AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Local Court 9 October 2020

Police v Aitken

[2020] NSWLC 14

Theft & propertyTraffic & drivingPublic order & justice offences
RECIDIVIST DISQUALIFIED DRIVER RECIDIVIST OFFENDER FOR POLICE PURSUITS ON PAROLE FOR SIMILAR OFFENDING ON OTHER CONDITIONAL LIBERTY NEED FOR SPECIFIC DETERRENCE NEED FOR GENERAL DETERRENCE

Citation: Police v Aitken [2020] NSWLC 14
Court: Local Court of NSW
Date: 9 October 2020
Judge(s): Stewart LCM

Background

The offender, a 27-year-old man, appeared for sentencing on multiple charges arising from two separate incidents in March 2020. He had been found guilty after a defended hearing of stealing a motor vehicle, failing to stop during a police pursuit while driving dangerously (a second or subsequent "Police Pursuit" offence under s 51B of the Crimes Act 1900), and driving while disqualified (also a second or subsequent offence). Six days before those events, he had separately pleaded guilty to a further charge of driving while disqualified.

The defended hearing turned solely on the identification of the offender, which the Magistrate found was established by an overwhelmingly strong prosecution case. The underlying facts were not genuinely in dispute.

The offender carried an extensive criminal record for major traffic offences, including a prior conviction for dangerous driving occasioning death and multiple prior convictions for police pursuit and driving while disqualified offences. At the time of the current offences, he was on parole and subject to three Community Correction Orders.

  • What sentence was appropriate, having regard to the need for specific deterrence, general deterrence, and protection of the community?
  • How did the offender's criminal history operate as an aggravating factor, and what limits applied under the principle from Veen v The Queen (No. 2) (1988) 164 CLR 465 (which holds that a sentence must not exceed what is proportionate to the current offences, even when prior record is significant)?
  • What was the effect of the Local Court's jurisdictional limits on the aggregate sentence, including the five-year cap in s 58(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which limits consecutive sentences where they would end more than five years after an existing sentence began?
  • Was a discount for the guilty plea to the separate Drive Whilst Disqualified charge appropriate, and at what rate?
  • Did special circumstances exist justifying a departure from the standard non-parole period ratio?

Decision

The Magistrate identified the offender's criminal record as a significant aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999. The commission of further offences while on parole and on Community Correction Orders was a further statutory aggravating factor under s 21A(2)(j). The defence conceded that full-time custody was the only appropriate sentence.

A 20% discount was applied to the separate Drive Whilst Disqualified charge to which the offender had pleaded guilty, consistent with R v Thomson [2000] NSWCCA 294. No discount was available for the offences determined after the defended hearing.

The Magistrate acknowledged the principle from Veen (No. 2) that an offender's record cannot lift a sentence beyond what is proportionate to the current offending. Applying proportionality, the Magistrate assessed the appropriate sentence at 4 years and 6 months. However, s 58(1) of the Crimes (Sentencing Procedure) Act 1999 operates to prevent the Local Court from imposing a new consecutive sentence that would end more than five years after the first existing sentence began. Given the existing sentence running from 31 March 2019, the maximum available new sentence was 4 years and 4 days, commencing 26 March 2020.

The Magistrate found special circumstances arising from the offender's drug and alcohol issues and the need for supervised reintegration, justifying a slight reduction in the non-parole period. That reduction was tempered by the ongoing need for community protection given the nature and persistence of the offending.

Orders Made

  • The offender was sentenced to imprisonment for 4 years and 4 days, commencing 26 March 2020 and expiring 30 March 2024.
  • The non-parole period was set at 2 years and 8 months, from 26 March 2020 to 25 November 2022.
  • The overall effective sentence (combining the existing and new sentences) was 5 years imprisonment, from 31 March 2019 to 30 March 2024, with an overall effective non-parole period of 3 years and 6 months.
  • For the Drive Whilst Disqualified offence (H74272619), the offender was disqualified from driving for 12 months.
  • For the Police Pursuit (2+) and related Drive Whilst Disqualified offence, the offender was disqualified from driving for 5 years from the expiration of his current disqualification period.
  • A finding of special circumstances was made regarding the offender's drug and alcohol issues and to assist with supervised reintegration.

Key Takeaways

  • The Local Court's power to impose consecutive sentences is capped by s 58(1) of the Crimes (Sentencing Procedure) Act 1999, which prevents a new sentence from extending more than five years beyond the commencement of any existing sentence. That cap directly constrained the sentence here, reducing it from the assessed proportionate term of 4 years 6 months to 4 years and 4 days.
  • Under Veen v The Queen (No. 2), even a highly aggravating criminal record cannot justify a sentence disproportionate to the seriousness of the current offences. The Magistrate applied this principle expressly while still treating the record as a weighty aggravating factor.
  • Being on parole and subject to Community Correction Orders at the time of offending constitutes a statutory aggravating factor and was treated seriously by the court in determining the overall sentencing response.
  • A guilty plea discount of 20% was available for the separately charged Drive Whilst Disqualified matter, consistent with R v Thomson, but no discount applied to the charges resolved after a defended hearing.
  • Special circumstances can be found where an offender has identifiable drug and alcohol issues and requires supervised reintegration, but the weight given to that finding can be moderated where the need for community protection is particularly acute.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 51B, 154F
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(2)(d), 21A(2)(j), 58(1)
- Road Transport Act 2013 (NSW), ss 9(2), 9(5), 54(1)(a), 205(4)

Cases:
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- R v Thomson [2000] NSWCCA 294
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Bugmy v The Queen [2013] HCA 37
- The Queen v De Simoni [1981] HCA 31
- Aitken v R [2014] NSWCCA 241
- Beale v R [2015] NSWCCA 120
- Cahyadi v R [2007] NSWCCA 1
- Greaves v R [2020] NSWCCA 140
- Imbornone v R [2017] NSWCCA 144
- Jibran v R [2020] NSWCCA 86
- R v Merrin [2007] NSWCCA 255
- Nguyen v R [2007] NSWCCA 14
- Tsakonas v R [2009] NSWCCA 258