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District Court 5 July 2024

R v York

[2024] NSWDC 327

Theft & propertyTraffic & drivingFirearms & weaponsPublic order & justice offences
CRIME SENTENCE AFTER TRIAL BY JURY FACT FINDING AFTER TRIAL DAMAGE PROPERTY BY FIRE/EXPLOSIVE

Citation: R v York [2024] NSWDC 327
Court: District Court of New South Wales
Date: 5 July 2024
Judge: Wilson SC DCJ

Background

The offender, a 50-year-old man, was convicted by a jury on three counts following a trial in October 2023. The offences arose from a single episode of serious criminal conduct on 15 October 2020, in which the offender drove a stolen Toyota Landcruiser through the Wadalba and surrounding areas of the NSW Central Coast.

During the episode, the offender and a co-offender used what was described as a firearm to menace multiple people who had been following the stolen vehicle in an attempt to recover it. A police pursuit followed, during which the offender drove at approximately twice the speed limit in a school zone, narrowly avoided a school bus, and deliberately rammed a police vehicle multiple times. The offender then set fire to the stolen vehicle to destroy evidence, causing property damage exceeding $15,000.

The offender was arrested three days after the offending. He was on bail for unrelated matters at the time and had spent 670 days in pre-sentence custody referable solely to these charges before being granted conditional bail in October 2022.

  • What facts had been established to the requisite standard of proof for the purpose of sentencing after a jury trial?
  • How should the three principal counts be assessed for objective seriousness, and what sentences were appropriate?
  • Whether the sentences on the three counts should be served cumulatively or concurrently, and to what degree.
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 to justify a non-parole period shorter than the statutory norm.
  • How the three related charges (driving while disqualified, drive conveyance without consent, and displaying misleading number plates) should be disposed of.

Decision

Wilson SC DCJ conducted a careful fact-finding exercise consistent with the principles in The Queen v Olbrich (1999) 199 CLR 270, adopting uncontested Crown facts that were consistent with the jury's verdicts. The judge found the offending on all three counts to be objectively serious, describing it as "highly anti-social" and warranting "condign punishment."

On Count 1 (use of an offensive weapon in company to prevent detention), the judge assessed the objective seriousness as above the mid-range. The weapon was displayed directly at multiple individuals from close range to deter them from following the vehicle. On Count 2 (police pursuit, drive recklessly), the offending was also assessed above the mid-range given the sustained, dangerous driving in a school zone, the deliberate ramming of a police vehicle on multiple occasions, and the endangerment of the public. Count 3 (damage to property by fire, value exceeding $15,000) was treated as a serious but somewhat less dominant offence in the overall criminality.

The judge found special circumstances, given the offender's significant period in pre-sentence custody, his background including issues of mental health, substance use and entrenched associations, and the need for extended supervision on parole to assist his rehabilitation. This justified a non-parole period that represents a somewhat larger proportion of the head sentence than the usual statutory ratio. The three related charges were addressed by finding the criminality of sequences 1 and 3 captured by the principal sentences, with convictions recorded under section 10A of the Crimes (Sentencing Procedure) Act 1999 and no further penalty imposed. Sequence 2 (drive conveyance without consent) was treated as captured by the principal sentences.

Orders Made

  • Aggregate head sentence of 7 years imprisonment with a non-parole period of 4 years and 6 months.
  • Head sentence commenced 7 April 2022 and expires 6 April 2029.
  • Non-parole period commenced 7 April 2022 and expires 6 October 2026, at which point the offender becomes eligible for parole consideration.
  • Offender to be supervised on parole and to comply with all supervision requirements from Community Corrections.
  • Driver's licence disqualified for 3 years commencing the date of sentence.
  • Convictions recorded for sequences 1 and 3 under section 10A of the Crimes (Sentencing Procedure) Act 1999; no further penalty imposed on those counts.

Key Takeaways

  • After a jury trial, the sentencing court must establish facts adverse to the offender beyond reasonable doubt, while the offender bears the onus of proving favourable matters on the balance of probabilities, consistent with The Queen v Olbrich.
  • Displaying a firearm at close range to deter members of the public from detaining a suspect, combined with deliberate ramming of a police vehicle during a high-speed pursuit in a school zone, placed the offending on Counts 1 and 2 above the mid-range of objective seriousness.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be established where an offender's background, mental health, and history of substance use indicate a substantial need for structured supervision during parole beyond what a standard non-parole ratio would permit.
  • Where related charges are found proved but their criminality is entirely encompassed by the sentences imposed on principal counts, disposal under section 10A of the Crimes (Sentencing Procedure) Act 1999 (conviction without further penalty) remains an available and appropriate outcome.
  • An extended period of pre-sentence custody is a relevant consideration in fixing the commencement date of a sentence and in assessing special circumstances, though it does not by itself reduce the need for a sentence that reflects the objective gravity of the conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(2), 51B(1), 154(1)(b), 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Road Transport Act 2013 (NSW), s 54(1)(a)
- Road Transport (Vehicle Registration) Regulation 2017 (NSW), s 129(3)(b)

Cases
- The Queen v Olbrich (1999) 199 CLR 270
- R v MacDonnell (Court of Criminal Appeal, unreported, 8 December 1995)
- Bugmy v The Queen [2013] HCA 27
- Carl v R [2023] NSWCCA 190
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Luque v R [2017] NSWCCA 226
- Perkins v R [2018] NSWCCA 62
- SS v R; JC v R [2009] NSWCCA 114
- TA v R [2008] NSWCCA 179