Flentjar v R

1. [1]

   WILSON J: I agree with Sweeney J.

2. [2]

   FAGAN J: I agree with Sweeney J.

3. [3]

   SWEENEY J: Caleb Flentjar seeks leave to appeal against the sentence imposed upon him by Judge Haesler SC on 1 February 2023 in the District Court at Wollongong.

4. [4]

   The applicant pleaded guilty in the Local Court to a number of offences arising out of two separate incidents.

5. [5]

   Judge Haesler SC imposed an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years. The sentence commenced on 2 April 2022 and will expire on 1 April 2027. The non-parole period is due to expire on 1 April 2025.

6. [6]

   The applicant relies on the sole ground of appeal that his Honour erred in failing to reduce the weight to be given to general and specific deterrence by reason of the applicant's intellectual disability, mental health conditions, background of profound disadvantage and youth.

7. [7]

   The Crown's position was that the sentencing judge did not fall into error.

The offences for sentence

1. [8]

   There were two sets of offences for sentence, arising out of two separate incidents in December 2021 and January 2022.

2. [9]

   The offences which occurred on 29 December 2021 were engaging in a police pursuit, contrary to s 51B(1) Crimes Act 1900 (NSW), which had a maximum penalty of five years imprisonment, and driving while disqualified from holding a drivers licence, contrary to s 54(1) Road Transport Act 2013 (NSW), which had a maximum penalty of 12 months imprisonment. The applicant asked that three offences on a Form 1 be taken into account when he was sentenced for the police pursuit offence. They were using an unregistered vehicle, using an uninsured vehicle, and displaying misleading numberplates.

3. [10]

   The offences which occurred on 29 January 2022 were:

Indicative sentences

1. [11]

   Judge Haesler SC reduced the sentences that he indicated for the individual offences by 25% for the applicant's pleas of guilty in the Local Court. He indicated the following sentences:

Remarks on Sentence

1. [12]

   Judge Haesler SC delivered extempore sentence remarks soon after he completed the sentence hearing. Other than in relation to specific and general deterrence the applicant did not challenge the findings made by the sentencing judge. I will summarise them to the extent necessary.

Facts of the offences

1. [13]

   Judge Haesler SC summarised the agreed facts, which I summarise as follows.

2. [14]

   At about midday on 29 December 2021, police performing speed checks on the M1 motorway near Wollongong in an 80km/h zone observed a car exceeding the speed limit. The applicant was driving the car. It was uninsured, unregistered and displaying numberplates that were not allocated to the car. There were two passengers in the car. The applicant was on parole and disqualified from driving but brought himself to the notice of police by speeding. His Honour said that demonstrated the applicant's "immaturity, lack of foresight and lack of concern for himself and others". Police estimated that at times the car was travelling at more than 140km/h.

3. [15]

   Police pursued the speeding car, with their warning devices activated. Police caught up to the applicant's vehicle at a turn. It appeared that he was going to stop, but he slowed and drove across a painted traffic island. He continued north and accelerated away from the police at well in excess of the speed limit. The police followed.

4. [16]

   He overtook other vehicles, using the breakdown lane. He merged into other lanes but made no attempt to slow down or stop. As he approached slowing traffic he merged right and overtook on the shoulder. He reached speeds up to 130km/h.

5. [17]

   He then overtook vehicles on the right shoulder, beeping his horn at vehicles ahead of him. At times he reached a speed of 185km/h. Police terminated the pursuit, given the nature of the applicant's driving and their concerns for the safety of other road users.

6. [18]

   Soon after, a witness saw the car with its front tyres "hanging off". Three people got out of the car and were recognised by people in the area. The applicant having escaped police, he was not arrested until after the next incident.

7. [19]

   On 29 January 2022 the applicant was with a friend, who gave him her car keys, expecting him to collect something from her car. Instead he drove off with her car. Later that afternoon, at about 3:13pm, police near Nowra and south of Berry saw the car speeding in a 100km/h zone, travelling at about 130-140km/h. Police did a U-turn and followed the speeding car. They activated their lights and sirens. The applicant failed to stop. Rather, he increased his speed and drove on the wrong side of the road, overtaking many vehicles. At one stage he pulled over. The police thought he was going to stop, but he accelerated off onto the shoulder, overtaking other vehicles. His speed, as he approached Berry, reached 180km/h. At that point, the police, in accordance with protocol, terminated the pursuit due to safety concerns.

8. [20]

   Shortly afterwards, police saw the car driven by the applicant travelling south on the Princes Highway, speeding. The speed limit at the time due to roadworks was 80km/h. The applicant was travelling in excess of 100km/h. Police obtained permission to reengage the pursuit. The applicant reached speeds of 130km/h in 70 and 80km/h speed zones.

9. [21]

   While pursuing the car police noticed that pieces of the car's rear tyre were delaminating. The applicant made corrections and manoeuvred the car onto the wrong side of the road. The car lost traction, but was still accelerating. Police then deployed road spikes which deflated three of the tyres. At that time another car was approaching an intersection with a green light. The car driven by the applicant travelled through the intersection at high speed and collided with the passenger side of the other car, where the victim passenger was sitting.

10. [22]

    On impact both vehicles spun and came to a stop in the middle of the intersection. Police ran to the applicant's car. He left the vehicle and ran, chased by police.

11. [23]

    A police officer managed to grab the applicant's right leg, but the applicant kicked him in the chest, causing him to fall. That was the offence of assaulting a police officer. The applicant ran to a nearby creek, jumped in, swam to the other side and ran away.

12. [24]

    Inside the car police found a passenger, a key belonging to the friend who owned the now damaged car and a large silver meat cleaver, the subject of the custody of a knife charge.

13. [25]

    The passenger in the car with which the applicant had collided was taken to hospital. He had severe pain in his hip, thigh and knee, and the side of his chest. Scans revealed a complex fracture of the left side of his pelvis. His injuries included a displaced pelvic ring fracture and non-displaced fractures to his ribs. His Honour said:

Assessment of objective seriousness

1. [26]

   His Honour assessed the objective seriousness of the police pursuit offence on 29 December 2021 as a serious example of the offence. He said given the time of day, the distance involved, the speeds reached relative to the posted speed limits, the driving out of lanes, the fact that many people were put at risk, the offence was a gross breach of the proper use of a motor vehicle and the Road Rules. Police and others were put at risk. The action showed a “high degree of moral culpability; that can only be reflected in a sentence of some length".

2. [27]

   His Honour said the offence of driving whilst disqualified on 29 December 2021 showed contempt for the orders of the court and the Road Rules.

3. [28]

   His Honour assessed the police pursuit offence of 29 January 2022 as he had the earlier police pursuit offence.

4. [29]

   In assessing the seriousness of the dangerous driving offence, his Honour had regard to the guideline judgment of Whyte v R (2002) 55 NSWLR 252; [2002] NSWCCA 343. By reference to the guideline judgment his Honour took into account that the applicant was young, the victim was a stranger to him, there was no injury to the applicant or his passenger, the plea of guilty was early but the evidence against him was overwhelming. His Honour said the applicant also put a number of people at risk, given the speed. He took into account that the applicant was, by his own admission, intoxicated with illicit substances; his driving was aggressive and erratic; he exposed others to risk, ignored warnings as he was escaping police pursuit, and despite multiple opportunities to stop, he failed to do so. His Honour said this was a serious example of this type of offence. He accepted submissions from both parties that the dangerous driving offence fell within the middle of the range of objective seriousness (although it was not an offence with a standard non-parole period prescribed). His Honour noted that he was dealing with an aggravated form of the offence.

5. [30]

   His Honour said the offence of not stopping and rendering assistance after an impact did not lead to a police investigation being compromised or the charge of dangerous driving being avoided, nor could death have resulted from the failure to stop and assist. His Honour considered it was another example of the applicant's "complete lack of concern for others”.

6. [31]

   Of the assault of a police officer his Honour noted the assault was a kick and “Penalties must be proportionate to the crime committed, but when police are assaulted courts must… attempt to deter this offender and others from similar offending".

7. [32]

   His Honour said of the Form 1 matters of 29 December 2021 that they formed part of the facts already taken into account and as they would generally result in fines, they would not add significantly to the penalty for the matter for sentence. He said of the Form 1 matters for 29 January 2022 "there must be some increase in sentence to recognise the need for personal deterrence and retribution for the crime for sentence". His Honour noted that the applicant had taken and destroyed a friend's car (the take and drive conveyance offence), and the cleaver was not used, was just found in the car, but should never have been carried.

8. [33]

   His Honour stated "the objective seriousness of every one of his offences for sentence is so high that custodial sentences must be imposed for each of them”.

Subjective circumstances

1. [34]

   Judge Haesler SC took into account the following aspects of the applicant's subjective circumstances.

2. [35]

   Near the beginning of his Remarks on Sentence his Honour said:

3. [36]

   The applicant is an indigenous man who has been unable to engage in his culture because "most of his short life [has] been spent in custody.” His Honour noted that he had, since very young, experienced multiple traumas and adverse childhood experiences. In his childhood he witnessed his mother's drug use and violence towards his father. The sexual assaults he experienced, the developmental trauma he suffered, and his adolescent traumas were all taken into account and “given full weight.”

4. [37]

   Family members introduced the applicant to drugs when he was 11. He spent most of his teens in and out of juvenile detention. He is institutionalised. He has rarely attended school and when he did, he struggled academically. There was an indication the applicant cannot read or write. He has never worked.

5. [38]

   He was sexually assaulted in juvenile detention at 14 and has not been able to access Victim Services.

6. [39]

   He has used “copious amounts of drugs during his young life” and never engaged in any form of rehabilitation. His Honour said the applicant's early use of drugs was understandable given his history and family history. That he was affected by drugs during the second incident made him more dangerous to himself and others. His Honour took into account that the applicant was taking buprenorphine to deal with his drug use.

7. [40]

   A Justice Health psychiatrist, Dr Gerald Chew, reported that the applicant's multiple diagnoses included schizophrenia, intellectual disability, ADHD, ODD, depression, personality disorder, a substance use disorder, chronic problems with self-harm, and a long history of heroin, methylamphetamine and Xanax abuse. Dr Chew said the applicant's multiple psychological and psychiatric symptoms were in the context of developmental trauma including sexual assault. In a psycho-social assessment Ms Rebecca Assaf said multiple traumas had helped to form the applicant's identity and his meaning system was ruptured. She said given his intellectual cognitive deficits, he would require considerable assistance, including trauma treatment and trauma-informed psychological programs.

8. [41]

   Judge Haesler SC said the applicant's mental illnesses and conditions impacted on his moral culpability. He also noted he was young and immature (being 21 at the time of the offences and 22 when sentenced). His Honour said the applicant's youth and cognitive, emotional and psychological immaturity reduced his moral culpability, his "blameworthiness". His Honour said his personal circumstances, capacity to reason, and lack of education other than in detention or custody, "effectively means that he does not fully appreciate the wrongness of his actions or has the capacity to control his actions”. His Honour said that background must be given “full weight”.

9. [42]

   His Honour said "A person with a background such as this offender will have fewer emotional or other resources to guide his decisions. Although that does not mean he does not bear responsibility for his actions": R v Millwood [2012] NSWCCA 2 at [69]. His Honour said the applicant's background “has compromised his capacity to mature and learn from experience. Those matters do not diminish over time and will be given full weight”: [92].

10. [43]

    His Honour noted that the applicant's criminal history indicated that his present offending was not uncharacteristic or an aberration, but rather demonstrated his continuing disobedience of the law. His Honour noted that the applicant's Children's Court matters included two police pursuit offences and he then committed offences of reckless driving and driving while disqualified. He had a history of being in juvenile detention and prison and being released on parole. He had most recently before the offences for sentence been released on parole on 13 December 2021. His Honour considered the fact that the applicant committed the offences while on parole as an aggravating circumstance.

11. [44]

    His balance of parole continued until 5 March 2023. His Honour commenced the sentence he imposed from 2 April 2022, one month after the applicant was arrested on 2 March 2022 and taken into custody.

12. [45]

    His Honour said in terms of remorse, the applicant had:

13. [46]

    His Honour took into account the applicant had had a difficult time in custody. He was in the Special Management Unit, his file was marked "under threat", and he had served most of his time in custody subject to Covid restrictions.

Purposes of sentencing

1. [47]

   His Honour said:

Submissions to the sentencing judge about specific deterrence and general deterrence

1. [48]

   The Crown’s written submissions on sentence included the following:

2. [49]

   The written submissions in the District Court on behalf of the applicant included the following:

3. [50]

   Neither the Crown’s representative or the applicant's representative made any oral submission to Judge Haesler SC about general deterrence or specific deterrence.

Judge Haesler SC’s findings about specific and general deterrence

1. [51]

   In respect of specific deterrence, Judge Haesler SC said:

2. [52]

   In respect of general deterrence, his Honour said:

The applicant’s submissions on the appeal

1. [53]

   Counsel for the applicant submitted that the sentencing judge erred by not reducing the weight to be given to specific and general deterrence because of the applicant's tragic and compelling subjective circumstances, but rather his Honour gave particular weight to those two factors. Counsel submitted that in sentencing the applicant his Honour had to reduce the weight given to general and specific deterrence. Counsel submitted that his Honour did not explain how his findings about the applicant's mental illness, intellectual disability, disadvantaged background, and youth and immaturity could be reconciled with his Honour’s findings that the sentence must reflect general and specific deterrence, without moderating the weight given to them.

The Crown’s submissions on the appeal

1. [54]

   The Crown submitted that reading the sentencing judge's Remarks fairly and as a whole, the judge was not in error in finding that general and specific deterrence still had work to do in sentencing the applicant and that those findings were not inconsistent with the weight his Honour gave to the applicant's strong subjective case and his Honour’s careful consideration of the other purposes of sentencing.

Determination

1. [55]

   One of the authorities counsel for the applicant relied on was R v Engert (1995) 84 A Crim R 67, in support of the submission that the applicant was not an appropriate vehicle for general deterrence and it was an error to find otherwise. It is worth noting what Gleeson CJ said Engert:

2. [56]

   and

3. [57]

   In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 McClellan CJ at CL set out the now well recognised principles as follows (citations omitted):

4. [58]

   Counsel for the applicant submitted that it was mandatory for Judge Haesler SC to have reduced the weight he gave to general and specific deterrence in sentencing the applicant. As De La Rosa and Engert make clear, it is a discretionary consideration.

5. [59]

   A fair reading of his Honour's sentencing remarks show that his Honour was well aware of the multiple aspects of the applicant's tragic and compelling subjective circumstances and took them into account. His Honour was also required, in properly performing his role, to have regard to all the purposes of sentencing, which are:

6. [60]

   I do not consider that his Honour’s sentencing remarks, including [74] and [94], where he specifically referred to specific and general deterrence, lead to the conclusion that his Honour placed particular and inappropriate weight on general and specific deterrence in sentencing the applicant. His Honour had a difficult sentencing exercise where the objective seriousness of the offending and the consequences of one offence for a member of the community were in tension with the applicant's youth, disadvantaged background and diagnosed mental health conditions and intellectual disability. The applicant has not demonstrated that his Honour erred in the exercise of his sentencing discretion in such a complex, difficult case.

Orders

1. [61]

   Therefore I would propose the following orders:

   1. (1)

      Leave to appeal be granted.

   2. (2)

      The appeal be dismissed.