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Court of Criminal Appeal 14 October 2022

Courtney v R

[2022] NSWCCA 223

Assault & violenceTraffic & drivingPublic order & justice offences
CRIMINAL LAW OFFENCES SENTENCE NO ERROR ESTABLISHED CRIMINAL LAW OFFENCES SENTENCE

Citation: Courtney v R [2022] NSWCCA 223
Court: NSW Court of Criminal Appeal
Date: 14 October 2022
Judges: Meagher JA, Mitchelmore JA, Bellew J

Background

The applicant came to the attention of police while driving erratically. After initially slowing when police activated their warning lights, he accelerated away. What followed was a prolonged incident in which the applicant repeatedly reversed his vehicle into the front of the police car on three separate occasions, causing progressive damage. He then turned and drove directly at the police vehicle, causing a collision severe enough to deploy the airbags and immobilise the car. The applicant fled and was arrested several days later.

In the District Court, the applicant pleaded guilty to using an offensive weapon with intent to prevent lawful apprehension, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 12 years imprisonment. He also asked the court to take into account a Form 1 matter of taking and driving a conveyance without consent. A separate offence of driving whilst disqualified was dealt with under a certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

The sentencing judge imposed an indicative sentence of 5 years for the weapons offence (taking the Form 1 matter into account) and 6 months for the driving whilst disqualified offence, with an aggregate sentence of 5 years and 3 months, and a non-parole period of 3 years and 5 months. The applicant sought leave to appeal on two grounds of sentencing error.

  • Whether the sentencing judge engaged in impermissible double counting by treating the victims being police officers as an aggravating feature of the s 33B offence, when the legislature already intended to protect police in enacting that provision.
  • Whether the sentencing judge erred by taking the conduct underlying the driving whilst disqualified offence into account when assessing the objective seriousness of the separate weapons offence, contrary to the principle against double punishment established in Pearce v The Queen.

Decision

Ground 1: Police officers as victims and double counting

The Court rejected the applicant's first ground. Section 33B of the Crimes Act does not exclusively protect police officers. The power to apprehend or detain a person extends to a wide range of individuals beyond police, including those exercising powers under Commonwealth immigration, customs, and other legislation. The Court confirmed, following Sharpe v R [2006] NSWCCA 255, that Parliament intended s 33B to protect any person lawfully effecting an apprehension or detention, not police alone.

Because the offence is not directed specifically at protecting police, the fact that the victims were police officers was not an inherent characteristic of the offence. Accordingly, it was permissible to treat the victims' status as police officers as an aggravating circumstance under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). No double counting error arose on this ground.

Ground 2: Using one offence to aggravate another

The second ground succeeded. All three judges agreed, though by slightly different paths of reasoning, that the sentencing judge had erred. The reasons below were ambiguous, but on either available construction they disclosed an error: the sentencing judge had used the conduct constituting the driving whilst disqualified offence to elevate the objective seriousness of the weapons offence. The applicant was being sentenced separately for each offence, and those sentences were then to be considered for cumulation, concurrence, and totality. Using the facts of one offence to aggravate the other amounted to a form of double punishment contrary to Pearce v The Queen (1998) 194 CLR 610.

Re-sentencing

Having found error on Ground 2, the Court proceeded to re-sentence. On the weapons offence, the Court found the conduct was plainly serious: it involved three deliberate ramming incidents culminating in a direct collision that immobilised the police vehicle. Aggravating features included that the victims were police officers performing their duties, and the Form 1 matter was taken into account to increase the sentence. General deterrence was identified as a significant sentencing consideration. The applicant's prospects of rehabilitation were described as guarded, being dependent on his sustained abstinence from illicit drugs. A finding of special circumstances was warranted to extend his parole period and support his rehabilitation. After conducting the sentencing exercise afresh, the Court concluded that no lesser sentence was warranted in law, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Section 33B of the Crimes Act 1900 (NSW) does not specifically target protection of police officers. The provision is directed at protecting any person who lawfully exercises a power of apprehension or detention, and the victim's status as a police officer may therefore be treated as an aggravating factor.

  • A factor that is an inherent characteristic of an offence cannot be taken into account as an aggravating circumstance under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) unless its nature or extent in the particular case is unusual. Where the offence covers conduct beyond that affecting police, the victim being a police officer is not such an inherent characteristic.

  • Where an offender is being sentenced separately for multiple offences, using the conduct underlying one offence to elevate the objective seriousness of another constitutes double punishment and is an error: Pearce v The Queen applies. The correct approach is to sentence each offence separately, then turn to questions of cumulation, concurrence, and totality.

  • Establishing a sentencing error does not automatically produce a lesser sentence on re-sentencing. The Court of Criminal Appeal confirmed in conducting the fresh exercise here that the original aggregate sentence remained appropriate.

  • Guarded prospects of rehabilitation, arising from an offender's ongoing drug dependency, may support a finding of special circumstances to extend the parole period and facilitate reintegration, even where the overall sentence is otherwise maintained.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 154A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 37
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Road Transport Act 2013 (NSW), s 54(1)(a)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Migration Act 1958 (Cth)
- Customs Act 1901 (Cth)

Cases
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Sharpe v R [2006] NSWCCA 255
- Elyard v R [2006] NSWCCA 43
- Cotter v R [2020] NSWCCA 299
- R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
- R v Hamilton (1993) 66 A Crim R 575
- R v Bazzi [1999] NSWCCA 346
- R v Perez (Court of Criminal Appeal (NSW), 11 December 1991, unreported)
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- R v Yildiz [2006] NSWCCA 97
- Mansour v R [2011] NSWCCA 28
- Trejos v R [2017] NSWCCA 122