Johnson v R

Court of Criminal Appeal (NSW)|2020-05-08|Before: Hulme J, Fagan J, Cavanagh J

Solicitors: Aboriginal Legal Service Solicitor for Public Prosecutions File Number(s): 2017/307716 Decision under appeal Court or tribunal: District Court Date of Decision: 1 March 2019 Before: Gartelmann SC DCJ File Number(s): 2017/307716

The offences listed on a Form 1 document and taken into account in relation to the Sequence 21 offence were: 15, 16 2 Negligent driving, contrary to s 117(1)(c) of the Road Transport Act. $1100 fine 4, 5 2 Damage property, contrary to s 195(1)(a) of the Crimes Act. 5 years

A table annexed to this judgment sets out the offence details, the judge's findings as to objective seriousness, and the indicative sentences. Johnson Offence Details (16957, docx)
The applicant seeks leave to appeal upon the following grounds: 1. His Honour erred in his assessment of the objective seriousness of the offences. 2. The sentence is manifestly excessive.

The offences

The offending commenced with the applicant taking a prime mover and trailer without consent in Murrurundi. He drove this truck to Singleton where he was finally apprehended about an hour and a half later. The details of the applicant's horrendous and destructive course of driving in that period may only be appreciated by setting out the following description derived from a lengthy statement of agreed facts.
The applicant was the holder of a class HC (Heavy Combination) driver's licence. This, in effect, allowed him to drive large trucks.
At about 7:20am on Wednesday 11 October 2017, at the BP Service Station in Mayne Street (New England Highway) Murrurundi, Mr Charles Mamo had just refuelled both tanks of his prime mover. The prime mover had a trailer attached (together, "the truck") that was fully laden with mushroom compost. The approximate total weight of the truck was 42 tonnes.
The applicant approached Mr Mamo and asked which direction he was travelling. Mr Mamo replied that he was heading towards Tamworth. The applicant said he wished to go to Sydney. Mr Mamo went in to the service area to pay for the fuel.

(Seq 26) Take and Drive Conveyance - Indicative sentence 2 years (maximum 5 years)

The applicant entered the truck and drove off in a southerly direction on the New England Highway towards Muswellbrook. At the time, it was daylight, the weather was fine, and the road and surrounding areas were dry.

(Related offence - Seq 27) Drive Manner Dangerous - Indicative sentence 6 months (maximum 9 months)

On the New England Highway at Wingen (about 23 km south of Murrurundi), the applicant drove the truck across double lines and overtook a Holden Captiva occupied by Mr and Ms Edwards. At that time, a white hatchback was driving north on the New England Highway. Ms Edwards braked harshly, took evasive action, and pulled to the side of the road to allow the truck to move back over into the southbound lanes to avoid a head on collision with the approaching hatchback. The truck continued south on the New England Highway.
Near the intersection of the New England Highway and Mareeba Road, Parkville (33 km south of Murrurundi), the truck again moved into the northbound lanes. It then swerved quickly into the southbound lanes and again into the northbound lanes. Items were seen to be thrown out of the driver's side window. The truck was being driven erratically and above the 80km/h speed limit. A Toyota Camry driving south was forced to pull onto the shoulder of the road to avoid a near collision with the truck. The truck then swerved between the northbound and southbound lanes, forcing several vehicles off the road in order to avoid collisions.

Offences in and near Scone

About 1 km north of Scone (41km from Murrurundi), a fully marked police Mitsubishi Pajero driven by Senior Constable Cloake, with Leading Senior Constable Carter occupying the front passenger seat, was travelling north along the New England Highway. The officers saw the stolen truck travelling towards them in the southbound lane.
The New England Highway at this location provides for one lane of traffic in each direction, divided by double unbroken separation lines. There are single lines marking the shoulder of the roadway on each side. The speed limit is 100km/h and the area is residential.

(Seq 6) Use Offensive Weapon to Avoid Apprehension - Indicative sentence 4 years (maximum 12 years)

Upon seeing the fully marked police vehicle approaching from the opposite direction, the applicant deliberately swerved to the right onto the incorrect side of the road, driving directly toward the police vehicle.
In order to avoid a head on collision, Senior Constable Cloake had to take immediate evasive action by swerving the police vehicle to the left and onto the shoulder of the road.
The applicant continued southbound at a speed believed to be well in excess of the speed limit.

(Seq 8) Police pursuit, not stop, drive recklessly (1st offence) - Indicative sentence 1 year, 6 months (maximum 3 years)

Senior Constable Cloake returned the police vehicle to the roadway, at which time he activated the siren and the rooftop red and blue light bar. He made a U-turn and commenced Police Pursuit number 2017/1931 (at 7:51am).
The applicant continued south at an estimated speed of 85km/h into a 50km/h speed zone in the vicinity of the New England Highway and Muffett Street, Scone.
Because of the dangerous manner in which the applicant had driven over a distance of about 500 metres whilst being pursued, Senior Constable Cloake self-terminated the pursuit, deactivating the light bar and the siren, and pulling over to the side of the road.
The applicant continued southbound along the New England Highway.
Senior Constable Cloake continued south and entered lane 2 of 2 (the right lane) in a 90km/h speed zone. He moved the police vehicle up alongside the truck, which was traveling in lane 1 of 2. On seeing the fully marked police vehicle coming up alongside him, the applicant deliberately veered into the lane to his right. In order to avoid a collision, Senior Constable Cloake immediately swerved onto the incorrect side of the road. The police vehicle was forced to travel south for a short distance in the northbound lane (with oncoming traffic approaching) before being able to move back to the correct side of the road. It continued south at speed in front of the truck in an attempt to create some distance between the two.
It was agreed in the proceedings on sentence that the conduct of the applicant described in the paragraph immediately above should be regarded as part of the offence identified as Sequence 6 described at [15]-[17] above. [3]

Aberdeen

The applicant continued at a speed believed to be well in excess of an 80km/h limit, continuing to gain on the fully marked police vehicle. At this time the police vehicle was providing "cover" for vehicles directly in the path of the truck.
Conscious of the fact that they were now entering the 50km/h speed zone on the northern outskirts of the township of Aberdeen, and with the applicant's truck bearing down on them at speed, Senior Constable Cloake and Leading Senior Constable Carter became significantly concerned for the safety of the occupants of vehicles directly in front of them.
Senior Constable Cloake manoeuvred the police vehicle close to the rear of the civilian vehicle in front of them and managed to "herd" it over to the shoulder of the road whilst shielding it from the truck.
The applicant deliberately swerved the truck to the right, crossing the centre dividing line, before travelling south in the northbound lane at an estimated speed of 100km/h in the 50km/h speed zone, crossing the bridge into the township of Aberdeen (55 km south of Murrurundi).
Near the intersection of Gordon Street, Aberdeen, the applicant moved the truck into the northbound lanes to overtake three vehicles that were travelling in the southbound lanes on the New England Highway. Mr Bass, the driver of a Holden Commodore, was driving north and believed he was going to collide with the truck if he did not take evasive action. He was forced to swerve onto the shoulder of the road.
About 2km south of the township of Aberdeen, the applicant continued at a speed believed to be well in excess of the 80km/h speed limit. He overtook a B-Double semi-trailer over double unbroken lines on a sweeping left hand bend, forcing the B-Double off the roadway.
The truck continued to cross onto the wrong side of the road forcing northbound vehicles to move off the road to avoid collisions.

Offences at Muswellbrook

The applicant continued south along the New England Highway, entering the 50km/h speed zone in the outskirts of the township of Muswellbrook (70km from Murrurundi).

(Form 1 - Seq 15) Negligent Driving - taken into account with Seq 21

As the applicant approached the intersection of New England Highway and Manning Street, he collided heavily with the rear of a Nissan Navara containing Ms Fiona Bolam. The Nissan Navara sustained rear panel damage and Ms Bolam sustained a whiplash injury for which she required medical assistance.
The intersection of Sydney Street and Maitland Road (also referred to as the New England Highway) at the northern end of Muswellbrook is controlled by a set of traffic lights and there was a red light facing the applicant as he approached. He put the truck into a higher gear and increased speed. The truck narrowly missed a number of vehicles as it went through the intersection. Traffic was of medium density at the time. The truck was travelling at an estimated speed of 80 km/h in the 50 km/h speed zone.
The applicant continued in a westerly direction along Sydney Street, at which time an unmarked police Toyota Camry, containing Sergeant Hobson (driver), Constable Bellman (front passenger) and Sergeant Norris (rear passenger), all of whom were wearing full police uniform, was following behind. A raised unit containing red and blue lights, not illuminated, was on the dash of the police vehicle.

(Seq 9) Use Offensive Weapon to Avoid Apprehension - Indicative sentence 4 years, 6 months (maximum 12 years)

The applicant travelled along Sydney Street, at a speed believed to be well in excess of the speed limit, before turning left into Skellatar Stock Route. After about 550 metres, he left the roadway and turned left into Wollombi Reserve. Believing the applicant was about to abandon the truck and decamp, Sergeant Hobson stopped the unmarked police Toyota Camry on the roadway at the entrance to Wollombi Reserve with the nose of the vehicle facing in toward the reserve.
The applicant made a U-turn at speed, causing the trailer to swerve out behind the cabin, and commenced driving directly at the police vehicle, shifting up through the gears of the truck as he did so.
The applicant looked directly at the three fully uniformed Police officers inside the unmarked vehicle and continued in their direction with no attempt to slowdown or stop.
Conscious of the fact there was a culvert on either side of the road preventing him from reversing straight back, and realising the applicant did not intend to yield to police, Sergeant Hobson had to perform a manoeuvre of driving forwards and backwards a number of times in order to move the police vehicle from the truck's path.
The applicant continued to drive the truck past the police vehicle, missing it by only about a foot (30cm). He then drove back along the way he came down Skellatar Stock Route, towards the intersection of Sydney Street, turning right and travelling back towards the intersection of Sydney Street and Maitland Road (New England Highway). At the intersection of Sydney Street and Maitland Road, the applicant turned right against a red traffic control light and continued at speed south along the New England Highway through the township of Muswellbrook.

(Form 1 - Seq 16) Negligent Driving - taken into account with Seq 21

The applicant continued south into an active school zone, which was subject to a 40km/h speed limit. Just before the intersection of Bell Street and New England Highway, he collided heavily with the rear of a Toyota Camry containing Ms Carolyn Carter. Her car sustained significant rear damage, including the rear window being shattered, and she sustained whiplash injuries.

(Seq 29) Furious Driving Causing Bodily Harm - Indicative sentence 9 months (maximum 2 years)

The applicant again failed to stop, continuing south through the traffic lights at the intersection of the New England Highway and Bell Street. He then collided heavily with the rear of a Holden Colorado utility driven by Ms Kelly Tito. The utility became stuck on the front bull bar of the prime mover and was shunted 5-10 metres until Ms Tito managed to edge it to the left and it came away from the truck. The utility sustained significant damage and Ms Tito sustained whiplash and bruised limb injuries.
Once again, the applicant failed to stop. He continued south along the New England Highway, passing through a red light at the intersection of the New England Highway and Rutherford Road, Muswellbrook. He continued driving south towards the township of Singleton at speeds well in excess of the various posted speed limits and in a dangerous manner, forcing members of the public to swerve off the road to avoid collisions.
Police in an unmarked vehicle continued to monitor the truck from a distance between Muswellbrook and McDougalls Hill, just north of Singleton. They did not engage in any pursuit due to the applicant's manner of driving and the danger to the public.

(Seq 7) Police Pursuit, not stop, drive recklessly (1st offence) - Indicative sentence 1 year (maximum 3 years)

At about 8:43am a marked Highway Patrol vehicle (North 243) being driven by Sergeant Kain was stationary at the intersection of New England Highway and Magpie Street, Singleton. The applicant drove past at a speed in excess of the 80km/h speed limit. Sergeant Kain activated the red and blue light bar and siren, and initiated Police pursuit number 2017/1932.
The applicant continued south on the New England Highway, refusing to pull over and stop for North 243. This pursuit continued for about 1.8kms to a railway overpass over the New England Highway, known locally as the "hole in the wall". Police deployed road spikes in an attempt to stop the truck before it reached the township of Singleton. Sergeant Kain terminated the police pursuit, deactivating the lights and siren, and ceasing to follow the truck.
The deployment of the road spikes was successful but the applicant continued to drive the truck well in excess of the 50km/h speed limit into the township of Singleton. Witnesses observed the applicant driving in a deliberate and controlled manner.

(Seq 21) Dangerous Driving Causing Grievous Bodily Harm - Taking into account offences on Form 1, indicative sentence 4 years, 6 months (maximum 7 years)

(Related offence - Seq 18) Fail to Stop and Assist Following Impact causing Injury - Indicative sentence 6 months (maximum 18 months)

The truck collided heavily with the rear of a Holden Cruze driven by Mr Kerry Small. The force of the collision caused his car to rotate clockwise so that the driver's side was against the front of the prime mover. Mr Small received two intracranial bleeds, fractured ribs on both sides, collapsed lungs, two broken legs, a minimally displaced fracture of the lateral mass of C2 vertebra, a minimally displaced fracture of the transverse process of L1 and L2, and a subtle fracture of the transverse process of T1 and T2 vertebra. Ongoing rehabilitation was required.
I note that in his victim impact statement, Mr Small said that he was in an intensive care unit for four weeks and then a trauma ward for another four weeks. He was then transferred to a rehabilitation facility where he remained for three months. His house had to be modified before he could return home. He required twice-weekly physiotherapy for an extended period. He did not anticipate regaining full mobility or the quality and independence in life he had before. Having regard to the nature of his injuries, none of this is at all surprising.

(Related offences - Seqs 22-25, 28 and 31) Furious Driving Causing Bodily Harm x 6 - Indicative sentences of either 6 or 9 months respectively (maximum 2 years)

The applicant continued driving the truck at speed with Mr Small's Holden Cruze being pushed along with the passenger side leading, southbound for a distance of about 60 metres. It then veered to the right and collided with a Toyota Kluger containing four occupants that was stationary in a line of northbound traffic in George Street Singleton (New England Highway / George Street). Ms Rebekah Taylor received bruising and soreness to the right shoulder and a broken coccyx (Seq 25). Mr Warren Novely sustained stiffness to his neck and bruising to his arms and upper body (Seq 28).
The Toyota Kluger was pushed back violently into a Hyundai i30 hatch containing Ms Deborah Anderson that was stationary in the line of traffic. The Hyundai i30 was violently shunted 90° in an anti-clockwise direction. Ms Anderson received significant bruising to the right forearm and both legs (Seq 22).
The applicant continued driving the truck at speed along the New England Highway, steering toward the left hand kerb and accelerating, before colliding with significant force with a parked Toyota RAV 4, containing Mr Robert Jones. This impact caused the RAV 4 to be shoved violently up onto the eastern footpath, where the driver's side came to rest against the wall of a building. Mr Jones sustained fractured ribs and severe bruising to the right buttock and shoulder (Seq 23).
The applicant continued on, colliding heavily with a Mazda 3 that was parked and unattended against the eastern kerb. The Mazda was pushed up onto the eastern footpath, damaging a side fence.
Next, the truck collided heavily with an Isuzu MU-X that was parked adjacent to the eastern kerb. Mr Paul Deakin was in the driver's seat and Ms Jennifer Deakin was in the front passenger's seat. Mr Deakin received whiplash injuries and bruising to the right hip, thigh and calf muscle (Seq 31). Ms Deakin received whiplash injuries, ongoing pain to the left hip, swelling and pain in the right knee (Seq 24).
The truck then mounted the eastern kerb and there was an explosion of fire from under the driver's side of the cabin. The truck continued along the footpath, striking and causing minor structural damage to two veranda supports at the front of the Royal Hotel. It went on to destroy a bus shelter, where only minutes beforehand a group of schoolchildren had boarded a school bus.

(Seq 30) Damage property - Indicative sentence 2 years, 6 months (maximum 5 years)

Finally, the applicant drove the truck through the fascia of a heritage-listed residence, causing major structural damage, before colliding with a telegraph pole, the force of which caused the pole to snap at the base. The truck finally came to a stop and the fire quickly took hold of the prime mover.
The applicant freed himself from the cabin via the driver's side window and ran to the western side of the roadway. A witness, Mr Bainbridge, offered a place of safety in the passenger seat of his own prime mover which was stationary in the northbound lane, about 10 metres from the stolen truck. The latter was by this time fully engulfed in flames with a number of resulting explosions.
The time now was 8.46am. The distance travelled by the applicant in the prime mover from Murrurundi was over 113 kilometres. Total driving time was approximately 1 hour, 26 minutes.
Police were made aware that the applicant was now in the passenger seat of another prime mover and approached it with firearms drawn. Mr Bainbridge got out but left the keys in the ignition. The applicant moved over into the driver's seat.

(Seq 3) Resist Officer In the Execution of Duty - Indicative sentence 2 years (maximum 5 years)

Police opened the driver's side door and directed the applicant to get out but he did not comply. Police attempted to take hold of the applicant and pull him out of the vehicle but he began to punch and kick out at the officers. In doing so, he kicked Sergeant Kain in the face, causing swelling and bruising.
Sergeant Froml then entered the truck through the passenger side and pushed the applicant out of the driver side of the truck. The applicant continued to resist arrest and struggled violently. He bit Senior Constable Donnelly on the right wrist, leaving a bite mark. The applicant had his hands under his body and failed to comply with any direction.
By this time, there were several officers trying to effect the arrest. The applicant manoeuvred his right hand around, grabbing hold of Senior Constable Harmer's firearm, trying to remove it from its holster. Senior Constable Harmer yelled out and more officers came over to assist.
Sergeant Froml was at the applicant's left shoulder. The applicant swung his arm and grabbed hold of Sergeant Froml's extendable baton but he was unsuccessful in trying to remove it from Sergeant Froml's vest. Eventually the applicant's hands were forced behind his back and he was handcuffed.
The crashed prime mover continued to burn. The applicant and officers moved to a safer location. The applicant urinated and spat at officers.
A caged truck attended the location to take the applicant to Singleton Police Station. The applicant refused to get into the rear of the truck. Numerous officers were required to lift the applicant into the truck. He continued to spit at them.
The applicant was conveyed to Singleton Police Station and introduced to the Custody Manager. He was later transferred to Singleton Hospital to have some minor injuries treated. Upon release, he was returned to Singleton Police Station.

(Form 1 - Seq 5) Malicious Damage - taken into account with Seq 21

At about 5pm the applicant was inside a holding cell at the Singleton Police Station where he commenced masturbating. The applicant was spoken to but refused to cease his actions, ejaculating in the cell. The cell required cleaning at cost to the NSW Police Force.
At about 5.14pm the applicant went to the toilet and at 5.20pm he was taken to an interview room. He participated in a recorded interview, during which he outlined in detail his moments prior to taking the truck at Murrurundi. He agreed he took it without permission, saying that he did this because he had to get to Sydney.
The applicant claimed he had no recollection of the incidents that occurred between Murrurundi and Singleton, including the numerous collisions with vehicles and buildings along the main street of Singleton. However, his recollection was quite clear in relation to his escape from the burning wreckage of the truck, being assisted to the safety of the cabin of Mr Bainbridge's prime mover, and the intricate details of his arrest.
Throughout the interview, the applicant did not display any concern for, nor interest in, the numerous victims he left in his wake throughout the entire incident.

(Form 1 - Seq 4) Malicious Damage - taken into account with Seq 21

The applicant urinated on the office chair he was sitting on during the interview. This chair was not able to be cleaned and required replacement at cost to the NSW Police Force. The applicant had said that he needed to go to the toilet and detectives offered to suspend the interview to allow him time to do so but he said he wanted to finish the interview first.

Remarks on sentence

It is necessary to review the judge's remarks on sentence in some detail as it will assist in the consideration of the first of the proposed grounds of appeal.
His Honour commenced with reference to each of the offences and their respective statutory provisions and then indicated the prescribed maximum penalties for each. He then turned to a (necessarily) lengthy summary of the agreed facts.
Next, his Honour assessed the seriousness of the offences. His Honour first addressed the seriousness of the offending overall. He referred to the nature of the vehicle driven by the applicant, a heavy vehicle with a potential for serious harm to others; the number of people exposed to acute danger; speed; as well as the truck being driven on the incorrect side of the road a number of times. Reference was made to the overall period and distance of driving, an hour and a half over more than 100km, and the fact that the truck was driven through towns and into a busy regional centre. His Honour said, undoubtedly referring to the events in Singleton, "The trail of destruction that culminated is akin to something from a war zone".
The judge said that the time of day was when people were travelling to work and school children were about. He referred to many people being actually harmed and numerous others being imperilled. A number of police officers' lives were jeopardised. He said, "The nature and extent of the danger to the community and the extent of harm and damage actually caused is extraordinary. It is astonishing that no one was killed."
The judge then referred to the applicant's mental state at the relevant time, and the following from the judgment is particularly pertinent to ground 1: "The course of driving itself raises the question of the mental state of the offender at the time. Certain aspects of the offences that followed his arrest clearly indicate the offender was mentally disturbed. Forensic psychiatrists have since unanimously confirmed it. The expert psychiatric evidence will be detailed later in this judgment. It suffices for present purposes to note that the forensic psychiatrists who assessed the offender concur he was suffering with a serious mental illness at the time of these offences. The offender's mental illness was such as to manifest in symptoms including paranoid ideation and auditory hallucinations. The offender's mental state was such that he was compromised at the time of the offences in his ability to think rationally and to appreciate the extent of the wrongfulness of his actions and its consequences. This must be recognised in assessing the level of moral culpability of the offender for these offences."
His Honour described all of the foregoing as "an overview" and then turned to an assessment of the individual offences. He said, "This requires an appreciation of the conduct and consequences constituting each offence, as well as the mental state of the offender" (emphasis added).
The judge proceeded to refer to each offence, mentioning some pertinent aspects relating to it before stating his finding of its objective seriousness. The various findings made for the 17 offences were "lower-medium", "medium" and "medium-high". Two examples will suffice: [4] "Next, the second offence of use offensive weapon to avoid apprehension. This offence comprised accelerating the prime mover toward a police vehicle such that police had to move out of its way, narrowly avoiding collision. It had the potential to cause death or serious injury, though none eventuated. The objective seriousness of this offence is medium range. … Next, the offence of dangerous driving causing grievous bodily harm. This offence comprised driving the prime mover into the rear of a car, causing its driver multiple serious injuries including intracranial bleeding, rib fractures, collapsed lungs, broken legs and spinal fractures, resulting in the need for ongoing rehabilitation. The nature and extent of the injuries sustained is in the upper range covered by the concept of grievous bodily harm. The objective seriousness of this offence is in the medium-high range."
His Honour then referred to the victim impact statements that had been provided. He said that they made clear that the offences have had multiple ongoing ramifications for many people. The nature and extent of the injuries to some were such that it could be reasonably expected they will continue to have a profound effect on the victims' lives.
As to the applicant's subjective circumstances, the judge noted that he was aged 31 and that he had a prior record of convictions and traffic infringements. They were of a limited nature and his Honour concluded that the prior convictions did not indicate that specific deterrence or protection of the community warranted increased weight.
The other sources of subjective information were the reports of two psychiatrists, Dr Richard Furst and Dr Gordon Elliott; a report by a mental health court liaison officer; case management notes relating to the applicant whilst on remand; and letters from the applicant, his mother and his sister.
The applicant is an Indigenous man who grew up with his mother and sister in Quirindi. His father committed suicide when he was aged 16. He did not complete high school but had since achieved a significant employment history. He had worked in a recycling factory, as a tyre fitter, a driver of heavy vehicles and a machinery operator.
The judge referred to the applicant having a history of substance abuse and noted that the history provided to the psychiatrists as to this was inconsistent. The applicant had used cannabis and methylamphetamine. He told Dr Elliott that he used methylamphetamine once or twice, possibly in the week prior to his arrest, but was unable to recall exactly when. He told Dr Furst he had used it a couple of times "here and there" but denied any drug use at the time of the offending. His Honour observed that there was no evidence the applicant had engaged in substance abuse at or immediately before the offences in question. Nevertheless, he regarded the history of substance abuse as a relevant factor bearing upon the applicant's mental illness.
The judge referred to the applicant having a history of experiencing symptoms of psychosis. The first record relating to his mental condition was following discharge from a psychiatric unit where he had been admitted as an involuntary patient for 10 days in March 2015. A diagnosis of a psychotic episode with Capgras delusions [5] was made at that time.
The judge referred to the applicant's other interactions with mental health professionals including when a community treatment order (CTO) was made in September 2016 for a period of six months. His Honour observed that sometime after the CTO expired the applicant appeared to have ceased treatment. (The applicant confirmed in his letter that he stopped taking his medication after the order expired.) The judge referred to Dr Furst having considered that when the applicant discontinued medication he had relapsed into acute psychosis, particularly in the weeks leading up to the offences.
The judge said that the applicant had given both of the psychiatrists an account of the days preceding the offences which were broadly consistent. His Honour summarised: "The offender reported that four days before the offences he started to fear that people were "after him". Voices told him he was under imminent threat and he had to leave. He left Sydney at midnight the Sunday before the offences and drove three days in a disorganised and erratic fashion around Sydney and the Central Coast area, before heading towards Quirindi. The offender was too scared to stop for fuel or to go to the toilet, and so urinated in the driver's seat and ultimately ran out of fuel. The offender changed clothes and hitchhiked, before catching buses and trains in an attempt to "throw off the scent" for the people he believed were pursuing him. The offender got a train to Quirindi and checked into a motel but did not feel safe there either, so [he] went to see old friends. The offender thought these people were "magical" and were involved in a plot to harm him, so he left and started to hitchhike again. A driver showed him a driver's licence and the offender perceived that the photo on the licence morphed into another face. The offender saw a black panther and a yowie. The offender then went and knocked on a stranger's door. Police picked up the offender and dropped him at the truck stop at Willow Tree. Statements of police concerned report no observations of the offender's behaviour as irrational at that time. However, they do confirm the offender's account of walking and hitchhiking to the area and intending to return to Sydney the same way. The offender then arrived at the Murrurundi BP service station where the offences commenced. The evidence in respect of the offender's thought processes thereafter is scant. The offender told both psychiatrists and police that he had no memory of the subsequent events. Nevertheless, the offender's behaviour in committing the offences, particularly those after his arrest, is self-evidently bizarre."
The judge noted that the applicant had been remanded in custody since his arrest and had been housed in psychiatric facilities where he had received psychiatric treatment under a forensic community treatment order.
The judge then referred to the conclusions of the two psychiatrists. Dr Elliott concluded that the applicant's history was consistent with chronic schizophrenia. At the time of his assessment in December 2017, the applicant presented with auditory hallucinations and delusional beliefs consistent with symptoms and features of chronic paranoid schizophrenia.
Dr Furst made diagnoses of schizophrenia and substance abuse disorder concerning cannabis. He was of the opinion that the applicant's experience of custody would likely be more onerous because of his serious mental illness. He noted that the applicant's illness resulted in continuing paranoid thinking, intermittent auditory hallucinations and a belief that others were talking about him. He considered these symptoms might expose the applicant to a greater likelihood of violent incidents in custody as well as increased anxiety and a risk of destabilisation of his illness.
The judge quoted the following opinion of Dr Furst regarding the role of the applicant's mental illness in the offences: "…it is highly likely that he was acutely psychotic at the time of the alleged offences before the Court, including stealing the truck in question from the BP service station at Murrurundi on the morning of 11 October 2017, and driving in a dangerous or furious manner in response to his paranoid delusions and auditory hallucinations. In the circumstances, and owing to the overwhelming effect of his paranoid delusions and auditory hallucinations, I am of the opinion that Mr Johnson believed he was morally justified when stealing the truck in question and driving in the manner outlined in the police facts, as he was fearful for his life at the time and saw no other reasonable alternative."
The judge noted that Dr Elliott had expressed similar opinions regarding the applicant's mental state at the time of the offences. His Honour said: "The expert psychiatric evidence, therefore, is clear that the offender's mental illness contributed to his conduct in committing the offences."
The judge was of the view that it was difficult, if not impossible, to discern the extent to which the applicant knew what he was doing was wrong at the time. Nevertheless he was of the view that the applicant's mental illness was causally related to the commission of the offences to a significant extent such that his moral culpability for the offences was substantially reduced.
His Honour said that because of the nature and extent of the applicant's mental illness and its role in the commission of the offences, the applicant was not an appropriate person to use as a medium for general deterrence. He also found that the applicant's mental illness was such that his experience of custody would be more onerous than otherwise.
The judge referred to evidence as to what the applicant was reported to have said about the offending and what he had said in his letter to the Court. He concluded that this evidence warranted a finding of remorse.
His Honour summarised the following aspects relating to the applicant's prospects of rehabilitation: "The offender's mental illness appears presently stable in the context of treatment in the custodial environment and under a forensic community treatment order. However, the offender has a history of noncompliance with treatment in the community. Dr Elliott considered the offender's noncompliance with treatment may be attributed to the disorganisation that is a feature of this illness. Dr Elliot cautiously suggested the offender had good prospects of psychiatric rehabilitation. Dr Furst considered that, given his history and current mental state, the offender was capable of reasonably good psychosocial function in between episodes of psychosis but that he would likely remain functionally impaired to some degree by virtue of his schizophrenic illness over future years. Dr Furst expressed the opinion that the offender was capable of irrational and dangerous behaviour when psychotic, noting of course the highly serious offences before the Court. Doctors Furst and Elliott concurred that the offender would require assertive treatment with antipsychotic medication and regular psychiatric review over the longer term, likely mandated through a community treatment order administered by the mental health team in his area on his release. Dr Furst additionally considered the offender would benefit from the intervention of a psychologist and a drug and alcohol counsellor."
The judge said that having regard to all of that evidence he was satisfied that the applicant had "prospects of rehabilitation". He was of the view, however, that the nature of the applicant's mental illness, his lack of insight regarding it and the history of non-compliance with treatment combined to indicate a "significant risk of relapse into psychosis". He observed that in the event of such relapse, "there is a significant risk of further serious offending". He said that supervision in the community following release over a lengthy term to ensure compliance with treatment would increase the likelihood of rehabilitation and reduce the likelihood of re-offending.
The judge then turned to some matters generally relating to the assessment of sentence. He noted the need to fulfil the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). He said that recognition of the harm done to the multiple victims and the community in general warranted weight. He observed that general deterrence generally warranted weight in sentencing for offences such as these but the applicant was not suitable to use to send a message to others because of his serious mental illness. He also regarded retribution and denunciation as warranting less weight as the applicant was less morally culpable for his offences. Specific deterrence warranted some weight although the applicant's antecedent criminal history did not indicate it warranted particular weight. Protection of the community warranted weight because of the risk of further offending in the event of relapse in the applicant's mental illness for the reasons the judge had discussed.
The judge mentioned the guideline judgment in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 but regarded it as of little relevance because it contemplated a typical case bearing little in common with the present case.
The judge noted that the offences were committed in the one course of conduct but it was over a prolonged period and it had consequences for multiple victims. Partial accumulation of sentences was warranted to reflect the totality of the criminality involved in them.
The judge indicated he would allow a sentence reduction of 25 per cent because of the applicant's early pleas of guilty.
There were special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act warranting a reduction of the non-parole component of the sentence. That was because of the applicant's need for extended supervision when released into the community to ensure long-term monitoring of his compliance with treatment and abstinence from substance abuse and any other risk factors with respect to relapse into psychosis. In addition, the applicant's mental condition would make his experience of custody more onerous than it otherwise would be. The judge noted that the non-parole period of the effective sentence would reflect his "determination of the minimum period the [applicant] must spend in custody before eligibility for release to parole that is appropriate to fulfil the purposes of sentencing in all of the circumstances of the case".
The judge concluded by announcing his proposal to impose an aggregate sentence and he then indicated the sentences for the individual offences that he otherwise would have imposed.

Ground 1 - error in assessment of objective seriousness

Counsel for the applicant acknowledged that the judge spoke of the relevance of the applicant's mental state in assessing the objective seriousness of the offending generally but it was submitted that it was not obvious from the individual assessments that followed that this in fact occurred.
It was submitted that no express finding was made when assessing objective seriousness as to a causal connection between the offences and the applicant's paranoid delusions (i.e. people being "after him").
It was also submitted that although the judge found that the applicant's moral culpability was reduced, how that was so was not explained. It was submitted that his Honour, "ought to have assessed the manner in which the applicant's moral culpability operated to reduce the objective seriousness of the offences".
It was submitted that the circumstances of the applicant's mental state strongly supported a finding that his moral culpability was "at the very lowest end of the spectrum". Counsel contended that such a finding in turn ought to have materially and overtly reduced the findings as to objective seriousness.
It was submitted that "many" of the findings as to objective seriousness were not reasonably open. Three examples were given. It was submitted that the first of the two offences of using a weapon to avoid apprehension ought to have been considered towards the bottom of the range rather than the lower-medium range as defence counsel had submitted. The second of such offences ought to have been in the low range rather than the medium range. It was also submitted that the offence of dangerous driving causing grievous bodily harm should have been found to be below the mid-range rather than in the medium-high range. Although the submission was that many of the findings were not reasonably open, no other examples were provided.
In oral submissions it was contended that not only was there a causal connection between the applicant's mental state and the offending but that it ought to have operated to render the objective seriousness of the offences at the low end of the scale.
To a suggestion that the applicant's mental state was equally relevant to each of the offences, counsel submitted that it had more significance in relation to the offences of using a weapon with intent to prevent apprehension because the applicant was experiencing delusions that he was being pursued. It was submitted that this supported the proposition that those offences ought to have been regarded as at a low level of seriousness for that type of offence.
As to a proposition that the assessments of objective seriousness could have been higher if not for the judge having taken into account the applicant's mental condition, counsel submitted that the judge did not say that the offences would be at a certain point in the range of seriousness and then indicate where in the range they should in fact be found having regard to the applicant's mental condition.

Consideration

There is no controversy that the applicant's mental condition was causally related to the offending and was therefore a matter to be taken into account in the assessment of the objective seriousness of the offences: see Tepania v R [2018] NSWCCA 247; (2018) 275 A Crim R 233 at [112] (Johnson J).
It is abundantly clear from the sentencing remarks that the applicant's mental condition dominated the judge's assessment of sentence as much as the extraordinary features of the offending. A logical structure is apparent in the composition of the remarks. After his Honour recited the facts pertaining to the offences he then discussed various matters that were relevant in an overall sense to their objective seriousness before identifying particular features unique to each of the individual offences.
The following aspects of the remarks on sentence make clear that his Honour did find a causal relationship between the applicant's mental condition and the offending and that his Honour did take this into account in his assessment of objective seriousness: 1. His Honour accepted the unanimous expert evidence that the applicant was "suffering with a serious mental illness at the time of these offences" (above at [78]). 2. His Honour stated that the assessment of the individual offences required an appreciation not only of the conduct and consequences of each offence but "the mental state of the offender" as well (above at [79]). 3. The judge quoted Dr Furst as having said it was highly likely that the applicant was acutely psychotic at the time of the offences and that his manner of driving was in response to his paranoid delusions and auditory hallucinations (above at [92]). 4. His Honour said that it was "clear that the offender's mental illness contributed to his conduct in committing the offences" (above at [93]). 5. His Honour found that the mental illness was causally related to the offending to a significant extent and as a consequence the applicant's moral culpability was substantially reduced (above at [94]).
There was no requirement for the judge to have assessed "the manner" in which the applicant's moral culpability operated to reduce objective seriousness. It was only necessary for his Honour to say whether he considered that it did, and if so, to provide, perhaps, some broad indication of the extent. That is what his Honour did. Counsel did not explain (and it is not self-evident) how the judge was supposed to do any more than that.
There was no requirement for the judge to make a finding as to where within a range the applicant's moral culpability fell. No authority was cited in support of the submission that it should have been found to be "at the very lowest end of the spectrum".
The applicant's contention that "many" of the findings as to objective seriousness were not reasonably open is problematic for a number of reasons, first of which are the well-known remarks of Spigelman CJ at [37] and Simpson J at [46] in Mulato v R [2006] NSWCCA 282. Second is the fact that counsel who appeared in the court below refrained from suggesting what findings should be made; confining his submissions to a "ranking" of each offence in order of seriousness by comparison to the other offences. [6] Third is that although the submission referred to "many" of the findings, only 3 of the 17 were impugned specifically. There was, of course, the broad submission that all of these serious offences should have been regarded as being at the low end of the scale because of the applicant's mental state. That submission is completely unacceptable.
The further submission that the judge should have discriminated between offences by making an individual assessment of the extent to which the applicant's mental condition contributed to the offending is also unacceptable. It is patently clear that the applicant's mental condition contributed significantly to all of the offending. In fact, it is reasonable to assume that none of the offences would have occurred if it were otherwise.
Leave to appeal in respect of this ground should be refused as it has no merit.

Ground 2 - manifest excess

In written submissions, counsel contended that the notional starting points for the aggregate sentence and the indicative sentences for the more serious substantive offences were "stern". Reference was then made to the aggregate head sentence having a starting point of 16 years, the starting points for use offensive weapon with intent to prevent apprehension offences being 5 years 4 months and 6 years respectively, and the starting point for the dangerous drive causing grievous bodily harm offence being 6 years.
It was submitted that the notional sentence for the dangerous driving causing grievous bodily harm offence was "more than twice the head sentence articulated in the guideline judgment of R v Whyte".
The applicant also relied upon sentencing statistics, conceding that they had limited utility and there was a relatively small sample size. Nonetheless it was contended that the statistics confirmed the "relative severity" of the sentences indicated for the use offensive weapon to prevent apprehension and dangerous driving causing grievous bodily harm offences.
It was contended that there was a significant notional accumulation of the sentences which could be inferred from the circumstance that the longest indicated sentence was 4 years 6 months and the aggregate head sentence was 12 years. (In fact 12 years 6 months.) It was submitted that insufficient weight was afforded to the principle of totality and that this may have contributed to an excessive penalty. That was because, in spite of the number of offences, they were committed in a relatively short period and they were "intimately connected" in their nature.

Consideration

The principles to be applied to a ground of appeal asserting that a sentence is manifestly excessive are well known. They were summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (omitting citations): • "Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
The submission that "the notional starting point" of the aggregate sentence "is of some relevance" was made after counsel had acknowledged that discounts for pleas of guilty are applied to individual sentences and not the aggregate. The citation of PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61 was pertinent in this respect. The only "relevance" suggested in the submissions was the assertion that a notional starting point of 16 years was "stern". Stern does not necessarily equate with "unreasonable or plainly unjust".
The submissions about starting points for 3 of the 17 offences being not reasonably open must be rejected on the basis that the focus is upon the sentence under appeal, not upon individual sentences that were not in fact imposed: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at 40. It was there said that whilst the indicative sentences were not themselves amenable to appeal, they may be a guide as to whether error is established in relation to the aggregate sentence. But it was also said (at 40) that even if the indicative sentences are excessive, that did not necessarily mean that the aggregate sentence is excessive.
There was discussion at the hearing of the application about the starting point (6 years) for the indicative sentence (4 years, 6 months) for the dangerous driving causing grievous bodily harm offence. The maximum penalty is 7 years and the judge found that this offence was in the "medium-high" range of objective seriousness.
There was a need for the judge to take into account the four offences listed on the Form 1. The two negligent driving offences would not have resulted in any increase in the sentence because they are offences for which only a fine may be imposed. The two offences of damaging property concerned items at the police station; the chair that was urinated upon and had to be replaced and the cell that required cleaning after the applicant had masturbated. They would have warranted only a very modest increase in the sentence, if any at all. I would accept that the indicative sentence for this offence is higher than it should have been, but not by any great margin.
The opposite is the case with the other two offences that were the focus of counsel's submissions, the two offences of use offensive weapon with intent to prevent apprehension. The first offence involved the applicant swerving a 42 tonne truck so that he was driving, well in excess of the speed limit, directly at an oncoming police car containing two officers. It was part of the agreed facts that he did this "upon seeing the fully marked police vehicle approaching from the opposite direction". Fortunately, Senior Constable Cloake was able to swerve onto the shoulder of the road to avoid a catastrophic collision.
The second offence involved the applicant driving the 42 tonne truck directly at a stationary police car containing three officers. The agreed facts included that "the offender looked directly at the three fully uniformed police officers inside the unmarked vehicle, made no attempt to slow/stop [the truck], [and] instead continued driving directly at the vehicle". Fortunately, after driving backwards and forwards a number of times, Sergeant Hobson was able to avoid the car being struck by the truck, but only by "approximately one foot".
The sentencing judge found that those two offences were in the "lower-medium" and "medium" ranges of seriousness. Even giving full weight to the applicant's substantially reduced moral culpability because of his mental condition, those assessments were generous when it is considered that the actions of the applicant put five police officers seriously at risk of being killed.
The applicant's reference to the guideline in R v Whyte is inapt. The submission was that "the sentence indicated for the s 52A offence was more than twice the head sentence articulated in the guideline judgment". The guideline is not that a sentence of two years is appropriate for case involving an offender with a high level of moral culpability as the submissions suggested; it refers to a generally appropriate minimum sentence. The guideline for offences against s 52A(1) and s 52A(3) was stated by Spigelman CJ at [229]: "Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate." (Emphasis added)
Many of the aggravating features identified in R v Jurisic (1998) 45 NSWLR 209 and adopted in R v Whyte (at [216], [228]) were present in this case: (i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (v) Erratic driving. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit.
The sentencing judge was correct to say the guideline was "of little relevance".
Reliance upon sentencing statistics in support of this ground is unhelpful. That is particularly so as the observation made by Johnson J in Hordern v R [2019] NSWCCA 210 at [46] is equally applicable to the present case: "In this case, counsel for the applicant sought to rely upon bare statistics. Counsel's submissions did not take the Court to the facts of the sentencing decisions to assist an understanding of the outcomes in particular cases. As a result, there was no informed examination of the cases reflected in the statistics."
The statistics provided by the applicant were for the use offensive weapon to prevent apprehension (s 33B(1)(a) offence) and the dangerous driving causing grievous bodily harm offences (s 52A(3) offence). For the former, they simply show that for "All Offenders" (regardless of plea or other case characteristics), sentences of imprisonment imposed from January 2008 to 23 September 2018 have ranged from 12 months to 8 years. That tells the Court nothing about the appropriateness of the notional sentences of 4 years and 4 years, 6 months for the s 33B offences.
In relation to the s 52A(3)(c) offence, they indicate that for "All Offenders", sentences in the same period have ranged from 18 months to 4 years, 6 months. That indicates that the notional sentence in the present case is at the top of the range of sentences that have been imposed, but nothing else. Sentences imposed in the past do not fix the boundaries within which future sentences must be passed: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [22].
There is no merit in the assertion of excessive notional accumulation. Having determined the sentences that would have been appropriate for each offence it was necessary for the judge to make an evaluative assessment of what would be an appropriate aggregate sentence that would comprehend the criminality of all of the offences: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27].
The task of sentencing in this case was undoubtedly difficult; probably to a degree greater than usual. On the one hand the judge had to take into account the applicant's mental illness and its causal connection with the offending. As I have previously observed, there can be little doubt that the offending would not have occurred if not for the applicant being in an acutely psychotic state, affected by paranoid delusions and auditory hallucinations. On the other hand, there were a number of objective factors that, absent the mental illness, were indicative of a high degree of criminality.
The sentencing judge could not lightly dismiss the offending by regarding it as at the lowest end of the spectrum. The offences committed from the time of taking the 42 tonne truck from its owner in Murrurundi at 7.20am until the final collisions, explosion and fire at Singleton about 1½ hours later were of a high degree of seriousness (putting aside the mental illness). Ten people were injured, one of them with a serious example of what constitutes grievous bodily harm. Many others were threatened with injury and there was a serious risk to the lives of five police officers. The damage to vehicles and other property was substantial. The psychological trauma to those who were threatened by the applicant's conduct and those who witnessed it is incalculable.
The non-parole period of the sentence represented a significant reduction from what it otherwise might have been (up to almost three years longer). It has the effect that the applicant would be (potentially) on parole for six years after having served what his Honour considered was the minimum period he must spend in custody.
The Crimes (Administration of Sentences) Regulation 2014 (NSW) provides in r 214A(2)(a) that supervision on parole can be in place for up to 3 years. However, even after supervision is terminated, the fact of being on parole and at risk of returning to prison upon breach (and possibly also being on a community treatment order) is a continuing incentive for the applicant to comply with treatment and remain abstinent from substance abuse, the principal reasons for the finding of special circumstances.
The applicant has failed to establish that the sentence is manifestly excessive.

Orders

I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.
FAGAN J: I agree with R A Hulme J.
CAVANAGH J: I agree with R A Hulme J.

Endnotes

Sequence number
The Road Transport Act offences also have prescribed maximum fines that may be imposed.
Proceedings on sentence (POS) pp 4-5
Remarks on sentence (ROS) 47-48
Delusions of misidentification of others (Dr Elliott's report at p2).
MFI.5 at AB 174-175 as explained at POS pp21-22. The judge appeared to be curious as to this. He asked defence counsel whether he was "obliged to determine the relative seriousness of the particular instance of each offence having regard to the range of conduct covered by that kind of offence". Counsel responded in the affirmative. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2020

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (31 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (13)

Cited By (1)