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District Court 5 July 2024

R v WHALEN-JOHNSON

[2024] NSWDC 430

Assault & violenceTraffic & driving
SENTENCE ESCAPING POLICE PURSUIT

Citation: R v Whalen-Johnson [2024] NSWDC 430
Court: District Court of New South Wales
Date: 5 July 2024
Judge: D Barrow SC DCJ

Background

The offender pleaded guilty to three principal offences arising from a prolonged episode of dangerous driving on the Central Coast on 26 December 2022. The events began when the offender drove a stolen Volkswagen Jetta from Albury to the Central Coast overnight, with mobile phone footage recording speeds of up to 217 km/h on the Hume Highway. Two passengers, one aged 19 and one aged 16, were in the vehicle.

Following a police pursuit, the offender drove at extremely high speeds through residential streets, overtook vehicles on the wrong side of the road, and drove directly toward a police motorcyclist who was forced to take evasive action to avoid a collision. When his passengers pleaded with him to stop, the offender repeatedly punched one of them in the head.

The pursuit culminated when the offender's vehicle struck a police officer who had positioned himself near a pedestrian refuge to deploy road spikes. The officer attempted to jump clear but could not avoid being hit. The offender drove away without stopping or rendering assistance.

  • What was the appropriate sentence for aggravated dangerous driving causing grievous bodily harm while escaping police pursuit, having regard to objective seriousness and the offender's personal circumstances?
  • How should the related offences (failing to stop and assist after vehicle impact causing grievous bodily harm, and driving a conveyance without the owner's consent) be treated in light of the totality principle?
  • What weight should be given to a disputed factual question about whether the offender intentionally drove toward the injured police officer?
  • What discount applied for the guilty pleas entered in the Local Court?
  • How should the offender's significant disadvantaged background, mental health issues, and substance dependence affect the sentence?

Decision

The court resolved the factual dispute about the manner of impact in the offender's favour, accepting that he did not intentionally drive at the officer. The court found, however, that the offender failed to brake and actively changed direction in a way that increased the risk to the officer. The offence was assessed as above the midrange of objective seriousness, given the prolonged and extreme nature of the driving, the vulnerable presence of the officer in the path of the vehicle, and the assault on a passenger in the same episode.

The court identified a number of mitigating factors. These included the offender's troubled upbringing marked by exposure to domestic violence and substance abuse from an early age, diagnosed mental health conditions (including PTSD and ADHD), his significant drug dependence, his youth (aged 24 at the time of offending), and his genuine remorse. The court applied the principles in Bugmy v R [2013] HCA 37, acknowledging that the effects of profound childhood deprivation do not diminish over time and must inform the weight given to general deterrence.

A 25% discount was applied to the indicative sentences for each offence, reflecting the guilty pleas entered in the Local Court. The court then applied the totality principle, ordering significant concurrency between the sentences, recognising that sequences 1 and 4 arose from intrinsically linked conduct occurring almost simultaneously.

Orders Made

  • Sequence 1 (aggravated dangerous driving causing grievous bodily harm, escaping police pursuit): indicative term of 6 years, reduced to 4 years 6 months after guilty plea discount.
  • Sequence 4 (failing to stop and assist after vehicle impact causing grievous bodily harm): indicative term of 2 years, reduced to 18 months.
  • Sequence 7 (driving a conveyance without owner's consent): indicative term of 24 months, reduced to 18 months.
  • Aggregate sentence: 5 years 6 months imprisonment, with a non-parole period of 3 years 3 months, commencing 22 June 2023. Earliest release date for parole: 21 September 2026. Full sentence expires 21 December 2028.
  • Disqualification (Sequence 1): 2 years 6 months from date of release from custody.
  • Disqualification (Sequence 4): 18 months from date of release from custody.
  • Unlicensed driving (Sequence 8): Convicted under s 10A of the Crimes (Sentencing Procedure) Act 1999, without further penalty.
  • Direction that the report of Dr Furst be forwarded to the Chief Executive Officer of Justice Health.

Key Takeaways

  • Where an offence of driving a conveyance without consent is accompanied by prolonged driving at speeds of up to 217 km/h, the court treated that conduct as substantially elevating the seriousness of that offence beyond a typical example of its type, even where no separate charge was laid for the high-speed driving itself.
  • A factual dispute at sentencing about whether the offender intentionally targeted the injured officer was resolved in the offender's favour, but the court nonetheless found that the offender's conduct in failing to brake and changing direction increased the risk of harm, contributing to an assessment of above-midrange seriousness.
  • Under the principles in Bugmy v R, the sentencing court held that the offender's history of profound childhood disadvantage and resulting substance dependence reduced (but did not eliminate) the weight to be given to general deterrence.
  • The totality principle required significant nominal concurrency between the sentences, given that the dangerous driving and the failure to stop and assist arose from essentially the same continuous episode.
  • A 25% discount for guilty pleas applied consistently across all principal offences, reflecting utilitarian value in accordance with s 25D of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(4), 52AB(2), 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 25D
- Road Transport Act 2013 (NSW), s 206A(3)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Bugmy v R [2013] HCA 37, 249 CLR 571
- Markarian v R [2005] HCA 25, 228 CLR 357
- Muldrock v The Queen [2011] HCA 39
- Veen (No 2) [1988] HCA 14, 164 CLR 465
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Tepania v R [2018] NSWCCA 247, 275 A Crim R 233
- Khoury v R [2011] NSWCCA 118
- Zreika v R [2012] NSWCCA 44
- Kerr v R [2016] NSWCCA 218
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252
- R v Errington (2005) 157 A Crim R 553
- R v Dodd (1991) 57 A Crim R 349
- R v Geddes (1936) 36 SR (NSW) 554