R v Hale

Penalties

1. The first offence upon which sentence is to be imposed is the charge of not stop during a police pursuit and drive in a manner dangerous. This is a second major offence, contrary to s 51B(1) Crimes Act 1900 for which the maximum penalty is imprisonment for five years. There is an automatic period of disqualification of five years.
2. The second indictable offence of take and drive conveyance without consent of the owner is contrary to s 154A(1)(a) Crimes Act 1900, the maximum penalty, five years' imprisonment.
3. The first summary offence, driving whilst disqualified contrary to s 54(I)(a) Road Transport Act 2013 has a maximum penalty of imprisonment for 12 months and a fine of $5,500. There is an automatic period of disqualification of 12 months attaching to that offence.
4. The second summary offence, driving with an illicit drug present in oral fluid contrary to s 111(1)(a) Road Transport Act 2013 has a maximum penalty of $3,300 with 12 months automatic licence disqualification.
5. There are no standard non‑parole periods specified for any of these offences for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

Discount

1. Having pleaded guilty early in respect of all matters, he attracts a discount of 25% for the utility thereby provided to be applied to the sentences assessed in each case upon the synthesis of objective and subjective material tendered in the proceedings.
2. In relation to the offence of the illicit drug present in his oral fluid, in light of the terms of imprisonment I am about to impose for the other three offences, I shall deal with that matter pursuant to s 10A Crimes (Sentencing Procedure) Act 1999 and impose no penalty, however the 12 months automatic period of licence disqualification will attach to that conviction.

Pre-sentence Custody

1. The offender has been in custody since his arrest, from 8 January 2020. However he was on parole at the time of the commission of these offences and as a consequence that parole was revoked and he was required to serve the balance of parole until the expiration of that period on 29 July 2020. He has been in custody in respect of this offence only from 30 July 2020 to 9 October 2020, today, when the sentence is to be determined.
2. I have discretion as to when I should commence the sentence I am about to impose in accordance with the decision of the NSW Court of Criminal Appeal in Callaghan v R [2006] NSWCCA 58, in particular the discussion provided by her Honour, Simpson J. I could commence this sentence at the expiration of his balance of parole.
3. As her Honour pointed out in the judgement, it could never be said that someone who has had parole revoked would not at some point be able to regain parole if he or she demonstrated their suitability for such an order. It would be most unlikely in this case I accept, however it does seem to me that in accordance with the discretion given and bringing into account what is known of the offender, it is appropriate that there be partial accumulation with the balance of parole he was required to serve and correspondingly some concurrence.
4. Accordingly, I shall commence the sentence I am to impose today on 30 May 2020.
5. I speak in terms of a singular sentence because I propose to impose an aggregate sentence at the end of this judgement after I have identified what would be appropriate sentences in each case for the offences if they were to be determined alone.

The Offender's Antecedents

1. The offender was on parole at the time of these offences. He has a deplorable record of antecedents. This is all significant in the assessment of what is to happen to him today. Antecedent criminal history and conditional liberty at the time of the offending are aggravating factors to be brought to account but not so as to aggravate the objective gravity of the offending or to increase the sentence beyond what is proportionate against the particular misconduct, but to assist the Court in its consideration of aspects of specific deterrence and prospects of rehabilitation. It also denies the offender leniency that he might otherwise have been entitled to exploit had he no antecedent criminal history.

The Seriousness of the Offences

1. I have considered the facts quite carefully and what is said of him, to explain why he might have been so foolish as to engage upon this behaviour. As one is required to do in all such cases it is important to assess where on the scale of objective gravity these offences sit. Having considered the facts to which I am yet to come, I am satisfied that the police pursuit matter does fall above the midrange of objective seriousness, the take and drive the conveyance I find is perhaps at or below midrange of objective seriousness, the drive whilst disqualified I put at the upper end of objective seriousness against his background of repeat offending in that context.
2. In relation to the drive with illicit drug present in oral fluid, that would I find, falls at or below midrange but in light of the outcome with respect of the other three matters and since only a fine is available for that offence as a penalty, I propose to not add to his burden by requiring him to face the responsibility of a fine once he is released back into the community on parole.

The Facts

1. Turning to the facts, as a member of the community, as a judge, as a road user, I find his behaviour alarming.
2. He was born in 1981 and thus is now 39 years of age. He was 38 at the time of the offence. He does not have opportunity to exploit youth to explain why he behaved as he did.
3. About 5pm on Monday, 4 November 2019, the owner of the motorcycle, a Mr Golicov, left his black Suzuki GSX‑R1000 motorcycle with NSW registration CDXXX, in the carpark of a fitness centre. The motorcycle had a flat battery and he left it there until he could attend to that problem. He returned about 8pm on Tuesday 5 November 2019 and found that the motorcycle was gone. He attended Gordon Police Station and reported it missing.
4. Around 10am on Wednesday 8 January 2020, some significant period of time after the bike was taken, police officers from the Kuring-Gai Chase Highway Patrol received a radio broadcast that a black motorcycle without registration was speeding and cutting in and out of traffic on the M1 Pacific Highway at Mooney Mooney on the Central Coast. A description was given of the rider including that he was wearing a black helmet and black clothing. The Highway Patrol car was marked with livery. Police positioned themselves at U‑turn base 17 located between north and southbound traffic at Bar Point on the Central Coast. After 3 to 4 minutes, the officer saw a black motorcycle with no licence plate drive past. The person riding the cycle was noted to be a male of large build, with a black helmet with yellow stripes, a black jacket and a cream or tan coloured pair of shorts. Police observed the offender turn to look at their direction as he rode past.
5. The facts then deal with the not stop and drive in a manner dangerous during a police pursuit. The officers pulled out of the U-turn bay. The motorcycle increased its speed. The police activated their lights and sirens and commenced pursuit. The digital speedometer inside the police vehicle confirmed that the motorcycle was travelling at 192 kilometres per hour in an area signposted at 90 kilometres per hour. The offender became caught behind several other vehicles and his speed reduced to 140 to 150 kilometres per hour and that enabled the police to pull closer. They saw that he was wearing a knee brace on his right knee. The offender overtook the vehicles in front of him and entered an area signposted as 110 kilometres an hour. His speeding increased to 196 kilometres per hour. He continued to weave in and out of traffic. The police officers, with good sense, terminated the pursuit over the police radio after about 60 seconds due to the risk to other road users. They kept the offender under observation as he made good his escape. At the Windy Bank Exchange on‑ramp from the Pacific Highway to the M1 motorway near Berowra, police observed that the offender was driving at approximately 100 kilometres per hour in an area signposted as 80 kilometres per hour. They observed that the vehicle travelled at approximately 90 kilometres per hour toward a red traffic light. The offender did not stop at that traffic light and passed through it. The police observed him enter the intersection of the old Pacific Highway and the M1, travelling about 160 kilometres per hour. They lost sight after he exited the M1 onto the Pacific Highway at Berowra.
6. Around 10am, the offender was captured on CCTV smoking as he walked at the rear of Star Burger in Mount Kuring-Gai. He was wearing a white T‑shirt and beige shorts as well as with the knee brace on his right knee. This roadway is a winding road in an industrial area and continues along to Beaumont Road and Mundowi Road, Mount Kuring-Gai over about 400 metres.
7. About 10.20am the offender was captured on CCTV sitting at the front of Star Burger. Around 10.30am while patrolling in the Mundowi Road, Mount Kuring-Gai police saw the offender walking north along Mundowi Road talking on a mobile phone. They observed the offender was a male of large build with short dark hair and a beard. He was wearing a white T‑shirt, beige shorts and a knee strap. The offender continued walking north towards Beaumont Road.
8. Police drove around 200 metres south, down Mundowi Road, and observed an unknown male to be working on a motorcycle. Police asked the male, "Have you seen a motor bike come down this way". The male responded, "Yeah one just parked in behind that car there", and pointed to the eastern side of Mundowi Road where police saw the black Suzuki motorcycle parked. The police asked the male how long the motorcycle had been there and he responded about 15 minutes. Police walked over to the motorcycle and located a black helmet with yellow markings on the seat. This matched the description of the offender provided by the Highway Patrol police earlier in the morning. They found a pair of gloves inside the helmet. They seized those items and saw that the motorcycle did not have a registration plate affixed to it. They noted the engine number and organised for the motorcycle to be towed to an address in Brookvale.
9. Around 10.40am, the offender was captured on CCTV entering a taxi at the front of Star Burger wearing a white T‑shirt and beige shorts and holding a mobile phone. At 11.05am, the police received a radio broadcast that the offender was observed to be leaving Beaumont Road in a taxi. The police stopped the taxi at the intersection of Beaumont Road and Pacific Highway and saw the offender seated in the front passenger seat. He had changed from the white T‑shirt he had been wearing into a grey T‑shirt but was still attired in the beige shorts. He was sweating profusely. The white T‑shirt and a mobile phone were on the floor of the taxi in front of him. They asked him to exit the taxi. He would not comply so they removed him from the taxi and placed him on the ground adjacent. He was arrested at around 11.10am. The clothing, the mobile phone, and a drink bottle were seized and he was taken to Hornsby Police Station. He declined the opportunity to participate in an interview.
10. The investigation included the offender being submitted to a breath test which produced a negative result and an oral fluid test which produced a positive indication for methylamphetamine. An oral fluid sample was taken and submitted for forensic analysis which confirmed the presence of methylamphetamine in the offender's oral fluid.
11. The offender's mobile phone was seized. There was a message located on that phone from 13CABS. The message came in at 10.36am, advising that the taxi, to which I earlier referred, was approaching. The helmet and gloves were submitted for fingerprint testing and DNA analysis. His fingerprint was located on the exterior of the helmet and DNA tape lifts were taken from the interior padding of the helmet. The offender could not be excluded as a contributor to the mixed DNA profile located on that item.
12. The police confirmed the ownership of the Suzuki motorcycle in Mr Golicov, with a registration CDXXX. The police confirmed that the offender was disqualified on 5 February 2018 to continue until 1 May 2021 and was therefore disqualified at the date of this offending.

The Offender

1. As I said, the offender has an extensive record of criminal antecedents. The report extends to 34 pages. The entries begin in Wyong Local Court in November 2000. At that stage, he was 19 years of age. The record is continuous apart from the times when he was in custody serving sentences. The offences for which he has been prosecuted are: resisting an officer an officer in execution of duty, damage to property, malicious damage, contravening apprehended domestic violence orders, assault occasioning actual bodily harm, possess prohibited drugs, take and drive a conveyance without the consent of the owner, common assaults, driving whilst disqualified, supplying a prohibited drug, possessing a prohibited weapon, possessing a prohibited drug, using an unregistered and an uninsured motor vehicle, operating a vehicle so to cause the wheels to lose traction, exceed speed, driving whilst suspended, assault occasioning actual bodily harm in company, goods in custody, driving under the influence of alcohol or drug, not giving particulars to another driver, custody of a knife in a public place. There are multiples of these offences. Of particular note is the frequency with which he has been charged with driving whilst disqualified.
2. I have access to his custodial record. He has spent a good part of his life in gaol. There is, as the Crown concedes a grave risk of institutionalisation in this offender and accordingly I would add that to the special circumstances upon which I am prepared to reduce the custodial component and increase the period during which he should be eligible to parole.
3. He was in recent years, granted parole in November 2016 but was charged and returned to custody in October 2017, released for parole in October 2018 and brought back again in January 2019, released to parole in October 2019 and then charged in January 2020. There are two "breach of parole" reports including one on 20 November 2019 referring to the period between his most recent grant of parole until his return to custody for the present offences. In that period, on 6 November 2019, 12 November 2019 and 20 November 2019, he admitted using prohibited drugs contrary to his conditions of parole. These included buprenorphine, cannabis, methylamphetamine, and Xanax.
4. He has an entrenched drug addiction associated with mental health instability. He made contact with the Central Coast Drug and Alcohol Program for treatment to address his addictions and was accepted for detoxification on 2 December 2019. This further offending however intervened with whatever arrangements were in place for him. The recommendation was that he enter into detoxification and abstain, with warnings of the consequences for his parole should he fail to comply. His second report followed this sequence of offending. It was written on 9 January 2020; revocation was recommended and in due course implemented.
5. The offender did not give evidence but relies upon out of court representations made to a psychologist from Mindways Psychological Services. The psychologist is Ann‑Marie De Santa Brigida (nee Petrenas). She attributes to the offender a range of representations. In my respectful opinion, this is a case where the warning urged by Smart AJ in R v Qutami [2001] NSWCCA 353 has clear application. Moreover, in Imbornone v R [2017] NSWCCA 144, Wilson J, beginning at para [57], drew upon that authority and others, to discuss the caution with which the Courts must approach out of court representations upon which an offender would rely that have not been presented under oath or affirmation and not tested by cross‑examination.
6. It is significant in this case because the opinions offered by the psychologist rest entirely upon her perception of matters asserted to her. They are qualified representations attributed to the offender without any meaningful quantification or elaboration to enable an assessment to be made of the reliability or true impact of those matters, and thus, when considering the reliability of the opinions and conclusions reached, the Court is left with the task of deciding what if any weight should be given to them. I am not satisfied that they should attract any weight at all for the reasons I am about to give.
7. The report is relatively voluminous with much written in generality without sufficient specification of factors relevant and unique to this offender. I shall deal with each section in turn.
8. First of all, it stated that the psychologist previously prepared a report for the offender, and it is noted that he now presents with a complex sequelae of problems including complex trauma/PTSD, intermittent explosive disorder, poly‑substance abuse and co‑morbid anxiety and depression. I read that passage at 3.2 as intending to reflect what was recorded on the prior occasion and what is here recorded in this report, the opinion offered as an amalgam of the content of both documents. I do not have the first report.
9. He is attributed with remorse referring to his drug use as the catalyst that brings him down every time. Drug use is a problem and no doubt contributed to his offending and impacted upon his capacity for good sense and judgement in the decisions that he chose to make from time to time, which ultimately have led to his incarceration. Whether he is sincere in his remorse, I am unable to say. I have not heard from him. I have not had the opportunity to assess him or to hear what he might say in response to cross‑examination testing any such representation.
10. There is a history of his family background at 4.3. He recalls a childhood of significant abuse and then said that while he was still in utero his father assaulted his mother so badly that the placenta started to break away with the result that he was born six weeks early. Whether or not that is his perception, there is no further material tendered to support that any such event occurred. Accepting that this is his perception of matters, it does not provide evidence upon which I could conclude that such an event occurred, though one must accept that if this is his perception of what his mother suffered that would be likely to impact upon him if he was a sensitive and caring person. It would also impact upon his perception and attitude towards his father, but again I have not heard from him and it is difficult to make any such assessment.
11. The psychologist records that this was confirmed by his mother but she admitted that she was too afraid to tell the hospital that she had been assaulted by her husband. It is not clear whether this was confirmed to the psychologist or the offender was representing to the psychologist that his mother confirmed it to him, but extending to him the benefit of the doubt in this regard, I could proceed upon the basis that it was confirmation that the psychologist acquired from the mother. I note though that in the sources of information to the psychologist there is no reference to any such information from the mother although there is recognition or reference to the earlier report written on 21 August 2016 which was not tendered in these proceedings.
12. He is attributed with the recollection of severe childhood abuse. He said he watched his mother being physically assaulted on numerous occasions. His mother confirmed these facts. According to the report: "Mr Hale's mother confirmed these facts and stated that when Mr Hale was aged 14, she, her Husband." (Sic)
13. The parents separated and the offender lived with his mother. Once again, this is consistent with information that came from his mother whatever it might have been in precise terms. What is of note is that the nature of the abuse said to have been suffered by the offender and his mother, is not quantified.
14. During the current assessment on 30 June 2020, the offender revealed that he was aged ten and hanging around with youth aged 16, (I do not know whether that means plural or singular), he said that one of these youths sexually abused him and when he told his mother about the abuse, his father assaulted the perpetrator and was incarcerated for this assault and ripping a door off a house. I have no further information about any of that. I have no information regarding the nature of the sexual abuse he allegedly suffered at the hands of this 16 year old person.
15. He has never been married. He has a previous relationship of four years to which a child was born, now aged 11. He was then in a relationship with somebody named Patricia it appears although that might be a reference to the earlier relationship to which the child was born. He re‑established contact with his daughter about seven months ago.
16. His education was at a primary school and then up to Year 9 in a high school. He was asked to leave because of his conduct. He completed a four year course in carpentry and worked for home building companies identified in this report.
17. He began using alcohol at age 14 to 15. He experimented with cannabis about the same time. He said he got up to 20 cans per day after 14 years of age. He began using ice averaging 10 points per day, which seems an extraordinarily large amount, and was self‑administering intravenously. At a previous assessment in 2016 he said he began gambling about 18 months earlier and would gamble three or four times per week spending about $200 each time. He had been gambling every day prior to incarceration spending $200 per day. How he was able to fund that is not explained.
18. The report continues at 5.6, having had the benefit of previously assessing Mr Hale, the author noted his problems occur on several levels with the overriding problem his substance abuse. He has been unable to extricate himself from the drug using milieu for long enough to address underlying problems. He has been accepted into Niagara Lodge at Gosford - a step that the psychologist will support because it would enable him to engage in treatment first to overcome the impact of long term drug use upon his neurotransmitter balance, upset as a consequence of his repeated illicit substance abuse.
19. He requires therapy for his underlying problems particularly his trauma. I made enquiry about the quantification of what the trauma was and how it might impact upon him but I was told that the offender tends to not expand on those matters for whatever reason. That leaves the Court of course in a difficult place when attempting to assess the significance and impact of any such past history - if it can be accepted as reliable. There are representations that he meets the criteria for conduct disorder‑adolescent onset, against a background strongly suggestive of oppositional defiance disorder. The diagnosis of anti-social personality disorder is formally deferred because he is less likely to be appropriately encapsulated under that heading.
20. The report continues with a representation of severe domestic violence and sexual abuse at the age of ten, again not quantified. He has significant problems with impulsivity and with anger outbursts. There would be merit in that view consistent with what is clearly a long term and persistent use of prohibited drugs and to that end, the decision in R v Henry [1999] NSWCCA 107 per Wood CJ at CL and Simpson J and discussion there regarding the impact of such background appropriate for consideration here.
21. The diagnosis of post‑traumatic stress disorder is that it has occurred against a background of complex trauma. How that can be reliably asserted without a careful analysis of what the background might have been, I do not understand. The document then continues with generalities over several pages with reference to various articles which might reflect the extent of the author's learning but has not sufficient focus upon the issues at hand.
22. There is a reference to his history of anger problems upon which it is said that he meets the criteria for intermittent explosive disorder. There was some standardised testing and psychometric testing administered and a risk assessment made, identifying the characteristics that will inform that assessment with the ultimate view upon the score achieved, that he is on the high side of the moderate range for risk of recidivism.
23. His history is such that one could not be confident that he has prospects for rehabilitation, and even if he is accepted as sincere in his wish that he not continue in this lifestyle and pattern, it does not seem that he has the capacity or strength to follow through on any such goal.
24. The ultimate conclusion in the report is that he has a long standing substance abuse problem, a matter which I would accept; complex trauma; post‑traumatic stress disorder, about which I have questions; co‑morbid substance abuse problems and family instability. There are conclusions in those terms expressed by the psychologist, although not adequately supported in the material upon which she relies for those opinions. I will not find in those terms in respect of those limited matters.

Submissions

1. Written submissions on behalf of the offender are well prepared I might say and address everything that can be said about his past. It is conceded that the Rubicon in s 5 Crimes (Sentencing Procedure) Act 1999 has been crossed and he should be sentenced to a fulltime custodial sentence. There are submissions made with regard to the assessment of objective seriousness in accordance with what the High Court said in Muldrock v R [2011] HCA 39. Although objectively serious, the offender's actions were it is said driven by his addiction. I believe that is putting it rather high. No doubt it impacted upon his judgement but it could not be said that his decision to ride a motorcycle at excessive speed in dangerous circumstances putting at risk himself, the police officers charged with the task of interdicting him, and other road users, was conduct driven by addiction, but was conduct he chose perhaps in the exercise of poor judgement.
2. The pursuit did not exceed 60 seconds it is said in the submissions, but of course that must be considered in the light of the nature of the riding upon which he engaged and the fact that he went through a traffic control light facing red to him at excessive speed. The danger involved in that requires no further comment.
3. I do not agree with the proposition that these offences all fall short of the midrange of objective seriousness. I indicated my perception of the offences earlier in this judgement.
4. It is acknowledged that he has a significant drug related criminal history, was at the time on conditional liberty, and the offence of riding dangerously was without regard to public safety - matters that are relevant to the assessment of the sentence as aggravating factors.
5. I have already commented upon the limited scope in aggravation his past offending and conditional liberty have.
6. Mitigating factors include that his conduct did not substantially affect or cause injury or emotional harm or loss or damage to others - though that must be assessed within the context of the danger involved in his manner of riding. Good prospects for rehabilitation, I would not be prepared to find. He has the benefit of his early pleas of guilty.
7. As I indicated, I do not have evidence upon which I can conclude that he is appropriately remorseful and contrite.
8. The submissions deal with the commencement of the sentence and the aspect of totality and the subjective matters that attract a finding of special circumstances. I agree with the proposition that the risk of institutionalisation must be brought or count as a special circumstance and I agree that if he is going to do something more productive with his life, he needs to have a longer period on parole to build upon whatever progress he can make while in custody and hopefully not return to the criminal justice system.
9. The Crown's submissions are equally helpful with the description of the offences, the status of his parole and the aspects of the misconduct informing the objective seriousness in respect of each offence. I have noted all of that and made my findings upon my assessment of the material aided with those submissions and also the submissions provided on behalf of the offender.
10. I should not conclude the judgement without making reference to his traffic record which is atrocious: of seven pages with multiples of driving while disqualified. The more serious of these appear in his criminal history to which I have already referred but in addition he has the accumulated speeding offences, driving contrary to a defect notice, not signalling properly - I need not provide any greater rehearsal of that material.

Sentence

1. There is an aggregate sentence to be imposed after I have identified the appropriate indicative sentence for each offence. The offender is convicted of each of the four offences upon which sentences are here determined.
2. First, for the offence of the police pursuit, I specify a sentence of 2 years and 3 months' imprisonment reduced to that period upon the application of a discount of 25% because of his plea of guilty.
3. The offence of take and drive conveyance, I specify a sentence of 1 year, 10 months and 15 days, also reduced to that level by a discount of 25% for his plea of guilty.
4. The offence of driving whilst disqualified - there is a sentence of imprisonment of 9 months which has been reached upon the application of 25% discount for his plea of guilty.
5. For the offence of driving with illicit drugs there is no penalty upon the application of s 10A Crimes (Sentencing Procedure) Act 1999.
6. There are disqualification periods applicable in each case. I intend to impose the statutory period of disqualification for the police pursuit offence of 5 years, for the driving whilst disqualified of 12 months and for driving with the illicit drug present in oral fluid, a further 12 months. As I understand it, the commencement date will be one calculated by Transport for New South Wales, with regard to the current disqualification to which he is subject.
7. The aggregate sentence that I have identified is one of 3 years and 3 months including the non‑parole period commencing on 30 May 2020.
8. I specify a non‑parole period of 2 years from 30 May 2020 to expire on 29 May 2022 with a further period of imprisonment of 1 year and 3 months during which he will be eligible for parole to expire on 29 August 2023.
9. MENZIES: The matters to be withdrawn are the back‑up offences which are H75423 and they should read 47, I believe. No it is 37. The third summary sheet has an extra 7. The back‑up offences H75423777, sequences 2, 3 and 5, to be withdrawn.
10. HIS HONOUR: I will note that and note that they are withdrawn.
11. Mr Hale, the sentence you have for all of this is 3 years and 3 months including 2 years non‑parole. You will eligible for your parole on 29 May 2022.

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: 10 November 2020