Citation: Andrews v R [2021] NSWDC 592
Court: District Court of NSW
Date: 17 February 2021
Judge: Neilson DCJ
Background
The appellant was a 20-year-old man who pleaded guilty in the Local Court at Maitland to two offences arising from the same incident on 18 June 2020 at Telarah, NSW. The first was driving in a manner dangerous to others while seeking to avoid police pursuit. The second was driving whilst disqualified.
At the time of the offending, the appellant was subject to an Intensive Correction Order (ICO) imposed by Newcastle Local Court in February 2020. That ICO had itself been imposed for a range of offences that included, notably, prior police pursuit and dangerous driving offences. The new offences were therefore a direct repetition of conduct for which he was already serving an ICO.
During the pursuit, the appellant lost control of his vehicle, which became airborne and collided with a residential property at 51 Brooks Street. He and his passenger sustained injuries. The residents of the property, including a small child, were fortunately unharmed. As a consequence of the offending, the State Parole Authority revoked the ICO and re-sentenced the appellant to imprisonment for the unexpired portion.
Legal Issues
- Whether the sentences imposed by the Local Court were excessive in all the circumstances
- What weight should be given to the appellant's disadvantaged background, youth, and first experience of adult custody
- What weight should be given to the onerous and dangerous conditions the appellant was experiencing in custody
- Whether injuries suffered by the appellant as a result of his own offending constituted a form of extra-curial punishment warranting mitigation
- Whether special circumstances existed to justify a non-parole period shorter than the statutory ratio
Decision
Neilson DCJ accepted that the original sentence of 22 months with a 15-month non-parole period was excessive and that the community could be adequately protected by lesser sentences. His Honour identified a number of mitigating factors that, taken together, justified intervention.
The court accepted that the appellant had suffered serious and permanent injuries from the crash, including fractures to his left scapula and clavicle requiring permanent plates and resulting in restricted movement. This constituted extra-curial punishment that appropriately reduced the sentence to be imposed. His Honour noted that his passenger appeared to have fully recovered, whereas the appellant himself had not.
His Honour placed significant weight on the appellant's background. His father had introduced him to methamphetamine at age 13, leading to long-term addiction. His schooling was fragmented and he had no School Certificate. His Honour found that the appellant bore no personal responsibility for his disadvantaged background, and that this context was directly relevant to the sentencing exercise.
Conditions in custody were also material. The appellant had been assaulted on at least three occasions by other prisoners who suspected him of being an informer, resulting in further fractures. He was being held in segregation with only one hour of outdoor exercise per day. His Honour found these conditions, combined with the fact this was the appellant's first experience of adult custody, constituted additional hardship warranting recognition in the sentence. Special circumstances were found to exist, allowing a non-parole period below the standard ratio.
The reduced supervision during the ICO due to COVID-19 restrictions was also noted. His Honour described the ICO as effectively a "Clayton's ICO" given that supervision had been conducted by telephone only, rather than in person.
Orders Made
- Sequence 1 (dangerous driving/police pursuit): Sentence of 12 months imprisonment, comprising a non-parole period of 8 months commencing 3 July 2020 and expiring 2 March 2021, with a balance of term of 4 months expiring 2 July 2021; special circumstances found
- Sequence 3 (driving whilst disqualified): Community Correction Order for 18 months commencing 2 March 2021, with conditions including no offending, supervision by Community Corrections, participation in rehabilitation or treatment, abstaining from illicit drugs, and appearance before the court if called upon
- Disqualification from driving: 2 years for the sequence 1 offence; 6 months for the sequence 3 offence
- Original sentences imposed by the Local Court at Maitland on 10 November 2020 set aside
Key Takeaways
- The District Court confirmed that injuries suffered by an offender as a direct consequence of their own criminal conduct may be treated as a form of extra-curial punishment, mitigating the sentence to be imposed.
- A severely disadvantaged upbringing, including parental introduction to illicit drugs during childhood, is a recognised mitigating factor in sentencing, particularly where the offender bears no personal responsibility for those circumstances.
- Onerous and dangerous conditions of custody, including repeated assaults resulting in physical injury and placement in segregation, constitute additional hardship that sentencing courts may take into account when assessing the appropriate penalty.
- Youth and the experience of adult custody for the first time are relevant sentencing considerations, particularly when combined with other personal factors pointing towards rehabilitation.
- Reduced supervision of an ICO caused by pandemic-related restrictions was acknowledged as relevant context, though the repetition of the same category of offence for which the ICO was imposed remained a significant aggravating factor.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 8 (Community Correction Orders)
Cases:
No specific cases were cited in the judgment text provided.