District Court New South Wales Medium Neutral Citation: R v Dawson [2014] NSWDC 117 Hearing dates: 27 June 2014 Decision date: 27 June 2014 Before: Berman SC DCJ Decision: The overall effective sentence imposed consists of a non-parole period of six years six months, and a head sentence of nine years six months. Catchwords: CRIMINAL LAW - Sentence - Form 1 - Steal motor vehicle - Obtain property by deception - Drive in a manner dangerous - Use offensive weapon to prevent lawful apprehension - Detain person with intent to obtain an advantage - Car jacking - Not stop in a police pursuit Category: Sentence Parties: The Crown James Dawson Representation: Counsel: B. Bickford - Offender Solicitors Director of Public Prosecutions - Crown Legal Aid Commission - The offender File Number(s): 2013/2202100 SENTENCE 1HIS HONOUR: On 7 July 2013 James Timothy Dawson, who had been released from custody only three months or so before, wanted to travel to visit his ex-partner. He had concerns about her welfare. He committed an offence of stealing a car in order to travel to see her. He then put petrol in the car and drove off without paying for it. They are serious enough offences, but they pale into insignificance in the light of what Mr Dawson then did. He was responsible for a sustained period of mayhem as he committed a number of very serious offences, which will see him going to gaol for a significant period of time. 2He has pleaded guilty to four offences and asks when I sentence him for one of those, that a further four matters are taken into account on a Form 1. 3On the evening of 6-7 July, the offender took a blue Honda Prelude from outside the home of its owner in Munmorah. The stealing of that car appears on the Form 1. 4At about 11.52am on 7 July Mr Dawson filled the car up with petrol, but left without paying for it. The offence of obtaining property by deception also appears on the Form 1. 5Mr Dawson's offending escalated. At about 3.35pm on 7 July a police officer was performing stationary speed enforcement duties in Jesmond, just north of Newcastle Road. The speed limit is 90 kilometres an hour. The officer's attention was drawn to the stolen car being driven by Mr Dawson. Initially it was travelling at 120 kilometres an hour, but accelerated until it reached 146 kilometres an hour. The officer, Senior Constable Edden, gave chase. He reached a position until he was about two seconds behind the vehicle driven by Mr Dawson. He activated his lights and sirens in an attempt to persuade Mr Dawson to stop. Mr Dawson would not stop, until eventually he pulled over to the side of the road. Senior Constable Edden, no doubt thinking that matters were over, and so they should have been, got out of his car. As he did so, Mr Dawson drove off again, causing the senior constable to get back into his car and once again resume the chase. 6At one stage Mr Dawson drove the stolen car over a median strip to perform a U-turn and so he passed by the officer travelling in the other direction. Mr Dawson displayed his contempt for what was happening, by raising his middle finger towards the officer and yelling something at him. The pursuit continued, eventually reaching Hexham. This is an area known for heavy traffic volume. There is a service station and a McDonalds nearby. Mr Dawson travelled at high speeds. 7The officer was able to catch up to get closer to Mr Dawson, about a hundred metres away. At one stage Mr Dawson swerved to the right, which caused him to lose control. His car, or at least the car he had stolen, collided with another car, driven by a Mr and Mrs Atkinson. That rendered the Atkinsons' car undriveable. It also caused injuries to Mr and Mrs Atkinson. Fortunately those injuries were only minor. They were taken to John Hunter Hospital, but released soon afterwards. 8Immediately after the collision Mr Dawson remained in the stolen car. Once again, Senior Constable Edden got out of his car and approached Mr Dawson and once again, Mr Dawson sped away. Mr Dawson's failure to stop after an impact which had caused injuries, is another offence appearing on the Form 1. His conduct in driving as he did, while police wanted to stop him, is the subject of count 1 on the indictment, an offence that Mr Dawson, knowing that police officers were in pursuit of him and knowing that he was required to stop, did not stop and drove the car he was in in a manner which was dangerous to the public. That carries a maximum penalty of three years imprisonment. 9As Mr Dawson drove away from the scene of collision he was seen by an off-duty police officer, Brett Hopkins, to do so. He decided to follow Mr Dawson. Eventually he came across the stolen car which had come to rest amongst trees in a swamp. It appeared that, once again, Mr Dawson has lost control of the car. 10The off-duty police officer, Mr Hopkins, approached. He saw Mr Dawson climb out of the vehicle and as Mr Dawson approached Mr Hopkins, the latter said, "Mate, I'm a cop. Get on the ground". He attempted to arrest Mr Dawson but Mr Dawson had armed himself with a knife, he says from a tackle box he found in the stolen car. Mr Dawson swung the knife at Mr Hopkins and continued to do so. Not surprisingly, Mr Hopkins had grave concerns for his welfare. Mr Dawson began advancing towards Mr Hopkins. In defence Mr Hopkins pushed out at Mr Dawson, who stumbled backwards. Nevertheless, he continued to walk towards Mr Hopkins with his right hand held out, holding the knife and pointing it at Mr Hopkins. Clearly, Mr Dawson was intending to get away and was prepared to threaten Mr Hopkins with a knife in order to do so. He said, "Fuck it, I'll take your car then". Mr Hopkins told him the keys were not in the car. Mr Dawson continued to walk towards Mr Hopkins, still pointing the knife at him and looking in Mr Hopkins' car. With that avenue of escape apparently being thwarted, Mr Dawson took to the water. He tried to swim across the Hunter River to a nearby island but gave up and returned to shore. Mr Hopkins was still there and once again Mr Dawson threatened him with a knife. 11The events I have just described form the basis of count 2 on the indictment, an offence of using an offensive weapon, namely a knife, to prevent his lawful apprehension. 12Mr Dawson obviously formed the intention to hijack a passing car. He walked onto the Pacific Highway into the path of oncoming vehicles. One vehicle stopped. Mr Dawson approached the passenger side of this vehicle and attempted to open it, but the car drove away. He faces no count in relation to that conduct. 13He continued to walk across the Pacific Highway, with a number of vehicles having to stop to avoid colliding with him. One of them was a Land Rover, driven by a man by the name of Grant Phillips. Mr Phillips stopped and performed the actions of a good Samaritan. He tried to assist Mr Dawson, thinking that Mr Dawson had been assaulted, because that is what Mr Dawson told him. Mr Phillips asked Mr Dawson if he needed medical treatment. Mr Dawson responded affirmatively and asked to be taken to Maitland. So Mr Phillips was doing what every kind citizen would do, responding to a man in distress, who said he needed medical help. Mr Dawson repaid that kindness by, as I will shortly describe, subjecting Mr Phillips to what must have been a terrifying experience, an experience so frightening that eventually Mr Phillips leapt out of a moving car to escape. 14As they were driving along, Mr Dawson produced the knife, held it towards Mr Phillips and told him to drive in a manner which would mean that the police officer, Mr Hopkins, could not follow them. He was continually saying to Mr Phillips, "Drive, drive, drive. I don't want to hurt you". The expression, "I don't want to hurt you", must have been cold comfort to Mr Phillips, having a knife pointed towards him and having been told that he needed to drive in a manner which would make it impossible for a following car to keep up. That conduct and conduct I will shortly describe, has led to two offences, one of detaining a person with intent to obtain an advantage, that appears on the Form 1 and also an offence on the indictment, that he whilst armed with an offensive weapon, namely a knife, took for the purpose of driving Mr Phillips' Land Rover without his consent while Mr Phillips was in the motor vehicle. That offence has a maximum penalty of 14 years imprisonment with a standard non-parole period. The maximum penalty and the standard non-parole period reflect how serious the community expects that such offences be treated. 15As Mr Phillips was driving along, he saw that there were marked police vehicles approaching. The offender, still armed with a knife of course, told Mr Phillips not to stop and lose the police that were following him. Mr Phillips was even told at one stage to drive onto the wrong side of the road. Mr Phillips fortunately did not do so. He managed to turn onto another road, where he was told by Mr Dawson to go faster. 16Mr Phillips was forced to take evasive action on a number of occasions to avoid colliding with other traffic. Eventually he was able to slow the vehicle he was driving to about 30 kilometres an hour, before he jumped out. 17Still Mr Dawson continued to offend. He did not give up. He got into the driver's seat of Mr Phillips' vehicle, then commenced driving himself. He did a U-turn and went back towards the New England Highway. Whilst travelling in this direction he swerved to the wrong side of the road, driving towards both oncoming civilian and marked police vehicles. This dangerous behaviour not only forms the basis for count 4 on the indictment, another offence of not stopping in a police pursuit and driving dangerously, but this time it carries a maximum penalty of five years imprisonment, because it is the second such offence. 18Eventually police were forced to terminate the chase because of the way Mr Dawson was driving. He did not get away with it though, of course. DNA found in the vehicle he stole in the first place identified him and Mr Phillips picked his photo out of a photographic line-up. 19The offender pleaded guilty at an early opportunity to these offences. Thus the sentence I will impose upon him will be 25 per cent less than it would otherwise have been. As I mentioned, one of the offences carries a standard non-parole period. I have taken the maximum penalties and where appropriate the standard non-parole period into account in determining the appropriate sentence to impose upon Mr Dawson. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. 20Mr Dawson is the second of six children born to his mother and father . He has limited contact with his siblings, but retains the support of his parents, especially his mother. His father was involved in crime which, according to a psychological report tendered today, may have limited his ability to be an effective parent to Mr Dawson. To his credit, Mr Dawson Senior has apparently been out of trouble with police for the last 20 years. 21A particularly important aspect of Mr Dawson's upbringing is referred to in the psychological report. Consistent with what I said to Mr Dawson when he was giving evidence, I am not going to refer to it, but I have taken it into account. 22Mr Dawson's life has not really been a happy one. He described himself to the psychologist as a socially isolated individual, that matter being obvious even as a child. Those people he did associate with were involved in delinquent behaviour. They appear to have had a significant adverse effect on his behaviour, encouraging his misconduct and facilitating his delinquency. 23Mr Dawson did manage to secure one close friend. But what I am about to say is very poignant, given the offences for which Mr Dawson is to be sentenced. In 2009, while he and his friend were stealing a car, Mr Dawson crashed it and his friend suffered fatal injuries. Clearly, that was a matter of significant distress to Mr Dawson. Quite clearly also, he should have been well aware, more than most, of the horrible danger he presented to other road users on 7 July 2013. It is a matter of great good fortune that the only injuries which resulted from Mr Dawson's rampage of criminal behaviour were the minor ones suffered by Mr and Mrs Atkinson. 24Mr Dawson did form a relationship with a young woman when he was 17. That relationship lasted for about nine years and there are now three children of it. It was this woman, Mr Dawson's ex-partner, that he was anxious to see, which is why he stole the car in the first place. 25Mr Dawson was released from custody in March 2013. In April they had an argument and his ex-partner stabbed herself five times. Mr Dawson was distressed, not only by what his partner had done to herself, but also by the circumstance that, not surprisingly, he was investigated for possible involvement in the matter. It was apparently a threat from his ex-partner of further self-harm, which caused Mr Dawson to want to go and see her on 7 July. 26Mr Dawson has had a significant history of drug use. Starting, as is often the case, with cannabis, although he has only used that drug intermittently over the last few years. He does not use alcohol terribly much to excess any more either. His problem is with ice. He has been addicted to that drug for many years. On his release from custody in March, he was able to abstain for a relatively short period of time, but the argument with his ex-partner that I have mentioned, triggered a relapse and he started consuming the drug daily. Not surprisingly he was using the drug at the time of the offences for which I must now sentence him. 27I mentioned before that Mr Dawson's life had not been a terribly happy one. The psychologist describes him as characteristically depressed. He has struggled psychologically for many years. He is vulnerable to a melancholic mood and there is evidence of a post-traumatic stress response. He seems to have, so says the psychologist, little capacity to cope effectively with his mental state, choosing largely to respond with avoidance. That is consistent with what Mr Dawson told me in the witness box today, that he uses drugs to block things out. 28As the psychologist says, another way that Mr Dawson seeks freedom from the stresses he experiences in life is by driving. He has never had a driving licence, so not surprisingly, the majority of his prior offending has been driving related. 29Whilst in custody, Mr Dawson has taken steps to better himself. He has been doing courses, forklift driving, occupational health and safety certificates and the like. His opportunities for work and education have of course been limited, whilst on remand, but after sentence today, he will seek out such opportunities. 30Mr Dawson expressed, what I am satisfied was genuine remorse, in the witness box. He read out a letter which he had prepared in which he apologised to all the various victims of his offending. He was in tears as he read this letter. I am satisfied that he genuinely regrets what he did, not only because it will see him go to gaol for a long time, but because he realised he has harmed people, frightened them and indeed terrified them, in a significant way. 31I take into account that the more serious of Mr Dawson's offending was not really planned. On the other hand he did bring matters upon himself, not only by stealing the car, but then by travelling at high speed, which drew him to the attention of police. But what then followed was an escalating series of unplanned responses to the police wishing to arrest Mr Dawson. Police were no doubt concerned at the threat that Mr Dawson represented to innocent road users. It is a feature of Mr Dawson's criminality that he escalated matters as he did, caring it would seem little for the rights of anyone else apart from himself. He did not care that Mr Phillips must have been terrified. He did not care that he may have injured someone when he collided with the Atkinsons' car. He did not care that there was obviously a risk of injury when he was waving the knife around at the off-duty police officer and he did not care, that he might injure or even kill a large number of people, through his manner of driving. His criminality was grave indeed. 32No doubt, and this is stating the obvious, the fact that he was affected by ice had a significant detrimental impact on his ability to exercise judgment that day. But, after all, it was the offender's voluntary and criminal decision to consume the drug ice in the first place. 33The fact that Mr Dawson was released only a relatively short period of time before being re-arrested is of course significant as it demonstrates the difficulty that Mr Dawson will have leading a law abiding lifestyle on his release from custody. It is also more directly relevant to a finding of special circumstances. I will make a finding of special circumstances in this matter but, given the length of the sentence that I must necessarily impose to reflect the objective gravity of the offender's conduct, the variation from the statutory ratio is relatively modest. 34Attention was paid, during submissions, to the date on which I would commence sentence. Mr Dawson was serving a sentence, the non-parole period of which expired on 21 May 2014. Had he been dealt with for these offences and the Local Court matters at the same time, there would have been partial accumulation. Accordingly, I will date the sentences I am about to impose, from 7 January 2014. 35For the offence of count 1 on the indictment I impose a sentence of imprisonment, consisting of a non-parole period of nine months, commencing from 7 January 2014 and a head sentence of 18 months. 36For the offence in count 4 on the indictment I impose a sentence of imprisonment consisting of a non-parole period of 12 months, commencing from 7 July 2014 and a head sentence of 24 months. 37For the offence of count 2 I impose a sentence of imprisonment consisting of a non-parole period of three years, commencing from 7 January 2015 and a head sentence of four years. 38Taking into account the matters on the Form 1, for the offence in count 3 I impose a sentence of imprisonment consisting of a non-parole period of four years, commencing from 7 July 2016 and a head sentence of seven years. 39The overall effective sentence I impose consists of a non-parole period of six years six months, commencing from 7 January 2014 and a head sentence of nine years six months. Mr Dawson will become eligible to be released to parole on 6 July 2020. ********** 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: 29 July 2014