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District Court 11 October 2023

R v Lee

[2023] NSWDC 420

Traffic & driving
SENTENCE POLICE PURSUIT BREACH OF PAROLE WHETHER SENTENCE SERVED BY ICO

Citation: R v Lee [2023] NSWDC 420
Court: District Court of New South Wales
Date: 11 October 2023
Judge: Lerve DCJ

Background

The offender, a 32-year-old man on parole and holding a P2 provisional licence, appeared in the Wagga Wagga District Court for sentence after pleading guilty to driving dangerously during a police pursuit. The offending occurred at approximately 1am on 16 March 2023 in Wagga Wagga.

Police initially stopped the offender's vehicle after observing erratic driving on the main street of the city. While officers waited for a second vehicle to conduct a search, the offender suddenly drove away, prompting a pursuit. Over the following four minutes, he drove at 80 to 100 km/h through 50 km/h zones, cut corners, drove on the wrong side of the road, and at one point spun the vehicle a full 360 degrees before regaining control. A passenger was in the car throughout.

The pursuit ended when the offender drove into a dead end, abandoned the vehicle, and attempted to flee on foot. He was arrested after being tackled. The matter was committed to the District Court for sentence because of the offender's criminal history engaging section 58 of the Crimes (Sentencing Procedure) Act 1999, which can elevate jurisdiction for an offence that would otherwise be finalised in the Local Court.

  • What was the appropriate objective seriousness of the offending, given its circumstances?
  • How should the offender's extensive criminal history (including strictly indictable prior offences) be treated in sentencing?
  • Did the statutory aggravation for offending while on parole apply?
  • Whether imprisonment was required, and whether the sentence could be served by way of an Intensive Correction Order (ICO).
  • What discount applied for the early plea of guilty?

Decision

Lerve DCJ assessed the objective seriousness of the offending as below mid-range, but not significantly so. The pursuit lasted only around four minutes, occurred in the early hours when traffic was light, and involved a route through residential and commercial streets. However, it involved sustained high speeds, loss of vehicle control, a passenger in the car, and driving on a road used by heavy vehicles.

The offender's criminal history was extensive, beginning in 2009 and including convictions on indictment for causing grievous bodily harm with intent, aggravated break and enter, and robbery. The court found the record did not attract any particular leniency, though it stopped short of treating it as an aggravating factor under section 21A(2)(d). Critically, the offending was committed in breach of parole, which engaged the statutory aggravation under section 21A(2)(j). The offender had also incurred further traffic offences in the period between the police pursuit and the sentence hearing, including driving while disqualified.

His Honour determined that a full custodial sentence was plainly required. The starting point was set at 21 months imprisonment, reduced by 25 per cent for the early guilty plea to produce a total sentence of 15 months. The court did not accept any submission that the sentence could appropriately be served by ICO, given the breach of parole and general deterrence considerations. An extra-curial punishment claim based on alleged conduct by police at the time of arrest was abandoned by the offender's solicitor before it was argued.

Orders Made

  • The offender was convicted of driving a vehicle during a police pursuit in a manner dangerous to others.
  • Sentenced to a total term of 15 months imprisonment comprising:
  • Non-parole period of 6 months, commencing 21 August 2023 and expiring 20 February 2024.
  • Balance of term on parole of 9 months, commencing 21 February 2024 and expiring 20 November 2024.
  • To be released to statutory parole at the expiration of the non-parole period, subject to supervision by the Department of Community Corrections and compliance with directions regarding substance abuse and mental health treatment.
  • Disqualified from driving for 18 months (reduced from the automatic 3-year period).

Key Takeaways

  • Offending on parole constitutes a statutory aggravating factor under section 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, and the District Court treated it as a significant element in the sentencing calculus here.
  • A four-minute police pursuit at sustained double the speed limit, including loss of vehicle control and driving on the wrong side of the road, was assessed as below but not significantly below mid-range of objective seriousness.
  • Where an offender raises an allegation of extra-curial punishment by police at arrest, the sentencing court indicated it would give the prosecution the opportunity to call the officers involved before accepting such a submission. The allegation was abandoned after that indication was given.
  • An early guilty plea to a charge of this kind attracted the full 25 per cent utilitarian discount, consistent with the approach in Hopley v R [2008] NSWCCA 105.
  • The automatic three-year driving disqualification for a section 51B(1) Crimes Act offence is subject to judicial reduction. The District Court reduced it to 18 months, taking into account the circumstances of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 51B(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 21A(2)(d), 21A(2)(j), 58

Cases
- Hopley v R [2008] NSWCCA 105
- Stanley v DPP [2023] HCA 23
- Tonga, Samuel v R [2023] NSWCCA 120
- Zheng v R [2023] NSWCCA 64