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District Court 2 March 2007

UCH, Yi v R

[2007] NSWDC 389

Traffic & driving
CRIMINAL LAW SENTENCE APPEAL DRIVING WHILST DISQUALIFIED COMMENCED TRAFFIC OFFENDERS PROGRAM CHARACTER REFERENCES WHETHER A S 9 BOND APPROPRIATE

Citation: UCH, Yi v R [2007] NSWDC 389
Court: District Court of New South Wales
Date: 2 March 2007
Judge(s): Cogswell SC DCJ

Background

The appellant, a 21-year-old man, pleaded guilty to driving while disqualified on 7 September 2006. Police stopped him at a random breath test, at which point it emerged he was subject to a disqualification running from 26 May 2006 to 26 November 2006. His counsel indicated he had driven that night in response to a call for help from friends.

At first instance, Magistrate O'Connor at Campbelltown Local Court convicted the appellant, imposed a six-month suspended sentence, disqualified him from driving for two years, and ordered him to pay court costs. The appellant appealed to the District Court on the ground that the sentence was too severe. His counsel's primary objective was to have the suspended sentence replaced with a less punitive order, rather than to challenge the disqualification.

  • Whether the Magistrate's sentence was manifestly excessive in the circumstances
  • Whether a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 was more appropriate than a suspended term of imprisonment
  • Whether the appellant's traffic record, personal circumstances, and participation in the Traffic Offenders Program were factors that affected the sentencing outcome

Decision

The District Court accepted the appellant's submission that a s 9 good behaviour bond was the more appropriate sentence, a position the Crown did not oppose. Cogswell SC DCJ acknowledged the appellant's prior traffic record with some seriousness, noting it included multiple infringements for non-compliance with licence conditions, several speeding convictions, and a mid-range prescribed concentration of alcohol (PCA) conviction in May 2006. His Honour observed it was "a little surprising" that the appellant was driving while disqualified only three months after the PCA disqualification had been reduced on appeal.

Nonetheless, his Honour weighed a number of mitigating factors: the appellant's guilty plea at the first opportunity, his early commencement of the Traffic Offenders Program (by then in his fifth week), the apparent impact that program had made on his attitude, supportive character references, significant family responsibilities including caring for an ill mother and contributing to the family mortgage, and steady employment. His Honour expressed genuine hope that the program would produce a lasting change in the appellant's attitude to driving.

The suspended sentence was set aside. His Honour substituted a 12-month good behaviour bond with conditions requiring completion of the Traffic Offenders Program and acceptance of any supervision considered appropriate by the Probation and Parole Service, with the appellant directed to attend the Campbelltown office within seven days.

Orders Made

  • The Magistrate's sentence was set aside
  • The appellant was ordered to enter into a good behaviour bond for 12 months, subject to standard statutory conditions
  • Additional bond conditions required completion of the Traffic Offenders Program and acceptance of Probation and Parole Service supervision as deemed appropriate by that service
  • The appellant was directed to attend the Campbelltown Probation and Parole office within seven days of the date of judgment
  • The automatic two-year disqualification from 25 November 2006 was confirmed
  • The court costs order made by the Magistrate was confirmed

Key Takeaways

  • The District Court found that a s 9 good behaviour bond was the appropriate sentencing outcome where the offender was young, had pleaded guilty, and was actively engaged in a rehabilitative program, even against a background of a poor traffic record.
  • Participation in the Traffic Offenders Program, and evidence of its practical impact on an offender's attitude, can carry meaningful weight in mitigation at sentence.
  • A prior disqualification for a PCA offence, reduced on appeal only months before the offending in question, was noted as an aggravating feature and treated as a significant concern, even where it did not preclude a non-custodial outcome.
  • Personal circumstances, including family responsibilities and financial obligations, were among the factors taken into account in assessing the appropriate form of sentence.
  • Under the applicable legislation, the two-year disqualification was an automatic statutory consequence of the conviction and was not disturbed by the appeal, regardless of the change to the primary sentencing order.

Legislation and Cases Referenced

Legislation:
- Crimes (Local Courts) Appeal and Review Act 2001, s 11 (basis for appeal to the District Court)
- Crimes (Sentencing Procedure) Act 1999, s 9 (good behaviour bond without conviction, or in lieu of other sentence)

Cases: No cases were cited in the judgment.