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].