Cotter v R

THE FACTS

1. An agreed statement of facts was tendered before the sentencing judge which recorded the following. [3]
2. At about 3:40pm on 25 April 2019 the applicant was driving a motor vehicle in a southerly direction along the Princes Highway, Engadine. As police were travelling north, a Mobile Automated Number Plate Recognition (MANPR) system alerted them to the fact that the vehicle being driven by the applicant was stolen. Police made a U-turn and caught up to the applicant's vehicle when it was stationary at traffic lights at the intersection of the Princes Highway and Heathcote Road, Heathcote. Vehicles were stopped beside, in front of, and behind, the applicant's vehicle. Police stopped in the adjacent lane and saw the applicant in the driver's seat, and a female in the front passenger's seat. They directed them to exit the vehicle. Each of them refused.
3. The applicant then accelerated into the stationary vehicle in front of him, then reversed and collided with the stationary vehicle immediately behind him. One of the police then opened the driver's door of the applicant's vehicle and directed him to get out. The applicant ignored that request and again accelerated, this time colliding with the rear of the police vehicle. The applicant then reversed his vehicle when a police officer had hold of the driver's side door. The officer was struck by the door and fell onto the bonnet of another vehicle.
4. The applicant then accelerated again and collided with the police vehicle, in the course of which the engine of his vehicle stalled. Police again approached the applicant and directed him to get out. The applicant again ignored that direction. Police then deployed Oleoresin Capsicum (OC) spray to the applicant's face. The applicant's passenger opened her door and was immediately apprehended by police. The applicant then climbed over the centre console, got out of the vehicle through the passenger side door and fled across four lanes of traffic. Police pursued him on foot before apprehending him nearby. The applicant was in possession of a wallet containing a number of items including credit cards, cash and a NSW driver's licence in the name of Benjamin Brown. Those items were the subject of the goods in custody charge contained in the Form 1.
5. Footage of the incident, which I have viewed, formed part of the evidence before the sentencing judge. That footage commences with the police demanding that the applicant get out of his car and shows the officer being struck and knocked onto the bonnet of a nearby vehicle. The extent to which the footage adds to the facts set out above is limited, although it does show the applicant aggressively opening and closing the driver's side door at one point, in an obvious attempt to avoid arrest, before fleeing the scene.
6. The police officer who was struck suffered bruising and swelling to his left knee and pain in his right wrist. He was unable to work for some weeks afterwards.

Ground 1 - The sentencing judge erred in failing to find that the use of the offensive weapon to prevent apprehension was not a planned or organised criminal activity

THE SENTENCE PROCEEDINGS

1. The sentencing judge had the benefit of written submissions prepared by the solicitor who appeared for the applicant on sentence. In addressing the objective seriousness of the offending in count 1, it was specifically submitted on behalf of the applicant that her Honour should have regard to the fact that the offending was "spur of the moment or spontaneous offending borne of the offender panicking". [4] There was no submission made by the Crown to the contrary.

THE REASONS OF THE SENTENCING JUDGE

1. In the course of her remarks on sentence, the sentencing judge said the following: [5] In relation to a consideration of mitigating matters, it was submitted variously that there are some mitigating matters in this matter that the Court could take into account. I observe in general that a lack of an aggravating circumstance is not a mitigating matter. It is submitted that the factors that mitigate the offending that the injury, emotional harm, loss and damage caused by the offending was not substantial, that is not a mitigating matter but I do not take it into account as an aggravating circumstance. I do observe that there was injury to the police officer. The fact that this was not a planned or organised criminal activity is not a matter that is taken into account as a mitigating matter but I do accept that the offence occurred without planning or forethought and appears to have been spontaneous.

Submissions of the applicant

1. Counsel for the applicant submitted that the evidence overwhelmingly supported a conclusion that the offending was spontaneous and that, consistent with that evidence, her Honour had found that "the offence occurred without planning or forethought and appear[ed] to have been spontaneous".
2. It was submitted that in circumstances where her Honour had reached that finding, her Honour erred in failing to treat it as a mitigating factor.

Submissions of the Crown

1. The Crown submitted that her Honour had correctly concluded, in accordance with a "well established common law principle", [6] that the absence of an aggravating factor does not have the effect of mitigating the offending.
2. The Crown further submitted that a lack of planning was a common characteristic of this kind of offending, such that her Honour was correct not to regard it as a factor in mitigation. In oral submissions before this Court, the Crown appeared to elevate this proposition somewhat, and submitted that a lack of planning was an inherent characteristic of any example of this type of offending.
3. It was submitted that in all of these circumstances, the sentencing judge had not erred.

CONSIDERATION

1. Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) is in (inter alia) the following terms: Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters-- … (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, … (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows-- …. (b) the offence was not part of a planned or organised criminal activity. …
2. The proposition which was relied upon by the Crown that an absence of an aggravating circumstance does not mitigate the relevant offending is uncontroversial. However, given the clear terms of s 21A(3)(b) of the Sentencing Act, it is a principle of no real significance in the circumstances of the present case.
3. I am also unable to accept the proposition advanced by the Crown that an absence of planning is an inherent characteristic of the offence of using an offensive weapon to prevent or hinder lawful apprehension. For example, an offender who decides to commit a crime, and who, in advance of doing so, arms himself or herself with an offensive weapon to assist in preventing apprehension thereafter, obviously engages in planning.
4. In the present case, and consistent with the submissions which were made on behalf of the applicant on sentence, [7] her Honour expressly found that the principal offence in count 1 was committed without planning or forethought, and appeared to have been spontaneous. Her Honour did not explain why, having reached that finding, it was not to be treated as a mitigating factor.
5. In my view, once that finding was made, s 21A(3)(b) of the Sentencing Act mandated that it be taken into account as a mitigating factor. Her Honour erred in failing to do so.
6. Further, it is to be inferred from her Honour's express acceptance of the spontaneity of the offending that her Honour took that factor into account as relevant. [8] It is difficult to ascertain how that factor would be relevant, other than as a mitigating factor. Her Honour did not indicate how it was that she did take it into account. In my view, that compounds the error that I have identified.
7. For all of these reasons, I am satisfied that ground 1 has been made out.

RE-SENTENCE

1. Although the applicant relied upon a number of other grounds of appeal, it is not necessary to consider them in light of my conclusion in respect of ground 1. As a consequence of that conclusion, the task of this Court is to re-sentence the applicant in the fresh exercise of the sentencing discretion. To the extent that any of the submissions made by the parties in respect of the other grounds remain relevant to re-sentence, I have taken them into account.

The objective seriousness of the offending

1. Whilst the applicant was charged with a number of offences, the focus is obviously on the offending in count 1. Within the one course of conduct, there were a series of instances in which the applicant used his vehicle to avoid apprehension, namely: 1. accelerating into the stationary vehicle in front of him and then reversing into the stationary vehicle behind; 2. accelerating again (after being directed to get out of his vehicle), and colliding with the rear of the police vehicle in the process; 3. reversing again (having again been directed to get out of the car), striking a police officer and causing him to be thrown onto the bonnet of another vehicle, following which the applicant aggressively opened and closed the driver's side door to prevent apprehension; and 4. accelerating again, and colliding with the police vehicle.
2. Viewed in that way, the offending in count 1 was not constituted by one isolated act. Moreover, it occurred in circumstances where the applicant had been driving the vehicle knowing that: 1. it was stolen; 2. he was disqualified from driving; and 3. he had taken an illicit substance.
3. Those three matters are, of course, the subject of separate charges. As a consequence, one must be careful not to engage in double counting when determining an appropriate sentence.
4. That said, the offending in count 1 was aggravated by: 1. the fact that a victim was a police officer; [9] 2. the offender's record of previous convictions; [10] and 3. the fact that the offending was committed without regard for public safety. [11]
5. The offending in count 1 presented an immediate danger to the safety and well-being of the police, as evidenced by the fact that one officer was actually injured. That is a factor which renders general deterrence of particular significance. [12] The offending also presented an immediate danger to members of the public and their property. The members of the public who were endangered included the applicant's passenger, as well as those persons who were in vehicles in the immediate vicinity.
6. For the reasons given when addressing ground 1, the offending in count 1 was mitigated by the fact that it was not part of a planned or organised criminal activity. [13]
7. I would place the objective seriousness of the entirety of the offending at or about the mid-range.

THE APPLICANT'S SUBJECTIVE CASE

1. Megan Godbee, psychologist, conducted an assessment of the applicant on 22 November 2019 and provided a report dated 3 December 2019. [14] In circumstances where the applicant did not give evidence on sentence, much of the material concerning his background is to be found in Ms Godbee's report.
2. The applicant was born on 12 July 1982. He had a positive relationship with his mother throughout his childhood, but had been physically and emotionally abused by his father. [15] He struggled to cope with his parents' separation, following which he commenced using drugs. He left home at the age of 15 and "couch surfed" for the next two years until his maternal aunt and uncle offered him accommodation at the age of 17. [16]
3. The applicant was expelled from school in Year 8 (having truanted for approximately half of Year 7) and did not return to school after that time. He has a limited employment history, due largely to the fact that he has spent a considerable period of his adult life in custody. He has completed mathematics and literacy courses in custody since leaving school and has also completed a welding course. [17]
4. The applicant commenced using cannabis at the age of 13. He transitioned to smoking heroin and methamphetamine by the age of 16, at which time he also commenced drinking alcohol. By his early adulthood he had reached the point of using heroin and methamphetamine on a daily basis. He was also a regular user of ecstasy and cocaine. He told Ms Godbee that although he had abstained from the use of drugs during his various periods in custody, he would invariably turn to using drugs again when released, a fact which he attributed to the absence of any ongoing assistance. In his early 20s the applicant was struck by a car on his motorcycle are resulting in a significant back injury. He attributed an increase in his heroin use to that injury. [18]
5. In the context of a psychological assessment, the applicant reported to Ms Godbee that he began to experience symptoms of depression in his early teens, manifested by episodes of low mood, loss of motivation and interest, and feelings of worthlessness. He reported that these symptoms had been constant, and had worsened following various stressors in his life, including the termination of a relationship and the death of his grandmother. The applicant told Ms Godbee that he had responded to his worsening depressive condition with increased drug use, and he attributed many of his depressive symptoms to the trauma he had suffered at the hands of his father. [19] He reported indicia of post-traumatic stress such as nightmares, intrusive thoughts about his childhood trauma and hypervigilance. [20]
6. The applicant told Ms Godbee that upon his release, he wished to engage in rehabilitation to address his drug addiction, and obtain appropriate mental health treatment. [21] Ms Godbee recommended that the applicant engage in an intensive drug and alcohol rehabilitation program, and that he undergo psychological treatment to process his history of trauma, improve his mood and challenge his negative beliefs. [22]
7. A sentencing assessment report recorded that the applicant had expressed an understanding of the wrongfulness of his behaviour, and had sought to explain it by the fact that he acted out of panic, and in fear of the prospect of returning to custody. [23] The applicant also said that because he had been under the influence of ice at the time, he had not considered the impact of his actions. [24] The author of the report noted that although the applicant had sought to minimise his offending by attributing it to the use of drugs coupled with poor decision-making, he had recognised the need to address his antisocial lifestyle and had expressed a willingness to participate in necessary treatment. [25] The author of the report also noted that the applicant was currently employed in custody as a sweeper, and that his supervisors had commented about him favourably. [26]
8. The applicant provided a letter for the purposes of sentence in which he said (inter alia) the following: [27] I'm writing this letter to apologise to all people have been physically or mentally affected by my actions on Thursday 25 April 2019. I have been in custody and have had time to reflect and sit back and think of how much worse the situation on the above mentioned day may have been. I am seriously remorse [sic] and ashamed of my actions and behaviour on this day.
9. Having recounted the circumstances of the offending, the applicant continued: Whilst being in custody I have been focusing on getting healthy and training to motivate me to stay off drugs. I know it is easy for someone to write an apology letter to try and assist themselves on getting a more lenient sentence. This is a genuine apology to [the injured police officer] and his family for any pain I may have caused them physically and mentally during this entire ordeal.
10. The applicant's mother and partner provided written testimonials. Both affirmed their support for the applicant, providing he adhered to his expressed preparedness to obtain the professional support that he requires.
11. The applicant has a lengthy criminal history which dates back to the early part of 2000. It contains numerous entries for driving offences, offences of violence, and offences of dishonesty. The applicant has spent significant periods in custody since he first offended and it is apparent that there is a causal connection between his history of drug abuse and the multiplicity of his offending.
12. However, the applicant appears to have used his current period of custody in a productive way. He has engaged with Narcotics Anonymous [28] and his affidavit of 26 October 2020 confirms his employment in custody and his completion of courses in work safety and forklift driving. Significantly, the applicant also stated in his affidavit that he has commenced a drug rehabilitation program. Whilst he admitted having returned a positive drug test in custody in January of this year, there have been no positive tests or disciplinary charges in custody since that time. An affidavit of Belinda Fitzpatrick, solicitor of 27 October 2020 which was read by the Crown confirmed the fact of the applicant's positive drug test in custody in January of this year, as well as the fact that there have been no disciplinary breaches since that time.

The pleas of guilty

1. The applicant pleaded guilty to the offences at the earliest possible opportunity and is entitled to a discount of 25% to reflect the utilitarian value of those pleas.

Remorse and contrition

1. The applicant did not give evidence on sentence and accordingly, his expressions of remorse and contrition are to be found firstly, in his letter to the Court, and secondly in his statements to the author of the sentencing assessment report. This evidence satisfies the precondition imposed by s 21A(3)(i)(i) of the Sentencing Act, namely the provision of evidence of an acceptance of responsibility. However, it must be emphasised, yet again, that little weight can be placed on an offender's untested expressions of remorse, irrespective of whether such expressions are contained in a statement which is tendered in the absence of the offender being cross-examined on its contents (a practice which has been criticised by this Court on a number of occasions [29] ) or in statements reportedly made by the offender to third parties such as medical practitioners. [30] I am prepared to accept that his early pleas of guilty are indicative of some degree of remorse.

The applicant's mental state

1. The report of Ms Godbee makes reference to aspects to the applicant's mental state. There is no evidence of any formal diagnosis of any mental illness. Although there are, as I have pointed out, references to the applicant suffering from symptoms consistent with depression, it has not been suggested that the applicant is an inappropriate vehicle for general deterrence.
2. Ms Godbee made specific reference to the physical and emotional abuse to which the applicant was subject at the hands of his father as a child, and of the consequences which have followed, and which continue to present an issue for the applicant. Those factors attract the application of the principles set out by the High Court in Bugmy v The Queen. [31]

The applicant's prospects of rehabilitation

1. I have already noted the nature and extent of the applicant's criminal history. There are some encouraging signs in terms of the applicant's prospects of rehabilitation, including the fact that he has the support of his mother and partner. His successful rehabilitation is dependent, in large measure, upon his abstaining from illicit drug use. If the applicant manages to abstain, his prospects of rehabilitation are good.
2. The sentencing assessment report assessed the applicant as being at a medium-high risk of reoffending. Although not expressly stated, it can be readily assumed that such assessment was based upon the applicant's criminal history. For the same reasons as those expressed when addressing the applicant's prospects of rehabilitation, I remain somewhat guarded about the applicant's likelihood of re-offending. It is again largely dependent upon the applicant abstaining from illicit drug use and obtaining appropriate rehabilitative treatment.

Special circumstances

1. The primary judge made a finding of special circumstances. I would adopt the same course, on the basis that a longer period on parole, during which the applicant can engage in appropriate counselling and treatment as recommended by Ms Godbee, is likely to assist in the applicant's rehabilitation. I have adjusted the ratio between the head sentence and the non-parole period to one of 65%.

CONCLUSION AND ORDERS

1. I would propose the following indicative sentences: 1. count 1 (taking into account the Form 1 offence) - 4 years and 6 months' imprisonment. 2. count 2 - 1 year and 9 months' imprisonment. 3. count 3 - 4 months' imprisonment 4. count 4 - conviction without further penalty pursuant to s 10A the Sentencing Act.
2. I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Aggregate sentence imposed in the District Court of NSW quashed. 4. In lieu thereof, the applicant is sentenced to imprisonment for 5 years commencing on 25 April 2019 and concluding on 24 April 2024. 5. I specify a non-parole period of 3 years and 3 months' imprisonment commencing on 25 April 2019 and expiring on 24 July 2022. 6. I confirm the periods of disqualification from driving which were imposed in the District Court of New South Wales.
3. WRIGHT J: I agree with Bellew J.

Endnotes

1. AB34.
2. AB34.
3. AB72-73.
4. AB 132.
5. AB 29-30.
6. Saddler v R (2009) 194 A Crim R 452; [2009] NSWCCA 83 at [3] per Grove J.
7. At [15] above.
8. See s 21A(1)(b) of the Sentencing Act which requires that relevant matters be taken into account.
9. Sentencing Act s 21A(2)(a).
10. Sentencing Act s 21A(2)(d).
11. Sentencing Act s 21A(2)(i).
12. R v Hamilton (1993) 66 A Crim R 575 at 581 per Gleeson CJ.
13. Sentencing Act s 21A(3)(b).
14. AB138-146.
15. AB140.
16. AB140.
17. AB141.
18. AB141.
19. AB143.
20. AB144.
21. AB145.
22. AB146.
23. AB125.
24. AB125.
25. AB126.
26. AB125.
27. AB148-AB149.
28. AB152.
29. R v Elfar [2003] NSWCCA 358 at [25]; Weber v R [2020] NSWCCA 103 at [63].
30. R v Qutami (2001) A Crim R 369; [2001] NSWCCA 353.
31. (2013) 249 CLR 571; [2013] HCA 37 at [43]-[44]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2020