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District Court 10 February 2022

R v Adam HARRISON

[2022] NSWDC 9

Traffic & drivingPublic order & justice offences
SENTENCE POLICE PURSUIT NEED FOR GENERAL DETERRENCE

Citation: R v Adam Harrison [2022] NSWDC 9
Court: District Court of New South Wales
Date: 10 February 2022
Judge: Lerve DCJ

Background

The offender appeared for sentencing in the Wagga Wagga District Court on six charges arising from two separate incidents in early 2021. He was 34 years old, had never held a driver's licence, and was subject to a court-ordered disqualification at the time of all the offending.

The first set of incidents occurred on 7 February 2021 near Old Junee. The offender fled police in a red Alfa Romeo at speeds estimated at 150 km/h in a 100 km/h zone, and later the same day fled again within the Junee township, forcing another vehicle to brake harshly to avoid a collision. The second incident occurred on 1 March 2021 when a police officer, armed with an arrest warrant, located the offender driving a silver Holden. During that encounter, the offender deliberately drove the vehicle at the officer in an attempt to avoid apprehension.

The offender pleaded guilty to two counts of Drive in a Manner Dangerous in a Police Pursuit (the "second plus" offences under s 51B of the Crimes Act 1900) and to two counts of Drive While Disqualified. He defended the most serious charge, Use of an Offensive Weapon with Intent to Avoid Lawful Apprehension under s 33B(1)(a) of the Crimes Act 1900, but was found guilty after a judge-alone trial. A further police pursuit appeared on a Form 1 document attached to one of the pursuit counts.

  • What was the appropriate aggregate sentence across six charges of varying seriousness, including one defended charge?
  • How should the Form 1 police pursuit charge affect the sentence on the related indictment count, in accordance with the Court of Criminal Appeal's Guideline Judgment on Form 1 matters?
  • Was a finding of special circumstances justified to extend the balance of term beyond the statutory norm, and if so, on what basis?
  • What discount, if any, applied to the guilty pleas, given they were entered on the day of trial?
  • What periods of driving disqualification were appropriate across the multiple driving-related offences?

Decision

Lerve DCJ sentenced the offender to an aggregate term of 4 years and 3 months, with a non-parole period of 2 years and 10 months. The non-parole period represents approximately 68% of the total sentence, reflecting a finding of special circumstances. The judge identified the need for intensive supervision and structured support upon release as the basis for extending the balance of term beyond the standard ratio.

On the two police pursuit counts, the judge assessed both matters as below mid-range in objective seriousness. The first pursuit, while reaching an estimated 150 km/h, occurred in conditions that appeared to involve light traffic, and no other person was immediately endangered. The second pursuit, within the Junee township, involved other road users being put at risk but was assessed as slightly less serious than the first. The Form 1 pursuit was required, consistent with the Guideline Judgment, to have a meaningful impact on the sentence for the related count.

The charge of Use of an Offensive Weapon to Avoid Lawful Apprehension attracted the most significant individual sentence component. Because the offender contested that charge at trial, no discount for a guilty plea was available. The judge emphasised that this did not increase the penalty; it simply precluded any utilitarian reduction. The two guilty plea discounts of 5% applied to the pursuit counts were consistent with pleas entered on the day of trial.

For the separately imposed indicative sentences (used to inform the aggregate), the judge noted that the total, had separate sentences been imposed, would have been substantially higher. The aggregate approach allowed for the principle of totality to operate, producing a sentence that reflected the overall criminality without being crushing.

Orders Made

  • The offender was convicted of two counts of Drive Manner Dangerous in a Police Pursuit (guilty pleas) and one count of Use Offensive Weapon to Avoid Lawful Apprehension (found guilty after trial).
  • The offender was convicted of two counts of Drive While Disqualified and one count of Use Unregistered Vehicle (guilty pleas).
  • Aggregate sentence of 4 years and 3 months imposed, with a non-parole period of 2 years and 10 months commencing 11 March 2021 and expiring 10 January 2024.
  • Balance of term of 1 year and 5 months to commence 11 November 2023 and expire 10 June 2025.
  • Special circumstances found; the court recommended release to parole at expiration of the non-parole period.
  • Driving disqualification of 3 years imposed in respect of each police pursuit offence (counts 1 and 3), with disqualifications of 6 months and 12 months on the two Drive While Disqualified charges respectively; all periods concurrent.
  • Conviction recorded for Use Unregistered Vehicle with no further penalty imposed under s 10A of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • A guilty plea entered on the day of trial attracts only a 5% utilitarian discount, reflecting the minimal benefit to the justice system at that stage of proceedings.
  • Where an offender contests a charge and is found guilty at trial, no discount for a guilty plea is available; however, the sentence is not increased by reason of the matter having been defended.
  • Under the Court of Criminal Appeal's Guideline Judgment on Form 1 matters, a charge placed on a Form 1 document must have a meaningful impact on the sentence imposed for the associated indictment count, not merely a nominal one.
  • A finding of special circumstances, justifying a lower non-parole period relative to the total sentence, can be grounded in the offender's need for extensive post-release supervision to support reintegration into the community.
  • Deliberately driving a vehicle at a police officer in an attempt to avoid arrest constitutes the use of an offensive weapon within the meaning of s 33B(1)(a) of the Crimes Act 1900, carrying a maximum penalty of 12 years imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 51B
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 37

Cases:
- The Attorney General's Application pursuant to s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 matters)
- Bugmy v The Queen [2013] HCA 37
- Hamilton v R (1993) 66 A Crim R 575
- Jibran v R [2020] NSWCCA 86
- Mbele v R [2021] NSWCCA 184
- Toller v R [2021] NSWCCA 204
- Valentine v R [2020] NSWCCA 116
- Veen v The Queen (No 2) (1988) 164 CLR 465