DPP v Cooke

The offender is charged with two separate and distinct series of offences. Pleas of guilty were entered to each of the pending charges. The first series of offences were committed on 1st February 2008. Those offences, in order of their commission consist of one count of take and drive conveyance without consent, a charge preferred under section 154A(1)(a) of the Crimes Act, 1900, one count of driving under the influence of alcohol or other drugs, a charge preferred under Section 12(1)(A) of the Road Transport (Safety and Traffic Management) Act 1999, two counts of negligent driving contrary to the provisions of Section 42(1)(C) of the same Act and two counts of Not providing particulars to the other driver contrary to the provisions of Australian Road Rule 287(1) made under the same Act.

The second series of offences were committed on 19th May 2008. They consist of 5 counts of malicious damage contrary to the provisions of Section 195(a) of the Crimes Act 1900 and two counts of Assaulting a Police Officer in the execution of their duty contrary to Section 60(1) of the Crimes Act 1900.

Following the entry of a plea of guilty to each charge the prosecution tendered a written statement of facts relating to each matter. There has been no demurrer with the accuracy of the facts upon which the prosecution rely. The factual circumstances of each series of offences are serious. I turn firstly to the offences of 1st February 2008 and outline them as succinctly as possible. The court record has the more comprehensive statement of facts attached to it.

On the afternoon and evening of 1st February 2008 the offender was in the company of a person called Rebekah Gaudiosi. Both persons attended licensed premises in the inner city and consumed a quantity of alcohol. Ms. Gaudiosi had her vehicle with her. As a result of the drinking session the offender became increasingly intoxicated. She asked Ms Gaudiosi for the keys to her car so she could drive home. Ms Gaudiosi, quite properly, refused to provide them and took precautions to ensure the offender could not obtain possession of them. This did not succeed and at one stage the offender gained possession of the keys. Ms Gaudiosi retrieved them. Later in the evening, about 9.30 p.m. the offender by a subterfuge gained access to the car keys on the premise that she would retrieve some of her personal belongings from the car, return the keys and then go home by taxi. This was untrue. Having been entrusted with limited authority to access the vehicle but not drive it she abused this trust and unbeknown to Ms Gaudiosi, drove off. This constitutes the offence under Section 154A(1)(a) of the Crimes Act. It also provides the evidentiary basis for the charge brought under Section 12(1)(A) of the relevant traffic legislation, as does what occurred during the course of her episode of driving.

Some time later the vehicle was observed by other motorists to be travelling at approximately 100 kph on the M7 motorway. On two separate occasions she collided with other motor vehicles but did not stop. Fortunately although the two vehicles were damaged, no one was injured. Each of the other drivers followed the offender for a short time and obtained details of the registration of the vehicle. It was reported to police and the following morning the offender was arrested at a residence. In the intervening period the owner of the car, having noted the failure by the offender to return with the keys and finding the car was no longer where she had parked it, reported the unauthorised taking to police. When the offender was arrested Police formed the view she was moderately affected by alcohol or drugs, smelled strongly of alcohol and needed assistance walking. The last place anyone in that condition should have been was behind the wheel of a motor vehicle on a major arterial highway. The offences can be classified as being towards the most serious category of offending.

The second series of offences occurred on 19th May 2008. An agreed statement of facts is attached to the relevant charges. For the sake of propriety I do not intend to re-iterate them. Suffice it to say they describe a course of behaviour that ordinary members of the community would view with revulsion and disgust. I pause at this point to note that the conduct of Police at St Mary's Police Station on this night can only be described as remarkable for its restraint and corresponding high standard of professionalism. Although an unusual course to take I invite the learned Police Prosecutor to convey my commendatory remarks to the relevant officers. It is by example of a high standard of conduct such as this that the community should judge the Police Force and from which its members can take justifiable pride.

The conduct of the offender was, on the night in question, an absolute disgrace not just for the physical aspects of her behaviour but also for the undiluted disrespect she displayed for persons in authority who devote their careers to protecting the community. Belatedly she recognizes this circumstance and conveyed apologies to the officers concerned through letters tendered to this Court. I am prepared to conclude that such apologies are genuine for not to do so would require the court to regard the offender as an individual without any sense of propriety or restraint.

No apology however can remove the memory of her conduct or the understandable disgust it no doubt aroused in the minds of each of the police officers forced to witness it in action. Whether the officers concerned accept her belated apologies is a matter for their reasoned consideration.

The offender initially entered a plea of not guilty to these charges and the proceedings were listed for hearing before the Penrith Local Court. I note that when this plea was entered she was unrepresented. In the intervening period she obtained legal representation and the matters were re-listed. The pleas of not guilty were withdrawn. The offender entered pleas of guilty. The proceedings were adjourned to this Court for sentence. On the adjourned date the presiding magistrate no doubt taking note of the objective seriousness of the conduct relative to the charges ordered a pre sentence report and adjourned the matters for sentence. They came before me on 19th January 2009. The matters raised within the plea on behalf of the offender were such that I reserved on the question of sentence until today.

Objectively the factual circumstances of the offending in each case are such that a Court would be hard placed to find any other penalty being warranted for the more serious offences than that of condign punishment. The manner in which the offender has approached each set of proceedings is such that whilst a plea of guilty has been entered in each matter the utilitarian value of that plea is diminished. At this point I note that in addition to the initial plea of not guilty to the charges arising in May 2008 the offender initially failed to appear in answer to the February 2008 charges resulting in warrants being issued for her arrest. Subsequently a Section 4 application was granted. A plea of not guilty being entered on 18th September 2008. Consequential orders for service of a brief of evidence were made.

The plea was changed to one of guilty on 13th November 2008. Taking all those factors into account and mindful of the Guideline Judgment of R -v- Thomson & Houlten (2000) 49 NSWLR 383 the court nonetheless is bound to consider and if appropriate apply a discount for the utilitarian value of the plea. This is an appropriate set of proceedings in which to apportion a discount on utilitarian grounds. Although the guideline judgment speaks in terms of a range of 10-25% depending on the circumstances of the case an offender is not entitled to assume that the Court will invariably apply a discount at the top of the range. Such is the outcome in these proceedings. Taking into account the history of the matters, the extent to which the prosecution was put in preparing and serving a brief in each matter, the impost on the administration of justice in allocating valuable hearing time to hear and dispose of defended proceedings and the timing of the eventual plea I am of the view that a discount of no more than 15% is warranted. That discount should apply to each set of proceedings.

In assessing the value of the plea it is necessary to properly identify the objective seriousness of the offending behaviour. It is also appropriate to identify the maximum penalty for each offence. This is to place each offence in context. It is also to make it clear that the Court acknowledges the principles set out in R -v- Doan (2000) 50 NSWLR wherein the Court made it clear that it is the legislated maximum the court must take into account not the jurisdictional limit.

An offence of taking and driving a conveyance without consent contrary to Section 154A is a Table 2 offence. The maximum penalty established pursuant to Section 268 of the Criminal Procedure Act 186 is a term of imprisonment of 2 years and/or 50 penalty units.

An offence of driving under the influence of alcohol contrary to Section 12 of the Road Transport (Safety and Traffic Management) Act has a two-scale set of penalties. One set of penalties are provided for a person who has not in the 5 years leading up to the commission of the offence before the court been convicted of another major traffic offence and one for those who have been so convicted. The offender was convicted of a major traffic offence in 2006. She is subject to the more onerous penalties. The maximum penalty is imprisonment for 12 months and/or a fine of 30 penalty units. Conviction also carries an automatic period of disqualification of any license that may be held at the time of conviction. The automatic period is 3 years. The statutory minimum period is 12 months.

The offence of negligent driving attracts a maximum penalty of 10 penalty units. Failing to stop and supply particulars attracts a maximum penalty of 20 penalty units.

Objectively the maximum penalties for the second category of offences are more serious. The charge of malicious damage to property brought pursuant to Section 195(1)(a) of the Crimes Act 1900 carries a maximum penalty of 5 years imprisonment. The prosecutions for offences against Section 60(1) of the Act attract a maximum penalty of 5 years.

Although an offence may when objectively compared with another be an offence that attracts a higher maximum penalty it does not follow that it automatically results in a higher outcome. The maximum sentence fixed by the legislature defines the limits for cases in the gravest category. "The common law principle of proportionality requires that a sentence should neither exceed or be less than the gravity of the crime having regard to the objective circumstances." Veen -v- The Queen (no.2) 164 CLR 465 at 477. In sentencing the court must initially consider the gravity of the offences viewed objectively.

In doing so I form the view that the conduct within the offences of take and use motor vehicle and drive under the influence are beyond the mid range level of seriousness and are towards the upper range of objective seriousness. The fine only offences are towards the middle range. I draw this conclusion because of the necessity in my view of considering the manner of driving and consequential conduct in isolation from the issue of intoxication. To do otherwise would lead to an element of double jeopardy.

So far as the offences of 19th May are concerned the offences of malicious damage are towards the lower to middle range of seriousness. The offences of assaulting police in the execution of their duty range from the lower level in respect of the conduct directed towards Detective Lewandowski and above the middle range in respect of the assault and manner of assault on Constable Winckle.

A just sentence requires more than simply a focus on the objective seriousness of the conduct. Acknowledgment of the purposes of sentencing set out in Section 3A of the Crimes (Sentencing Procedure) Act 1999 confirms this reality. Just as a court must take into account and evaluate the utilitarian value of a plea of guilty so too does the Act require it to identify circumstances of aggravation as set out in Section 21A(2) and circumstances of mitigation as set out in section 21A(3) of the Act. I turn firstly to the circumstances of aggravation.

The offender is not a first offender. Section 21A(2)(d) establishes prior offending as a circumstance of aggravation. The principles to be taken into account in relation to how a prior record is to be considered are set out in R -v- McNaughton [2006] NSWCCA 242 and the Sentencing Bench Book issued to all judicial officers by the Judicial Commission of New South Wales. The relevant entry is on page 5561 and need not be recounted for the purpose of these remarks. I have considered them in the sentencing process.

In R -v- Walker [2005] NSWCCA 109 the court said it is incumbent on the sentencing court to make clear the precise way in which an offender's record has been taken into account. Mere reference to the statutory provision is insufficient. In these proceedings I have taken the offender's record into account as having a direct bearing on considerations set out in Section 21A(3) as mitigating factors. It is the view of the court that objectively by reason of her prior record both in relation to criminal offending and the commission of a prior major traffic offence the offender cannot establish Section 21A(3)(f) (g) or (h) as factors relevant to mitigating the penalties to the same extent as someone without such a record. This is not to say the court excludes entirely the mitigating nature of such provisions. It is to say that necessary caution will reduce the capacity to impact greatly on sentence. There are however some strong subjective features that the court must take into account and which in my view do mitigate the penalty. They are to be found in the pre-sentence report, the report from Dr Wren and references tendered on behalf of the offender.

It is clear from both the pre sentence report and the report from Dr Wren that the offender has a number of health issues. It is also clear these issues are relevant both to her conduct and in assessing the prospect of rehabilitation. According to the medical report the offender suffers from bi-polar disorder. This condition was diagnosed some 5 years ago. She also suffers from symptoms related to obsessive-compulsive disorder. She is currently under medical supervision and receiving medication to deal with her depression. Dr Wren is not a psychiatrist. He does however outline many years of experience within the public health system in the area of treating mental health. His overall perspective is one of cautious optimism depending on cessation by the offender of her gambling habit, which he describes as pathological and the continuation of treatment for her bi polar condition.

The probation and parole report also describes issues with drug and alcohol abuse in her past. Documentation provided to the court ostensibly under the hand of the offender confirms an addiction to these two environments and an affirmation that she is doing something to cease such abuse. Many offenders say the same in the misguided belief firstly that a court will accept it as the truth and secondly that somehow it absolves the offender from the conduct. Neither perspective reflects the true position.

The offender's referees are aware of her current situation and her background. Importantly they describe the offender's commitment to her daughter in positive terms. This is also part of the offender's own plea for mitigation. I accept she is fearful of damaging the prospects of her daughter through her conduct and the potential consequences. I accept she is a very determined mother who has continued care for her daughter in disadvantaged circumstances. I also accept, as must the offender that this commitment has not been so compelling as to stop her from offending or indulging in the abuse of alcohol and drugs or gambling. In many instances a court faced with such assertions of devotion could easily come to the conclusion that the existence of a young child is being used as an emotional lever to bring about a penalty that the offender would not otherwise be entitled to receive.

Hardship to family is an issue that has received considerable attention by superior courts. As a general principle when a court is considering a term of imprisonment hardship is not a mitigating consideration unless the hardship is "wholly" "highly" or "truly" exceptional. It is only where circumstances are "highly exceptional" and where it would be inhumane to refuse to do so that hardship to others in sentencing can be taken into account." R -v- Edwards (1996) 90 A Crim R 510 at 516 Sentencing Bench book p. 5585.

I do not regard the offender's relationship with her daughter or the situation surrounding the need for her care as falling within the "highly exceptional" category. The offender should understand clearly and unequivocally that she cannot use the relationship with her daughter as a barrier to the full ramifications of the law. It is a relationship however the court is required to take into account in assessing the offender's subjective circumstances. The degree of regard for those circumstances remains a matter for the court.

Turning to the offender's subjective circumstances in a wider context it is a trite observation to make that she has led a difficult life. Although not established to any standard of proof the submissions by counsel on her behalf along with the offender's statement to the court and those matters alluded to in the pre sentence report and the doctor's report are important. They disclose a life affected by sexual abuse at an early age, exposure to multiple sexual relationships containing a high level of domestic violence, abandonment either by partners or by the offender of relationships because of conduct within them, resort to drugs and alcohol at an early age, fluctuating addiction to drugs and gambling, resort to prostitution at the behest of a partner and constant re-location from house to house. Such is the innate sadness of her upbringing and background to date that her life can in no way be described as normal. Through all of this she has managed to maintain both custody and a relationship with her daughter and a focus on providing a better life for her. In one sense her commitment has been remarkable. In another sense it has been self-indulgent. No information has been placed before the court as to the impact of exposing a young child to the very type of environment that the offender now seeks to escape. Were it not for the continuity of supervision of her daughter through all of her travails the court would be, for the reasons to which I have already adverted, necessarily cautious about the level of emphasis to be placed on the relationship.

The subjective features pertinent to the offender are relevant to be taken into account on a number of levels. To an extent they explain, but do not justify her conduct. They are also relevant on the issue of prospective rehabilitation. Her underlying mental condition is not of a type that would bring her within the upper end of application as set out in R -v- Hemsley [2004] NSWCCA228 at [33]-[36] for there is no suggestion that she did not at the time of offending act without knowledge of what she was doing. The fact that she now seems to be participating in a regime for managing her condition is relevant in assessing prospects of rehabilitation. The commitment to her daughter, the change in her living environment and the support of settled members of her new community are also relevant on the issue of rehabilitation.

Even allowing for all of these factors however the conduct of the offender remains, as I have indicated, serious. In furtherance of the principles of general and particular deterrence the more serious offences, categorized as the assaults on the police the taking of the motor vehicle and the driving under the influence, merit condign punishment.

It is clear from the undisputed statement of facts for the first series of offences that at the time the offender obtained the keys to the motor vehicle by means of a subterfuge that she was highly intoxicated. It is clear that she was aware that the owner of the vehicle would not provide the keys to enable the car to be driven because of her high state of intoxication - she told her so. Despite that she took a potentially lethal weapon onto a major arterial highway and drove for many kilometres. Some of the driving was at a high speed where darkness prevailed and other road users would be making their decisions on the assumption that her cognitive abilities were not impaired. So impaired were her abilities that she collided with two motor vehicles. Despite the passage of time between the reports both of the theft of the vehicle and of the incidents on the M7 police who arrested her described her as so intoxicated as to be slurring her words and requiring assistance in walking.

No society can tolerate conduct such as this. It is inimical to the preservation of human life and public safety. Taking a motor vehicle in full knowledge that previous efforts have been undertaken to prevent a breach of the law is unacceptable. Using that vehicle in such a manner that human safety is endangered is similarly unacceptable. These are offences that require in my view, sentences of imprisonment. I come to this conclusion both on the objective seriousness of the conduct and after re-considering the observations of the court in R -v- Zamagias [2002] NSWCCA 17 at [25] wherein the court said:

" The preliminary question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 of the act prohibits a court from imposing a sentence of imprisonment unless the court is satisfied having considered all possible alternatives that no other penalty other than imprisonment is appropriate…Having determined that there is no other penalty appropriate other than a sentence of imprisonment the court is next to determine what the term of the sentence should be… the determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed, see s.6 (periodic detention order), s7 (home detention order) and s.12. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. For example it cannot be increased because it is to be served by way of periodic detention R -v- Wegener [1999] NSWCCA 405 or by home detention: R -v- Jurisic (1998) 45 NSWLR 209 at 249. Nor can the term be reduced because an otherwise appropriate alternative is available."

The appropriate sentences are ones of 12 months for the taking of the motor vehicle and 9 months for driving under the influence. The discount of 15% for the pleas of guilty applies to each of these sentences.

For the offence of taking and using the conveyance the offender is sentenced to imprisonment for a period of 10 months. For the offence of driving under the influence the offender is sentenced to imprisonment for 7 months and 15 days.

The penalty in respect of each of the fine only offences would ordinarily be one of a significant fine. I note however that the pre-sentence report identifies the offender as owing a sum in excess of $40,000 as a personal debt. Imposing significant fines in these circumstances would be crushing. Taking into account the punishment for the more serious offences I exercise my discretion to record a conviction and dispose of the matters pursuant to Section 10A of the Crimes (Sentencing Procedure) Act 1999.

Turning to the offences of malicious damage to property and assaulting a police officer the conduct committed against constable Winckel merits condign punishment. Without taking the plea of guilty into account the appropriate period is imprisonment for 8 months. The malicious damage to the police cell warrants serious consideration of a similar outcome. On balance whilst I remain of the view that imprisonment is warranted for the assault on constable Winckel the discount for the plea of guilty is sufficient, but only just to move the outcome for that count of malicious damage from condign punishment to a lesser penalty. In relation to this offence and the offence involving the assault on detective Lewandowski I am of the view that Community Service meets the objective of denunciation and prospective rehabilitation in the short term. For the remaining offences, Section 9 of the Crimes (Sentencing Procedure) Act is expressed in the following terms "Instead of imposing a term of imprisonment on an offender the court may release the offender on a good behaviour bond". Considering the subjective circumstances of the offender and the need to put in place a long period of supervision the Court is prepared to take a longer-term rehabilitative approach in relation to these offences.

For offence sequence 8, the assault on constable Winckle and after applying the 15% discount for the utilitarian value of the plea the offender is convicted and sentenced to imprisonment for a period of 6 months and 21 days. On charge sequence 2, the damage to the police cell the offender is convicted and ordered to perform 150 hours community service. On charge sequence 5, the assault on detective Lewandoski the offender is convicted and ordered to perform 150 hours community service. Each order is to be served concurrently and the offender is to report to the City Office of the Probation and Parole Service within 7 days. On the remainder of the charges 1,3,4 the offender is similarly convicted and is released upon entering a good behaviour bond pursuant to Section 9 of the Act to be of good behaviour for a period of eighteen months and to appear before the court if called upon during that time.

Each of these bonds, that is those under Section 12 and those under Section 9 are conditioned that the offender accept the supervision and direction of the officers of the Probation and Parole Service and obey all reasonable directions of the service as to participation in drug and alcohol rehabilitation programmes, in the sober driver programme and in gambling rehabilitation programmes. Each bond is further conditioned that the offender undertakes random urinalysis as directed by an officer of the probation and parole service. The offender is not to be released from supervision without leave of the court. In addition the offender is to pay the sum of $389.19 to the New South Wales Police Force by way of compensation for damage caused at Mt Druitt Police Station. She is allowed 28 days to pay or such longer period as may be arranged with the Registrar of the Court.

It is at this point that the court returns to the subjective features relating to the offender. It seems clear from the offender's antecedents and the reports prepared to assist the court that identification of her underlying medical and pathological conditions is of relatively recent discovery. It does not appear to have been the case that they were placed before the court during earlier periods of offending, particularly in relation to the 2004 offence.

The mental condition of the offender and its capacity for management if properly supervised within a medical environment is a relevant consideration on the question of rehabilitation. Had it been identified and addressed at an earlier time in her life it may have affected the way in which she has lived her life and as a consequence impacted on the likelihood of these offences being committed. I do not know whether this would have occurred I do however acknowledge that it is the experience of Courts that leaving an underlying condition that impacts on the ability of an offender to function within the community untreated can lead to the commission of offences that might otherwise not have been committed.

On balance I am prepared to come to the view that these events are both a watershed in the discovery of underlying mental conditions capable of being treated and a Rubicon of required decision making on the part of the offender as to just how much she values her role as a mother the association and necessary obligation this brings apropos her daughter. If the offender does not at this time value that relationship sufficiently highly to cause her to choose a law abiding life with constructive rehabilitation as opposed to one of reversion to her former lifestyle then she will know that the latter choice comes not only at the cost of losing her daughter but also her freedom. I make these observations for the purpose of considering the provisions of Section 12 of the Act. These provisions allow a court, where appropriate, to suspend the execution of a term of imprisonment.

In R -v- Zamagias [2002] NSWCCA 215 at [32] the Court said "a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognized that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is significantly more lenient than any other sentence of imprisonment… it is perhaps trite to observe that although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate."

Lest the offender form the view that this outcome comes without consequence I remind her of the words of the Court in Elliott -v- Harris (No2) (1976) 13 SASR 516 wherein the court said: "So far as being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future.. A liability over a period of years [or in this case months] to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment." These observations have since been added to by the Court of Criminal Appeal in DPP -v- Cooke [2007] NSWCCA 2. The offender would be extremely unwise in these proceedings not to grasp the opportunity of rehabilitation firmly and with both hands. Any breach of these bonds that brought her within the constraints set out in DPP -v- Cooke would be fatal to her conditional liberty.

Each sentence of imprisonment is suspended pursuant to the provisions of Section 12 of the Crimes (Sentencing Procedure) Act 1999 conditional upon the offender entering a bond in respect of each matter to be of good behaviour for the term specified in each period of imprisonment imposed. Each bond is conditioned in identical terms to those the offender is required to enter pursuant to Section 9 in relation to other offences.

Lastly I turn to the issue of disqualification of license, a consideration I am required to make in relation to the offence of driving under the influence of alcohol. The offender, by virtue of a conviction for a major traffic offence in 2007 is a second offender. The automatic period of disqualification is 3 years. I note the observations of Howie J. in the Guideline Judgment for High Range category offences of driving with the prescribed concentration of alcohol. Unless the offender falls within the ambit of discretionary consideration on the issue of disqualification then Courts are expected to give effect to the legislative intent. There is nothing before this Court that would entitle the court in my view to depart from the application of the automatic period of disqualification. Indeed the history of the offender's predilection to abuse alcohol and other substances suggests that it is in the community's interest and the offender's that she not be permitted to drive for a lengthy period. In addition to the orders made pursuant to Section 12 of the Act for the suspension of the term of imprisonment imposed for the offence of driving under the influence of alcohol the offender is disqualified from holding or obtaining any license for a period of 3 years from today.

Graeme Henson Chief Magistrate 16th February 2009

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