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District Court 20 November 2009

R v Garry Robert LACEY

[2009] NSWDC 343

Assault & violenceTraffic & drivingPublic order & justice offences
CRIMINAL LAW SENTENCING

Citation: R v Garry Robert LACEY [2009] NSWDC 343
Court: District Court of New South Wales
Date: 20 November 2009
Judge(s): Norrish QC DCJ

Background

The offender appeared for sentence following a trial at which he was convicted on one count and acquitted on two others, having earlier pleaded guilty to two further counts. The events arose from an incident on 28 July 2008 at Coffs Harbour, during which the offender, a disqualified driver, became involved in a road altercation at a service station and subsequently used his motor vehicle as a weapon in an attempt to avoid police apprehension.

The principal offence (Count 1B) was using an offensive instrument, specifically a motor vehicle, with intent to prevent lawful apprehension. The offender also pleaded guilty to two counts of resisting a police officer in the execution of his duty. The jury acquitted him of the more serious charge of driving at a person with intent to murder, and also acquitted him of a separate assault charge against a police officer.

A number of additional offences were brought before the court on a Form 1 to be taken into account on sentence. These included a common assault, larceny of fuel, use of an unregistered and uninsured vehicle, two counts of malicious damage, and two counts of intimidating police officers committed after his arrest.

  • What was the appropriate starting point and sentence for the principal offence of using an offensive instrument to avoid lawful apprehension, given a maximum penalty of 12 years?
  • What discount should be applied for pleas of guilty, in accordance with the principle in Thomson and Houlton?
  • How should the sentences for the multiple offences be structured, including whether accumulation or concurrency was appropriate?
  • Whether special circumstances existed, justifying a departure from the standard ratio between non-parole period and head sentence under the Crimes (Sentencing Procedure) Act 1999?
  • How should the Form 1 matters be taken into account?

Decision

The court identified a starting point of nine years imprisonment for the principal offence (Count 1B), reflecting the seriousness of using a motor vehicle as a weapon to evade police. After applying a 20 per cent utilitarian discount for the guilty plea, consistent with the approach in Thomson and Houlton, the court arrived at a sentence of seven years and two months for that offence.

For the two resist-arrest offences (Counts 2 and 3), the court imposed sentences of two years and nine months respectively, also discounted for the guilty pleas. Those two sentences ran concurrently with each other, but the principal sentence was partially accumulated upon them by nine months, producing a total effective sentence of seven years and eleven months from 28 July 2008.

The court found special circumstances, which justified reducing the non-parole period below the statutory default proportion. Norrish QC DCJ fixed the non-parole period for the principal offence at four years and three months, with the offender first eligible for parole on 27 July 2013. The court noted that release to parole after the non-parole period was a matter for the parole authorities, not a matter within the court's power to direct given the length of the sentence.

The Form 1 matters, which included conduct both before and after the principal events, were taken into account in arriving at the sentence for Count 1B.

Orders Made

  • Count 1B (use of offensive instrument to avoid lawful apprehension): convicted; sentenced to 7 years and 2 months imprisonment; non-parole period of 4 years and 3 months commencing 28 April 2009, expiring 27 July 2013; balance of sentence expiring 27 June 2016; special circumstances found; Form 1 matters taken into account.
  • Count 2 (resisting police in execution of duty): convicted; sentenced to 2 years imprisonment commencing 28 July 2008, expiring 27 July 2010; no non-parole period fixed.
  • Count 3 (resisting police in execution of duty): convicted; sentenced to 9 months imprisonment commencing 28 July 2008, expiring 27 April 2009.
  • Section 166 matter (drive in a dangerous manner): convicted; sentenced to 9 months imprisonment commencing 28 July 2008, expiring 27 April 2009.
  • Driver's licence disqualified for 3 years commencing 15 February 2021 and expiring 14 February 2024.
  • Total effective sentence: 7 years and 11 months; non-parole period of 5 years.

Key Takeaways

  • A motor vehicle used to prevent police from effecting an arrest constitutes an "offensive instrument" for the purposes of the relevant charge, which carries a maximum penalty of 12 years imprisonment.
  • Under the principle in Thomson and Houlton, a 20 per cent discount for the utilitarian value of a guilty plea applied to each offence for which the offender had entered such a plea.
  • Partial accumulation of sentences, rather than full concurrency or full accumulation, was appropriate where the offences arose from related but distinct acts of criminality across the same episode.
  • Special circumstances can be found to justify a non-parole period that represents a lower proportion of the head sentence than the statutory default, particularly where the sentencing structure across multiple counts makes this appropriate.
  • Where a head sentence exceeds three years, the District Court has no power to order release to parole directly; eligibility is determined by the parole authorities upon application.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Thomson and Houlton v The Queen (2000) 49 NSWLR 383 (discount for utilitarian value of guilty plea)
- Pearce v The Queen (1998) 194 CLR 610 (sentencing for multiple offences)
- Callaghan v The Queen [2006] NSWCCA 58