Local Court New South Wales Medium Neutral Citation: Police v Aitken [2020] NSWLC 14 Hearing dates: 3 and 7 August 2020 Decision date: 09 October 2020 Jurisdiction: Criminal Before: Stewart LCM Decision: (1) An aggregate sentence of imprisonment of 4 years 4 days is made against the offender, with a Non-Parole Period of 2 years, 8 months. (2) The offender was disqualified for 5 years for the Pursuit, and on each of 2 Drive Disqualified matters for 12 months. All disqualifications were concurrent commencing on 25 November 2022. (3) A finding of special circumstances is made regarding the offender's drug and alcohol issues. Catchwords: Recidivist disqualified driver – recidivist offender for police pursuits – significant history of major traffic offences – on parole for similar offending – on other conditional liberty – need for specific deterrence – need for general deterrence – need for protection of community – record an aggravating factor – principle of totality – jurisdictional limit – Local Court limit of aggregate sentence – Local Court limit of sentence where offender serving sentence already – principles from Veen (No.2) enlivened Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Road Transport Act 2013 (NSW) Cases Cited: Aitken v R [2014] NSWCCA 241 Beale v R [2015] NSWCCA 120 Bugmy v The Queen [2013] HCA 37 Cahyadi v R [2007] NSWCCA 1 Greaves v R [2020] NSWCCA 140 Imbornone v R [2017] NSWCCA 144 Jibran v R [2020] NSWCCA 86 Markarian v The Queen (2005) CLR 357 Muldrock v The Queen (2011) 244 CLR 120 R v Merrin [2007] NSWCCA 255 Nguyen v R [2007] NSWCCA 14 R v Thomson [2000] NSWCCA 294 Tsakonas v R [2009] NSWCCA 258 The Queen v De Simoni [1981] HCA 31 Veen v The Queen (No. 2) (1988) 164 CLR 465 Category: Sentence Parties: NSW Police Force (prosecution) Matthew Aitken (defendant) Representation: Sergeant Pearce (prosecution) Solicitors: V Vijay, ALS File Number(s): 2020/00094021 and 2020/00095014 Publication restriction: Nil REMARKS ON SENTENCE The Charges and the Pleas 1. Matthew Wayne Aitken appears for sentence in relation to a number of charges. I found him guilty after defended hearing of charges of Steal Motor Vehicle contrary to section 154F Crimes Act 1900 (NSW), an offence of failing to stop when the defendant knew or reasonably should have known the police were in pursuit and driving in a manner dangerous to others (Police Pursuit 2+ offence) contrary to section 51B Crimes Act 1900 and Drive Whilst Disqualified (2nd or subsequent offence) contrary to section 54 (1)(a) Road Transport Act 2013 (NSW) [H73852723]. 2. The offender pleaded guilty to a separate Drive Whilst Disqualified (second or subsequent offence) [H74272619] that occurred 6 days prior to the matters that were defended. 3. The Drive Whilst Disqualified matters are second or subsequent offences because of prior convictions for identical offences as well as major offences within the past 5 years: see s9 (2) and (5) Road Transport Act 2013. 4. The Police Pursuit offence is also a subsequent offence because of prior convictions for identical offending. 5. The plea of guilty was entered on 3 August 2020 for the other Drive Disqualified matter. A discount of 20% is allowed consistent with the decision of R v Thomson [2000] NSWCCA 294, noting that the matter was first before the Court on 29 April 2020. 6. There is no discount applicable for the matters where the offender was found guilty after defended hearing. Maximum Penalties 1. The maximum penalty for Steal Motor Vehicle is 10 years imprisonment; for Police Pursuit where the offence is a second or subsequent offence is 5 years imprisonment; and for the offence of Drive Whilst Disqualified second and subsequent offence is 12 months imprisonment. Facts Drive Whilst Disqualified [74272619] 1. About 7.45am on Friday 20 March 2020 police were patrolling on the Golden Highway. They saw an oncoming vehicle sharply reduce its speed before shifting towards the fog line. 2. The vehicle was stopped by police. The offender informed police that he did not have a valid driver's licence. The only licence ever held by the offender was a Learners Licence obtained in 2010. His licence is disqualified: see criminal history below. Steal Motor Vehicle, Police Pursuit (2+), Drive Disqualified (2+) [H73852723] 1. I have already given a judgment following the defended hearing of charges of Steal Motor Vehicle, Police Pursuit (2+) and Drive Whilst Disqualified (2+). 2. The only issue in dispute was the identification of the offender which was readily established by an overwhelmingly strong case. 3. Around 11pm on 25 March 2020, the offender went to the premises of Christopher Parkes in Dubbo. Mr Parkes had known the offender for a matter of months. Mr Aitken asked to borrow a pair of shoes as his were wet. When Mr Parkes went to bed, the offender took the key to Mr Parkes silver Mazda 3 Neo and stole his car. 4. The offender attended those premises with Glynnis Wright. 5. At 3.42am 26 March 2020, police saw the vehicle, with only one headlight operating, leave the Caltex Service Station at the intersection of Cobra Street and Brisbane Street, Dubbo. The vehicle drove away, harshly accelerating, and police pursued the car. The car turned from Brisbane Street into Mitchell Street, then right onto Darling Street, left into Bishop Street and right again into Gipps Street before police lost sight of it. Police had activated their warning lights but were unable to catch up with the car. 6. Soon after, the car was seen travelling east on Myall Street before it did a U-turn accelerating past the police car again. 7. Sergeant Thompson was driving in a fully marked police vehicle looking for the car, having heard a broadcast that the car was seen turning from Palmer Street back onto Cobra Street, Dubbo. He saw the car travelling in an easterly direction at high speed on Douglas Mawson Drive but lost sight of the vehicle when it turned into Hume Street. 8. Shortly after that, at 3.58am, the Sergeant was driving in a northerly direction along Websdale Drive approaching the intersection of Cardiff Arms Avenue when the silver Mazda suddenly turned into Websdale Drive from Cardiff Arms Avenue, almost colliding with the police car. The Sergeant informed police radio that he was in pursuit, but due to the dangerous manner of driving by the driver of the Mazda, he was forced to keep a distance from it. The vehicle went through a number of bends and turned into an unknown side street out of sight. 9. The vehicle was located on fire near the Eulomogolo Creek Bridge on the Mitchell Highway. Criminal Record 1. The offender has an extensive criminal record including for major traffic offences. In 2010, he was convicted, fined and disqualified for being an Unlicensed driver, as well as convicted and fined for Negligent Driving. 2. In 2013, he was sentenced to imprisonment for 4 years and 1 month for Dangerous Driving Occasioning Death whilst under the influence (alcohol). 3. In 2017, he was convicted for Drive Licence Expired, Drive Under the Influence of Alcohol and Negligent Driving for which he was imprisoned for 9 months on the DUI charge, with the sentence expiring on 27 October 2017. That offence occurred whilst he was on parole for the Dangerous Driving Occasioning Death matter. 4. Shortly after that sentence expired, the offender was remanded in custody from 22 November 2017 and was subsequently sentenced to 15 months imprisonment for Police Pursuit Drive Dangerously and placed on a good behaviour bond for 2 years for Drive Whilst Disqualified (2+) and for Possess Prohibited Drug. That prison sentence expired on 21 February 2019. 5. In 2019, the offender was sentenced by way of aggregate sentence to 18 months imprisonment dating from 31 March 2019 for: 1. Drive Whilst Disqualified [H66225152] (call up of bond); 2. Possess Housebreaking Implements, Drive Whilst Disqualified (2+), [H69851931]; 3. Police Pursuit (2+), Drive Disqualified (2+) [H73473386]; 4. Police Pursuit (2+), Drive Whilst Disqualified (2+) [H71775868]; 5. Larceny, Drive Whilst Disqualified (2+) [H72556087]; 6. Larceny, Drive Disqualified (2+) [H70729823]; and 7. Larceny and Drive Whilst Disqualified (2+) [H70791813]. 1. The aggregate sentence was to expire on 30 September 2020. 2. The offender's criminal record is an aggravating factor pursuant to section 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 (NSW). Conditional Liberty 1. As indicated immediately above, the offender was on parole at the time of the current offences for sentencing, by virtue of 7 counts of Drive Whilst Disqualified (2+), 2 counts of Police Pursuit (2+), Possess Housebreaking Implements, and 3 counts of Larceny. 2. In addition to parole, the offender was on 3 Community Correction Orders for Carried in Conveyance, Goods in Custody and Shoplifting. 3. The commission of further offences whilst on conditional liberty is a statutory aggravating factor pursuant to section 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. Plea in Mitigation 1. The offender is 27 years old. It was acknowledged that the deprivation of the car from its owner adds to the seriousness of the steal motor vehicle matter. 2. Mr Vijay suggested that the total distance of the pursuit was, on his calculations, around 890m. It is very difficult to accept that figure. The pursuit occurred in different locations in Dubbo by different police officers. The last part of the pursuit was several kilometres from where the first part of it commenced. 3. It was a continuing course of driving punctuated by occasions where different police vehicles pursued the driver and the offending vehicle during a short compass in time. 4. I note that the defence was conducted on the grounds of identification only. No challenge was made to the way in which the case was run concerning evidence of the vehicle being pursued. It is not surprising that the police laid only a single charge of Police Pursuit in the circumstances in which it took place. Had the police laid separate pursuit charges, it would have been to the detriment of the offender, since once identification was established, the unchallenged evidence of the defendant's driving established guilt of the driving matters and he would have faced, in effect, 3 potential penalties of an offence that carries 5 years, as well as 3 separate charges of drive disqualified, each carrying a potential penalty of 12 months. 5. It was conceded that the pursuit occurred in parts of Dubbo where the speed limit was either 50kph or 60kph and that the pursuit matter involved public safety issues. 6. It was also conceded that the offender's record is an aggravating factor, and that he was on parole at the time of offending. 7. Mr Vijay also acknowledged that the section 5 Crimes (Sentencing Procedure) Act 1999 threshold was crossed and that no sentence other than full-time custody would be appropriate given the need for specific and general deterrence. 8. It was suggested that the offender might be at risk of institutionalisation. His parole was revoked on 8 April 2020, and he served the balance of that sentence from 26 March 2020 to 30 September 2020. 9. Mr Aitken has a 5-year-old son who lives in Wellington. The offender completed year 10 at high school. He is said to have worked fairly regularly as a roustabout after leaving school and worked in an abattoir in Dubbo around 2011 to 2013. 10. The offender commenced using drugs at the age of 17, including methyl amphetamine, heroin, and oxycodone. He instructs that he has remained abstinent whilst in custody. 11. Mr Aitken is said to have anxiety and depression as well as PTSD. Upon release, he says that he wants to gain employment and wants to be able to drive with a licence, though he is aware of the fact that he will be disqualified for some time. 12. His early life had elements of social deprivation. His mother used drugs. He witnessed domestic violence. 13. The Court is asked to make a finding of special circumstances concerning Mr Aitken's drug and alcohol issues, mental health issues and due to what is known as Bugmy issues, from the decision of Bugmy v The Queen [2013] HCA 37. 14. The offender has been in custody since 26 March 2020. Mr Vijay accepted that the Court has discretion as to when the sentence of imprisonment should commence given that his time in custody has not been solely referable to the present charges. General Remarks Driving Whilst Disqualified – H73852723 and H74272619 1. In Jibran v R [2020] NSWCCA 86 Johnson J. (with whom Leeming JA and Harrison J. agreed) provided guidance for sentencing offenders who are repeat disqualified drivers. His Honour said at [200]: "A very strong measure of specific and general deterrence is required for the offence of driving whilst disqualified." 1. The facts in that decision were entirely unremarkable. The offender drove with a passenger in the car. There were no issues as to the manner of driving. The Court held that the offence committed was a very serious offence of that type. The offender was on conditional liberty for driving disqualified and had a poor history of compliance with Court orders. He received the maximum penalty of 12 months less a discount of 25% for the utilitarian value of the plea (being a 2+ offence). 2. The decision provides guidance for the court's task of determining the objective seriousness of a given offence having regard to aggravating factors. The case is an important binding authority on this court. 3. The offender's dangerous manner of driving in a police pursuit, coupled with the fact that he has never held a licence entitling him to drive on his own, increases the objective seriousness of the drive disqualified matter. 4. The following extracts from Jibran are apposite to Mr Aitken's matters, in addition to [200] cited above: "[189] …In New South Wales, disqualification from driving follows conviction…which may give rise to "ordered" … or "automatic disqualification" …Driving whilst disqualified involves an offender defying an order made in or flowing from curial proceedings. … [191] Where the disqualified driver has never held a licence, the offence is further aggravated because of public safety concerns where such a person is driving vehicles on public roads. … [195] The power to disqualify is given in aid of the proper protection of members of the public in their lawful use of a public highway: R v Veatufunga [2007] NSWCCA 54 at [40]. [196] The plain purpose of the legislation is to regulate aspects of road transport, including the disqualification of persons from driving where it is established those persons have not shown the requisite degree of responsibility necessary to drive, a matter which concerns the protection of the public: Hei Hei v R [2009] NSWCCA 87 at [37]; R v Greaves [2014] NSWCCA 194 at [70]. [197] Further, the Applicant has never held a driver's licence. In R v AB (2011) 59 MVR 356; [2011] NSWCCA 229, this Court said at [112]: '… this Court has said that a licence to drive a motor vehicle is a privilege which carries with it significant obligations to drive safely and not to endanger the lives of others: Gillett v R [2006] NSWCCA 370; 166 A Crim R 419 at 437-438 [47]. The Respondent had never been licensed to drive a motor vehicle and was a disqualified driver at the time of these offences. Far from being privileged to drive as a licensed driver, he was prohibited by law from driving. His driving history, and status as a disqualified driver, indicated an attitude of disobedience to the law and required that increased weight be given on sentence to issues of retribution and personal deterrence: R v Nguyen [2008] NSWCCA 113 at [51]'. [198] … In Police v Te Pairi [2008] NSWLC 17 Henson DCJ said at [53]: '…The principles of general and specific deterrence are of particular importance to these types of offences. Offenders who are disqualified from driving need to know that the community and the court expects that the sentences imposed for offending behaviour will not simply be ignored. Irrespective of the motivation of the offender, predicated as it was on self-interest, the need to respect the law requires from time to time a strong message to be sent to offenders that their wilful disobedience of its strictures comes at a price. In this case the price the offender will pay will be to lose his liberty'. [199] It was an aggravating factor on sentence that these offences were committed in breach of conditional liberty whilst the Applicant was on bail. He was already a disqualified driver, but his actions in driving on 4 and 5 May 2018 constituted further express breaches of his conditional bail. In addition, at the time of these offences, the Applicant was subject to two non-custodial sentencing orders for driving whilst disqualified (see [50] above). All of this needs to be reflected in penalty for these offences. … [201] … The maximum penalty represents the legislature's assessment of the seriousness of the offence and for this reason provides a sentencing yardstick: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. An offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence: Kilic v The Queen at [18] ... [202] The Applicant had prior non-custodial sentencing options extended to him and he had not made full use of the indulgences he had received through those sentencing measures. … [205] … complete disregard for the law may be demonstrated by an offender's recidivist driving history. That contumelious approach requires a further level of significant caution in assessing prospects of rehabilitation and compliance with court orders". 1. Disqualified driving is a prevalent offence in the community, which also points to the need for general deterrence. 2. The issues of public safety referred to in Jibran (supra) are highlighted by the fact that the offender on this occasion was involved in a dangerous police pursuit involving high speeds in suburban streets, and on one occasion he nearly collided with a police vehicle. 3. There are earlier entries on the offender's criminal record that show a link to his driving whilst disqualified or similar and the commission of an offence that involves significant public safety issues. They include: 1. Drive Unlicenced coupled with Negligent Driving (2010). 2. Dangerous Driving Occasioning Death whilst under the influence noting that the offender did not hold a licence and had only ever held a Learner Licence. 3. Drive Under the Influence (alcohol) coupled with Negligent Driving and Licence Expired (being a Learner Licence) (2017). 4. Police Pursuit Drive Dangerously (2+) and Drive Disqualified (2+) in 2018. 5. Police Pursuit Drive Dangerously (2+) and Drive Disqualified (2+) in 2019. 6. Further Police Pursuit (2+) and Drive disqualified (2+) in 2019. 1. I consider the objective seriousness of each of the driving whilst disqualified matters to be at the top of the higher range, in conformity with the binding authority of Jibran. Police Pursuit (2+) 1. The police pursuit involved high speeds on various suburban streets in residential areas of Dubbo. The offender had a passenger in the vehicle, Glynnis Wright. The vehicle had been stolen by the offender a matter of hours beforehand. 2. At one point the offender nearly caused the vehicle he was driving to collide with a police vehicle. 3. The driving involved actual danger and potential danger. That danger extends beyond the offender to his passenger, innocent road users, and police officers. 4. The various streets upon which the stolen vehicle was sighted meant that it covered several kilometres. Although it is accepted that it cannot be established that it was being driven at high speed or in a manner dangerous at all times. 5. The objective seriousness of the offence is in the mid-range. 6. The matter is aggravated by the offender being on conditional liberty for multiple identical offences and multiple driving disqualified offences, and further aggravated by his abysmal record of driving related offences. 7. It is worth repeating the remarks from Jibran v R [2020] NSWCCA 86 at [205]: "[205] Complete disregard for the law may be demonstrated by an offender's recidivist driving history. Such contumelious approach requires a further level of significant caution in assessing prospects of rehabilitation and compliance with court orders." 1. The objective seriousness and circumstances of aggravation place this matter in above the mid-range. Steal Motor Vehicle 1. The act of destroying the vehicle permanently deprived the owner of his property. The offender is not charged with that offence. I only take into account the fact of destruction of the vehicle, rather than the manner of destruction, to establish the element of an intention to permanently deprive the owner of the property stolen. To do otherwise would offend the principle enunciated in The Queen v De Simoni [1981] HCA 31. 2. A sentencing court is to have regard to the maximum penalty and any standard non-parole period, which operate as a legislative guidepost: Muldrock v The Queen (2011) 244 CLR 120 at 132 [27], and Markarian v The Queen (2005) CLR 357 at 372 [31]. Standard non-parole periods do not apply in Local Court sentencing (see s 54D(2) Crimes (Sentencing Procedure Act) 1999): "This Division does not apply if the offence for which the offender is sentenced is dealt with summarily." In any event there are no standard non-parole periods for the offences charged. 3. The clear purpose of the vehicle being destroyed was to eliminate means of identification by fingerprint and DNA evidence. Therefore, I take into account that the offender intended to permanently deprive the owner of his property in an attempt to prevent detection for his crimes. 4. I consider the offence falls in the upper range of objective seriousness. Purposes of Sentencing – Section 3A Crimes (Sentencing Procedure) Act 1999 (NSW) The purposes for which a court may impose a sentence on an offender are as follows-- (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 1. All of the purposes of sentencing are relevant to this sentencing exercise. However, the need for protection of the community is very significant considering the offender's criminal record of major traffic offences, driving disqualified in defiance of court orders, disregard for the law, and the actual and potential dangerousness evident from his conduct on a number of occasions between 2011 and 2020. 2. There is a need to give strong measure to specific deterrence as well as general deterrence. The need to promote the offender's rehabilitation must, in the circumstances, be subordinate to the need for specific deterrence and general deterrence. 3. I am unable to find that the offender is unlikely to reoffend. Given his recidivism and demonstrated non-compliance with Court orders, I consider it highly likely that the offender will reoffend. He has taken the life of a person in the past yet has continued to engage himself in police pursuits and drive whilst disqualified. 4. I find that the offender does not have good prospects of rehabilitation given the prevalence of his reoffending and the nature of the offences committed. 5. His defiance of court orders and contumelious disregard for the law, and apparent ambivalence to the safety of other road users, requires condign punishment and retribution. 6. In Tsakonas v R [2009] NSWCCA 258. RA Hulme J (Tobias JA, Hoeben J agreeing) said at [36]-[37]: "[36] In relation to the permissible consideration of previous convictions as an "aggravating factor" per s 21A(2)(d), Johnson J observed in Regina v Walker [2005] NSWCCA 109: '[27] Section 21A(4) of that Act provides that the court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. It has been held that the effect of s 21A(2)(d) and (4) is to require the court to apply the common law principles in Veen v The Queen (No. 2) (1988) 164 CLR 465 with respect to the use of a prior criminal record on sentence: R v Johnson [2004] NSWCCA 76 at paragraphs 32-37; R v Wickham [2004] NSWCCA 193 at paragraph 24. In R v Shankley [2003] NSWCCA 253, Howie J expressed the principle in Veen (No. 2) as follows (paragraph 31)': "The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that 'retribution, deterrence and protection of society may indicate a more severe sentence is warranted"." (emphasis added). 1. The principle in Veen (No.2) is applicable in this case. Matters Called Up – Community Correction Orders 1. I have had regard to the facts used for the purpose of sentencing on the matters for which the offender was placed on Community Correction Orders. They are Goods in Custody, Carried in Conveyance and Shoplifting. 2. The shoplifting matter involved the offender stealing $554 of clothing and shoes from Sportsman's Warehouse in Dubbo on 8 August 2018. He did this by walking out of the store with stolen goods when a staff member was distracted. It carries 5 years imprisonment, 2 years imprisonment in the Local Court 3. The Goods in Custody matter and carried in conveyance matters are related. On 6 July 2018, the offender received a lift in a stolen motor vehicle whilst knowing that it was stolen from Wellington. He was in possession of the stolen vehicle at the time he was arrested. The offender was affected by alcohol. Syringes and other drug paraphernalia were located in the vehicle. I note that the penalty for Goods In Custody of a motor vehicle is 12 months imprisonment. The penalty for Carried in Conveyance is 5 years imprisonment. Aggregate Sentence 1. I am of the opinion that all of the offences for which the offender is to be sentenced cross the threshold pursuant to section 5 Crimes (Sentencing Procedure) Act 1999. 2. I will deal with these matters by way of aggregate sentence per section 53A Crimes (Sentencing Procedure) Act 1999. 3. Prior to giving the indicative sentences, there are two important matters involving sentencing in the Local Court, both of which are set out in Greaves v R [2020] NSWCCA 140. 4. In that decision at [66], Cavanagh J. with Hoeben CJ at CL and Hamill J. agreeing, said: "[66] … the sentencing principles applicable to the process of sentencing remain the same in the Local and District courts. … the magistrate was required to assess the appropriate sentence having regard to the prescribed maximum penalty for each offence rather than any jurisdictional limit. The jurisdictional limit only becomes relevant if the assessment leads to a sentence greater than the limit". (footnotes omitted). 1. The principle in Greaves is clear. The Local Court in sentencing an offender is no different to the way in which the District Court should sentence an offender, subject to the jurisdictional limit if the sentence that should be imposed for an individual offence exceeds that limit. 2. I am satisfied that the appropriate sentence for the Steal Motor Vehicle matter far exceeds, and Police Pursuit (2+) matter exceeds, the jurisdictional limit of the Local Court. The indicative sentences for each of those offences must therefore be limited to 2 years. H Number Sequence Offence Indicative Sentence H73852723/1 Steal Motor Vehicle 2 years H73852723/2 Police Pursuit (2nd offence) 2 years H73852723/3 Drive Disqualified (2nd offence) 12 months H72472619/1 Drive Disqualified (2nd offence) 9 months H69851931/1 Shoplifting 3 months H68040240/1 Goods in Custody 6 months H68040240/3 Carried in Conveyance 6 months Partial Accumulation 1. In Cahyadi v R [2007] NSWCCA 1 Howie J. said at [27]: "… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality …" (emphasis added). 1. In Nguyen v R [2007] NSWCCA 14 at [12] Howie J. (Sully and Price JJ agreeing) said: "It seems obvious from a number of matters that have been before this Court recently, that there is abroad an insufficient understanding of the principles of totality and of the relevant factors to be taken into account when determining whether to order that sentences be served concurrently or made, at least, partially cumulative. There is no rule that sentences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of this Court that should make it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence …." (emphasis added). 1. In R v Merrin [2007] NSWCCA 255 Howie J. said at [36]: "[36] This Court has been at pains to make it clear that sentences for multiple offences are not made concurrent simply because they arise from a single incident of criminality or because they are of a similar nature and committed in similar circumstances. The statement of Simpson J in R v Hammoud (2000) 118 A Crim R 66 concerning the discretion of a sentencing judge in respect of the structuring of offences has to be read subject to what is required in a particular case to reflect the totality of the criminality before the Court. With respect, the Judge has simply failed to approach the structuring of the sentence according to established principle." (emphasis added) 1. The offences of steal motor vehicle, drive disqualified, and police pursuit, involve a continuing episode of criminality and occur on the same day: see Nguyen and Mirren (supra). 2. The stealing of a car can be achieved by a thief who has a driver's licence and need not result in a police pursuit. A person who is a disqualified driver might drive a car without it being stolen, and without engaging in a police pursuit. 3. Matthew Aitken stole a car, drove whilst disqualified and became involved in a police pursuit. The sentence for one offence cannot comprehend and reflect the criminality for the other offence: see Cahyadi (supra). 4. There will be partial accumulation in relation to all offences. Consideration re institutionalisation 1. In Beale v R [2015] NSWCCA 120, Beech-Jones J. with Hoeben CJ at CL and RA Hulme J. agreeing said at [68] to [70]: "[68] There is no doubt that the risk of an offender becoming "institutionalised", that is becoming so conditioned to an institutional environment that their release into society leads to a heightened risk of their reoffending, is a matter that is capable of warranting a finding of "special circumstances" for the purposes of s 44(2) of the Sentencing Act (see Jackson v R [2010] NSWCCA 162 at [24]). If such a finding is made then it can justify a reduction in the non-parole period and an increase in the additional term to facilitate the offender's supervision on parole. However the mere identification of an offender as being institutionalised or at risk of institutionalisation does not compel a sentencing Court to find special circumstances and reduce the non-parole period. The overall purpose of the exercise is to facilitate the offender's rehabilitation. To that end "there must exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful" (R v Tuuta [2014] NSWCCA 40 at [57]; see also R v Carter [2003] NSWCCA 243 at [20]). [69] It follows that, even if an offender is either institutionalised or at risk of institutionalisation, it is open to a sentencing judge to nevertheless decline to make a finding of special circumstances and vary the minimum ratio if they are not sufficiently satisfied that a longer period of parole is likely to result in their rehabilitation being successful, especially if the other factors relevant to sentencing do not warrant that course (see R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59] and [65]) … [70] … It was open to his Honour to conclude that no further parole period was warranted having regard to the countervailing considerations identified by his Honour of general deterrence, specific deterrence "and the protection of the community" ….". 1. The defendant has not established that he is at risk of institutionalisation, nor does an examination of his criminal history lead to such a conclusion. 2. The factors that appear to lead to the offender's recidivism are associated with drug and alcohol abuse and potentially some obsession with driving motor vehicles. The fact that he deliberately destroyed the motor vehicle to avoid liability for driving disqualified and led police on a pursuit, points in a direction other than a person so conditioned to a custodial environment that their risk of reoffending is increased. 3. I accept that the offender will need strict supervision to assist with his eventual reintegration into society. By the time he completes the sentence to be imposed, supervision will also be required to ensure that the offender does not relapse into drug use. Submissions Regarding Bugmy Issues 1. In relation to submissions finding special circumstances of Bugmy type considerations, I note from the offender's criminal history that he unsuccessfully appealed to the Court of Criminal Appeal from his sentence for Dangerous Driving Occasioning Death in 2014, reported as Aitken v R [2014] NSWCCA 241. 2. The sentencing proceedings at first instance were conducted before Judge Lerve, the same judge who presided over R v Bugmy at first instance. Indeed, it was the learned Judge's findings in relation to social deprivation that were ultimately appealed to the High Court of Australia, found to be correct, and are now enshrined in sentencing law as a factor amounting to a special circumstance that may continue to have application to sentencing proceedings for an offender for subsequent offending. 3. No mention was made at first instance of any Bugmy type factors warranting a finding of special circumstances, noting that a report from a social worker was used on sentence: see Aitken v R [15]. No application was made in the Court of Criminal Appeal in relation to the unsuccessful ground of appeal concerning manifest excess, that there was fresh evidence, or any evidence, that suggested Bugmy issues were enlivened: see Aitken v R [26] – [32]. 4. There is no independent evidence in these proceedings that establishes the submission concerning Bugmy issues. The offender's mother is said to have been a drug user. It is submitted that the defendant 'grew up around domestic violence'. His father died when he was 3 years of age. It is suggested that the offender commenced using drugs when he was 17. 5. The Court of Appeal decision refers to findings in the District Court, based on the social worker's report, that the offender was 19 (not 17) at the time of that offence and commenced using cannabis and amphetamines. The report refers to previous binge drinking. 6. The submissions made in these sentencing proceedings contradict earlier findings in the District Court referred to in the Court of Criminal Appeal. Those findings were partly referenced to a social worker's report. The offender did not give evidence in these proceedings. No application was made in the Court of Criminal Appeal to put further evidence forward regarding Bugmy type issues. 7. I am not persuaded that there is any foundation to the submission: see Imbornone v R [2017] NSWCCA 144 at [57]. It is most concerning that such differing submissions have been made in relation to the same offender in different courts. Totality 1. I must have regard to the principle of totality, noting that the offender was sentenced for the offences previously referred for 18 months from 31 March 2019. He spent 10 months in custody until 30 January 2020. 2. I must also have regard to section 58(1) Crimes (Sentencing Procedure) Act 1999, which provides: 58 Limitation on consecutive sentences imposed by Local Court (1) The Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began. 1. But for the requirements of section 58 Crimes (Sentencing Procedure) Act 1999 , the appropriate and proportional sentence would be 4 years 6 months. 2. However, the maximum sentence that can be imposed for the present matters is 4 years 4 days from 26 March 2020 due to the effect of section 58, i.e., taking into account his existing sentence. 3. The non-parole period is reduced slightly due to a finding of special circumstances regarding drug and alcohol issues, however, that reduction is tempered by the ongoing need for the protection of the community. 4. The offender has been in custody since 26 March 2020 and any sentence will be backdated to that day. ORDERS 1. The offender Matthew Wayne Aitken is sentenced to a term of imprisonment of 4 year and 4 days from 26 March 2020 to 30 March 2024. 2. The non-parole period is 2 years 8 months from 26 March 2020 to 25 November 2022. 3. The overall effective sentence is 5 years imprisonment from 31 March 2019 to 30 March 2024. 4. The overall effective non-parole period is 3 years 6 months. 5. In relation to the offence of Drive Disqualified (2+) [H74272619] the offender is disqualified from driving for a period of 12 months. 6. In relation to the offence of Police Pursuit (2+) and related Drive Disqualified, the offender is disqualified for 5 years from the expiration of his current disqualification period [noting the effect of section 205(4) Road Transport Act 2013]. 7. A finding is made of special circumstances regarding the offender's drug and alcohol issues, and to assist with his supervised reintegration back into society. ********** Amendments 01 August 2024 - Amended formatting. 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: 13 August 2024