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District Court 26 November 2021

R v Hammoud

[2021] NSWDC 734

DrugsTraffic & drivingPublic order & justice offences
CRIME SENTENCE POLICE PURSUIT NOT STOP DRIVE DANGEROUSLY NOT GIVE PARTICULARS TO OTHER DRIVER

Citation: R v Hammoud [2021] NSWDC 734
Court: District Court of New South Wales
Date: 26 November 2021
Judge: Colefax SC DCJ

Background

The offender appeared for sentence on eleven offences arising from events on 1 December 2020 in the Macquarie Fields area of Sydney. At the time of the offending, his P2 driver's licence was suspended, and he was substantially impaired by amphetamine, methylamphetamine, and morphine. He had been sitting in the driver's seat of a 2.42-tonne truck when an unmarked police vehicle entered the cul-de-sac where he was parked.

When the police vehicle turned around, the offender drove away at speed and refused to stop when officers activated their lights and sirens to conduct a random breath test. What followed was approximately thirteen minutes of highly dangerous driving across multiple public roads, involving at least twelve police vehicles and POLAIR air surveillance.

During the pursuit, the offender drove on the wrong side of the road, drove directly at police vehicles on at least two occasions forcing officers to take evasive action, and collided with two stationary vehicles at a red traffic light before fleeing the scene. He was arrested that day and remained in continuous custody.

  • What was the appropriate aggregate sentence across the principal offence of dangerous driving whilst being pursued by police, and the ten related offences dealt with on a s166 certificate?
  • What weight should be given to the guilty plea discount, the offender's personal circumstances (including references to the principles in Bugmy v The Queen), and time already spent in custody?
  • What adjustments were warranted by the conditions of custody during the COVID-19 pandemic?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and balance of term.
  • What disqualification periods applied to the driving offences?

Decision

Colefax SC DCJ sentenced the offender on an aggregate basis across the principal offence (dangerous driving during a police pursuit, contrary to s51B(1) of the Crimes Act 1900) and the related custodial offences. The court applied a 25 per cent discount to each indicative sentence to reflect the utilitarian value of the guilty plea. Before discount, the principal offence carried an indicative term of 2 years and 3 months; after discount, 1 year and 8 months. Other offences attracted indicative terms ranging from 3 months to 1 year after discount.

Taking into account the totality principle, the court imposed an aggregate term of 3 years' imprisonment across sequences 1, 10, 13, 14, 17, 18, 19, and 20. Sequences 5, 6, and 15 (failure to provide particulars and resisting an officer) were dealt with by way of non-custodial orders or fines, and sequence 16 was withdrawn and dismissed.

The court adjusted the start date of the sentence from 12 March 2021 to the date of arrest (1 December 2020) to account for the harsher conditions of custody during the COVID-19 pandemic. The court also made a finding of special circumstances, recognising both those harsher conditions and the potential ongoing implications of the pandemic for the offender's future custody.

A non-parole period of 2 years was fixed, running from 1 December 2020 to 30 November 2022, with a balance of term of 1 year expiring 30 November 2023. Driving disqualifications were imposed for the principal offence and the suspended licence offence, each commencing from the end of the non-parole period.

Orders Made

  • Aggregate term of 3 years' imprisonment imposed for sequences 1, 10, 13, 14, 17, 18, 19, and 20.
  • Non-parole period of 2 years, commencing 1 December 2020, expiring 30 November 2022.
  • Balance of term of 1 year, commencing 1 December 2022, expiring 30 November 2023.
  • Disqualification from driving for 3 years in relation to sequence 1 (dangerous driving during pursuit), commencing 1 December 2022.
  • Disqualification from driving for 6 months in relation to sequence 14 (driving whilst licence suspended), commencing 1 December 2022.
  • Sequence 16 (illicit drug present in blood) withdrawn and dismissed.
  • Exhibit 1 to accompany the sentence warrant.

Key Takeaways

  • The District Court applied a 25 per cent guilty plea discount to each indicative sentence, consistent with the utilitarian value of the plea, before constructing the aggregate term.
  • Where an offender has spent time in custody under the harsher conditions associated with the COVID-19 pandemic, those conditions may justify both an earlier start date for the sentence and a finding of special circumstances affecting the non-parole period ratio.
  • A conviction under s51B(1) of the Crimes Act 1900 for dangerous driving during a police pursuit carries a maximum of 3 years' imprisonment, an automatic 3-year driving disqualification, and a minimum 12-month disqualification, with no standard non-parole period applying.
  • The sentencing court dealt with ten related Local Court matters on a s166 certificate alongside the principal District Court offence, demonstrating the utility of that mechanism for consolidating related offending across jurisdictions.
  • Principles from Bugmy v The Queen (2013) 249 CLR 571, which address how disadvantaged background affects the weight given to considerations of moral culpability, were among the factors the court considered in arriving at the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 51B(1), 58, 195(1)(a)
- Road Rules 2014 (NSW), s 287(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Road Transport Act 2013 (NSW), ss 54(3)(a), 111(1)(a), 112(1)(a)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571