and early youth and his almost nonexistent employment record.

31 There is in evidence a family victim impact statement completed by the widow of the deceased. I have received this document and consider it in determining the sentence to be imposed. For this purpose, before doing so, in order to comply with section 28 of the Crimes (Sentencing Procedure) Act, if I have not previously formally entered a conviction, I do so now.

32 It is a moving document and attests to the destructive consequent effects which serious criminal activity such as this may have on the lives of many others than the immediate victim. In this case, the deceased was an experienced capable and courageous police officer whose life was taken whilst endeavoring to the best of his considerable ability and capacity to do his duty and serve the community. But the consequences of the offence are visited painfully and specifically on those family members who survive him.

33 The prisoner has sought to express his remorse by writing to the widow of the deceased. Mr O'Loughlin submits that a further indication of his remorse is that from the time of his committal for trial, he expressed a willingness to plead guilty to manslaughter and, of course, in fact did so on presentation of the indictment in the presence of the jury.

34 S 22 of the Crimes (Sentencing Procedure) Act requires me to take into account a plea of guilty to "the offence". The offence, in my view, is the one for which the prisoner is before the court for sentence today, that is to say, in this case, murder. The accused pleaded guilty to manslaughter which of course was not accepted by the Crown and is not "the offence" for which he is being presently sentenced. However, I accept that the plea is fairly to be regarded as an expression of the prisoner's contrition, together with the letter which he forwarded to the deceased's widow.

35 The Crown accepts that the plea ought to be so regarded but submits that the prisoner, not having pleaded guilty to the main charge in the indictment of which he was subsequently convicted by the jury, should receive a discount proportionally less than if he had pleaded guilty to the murder charge. This too I accept and I propose to apply a discount to the head sentence of two years which it will be seen is just over 11 per cent of the head sentence.

36 In sentencing the prisoner I accept the proposition that there is no prima facie presumption that murder on the basis of reckless indifference to human life is less culpable than murder done with intent. I proceed on the basis submitted by Mr O'Loughlin that the motivation of the prisoner at all times, but more particularly in driving this vehicle from the time that he saw the road spikes until it overturned and he departed from the vehicle leaving the unrestrained child within it, was to avoid his own apprehension for complicity in the bag-snatching offence, the theft of the motor vehicle and his manner of driving the Prado.

37 I take the view that the killing of a police officer whilst in the execution of his duty is a serious, aggravating factor in the offence.

38 Although s 21A of the Crimes (Sentencing Procedure) Act (1999) does not, as I understand it, apply to this sentencing proceeding, the principles enacted therein are in any event those which the court in sentencing would apply with appropriate emphasis depending on the circumstances of the particular case.

39 The particular circumstances of this case require that both aspects of the deterrent element in the sentence should be apparent. This is also a need to demonstrate in the sentence imposed that the community must be protected from behaviour of this kind. There is also the need to demonstrate that the lawful endeavour of the police in seeking to minimise the effect of criminal behaviour on the roads by ending grossly unlawful and dangerous driving, as occurred in this case, are appropriately supported by the courts.

40 I have come to the conclusion that, having regard to the objective circumstances of the case and matters personal to the prisoner, an appropriate head sentence of 18 years imprisonment is called for, taking into consideration five matters on a Form 1 which have been handed up. I would reduce that sentence, as I have already indicated, by two years to give effect to the discount for the limited plea of guilty.

41 The sentence, of course, will date from 15 January 2001. In my view the statutory formula if applied to the resulting head sentence of sixteen years should ensure an adequate period available for supervision on parole if and when it is granted and contrary to the submissions put to me by Mr O'Loughlin of counsel this afternoon, I make no finding of special circumstances.

42 Accordingly the sentence of the court is that you are to be imprisoned for a period of sixteen years to date from 15th of January 2001. I fix a non-parole period of 12 years. The effect of that sentence is that you will become eligible for parole on 14 January 2013 and the whole of the sentence will come to an end on 14 January 2017.

43 In imposing sentence I have taken into consideration, as I have already indicated, the five additional charges as listed in the Form 1 in accordance with sections 32 and 33 of the Crimes (Sentencing Procedure) Act.

44 Pursuant to section 25(2)(d)(ii) of the Road Transport (General) Act 1999, you are disqualified from holding a driver's licence for a period of twenty years. Remove the prisoner.

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Last Modified: 08/29/2002