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[2017] ACTSC 298
Supreme Court of the ACT
2017-02-23
Mossop J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - hinder police from lawful investigation - burglary - damaging property - aggravated dangerous driving - using an offensive weapon likely to endanger life to prevent lawful apprehension - culpable driving causing grievous bodily harm - failing to appear in accordance with a bail undertaking - using an unregistered vehicle - using an uninsured vehicle - driving while disqualified - failing to stop a vehicle for police - aggravated dangerous driving - resisting a public official - driving with a prescribed drug in oral fluid - pleas of guilty - convictions for previous offences - consideration of subjective circumstances - application to adjourn the hearing to participate in drug rehabilitation courses - breach of suspended sentence
Crimes Act 1900 (ACT), ss 27(4)(b), 29(4), 32(2)(c), 194
Crimes (Sentence Administration) Act 2005 (ACT), s 110
Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 20
Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)
Road Transport (General) Act 1999 (ACT), ss 65, 69
Road Transport (Safety and Traffic Management) Act 1999 (ACT), ss 5C, 7(1), 7A(1)
Road Transport (Third Party Insurance) Act 2008 (ACT), ss 5C, 17(1)
Road Transport (Vehicle Registration) Act 1999 (ACT), s 18(1)
The Queen v Todd Elphick (No 2) [2015] ACTSC 23
Wronski v Raue [2012] ACTSC 87
Williams v the Queen [2016] ACTCA 15
1. The offender Derek Joseph Williams has pleaded guilty to eight indictable offences:
2. He has also pleaded guilty to 11 related summary offences, each of which has been transferred to the ACT Supreme Court for sentence:
3. In order to make these reasons more readily understandable, I will identify the maximum penalty for each of these offences at the point where I indicate the sentence that I propose to impose for the offence.
4. Pleas of guilty were entered on 7 December 2016. This date was the first, second or third appearance for the various offences. The offender had first appeared in the ACT Magistrates Court on 8 November 2016 and was charged with offences relating to the events of 24 October and 6 November 2016. On 15 November 2016, he again appeared in the Magistrates Court and was charged with the offences relating to the events on 6 November and 8 November 2016. The matter was adjourned to 7 December 2016. On that date, he was charged with additional offences, relating to 7 October, 1 November and 8 November 2016.
5. In the circumstances, 7 December 2016 was the earliest date at which he could reasonably be expected to have entered a plea. Although it was not the first possible date for most of the charges, it was the earliest reasonable date, having regard to the seriousness of the offences and the failure to bring all of the charges on the first or second occasion upon which he appeared. Applying the provisions of s 35 of the Crimes (Sentencing) Act 2005 (ACT), I have applied a discount of approximately 15 per cent on account of the plea of guilty. I will indicate the actual discount in relation to each of the sentences later in these reasons. In discounting the sentence by reason of the early guilty pleas, I have taken into account the strength of the prosecution case against the offender, having regard to the fact that these offences were ones in relation to which there was no attempt to avoid detection and the number of witnesses and other evidence, including video evidence that was available.
6. I have also recognised that a trial of the charges would, although probably not being particularly complex, be potentially lengthy because of the number of witnesses involved. It would also have required Sergeant Mark Barrett, a policeman injured on 8 November 2016, to have given evidence. While he would not fall in to the category of a vulnerable witness, the giving of evidence of incidents that occurred on that day and the consequences is not likely to have been an easy or pleasant process for him.
7. On 7 October 2016 at about 6:00am, police attended the offender's residence in Kambah to execute a s 194 Crimes Act 1900 (ACT) search warrant on the premises and on the offender. The offender was not at home when the police arrived. At about 6:05 the same morning, the offender telephoned ACT Police Communications and identified himself to police. The offender stated that he was aware that police were at his home, after his son had phoned him to advise that the police were raiding his house. The offender made specific demands of police, threatening to hurt a female he claimed was with him, if police did not leave his house immediately. The offender refused to disclose his location, or who he was with to police. Police who were at the offender's house to execute the search warrant were subsequently advised by police radio about the offender's threats to harm a female if they did not leave immediately. Police resources were diverted and additional resources were deployed to attend the residential address of all known female associates of the offender to conduct welfare checks in the light of the threats made by the offender.
8. The offender was not located at any of the addresses attended by police. Police also attended the address of his partner Alisha Monaghan, but were unable to locate either Ms Monaghan or the offender. At about 8:45 the same morning, Sharelle Charles attended the offender's residence in Kambah and spoke to police. Ms Charles informed the police that she is the mother of Ms Monaghan. Ms Charles told the police that one of Ms Monaghan's friends had spoken to Ms Monaghan on the phone earlier that morning and during the phone call Ms Monaghan stated that she was not okay before ending the call. Ms Charles was unable to provide any further details to police. As a result of the offender's threats to harm another person if his demand for police to leave his house immediately were not met, police were hindered in executing a valid search warrant at his residence. This gives rise to the charge of hindering police from lawfully investigating a matter by threatening to endanger the safety of another (CC 2016/12804).
9. On 5 October 2016, the offender gave a bail undertaking to the Magistrates Court to appear on 24 October 2016 in relation to other unrelated charges. On 24 October 2016, the offender failed to appear and a first-instance warrant was sworn for his arrest. This gives rise to the charge of failure to appear, (CC2016/11787).
10. At about 4:00am on 1 November 2016, the offender attended the business premises of Builders Trading, Builders Supplies and Hardware located at 31 Yallourn Street, Fyshwick. At the time the premises was closed for trading and had been locked securely. The offender forced entry into the premises by smashing inwards a small glass window near the front entrance. This gives rise to the charges of burglary (CC2016/12673) and damage property (CC2016/12690). In gaining access, the security alarm was activated. Upon gaining access to the premises the offender moved furniture and miscellaneous equipment around, searching all drawers and cupboards within the office area and an interior glass door was smashed. At 4:06am, a security guard became aware of the alarm activation at the premises. At about 4:13am the security guard arrived at the premises and observed a white sedan adjacent to the building with male passengers drive away from the location.
11. Police forensics attended the location the same morning and located apparent blood on a broken piece of glass near the front entrance where the glass window had been smashed inwards. Police forensics obtained a sample of the blood for the purposes of DNA comparison. On 10 November 2016, police were advised that a comparison yielded a match and that the blood sample on the broken glass belonged to the offender. At no time did the owner of the premises give permission for the offender to enter the premises outside of trading hours. The Director of Public Prosecutions sought a reparation order in the amount of $1500 in favour of the owner of the premises, Builders Trading Cooperative, to cover the cost of repair associated with the burglary.
12. At about 3:50pm on 6 November 2016, police attended the offender's residence on Livingston Avenue, Kambah in an attempt to execute the first-instance warrant. Police formed a cordon around the residence to prevent the offender from leaving. Police spoke to the offender's nephew, Dillon Edwards, through the front door of the house. Mr Edwards stated that the offender was not inside and that he was home alone with his dog. A dog could be heard barking from inside the house. Police phoned the offender and whilst speaking to him over the phone, they could hear a dog barking in the background. The offender told police that he was in Queanbeyan at his mother's house. While police were speaking to Mr Edwards at the offender's house, police positioned at the rear of the house observed the offender close to the back door of his house. Police at the offender's house continued to speak to the offender over the phone and continued to hear a dog barking in the background. During the conversation, the offender told police that if they entered the house he would "top" himself. He said he was "sick of this shit" and that he wanted to be left alone and that if police did manage to catch him, he would not be going without a fight. At about 5:10pm that same day, Mr Edwards exited the back door of the offender's house and jumped over the back fence. Police from the front of the residence made their way to the backyard to assist in dealing with Mr Edwards.
13. After police had moved from the front of the residence, the offender emerged from the front of his house and entered the driver's seat of a blue Subaru bearing New South Wales registration CA67LM. A fully marked police Holden Commodore sedan was parked directly behind the offender's vehicle. The offender reversed his vehicle, colliding with the front of the marked police sedan. The offender revved his engine loudly and again reversed, ramming the front of the marked police sedan. The police sedan sustained damage to its front as a result of the offender ramming it. This gives rise to the charge of damaging property (CC2016/1181). The offender then reversed sharply and with such speed that his vehicle collided with a steel post supporting the carport, causing the post to snap and the roof of the carport to collapse. The offender then reversed his vehicle towards the roadway and sideswiped the marked police sedan.
14. The offender continued reversing his vehicle towards the roadway before making a deliberate turn to aim his vehicle directly in to the path of a fully-uniformed police officer on a fully-marked Yamaha police motorcycle. The police motorcyclist, fearing for his safety, took evasive action and disembarked his motorcycle. The suddenness of the events and the threat to the officer is indicated by the fact that the officer was still connected to his motorcycle via the radio cable attached to his helmet when the offender rammed in to the police motorcycle. This gives rise to the charge of using an offensive weapon likely to endanger life to prevent lawful apprehension (CC2016/11788). The offender struck the marked police vehicle with such force as to cause the motorcycle to move back and fall heavily on to its side and to sustain damage as a result. This gives rise to the charge of damaging property (CC2016/1180).
15. Fully uniformed police officers attempted to stop the offender from driving away by drawing their firearms and yelling at the offender a number of times to stop. The offender ignored the requests of police and drove away at high speed along Livingston Avenue towards Sulwood Drive. The offender waved his arm out of the driver's side window at police while beeping his horn, as he drove away. This conduct gives rise to the charge of failing to stop vehicle for police (CC2016/11782). At the time, the offender was a disqualified driver until June 2017. This gives rise to the charge of drive whilst disqualified (CC2016/11781). Checks on the offender's vehicle revealed that its registration had expired in July 2015 and it was therefore unregistered and had no compulsory third party insurance. This gives rise to the charges of using an unregistered vehicle (CC2016/11779) and using an uninsured vehicle (CC2016/11780).
16. Livingston Avenue, Kambah is a built up residential area with houses along both sides of the street and bicycle and pedestrian paths linking the residential streets. At the time of the incident there were a number of pedestrians walking along footpaths in the immediate vicinity. The manner of the offender's driving was dangerous in light of the nature, condition and use of the road, as well as the amount of traffic on the road at the time. The offender drove in this way to avoid police and in doing so, he failed to stop when requested by police and placed the safety of vulnerable road users at risk. This gives rise to the charge of aggravated dangerous driving (CC2016/11783).
17. On 8 November 2016, the first-instance warrant for the offender remained outstanding. About 8.30 that same morning, a member of the public contacted police to advise that the offender was seated in the driver's seat of a white Subaru bearing ACT registration YLC23T in the driveway of 8 De Lacy Place, Chisholm. A short time later, police cordoned off De Lacy Place and a police aerial camera was deployed to assist in monitoring the movements of the offender. The AFP Specialist Response Group ('SRG') was called in to assist with intercepting and apprehending the offender. At about 9.42 the same morning, the offender started to reverse out of the driveway of 8 De Lacy Place. Seated in the front passenger seat of the vehicle at the same time was Coral-Lee Friebel. As the offender was reversing his vehicle, marked SRG vehicles approached from behind in an attempt to block and stop the offender from driving away. As the SRG vehicles approached from behind, the offender reversed his vehicle quickly and performed a sharp turn, resulting in a minor collision between the offender's vehicle and the SRG vehicles.
18. About this time, whilst the offender's vehicle was still stationary, Ms Friebel quickly exited the offender's vehicle from the front passenger side door. Meanwhile Sergeant Barrett exited one of the SRG vehicles and ran towards the front of the offender's stationary vehicle in order to get to the offender's driver's side door. Sergeant Barrett was wearing full police uniform at the time. As the officer ran towards the offender's stationary vehicle, the offender accelerated forwards, striking the officer and causing him to fall onto the bonnet of the offender's vehicle before landing on the ground. The offender has then continued to accelerate his vehicle forward, narrowly missing striking the officer a further time. The offender made no attempt to slow down or to stop the vehicle after striking the officer. After striking Sergeant Barrett, the offender has continued to accelerate through the nature strip, weaving between trees at the front of two houses along De Lacy Place. As the offender attempted to drive away, he collided again with SRG vehicles as they tried to box the offender's vehicle in, to stop him from leaving. The offender's vehicle eventually came to a stop after being boxed-in by SRG vehicles.
19. The offender remained in the driver's seat of his vehicle and refused to exit his vehicle after being directed a number of times by fully-uniformed officers to do so. The offender had to be physically removed from his vehicle by police. After being placed under arrest, the offender resisted against the officers by kicking out and struggling to free himself. This gives rise to the charge of resisting a public official (CC2016/11854).
20. The incident was captured on both police aerial camera and a neighbouring property's security camera. The aerial camera provides high quality video of the events that occurred and well-illustrates the dramatic and aggressive attempts by the offender to evade police and the extreme dangerousness of his driving.
21. After being taken into custody, the offender was conveyed to the ACT Watchhouse where he was charged and subjected to an oral-fluid analysis test. The result of the test was a positive indication for methamphetamine. The remaining portion of the offender's oral-fluid sample was sent to the ACT Government Analytical Laboratory for analysis. The laboratory analysis of the offender's oral-fluid sample confirmed the presence of a prescribed drug, namely methamphetamine. This gives rise to the charge of drive with prescribed drug in oral fluid (CC2016/12413).
22. The offender was not offered the opportunity to participate in a recorded interview due to his level of intoxication at the time of his custody. Whilst in custody the offender continued to yell at police, "another one bites the dust" and said words to the effect of "those cunts can't lock me up forever, you copper dogs cunt are fucking dead".
23. Checks conducted on the offender's vehicle revealed that its registration had expired on 2 September 2016 and therefore the vehicle was unregistered and not covered by compulsory third-party insurance. This gives rise to the charges of driving unregistered vehicle (CC2016/11830) and driving an uninsured vehicle (CC2016/11831). At the time the offender was a disqualified driver until June 2017. This gives rise to the second charge of drive while disqualified (charge CC2016/11829). De Lacy Place, Chisholm is a cul-de-sac residential street with houses on both sides of the road and a speed limit of 50 kilometres an hour. The offender's manner of driving as he attempted to evade police was dangerous in the light of the nature, condition and use of the road. His driving placed at risk the safety of vulnerable road users. The offender also had a prescribed drug in his oral fluid at the time. This gives rise to the charge of aggravated dangerous driving (CC2016/11853). The statutory aggravation is the presence of the prescribed drug in the offender's oral fluid.
24. Sergeant Barrett was conveyed to the Canberra Hospital where he was treated for injuries sustained as a result of being struck by the offender's vehicle. He sustained two fractured vertebrae in his spine, the third and fourth vertebrae of the lumbar spine. The officer was unable to return to work for a considerable period of time due to his injuries. The offender's manner of driving was negligent when he failed, unjustifiably and to a gross degree, to observe the standard of care that a reasonable person would have observed in all the circumstances, resulting in grievous bodily harm to Sergeant Barrett. This gives rise to the charge of culpable driving causing grievous bodily harm (CC2016/11828).
25. It is an aggravating feature of these offences that at the time they were committed, the offender was on conditional liberty in three respects. First, the offender was on bail at the time when he committed all offences now before the Court. He was placed on bail in the Magistrates Court on 5 October 2016 for earlier unrelated driving charges, including a charge of driving while disqualified. The offender's bail conditions prohibited him from driving a motor vehicle, being in the driver's seat of a motor vehicle or being in possession of any implement that can be used to start a motor vehicle. The offender breached all his bail conditions on 6 November 2016 and again two days later on 8 November 2016. Second, at the time of committing these offences, he was also on bail in New South Wales in relation to drug charges, namely, supply prohibited drugs on an ongoing basis and three counts of supplying a prohibited drug in a small quantity. The drug charges related to early 2013. The charges first appeared in the Queanbeyan Local Court in February 2015 and the offender was placed on bail and scheduled to reappear in the Queanbeyan District Court on 28 November 2016. Third, at the time of committing these offences the offender was on five suspended sentences, previously imposed by the ACT Court of Appeal on 13 May 2016.
The impact of the incident of 8 November 2016 upon Sergeant Barrett
26. The aerial surveillance video of the 8 November 2016 incident shows that after being knocked down and almost run over by the offender, Sergeant Barrett got up and moved quickly towards where the other police vehicles were attempting to stop and detain the offender. I infer that he did so in order to assist with that exercise, notwithstanding his injuries. After the apprehension of the offender he was then stopped and treated for his injuries. He was taken to hospital. He suffered a fracture of the transverse process of the L3 and L4 vertebrae, sprain to his left ankle, damage to his ring finger and his right hand and numerous cuts and bruises to his left leg and both arms. The back injury has been painful and caused restrictions on his day-to-day activities. The pain from his back injury was consistently very significant for around eight weeks. He received regular physiotherapy for about six weeks after the injury and is likely to receive hydrotherapy in the future. The injury to his left ankle was bruising only and has now recovered. His right ring finger was not broken but he still suffers from discomfort and occasional sharp pain in his finger. He suffered cuts and bruises on his left side and both arms which had substantially recovered within about two weeks of the incident.
27. The medical report prepared by Dr Jane Van Diemen, dated 14 December 2016, indicates that the fractures of the transverse process of the L3 and L4 vertebrae were displaced and that treatment was conservative with no surgical repair being undertaken. The report indicates that significant injury can occur as a result of damage to the L3 and L4 structures because important nerves and nerve roots provide sensation to the hips, legs and feet and damage to those nerves can result in temporary or permanent loss of sensation.
28. The Victim Impact Statement describes that following his release from hospital on the day of the incident, Sergeant Barrett was unable to move by himself for the first few days. He needed assistance, dressing and undressing, showering and going to the toilet. This continued for about two weeks, during which his sleep was difficult. This has had an impact on his wife because he was unable to assist with the care of his young children or the domestic chores for a period of six to eight weeks.
29. His confidence as a driver and pedestrian has been affected. His capacity to perform fully his duties as a team leader of police driving and as a trainer in close personal protection training has been reduced because of the pain and restrictions on his movement that he suffers. He perceives that his professional reputation and standing within those areas of expertise has been reduced. Because of his back injury, he has also been unable to fulfil his role as a police diver since the incident. This has also affected him financially and through a loss of professional reputation and satisfaction. He also identifies an impact upon his wife and children as a result of the limitations on his physical capacity.
30. The offender has an extensive criminal history. While I have examined that history in some detail, it is not useful to set out more than a summary in these reasons. That criminal history was described by the Court of Appeal in Williams v the Queen [2016] ACTCA 15 at [10] in the following terms:
The appellant had previously been convicted of numerous offences in both the Territory and New South Wales, including: common assault (numerous convictions); assault occasioning actual bodily harm (multiple convictions); maliciously inflict grievous bodily harm; trespass on premises; negligent driving; drive while licence suspended; aggravated burglary - intent to commit theft; dishonestly taking a motor vehicle without consent; driving while disqualified (multiple convictions); using unregistered/uninsured motor vehicle; possess drug of dependence; possess prohibited drug; dangerous driving; not stopping vehicle if signalled by police; using unregistered vehicle; larceny; receiving stolen property; goods in custody suspected of being stolen; possessing housebreaking implements; custody of an offensive implement in a public place; resisting or hindering police; and, destroying or damaging property.
31. Since that time, he has been sentenced for driving related offences by the Magistrates Court and sentenced to a period of imprisonment of 16 months with a nonparole period of 12 months. This is described further later in these reasons.
32. While the criminal history does not involve offending conduct of the most serious kind, it is clear that sentences imposed in the past have failed to deter the offender from further serious offending conduct. It is clear that having regard to the history, there is very little room for leniency.
33. The pre-sentence report identifies that the offender is an Aboriginal man born in Queanbeyan. He is 34 years old. He is the oldest of four children born to his parents' relationship. He has several halfsiblings from his parents' prior relationships. He enjoyed good relationships with his parents prior to their deaths. He has three children to a former partner aged 17, nine and eight years' old. He has three children to a subsequent partner aged eight, five and four years' old. These younger children were removed from their parents' care and were taken in by Mr Williams' first partner, so that the siblings could stay together. He identified to the author of the pre-sentence report that his children were his motivation for him to address his substance-abuse issues and to cease offending, however the author noted the same statement from Mr Williams at the times of past offending.
34. Prior to his arrest he lived in government rental housing. He has limited schooling, leaving school in Year 9. He has in the past worked as a painter but has not been employed since 2008. He was in receipt of unemployment benefits prior to his arrest. He previously abused alcohol and cannabis. He reported ceasing use of those drugs in 2009 although the author of the presentence report noted the inconsistency of that statement with some documentation that the offender had prepared. He first used methamphetamine in 2009 and commenced regular use after his father's death in 2010. He completed a period at Oolong House, a residential drug rehabilitation facility, but recommenced methamphetamine use following his mother's death in 2016. It is clear that he sought to attribute his methamphetamine use to the death of his mother and father. He recognises that his drug use is a significant factor in his offending behaviour. He reported to the pre-sentence report author his desire to abstain from drug use in the future and told the author that he had applied to multiple residential rehabilitation programs.
35. He has no physical health concerns. He has a history of self-harm attempts while in custody and he is currently prescribed anti-depressant medication. Consistently with his early plea of guilty, he reported to the pre-sentence report author that he took responsibility for his actions and stated that he was ashamed of his behaviour and disappointed that he offended again. He is assessed by the pre-sentence report author as being a medium to high risk of reoffending. The author identifies multiple criminogenic risks including substance-abuse issues, mental-health issues, anti-social values and attitudes. The report identifies that he has an anti-social peer network and no longer has parental support due to his parents' deaths. The author identifies, as a positive factor, that he appears to be motivated to attend a residential rehabilitation program.
36. The Court Alcohol and Drug Assessment Service report also discloses more information about his previous self-harm attempts, reporting a suicide attempt in 2012. He also reported to the author of that report that he had experienced drug-induced psychosis at the time of his most recent arrest in November 2016; however the report also disclosed that his self-report of psychotic symptoms was inconsistent with a mental health assessment conducted on 8 November 2016 on his induction to the Alexander Maconochie Centre ('AMC'). He also reported that at the time of his charges, he had been using up to 3.5 grams of crystal methamphetamine intravenously per day. He also used "flakka" or "alpha-PVP", another drug which has stimulant properties. He claimed to the author that he had no memory of the events that led to his arrest. He reported continuing use of methamphetamine whilst in gaol.
37. So far as his previous attempts at drug rehabilitation are concerned, the report identified that he had undergone detoxification in April 2014 and then attended the Karralika Therapeutic Community in 2014 for a period of two weeks. He attended Oolong House Residential Drug and Alcohol Treatment Centre in 2015 and was abstinent for 18 weeks, the longest period since 2010. He returned to drug use when subsequently incarcerated at the AMC. He reported attending the Solaris Therapeutic Community drug rehabilitation program in the AMC for one month. He made several applications for entry into a residential rehabilitation program. The report identifies that he would be likely to benefit from residential rehabilitation. It also recommends grief and loss counselling, a literacy program and treatment for his depression.
38. Counsel for the offender submitted that in the light of the history of attempts at rehabilitation and the gap in the offender's criminal history between 2002 and 2007, the Court should adjourn the sentencing proceedings, so as to give the offender the opportunity to participate in and complete drug rehabilitation courses, within the prison whilst serving the nonparole period of the existing sentence of imprisonment to which he is currently subject as a result of the orders of the Magistrates Court. He then submitted that it might be appropriate that, if the offender had demonstrated significant progress towards his rehabilitation, his sentence for the present offences might be able to be served by an Intensive Corrections Order. I do not accept this submission. In my view, notwithstanding that the rehabilitation of the offender, so that he no longer engages in offending conduct related to his drug use, would be in the community's and his own long-term interests, the gravity of the offending conduct demonstrated by the present offences is such that the matter should be dealt with by way of the imposition of a sentence of imprisonment at this point.
39. The parole authorities will be in a better position to assess the progress made by the offender for the purposes of determining whether he should be granted parole. In my view, his progress towards rehabilitation and his capacity to avoid offending conduct will be better assessed at the point when he becomes so eligible. I do not accept the suggestion, promoted by the offender to the author of the pre-sentence report and the CADAS report, that his drug use has been driven by his grief at his parents' death. While clearly his drug use is a significant criminal driver, the evidence and information before the Court is not sufficient to make the causal link between grief and drug use sought to be made by the offender.
40. As at 8 February 2017 the offender had spent 92 days in custody, after being arrested on 8 November 2016. As at today's date he has spent an additional 15 days in custody, bringing the total to 107 days.
41. The offender is currently serving a sentence of imprisonment as a result of orders made by the Magistrates Court on 8 February 2017, the sentence of imprisonment related to six charges of driving while disqualified and a charge of aggravated careless/reckless/dangerous driving. On each of the drive while disqualified charges, the offender was sentenced to four months' imprisonment. On the aggravated careless/reckless/dangerous driving charge he was sentenced to six months' imprisonment. There was a degree of concurrency between the sentences for each offence, so that each offence was only cumulative to the extent of two months. The total sentence was 16 months' full-time imprisonment backdated to commence on 8 November 2016 with a nonparole period of 12 months. The effect of the backdating is that the period that the offender has spent in custody since his arrest on 8 November 2016 is time served in relation to the sentences for that series of offending conduct.
42. Counsel for the offender pointed to s 63(4) of the Crimes (Sentencing) Act and submitted that notwithstanding that the Magistrates Court sentences of imprisonment had been backdated to the date when the offender first came in to custody, the period in custody prior to his sentencing for the present offences was required to be taken in to account under sub-s 2 of s 63. This approach appears to be consistent with the decision in Wronski v Raue [2012] ACTSC 87 and The Queen v Todd Elphick (No 2) [2015] ACTSC 23. The requirement of s 63(2) that pre-sentence custody must be taken into account does not compel backdating in circumstances where there has already been backdating, so as to take that period in to account. In other words, it does not compel what might be described as double dipping. It only requires what is fair. As Refshauge ACJ said in Elphick at [90]:
It would very rarely be fair (and so in accordance with justice and proper sentencing procedures) not to take fully into account the whole of a period of pre-sentence remand custody wholly attributable to the instant offences.
43. However, as his Honour then pointed out, where some part of the pre-sentence custody is referrable to imprisonment for other offences, the relevant principle is that of totality. Having regard to the fact that the pre-sentence custody was taken into account by backdating the Magistrates Court sentence to the date when the offender first came into custody, I consider that the appropriate approach is to take into account the pre-sentence custody by noting that the accused was given full credit for that period in the sentence of the Magistrates Court and to address the relationship between the Magistrates Court sentences and the sentences that are imposed today when considering the totality of those sentences.
44. Upon conviction, the offender will be in breach of the following five suspended sentences imposed by the Court of Appeal on 13 May 2016: see Williams v the Queen. The offences are:
(a) aggravated burglary (CC2014/5180);
(b) theft (CC2014/5181); drive while disqualified (CC2014/5175);
(c) furious/reckless/dangerous driving (CC2014/5176); and
(d) drive motor vehicle without consent (CC2014/5177).
45. Under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), as a result of the offender's breach of his Good Behaviour Order that was a condition of the suspension of the sentence imposed by the Court of Appeal, the Court is obliged to cancel the Good Behaviour Order and either impose the suspended sentence or resentence the offender for the offences.
46. In circumstances where the breach involves very significant offending conduct, such as that disclosed in the present case, I consider it appropriate to simply impose the suspended sentences. Because the sentences were suspended after a substantial portion of at least the principal one had been served, it is necessary to identify that portion of the sentence which was suspended. That approach will maintain the relationship of accumulation or concurrency between the various sentences imposed as a result of the order of the Court of Appeal on the 13 May 2016. I note that there was a period between May 2016 and September 2016, prior to any conduct demonstrated to have been a breach of the offender's Good Behaviour Obligations. I have taken this period into account as a factor relevant to the setting of the nonparole period.
47. In relation to the aggravated burglary charge, the offender had served one year, two months and 11 days of a one year and eight month sentence. The balance of the sentence is five months and 20 days. In relation to the theft charge, the offender was sentenced to four months' imprisonment, one month of which was cumulative upon the aggravated burglary charge. The whole of this sentence is yet to be served. In relation to the drive disqualified charge, he was sentenced to four months' imprisonment, one month of which was to be cumulative upon the theft charge. The whole of this period is yet to be served. In relation to the furious driving charge, he was sentenced to four months' imprisonment, one month of which was to be cumulative upon the drive disqualified charge. The whole of this sentence was yet to be served. In relation to the drive a vehicle without consent charge, he was sentenced to a period of five months' imprisonment.
48. The published decision of the Court of Appeal contained an error in relation to the dates, which was corrected in chambers by a judge of the Court of Appeal on 16 May 2016. Three months of the sentence were cumulative upon the furious/reckless/dangerous driving charge. Having regard to the fact that this offending conduct was conduct which was separate from and unrelated to the conduct the subject to the sentence imposed by the Magistrates Court, I consider it appropriate that the balance of the sentences that are imposed today be largely cumulative upon the sentence imposed by the Magistrates Court. The situation is made more complex as a result of issues of concurrency and the sequence of the charges which I will refer to later in these reasons, in relation to the issue of totality.
49. Having regard to the number and seriousness of the offences, the offender's criminal history and the maximum penalties, I consider that in relation to each of the offences for which imprisonment is available, imprisonment is the only appropriate sentence. I now turn to address each of the sentences and do so by date in chronological order.
The 7 October offence: hindering police from lawful investigation by threatening another (CC2016/12804)
50. The maximum penalty for the offence of hindering police from lawfully investigating a matter by threatening to endanger the safety of another, contrary to s 32(2)(c) of the Crimes Act is 10 years' imprisonment. The offending conduct in this case falls within the mid-range of objective seriousness for this type of offence. It is notable that there is no requirement as part of the offending conduct that any threat be carried out. Police resources were diverted as a consequence of the making of this threat. In relation to this offence, the appropriate sentence is a sentence of six months' imprisonment, which I will reduce to five months' imprisonment because of the plea of guilty.
The 24 October offence: failing to appear in accordance with a bail undertaking (CC2016/11787)
51. The maximum penalty for this offence under s 49 of the Bail Act 1992 (ACT) is two years' imprisonment, a fine of $30,000 or both. This is the offender's third conviction for that offence, previous convictions occurring in 2001 and 2011. Having regard to the subsequent events, it is clear that not only was the failure to appear intentional but it involved an element of defiance of the offender's obligations. The appropriate penalty for this offence is three months' imprisonment, which I reduce to two months on account of the plea of guilty. It will be cumulative upon the earlier sentences.
52. The maximum penalty for the offence of burglary, contrary to s 311 of the Criminal Code 2002 (ACT) is 14 years' imprisonment, a fine of $210,000 or both. The circumstances of this offence are in the low-to-mid range of objective seriousness. Although this is the first conviction of the offender for this offence, his previous offending conduct included an aggravated burglary in 2014 for which the Court of Appeal resentenced him to one year and eight months' imprisonment which was suspended after one year and two months. This is one of the breach matters which I have dealt with above. He also committed an aggravated burglary in 2011, for which he was sentenced to a period of 12 months' imprisonment, suspended after six months. The appropriate sentence for this offence is 18 months, which I will reduce to 15 months on account of the plea of guilty.
Damaging property, namely a glass window (CC2016/12690)
53. The maximum penalty for the offence of damaging property contrary to s 403 of the Criminal Code is 10 years' imprisonment, a fine of $150,000 or both. The offender has a single previous conviction for damaging property for an offence committed in 2007. As articulated in the charge and the statement of facts, the damage property charge related to the small glass window near the front entrance, as opposed to the other property within the premises. The appropriate penalty for this offence is two months' imprisonment, reduced to one month on a count of the plea of guilty. Having regard to the relationship between the burglary and the damage to property offence, I consider that the sentence for the damaged property should be wholly concurrent with the burglary sentence. A reparation order is sought in the sum of $1500. Although the amount was agreed to, I do not consider it appropriate to impose a reparation order. Having regard to the length of the sentence which I am imposing, I consider it very unlikely that any amount would be paid pursuant to this reparation order. I do not consider it appropriate to make such an order where it would appear to be futile in the context of the other sentences imposed.
Aggravated dangerous driving on 6 November 2016 (CC2016/11783)
54. The maximum penalty for the offence of aggravated dangerous driving, repeat offender, contrary to s 7A(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) is five years' imprisonment, a fine of $75,000 or both. In addition, an automatic licence disqualification period of 12 months or a longer period if the court so orders, applies to the offence. The circumstances of the offence are aggravated by the fact that there were pedestrians on the footpath in the immediate vicinity. I treat it as being in the mid-range of objective seriousness for this offence. The appropriate penalty for this offence is imprisonment for a period of six months, reduced to five months on account of the plea of the guilty. I will note that there is an automatic period of licence disqualification of 12 months.
Using an offensive weapon likely to endanger life to prevent his lawful apprehension CC2016/11788
55. The maximum penalty for the offence of using an offensive weapon likely to endanger human life to prevent his lawful apprehension contrary to s 27(4)(b) of the Crimes Act is 15 years' imprisonment. The definition of weapon in the Crimes Act is sufficiently broad to encompass the use of a vehicle in this manner. The circumstances of this offence are aggravated by the fact that the vehicle was driven at a police officer and by the fact that in the circumstances the vehicle was an extremely dangerous weapon. I consider the offending conduct to be in the mid-to-upper range of objective seriousness for an offence of this type. The appropriate penalty for this offence is imprisonment for a period of three and a half years, reduced to a period of three years on account of the plea of guilty.
Damaging property, namely the Yamaha motorcycle (CC2016/11880)
56. The maximum penalty for the offence of damaging property contrary to s 403 of the Criminal Code is 10 years' imprisonment, a fine of $150,000 or both. While a police motorcycle is clearly an item of significant value, the agreed facts do not disclose the extent of the damage to the police motorcycle. I treat, however, as an aggravating feature of the offence that the vehicle was that of a police officer, doing the officer's duty. I therefore treat it as being an offence in the low-to-mid range of objective seriousness. The appropriate penalty for this offence is five months' imprisonment reduced to four months on account of the plea of guilty.
Damaging property, namely the Holden Commodore sedan CC2016/11881
57. The maximum penalty for the offence of damaging property is, as I have indicated, 10 years or $150,000 or both. Once again, it is an aggravating feature that the vehicle was a police vehicle and, in the circumstances, known to the offender to be a police vehicle. The extent of damage is not disclosed by the evidence. I therefore treat the offence as in the low-to-mid range of objective seriousness for an offence of this type. The appropriate penalty is a sentence of imprisonment of five months, reduced to four months for account of the plea of guilty.
58. Using an uninsured vehicle contrary to s 17(1) of the Road Transport (Third Party Insurance) Act 2008 (ACT) has a maximum penalty of a fine of $7500. This is the eighth conviction for an offence of this type. It is a consequence of the vehicle being unregistered. While clearly this is an offence in relation to which specific deterrence is a significant factor, having regard to the totality of the sentences which I am imposing, the fine-only nature of this offence and the likely difficulty of the offender in paying any such fine, I will only impose a modest penalty. The appropriate penalty is therefore a fine of $500 reduced to $425 on account of the plea of guilty.
59. Driving while disqualified, repeat offender, contrary to s 32(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) carries a maximum penalty of one year's imprisonment, a fine of $15,000 or both. In addition, an automatic licence disqualification period of 24 months or a longer period if the court so orders applies. The offender has 13 previous convictions for this or related offences. Most recently, he has six convictions imposed by the Magistrates Court in relation to which he received sentences of imprisonment of four months each. Having regard to his criminal history in relation to matters of this type, the appropriate penalty is imprisonment for a period of six months, reduced to five months on account of the plea of guilty. I will note the automatic period of disqualification of 24 months.
Failing to stop a vehicle for police on 6 November 2016 CC2016/11782
60. Failing to stop a vehicle for police, first offender, contrary to s 5C of the Road Transport (Safety and Traffic Management) Act carries a maximum penalty of one year imprisonment, a fine of $15,000 or both. In addition, an automatic licence disqualification period of three months, or a longer period if the court so orders, applies. The appropriate penalty is imprisonment for a period of three months reduced to two months on account of the plea of guilty. I will note the automatic disqualification period of three months.
61. Using an unregistered vehicle contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT) carries a fine of $3000. For similar reasons to those expressed earlier, notwithstanding the prevalence of this offence on the offender's criminal history, I will only impose a modest penalty of $500 reduced to $425 on account of the plea of guilty.
Culpable driving causing grievous bodily harm CC2016/11828
62. The maximum penalty for culpable driving causing grievous bodily harm contrary to s 29(4) of the Crimes Act is 10 years' imprisonment. In addition, an automatic licence disqualification period of 24 months or longer period, if the court so orders, applies to this offence. The conduct of the offender was extraordinarily aggressive and dangerous. That is vividly illustrated by the aerial video that was tendered.
63. The injuries to Sergeant Barrett were significant but he could easily have suffered injuries that were fatal, having regard to the manner in which he was driven at. The offence is aggravated by the fact that it occurred during the course of an attempt to escape from police in circumstances where it was clear that the police required him to stop. The offence is also aggravated by the fact that the offender continued driving after Sergeant Barrett had been thrown from the bonnet of the vehicle. I consider this offence to be in the mid-to-upper range of objective seriousness for the offence. The offender's moral culpability was extremely high and clearly a significant penalty involving a strong element of deterrence is warranted. The appropriate penalty is imprisonment for a period of four and a half years reduced to a period of four years on account of the plea of guilty. I will note the automatic disqualification period of 24 months.
64. Driving whilst disqualified, repeat offender, contrary to s 32(1) of the Road Transport (Driver Licensing) Act carries a penalty of one year's imprisonment and a fine of $15,000 or both. In addition, a disqualification period of 24 months applies automatically, or a longer period if the court so orders. For reasons I have given earlier, the appropriate penalty is six months' imprisonment reduced to five months on account of the plea of guilty. I will note the automatic period of disqualification of 24 months.
65. The maximum penalty is as set out earlier. For the reasons I have given earlier, the appropriate penalty is a fine of $500 reduced to $425 on account of the plea of guilty.
66. The maximum penalty is as I have indicated earlier. For the reasons that I have given earlier, the appropriate penalty is a fine of $500 reduced to $425 on account of the plea of guilty.
67. Aggravated dangerous driving, repeat offender, contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act carries a maximum penalty of two years' imprisonment, a fine of $30,000 or both. The automatic disqualification period is 12 months or longer if the court so orders. While the driving illustrated by the aerial surveillance video is clearly quite dramatic, I consider that a lower penalty than imposed in relation to the 6 November offence is appropriate, having regard to the fact that there were no pedestrians, other than the pursuing police on the street, in the vicinity of the dangerous driving. The appropriate penalty is therefore imprisonment for five months, reduced on account of the plea of guilty to four months. I will note the automatic period of disqualification of 12 months.
68. Resisting a public official, contrary to s 361 of the Criminal Code, carries a maximum penalty of two years' imprisonment or a fine of $30,000 or both. While the offending conduct involved physical resistance, it was relatively short-lived. I consider it to be in the mid-range of objective seriousness for this offence. The appropriate penalty is a period of imprisonment of one month.
Driving with a prescribed drug in his oral fluid CC2016/12413
69. Driving with a prescribed drug in his oral fluid contrary to s 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) carries a fine of $1500 and an automatic period of disqualification of three years or a shorter period of at least six months if the Court so orders. For the reasons I have given earlier in relation to fine-only offences, I consider the appropriate penalty is a fine of $300 reduced to $255 on account of the plea of guilty. I will also impose a period of disqualification of 12 months.
70. I have already indicated that the penalties for the offences committed on 1 November should be concurrent with each other. While in the absence of questions of totality, it might have been appropriate to make the sentences for offences committed on each of the other relevant days partially cumulative, I consider that having regard to questions of totality, the sentences for the offences committed on each separate day should be wholly concurrent with each other. That would result in total head sentences that could be summarised as follows:
(a) the existing Magistrates Court sentence of 16 months;
(b) the reimposed suspended sentence of sentences of 11 months and 20 days;
(c) the 24 October offence is two months;
(d) the 7 October offence is five months;
(e) the 1 November offence is 15 months;
(f) the 6 November offence is three years;
(g) the 8 November offence is four years.
71. If these groups of offences were cumulative upon each other, the total sentence would be 11 years and one month.
72. In my view, an element of concurrency should be introduced so as to reduce the totality of the sentence to reflect the overall criminality of the courses of conduct for which I am sentencing the offender today and the relationship between the offences on 1, 6 and 8 November 2016. I will therefore make the sentences for the offences on 6 November 2016 concurrent to the extent of three months with the sentences for the offences on 1 November 2016. I will also make the sentences for the offences on 8 November 2016 concurrent to the extent of six months with the sentences for the offences on 6 November 2016. Finally, I consider, having regard to the relationship between the drive whilst disqualified offences, the subject of the sentences in the Magistrates Court and the two additional drive whilst disqualified offences, there should be a period of five months concurrency as between the overall sentence that I impose today and the sentence imposed by the Magistrates Court. Having regard to the chronological manner in which the sentences will be imposed, that will be achieved by introducing a degree of concurrency between the reimposed sentences resulting from the breach of the Good Behaviour Order and the sentence of the Magistrates Court. This has the overall effect of reducing the total head sentence, including that of the Magistrates Court, by a period of nine months which brings it to a period of nine years, 11 months and 20 days.
73. So far as periods of disqualification are concerned, the criminal history tendered discloses that only some of the orders for disqualification were made concurrent. The offender is thus already facing a very long period of disqualification. I consider that it is appropriate pursuant to s 69 of the Road Transport (General) Act 1999 (ACT), that I make all the periods of disqualification arising from the sentences that I have imposed today, concurrent. I do not accept the prosecution submission that I should also make an order under s 65 of that Act disqualifying the offender from holding a licence until further order. On the hypothesis that upon release from imprisonment the offender is prepared to conduct himself in a lawful manner then the prospect of obtaining his licence will be very important to his capacity to function as a lawful citizen and particularly important in relation to obtaining and maintaining employment. I do not consider it appropriate to put another significant hurdle, apart from the passage of time, in his way. If upon his release he is not able to conduct himself lawfully then having regard to his criminal history, he is likely to return to prison for a substantial period in any event.
74. In my view, a nonparole period of five years and nine months is appropriate. It is shorter than would otherwise have been appropriate because I consider that a very significant period of imprisonment at the age and stage that the offender is at may be such as to affect a change in conduct. The parole authorities will be in the best position to assess whether or not that is the case, having regard to how he conducts himself during the period of detention.
75. The orders that I make and the sentences that I impose upon conviction for each of the offences are as follows:
I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
R
Williams [2017] ACTSC 298