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Local Court 13 January 2025

R v Shlimon

[2025] NSWLC 2

DrugsTheft & propertyTraffic & drivingFirearms & weapons
POLICE PURSUIT SUBSEQUENT OFFENCE 3 RD PURSUIT IN 4 YEARS DRIVING DISQUALIFIED SUBSEQUENT OFFENCE OBJECTIVE SERIOUSNESS SPECIAL CIRCUMSTANCES

Citation: R v Shlimon [2025] NSWLC 2
Court: Local Court of NSW
Date: 13 January 2025
Judge: Stewart LCM

Background

The defendant appeared for sentencing on a large bundle of charges arising from two separate sets of events in 2024. The primary matter concerned an incident on 8 August 2024, in which the defendant drove a stolen BMW bearing false number plates through a prolonged and highly dangerous police pursuit across the Liverpool and Prestons area of south-western Sydney. The pursuit involved speeds of up to 118 km/h in 60 km/h zones, driving on the wrong side of the road, narrowly missing semitrailers and oncoming vehicles, driving on footpaths, and ultimately ramming a police vehicle to avoid apprehension. The defendant was physically removed from the car and required multiple officers to subdue him.

Upon arrest, police found the defendant in possession of a taser and an extendable baton. He was subject to a Weapons Prohibition Order at the time. Police also located cocaine and methylamphetamine concealed in his clothing. Drug influence testing indicated he was under the influence of a drug while driving.

A second matter involved a further instance of driving while disqualified on 12 June 2024, along with additional drug possession charges. The defendant had never held more than a learner's licence and had two prior police pursuit convictions, making the August 2024 pursuit his third in approximately four years.

  • What aggregate sentence and non-parole period were appropriate across the full range of charges, applying the totality principle?
  • What guilty plea discounts applied, given that some pleas were entered late and others at an early opportunity?
  • Whether special circumstances existed to justify a non-parole period representing a lower proportion of the head sentence than the statutory default one-third ratio.
  • Whether the objective seriousness of the disqualified driving charges could be characterised as low, as submitted by the defence.
  • How the court should treat possession of prohibited weapons in circumstances where the defendant was also subject to Weapons Prohibition Orders.
  • Whether the defendant was an eligible convicted defendant for referral to the Drug Court.

Decision

Stewart LCM sentenced the defendant by way of an aggregate sentence, a single combined sentence covering all the offences rather than a separate sentence for each charge. His Honour applied a 25% discount for the early guilty pleas and a 15% discount for the delayed guilty pleas, consistent with the principles in R v Borkowski [2009] NSWCCA 102. The court noted that the Local Court applies the same sentencing principles as the District Court, and is required to assess the appropriate sentence by reference to the maximum penalty for each offence, with the Local Court's jurisdictional limit only becoming relevant if that assessment exceeds it: Greaves v R [2020] NSWCCA 140.

The court firmly rejected the submission that the disqualified driving charges were of low objective seriousness. Given the defendant had never held more than a learner's licence, the entire driving career was unlawful, and this context elevated rather than diminished the gravity of those offences.

The court found that special circumstances existed, justifying a non-parole period that is proportionally shorter than the default under the Crimes (Sentencing Procedure) Act 1999. The ratio of the non-parole period to the head sentence was set at approximately 61.6%, reflecting the need for an extended period of supervised parole to assist rehabilitation, particularly given the defendant's longstanding drug dependency. The court also noted the absence of any Bugmy-type findings (that is, findings of significant social disadvantage stemming from deprived background) in the present or prior proceedings.

The defendant was found to meet the definition of an eligible convicted defendant under section 5A of the Drug Court Act 1998, and the court ordered a referral to the Drug Court to consider whether a compulsory drug treatment order was appropriate.

Orders Made

  • Aggregate sentence of 5 years imprisonment, from 8 August 2024 to 7 August 2029.
  • Non-parole period of 3 years and 1 month, from 8 August 2024 to 7 September 2027 (approximately 61.6% of the head sentence, reflecting special circumstances and totality).
  • For the police pursuit and driving under the influence of drugs matters: disqualification from driving for 5 years from 13 January 2025, further extended by the period of imprisonment under section 206A of the Road Transport Act 2013.
  • For each count of driving whilst disqualified: disqualification from driving for 12 months, from 13 January 2025 to 12 January 2026.
  • Referral to the Drug Court under section 18B of the Drug Court Act 1998 to determine whether a compulsory drug treatment order should be made.
  • For the counts of possessing a prohibited drug and using unauthorised number plates: bare convictions recorded under section 10A of the Crimes (Sentencing Procedure) Act 1999 (that is, a conviction recorded without any additional penalty).

Key Takeaways

  • The Local Court confirmed, applying Greaves v R, that it must assess sentences by reference to the maximum penalty for each charge and is not limited in its analysis by its own jurisdictional cap; that cap only operates as a ceiling if the assessed sentence would otherwise exceed it.

  • A submission that disqualified driving was of low objective seriousness was rejected where the defendant had never held more than a learner's licence, meaning every occasion of driving was unlawful. This prior driving history was treated as an aggravating feature rather than a mitigating or neutralising one.

  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 justified a non-parole period ratio below the default one-third, given the defendant's entrenched drug dependency and the corresponding need for a longer supervisory period following release.

  • Possession of prohibited weapons in breach of existing Weapons Prohibition Orders attracted significant weight in sentencing, given the compounding nature of the breach.

  • Where a defendant meets the criteria in section 5A of the Drug Court Act 1998, the Local Court has the power to refer the matter to the Drug Court under section 18B, even when sentencing for serious offences including a dangerous police pursuit.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 10A, 21A, 44(2B), 53A, 58
- Crimes Act 1900 (NSW), ss 33B, 51B, 52B
- Drug Court Act 1998 (NSW), ss 5A, 18B
- Drug Misuse and Trafficking Act 1985 (NSW), s 10
- Road Transport Act 2013 (NSW), ss 4, 9, 54, 112, 205, 206A
- Road Transport (Vehicle Registration) Regulation 2017 (NSW), reg 129
- Weapons Prohibition Act 1998 (NSW), ss 7, 34(1)

Cases:
- Bugmy v The Queen [2013] HCA 37
- Byrne v R; Cahill v R [2021] NSWCCA 185
- Cahyadi v R [2007] NSWCCA 1
- Felton v R [2010] NSWCCA 79
- Greaves v R [2020] NSWCCA 140
- Jibran v R [2020] NSWCCA 86
- Markarian v The Queen (2005) 79 ALJR 1048
- McBride v The Queen (1966) 115 CLR 42
- Osman v R [2020] NSWCCA 78
- Park v The Queen [2021] HCA 37
- R v Borkowski [2009] NSWCCA 102
- R v McNaughton (2006) 66 NSWLR 566
- R v Merrin [2007] NSWCCA 255
- R v Perrin [2022] NSWCCA 170
- Westaway v R [2016] NSWCCA 281