R v Bell

OBJECTIVE SERIOUSNESS

1. I turn then to consider matters of objective seriousness. Firstly, with respect to the drive disqualified offence on 6 February 2021 which is being dealt with on a s 166 certificate. This offence involved the offender, who was disqualified until 2026, making a deliberate choice to drive with a companion to a sailing club, presumably to some social outing. While there was no aggravating aspect to the driving, it has not been suggested that the offender had any compelling reason to drive and I conclude that he chose to do so essentially for his own convenience and in complete disregard of his disqualification. It is a relatively serious form of this type of offence.
2. Turning then to the pursuit offences and their objective seriousness. Each of the two police pursuit offences carry a maximum of five years imprisonment, which mark them as quite serious offences. But, apart from that, offences involving or reckless or dangerous driving have been regarded as very serious offences by the community and the courts for a long time and essentially since motor vehicles were invented. That is because of the obvious and potentially lethal nature of a vehicle being driven dangerously or at an excessive speed.
3. However, it is of fundamental importance that I have regard to the facts of this particular case, and make an assessment of the objective seriousness of the offences committed by this particular offender. The sequence 2 offence, as noted in the agreed facts, commenced with police activating lights and sirens, which the offender ignored, or perhaps more correctly did not ignore but used as a reason to accelerate sharply to 120 kph in an 80 kph zone. He was at that stage being chased by two police vehicles. After this, he accelerated to 140 kph in areas posted as either 90 or 100 whilst swerving in and out of other vehicles, which led police temporarily to suspend the pursuit. However, the offender's dangerous driving continued at speeds up to 145 kph in an 80 zone and overtaking other vehicles in the break down lane. Not long after this, the offender reached 167 kph at which time there were three police vehicles following. At this time the offender drove through a red light and eventually entered the M1 motorway at which point there were four police cars in pursuit. After entering the M1, he did a U-turn and drove towards oncoming traffic.
4. It was at this point where police sensibly ceased the pursuit. The distance covered in the two parts of this first pursuit was about 22 kilometres over a total period of at least six minutes. Clearly the driving I have described can only be regarded as utterly reckless and was carried out with no regard whatsoever for the lives of others.
5. Although the facts indicate that all these events took place over a period of about six minutes, that is a significant period of time given the speeds at which the offender was driving.
6. In the offender's favour to some extent is the fact that he was alone in the car, but given the many lives he put at risk, this in my opinion reduces the seriousness of the offence to only a minimal degree. In my view, this was a very serious example of this type of offence and towards the upper range of objective seriousness.
7. The sequence 11 pursuit commenced about 20 minutes later when the driver of Highway Patrol car CC 208 saw the offender driving in the opposite direction at about 160 kph in a 70 zone whilst swerving in and between other vehicles. The offender's car was then being pursued by two Highway Patrol cars as he continued in a similar manner using the break down lane and shoulders of the road to overtake other vehicles. The offender then, in another attempt to evade police, did a 90 degree turn through a small gap between stationary vehicles over the top of lane delineators and then, with police in pursuit, accelerated to about 150 kph in a 70 zone before passing through a red light as he continued on the Pacific Highway towards the M1. Once on the M1, the offender continued to drive in a similar manner swerving in and out of traffic and using the break down lane to overtake and also failed in an attempted U-turn near Somersby before continuing south at enormous speeds of up to 190 kph in a 110 kilometre zone.
8. As shown in the in car video material, he then again used the break down lane to overtake a civilian car, then swerved to the right across two lanes of traffic before pulling to the left in front of another car causing it to brake to avoid a collision. The offender then again tried to perform a U-turn with the apparent intention of once more driving in the wrong direction against oncoming traffic. It was only at this point that he was stopped when he collided with the two highway patrol cars and was arrested. This pursuit occurred over a period of about eight minutes and a distance of at least 16 kilometres.
9. As earlier noted, there is a dispute about the circumstances in which the offender's car came to a stop. It was argued for the offender that I should reject the suggestion in para 45 of the facts that the injuries to Senior Constable Owen can be attributed to the offender's actions. It was submitted that at the time the offender's car came into contact with Senior Constable Owen's vehicle, the offender had already been subdued and that his car was "completely stationary". It was also argued in effect that the actions of the driver, Senior Constable Owen, were excessive or unnecessary and that he was in effect responsible for his own injuries.
10. In order to determine this dispute, I was provided with the dash cam footage from both CC 201 and CC 208, which I have examined many times and considered carefully. I have also been provided with extracts from Pt 7 of a New South Wales Police document entitled "Silver Response Course Safe Driving Policy - Pursuits".
11. Having considered all of the material, I do not accept the argument on behalf of the offender. Firstly, the two in car video pieces of footage show clearly that the offender was desperately trying to escape from the police cars and would have done so if he had not been stopped. Furthermore, and contrary to submissions by counsel for the offender, his car had not stopped. Rather, he was desperately trying once again to evade police by driving away from them. The video from CC 201 clearly shows that the offender had turned his car around and was attempting to drive in the opposite direction when his car hit the front of CC 201 which at the time was coming to a halt. Video from CC 208 which was being driven by Senior Constable Owen shows that the impact between the offender's vehicle and CC 208 occurred at about the same time as the impact with CC 201.
12. It was in my assessment the combined effects of contact by the offender's vehicle with the two police cars which prevented the offender's escape. On my assessment of the in-car video material, it is likely that if CC 208 had not been alongside CC 201 and in the position that it was, the offender would have again evaded police and continued to drive without regard for the lives of other road users.
13. Counsel for the offender pointed to the contents of the Silver Response Safe Driving Policy document which in part says that a police officer engaged in a pursuit will not, among other things, use a police vehicle to "block" the offending vehicle without authorisation from certain designated persons and will "not ram or intentionally bring the police vehicle into contact with any vehicle being pursued". Counsel for the offender submitted that there is no evidence that the actions of the drivers of CC 201 or CC 208 had been authorised by the relevant senior officers, that the actions of the police were in contravention of the Safe Driver Policy, and that any injuries suffered by Senior Constable Owen driving CC 208 were a result of his own actions and were in effect unjustified and unlawful and cannot in any way be attributed to the actions of the offender.
14. I do not accept these submissions. These submissions attempt to treat the terms of the Safe Driver Policy as an all‑encompassing and inflexible code regulating every action which might reasonably be taken in the course of driving a vehicle during a police pursuit. To apply the policy in the rigid and restrictive manner argued on behalf of the offender assumes that the driving of a car at speed, let alone in the course of a police pursuit, is an activity in which the driver has the luxury of time to reflect, consult with others and obtain approval for every action or reaction in what is fundamentally an extremely dynamic, fluid and dangerous activity. In making these observations, I do not suggest that the instructions in a policy document such as the Safe Driver Policy are inappropriate or should not be followed. Clearly their content is sensible and should ordinarily be followed.
15. However, to apply the terms of the policy in the strict manner advocated by the offender to the facts of this case defies common sense because it ignores the reality that, as is demonstrated in this case, split second decisions often need to be made, sometimes without the opportunity for reflection, consultation or approval by others. I specifically also do not accept the argument that either of the police cars were used to "ram" the offender's vehicle.
16. In my view, the actions of the drivers of both CC 201 and CC 208 in driving them into a position where they prevented the offender from escaping, once again, were justified and necessary and quite possibly saved the lives of other road users.
17. I am also satisfied that, given the manner and circumstances of the driving engaged in by the offender and his obvious knowledge that police were pursuing him, that the injuries suffered by Senior Constable Owen were, to say the least, foreseeable: see Josefski v R [2010] NSWCCA 41.
18. In taking into account the injuries to Senior Constable Owen, I have taken care to avoid De Simoni error which might arise if the injuries had involved grievous bodily harm. However, it seems to me that, while the officer's injuries were substantial, they do not amount to "really serious bodily injury": see Swan v R [2016] NSWCCA 79.
19. I assess the sequence 11 pursuit offence as a very serious example of this type of offence and as being within the upper range of objective seriousness.
20. It was argued by the Crown at one stage that each of the pursuit offences are aggravated by reason of the offender's admission to the psychologist, Dr Sidhu, that he had used Ice on the day of the offences. However, in the absence of evidence as to the amount of drug taken and in the absence of evidence that this had a material effect on the offender's actions at the relevant time, I do not regard this as an aggravating factor.

SUBJECTIVE MATTERS

1. Turning then to subjective factors relating to the offender. The offender is 28 years old and was 27 at the time of the offences. Leaving aside Children's Court matters, the offender's criminal history as an adult does not assist any claims to leniency. Most serious, however, is the fact that at the time of the offences before the Court, the offender was on parole for a number of serious offences committed in 2019 and 2020, one of which was an earlier police pursuit. Furthermore, he was also subject to bail which had been imposed in the Local Court on 21 January 2021.
2. The fact that he was subject to these forms of conditional liberty is not a matter that increases the objective seriousness of any of his offences but it does aggravate his overall criminality.
3. The Court has been provided with a volume of written material on behalf of the offender. His background is set out in the psychological report of Dr Sidhu who assessed the offender in July 2022 and took a history which included the following. The offender's mother was an abuser of illicit drugs and the offender was born with hepatitis. His father separated from his mother when the offender was only about ten months old and the offender moved with his father who formed a new relationship with a woman who became the offender's stepmother.
4. The offender reunited with his mother, who is of Aboriginal heritage, when he was about ten but had only sporadic contact with her due to his father's opposition. The offender reported that he was exposed to domestic violence and some drug use in the home and that his stepmother abused alcohol and favoured her own son over him and that this worsened when his father moved to Western Australia for work when the offender was 12. The offender reported feeling abandoned by his father and being subject to abuse by his stepmother.
5. The offender left school in year 9 after a history of behavioural problems which led to his expulsion from a mainstream school. He did some work from about age 15 in his uncle's plumbing business, but his first paid job was not until a couple of years ago when he was about 26 which he lost when he was placed into custody.
6. He described a history of polysubstance abuse from about age 10 until he was around 23 years old, which mainly involved cannabis and methamphetamine. He also has a history of problematic gambling.
7. The offender told the psychologist that he was sexually abused at age 12 while detained in a youth detention centre. While I do not intend to set out the details of the sexual abuse, it was described by the offender in terms indicating that it was both serious and violent and this was not disputed by the Crown. The offender is currently pursuing civil proceedings in relation to this alleged abuse, the effects of which the offender claims have ruined his life.
8. The psychologist reached the conclusions that the offender currently meets the criteria for major depressive disorder and generalised anxiety disorder as well as severe substance use disorder and although he does not meet the diagnosis for Post Traumatic Stress Disorder, he is still impacted by the trauma he experienced as a child and that his mental health is complex. While the psychologist concluded that his severe substance abuse disorder and use of drugs at the time of the offences contributed to his poor decision making and impulsiveness in committing those offences, the use of drugs in the immediate lead up to the offences is not a matter that mitigates the seriousness.
9. Counsel for the offender made submissions to the effect that the offender's history is such as to attract the principles in the well known decision of the High Court of Australia in Bugmy v The Queen [2013] HCA 37. There is of course no bright line test to identify "Bugmy cases" from "non Bugmy cases" and it seems to me that there never can be, given the complexity and variable nature of the backgrounds of persons who come before the criminal courts for sentence. See for example, Nasrallah v R [2021] NSWCCA 169 at paras 11, 12 and 21. Each case must, however, depend on the evidence and the findings of fact made on that evidence.
10. On the evidence in this case, I am satisfied that the offender's early years were marred by his exposure to drugs, alcohol and domestic violence and that he lacked access to good role models and appropriate primary attachment figures. I am also satisfied that the likely impact of the offender's problematic childhood was exacerbated by his experiences of being placed into custody from a young age and in particular by the fact that he was seriously sexually abused while in that custody. In my view, this background contributed to some extent to the offender's poor decision making and reduces to some degree his moral culpability for the offences before the Court.
11. I am also satisfied that the offender's diagnosed psychological conditions and history of having been sexually abused in a custodial environment are such that they have made and will continue to make his time in custody more difficult.

REMORSE AND REHABILITATION

1. I turn to questions of remorse and prospects of rehabilitation. In commenting on his offences, the offender told the psychologist that he "regrets it so much" and acknowledged that he "put so many people in danger". The offender has also provided an "apology letter" to the Court in which he expresses regret for his actions and this is echoed in the letters from his partner and his aunt.
2. The fact that he gave no evidence on oath diminishes to some degree the weight that I attach to these expressions of remorse. However, on balance, I do accept that there is some remorse.
3. The psychologist concluded that the offender had a good understanding of his criminogenic needs and accepted the need for drug and other treatment to help him "adjust to the outside" and that his insight into his areas of need bodes well for his future rehabilitation but is reliant on his remaining motivated to change his behaviour. As the psychologist notes, the offender has some protective factors available to him, namely the support of his father and his current partner and the recent birth of his son.
4. There are also two Sentencing Assessment Reports before the Court. The first report dated 17 June 2022 indicates that the offender refused to engage in the interview process and was therefore limited to a review of documentation which included a record of ten institutional misconduct charges since going into custody. The second report, in which the offender did engage with the author, noted that the offender did express some remorse but also attempted to justify his actions. He did, however, show some insight in acknowledging that he could have caused an accident, but the author notes that the offender became aggressive during the assessment and that the regret he expressed appeared to be self-serving. Both Sentencing Assessment Reports note that the offender was assessed as high risk of re-offending.
5. In my view, the offender has some prospects of rehabilitation but those prospects are fragile. His prospects of rehabilitation lie largely within his own hands and whether he can exercise the maturity and self-control required to avoid drugs and negative influences, engage with treatment, and focus on his responsibilities to his child and partner. However, at present, he remains a significant risk of future offending.

THE PANDEMIC

1. I have taken into account the fact that the offender's period in custody to date has been during the current pandemic with its many adverse effects on persons in custody which have included restrictions in access to visits, programs and other services as well as frequent lockdowns, combined with the general anxiety associated with contracting the disease. In this offender's case, there is specific evidence from his solicitor, Ms Black, documenting these adverse consequences, including many days of lock ins, periods in segregation, restrictive contact with outsiders and limitations on access to various programs and other services. I take into account also that the remainder of the offender's period in custody will likely continue to be more difficult by reason of at least some of these continuing problems.
2. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, which of course are the need for adequate punishment, the importance of deterrence of the offender and others, of protecting the community, of making the offender accountable, of denouncing his conduct and recognising the harm done but also promoting his rehabilitation. I am satisfied that the s 5 threshold in that Act has been crossed. In other words, that no sentence other than one of full time imprisonment is appropriate.

DETERMINATION

1. I intend to impose an aggregate sentence given that I am sentencing for more than one offence. As noted earlier, in sentencing Mr Bell for the sequence 2 pursuit offence, I will take into account the sequence 3 drive while disqualified offence and the sequence 13 drive in a manner dangerous offence, each of which have a maximum penalty of 12 months imprisonment.
2. While Form 1 matters can operate to increase the weight to be given to personal deterrence and the community entitlement to exact retribution, it is for me to determine, based on the circumstances of this particular case, whether they should have that effect: Lloyd v R [2022] NSWCCA 18 at para 13. In this regard, I note that each of the offences on the Form 1 were committed on the same day as the two pursuit offences and were in one sense part of a continuing course of conduct which commenced when the offender drove disqualified out of the driveway at Swansea and ended with his apprehension after his car collided with CC 201 and CC 208.
3. On the other hand, each of the Form 1 offences involved discrete and deliberate unlawful actions. The first in choosing, with no justification, to drive while disqualified, and the second in continuing to drive dangerously and in part on the wrong side of the road after the first police pursuit had been terminated. In the circumstances, I am satisfied that each offence, but in particular the dangerous driving offence, is such that they ought to impose some upward pressure on the sentence for the sequence 2 offence.
4. As I am imposing an aggregate sentence, it is a requirement that I set out the indicative sentences. In other words, those that I would have imposed had I not imposed an aggregate sentence. The sentences I am about to refer to are not the ultimate sentence. These are the indicative sentences.
5. Firstly, for the sequence 2 offence, after a 25% discount, the indicative is two years seven months. For the sequence 11 offence, after the 25% discount, the indicative is two years six months and for the sequence 1 offence on the 166 certificate, after the 25% discount, the indicative sentence is six months. I should note that in relation to the indicative sentence on the sequence 2 offence, that of course also takes into account the matters on the Form 1.

TOTALITY AND ACCUMULATION

1. As I am sentencing for three offences, I have given close consideration to questions of totality and in particular the need to ensure that the sentence is not inappropriately a crushing one but balancing this against the possible perception that a discount is being given for multiple offending.
2. In my view, there does need to be some degree of notional accumulation of the sentences. Each of the pursuit offences involved individual episodes of very serious offending separated in location and time and the sequence 1 offence was committed on a different day, in fact five days earlier.

DECISION

1. I impose an aggregate head sentence of three years ten months. I make a finding of special circumstances based upon the offender's mental health issues, the need for an extended period of supervision on parole during which he will need treatment to avoid relapses into drug taking, and also the risk of institutionalisation. I impose a non-parole period of two years seven months.

BACKDATING

1. I have given consideration to the date upon which that sentence should commence. The offender was arrested on 11 February 2021 for the offences before the Court and has been in custody since then. However, that custody has not been solely referable to the offences now before the Court. On 10 February 2021, the State Parole Authority for reasons not connected with the offences now before the Court revoked his parole on a sentence for offences committed in 2019 and 2020. As a result, the offender served the remaining portion of an existing sentence until 29 December 2021.
2. Furthermore, on 8 November 2021, he was sentenced by the Local Court to a three month fixed term from 26 May until 25 August 2021. In addition, he has since 2 February 2022 been bail refused on charges for which he is soon to be sentenced in the Local Court.
3. Having had regard to these matters and to totality principles, I order that the head sentence and non-parole period date from 29 December 2021. The head sentence of three years ten months will therefore expire on 28 October 2025 and the non-parole period of two years seven months will expire on 28 July 2024.
4. Now, Ms Crown, what do you say in relation to the disqualification issue?
5. WALKER: Your Honour, the Crown would be seeking that the Court impose a disqualification period for the offences where it's applicable.
6. BLACK: Your Honour, I believe it's a five year automatic disqualification and a two year minimum for a subsequent offence. Our submission would be that your Honour could find somewhere in the middle of that. He is currently serving a disqualification period until 2026. Any term that your Honour does impose will not commence until Mr Bell is released from custody following this term of imprisonment. In that regard, it's obvious that Mr Bell has a need for his licence to continue living his life. He has not had a licence for many years but our submission would be your Honour could find somewhere in the middle between a two year and a five year period.
7. HIS HONOUR: I think there's an automatic of 12 month and a minimum of six months that applies to the sequence 1 drive disqualified offence.
8. BLACK: That's correct, your Honour.
9. HIS HONOUR: Given the period of time from which the offender is already disqualified, I impose in relation to each of the pursuit offences, a disqualification period of three years in each case and for the sequence 1, a disqualification of eight months.
10. BLACK: As the Court pleases.
11. HIS HONOUR: Thank you, the Court will adjourn.

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: 20 February 2023