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District Court 13 June 2019

R v Armitage

[2019] NSWDC 383

Assault & violenceTheft & propertyTraffic & drivingPublic order & justice offences

Citation: R v Armitage [2019] NSWDC 383
Court: District Court of New South Wales
Date: 13 June 2019
Judge: M L Williams SC DCJ

Background

The offender, a 26-year-old man, appeared for sentence on ten counts arising from two separate episodes five years apart. Both episodes involved using a stolen motor vehicle as an offensive weapon to evade police apprehension, and each carried multiple associated charges.

The first episode occurred in August 2013 at a caravan park on the Nambucca River. Police located the offender in a cabin he had broken into with a co-offender. When asked to produce identification, he jumped into a stolen vehicle and accelerated directly at a police officer standing in front of the car, forcing the officer to dive clear. He fled at speed and was not arrested for these matters until October 2018.

The second episode unfolded across the night of 11 and 12 October 2018 in the Northern Rivers region of New South Wales. Over several hours, the offender drove a stolen Queensland-registered utility at extreme speeds through residential streets and on motorways, repeatedly evading police stop attempts, driving on the wrong side of the highway, threatening a "000" operator that he was "loaded" and that pursuing officers would face deadly consequences, and using a vehicle to ram or endanger multiple police cars. Two children under 16 were passengers throughout the pursuits. Several police officers sustained injuries, and significant property damage occurred to police vehicles.

  • What aggregate sentence was appropriate across ten counts spanning two separate episodes of serious offending?
  • How should the multiple statutory aggravating factors be weighed, including the presence of children, the victim being a police officer, offending in company, and breach of conditional liberty?
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 justifying a departure from the standard ratio of non-parole period to head sentence.
  • How to approach the sentencing of a Commonwealth offence (use of a carriage service to threaten to kill) alongside State offences.

Decision

His Honour sentenced the offender on all ten State counts by way of an aggregate sentence, together with a separate fixed-term sentence for the Commonwealth offence. The court identified numerous statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999: the offender had a significant record of prior convictions; the victims were police officers; the offending was committed in company; the offender was on conditional liberty at the time of the 2018 episode; the offending involved a series of criminal acts; and two children under 16 were present during the pursuits.

The only mitigating factor accepted was the guilty plea, and even that was of limited weight given the offender was caught in the act of the 2018 offending and was only located after five years on warrant for the 2013 matters. The court described the 2018 episode as "extremely serious" and noted the 2013 aggravated break-and-enter and use of a vehicle against a police officer were also objectively serious.

The court found special circumstances, meaning the non-parole period was set at a proportion lower than the statutory norm of one third. This finding was justified by evidence of significant institutionalisation (the offender had spent approximately seven years in custody since the age of 12) and the identified need for an extended period of post-release supervision and rehabilitation. The court applied the approach confirmed in McDowall v R [2019] NSWCCA 29, which confirmed it is unnecessary to position any individual offence within a notional range of objective seriousness.

Orders Made

State offences (aggregate sentence):
- Convicted of all State offences
- Aggregate imprisonment of 7 years 6 months, commencing 12 October 2018 and expiring 11 April 2026
- Non-parole period of 4 years 8 months, expiring 11 June 2023

Indicative sentences for individual counts:
- Count 003 (aggravated break, enter and steal): 2 years 3 months, NPP 18 months
- Count 002 (use offensive weapon, s 33(b)): 2 years 3 months
- Count 004 (police pursuit, fail to stop): 18 months
- Count 010 (police pursuit, fail to stop): 20 months
- Count 015 (police pursuit, fail to stop): 24 months
- Count 014 (use offensive weapon, s 33(b)): 3 years
- Count 033 (use offensive weapon, s 33(b)): 3 years
- Count 034 (assault police causing actual bodily harm): 3 years
- Count 035: 1 year
- Counts 018, 031, 032 (s 166 certificate matters): 10, 11, and 11 months respectively
- Special circumstances found

Commonwealth offence (Count 007, use of carriage service to threaten to kill):
- Convicted
- Fixed sentence of 13 months, commencing 12 October 2018 and expiring 12 November 2019

Key Takeaways

  • The District Court applied an aggregate sentencing approach across ten counts spanning two distinct criminal episodes, with indicative sentences provided for each individual count.
  • Where an offender has spent a substantial period institutionalised from a young age, that history can support a finding of special circumstances, justifying a non-parole period proportionally lower than the statutory norm to allow for extended post-release supervision.
  • Multiple aggravating factors operating simultaneously (including the presence of children, victims being police officers, offending in company, and breach of conditional liberty) were each identified and weighed individually rather than treated as a single compounding consideration.
  • Under McDowall v R [2019] NSWCCA 29, a sentencing court is not required to place an individual offence within a notional range of objective seriousness when assessing the appropriate penalty.
  • A Commonwealth offence (here, use of a carriage service to make a threat to kill under s 474 of the Criminal Code (Cth)) is sentenced separately from State offences and runs concurrently; the court imposed a fixed term rather than a head sentence with non-parole period for that count.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(b), 51(b), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(2)
- Criminal Code (Cth), s 474

Cases:
- R v Qutami (2001) 127 A Crim R 369
- R v Haddad [2002] NSWCCA 176
- McDowall v R [2019] NSWCCA 29