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BAKER J: Introduction

1. On 5 December 2022, I found the offender, Cristy Holder, guilty of the following charges which proceeded by way of judge-alone trial: (a) Count 1 (CC 2021/7408): Aggravated dangerous driving, contrary to ss 7 and 7A of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (“RTSMA”) (first offender). The maximum penalty for this offence is 3 years’ imprisonment and/or 300 penalty units: s 7(1)(a) of the RTSMA. This offence also attracts an automatic licence disqualification for 12 months or a longer period ordered by the Court: ss 63(1)(f) and 63(4) of the Road Transport (General) Act 1999 (ACT) (“RTGA”)). (b) Count 2 (CC 2021/7410): Aggravated dangerous driving, contrary to s 7 and 7A of the RTSMA (repeat offender). The maximum penalty for this offence is 5 years’ imprisonment and/or 500 penalty units: s 7(1)(b) of the RTSMA. This offence attracts an automatic licence disqualification for 12 months or a longer period ordered by the Court: s 63(2)(b) of the RTGA. (c) Count 3 (CC 2021/7409): Drive motor vehicle at police, contrary to s 29A of the Crimes Act 1900 (ACT). This offence carries a maximum penalty of 15 years’ imprisonment.

2. There is also a transferred charge from the Magistrates Court of driving while disqualified (CC 7411/2021) contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (“RTDLA”). This charge was amended at the sentence proceeding on the application of the prosecutor and with the consent of the offender to replace ‘repeat’ offender with ‘first’ offender. The maximum penalty for this offence is 6 months’ imprisonment, or 50 penalty units, or both. This offence also attracts an automatic licence disqualification period of 12 months or a longer period ordered by the Court: s 32(5)(a) of the RTDLA.

3. The offender is now to be sentenced for these offences.

Facts

4. The offending is set out in full in my judgment in Director of Public Prosecutions v Holder [2022] ACTSC 336. In brief, the circumstances of the offending were as follows.

5. Shortly before midnight on 22 May 2021, Senior Constable Robens, an on-duty police motorcyclist, observed a Mazda 3 sedan travelling at speed in a residential area. I found that the offender was the driver of this vehicle: Director of Public Prosecutions v Holder at [140].

6. Senior Constable Robens activated his emergency lights so as to direct the offender to pull over. The offender did not stop and instead accelerated away from the officer. Over the ensuing ten or so minutes, the offender drove at speeds approaching 180 km/hr, at times without headlights on, through red lights, and on the wrong side of a major road against oncoming traffic, before ultimately crashing into a roundabout guardrail near Isabella Pond in Monash. The offender almost collided with multiple police and civilian vehicles throughout the course of the offending, and would have done so had those vehicles not taken urgent evasive action.

7. The specific counts on the indictment relate to the following conduct: Count 1 (aggravated dangerous driving – first offender): After the offender accelerated away from Senior Constable Robens, the offender approached a set of traffic lights which were red. The offender accelerated through the red lights and continued driving. Count 2 (aggravated dangerous driving – repeat offender): The offender approached a roundabout intersection at speed and spun out before continuing to accelerate. Senior Constable Robens next observed the vehicle driving with no lights on towards Drakeford Drive, and then towards him on a residential street, travelling at about 80 km/h in a 50 km/h residential zone. Senior Constable Robens had to take urgent evasive action to avoid a collision. Shortly after, Senior Constable Robens observed the offender travelling in a northerly direction on Drakeford Drive in the southbound lanes, counter to the flow of traffic. At this point the offender continued to drive towards Acting Patrol Sergeant Fergusson who was in a vehicle facing the offender with emergency lights flashing. Acting Patrol Sergeant Fergusson was required to quickly manoeuvre out of the way (this conduct constitutes Count 3, which is summarised below). The offender then continued to drive through a roundabout and down the road at speed and counter to traffic causing several drivers to veer off the road to avoid collision. The offender then entered the roundabout at Drakeford Drive and Isabella Drive at speed where she lost control of the vehicle. Count 3 (drive motor vehicle at police): Acting Patrol Sergeant Fergusson had positioned his police vehicle at the intersection of Drakeford Drive so as to prevent southbound traffic from entering the roundabout. The offender travelled towards Acting Patrol Sergeant Fergusson in a northerly direction from the southbound lanes, against the flow of traffic. Acting Patrol Sergeant Fergusson angled his police vehicle 90 degrees to face the oncoming vehicle and block the offender from driving any further. When he realised the offender was not going to stop, Acting Patrol Sergeant Fergusson turned his car onto the median strip to avoid a head-on collision. The transferred charge of driving while disqualified relates to the offender driving the vehicle throughout the duration of the offending, at a time when her driver’s licence was disqualified.

8. Acting Patrol Sergeant Fergusson and Senior Constable Robens separately followed the offender’s vehicle. They noticed several vehicles pulled over on Drakeford Drive. Various civilian witnesses informed police that they had been forced to drive off the road to avoid a head-on collision. Many of the drivers were shaken and at least one driver was in tears.

9. Minutes later, the offender crashed the vehicle at a roundabout barrier near the embankment of Isabella Pond. When police arrived at the scene, the offender was nowhere to be seen. The offender’s purse, identification card and phone were located on the front passenger seat of the vehicle. A pair of pink slippers were located in the footwell of the driver’s seat, “wedged” behind the pedals. Investigating police canvassed the area surrounding the pond for the next hour, but could not locate the driver of the vehicle.

10. About an hour after the collision, two residents of a nearby apartment complex were woken up by a knock on the door. One of the residents opened the door to the offender, who was dripping wet and wearing pyjama-like clothes, with no shoes on. The offender did not have a bag, wallet or phone. The offender told the residents that she was wet from the sprinklers, as she had been hiding in a flower bed. The offender also told the residents that she had been assaulted by her partner who lived in the same apartment complex. At trial, the offender accepted that each of these statements were false.

11. Police were subsequently called to the apartment complex. When police arrived, the offender demanded that the two residents not open the door. The residents let the officers in. They had a conversation with the offender. The offender was then cautioned and arrested.

Victim Impact Statements

12. The Court received two Victim Impact Statements from the two police officers involved in the pursuit of the offender; Acting Patrol Sergeant Fergusson and Senior Constable Robens.

13. In his Victim Impact Statement, Acting Patrol Sergeant Fergusson (the officer whom the offender drove directly at during the commission of Count 3) said that although “this incident didn’t injure me and didn’t cause me ongoing anguish”, at the time, he was “greatly concerned… not only for [his] safety, but about the safety of civilians”.

14. In his Victim Impact Statement, Senior Constable Robens (the police motorcyclist) described the offender as coming “within meters of hitting me”. He spoke about the impact of the offence on himself and his family, in particular, their concern about the “accumulating risk” inherent in his work as a police motorcyclist.

Subjective circumstances

Family background and schooling

15. The offender is presently 40 years old. She was 38 years old at the time of offending.

16. The offender grew up in Cootamundra, NSW. Her parents separated when she was 16 years old. Following the separation, she moved to Canberra with her mother and siblings.

17. The offender had a turbulent relationship with her mother. The offender was “locked out of the house” and lived in her mother’s shed until she was permanently forced out of home when she was 16 or 17 years old.

18. It is unclear when the offender stopped attending school, however, she did not complete her Year 12 certificate. Relationships

19. The offender described multiple relationships where she was the victim of domestic violence. In particular, the offender’s relationships with the two fathers of her eldest children were each marred by physical, verbal and emotional abuse.

20. As a result of the offender’s relationship with the father of her second child, the offender’s mother made a complaint to child protection, which resulted in the removal of the offender’s children. The offender described significant violence in this relationship, including an occasion when her partner had broken her nose and occasions when the offender’s partner physically abused her eldest child in front of her. The offender explained that “she was asked to charge [the offender] with DV offences to avoid losing her children”, but that she refused to do so because she thought “he would kill [me]”. Following the removal of her children, the offender’s mental health deteriorated and she spiralled into drug addiction.

Alcohol and Drug Use

21. The offender has an extensive history of illicit substance use, starting when her mother told her to leave the family home at 16 or 17 years of age. At this time, the offender moved in with a friend, where she started using illicit substances.

22. The offender has used methamphetamine, amphetamines and heroin, and describes herself as previously having a “heavy heroin addiction”.

23. In 2018, whilst in custody at Long Bay Correctional Centre, the offender stopped using drugs and started a methadone program. The offender did so because a painful and serious abscess was found in her vertebrae, likely caused by her history of injecting heroin.

24. The offender disclosed one relapse on methamphetamine and one relapse on heroin, both occurring in January 2021. The offender said that these were isolated events and that she has engaged with support services to prevent it from happening again.

25. The offender stated that she has not used any illicit substances since this time. Urinalysis to verify this statement was not completed (at no fault of the offender). However, the offender produced five negative urinalysis tests during her previous supervision by ACT Corrective Services between January 2021 and October 2022. There was further evidence provided to the Court which confirmed that the offender was compliant with urinalysis, namely a letter from a clinical nurse specialist in the Opioid Treatment Program at NSW Health, which confirmed that the offender “is compliant in attending urine drug screens”.

26. Two letters were also received from Tina Dowse, an Alcohol and Drug Practitioner at Directions Health Services ACT. In the first letter, Ms Dowse wrote that the offender regularly attends counselling and is “a motivated, engaged and committed participant in her recovery from past substance use”. Ms Dowse added that the offender’s commitment to her drug rehabilitation is “impressive… she is an active driver in her recovery from past substance use and is noted to reach out for additional support when needed”. In her second letter, dated 21 April 2023, Ms Dowse confirmed that the offender had engaged in 25 counselling sessions with her.

27. The Court also received evidence of the offender’s participation and engagement with the We Help Ourselves Service, an alcohol and drug service which provides counselling and treatment to people with a history of substance abuse.

The offender’s children

28. The offender has two children, 14 and 19 years of age, who are both currently in the custody of her mother.

29. In September 2021 (4 months after the present offending), the offender fell pregnant with a third child. This child, Ziggy, was born on 7 April 2022. Ziggy died of Sudden Infant Death Syndrome (SIDS) on 8 August 2022, when he was four months old.

30. In a letter to the Court, the offender described the “nightmare” of finding Ziggy unconscious and not breathing on the morning of 8 August 2022. As discussed further below, Ziggy’s death has had a profound impact upon the offender.

31. Prior to, and in response to, Ziggy’s death, the offender has reached out to a number of organisations for support, including Winnunga Nimmintyjah Aboriginal Health and Community Services, Perinatal Wellbeing Centre, New South Wales Health, Grand Pacific Health, Red Nose ACT, and ACT Directions. The treatment that the offender is receiving from these bodies is also discussed further below.

Mental Health

32. The offender’s counsel tendered a report of Ms Rita Sosich, psychologist dated 16 March 2023.

33. In that report, Ms Sosich records that she is of the opinion that the offender meets the criteria for a diagnosis of Major Depressive Disorder, and Post-Traumatic Stress Disorder (“PTSD”), precipitated by the death of her son Ziggy. Ms Sosich also noted that the offender met some of the criteria for acute stress disorder, Bipolar, and Borderline Personality Disorder.

34. Ms Sosich considered that it was “not clear” whether the offender’s mental illnesses pre-existed the commission of the present offences. In particular, Ms Sosich noted that “there were disruptions to [the offender’s] developmental phase likely leaving her vulnerable to mental health and conduct problems which became evident later in life”. Ms Sosich referred to the offender’s domestic violence and the offender’s loss of custody of her eldest children as “exacerbating her mental health and substance abuse issues”. She noted that the offender reported a suicide attempt at this time.

35. Ms Sosich considered that incarceration would have an adverse effect on the offender, explaining the offender would not be able to access the same level of support in custody as in the community, in particular from providers who are “specifically geared” for parents experiencing a Sudden Infant Death.

36. In this respect, Ms Sosich noted the letter of support from Grand Pacific Health, which expresses a concern that if the offender is not able to continue with her current counsellor at Red Nose ACT, her mental health may “decline dramatically and she could even be at risk of self-harm or suicide”. Ms Sosich expressed a similar concern that incarceration may hinder the offender’s recovery, such that she may continue to “experience unmitigated grief and loss and associated mental health symptoms which reduce her capacity to function adequately and manage the stressors of custody.”

37. Ms Sosich also considered that as a result of her grief, the offender will be “unlikely to muster the requisite level of confidence, emotional control, cognitive agility, and interaction abilities, to have a safe and event free experience whilst incarcerated”. In view of the offender’s prior suicide attempt, Ms Sosich recommended that if the offender were incarcerated, she be vigilantly monitored for self-harm and suicidal ideation.

Criminal History

38. The offender has a criminal history in both the ACT and NSW.

39. In the ACT, the offender’s criminal history includes offences of minor theft, obtaining property by deception, destruction of property, driving offences, and failing to appear. The offender has received a range of sentences, including good behaviour orders, suspended sentences, a short Intensive Correction Order (“ICO”), and full-time detention.

40. The offender’s criminal history in NSW echoes that in the ACT and is comprised mostly of drug, dishonesty and driving offences, including failures to appear. The offender’s NSW criminal history also has entries of common assault, stalking, contravening an apprehended violence order, and aggravated break and enter. In NSW she has also received a range of sentences, including custodial and non-custodial sentences.

41. In contrast to her previous criminal history, which included failures to appear, and even though a bail order was never sought, the offender has attended court on every occasion pursuant to the summons issued in the present case. This is a further indication of the offender’s commitment to her rehabilitation. Sentencing Considerations

The nature and circumstances of the offences Counts 1 and 2 (aggravated dangerous driving)

42. The prosecutor referred to R v Rosewarne [2021] ACTSC 217 and R v Law [2021] ACTSC 351, two cases which provide guidance on factors that inform the objective seriousness of offences of aggravated dangerous driving.

43. In assessing the nature and circumstances of the driving the subject of Count 1 (the first instance of dangerous driving), I have taken into account the following matters: (a) The duration of the offending in respect of this count, namely, a proportion of the 10 minutes of driving which is the subject of Counts 1 and 2; (b) The offender was driving at an “exceptionally high speed”, more than double the speed limit. The manner of her driving was particularly dangerous, including travelling through red lights at this speed; (c) The offender failed to stop when directed by a police officer; (d) Whilst the streets in which the first part of the offending occurred were in a residential area, as the prosecution accepted, there is “no evidence that any person was placed in actual risk” (the position is, of course, different in respect of the second instance of dangerous driving and the offence of drive at police, each of which are addressed below); and (e) There is no evidence the offender was intoxicated or otherwise affected by drugs. There were no passengers in the car. The driving did not involve competitive racing.

44. At the time of driving, the offender was a disqualified driver. I am satisfied beyond reasonable doubt that the offender drove as she did to avoid the consequences of driving whilst disqualified.

45. In assessing the nature and circumstances of Count 2 (the second aggravated dangerous driving offence), I have taken into account the following matters: (a) The duration of the driving, namely, a proportion of the 10 minutes of driving which is the subject of Counts 1 and 2; (b) The offender drove at a speed approaching 180 km/h, and at night without headlights; (c) As the prosecutor submitted, the fact the offender drove against oncoming traffic on a major road amplified the risk posed to the public; (d) Senior Constable Robens and at least three civilians had to take evasive actions to ensure their vehicles did not collide with the offender’s and at least eight people were put in danger. As a motorcyclist, Senior Constable Robens was a vulnerable road user; (e) Part of the conduct occurred in a residential area; (f) The offender did not stop when directed to by Senior Constable Robens and further did not voluntarily stop driving dangerously but only stopped because she collided with a guard rail; and (g) As with Count 1, the driving did not involve any competitive racing. There were no passengers put at risk.

46. In view of the above, particularly the matters set out at (c), (d) and (e), I am of the view that this offending was more serious than the offending that is the subject of Count 1.

47. Noting the principle set out in R v De Simoni [1981] HCA 31; 147 CLR 383, I have not sentenced the offender on the basis that she intended to harm Senior Constable Robens or was reckless as to Senior Constable Robens’ safety. However, as the prosecutor submitted, the absence of such an intention does not reduce the objective seriousness of this offence.

The overlap between Counts 1 and 2

48. The offender’s counsel submitted that the offender’s dangerous driving occurred over one continuous period which has “artificially” been split into Count 1 and Count 2, meaning the offender is subjected to a more onerous maximum penalty for Count 2 as a ‘repeat offender’.

49. The prosecutor accepted there was a degree of artificiality between the two counts (noting that this artificiality may have been a consequence of the matter having proceeded to trial), but submitted that the Court is nevertheless bound by the maximum penalty and is required to impose a sentence accordingly.

50. I accept the prosecutor’s submission that the Court is bound by the maximum penalty for Count 2. However, the acknowledged “artificiality” in dividing what was, in substance, one continuous course of conduct is a matter that must be taken into account both in assessing questions of totality (which are addressed below), and also in assessing the objective seriousness of Count 2. In particular, where, as here, the ‘repeat’ offence is simply the continuation of driving that constitutes an earlier offence, the objective seriousness of the later offence will not be as serious as when the two offences are separated in time. Count 3 (drive at police officer)

51. The prosecutor referred to R v Seymour [2021] ACTSC 152 at [34] and [36]-[37], which sets out a number of factors relevant to the assessment of the objective seriousness of driving at police, contrary to s 29A of the Crimes Act.

52. In assessing the nature and circumstances of the offending conduct that is the subject of Count 3, I have taken into account that the offender was intending to avoid the consequences of driving whilst disqualified, that she drove directly at the officer, above the speed limit, and that the offender would have caused a head-on collision had the officer not taken evasive action. There were no injuries or other damage caused by the offender’s conduct. I have taken into account the high risk to the officer that was posed by the offender’s conduct.

53. I note that there is no bodyworn footage showing this incident. In the absence of such footage, I am not satisfied beyond reasonable doubt that the offender intended to harm Senior Constable Fergusson. Rather, from the description of the driving given by Senior Constable Fergusson, it appears that the offender was acting with an intention of evading police, and that she was reckless about risking the police officer’s safety by that conduct.

Mental illness and Verdins considerations

54. As outlined above, the offender has been diagnosed with a number of mental illnesses, including Major Depressive Disorder and PTSD. These conditions have arisen, or, at least, have been significantly exacerbated by the loss of her son Ziggy.

55. The offender’s counsel does not submit that the offender’s judgment was impaired as a result of these mental illnesses at the time of the offending. I do not consider that the offender’s moral culpability for the offences is reduced by her present mental illnesses: R v Verdins [2007] VSCA 102; 16 VR 269 at [32(1)]. Nor do I consider that there should be any significant moderation of the need for general deterrence: R v Verdins at [32(3)]. However, in view of the offender’s demonstrated commitment to rehabilitation, I am satisfied that there should be some moderation of the need for specific deterrence.

56. I am also satisfied that the offender’s mental illnesses, in particular, her depression and PTSD, are relevant to the form of sentence that should be imposed: R v Verdins at [32(2)]. I am also satisfied that the offender’s conditions are such that any sentence of full-time imprisonment would weigh more heavily on the offender than it would on a person in normal health: R v Verdins at [32(5)].

57. In view of the evidence of Ms Sosich, I am satisfied that there is a serious risk that imprisonment will have a significant adverse effect on the offender’s mental health: R v Verdins at [32(6)]. In particular, whilst I have taken into account a letter from Corrective Services that states that some treatment (including counselling and medication) would be available to the offender in custody, the evidence before me indicates that an important component of the success of the offender’s current treatment is the relationship she has with her existing grief counsellor, a specialist in SIDS. This treatment would be disrupted by any period of full-time incarceration. In view of the precarious nature of the offender’s current mental state, I consider that any such disruption will have a significant effect on her mental health.

Remorse and rehabilitation

58. The offender has lodged an appeal against her conviction. She has no demonstrated remorse.

59. Remorse (or its absence) will often be an important consideration in assessing an offender’s prospects of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. This is because a recognition of the harm caused by offending will often be the first step in an offender choosing not to engage in similar conduct again in the future. For this reason, claims that an offender has good prospects of rehabilitation may be met with some scepticism in the absence of evidence of remorse. However, it is established that “there can be rehabilitation without confession”: Alseedi v R [2009] NSWCCA 185 at [65]. In particular, where there is demonstrated evidence that an offender has embarked upon a course of rehabilitation prior to sentence, the absence of remorse may not be a central consideration in determining the offender’s prospects of rehabilitation.

60. In the present case, despite the lack of remorse for her offending, there is considerable evidence of the offender’s rehabilitation.

61. A number of documents were tendered on behalf of the offender from various organisations the offender has proactively engaged with, including Winnunga Nimmintyjah Aboriginal Health and Community Services, Perinatal Wellbeing Centre, NSW Health, Grand Pacific Health, Red Nose ACT, and ACT Directions. All speak in extremely positive terms about the offender’s commitment to rehabilitation and her active pursuit in seeking support.

62. For example, Ms Bronwyn McClure, a Family Partnership Worker at Winnunga Nimmintyjah Aboriginal Health and Community Services, provided a letter to the Court explaining the engagement the offender had with their organisation throughout her pregnancy and parenthood with Ziggy. Ms McClure stated the offender had a “willingness to learn…ask questions and remains open to growth, takes initiative to make changes in her life and… remains committed to improving herself for her family”.

63. The Pre-Sentence Report author also expressed very positive views concerning the offender’s prospects of rehabilitation. The author stated: [The offender has] made a considerable effort to change her lifestyle after becoming pregnant. To her credit she appears to have maintained her sobriety despite the subsequent death of her son. The offences now before the Court are dated 22 May 2021, and indicate that [the offender] has not offended since making the positive changes in her life… taking into consideration those changes and the continued support she receives from a number of agencies, it would appear [the offender] has made a commitment to her remaining children to stay drug free and become more pro-social within the community.

64. There were also two personal character references tendered on behalf of the offender. The first was a joint letter authored by friends of the offender who have known her for over 20 years. The authors noted that the death of Ziggy has caused the offender significant pain and grief, however they stated that the offender “remains on the right path and she’s done it without anyone pushing her or making her – she has done it all on her own”. They emphasised that over the past two years, the offender “has changed beyond recognition”.

65. The second personal character reference was written by the offender’s cousin. He also spoke of the offender’s difficult life, and how in the past two years she “turned her whole life around”. The offender’s cousin observed that, even after the loss of Ziggy, “she remains stable and has continued to reach out when she needs help, again this is something she has never done”. He described the offender’s “dramatic changes” in her life and states that she is now “110% completely opposite to the old [her]”.

66. Finally, the offender wrote a letter to the Court, and directly addressed the Court orally following her counsel’s submissions. The offender showed insight into her criminal history and the impact her criminality and periods of incarceration have had on herself and others, including losing custody of her children and having family members pass away while she was in custody. The offender also spoke about her distress concerning the loss of her son Ziggy, and her resolve to continue to live a law-abiding life in order to honour his memory.

Current sentencing practice

67. I am required to have regard to current sentencing practice: s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT). The prosecutor provided a table of comparative cases for the offences of drive at police and of aggravated dangerous driving, which referred to the sentences imposed in R v Seymour [2021] ACTSC 152; R v Crawford (a pseudonym) [2022] ACTSC 166; R v Williams [2017] ACTSC 298; R v Goolagong (No 2) [2021] ACTSC 131; R v Collins [2019] ACTSC 302; R v Rosewarne [2021] ACTSC 217; R v Law [2021] ACTSC 351; Mann v Tremethick (No 2) [2023] ACTSC 31; 103 MVR 367 and R v Guy [2022] ACTSC 373.

68. I have carefully considered the sentences imposed in those cases, which include sentences ranging from the imposition of alternatives to full time imprisonment (see, for example, R v Crawford, in which an ICO was imposed in respect of serious offending that occurred over a two day period) through to sentences of full-time imprisonment.

69. However, as the prosecutor submitted, “some caution needs to be exercised regarding the use of previous sentences.” In particular, I bear in mind that current sentencing practices do not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 (at [51]- [53]). I also bear in mind that the offence of aggravated dangerous driving is capable of being disposed summarily in the Magistrates Court, where written decisions are typically not published.

Consideration

70. There is no dispute that the s 10 threshold is crossed (s 10(2) of the Crimes (Sentencing) Act). The offender’s conduct could readily have resulted in the death or serious injury of any one of the drivers whose paths she crossed that evening. Although such catastrophic consequences fortunately did not result, her actions caused emotional distress to a number of those drivers.

71. The offence of driving at a police officer is particularly serious. This offence was enacted to protect police officers, who “carry out difficult work… often dealing with challenging behaviour of members of the public, and yet their work is for the benefit, safety and welfare of the entire community”: R v Seymour at [35]. The need to protect the community (particularly police officers) is a critical consideration in imposing sentences in respect of these offences. As Senior Constable Robens described in his Victim Impact Statement, offences of this nature pose a “cumulative risk” to the officers who are exposed to such conduct. Such offences also occasion significant distress, including to the family members and friends of the officers concerned.

72. Dangerous driving offences are, regrettably, not rare. As the prosecutor submitted, there is a strong need for general deterrence, specific deterrence, denunciation and punishment.

73. However, in the present case, weighing against these considerations, is a powerful case of rehabilitation, which is robust, sustainable, and undertaken for an extremely compelling reason. As the offender’s counsel submitted, since the offender became pregnant with her son Ziggy, she has taken significant, proactive steps towards rehabilitation in every aspect of her life. Notwithstanding the profound grief that she suffered when Ziggy passed away at four months of age, she has not faltered on this path. Indeed, Ziggy’s death has fortified the offender’s resolve to continue her rehabilitation.

74. In the absence of this powerful case of rehabilitation, there would, in my view, be no question that the offender would be required to serve a period of full-time imprisonment. However, I consider that the rehabilitation that the offender has embarked upon justifies the imposition of an exceptional sentence in the present case.

75. I will impose a sentence of imprisonment for the offending in Counts 1 to 3, but order that those sentences be served by way of an Intensive Corrections Order (“ICO”). As McCallum CJ recently explained in Director of Public Prosecutions v Earle [2023] ACTSC 93 at [60], the benefit to the community of such a sentence is in reducing the risk of recidivism. An ICO is “designed to be punitive whilst still allowing the courts to incorporate elements of rehabilitation”: Wyper v The Queen; R v Wyper [2017] ACTCA 59 at [128], citing the Explanatory Statement to the Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT). This consideration has particular resonance in the present case.

76. Whilst there is evidence that there is some support available to offenders who are suffering from mental illnesses in custody, I am satisfied that the offender will not have access in custody to the extensive support that she has in the community. In particular, she would not have access to the specialised perinatal and SIDS support services that she currently receives to address her bereavement, grief and trauma surrounding the death of her son, along with her associated long-standing mental health issues. I am satisfied that the removal of these supports tailored at addressing her grief and trauma at this critical time, along with the somewhat limited mental health support available to her in custody, would hinder the substantial progress that she has made towards her rehabilitation to date.

77. The protection of the community is an important consideration in offences of this nature. Protection of the community and rehabilitation are not binary objectives of the sentencing process: R v Bouggas [2015] NSWSC 914 at [21] (per McCallum J, as her Honour then was). In the present circumstances, promotion of the offender’s rehabilitation will best ensure that the community is protected: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32] per French CJ (“Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection”).

78. Having regard to the seriousness of the offence, I will impose a sentence for the offence of driving at police of imprisonment for a period of two and a half years. The sentences that I will order for the dangerous driving offences will be for periods of six months and nine months respectively. The sentences for the two dangerous driving offences will be concurrent, recognising that these offences were part of a single course of driving. As the offence of drive at police involved different acts of criminality, the sentence for that offence will be partially cumulative. The total sentence will be one of three years imprisonment, which I will order be served by way of intensive correction in the community, and will include a requirement for the offender to undertake grief counselling.

79. I have had regard to s 11(3) of the Crimes (Sentencing) Act, which provides that, if a sentence of imprisonment is imposed for more than two years, but not more than four years, an ICO may be made only if the Court considers it is appropriate to do so, having regard to: (a) The level of harm to the victim and the community caused by the offence; (b) Whether the offender poses a risk to particular people or the community; and (c) The offender’s culpability for the offence having regard to all the circumstances.

80. In regard to the first factor, whilst no injuries were inflicted as a result of the offending, the potential for the infliction of serious harm, or death, was high. I have taken into account these matters and the fact that the offender’s conduct resulted in emotional distress to the police and civilians who were exposed to the offender’s driving, as well as to their families.

81. As to the third factor, as outlined above, I am not satisfied beyond reasonable doubt that the offender intended to injure Acting Patrol Sergeant Fergusson. However, I am satisfied that she engaged in the relevant offending to avoid apprehension for driving whilst disqualified and for engaging in the dangerous driving that immediately preceded this offence. The offender’s conduct could have resulted in death or serious injury to Acting Patrol Sergeant Fergusson, who was acting to protect the community from the offender’s dangerous driving. Her driving in respect of all three offences posed a significant risk to police and civilians. I have taken each of these matters into account.

82. It is the second factor which, in my view, weighs heavily in favour of an ICO in the present case. In view of her demonstrated commitment to rehabilitation, particularly through a period of immense grief, I am satisfied that the offender will not pose a risk to the community if she is released on an ICO. Indeed, I consider that the community will be better protected in the longer term by the supervision of the offender on an ICO than if the offender’s demonstrated rehabilitation were disrupted and potentially undermined by the imposition of a term of full-time imprisonment.

Disqualification

83. The offender is not presently serving an existing term of disqualification.

84. As a result of her convictions, the offender is exposed to the following automatic disqualification periods: (i) Aggravated dangerous drive (first offender) – an automatic disqualification period of 12 months (or longer if the Court so orders): s 63(4) of the RTGA; (ii) Aggravated dangerous drive (repeat offender) – an automatic disqualification period of 12 months (or longer if the Court so orders): s 63(4) of the RTGA; and (iii) Disqualified drive (first offender) – an automatic disqualification period of 12 months (or longer if the Court so orders): s 32(5)(a) of the RTDLA.

85. There is no automatic disqualification period that arises from the offender’s conviction for the offence of drive at police.

86. Section 69 of the RTGA provides that: 69 Multiple disqualifications cumulative unless court orders otherwise If— (a) a person is disqualified (whether or not by court order) from holding or obtaining an Australian driver licence because of being convicted or found guilty by a court in Australia of an offence against the law of any jurisdiction; and (b) before the period of disqualification has ended, the person is again so disqualified; the periods of disqualification are cumulative unless a court in Australia orders otherwise.

87. In Smith v Stivala [2018] ACTSC 309; 341 FLR 359; 86 MVR 465 at [36], Burns J held that s 69 of the RTGA is not a source of judicial power to order that multiple disqualification periods operate concurrently. In particular, his Honour held: In my opinion s 69 of the General Act is not a source of judicial power to order that multiple disqualifications, and in particular multiple automatic disqualifications under s 63 of the General Act, may operate other than cumulatively. It is a provision directing how multiple disqualification periods, perhaps from multiple jurisdictions, are to have effect for the purposes of ACT laws. It informs individuals and relevant authorities of how multiple disqualification periods are to be taken to apply in the ACT. The basic rule is that they are taken to be cumulative, but this is subject to where “a court in Australia otherwise orders”. Such an order would need to be based upon a power in the relevant State or Territory legislation allowing the court imposing the disqualification to order that it be served concurrently with other disqualifications.

88. In other words, his Honour held that, whilst s 69 creates a presumption in favour of cumulation, it does not confer a power on the Court to depart from that presumption. Rather, his Honour held that the power to “otherwise order” must be sourced in other legislation.

89. Smith v Stivala was followed by Murrell CJ in R v Elphick [2021] ACTSC 9. However, Smith v Stivala is contrary to the decision of Mossop J in McCurley v Beath [2017] ACTSC 196, in which Mossop J concluded (at [65]) that s 69 should be read: … as qualified by the operation of ss 32 and 63 so that s 69 would not operate to permit concurrency as between periods of disqualification in existence at the time of the offending conduct and which continued as at the date of conviction but would permit an order rendering concurrent a number of periods of disqualification arising from convictions on a single occasion. Reading s 69 in this manner is appropriate because of the specific nature of the provisions in ss 32 and 63. (emphasis added)

90. An appeal against Mossop J’s decision was allowed on the basis that his Honour lacked jurisdiction to hear the appeal: Beath v McCurley [2018] ACTCS 48; 339 FLR 165. In so holding, the Court of Appeal did not consider the correctness of Mossop J’s construction of s 69 of the RTGA.

91. In R v Gorman (unreported, ACTSC, 5 June 2023), Refshauge AJ held that Smith v Stivala was “plainly wrong” and declined to follow the decision. Justice McWilliam similarly declined to follow Smith v Stivala in Director of Public Prosecutions v XK [2023] ACTSC 141.

92. In the present case, the prosecutor and counsel for the offender each submitted that the decisions in McCurley v Beath, R v Gorman and Director of Public Prosecutions v XK should be preferred and that I should not follow the decision of Burns J in Smith v Stivala. In other words, both parties agree that I have power to order that the automatic periods of disqualification be served concurrently, or partially concurrently where the disqualification periods arise from convictions that relate to a “single occasion”.

93. The offender’s counsel further submitted that the power conferred by s 69 of the RTGA to order concurrency should not be construed as being limited to periods of disqualification that arise from convictions relating to a single occasion, but that s 69 should be construed as conferring a general power to order concurrency of disqualification periods even in circumstances where the period would overlap with an existing period of disqualification at the time of sentence.

94. The offender is not serving an existing term of disqualification at the time of sentence. In these circumstances, it is not necessary for me to consider the offender’s counsel’s further contention. It is sufficient for me to conclude that, for the reasons expressed in Director of Public Prosecutions v XK, McCurley v Beath and R v Gorman, I am satisfied that s 69 confers power on a court to order that several periods of disqualification be served concurrently, at least where those periods arise from convictions relating to a single occasion.

95. As the prosecutor properly accepted, in the present case the two offences of aggravated dangerous driving constitute, “in effect, a single and protracted act of criminality”. In these circumstances, I will order that the disqualification periods for these two offences be served concurrently. I will order that the automatic period of disqualification for 12 months for the offence of drive whilst disqualified be partially cumulated on those disqualification periods by a period of three months, resulting in a total disqualification period of 15 months. Orders

96. For the above reasons, I will impose sentences totalling three years’ imprisonment, but will order that those sentences be served by way of an Intensive Correction Order pursuant to s 11(2) of the Crimes (Sentencing) Act, with additional conditions requiring the offender to undertake counselling.

97. Cristy Holder, please stand: (1) For the offence of dangerous driving (CC 2021/7408), you are convicted. For that offence, I sentence you to a term of imprisonment of 6 months, commencing on 6 October 2025 and expiring 5 April 2026. (2) For the offence of dangerous driving (CC 2021/7410), you are convicted. For that offence, I sentence you to a term of imprisonment of 9 months, commencing on 6 October 2025 and expiring on 5 July 2026. (3) For the offence of drive at police officer (CC 2021/7409), you are convicted. For that offence, I sentence you to a term of imprisonment of 2 years and 6 months, commencing on 6 July 2023 and 5 January 2026. (4) I order that those sentences be served by way of Intensive Correction Order subject to the core conditions listed in s 42 of Crimes (Sentence Administration) Act 2005 (ACT) and the following additional conditions under s 11(5)(e) of the Crimes (Sentencing) Act: (a) That you undertake at grief and/or loss counselling as directed by the Director General of Corrective Services or his delegate; and (b) That you engage with drug programs and interventions to support relapse prevention as directed by the Director General of Corrective Services or his delegate. (5) For the offence of driving whilst disqualified, you are convicted. I order no further penalty. (6) Pursuant to s 69 of the Road Transport (General Act) 1999 (ACT) you are prohibited from holding or obtaining an Australian driver licence for a total of 15 months, comprising the following: (a) For the first aggravated dangerous driving offence (CC 2021/7408): the automatic disqualification for 12 months applies, to commence on 6 July 2023. (b) For the repeat aggravated dangerous driving offence (CC 2021/7410): the automatic disqualification for a minimum of 12 months applies, to commence on 6 July 2023. (c) For the offence of drive whilst disqualified (CC 2021/7411), the automatic disqualification for 12 months applies, to commence on 6 October 2023.

I certify that the preceding numbered ninety seven [97] paragraphs are a true copy of the Judgment of her Honour Justice Baker Associate: A Bucci Date: 6 July 2023