Courtney v R [2022] NSWCCA 223 | Case summary

Judgment (4 paragraphs)

[1]

The applicant's subjective case

Tendered before the sentencing judge was a report of Anita Duffy, Psychologist, from which I draw the following summary of the applicant's background. [26]
The applicant was born 30 January 1992 and is now 30 years of age. He is the youngest of three brothers and grew up in a supportive family environment. He left school at the end of Year 10, following which he pursued various forms of employment until he lost his driver's licence and was unable to continue working. He has a daughter from a previous relationship who was born in September 2016.
The applicant reported binge drinking from age 16 to 17. He was a heavy user of cocaine from about 19 to 20 years of age. He commenced taking amphetamines in his early 20s. He described a pattern of using methamphetamine and alcohol together, which resulted in his resorting to heroin. He described this pattern of behaviour as a "crazy merry-go-round".
The applicant told Ms Duffy that when he was stopped by the police on the day of the offending he had been convinced that the police were trying to kill him. He said that he went into "panic mode" with these thoughts in his head.
Significantly, in the light of the applicant's custodial history discussed further below, Ms Duffy reported: [27] Now that he is drug-free and sober, he has looked back on his offence with considerable horror, as someone could have been injured or killed. He said "no-one in their right mind would reverse into a police car". He expressed remorse over his behaviour and keeps thinking "what have I done".
With the benefit of psychometric testing, Ms Duffy diagnosed the applicant as suffering from: 1. a stimulant use disorder of moderate severity; 2. an alcohol use disorder of moderate severity; and 3. post-traumatic stress disorder.
She concluded: [28] Since his arrest for the index offences, [the applicant] has been in a three-month residential rehabilitation program at Niagara Lodge, and has not resumed using substances. He acknowledged that he needs to address the underlying emotional issues related to his substance use disorder at the time of the offences and has expressed motivation to continue a rehabilitation program.

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant came to the attention of police when, as he was driving his vehicle approaching an intersection, he cut the corner without slowing down before picking up speed. Police activated the warning lights on their vehicle and followed the applicant, who initially slowed down before accelerating away. Police then deactivated their warning lights but continued to follow the applicant's vehicle from a distance. After a period of time, police again activated their warning lights, following which the applicant stopped in the middle of the road. The police stopped behind him. The police then saw the reversing lights on the applicant's vehicle become illuminated, at which point the applicant reversed into the front of the police vehicle, damaging its bonnet. The applicant then drove 50m forward before stopping again. The police followed him and stopped their vehicle about 20m behind. Approximately 15 seconds later, police again saw the reversing lights on the applicant's vehicle become illuminated, at which point he again reversed into the front of the police vehicle causing further damage, including the dislodgement of the registration plate. The applicant then drove towards a nearby intersection. The police followed him again. The applicant stopped his vehicle and, at that point, what the sentencing judge described as the "already familiar pattern" occurred again. The applicant reversed into the front of the police vehicle, causing further damage. The applicant then drove away and was again followed by police. Having travelled a distance of approximately 100m, he stopped again before doing a U-turn and driving in the direction of the police. Despite the police attempting to take evasive action, the applicant collided with their vehicle, causing the airbags to deploy and the vehicle to be immobilised. The applicant drove away and his vehicle was found abandoned the following day. He was arrested by police several days later. The applicant subsequently pleaded guilty in the District Court to an offence of using an offensive weapon with intent to prevent his lawful apprehension, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW) (the sequence 4 offence). When being sentenced for that offence, which carried a maximum penalty of 12 years imprisonment, the applicant asked the sentencing judge to take into account a further offence contained in a Form 1 of taking and driving a conveyance without the consent of the owner, contrary to s 154A(1)(a) of the same Act (the Form 1 offence) which carried a maximum penalty of 5 years imprisonment. There was a further offence contained in a certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) of driving whilst disqualified, contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW) which carried a maximum penalty of 12 months imprisonment and an automatic period of licence disqualification of 12 months (the sequence 2 offence). The sentencing judge gave the following indicative sentences: 1. the sequence 4 offence (taking into account the Form 1 offence) - 5 years imprisonment; and 2. the sequence 2 offence - 6 months imprisonment, with a period of licence disqualification of 12 months. The sentencing judge imposed an aggregate sentence of 5 years and 3 months imprisonment with a non-parole period of 3 years and 5 months imprisonment. The applicant sought leave to appeal against that sentence on the grounds that the sentencing Judge erred in: 1. double counting the fact that the sequence 4 offence was committed against police officers; and 2. assessing the objective seriousness of sequence 2 by taking into account the fact that the vehicle which was being driven at the time of the offending was stolen and was used to evade police. Held granting leave to appeal and dismissing the appeal: Ground 1 Per Bellew J (Meagher and Mitchelmore JJA agreeing): 1. In enacting s 33B of the Crimes Act 1900 (NSW), the Parliament did not intend to specifically protect the police. This had been recognised in a number of previous decisions of this Court: at [1], [8], [44]. R v Perez Court of Criminal Appeal (NSW) 11 December 1991 (unreported); R v Hamilton (1993) 66 A Crim R 575; R v Bazzi [1999] NSWCCA 346; Cotter v R [2020] NSWCCA 299; Sharpe v R [2006] NSWCCA 255 considered. 1. The power to apprehend or detain a person extends beyond police. The fact that a person can be lawfully apprehended or detained by a broad range of persons other than police officers is entirely inconsistent with the proposition that the intention of the Parliament in enacting s 33B was to protect only the police. The Parliament should be viewed as having intended to protect any person effecting the lawful apprehension or detention of an offender: at [1], [8], [51] - [52]. Sharpe v R [2006] NSWCCA 255 followed. 1. The conduct covered by s 33B is the use, by an offender, of an offensive weapon to avoid apprehension or detention. The characteristic that appertains generally to that conduct is the exercise of the power to apprehend or detain. The exercise of such power is not limited to police officers: at [1], [8], [56] Elyard v R [2006] NSWCCA 43 considered. 1. A factor which is an inherent characteristic of an offence for which an offender is being sentenced cannot be taken into account as an aggravating factor pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) unless its nature or extent in the particular case is unusual. The fact that the present offending involved police officers was not an inherent characteristic of the offence for which the applicant was being sentenced: at [1], [8], [57]. R v Yildiz [2006] NSWCCA 97; Mansour v R [2011] NSWCCA 28; Trejos v R [2017] NSWCCA 122 referred to; Cotter v R [2020] NSWCCA 299 explained. Ground 2 Per Bellew J: 1. Although not entirely clear, it appeared that the conclusion expressed by the sentencing judge incorporated a finding that the applicant's act of driving whilst disqualified (the sequence 2 offence) elevated the objective seriousness of the offence of using an offensive weapon with intent to avoid lawful apprehension (the sequence 4 offence). Notwithstanding that the applicant's offending arose from the one incident, the sentencing judge was required to fix an appropriate sentence for the offence of driving whilst disqualified (the sequence 2 offence), fix an appropriate sentence for the offence of using an offensive weapon to avoid apprehension (the sequence 4 offence), and then consider questions of cumulation, concurrence and of totality. What the sentencing judge did was sentence the applicant in respect of the sequence 4 offence on the basis that was aggravated by the sequence 2 offence. In doing so, the sentencing Judge engaged in a form of double punishment which was an error: at [68] - [69]. Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 referred to. Per Meagher JA: 1. There was a degree of ambiguity in the reasons of the sentencing Judge and two constructions of such reasons were open. On either construction, ground 2 was made out: [1]; [5] - [7]. Per Mitchelmore JA: 1. In construing the reasons of the sentencing judge, two possible conclusions were open. On either construction, the exercise of the sentencing discretion miscarried. In circumstances where the applicant was being sentenced separately for the sequence 2 offence and the sequence 4 offence, in accordance with the principle of totality, the sentencing judge erred in taking the conduct constituting one of the offences into account as elevating the objective seriousness of the other: at [14] - [15]. R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 referred to. Re-sentence Per Bellew J (Meagher and Mitchelmore JJA agreeing): 1. The offending in sequence 4 was obviously serious and involved several separate and distinct instances of the applicant "ramming" into the police vehicle, culminating in his actions of driving directly at that vehicle. The ultimate collision was of sufficient severity to immobilise the police vehicle and to cause the airbags within it to be deployed. The offending was aggravated by the fact that the victims were police officers, who were obviously put at risk by the applicant's conduct. There is a need to protect those who are lawfully apprehending or detaining offenders (in this case, the police). There was also a need for any sentence to incorporate considerations of general deterrence. Further, any sentence imposed for the sequence 4 offence was to be increased by virtue of the Form 1 offence: at [7], [17], [89]. Attorney-General's Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002; (2002) 56 NSWLR 146; [2002] NSWCCA 518; R v Hamilton (1993) 66 A Crim R 575; R v Perez Court of Criminal Appeal (NSW) 11 December 1991 (unreported) referred to. 1. The offending in sequence 2 was also serious. It involved the applicant driving a motor vehicle whilst disqualified, and thus in breach of an order made by a Magistrate that he not do so: [7], [17], [89]. 2. The applicant had expressed some remorse to a psychologist although he had not given evidence in his sentence proceedings. His pleas of guilty were some evidence of remorse and he was entitled to a discount of 25% to reflect the utilitarian value of those pleas: at [7], [17], [90]. 3. Whilst there were some positive signs in terms of the applicant's prospects of rehabilitation, those prospects necessarily depended, in large measure, on his continued abstinence from the use of illicit drugs. His prospects of rehabilitation were to be viewed as guarded, as was the likelihood of his re-offending: at [7], [17], [91]. 4. A finding of special circumstances was warranted so as to allow the applicant a longer period on parole in order to be given the opportunity to address ongoing issues arising from his drug addiction: at [7], [17], [92]. 5. Taking all factors into account, and in the fresh exercise of the sentencing discretion, no other sentence was warranted or should have been passed: at [7], [17], [93].

Judgment

MEAGHER JA: There are two grounds of appeal. The first should be dismissed for the reasons given by Bellew J. Ground 2 is directed to the sentencing judge's remarks extracted by Bellew J at [60] below. I read the last sentence of that paragraph differently from his Honour. At the same time I accept that the paragraph is capable of being understood otherwise than I consider it is to be read; and as it has been understood by Bellew J. On either view ground 2 is made out.
At the commencement of his remarks on sentence, the sentencing judge identifies the "principal" offence for which the offender was to be sentenced (using a vehicle as an offensive weapon to prevent his arrest), and the Form 1 offence (taking and driving a vehicle) to be taken into account in accordance with Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 in determining the appropriate penalty for that principal offence. His Honour also notes in that introductory paragraph that the offender is to be separately sentenced for a "related offence" (driving whilst disqualified) in accordance with the procedure in Criminal Procedure Act 1986 (NSW), s 166. Accordingly the offender was being sentenced for two offences, the principal or sequence 4 offence and the s 166 or sequence 2 offence.
The critical paragraph extracted at [60] below follows the sentencing judge's assessment of the objective seriousness of the principal offence. The heading of that paragraph indicates that it is seeking to deal with the Form 1 offence and the s 166 offence. The first two sentences take the circumstances of the Form 1 offence into account with respect to the sentence to be imposed for the principal offence. His Honour does so by finding that the offender's stealing augments the considerations of specific deterrence and retribution otherwise to be taken into account in respect of the sequence 4 offence. None of that is controversial. See Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22].
Focussing then on the last three sentences of the paragraph, the first acknowledges the offender's guilty plea to the s 166 offence. The second, ignoring for the moment the words in parentheses, notes that at the time that offence was committed the offender was both driving a stolen vehicle (the Form 1 offence) and using it to evade arrest (the sequence 4 offence). The words in parentheses correctly record that the Form 1 offence is to be taken into account when sentencing for the sequence 4 offence.
The principal ambiguity arises in the last of the sentences and its two uses of the demonstrative pronoun "this". The second use, referring to the "kind" of offence being addressed, having regard to the paragraph heading and structure, makes the most sense if it is taken to refer to the s 166 offence. The first "this" undoubtedly refers to something mentioned in the previous sentence which might be thought capable of elevating the objective seriousness of the driving whilst disqualified offence. It is not patently clear whether it is referring to the fact that the offender was driving a stolen vehicle and using it to evade arrest or only the latter, the former having already been "factored" or taken into account in sentencing for the principal offence. The better view, taking account of the use of the word "however", suggests that in relation to the first "this" the antecedent reference is to the offender's conduct in using the vehicle "to evade arrest".
Adopting that reading, it follows that the sentencing judge erred in taking into account the sequence 4 offending when assessing the objective seriousness of the sequence 2 offending.
For that reason, ground 2 as formulated by the applicant is made out with the consequence that it is necessary for this Court to re-sentence in a fresh exercise of the sentencing discretion. In that respect I agree with Bellew J's reasons in the exercise of that discretion for concluding that this is not a case in which any other sentence was warranted or should have been passed.
MITCHELMORE JA: I have had the benefit of reading in draft the comprehensive reasons for judgment of Bellew J. I agree with his Honour as to Ground 1. I also agree with his Honour's conclusion that the sentencing judge erred on Ground 2, and wish to make some brief additional comments. What follows assumes familiarity with his Honour's reasons.
The subject of Ground 2 was the sequence 2 offence of driving while disqualified contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW); that offence was the subject of a certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The applicant alleged that the sentencing judge erred in assessing the objective seriousness of sequence 2 by taking into account the fact that the vehicle he was driving was stolen (a separate offence taken into account on a Form 1 for the sequence 4 offence) and was used to evade police (a further offence, being sequence 4).
In Mulato v R [2006] NSWCCA 282, Simpson J made the following observations which are pertinent to consideration of Ground 2: "[46] The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance. [47] One consequence of this (which might aptly be termed a separation of powers) is the need for first instance judges to make clear findings of fact, and clear evaluations of such matters as objective seriousness. Absence of clarity in such findings may result in the need for the appellate court to undertake the task itself."
The sentencing judge's assessment of the objective seriousness of the sequence 2 offence was brief: "Form 1 offence and s 166 offence [The applicant] accepts that he was aware that he stole the vehicle. I find that [the applicant's] stealing of the car augments the considerations of specific deterrence and retribution, ordinarily taken into account for an offence of this kind, on the principal offence. In relation to the s 166 offence, [the applicant] also recognised that he was disqualified when he drove the car. The Court notes that [the applicant] was driving a stolen vehicle (that, however, is factored into the form 1 offence and indirectly in the principal offence) and was using it to evade arrest. I accept that this elevates the objective seriousness of this kind of offence." [Emphasis added.]
As Bellew J explains, there is no issue with the reasoning in the above passage until the second-last sentence. In that sentence, which is the first that I have emphasised above, his Honour "noted" the context in which the applicant committed the sequence 2 offence: he was driving a stolen vehicle (the Form 1 offence) and he was "using it", being the stolen vehicle, to evade arrest (the sequence 4 offence). If that sentence were no more than a "note" it would not be problematic, but it is plainly intended to be read with the following sentence. Read together, those two sentences are capable of bearing two meanings, each of which is indicative of error.
The ambiguity arises from the use of the word "this" in two places in the last sentence, both of which I have underlined above. The first "this", at the start of the sentence, can only sensibly be a reference to the content of the previous sentence. What is not clear is whether his Honour intended the "this" to pick up all of the conduct in that sentence, or only the conduct described after the parentheses. The second "this" raises a further ambiguity, as to which of the offences his Honour intended to describe as "this kind of offence".
Bellew J has set out below his reasons for reaching the conclusion that the last sentence should be construed as incorporating a finding that the applicant's act of driving whilst disqualified (the sequence 2 offence) elevated the objective seriousness of the offence of using an offensive weapon with intent to avoid lawful apprehension (the sequence 4 offence). The alternative reading of the last sentence is that it constitutes a finding that the applicant's use of the vehicle to evade arrest (the sequence 4 offence) elevated the objective seriousness of the drive whilst disqualified offence (the sequence 2 offence). This alternative reading, which is the basis on which the applicant formulated Ground 2, draws some support from the subject matter of the paragraph, which is the objective seriousness of the Form 1 offence and the sequence 2 offence.
On either of the two readings to which I have just referred, even making all due allowance for the ex tempore nature of the sentencing remarks (as to which see [66] of Bellew J's reasons below), the exercise of the sentencing discretion miscarried. In circumstances where the applicant was being sentenced separately for the sequence 2 offence and the sequence 4 offence (in accordance, of course, with the principle of totality), his Honour erred in taking the conduct constituting one of the offences into account as elevating the objective seriousness of the other: R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 at [28] per Howie J (Grove J and Hall J agreeing).
Unless the parenthetical comment is construed as neutralising any reliance on the Form 1 offence to elevate objective seriousness, on the alternative construction that I have identified above his Honour likely made a further error. On that construction, his Honour would have taken the Form 1 offence into account to elevate the objective seriousness of the sequence 2 offence, to which the Form 1 offence did not attach. In light of the error already identified, which itself calls for re-sentence, it is not necessary to consider this further.
I agree with the careful re-sentencing exercise that Bellew J has undertaken, and with the orders his Honour proposes.
BELLEW J: Jack Courtney (the applicant) pleaded guilty in the District Court to an offence of using an offensive weapon with intent to prevent his lawful apprehension ("the sequence 4 offence"), contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW) ("the Act"). When being sentenced for that offence, which carries a maximum penalty of 12 years imprisonment, the applicant asked the sentencing judge to take into account a further offence contained in a Form 1 ("the Form 1 offence") of taking and driving a conveyance without the consent of the owner, contrary to s 154A(1)(a) the Act. The Form 1 offence carries a maximum penalty of 5 years imprisonment.
There was a further offence contained in a certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) of driving whilst disqualified, contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW) ("the sequence 2 offence"). The sequence 2 offence carries a maximum penalty of 12 months imprisonment, and an automatic period of licence disqualification of 12 months.
The sentencing judge gave the following indicative sentences: 1. the sequence 4 offence (taking into account the Form 1 offence) - 5 years imprisonment; and 2. the sequence 2 offence - 6 months imprisonment, with a period of licence disqualification of 12 months.
The sentencing judge imposed an aggregate sentence of 5 years and 3 months imprisonment commencing on 22 December 2020 and expiring on 21 March 2026, with a non-parole period of 3 years and 5 months imprisonment commencing on 22 December 2020 and expiring on 21 May 2024.
The applicant now seeks leave to appeal against that sentence on the grounds considered and discussed below.

Courtney v R

At a glance

Court

Decision date

Before

Source

Judgment (4 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (19)

Cited By (3)