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Local Court 12 December 2022

Police v Elliot

[2022] NSWLC 23

Assault & violenceDrugsTraffic & driving
AGGREGATE SENTENCE STEPS TOWARDS REHABILITATION PROMOTE REHABILITATION OF OFFENDER GENERAL DETERRENCE SPECIFIC DETERRENCE PROTECTION OF COMMUNITY

Citation: Police v Elliot [2022] NSWLC 23
Court: NSW Local Court
Date: 12 December 2022
Judge(s): Stewart LCM

Background

Late on 29 April 2022, the offender drove a vehicle under the combined influence of methamphetamine, gamma hydroxybutyrate (GHB), and alprazolam (Xanax) through Woolooware in Sydney's south. He collided with a parked utility, which was then pushed into a third vehicle. Two passengers in his car sustained serious injuries: one required immediate surgery for life-threatening internal injuries, and the other suffered fractured ribs and vertebral fractures.

The offender was on a conditional release order at the time, imposed in October 2021 for a prior offence of driving under the influence of a drug (a second or subsequent offence). He had a pattern of drug-related driving and possession offences dating to 2014, including a further drug-driving offence in 2020 that had been detected by roadside oral fluid testing.

At Sutherland Hospital after the crash, a hidden bottle containing diazepam and other tablets fell from the offender's clothing, giving rise to two additional possession of prohibited drug charges. He pleaded guilty to all charges at the earliest opportunity.

  • What aggregate sentence was appropriate for dangerous driving occasioning grievous bodily harm under the influence of a drug, and causing bodily harm by misconduct of a motor vehicle, having regard to the offender's criminal history and the principles in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • Whether the offender's commission of the principal offences while on conditional liberty constituted a statutory aggravating factor under s 21A(2)(j)?
  • Whether an Intensive Correction Order (ICO) was appropriate in light of the objective seriousness of the offending, the need for general and specific deterrence, and the protection of the community?
  • Whether special circumstances existed to justify a non-parole period shorter than the standard statutory ratio?
  • How the principle of totality applied to the lesser and ancillary charges?

Decision

Stewart LCM found the principal offences were of high objective seriousness. The offender had consumed a cocktail of three drugs before driving, carried two passengers who were seriously injured, and had no recollection of much of the drive due to the drugs' effect. The commission of these offences while subject to a conditional release order for a prior drug-driving matter was treated as a statutory aggravating factor.

The court applied the sentencing principles confirmed in Greaves v R [2020] NSWCCA 140 and Park v The Queen [2021] HCA 37, noting that the Local Court must assess the appropriate sentence by reference to the statutory maximum penalties rather than the Local Court's own jurisdictional limits; the jurisdictional limit only becomes relevant if the assessed sentence exceeds it. The court weighed general and specific deterrence, denunciation, community protection, and the need to make the offender accountable, against his early guilty pleas (attracting a 25% discount), his steps toward rehabilitation, and his drug addiction issues described as being in early remission.

An ICO was considered but rejected. The court found, consistent with Meis v R [2022] NSWCCA 118, that the objective seriousness of the offending and the weight of general deterrence overwhelmed the subjective factors that might otherwise have supported a community-based order. Full-time custody was therefore imposed.

Special circumstances were found, reducing the non-parole period to 55.5% of the total sentence. The court cited the offender's first time in custody, his drug addiction issues in early remission, and the impact of COVID-19 on prison conditions, including reduced visitation and limited work opportunities, following Mbele v The Queen [2021] NSWCCA 182. For the drive whilst suspended and the two drug possession counts, convictions under s 10A (bare conviction without further penalty) were entered, reflecting the totality principle.

Orders Made

  • Previous conditional release orders for drive whilst suspended and drive under the influence of a drug were revoked.
  • The offender was convicted on all counts.
  • An aggregate sentence of 3 years' imprisonment was imposed, running from 12 December 2022 to 11 December 2025.
  • Non-parole period of 20 months, commencing 12 December 2022 and expiring 11 August 2024 (representing 55.5% of the total term, reflecting special circumstances).
  • Parole period to run from 12 August 2024 to 11 December 2025; the court recommended release to parole at that time.
  • For drive whilst suspended and the 2 counts of possess prohibited drug: conviction recorded under s 10A Crimes (Sentencing Procedure) Act 1999 (NSW), reflecting totality.
  • Automatic disqualification from driving for 5 years under s 205(3) and (4) of the Road Transport Act 2013 (NSW).

Key Takeaways

  • Offending while subject to a conditional release order is a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and carries significant weight at sentencing, particularly where the prior order related to the same category of conduct.
  • Under the principles confirmed in Park v The Queen [2021] HCA 37 and Greaves v R [2020] NSWCCA 140, a Local Court must assess the appropriate sentence by reference to the statutory maximum for each offence; the court's jurisdictional limit only operates as a cap once that assessment is complete.
  • An ICO may be declined even where subjective factors and rehabilitation prospects are favourable: where the objective seriousness of the offending and general deterrence are sufficiently weighty, those considerations can override an otherwise available community-based order.
  • Special circumstances justifying a reduced non-parole period can be established through a combination of factors, including a first custodial sentence, ongoing drug addiction in early remission, and the particular hardships of imprisonment during the COVID-19 period.
  • The totality principle operated to limit separate punishment for the lesser charges, resulting in bare convictions under s 10A rather than additional penalties, where the aggregate sentence already reflected the overall criminality.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22, 53A, 66, 10A
- Crimes Act 1900 (NSW), ss 52A(3)(a), 53
- Road Transport Act 2013 (NSW), ss 4, 9(2A), 9(5), 54(3)(a), 111, 112(1)(a), 205
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases:
- Park v The Queen [2021] HCA 37
- The Queen v Baden-Clay [2016] HCA 35
- Veen v The Queen (No 2) [1988] HCA 14
- Greaves v R [2020] NSWCCA 140
- Mbele v The Queen [2021] NSWCCA 182
- Meis v R [2022] NSWCCA 118
- Jibran v The Queen [2020] NSWCCA 86
- Karout v R [2019] NSWCCA 253
- R v Fangaloka [2019] NSWCCA 173
- Gonzalez v R [2006] NSWCCA 4
- R v Borkowski [2009] NSWCCA 102
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Whyte [2002] NSWCCA 343
- R v Palu [2002] NSWCCA 381
- R v Gardiner [2004] NSWCCA 365
- R v Errington [2005] NSWCCA 348
- R v Khatter [2000] NSWCCA 32
- Director of Public Prosecutions (NSW) v Kirby [2017] NSWSC 1754