Citation: R v John Warren Westaway [2015] NSWDC 97
Court: District Court of New South Wales
Date: 19 June 2015
Judge: Mahony SC DCJ
Background
The offender pleaded guilty to four offences arising from a single incident on 21 November 2014: failing to stop for police and driving recklessly during a pursuit, resisting arrest, supplying a prohibited drug (methylamphetamine), and intentionally or recklessly damaging property. All four offences were committed while the offender was on conditional liberty, having failed to appear in the Yass Local Court on a drive-whilst-disqualified charge in July 2014.
The pursuit occurred at night on Burra Road, with the offender reaching speeds in excess of 150 km/h, driving on the wrong side of the road, and overtaking on unbroken lines around a blind corner. After police deployed road spikes, the offender continued driving, destroyed a steel gate, and eventually lost control, rolling the vehicle. He then resisted police when they attempted to remove him from the wreckage.
Inside the vehicle, police found 16.42 grams of methylamphetamine at 78.5% purity across multiple clipseal bags, electronic scales, used syringes, cash, and what appeared to be a drug "tick list." A co-occupant of the vehicle was separately dealt with in relation to a firearm found on the dashboard.
Legal Issues
- What aggregate sentence was appropriate across the four offences, having regard to the totality principle and the requirement for partial concurrency where offences arise from the same circumstances?
- Whether special circumstances existed to justify departing from the standard ratio between the non-parole period and the balance of the term under the Crimes (Sentencing Procedure) Act 1999?
- What weight should be given to the offender's criminal history, his background and personal circumstances, his guilty pleas, and his prospects of rehabilitation?
Decision
His Honour imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, fixing a total term of 4 years with a non-parole period of 2 years and 3 months, commencing 19 April 2015. The commencement date reflected the Crown's submission that the sentence should begin upon expiry of the offender's pre-existing Local Court sentence for drive whilst disqualified.
The offending was treated as serious. The police pursuit involved extreme danger to other road users and continued even after a tyre was deflated by road spikes. The drug supply, supported by the presence of multiple bags of methylamphetamine at high purity alongside scales and a tick list, was treated as commercial in nature. The offending was aggravated by the offender being on conditional liberty at the time.
His Honour found special circumstances justifying a longer-than-usual balance of term (1 year and 9 months after the non-parole period). The reasons given were the offender's need for an extended period of supervision by Community Corrections, encompassing drug and alcohol treatment, anger management, and grief counselling. His Honour noted the offender's difficult personal history, including the death of his father when the offender was nine and the death of his brother in 2009, both of which had contributed to his substance use.
Notwithstanding the extended balance of term, the offender's criminal history, including prior suspended sentences for assault and other serious offences, two periods of imprisonment, repeated parole breaches, and persistent driving disqualification offences, meant that rehabilitation prospects were treated cautiously. His Honour also noted that a guilty plea was entered and that an employer had expressed willingness to re-engage the offender upon release.
Orders Made
- Convicted on all four counts.
- Aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999:
- Non-parole period of 2 years and 3 months, commencing 19 April 2015 and expiring 18 July 2017.
- Balance of term of 1 year and 9 months, commencing 19 July 2017 and expiring 18 April 2019.
- Total sentence: 4 years.
- Special circumstances found, varying the standard ratio between non-parole period and balance of term.
- Disqualified from driving for 5 years.
- Indicative individual sentences listed under s 53A(2)(b):
- Police pursuit (s 51B(1) Crimes Act): 2 years imprisonment.
- Resist officer (s 58 Crimes Act): 9 months imprisonment.
- Supply prohibited drug (s 25(1) Drug Misuse and Trafficking Act): 18 months imprisonment.
- Intentionally/recklessly damage property (s 195(1)(a) Crimes Act): 6 months imprisonment.
- Forfeiture order sought by the Crown in respect of $1,050 (noted in the remarks; final order on the extracted text basis).
Key Takeaways
- Under s 53A of the Crimes (Sentencing Procedure) Act 1999, a sentencing court imposing an aggregate sentence must still list indicative individual sentences for each offence, providing transparency about how the overall term was constructed.
- Special circumstances justifying a longer balance of term were established here on the basis of the offender's identified rehabilitation needs, including drug and alcohol treatment, anger management, and grief counselling, all of which required extended post-release supervision.
- Offending committed while on conditional liberty remained a significant aggravating factor, consistent with established sentencing principles.
- The District Court gave partial weight to personal mitigating factors, including a difficult childhood, bereavement, and substance dependency, while remaining cautious about rehabilitation prospects given a sustained pattern of non-compliance with supervision orders.
- Where multiple offences arise from a single incident or closely related circumstances, the totality principle requires consideration of partial concurrency, even where each offence is individually serious.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 51B(1), 58, 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 53A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
Cases:
- Mill v The Queen (1988) 166 CLR 59
- Pearce v R (1988) 194 CLR 610
- R v Rae [2013] NSWCCA 9
- Veen v R (No. 2) (1988) 164 CLR 465