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District Court 28 September 2007

Regina v Trevor John Wilkins

[2007] NSWDC 360

Traffic & driving
CRIMINAL LAW SENTENCE APPEAL BAD RECORD FOR DRINK DRIVING OFFENCES PROTECTION OF THE COMMUNITY SPECIAL CIRCUMSTANCES

Citation: Regina v Trevor John Wilkins [2007] NSWDC 360
Court: District Court of New South Wales
Date: 28 September 2007
Judge(s): Cogswell SC DCJ

Background

The offender was convicted in the Local Court at Inverell on 13 August 2007 of driving under the influence of alcohol on a road, contrary to s 12(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999. The offence occurred on the Brunxton Highway at Bonshaw, where the offender was observed to leave the road (due to a tyre blowout), was noticed by a local grazier to be clearly affected by alcohol, and then insisted on continuing to drive. He declined to cooperate with a breath test and blood was not able to be taken.

The Local Court sentenced the offender to 9 months imprisonment with a non-parole period of 6 months, plus a three-year licence disqualification. The offender appealed to the District Court, with counsel seeking either a suspended sentence or a reduced non-parole period.

Two matters dominated the appeal: the offender's significant prior driving record for drink driving offences (including multiple convictions in Queensland spanning from the 1980s to December 2005), and a body of positive character references describing him as a hardworking and selfless contributor to rural communities.

  • Whether the sentence imposed by the Local Court was excessive, having regard to the offender's driving record, the circumstances of the offence, and the character evidence before the court.
  • Whether a suspended sentence or reduced non-parole period was appropriate in the circumstances.
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 to justify a departure from the standard ratio between the non-parole period and the total term.

Decision

Cogswell SC DCJ reduced the total sentence from 9 months to 7 months imprisonment but maintained a custodial sentence, declining to suspend it. The judge found that the offender's driving record was not merely poor but "bad," and that the protection of the community required a term of imprisonment to deter the offender from continuing to drive while affected by alcohol.

The court accepted that neither of the incidents during the offence (the run-off-the-road and the fire caused by driving on the rim) was directly caused by alcohol-affected driving, but characterised the overall conduct as irresponsible. The character references were acknowledged and clearly considered, but they did not displace the sentencing weight demanded by the driving history.

The court found special circumstances under s 51(1AA) of the Crimes (Sentencing Procedure) Act 1999, identifying the offender's alcohol problem and the need for a meaningful period on parole as justification for setting a non-parole period of only 2 months out of the 7-month total. This extended the parole period significantly beyond the standard proportion. The licence disqualification was not disturbed, given the offender's record.

Orders Made

  • Total term of imprisonment: 7 months, commencing 13 August 2007 and expiring 12 March 2008.
  • Non-parole period: 2 months, commencing 13 August 2007 and expiring 12 October 2007.
  • Release to parole on 12 October 2007; balance of term (5 months) to run from 13 October 2007 to 12 March 2008.
  • The offender is not to be subject to supervision on parole (per s 51(1AA) of the Crimes (Sentencing Procedure) Act 1999).
  • Licence disqualification: statutory period of 3 years, from 13 August 2007 to 12 August 2010.

Key Takeaways

  • A bad driving record for drink driving offences can compel a custodial sentence even where the offender presents strong character references and the specific incidents were not proven to be directly caused by alcohol impairment.
  • The District Court held that community protection is a primary consideration when sentencing repeat drink drivers, and that this concern can outweigh mitigating personal circumstances.
  • Special circumstances may be found where an offender has an identified substance problem and would benefit from an extended period on parole, resulting in a non-parole period that represents a smaller proportion of the overall term than the standard ratio.
  • Discrepancies between the traffic records before the Local Court and the appellate court can affect the sentencing outcome; in this case, the record before the Local Court was more extensive than the one initially before the District Court, which explained the severity of the original sentence.
  • Refusing to cooperate with a breath test was noted as a relevant consideration in assessing the overall circumstances of the offence.

Legislation and Cases Referenced

Legislation:
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 12(1)(a): offence of driving under the influence of alcohol or other drug
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 51(1AA): supervision of offenders released to parole

Cases cited: None cited in the judgment.