Westaway v R

1. The applicant seeks leave to appeal against the aggregate sentence that was imposed upon the ground that it is manifestly excessive.

The factual circumstances

1. The facts giving rise to the offences were not in issue. They were summarised by the sentencing judge as follows: "6 At 11pm on Friday 21 November 2014 the offender was observed driving a white Nissan sedan bearing Queensland registration … in a westerly direction along Burra Road at approximately 130 kph in a 100 kph signposted area. Police activated warning devices, however, the offender continued to drive and a pursuit was engaged. That pursuit was captured by in-car video in the police vehicle. The offender was observed to be driving at speeds of in excess of 150kph, crossing unbroken lines, overtaking another motorist whilst on unbroken lines and going around a blind corner. The offender continually drove on the incorrect side of the road and his driving posed extreme danger to other road users. 7 Police deployed road spikes which successfully caused the offside tyre of the vehicle to deflate and shred. Notwithstanding that, the offender continued to drive the vehicle and drove through and destroyed a steel gate at 262 London Bridge Road Burra (constituting the fourth charge). The offender eventually lost control of the vehicle and it rolled before coming to rest. 8 When police approached the vehicle the offender was seated in the driver's position with his seatbelt fastened. A second offender (Thomas Nano) was positioned across the top of the offender and sustained a laceration to his forehead. Police observed a self-loading pistol on the dash of the vehicle, and, concerned that that weapon may be used, gained entry to the vehicle by smashing the passenger side window with a baton and using capsicum spray on both persons inside the vehicle. 9 The offender was removed from the vehicle and struggled with the arresting police. He was placed on the ground and continued to resist police attempts to restrain him by kicking out and thrashing his arms and torso to free himself. That conduct constitutes the second charge. 10 Inside the vehicle police located a wallet with identification belonging to the offender and $1,500 cash; a provisional licence in the name of Scott Dean Westaway (the late brother of the offender); six Clipseal plastic bags and six small plastic bags containing a crystal rock substance. The weights of each bag were approximately 13.8 grams, 1.8 grams, 1.4 grams, 0.4 grams, 0.4 grams and 1 gram. After analysis five bags were found to contain a total of 16.42 grams of methylamphetamine with a purity of 78.5%, and one bag contained 0.69 grams of cocaine. 11 Also found in the vehicle were two sets of electronic digital scales, used syringes and swabs and a number of mobile phones. Inside the car were numerous pieces of paper with the names of individuals in handwriting and various sums of money appearing against each name on the sheets. This was alleged to be a 'tick list'. 12 Mr Nano later admitted possession of the firearm and was sentenced in respect of that offence."

Subjective circumstances

1. The applicant's father was killed in an accident when the applicant was 9 years of age. He left home at 14 years of age and his younger brother died in his presence in 2009. He began using alcohol and illicit drugs as a mechanism to help him cope with his grief. He left school in Year 9 and was thereafter employed from time to time as a general farm hand.
2. The applicant has an extensive criminal history principally comprising driving offences but including offences of affray, entering dwelling with intent to commit an indictable offence and assault occasioning actual bodily harm. On a number of occasions he breached bond and parole conditions to which he was subject. The subject offences were committed whilst the applicant was on conditional liberty after being charged with driving whilst disqualified on 4 July 2014.
3. The applicant gave evidence before the sentencing judge that he wanted to take steps to address his drug addiction and that he was remorseful for his actions. His aunt gave evidence that since his arrest on the subject charges, he had matured and "taken ownership of his conduct".

The sentencing judgment

1. The sentencing judge took the view that the objective seriousness of the police pursuit offence was "quite high given the speeds at which the vehicle was driven and the manner of that driving which placed the police officers and other road users at considerable risk of serious injury or death" ([40]). In concluding that it constituted conduct above the mid-range of objective seriousness, his Honour also took into account the considerable distance over which the pursuit took place.
2. In relation to the drug supply offence, the sentencing judge noted that indicia of a drug supply operation were contained in the subject vehicle and that the quantity of the drugs concerned was over three times the indictable quantity, although well below the commercial quantity. He found that the offence was towards the lower end of the range for that offence.
3. His Honour concluded that the applicant's continuing attitude of disobedience to the law warranted considerations of retribution, deterrence and protection of society being given weight in the sentencing process. He noted that the applicant was on conditional liberty at the time of the offences.
4. His Honour was impressed by the evidence of the applicant's aunt as to his recent maturing and by the applicant's evidence of a commitment to defeating his drug addiction. He considered that the applicant was "somewhat remorseful" for his actions and had now taken responsibility for them.
5. His Honour had regard to the maximum penalties stipulated for the subject offences and noted that general deterrence was an important matter to be taken into account in respect of the drug supply, police pursuit and resist police offences. He also had regard to the principles of totality and proportionality and found special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act warranting departure from the usual ratio of the non-parole period to the balance of term.
6. Having specified indicative sentences as identified in [3] above, the sentencing judge took into account in determining the aggregate sentence to impose that "the offences arise out of the same circumstances and would otherwise warrant some partial concurrency in sentencing" ([54]).

The applicant's submissions

1. In his written submissions, the applicant indicated that "no criticism is made in relation to the indicative sentences nor in relation to the findings as to the relative gravity of each of those offences" ([26]), even if it be assumed, as the applicant indicated that it should be, that the sentencing judge allowed a 25% discount on the aggregate and indicative sentences for early pleas of guilty. Rather, he submitted that the sentencing judge had not had "appropriate regard to questions of accumulation, concurrency and totality" (ibid). Orally, counsel for the applicant described the issue presented to this Court as one of "whether or not the aggregate sentence that was imposed … represents in the result accumulation that was beyond the discretion of the sentencing judge" (Transcript p 1).
2. The applicant accepted that at least some accumulation was appropriate in respect of the drug supply offence by reason of its distinctness from the other offences. He submitted however that the resist police and property damage offences "could result in wholly concurrent sentences" because "they added very little to the overall objective criminality and were part of the course of conduct forming a single continuing incident" (written submissions, [54]). He submitted that the indicative sentence of 2 years imprisonment for the police pursuit offence was sufficient to comprehend and reflect the totality of the criminality involved both in that offence and in the resist police and property damage offences.

Consideration

1. Where an aggregate sentence is imposed pursuant to s 53A of the Crimes (Sentencing) Procedure Act, the indicative sentences recorded "are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence" (JM v R [2014] NSWCCA 297 at [40] per R A Hulme J). On an appeal against an aggregate sentence "the principal focus … of a ground alleging manifest excess … will be whether the sentence reflects the total criminality" of the offences (Kerr v R [2016] NSWCCA 218 at [114] per Bathurst CJ referring to JM at [40]).
2. As I have noted, there is here no complaint about the individual indicative sentences. Rather, the applicant contends that the sentencing judge provided for insufficient concurrency of the indicative sentences, with the result that the aggregate sentence was manifestly excessive.
3. Although not conceded by the applicant, it was clearly open to the sentencing judge to take the view that any sentence imposed in respect of the drug supply offence should be wholly cumulative on a sentence for the police pursuit offence. They were disparate offences involving no overlap in criminality. The fact that the police pursuit offence led to the discovery of the drug supply offence does not indicate otherwise.
4. On that basis the appropriate total sentence for the police pursuit and drug supply offences would have been 3 years and 6 months (2 years plus 18 months), leaving the remaining 6 months of the aggregate sentence to be accounted for by the resist police and damage property offences. The unchallenged indicative sentences for the latter two offences were 9 months and 6 months imprisonment respectively, that is, a total of 1 year and 3 months. On this analysis the sentences for those two offences were notionally accumulated as to 6 months on the sentences for the police pursuit and drug supply offences and otherwise made concurrent with those sentences.
5. As this analysis is consistent with the aggregate sentence imposed, and indicative sentences specified, by the sentencing judge, it indicates that his Honour's approach was well within the range of reasonable approaches that were open to him on sentencing. Whilst the resist police and damage property offences were part of the same sequence of events as the police pursuit offence, thus justifying some concurrency in sentences, they reflected additional criminality that warranted significant accumulation.
6. Neither the indicative sentences nor the way in which they may have been accumulated in order to derive the aggregate sentence therefore suggests any error in that sentence.
7. Moreover, focus on the aggregate sentence itself also indicates the absence of error. As the sentencing judge found, the police pursuit offence was very serious, being above the mid-range of objective seriousness. The applicant drove at very high speeds, in a highly dangerous manner and over a considerable distance. Human life and safety were plainly at risk. As the Crown submitted, there was perhaps nothing other than good fortune that led to no-one being killed or seriously injured as a result of the applicant's conduct.
8. Against the background of the applicant's previous driving convictions and his continuing disobedience to the law, particularly in driving related matters, a very substantial penalty was warranted to ensure that the sentencing objectives of punishment, deterrence and the protection of society were fulfilled. In these circumstances, an indicative sentence of 2 years for the police pursuit offence was well justified. When the other offences were also taken into account, the aggregate sentence imposed must be regarded as within the range of sentences open to the sentencing judge and by no means manifestly excessive.
9. In conclusion, I note that the applicant referred in this Court to a written submission made to the sentencing judge that the resist police and damage property offences were relatively minor matters which added very little to the overall objective criminality and which could appropriately be dealt with by wholly concurrent sentences. The applicant noted that the Crown indicated to the sentencing judge that it did not "take any issue with anything that's been said", which the applicant took to include what had been said in his written submissions.
10. In noting these matters in his submissions in this Court, the applicant did not submit that the exchange constrained the judge's sentencing discretion. This being the case, what occurred is of no assistance to the applicant's arguments.

Orders

1. For the reasons I have given, I propose the following orders: 1. Grant the applicant leave to appeal. 2. Appeal dismissed.
2. R A HULME J: I agree with Macfarlan JA.
3. BELLEW J: I agree with Macfarlan JA.

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