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1. The offender, Nathaniel Coulter, is to be sentenced for several offences arising out of an incident in the early hours of the morning on 19 October 2023 when he attempted to evade police apprehension while driving a stolen motor vehicle. The offender engaged in dangerous driving and drove near police officers after failing to stop the vehicle when directed to do so by police.

2. The offender is to be sentenced for the following offences: (a) CC2023/10225: aggravated dangerous driving contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) which carries a maximum penalty of imprisonment for 5 years, 500 penalty units or both. There is an automatic licence disqualification period of 12 months. (b) CC2023/10229: drive motor vehicle near police contrary to s 29A of the Crimes Act 1900 (ACT) (the Crimes Act) which carries a maximum penalty of imprisonment for 15 years. (c) CC2023/10230: drive motor vehicle without consent contrary to s 318 of the Criminal Code 2002 (ACT) which carries a maximum penalty of imprisonment for 5 years, 500 penalty units or both. (d) CC2023/10232: drive motor vehicle near police contrary to s 29A of the Crimes Act which carries a maximum penalty of imprisonment for 15 years. (e) CC2023/10912: drive while disqualified contrary to s 32(1)(a) of the Road Transport (Driver Licensing Act) 1999 (ACT) (a related, transferred offence) which carries a maximum penalty of imprisonment for 6 months, 50 penalty units or both. There is an automatic license disqualification period of 12 months.

3. The offender entered pleas of guilty to all charges in the Magistrates Court in February 2024. He has been in custody since his arrest for these offences. The use of a conducted electrical weapon

4. At the outset of these remarks, I want to address a matter of concern in relation to the conduct of police during the offender’s arrest. The following observations do not undermine the seriousness of the conduct the offender engaged in; a matter I will address further on in these remarks.

5. The seriousness of an offender’s conduct is not a licence to disregard the obligations that attend to the execution of power by police. Those obligations exist in every instance that an alleged offender is arrested or dealt with by police, notwithstanding the nature of the offence they are alleged to have committed. The boundaries of police power do not blur according to the nature of an alleged offence.

6. In this instance, the apprehension of the offender by police saw him subjected to a use of force by a conducted electrical weapon (a taser) during his arrest. Body-worn-camera footage of the offender’s arrest was played and tendered by the prosecution during the sentencing hearing. The footage revealed that once the offender stopped the vehicle he was immediately surrounded by police. The agreed statement of facts described police “saturating” the location to apprehend the offender.

7. The offender, a young man of very slight build, was in the driver’s seat of the vehicle and faced with a large group of police in full police uniform. He can be observed almost cowering from police in the driver’s seat of the vehicle with his arms up around his head. His position is submissive. The footage demonstrated police to be entirely in control of the arrest of the offender; him giving no physical or verbal indication of an intention to flee, to be uncooperative or to be threatening towards police when he finally stopped the vehicle he was driving.

8. Inexplicably it would seem, the offender was tasered as he was sitting in the vehicle. The footage is from the perspective of the officer who deploys the taser. The officer stopped the police vehicle he was driving, got out and quickly approached the vehicle in which the offender was sitting; other police were already in close proximity to the offender. The officer can be observed to reach up and over the open driver’s side door and taser the offender. The offender was still wearing his seat belt.

9. The taser was deployed with confidence and the cry of the offender in response to the taser could be heard. The offender is dragged from the vehicle and was held down by what appeared to be several police before being taken to a caged police vehicle. While I accept that likely operating in the minds of police was that the offender had failed to follow their direction to stop, the circumstances of his arrest depicted in the footage do not demonstrate any immediate safety concern or threat with respect to his physical apprehension. The offender was seated in a stationary vehicle that was surrounded by police vehicles, the door to his seat in the vehicle was open, he had his hands in the air, he had a seat belt on, and there were several police within arm’s reach of him.

10. Curiously, a description of the use of the taser on the offender was not included in the agreed statement of facts and accordingly, an explanation for the necessity of the action cannot be found in that document. The prosecution could offer no insight into the decision to use a taser on the offender. It is difficult to identify the basis upon which it could have been concluded that the use of a taser was reasonably necessary and proportionate in the circumstances of the arrest revealed in the footage.

11. Absent an explanation, against the background of the requirement for an arrest to use no more force than is reasonable and necessary, the use of the taser on the offender had the very real appearance of being an action designed only to punish him. While some in our community might think it should be the role of arresting police to impose punishment or to enact retribution or to teach an offender a lesson about the error of their ways, it is not their role. If it were, we would have a different kind of system of justice than the one I promised to administer.

12. I cannot say that the use of a taser in this matter, where the wisdom of the decision to use it would appear to be at least questionable, is an isolated example in my experience as a judicial officer. That experience is part of the reason that I have determined to remark upon it. The deliberate use of excessive force during the course of an arrest demeans the body of important police work regularly performed across our community with care, respect and diligence.

13. I do not underestimate the very real challenge of community policing, some of which is dramatically exposed by the offender’s conduct on this occasion. The challenge of the work cannot be recognised by endorsing or ignoring a relaxed approach to reasonable constraints on the exercise of police power. The courts have a duty to be vigilant on behalf of the entire community about the obligations that attend to the exercise of police power, where life and liberty can be affected.

14. The concern I have expressed in relation to the use of the taser on the offender does not influence my determination of the appropriate sentence to impose. I was not asked to take it into account as additional punishment. It does lend support to the submissions made by the offender as to his experience of being arrested leaving an impression upon him, providing context to remarks attributed to him in reports before me about his offending and his arrest.

The facts of the offending

15. On Wednesday 18 October 2023, the offender was on bail for separate offences which included a curfew condition to be at home between the hours of 8:00pm and 8:00am.

16. At 7:55pm that same day, the owner of a vehicle, being a 2016 white Toyota Hilux single-cab tray back utility (the vehicle) attended Belconnen Police Station to report its theft from the Westfield Belconnen Bus Interchange at Lathlain Street, Belconnen in the ACT.

17. On Thursday 19 October 2023, at 12:13am, police were conducting a mobile patrol of Bowman Street in the suburb of Macquarie. Police observed the vehicle make a left turn from Bowman Street onto Catchpole Street and proceed in a westbound direction.

18. At this time, police covertly followed the vehicle in an unmarked police vehicle, observing it to make a left turn onto Belconnen Way and proceed in a westbound direction towards the intersection of Belconnen Way and Coulter Drive. As the vehicle proceeded through that intersection through a green light and continued along Belconnen Way in a westbound direction, a police member was standing 100 metres ahead on the gravel median strip, ready to deploy a Tyre Deflation Device (“TDD”). The vehicle braked immediately, before making a U-turn over the gravel median strip and into the eastbound lanes of Belconnen Way.

19. The vehicle then proceeded through the intersection of Belconnen Way and Coulter Drive in an eastbound direction, against a red light, and accelerated away at high speed before being lost from view.

20. At 12:19am, police who were conducting a mobile patrol of Ginninderra Drive, in the suburb of Kaleen in an eastbound direction, observed the vehicle travelling at high speed in the opposite direction along Ginninderra Drive in Bruce. The police made a U-turn over the grass median strip of Ginninderra Drive and accelerated after the vehicle, observing it to travel through the intersection of Ginninderra Drive and Haydon Drive at high speed through a green light. Police then observed the vehicle make a sharp right-hand turn onto Wanderlight Avenue, at the intersection with Ginninderra Drive, and enter the suburb of Lawson. At this time, the vehicle was lost from view within the suburb, with police then cordoning off the suburb to contain the vehicle.

21. A short time later, police were stationary at the intersection of Nevertire Street and Stockman Avenue in Lawson when they observed the vehicle make a right-hand turn onto Stockman Avenue, from Wanderlight Avenue, and proceed at speed in an eastbound direction. At this time police crossed the grass median strip and entered onto the eastbound lane of Stockman Avenue to block the vehicle from proceeding further, whilst activating emergency lights and signalling for the vehicle to stop.

22. The vehicle then continued along Stockman Avenue at speed, headed near Acting Sergeant Bigmore’s fully marked police vehicle. At this time, Acting Sergeant Bigmore pulled his vehicle to the left-side of the roadway to avoid a head-on collision. The vehicle travelled at speed, no more than one metre past the right side of Acting Sergeant Bigmore’s police vehicle and failed to stop for police.

23. At 12:23am police were conducting a mobile patrol of Ellenborough Street in Lyneham when they observed the vehicle travelling on the incorrect side of the road in a southbound direction, before making a right turn at speed on Ginninderra Drive and continuing on the wrong side of the road in a westbound direction.

24. At 12:25am, Sergeant Leeson was positioned on the grass median strip of Ginninderra Drive in the suburb of Kaleen when the vehicle approached them at high speed, still on the incorrect side of the road. Sergeant Leeson deployed a TDD onto the roadway in front of the vehicle. The vehicle altered its course and the offender drove near Sergeant Leeson, who was on foot. This caused Sergeant Leeson to take evasive action and leap out of the way of the oncoming vehicle, back onto the grass median strip to avoid being struck at high speed. Simultaneously, the TDD was successfully deployed onto the rear right-side tyre of the vehicle.

25. A short time later, police activated emergency lights and sirens and signalled for the vehicle to stop as it travelled through the intersection of Ginninderra Drive and Wanderlight Avenue in Lawson, on the incorrect side of the road. The vehicle failed to stop for police and continued at high speed in a westbound direction. Due to the immediate risk to police and members of the public given the vehicle’s manner of driving, a pursuit was commenced with the vehicle as it continued on the incorrect side of the road.

26. The vehicle then travelled the length of Ginninderra Drive until it met the intersection of Gundaroo Drive on the incorrect side of the road at high speed, before making a sharp left-turn over the grass median strip onto the correct side of the road to avoid another TDD deployment by police.

27. The vehicle then travelled the length of Ginninderra Drive on the correct side of the road in a westbound direction at high speed with the rear right-side tyre beginning to visibly disintegrate, until it reached the intersection with John Cleland Crescent in Florey. At this time, the vehicle braked hard and made an immediate U-turn, before travelling back along Ginninderra Drive on the incorrect side of the road driving near Acting Sergeant Bigmore, being reckless as to his safety. A number of police vehicles took evasive action to avoid a head-on collision, before also conducting a U-turn to re-engage the vehicle.

28. The vehicle travelled along Ginninderra Drive on the incorrect side of the road in an eastbound direction, before making a sharp left-hand turn across the grass median strip and back onto the incorrect side of the road.

29. The vehicle then travelled the length of Ginninderra Drive on the correct side of the road in an eastbound direction at high speed, with the rear right-side tyre now fully disintegrated and the vehicle driving on the rim of the wheel. During this time, the vehicle proceeded through the intersection of Ginninderra Drive and Haydon Drive against a red light, where another TDD was successfully deployed by police a short time later and began to deflate the front right-side tyre.

30. The vehicle then proceeded through the intersection of Ginninderra Drive and Mouat Street in Lyneham against a red light and made a right-hand turn onto Mouat Street in a southbound direction. At the intersection of Mouat Street and Brigalow Street, a third TDD was successfully deployed by police against the vehicle causing the front left-side tyre to begin deflating. The vehicle then continued along Mouat Street in an eastbound direction, with both front and rear right-side tyres now completely disintegrated and proceeded through the intersection with Northbourne Avenue against a red light and onto Antill Street in Downer.

31. At about this time, sparks began to emanate from the front and rear right-side of the rims of the vehicle as it continued to drive on the rim of the wheel in an eastbound direction along Antill Street, with the vehicle now noticeably slowing its speed and severely disabled. A short time later, having driven on both front and rear-side rims and suffering a now fully deflated front left-side tyre, the vehicle came to a stop along Antill Street with the offender making no attempt to flee the location.

32. Police saturated the location to apprehend the offender, immediately recognising the male in the driver’s seat to be the offender and the sole occupant of the vehicle. Police confirmed the offender’s identity via police records.

33. At 12:37am, the offender was extracted from the vehicle and taken into custody. The offender was then cautioned pursuant to pt 1C of the Crimes Act 1914 (ACT). At 1:00am, the offender was conveyed to Calvary Hospital to have blood samples taken as police suspected he was under the influence of an illicit substance, as well as to have any injuries assessed.

34. On 1 November 2023, police received a certificate pursuant to s 41AD of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) which confirmed the presence of methylamphetamine within a blood sample taken from the offender on 19 October 2023.

35. Police conducted checks on the Road Transport Authority indices which showed that the offender had never held a driver licence of any kind in Australia. The offender was disqualified from holding or obtaining a licence at the time of the incident. A three-year disqualification period was imposed by the Magistrates Court on 14 June 2022. Sentencing considerations

Nature and circumstances of the offending

36. A consideration of the nature and circumstances of the offence requires an assessment of the objective seriousness of the conduct. The maximum penalty provides an indication of the seriousness of the offence (see Muldrock v the Queen [2011] HCA 39; 22 CLR 120 at 133 [31]) and is a “yardstick” against which to assess the objective seriousness of the offending: Markarian v R [2005] HCA 25; 228 CLR 357 at 372 [31]. I approach this task bearing in mind that references to low, mid or high range objective seriousness may generally be unhelpful in this jurisdiction. I have approached an assessment of objective seriousness by identifying the features of the offending that inform it: see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24].

37. As Refshauge AJ did in R v Law [2021] ACTSC 351 (Law) at [1], I observe that many traffic offences do, or have the capacity to do, great damage to the community; a motor vehicle being “potentially a lethal weapon”. Too many families in our community know the traumatic and devastating consequences of a decision made to drive a motor vehicle with little regard for the safety of others.

38. Consistent with the maximum penalties that apply, the offences engaged in by the offender are undoubtedly serious. The offender’s conduct brought with it the potential for serious harm to other road users and to the police officers carrying out their duties for the community.

39. It was accepted at the outset by the offender that the conduct demanded the imposition of a period of imprisonment. This is a position that acknowledges the nature and gravity of the conduct and with which I agree. What follows is an assessment of the individual offences to identify the features of the conduct relevant to the objective seriousness of them.

Drive motor vehicle without consent

40. In DPP v DB (A pseudonym) [2023] ACTSC 294 at [42] I observed the following: R v Rosewarne [2021] ACTSC 217at [124], R v Massey (No 3) [2021] ACTSC 156 (Massey (No 3)) at [29], Sampson v De Haan [2016] ACTSC 327 at [40] and R v Lock [2016] ACTSC 319 at [15] identify factors relevant to an assessment of objective seriousness for this offence and they can be summarised as follows: (a) whether the offender drove or rode in the vehicle; (b) the duration of the driving or riding; (c) if the offender was the driver – the nature of the driving (unless charged separately); (d) whether the driving caused damage to the vehicle (unless separately charged) and whether the vehicle was recovered undamaged and returned to the owner; (e) whether the vehicle was used in the commission of another offence; (f) whether false numberplates were affixed to the vehicle (unless charged separately); (g) the motivation for the use of the vehicle; and (h) the level of inconvenience to the owner of the vehicle.

41. The offender drove the motor vehicle for a period of less than one day. Damage was caused to the vehicle’s tyres by the TDDs deployed by the police in an attempt to apprehend the offender. It was used in the commission of the below-mentioned offences of aggravated dangerous driving and driving near a police officer. The taking of the vehicle, although for a relatively short period, would have represented inconvenience and some cost to the owner noting that it was damaged in the course of the offender driving the vehicle.

Aggravated dangerous driving

42. In DPP v Clarke (No 2) [2023] ACTSC 261 (Clarke (No 2)) at [38] I summarised, by reference to R v Rosewarne [2021] ACTSC 217 (Rosewarne) at [122] and Law at [31], the following factors as relevant to an assessment of the objective seriousness of this type of offence: (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) damage occasioned to other vehicles, objects, houses or people; and (k) the extent to which police were put at risk when trying to terminate the driving.

43. The circumstances of aggravation for this charge are the presence of methylamphetamine in blood samples taken from the offender and the failure to stop for police once directed to do so.

44. The video footage played at the hearing demonstrated the speed at which the offender drove and the risk he presented to other road users. It was dark and the driving occurred over an approximately 20-minute period. Consistent with the timing of the offence being in the minutes after midnight, the road was not especially busy. Nonetheless a small number of vehicles could be seen on the road over the course of the driving. The route driven by the offender saw him drive along major arterial roads and move through major traffic and pedestrian intersections. For short periods, the offender drove on the wrong side of the road. The offender drove through three red lights and made U-turns across the median strips between roads.

Drive a motor vehicle near police

45. This offence was introduced into the Crimes Act on 10 June 2020. It should be observed 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 officer’s safety: ss 29A(1)(d)(i)-(ii) of the Crimes Act. The prosecution identified that the offending on this occasion was put on the basis that the offender was reckless about risking safety. Further, the offending was committed by virtue of driving “near” police officers, not “at” police officers.

46. The maximum penalty for an offence committed under s 29A of the Crimes Act does not distinguish between driving at or near police officers, or between conduct that is intentional or reckless. The circumstances of the offending on this occasion see it as objectively less serious than if the driving was intended to risk the officers’ safety or involved driving “at” the officers.

47. The charge in relation to the offender driving near Acting Sergeant Bigmore (CC2023/10232) is a “rolled up” count capturing two occasions where the offending involved Acting Sergeant Bigmore; first, the offender driving near the police vehicle Acting Sergeant Bigmore was driving on Stockman Avenue and secondly, driving near Acting Sergeant Bigmore’s police vehicle on Ginninderra Drive. A “rolled up” count necessarily captures a greater degree of criminality than a count which only captures one instance of the conduct: R v Hancock [2021] ACTSC 52 at [28] and Johnston v R [2017] NSWCCA 53 at [68].

48. In DPP v Druett [2024] ACTSC 56 at [20], Loukas-Karlsson J summarised those factors Refshauge J identified in R v Seymour [2021] ACTSC 152 (Seymour) at [34]-[37 as relevant to an assessment of the objective seriousness of this offence: “(a) whether damage is caused to a police vehicle; (b) whether the offender is engaged in a police pursuit; (c) whether the offence occurs in a busy locality and whether house or footpaths border 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; (e) the speed or other danger involved with the offender’s driving; (f) whether there were any passengers in the vehicle; […].”

49. The offender drove near the police officers in the context of a police pursuit where he drove erratically in an effort to evade apprehension. There were no other passengers in the vehicle. The offender drove near Sergeant Leeson on Ginninderra Drive while he was deploying TDDs onto the road. Sergeant Leeson was not in a vehicle and so made more vulnerable by the lack of protection a vehicle would have afforded him. The offender drove “headfirst” at the police vehicle that Acting Sergeant Bigmore was inside while in pursuit of the offender. The driving was clearly designed to evade or impede arrest. Stockman Avenue is a residential location with houses and footpaths bordering the road. Ginninderra Drive is a major arterial road. Both offences occurred around midnight with the offender driving at times at high speed.

Transferred offence

50. The offender also faces a charge of driving while disqualified, transferred from the Magistrates Court. While the nature of the driving engaged in while driving disqualified is relevant to an assessment of objective seriousness, given the offender has been separately charged for the manner of his driving, I must be careful not to doubly punish the offender.

51. As the facts reveal, on 14 June 2022 the offender was disqualified from holding or obtaining a license for a total of three years after being convicted and sentenced for unlicensed driving and for aggravated furious, reckless or dangerous driving. There can be no doubt the offender was aware of the consequences of that order. Subjective circumstances

52. A pre-sentence report, as well as a report completed by psychologist Ms Vanessa Edwige, comprehensively record the background, history and personal challenges of the offender.

53. The offender is a 22-year-old Yuin man, his father connected to that area of vast country in New South Wales (NSW) that stretches from Nowra down the South Coast of NSW. The offender spent much of his childhood in Kempsey, NSW. The offender described a connection to his culture and community developed in circumstances where his childhood was marked by disruption and dysfunction. The offender was consistently exposed to substance abuse, family violence, and neglect. His relationship with his mother was severely affected after he was put in his father’s care when she left the marriage, having been the victim of violence for many years. The offender reconnected with his mother when he was 16 years old, moving to live with her in Canberra. The offender’s father was violent toward him and unpredictable. He offered an unstable home environment and was a regular user of illicit substances.

54. Ms Edwige confirms that adverse childhood experiences such as the offender grew up with “significantly impact on a child’s social and emotional well-being”. Ms Edwige cites the Bugmy Bar Book, Childhood Exposure to Domestic and Family Violence (November 2019), where it records that “children exposed to family violence and in particular witnessing their parent being assaulted have difficulties regulating their emotions and have emotional and behavioural issues similar to a child that has been sexually assaulted”. Ms Edwige also records that childhood exposure to alcohol and drug use by parental figures among other things, increases “the likelihood that children will themselves develop substance abuse problems, making it more probable that they will come into contact with the criminal justice system”.

55. The offender described a now positive relationship with his mother and sister. His stepfather is currently in custody at the Alexander Maconochie Centre (the AMC), and he is permitted joint visits with him and his mother. The offender views this as a positive aspect of his current remand.

56. Consistent with his negative childhood experiences, the offender reported problematic alcohol use from the age of 12, engaging in binge-drinking throughout his early adolescence, cannabis use from age 10, methamphetamine use from age 15 and heroin use from age 16. By the time of his remand in custody in 2022 the offender was using methamphetamine and heroin daily.

57. The offender has completed the Solaris Therapeutic Community Program in custody, briefly attended the SMART Recovery program, and completed the EQUIPS Foundation Program. Concerningly, he commenced the EQUIPS Addiction Program in custody but stopped attending and was removed from the program on 18 July 2024. The offender intends to engage with the Canberra Recovery Hub and programs at Yeddung Mura upon his eventual release.

58. Despite a reported previous suicide attempt when he was 18 years old, the offender described his current mental state in positive terms. He has previously been admitted to the Adult Mental Health Unit on two occasions due to polysubstance abuse. The offender was of the understanding that he was in the process of being diagnosed with schizophrenia while in hospital, although discharged himself before this was able to be completed. Of some significance is that the offender commenced Buvidal injections in April of this year and plans to continue with this intervention in the community.

59. The offender has spent much of his adult life in custody and he has a significant history of alcohol and illicit substance abuse. The offender has a limited education, though has been employed in the past in various labouring jobs. In custody he has been consistently employed as a sweeper. The offender acknowledged that many of his social connections arise from his offending history, and he expressed a desire to avoid contact with them once he is released back into the community.

60. The offender frankly admitted that he has limited memory of the incident arising from his use of methamphetamines. He offered some insight into his offending conduct, readily acknowledging his actions could have caused serious injury or death to members of the public.

61. The offender was assessed as suitable for a high level of intervention and supervision. Unsurprisingly, the offender’s use of illicit substances was identified as his most significant risk factor. The author of the pre-sentence report identified residential rehabilitation as an intervention that would offer the offender intensive support.

62. A relapse prevention plan completed by the offender demonstrated his ability to identify and express the factors which present the most risk for him in relation to substance abuse as well as coping strategies to mitigate those risks. In addition, certificates certifying the completion of a variety of programs and educational courses in the AMC demonstrated the effort he has made toward rehabilitation.

63. A letter from Yeddung Mura confirmed the availability of programs upon the offender’s release from custody and confirmed he would receive personalised support through an individualised case plan. Counsel for the offender submitted that he is engaged in support services through Yeddung Mura already, attending the Men’s Group in the AMC. A letter from Canberra Recovery Hub confirmed the offender had made contact with their service as well as their capacity to assess him for inclusion in their Alcohol and Other Drug program within 48 hours of his release from custody.

64. Ms Edwige identified that despite the offender’s “profound history of adverse childhood experiences”, he has never seen a psychologist before or engaged in any form of counselling. In custody he has indicated a desire to access counselling through Winnunga Nimmityjah, but the waitlist is “long”. Ms Edwige considered that the offender’s “childhood history of significant disadvantage” had “resulted in complex developmental trauma”. Ms Edwige stated: “Mr Coulter’s psychological state and how he views himself in the world has been deeply affected by these adverse childhood and adolescent experiences. He has externalised this trauma through his conduct and risk-taking behaviours.”

65. Further, despite the offender’s long term significant use of heroin and stimulants, his drug use beginning at age 12 and culminating in daily use before his arrest, he has never attended or had access to specialist drug rehabilitation services. The offender’s drug use does not excuse his conduct but the young age at which he began using drugs is a relevant factor: Douglas v R (1995) 56 FCR 465 at 470; R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [184]-[185].

66. Ms Edwige considered that the offender met the diagnostic criteria for stimulant and opioid use disorder as well as generalised anxiety disorder. These diagnoses, together with the offender’s history of complex development trauma, have a “significant impact on his ability to make considered and appropriate choices and impaired his ability to make reasoned judgements, think clearly, regulate his behaviour and fully appreciate the wrongfulness” of his conduct. Ms Edwige also considered that the offender presented with several traits consistent with autism spectrum disorder which warranted further investigation. I was not asked to further delay proceedings for such an investigation to occur.

67. Ms Edwige concluded that the offender has been exposed to “cumulative traumas over his lifespan and this constant exposure to traumatic events throughout his life have caused significant psychological distress, behavioural dysregulation and dependency on heroin and stimulants”. Remorse, degree of responsibility for the offending and rehabilitation

Remorse

68. Remorse is an important consideration in assessing the offender’s prospects of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. The observation made by the offender to the author of the pre-sentence report regarding the potential for his offending conduct to have harmed “innocent” members of the public demonstrates a level of insight and remorse for his offending. Similarly Ms Edwige recorded the offender expressing empathy for those affected by his conduct saying he “would feel pissed off” if it were him.

69. The offender entered pleas of guilty at a very early opportunity, reflective of a willingness to accept responsibility for his conduct and genuine remorse. The offender has limited memory of his offending, consistent with his use of illicit substances.

Bugmy considerations; degree of responsibility for the offending

70. Ms Edwige’s clinical opinion was that the offender had, from a young age been exposed to significant childhood disadvantage and psychological stressors which she considered to have had a severe impact on his social and emotional wellbeing. This disadvantage included exposure to domestic violence and substance abuse from a young age, social exclusion and bullying at school. The offender continued to experience significant mental health issues as a young adult arising from his childhood experience that limited his capacity for adaptive behaviours and executive functioning. It is beyond doubt that the offender experienced a disadvantaged and traumatic childhood of the kind the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) considered could be relevant to an assessment of moral culpability.

71. The offender’s disadvantaged childhood must be given “full weight”: Bugmy at 595 [44]. By virtue of his childhood circumstances, the offender is a person who will necessarily “have fewer emotional resources to guide his (or her) behavioural decisions” than a person who had a “normal” or “advantaged” upbringing: R v Millwood [2012] NSWCCA 2 per Simpson J (with whom Bathurst CJ and Adamson J agreed at [69]). The material demonstrates that by age 12 the offender was using drugs, living without significant parental oversight and regularly exposed to antisocial behaviour by the adults charged with his care.

72. Ms Edwige makes plain the severe impact on the offender’s overall development of the deficiencies in his childhood experience, an experience entirely out of his own control. That experience operates to shed significant light on the offender’s conduct where it exposes his capacity for impulsivity and poor judgement; the very things a reliable, safe and caring childhood instructs.

73. Ms Edwige considered the offender’s current mental health issues and drug dependency to be directly connected to his negative childhood experiences. In turn, those factors are causally connected to his offending given their collective impact on his ability to make informed, reasoned decisions. The offending engaged in by the offender in this instance has all the hallmarks of impulsivity and poor decision making, demonstrating acutely his capacity for terrible judgement. This kind of presentation, compounded by his entrenched misuse of illicit substances, is entirely consistent with the offender’s criminal history. The offender’s poor decision making as an adult is reflective of the chaotic, dysfunctional environment in which he spent his childhood, created by the adults who were responsible for his care.

74. All of that is to say, there is undoubtedly a causal connection between the offender’s childhood experiences and his offending conduct. Accordingly, the offender has reduced moral culpability for his offending; R v Hagen [2022] ACTSC 362 at [42], MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 at [62], citing Bugmy at [43]. This is not to say that the offender bears no moral responsibility for his offending conduct. Rather, it is to acknowledge the true influence of his negative childhood experiences such that he does not bear the same degree of responsibility attributed to an offender who did not experience a disadvantaged childhood. This is what individualised justice demands.

75. At the same time, it must be acknowledged that the effects on the offender of his disadvantaged childhood influence an assessment of his prospects for rehabilitation and lend weight to the need for community protection and the need to deter him from engaging in this kind of conduct. Such is the tension the High Court recognised in Bugmy that attends to the instinctive synthesis when considerations pull the sentencing discretion in difference directions.

Rehabilitation

76. The offender has engaged in serious offending since becoming an adult and is consequently familiar with the custodial environment. Ms Edwige recorded that the offender is comfortable in the custodial environment because of the predictability and routine it provides. There is a risk I think, of him becoming institutionalised. This view fits with the offender’s concerns about his current capacity to comply with the strict regime of supervision that accompanies an Intensive Correction Order (ICO) such that it would “set him up to fail”. It is of concern that such a young man would feel more certain of his prospects of success in a custodial environment than he would with significant supports in the community.

77. Rehabilitation is a pursuit in both the offender and the community’s interests, it being the most durable guarantor of community protection: Hogan v Hinch [2011] HCA 47; 243 CLR 506 at [32].

78. The offender has engaged in programs designed to assist his significant substance use disorder. He is now employed in the AMC. He has made attempts to engage in particular with cultural supports at Yeddung Mura and Winnunga. He frankly volunteered that he has used “ice” sporadically while in custody because it makes him feel “calm”. He has consistently expressed a desire to cease using drugs and made an effort towards that aim. The offender’s engagement with the Buvidal treatment program has produced encouraging results in terms of his substance use within the AMC, in that it is assisting him to reduce this use.

79. Ms Edwige considered that the offender had positive prospects of rehabilitation. Specifically, she identified that the offender’s access to therapeutic work focusing on skill development in the areas of self-regulation, coping skills, resilience building, and self-esteem would enhance his capacity for reform. Ms Edwige observed that “provided with the appropriate supports, treatments and compliance with his drug replacement treatment, Mr Coulter has the ability to make positive gains”.

80. Ms Edwige considered the offender’s strong desire to make change was a significant aspect of his ability to be rehabilitated. She further considered that cultural supports would assist the offender to “build a stronger sense of his cultural identity through engaging in cultural practices and connecting to prosocial cultural groups that will facilitate a safe place to build healthy connections and enhance resilience”.

81. He has had limited access to psychological supports while in custody that would assist him to begin the work of, as Ms Edwige put it (citing Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (November 2022)), “creat[ing] new associations which over time can become the new default or template for guiding responses for future experiences”.

82. Ms Edwige recorded what I know to be true and that is the inextricable link for Aboriginal people between our overall wellbeing and our sense of self experienced through our expression of cultural identity and our connectedness to kin, community, and country. For the offender, as a Yuin man, this factor could be a significant source of strength if he is given the opportunity to access services that promote his healing at the same time as reinforcing the strength to be found in his connectedness to our culture. (see Significance of Culture to Wellbeing, Healing and Rehabilitation, Dr Paul Gray and Vanessa Edwige, June 2021).

83. In this regard Ms Edwige considered that the offender’s prospects for rehabilitation would be greatly enhanced if he genuinely engaged with programs available to him at Yeddung Mura and Winnunga Nimmitiyjah. The offender indicated a strong desire to pursue this support upon his release, having already accessed the limited support through those services currently made available at the AMC.

84. The offender is now 22 years of age and was 21 years of age when the offences were committed. There is a basis for some optimism with respect to the offender’s potential for rehabilitation. He will require significant support to realise that potential. Although not a young offender for the purposes of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act), he is still a young person, and this factor should be given weight in the sentencing exercise. In DPP v Malibe [2024] ACTSC 43 (Malibe) at [1]-[2], Berman AJ observed what life experience demonstrates and that is, that no “bright line of maturity” is bestowed upon a person when they arrive at 18 years of age. As his Honour did in Malibe I consider the offender to be a person who should be assisted as far as possible by the Court to rehabilitate himself.

85. It is apposite to recall what the NSW Court of Appeal said KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [23]: “The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).”

86. The nature and extent of the offender’s conduct admits his immaturity. In addition, he carries the untreated psychological burden of a disadvantaged childhood which is clearly connected to his substance use disorder. By virtue of his youth the offender has the capacity to be guided toward positive change notwithstanding some of the negative patterns he has thus far established: see Azzopardi v R [2011] VSCA 372; 35 VR 43 and R v Forster-Jones (No 2) [2019] ACTSC 286. The effect on the offender of incarceration in an adult prison at this stage in his life is likely to hinder rather than enhance his capacity for rehabilitation. This includes the risk that the environment, as well as the anti-social attitudes it houses, will become normalised.

87. Many of the factors influencing the offender’s conduct have been a product of his childhood. The rest of his life does not have to be. Like Ms Edwige I consider the offender to have positive indicators for rehabilitation. It is in the offender’s and the community’s interest that his potential for rehabilitation be given real weight in the sentencing outcome.

Criminal history

88. The offender has a criminal history in the ACT. That history is not extensive but is beginning to demonstrate a pattern of antisocial behaviour. Notably, the offender has been convicted for driving related offences in the past including dangerous driving. This is the first occasion he has committed the offence of driving disqualified. The offender’s criminal history limits the leniency that can be extended to him.

Time in custody

89. The offender has been in custody since 26 June 2024, solely referable to these offences. I will take this into account in the sentence I impose.

Plea of guilty

90. The offender entered pleas of guilty at a very early opportunity. The pleas had high utilitarian value. Accordingly I reduce the penalty I impose by 25 per cent in recognition of the early acceptance of responsibility by the offender.

Conditional liberty

91. The fact that the offender was on bail at the time he committed these offences is a circumstance of aggravation; representing a betrayal of the opportunity to remain in the community: R v Tran [1999] NSWCCA 109 at [15].

92. 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 an assessment of the objective seriousness of an offence: Smith v The Queen [2011] NSWCCA 163 at [26]. Current sentencing practise

93. The limitations of sentencing statistics and comparable cases are well-recognised. They do not define the possible range of available sentences nor do they place a cap on the upper or lower ranges of possible sentences: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537 [54] and Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51]-[53]. No sentencing outcome is a precedent.

94. The prosecution referred me to a number of sentencing decisions of this Court said to be comparable to this offending. They were: R v Rowlands (No 2); DPP v Rowlands [2024] ACTSC 143, Clarke (No 2), DPP v Allred [2023] ACTSC 184, Seymour, R v Crawford (a pseudonym) [2022] ACTSC 166 (Crawford), R v Williams [2017] ACTSC 298, R v Goolagong (No 2) [2021] ACTSC 131, Law, R v Collins [2019] ACTSC 302, Rosewarne, Mann v Tremethick (No 2) [2023] ACTSC 31, R v Guy [2022] ACTSC 373 and Director of Public Prosecutions v Holder (No 2) [2023] ACTSC 167 (Holder (No 2)).

95. In Clarke at [50]-[56] I referred to the detail of the offending and the outcomes in Crawford and Holder (No 2) specific to the offence of driving at or near police given its relatively recent insertion into the Crimes Act. For the offence of driving at or near police, the ACT Sentencing Database records that on the limited number of occasions the offence has been dealt with by this Court, periods of imprisonment have been imposed to be served by way of ICO, fully suspended sentence and partially suspended sentence.

96. It can be observed that in each of the cases to which I have just referred involving the offence of aggravated dangerous driving, periods of imprisonment were imposed; the length and method of serving the periods of imprisonment varied, in some cases considerably. Determination

97. These were impulsive and senseless offences demonstrating blatant disregard for the safety of police officers and other road users. The offending presented a real risk to the community and to the police officers going about the duties the community demands of them. In sentencing the offender, I have regard to the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act. The reduction in the offender’s moral culpability moderates the weight that would ordinarily be attached to punishment, denunciation and general deterrence. There is a need for specific deterrence, a need to recognise the harm done to the community and the victims and a need to hold the offender accountable. The sentence I impose should, for the reasons I have discussed, promote the offender’s rehabilitation.

98. The offending is properly described as a course of conduct and there is significant overlap between the offences such that they are legally and factually intertwined. 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. The sentence imposed must be “just and appropriate” for all of the offences: Mill v The Queen (1998) 166 CLR 59. 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: R v Knight (2005) 155 A Crim R at [112]. In the circumstances, it is appropriate for a substantial degree of concurrency given the overlap in the offences.

99. The offender was sentenced in the Magistrates Court on 13 February 2024 to a term of 12 months of imprisonment backdated to commence on 16 August 2023 and expire on 15 August 2024. He became eligible for parole on 15 February 2024. He was granted parole, effective from 26 June 2024. He has not applied for bail and has been remanded in custody solely in relation to these offences since that time. This sentence will be backdated to take into account the time in custody referable to these offences. I have also had regard to the total period of time the offender will now spend in full-time custody by virtue of the sentence that I impose.

100. It was conceded that the s 10 (of the Crimes (Sentencing) Act) “threshold” has been crossed in this matter and that a sentence of imprisonment must be imposed. The offender did not seek the imposition of an ICO. It was submitted on his behalf that a partly suspended sentence would appropriately strike the balance required to achieve the purposes of sentencing of significance in this matter. The prosecution supported the imposition of a partly suspended sentence and a good behaviour order observing that the good behaviour order could be crafted to facilitate extended, targeted supervision thereby promoting the rehabilitation of the offender.

101. Consistent with the observations of the Court in R v DK [2016] ACTCA 7 at [31] regarding the “two-stage process” involved when imposing a suspended sentence order, I consider that no sentence other than a term of imprisonment would be appropriate and turn to the question of whether any or all of the sentence ought to be served in custody. The gravity of the offending is such that the offender, in my view, must be required to spend further time in full-time custody. There is a compelling basis upon which to conclude that an extended period of supervision would provide the offender with the best opportunity to pursue rehabilitation in the community. This will be the longest period the offender has ever spent in full-time custody and his release back into the community, given the predictability of prison life, may be a difficult experience requiring significant support over an extended period.

102. The relationship between the length of the period of imprisonment and the length of the Good Behaviour Order was considered by the Court in R v UG [2020] ACTCA 8 (UG). The Court determined at [77], that it would be incorrect to approach partly suspended sentences as if the “relationship between the unsuspended and suspended periods should resemble the relationship between the nonparole and parole periods of a sentence of fulltime imprisonment”. The Court noted at [79] that although prospects of rehabilitation would be important and relevant to the making of a suspended sentence order, “a sentencing court does not engage in the de facto fixing of a nonparole period. In relation to a partially suspended sentence, there is no “usual relationship” between the part served and the part suspended”. Relevantly at [82] the Court discussed the purposes of sentencing that may be achieved by the imposition of a partly suspended sentence: “A partly suspended sentence may be the sentencing option that is most constructively adapted to a particular offender and their circumstances. For example, it may be used where an offender has served a significant part of the total term, and the sentencing court wishes to ensure that the offender is released promptly and without the need to undergo a parole assessment process. It may be an appropriate sentence for an offender who has committed a relatively serious offence that, ordinarily, would suggest a significant sentence of fulltime imprisonment, but where the sentencing court considers that s 7 sentencing purposes such as punishment and denunciation can be adequately addressed by a short period of fulltime imprisonment. Alternatively, the sentencing court may wish to retain overall supervision of the offender, permitting a somewhat flexible response to any breach of the good behaviour order (although, prima facie, any significant breach of a good behaviour order will result in the offender serving the sentence in fulltime custody). A sentencing court may consider that a “carrot and stick” approach involving a relatively short period of fulltime imprisonment and a relatively long period of supervision within the community is appropriate for an offender who has not previously served a significant period in fulltime custody and who seems capable of rehabilitation.”

103. A partly suspended sentence of imprisonment would properly mark the gravity of the offending, provide the opportunity for extended supervision in the community in the pursuit of rehabilitation and allow the Court to retain “overall supervision” of the offender’s progress. The Good Behaviour Order can be crafted to encompass the specific recommendations of Ms Edwige to ensure the offender has the benefit of her assessment as to his treatment needs adding further protection against future offending. This is an outcome that would provide opportunity and accountability; any betrayal of the former will undoubtedly be readily drawn to the Court’s attention creating the potential for any remaining period of imprisonment to be imposed. In my view, this is a just and appropriate outcome in all the circumstances.

104. The starting point for the charge of drive motor vehicle near police (CC2023/10232) is 32 months of imprisonment reduced to 24 months of imprisonment for the plea of guilty.

105. The starting point for the charge of drive motor vehicle near police (CC2023/10229) is 24 months of imprisonment reduced to 18 months of imprisonment for the plea of guilty.

106. The starting point for the charge of aggravated dangerous driving (CC2023/10225) is 16 months of imprisonment reduced to 12 months of imprisonment for the plea of guilty.

107. The starting point for the charge of drive motor vehicle without consent (CC2023/10230) is 8 months of imprisonment reduced to 6 months of imprisonment for the plea of guilty.

108. The starting point for the charge of drive while disqualified (CC2023/10912) is 3 months of imprisonment reduced to 2 months and 7 days of imprisonment for the plea of guilty.

Disqualification

109. Convictions for the drive while disqualified and the dangerous driving offence result in automatic disqualification periods of 12 months in each case. Consistent with the approach in Holder (No 2) at [83]-[85], Director of Public Prosecutions v XK [2023] ACTSC 141 and McCurley v Beath [2017] ACTSC 196, and pursuant to s 69 of the Road Transport (General) Act 1999 (ACT) I order that the automatic disqualifications be served concurrently, a position supported by the prosecution.

Orders

110. Accordingly, I make the following orders: (1) On the charge of drive motor vehicle near police (CC2023/10232) the offender is convicted and sentenced to 24 months of imprisonment commencing on 26 June 2024 and ending on 25 June 2026. (2) On the charge of drive motor vehicle near police (CC2023/10229) the offender is convicted and sentenced to 18 months of imprisonment commencing on 26 August 2025 and ending on 25 February 2027. (3) On the charge of aggravated dangerous driving (CC2023/10225) the offender is convicted and sentenced to 12 months of imprisonment commencing on 26 August 2026 and ending on 25 August 2027. (4) On the charge of drive motor vehicle without consent (CC2023/10230) the offender is convicted and sentenced to 6 months of imprisonment commencing on 26 June 2024 and ending on 25 December 2024. (5) On the charge of drive while disqualified (CC2023/10912) the offender is convicted and sentenced to 2 months and 7 days of imprisonment commencing on 26 June 2024 and ending on 1 September 2024. (6) This is a total period of 3 years and 2 months of imprisonment commencing on 26 June 2024 and ending on 25 August 2027. I order that the sentences be suspended after the offender has spent 14 months in custody (commencing on 26 June 2024), upon him entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the balance of the term of the sentence. I impose the following conditions in addition to the core conditions: (i) The offender is to accept the supervision of the Director-General and comply with all reasonable directions for the duration of the Good Behaviour Order; (ii) The offender is to engage with Winnunga Nimmityjah Aboriginal Health and Community Services as directed in relation to psychological support and drug and alcohol counselling; (iii) The offender is to engage in any psychological assessments as directed including for autism spectrum disorder; and (iv) The offender is to engage with the Yeddung Mura Through Care Program and other support programs as directed. (7) The license disqualification periods of 12 months, automatic upon the convictions for the charges of drive disqualified (CC2023/10912) and aggravated dangerous driving (CC2023/10225), are to be served concurrently.

I certify that the preceding one hundred and ten [110] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: A Turner Date: 26 August 2024