R v Thaidy (2) [2014] NSWDC 194

District Court New South Wales

Medium Neutral Citation: R v Thaidy (2) [2014] NSWDC 194 Hearing dates: 25 July 2014 Decision date: 25 July 2014 Before: Berman SC DCJ Decision: The overall effective sentence I impose consists of a non-parole period of four years, nine months and a head sentence of seven years, three months. Catchwords: CRIMINAL LAW - Sentence - Sentence after judge alone trial - Use motor vehicle as an offensive weapon to avoid apprehension - Aggravated break enter and steal - Drive in a manner dangerous - Drive unregistered and uninsured vehicle - Drive while never licensed to do so - Offender on parole at time of offence Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Patrick Christopher Thaidy Representation: Director of Public Prosecutions Legal Aid Commission - Offender File Number(s): 2013/221387

SENTENCE 1HIS HONOUR: Whilst on parole for an offence of aggravated break, enter and steal, and whilst on bail as well, the offender went out to a party one evening. He there met two other people. They left, with the offender driving his car, despite the fact that it was uninsured, and unregistered, and Mr Thaidy did not have a licence. 2As they drove past a small shopping centre for reasons that are never really satisfactorily explained, Mr Thaidy and the two people that he was with decided that they would break into a hairdressing salon in the shopping centre. They made observations of the premises, drove away and then came back about ten minutes later. A nearby resident saw what was happening and telephoned police. 3Whilst police were on their way, the offenders broke into the hairdressing store and took some property, $46 in cash, three pairs of scissors and two razors. The meagre results of their offending were something that was entirely to be expected. 4As the three offenders were about to leave, the police arrived. One of those police officers was an officer by the name of Senior Constable Ballard. He ran towards the offender's car. The offender was in the driver's seat and his two co-offenders were in the rear seat. Senior Constable Ballard attempted to stop the offender driving off, grabbing hold of him through the driver's open window. Another officer, Sergeant David Lewis, also in full police uniform, ran from his police car. He approached the offender from the other direction, getting into the front passenger seat. Whilst he was kneeling on the front passenger seat he grabbed the offender with both hands and tried to pull him out of the car, but the offender was determined to get away. He broke free of Senior Constable Ballard's grip and accelerated wildly. This caused Sergeant Lewis to be propelled into the rear seat of the vehicle. He still had hold of the hoodie being worn by the offender. 5The offender drove out of the shopping centre car park, turned left and then left again and began driving in an extremely dangerous manner. His intention was to cause Sergeant Lewis to lose hold of him either so that Sergeant Lewis could be thrown out of the vehicle, or so that when the vehicle eventually stopped the offender could run away unhindered. 6He drove from side to side, swerving violently across the roadway. At times he would drive up onto the gutter. At one stage he hit a metal sign before driving back onto the road. Eventually the offender tried to make a righthand turn but lost control of his car, it left the roadway, went through the fence of a house, and stopped. 7All the time Sergeant Lewis was being thrown up and down and from side to side colliding with various things inside the car. He gave evidence that he was in fear of his life and I have no doubt that his apprehension was genuine. He even gave evidence that at one stage he pulled his service pistol out of its holster and contemplated shooting Mr Thaidy, the offender. The only thing that stopped him was apparently that the officer realised that at the speed the car was travelling it was more dangerous to shoot the driver than it would be to hold on and hope for the best. 8Sergeant Lewis suffered a number of injuries as a result of what occurred, both physical and psychological. A victim impact statement was relied on by the Crown. The Crown also tendered a statement of facts which set out physical injuries the officer suffered, I therefore have no hesitation in finding as a result of the injuries the officer suffered, he is receiving ongoing treatment, getting regular physiotherapy for injuries to his back and right shoulder and, probably more importantly, regular psychological counselling for recurring nightmares and anxiety attacks following this incident. 9The victim impact statement sets out the consequences for Sergeant Lewis of the offender's serious criminality. In particular he is not able to work as he did in the past. He has become withdrawn both personally and professionally. These consequences for Sergeant Lewis were entirely foreseeable, they are exactly the sort of consequence that could easily be expected as a result of Mr Thaidy subjecting Sergeant Lewis to the terrifying experience I have described. 10Mr Thaidy now appears for sentence having pleaded guilty to an offence of aggravated break, enter and steal and having been found guilty by me for an offence of using an offensive weapon with intent to prevent lawful apprehension in company. The first of those matters carries a maximum penalty of 20 years' imprisonment with a standard non-parole period of five years. The second carries a maximum penalty of 15 years' imprisonment but despite the lower maximum penalty, it is common ground that it is the more serious of the offences in the present circumstances. 11I am also to sentence Mr Thaidy for related offences on a s 166 certificate, driving in a manner dangerous, driving an uninsured vehicle, driving an unregistered vehicle and driving a vehicle without ever being licensed to do so. 12I take into account the pleas of guilty that were entered and so the sentences I will impose upon the offender for those matters is 25% less than it would otherwise have been. 13There was no plea of guilty to the most serious offence, using an offensive weapon with intent to prevent lawful apprehension but nevertheless there were concessions made in the course of the trial which limited the matters in dispute. The accused's attitude towards those matters I have also taken into account. 14Mr Thaidy was brought up by parents who loved him and cared for him. He has a number of siblings. Neither of his parents and none of his siblings have been in trouble with the police. 15As Mr Thaidy was growing up there were financial problems due to his mother's gambling and his parents unemployment, but that is the only blot to be noted in the offender's family upbringing. His parents did not abuse drugs or alcohol, nor did they commit any offences. Mr Thaidy had a good upbringing. His choice to begin to commit crimes, his choice to begin to use drugs and his choice to continue both using drugs and commit crimes as he got older has to be looked at in that light. 16The financial problems caused by unemployment and gambling led to the offender becoming embarrassed and angry at his parents. That in turn led to him committing thefts in order to obtain money. That of course led to tension in the family, he left home at times and would return on occasions but even when he was living at home attempted to avoid home life. 17He began using drugs at a young age and indeed was under the influence of drugs at the time of these offences. He has for many years associated with friends who also commit offences. Mr Thaidy sees a connection between associating with such people and the commission of offences. He will not introduce his younger brother to his friends because he does not want him to make the same mistakes that he did. Unfortunately, as Mr Thaidy made clear in evidence today, he has no intention of disassociating himself from those people to whom he would not introduce his brother. He either fails to see the connection between associating with them and offending or just does not care. 18Mr Thaidy is a man where immaturity and inability to think about the consequences of his actions appear to have affected his behaviour for many years. Whilst that may impact upon the offender's moral culpability, it may also suggest the need for substantial component of personal deterrence to be built into the sentence which I will shortly announce. 19Of course the most serious offence I have already mentioned is the offence of using an offensive weapon in an attempt to prevent lawful apprehension in company. The police officer involved, Sergeant Lewis, has been harmed by the offender's misconduct. Police, as the authorities have noted, do a dangerous job. What they do is risk their personal safety in order to protect other members of the community. It is incumbent upon the Courts to do what can be done to protect them. One way in which the Courts respond to offences of this kind is to impose severe, and indeed harsh, sentences in an attempt to deter others who may be tempted to do what Mr Thaidy has done. His offence was unusual in the sense that Sergeant Lewis was actually in the car, but the situation where an offender drives a motor vehicle at a police officer with intent to avoid apprehension is unfortunately relatively commonplace. Offenders having committed one offence such as a break, enter and steal must realise that if they attempt to evade apprehension by threatening harm to a police officer, or by actually harming a police officer using an offensive weapon such as Mr Thaidy did, Courts will respond with appropriate sentences to reflect the grave criminality of what they have done. 20I take into account that there was a limited degree of planning for the break, enter and steal offence and perhaps no planning at all for the more serious offence. It was, it would seem, a spur of the moment decision to swerve from side to side in an effort to break Sergeant Lewis's grip once the offender found himself driving away from the scene of the crime with Sergeant Lewis in the car with him. 21I should mention the question of parity. The two other offenders were dealt with in the Children's Court. I have to be careful that the offender does not have a justified sense of grievance when he compares the sentences I will impose upon him with the sentences that were imposed in the Children's Court, but of course when he does that comparison he must realise two important things: first he was the driver of the car, it was he who caused the injuries by psychological and physical to Sergeant Lewis; and secondly, the focus of sentencing in the Children's Court is very different to the focus of sentencing in these Courts. 22Of course there needs to be some level of accumulation between the break, enter and steal offence and the use offensive weapon to avoid apprehension offence but there also needs to be some level of accumulation to reflect the different focus of the offence of driving in a manner dangerous to the public. Although of course it was the same physical action which has given rise to the drive in a manner dangerous offence and use offensive weapon to avoid apprehension offence, one offence can have multiple consequences. Those offences focussed on different consequences and they must each be reflected in my view in some additional punishment. As it will be clear the additional punishment is not great but it marks in my view the separate nature of the consequences of the two offences. 23It is unfortunate to have before me quite a young man displaying a level of immaturity whom I must sentence to a significant period of custody in order to reflect the objective gravity of his misconduct. At present Mr Thaidy's future looks bleak. As I mentioned before he either fails to see the connection between associating with friends who like him seem to be regular offenders or does not care. Mr Thaidy's attitude towards the criminal law is obvious both from his criminal history and the fact that he was prepared to break into a hairdressing salon where the monetary rewards of such an offence were likely to be slim indeed. 24I have taken into account both the maximum penalties and in one case the standard non-parole period in formulating the sentences I will impose. My reasons for not imposing the standard non-parole period appear in these remarks on sentence 25I impose sentences as follows: 26For the offence of driving in a manner dangerous, I impose a sentence of imprisonment of nine months commencing from 21 July 2013. For that offence the offender is disqualified from driving for five years. 27For the offence of aggravated break, enter and steal, I impose a sentence of imprisonment consisting of a non-parole period of 18 months commencing from 21 October 2013 and a head sentence of three years. 28For the offence of using an offensive weapon to avoid apprehension in company, I impose a sentence of imprisonment consisting of a non-parole period of three years and six months commencing from 21 October 2014 and a head sentence of six years. 29For the offences of driving uninsured, driving unregistered and driving whilst never licensed, I deal with the offender under s 10A of the Crimes (Sentencing Procedure) Act concurrently. For the drive unregistered vehicle and drive having never been licensed to do so, the offender is disqualified from driving for a period on one year accumulative to the disqualification period I have imposed for the drive in the manner dangerous offence. 30I note that sequence four the offence of resisting police is to be withdrawn it is therefore dismissed. 31The overall effective sentence I impose consists of a non-parole period of four years, nine months commencing from 21 July 2013 and a head sentence of seven years, three months. The offender will be eligible to be released to parole on 20 April 2018.