Citation: R v Callebaut [2019] NSWDC 352
Court: District Court of NSW
Date: 11 April 2019
Judge: M L Williams SC DCJ
Background
Shortly after midnight on 10 June 2018, a 19-year-old offender led police on a high-speed pursuit through Sydney's streets and freeways lasting approximately 90 minutes. He covered around 135 kilometres, driving a stolen vehicle at speeds up to 160 km/h, on the wrong side of the road, with headlights off, through red lights, and in wet conditions. Twenty-five police vehicles and a helicopter were deployed before the pursuit ended when the offender was blocked by a line of cars stopped at a red light.
The offender was driving while never having held an Australian licence, and a subsequent breath analysis returned a middle-range reading of 0.105. He had been on parole at the time for aggravated break and enter and reckless wounding. His parole was revoked following his arrest, and he did not enter custody on the present matters until 24 February 2019.
The offender pleaded guilty at an early opportunity to failing to stop during a police pursuit and drive dangerously, and to knowingly driving a stolen vehicle. Two further matters were dealt with by way of a section 166 certificate: driving whilst never licensed and driving with a middle-range PCA.
Legal Issues
- What was the appropriate starting point for the sentence, given the offender had been on parole at the time of the offences and had served the balance of that parole before entering custody on these matters?
- How should the court weigh the significant aggravating factors against the offender's youth, mental health history, substance use disorders, and early guilty plea?
- Whether special circumstances existed justifying a variation from the standard statutory ratio between the non-parole period and the head sentence.
- What weight general deterrence should carry given the offender's mental health and cognitive impairment at the time of the offences.
Decision
The court assessed the objective seriousness of the offending as above the mid-range. The judge noted multiple serious aggravating factors: the offender's extensive prior record, the complete disregard for public safety, the serious risk of death or injury to other road users, commission of the offences while on conditional liberty, the series of criminal acts involved, and a limited degree of planning demonstrated by the repeated refusal to stop despite multiple opportunities to do so.
The offender's subjective circumstances were nonetheless substantial. Psychiatric and medical evidence documented a history of ADHD, drug-induced psychosis, depression, anxiety, and substance use disorders from the age of 13. Treating and reporting psychiatrists identified that the offender's poor impulse control from ADHD, combined with alcohol-impaired cognition, contributed to the offending. The court accepted that these factors moderated the weight to be given to general deterrence, though the Crown's submission that community protection and punishment remained important was also accepted.
On the question of commencement date, the court rejected both the offender's submission that the sentence should run from the date of arrest, and the Crown's submission that it should be wholly consecutive on the balance of parole. Applying totality principles, the judge fixed the commencement date as 10 September 2018, three months after arrest, representing a partial concurrency with the parole period served.
Special circumstances were found to be established, justifying a non-parole period shorter than the standard statutory proportion. The court pointed to the offender's youth, diagnosed mental conditions requiring ongoing treatment and medication, the risk of institutionalisation from having spent approximately 78% of his time since age 15 in custody, and the fact that this would be his first period in adult custody.
Orders Made
- The offender was convicted of each offence.
- An aggregate sentence of 2 years' imprisonment, commencing 10 September 2018 and expiring 9 September 2020.
- A non-parole period of 13 months, expiring 9 October 2019, with the offender eligible for release to parole on that date.
- Indicative sentences: 20 months for the police pursuit offence; 12 months for knowingly driving a stolen conveyance.
- Special circumstances found.
- Section 166 certificate matters: convicted without further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 for both driving whilst never licensed and driving with a middle-range PCA.
- Licence disqualification of 12 months, commencing the date of sentence.
Key Takeaways
- The District Court confirmed that totality principles can justify commencing a sentence at a point between arrest and the end of a prior parole period, rather than on the date of arrest or wholly consecutively on parole.
- A conviction for failing to stop and drive dangerously attracts above mid-range objective seriousness where the pursuit involves prolonged high-speed, erratic driving in hazardous conditions with repeated deliberate refusals to comply with police directions.
- Under the sentencing framework, the existence of serious mental health conditions, cognitive impairment from substance abuse, and ADHD can moderate the weight given to general deterrence, without displacing the need for community protection and punishment.
- Special circumstances justifying a reduced non-parole period can arise from a combination of youth, diagnosed mental illness requiring treatment, risk of institutionalisation, and entry into adult custody for the first time.
- Consistent with existing appellate authority, including McDowall v R [2019] NSWCCA 29, classifying objective seriousness by reference to a scale is not required, but the court noted such classification often assists the sentencing analysis.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 51B, 154A(1)(b)
- Road Transport Act 2013 (NSW), ss 53(3), 110(4)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 10A, 166
- Mental Health Act 2007 (NSW)
Cases:
- McDowall v R [2019] NSWCCA 29