Regina v Holton [2002] NSWSC 775

New South Wales Supreme Court

CITATION : Regina v Holton [2002] NSWSC 775 FILE NUMBER(S) : SC 70112/01 HEARING DATE(S) : 13 May 2002 - 18 June 2002 JUDGMENT DATE : 23 August 2002

PARTIES : Regina v Trevor Edward HOLTON JUDGMENT OF : Davidson AJ

COUNSEL : M Tedeschi QC - Crown J O'Loughlin - Prisoner SOLICITORS : D.P.Ross Hill & Associaes CATCHWORDS : Remarks on sentence LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Road Transport (General) Act 1999 DECISION : Sentence imposed - see paragraphs 42,43,44

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL

DAVIDSON AJ

23 August 2002

70112/01 - REGINA v Trevor Edward HOLTON SENTENCE 1 HIS HONOUR: The prisoner was indicted on two counts. The first count charged that on 14 January 2001 at Campbelltown he murdered James Affleck. The second charge of manslaughter was laid in the alternative. The prisoner pleaded not guilty to the first count but guilty to the second count. He was convicted of the first count of murder and no verdict, of course, was taken on the alternative count. The maximum penalty prescribed for murder is life imprisonment. 2 By reason of the prisoner's plea of guilty there was no live issue before the jury that he had caused the death of the deceased by an unlawful and dangerous act, namely his manner of driving a Prado motor vehicle. It was by impact of this vehicle with him that the deceased, Senior Constable Affleck, a serving member of the New South Wales Police Service was killed. 3 Although the Crown opened its case on the basis of the prisoner having caused the death with an intention to kill or inflict grievous bodily harm or with reckless indifference to human life, ultimately the Crown case was left to the jury as one of reckless indifference to human life only, the Crown having abandoned the other heads of murder. 4 Although not expressly relied on by Mr O'Loughlin of counsel for the prisoner, an issue of self defence was left to the jury which was, of course, eliminated by its verdict. There was also an issue of intoxication going to the accused's state of mind and this, too, was obviously resolved against the accused although Mr O'Loughlin submits that the evidence relating to the prisoner's consumption of drugs before the chain of events leading to Senior Constable Affleck's death continues to be relevant to sentence. 5 Consistently, I trust, with the jury's verdict I find the following facts established by the evidence. On 14 January 2001, at a distance of about 43 kilometres south of the point of impact on the M5 expressway, the prisoner was driving a stolen Prado motor vehicle. Another male was with him in the car, together with a four year old child 6 The prisoner stopped the vehicle and a bag snatching offence was committed by the man with him who then returned to the car. The evidence that the vehicle was stolen and the evidence relating to this bag snatching was admitted as explaining what followed as far as the prisoner's driving was concerned, the prisoner consistently asserting that he was motivated by a desire to evade arrest. 7 He made off at a speed travelling on to the freeway going in the wrong direction up the ramp towards and proceeding for a distance in the wrong direction along it. He stopped and his male companion left the vehicle, the child still being in the car. 8 The prisoner then drove off. He was pursued intermittently over the following forty or so kilometres by the police, the pursuit being called off from time to time in the interests of safety. 9 During the course of the journey he exceeded the speed limit by substantial margins. He travelled on two occasions against the flow of traffic. He narrowly evaded a head on collision with a motorist and he overtook a number of vehicles whilst he was in the breakdown lane. 10 Notwithstanding that Constable Andrikis, the driver of a police vehicle following the Prado up to the point of impact, expressed his opinion as an experienced pursuit police driver that the prisoner's manner of driving was not dangerous or only dangerous in a limited respect or respects, Mr O'Loughlin of counsel conceded that it was both unlawful and dangerous and a formal admission was made as to this being the cause of death. 11 In my view, the concession is clearly correct and if I may so say so entirely in accordance with what was apparently in the best interests of the prisoner at his trial. 12 During the course of the pursuit, arrangements were made over the police radio communication system for the deceased to deploy road spikes or road sticks on the M5. Mr O'Loughlin, in his submissions to me on sentence, emphasised that this procedure had not been previously used in New South Wales and that the deceased had only had about four hours in training before he proceeded to deploy them. He had never done so previously outside his period of training. 13 I accept Mr O'Loughlin's submission that the deceased did emerge from behind the safety of a metal crash barrier on the eastern side of the north bound lane in order to deploy these road spikes but in my view he did so conscientiously with a view to more effectively doing his duty. For reasons not explained in the evidence the stop sticks were designed so that they could cover one lane only of this northbound stretch of the expressway. 14 The evidence of the prisoner's course of driving up until a point where he veered to the right approaching the deceased went to the jury as evidence of his state of mind at and immediately before the impact, as did the evidence that the prisoner had in the vehicle with him, the four year old child who, for at least part of the journey to the point of impact was not restrained by a seatbelt. It was his driving from the time of veering to the right up to the point of impact which was the act causing death and which was therefore the relevant period in which the culpability of the state of mind of the prisoner was to be considered and assessed by the jury. 15 In a recorded interview, Ex 24 in the trial, the prisoner said that he first saw the police officer laying the road spikes in lane two as he was travelling north. He then moved into lane number one. He said that the police officer moved into that lane and had thrown the spikes out, trying to get them in front of the Prado. He said to the interrogating police that he knew that they were road spikes being thrown out and it was clear from a video game found in his possession that he was well aware of the purpose of them as a method of bringing to an end unlawful and dangerous pursuits, such as the one which had taken place intermittently over the previous forty odd kilometres of public roadway. 16 He claimed to have been two or three hundred metres away from the police officer when he first saw him with the road spikes. They were laid in lane number two, the lane nearest to the grass median strip and the prisoner said he then moved into lane one. He said that by this time he had slowed from a speed of about 180 kilometres per hour to about 166 kilometres per hour. He was asked whether he had considered stopping and he said, "I did at first but then I thought I could get around it because they, I thought they were, the spikes went right across so I was ready to stop but when I seen it was only one lane of spikes I thought I would get around them". (Q & A 240 Ex 24).