R v Armitage [2019] NSWDC 383

District Court New South Wales

Medium Neutral Citation: R v Armitage [2019] NSWDC 383 Hearing dates: 13 June 2019 Date of orders: 13 June 2019 Decision date: 13 June 2019 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: An aggregate sentence of imprisonment of 7 years, 6 months with a non-parole period of 4 years, 8 months: at [48]. Catchwords: SENTENCING — Aggravating factors — Presence of child — Record of previous convictions — Victim police officer etc — Without regard for public safety — In company — Breach of conditional — Series of criminal acts SENTENCING — Mitigating factors — Plea of guilty Legislation Cited: Crimes Act 1900 Criminal Code (Cth) Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Qutami (2001) 127 A Crim R 369 R v Haddad [2002] NSWCCA 176 McDowall v R [2019] NSWCCA 29 Texts Cited: Nil Category: Sentence Parties: Regina (Crown)

Billy Armitage (Offender) Representation: Mr Woods (Crown)

Mr Pearce (Offender) File Number(s): 2014/116158; 2018/311893

Judgment 1. Billy Armitage, who is only 26 years old, tells me that he has spent about seven years in gaol since first going into custody at the age of 12 under a control order. He appears for sentence today in relation to two separate episodes, one in 2013 and one in 2018, both of them involving use of a car as an offensive weapon to prevent apprehension by Police, along with other matters. 2. The two offences arising out of an incident in August 2013 lead to a charge under s 112(2) of the Crimes Act 1900 of aggravated break, enter and steal in company, carrying a maximum penalty of 20 years with a standard non-parole period of five years, and a count under s 33(b) of use an offensive weapon with intent to prevent lawful apprehension, which carries a maximum penalty of 12 years with no standard non-parole period. 3. The events of 11 and 12 October 2018 concern a lengthy and terrifying series of episodes involving a number of Police vehicles and injuries to Police officers, the facts of which I will deal with shortly. They lead to him facing eight further counts; first under s 51(b) of not stop in Police pursuit, which carries a maximum penalty of three years with no standard non-parole period; secondly, of using a carriage service threatening to kill under s 474 of the Criminal Code (Cth), carrying a maximum of ten years with no standard non-parole period; thirdly two further Police pursuit counts under s 51(b), as well as three further s 33(b) counts and an assault police causing actual bodily harm. There are three related offences of resisting an officer with each carrying a maximum penalty of two years imprisonment. 4. He has been in custody since 12 October 2018 and it is conceded by Mr Pearce, counsel for the offender, that he will remain in custody for some significant period, given that the threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 has been surmounted and there is no need for me to consider any alternative punishments. The sentencing process must take account of the purposes of sentencing set out in s 3A of the Act, which relevantly include punishment, denunciation, recognition of the harm done to the community and the need for deterrence as well as considering the prospects of rehabilitation. 5. Turning to the first episode in August 2013, Armitage and Jasmine Macri broke into a cabin at Nambucca River Tourist Park by cutting a flyscreen window. The owner of the tourist park noted a blue Holden sedan in the carport of that cabin and a number of items in the back of the car that were identical to the bed linen used in the park. The owner went to the records and discovered that there was not supposed to be anyone in that cabin. He called Police who opened the cabin door and found Armitage and his co‑offender Macri under the blankets asleep in the double bed. They asked him to provide identification and he said it was in the car and he went to the blue Holden. He began looking through the boot and the Police officer stood on the road in front of the vehicle while he conducted Police checks on the radio. Armitage jumped into the driver's side door and locked the door. The Police officer stood in front of him to prevent him from driving away, but he revved the engine and looked straight at the Police officer, who had to jump to one side to avoid being hit by the accused and he drove out the park at high speed with his tyres spinning, leaving skid marks in the carport. The car had been stolen from Queensland and the items that had been stolen from the cabin were worth a total of over $360. They had also unplugged the Toshiba television and put it in the sink with the remote control. 6. The co-offender was arrested and a warrant was issued for Armitage's apprehension. It was not until 12 October 2018 that he was arrested for these matters. The co-offender Macri pleaded guilty to Police pursuit not stop, take and drive, drive without a licence and enter enclosed lands and she was sentenced to 12 months imprisonment with a non-parole period of six months. She was 20 years of age and had no prior convictions at the time. 7. Turning to the facts of the night of 11 October 2018, the co‑offender was Amanda Parker, who I am told was dealt with recently by the imposition of a community corrections order for her involvement in the matters to which I will refer. 8. Mr Wood had owned a Queensland registered Ford Ranger utility. The Queensland Police allege that that car was stolen by Armitage and involved in a number of incidents involving Queensland Police on the evening of 10 October 2018. It seems that he is yet to be dealt with for those matters as the Crown bundle contains a number of warrants issued by Queensland Police in relation to those matters. 9. On the evening of 11 October, New South Wales Police broadcast a lookout in the Tweed, Byron and Richmond Districts in relation to this stolen car and the occupants being Armitage and Parker. The broadcast indicated that the car would have had any one of a number of registration plates affixed to it. About 10.45pm, the car was seen by Senior Constable Charter outside Dominos Restaurant in Ballina bearing a Queensland registration plate. 10. The officer followed the vehicle as it drove away and another Police car pulled up beside it. They tried to speak to the driver. As they got out of their car, he drove off at speed. The two Police vehicles followed him with lights and sirens sounding and he failed to stop as directed. There was a pursuit through the residential streets of Ballina at speeds of 75 km/h in a 50 km/h area. They were joined by Chief Inspector McKenna in a marked Police vehicle, designated RM 11, and he took up the position as the lead Police vehicle. 11. Armitage continued towards the industrial area of Ballina, reaching speeds of 100 km/h in a 50 km/h zone, passing a large semitrailer over double, unbroken lines and then went onto the northbound lane of the M1 Motorway, and then was travelling north in the southbound lane. Due to the dangerous speed and manner in which the vehicle was being driven, Police terminated the pursuit at 10.54pm. That is the subject of the first count (sequence 004) the Police pursuit. 12. The next count (sequence 007) the carriage service matter involved the accused and Parker making a telephone call to "000" while the pursuit was in progress. They told the operator they were being chased by the Police and had kids on board and the situation was very dangerous. 13. They wanted Police to terminate the pursuit and Armitage warned the operator he was losing it and he threatened to "Smack the next fucking pole". He also referred to the semitrailer that he had overtaken and Parker was heard warning him that he was on the wrong side of the road. He told the "000" operator that he had guns on board and when asked what guns he said: "Never you fucking mind, trust me I'm loaded and I swear to god mate if they keep coming I swear it's going to be the last fucking thing they do. I promise that I'm going to get dangerous, just stop the chase, let it be, we've got kids in the car, do the right thing." 1. After the pursuit was terminated, he continued travelling north on the Motorway towards Bangalow and at about 12.25am the next morning, he was seen by Police leaving the driveway of a property near Leicester. Chief Inspector McKenna instructed that the vehicle only be monitored until further police resources could be organised. 2. They turned north onto the Summerland Way towards Kyogle. The Police vehicle following had lost sight of it. He did a U-turn and he passed Chief Inspector McKenna and then did another U-turn and travelled back towards Lismore. He stopped briefly and spoke through the open car window to the Chief Inspector, he said "Stop fucking chasing me, there are kids on board". 3. McKenna said "It doesn't have to be like this, just stop your car and we'll sort this out". Armitage said "I just want to drop the kids off at Lyons Road", Inspector McKenna said "I can drop your kids off, how about you let the kids come with me, let's end this" and Armitage said "Get fucked" and drove off. He drove off at speed after seeing a number of other Police vehicles converging on the area. 4. He headed towards Kyogle where two other police officers had established a road spiking position with flashing lights on the vehicle. Armitage saw them and did a U-turn and headed south towards Casino, Inspector McKenna followed him. Count 3 (sequence 010) is another Police pursuit count. 5. Two officers from the Richmond Tactical Assault Group who were in an unmarked police car took up the second following position from about 5 kilometres north of Casino. Officers activated warning devices for him to stop but he failed to stop and reached speeds of 125 km/h in a 100 km/h zone. 6. He approached an area just north of Casino where police had set up road spikes. He braked harshly, crossed onto the incorrect side of the road, before executing a U-turn and fled north on Summerland Road again. He approached a point where Detective Thompson was parked on the grass verge. They were parked behind another marked police vehicle and he steered his motor vehicle towards the two police cars before swerving right at the last moment and he also steered his car towards the vehicle driven by Constables Nall and Morgan. Due to the manner of his driving, police again terminated the pursuit at 1.07am. 7. The final pursuit the subject of count 5 (sequence 015) occurred when Chief Inspector McKenna and his team had established a third road spike position on the Summerland Way at the Fairy Hill Road intersection. He authorised officers to try and stop the car and about 1.10am, Police reengaged the vehicle as it drove north. They activated the warning devices for him to stop and he failed to stop. 8. The pursuit was re-commenced and he approached an area where Police had set up road spikes. He stopped momentarily then reversed at speed in front of the Highway Patrol vehicle, then accelerated harshly towards Inspector McKenna's vehicle. The Highway Patrol car tried to force Armitage's car into the arm code barrier and away from RM 11 and Inspector McKenna but he rammed RM 11 and Inspector McKenna, who was standing at the rear of the vehicle, had to run for his life. 9. The impact of that collision drove the stationary vehicle back a number of metres, causing extensive damage to the vehicle and narrowly missing Inspector McKenna, who was only a metre from the car when it was struck by Armitage's car. 10. Lismore 16, a caged police vehicle moved into position behind Armitage's car. He again reversed and struck that vehicle, causing extensive damage to the front of it. Richmond 11, a fully marked Police car, had been extensively damaged from being rammed head-on by Armitage. Lismore 16, the caged truck, was also damaged extensively due to him attempting to further evade Police and drive from the scene and North 313, another fully marked Highway Patrol vehicle, was extensively damaged from an impact caused by the manner of driving. 11. The arrest led to count 9 (sequence 035), as well as two resist officer counts involving Chief Inspector McKenna and Senior Constable Cardonna. After Armitage's car came to a stop, Inspector McKenna ran over to the driver's side door to arrest him, Senior Constable Nall went to assist him. Armitage had his hands on the keys and was trying to start the vehicle. Senior Constable Nall removed the keys and Armitage continued to struggle with both Police officers and he gripped the steering wheel to avoid being dragged out of the car. Officers Hudson and Thompson arrived, as did Officers Brock and Wiley, who went to the passenger side where Parker was seated. 12. Parker was hindering an officer's efforts to force Armitage's left hand off the steering wheel and at this point Officer Nall used the OC spray on Armitage. Both Constable Brock and Constable Riley were caught in the overspray from that. Senior Constable O'Rourke had gone to the rear door to remove the children who were visibly upset and crying and then he moved to the front passenger seat to assist with the removal of Parker. 13. She was yelling at the Police to "Fuck off, leave the fuck alone, we've done nothing wrong you dogs." Armitage resisted Police efforts to extract him from the vehicle, and Parker incited Armitage to hinder police further by telling the police to "Fuck off". The offender tensed his body up and would not clearly show his hands to the police. 14. Senior Constable Cardonna had managed to get handcuffs onto Armitage's left wrist. He was eventually handcuffed and removed and put in the Police vehicle. 15. During the entirety of the pursuit Parker's two children, aged seven and eight, were in the backseat of the car. It is agreed that in relation to counts 1, 3 and 5, being the police pursuit counts, that the presence of the children in the motor vehicle is an aggravating factor under s 21A(2)(p) of the Crimes (Sentencing Procedure) Act 1999. 16. As I have indicated briefly, Armitage's record is extensive, commencing with control orders imposed by the Children's Court in 2009 and there are a lengthy set of offences in Queensland, leading to various terms of imprisonment for offences involving motor vehicles, drugs, burglary and break and enters. 17. The Sentencing Assessment Report was prepared in May 2019 and Mr Pearce tendered a report of a psychologist prepared in May 2014. The offender did not give evidence and the histories contained in both of these documents must be treated with a degree of caution, bearing in mind the sentiments expressed in cases such as R v Qutami (2001) 127 A Crim R 369 where histories are not adopted or tested. 18. He said that prior to his arrest he had been unemployed and in receipt of government benefits and was working causally getting paid cash in hand. Mr Pearce puts from the bar table that he has never had problems getting work when he has been out of custody, suggesting that he attended school until Year 10. 19. The psychologist indicates that he was expelled from schools due to oppositional behaviour. It is accepted, as disclosed to the author of the Sentence Assessment Report, that he is in breach of bail in Queensland for offences including theft, drug possession and rape and he has incurred an internal sanction for intimidation whilst on remand. 20. He was assessed as having poor impulse control and aggressive tendencies with hostility towards those in authority. He took responsibility for the offending, attributing his actions to illicit substance abuse and acknowledging that it was a poor choice to flee the scene of the offences. 21. He recognised the impact of his offending on his victims, and that his erratic driving could have harmed an innocent person, or of course, any one of the number of Police officers who were involved. Not surprisingly, he has been assessed as having a medium to high risk of reoffending, and as the Crown correctly submits, his prospects of rehabilitation are limited to say the least, on the material before me. 22. One matter that is not referred to in the history provided to the psychologist in 2014 and as put by Mr Pearce from the bar table is an assertion of the offender being a victim of child sexual abuse which has now been reported to the Royal Commission and is the subject of a claim presumably for compensation. 23. He reported to the psychologist that his parents had separated in about 2012 after being together for 28 years; he has a brother and a sister. His father was physically abusive and he did not have a stable home life as they frequently moved through Queensland and New South Wales as his father looked for work and he attended 15 different schools. 24. The psychologist assessed a personality disorder with antisocial and borderline traits and suggested that a dysfunctional childhood would have had an adverse effect on his childhood development. Even though the history is not adopted or tested, I accept that it is fully consistent with the material and the history that I have seen. He has had a troubled upbringing and he has probably, as disclosed, been a user of methamphetamines and cocaine and he even concedes use of illegally obtained buprenorphine while in custody most recently. 25. The psychologist had seen a Probation and Parole report in 2013 reporting that he had failed to engage in interventions on a number of occasions, leading to his order being suspended after a failure to comply with parole issues. 26. He said that he had been in a de facto relationship in 2013. He described a serious car accident in March 2013 in which he was knocked unconscious. He was taking steroids at the time. It seems from the history, that he was unsuccessful in his attempts to free his mate who was caught in the car, which the psychologist suggested had led to a post-traumatic stress disorder. 27. The psychologist said in 2014 that he would require a structured environment, including strict reporting conditions and drug testing on release, notwithstanding the fact that he had already demonstrated features of becoming institutionalised by that stage when he was only 20 and no doubt, those features will remain. 28. Mr Pearce, as I have indicated, acknowledged the need for a lengthy term of custody and pointed to a history of dysfunctionality and the toxic relationship that appeared to have been in place with the co-offender at the time. The Crown noted the very serious nature of the offending on both occasions and the need for the Court to emphasise both general and specific deterrence and denunciation in the sentencing process. 29. Neither counsel took me to any of the statistics in relation to the matters and although they are recognised as a blunt tool, I have had regard to the JIRS statistics in relation to s 51B and 33B matters. I have also indicated to counsel that I have had some regard to a number of matters listed in the Public Defender's website research facility in relation to s 33B offences. Mr Pearce specifically disavowed an intention to rely upon any of those matters, even to the extent of conceding when I mentioned to him the appeal decision in R v Haddad [2002] NSWCCA 176 that it would not be inconsistent with his expectations as to the ultimate sentence to be imposed. 30. It is common ground that a 25% discount on any term of imprisonment should be allowed for the utilitarian value of the early pleas of guilty in each case. The maximum penalty and where applicable the standard non-parole period of course has to be taken into account as guideposts in the sentencing process. 31. A number of aggravating factors have been conceded by Mr Pearce. In relation to the s 33B counts. The fact that the victim was a Police officer is an aggravating factor. He has a record of previous convictions. The offence was committed in company and he was on conditional liberty at the time of the offences. The offences involved a series of criminal acts and as already mentioned, s 21A(2)(p) applies, given that it is agreed the two children under the age of 16 were passengers at the time of the police pursuits. 32. Cases such as McDowall v R [2019] NSWCCA 29 have recently confirmed that it is unnecessary to place any particular offence in a notional range of objective seriousness. On the recitation of the facts that I have undertaken, demonstrates that this was, on any view, certainly in relation to the 2018 episode, extremely serious sequence of offending. The 2013 aggravated break and enter and s 33B count were also objectively serious matters, given the facts to which I have referred. 33. I think it is clear that a finding of special circumstances is justified, given the evidence of institutionalisation to which I have already referred and the need for an extended period of rehabilitation and supervision upon his ultimate release. 34. The orders that I make are as follows: 1. The offender is convicted of each offence. 2. I impose an aggregate sentence of imprisonment of 7 years, 6 months, to commence on 12 October 2018 and expiring on 11 April 2026. 3. I impose a non-parole period of 4 years 8 months, expiring on 11 June 2023. The offender is eligible for release to parole on that date. 4. The indicative sentences are: 1. 003 – 2 years, 3 months; NPP 18 months 2. 002 – 2 years, 3 months 3. 004 – 18 months 4. 010 – 20 months 5. 015 – 24 months 6. 014 – 3 years 7. 033 – 3 years 8. 034 – 3 years 9. 035 – 1 year 10. 018 (s 166 certificate) – 10 months 11. 031 (s 166 certificate) – 11 months 12. 032 (s 166 certificate) – 11 months 1. I find special circumstances. 2. The following back – up offences on the s 166 certificate are withdrawn: 1. 005 2. 006 3. 011 4. 012 5. 016 6. 017 7. 019 8. 020 9. 021