Neil v R

District Court of NSW|2022-05-31

Judgment Judgment Background The appeal The facts The Local Court decision Speed camera evidence Opportunities for those in the BMW to change places How many persons were in the BMW? Visual identification evidence Sequence 5 offence Sequence 13 offence "Menace" The allegation Consideration Order on conviction appeal Consideration of severity of sentence Commencement of sentence Institutionalisation? Orders

Background

HIS HONOUR: This is an appeal from a judgment given by Farnan LCM sitting in the Central Local Court on 18 June 2021 in Police v Neil [2021] NSWLC 3. The appeal concerns certain findings of fact and certain convictions recorded by her Honour after a contested hearing that was held on 17, 18, and 23, March 2021.
The charges faced by the Appellant arose out of the driving of a motor vehicle on 30 April 2020 and 1 May 2020. There were originally 13 charges, but sequence 8 was never pressed. Sequence 13 was an alternative charge to that contained in sequence 12.
The motor vehicle in question was a grey BMW318i, registration number DBO57R ("the BMW"). The BMW was stolen by a person or persons, unknown, between 11.59pm on 26 April 2020 and 8.45am on 27 April 2020 from, or from outside, premises at 77A Barnstaple Road, Russell Lea. Russell Lea is an inner western suburb immediately west of Drummoyne. The motor vehicle was a small but powerful four door sedan.

The appeal

The appeal was listed before me on Monday 30 May 2022, but a civil judgment concerning costs occupied me until about noon on that day. The hearing continued on Tuesday 31 May 2022 and until nearly lunchtime on Wednesday 1 June 2022, when I adjourned it to today, when the criminal trial that was due to commence before me on 31 May 2022 could not continue.
I have had to hear the parties in the appeal on the conviction of the Appellant, and in the appeal on the severity of the sentence recorded by her Honour. That second component does not depend on a successful or partially successful outcome for the Appellant in respect to the conviction appeal.
Nevertheless, the estimate for the appeal was "one day" even though it commenced with a tender of a lever arch binder, containing 353 pages and a USB stick containing hours of films. Those materials do not include any papers relating to the severity appeal. Those papers now occupy a separate binder.
The estimate is utterly risible, and represents a completely inadequate overview of the issues both by the lawyers and the listing authorities. Counsel did provide written submissions, trying to seek to confine the material but those submissions required me to read almost all of the paper material exhibited, as well as having to watch portions of the film from time to time.

The facts

I turn to the facts. At 5.22am on Thursday 30 April 2020 the BMW was captured on a speed camera being driven on Anzac Parade at Maroubra travelling at 106 kph in a 60 kph zone. There was further driving of the BMW between 11.23pm (as submitted by the Appellant) or 11.29pm (as submitted by the Crown) on 30 April 2022 until 3.30am on Friday 1 May 2020. This is the period that I have referred to as the joyride.
The first contact with the BMW was by Constable Jessica Guthrie from the Glebe Police Station. She gave this evidence-in-chief: "Q. Is it also the case that around 11.30pm you were attending to a job not related to these proceedings in Forest Lodge? A. Yes. Q. Do you remember if you observed anything on the way to that job? A. It was quite late at night, so there was no real traffic or anything but I did observe a silver sedan, BMW approach the intersection about 100 metres in front of me. Q. Do you know what that intersection was? A. The cross of Minogue Crescent and Ross Street. Q. Thank you. What did you see? A. So I saw it slowly coast through…they would have had a red light, because I had the green light and turned right to continue onto Minogue Crescent. Q. What happened then? A. I was proceeding urgently to the job, so I was already under lights and sirens, an urgent job, but the job was on that street so seeing that and observing it run through a red light, sparked my interest. So I observed it further down Minogue Crescent… Q. When you say "observed it further", what do you mean? A. So, it was in front of me now on the same street as me, so I watched it for a short period kind of identifying that it's failed to stop at a red light. Q. What happened then? A. So I followed it, like I continued straight, watching it and it then blew another - went through another red light on the cross of Wigram Road and Minogue Crescent. Q. And then? A. That was when I attempted to…pull it over, that's when I was intending to pull it over and then it continued on. Q. Did you notify the radio of anything? A. Yes, we - immediately once I realised that it wasn't stopping, I.. called the pursuit, that was when I started - I spoke to the radio - I didn't, I told my offsider to notify the radio that there was a pursuit. Q. Do you recall if the registration of the vehicle is DBO 57R? A. Yes, that's correct. Q. What was the closest you got to it during your observation and engagement of the pursuit? A. Yep, so when I first saw it, it was 100 metres away, but the closest I got to it was as it was turning left onto St Johns Road and I got within 2 metres of the car, the back of the car. Q. Did you get a chance to look inside the vehicle at all? A. No. Q. Did you get a chance to see how many people were inside that vehicle? A. From memory there was four, four people on board. Q. Do you remember at what point in your engagement with this vehicle that you made that observation? A. Sorry? Q. Do you remember when, in your observation of the vehicle-- A. Yep. Q. --or engagement with that vehicle that you made the observation that there were four people? A. I believe I noticed four - we call it four heads on board, four heads on board from - initially seeing the vehicle. Q. Did you say 'you called four heads on board'? A. No, I didn't, I didn't call, but I just remember seeing four heads on board once observing the vehicle from behind. Q. Do you recall at all where you were when you saw those four heads on board? A. So it was as it was turning right into Minogue Crescent [from Ross Street], the initial red light so to speak. Q. Do you remember which window perhaps you were looking through of that vehicle? A. The rear window. Q. The rear window. How long did you pursue the car for? A. I'm estimating to be about - maybe two minutes, a minute and a half. Q. How would you describe the manner of driving of that vehicle? A. They were speeding excessively. From memory I think the - from looking at my speedometer, I believe it was around 90 to 100 kilometres an hour on a signposted 50 kilometre zone street. Q. Was there any traffic around? A. No. Q. Pedestrians? A. No, not from memory. Q. At what point did you stop following the vehicle? A. I terminated the pursuit after the vehicle went through the intersection of Wattle Street and Wentworth Park Road. It's a light intersection, so we had the red light facing us as I was following it and it went through that red light, I estimate to be at least 70 kilometres an hour, yeah." This offending gives rise to sequences 1, 2, 3 and 6 although sequences 2, 3 and 6 are extended to the whole of the joyride.
The next offending occurred at 11.31pm when the BMW was driven through a red traffic light on Oxford Street at its intersection with Crown Street in Darlinghurst. At 11.32pm the BMW was driven past a speed camera at Moore Park, being driven at a speed of 121 kph in a 60 kph zone. At 11.32pm it was driven on Lang Road, Moore Park. A little later, at 11.35pm, a pursuit of the BMW was commenced by Senior Constable Mark Wilkins on Anzac Parade at Kensington. Exhibit 5 in the Court below was a statement of Senior Constable Wilkins made on 13 May 2022. It contains this matter: "6. About 11.34pm that night I was patrolling northbound along Anzac Parade which has a sign posted speed limit of 60km/h, keeping a lookout for a stolen silver BMW bearing New South Wales registration DBO-57R which was involved in a pursuit with Police attached to the Leichhardt Command about 11:30pm that night. During this time traffic conditions were lighter than normal. 7. On approach to the intersection of Anzac Parade x Alison Road Kensington I observed a silver BMW crossing the intersection of Anzac Parade and Alison Road in a south bound direction at an estimated speed of no less than 100km/h in the sign posted 60km/h. At this time Leading Senior Constable GOULD yelled, 'there it is' while pointing across at the silver BMW. 8. I have conducted a U-turn at the traffic control lights on Anzac Parade x Alison Road and began attempting to catch up to the silver BMW who continued at high speeds along Anzac Parade, at this time Police in-car-video was activated, creating video file, KSI2BX. Police lights and sirens were not activated at this time, as I believed the offending vehicle did not see the Police car. 9. I continued travelling... south along Anzac Parade to catch up to the offending vehicle. I was travelling at speeds no less than 94km/h and no more than 141km/h between Anzac Parade x Alison Road Kensington to Anzac Parade x Meeks Street Kingsford without gaining or closing the gap between the offending vehicle. The distance between these locations is approximately 2.5km and has a signed posted speed limit of 60km/h. 10. Near the intersection of Anzac and Rainbow Street I activated my lights and sirens to try and close the gap between my vehicle and the offending vehicle, which appeared to increase its speed, pursuit 20/1096 was initiated. I continued following the vehicle along Anzac Parade where I slowly closed the gap between my Police vehicle and the offending vehicle to approximately, a two (2) second gap. Between the intersection of Anzac Parade x Rainbow Street and Anzac Parade x Alma Road, I was travelling at speeds between 122km/h and 159km/h. 11. I continued following the offending vehicle along Anzac Parade which began to decrease its speed near the intersection of Anzac Parade x Boyce Road and appeared to pull over. I could see the vehicle was displaying New South Wales registration, DBO-57R. I followed behind the vehicle, however it accelerated off continuing along Anzac Parade. At the intersection of Anzac Parade x Maroubra Road the pursuit was terminated by the pursuit manager. 12. I watched the offending vehicle turn right onto Maroubra Rd in a western direction, turn left onto Anzac Parade and travel in a south bound direction travelling on the wrong side of the road. I returned to other unrelated duties." This is the sequence 10 offence.
The next offending is the sequence 11 offence. This was a pursuit of the BMW by Inspector Marc Beckinsale of the Eastern Beaches Police Area Command. At 11.39pm, he was driving a fully marked police vehicle known as Elizabeth Bay 10 [EB10] on Anzac Parade Malabar. The inspector's statement which was Exhibit 6 in the Court below, contains this matter. "4. At the time there was almost no other traffic on the road due to the time of night, the location and, the Public Health Act restrictions current at the time. At the time I was driving in the left hand at close to prevailing speed limit of 60 kilometres per hour. 5. Shortly after driving past the intersection of Anzac Parade and Kain Avenue, I noticed a vehicle in my rear view mirror. I watched as it approached rapidly in my lane to a point approximately 20 metres behind me, at which point it braked harshly. In doing so, I saw the bonnet and headlights of the vehicle dip as the front suspension of the vehicle was compressed under the brake force applied. 6. I continued driving and slowed down to about 40 kilometres per hour. I saw the vehicle behind me slow down even more, extending the gap between us to about 30 metres. 7. I changed from the left lane to the right lane in an attempt to have the other vehicle drive past. Instead of accelerating to the speed limit and passing me, the vehicle changed lanes and followed me into the right hand lane. 8. At this stage, I was still driving at around 40 kilometres per hour. As I approached the sporting fields known as Pioneers Park, I changed lanes back into the left lane. Several seconds passed before I saw the vehicle behind do the same. 9. I continued driving to the intersection of Anzac Parade and Cromwell Place. There I pulled EB10 over to the left hand kerb and parked in a bicycle lane. I watched as a vehicle behind me pulled into the right lane and accelerated to a speed of approximately 60 kilometres per hour. I watched as it passed me and noted that it was a grey coloured BMW sedan with dark tinted windows. Owing to the lack of lighting in the area and the time of night, combined with the vehicles dark tinted windows, I could not see inside. 10. I watched as the vehicle continued to drive away in the right hand lane at about the speed limit. Once the vehicle was about 200 metres ahead, I pulled out from the kerb and began driving along at the speed limit. I watched the vehicle as it drove through the intersection of Anzac Parade and Franklin Street. 11. Shortly after, I saw the rear of the vehicle dip down and, at the same time saw that the vehicle's speed had increased dramatically as it sped over the crest of a hill. I immediately accelerated after it and in doing so activated the rear facing flashing red and blue warning lights attached to my vehicle. 12. By the time I had reached the same crest, I saw that the vehicle was at the intersection of Anzac Parade and Austral Street. I saw the traffic control signals at the intersection were displaying a solid red light to traffic travelling in our direction. 13. I watched as the vehicle slowed slightly, before driving swiftly into the intersection against the red lights and turning right onto the short section of Austral Street that connects the south and north-bound carriageways of Anzac Parade. I saw the vehicle accelerate and brake harshly as it approached the north bound carriageway of Anzac Parade. I saw that traffic control signals at the intersection of Austral Street and the north bound carriageway were also displaying a solid red light. 14. I watched the vehicle enter the intersection contrary to the red traffic light and, turned right to drive in a northerly direction along the north bound carriageway of Anzac Parade. 15. Shortly after I activated all warning lights and signs attached to my vehicle and commenced a vehicle pursuit. Rather than stopping, the vehicle accelerated harshly away, causing the tail lights to dip as the rear suspension compressed under the forces of acceleration. 16. The vehicle then drove away at high speed. I pursued the vehicle and noted that it was travelling at a speed of no less than 100 kilometres per hour as it swerved across lanes and negotiated a bend near the intersection of Anzac Parade and Hillary Parade. 17. The vehicle continued to drive north along Anzac Parade at a speed no less than 100 kilometres per hour between Hillary Parade and Messines Place. I watched at the vehicle drive at speed over a small depression in the road, causing the rear end of the car to bounce up and consequently causing the vehicle rear tyres to momentarily brake traction with the roadway. 18. I watched as the vehicle continued past Messines Place and onto a section of Anzac Parade that was relatively straight. The vehicle accelerated even more. I continued pursuing and noted that the vehicle was pulling away from me. I looked down and noted at my vehicles dash was indicating that I was travelling at 130 kilometres per hour. 19. I watched as the vehicle continuously accelerated away. As it did so, I noted that the vehicle continued to drive from edge to edge in the right hand lane, taking what is commonly known as racing lines. 20. Shortly after I received notification from Police Radio that the pursuit had been terminated by the Pursuit Manager. I returned to the speed limit and turned off my lights and sirens. 21. By that time I'd reached the vicinity of the intersection of Anzac Parade and Maroubra Road. There I met up with a number of other police vehicles parked at the location before returning to other duties."
There were a number of agreed facts before the Local Court. Agreed facts numbered 11 to 18 tell me this. At 11.49pm, the BMW was observed by PolAir travelling at high speeds in Moore Park. At 11.52pm, the vehicle was being driven at 106 kph in a 60 zone on the Princes Highway. At 12.27am on 1 May 2020, the BMW was being driven on the Heathcote Road, Engadine, at 102 kph in a 70 kph zone. At 12.42am, the BMW was being driven at 120 kph in a 60 kph zone on Elizabeth Drive, Mount Pritchard. At 1.02am, it was driven at 117 kph in another 60 kph zone at Elizabeth Drive, Mount Pritchard. At 1.05am, it was driven at 71 kph on Bigge Street, Liverpool. At 1.08am, the BMW was driven at 142 kph in a 60 kph zone on Elizabeth Drive, Mount Pritchard. At 1.26am, it was driven at 196 kph in a 60 kph zone on the WestConnex at Croydon.
The agreed facts which I have just summarised do not adequately describe the extent of the joyride. The BMW was initially monitored after Inspector Beckinsale's pursuit by PolAir 9. The BMW was observed by it in Sutherland Shire on the Princes Highway and followed it to Engadine. PolAir 7 then took over from PolAir 9. The BMW was driven south towards the Sublime Point lookout near where it turned around to travel north along the Princes Highway to Helensburgh where it made a U-turn and then started to travel south again and then turned north on to the Princes Motorway. I assume, therefore, that when the evidence refers to the Princes Highway it means the old Princes Highway rather than the modern Motorway.
At 12.26am the BMW was driven through Heathcote and turned left on to the Heathcote Road heading towards Liverpool. At 12.39am it was driven through Liverpool and then on to Hoxton Park Road. It travelled on various roads through Ashcroft, Bonnyrigg, Smithfield, and Wentworthville. At 12.49am the BMW was turned on to the M4 and travelled west. At 12.54am the BMW left the M4 and travelled north on Wallgrove Road for a few moments until a U-turn was made. The BMW was then driven south on Wallgrove Road to Elizabeth Drive on to which it turned left and travelled east.
At 1.05am it entered the Liverpool CBD before turning west on to Elizabeth Drive again. At 1.11am it turned north back on to Wallgrove Road. The BMW followed that road to the Great Western Highway on to which it turned to travel east. It was driven on to Reservoir Road and then joined the M4 motorway again travelling east.
It entered the WestConnex tunnel near Homebush at 1.25am leaving the tunnel two minutes later travelling towards the Sydney CBD on Wattle Street which it followed for a short time. The BMW then made another U-turn at 1.30am and travelled towards Parramatta Road along which it eventually travelled to Strathfield where it eventually joined the M4 heading west. It left the M4 at Silverwater Road which it followed north before turning into Derby Street and then into a BP service station on the corner of Derby Street and Silverwater Road.
There is CCTV film taken at the service station. According to PolAir 7, the BMW was driven into the service station at 1.39am. It was driven very close to bowser number 6. The fuel cap of the BMW is on the driver's side of the vehicle behind the rear driver's side passenger's door. A passenger then leaves the vehicle by that door, takes the handset from the bowser and places the nozzle of the handset into the vehicle. There was barely enough room between the driver's side of the BMW and the bowser for that passenger to do what she did. I use the feminine gender advisedly. The passenger appeared to me and to counsel as well as to other witnesses to be a female. My observation is based on both her build and her hairstyle. Her face cannot be seen. She keeps looking towards the roadway in the distance, which I assume is Silverwater Road, looking away from the console operator at the shop and away from the camera. She does not spend very long in the task of refuelling the BMW, because three police vehicles drive into the service station in very quick succession. Two of the vehicles were unmarked and one of them was a marked police vehicle. The female drops the handpiece of the bowser, returns to her position in the vehicle, and closes the door.
Police who arrived in the service station to confront the BMW and its occupants were in order of arrival, firstly Senior Constable Elie Saab (driver) and Senior Constable Shannon Kumar (observer) (both in plainclothes) in an unmarked Hyundai Sonata known as Mount Druitt 141 [MD 141]. The second vehicle to arrive contained Constable Laura Mitchell (driver), Constable Joel Broadhead (observer), Constable Emily Hunt and Constable Ahmed Abawi (in the backseat) in a Kia motor vehicle known as Mount Druitt 102 [MD 102] which was an unmarked police car. As I understand it, all those constables were in full uniform. The third vehicle to arrive was the marked police vehicle, but that plays no relevant role in the facts of the matter.
Plainclothes police were advised by PolAir at about 1.40am that the BMW had been driven into the BP service station. They were approximately one minute away from it when they were told that. They then drove to the service station. Senior Constable Saab is also the officer in charge of the prosecution. He gave this evidence: "Q. ...Where did you park your vehicle when you attended? A. At the front of the offending vehicle. The front of the vehicle is pointed towards me, I parked my vehicle on an angle, kind of cutting off the direction of travel it might head in. Q. At what point in time from you travelling towards the service station, to entering the service station, did you see the offending vehicle? A. I saw it from outside on the road as I was driving parallel towards the service station and about to turn left into the driveway and...turned left again to get in front of it.'' Certain CCTV footage was then shown to the witness. His evidence then continued in this way: "Q. Can you tell the Court what you did then, please? A. I immediately exited the vehicle around towards the driver's door in an attempt to remove the driver from the vehicle. I yelled out 'Police', I opened the door - from previous experience, I've always had vehicle doors locked, so I immediately proceeded to attempt to try and break the window in order to gain entry into the vehicle. I failed to do so. Then my offsider, Senior Constable Kumar reached for the handle and opened the door. Q. When you say he reached for the handle, where was he? A. Next to me." Further film was then played and eventually this evidence was given: "Q. What happens then? A. It, it all happened too quick. Obviously we were going to reach in to try and get the driver, but the driver then accelerates towards our police vehicles, nearly colliding with Constable Abawi. He squeezed in between the gap of the two police vehicles, colliding with either side of them, before driving off onto the incorrect side of the road. Q. Thank you. Did you make any observations during this period? A. Yes, as I was driving into.. the servo, my main focus was obviously the driver. So I looked at him through my driver's side window, straight into the cabin. Obviously, the service station was very well lit up, so I had a very clear image of the driver. I observed him to be wearing a hat and a hoodie over his hat. He was a Caucasian male and he had a scruffy beard. I maintained eye contact. As I pulled the car up, I opened my door, still looking at the driver and as I was running towards the vehicle, I continued to look at the driver before getting to the driver's side door and attempting to...gain entry through the window. Q. As you're at that window trying to break it, as you say, could you see through that window at the driver? A. Yes. Q. What did you see? A. I could see through to the driver, but I wasn't - at that point I wasn't really focused on the driver, so I wasn't really looking at him then. I was more trying to gain entry through the window. Q. Did you see the passenger at all? A. I didn't look at the passenger, no. Q. At this point, did you recognise anyone in the vehicle? A. I...didn't know their names, I didn't know how many people were in the car, I just - as I said, my focus was on that driver to obviously identify that driver and that was it. Q. But you tell the Court that you didn't know who the driver was? A. Not at that stage, no. Q. Was there anything obstructing your view of the driver? A. No. Q. I believe your words were, you tried to maintain eye contact. What do you mean by that? A. So as I was running towards the vehicle, I continued to look through that front windscreen. That front windscreen was obviously clear. There was no obstruction there. The front windows aren't tinted, so it was obviously a clear, transparent view of him. Q. The driver, who was looking back at you - sorry, I withdraw that. The driver that you were looking at, could you tell the Court where the person was looking? A. He appeared, in my belief, he was looking towards me, straight at me". A little while later this evidence was given: "Q. How long would you say you could see through that front driver window? A. The time it took me from the driver's side...driver's seat to there, so probably about three, two to three seconds".
In cross-examination, Senior Constable Saab gave this evidence, and these are excerpts of his evidence commencing on p 13 of the transcript of evidence given on 18 March 2021 at line 15: "Q. As you approached you saw a female essentially standing outside of the car and filling up? A. Upon entering the driveway yes. … Q. She's observed you, drop the fuel nozzle and gotten quickly back into the vehicle? A. I don't know what she did. I wasn't - like I saw her filling up and then I didn't look at her. Q. So you're not sure as to how she returned to the vehicle or whether she did? A. I knew she got back in the car. I didn't see her drop the fuel nozzle, nothing. I knew the fuel nozzle was on the floor when the vehicle had left but at that point of time no, I didn't know the fuel nozzle was on the ground. … Q. As you were driving, did you observe anything of the female standing outside the vehicle? A. I observed a female and the fuel - around the fuel area which I drew that she was filling up the vehicle and upon turning my vehicle veering left I looked straight into the driver's seat and just looked at the driver". Q. You took your sight away from the female if I can put it that way? A. Yes. Q. You've given evidence that when you exited your vehicle you ran to the driver's side window? A. Correct. Q. And that you struck the window four times with your hand? A. I struck the window. Q. And kicked it as well? A. Tried to. … Q. Just to clarify for her Honour, you attempted to kick the window but essentially kicked the roof of the vehicle? A. Correct. Q. Shortly after that you gave evidence that Officer Kumar who is next to you has grabbed the door handle? A. Correct. Q. And that it's essentially at that time that the car started to accelerate away? A. Same time yes. Q. Before it had accelerated away you gave evidence that you're essentially right next to the vehicle, right next to the driver's door? A. Yes. Q. You gave evidence to the officer - sorry, to the prosecutor, that the driver was looking, and I notated your evidence correctly, 'towards me, straight at me'. A. When I was running to the car yes. When I was running to the driver's side door. Q. Does that include the time you were standing at the driver's side door? A. I said that I wasn't looking at him at the time. I was focused on breaking the window. Q. When Officer Kumar opened the door you gave evidence that you reached in to grab the driver? A. Tried to. Q. Not that you were successful, but that's what you were attempting to do? A. I was going to yes. Tried to. Q. At that time did you see that person looking at you? A. No. Q. It's essentially the time that the door's been opened and you're reaching in that the car accelerates away? A. I hadn't reached into the car yet but I was going to yes. … Q. The period of time that you say you were looking directly at the driver before you got to the door and then weren't looking at him, and were looking at the outside of the car, how long do you estimate the time to be? A. At the driver's door sorry? Q. Yes. A. Seconds. Q. So it's all happening very quickly? A. Yes. … Q. You give evidence that you didn't observe anybody else in the car? A. No, I didn't. Q. You describe the windscreen being clear and not tinted? A. Through the front yes. Q. That's because the other windows of the car are heavily tinted? A. I believe so yes".
Evidence was also given by Senior Constable Kumar. The relevant portion of his evidence-in-chief is this: "Q. Can you tell the Court from the moment you observed anything of interest, what it was that you saw? A. Yep. So, as we had pulled into the service station, I saw the grey BMW parked up at one of the bowsers. I think it might have been bowser 6. The front of the BMW was facing Silverwater Road in the direction that we had driven in from. There was a female who was at the fuel pump, putting fuel into the vehicle. As soon as she had noticed us, she dropped the fuel pump and jumped back into the seat directly behind the driver, so the rear driver's seat, rear driver's side seat. We - Senior Constable Saab parked our car diagonally across the front of the BMW and we both got out of the vehicle and ran towards the stolen car. At about the same time, an unmarked SUV - police SUV, had also pulled in behind us, that was another Mount Druitt vehicle, and four uniformed officers got out of that vehicle and also ran towards the stolen BMW, generally towards the passenger side of that car. Senior Constable Saab was trying to crack open the window. I assume that the vehicle was locked, and the uniformed officers were trying to open the passenger side of the vehicle. So at that point, I stood just off, off centre from the - sorry, off to the side of the front of the vehicle, and looked through the windscreen at that vehicle to make observations on the driver of that car. The driver was about a 20 to 25 year old white male. He had a scruffy brown beard. He was wearing a dark coloured jumper and there was a small white emblem on the left side of his chest. I think he might have been wearing a hat as well. I had a quick look at the passenger, and he was a younger male. He was maybe, maybe 16 to 20 years old, aboriginal male, light brown skin. He was wearing all black, or at least the top half of him, the black jumper, and had a large white motif in writing across the chest and the torso area of his jumper, and he was wearing a dark coloured hat as well. We were having no luck at getting into the vehicle, so I decided I'll just try the door. Pulled open at the driver's side door handle and the door was unlocked, so the door opened up and I was about half a metre away from the driver. I got a very clear side profile look at the driver. I yelled something along the lines of, 'Stop, police', and then the car - the stolen BMW was put into drive and accelerated forward, narrowly missing - there was an officer, one of the uniformed officers were at the front left of the car. I had to let go of the driver's door and then it crashed into - crashed between our two police vehicles, and then turned right onto Silverwater Road on the incorrect side of the road, heading back towards the motorway. Q. You said you got a look at the passenger? A. Yes. Q. Where was this passenger seated? A. Front, front passenger, so front - yeah, front passenger. I knew that there was other - there was at least one other female that was - had filled up or was filling up the car, I didn't get any look at the back seat of the vehicle. Q. Was there anything obstructing your view? A. No, other than the windscreen. But the - it was in a service station, so it was pretty well lit. Q. How long would you say that you had eyes on the driver on the vehicle? A. Through the front windshield, I would've had about four, no more than five seconds. It was quick. And then it was half a second - a second when I opened the door and looked directly at the driver and yelled out at him. Q. When you first saw the driver, did you recognise him as someone that you had previously knew? A. I hadn't dealt with him before, so I didn't immediately recognise him. Q. What about the passenger? A. I didn't know his name. I had seen him somewhere, but I wouldn't say I recognised him. Q. Can you describe the lighting for the Court? A. It was, it was well lit from memory. A service station at night is, is generally pretty well lit. Obviously inside the vehicle was dark. There was no interior lights on inside the vehicle, but the exterior area I believe was well lit. Q. In terms of when you're looking through - you described it as a windscreen. Can you confirm with the Court where exactly prior to opening the door, where exactly you're looking through to make the observations that you made? A. Yep. So, I was standing in front of the vehicle off to the side, the driver's side of the vehicle. So, obviously I wasn't standing directly in front of the vehicle with the risk of the vehicle taking off forwards. I was standing to the front right of the vehicle. Front driver's side of the vehicle. Maybe a metre, a metre and a half away from the windshield, that is. Not the bonnet of the car." In cross-examination Senior Constable Kumar said that his observations were made over three to four seconds, observations of both the driver and the passenger. On my reading of the counters on the CCTV film, the total time between the arrival at the service station of MD141 and the driving off of the BMW was 10 seconds.
Both Senior Constable Saab and Senior Constable Kumar gave sworn evidence and were cross-examined. No statement from either of them was tendered. A statement of Constable Laura Mitchell was tendered (Exhibit 24) as was a statement of Constable Joel Broadhead (Exhibit 25). Both gave brief evidence. Constable Abawi also gave evidence. I turn to the evidence of Constable Mitchell. At p 48 of the transcript of 18 March 2021 this evidence is recorded: "Q. ...when you make observations within the BMW, which window were you looking through? A. The front windshield I could see part of from the angle I was at, and then the rear passenger window I could see clearly in. Constable Broadhead was standing in front of the front passenger, so I couldn't see through that way. Q. Did you make any observations of the side windows of the vehicle? A. Sorry, what do you mean? Q. Did you notice anything about the side windows or the glass specifically? A. No. The windows were up but that's all I can really offer you in relation to that. It was quite quick. Q. How quick? A. Seconds. Q. When you say seconds-- A. I think that whole incident at the BP service station probably was less than 30 seconds. Q. How many seconds, thinking very carefully about this question, would you say that you make observations of any of the occupants in that vehicle? A. Probably less than 10. Q. Can you narrow it down any more than that? A. No. Q. Was there anything obstructing your view? A. Other than one of the other police officers, no. Q. Were you in a position to see who was seated in the front of the vehicle? A. Just a silhouette. Q. When you say, 'Just a silhouette', what window were you looking through to see that silhouette? A. In the driver's seat. The front windshield at an angle, and then in the backseat, through the rear passenger window because Constable Broadhead was obscuring my view of the front passenger window which was probably where my best line of sight would have been".
In her statement Constable Mitchell had said this: "9. I turned left into the driveway of the service station behind MD141. I observed the grey BMW with its nose facing our vehicles. MD141 stopped on an angle in front of the vehicle to my left and I stopped to the right leaving a gap of less than 2m. I exited the vehicle along with my colleagues. Senior Constable SAAB was at the front driver's side window of the BMW attempting to open it. Constable BROADHEAD was at the front passenger side door. I got out and approached the vehicle and observed multiple heads on board briefly. The driver and at least 3 rear passengers. 10. The BMW then surged forward and ran between my vehicle being MD102 and MD141 to escape police. I returned to my vehicle with my colleagues to continue following it".
Constable Mitchell's estimates of time are substantially over estimated. She believed that the whole incident took about 30 seconds, when it took about 10 seconds. She believed that she had the persons in the vehicle under observation for about 10 seconds: it was obviously much less than that. She believed that there were "at least three rear passengers" but does not say whether there was a front seat passenger as distinct from the driver. When one observes the film, it becomes very clear that the amount of time that Constable Mitchell had to engage in observations was minimal. That is referred to in the learned Magistrate's to judgment which I shall in due course turn.
In his short statement (Exhibit 25) Constable Broadhead said this: "I saw MD141 stop on an angle front on towards the BMW, where Senior Constable Saab and Senior Constable Kumar ran towards BMW's driver side. Constable Mitchell stopped our police vehicle directly in front of the BMW and I got out of the vehicle and ran towards the passenger's side to assist Senior Constable Saab and Senior Constable Kumar arrest any persons within the vehicle. I briefly opened the passenger door before the BMW began travelling forward before I could see the driver". The examination-in-chief of Constable Broadhead was extremely brief. It comprises 17 lines of transcript. At p 58 of the transcript of 18 March 2021 commencing at line 17, the constable gave this evidence: "Q. Did you happen to see how many people were inside the vehicle? A. No." The cross-examination completed that page of the transcript but nothing was gained from him relevant to the issues currently before me.
This is the evidence-in-chief given by Constable Abawi: "Q. Can you tell the Court what happened and what you saw as your approaching and as you enter the BP service station, please? A. So Mt Druitt 141 which was the other proactive police car, drove in first, we drove in behind them. The other proactive car when it arrived first it sort of - it stopped right in front the BMW car that was confirmed stolen. I saw a male person putting the - trying to put the petrol into the car. He immediately raced back into the car, closed the passenger side door. And then I saw Senior Constable...Saab and Kumar trying to access or trying to open the door and they were punching - Senior Constable Saab was punching the front passenger window. Constable Broadhead at this time gets up before me and he runs. I'd just like to correct one thing. I was sitting on the rear right passenger seat. I jump out, I run around the back of Mt Druitt 101 and I pretty much - as I'm running out, the grey BMW I hear it turn on and I saw a male Caucasian, he had like a dark sort of coloured shirt on. He had a unshaven beard, and like sort of dark coloured hair. I saw him and this happened so quick, the vehicle just - I heard the engine roar and it just came at my direction and the driver was facing me, I was looking at the driver and I just jumped out of the way and it just smashed through our cars and kept going. It left the BP service station".
A little later in-chief he gave this evidence: "Q. Now you say at some point you see a male Caucasian, dark coloured shirt, unshaven beard, possibly dark hair. How did you see that? A. Well I was standing in front of the car, so I made - like I made eye contact. And I just saw him - it was just a very quick look and he - this was the person that drove, drove at me. And it was well lit area as well, was like a service station, so there was a lot of lighting around. Q. Could you describe to the Court which window it was that you were looking through to make this observation? A. I was literally right in front of, front of the car. So I was looking at the, the front windscreen and I was focused on the driver of that vehicle. Q. How far away were you? A. Say like 3 metres, 4 metres. Q. How long do you think that you had the driver under observation before you had to jump out of the way of the car? A. I'd say about three seconds - four seconds at the most. Q. Now when the car accelerates in your direction and you jump out of the way, how close does it come to you? A. I could feel - I don't know like I mean, maybe 30 centimetres something like that. Q. What was going through your head at the time? A. I was scared. You know like, just reflexes, just jumping out of the way. The car didn't stop so if I was still standing there he would have run me right over. … Q. What was going through your head as you decided to look though the front window? A. It was we need to stop the car. Q. I beg your pardon? A. We just - I - we needed to stop the car, we needed to get the driver. At that time I was trying to get my baton out - like as I was running, my hands - I still remember my hands were reaching for my...baton pouch. And so I'm like reaching for my baton and as I'm running to try and maybe help break open a window because I saw Senior Constable Saab punching the window. Like three-four punches so clearly he couldn't, he couldn't punch the window open. So I'm thinking in my head 'Let me get my baton out' and I'm going to see if I can, I can hit the window and break it open so we can apprehend the people in the car. Also I was thinking, well our cars were sort of - the way it was positioned was almost like a - it was like coming like that. So I thought 'Well, he's - he can't really go forward' because I mean we've sort of somehow blocked him a little bit, so the only place he can do - how he can get out is maybe he can reverse. But obviously he just came forward, just came straight at me and smashed into our cars".
A little later the transcript records that what was indicated by the witness was that the two police vehicles were parked in an inverted V-shape or, to use the Greek alphabet, a Lambda shape. However, the two ends of each car did not join completely, there was a gap between them of less than 2 metres. This evidence was then given in-chief: "Q. When you're looking through the front windscreen at the driver of the vehicle, can you assist the Court in telling the Court which way the driver was looking? A. He was literally looking at me". There is relevant cross-examination: it is this: "Q. Were you able to observe anything that might have been covering that hair? Such as a hat or a hoodie? A. I can't remember. It was three- 3-4 seconds before the car came straight at me so I had a look. Three to four seconds and it just came straight at me, I had to jump out of the way. Q. So you can't say? A. That I saw a hat? Q. Yes? A. That I - no I didn't see a hat that I could see, no. Q. So that's why you used the word possibly because you're not entirely sure? A. Yeah I'm not entirely sure if there was a hat on his head. Q. It's the case isn't it that when Senior Constable Saab is punching the side of the vehicle that the person sitting in the driver's seat was looking at Constable Saab when that was occurring? A. No I - when I jumped out, I made eye contact with this driver. And like I said three-four seconds before it came at me. So I don't, I don't - when I saw him, he saw him [sic] and it was a 3-4 seconds...we were looking at each other and he just drove straight at me. I don't know if he was looking at Senior Constable Saab before, but I know in those 3-4 seconds we were looking at each other. Q. Would you agree that the car starts moving at around the time that Senior Constable Kumar starts opening the driver's side door? A. I can't, I can't be sure. At the moment when I made eye contact with him in my peripheral vision I can hear Senior Constable Saab hitting the window. I did not observe Senior Constable Kumar opening the door. At this point in time from my, from my vision I could see Constable Broadhead open the front passenger side door. And then the car I hear it turning on, it's a sports car, so when it turns it's not like a - it's got like a loud engine sound. And then the car revved up and tyres screeched and it came straight at me".
In cross-examination, Constable Abawi maintained that there were three to four seconds of eye contact between the driver of the vehicle and him. In re-examination this evidence was given, probably much to the surprise of the prosecutor: "Q. You were asked some questions about whether there were other passengers in the vehicle. Do you recall how many did you see? A. I saw front passenger, someone that was occupying the front passenger seat. And there were three people in the back". At that time Constable Abawi was excused. The evidence of Constable Abawi suggests that, when Senior Constable Saab was attempting to break the driver's side window of the vehicle, the driver was looking in the direction of Constable Abawi. It may be that it was not for the length of time that Constable Abawi believed it may have been, only one to two seconds. However, he was adamant that eye contact was made between the two men, that is, between the driver and Constable Abawi.
I return now to the agreed facts. They continue in this fashion. At 1.43 am, the BMW was observed travelling at 124 kph in a 70 kph zone on Victoria Road, Rydalmere. At 1.44 am, the vehicle was driven at 132 kph in a 70 kph zone on James Ruse Drive, Camellia. At 2.02 am, the BMW was driven at 126 kph in an 80 kph zone on the Great Western Highway, Wentworthville. At 2.08 am the BMW was driven at 193 kph in an 80 kph zone on M4 West Connex, Croydon. At 2.17 am the BMW was driven on the wrong side of the carriageway driving towards the police car known as Parramatta 14 on the M4, Lidcombe. Parramatta 14 was forced to take evasive action to avoid a collision with the BMW. That offending is the subject of sequences 12 and 13.
The driver of Parramatta 14 was Sergeant Daniel Fowler of the Parramatta Police Area Command. He, in fact, had two interactions with the BMW, the current one of which is his second interaction. He made a statement which became Exhibit 26 in the Local Court, however a large part of that statement has been redacted. The relevant part, [7], of his statement dated 16 May 2020 commences thus; "About 0216am I heard Cumberland 14 via VKG state that he was going to set up road spikes on the M4 westbound near the Silverwater Rd exit. At this time, I was travelling west along Parramatta Rd Homebush. I turned onto the M4 westbound via the Hill Rd on ramp where I pulled into the break down lane and waited. Almost immediately I heard a Police vehicle that had been travelling west bound on the M4 inform VKG that they had just had a grey BMW travel past them at very high speed. I looked over my right shoulder and saw in lane 4 of 4 the stolen vehicle travelling at very high speed, much faster than the sign posted speed of 90km/h. I saw that the stolen vehicle was passing other motor vehicles at very fast speed. I immediately activated the warning devices on my vehicle, and I proceeded to try and catch up to the stolen vehicle in lane 4 of 4. I immediately informed VKG that I had sighted the stolen vehicle and gave my location. I started to travel about 120/hm/h, and I saw that the stolen vehicle was about 150m to 200m ahead of me. I moved into lane 3 of 4 at which time I saw that as the stolen vehicle neared Cumberland 14 who was stationary near the Silverwater Rd in ramp to the M4, appear to slow down, perform a U-turn and proceed to head in an easterly direction in the west bound lanes of the M4 contrary to the posted direction of traffic flow. I immediately informed called urgent on VKG and informed them of this. I saw the stolen vehicle move from lane 4 and head in a gradual diagonal direction across the lanes of traffic, during which the stolen vehicle appeared to gain speed." In his oral evidence, Sergeant Fowler said this; "As this vehicle [BMW] appeared to approach the location of where the road spikes were about to be deployed, it performed a U-turn and started to head in a easterly direction in the westbound lanes contrary to the legal flow of traffic on the M4. And essentially starting off in lane four of four, heading pretty much in a slight veering direction into lane three. It appeared to be travelling towards me at a very high speed. At this time, I proceeded to try and move across into lane two. It - as that - I started to commence doing that, the collision front alarm on my vehicle sounded. And as a result, so as to avoid a head on collision with the stolen vehicle, I violently jerked the steering wheel to the left so as to take evasive action to avoid a head on collision with a stolen vehicle. About - I'd estimate the stolen vehicle missed me by about one and a half to 2 metres. As a result of the evasive action, I was heading at about 45 degree angle from across lanes three to one. As a result, due to my evasive action, the collision alarm again sounded in my vehicle as I was heading straight on to the guard rail and the fire wall of the M4. As a result, I then turned, took a more evasive action by then aggressively jerking the ...steering wheel to the right so as to avoid a collision with the guard rail. After a ....distance I was able to pull the vehicle up about 1 metre from the guard rail." It is clear that the Sergeant numbered the lanes from left to right so that the "slow lane" was lane 1, and the "fast lane" was lane 4, being the lane closest to the theoretical centre line of the carriage way.
On p 64 of the transcript of 18 March 2021, the Sergeant pointed out that he was initially in lane 4, and then moved to lane 3, and then saw the BMW coming towards him "veering slightly towards me" and that was when he decided to move across or veer into lane 2. He said the collision alarm activated when he was still in lane 3, but preparing to move across into lane 2. He confirmed that neither he nor the vehicle he was driving was involved in any collision either with the BMW or any other vehicle on the M4, or with, for example, the guard rail or the fire wall of the motorway.
The Sergeant was then shown a film which, unfortunately, does not show the interaction currently being discussed, but does show the BMW driving across lines of traffic in the wrong direction, so as to get to what Sergeant Fowler would describe as lane 1, so as to make a sharp right hand turn on to an off ramp from the motorway, such that when the vehicle turned on to the off ramp he was travelling in the legal direction of traffic for traffic on the on ramp. In other words, this was part of the manoeuvre to leave the westbound carriage way, in order to avoid coming into the trap being planned by other police with the use of road spikes.
The agreed facts continue stating that at 2.18 am the BMW was driven through a red light on the M4 eastbound Silverwater Road exit. At 2.28 am the BMW is observed driving at 63 kph in a 50 kph zone in Surry Hills. At 2.30 am the vehicle is driven at 107 kph in a 50 kph zone in Moore Park. At 2.33 am it was driven at 122 kph in a 60 kph zone in Maroubra. At 2.41 am, two passengers leave the vehicle from the rear passenger doors in Nyan Street, Chifley. Nyan Street, Chifley can be entered from Anzac Parade just south of Long Bay Gaol. Chifley has the same postcode as Malabar and, of course, Long Bay Goal is in Malabar. At 2.48am the BMW collided with the rear of a police vehicle in Chifley. At 2.54am the BMW was driven at 130 kph in an 80 kph zone on the M5 at Arncliffe. At 3.01am it was driven at 150 kph in an 80 kph zone at Yagoona. At 3.03am it was driven at 114 kph in a 70 kph in Lidcombe. At 3.17am it was driven at 147 kph in an 80 kph zone in Prospect.
At 3.29am the vehicle stopped and two occupants, the Appellant and Jahmil Clayton, left the vehicle and were apprehended by police nearby in Roebuck Crescent, Willmot. Willmot is a small suburb north of the Great Western Highway and north, clearly, of the M4, but east of Penrith and St Marys. It lies immediately beneath the Air Services Australia International Radio Transmitter Station. The BMW stopped at the end of Carteret Avenue at Willmot, which is a dead-end, which adjoins a park. PolAir film shows the two men running through the park towards Roebuck Drive. Houses on the southern side of Roebuck Drive back onto the reserve, but there appears to me to be a pathway from the park onto Roebuck Drive between two houses. The pair of men were heading towards 19 Roebuck Crescent. Jahmil Clayton made it into the front yard of that property. The Appellant did not make it that far, but was apprehended near the driveway to that property such that when he was arrested, he was seated on the kerb, that is, with his feet in the gutter and his rear end sitting on the grass of the verge.
I note that each of the court attendance notices tells me that the address of the appellant was 19A Roebuck Crescent, Willmot, that is, the Appellant appears to have been running from the abandoned BMW to his home. Clearly Jahmil Clayton knew where he lived, because he was running in the same direction ahead of the Appellant. Indeed, from my observation of the film, Clayton had reached a side passage between the residence and side fence of the property, but then turned around and walked back into the front yard with his hands held above his head in the typical pose of surrender.
The two people fleeing the BMW were being pursued by police. Indeed, the film shows that a large number of police vehicles turned up and the first police vehicle to turn up carried police who appear to have arrested the current Appellant. A large number of police officers then attended at the scene. There was some concern expressed by PolAir that there might be another offender at the rear of number 19 or in the premises known as 21 Roebuck Drive, but that turned out to be a false alarm and the police assumed that it was a local resident who had popped out to see what all the noise was about that caused PolAir to react in the way that it did.
The agreed facts set out times that the BMW was not under observation by PolAir on the 1 May 2020. The first period was between 1:25:25 and 1:27:17, when the vehicle was in the WestConnex M4 east tunnel, the period was one minute and 53 seconds. The vehicle was also not under observation for 15 seconds when it was at the BP Service Station at Silverwater. That period was covered by closed-circuit television of the service station. The vehicle was also not under observation by PolAir between 2:07 and 2:09am, a period of two minutes when it was in the M4 Tunnel east. It was not under observation for a period of seven minutes between 2:10am and 2:17am when it was in the M4 Tunnel east. It was again not under observation for a period of two minutes between 2:21pm and 2:23pm when it was in the M4 Tunnel east. Finally, it was not under observation again for a period two minutes between 2:54am and 2:56am when it was in the M5 Tunnel west.

The Local Court decision

I have found the written decision of Farnan LCM extremely helpful. It is arranged logically and precisely, albeit extremely succinctly. I intend to follow the arrangement of dealing with the topics as her Honour did.

Speed camera evidence

The only submission made on appeal about those photographs concerned photo 3 marked YYYY in Exhibit 7, copies of which were MFI 3, before me. Commencing at par [25], her Honour considered the speed camera evidence. Her Honour said this: "25. There are four photographs taken by speed cameras, which the prosecutor argues can be used to identify this accused in combination with the other evidence. The defence has also tendered an additional camera photo. All those photos are exhibit 7. I accept that viewing them electronically provides far better resolution than any attempt to view printed copies of those photographs, and I have viewed each photograph on a computer screen to assist in understanding the submissions. 26. The first front on speed camera photo is at 5:22 AM on the 30th April at Anzac Parade Maroubra (Photo 1). That photograph shows a male with a beard, a cap and a hoodie driving the vehicle, a male without a beard in the front passenger seat who is not Mr Clayton, and a female leaning between the two front seats from the back seat. The defendant does not dispute that the male driving is him. He has pleaded guilty to the offence detected by that camera (106 km/hr in a 60 zone). 27. The second front on camera photo is at 1:08 AM on 1 May when the vehicle was detected travelling at 142 km/hr in a 60 zone at Elizabeth Drive Mount Prichard (Photo 2). That photograph shows a male with a beard in the driver's seat and a person without a beard in the front passenger seat. The person in the passenger seat is not Mr Clayton. It is not possible to see whether there is anybody in the back seat in that photograph. It is not possible to identify the clothing worn by the driver. I do not consider there to be anything about the features of the driver in that photograph that are in any way inconsistent with the accused, as shown in the photograph taken at 5:22 AM and the photo taken after his arrest (Exhibit 18). However, it could not be used to specifically identify him. 28. There is an additional photo from that same speed camera tendered on behalf of the accused taken at 00:42.20 (that is, about half an hour earlier than photo 2), the photo marked YYYY in exhibit 7 (Photo 3). It is submitted on behalf of the accused that there are two males visible in the front seat of the vehicle in that photograph and the male in the passenger seat appears to have a beard as does the male in the driver's seat. I do not agree. On my viewing of that photograph the driver of the vehicle is consistent with being the same person as the driver of the vehicle at 1:08 AM at that location, and is consistent with being the accused. The passenger is not sufficiently clear to be able to say that it is the same passenger as the person in the car at 1:08 AM, however on my viewing of that photograph it could be. I do not accept that that passenger is able to be seen as having a beard. I have carefully viewed that photograph on a computer at the best resolution possible to make that finding." I interpolate at this stage that MFI 3 before me are two copies of that photograph. I agree that it does appear to depict the driver as having a beard, however I do not agree that it appears to depict the passenger as having a beard rather that results from pixelation of his image when trying to increase the size of the image.
I return then the learned Magistrates reasons: "29. The next front on camera photo is taken at 1:26 AM in the M4 tunnel eastbound at Croydon when the vehicle is travelling at 196 km an hour in an 80 zone (Photo 4). It appears to show a male with a beard driving the vehicle and a person without a beard in the front passenger seat. 30. The final front on camera photo is taken at 2:08 AM at the same location as the third, travelling at 193 km an hour in an 80 zone (photo 5). I accept that the person in the passenger seat in the photos 1, 2, 3 and 4 is not the same person as the person in the passenger seat in the photo 5. Having seen Mr Clayton when he entered his plea on 17 March 2021, and also having seen a photo of him (exhibit 22), the front passenger in the fourth photo is Mr Clayton. He was arrested in the vehicle at 3:30 AM." I again interpolate at this point. I have not had the advantage of seeing Mr Clayton in person. However, I observed the photographs of him which were Exhibit 22 in the Local Court. I accept that the fourth photo is of Mr Clayton as found by her Honour. I should also point out that Mr Clayton was not arrested "in the vehicle at 3:30AM" but rather he was arrested on the front lawn of the property at 19 Roebuck Drive, Wilmott, shortly after the vehicle was abandoned by two occupants.
I return to the learned Magistrate's reasons: "31. However, the driver has the same facial features in each photograph, including the feature of a beard, appears to be wearing the same hoodie in photos that are sufficiently detailed to show it, the seatbelt is at the same angle and he is the same height relative to fixed points in the vehicle. He bears a strong resemblance to Mr Neil, and to the person in Photo 1 who is Mr Neil. 32. I accept beyond a reasonable doubt that at some time between 1:26 AM and 2:08 AM the person in the front passenger seat of the vehicle has changed. I do not accept that the evidence of the speed cameras shows that the driver has changed, or that it is inconsistent in any way with the driver being the same person as the accused. The speed camera photos are consistent with Mr Neil being the driver on every occasion shown in them."

Opportunities for those in the BMW to change places

This was the next topic discussed by Her Honour commencing at [33] of her reasons. At [34] Her Honour refers to the initial pursuit in Forest Lodge/Glebe, the driving of the vehicle up Oxford Street to the camera at Crown Street, then speeding offences in Moore Park, then the pursuit of the BMW by Senior Constable Wilkins through Kensington and Kingsford and the pursuit by Inspector Beckinsale from Malabar back towards Maroubra. Her Honour then said this: "I do not consider that there is any reasonable possibility that the driver of the vehicle changed between 11:30 PM and the commencement of the pursuit by Senior Constable Wilkins. Noting the way in which the vehicle was being driven when observed in Glebe, the speed at which it was being driven through the camera at Moore Park, the observations of the vehicle travelling at at least 100 km an hour by Senior Constable Wilkins, the fact that the vehicle went through a red light on Oxford Street and that the driver must have been aware that he was being sought by police following the incident in Glebe, I do not consider that there was any practical opportunity for the driver of the vehicle to change between the incident in Glebe and the pursuit by Senior Constable Wilkins. The next contact by police with the vehicle is when Inspector Beckinsale is driving southbound on Anzac Parade at Malabar at about 11:39 PM. He was driving a fully marked police vehicle. He observed the vehicle catch up to him, then slow down then ultimately overtake him after he had stopped. The pursuit then ensued, which was terminated after the vehicle reached speed in excess of 130 km/h. There was an opportunity for the driver to have changed during the period between the termination of the pursuit by Senior Constable Wilkins, and the first observation of the vehicle by Inspector Beckinsale. Although the locations are only a short distance apart, some minutes had passed, though not longer than one would expect to take to travel that distance."
Considering the way the BMW had been driven since it first came under the observation of Constable Guthrie at Forest Lodge at around 11:30pm, until the termination of the pursuit by Inspector Beckinsale at 11:41pm, I cannot accept that there is a reasonable possibility that the driver of the vehicle changed during that period of time.
PolAir 9 first detected the BMW shortly after Inspector Beckinsale stopped his pursuit. That was in South Dowling Street, Moore Park. The vehicle was then under continuous observation by either PolAir 9 or PolAir 7 (the changeover was at 12:05am on 1 May 2020: see Exhibit 8 at [6]) until it entered the M4 East Tunnel at 1:25:25. It was in that tunnel for one minute and 53 seconds, during which it was captured on a speed camera (photo 4). At that time it was travelling at 196 kph. There could not have been any change of driver until the BMW entered the tunnel. Noting its speed in the tunnel, her Honour did not consider that there was any reasonable possibility that the vehicle stopped or slowed down sufficiently for the driver to be changed in the tunnel. That tunnel is about 5.2 kilometres long (as shown on any recent map). If one travels 5.2 kilometres in one minute and 53 seconds, one is travelling at an average speed of 166 kph. There is no reasonable possibility that the vehicle stopped or slowed sufficiently for its driver to be changed when it was in the tunnel. A physical impossibility is not a reasonable possibility.
Her Honour then pointed out that the incident at the BP service station at Silverwater occurred at 1:40am. The prosecution case was that Jahmil Clayton was in the front passenger seat at that time. Her Honour did not accept that he was the passenger depicted on the photograph taken in the tunnel (photo 4). Her Honour clearly accepted that the front seat passenger could change when the vehicle was being driven. Her Honour pointed out, however, that although it might be possible to change driver within the tunnel when it was in motion, such was not argued by the Appellant in his case before her. The impediments to changing drivers within the car are the steering wheel, the accelerator, the brake (hand and foot), the seatbelts (if worn), the belt buckles, and the gear stick and clutch if the vehicle has a manual transmission. I can accept that it might be possible to change driver at very low speeds. I do not accept that it is reasonably possible when travelling at any substantial speed, let alone at any high speed.
Her Honour then continued thus: "41. Between 1:26 and 1:40 there are a number of occasions where the Polair footage shows the vehicle slowing down, turning, doing a number of U-turns and at one point stopping. It has been submitted that there was an opportunity during this period for the driver to have changed. It is not suggested that anybody is seen exiting the vehicle, however as I understand the submission it is that the driver could have changed places with another person in the vehicle wholly within the vehicle. I accept that that is a theoretical possibility, and clearly there was a change in the front seat passenger. (Although it is possible, it was not argued that the driver could have been changed within the vehicle while the vehicle was moving). 42. At 1:55 AM Polair shows the vehicle to be stationary for about half a second. 43. At 1:57 AM Sergeant Fowler observed the vehicle on Prospect Highway. 44. The next time the vehicle was not under any observation was between 2:07 and 2:09 AM when it again entered the M4 East tunnel. Photo 5 was taken during this period. The vehicle was travelling at that point at 193 km/hour. Again, I do not consider there is any reasonable possibility that the vehicle stopped or slowed sufficiently for drivers to be changed during this period in the tunnel."
Again, the finding I have made above of the length of the tunnel and the average speed of the vehicle must be considered. A difference of a few seconds is not going to greatly reduce the average speed. Her Honour then said this: "45. After coming out of the M4 tunnel eastbound, the vehicle did a U-turn and headed into the M4 tunnel westbound at 2:10 AM. There was a seven minute period during which the vehicle was not under helicopter observation, presumably including approximately two minutes during which the vehicle navigated that westbound tunnel. There is no speed camera evidence from the period during which the vehicle was in this tunnel, nor is there any evidence as to where the vehicle went before it was next picked up by the police helicopter at 2:17 AM travelling westbound on the M4 at Lidcombe. 46. I accept there was an opportunity for drivers to have changed during this 7 minute period."
This, of course, is the period in which Sergeant Fowler had his second interaction with the BMW, which commenced at about 2:16am according to his statement (Exhibit 26) and his oral evidence (transcript 18 March 2021 p 62.36). That interaction gave rise to sequences 12 and 13, considering how the BMW was driven during this period, and during other periods, it appears highly likely to me that the driver was the same person throughout.
The gravamen of this part of the Appellant's case is really the period recorded by her Honour at par [41] of her reasons, which I have quoted. This was a 14-minute period containing acceleration, manoeuvring, about turns, and one stop, as described by the learned Magistrate. There are a number of possibilities as to why that may have occurred. Were the driver and his passengers lost? Was the driver debating or, indeed, arguing about the best course of action to take, the best route to follow or the best destination to seek to find? Were the driver and his passengers discussing or debating how best to avoid the police pursuit? Or was this part of a tactic to throw off that pursuit? Many, many things were possibilities.
The Appellant argues that it is a reasonable possibility that the driver was changed during this period. That is a possibility. Is it a reasonable possibility? The driving over this four-hour period from 11:30pm to 3:30am must be considered in whole. There is no dispute that the Appellant was the driver at the beginning and at the end. The Crown case is a strong one that he was the driver at the BP Service Station (I shall have more to say about this). That occurred after 1:40am, that is, more than halfway through the joy ride. The Appellant was the driver at the beginning, in the middle, and at the end. He was the alpha, the nu, and the omega of driving. The driving shows its own consistency: driving at excessive speeds, without coming to harm, driving through red lights, stop signs and give way signs, driving on the incorrect side of the carriageway, continuous, dangerous driving, driving to avoid police pursuit and police stops, dropping off passengers in Chifley just off Anzac Parade, Malabar, and being driven to near the Appellant's home in Willmot. This all bespeaks one driver, the Appellant. Her Honour reached a similar conclusion on this aspect of the evidence at [100] of her reasons.

How many persons were in the BMW?

The Appellant submits five people were in the BMW at some stage. Of course, the greater number of persons in the car the greater the opportunity for the occupants to change places and, therefore, the greater might be the likelihood of the driver's being changed.
Constable Guthrie said in her oral evidence that when she first saw the BMW at around 11:30pm at the intersection of Minogue Crescent and Ross Street, Forest Lodge, she saw four heads within the vehicle, looking through the rear window of the BMW. At that time, she was about 100 metres behind the BMW (transcript 17 March 2021 p 21.40). The Appellant submits that because of Constable Guthrie's lack of propinquity, this evidence should be given little weight. I reject that submission. In her pursuit of the BMW, Constable Guthrie came to within two metres of the back of the BMW. She had been gaining ground on the BMW in the 1.5 or two minutes of her pursuit. She gave no evidence that her observation of the BMW during the whole of the period of the pursuit caused her in any way to change her observation of how many persons were in the vehicle. Furthermore, in cross-examination Constable Guthrie gave this evidence: "Q. Just to confirm, are you able to say with absolute certainty that there were not more than four people in the vehicle at the time you saw it? A. From my recollection, there were four people. So I can say that quite confidently. I didn't have video of it or anything, but that's my memory. Q. Did you make any notebook statements in regard to your observations? A. No, but I did create a police event shortly afterwards". About that COPS entry, the Constable was not asked one question.
None of the speed camera photographs was sufficiently detailed to show anybody in the back seat, that is, the back of the interior of the vehicle was not visible in any of them. Neither Senior Constable Wilkins nor Inspector Beckinsale was able to see inside the BMW because of the dark tinted rear and side windows, and a lack of lighting. Leading Senior Constable Louise Mendyk, the driver of a fully marked police Hyundai van known as "Inner West 15" which was involved in a small collision with the BMW at 2:48am on 1 May 2020 in Chifley gave no evidence as to how many were in the BMW. Her statement was Exhibit 12 in the Court below.
At the BP Service Station, we know that: 1. Senior Constable Saab described the driver of the BMW, but did not look at the passenger so he did not see the passenger, nor did he look for any others in the vehicle; 2. Senior Constable Kumar described both the passenger and driver of the BMW, but had no vision into the back of the sedan; 3. Constable Mitchell said in her statement that "There were at least three rear passengers"; 4. Constable Abawi said that there was a front seat passenger and three people in the back in re-examination; 5. Constable Broadhead did not observe how many there were in the vehicle; and 6. no evidence was adduced from Constable Emily Hunt.
Counsel for the Appellant submitted, in the Court below and in this Court, that Constable Mitchell and Constable Abawi were the most reliable witnesses in this regard. In her written submissions (MFI 2) Counsel for the Appellant said this: "12. It is submitted that the most reliable evidence as to the number of people in the vehicle, comes from Constables Mitchell and Abawi, and their observations of the number of people they believe were in the vehicle, whilst the vehicle was in the BP service station. 13. The observations of Constables Mitchell and Abawi are made at the BP service station, while the vehicle is stationary and the vehicle is under the lights of the service station. A review of the CCTV footage at exhibit 15 allows observation by the Court as to the quality of the light at the service station, which it is submitted the Court would regard as rendering the vehicle well lit. Further, in exhibit 15, the Court can observe the positioning and timing of the observations of Constables Mitchell and Abawi".
However, as her Honour pointed out, it is clear from the CCTV film that they had very little time to make their observations (at [52]). I have already commented on the evidence given by Constable Mitchell and Constable Abawi. I must make the point that Constable Mitchell's statement contains what might be described as hyperbole; "at least three rear passengers", which carries an inference that it might have been more, for example, four rear passengers, which, given the size of the vehicle seems absurd. Her Honour went on to say this: "Constable Mitchell was driving the second unmarked vehicle to arrive at the service station. She says that she saw three people sitting in the back of the car and two in the front. I note that she does not appear in the CCTV at all, although she says that she was getting out of the police vehicle when she could see three silhouettes in the back seat. She saw Senior Constables Kumar and Saab trying to access the driver's side and said "by the time I got out, the BMW was surging forward and rammed our vehicles". She said she could see clearly through the rear passenger window. I consider that there is a real question about whether Constable Mitchell was in fact able to make the observations she said she made of the number of people in the vehicle with the accuracy she asserted. She was in the process of getting out of her vehicle when she had the opportunity to observe. The window through which she was making the observations was darkly tinted, as shown in the CCTV as it drives off and as described in the evidence of other officers. She says that the observations were made just as the vehicle was surging forward ramming the police vehicle from what must have been close to a 90 degree angle from her point of view. I accept that she believes that she saw three people in the back seat. Whether that observation was accurate has to be assessed with due regard to the very short time available to make observations and the undoubted dark tinting on that window of the vehicle. I do not accept her evidence as proving that there were three people in the back seat." I concur.
About Constable Abawi's evidence, her Honour said this: "Constable Abawi was in the rear passenger seat of the vehicle driven by Constable Mitchell. He was the officer directly in front of the vehicle when it drove towards him. Constable Broadhead had already left the seat in front of him, leaving the front door of the vehicle open meaning Constable Abawi had to go around it. The CCTV confirms his evidence that he had to jump out of the way as the BMW accelerated forward. There is no doubt he would have been hit had he not done so. He said he was trying to reach his baton as he was running towards the car and saw Senior Constable Saab punching the window. He said there were two people in the front of the car and three people in the back. He also had a very limited opportunity to make observations, although he was doing it through the front windscreen which was clear. He was moving the whole time. From where he was making his observations the front seat passengers must have at least partly obscured those in the back seat. He also says he was looking directly at the driver. I do not consider the evidence of these two officers sufficient to satisfy me that there were three people in the back of the vehicle at that point. Neither Senior Constable Saab nor Kumar noted how many were in the back in their observations through the front windscreen, and they had seconds longer to make observations." I again concur.
In her reasons, her Honour failed to avert to evidence given by Sergeant Fowler about his first interaction with the BMW at 1:57am. The statement of Sergeant Fowler was Exhibit 26 in the Local Court. Paragraph [6] of that statement contains this: "…About 0157am I proceed to take the Prospect Highway off-ramp [from the M4] and I stopped facing south bound on the northern side of the Prospect Highway overpass of the Great Western Highway. Polair continued to relay the locations of the stolen vehicle and I heard that it was heading along Reservoir Rd, behind Raging Waters fun park, and then north along Prospect Highway. I saw the stolen vehicle travelling towards me as I remained stationary facing south on the south bound lanes of traffic. The stolen vehicle drove past me at around 60km per hour… I looked behind me and I saw the stolen vehicle turn right into Stoddard Rd into the industrial area, travelling past the Homemaker Centre Prospect. I conducted a U-turn and proceeded to try and follow the stolen vehicle. I saw off in the distance that the stolen vehicle was travelling east on Stoddard Rd at high speed. I lost sight of the vehicle shortly after. I continued to monitor the Polair radio call as I proceed to make my way towards the locations the stolen vehicle was travelling".
In his oral evidence Sergeant Fowler commenced discussing this at transcript of 18 March 2021 page 60 point 32. When the BMW travelled past him at 60 kph, Sergeant Fowler was able to look at the vehicle, initially through the windscreen, and then the driver's side window, and then through the driver's side's passenger's window. Nothing was obstructing his vision. When the vehicle was about 30 metres from him, the number of people in the vehicle became clear to him, there were two persons in the front of the vehicle and two in the back of the vehicle, one in the driver's seat, one in the front passenger seat and two on the back seat. In cross-examination Sergeant Fowler gave this evidence: "Q. Could it also be the fact that you could potentially be mistaken and there could be more than four people in that vehicle? A. No. Q. If the extent of your observation in that period of time is that you can only silhouettes [sic], essentially what I'm putting to you is that you couldn't be definitive to say that there's not more than two people in the back of the car? A. No there was only - there was four people in the vehicle".
There was no dispute that the PolAir film showed two people alighting from the vehicle's front doors, at 2:41am in Chifley. There is no dispute that the PolAir film showed two people leave the BMW at the end of Carteret Avenue, Willmot, and shortly thereafter the Appellant and Jahmil Clayton were arrested near or in 19 Roebuck Crescent, Willmot. Her Honour summed up the forensic evidence thus: "59. DNA evidence from the steering wheel originated from at least 3 individuals. Mr Neil was the only one for whom the sample was sufficient for comparison. DNA from other individuals was described as "not suitable for comparison due to low level and complexity" (Exhibit 17). A Powerade bottle in the passenger footwell revealed DNA consistent with two identified but unknown contributors, and a minor contributor. DNA from four individuals was found on the front passenger headrest, however only Mr Clayton could be identified. No DNA from the back seat headrests was suitable for comparison. Noting that the vehicle had been stolen several days earlier I do not consider that any weight can be placed on this in relation to who was driving the vehicle nor how many people were in the vehicle during the time period relevant to these offences. 60. Fingerprint evidence (exhibits 13 and 16) show evidence of a print unsuitable for identification but possibly coming from Michael Hurley. There is no evidence who that person is."
The Appellant makes no complaint about that analysis. Constable Guthrie identified four persons in the BMW commencing at 11:30pm. Like her Honour, I am only persuaded that there were four persons in the vehicle at the BP service station at 1:40am. At 1:57am Sergeant Fowler observed four persons in the vehicle. There is then the seven-minute period when the vehicle was not under surveillance, between 2:10am and 2:17am. But if anyone left the vehicle during this period then another replaced him or her as two people left the vehicle at 2:41am and two left the vehicle at 3:30am.
The Appellant argued before me in this Court that a third person could have remained in the BMW after it was abandoned by the accused and Clayton in Carteret Avenue. The PolAir film clearly shows the pair running through parkland towards Roebuck Crescent, but does not suggest that anyone else left the vehicle. Theoretically, someone could have stayed in the vehicle, but such a person would expect the imminent arrival of the police and do what the Appellant and Clayton did, that is, seek to escape and seek sanctuary. True it is that the BMW was not approached by the police for a while, until the accused and Clayton had been arrested, but no-one was found in it. If somebody remained in it after the accused and Clayton fled, then that person fled belatedly. This appears to me to be highly improbable. I do not accept that it is a reasonable possibility. Her Honour considered this in her judgment in [63]-[64]. I have reached the same conclusion.

Visual identification evidence

I turn now to the visual identification evidence. Her Honour then turned to this issue. It really involves a consideration of the evidence of Senior Constable Saab and Senior Constable Kumar. To recapitulate, Senior Constable Saab gave this verbal description of the driver of the BMW at the service station: "Caucasian male with scruffy beard, wearing a hat and a hoodie over his hat". Senior Constable Kumar gave this verbal description of the driver at the service station: "The driver was about a 20 to 25 year old white male. He had a scruffy brown beard. He was wearing a dark coloured jumper and there was a small white emblem on the left side of his chest. I think he may have been wearing a hat as well". Senior Constable Kumar gave this verbal description of the front seat passenger at the service station: "...he was a younger male. He was maybe...16 to 20 years old, aboriginal male, light brown skin. He was wearing all black, or at least the top half of him, the black jumper, and had a large white motif in writing across the chest and the torso area of his jumper, and he was wearing a dark coloured hat as well".
Exhibit 18 in the Local Court was a photograph of the Appellant. It shows a person, who appears to me to be Caucasian, with a moustache and a beard, which could be described as "scruffy", in that there are gaps in the distribution of hair on the cheeks. He is wearing dark-coloured clothing. On the left chest of the upper garment is a triangle containing various lines, and beneath it are two lines of Roman numerals, the first line is "MCML", meaning 1950, and below that is a line saying "XXVII", that is, 27, probably the date of the commencement of the logo shown on the chest. The back view of the Appellant in Exhibit 18 shows that his upper garment has a hood, and to me both the upper and lower garment appear to match in colour, indicating that it might be described as a tracksuit.
According to the Court Attendance Notices before me, the Appellant's date of birth was 5 January 2001. As at the date of his arrest, on 1 May 2020, he would appear to be 19 years old. However, he appears to me to be more mature than that age.
Exhibit 22 is a set of photographs of Jahmil Clayton. He is cleanshaven. He has been described as Aboriginal in appearance. He has light brown skin, or it might be described as olive skin, and he has dark hair. He appears to be wearing either a black or very dark navy-blue tracksuit. Across the front of the tracksuit top is, written in very prominent and large running letters, the word "InSport". Above that, in lighter coloured white ink or embroidering, are the words "Premium Apparel", and beneath the "InSport" logo are the words "Established 1983". The rear view clearly shows that the tracksuit top had a hood. Like all police photographs, both Exhibits 18 and 22 showed the head of the person being photographed without any headwear. Clayton appears to me to be much younger than the Appellant. His date of birth is not on any of the paperwork before me. The verbal descriptions of Senior Constables Saab and Kumar, for what they are worth, are consistent with the photographic images.
Her Honour correctly directed herself at law concerning the identification evidence. I need not repeat those directions which can be found in [66], [67], [81] and [82]. Her Honour went on to say this: "71. About one hour and 50 minutes later Constable Saab came to the scene at Willmot where the defendant was one of two males who were under arrest seated on the ground in handcuffs some distance apart. He says that when he saw the defendant he immediately recognised him as the same person who had been driving the vehicle when he saw it at Silverwater. 72. Numerous police attended that scene. I have watched the body worn video of Constable Rylands. That officer spoke to the co-accused, not to this accused. When Senior Constable Saab arrived at that scene he had heard a radio broadcast indicating that the driver was in custody. He says that he identified this accused as the same person he had seen at the BP service station. It was put to him that in his statement he had said after observing this accused "I walked up to the other offender … I knew he was not the driver due to his description", and that he said that because rather than identifying this accused he was engaging in a process of elimination and checking that the other person there did not have a beard, and therefore whether he matched the description. 73. There is no dispute that Mr Neil and Mr Clayton look very different to each other. Having seen them both myself I do not consider there could be any possibility that one could be mistaken for the other."
I interpolate at this point that I have not had the advantage that Her Honour had of seeing either the Appellant or Mr Clayton in person. Mr Clayton has played no part in the current appeal. I have only seen Mr Neil on CCTV footage, via audio-visual link from a correctional institution, and the quality of the imaging was poor. I have made no attempt whatever to identify Mr Neil from his appearance before me. Rather I only rely on the Exhibits in the Local Court. Her Honour then went on to say this: "75. Senior Constable Saab agreed that when he spoke to the accused at the scene in Willmot about the incident at the service station Mr Neil denied that he was driving then. 76. Senior Constable Kumar also gave evidence identifying this accused. He said that when he was at the service station, after getting out of the police vehicle, he deliberately looked through the front windscreen to make observations of the driver to assist in identifying him. His evidence was "there were enough police trying to open the doors, and so therefore, the next most important role is identifying the driver of that vehicle" TP 37 18/3/21 77. He described the driver as being 20 to 25-year-old male, white, with a scruffy brown beard and a dark jumper with a white emblem on the left side of the chest. He said he thought the driver was wearing a hat as well. He described the passenger as 16 to 20 years old, Aboriginal, with a large white motif across his torso. That is an accurate description of Mr Clayton. 78. Certainly the CCTV shows Senior Constable Kumar having a far greater opportunity than Senior Constable Saab to make observations of the driver of the vehicle during the period while Senior Constable Saab was trying to break the window. 79. The evidence is that the front windscreen of this vehicle was clear, but that the passenger windows were darkly tinted. Sergeant Fowler said that they were "industry standard", and that the driver's side window was less tinted than the other side windows. 80. Senior Constable Kumar also came to the scene at Willmot with Senior Constable Saab and also says that he saw the person who was under arrest sitting on the gutter. He said "I looked, I believed he was the driver at the time the vehicle rammed us." He said he then saw another male who he recognised as the passenger in the same vehicle. He said he had no problems making out the features of the people who had been arrested and that he himself had a torch."
After giving herself certain directions her Honour continued in this fashion: "83. In this case, Senior Constable Saab had only a very short time to observe the driver in what was clearly a situation of significant stress. Senior Constable Kumar had a greater opportunity to observe. The accused was a stranger to both officers, and it is obviously harder to identify strangers than it is to identify people who are well known to us. 84. While Senior Constable Saab said that he focussed his attention on the driver, clearly he was also focussed on stopping the vehicle from driving away and very quickly moved to try to do that. Senior Constable Kumar had a greater opportunity for observation, both from his evidence and from the CCTV which shows him looking through the windscreen of the car the whole time Senior Constable Saab is trying to break the window. The lighting was good. 85. My main concern about the reliability of these identifications is that notwithstanding both Senior Constable Saab and Senior Constable Kumar appear to have returned to a police station immediately after the incident at Silverwater, there is nothing in the evidence to suggest that either of them made any note of the description of the driver or passenger before they were at the location at Willmot almost two hours later. There was no opportunity to identify the person for example by a line-up, because both officers say that they attended the scene at Willmot and saw the person they say was the driver there. There can be a displacement effect when a description is given after a witness sees a person they believe to be the same person they saw earlier - that is, it is the later person they are describing, not the earlier. 86. While Senior Constable Saab did not accept that he was engaging in a process of elimination between the two offenders in custody at that point, I accept that in terms of a positive identification of the accused this action does diminish the weight that can be placed on the actual identification. Senior Constable Saab also had a very short opportunity to observe the driver before he started to try to break the window. Had Mr Clayton looked more like Mr Neil it may be that Senior Constable Saab would not have been certain that he had the right person. 87. It was after Senior Constable Saab had looked at both people who had been arrested that he said in his statement "I walked back up to Aleck Neil and said, 'You nearly ran over police at the service station.' He denied driving the vehicle"? It is notable that Senior Constable Saab did not say those words to this accused when he first saw him."
With unfeigned respect I do not agree with some of her Honour's conclusions about Senior Constable Saab's evidence. After the episode at the service station, MD 141 returned to Mt Druitt Police Station. That is not close to Silverwater. When they arrived back at the police station I do not know, but it was possibility around 2am. Senior Constable Saab gave this evidence-in-chief: "A. ...I had returned back to the police station to complete some work, I maintained listening to the radio and obviously watching the CAD system, our police system. I then heard the vehicle was within our police area command. It was then at that time me and...Senior Constable Kumar, have left the police station and proceeded towards the vehicle. At the time it was still in motion, so it hadn't, hadn't completely come to a stop yet. Q. Thank you. But at some point you were made aware, through police radio, that the pursuit had come to an end? A. That's correct. Q. And that two people had been arrested? A. That is correct. Q. Is it your understanding that Constable John Rylands from your command, Mount Druitt, was one of the arresting officers in this matter? A. Yes". Constable Rylands statement was then tendered and became Exhibit 19. The evidence of Senior Constable Saab continued in this fashion: "Q. Is it the case that you were advised that Mr Neil is arrested in Roebuck Crescent in Willmot? A. That's correct. Q. Did you attend that location? A. Yes. Q. Who did you attend with? A. My offsider, Senior Constable Kumar. Q. Can you tell the Court what happened when you got there? A. Upon attending there, I'd originally got there before, I think, Senior Constable - no, we got there at the same time, obviously because we were all on foot through the...parklands. I got there and both Aleck Neil and Jahmil Clayton had been arrested. Aleck Neil was closer towards the road, sitting near the gutter of the road. I approached Aleck Neil where I immediately recognised him to be the same person that I observed through the glass window at the BP Service Station, in his appearance".
I understand from this evidence that Senior Constables Saab and Kumar were in the parkland in Willmot when they heard over the police radio that the accused had been arrested. It appears to me that it would have been less than one and a half hours between Senior Constable Saab's return to the police station and his going out again with Senior Constable Kumar to try to apprehend those in the BMW when it was within the area of the Mt Druitt Police Area Command, during which time he took an active interest in the pursuit. I do not think it fair to criticise Senior Constable Saab for failing to make notes in a period of about one hour. Equally, it is difficult to accept that Senior Constable Saab did not recognise the Appellant as the driver when he first saw him. In going to look at Mr Clayton, it is possible that he may have engaged in any exclusionary or elimination process, but it is just as possible that he was being extremely cautious or careful. What if the appellant had an identical twin or a close relative of similar age or similar appearance or fortuitously that Clayton was a real doppelganger of the Appellant? Having excluded those possibilities, he then returned to the Appellant and said "You nearly ran police over at the service station" (T 16 March 2021 p 21.14).
Her Honour then turned to the evidence of Senior Constable Kumar on this issue: "89. Senior Constable Kumar says he observed the driver of the vehicle for 4 to 5 seconds at the Silverwater BP. He said that he was specifically observing the driver and the passenger. His descriptions of them match this accused and Mr Clayton both in their appearance and their clothing at the time of their arrest later that morning. He described what was going through his head at that time as "very intense". He said he was about a metre to a metre and a half from the windscreen when he was making his observation. He said "I was in a position to get clear observations of the driver, and that would assist us if at a later time, when, when the vehicle gets stopped or, or people run from the vehicle. That was why I needed to make those observations. There were enough police trying to open the doors, and so therefore, the next most important role is identifying the driver of that vehicle." At 37. 90. He said that when he went to Willmot he recognised this accused immediately as the driver, and Mr Clayton as the passenger. 91. In cross-examination Constable Kumar said (at 42) Q. When you attended the scene and you saw Mr Neil, you observed that he had a beard? A. Yes. Q. That in your mind, stuck out as to why the person sitting in front of you would be the driver? A. The, the thing that most - was most, I guess - the differences between the driver and the passenger was what stuck out to me so that the driver was white, the passenger was light brown. The driver was I would say early twenties. The passenger was late teens, and the driver had that brown scruffy beard that - the passenger was clean shaven. They were the, they were the big differences. Q. It's essentially - if I could put it in that way, it's a process of elimination as between the two men that were present? A. Only based off observations that I've already made, so the - yeah, as soon as I saw him, I knew that was the driver, even if I hadn't seen. If the passenger had gotten away, I would confidently say that was the driver. Q. That's because, essentially, of the beard that he had? A. Sorry? Q. Is that right? That's essentially because of the beard that he had? A. Just the totality of it. The clothing as well. Like, the jumper with the small white emblem. I remember this small white, either triangle or circular shaped emblem on the left side of his chest, and everything else was dark on the jumper, and that was another thing he was wearing. Same, same type of jumper. 92. To a degree this evidence is similar to that of Senior Constable Saab in relation to performing a process of elimination in identifying the driver. However Senior Constable Kumar clearly had a greater opportunity to make observations. He says that he had specifically noted the logo on the upper garment of the driver, and he says that he was confident that was the driver even if he had not observed Mr Clayton at all. All of those matters do make his identification stronger. Again, however, there is no evidence that he had made any notes of his observations before he attended the scene at Willmot, which is surprising given the purpose for which he says that he had made them. The risk that the description he gave in court was a description of the accused at the time of his arrest, rather than of the driver at the time of the incident, is obvious. 93. Again, I consider that this evidence should be used only as part of the circumstantial case that this accused was driving at the time of the incident at Silverwater."
Again, I do not consider Senior Constable Kumar's failure to make any notes diminished the weight to be given to his evidence. He was in the same position as Senior Constable Saab when travelling back to Mt Druitt Police Station and at Mt Druitt Police Station. Indeed, as Her Honour accepted, Senior Constable Kumar's evidence of identification is to be given greater weight than that of Senior Constable Saab, because he had a longer period in which he could make his observation.
In my view, if I were the initial tribunal of fact, I would accept Senior Constable Kumar's evidence as primary evidence of identification rather than merely as a circumstance to be considered in a circumstantial case.
Finally, on this issue, there was some identification evidence from Constable Abawi. Of this the learned Magistrate said this: "94. Constable Awabi described the driver as a male Caucasian, with "like a dark sort of coloured shirt on. He had a unshaven beard, and like sort of dark coloured hair" (tp 52.18). He made those observations through the front windscreen just as the vehicle was starting up and driving towards him, causing him to jump out of the way. He was unsure whether the person had a hat on. That description was consistent with the accused but no further identification was given by Constable Awabi." I should indicate at this point that an important aspect of Constable Abawi's evidence is that he made eye contact with the driver of the BMW. Therefore, the driver of the BMW must have been looking at him. This deals with the submission that the driver of the BMW, when it was driven from the service station, may not have been looking at Constable Abawi but, rather, at Senior Constable Saab. Her Honour considered that submission at [105] of her reasons, but does not advert to that particular piece of evidence given by Constable Abawi. That really refutes the submission made by the Appellant in the Court below that there may have been no intention to drive towards Constable Abawi.
The Appellant's written submissions (MFI 2) contain this submission: "34. It is submitted that, in the circumstances that both Senior Constable Saab and Senior Constable Kumar had been told, on approach, that the driver had been apprehended and was sitting in the gutter, that upon attending and finding Mr Neil in the gutter, Mr Neil's appearance could easily have displaced the details of the memory which was said to be observed at the BP service station, as a man with a beard driving, which had been recorded. Further, this displacement effect and confirmation bias this was further entrenched by both officers walking over to where Mr Clayton was being detained, looking at him, and determining that he didn't match any description they remembered of the driver". This submission is not supported by the evidence. Quite frankly, I found it misleading. It is true that the PolAir film contains the PolAir commentary and, at one point, after the Appellant had been arrested, the operator is heard to say that the driver had been arrested and was sitting in the gutter, and the passenger had been arrested and was on the front lawn of 19 Roebuck Crescent. However, at that time there were many police on the scene. One could say with journalistic flair that it was swarming with police and that there was a showroom of police cars on display in Roebuck Crescent.
There is no evidence as to when Senior Constables Saab and Kumar arrived at 19 Roebuck Crescent, no evidence as to whether it was before or after the PolAir broadcast. Of course, that may have been established by asking the Senior Constables, but that did not happen. It was never put to either Senior Constable that this displacement occurred. The submission must be rejected as having no evidentiary value. Furthermore, the Appellant made no application to further cross-examine either Senior Constable in this Court.
Her Honour's judgment then contains a summary of the circumstances that she took into account in establishing that the Appellant was the driver of the BMW at all relevant times. I need not quote that summary. It encompasses many of the findings to which I have already referred or made.
I accept that throughout the period between 11.30pm on 30 April 2020 and 3.30am on 1 May 2020, during the drive which I have called the joyride, the driver was at all material times, in fact, throughout, was the Appellant. Her Honour concluded her summary with these observations: "102. To form the basis for a reasonable doubt a hypothesis consistent with innocence must be reasonable, and must be based on some evidence. While there is no onus on the accused to prove anything, the bare possibility that some unidentified person other than Mr Neil was driving the vehicle at some stage during this incident does not in the circumstances of this case amount to a reasonable hypothesis. The fact that the front seat passenger did change does not raise a change in the driver beyond the realm of bare possibility. In the circumstances of this case that amounts to mere speculation, and does not lead me to have a reasonable doubt when I combine it with the other evidence in the case. That includes, importantly, the evidence that on every occasion where there is any evidence of who was driving it is consistent with having been Mr Neil. 103. While the identification evidence of the driver at Silverwater is not sufficient by itself to prove the case against him for the offences allegedly committed there, as part of a circumstantial case it is strong evidence that the driver in fact was him. Combined with the speed camera photos consistent with the driver being Mr Neil, and without any evidence that I accept of anyone else in the car with similar features to Mr Neil, I am satisfied beyond reasonable doubt that Mr Neil was driving this car during the whole of the period between the pursuit at Glebe and the vehicle stopping in Willmot."
I completely agree with what Her Honour observed at [102] of her reasons. As far as [103] is concerned I would be prepared to accept the evidence of Senior Constable Kumar as identification evidence sufficient to prove the case against the Appellant for the offences committed at the BP service station. However, if I be wrong in that regard, I would respectfully agree with her Honour.
There remains only for me to discuss two of the offences, and they are the sequence 13 offence and the sequence 5 offence. I shall deal with the sequence 5 offence first.

Sequence 5 offence

In her written submissions learned counsel for the appellant said this: "42. In regard to sequence 5, pursuant to s 192E of the Crimes Act 1900, there is no dispute that the $29.02 of petrol alleged to have been taken without payment is 'personal property of another'. However, the Court must determine, pursuant to s 4B of the Crimes act 1900, 'whether an act is dishonest is assessed according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people'. This requires a causal link to be proved between the alleged dishonest act, deception or misrepresentation and the obtaining of the petrol. 43. The CCTV footage of the BP service station, in exhibit 15, depicts the car pulling up at the petrol bowser, a person who appears to be female exits the vehicle, with her back to the camera, and is filling the vehicle with petrol, when two police vehicles pull up in front of the vehicle, and the female drops the petrol nozzle and jumps quickly back into the vehicle, it can reasonably be inferred, because of the attendance of police. Senior Constable Saab runs towards the vehicle and attempts to smash in the driver's side window, then attempts to open the driver's door, at the same time that Constable Broadhead attempts to open the passenger side door. At this point, the vehicle accelerates forward in the direction of the gap between the two vehicles causing Constable Abawi, who is standing in front of the vehicle to jump out of the way to avoid being hit. 44. To ground liability for this offence the Court would have to find that, at the time the vehicle was in the BP service station, Mr Neil was the driver of the vehicle, who had induced the obtaining of the petrol with the intention not to pay for it, at the time the petrol was obtained. It is submitted that the implication arising out of a failure to pay, that the failure to do so was a premeditated act is not enough to prove dishonesty beyond a reasonable doubt and all the circumstances surrounding the obtaining of the petrol must be examined before the Court can find that that conclusion is the only inevitable one. 45. There is no evidence that, at the time the petrol is pumped into the vehicle, there is an intention not to pay. It cannot be excluded as an alternative reasonable hypothesis consistent with innocence that the failure to pay for the petrol was not planned or intended at the time the petrol was being obtained, that is pumped into the car, but rather failure to pay was a spur of the moment decision once the pumping of the petrol was interrupted by the attendance of police and the person driving the vehicle then took steps to evade police".
Ms O'Rourke then referred me to a decision of Haesler SC DCJ in Moffitt v R [2020] NSWDC 486 and quoted what his Honour said at [76] of that judgment. Ms O'Rourke said this in her written submissions: "It is submitted that absent the ability to determine intention beyond a reasonable doubt, and absent the Court being satisfied beyond reasonable doubt that Mr Neill was driving at the relevant time, this offence cannot be made out".
The first thing to note is that the passage that Ms O'Rourke quoted from the decision of Moffitt is obiter dictum. Earlier, his Honour had made evidentiary rulings which led to the position that there was no evidence that the Appellant in that case was the owner of, the driver of, or a passenger in, at the relevant time, the motor vehicle in question where the motor vehicle was one into which petrol was pumped and which petrol was not paid for. Ms O'Rourke did, however, agree with the following statements contained in his Honour's decision as being an accurate statement of principle: "52. Here there can be no dispute the petrol was the 'personal property of another.' 'Dishonesty' must be determined by the trier of fact: 'Whether an act is dishonest is assessed according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people:' s4B Crimes Act 1900. There must be a causal link be proved between the dishonest act, deception or misrepresentation and the obtaining of the property. 53. The English cases to which I was referred by Mr McKenzie make this same point. If property is obtained without deception or a dishonest act or intent a later dishonest act after the property has passed does not make the obtaining of the property dishonest; For example; a social convention carries a clear implication that a person who orders a meal in a restaurant and eats it will pay for it. A later refusal to pay because of a legitimate dispute about the quality of the meal or a mistake whereby each patron presumes the other has paid and leaves does not make the failure to pay dishonest. Similar examples were proffered by Mr McKenzie whereas here the usual convention that petrol would be paid for was apparently flouted. 54. Each case must be determined on its facts; in general commerce where petrol is obtained from a bowser the use of the bowser conveys an implied promise that the petrol will be paid for and that a failure to do so was a premediated act formed before transfer of the property but that implication is not of itself enough to prove dishonesty beyond reasonable doubt all the circumstances must be examined before that conclusion is the only an inevitable one.It was established that the petrol which was pumped in the BMW at the BP service station amounted to the princely sum of $29.02. The real question is whether it was the intention of anyone travelling in the BMW to pay for that petrol. Clearly the petrol was not paid for because the vehicle was driven off after the police arrived on the scene."
It was established that the petrol which was pumped in the BMW at the BP service station amounted to the princely sum of $29.02. The real question is whether it was the intention of anyone travelling in the BMW to pay for that petrol. Clearly the petrol was not paid for because the vehicle was driven off after the police arrived on the scene. As was pointed out in the evidence, when the BMW drove off, it drove out through an on-ramp into the service station, that is, it drove off in the wrong direction. Presumably when it got to Silverwater Road it made a hard right hand turn to travel in the same direction as the rest of the traffic on that thoroughfare. However, the BMW was not pointing in the direction one would assume when it stopped at the bowser, it stopped with the front of the vehicle pointed away from the console operator in the shop at the service station.
The bowsers were designed to admit traffic coming in from Silverwater Road such that the front of each vehicle would point in the direction of the console operator. As I have already pointed out, when it pulled up next to the bowser, the distance between the bowser and the car was extremely small, but did permit a female to open the rear driver's side door and alight from the vehicle and take the handset of the bowser from its usual place in the bowser and insert the nozzle of the handpiece into the petrol tank of the BMW. But that female certain kept her face averted from the CCTV camera, which clearly was mounted looking out from the console operator/shop to the bowsers.
In short, the way in which the BMW was parked at the bowser was extremely unusual and suggests a furtive intent. Furthermore, one must consider what had occurred between 11.30pm, when the first police pursuit commenced in Forest Lodge, and 1.40am when the BMW was driven into the BP service station. A large number of serious offences had been committed. True it is they were all driving offences, but the driving was clearly dangerous and I have sought to show that by quoting the various descriptions of the driving. Those in the car must have known what was going on. If they were prepared to endure the offending conduct which persisted between 11.30pm and 1.40am, then they would presumably intend to take, without paying for it, petrol, to keep the BMW on the road and operative.
It must be recalled that there were police pursuits and the vehicle was being followed by police helicopters. It appears to be likely that they knew that they were under police helicopter surveillance; helicopters are not quiet pieces of machinery, they make a lot of noise. Clearly, when one looks at the pieces of film that I have looked at, the helicopter sought to keep immediately above the stolen vehicle, that is, the BMW, whenever it could do so. The fact that there was this PolAir pursuit must have been known to the offenders in the vehicle. That the vehicle was stolen is common ground, as far as the Appellant knew, and one would think it was common ground amongst those who were the Appellant's passengers.
I do not know the size of the petrol tank of a BMW 318i. I know from Exhibit 14 that 25.7 litres of petrol were pumped into the vehicle before the pump was stopped. If the vehicle had a 50-litre tank, a full tank of petrol would have cost $56.45. Even if it had a 70-litre tank, a full tank of petrol would have cost $79.03. The taking of petrol of that value would, in my view, have been of no moment to those involved in the joyride now in question.
It is clear that the police helicopter was hovering above the BP service station, and that the person operating the pump reacted extremely swiftly to the arrival of the unmarked police car. The people in the vehicle knew that there was a pursuit; I have no doubt about that whatever.
I accept that there was no intention of anyone in the vehicle to pay for the petrol. The question of course arises as to who had the obligation to pay? Normally, one expects the driver to pay, but sometimes the driver is not the owner, the owner might be a passenger. When I go on circuit, my Associate, who of recent has been Mr Nicholls, usually drives, but since he drives my car I pay for the petrol.
The pumping of the petrol was of benefit to everybody in the vehicle seeking to evade the police, and therefore each person had an interest in paying for the petrol. I am satisfied beyond reasonable doubt that at the time, the BMW was driven into the service station and parked beside bowser 6 by the Appellant and that no-one, including him, in the vehicle had any intention of paying for the petrol that was pumped into this stolen vehicle. I, therefore, uphold the learned Magistrate's finding in respect of sequence 5.

Sequence 13 offence

Again, with unfeigned respect to the learned Magistrate, I have come to a different conclusion about the sequence 13 offence. The Road Transport Act 2013, s 118, is in the follow terms: "118 Menacing driving (cf STM Act, s 43) (1) Offence - intent to menace A person must not drive a motor vehicle on a road in a manner that menaces another person with the intention of menacing that other person. Maximum penalty - 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence). (2) Offence - possibility of menace A person must not drive a motor vehicle on a road in a manner that menaces another person if the person ought to have known that the other person might be menaced. Maximum penalty - 20 penalty units or imprisonment for 12 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 18 months or both (in the case of a second or subsequent offence). (3) Application of section This section applies - (a) whether the other person is menaced by a threat of personal injury or by a threat of damage to property, and (b) whether or not that person or that property is on a road. (4) Defence A person is not guilty of an offence against this section if the person could not, in the circumstances, reasonably avoid menacing the other person. (5) Double jeopardy A person is not liable to be convicted of - (a) both an offence against subsection (1) and an offence against subsection (2), or (b) both an offence against this section and an offence against section 117, arising out of a single incident."
One will note in s 118(1) that there is a specific intention required to be guilty of this offence. There must be intention of menacing another person by the manner of the first person's driving. Unfortunately, the practice, that of Howie and Johnson, Criminal Practice and Procedure New South Wales, provides no commentary on the meaning of the word "menacing".

"Menace"

The etymology of the word is clear. The Latin plural noun "minae, minarum" means "threats". The word is not known in the singular. That gives an adjective "minax, minacis", meaning something which is "threatening". It also gives a verb "minor", "minari", "minatus", which although passive in form is active in meaning and it means to speak or act in a "threatening" manner. That led to a secondary meaning of impending just as we use the word threaten in that regard, such as there was a threat of rain, or rain was threatening. There also developed in Latin the form "minacia, minaciae", which had the same meaning as "minae". That gave us, through old French, the word "menace". The word menace means no more than to threaten.
The Shorter Oxford English Dictionary, fifth edition, gives as the first meaning of the word menace "a declaration or indication of hostile intention or of a probable evil or catastrophe, a threat or the action of threatening". The secondary meaning is "a thing threatening danger or catastrophe, a dangerous or obnoxious thing or a dangerous or obnoxious person" or merely "a great inconvenience". Not only is the word "menace" in English a noun, but it can also be used as a verb. It is clear that the menace can be against either a person or property.
Section 118 requires that the menace be against another person rather than property. However, there is extension in s 118(3) to the threat being either of personal injury or by a threat of damage to property.

The allegation

The relevant Court Attendance Notice stated this: "Between 2.17am and 2.18am on 01/05/2020 at Auburn. did drive a motor vehicle, to wit, BMW bearing registration DB057R, on a road M4 Motorway, to wit, in a manner that menaced Sergeant Fowler with the intention of menacing the said Sergeant Fowler". The menace pleaded was to Sergeant Fowler's person, rather than to the vehicle which he was driving which was known as Parramatta 14. The Crown had to prove that intention beyond reasonable doubt.

Consideration

The problem here is a lack of evidence. We know from the facts that the accused was driving the BMW in lane 4, the fast lane, of the westbound lanes of the M4, and that he was travelling eastbound. He was travelling in the fast lane in the wrong direction. The evidence of the Sergeant is that he was travelling in lane 3 westbound, and he saw the BMW travelling towards him in lane 4. However, he then believed that the BMW was moving into lane 3 such that it might collide with the vehicle being driven by the Sergeant. The Sergeant then commenced to head from lane 3 into lane 2, but it became very clear, from his oral evidence, that whilst he was doing that, the BMW was travelling into lane 3 and they almost came into collision, requiring the Sergeant to take extreme evasive action to prevent that collision. Fortunately for everybody concerned, there was no collision and there was no damage to Parramatta 14 or to Sergeant Fowler.
The question is whether when he started to move from lane 4 into lane 3, travelling eastbound on the westbound lanes, of the M4 such that the Appellant created a risk of there being a collision between Parramatta 14 and the BMW, the appellant did so with the intention of menacing Sergeant Fowler with personal injury. The problem here is that I do not know what was in lane 4, if anything was in lane 4, in which the Appellant was driving, or in whose direction the appellant was driving. Was that why the Appellant commenced moving into lane 3, not to menace or threaten the Sergeant, but rather to avoid a head-on collision with a vehicle driving towards the BMW in lane 4?
Unfortunately, this episode was not captured by PolAir film and there is no overhead film of it. There is no evidence adduced from Sergeant Fowler about what may have been in lane 4. Understandably, when he saw the BMW travelling in the wrong direction in lane 4, he kept it under observation. When he perceived that it might be moving into lane 3, one can readily accept that he was preoccupied with the BMW and was not concerned with what may have been beside him or coming up beside him in lane 4. In other words, there is a reasonable possibility that there may have been a vehicle travelling in lane 4 westbound and the Appellant driving the BMW decided that he should move out of its way by moving into lane 3, perhaps in the pious expectation that the traffic in lane 3 would move out of his direction and allow him safe passage east to where he appears to have taken the first exit ramp by making a sharp right-hand turn onto it. Without knowing what confronted the Appellant in lane 4, I cannot be satisfied that he had the specific intent of driving to threaten injury to Sergeant Fowler.
Paragraph 4 of Sergeant Fowler's statement, Exhibit 26 in the Local Court, does not tell me whether Parramatta 14 was a marked or unmarked police vehicle, nor have I been able to find in the transcript a description of that police vehicle. If it were unmarked, then it would be hard to accept that the Appellant knew that this unmarked vehicle was carrying a police officer. If it were marked, then the fact that it was a police car would have been obvious to the Appellant, but the Appellant might believe that a police officer in a police car would have greater driving skills than most motorists and have decided, if he had a choice between confronting an ordinary motorist and a police officer, that he might take the chance of driving towards the police car in the expectation that the police car would be more likely to avoid a collision than an ordinary motorist. In those circumstances, I cannot be satisfied beyond reasonable doubt that the appellant committed the sequence 13 offence.

Order on conviction appeal

For those reasons, I set aside the conviction recorded in respect of sequence 13. Otherwise, I confirm the other convictions recorded and relevant findings made by the learned magistrate.

Consideration of severity of sentence

In light of what I have heard, I believe the two months indicative sentence for the sequence 5 offence, that is, an offence of dishonestly obtaining property by deception, the property being to the value of $29.02, to be excessive. Bearing in mind how her Honour dealt with sequence 9, I should, in lieu of an indicative sentence of 2 months imprisonment for sequence 5, deal with the matter under s 10A Crimes (Sentencing Procedure) Act 1999.
As far as sequence 7 is concerned, that was a second charge of driving whilst disqualified. The first charge of driving whilst disqualified was sequence 2, for which her Honour imposed an indicative sentence of ten months imprisonment. That driving whilst disqualified was particularised as being the driving in the police pursuit at Forest Lodge. The driving particularised in sequence 7 was during the police pursuit at Kingsford. In my view, only one driving whilst disqualified charge was appropriate to cover the whole of the period. In my view, the ten months which her Honour allowed for sequence 2 is appropriate, and I believe that in lieu of an indicative sentence for sequence 7 her Honour ought to have imposed, and I shall impose, a finding under s 10A Crimes (Sentencing Procedure) Act 1999.
Clearly, having acquitted the Appellant of sequence 13, menacing driving, the 18-month indicative sentence imposed by her Honour ought be set aside.
The total of indicative sentences must be reduced by 26 months, that is, the whole of the 127 months must be reduced by 20% in round terms so that the total of the new indicative sentences amounts to 101 months.
Her Honour applied a ratio of 33% between the total of the indicative sentences and the aggregate sentence. Applying 33% of 101, one gets to 33 months which represents a head sentence of two years and nine months. Her Honour's ratio between the head sentence and the non-parole period, after her finding of special circumstances, amounts to a ratio of 61%. Applying the same ratio to the new head sentence, the non-parole period should be 20 months or one year and eight months. That is purely a mathematical formula based upon the ratios initially adopted by her Honour, but reducing, as I said, the total of the indicative sentences from 127 months to 101 months.

Commencement of sentence

I have been addressed by the Appellant about the commencement of the total sentence. The commencement date of the total sentence results from the ending of a non-parole period concerning earlier offending, initially dealt with at the Central Local Court on 18 September 2019.
The Appellant then stood for sentence for four counts of taking and driving a conveyance without the consent of the owner, three counts of aggravated breaking and entering a dwelling house or the like in company with the intention of stealing, and three offences of police pursuit, not stop, and drive dangerously. For those offences, the Local Court imposed a sentence of imprisonment for three years and eight months with a non-parole period of 30 months. There was an appeal to this Court which was heard and determined on 13 May 2020. This Court imposed an aggregate sentence of two years and six months with a non-parole period of 12 months, commencing on 1 May 2020 and expiring on 30 April 2021. It appears that sentence took into account a period of custody between 19 June 2019 and 16 January 2020, a period of almost seven months. The Appellant was granted appeal bail on 16 January 2020 and entered a drug rehabilitation program at Oolong House at Nowra.
Unfortunately, because of COVID-19 pandemic, the Appellant could not complete the 16-week course because the residential program stopped when, because it was catering to indigenous young men, it was thought prudent to close down the residential course to minimise the likelihood of those attending the course of contracting the COVID-19 disease. The Appellant only completed ten weeks and five days of the course until it was shutdown. He was then still permitted to be on parole until he was arrested for the offences with which I am dealing on 1 May 2020. However, it is clear that that seven-month period in custody from 19 June 2019 to 16 January 2020 was taken into account by this Court when imposing the sentence that was imposed on 13 May 2020.
Her Honour Farnan LCM clearly believed that the sentence for the current matter should commence on 1 May 2020, the day on which the Appellant ought to have been admitted to parole in respect of the earlier offences. It has been submitted that I should backdate for this sentence to some extent into the period of custody that the Appellant commenced serving on 1 May 2020. With the utmost respect, I cannot agree. The Appellant obtained a one year and seven month, essentially, non-parole period for his earlier offending, which was egregious. The current offending could also be regarded as egregious. Unfortunately, the Appellant relapsed to drug use some two weeks after leaving Oolong House and, whilst on parole, that led to his committing the current offending. I believe that backdating this sentence into part of the sentence imposed by this Court that commenced on 1 May 2020 would not adequately reflect the totality of the criminality involved.

Institutionalisation?

It is true that there is a risk of the offender being "institutionalised", but he is still young man, only 21 years of age, and he appears from the report made by Mr Patrick Sheehan, a psychologist who assessed him on 2 March 2021, to be relaxed and cheerful in custody. Mr Sheehan also described him as neither irritable nor agitated and that the Appellant told Mr Sheehan that he had a "favourable and stable mood", rating himself as being "9/10".
It is unfortunate that the Appellant expressed reluctance to undertake any further AOD programs. Like Mr Sheehan, I am of the view that he ought to have undertaken as many programs as possible to ensure that the commitment which he has to abstinence from illicit drugs remains strong and firm, and the more courses he has done the greater might be the sense of security that both he and the community will have about his commitment to abstain from illicit drugs. There is still a possibility that the appellant might be able to take an EQUIPS Addictions Program, if Corrective Services allows such courses to resume, but if not, he may be able to undertake it when on parole. However, at this stage I do not accept that there is any real risk of institutionalisation, and, quite frankly, the non-parole period of one year and eight months appears to me to be the minimum time that the offender should serve for the current offences.

Orders

For those reasons I set aside the aggregate sentence and non-parole period fixed by the Central Local Court on 18 June 2021. In lieu thereof, I impose an aggregate sentence of two years and nine months, commencing on 1 May 2021. I set a non-parole period of one year and eight months, expiring on 31 December 2022.
The indicative sentences are 1. H 76377982: 1. Sequence 1: 6 months; 2. Sequence 2: 1 month, 1. H74648133: 1. Sequence 1: 9 months; 2. Sequence 2: 10 months; 3. Sequence 3: 10 months; 4. Sequence 4: 2 years; 5. Sequence 6: 10 months; 6. Sequence 10: 15 months; and 7. Sequence 11: 16 months.
For the sequences 5, 7 and 9 I record a conviction pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.
I confirm periods of disqualification from driving imposed by the Local Court at Central.
Any other orders? O'ROURKE: No, your Honour, thank you. ERVIN: No, your Honour. 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: 11 October 2022

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