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District Court 9 December 2022

R v Bell

[2022] NSWDC 685

Traffic & driving
CRIME SENTENCE POLICE PURSUIT DRIVE MANNER DANGEROUS

Citation: R v Bell [2022] NSWDC 685
Court: District Court of New South Wales
Date: 9 December 2022
Judge: Bourke SC DCJ

Background

The offender faced sentencing on two principal charges under s 51B(1) of the Crimes Act 1900: failing to stop during a police pursuit and driving in a manner dangerous to others. Both carry a maximum of five years imprisonment. Additional offences, including driving while disqualified and dangerous driving on the same day, were placed before the court on a Form 1 document (meaning the court took them into account in passing sentence on the principal charges, without imposing separate penalties). A further driving-while-disqualified offence was dealt with separately on a s 166 certificate.

The conduct arose across two dates in February 2021. On 6 February, the offender drove a black Mercedes while subject to a disqualification order that ran until 2026. On 11 February, police attempted to locate him at a residential address in Swansea. As officers approached, the offender reversed out and fled, triggering a series of pursuits along the Pacific Highway.

Those pursuits involved speeds reaching 167 km/h in an 80 km/h zone, driving through a red light, using a breakdown lane to overtake civilian vehicles, and, critically, driving north against oncoming traffic on the M1 Pacific Motorway for a minimum of five kilometres. Police terminated both pursuits due to the danger posed to other road users.

  • What sentence, and what head sentence and non-parole period, was appropriate for two police pursuit offences and the related Form 1 and certificate matters?
  • What discount applied for early guilty pleas?
  • How should the court treat the offender's background, including a deprived childhood and history of disadvantage, in mitigation?
  • How should the sentence interact with time already spent in custody, including on an unrelated revoked parole period?
  • What licence disqualification periods were appropriate given the offender was already disqualified until 2026?

Decision

Bourke SC DCJ allowed a 25% discount on all sentences for the utilitarian value of early guilty pleas. The court acknowledged the offender's difficult background, including severe childhood disadvantage, referencing the principle from Bugmy v The Queen [2013] HCA 37 that such matters do not diminish in weight simply because an offender has a history of prior offending. The court nonetheless treated the objective gravity of the offending as substantial, given the extended duration of the pursuits, the extreme speeds involved, and the extraordinary decision to drive the wrong way on a motorway.

On the question of the appropriate custodial term, the court applied totality principles to arrive at an aggregate sentence. The head sentence was set at three years and ten months, with a non-parole period of two years and seven months.

The court also addressed the interaction between the current sentence and the offender's pre-existing custody. The offender had been in custody since February 2021, but part of that time was served on a separate sentence following parole revocation unrelated to the current offences, and later on a Local Court fixed-term sentence. Applying totality principles, the court back-dated the head sentence and non-parole period to 29 December 2021, the date the offender completed the unrelated sentence.

On the evidentiary question of distances covered during the pursuits, the court rejected a submission that it could not consult publicly available maps to assess approximate distances after declining to admit the Crown's marked-up Google Maps. Bourke SC DCJ found it permissible to inform the sentencing exercise by reference to open sources not reasonably in dispute, rounding distances downward in the offender's favour where any uncertainty existed.

Orders Made

  • Head sentence of three years and ten months, commencing 29 December 2021, expiring 28 October 2025.
  • Non-parole period of two years and seven months, expiring 28 July 2024.
  • Disqualification of three years imposed in respect of each police pursuit offence.
  • Disqualification of eight months imposed in respect of the driving-while-disqualified offence (sequence 1).

Key Takeaways

  • Under Bugmy v The Queen, the weight given to a deprived background in mitigation does not diminish with a prior criminal history, and the District Court applied this principle in full.
  • A 25% discount for early guilty pleas was applied across all matters, consistent with the utilitarian value of pleas entered at the earliest opportunity.
  • Where the Crown's marked-up maps were excluded on evidentiary grounds, the sentencing court held it remained permissible to consult open and reliable public sources, such as mapping services, to inform findings about approximate distances.
  • Totality principles governed the calculation of the start date for the sentence, with the court declining to give the offender credit for time in custody that was referable entirely to unrelated matters, including a parole revocation and a separate Local Court sentence.
  • Disqualification periods ran from the date of release from custody, a matter of practical significance given the offender was already disqualified through to 2026 under a pre-existing order.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 51B(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 166, 32

Cases
- Bugmy v The Queen [2013] HCA 37
- Josefski v R [2010] NSWCCA 41
- Swan v R [2016] NSWCCA 79
- Nasrallah v R [2021] NSWCCA 169
- Lloyd v R [2022] NSWCCA 18