Citation: R v Thaidy (2) [2014] NSWDC 194
Court: District Court of New South Wales
Date: 25 July 2014
Judge: Berman SC DCJ
Background
The offender was on parole for an earlier aggravated break, enter and steal, and also on bail, when he drove two associates to a small shopping centre and broke into a hairdressing salon. The group stole $46 in cash, three pairs of scissors, and two razors. A nearby resident called police while the offence was in progress.
When officers arrived and attempted to detain the offender, he was in the driver's seat of an unregistered, uninsured vehicle he was not licensed to drive. One officer grabbed him through the driver's window; a second officer, Sergeant Lewis, entered the front passenger seat and attempted to restrain him. The offender broke free, accelerated violently, and drove in an extremely dangerous manner, swerving across the roadway and mounting kerbs, with Sergeant Lewis trapped inside the moving vehicle.
Sergeant Lewis was thrown around the interior of the car throughout the incident, feared for his life, and at one point drew his service pistol before deciding it was too dangerous to discharge it. The vehicle eventually lost control and crashed through a residential fence. Sergeant Lewis suffered ongoing physical injuries to his back and shoulder, as well as significant psychological harm including recurring nightmares and anxiety attacks.
Legal Issues
- The appropriate sentence for the principal offence: using an offensive weapon (the motor vehicle) with intent to prevent lawful apprehension in company, carrying a maximum of 15 years' imprisonment
- The appropriate sentence for the guilty plea to aggravated break, enter and steal, carrying a maximum of 20 years and a standard non-parole period of five years
- Whether the standard non-parole period applied and, if not, the reasons for departing from it
- The sentencing treatment of the related summary offences (dangerous driving, driving uninsured, driving unregistered, and driving while never licensed)
- How the offender's personal circumstances, including drug use, immaturity, and criminal history, affected the sentencing exercise
Decision
Berman SC DCJ identified the use of the motor vehicle to resist arrest as the more serious offence, notwithstanding its lower maximum penalty compared to the break, enter and steal. His Honour emphasised the severe and lasting harm caused to Sergeant Lewis and the need for the sentence to reflect both the objective gravity of the conduct and the principle of general deterrence, particularly in cases where offenders use vehicles to threaten or harm police attempting lawful arrests.
His Honour took into account the offender's youth and immaturity as factors potentially bearing on moral culpability, but found that immaturity also pointed toward the need for a substantial personal deterrence component. The offender's upbringing was noted as largely stable, and his ongoing association with criminal peers, combined with an apparent unwillingness to change, was treated as an aggravating consideration bearing on prospects of rehabilitation.
A 25% discount applied to the sentences for matters to which the offender had pleaded guilty. For the principal offence, tried before the judge alone and resulting in a conviction, the court acknowledged concessions made during trial but applied no guilty plea discount. His Honour recorded reasons for not imposing the standard non-parole period in the remarks on sentence.
Orders Made
- Driving in a manner dangerous: 9 months' imprisonment from 21 July 2013; disqualified from driving for 5 years
- Aggravated break, enter and steal: non-parole period of 18 months from 21 October 2013; head sentence of 3 years
- Using an offensive weapon to avoid apprehension in company: non-parole period of 3 years and 6 months from 21 October 2014; head sentence of 6 years
- Driving uninsured: dealt with under s 10A of the Crimes (Sentencing Procedure) Act, concurrent
- Driving unregistered and driving while never licensed: dealt with under s 10A, concurrent; additional 1 year driving disqualification, cumulative on the dangerous driving disqualification
- Resisting police: charge withdrawn and dismissed
- Overall effective sentence: non-parole period of 4 years and 9 months from 21 July 2013; head sentence of 7 years and 3 months; earliest release to parole on 20 April 2018
Key Takeaways
- The District Court confirmed that using a motor vehicle to resist arrest and endanger a police officer constitutes a gravely serious offence warranting a substantial custodial sentence, even where the maximum penalty is lower than that of a co-offence.
- General deterrence carries particular weight in sentencing for offences involving threats or actual harm to police in the course of lawful arrest, as courts have a role in protecting officers who undertake dangerous public duties.
- An offender's immaturity may reduce moral culpability to a degree, but the same characteristic can simultaneously support a stronger personal deterrence component in the sentence.
- Ongoing parole and bail status at the time of offending are significant aggravating factors that the court took into account when assessing the overall criminality involved.
- Where an offender makes limited concessions at a judge-alone trial without formally pleading guilty, the court may take that cooperation into account, though it does not attract the same discount as a formal guilty plea.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 10A (conviction without additional penalty) and s 166 (certificate for related summary offences)
Cases: No specific cases were cited in the judgment.