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District Court 24 September 2021

R v Saunders

[2021] NSWDC 508

Assault & violenceTraffic & drivingPublic order & justice offences
CRIME SENTENCE

Citation: R v Saunders [2021] NSWDC 508
Court: District Court of New South Wales
Date: 24 September 2021
Judge: Mahony SC DCJ

Background

The offender, a 22-year-old Aboriginal man, was before the District Court for sentencing following an incident on 5 August 2020 in South Coogee. Police had located two stolen vehicles under surveillance and intercepted a Mercedes in which the offender was found in the driver's seat. When police vehicles boxed in the Mercedes, the offender reversed and accelerated hard into two police vehicles, causing a combined $28,800 in damage, before attempting to flee on foot. He was apprehended at the scene.

The principal offence was using an offensive weapon (the vehicle) to prevent lawful detention, contrary to s 33B(1)(a) of the Crimes Act 1900, which carries a maximum of 12 years imprisonment with no standard non-parole period. Two related matters were also before the court: taking and driving a conveyance without consent (placed on a Form 1, meaning it was taken into account without a separate conviction), and driving while never licensed (dealt with by way of a certificate under the Criminal Procedure Act 1986).

The offending occurred only five weeks after the offender had been released on parole. That parole had been imposed for a prior offence of the same character, using an offensive weapon to prevent lawful detention, and was not due to expire until June 2022. His parole was revoked following his arrest.

  • What sentence was appropriate for the principal offence of using an offensive weapon to prevent lawful detention, given the serious objective circumstances and the offender's prior record?
  • How should the court weigh the offender's profound personal and social disadvantage, including as an Aboriginal offender, against the need for general and specific deterrence?
  • What weight, if any, should be given to the offender's complex history of physical trauma, mental health issues, and childhood adversity in mitigation?
  • How should the court approach parole recommendations to address the risk of the offender perpetuating the cycle of incarceration?

Decision

The court found the objective seriousness of the offending to be significant. The offender deliberately used a heavy vehicle to ram two police vehicles, causing substantial damage and posing real risk to officers, in a deliberate effort to evade lawful detention. The fact that the offending occurred within weeks of release on parole for an almost identical offence was treated as a serious aggravating feature.

Despite this, the court gave careful consideration to the offender's background under the principles in R v Fernando (1992) and the High Court's guidance in Bugmy v R (2013). The offender's history was extraordinary in its severity: shot by police at age 14 during a motor vehicle incident, suffering cardiac arrest and requiring emergency surgery; multiple serious head injuries from early childhood; bilateral permanent hearing loss; a family background marked by intergenerational trauma, domestic violence, and the effects of alcohol abuse on the Aboriginal community. The court accepted that this background, and the way it shaped the offender's development and offending, remained relevant even after prior sentences had failed to deter.

The court acknowledged limited subjective mitigation. The offender had not entered a plea of guilty to the principal offence and showed only superficial engagement with supervision and support services while on parole. However, his youth, his deprived background, and some expression of remorse were taken into account.

Mahony SC DCJ concluded that a sentence of 3 years and 10 months imprisonment was appropriate, with a non-parole period of 1 year and 10 months commencing 5 August 2020. Given the entrenched nature of the offending cycle and the offender's clear need for structured support, the court made detailed parole recommendations directed at rehabilitation, cultural connection, and reducing the risk of further recidivism.

Orders Made

  • Conviction entered for use of offensive weapon to prevent lawful detention (s 33B(1)(a), Crimes Act 1900).
  • Sentence of imprisonment: non-parole period of 1 year and 10 months commencing 5 August 2020, terminating 4 June 2022; balance of term of 2 years from 5 June 2022 to 4 June 2024.
  • The Form 1 offence (take and drive conveyance without consent) taken into account.
  • Conviction recorded for the never-licensed driving offence (s 53(3), Road Transport Act 2013) with no further penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.
  • Driving disqualification of 12 months imposed.
  • Parole recommendations made, including: assertive supervision; provision of appropriate housing; referral to Weave and/or cultural mentoring programs such as Tribal Warrior; drug and alcohol treatment; mentorship to reduce antisocial peer associations and relapse prevention counselling.

Key Takeaways

  • The District Court confirmed that using a vehicle to ram police vehicles during an attempted escape constitutes a serious instance of the s 33B(1)(a) offence, particularly where it follows an almost identical prior offence for which the offender had only recently been released on parole.
  • Under the Fernando principles, the court must consider the relationship between an Aboriginal offender's background of profound disadvantage and the circumstances of their offending. As affirmed in Bugmy, the mitigating force of that disadvantage does not diminish simply because prior sentences have not deterred reoffending.
  • Where an offender has experienced severe childhood trauma, multiple serious physical injuries, intergenerational family trauma, and the effects of systemic disadvantage, those factors remain relevant to the weight given to general and specific deterrence, even in cases of serious offending.
  • A Form 1 procedure allows a court to take into account additional offences when sentencing for a principal offence, without recording separate convictions for those matters; and a s 166 certificate provides a further mechanism for dealing with related offences, including by recording a conviction with no additional penalty under s 10A.
  • Sentencing courts retain the capacity to append detailed parole recommendations where an offender's circumstances suggest that structured community-based support is critical to breaking an established cycle of offending and incarceration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 154A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), s 53(3)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases:
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- R v Fernando (1992) 76 A Crim R 58
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Zrieka v R (2012) 223 A Crim R 460; [2012] NSWCCA 44