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District Court 16 September 2020

The Queen v Green

[2020] NSWDC 666

Assault & violenceTheft & propertyTraffic & drivingFirearms & weaponsPublic order & justice offences
CRIME SENTENCE MULTIPLE OFFENCES LENGTHY HISTORY STRONG SUBJECTIVE CASE BALANCE OF PAROLE TO SERVE

Citation: The Queen v Green [2020] NSWDC 666
Court: District Court of New South Wales
Date: 16 September 2020
Judge(s): Wilson SC DCJ

Background

The offender, a 40-year-old man, appeared for sentencing on multiple charges arising from a series of connected incidents on 30 June 2019 on the Central Coast of New South Wales. The offending began when the offender took a Mitsubishi Triton without the owner's consent while its engine was running and unattended, then drove it at speed in circumstances that injured a police officer's thumb and forced another officer to take evasive action.

Police pursued the stolen vehicle. The offender reversed the Triton into a marked police car, causing it to stall and injuring two officers inside. He then fled at high speed, driving on the wrong side of the road and forcing other vehicles to take evasive action, before eventually being arrested at East Gosford. The offender had been disqualified from holding a driver's licence since 2001, and was on parole at the time of the offending.

The Crown proceeded on four charges: taking and driving a conveyance, using an offensive weapon to prevent lawful apprehension, engaging in a police pursuit, and driving whilst disqualified (the last dealt with on a related certificate). A further charge of using an offensive weapon to prevent lawful apprehension was included on a Form 1, to be taken into account in sentencing on Count 2.

  • What sentence was appropriate across the four charges and the Form 1 matter, having regard to the maximum penalties, the objective seriousness of the offending, and the applicable aggravating factors?
  • What weight should be given to the offender's lengthy criminal history, his on-parole status at the time of offending, and the Form 1 matter in determining the appropriate penalty?
  • What weight should be given to the offender's subjective case, including any prospects of rehabilitation?
  • How should the disqualification periods for the driving offences be structured, and whether the court should exercise its discretion to impose a shorter disqualification period to enable the offender to apply for a licence after a fixed period?

Decision

Wilson SC DCJ noted that the maximum penalties for each offence served as guideposts reflecting parliament's assessment of the seriousness with which the community views such conduct. The Form 1 matter was taken into account on Count 2 by giving greater weight to personal deterrence and the community's entitlement to retribution, the two factors the court identified as especially relevant to that process.

The offender's on-parole status at the time of offending was treated as an aggravating factor. His parole had been revoked as a result of the offending, and he was serving the balance of that parole (deemed to have commenced 30 June 2019, expiring 2 January 2022) concurrently with the new sentences. The court took into account the offender's subjective case, which included expert reports and other materials tendered as Exhibit 1, and acknowledged what the catchwords describe as a "strong subjective case" alongside prospects of rehabilitation. The decision also engaged with the principle from Bugmy v The Queen [2013] HCA 27, which addresses the relevance of a deprived background to the weight given to antecedents in sentencing.

On the question of disqualification, the court accepted the defence submission that a two-year disqualification period (rather than the automatic three years) should be imposed for the police pursuit offence, to run concurrently with a six-month disqualification for the driving-whilst-disqualified offence. This was expressly directed at preserving the offender's ability to apply for a licence two years after release, in light of his expressed desire to obtain gainful employment.

Orders Made

• Aggregate head sentence of 4 years (sequences 4, 6, 7) commencing 30 September 2020 and expiring 29 September 2024
• Aggregate non-parole period of 2 years (sequences 4, 6, 7) commencing 30 September 2020 and expiring 29 September 2022
• Sequence 5 (drive while disqualified): convicted but no further penalty imposed under s 10A of the Crimes (Sentencing Provision) Act
• Disqualification from holding a licence for 2 years following release from prison (sequence 7)
• Disqualification from holding a licence for 6 months (sequence 5)
• Both disqualification periods to run concurrently
• Offender entitled to apply for a licence 2 years after being released from prison

However, the following orders were recorded in the sentencing remarks:

  • Disqualification of two years following release from prison in respect of sequence 7 (engage in police pursuit).
  • Disqualification of six months in respect of sequence 5 (driving whilst disqualified), to run concurrently with the two-year disqualification.
  • The Form 1 charge (sequence 8) taken into account in sentencing for Count 2 (sequence 6).

Key Takeaways

  • The District Court confirmed that taking a Form 1 matter into account operates by increasing the weight given to personal deterrence and community retribution, rather than by adding a discrete penalty.
  • Being on parole at the time of fresh offending constitutes a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999 NSW, and the court treated it as such in calibrating the overall sentence.
  • Under Bugmy v The Queen [2013] HCA 27, a disadvantaged background remains relevant to sentencing even where an offender has an extensive criminal history; the principle does not diminish with the accumulation of prior convictions.
  • A strong subjective case, including evidence of rehabilitation prospects, can operate to moderate the sentence that would otherwise be appropriate for serious repeat offending, even where objective gravity and criminal history are both significant.
  • The court exercised its discretion to impose a shorter disqualification period than the automatic minimum, structuring concurrent disqualification orders so that the offender retained the ability to apply for a licence two years after release from custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 33B (use offensive weapon to prevent lawful apprehension), 51B (engage in police pursuit), 154A (take and drive a conveyance)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 10A, 21, 47
- Road Transport Act 2013 (NSW) s 54 (driving whilst disqualified)

Cases:
- Bugmy v The Queen [2013] HCA 27