District Court New South Wales Medium Neutral Citation: R v John Warren Westaway [2015] NSWDC 97 Hearing dates: 16 June 2015 Date of orders: 19 June 2015 Decision date: 19 June 2015 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: For Orders see [57] Catchwords: Sentencing – police pursuit, resist arrest, supply prohibited drug, damage property; aggregate sentences Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Mill v The Queen (1988) 166 CLR 59 Pearce v R (1988) 194 CLR 610 R v Rae [2013] NSWCCA 9 Veen v R (No. 2) (1998) 164 CLR 465 Category: Sentence Parties: Director of Public Prosecutions (Crown) John Warren Westaway (Offender) Representation: Counsel: K Stanley (Crown Prosecutor) P Winch (Offender) File Number(s): 14/344454 Publication restriction: Nil REMARKS ON SENTENCE 1. The offender has entered pleas of guilty to the following four offences: 1. Police pursuit – not stop – drive recklessly pursuant to s 51B(1) of the Crimes Act 1900. The maximum penalties are 3 years imprisonment, automatic disqualification of 5 years and a minimum disqualification of 2 years. 2. Resist officer pursuant to s 58 of the Crimes Act 1900. The maximum penalty is 5 years imprisonment. 3. Supply prohibited drug (methylamphetamine) pursuant s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty is 15 years imprisonment and/or a fine of $220,000. 4. Intentionally/recklessly damage property pursuant to s 195(1)(a) of the Crimes Act 1900. The maximum penalty is 5 years imprisonment. 1. The offences occurred on 21 November 2014 at a time when the offender was on conditional liberty. He had been charged with an offence of drive whilst disqualified and failed to attend at the Yass Local Court on 4 July 2014 when a warrant was issued for his arrest. 2. He was subsequently sentenced in the Queanbeyan Local Court on 18 December 2014 in respect of that offence and received a sentence of imprisonment with a non-parole period of 5 months, terminating on 19 April 2015. 3. The offender has been in custody since his arrest on 21 November 2014 and it is the Crown submission that any sentence he serve in respect of the subject matters commence on 19 April 2015. 4. The Crown also seeks a forfeiture order in respect of the sum of $1,050. The Facts 1. At 11pm on Friday 21 November 2014 the offender was observed driving a white Nissan sedan bearing Queensland registration 161 SWS 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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". 7. Mr Nano later admitted possession of the firearm and was sentenced in respect of that offence. The Sentence Hearing 1. The Crown bundle (exhibit A) included the criminal history of the offender. He had numerous traffic offences over the last 10 years and had been disqualified from driving for a period of 3 years from 27 July 2009. In 2010 he was again convicted of driving whilst disqualified and was disqualified for a further period of 2 years from 26 July 2013. He was then charged with drive whilst disqualified again and failed to attend on 4 July 2014 at the Yass Local Court when a warrant was issued for his arrest pursuant to s 25(2). 2. In 2009 the offender had been sentenced to concurrent sentences of imprisonment for 18 months, suspended on entering a bond pursuant to s 12, on offences of affray, enter building/land with intent to commit an indictable offence and assault occasioning actual bodily harm. 3. The pre-sentence report (exhibit B) prepared by Ms A Keady dated 4 June 2015 noted that the offender first came to the attention of Community Corrections in January 2008 when a report was prepared for a Local Court offence of drive whilst licence suspended. The offender was placed on a 12 months s 9 Bond commencing on 29 May 2008 in respect to that offence. Whilst under supervision he committed five further driving offences as well as the offences of affray, enter building with intent and assault occasioning actual bodily harm for which he was sentenced by way of suspended sentences pursuant to s 12 in 2009. He served a number of periods of community service for breaches of the bond which were successfully completed and he was discharged on 16 December 2010. 4. On 27 July 2012 he had been sentenced to concurrent sentences of 2 years imprisonment with a non-parole period of 8 months commencing on 22 December 2011 for offences of affray, enter dwelling with intent to steal/destroy/damage, stalk/intimidate, intend fear of physical/mental harm and assault occasioning actual bodily harm. 5. The offender was next the subject of supervision when he was released to parole on 21 August 2012 following the 8 months non-parole period. That parole was breached by his use of illicit drugs and his arrest on new charges. However, those charges were dismissed and he was released to parole. During that period of supervision breaches for illicit drug use were submitted to the State Parole Authority which resulted in warnings. Whilst the offender was compliant with supervision, he eventually disengaged with Community Corrections and on 27 September 2013 a warrant was issued for breach of supervision conditions. He was returned to custody to serve the balance of parole and he was released on 12 March 2014. 6. The author of the pre-sentence report opined that the offender's response to Community supervision has been unsatisfactory. Following his return to custody on 20 November 2014 he has been assessed as suitable for 20 sessions of the EQUIPS Addiction Program which was to be conducted in the Industries area of the gaol where he was employed. However, he was dismissed from his employment for abusive behaviour prior to the commencement of the program. He was reinstated to his employment two weeks later and his work has been regarded as satisfactory. 7. By way of background, the offender's father was killed in an accident when the offender was nine years of age. He left home at 14 years of age and his younger brother died in his arms in 2009. He began using alcohol and illicit drugs as a coping mechanism. 8. The offender left school in year 9 and has had employment on and off since 2012 as a general farm hand. He was assessed as being a medium/high risk of re-offending. His identified criminogenic needs are: "accommodation, companions, mental health, alcohol/drug problems, anger". 9. It was considered that the offender would benefit from a period of supervision by Community Corrections, and that case management strategies would include: Alcohol and drug intervention by way of community intervention. Random urinalysis Anger management intervention by way of Community counselling Mental health assessment by CSNSW psychologists and Community agencies in relation to grief/depression Completion of traffic offender intervention program The offender was assessed as unsuitable for a Community Service Order. The Offender's Evidence 1. Exhibit 1 was a letter from Mr Jason Reid advising that the offender had been employed by his corporation, Southern Sons Rural Contractors Pty Limited on and off for a period of five years. The letter spoke highly of the offender's work ethic and motivation to succeed and acknowledged that his past social choices had made his life quite difficult. His employer was prepared to re‑employ him upon his release. 2. The offender gave evidence that he agreed with the police facts and had spoken truthfully to the author of the pre-sentence report. He acknowledged that his conduct in attempting to evade the police was wrong and his reason for doing so was that he knew that there was a warrant issued for his arrest and his partner was due to give birth to their baby. He realises now that it got him into more trouble. 3. To his credit, the offender gave evidence that he wanted to address his addiction head on and that he had been assessed as suitable for the EQUIPS Addiction Program, which he was keen to commence. He described the circumstances in which his younger brother had died in 2009 and his ongoing grief following that incident. His father had also died when he was at a young age. 4. He had also seen a drug and alcohol counsellor to try to get things moving. He had changed his outlook due to the recent birth of his child and he accepted responsibility for his conduct. He understood the danger that his driving had presented to the community and his use of drugs. He was also remorseful for his actions and was hopeful that he would obtain employment with Jason Reid once he was released from prison. 5. In cross-examination he put down his conduct in driving without a licence to stupidity. Of the incident itself, he did not know that there was a firearm in the vehicle, but knew that there were drugs and a "tick list". The offender did not dispute that he was dealing in methylamphetamine but gave evidence that he did so to feed his own habit. As to the charge of resist arrest, he said that he "deserved a touch up" by the police as a result of his own conduct. He also acknowledged that he had damaged the property, being the gate. 6. Mrs Deborah Clarke, the aunt of the offender, also gave evidence. She had known the offender all his life and described the death of his father when he was aged seven as having a big impact on him and his brother. Thereafter they had no role model and limited education. Again, the death of his brother in 2009 had a large impact on the offender. 7. Since his arrest Mrs Clarke had noticed lots of changes in the offender and she believed that he now accepted that his present position is brought about by his own fault. He had taken ownership of his conduct, and therefore the court would have more confidence that he is now going in the right direction. She gave evidence that he has good family support and that he has in recent times matured. That was also as a result of his current relationship with the mother of his child which she described as the best thing that could have happened to him. Submissions of the Offender 1. Learned counsel for the offender, Mr Winch, relied on a thorough written outline of submissions in which he submitted the most serious of the offences was the supply methylamphetamine, according to the maximum penalties to be imposed as a guide, however, in fact the most serious of the offences was the police pursuit. That offence carried a maximum of 3 years imprisonment. In respect of that matter, the aggravating circumstances pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 ("C(SP)A") was that the offender had prior driving offences, the offence was committed without regard to public safety and the offence involved a series of criminal acts. 2. It was submitted that the court would exercise caution before finding that the lack of regard to public safety and/or the series of criminal acts involved in the s 51B(1) offence aggravated the objective seriousness of it, since the elements of the offence including driving in a manner dangerous to others. 3. It was acknowledged that the pursuit took place over a considerable distance which of itself was an aggravating factor. Mitigating the offending was that the offence was not planned in any way. 4. In respect of the charge of supply prohibited drug, it was submitted that the weight of the drugs seized (16.42 grams) was a little above three times the indictable quantity of 5.0 grams, but well below the commercial quantity of 250 grams. It was acknowledged that there was some indicia of supply found in the car, however, the offender had no prior criminal history for drugs. 5. It was noted that two of the offences, namely, damage property and resist police, could have been dealt with summarily. It was submitted that those matters added little if anything to the overall objective criminality and the charge relating to the damage to the gate could be dealt with appropriately by way of a wholly concurrent sentence. The charge of resist arrest involved conduct which was at the lower end of objective seriousness for the charge and also added very little to the overall objective seriousness. 6. It was submitted that the evidence given by Mrs Clarke was compelling proof that he had matured and was taking responsibility for his actions, whereas in the past, he had not. The offender had also, it was submitted, given cogent and believable evidence which would give the court some confidence for the future. The history suggested that he had good prospects of rehabilitation despite his assessment in the pre-sentence report as being of medium to high risk of re-offending. 7. It was submitted that the driving involved in the police pursuit was not planned by him and constituted a bad decision. 8. It was submitted that the offender had suffered drug problems since the age of 14 and had a clear need for assistance and rehabilitation for his drug and alcohol abuse, and also in respect of his unresolved issues of grief related to the death of his father and brother. Therefore there were special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 ("C(SP)A") warranting alteration of the ratio between the non-parole period and any total sentence. 9. It was submitted that on principles of totality this was an appropriate case for an aggregate sentence pursuant to s 53A. It was further submitted that the court had a discretion to backdate any term of imprisonment to earlier than 19 April 2015, on totality principles. Crown Submissions 1. The Crown did not take issue with a finding of special circumstances in the circumstances for the offender. However, the offences were committed whilst he was on conditional liberty following being charged with drive whilst disqualified on 4 July 2014. It was clear that the offender had a serious drug issue which needed to be met. Determination 1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A 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. Notwithstanding that the maximum penalty for the offence of supply methylamphetamine is 15 years imprisonment, the most serious offence here in terms of its criminal conduct was the police pursuit, and I accept the submission made on behalf of the offender to that effect. The objective seriousness of that offending 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. Whilst I accept that the offence was not planned, I accept that there are aggravating circumstances given the appalling driving record of the offender, the fact that the offence was committed without regard to public safety and that it involved a series of criminal acts. However, as the elements of the offence include driving in a manner dangerous to others, I do not rely on those two matters so as to inflate the objective seriousness of the offending here. The pursuit took place over a considerable distance and having regard to all of the evidence in relation to it, it constituted conduct above the mid-range of objective seriousness for such offending. 2. With respect to the offence pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 of supply prohibited drug, I note that the vehicle contained indicia of a drug supply operation including the drugs being separately bagged and the "tick list" referred to above. The quantity of drugs involved is relevant given that the weight of 16.42 grams is a little above three times the indictable quantity. It is however well below the commercial quantity of supply under that section of 250 grams and therefore I find that the objective seriousness of the offending here was towards the lower level of the range for that offence. 3. The offender has no prior offences for drugs, however, his criminal history as outlined above is considerable. 4. I have had regard to what the High Court said in Veen v R (No. 2) (1998) 164 CLR 465 at p 477 where the plurality said: "The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed and it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted." 1. The offender here is within the latter category of the case in that he has exhibited by these offences a continuing attitude of disobedience to the law, warranting the matters of retribution, deterrence and protection of society to be given weight in the sentencing process. 2. I was impressed by the evidence given by Mrs Clarke on behalf of the offender as to his recent maturing. I was also impressed by the evidence given by the offender. It is no small thing to admit to drug addiction and the need for rehabilitation, and he is to be assisted in that rehabilitation. I also accept by virtue of his plea of guilty and his evidence that he is somewhat remorseful in respect of the offending and understands the serious consequences it has brought upon him. He has now taken responsibility for his criminal conduct. 3. I am persuaded here that there are special circumstances pursuant to s 44(2) of the C(SP)A, having regard to the offender's drug and alcohol problems, his unresolved grief issues relating to the death of his father and brother, and the fact that he has been assessed as suitable for the EQUIPS Program and will need ongoing supervision of his rehabilitative treatment. 4. I have had regard to the maximum penalties in respect of each offence as a guide post in the sentencing process. I am also of the view that general deterrence is important to be taken into account in sentencing for drug supply offences and the sentences in respect of the police pursuit and resist police. A strong message must be sent to the community that criminal conduct of this type will not be tolerated. 5. I have also had regard to the principles of totality, proportionality and parity set out in Pearce v R (1988) 194 CLR 610 at [45]. 6. Section 53 and s 53A of the Sentencing Act provide as follows: "S 53 Multiple sentences of imprisonment (1) When a court imposes a sentence of imprisonment on an offender in relation to more than one offence, the court must (unless imposing an aggregate sentence of imprisonment in accordance with section 53A) comply with the requirements of this Division by imposing a separate sentence in relation to each offence. (2) The term, and any non-parole period, set under this Division in relation to a sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. S 53A Aggregate sentences of imprisonment (1) A court may in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following: (a) The fact that an aggregate sentence is being imposed, (b) The sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation another offence. (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section." 1. I note that any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour – see Mill v The Queen (1988) 166 CLR 59 at [63]. 2. I am mindful that the offences occurred whilst the offender was on conditional liberty. Having regard to the principles of sentencing referred to above, and in particular those of totality and proportionality, I propose to aggregate the sentences to be imposed, having first assessed the indicative sentences to be imposed in respect of each count. It is clear that the aggregation of sentences pursuant to s 53A must reflect some accumulation of the indicative head sentences – R v Rae [2013] NSWCCA 9. 3. The Court is required to indicate the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. This provides transparency in the sentencing process. 4. The sentences of imprisonment I would have imposed if I was not applying s 53A are as follows: 1. Police Pursuit pursuant to s 51B(1) of the Crimes Act – 2 years imprisonment Automatic disqualification of licence of 5 years 1. Resist officer pursuant to s 58 of the Crimes Act – 9 months imprisonment 2. Supply prohibited drug pursuant to s 25(1) of the Drug Misuse and Trafficking Act – 18 months imprisonment 3. Intentionally/recklessly damage property pursuant to s 195(1)(a) of the Crimes Act – 6 months imprisonment 1. I have also had regard to the fact that in respect of each of the offences, the offences arise out of the same circumstances and would otherwise warrant some partial concurrency in sentencing. 2. I convict you of each of the offences as set out above and pursuant to s 53A of the C(SP)A I impose an aggregate term of imprisonment. I fix an aggregate non-parole period of 2 years and 3 months to commence on 19 April 2015 and to terminate on 18 July 2017. I order an aggregate total term of 4 years to commence on 19 April 2015 and expire on 18 April 2019. The balance of the term upon expiry of your non-parole period will therefore be 1 year and 9 months. 3. Your parole eligibility date is 18 July 2017. Orders 1. I make the following orders: 1. Convicted on all Counts. 2. I impose an aggregate sentence pursuant to s 53A of C(SP)A as follows: 1. I set a non-parole period of 2 years and 3 months commencing on 19 April 2015 and expiring on 18 July 2017. 2. I impose a further period of imprisonment of 1 year and 9 months to commence from the expiration of the non-parole period, on 19 July 2017 and expiring on 18 April 2019. 3. Total sentence is 4 years, comprising the Non-Parole period and the balance of the sentence. 4. I find special circumstances for varying the relationship between the total sentence and the non-parole period on the basis of a need for an extended period of supervision with the Community Corrections Service in relation to drug and alcohol treatment and rehabilitation in relation to anger management and counselling in respect of grief issues. 5. I note that the offender is eligible to be considered for release to parole at the expiration of the non-parole period. His parole eligibility date is 18 July 2017. 1. Disqualified from driving for a period of 5 years. 1. Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act I list the individual offences dealt with in the above aggregate sentence with the respective indicative sentences: 1. Police Pursuit pursuant to s 51B(1) of the Crimes Act – 2 years imprisonment 2. Resist officer pursuant to s 58 of the Crimes Act – 9 months imprisonment 3. Supply prohibited drug pursuant to s 25(1) of the Drug Misuse and Trafficking Act – 18 months imprisonment 4. Intentionally/recklessly damage property pursuant to s 195(1)(a) of the Crimes Act – 6 months imprisonment ********** 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: 24 June 2015