Citation: R v Flentjar [2023] NSWDC 115
Court: District Court of New South Wales
Date: 1 February 2023
Judge: Haesler SC DCJ
Background
The offender pleaded guilty to a series of serious driving and related offences arising from two separate incidents in the Illawarra and South Coast regions. The first occurred on 29 December 2021, when the offender drove an unregistered, uninsured vehicle displaying stolen number plates on the M1 motorway while disqualified, leading to a high-speed police pursuit reaching speeds of up to 185 km/h before police terminated the chase on safety grounds. The offender was on parole at the time.
The second incident occurred on 29 January 2022. The offender took a friend's car without consent and again failed to stop for police, driving at speeds up to 180 km/h and on the wrong side of the road. After police deployed road spikes, the offender lost control and "T-boned" another vehicle at a Nowra-area intersection, seriously injuring the passenger of that car, who sustained a displaced pelvic ring fracture and multiple rib fractures.
Following the collision, the offender fled on foot, kicking a police sergeant in the chest to escape. A large meat cleaver was found in his vehicle. He was arrested only after the second incident. His pleas of guilty were entered at the earliest opportunity in the Local Court.
Legal Issues
- What custodial sentences were appropriate for each of the individual offences, including for aggravated dangerous driving occasioning grievous bodily harm, failure to stop and assist, assault on a police officer, driving while disqualified, taking a conveyance without consent, and the police pursuit offences?
- How should the aggregate sentence be structured, including the non-parole period?
- What weight should be given to the offender's early guilty pleas and the resulting 25% utilitarian discount?
- How should the court weigh the offender's "desperately sad" personal circumstances, including a traumatic custodial history involving sexual assault, against the objective seriousness of persistent and dangerous offending?
- Whether special circumstances existed justifying adjustment of the non-parole period.
Decision
Haesler SC DCJ found that the objective seriousness of every offence was so high that custodial sentences were required for each matter. The aggravated dangerous driving resulting in a T-bone collision and serious pelvic injury to an innocent road user was treated as the gravest offence. The victim suffered a displaced pelvic ring fracture and rib fractures, with a likelihood of prolonged pain and possible long-term reduced mobility.
The court acknowledged the offender's background as "desperately sad," accepting that both the juvenile and adult justice systems had, in various respects, failed him. His time in custody had exposed him to serious trauma, including sexual assault, rather than rehabilitation. These matters were given full weight as reducing moral culpability under the principles in Bugmy v The Queen. However, the court was clear that persuasive subjective circumstances cannot produce an inadequate sentence and that retribution and general deterrence remained significant sentencing purposes.
Early guilty pleas attracted a 25% utilitarian discount. The court found special circumstances existed, justifying a longer parole period relative to the non-parole period, on the basis that the offender needed supervised support on release. Haesler SC DCJ expressed hope that, as the offender matured, engagement with drug and alcohol treatment and depot medication might offer a path toward rehabilitation, noting that for the first time the offender had shown some willingness to engage with treatment.
Orders Made
29 December 2021 offences (all sentences with 25% reduction applied):
- Police pursuit (with Form 1 matters): 1 year and 6 months imprisonment; driving disqualification 2 years
- Drive while disqualified: 9 months imprisonment; driving disqualification 1 year
29 January 2022 offences:
- Police pursuit: 1 year and 10 months imprisonment; driving disqualification 2 years
- Aggravated dangerous driving (with Form 1 matters): 3 years and 4 months imprisonment; driving disqualification 2 years
- Fail to stop and assist: 9 months imprisonment (no driving disqualification)
- Assault police officer: 4 months imprisonment
Aggregate sentence: 5 years imprisonment
Non-parole period: 3 years
Commencement: 2 April 2022
Eligible for parole consideration: 1 April 2025 (subject to State Parole Authority determination)
Sentence expiry: 1 April 2027
Key Takeaways
- A compelling subjective case, including a traumatic custodial history and reduced moral culpability, does not override the need for a retributive sentence where the objective seriousness of the offences is very high. The District Court applied Bugmy v The Queen to give full weight to background disadvantage while maintaining that such matters cannot produce an inadequate sentence.
- Where an offender commits multiple serious driving offences across separate incidents, the court must ensure that the utilitarian discount for early guilty pleas is not eroded through the accumulation process when constructing an aggregate sentence.
- Failing to stop after a dangerous driving collision that causes grievous bodily harm, combined with assaulting a police officer to flee the scene, significantly aggravates the overall sentencing exercise.
- Special circumstances were found on the basis that a longer period on parole with supervision was needed to assist rehabilitation, consistent with the established principle that the non-parole period cannot simply be set by mechanical application of the standard ratio.
- The absence of a victim impact statement does not operate as a mitigating factor: the court noted that the nature and consequences of the victim's injuries spoke for themselves.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Attorney General's Application No 2 of 2002 [2002] NSWCCA 515
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Clarke-Jeffries v R [2019] NSWCCA 56
- Director of Public Prosecutions v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA
- Hearne v R [2001] NSWCCA 37
- Hoskins v R [2020] NSWCCA 18
- KT v R [2008] NSWCCA 51
- Legge v R [2007] NSWCCA 244
- Nasrallah v R [2021] NSWCCA 207
- R v Butler & Russel [2021] NSWDC 666
- R v Errington [2005] NSWCCA 348
- R v Gavel [2014] NSWCCA 56
- R v Howland [1999] NSWCCA 10
- R v Khatter [2000] NSWCCA 32
- R v McKeown [2013] NSWDC 22
- R v Millwood [2012] NSWCCA 2
- R v Musumeci, NSWCCA, unreported, 30 October 1997
- R v Smith [2016] NSWCCA 75
- Veen v The Queen (No 2) (1987-1988) 164 CLR 465; [1988] HCA 14
- Whyte v R [2002] NSWCCA 343; (2002) 55 NSWLR 252