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10
Court of Criminal Appeal 8 November 2002

R v Felton

[2002] NSWCCA 443

Also reported as (2002) 135 A Crim R 328
Traffic & driving
CRIMINAL LAW PRACTICE AND PROCEDURE SENTENCE FAILURE TO APPLY PEARCE V THE QUEEN MOTOR TRAFFIC DISQUALIFICATION FROM DRIVING NO CONVICTION

Citation: R v Felton [2002] NSWCCA 443
Court: NSW Court of Criminal Appeal
Date: 8 November 2002
Judges: Sully J, Howie J

Background

The applicant, a 21-year-old with an extensive record for motor vehicle offences dating back to the Children's Court, pleaded guilty before a magistrate to two counts of driving a conveyance without the owner's consent and one count of possessing car-breaking implements. He was committed for sentence to the District Court under s 51A of the Justices Act 1902.

Each of the three counts carried an accompanying Form 1, listing additional offences to be taken into account on sentence, including multiple counts of driving whilst disqualified. All three sets of offences were committed while the applicant was on parole, on bail, or subject to existing good behaviour bonds. Judge English sentenced the applicant to an effective term of four years with a two-year non-parole period, and disqualified him from driving until January 2008.

The applicant sought leave to appeal against the sentences imposed by the District Court, and the Court of Criminal Appeal examined the structure and correctness of the sentences, including how the Form 1 matters had been handled and the operation of the habitual traffic offender provisions.

  • Whether the sentencing judge had correctly applied the principles in Pearce v The Queen when structuring concurrent and consecutive sentences across three counts, each with accompanying Form 1 matters.
  • Whether the procedural requirements of s 33(2) of the Crimes (Sentencing Procedure) Act 1999 had been met in relation to the Form 1 matters.
  • Whether taking offences of driving whilst disqualified into account on a Form 1, rather than proceeding with convictions, affected the operation of the habitual traffic offender declaration regime under the Road Transport (General) Act.
  • Whether the Court of Criminal Appeal should interfere with the disqualification order made by the District Court, in the absence of a Crown appeal.

Decision

Howie J (with Sully J agreeing) found that the sentencing judge had failed to apply the principles in Pearce v The Queen. That case requires a court, when imposing multiple sentences, to ensure the total effective sentence reflects both the objective seriousness of the individual offences and the overall criminality involved. The sentences as structured did not correctly apply this analysis, and the Court of Criminal Appeal quashed and restructured them.

The Court noted that the s 33(2) procedural formalities had not been followed when the Form 1 matters were placed before the District Court. The applicant was not asked whether he admitted guilt or wished the matters to be taken into account. Howie J emphasised that these requirements are not mere formalities but substantive safeguards ensuring the offender understands and consents to a process that may affect the length of custody.

On the habitual traffic offender question, Howie J held that where offences of driving whilst disqualified are dealt with on a Form 1 rather than by way of conviction, no conviction is recorded. Because s 28 of the Road Transport (General) Act is engaged only where a conviction exists, the habitual traffic offender declaration regime was not triggered. Howie J noted that this outcome allowed the applicant to avoid provisions that, given his record, would otherwise have applied. The Court flagged this as a consequence of which prosecuting authorities should be aware when deciding whether to proceed by way of Form 1 for serious traffic offences.

Regarding the disqualification period, the Court found that Judge English's order did not achieve her intended effect but declined to increase the period. In the absence of a Crown appeal, the Court held it would not increase a penalty imposed on an applicant.

Orders Made

  • Leave to appeal granted; appeal allowed to the extent of restructuring the sentences.
  • Count 1 (and Form 1 matters): fixed term of 12 months imprisonment, commencing 4 May 2001, expiring 3 May 2002.
  • Count 3 (and Form 1 matters): fixed term of 12 months imprisonment, commencing 4 May 2002, expiring 3 May 2003.
  • Count 2 (and Form 1 matters): imprisonment for 2 years and 6 months, commencing 4 November 2002, with a non-parole period of 6 months expiring 3 May 2003, with a parole condition requiring supervision by the Probation and Parole Service.

Key Takeaways

  • Failing to apply the Pearce v The Queen principles when structuring multiple sentences constitutes a sentencing error sufficient to warrant appellate intervention and restructuring of the entire sentencing package.
  • Under s 33(2) of the Crimes (Sentencing Procedure) Act 1999, a court must formally ask the offender whether they admit guilt to Form 1 matters and wish them to be taken into account. Howie J characterised this requirement as a meaningful procedural safeguard, not an administrative formality.
  • Where a serious traffic offence is taken into account on a Form 1 rather than prosecuted to conviction, no conviction is recorded. Absent a conviction, s 28 of the Road Transport (General) Act is not engaged and the habitual traffic offender declaration regime cannot operate.
  • The Court of Criminal Appeal confirmed that, without a Crown appeal, it will not ordinarily increase a penalty imposed on an applicant, even where the original order did not achieve the sentencing judge's stated intention.
  • A prosecution decision to proceed by Form 1 for offences such as driving whilst disqualified may, depending on the offender's traffic record, have material consequences for the availability of the habitual traffic offender declaration provisions.

Legislation and Cases Referenced

Legislation
- Justices Act 1902 (NSW), s 51A
- Crimes Act 1900 (NSW), ss 114, 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 33(2), 34, 35(4), Div 3
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW)
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25A(1)
- Road Transport (General) Act (NSW), ss 27, 28, 30, 31

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Cocking [1999] NSWCCA 311
- R v AEM (Snr) [2002] NSWCCA 58