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1. On 13 September 2022 in the ACT Magistrates Court the offender Kevin Thomas Clarke was committed to this Court for sentence after entering pleas of guilty to the following offences: (i) CC2022/4422 – Drive a motor vehicle at a police officer, contrary to s 29A of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is imprisonment for 15 years; and (ii) CC2022/4421 – Aggravated dangerous driving, contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (RTSMA). The maximum penalty for this offence is imprisonment for 5 years, 500 penalty units ($80,000), or both. This offence also carries an automatic licence disqualification of 12 months.

2. On the same day the offender pleaded guilty to the following offences and they were transferred to this Court from the ACT Magistrates Court pursuant to s 90A of the Magistrates Court Act 1930 (ACT): (iii) CC2022/4420 – Fail to stop a motor vehicle for police, as a first offender, contrary to s 5C of the RTSMA. The maximum penalty for this offence is imprisonment for 12 months, a fine of 100 penalty units ($16,000), or both. This offence also carries an automatic licence disqualification of 3 months. (iv) CC2022/4419 – Drive while disqualified, as a repeat offender, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (RTDLA). The maximum penalty for this offence is imprisonment for 12 months, a fine of 100 penalty units ($16,000), or both. This offence also carries an automatic licence disqualification of 2 years. (v) CC2022/4424 – Use motor vehicle with a numberplate issued for another vehicle, contrary to s 22(1)(a) of the Road Transport (Vehicle Registration) Act 1999 (ACT) (RTVRA). The maximum penalty for this offence is a fine of 20 penalty units ($3,200). (vi) CC2022/4425 – Use unregistered registerable vehicle, contrary to s 18(1) of the RTVRA. The maximum penalty for this offence is a fine of 20 penalty units ($3,200). (vii) CC2022/4426 – Use uninsured motor vehicle, contrary to s 289(1) of the Motor Vehicle Accident Injuries Act 2019 (ACT) (MVAIA). The maximum penalty for this offence is a fine of 50 penalty units ($8,000).

3. At the outset I note the observations of Refshauge AJ in R v Law [2021] ACTSC 351 (Law) at [1] that many traffic offences do, or have the capacity to do, great damage to the community and that “a motor vehicle is, after all, potentially a lethal weapon”. Those observations are apposite in these sentencing proceedings.

4. The offender gave some short evidence in the proceedings that was not materially challenged. Three video clips capturing part of the offending conduct were played. Significantly, the entirety of the conduct relied upon for the drive at police officer offence was captured on video from two different perspectives. I will come more to that footage below.

Facts

5. On 7 May 2022, at approximately 1:50am the offender drove a Volkswagen Jetta on Aikman Drive, Belconnen, failing to stop for police when signalled to do so. The Jetta was soon observed travelling in excess of the speed limit along Barry Drive and again failed to stop when signalled to by police. At the intersection of Barry Drive and Marcus Clarke Street, Civic, police successfully deployed a tyre deflation device, significantly damaging at least the front left tyre of the vehicle. Police commenced pursuit of the Jetta. As the pursuit continued onto Parkes Way, the left tyre of the Jetta fell off the vehicle.

6. Further along Parkes Way, both body-worn camera footage and the police car’s dash-cam footage captured another police officer walking onto the road to place another tyre deflation device in the path of the offender’s vehicle in an attempt to stop the offender. The officer was on foot in the middle of a three-lane arterial road when the offender drove down the road at a speed of 120 km/h. The vehicle was moving rapidly from the furthermost lane to the middle lane towards where the police officer was standing while he attempted to deploy the tyre deflation device. The police officer was forced to quickly run out of the path of the vehicle onto the median strip to avoid being hit and can be heard to say “[h]e almost hit me”, whilst the vehicle continues onwards. This is the conduct relied on in relation to the charge of driving at a police officer. The offender continued to drive the vehicle onto Tuggeranong Parkway, driving at speeds of up to 160 km/h.

7. The Jetta drove around a number of Kambah streets, before turning into a carpark and driving along a greenbelt. Following this, the offender returned to the road, before stopping on another greenbelt. The offender then got out of the car, and ran from the vehicle, abandoning it on the greenbelt. The offender was arrested following a short foot pursuit. The total duration of the police pursuit was approximately 14 minutes.

8. The offender told police that he had used “meth” the previous day and the amount he had consumed was “bugger-all”.

9. The vehicle the offender was driving was unregistered and uninsured. The Jetta’s registration, and consequently its insurance, expired on 1 February 2023. Additionally, the number plate on the Jetta was issued for another vehicle.

Subjective circumstances

10. The material before the Court includes a Pre-Sentence Report (PSR) dated 1 November 2022, an Intensive Correction Order Assessment Report (ICOAR) dated 19 July 2023 and a psychological report prepared by psychologist Ms Leesa Morris dated 18 July 2023.

Pre-Sentence Report

11. The offender is now 43 years of age. The offender identifies as Aboriginal arising from his connection to the Darkinjung and Wonnarua people of New South Wales. His mother confirmed this, though expressed limited current connection with their heritage. The offender expressed a desire to explore this aspect of his identity further. The offender has three children, two of whom are adults, from a previous relationship. He reported that he maintains a close relationship with them and is currently expecting his first grandchild. The offender is also expecting a child with his current partner, their first together, due in November 2023. The offender is engaged to his current partner and resides with her in a private rental unit in the ACT.

12. The offender left school in Year 9. He has no further education. He described a work history in manual labour and considered he was able to easily secure employment. The offender acknowledged his challenge with illicit substance use and reported that he began using cannabis at age 11 and methylamphetamine at age 21. Prior to his remand period in custody he was using two points of methylamphetamine a week, though claimed upon his release into the community he was capable of abstinence.

13. The author of the PSR highlights a past pattern of conduct where the offender expresses confidence in the custodial environment about his ability to abstain but struggles to implement that confidence in the community. The offender’s partner described him as a loving partner and father.

14. The author describes the offender as having “positive and pro-social links in the community through familial support”, though expresses concern about his capacity for successful compliance in the community. The offender is assessed in this report as having a medium risk of general re-offending. He was found suitable for an Intensive Correction Order (ICO).

ICO Assessment Report

15. The information contained in the ICOAR is largely consistent with the matters referred to in the PSR. It records that the offender was released on bail on 6 January 2023 and that after a period of illness, established by a medical certificate, he engaged with the Karralika Day Program. The ICOAR also records a positive urinalysis for methylamphetamine on 27 May 2023 which was submitted as a breach of bail. The offender voluntarily attended the police station to deal with that breach and bail was ultimately continued. The offender explained the positive urinalysis to the author of the report by suggesting his drink had been “spiked” by a friend. The offender provided a medical certificate after a motor bike injury excusing him from work until 2 August 2023.

16. The ICOAR confirms that the offender completed the Solaris Program while in custody and continued in the Karralika Day Program upon his release before completing the program in June 2023.

17. When the offender attended for supervision on 10 July 2023, he was wearing a leg brace and a cast on his left arm arising from a motor bike accident on a friend’s rural property. I note here that the ongoing effect of these injuries could be seen when he gave evidence in these proceedings, and in evidence the offender described the ongoing medical attention he requires in an effort to see those injuries resolve. The ICOAR records that the offender does not have any ongoing mental health issues.

18. The author of the ICOAR notes the offender’s attempts to participate in restorative justice and records the offender as saying he wished to do so in order to make amends with the victim. Ultimately, the restorative justice process was assessed as unsuitable for this matter.

19. The ICOAR again assessed the offender as being at a medium risk of general reoffending with the risk factors being drug use and meaningful employment. The offender was assessed as unsuitable for a community service work condition because of his ongoing injuries he is managing from the motor bike accident. The ICOAR assessed the offender as suitable for an ICO with a specific recommendation that a curfew be included in the ICO conditions. Psychological report

20. The offender relied upon the psychological report of Ms Morris prepared following a psychological assessment of the offender on 18 July 2023

21. The offender gave a history of his family life, education, employment, relationships, health and drug and alcohol use to Ms Morris. The offender told her he has two younger sisters, with whom he has a good relationship, as well as two half-siblings with whom he has no contact with due to their lack of ambition. Though the offender initially described his childhood as “good”, he later recounted that he moved “back and forth” between his parents’ homes depending on which parent “could handle” him. The offender has maintained a good relationship with his parents, and reported no incidents of substance abuse or addiction, mental illness or criminal activity in their family during his childhood.

22. The offender expressed to Ms Morris that he had experienced symptoms of anxiety and low moods whilst in custody, though he ceased taking antidepressants upon re-entering the community. Ms Morris formed the view that he did not meet the criteria for any psychological disorder and that the low moods experienced in custody were within the range to be expected in this situation.

23. In her report, Ms Morris opined that the offender likely met the criteria for Attention Deficit/Hyperactivity Disorder (ADHD). The offender reported to Ms Morris that, “no one’s ever got hurt by anything I’ve done”, claiming to presently be “the most clear-thinking and level-headed” he has been in his life. Ms Morris expressed the view that those comments and others she attributed to the offender demonstrated poor insight into his functioning.

24. Ms Morris observed that the discrepancies between the offender’s view of himself and the reality of his actions is not uncommon for people diagnosed with ADHD and noted that the offender had little insight of himself, particularly regarding his substance use. Ms Morris suggested that the offender would likely benefit from psychological intervention for his self-appraisal and noted that the offender expressed frustration and remorse for the impact of his actions on his children and partner.

25. The offender denied to Ms Morris ever losing control in fights and said “I always have to be in control” but he estimated every two games of football he would get in a fight, stopping when he heard his mother’s voice. The offender denied lying or stealing, which is clearly inconsistent with the offender’s criminal history. He told Ms Morris that he has some friends who are not involved in anti-social behaviours.

26. In regard to his attitude towards offending, Ms Morris observed an attitudinal change in the offender following his release from custody. The offender told Ms Morris that he had “let [his] kids down again” and appeared to Ms Morris to be set on not wanting to do so again.

27. At the time of his appointment with Ms Morris, the offender claimed to have secured work that was compatible with his appointments. Ms Morris noted that while people with ADHD often have short-lived emotional states and focus, they can also quickly cease problematic behaviours. Ms Morris observed in her report that the offender had ceased substance use for a good period of time in the past.

28. Ms Morris concluded that the offender had some insight into the consequences of his offending and that the diagnosis of ADHD could explain his lack of deeper insight. She assessed him as requiring low/moderate effort to reduce his risk of recidivism such as psychological intervention and substance abuse rehabilitation. She also considered that psychological intervention to treat his ADHD may assist in his efforts to abstain from substance abuse during periods of stress or low stimulation.

Criminal history

29. The offender has a criminal history revealing a consistent pattern of offending from 2018 onwards including traffic offences, offences related to weapons and drug possession. The offender has been sentenced to periods of full-time imprisonment and was subject to an ICO between December 2020 and March 2022. That ICO was cancelled arising from breach conduct engaged in by the offender. Relevantly, he has previous convictions for aggravated dangerous driving and driving while disqualified.

Time in custody

30. The offender was taken into police custody on the day the offences were committed, 7 May 2022. He was remanded in custody in the Magistrates Court and remained there until he was granted bail by this Court on 6 January 2023. On 18 July 2022 he was sentenced in the Magistrates Court for other, unrelated offending and it accounts for 10 days of his time in custody. The parties agree that there are 8 months in custody solely attributable to these offences.

Sentencing considerations

Objective seriousness

31. The maximum penalty provided for by the legislature “serves as an indicator of the relative seriousness of the offence”: Muldrock v the Queen [2011] HCA 39; 22 CLR 120 at 133; [31]. An assessment of objective seriousness and where offending conduct sits on the spectrum of offending is an important consideration: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. I approach this task consistent with R v Toumo’ua [2017] ACTCA 9 at [24] where it was observed: [T]hat references to low-range, mid-range and high-range objective seriousness are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case. Drive a motor vehicle at a police officer

32. This is an offence contrary to s 29A of the Crimes Act. The provision was inserted into the Crimes Act on 10 June 2020. It is appropriate to observe that the offence can be established in circumstances where a person intends to risk the police officer’s safety or is reckless about risking the police officers’ safety: sub-ss 29A(1)(d)(i) and (ii). Consistent with the concern of the provision with risk, it is not necessary for any actual injury to the police officer to have occurred in order for the offence to be made out: s 29A(5).

33. Helpfully, in R v Seymour [2021] ACTSC 152 (Seymour), Refshauge J traverses some of the history of the correlative provision in Victoria which became operative in 2017, including observing the limited jurisprudence identifying factors relevant to aggravation and mitigation. At [35]-[37] the following factors are helpfully identified as relevant to an assessment of the objective seriousness of the offence and I address them in turn, applying the relevant features of the agreed facts in this matter: (a) whether damage is caused to a police vehicle; (i) there was no damage caused to the police vehicle as a result of the offending. (b) whether the offender is engaged in a police pursuit; (i) the offender was being pursued by police at the time of the offending. (c) whether the offence occurs in a busy locality and whether house or footpaths border the road; (i) the offending occurred at a time of light traffic and there were no footpaths or houses bordering the road. (d) whether there was an intention to impede arrest, particularly where done without regards to the welfare or safety of the victims or of the community at large; (i) the offence occurred in circumstances where the offender was evading apprehension by police. The police pursuit was obvious to the offender. (e) the speed or other danger involved with the offender’s driving; (i) at the time of the offence the estimated speed was 120 km/h, the vehicle was being driven with only three intact tyres arising from the use of tyre deflation device and was moving from lane A across to lane C. I also note that Senior Constable Ben McCarthy was on foot attempting to assist in the effort to have the offender stop for police. (f) whether there were any passengers in the vehicle; (i) there were no passengers in the vehicle with the offender at the time of the offence.

34. The prosecution made clear that the offending on this occasion was established on the basis of recklessness conceding that the area where it occurred was not typically an area where pedestrian traffic would be expected. That said, the area was well lit and the police officer, SC McCarthy, was visible.

35. The footage played and relied upon in these proceedings captures the offending from the perspective of the police officer from his body worn camera and from the dash-cam inside the vehicle he was driving in the lead up to the offence. The footage provides a compelling insight into the very real risk the offender’s conduct presented to SC McCarthy who, as I’ve already identified, can be heard to utter “he almost hit me” immediately after the offence occurred. The footage precisely and powerfully demonstrates the real risk the provision seeks to protect police officers against as they go about performing their duties.

36. The risk manifest in the offender driving at SC McCarthy while he was on foot, in a three-lane arterial road, in the early hours of the morning with nothing between him and the offender’s vehicle, epitomises the special vulnerability of police officers referred to in the Explanatory Statement of the Crimes (Protection of Police, Firefighters and Paramedics) Amendment Bill 2019 (ACT), which introduced this offence. Noting the features of the offending as I have, I consider the offending conduct in this instance to be a serious example of the offence.

Aggravated dangerous driving, repeat offender

37. The offender is a repeat offender for this offence having been convicted of the same offence on 19 February 2020, it having been committed in September 2019. The offence on this occasion includes two circumstances that fulfill criteria for statutory aggravation: (i) s 7A(1)(i) in that he failed to comply as soon as practicable with a request or signal given by a police officer to stop the vehicle; and (ii) s 7A(1)(iii) in that he was driving with a prescribed drug in his oral fluid or blood.

38. R v Rosewarne [2021] ACTSC 217 (Rosewarne) at [122] and Law at [31] are instructive as to the features of the offending that inform the assessment of objective seriousness. Those features can be summarised as follows: (a) the extent to which the public and other road users were put at risk, the number of them and their vulnerability (children, the elderly, frail or disabled); (b) the nature of the location where the driving occurred (residential, busy commercial, shared user zone) and the time of day or night of the driving; (c) whether there were any passengers in the vehicle who were put at risk, especially if there were young children; (d) the variety and duration of aspects of the driving that were dangerous and the extent to which it was a multifaceted and/or a lengthy course of conduct especially factors such as driving into oncoming traffic, onto footpaths or other places where pedestrians are, through stops signs, red lights or give way signs; (e) the distance driven and the period of the driving; (f) the speed of the vehicle and regard for the conditions; (g) whether the vehicle is engaged in a pursuit from police or fails to stop when directed to do so by police; (h) whether the offender was intoxicated by alcohol or drugs and the degree of intoxication; (i) whether there was competitive driving or street racing on a public road or showing off; (j) any damage occasioned to other vehicle, objects, houses or people; and (k) the extent to which police were put at risk when trying to terminate the driving.

39. From the agreed facts in this matter the following features of the offending inform the objective seriousness of it. The driving lasted approximately 14 minutes and saw the offender move some distance from the north to the south of Canberra moving from Belconnen to the City and then on to Tuggeranong. There were no passengers in the vehicle. The offending occurred at around 2am and the footage reveals light traffic. The offender drove at speeds in excess of the 80 km limit reaching speeds of up 120 km/h and 160 km/h.

40. The driving included travelling through a roundabout without indicating at speed, driving recklessly on a number of residential roads in Kambah and driving onto two greenbelts. The offender swerved between lanes without indicating and continued driving the vehicle after the front left tyre fell off entirely. Pieces of metal sheared away from the now bare wheel and struck the pursuing police vehicle. The police pursuit was terminated when the offender drove onto a greenbelt and ran away from the vehicle. The degree of intoxication by virtue of the presence of a prescribed drug in the offender’s oral fluid is unknown.

41. All of these features result in this being, on any view, a serious example of the offence.

Transferred offences

42. Transferred from the Magistrates Court, the offender also faces charges of fail to stop a motor vehicle for police, drive while disqualified, use motor vehicle with a numberplate issued for another vehicle, use unregistered vehicle and use uninsured motor vehicle.

43. The fail to stop offence signals the beginning of what was to become a more serious incident. There were no aggravating features of this offence. The vehicle the offender was driving had numberplates attached that were not issued for it, was unregistered and uninsured. The offender did not offer any particular reason for driving in the early hours of 7 May 2022.

44. His licence had been disqualified in the Magistrates Court on 19 February 2020 for a period of 3 years and 3 months, ending on 18 May 2023. He has three previous convictions for this offence. It cannot be said that he is unaware of the consequence of driving after a Court ordered disqualification. The offending on this occasion can be properly characterised as contumacious: see Cotter v Corvisy [2008] ACTSC 64 at [38]- [39]. The nature of the driving is relevant to an assessment of the objective seriousness of the offending though I must take care to ensure the offender is not punished twice in circumstances where he is charged separately for that conduct.

Conditional liberty

45. As I have already noted the offender was subject to bail conditions designed, it seems, to target his use of illicit substances and the temptation to engage in anti-social conduct. The bail was entered into only weeks before the commission of these offences.

46. The prosecution submitted that this circumstance was an aggravating feature, the offender having betrayed the opportunity to be in the community and pursue rehabilitation: R v Tran [1999] NSWCCA 109 at [15]. The fact that an offender was on conditional liberty is relevant to the determination of the appropriate punishment for an offence and does not influence the objective seriousness of an offence: Smith v The Queen [2011] NSWCCA 163 at [26]. See also R v Way (2004) 60 NSWLR 168 at [90]- [92], Hillier v DPP (NSW) [2009] NSWCCA 312; 198 A Crim R 565 at [30] and R v Van Rysewyk [2008] NSWCCA 130 at [25].

47. I bear in mind that I must approach this feature of the offending with care so as to avoid double punishment: Kelly v Ashby [2015] ACTSC 346 at [61].

Guilty pleas

48. The matter has something of a protracted history arising from the movement of the proceedings between this Court and the Magistrates Court, including the Galambany Court, as well as an assessment for inclusion in the Drug and Alcohol Sentencing List in this Court. The offender was not eligible for inclusion in that list.

49. The pleas of guilty were entered prior to committal to this Court and after a brief of evidence was prepared. It was accepted that significant utilitarian value is attached to the entry of those pleas and the offender is entitled to a discount reflecting that value: s 35 Crimes (Sentencing) Act 2005 (ACT) (Crimes (Sentencing) Act). Section 37 of the Crimes (Sentencing) Act requires that I state the penalty that I would otherwise have imposed. I have afforded a discount of around 25 per cent in recognition of the offender’s guilty pleas to each offence.

Sentencing practice

50. The use of sentencing statistics and comparable sentences must be put in its proper place. They illustrate, not define, the possible range of sentences available: R v Pham (2015) 256 CLR 550 at 560 [29]. Sentencing practice does 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]. The provision of comparative cases is not to give effect to strict mathematical equivalence as between sentencing outcomes for the same offence but rather to ensure consistency in the application of relevant principles: Hili v The Queen [2010] HCA 45; 242 CLR 520.

51. I was helpfully provided a table of comparable decisions of sentencing judges in this jurisdiction. The table is detailed and provides summarised information about the circumstances particular to the offence and the offenders. The table includes Seymour as the only example from this jurisdiction of a sentence for the offence of drive motor vehicle at a police officer.

52. In Seymour the offending conduct involved the offender, engaged in a police pursuit, driving at high speed at a police officer who was on a motorcycle. The police officer was required to manoeuvre with skill so as to avoid a collision: at [36]. There was no actual collision and there were no passengers in the car with the offender. The offender was 29 years old with a criminal history containing 27 offences across three jurisdictions. He was diagnosed with a severe substance use disorder and was under the influence of drugs when he committed the offence. He pled guilty at an early opportunity. He was found to have demonstrated remorse (at [73]) and to have good prospects of rehabilitation: at [94]. He also pled guilty to and was sentenced in relation to two associated charges of aggravated dangerous driving. In relation to the drive at police officer offence he was sentenced to 27 months imprisonment reduced from 3 years for his plea of guilty. For each charge of aggravated dangerous driving, he was sentenced to 14 months imprisonment. The sentences were partially suspended and a Drug and Alcohol Treatment Order pursuant to s 12A of the Crimes (Sentencing) Act was made: at [119].

53. Given the relatively small number of occasions this offence has been considered by sentencing judges of this Court arising from its more recent insertion into the Crimes Act, I consider it useful to refer in some detail to two further matters: R v Crawford (a pseudonym) [2022] ACTSC 166 (Crawford) and Director of Public Prosecutions v Holder (No 2) [2023] ACTSC 167 (Holder (No 2)).

54. Crawford concerned an offender who pled guilty at a relatively early stage to a range of driving-related offences. In summary, the conduct subject of the drive at police officer offence occurred during a police pursuit and involved the offender mounting a footpath in an effort to avoid police vehicles blocking his path. He drove at high speed along a footpath and ignored police directions to stop. He almost collided with an officer before colliding with the police vehicle blocking his escape: at [7]–[8]. The police officer in the vehicle received minor injuries. Justice Elkaim observed that the officer’s experience “would have been terrifying” (at [9]) and that he considered the offence to be “very serious”: at [12]. The offender was a young Indigenous man with a criminal history described as “long and appalling”: at [15]. He had a disrupted childhood, history of childhood trauma and diagnoses including ADHD, anxiety and depression. He expressed remorse and there was a significant focus on rehabilitation as a purpose of sentencing. The sentence imposed for the drive at police officer offence was 12 months imprisonment to be served by way of ICO.

55. Holder (No 2) concerned a finding of guilt after a judge alone trial. The offender was driving a motor vehicle directed to pull over by a police officer. The offender did not stop, accelerating away before engaging in conduct the basis for two aggravated dangerous driving offences. The conduct engaged in for the drive motor at police officer offence included the offender driving at a police officer who was in a police vehicle. The offender drove against the flow of traffic and the police officer angled his vehicle in an attempt to block the offender from driving any further. Upon realising the offender was not going to stop, the police officer turned his vehicle onto the median strip to avoid a head on collision: at [7]. The offender was 40 years of age and had experienced long periods where family violence was perpetrated against her by former partners. The offender had a history of alcohol and drug abuse, mental ill health as well as a criminal history containing periods spent in full time imprisonment. Justice Baker found that the conduct in relation to driving a motor vehicle at a police officer was reckless (at [53]) and that the offender presented as a “powerful case of rehabilitation”: at [74]. The sentence imposed for the drive at police officer offence was two years and six months to be served by ICO.

56. Law, Rosewarne, Seymour, Crawford, R v Collins [2019] ACTSC 302 and Mann v Tremethick (No 2) [2023] ACTSC 31 all dealt with the offence of aggravated dangerous driving. In each case periods of imprisonment were imposed. Consistent with the variations in the nature of the offending and the subjective features of the offenders, the length and method of serving the periods of imprisonment varied, in some cases considerably.

Determination

57. I sentence the offender against the background of the objects and purposes of the Crimes (Sentencing) Act contained in ss 6 and 7. The purposes of sentencing I consider to be of particular significance in this matter are general deterrence because of the nature of the offences, protection of the community because the risk the offender’s conduct presented to the community, specific deterrence because of the offender’s pattern of conduct demonstrating these offences are not an aberration or out of character, punishment and denunciation. I will come to rehabilitation below.

58. There is no dispute that the only appropriate outcome, considering possible alternatives, is a period of imprisonment: s 10(2) of the Crimes (Sentencing) Act. As counsel for the offender, Mr Jackson, conceded, the offender avoided more serious impacts of his conduct by virtue of there being “more luck than good management”.

59. Recalling the observation of Refshauge AJ in Law, extracted above, about the potential for a motor vehicle to be a deadly weapon lends force to the view that the maximum penalty for these offences reflects a requirement for them to be dealt with by sentencing courts as serious challenges to community safety. As Baker J observed in Holder (No 2) at [71], “the need to protect the community (particularly police officers) is a critical consideration in imposing sentences in respect of these offences.”

60. While disqualification of the offender’s licence for a significant period is inevitable and theoretically goes some way to protecting the community from the offender’s driving conduct, his history demonstrates something of a casual approach to the status of his driver’s licence in the past. That said, the offender gave unchallenged evidence in these proceedings outlining strategies to guard against the temptation to drive a motor vehicle. In my view that evidence reflected some insight and commitment.

61. I turn to the offender’s prospects of rehabilitation. Rehabilitation, if successful, is likely to be a durable guarantee of community protection: Hogan v Hinch [2011] HCA 47; 243 CLR 506 at [32]. The offender has demonstrated that he is remorseful, and this is an important consideration in assessing his prospects of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41].

62. The offender gave fairly brief, but what I considered to be frank, evidence about a positive urinalysis in May this year revealing the presence of methylamphetamine. His evidence was unchallenged. He readily admitted that he lied to author of the ICOAR when he asserted that the positive result was a consequence of his drink having been tampered with by an acquaintance. The offender gave evidence that he had “relapsed” and was “embarrassed” to admit to having returned to past behaviours. I accept that evidence.

63. It cannot be ignored that the offender has struggled to comply with community-based orders in the past and returned to offending behaviour when opportunities for rehabilitation have been presented to him. The prosecutor was correct to highlight in that context, the bail undertaking made by the offender only weeks before this offending occurred. It is my observation that the pathway to sobriety can often be paved with temptation and in the face of everyday challenges the motivation to resist that temptation, for those suffering with addiction, can wane. This observation is consistent with the opinion expressed by the offender’s partner in the PSR when she said that he “sometimes returned to illicit substance use when under highly stressful life issues.”

64. As McCallum CJ recently had occasion to observe in R v Gardner (No 3) [2023] ACTSC 229 at [19]: It is now well understood that drug addiction is a medical condition and that, even with appropriate treatment and support, persons undertaking rehabilitation can suffer setbacks. It may also be accepted that a setback does not necessarily spell the end of a course of rehabilitation.

65. Notwithstanding the offender’s mixed success with compliance in the community in the past I consider that the circumstances of his current situation mean rehabilitation is still a realistic prospect.

66. The offender was found suitable for an ICO. The ICOAR identifies the critical factors that led to that finding as the offender’s stable relationship, his suitable accommodation and the successful completion of a drug residential rehabilitation program while in custody. Unsurprisingly the report is clear that the key to sustained success for the offender in the community is his capacity and willingness to continue to address the role that illicit substances play in his life.

67. The prosecution, while maintaining that periods of imprisonment are the appropriate outcome, was not heard against the imposition of an ICO.

68. Implicit in that position is recognition of the following factors: (a) The offender has already spent eight months in full time custody, the longest period of time he has ever spent in custody; (b) The offender has been largely compliant with bail conditions imposed upon him in January 2023; (c) The offender has the ongoing support of his partner, who appears to be a positive, pro-social influence and he is able to articulate strategies to avoid the temptation to drive a motor vehicle in the future; and (d) The offender is engaged with services targeting his use of illicit substances and has no mental health concerns.

69. An ICO while obviously not equivalent to a period of full-time imprisonment, provides a strict regime of close supervision and swift, sure consequences for non-compliance, including a return to full time custody. The regime provides space for both accountability and responsibility with the overarching aim of supporting offenders to move away from engagement with the criminal justice system. Given the offender’s experience with these “intensive” orders it should be abundantly clear to him that the effect of non-compliance can include a return to full time custody.

70. I have had regard to those factors contained within 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 appropriate to do so, taking into account: (a) the level of harm to the victim and the community caused by the offence; (b) whether the offender poses a risk to 1 or more people or the community; and (c) the offender’s culpability for the offence having regard to all the circumstances.

71. Dealing with the first factor, the offender did not cause any actual injury or damage during the course of any of his driving conduct. This was by default and not by design. I did not have the benefit of a victim impact statement though the footage depicts a close call and the officer’s verbal reaction captured on the footage is certainly consistent with that being the case. The police officer, being on foot moving across a three-lane arterial road, had no barrier of defence between himself and the vehicle which was moving at speed.

72. The second factor weighs significantly in favour of the imposition of an ICO. The offender has demonstrated some commitment to rehabilitation and has been for the most part compliant with bail conditions now for some months. I consider that the community can be properly protected, and the offender’s rehabilitation promoted under the regime of an ICO. The long-term rehabilitation of the offender is the best way to protect the community.

73. The offenders conduct in relation to driving at a police officer was accepted to be reckless and not intentional. That said, his culpability for the entire course of conduct, which clearly posed a risk to police and other road users, is high.

74. There is a prohibition on combination sentences in relation to intensive correction orders: s 80(1) Crimes (Sentencing) Act. The parties agreed that the appropriate, and perhaps neatest way to recognise the time already spent in custody is to order some of the offences be served by way of full-time imprisonment and backdate those sentences: s 63 Crimes (Sentencing) Act.

75. I am sentencing the offender for multiple offences committed as part of a course of conduct. It was accepted by the prosecution that it is appropriate for a degree of concurrency given the nature and timing of the offences. I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, applying the principal of totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624. I must consider whether the sentence imposed is “just and appropriate” for all of the offences: Mill v The Queen (1998) 166 CLR 59. While the offences are separate they were committed within the same set of circumstances. I bear in mind that an offender should not benefit from committing more than one offence and any suggestion that a discount is offered for multiple offences must be avoided by a sentencing court: R v Knight (2005) 155 A Crim R at [112]. In my view there should be some accumulation in recognition of the separate nature of the offences and to give proper effect to the principles of sentencing I have identified as particularly relevant in this matter. Disqualification

76. Convictions for several of these offences result in automatic disqualification periods pursuant to the Road Transport (General) Act 1999 (ACT) (RTGA): (a) Aggravated dangerous driving (repeat offender) – 12 months (or longer if the court orders a longer period): s 63(4) of the RTGA. (b) Drive while disqualified (repeat offender) – 2 years (or longer if the court orders a longer period: s 32(5)(b) of the RTDLA; and (c) Fail to stop a motor vehicle for police – 3 months (or longer if the court orders a longer period): s 63(2)(a) of the RTGA.

77. There is no automatic disqualification for the offence of drive at police officer.

78. In Holder (No 2) at [83]-[85], Baker J carefully examined the approach to automatic disqualifications and s 69 of the RTGA before determining that for the reasons expressed in Director of Public Prosecutions v XK [2023] ACTSC 141 and McCurley v Beath [2017] ACTSC 196 “s 69 confers on a court the power to order that several periods of disqualification be served concurrently, at least where those periods arise from convictions relating to a single occasion”: at [94]. I adopt that approach and indeed was encouraged to do so in this matter by the prosecution. The prosecutor submitted that it is appropriate for the disqualification periods to be concurrent in the circumstances of this offending.

Orders

79. The orders I make are: (1) For the offence of using a motor vehicle with a numberplate issued for another vehicle, contrary to s 22(1)(a) of the Road Transport (Vehicle Registration) Act 1999 (ACT) (CC2022/4424) the offender is convicted and fined $750, 12 months to pay; (2) For the offence of using an uninsured motor vehicle, contrary to s 289(1) of the Motor Vehicle Accident Injuries Act 2019 (ACT) (CC2022/4426) the offender is convicted and fined $973 with 12 months to pay; (3) For the offence of using an unregistered registerable vehicle, contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT) (CC2022/4425) the offender is convicted and fined $700 with 12 months to pay; (4) For the offence of driving while disqualified, as a repeat offender, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (CC2022/4419) the offender is convicted and sentenced to 5 months imprisonment, reduced from 6 months for his plea of guilty to start 7 May 2022 and to end 6 October 2022; (5) For the offence of failing to stop a motor vehicle for police, as a first offender, contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (CC2022/4420) the offender is convicted and sentenced to 4 months imprisonment, reduced from 5 months for his plea of guilty, 3 months consecutive on the offence of driving while disqualified, to start 7 September 2022 and to end 6 January 2023; (6) For the offence of driving a motor vehicle at a police officer, contrary to s 29A of the Crimes Act 1900 (ACT) (CC2022/4422) the offender is convicted and sentenced to 30 months imprisonment reduced from 40 months for the plea of guilty to start on 15 September 2023 and to end on 14 March 2026; (7) For the offence of aggravated dangerous driving, contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (CC2022/4421) the offender is convicted and sentenced to 9 months imprisonment, reduced from 12 months for his plea of guilty, 3 months consecutive on the offence of driving motor vehicle at a police officer, to start on 15 September 2025 and to end on 14 June 2026. (8) There is a total period of imprisonment of 33 months. I order that the sentences of imprisonment imposed on the aggravated dangerous driving offence and the drive motor vehicle at police officer offence be served by way of Intensive Correction Order subject to the core conditions listed in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT) and the following additional conditions under s 11(5)(e) of the Crimes (Sentencing) Act 2005 (ACT): (a) a curfew condition for a period of 12 months or such lesser period as deemed appropriate; and (b) to comply with any treatment or programs designed to assist the offender in relation to his diagnosis of ADHD. (9) Pursuant to s 69 of the Road Transport (General) Act 1999 (ACT), I order that the automatic disqualification periods for the offence of driving disqualified, failing to stop and aggravated dangerous driving are to be imposed concurrently to start on 15 September 2023.

I certify that the preceding [79] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor Associate: Date: