R v Ellis

Category: Sentence

Parties: NSW DPP – Crown
Corey Ian Ellis - Offender

Representation: Ms C Deibe for Crown
Mr P Krisenthal for Offender

File Number(s): 24/248764

remarks on sentence

1. Mr Corey Ellis is for sentence in relation to a number of offences to which he has pleaded guilty at the earliest opportunity and for which a 25% discount will be allowed by reason of the utilitarian value of those pleas of guilty. The offences are as follows:

2. The sequence 1 offence, which is one of breaking and entering and stealing aggravated by reason of the offender knowing that persons were inside the premises. That is an offence under s 112(2) of the Crimes Act 1900 and carries a maximum penalty of 20 years’ imprisonment and there is specified a standard non-parole period of five years for a mid-range offence.

3. Sequence 3, which is an offence of failing to stop knowing that police officers were in pursuit, and driving thereafter in a manner dangerous to others. That is an offence under s 51B(1) of the Crimes Act 1900 and carries a maximum penalty of five years’ imprisonment.

4. Sequence 4, which is an offence of driving a conveyance, namely, a Mitsubishi Magna, knowing that it had been taken without the consent of the owner, an offence under s 154A(1)(b) of the Crimes Act 1900 which carries a maximum penalty of five years' imprisonment.

5. Sequence 8, which is an offence of intimidate police in the execution of duty, that being an offence under s 60(1) of the Crimes Act 1900 and carrying a maximum penalty of five years' imprisonment.

6. There are two offences which are to be dealt with pursuant to s 166 of the Criminal Procedure Act 1986 and therefore are subject to the jurisdictional limit of the Local Court, those being sequence 5, which is an offence of driving a motor vehicle having never been licensed to do so, carrying a maximum penalty of six months’ imprisonment of a substantial fine, and sequence 6, which is an offence of possessing a prohibited drug, namely, 11.08 grams of 1,4-butanediol.

7. The various maximum penalties and, where applicable, standard non-parole period are important guideposts in the sentencing exercise to which I have had regard.

FACTS

8. The facts are agreed and in summary are as follows:

9. The facts commence with the sequence 1 aggravated break, enter and steal offence. That offence occurred at a home in Warabrook on 5 July 2024 when the victim was at home with her daughter, Jade, and her grandson. The door to the home was closed, but not locked. The victim’s car, a red Mitsubishi Magna, was parked in the driveway and the keys were on a coffee table in the lounge room.

10. At about 6pm the offender entered through the unlocked front door, took the keys and left. The intrusion into the home was not detected by anyone at that time as they were in other rooms. The victim and her daughter then heard the car start and when the driveway was checked it was found that the car was gone. The matter was reported to police.

11. At around 11.50pm that evening police saw the victim’s Magna at a BP Petrol Staton in Wallsend. Police were aware at the time that the vehicle had been taken from the victim’s premises, which was following a break, enter and steal offence. CCTV at the BP Petrol Station captured images of the offender wearing a white cap on his head.

12. CCTV recorded the offender re-entering the Magna’s driver’s seat at the BP and then moving the car to another petrol bowser on the other side of the forecourt before driving away. Police followed the vehicle to a Shell Service Station about two kilometres away which was about a five-minute drive. At the Shell, the offender was seen to be sitting in the driver’s seat with two other people also in the car. This driving is the subject of the sequence 4 drive conveyance taken without consent offence.

13. While at the Shell Service Station two police officers who had followed the Magna in an unmarked police car approached the vehicle. One of them stood at the front of the car and the other one approached the driver’s door. Both police produced ID and told the offender and others to get out of the car. One of the officer’s tried to open the driver’s door, but it was locked.

14. The offender then started the car and revved the engine loudly. The officer standing in front of the car was intimidated by this and, fearing that the Magna might collide with him, ran out of the way and towards the unmarked police car. The offender then drove the Magna out of the Shell Service Station at speed. The events that I have described where the offender revved the car engine loudly with the police officer standing in front of it are the subject of the sequence 8 intimidate offence to which I have earlier made reference.

15. The two police then followed the Magna and activated lights and sirens on the unmarked police car, signalling for the offender to stop, but he did not. The police pursuit included the following conduct by the offender.

16. On Walford Street travelling in a southerly direction he overtook multiple vehicles contrary to double white lines and drove at speeds in excess of the 50 kilometre speed limit.

17. At a roundabout at the junction of Walford and Croudace Road the offender turned right onto the wrong side of the road against the direction of traffic.

18. The offender continued, accelerating while driving in a westerly direction on Croudace Road before turning left onto Lake Road and driving at a speed of 110 kilometres per hour in a 70 kilometre zone.

19. He also drove in a southerly direction on Lake Road in excess of the speed limits passing through the suburbs of Glendale and Argenton, at one point driving on the wrong side of the road and police observing sparks coming from the front of the vehicle.

20. As the offender approached the roundabout at the junction between Lake Road and T C Frith Avenue at Boolaroo the offender travelled onto the wrong side of the road and then briefly lost control of the vehicle, running into the gutter and causing the driver’s side tyres of the vehicle to start deflating.

21. He then drove along T C Frith Avenue before harshly turning left into Second Street, Boolaroo. While turning left he effectively lost some control of the vehicle which caused it to mount the gutter on the other side of the road narrowly missing a stationary parked car, after which the Magna collided with the front fence of a property on Second Street, Boolaroo.

22. The facts note the pursuit covered a distance on the road of about eight kilometres. The crash caused the Magna to come to a complete stop. As the driver’s door was wedged against a fence, the offender crawled across to the passenger door to exit, where he was arrested by police. Those are the facts of the police pursuit and also part of the facts relating to driving whilst never having been licensed.

23. Police, after arresting the offender, found in his possession a small bottle of clear liquid which was found to be 11.08 grams of 1,4-butanediol. The offender was taken to Toronto Police Station where he was observed clearly to be affected by a prohibited drug. He and one his passengers were escorted to hospital for assessment and observation.

24. The next morning he participated in an interview with police in which, among other things, he said, in relation to the break, enter and steal offence, that his conduct did not amount to a break and enter offence, because he said he knew the people who lived there. He said that he went to “Jade’s house” the same day he was arrested by the police. I note that “Jade” is a reference to the daughter of the victim whose house was broken into. He told police that he knocked on the door, but no-one answered and that he then turned the door handle and found it was not locked. He said he walked to Jade’s room, but she was not there. He said the house lights were already on, and that he took the keys from the bench, then went outside, started the car and revved it to “see if someone would come out”, but no-one did, so he drove away.

25. In relation to the driving related offences, he agreed that he was seated in the victim’s vehicle with two other people. He agreed that Jade did not give him permission to use her mother’s car. He confirmed that police had identified themselves at the BP Service Station and asked him about the vehicle, but he also said that he revved the vehicle before leaving the service station and he said he did that because he did not want one of his passengers who was subject to a bail curfew to be arrested. He agreed that he was driving around 90 to 100 kilometres per hour during the subsequent pursuit, said that he could not really drive, and accepted that the way he was driving was dangerous.

26. In relation to the prohibited drug found in his possession, he said that he took the vial containing that substance out of the vehicle and that it contained “G”, and conceded he knew it was a prohibited drug.

27. Those, in summary, are the facts of the offences.

OBJECTIVE SERIOUSNESS

28. It is necessary that I make an assessment of the objective seriousness of the various offences that are before the Court. Each of the four substantive offences - by that I mean those that are not the subject of s 166 of the Criminal Procedure Act 1986 - are clearly of significant potential seriousness.

29. The sequence 1 break, enter and steal, which is an aggravated form of that offence, involved breaking into premises as I have earlier set out. Offences of that kind are treated seriously because of the invasion of privacy and the breach of security that they involve. In this case the premises were a residential family home which makes it more serious than if it had been, for instance, a commercial premises. The incursion into the property, however, was quite brief and, fortunately, it did not involve a confrontation with any of the occupants although, admittedly, there was a serious risk of that happening. The breaking and entering did not involve any damage to the property or any ransacking, and the offence committed inside the premises was larceny which is at the lowest level of serious indictable offences. The property stolen was a single set of keys which was obviously of significance to the owner and led to the sequence 4 offence of driving a conveyance without consent. There is no real evidence of any planning of sophistication and I accept that the offence was opportunistic. I assess this offence as being comfortably below the mid-range, but above the low range of objective seriousness.

30. The sequence 4 offence of driving in the Magna knowing it had been taken without the consent of the owner is closely associated with the sequence 1 break, enter and steal offence. The driving was clearly quite prolonged and involved some hours given that the offender was detected driving the vehicle almost six hours later when he crashed the car after the police pursuit. It is not a low range offence, but it is below the mid-range.

31. The sequence 8 offence relates to intimidating the police officer by revving the car engine while the officer was standing in front of the Magna. It was clearly intended as a threat to run into the officer which was taken seriously by reason of the officer jumping out of the way of the vehicle. It was a serious act of intimidation given the serious injury that impact by the vehicle could have caused. However, it was a spontaneous offence with no sophistication or planning. I regard it as being an offence above the low range, but less than the mid-range of objective seriousness.

32. Sequence 3 is the police pursuit. Offences of this kind must be treated very seriously in my view. That is because of the risk of serious harm or death to innocent persons that such offences involve. This particular example of the offence occurred over a considerable distance of about eight kilometres putting numerous people at risk. The offence only ceased because the offender crashed the car. He clearly had no intention otherwise of ceasing his dangerous actions. While the offence commenced as a somewhat spontaneous act, it lost its spontaneity after this given that it went on for a long distance. It therefore involved a determination to drive in whatever manner was necessary to get away from police. The offence occurred some time after midnight so I assume, in the offender’s favour, that traffic was likely fairly light, reducing somewhat the number of people put at risk. The driving was clearly very reckless and involved significant speeds, driving on the wrong side of the road, illegal overtaking and crashing into a gutter causing the tyres to deflate, but driving on regardless before crashing again. It was an offence that is near the mid-range of objective seriousness.

33. Sequence 5 is the offence of driving having never been licensed. All of these acts of driving to which I have made reference were done in circumstances where the offender had never held a licence to drive which makes the sequence 5 offence a serious example of that type of offence and one that I would say is around the mid-range.

34. The sequence 6 offence involved the butanediol drug. The quantity was 11 grams which is just over the small quantity. I accept it was for personal use. I regard it as a low range type offence.

35. All of the offences were committed while the offender was subject to a Community Correction Order that had been imposed for three years from 9 November 2022, after a proven breach of the original Community Correction Order imposed from March 2022. The fact that the current offences were committed while on conditional liberty does not increase the objective seriousness of any of them, but it is an overall aggravating matter in the sentencing exercise generally, and it is also relevant to the assessment of risk and prospects of rehabilitation, matters to which I will refer shortly.

SUBJECTIVE MATTERS

36. Turning then to subjective matters relating to the offender himself. He is now aged 39 and was 38 at the time of the offences. He has a relatively lengthy criminal history which includes similar offences to those now before the Court, numerous breaches of community based orders and numerous periods of full-time custody.

37. The offender’s subjective case has been placed before the Court by means of a psychological report of 10 January 2022 which is based on an assessment in November 2021. There is also a letter from the offender’s mother and also a letter that was apparently prepared by the offender today and was tendered in the proceedings today.

38. The psychological report notes that the offender was born in Newcastle and raised in Coffs Harbour. He is the eldest of five children and reported a stable and positive childhood where he was raised by his mother and step-father. He attended school until year 10, but he was expelled due to his behaviour.

39. The offender told the psychologist that in 2011 that he had been raped by a teacher when he was in year 8. The psychologist observed that the offender became visibly distressed in speaking about this and says that the offender presented as a genuine and honest individual who did not appear to exaggerate or overdramatise his problems.

40. The psychologist goes on to note that according to the offender he commenced, very shortly after this abuse, to use alcohol and drugs, became withdrawn and distrusting of others, and that this led to major problems in his life. The offender told the psychologist that he suffered from flashbacks and suicidal thoughts and attempted an overdose of drugs in 2020 which caused him to be hospitalised. In the absence of challenge to this self-reported history, I accept it.

41. The psychologist goes on to note that the offender reported generally feeling sad and prefers to be alone. The psychologist concluded that the offender’s psychological injuries are consistent with chronic and severe major depression, generalised anxiety disorder and poly-substance dependence, and that these are essentially a consequence of chronic Post-Traumatic Stress Disorder arising from his sexual abuse as a school student.

42. The psychologist says that the trauma arising from that event has affected all areas of functioning in the offender’s life and that he is left with an abnormally high degree of emotional vulnerability. While the offender’s early family life was good, this was up-ended by the very serious sexual abuse that he experienced in primary school, a matter which, as I have said, has not been challenged by the Crown. The trauma arising from that abuse set him on a path of drug use and offending. This was made worse in my view when he was a young adult and lost his first child to meningococcal disease.

43. I accept that his background has played a very large part in placing the offender on the criminal path which is indicated by his history. In my view the abuse he suffered and its consequences, exacerbated by the loss of his first born baby, is a matter that reduces the offender’s moral culpability to a significant degree. It has had the effect of turning him to drugs and the resultant need to commit crimes to support his drug habit, and it has left him with a diminished capacity to make wise choices and resist the temptation of drugs.

44. This reduces the importance of general deterrence to a material degree. In that regard I, of course, am making reference to the principles discussed in the High Court decision in Bugmy v The Queen [2013] HCA 37. While this is not a case of childhood deprivation or exposure to violence and abuse and neglect, nonetheless in my view the experience of abuse which is referred to by the psychologist is a matter that engages those principles to a relevant extent.

45. I also accept that the mental health issues which the psychologist describes have made a significant contribution to the offender’s inability to avoid drugs, and his apparent inability to make wise choices. There is a significant degree of overlap in this regard with the traumatic experiences to which I have already made reference in that it was these traumatic experiences that left the offender with his mental health problems. The fact that he was experiencing these untreated mental health conditions at the time of the offences is a matter that also contributed to the offending. This also reduces his moral culpability to a material degree. In this regard I am referencing the principles discussed in the New South Wales Court of Criminal Appeal decision of Commonwealth DPP v De La Rosa (2010) 79 NSWLR 1.

46. While the offender’s moral culpability is reduced because of the matters to which I have made reference, as is the need for general deterrence, it is nonetheless necessary that I balance this against the important considerations of community safety. That is because, while the offender’s traumatic background and mental health issues are matters that mitigate his offending to a material degree, they also lead me to the conclusion that community protection must be given significant weight. That is because the offender remains a risk of committing other offences in the future. This is a matter that pulls in a different direction, namely, towards an increase in the sentence.

47. The Court has been provided with a letter from the offender’s mother who is in attendance during the hearing today. She states that the offender did not really get into trouble with the law as a child, but that he has been on a downward spiral since losing his first child to meningococcal disease about 18 years ago. The mother expresses concern that the offender has become institutionalised, is unable to cope outside of prison, and that he needs appropriate drug rehabilitation and support. I think she is right.

48. The trouble is that drug rehabilitation services are limited in their availability, and in any event rehabilitation can only ever be successful if a person has the determination and fortitude to stick to it. Regrettably, to date the offender has not been able to do this.

REMORSE

49. The offender has shown some genuine remorse in the form of his letter which was provided to the Court today and in which he also apologises not only to the Court, but to the victims of the break, enter and steal offence.

REHABILITATION AND RISK

50. Turning then to questions of prosects of rehabilitation and risk of re-offending. The offender’s history of similar offending, his mental health issues and the fact that he has not yet engaged in the treatment he needs leads me to the conclusion that his prospects of rehabilitation are at present guarded at best. There are some positive signs, in that he has not committed any offences since being in custody and he is engaged in a trusted employment position in custody. There is also the fact that he retains the support of his mother.

51. These are all, as I have said, positive matters. I accept that the offender is genuine in his wish to avoid drugs and crime in the future. However, the real test, which, regrettably, the offender has failed in the past, will be whether he can actually achieve this once he regains his freedom and has the opportunity to return to drug use and the criminal life that it usually involves. In my view I consider that he is a material risk of re-offending.

DETERMINATION

52. Turning then to my ultimate determination of the sentence. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure Act 1999. I do not intend to recite each of those factors. All of them are important. However, as I have earlier said, it seems to me that the importance of general deterrence is reduced to some degree.

53. I am satisfied for the purposes of s 5 of that Act that no penalty other than imprisonment is appropriate. I intend to impose an aggregate sentence given that there are multiple offences. I have made some adjustment by means of a finding of special circumstances with respect to the ratio between non-parole period and head sentence. I have done that on the basis of the risk of the offender becoming institutionalised and also the need for a reasonable period of supervision in the community once he is released to parole given the importance of his, hopefully, engaging in some sort of rehabilitation.

TOTALITY

54. Given that there are multiple offences that will make up the overall aggregate sentence, I have had regard to totality principles. In other words, looking at the totality of the criminality involved and ensuring that the overall sentence is not one that is inappropriately crushing. This involves, of course, the question also of to what extent, if any, there should be any notional accumulation among the various indicative sentences that I will announce shortly.

55. In my view there is a need for some notional accumulation with respect to at least some of the offences. However, I take into account that all of the offences occurred on the same day and within hours of each other. Also I take into account that the sequence 1 aggravated break, enter and steal offence and the sequence 4 drive conveyance taken without consent offence were closely associated and should be largely notionally concurrent. Similarly, the driving whilst unlicensed was really part of the offending involved in the driving of the vehicle taken without consent and also the police pursuit, so in my view that offence of driving unlicensed should be largely concurrent with those other offences to which I have just made reference. However, the intimidate offence and the engage in police pursuit and the drug possession were all separate criminal acts and some notional accumulation is therefore required to acknowledge this fact.

56. I have given consideration to the date upon which the sentence should commence and I am conscious of the fact that, whilst the offender was arrested on 5 July 2024 and has been in custody bail refused on these matters since then, part of that period of custody has also been due to other reasons. One of them was that he was sentenced to a fixed term of--

57. KRISTENTHAL: Five months.

58. HIS HONOUR: Five months, thank you - of five months from 27 February 2024 to 26 July 2024 and, more significantly, he was serving the balance of parole on a previous sentence from 6 July 2024 until 2 February 2025, a period of around about seven months. I indicated in the sentence hearing today that I proposed to allow approximately 50% of that seven-month period and that is what I intend to do.

59. I will impose an aggregate sentence. It is therefore necessary that I set out the indicative sentences that apply that I would otherwise have imposed if I was not imposing an aggregate sentence. They are as follows and all of these are after the 25% discount for plea of guilty. The indicative terms are as follows:

60. For sequence 1, two years, nine months’ imprisonment with a non-parole period of one year, 11 months.

61. For sequence 4, that is, the driving conveyance offence, 15 months’ imprisonment.

62. For the sequence 3, which is the police pursuit matter, 18 months’ imprisonment.

63. For the sequence 8, which is the intimidate offence, 14 months’ imprisonment.

64. For sequence 5, which is the drive while never licensed, one month imprisonment.

65. For sequence 6, which is the drug offence, three months’ imprisonment.

66. If you just stand up, Mr Ellis, and I will announce the sentence.

67. I sentence you to a head sentence of three years, two months. I set a non-parole period of two years, two months. Those will date from 19 October 2024. The head sentence, therefore, will expire on 18 December 2027 and the non-parole period on 18 December 2026.

68. Thank you, you can have a seat, Mr Ellis. Ms Crown, Mr Krisenthal, anything to raise about any of that?

69. KRISTENTHAL: No, thank you, your Honour.

70. DIEBE: No, your Honour.

71. HIS HONOUR: All right, well, Mr Ellis, I hope you continue well as you are at the moment in custody and you get yourself into something of a rehab nature. Hopefully, I don’t see you again.

72. OFFENDER: Thank you, your Honour.

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