AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 5 April 2024

R v Pagett

[2024] NSWDC 186

Assault & violenceTraffic & drivingPublic order & justice offences

Citation: R v Pagett [2024] NSWDC 186
Court: District Court of New South Wales
Date: 5 April 2024
Judge: Haesler SC DCJ

Background

The offender was on parole following a lengthy custodial sentence when, on 12 September 2022, he was observed riding an unregistered, uninsured dirt bike in Warrawong, weaving between vehicles, running a red light, and performing wheelies on footpaths near pedestrians. He was a disqualified driver at the time. A co-offender, dealt with separately in the Local Court, was riding with him.

Police pursued the pair to a residential backyard in Kanahooka. When officers attempted to apprehend them, the offender rode his motorcycle directly at Senior Constable Battley, who had his back turned while attempting to detain the co-offender. The impact catapulted the officer into the air and onto concrete. The bike then fell on top of him, rendering him unconscious.

The officer sustained a fractured left clavicle, a right distal radius fracture requiring open reduction and internal fixation, an ulnar styloid fracture, and two extracranial haematomas. Permanent screws and plates were inserted. As of the sentencing date, he continued to suffer daily pain, restricted use of his left arm, and psychological consequences, and remained unable to perform his duties. After fleeing the scene, the offender stole a bicycle from nearby premises (a Form 1 matter) before being arrested and taken to hospital for suspected drug ingestion and exhaustion.

  • The appropriate aggregate sentence for the principal offences: recklessly causing grievous bodily harm, use of an offensive instrument with intent to prevent lawful apprehension, dangerous driving, and driving while disqualified
  • The objective seriousness of the reckless GBH offence, which was disputed between the parties
  • The weight to be given to the offender's significant subjective circumstances, including institutionalisation from a young age, impoverished childhood, history of institutional abuse, drug addiction, and mental health disorders
  • Whether an Intensive Correction Order was appropriate
  • The application of special circumstances to extend the parole period beyond the statutory ratio
  • Parity considerations, given that the co-offender had been sentenced in the Local Court
  • The treatment of a Form 1 matter (stealing a bicycle) and minor traffic offences (unregistered, uninsured vehicle, no numberplate)

Decision

Haesler SC DCJ found the principal offences were objectively serious. The court acknowledged the defence submission that the incident was spontaneous and motivated by panic rather than deliberate targeting of an officer, and distinguished the circumstances from cases involving multiple intentional blows. Nevertheless, the court held that the offender rode his motorcycle directly at the officer in a reckless attempt to escape, and that drug intoxication did not mitigate that conduct. On the contrary, intoxication made the offender more unpredictable and dangerous.

The court gave weight to the offender's deeply troubled background: he had entered juvenile detention at 17 and spent roughly ten of the eleven years between 2011 and 2021 in custody. The judgment applied the principle in Bugmy v The Queen that the effects of profound social disadvantage on moral culpability do not diminish with repeated offending. Mental health disorders, institutional abuse, drug addiction, and genuine remorse were all treated as mitigating factors, alongside the utilitarian value of the guilty pleas (a 25% discount applied).

An Intensive Correction Order was rejected as inappropriate given the nature and seriousness of the offending. The court found special circumstances warranted, given the offender's need for supervision and support on release after such an extended period of institutionalisation, justifying a parole period longer than the standard statutory ratio. The court also took care to avoid double-counting given the overlap in elements and purposes of sentencing across the GBH and offensive instrument charges.

The minor traffic offences (unregistered vehicle, uninsured vehicle, and numberplate offence) were formally recorded under section 10A of the Crimes (Sentencing Procedure) Act 1999, meaning a conviction was noted but no additional penalty imposed. The sentence was backdated to the date the offender entered custody, 12 September 2022.

Orders Made

  • Sequence 1 (drive while disqualified): 6 months' imprisonment; 2-year driving disqualification
  • Sequence 2 (drive recklessly): 7 months' imprisonment; 12-month driving disqualification
  • Sequence 6 (use offensive instrument): 1 year and 3 months' imprisonment
  • Sequence 11 (recklessly cause grievous bodily harm, with Form 1 taken into account): 3 years' imprisonment
  • Aggregate sentence: 4 years' imprisonment, backdated to 12 September 2022
  • Non-parole period: 2 years and 6 months, expiring 11 March 2025
  • Parole period: 1 year and 6 months, expiring 11 September 2026; release subject to State Parole Authority satisfaction as to community safety
  • Sequence 8: Withdrawn and dismissed
  • Sequences 3, 4, and 5 (unregistered vehicle, uninsured vehicle, numberplate offence): Dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999; conviction recorded, no further penalty imposed

Key Takeaways

  • Drug intoxication at the time of offending is not a mitigating factor in sentencing; the District Court held it may aggravate matters because it renders an offender more unpredictable and dangerous.
  • Under the principle in Bugmy v The Queen, the mitigating weight of an offender's deprived background and resulting moral culpability does not erode simply because the offender has accumulated prior convictions or has repeatedly reoffended.
  • Where two charges arise from a single act and its consequence (here, use of an offensive instrument and recklessly causing GBH), the sentencing court must take care not to double-count aggravating and background factors common to both.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 was warranted where an offender's extensive institutionalisation meant a longer period of supervised parole was necessary to support reintegration.
  • Section 10A of the Crimes (Sentencing Procedure) Act 1999 was used to formally record convictions for lesser regulatory traffic offences without imposing additional penalties, where the aggregate sentence already reflected the totality of the criminality.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 10A and s 37
- Criminal Procedure Act 1986 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- R v Franks [2005] NSWCCA 196
- Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41
- Bolamatu v R [2003] NSWCCA 58
- Devaney v R [2012] NSWCCA 285
- Luque v R [2017] NSWCCA 226
- Lloyd v R [2022] NSWCCA 18
- *Nasrallah v R