Citation: R v Ellis [2025] NSWDC 451
Court: District Court of New South Wales
Date: 25 July 2025
Judge: Bourke SC DCJ
Background
The offender pleaded guilty to a series of offences arising from events on 5 July 2024 in the Newcastle area. The primary offence involved the offender entering an unlocked residential property in Warabrook, where the occupants were present but in other rooms, taking car keys from the lounge, and driving away in the victim's red Mitsubishi Magna.
Later that evening, when police identified the stolen vehicle at a service station in Wallsend and then at a Shell service station, the offender revved the engine loudly while a police officer stood in front of the car, causing that officer to fear a collision and run clear. The offender then fled at speed, leading police on an approximately eight-kilometre pursuit through several suburbs. During that pursuit he drove at up to 110 km/h in 70-zone roads, overtook vehicles across double white lines, drove on the wrong side of the road, and ultimately lost control, mounting a gutter and colliding with a fence before being arrested.
Upon arrest, the offender was found to be affected by a prohibited drug and in possession of 11.08 grams of 1,4-butanediol. He had never held a driver's licence.
Legal Issues
- The appropriate sentence for each of the substantive offences, having regard to objective seriousness, the standard non-parole period for the principal offence, and the maximum penalties prescribed
- The application of the 25% utilitarian discount for early guilty pleas
- The extent to which subjective factors, including background, age, rehabilitation prospects, and drug use, should moderate the sentence
- How to treat the period already spent in custody, part of which related to a prior sentence and parole balance running concurrently
- The construction of an aggregate sentence balancing totality against the need for accumulation to reflect distinct criminal acts
Decision
His Honour assessed the objective seriousness of each offence separately. The aggravated break, enter and steal (sequence 1) was treated as the most serious, attracting a standard non-parole period of five years for a mid-range offence under s 112(2) of the Crimes Act 1900. His Honour found the offending fell below the mid-range but nonetheless remained serious, given the presence of occupants in the home.
The police pursuit (sequence 3), the intimidation of police (sequence 8), and the driving of a stolen conveyance (sequence 4) were each assessed as individually serious. The pursuit involved sustained dangerous driving over a significant distance, with repeated disregard for other road users. The intimidation offence was established by the offender revving the engine of the stolen vehicle while a police officer stood directly in front of it.
A 25% discount was applied to all sentences for the utilitarian value of the early guilty pleas. His Honour also considered subjective factors, including the offender's background, the principles in Bugmy v The Queen regarding the relevance of disadvantaged upbringing, and the offender's drug dependency. Some credit was given for rehabilitation steps taken during custody.
His Honour imposed an aggregate sentence, identifying indicative terms for each individual offence. In constructing the aggregate, he applied the totality principle while noting the offences were distinct criminal acts requiring some accumulation. He also credited approximately half of the seven-month period the offender had spent serving a parole balance in custody alongside the remand period referable to these offences.
Orders Made
- Aggregate head sentence of three years and two months' imprisonment, commencing 19 October 2024 and expiring 18 December 2027
- Non-parole period of two years and two months, expiring 18 December 2026
- Indicative sentences (all after 25% plea discount):
- Sequence 1 (aggravated break, enter and steal): two years, nine months, with a non-parole period of one year, eleven months
- Sequence 3 (police pursuit): eighteen months
- Sequence 4 (drive stolen conveyance): fifteen months
- Sequence 8 (intimidate police): fourteen months
- Sequence 5 (drive while never licensed): one month
- Sequence 6 (prohibited drug possession): three months
Key Takeaways
- A 25% utilitarian discount for early guilty pleas was applied across all offences, consistent with established sentencing practice under the Crimes (Sentencing Procedure) Act 1999.
- Where an offender serves a parole balance in custody concurrently with a remand period referable to new offences, the District Court here allowed approximately 50% of that parole period as a credit in setting the commencement date of the aggregate sentence.
- Under s 112(2) of the Crimes Act 1900, the aggravated form of break, enter and steal, where the offender knew persons were present in the premises, carries a maximum of 20 years and a standard non-parole period of five years for a mid-range offence. Those benchmarks informed the indicative sentence even though the offending was assessed below mid-range.
- The totality principle required some notional accumulation of sentences across multiple distinct offences arising from a single episode, rather than full concurrency, to avoid understating the overall criminality.
- Subjective considerations, including the principles in Bugmy v The Queen regarding the ongoing relevance of a disadvantaged background, and evidence of rehabilitation steps during remand, were weighed against, but did not displace, the objective seriousness of the offences.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 51B(1), 60(1), 112(2), 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
Cases
- Bugmy v The Queen [2013] HCA 37
- Commonwealth DPP v De La Rosa (2010) 79 NSWLR 1