R v Simpson

Agreed Facts

1. I have the benefit of a comprehensive set of police facts, Exhibit A, and a compilation CD prepared from footage taken by the Police Air Wing.
2. In August 2023 a Nissan utility had been stolen from Helensburgh. Its numberplates were replaced with other stolen plates. At about 3.37pm on 5 September 2023 police saw the vehicle in Point Street, Bulli. They saw Joshua Simpson near the vehicle. He was known to police. Instead of stopping and cooperating with police he got into the driver's seat of the Nissan and drove away. At one stage a police officer drew his firearm as he yelled directions to stop at him.
3. A police chase started. It went on for some time. Almost all of the streets in the areas through which he drove are suburban streets, built up areas, with 50 kilometre speed limits. At various times the police pursuit was terminated because the pursuing police felt there was a risk to road users and pedestrians. The route of the vehicle as described in the facts was a complex one to follow, even for someone like me, who has lived in the area for over 40 years.
4. At various times the offender's vehicle moved from suburban streets onto cycle and pedestrian ways. At times the vehicle's progress was obstructed by road barriers, but despite this he was able to find a way forward by utilising pedestrian bridges, the cycle way, or the cleared area beside the cycle way. At various times police driving at low speed tried to cut him off. He was able to drive his vehicle around them.
5. The recordings show that at time he slowed out of consideration for pedestrians or moved onto the grass edge of the cycle / pedestrian way to avoid pedestrians, horse riders and cyclists. At other times he drove the vehicle around blind corners towards pedestrians and cyclists, who were, understandably, oblivious to the fact that a car might be proceeding down that roadway. At times he mounted the gutters. He drove around a sports oval, which thankfully, was not being used. At times he cut through residential driveways. At Thirroul train station he reversed away from a police car seeking to cut off his escape, causing a collision with a van.
6. He passed multiple road users and pedestrians. When he was on the roadway, he exceeded the 50 kilometre speed limit and passed other vehicles on the inside parking lane or on the outside by crossing over double lines.
7. Eventually, while driving above the speed limit in a suburban area, he lost control as he sought to evade a police car that was in front of him. His vehicle collided heavily with the side of that police car. The collision led to its airbags being deployed. A police inspector inside the vehicle was rendered unconscious and trapped in inside. The police inspector had to be cut from the car. He had bruising, whiplash, muscular and skeletal injuries.
8. As a result of the collision the vehicle lost a front wheel. Despite a missing wheel travelled it a further 40 metres where it collided with a car which was stopped, waiting for the lights to turn. A mother and her two small children in child seats were inside. Thankfully for all concerned, the children were unharmed, but the mother experienced neck and shoulder pain. As a result of the impact, that car then collided with another car stopped at the intersection.
9. The offender fled the scene of that last collision. He was caught soon after and has been in custody ever since.
10. When the matter was before the Local Court, Simpson said he would plead guilty to six offences, four of which were committed to this Court for sentence. Another two were sent to the Court pursuant to a 166 Criminal Procedure Act 1986 (NSW) certificate. It is evident from the facts and the PolAir footage that multiple offences pursuant to the Road Transport Act 2013 (NSW) were committed that afternoon, but I sentence him only for the matters present before the Court.

Charges and maximum penalties

1. The following matters are before the Court:

• Sequence 20 - Police pursuit, not stop and drive recklessly, , s 51B(1) Crimes Act 1900 (NSW), the maximum penalty is 5 years imprisonment. The automatic licence disqualification is 5 years, the minimum period is 2 years.
• Sequence 22 - Drive conveyance taken without consent of the owner, s 154A(1)(b) Crimes Act, maximum penalty 5 years imprisonment.
• Sequence 25 - Use offensive weapon to prevent lawful detention, s 33B(1)(a) Crimes Act, maximum penalty 12 years imprisonment.
• Sequence 27 - Drive furiously in a motor vehicle and cause bodily harm, s 53 Crimes Act, maximum penalty 2 years imprisonment, automatic licence disqualification 5 years, minimum disqualification 2 years.
• Sequence 23 on the 166 certificate - Drive motor vehicle during disqualification period, s 54(1A) Road Transport Act, maximum penalty 6 months imprisonment, disqualification automatic period 6 months, minimum 3 months.
• Sequence 26 the other offence on the 166 certificate - Not stop and fail to give particulars to the injured driver, s 287(1) Road Rules 2014 (NSW) which has a maximum penalty of a fine.

Maximum penalties

1. Maximum penalties are important guides to the exercise of my sentencing discretion. They convey Parliament's view of the relative seriousness of the offences.
2. I have to evaluate so far as each offence is concerned a number of actual and potential risks and harms. When one looks at the seriousness of each matter, which indicates that they are guides, one does not simply start at the maximum and make proportional deductions from them.
3. Although the s 33B, use weapon, offence carries the highest maximum penalty, in my assessment it is not the most serious offence Simpson committed that day; that would be the police pursuit.
4. I will be imposing an aggregate sentence. Because the guilty pleas were entered in the Local Court, I will reduce each sentence to be indicated by 25% to reflect the utilitarian value of the guilty pleas. I will take care that the process of accumulation does not erode that benefit.

Basic principles

1. A sentencing judge has to take into account the often contradictory purposes of sentencing set out both by the common law and in s 3A Crimes (Sentencing Procedure) Act 1999 (NSW). When sentencing, a judge is required to identify all of the factors that are relevant to the individual and then aggregate a sentence, discuss their significance, and make a value judgment as to the appropriate sentence given all the factors: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] (McHugh J).
2. In written submissions, Ms McMahon, who appears for the offender, referenced Yun v R [2017] NSWCCA 317 at [47]. She submitted that the matters that would reduce this offender's moral culpability by comparison with others, this in in turn, she says will have an impact on my assessment of objective seriousness. If only it were that simple.

Objective seriousness and moral culpability

1. My starting proposition is that all relevant material must be synthesised. I do not take a staged approach to sentencing. I do not double count matters in aggravation or mitigation.
2. However, I also have to make an assessment of the objective seriousness of the crime and matters causally related to it. All factors which bear upon the seriousness of the offence should be taken into account unless excluded by statute. They can include factors personal to the offender that are casually connected and / or materially contributed to the commission of the offence. That can include any mental disorder or mental impairment suffered by the offender: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112]. In assessing anyone's case, but particularly in a case such as this, I must also consider the moral culpability of the offender, that is their moral blameworthiness to the offence. Generally, an assessment of an offender's moral culpability does not form part of the determination of the objective seriousness of their offending. They are a separate but related concepts. A determination of moral culpability can involve consideration of a wider set of subjective factors affecting an offender than an assessment of objective seriousness: DS v R; DM v R [2022] NSWCCA 156 at [63]-[96].
3. I have the benefit of comprehensive reports from Ms Edwige, a psychologist, and Ms Ferguson, a social worker. Those reports provide abundant evidence to show that, on balance, that Simpson's childhood and adolescence was marked by profound disadvantage. That disadvantage had an inhibitive effect on; his development, his development of social values, on the acquisition of a moral compass, and on his capacity to make behavioural decisions in accordance with prevailing social norms.
4. Ms Edwige postulates that Simpson has two underlying disorders; Complex Post-Traumatic Stress Disorder and Substance Disorders which were, she says, contributing factors in this offending and had a significant impact on Simpson's ability to make considered and appropriate choices and impaired his ability to make reasoned judgments, think clearly, regulate his behaviour and fully appreciate the wrongness of the act.
5. With respect to Ms McMahon's submission the approach I prefer is that set out by Simpson AJA in R v MJ [2023] NSWCCA 306 at [4]-[5]. Her Honour noted by reference to Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [42]: "… the effects of profound deprivation do not diminish over time … [and] are to be given full weight in the determination of the appropriate sentence in every case."
6. Their Honours explained that by adding at [43]: "The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
7. Implicit in those observations is recognition that a childhood or adolescence marked by profound disadvantage may have an inhibitory effect on the development of values, on the acquisition of a moral compass, and on the capacity to make behavioural decisions in accordance with prevailing social norms. The relevant causal connection is between the dysfunctional background and the offender's impaired socialisation and adjustment to, and conduct in accordance with, those social norms. To search for a causal connection between the dysfunctional background and the offence in question is to bypass the larger issue and to focus too narrowly on the offence. It ignores the compromise of the "capacity to mature and to learn from experience": Bugmy at [43].
8. The plurality in the High Court were, as I understand [40] and [43] of the judgment, acknowledging the pervasive effect of profound deprivation, which is not confined to the commission of a single offence (or series of offences).

A proportional sentence

1. That accepted, every sentence indicated must be proportionate to what was done. So too should the aggregate sentence. In a direct sense Simpson's reduced moral culpability, while it is hard to make a direct correlation to what he did, helps explain what he did, why he ran, why he did not stop, why he did not leave the car and why he kept driving. But those factors do little to reduce the purely objective matters that have to be considered at this stage in the sentencing process. That assessment of objective seriousness is essential to set the parameters of an appropriate sentencing outcome.
2. When I come to synthesise all relevant issues, however I will, as Simpson J suggests, not "bypass the larger issue", nor will "I focus too narrowly on the offence[s]" committed: R v MJ at [4]-[5].

Police pursuit

1. The community is dependent on the hard work and, at times, courage of police officers for the protection of lives, personal security and property. Police officers take substantial risks in the execution of their duties. Where a driver blatantly ignores police and seeks to flee, they put police and other road users at risk. To ignore, and persistently ignore as here, police directions, shows a high degree of moral culpability. This high degree of moral culpability while driving must be taken into account as part of my assessment of the objective seriousness of the offence: Whyte v R [2002] NSWCCA 343; (2002) 55 NSWLR 252. The seriousness of the offence can be assessed by considering the distance covered, the nature of the driving, relative speeds, both in relation to speed limits and driving conditions, the time of day, the number of traffic and other pedestrians about, and the risk to others, including police.
2. It is abundantly clear that Simpson had no real concern for others or himself. Although at times he did pause in his driving to allow pedestrians to get out of the way, at other times he ignored the real and obvious risk to them.
3. He had multiple opportunities to stop driving. He could have abandoned the car, but he kept driving for over 20 minutes during peak hour. In most cases the speed driven was too fast for the circumstances. I have already indicated his overtaking on the inside and over double lanes of traffic.
4. On the cycle path, any speed was too fast. At times he drove around blind corners. While no one was playing a game on the oval, he did come in and out of driveways. He caused a number of collisions. Multiple citizens of all types were exposed to risk. Many citizens witnessed his blatant criminality. The police did what they could, but he was able to evade them. What they could do was restricted by their obvious concern of the safety of others.
5. By any measure the police pursuit offence and the driving involved was a very serious example of its type.

Drive stolen conveyance

1. This car was taken from a person. The offender is not charged with taking the vehicle, but he used it. And it was not returned to its owner as it was when taken.
2. Unless you are lucky enough to own a home, a motor vehicle is generally the most expensive and valuable item a person can own. Not all vehicles are insured, and even if they are these thefts lead to higher premiums that are passed on to the whole community. To have your car used by criminals and then have that car destroyed, effectively means not just a financial loss, but the loss of an ability to move freely about the community.
3. The offender well knew that he should not have been using that car. His reasons for doing so, that he was homeless, cannot not excuse what he did. Again, while probably the least serious of the offences for sentence, it is still, when all things are considered, a matter that calls for a custodial penalty.

Use weapon to avoid apprehension

1. Police pursuits have potentially serious consequences. This offence illustrates one of them. A car can be a dangerous weapon. Although police are commonly but not exclusively the victims in this case, that the victim was a police officer is relevant to my assessment of objective seriousness. Context is everything. The inspector was doing his best to prevent further crime and to prevent what inevitably occurred, a collision at an intersection in the middle of the afternoon. He was attempting to set up a blockade before a busy intersection to prevent what occurred next, a collision where people, men, women and children might have got hurt.
2. Instead, the offender caused a collision. It was not just a swipe, it was a heavy enough collision to cause the airbags to deploy, trapping the inspector and rendering him unconscious. It was by any measure a serious offence.

Drive furiously causing bodily harm

1. The real substance of the offence is not just the dangerous driving, it is the dangerous driving and its consequence of bodily harm to the victim. The driving was the culmination of the police pursuit, and he will be punished for that. It occurred after the collision with the police vehicle, and he will be punished for that. I do not double count.
2. The driving immediately prior to the collision was on three wheels for 40 metres. It is hard to say whether he had the capacity to stop, but there is no evidence that he tried to. He was still trying to escape police; he was still trying to drive with three wheels as he approached a busy intersection and stationary vehicles.
3. Thankfully for all concerned his victim was not seriously injured - the harm she suffered was relatively modest. Her two children escaped injury. It remains a serious example of its type.

Drive while disqualified

1. The offender has never been able in a position to obtain a driver's licence. He has a history of blatantly ignoring Court orders. The material before me indicates he thinks he can drive, and he gets pleasure out of driving. It is obvious he is not a good driver. He has no concept of a driver's responsibility for other road users, nor has he any idea of why he was disqualified and why he should not have been driving a car. He thought only of himself.
2. Again, while there are many reasons why drove, and he will be punished for the driving while disqualified, it is by far, the least serious matter for sentence before me today.

Not give particulars

1. That offence is one example of the multiple of road transport offences committed this day. It is a fine only offence and will not form part of the aggregate sentence.
2. While every one of the traffic matters committed were individually and collectively serious, the sentencing exercise today is focused on the other offences. It would be inexpedient in my view, and possibly harmful to his progress for rehabilitation, to impose a fine in this matter. I will be dealing with it pursuant to s 10A Crimes (Sentencing Procedure) Act.

Driving disqualifications

1. If he is to be a proper father for his child on release, Simpson will need to learn how to lead a normal life in the community. He will have to find a job. Obtaining a job without a driver's licence will make life harder for him. The ability to gain a driver's licence or if he is of good behaviour, have his driving disqualification period reduced, will be much more difficult if he has outstanding fines. These commonly prevent a person from getting a driver's licence, creating greater obstacles to his path to rehabilitation.

Victim impact

1. The driver of the vehicle who was hurt did not provide a Victim Impact Statement. That does not give rise to an inference the offence had little or no impact upon her: Crimes (Sentencing Procedure) Act, s 30E. One can presume it did. Although given her children were not injured, I am sure she would have felt great relief.
2. There is no Victim Impact Statement from the police inspector before the Court. The harm to him was not assessed in the matter for sentence concerning him.
3. This offending had an impact on our community. It would have had an impact on; every person who witnessed the event, every person who saw the car go past, every person who had to take evasive action.
4. Offences such as this cause many in the community to question whether the police can protect them. Offences like this that lead to persistent calls for tougher and tougher penalties to be imposed upon young people who use vehicles in the way Simpson did. As this offence makes clear, tougher and tougher penalties did not prevent Simpson committing this offence, and while tough penalties can remove him from the community for a period, he has to be returned to it.

Other factors

1. Each of the sentences was aggravated because it was committed in breach of two promises to be of good behaviour; the first made to get parole, even though that parole was to expire on the following day. The second was a promise made only a few days earlier to a court to be of good behaviour. That promise was a precondition for the ICO that was imposed on 28 August 2023. In order to avoid going back to gaol he had to make a promise to the Court to be of good behaviour and to obey directions of Community Corrections. He broke those promises.
2. Simpson has a criminal history. It is relevant to determining the proper sentence. But a prior history cannot result in a sentence disproportionate to what was done. He is obviously not entitled to the leniency given to first offences. Although he is still young, his continued offending, particularly continued driving offending, shows that this offence was not an uncharacteristic aberration. He has demonstrated his continuing disobedience towards the law.
3. Given every sentencing exercise is ultimately about protection of the community from future crime, his currently trajectory is disturbing. It has to be reversed, and as I said while he must be removed from the community, he will be returned to it. He should be returned to the community better able to cope with the vicissitudes of life than when he went in. Sadly, gaol rarely equips a person for life outside the prison walls.

Case for the offender

1. Simpson wrote a letter to me. It is not supported by evidence on oath, but what he says is not controversial. Had he given evidence that fact of itself would not have enabled me to reach any different conclusions. As is clear from the letter, and all the material before me, he still has a lot of growing up to do.
2. He said he does not want to make excuses. He acknowledges he needs some serious rehabilitation. He says: "I have tried [in custody] to do positive things." He says: "I have a … daughter now and I want to be there for her and live a better life." He has done courses.
3. He expressed his regret. And so far, as I believe he is able, showed some insight and remorse when he spoke to his psychologist and Ms Ferguson. At the moment I am not sure whether he is capable of looking out for himself, let alone his family. And I doubt he presently is able to think about the consequences of his actions on others.
4. I have the benefit of a comprehensive psychological assessment report from Ms Edwige and a psychosocial report from Ms Ferguson. I have been provided with extracts from the Bugmy Bar Book, which I have found helpful and assist in my reading of the various reports: The Bugmy Bar Book Project (2023). They are so comprehensive that I simply do not have time this afternoon to go through them in detail. They do however enable me to reach the conclusions I have already alluded to about his moral culpability.
5. It is quite clear that while he is in custody, treatment plans have to be put in place. He will need, as Ms Edwige notes, to see a culturally safe, trauma informed psychologist. He will need to be referred to a culturally responsive drug and alcohol service. He will need to remain on the Buvidal drug replacement and treatment program.
6. His various problems are long standing. They had their origin in his early family history to which I have referred. Whether any assistance is delivered through Indigenous cultural programs or otherwise, I will leave for the experts.
7. Ms Ferguson recommends he engage with a full-time drug rehabilitation program or, on release, go to a community restorative centre and engage with transitional alcohol and other drug programs. That is; programs such as Lived Well and Watershed. There are also programs available in custody which I hope he is given access to.
8. There is evidence that he was seriously assaulted in gaol. An assault in custody indicates, as should be obvious, that he could not be protected. Judges do not ignore the lived experience of our gaols. We are aware how violent they are. Even after the wounds heal a prisoner assaulted in custody will inevitably suffer anxiety and other concerns as they are being kept or returned to the same environment where they were previously assaulted.
9. Gaols are nasty, violent places. We send people to gaol for punishment, not to be punished. Prisoners have no control over who they associate with and no control over their immediate safety. If they cannot be protected in the past it requires no imagination to conclude that the person who has been seriously assaulted in gaol will find incarceration, at the very least, more worrying than someone who has not.

Mental health

1. Simpson's Complex Post-Traumatic Stress Disorder, his substance abuse problems, do work to ameliorate the sentence because his moral culpability is not the same as others who do not suffer from such conditions. They will make his custody a greater burden for him. He will need to learn to deal with these problems in the gaol environment and that will be much more difficult for him.
2. There are there are many paths to the reduction of an offender's moral culpability. Here they involve the effects of childhood deprivation and mental health issues. Often, as here, they are inextricably interrelated. Where a person's childhood or adolescence had been affected by disadvantage and trauma and mental health issues this can inhibit their development of prosocial values: Bugmy; R v MJ. They will be given full effect in this sentencing exercise.
3. Both of his parents spent time in gaol, and he is now in gaol unable to provide assistance to his partner and his young child. The removal of parents from a family can result in fracturing of a family unit. It can disrupt a family and, as his history shows, increase the risk that children end up in the child protection system or the criminal justice system. Where at all possible, parents should be able to be restored to their children so they can provide positive role models.

Youth and immaturity

1. Although an adult, Simpson is still young and immature. Legal principles recognise that immaturity can be a significant contributing factor to offending. The law recognises that as people mature there is a capacity to grow and learn. Emotional maturity and impulse control develop progressively for some people that means it may not be developed until a person's mid 20s: Clarke-Jeffries v R [2019] NSWCCA 56. Immaturity is another thing that impacts on good decision making.
2. The material I have before me and those of the Victorian Sentencing Advisory Council in D Ritchie, "Does Imprisonment Deter? A Review of the Evidence" (April 2011) Sentencing Advisory Council Victoria 1, indicate that the more we gaol young immature people the greater the risk of their recidivism, that is their prospects of committing further offences on release. Young people who are placed with others who have antisocial attitudes after they are released tend to associate with such persons, as occurred when this offender was released previously. Being in custody appears to have a negative effect. It also impacts on their capacity to find and hold a job and to, as I said, lead a normal life in the community, in turn, contributing to reoffending.

Structure of the sentence

1. The need to accumulate this sentence and the evidence in relation to the offender's need for psychological treatment and drug and alcohol treatment, residential rehabilitation, the evidence of hardship in custody, and the fact that he will need help adjusting to normal community life on release, all provide a basis for a finding of special circumstances and the reduction of the amount of time that he must spend in custody. But that minimum period must also properly reflect the seriousness of his various offences and the other purposes of sentencing.
2. I have to formulate as part of this process an appropriate starting date for this sentence. He was arrested on 5 September 2023 and is serving the balance of his ICO until 28 June 2025. The ICO was breached, but an ICO can be restored at any time by the State Parole Authority if a person is able to be released. He has not been able to be released because he was bail refused for these matters and awaiting sentence for them. Had these matters not existed and there had just been a simple breach of the ICO he may well have been released.
3. The formulation of a total sentence, taking into account time served on other matters, is complicated by me having no information about the earlier matters, police pursuits, and the disjointed way in which those two police pursuit matters came to be dealt with in the Local Court. All things considered, I propose there must be some independent punishment for that earlier matter, and I propose to start this sentence after he has served six months from when he went into custody on 5 September 2023, so I propose to start this sentence from 5 March 2024.
4. All of relevant matters have to be considered. I have to formulate a sentence for each matter, I am required to then impose a total sentence structured so that it is just and appropriate to the totality of his crimes. That includes here the matter where he was serving a sentence for the breached ICO. I have to evaluate in a broad sense the criminality involved in each of the offences, make adjustments to the sentences to be indicated and achieve an appropriate relativity between the total criminality and the totality of the individual sentence.

Submissions

1. I was assisted by comprehensive written and oral submissions by Ms McMahon of counsel and Mr McGonigal, solicitor for the Director of Public Prosecutions. I have sought to address the matters that they raised in this judgment. On matters of principle, they were not far apart, and each appropriately stressed the matters to which they and I have referred. I am indebted to them.
2. In her submissions Ms McMahon tried to paint, with the help of the report of Ms Edwige and Ms Ferguson, as optimistic a picture as could be placed. Appropriate focus was placed on his current motivation and the motivating influence of his partner and child. He will be assisted if the recommendations of Ms Edwige and Ms Ferguson are taken into account and applied by State Parole Authority and Community Corrections. To that end a copy of the reports will be sent with the warrant.

Synthesis

1. I have to take into account all material facts. Some here aggravate the sentence, some here mitigate. There is no golden rule. The purposes of sentencing often conflict, that is what makes any sentencing exercise difficult.
2. On one hand, deterrence of others who might be tempted to behave as Simpson did, and the need to signal to him that his behaviour was totally unacceptable and the consequence of such behaviour, are important. But so too is the protection of the community by returning him to the community a better person than when he went in.
3. In structuring this sentence I have to also take into account motivation and the impact of accumulated sentences. Too severe a sentence may result in a disproportionate level of punishment. That in turn, could operate to increase Simpson's risk to the community on release. This can arise: 1. If he becomes institutionalised by serving too long a sentence and adapting to the prison environment; 2. That the small steps that he has presently taken, and his showing of insight may diminish; and 3. One has to be very careful that any hope of normal life after the end of his term of imprisonment is not impeded, sometimes the word 'crushed' is used.
4. But what is proportionate can often depend on perspective of the observer, whether they are a victim, the many community members who were impacted on by this offence, the appeal court, or the offender and his family.
5. Proper principle must inform any sentencing exercise, and principles should, so far as possible, be applied consistently. But every sentence and every person to be sentenced is individual. Simpson cannot be blamed for not being given any of the advantages that we typically expect for children growing up in our community. From the day he was born he was set on a path where he is now his capacity to make rational decisions has been impaired. He still lacks capacity to make fully rational and informed decisions. And sadly, any maturing must occur in the custodial environment. Gaols are not the proper place for a developing brain, nor are they places where one learns how to lead a normal life or how to be a father. The odds were, and remain, stacked against him.
6. Simpson will have to earn his release. That will not be easy. I am far from confident that he can on release remain crime free, but I will structure this sentence to give him what opportunity I can. I make this comment for his benefit: "The magistrate who gave you the ICO was giving you a break. You did not take that break and you ended up in Court again, and more by good luck than anything else, someone was not seriously hurt by what you did. You were given an opportunity; I will give you another. But there will come a time where courts will not give you opportunities and will remove you from the community for as long as your crimes demand. I say that only because my job is to try and prevent future crime, and if you do not commit future crime, then everyone who has put the work into your progress will be vindicated. If you do, then you can spend the rest of your life in custody. If that happens it will be because you have hurt someone else, and that is what I really want to prevent more than anything else. If you do not think about yourself, it is hard to think about others. You have motivation but you thought only of yourself and did not think of the consequences to others which is why you will be serving this sentence."
7. I give full weight to mitigating matters but, returning to what Simpson AJA said in MJ, it is also important not lose sight of other sentencing considerations. They include; recognising the effect of the offending on victims, expression of the community's disapproval of the offending, and both general and specific deterrence: Munda v State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.
8. A proper sentence, even taking into account the many matters raised in mitigation, marks the Court's view of the seriousness of the crime. Here there will be a significant reduction in sentence because of the offender's background. But others have to know the retribution that will fall upon them if they commit similar crimes. Judges say that in the hope that others will be deterred. But nothing said by a court, nor the heavy penalties fixed by Parliament, stopped Simpson on this occasion. There is still a need for a deterrent sentence. When others get behind the wheel of a motor vehicle, they have to understand the need to respect the safety of others, police directions and court directions.

Orders

1. The sentences I indicate will take into account the 25% reduction. The aggregate sentence will reflect my findings of special circumstances and the applications of the principles of totality to which I have earlier referred.
2. I indicate the following individual sentences:

• Sequence 20 - Police pursuit: 2 years and 7 months, disqualification from driving 3 years.
• Sequence 22 - Drive stolen conveyance: 9 months imprisonment.
• Sequence 25 - Use offensive weapon to prevent apprehension: 1 year, 10 months imprisonment.
• Sequence 27 - Drive furiously cause bodily harm: 1 year, 1 month imprisonment, 2-year driving disqualification.
• Sequence 23 - Drive while disqualified: 4 months imprisonment, 2-year driving disqualification.

1. The aggregate sentence will be 3 years and 9 months imprisonment. It will commence on 5 March 2024 with a non-parole period of 2 years and 1 month, making the offender eligible for consideration to release on 4 April 2026. There will be a non-parole period of 1 year, 8 months reflecting my finding of special circumstances which will commence on 5 April 2026 and expire on 4 December 2027.
2. Sequence 21 is withdrawn and dismissed.
3. Sequence 26 - There will be a conviction, but it is inexpedient to inflict any other punishment and I deal with it pursuant to s 10A Crimes (Sentencing Procedure) Act.
4. To recap for the offender's benefit - The sentence commences six months after you went into custody on 5 March 2024. You will be eligible for consideration for release by the State Parole Authority on 4 April 2026. That release will be dependent upon community safety / issues being satisfied and obviously is an incentive to you to engage in whatever rehabilitation programs can be organised both in custody and for release to parole. You will be released and supervised and monitored in the community for a period of 1 year and 8 months. The total sentence will expire on 4 December 2027. Copies of the reports to go with the warrant.

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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: 22 January 2025