The Queen v Green

AGREED FACTS

1. The facts relating to these charges, and upon which the Offender is to be sentenced, are set out in the statement of Agreed Facts, Exhibit A. The Offender has been disqualified from holding a driver's licence since 2001, and is now disqualified until 14 April 2035. On 30 June 2019 Senior Constable Owen observed a black Subaru Impreza, bearing registration plates referred to in the Agreed Facts, travelling on Coachwood Road, towards Matcham, in the direction of Senior Constable Owen at approximately 90 kilometres per hour. Checks revealed that the registration in respect of that vehicle had expired on 11 June 2019.
2. Senior Constable Owen then turned his vehicle around to follow the Subaru, which sped up to approximately 160 kilometres. Due to the high speed, the police officer decided not to continue the pursuit. As the Senior Constable came to the intersection of Coachwood and Matcham Road he noticed the Subaru in a ditch facing towards him. There was nobody in the car. Senior Constable Owen saw a person running through 128 Matcham Road, and gave chase on foot.
3. Additional police arrived at the intersection. Senior Constable Xuerev was approached by a female witness, who advised that she saw two males and one female run from the car and up the driveway of 128 Matcham Road.
4. Approximately 300 metres south of the intersection Stephanie Littler was located by police walking down the driveway of 102 Matcham, at which time she was arrested for other offences. David Heenan approached police and said, "I think you're looking for my nephew, Nathanial Heenan". A number of calls were made to Nathanial, however he did not answer and was not located.
5. The following facts relate to sequences 4 and 5. Sequence 4, being Count 1 in the summary and sequence 5 being the matter brought to the Court on a 166 certificate, as a related matter. Around this time Leanne Kaizer was at her home at 230 Matcham Road with her nephew, Jonathan Hodges. Hodges turned on the engine to Kaizer's Mitsubishi Triton to warm it up. At this time, Hodges was approached by the Offender, who asked for a taxi to be called. Hodges went inside to call a taxi and Kaizer went outside to speak to the Offender, however when Kaizer went outside she noticed that her Triton had been taken. She then took her mother's car and drove down the road.
6. At about 9.18am Kaizer pulled up at the intersection in a Mazda Bravo and yelled out to nearby police, "My car has been stolen, it's a Mitsubishi Triton". The Mitsubishi Triton pulled up about five metres behind the Mazda and Leading Senior Constable Baker approached the vehicle. Senior Constable Baker told the Offender, "Get out of the car", and as he said this simultaneously began reaching into the car to turn off the ignition. As he was reaching into the car the Offender began to drive off. Leading Senior Constable Baker was able to remove his arm from the vehicle. The Mitsubishi took off, hitting Senior Constable Baker's thumb and causing Senior Constable Hunt to take evasive action to avoid being hit. This incident was broadcast on police radio.
7. The following facts relate to sequences 6 and 7, both counts for sentence appearing on the Crown Sentence Summary sheet as Counts 2 and 3. Police, who had been stationary in a marked police car at 136 Matcham Road, commenced a pursuit of the Mitsubishi, which was approximately 300 to 400 metres in front of them. That vehicle followed the car onto Milina Road. At the intersection of Milina Road and Carlton Road the Mitsubishi braked heavily and came to a stop. The police vehicle, BW37, stopped about 5 metres behind the Mitsubishi. Senior Constable Scarf took his seatbelt off and opened his door to approach the Offender. The Mitsubishi reversed and collided with the police vehicle, causing the engine to stop running and damaging the front of the vehicle. Senior Constable Scarf struck his head on the sun-visor and Senior Constable Lang's head collided with the steering wheel during the impact.
8. BW37 put out a broadcast advising that they had been rammed. The Mitsubishi then drove along Carlton Road towards the Central Coast Highway/The Entrance Road, being pursued by BW14. BW105 was travelling behind BW14. The Mitsubishi continued onto the Central Coast Highway before turning left onto Terrigal Drive. BW14 turned onto Terrigal Drive and lost sight of the Mitsubishi after it went over the crest of a hill. BW14 continued driving down Terrigal Drive until a broadcast was made over police radio that the Mitsubishi had been sighted by PolAir in Kuburra Road.
9. Police in BW105 saw the Mitsubishi at the end of Kuburra Road and turned into the street, a further vehicle 208 had also travelled into Kuburra Road in response to the PolAir broadcast. The Mitsubishi drove towards 208 at speeds of at least 90 kilometres per hour, and flashed its high beams at least three times. Senior Constable Owen observed there to be only one man in the Mitsubishi as it drove past. Senior Constable Owen turned vehicle 208 around and continued the pursuit of the Mitsubishi. Vehicles 225 and 105 also followed in pursuit. Police followed the Mitsubishi, as it approached the intersection of Terrigal Drive and the Central Coast Highway, at approximately 90 kilometres per hour. The Mitsubishi proceeded through the yellow lights onto Barralong Road at about 100 kilometres an hour, overtaking a vehicle, before swerving onto the incorrect side of the road. At least one vehicle had to take evasive action to avoid a collision. This was captured on the in car video from 225. Senior Constable Owen then terminated the pursuit.
10. PolAir officers continued to monitor the Mitsubishi, and later broadcast that it had parked at 133 Erina Street, East Gosford. Police arrived at that location and there arrested the Offender. Those are the Agreed Facts.

THE OFFENDER'S SUBJECTIVE CASE

1. During the course of the sentence hearing, the Offender relied upon the following documents, which together comprised Exhibit 1: 1. report of Sam Borenstein, psychologist, dated 16 July 2020; 2. addendum to report of Sam Borenstein dated 31 July 2020; 3. affidavit of Nathan Green dated 6 August 2020; 4. affidavit of Lisa Stuckey dated 6 August 2020; 5. Justice Health subpoenaed materials; and 6. Buvidal treatment fact sheet.
2. Also included tendered as part of the Crown bundle was a Sentencing Assessment Report completed in April 2020, as well as an Updating Report authored in July 2020.

Sentencing Assessment Report

1. Included in the Crown sentencing bundle (Exhibit A) was a Sentencing Assessment Report, authored by Sarah Molinia and dated 1 April 2020.
2. The author noted that the Offender intends to live with his partner and her 2 children upon release, and while he has some employment experience, he has spent a large portion of his adult life in custody.
3. The Offender attributed his offending behaviour, including 2 drug related offences while in custody in January 2020, to his inability to obtain a driving licence, substance abuse and also to anti-social associations supportive of his criminal behaviour. He reported being in the company of anti-social peers at the time of offences, and has since taken steps to cut ties with these people.
4. The Offender reported a long history of substance abuse, and admitted to the author that he had been using ice and drinking alcohol prior to the offences. He also stated a commitment to addressing his drug use with a pharmacotherapy program and residential rehabilitation.
5. The author noted that the Offender has a prior diagnosis of Anxiety/Depression which is currently untreated (p 3).
6. The author stated that the Offender appeared to have reflected on the impact of his offences, showed good insight into his criminogenic needs, and expressed a commitment to attend residential rehabilitation and ongoing interventions to address his chronic drug use.
7. The Offender expressed a willingness to undertake community service work, however it was noted that this may be limited by his intention to attend a residential rehabilitation program upon release from custody. It was further noted that while the Offender has been subject to numerous periods of supervision, his overall response was "resistant" (p 3), including multiple parole breaches, and a reluctance to participate in interventions to address his offending behaviour.
8. Overall, the author assessed Mr Green as a high risk of reoffending, and determined that, should a supervised order be made, Community Corrections would supervise the Offender at the high supervision level, requiring weekly reporting and home visits every 8 weeks.
9. The report suggested a number of actions as part of a supervision plan, including referral for drug and alcohol rehabilitation, traffic Offender's program, a mental health care plan, random drug testing and a module for managing cravings and impulsivity. Community Corrections assessed the Offender as suitable to undertake community service work. They also recommended that a residential rehabilitation program be completed upon release, for a period of greater than 6 months.
10. On 20 July 2020 an Update Assessment Report was provided by the same author, Ms Molinia.
11. In this report, the author noted that the Offender had since commenced treatment with the monthly Buvidal deport injection, and is "progressing well with no issues" (p 1). The author also noted that the Offender had since revealed to Community Corrections that he has begun to address alleged childhood sexual abuse, and recently agreed to participate in the EQUIPS Foundations program.

Report of Sam Borenstein dated 16 July 2020

1. The report from Sam Borenstein, clinical psychologist, was authored following an interview with the Offender conducted via audio visual link.
2. The first half of the report contains a summary of background information, which appears to have been self-reported to Mr Borenstein by the Offender.
3. Mr Borenstein recounted the Offender's acknowledgement of his own criminal history, wherein he advised that it includes "everything except doing harm to a child or to a woman". When enquiring about the Offender's mental state, the Offender confirmed that he has consulted psychologists in prison, and a psychologist over 6 sessions at Mascot on the advice and encouragement of his parole officer, however he also stated that he "[doesn't] have any mental problems". In respect of his custodial history, the Offender reported that "gaol doesn't teach you anything… there's no fear… it's almost comfortable, that's why people keep going back".
4. The Offender reported to Mr Borenstein that he does not consume alcohol, however has a history of drug abuse, including heroin, ice, cocaine, cannabis and Buprenorphine (Buvidal), the latter of which he has recently commenced an oral trial along with Methadone. The Offender reported that he has not used drugs in prison, which he attributed to Buvidal injections. He advised Mr Borenstein that he became involved with drugs in his early teens, including with older peers who introduced him to heroin by age 17.
5. The Offender reported being in and out of prison since age 17, and has also made attempts to address his Substance Use Disorder during this time, including multiple self-referrals to rehabilitation and detoxification centres.
6. The Offender reported commencing a relationship with Ms Lisa Stuckey some 3 years ago, who has become something that "means something" to him. He stated to Mr Borenstein that he is "highly motivated" to continue his relationship with Ms Stuckey and her 2 children, and that his relationship with her had assisted him in pulling out of a "downward spiral" (p 3). During this part of the interview, Mr Borenstein noted that the Offender was teary, and confessed to Mr Borenstein that he entertained some suicidal thoughts.
7. Mr Borenstein remarked that the Offender reported injuring himself while training, resulting in nerve damage, weakness and muscle wastage, for which he was prescribed Oxycontin. The Offender reported to Mr Borenstein that this prescription ultimately led to a relapse, which then led to a "deterioration in his wellbeing and contributed to the offences for which he is currently charged" (p 4).
8. In terms of background, the Offender reported to Mr Borenstein that, as the youngest of 3 boys, he lost his father to a heart attack in 2005 and his oldest brother died at age 28, after a diagnosis of Schizophrenia (likely drug induced) and after spending his final 3 years of his life in and out of Rozelle Hospital (p 4). His next oldest brother died at age 7 by drowning. The Offender reported that both of his parents became alcohol dependant following the drowning of his brother, and that there were frequent occasions of physical abuse and domestic violence between his parents.
9. Nevertheless, the Offender reported to Mr Borenstein that he enjoyed a "positive father/son relationship when his father was sober", despite his formative years being negatively impacted by his parents alcohol dependence (p 5).
10. When asked by Mr Borenstein whether the Offender supressed these feelings, the Offender responded "…you can't vent in prison … that's why I really didn't want to talk to you about this" (p 4).
11. In terms of schooling and employment, the Offender left school at the end of Year 8, noting that "school was not for me", and was suspected to be suffering from ADD/ADHD, however was never formally diagnosed. He reported to Mr Borenstein that he is able to read and write, however was not particularly interested in schoolwork. He has a limited employment history, comprising mainly of labouring, and while he commenced pre-apprenticeship courses after leaving school, he dropped out of these after 6 months.
12. The Offender reported a family history of psychiatric disorders, primarily on his father's side, including diagnoses of Schizophrenia in his brother and cousins. His cousins on his mother's side were described as "professionals". According to Mr Borenstein, there is a "strong family history of alcohol and substance use disorders".
13. Mr Borenstein remarked that the Offender's greatest challenge is "to learn how to adapt to life outside of prison" (p 6), and that the Offender understood the need to participate in various available programs to ensure success in preventing relapse and an effective adaptation to life outside of prison.
14. Mr Borenstein observed the Offender's affect as "defined by suppressed emotions and tears", however noted that there is no indication of serious psychiatric disorder, nor any evidence of perceptual disturbance (p 6).
15. Mr Borenstein administered a Personality Assessment Screener, which measures potential problem areas in mental health, in which the Offender's total score of 23 indicated "moderate to marked" potential for emotional or behavioural problems. Overall, the profile "confirmed the Offender's difficulties in the area of anger management" (p 7). Results obtained by Mr Borenstein on the Depression Anxiety Stress Scale were in the "normal" range for symptoms of depression, anxiety and stress (p 7).
16. The author remarked that the Offender does not suffer Schizophrenia, though he relates a history of extensive substance dependency (p 8).
17. Noting that the Offender attributes his criminal history exclusively to a history of substance use disorder, as well as his self-instigated attempts at seeking rehabilitative treatment, Mr Borenstein opined that successful treatment of the Offender's substance use disorder (currently in remission) will "mean the likelihood of him coming to the attention of police and the courts again will be significantly minimised" (p 9).
18. Additionally, Mr Borenstein suggested that it would also be in the Offender's interest to participate in psychological treatment "focusing on unresolved traumas", particularly with the deaths of his two brothers (p 9). At this point the author also noted that the Offender became emotional and tearful during the interview and assessment, and stated that he cannot afford to access, let alone vent, emotions in prison, in fear of consequences. In this respect, Mr Borenstein concluded that the Offender needs to establish a "safe therapeutic environment in which to undertake necessary psychological work" which, when coupled with counselling targeted at relapse prevention, would significantly lower the chances of reoffending (p 9).

Addendum to Report dated 31 July 2020

1. Mr Borenstein prepared an addendum dated 31 July 2020, in which he advised that the Offender, after "feeling distressed following [our previous] interview… requested he be re-interviewed" (p 1).
2. At this time, the Offender informed Mr Borenstein that when in juvenile detention, and aged 17, he was sexually assaulted by two workers.
3. Mr Borenstein reported observing the Offender as "avoidant" and "obviously distressed" when referring to the sexual abuse, which he stated happened on 2 separate occasions. The Offender told Mr Borenstein that the first he spoke of this abuse was 8 months ago to a fellow cellmate, and has since engaged solicitors to pursue this matter further (p 1).
4. Mr Borenstein observed that the Offender's avoidance and difficulties providing any specific details about the abuse is "consistent with Post Traumatic Stress Disorder" (p 2). The Offender reported to Mr Borenstein that he believes the abuse impacted negatively on his psychological development, leading to him developing symptoms of Complex Post Traumatic Stress Disorder, and self-medicating with drugs.
5. Noting that, at the time, the Offender had not yet participated in any psychological treatment, the author observed that drug and alcohol rehabilitation (including ongoing Buvidal injections would "better place" the Offender to "address the history of sexual abuse", and to "learn more effective ways of dealing with Complex PTSD", both of which will go further to prevent further relapses (p 2).

Affidavit of Nathan Green dated 6 August 2020

1. Also included as part of Exhibit 1 was an affidavit from the Offender dated 6 August 2020, in which he provided some insight into his upbringing, as well as other matters including addiction. While this affidavit was tendered unsworn and unsigned, the Offender swore its contents while in Court.
2. The Offender recounted losing both of his brothers, one to drowning and another following a long battle with addiction and mental illness. Nobody in his family received counselling for either of these deaths, and of both of his parents became alcohol dependant as a coping mechanism, which would often result in his father becoming violent, particularly towards his mother (para 6). He further recounted that he lost his father to an unexpected heart attack, and that his mother never remarried.
3. The Offender remarked that he "never really enjoyed school" (para 8), and, after leaving in Year 8, commenced an apprenticeship, however he also left this after some 6 months. He further recounted that it was at this time that he began "hanging out with the wrong crowd" (para 8), who introduced him to drugs, including heroin.
4. At paragraph 9, the Offender referred to an incident which occurred when he was 17, at which time he was sexually assaulted by two prison guards as an inmate at Cobham Correctional Juvenile Detention Centre. He stated that he did not report the incident at the time as he was "worried about the ramifications", and the first time he mentioned the incident was to a cell mate some 8 months ago, after which he eventually opened up to his partner, Lisa Stuckey, and subsequently to his lawyers. The Offender stated that after this incident, he "started using heroin frequently to numb the pain and to forget about what happened". He also stated that he initially hid his addiction from Ms Stuckey, however has recently opened up to her and now "tell[s] her everything", which she has supported him through.
5. The Offender referred to his recent Buvidal treatment while in prison, which he stated has been "the best treatment to date" in dealing with his drug addiction. He stated that since commencing the program, he feels "much calmer.. [his] mind is clear, and [does] not get agitated like before" (para 12). He further affirms that he intends to continue with the treatment for as long as he needs, and "never want[s] to touch drugs again" (para 12).
6. He further highlighted his sessions with Mr Borenstein, psychologist, which he found "very helpful", despite initial difficulties opening up about his past and present issues, and asserted that he needs and wants to continue psychological treatment until told he no longer requires it (para 13).
7. The Offender recounted his participation in prison courses in order to "make the most of the time in gaol", including involving himself in the EQUIPS and the 'Foundations' course (para 15). He further stated that upon release, he wishes to get surgery to repair his nerve injury, obtain his forklift licence and "be a contributing member if (sic) the community" (para 16).
8. At paragraph 20, the Offender stated that he is sorry "to the community… the Police… to [his] family… to Lisa and to her boys", and described the offending as "selfish, stupid and dangerous", and expressed that he is "sincerely sorry about how stupid and reckless [he] was" (para 21). He further asserted that, now that he is "drug-free", he can see how much drugs control him, and that he "never wants to go back to that state again".
9. The Offender made reference to the Sentencing Assessment Report, which assessed him as being a 'high' risk of reoffending, and that a supervision plan would include long term residential rehabilitation. In this regard, he stated that, while acknowledging the Court may take a guarded approach to his prospects of rehabilitation, as a result of his Buvidal treatment and unwavering support from Lisa Stuckey, he has "never felt so good in [his] life emotionally and physically" (para 23). He also stated that, having learned to deal with stress effectively, he "wants to be a good person and never want[s] to commit another offence", as well as become "a valuable member of the community and start fresh".
10. Finally, the Offender reaffirmed a commitment to "completely turning [his] life around", and that the help of Buvidal, Ms Stuckey and ongoing psychologist treatment have made him "feel like [his] stars have aligned and this is the chance to start a new life" (para 26).

Affidavit of Lisa Stuckey dated 5 August 2020

1. In her affidavit, Ms Stuckey confirmed that she has known the Offender for some 20 years, and the pair have been in a relationship for some 18 months, to which she is "wholly committed", as is the Offender (para 3). Ms Stucky stated that the Offender is a "very important person in the lives of [her] children and herself", and that her children are very fond of him and look forward to him coming home.
2. Ms Stuckey recounted that she has full knowledge of the Offender's charges, and has been in regular contact with his solicitors throughout this matter, as well as assisting in attempting to locate in-patient rehabilitation centres for him to attend. She noted that she visited him frequently prior to the measures enacted as a result of COVID-19.
3. Ms Stuckey confirmed her awareness of the Offender's upbringing, which she described as "very sad and traumatic", and opined that he has "suffered from immense grief and sadness", and that, despite attempting to downplay them, becomes "extremely emotional" when confiding in her (para 7). She further noted that the Offender confessed to her about his heroin addiction, as well as the sexual assault of which he was a victim at age 17.
4. Ms Stuckey stated that she has "told him that [she is] committed to helping him", and has paid for him to see Mr Borenstein, psychologist. She stated that, once released, the Offender will be living with her and her sons, and that the possibility of him going into a residential rehabilitation centre has also been discussed (para 13). In addition, she asserted that she would do "anything in her power to make she he stays on the right path" (para 19). She also expressed the view that, given his age and lengthy history spent in prison, any more time spent in prison would be detrimental to his future.
5. That is the subjective evidence.
6. Before I continue, I will observe that in my view the Offender has a very strong subjective case supported enormously by the efforts undertaken by Ms Stuckey on his behalf. The commitment which she has shown for him, no doubt, will be of enormous benefit to his recovery and rehabilitation in the future. Unfortunately, by reason of the fact that the Offender is serving the balance of parole and by reason of these offences, he will not be returning home in the near future.

SUBMISSIONS

1. The submissions advanced on behalf of the Crown were marked for identification MFI 1, and form the basis for addresses by counsel for the Offender. In terms of aggravating factors, it was conceded that the Offender was the subject of conditional liberty at the time of the offending and that gives rise to aggravation pursuant to s 21(8)(2)(j) of the Crimes (Sentencing Procedure) Act.
2. The Offender has a considerable criminal record. I note that in MFI 1 the Crown sets out, in paragraph 4, the number of offences from May 1999 through to April 2019 in which the Offender has either stolen vehicles or been driven in stolen vehicles. Whilst his criminal convictions may well be a matter that aggravate his offending, I instead approach his criminal history by acknowledging the repeated offences which disentitle the Offender to any finding of good character or leniency which may flow from such a finding.
3. In terms of mitigating factors, it was submitted that the offence was not part of a planned or organised criminal activity. That is plain from the Statement of Agreed Facts. The conduct of the Offender was impulsive and reckless. It was further submitted that, as a mitigating factor, the plea of guilty ought to be taken into account. I do take that into account, and the sentence will be reduced by 25% on account of the guilty plea.
4. As a further mitigating factor I was invited to have regard to the question of remorse. In order for it to be a statutory mitigating factor it is necessary for the Offender to provide evidence that he has accepted responsibility for his actions, and also acknowledge the injury, loss or damage caused by his actions. In my opinion, the Offender has done both of those things entitling him to a find of statutory remorse in accordance with s 21A(3)(i).
5. In terms of the objective seriousness of the offending, submissions were advanced by both parties. The Crown submitted in relation to sequence 4, that being take and drive a conveyance, that I ought to find it at the midrange. It was submitted on behalf of the Offender that it was "more towards the lower end". In giving consideration to the determination of objective seriousness, I am mindful of the following factors identified by the Crown in the written submissions: 1. the vehicle was on the owner's property. That is, that the Offender went onto the property to take the vehicle; 2. the keys were in the ignition; and 3. the Offender took the vehicle from the owner's property whilst the owner and her nephew were inside the house.
6. I agree with the assessment of objective seriousness submitted by the Crown, and find the objective seriousness in respect of sequence, 4 being the first matter on the Crown Sentence Summary, falls at midrange.
7. In relation to sequence 6, being use of an offensive weapon to prevent lawful apprehension, that is the second matter for sentence. It was submitted on behalf of the Crown that it fell at the midrange. On behalf of the Offender, it was submitted that it fell below or near the midrange. I find that the objective gravity of sequence 6 falls at the midrange, having regard to the following: 1. the weapon used by the Offender was a motor vehicle; 2. the motor vehicle was rammed into another vehicle; and 3. the two police officers involved were caused physical contact with the vehicle as a consequence of the conduct of the Offender.
8. In the course of submissions addresses were advanced as to the objective seriousness of sequence 8 which takes it place on the Form 1. It was submitted on behalf of the Crown that it fell at the midrange, as the Offender drove the motor vehicle towards the police officer at 90 kilometres per hour.
9. Exception was taken with that description by counsel for the Offender, who submitted that it fell at the lowest end of the range. It was submitted that the facts pertaining to that matter did not demonstrate that the vehicle was being driven at the police officer. It was plain from the facts agreed between the parties that the vehicle was, however, driven in the direction of the police officer. In my view, the objective gravity of sequence 8 falls just below the midrange.
10. Next is sequence 7, being the police pursuit offence. It was submitted for the Crown the objective gravity of this offence fell above the midrange. For the Offender, the submission was that it was the high end of low range, but would not hit the midrange. Although this exercise may appear to be splitting hairs, I find that the offending attracts the description of objective gravity of midrange, having regard to the following facts: 1. the police pursuit occurred over some distance over a number of public roads including suburban streets and main roads; 2. the pursuit involved varying speeds of up to, if not in excess of, 100 kilometres per hour; 3. the pursuit involved the Offender driving the vehicle through an amber light; and 4. the pursuit involved the Offender swerving to avoid oncoming vehicles and avoid collision.
11. I note that it was conceded on behalf of the Offender that the speeds travelled at times by the Offender were high.
12. Finally, in relation to sequence 5, that is the related offence, driving whilst disqualified, I find that it falls in the midrange of objective gravity.
13. Turning to consideration of matters of more of a subjective nature, submissions were advanced on behalf of the Offender as to the Offender's moral culpability on a number of bases.
14. Whilst reference was made to the High Court's decision in the matter of Bugmy, counsel for the Offender stopped short of saying this matter attracted those considerations, but submitted that there were features here which were similar to Bugmy. In particular, counsel referred to a deprived upbringing, the very traumatic deaths of the Offender's siblings, the alcohol addiction by his parents, and the domestic violence, to which I have already referred.
15. Whilst I would not go so far as to find that that gives rise to profound deprivation, it is deprivation nonetheless. I am mindful the remarks of the High Court, and observe that the effects of deprivation do not diminish over time, and should be given weight in determining the sentence in this case. A background of the type I have just described may leave a mark on a person such as the Offender throughout his life, and compromise his capacity to mature and learn from experience.
16. The second matter which has some bearing upon moral culpability is the Offender's addiction to drugs, which started at a young age. In the course of addresses, I enquired of counsel for the Offender as to whether it was submitted that his addiction to drugs occurred at an age where he did not have the capacity to make a rational choice as to whether he took drugs. That submission was adopted by counsel for the Offender. The commencement of drug addiction also appears to have been exacerbated, if not initiated, by the sexual abuse that occurred whilst in juvenile detention. The combination of those factors, in my mind, would lead to a finding of reduced moral culpability.
17. The third factor which I observe may also contribute to consideration of the moral culpability of the Offender, involves the matters referred to by Mr Borenstein in his two reports. While he stops short of making clear diagnoses, it is plain that anxiety and depression are matters from which the Offender suffers. I also accept Mr Borenstein's opinion that the Offender most likely suffers from post-traumatic stress disorder, as a consequence of the sexual abuse he suffered at about the age of 17.
18. The combination of the psychiatric matters just referred to, the childhood matters previously referred to, and the history of drug addiction arising in the environment and at the time in which it did, permit me to make a finding that the Offender's moral culpability is reduced, and that he is not an appropriate vehicle for general deterrence.
19. Further, in relation to subjective matters, despite the comments of the sentencing assessment report author, I consider that the Offender has good prospects of rehabilitation. I am encouraged in that view by his commitment to Buvidal and also, more particularly, the support given to him by Lisa, which appears unwavering. It is through the combination of those factors, namely a good support in the community and treatment which would include counselling, that I expect that the Offender does have fair to good prospects of rehabilitation. Consistent with that finding, I hope the risk of reoffending is zero, however I expect that a realistic finding is that it is low. This is, nonetheless, contrary to the suggestion made by the Community Corrections officer that it was high.
20. Further, I intend to find special circumstances on a number of bases, including the need for rehabilitation in the community and the obvious risk of institutionalisation, brought about by reason of the Offender's history of incarceration.

CONSIDERATION

1. Turning then to the purposes for sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. Irrespective of other matters, it is always necessary to ensure, having regard to both the objective seriousness of the offending and the subjective case of the Offender, that the Offender is adequately punished for the offences. I am satisfied that that will be achieved. I am also satisfied that the sentence to be imposed will encourage personal deterrence and also to the extent necessary or reasonable, general deterrence.
2. The sentence has also been crafted in such a way that the Offender will have sufficient time on parole in the community after serving his sentence to engage in rehabilitation in order to avoid re-offending.
3. At the same time, the sentence will protect the community, denounce the conduct of the Offender and recognise the harm done to the community by the offending conduct.
4. Before imposing a sentence of imprisonment, it is necessary to consider whether any other sentencing alternative is appropriate. I find that, after considering all other possible alternatives, no penalty other than imprisonment is appropriate. Further, I consider that imprisonment by way of fulltime custody is the only appropriate sentence outcome.
5. I intend to impose an aggregate sentence. Before doing so it is necessary for me to provide indicative sentences. Before I do that, however, I should also consider the question of the commencement date.
6. The Offender was arrested 30 June 2019, and that is, therefore, the earliest date upon which the sentence may commence. On 10 July 2019 his parole was revoked, and since 30 June 2019 he has been serving the balance of parole. That will see him in prison until 2 January 2022, which is currently the earliest date for release.
7. Having regard to the Court's wide discretion, in terms of setting a commencement date, and the provisions of s 47 of the Crimes (Sentencing Procedure) Act, I form the view that it would be appropriate to commence the sentence midway between the commencement and the end of the service of the balance of parole term. That is, to commence the sentence on 30 September 2020.
8. Returning to indicative sentences. In respect of Count 1, being sequence 4, taking and driving a conveyance, I provide the indicative sentence after 25% discount of 2 years.
9. In respect of Count 2, being sequence 6, and with the Form 1 matter, namely sequence 8 attaching, after a discount of 25% I provide an indicative sentence of 3 years.
10. In respect of the Count 3, being sequence 7, the police pursuit, I provide an indicative sentence after discount of 25% of 1 year.
11. Having provided indicative sentences, it is now necessary to stand back and determine an appropriate overall aggregate sentence. In doing so, the Court has regard to questions of accumulation, concurrency and totality.
12. The Court has regard to the overall criminality of the offending in determining the extent to which the sentence in respect of the charges ought to be concurrent or accumulated. I have taken those sentencing principles into account.
13. In respect of sequences 4, 6 and 7, I intend to provide an aggregate sentence. In respect of sequence 5, I intend to deal with that separately and there will be an overall disqualification period, which will be automatically suspended until the Offender is released from custody.

CONVICTION

1. Mr Green, you are convicted of the following offences: 1. sequence 4, taking and driving a conveyance, in breach of s 154A(1)(a) of the Crimes Act; 2. sequence 6, using offensive weapon to prevent lawful apprehension in breach of s 33B(1)(a) of the Crimes Act; 3. sequence 7, police pursuit, first offence, in breach of s 51B(1) of the Crimes Act; and 4. sequence 5, driving whilst disqualified, as a second or further offence.
2. In respect of sequences 4, 6 and 7, I impose an aggregate head sentence of 4 years, commencing 30 September 2020 and expiring 29 September 2024. In respect of those 3 offences I impose an aggregate non‑parole period of 2 years, commencing 30 September 2020 expiring 29 September 2022.
3. In respect of sequence 5, being drive while disqualified, I convict you but do not impose any further penalty, in accordance with s 10A of the Crimes (Sentencing Provision) Act. As a consequence of sequence 7, you are disqualified from holding a licence for a period of 3 years, which will commence upon your release from prison.
4. AYACHE: Your Honour does have a discretion, if your Honour would hear me in relation to the disqualification period. If your Honour's minded having what your Honour heard in the subjective case, regarding Mr Green's desire to obtain gainful employment. Given the legislation would permit Mr Green to make application post two years, if your Honour would consider exercising that discretion.
5. HIS HONOUR: Is it post twelve months.
6. AYACHE: It is automatic three and can be reduced down to 12 months your Honour.
7. HIS HONOUR: When you said two years, what are you referring to?
8. AYACHE: So in terms of the at liberty to obtain a licence for somebody in Mr Green's position who is disqualified for a very lengthy period of time, well into 2030 something I think it.
9. HIS HONOUR: I think it is 2034.
10. AYACHE: Yes, if he were to complete a two year disqualification period, then he would then be able to make application, and I'm sorry your Honour I don't have the section before me, he would then be able to make application for a licence but I think if your Honour imposes a three year period he would have to complete that three year period.
11. HIS HONOUR: Well I'm happy to do that, but you need to tell me how I do it, because I don't want to go into error in relation to that matter.
12. AYACHE: Your Honour would simply make the order that you've made but for a period of two years, not three, your Honour has that discretion to reduce.
13. HIS HONOUR: In relation to sequence 7 there is a minimum of 12 months. In relation to sequence 5 there's a minimum of six months. I assume they can run concurrently can they not?
14. AYACHE: They can.
15. HIS HONOUR: So what you are asking for is a minimum of two years.
16. AYACHE: Yes your Honour.
17. HIS HONOUR: Then allow him to apply for a licence two years after he is released from prison?
18. AYACHE: That is so.
19. HIS HONOUR: Very well. In respect of sequence 7, I order disqualification for a period of two years following release. In respect of sequence 5, I order disqualification for a period of 6 months. Those disqualification periods are to run concurrently, entitling the Offender to apply for a licence two years after being released from prison.

NOTE: A. These remarks on sentence were revised without access to the Court File. I certify that the previous 122 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC. Associate James Bailey 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: 03 November 2020