R v Pagett

District Court of NSW|2024-04-05

Category: Sentence Parties: Maxwell John Pagett (the offender) Public Prosecutions (NSW) (Crown) Representation: Counsel: A Booker (for the offender)

Solicitors: Morrisons Law (for the offender) M Rollestone for Public Prosecutions (NSW) (Crown) File Number(s): 2022/273018

Introduction

On 12 September 2022 two lives literally collided - Maxwell Pagett, the offender and his victim a respected police officer - Senior Constable Battley. The impact of that collision will have long-term consequences for them both.
Pagett was on parole after serving a lengthy period in custody for serious offending. He had been released to parole on 18 July 2021. He had spent 11 months in the community. Those months, given his history, was quite a long period without offending.
Pagett was born in 1993. He went into juvenile detention when he was 17 years old. He went to gaol when he was 18. Between July 2011 and October 2021, he spent just under 10 of those 11 years in gaol. He was doing relatively well on parole, he had a home, he had a job, he had a relationship and was caring for children. Then he suffered a number of emotional hits, and he was ill-equipped to deal with them. He recommenced his drug use. Instead of seeking the assistance of his parole officer, he continued with his drug use. He then committed a blatant driving offence. It came to the attention of police. His actions that day reversed the result of those good works.
His actions that day left another citizen, a police officer, injured both physically and psychologically. The officer told me today that he is unable to do the job he loves and the job that gave him a sense of purpose and identity. He told me about the impacts on him and his family from Pagett's one panicked, spontaneous, but criminally reckless act. That criminally reckless act will have repercussions that will reverberate for years.
I start by acknowledging that the community is dependent on the hard work and, at times, courage of police officers for the protection of lives, personal security, and property. I acknowledge that police officers take substantial risks in the execution of their duties, but just because they assume risks does not excuse behaviour of others towards them. The Court must, by the imposition of penalties which, while always proportionate to the crime, attempt to deter others from similar offending. The penalties must indicate the Court's support for police authority in maintaining law and order.
There are a number of matters for sentence today. Four of them will be the subject of an aggregate sentence, others, as their maximums carry only fines, will be dealt with independently. When I sentence for one of the offences, Sequence 11, I will take into account a matter on a Form 1. I do so applying the guideline of the Court of Criminal Appeal in relation to those matters: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39]-[42].

Agreed Facts

There are Agreed Facts before the Court as part of Exhibit B.
It would appear that at the time of the commission of these offences Pagett was intoxicated due to his drug use. Drug use cannot and does not mitigate the sentence or excuse his offending. The fact that his thoughts were disordered made him more unpredictable and thus dangerous.
At about 2pm on 12 September 2022, police travelling in King Street, Warrawong saw two men riding motorcycles, known as 'dirt bikes'. They were Pagett and Matthew Nobrega. Nobrega has been dealt with in the Local Court. They were weaving their bikes between vehicles and continued through a red light. At one stage the offender was observed to accelerate while pulling the motorcycle's front wheel upwards, doing what is known as a 'wheelie', for approximately 100 metres.
A short time later he rode across a median strip towards Nobrega, who was also driving his motorcycle poorly. This offender then rode on the footpath and did another wheelie for approximately 100 metres.
Police driving nearby saw them. They activated their siren, but the riders crossed onto the opposite side of the road and rode onto the footpath. There were a number of pedestrians there at the time. They then rode into grassed areas where police pursuit was impossible.
Shortly afterwards, and having been alerted by police radio, other police saw the bikes and followed them. The two bikes drive into the rear yard of a property in Kanahooka. Police followed them and drove into the yard. When the police exited their vehicles, the offender and Nobrega hopped back onto their bikes and started their engines. One of the police yelled, "Police stop, police stop." They continued to rev their engines.
Senior Constable Battley went towards Nobrega and attempted to remove him from his bike. Senior Constable Hartnett went to grab the offender but was unsuccessful; the offender rode his motorcycle around him. At that point the offender turned and, in an attempt to escape, rode his bike directly towards Senior Constable Battley. The Senior Constable was trying to pull Nobrega from his bike. He had his back towards Pagett. He was struck by the bike. This catapulted the Senior Constable into the air. He fell heavily on his back, onto concrete. The force of the impact caused the offender to fall off his bike and it landed on top of Senior Constable Battley. All the Senior Constable can recall is the sound of an engine revving loudly before feeling what was described as an "incredible impact on his back."
The offender got off the ground and ran away. He left a shoe behind. It caught under the motorcycle. The Senior Constable was left unconscious. Other police removed the bike from him and rendered first aid. He was taken to Wollongong Hospital.
The offender ran. He ran through other premises. He stole a Malvern Star bicycle from one of those premises; the subject of the Form 1. He then rode the bicycle away. He was arrested a short time afterwards and taken to Wollongong Hospital. The reason given in the facts for the Hospital visit was "expected drug ingestion and exhaustion." He was charged later that day and has been in custody ever since.
The material before the Court reveals that Pagett was a disqualified driver. He had been disqualified on 25 June 2021 until 24 May 2024. The motorcycle was unregistered. It was uninsured and had no numberplate.
At Wollongong Hospital Senior Constable Battley was observed to have multiple haematomas and abrasions to his face, hands and limbs. There was an obvious deformity of his left clavicle and right wrist. He sustained the following injuries; a left clavicle fracture, a right distal radius fracture with components of the bone crushed, an ulna styloid fracture and two extracranial haematomas. The injuries required surgery and internal fixation of the clavicle. There was an open reduction internal fixation of the right distal radius. Permanent screws and plates were inserted into both the clavicle and the right radius. He was discharged from hospital on 14 September 2022.
He has had follow-up treatments to assist in his recovery. He has seen a physiotherapist and a hand therapist on a regular basis. He is still suffering soreness. He is limited in weightbearing with his left arm and unable to lift anything above head height without feeling pain. As of today, he tells me he is still suffering daily pain and has suffered psychological sequelae. He requires further treatment. He wears a hand brace. He is likely to suffer further long-term physical and psychological consequences.

Objective seriousness

The offences are objectively serious, not just because of the role of the person injured. There are two significant offences for sentence. One, the use offensive instrument involves the act and the second, cause grievous bodily harm while being reckless as to grievous bodily harm, which punishes the consequence of that act.
While the elements of the offences are, strictly, not in common, many of the purposes of sentencing apply to them. The consequences of both actions are interrelated. Similarly, the background material applies to both matters. Care must be taken when I formulate the ultimate sentence and indicate individual sentences so as not to double-count common matters.
There is a dispute between the parties as to the seriousness of the reckless grievous bodily harm offence, in particular. A judge has a duty, where there is a difference, to resolve those differences.
I accept that Pagett committed the offence while drug-affected, but this does not mitigate, in fact, it can make the matters worse, for the reasons I have already indicated. I accept he was panicked, and that he was thinking only of escape. He was not thinking of the consequences to himself let alone the consequences to the officer. He had clearly committed offences and had been directed to stop. I accept that this case is different from a case where multiple blows with a weapon are struck to an officer: R v Franks [2005] NSWCCA 196 at [26]-[27].
Mr Booker submits that the injury was unfortunate, and the matter falls well short of midrange. I cannot accept that submission.
Officer Battley was seeking to exercise his lawful functions. Pagett had been caught in the act of committing a serious crime and the courts, as I have said, adopt a serious approach with respect to offences such as this, committed against police officers: R v Sharpe [2006] NSWCCA 255 at [72].
I accept that Pagett did not want or intend to hurt Officer Battley, he was not thinking about anything other than escape. But he was in control of, and deliberately using, what could be a potent offensive instrument, the motorcycle. A moment's reflection could have prevented this offence.
The use of a weapon was short-lived. It was reckless. He did not deliberately set out to hurt the Senior Constable, but the bike was used that way in a confined space. Taking into account only objective features, it is accepted that the level of seriousness is so high that only custodial sentences of some length could meet the purposes of sentencing.
There are two other disputes between the parties. One is whether the harm suffered is "substantial" within the meaning of s 21A(1)(g) Crimes (Sentencing Procedure) Act 1999 (NSW) as an additional aggravating feature and whether, as two, as the prosecution submits, the offence is a "midrange offence" or, as the offender submits, "well below".
For my own part, I do not believe it necessary to locate objective seriousness of offences on a hypothetical range and that such attempts can be unhelpful: Decision restricted [2022] NSWCCA 246 at [11]; Paterson v R [2021] NSWCCA 273 at [32]-[33]. But I am obliged to resolve disputes about such matters: Owen v R [2022] NSWCCA 214.
So far as the 'grievous bodily harm' is concerned, while reckless; the use of the motorbike, the immediate circumstance of its use to evade apprehension, the role of the officer, but importantly, the immediate and continuing injury, physical and psychological, all indicate how very serious this offence was. I cannot accept the defence submission. It is not well below any notional range. It is a sad offence with a tragic consequence.
That being said, it also has to be acknowledged that there are, in the scale of horrors dealt with by this Court, many more substantial types of grievous bodily harm, even more than the serious injuries suffered by this officer. In the scheme of things, while I accept the harm set out in the Agreed Facts, this is not a matter that is aggravated because of a finding of substantial harm.
Pagett was driving while disqualified. Court orders have to be respected and he was showing no respect for those Court orders. If he had obeyed the simple direction not to drive, he would not be in this predicament.
There must be a custodial penalty for that offence. He was also driving an unregistered motorcycle but doing so recklessly in a manner dangerous to the public. Again, a moment's reflection is required. What he did occurred in the middle of the day, at busy location. He was doing wheelies while there were people around. Again, this is a serious example of its type. He is not a fit and proper person to hold a driver's licence. It will be some time after his release before he ever receives the right to drive or ride again.

Form 1

The matter on the Form 1 has to be taken into account, but in the scheme of things, had it been dealt with independently, it may not have led to a custodial sentence. In context, it appears more a 'clearing of the books': Attorney General's Application.

Maximum penalty and criminal record

In formulating a sentence, careful attention is to be had to the maximum penalty. There is no standard non-parole period. The maximum penalty is one of many guides to the exercise of my discretion.
Here, the offender's criminal history is relevant to determining the proper sentence. It indicates this offending, although an offence of violence and quite distinct from his other matters, was not uncharacteristic; he has continually disobeyed the law. While his prior history cannot result in a sentence which is disproportionate to the seriousness of the offence, a more severe penalty is warranted because of that record: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [477]. At the same time, his record must also be taken into account when I come to consider the question of institutionalisation.
Pagett was doing well, relatively, on parole. These offences were the things that breached that parole. Accordingly, the sentence should date from 12 September 2022, the day he went into custody.

Victim Impact Statement

Turning now to the Victim Impact Statement read to the Court today by Officer Battley. A Victim Impact Statement attests to the personal harm suffered by the victim as a direct result of the offence, including any economic loss or harm. It serves the very practical purpose of drawing to the offender's, the Court's, and the community's attention the personal and economic damage and harm caused by this crime.
The material, which is part of Exhibit A, includes particulars which go beyond those relating to personal harm, actual or psychological or emotional distress. It notes the harm this offence caused to his relationship with other persons.
I have to apply the Sentencing Act to that document, but it is important that the officer be given the chance to fully ventilate the consequences to him. I will, as I explained when it was given, have to restrict the details that I take into account to those that the statute allows.
Sadly, the Senior Constable suffered the type of injury and consequences that one would expect if someone was recklessly run down from behind by a motorcycle.

Subjective case

Most sentencing proceedings do not involve a general joinder of issues between prosecution and offender. Most sentencing proceedings do not require the calling and testing of evidence. Here, so far as the subjective material is concerned, there are a couple of matters that are contestable, but they are not of great significance in my overall assessment of the facts.

Psychological report

I have the benefit of a comprehensive psychological report from Ms North. She is respected by the Court. She has applied her testing to the history she was given. I am aware that that testing is designed to identify where a person is attempting to put false or inconsistent material before the court. She does not simply parrot what fell from the offender: Lloyd v R [2022] NSWCCA 18; Devaney v R [2012] NSWCCA 285 at [88]; Luque v R [2017] NSWCCA 226 at [116]; Pym v R [2014] NSWCCA 182 at [79].

Remorse

I am also assisted by a letter from the offender. But I must be guarded. He was not tested and the expressions of remorse he feels are tempered by an attempt to excuse what he did. And there is no excuse for what he did.
He says, "I am truly sorry for what I've done and my actions and most of all the pain and hurt I've caused to the officer involved and his family." He tells me, as the other material also indicates, that he has "struggled with drugs and alcohol." He says that his brother was killed after a police chase. He does not "blame anyone for his death", but he says that, "it stays with you."
He says, "When I [saw] the police I was in fear of my life". I cannot give that assertion any weight as it was not able to be tested. I am quite sure that he feared the police, as his background led him to fear the police and people in authority. But he also knew he was on parole, and he was in breach of his parole. He knew he had done the wrong thing and, to an extent, taunted the police by the wheelies and by attempting to evade them. He had been caught and he sought to evade arrest, which is the element of the offence that I have already taken into account and will sentence him for.
He says, "I don't want to waste more of my life in prison and punish my kids and family, your Honour". He says he "did not deliberately set out to hurt anyone", and I accept that. He says he is "truly [and] sincerely sorry".
To the extent that he is able, he has sought to express remorse and regret, but I am sure it will take him a long time, if ever, for him to truly appreciate the consequences of his actions.
There are letters from friends, those who know him, indicating that he is not generally regarded as violent, that he was trying to find his way and that he still has community support. They note that he has experienced institutionalisation and institutional abuse.
He struggled, when he was a child, from a background that could properly be described as deprived. He is technically blind and requires contact lenses. He has struggled with basic literacy and learning. He has very little personal resources to guide him and efforts were being made by friends, partners, and their family to provide him with some stability before the breakdown that led to the commission of this offence.

Drug use

Pagett attempted to get bail from this Court earlier this year, to go to a rehabilitation centre. I accept that that attempt shows, unlike previous terms spent in custody, he wasn't to take the help that might be offered to change his life.
I will structure the sentence to allow for him, if possible, to attend a rehabilitation centre while on parole. He needs to learn to live in the community, because he has not really had much opportunity, apart from the year before the commission of this offence, to live a normal life in the community.
His drug use does not excuse his offending, but it can help explain the impulsivity of it. It is relevant here. It provides assistance to the offender's subjective case as the origin and extent of his addiction, and his attempts to overcome it, will impact on his prospects of either recidivism or reform: Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273].
There is material before the Court that goes to his personal background and history. There is other material which, on balance, I can accept that indicates he was subject to sexual abuse while in juvenile detention when he was 17. While correlation is not causation, his criminal history show that the time in juvenile detention when he was sexual assaulted corresponds with his serious criminal record commencing and continuing. All of his times in the community after his first detention were measured in months not years.
Given the hour, I will not go through all of the details of his history given through Ms North. She believes that he has suffered symptoms of Post-traumatic Stress since he was 17 and that he used drugs as a maladaptive coping mechanism. But there had been Children's Court matters before then. Prior to the abuse event, he had already been caught in a cycle of drug use and offending.
Pagett has the capacity to make positive changes. He is now on a Buvidal depot program, and a treatment plan can be put in place. That requires trauma-informed counselling and engagement with a psychologist and continuing drug rehabilitation programs and engagement with the Community Restorative Centre. Focus must be on, his drug use, the risk of reoffending and dealing with underlying psychological problems.
Ms North summarises Pagett's personal history. He was born into a dysfunctional family. His father was an alcoholic. He was subject to physical abuse by a stepfather. There was domestic violence in the family home. His brother's death of had a significant impact on him. That deprived background and his eyesight problems interfered with his schooling. He was using illicit drugs well before he could exercise rational choices.
Ms North says his, "impoverished upbringing characterised by his early exposure to domestic violence and abuse within his home environment" led him to use drugs. She notes that there are "unresolved trauma issues", which has corresponded with drug and substance abuse. He requires assistance to deal with them.
There is evidence of here of: 1. Childhood deprivation: Bugmy v The Queen; [2013] HCA 37 (2013) 249 CLR 571; 2. Childhood trauma, as a victim of assaults, witnessing domestic violence and sexual assault: Nasrallah v R [2021] NSWCCA 207; and 3. Also underlying mental health issues: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
A person with a background such as this should not be treated in the same way as a person who did not have that background.
That background does mitigate the sentence here because Pagett's moral culpability is less than the culpability of an offender whose formative years were not so marred: Bugmy at [40]; R v Millwood [2012] NSWCCA 2 at [69]. Common sense, common humanity, dictates that he will have fewer emotional resources to guide his behavioural decisions.
But that does not mean that he does not bear any moral and legal responsibility for what he did. He does. The principles of sentencing that require recognition of the harm done to police officers, punishment to ensure that he thinks before he acts, punishment so that others think before they behave as he did, are still required. I must still take them into account.

Parity

When considering the two traffic matters, the respective degrees of culpability of Pagett and Nobrega must be considered - "like must be compared with like": Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. But that principle only applies to the traffic matters. Given the penalties that were imposed on Nobrega by Judge Sutherland SC, I do not think this offender could have any significant sense of grievance from the penalties that I intend to indicate.
I have had a chance to refer to other cases such as Bolamatu v R [2003] NSWCCA 58, but every offence and every offender is different and requires individual consideration.

Submissions

I have considered the written and oral submissions of Mr Rollestone, solicitor for the Director of Public Prosecutions, and Mr Booker, of counsel for the offender. I am indebted to them for their careful exposition. I have sought to address them in these remarks. With the exception of the two matters which I have already identified there was not much between them.
A submission was made by Mr Booker that the community would be best served by the balance of, or this sentence being served subject to intensive correction in the community. There are a number of reasons why that submission must be rejected, but the most important is the threshold of a sentence of less than three years, even making allowance for the plea of guilty, could not be met: Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, adopting R v Zamagias [2002] NSWCCA 17 and DG v R (No 1) [2023] NSWCCA 320.

Special circumstances

There will be a finding of special circumstances that will enable a longer period on parole than might otherwise be the case. The need for the offender to have continued monitoring and supervision, his need for alcohol and other drug counselling, and perhaps residential rehabilitation, are important. He has to get as much help as he can get in custody, and he has to take that help. But the period in custody must be the very minimum that the purposes of sentencing require, even though I have taken into account the strong subjective case made on his behalf: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Totality

I also have to evaluate the overall criminality involved in all the offences and determine what, if any, downward adjustment is necessary in the aggregate sentence to achieve an appropriate relativity between the total of the criminality and the total of the sentences: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ). As I will be giving an aggregate sentence, I am required to indicate an appropriate sentence for each offence and then structure the sentence so that it is just and appropriate to the totality of his crimes: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63].
That creates a number of practical problems. I do not simply add up all of the indicated sentences. At the same time, a person cannot escape punishment where they commit multiple offences. But here, while they are different, each offence form part of the one incident and the two most serious matters are interrelated: Van Ryn v R [2016] NSWCCA 1 at [228]-[230]; R v Wheeler [2000] NSWCCA 34 at [36]-[37]; R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46]; R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41 at [27]; R v XX (2009) 195 A Crim R 38 at [52].

Instinctive synthesis

Synthesising all those matters. The sentence I impose is only one indicator of the seriousness with which the Court views the crime committed. The Court must take into account all relevant considerations. This means, so far as Constable Battley is concerned, that the direct correlation between the harm done to him, and the time served by the offender, is impossible. A victim of a serious crime, where they were injured and suffered continuing harms, should never be equated, or measured against, the punishment actually inflicted.
The purposes of sentencing point in different directions: Veen v The Queen (No 2). There are a number of complex matters that have to be resolved in every sentence and this one has some intricacy.
Deterrence is important, both personal and general, but the matters that go to reduce the offender's moral culpability point in the other direction. The need for him to receive trauma-informed counselling as soon as possible has to be balanced against the obligation of a court to vindicate the dignity of a victim of violence and express the community's disapproval of the offending by a retributive sentence: Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [52]-[58].
The community can be protected from Pagett while he is in custody, but he has to be returned to the community. And, while he did reoffend in a serious way while still on parole, on the last occasion he was released he did better than the previous parole period. If he comes out worse than he went in this time, then someone else is going to get hurt and he will return to custody.
Motivation is important, particularly for a person with a history of long-term incarceration and a trauma history which means that he has few emotional resources. A sentence's severity should not operate to destroy his prospects for the future. The community will not be protected if he becomes institutionalised. The community will not be protected if he loses hope and the steps that he is taking in custody to promote his rehabilitation are diminished. Pagett must have a date to work towards. At the same time, he has to be appropriately and adequately punished for what he did.
The sentences I am intending to indicate will be reduced by 25% to reflect the utilitarian value of his guilty pleas. I have taken care that the process of accumulation does not erode the benefit. I confirm that there will be a finding of special circumstances.

Orders

I have to indicate sentences for each offence.

Sequence 1: For the drive while disqualified - there will be a sentence of 6 months' imprisonment with a driving disqualification of 2 years.
Sequence 2: For the drive recklessly - there will be a sentence of 7 months' imprisonment and a driving disqualification of 12 months.
Sequence 6: In relation to the use offensive instrument - there will be an indicated sentence of 1 year and 3 months.
Sequence 11: For the cause grievous bodily harm offence - there will be an indicated sentence of 3 years. The Form 1 has been taken into account.

The aggregate sentence is one of 4 years. It will date from 12 September 2022. There will be a non-parole period of 2 years and 6 months which will date from 12 September 2022 and expire on 11 March 2025 on which date the offender will be eligible for consideration for release to parole. There will be a parole period of 1 year and 6 months which will date from 12 March 2025 and expire on 11 September 2026.
To reiterate: A sentence of 4 years, 2 years, 6 months minimum, backdated to the date he went into custody. Release on 11 March 2025. Total sentence expires 11 September 2026, reflecting a finding of special circumstances and taking into account the pleas. Release to parole will only be after the State Parole Authority is satisfied that community safety can be met by that release.
Sequence 8: Is to be withdrawn and dismissed.
There are four other matters:

Sequence 3: Use unregistered vehicle;
Sequence 4: Use uninsured vehicle;
Sequence 5: Use numberplate not correctly affixed.

Given the nature of the penalty imposed for the other matters, it is inexpedient to impose any other penalty. They will be dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act.
A copy of Ms North's report can go with the warrant. The prosecution exhibits can be made available to the press, but there are no photographs. The facts refer to a CCTV, but that was from private premises. It's not an exhibit. I don't have access to it so it's not on the Court file.

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: 24 May 2024

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