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District Court 14 April 2008

WHEELER, Anthony John Thomas v R

[2008] NSWDC 364

Traffic & driving
CRIMINAL LAW JUDGMENT APPEAL FROM MAGISTRATE'S SENTENCE APPALLING PRIOR RECORD OF DRINK DRIVING OFFENCES WHETHER TO SUSPEND SENTENCE

Citation: WHEELER, Anthony John Thomas v R [2008] NSWDC 364
Court: District Court of New South Wales
Date: 14 April 2008
Judge(s): Cogswell SC DCJ

Background

The appellant had accumulated ten prior convictions for drink-driving offences and had previously served full-time custodial sentences for similar conduct. Following his most recent offence, a magistrate at Armidale sentenced him to six months' imprisonment in September 2007. He appealed that sentence to the District Court.

On the appeal, the appellant argued that he had genuinely rehabilitated himself and sought a suspended sentence in place of full-time custody. The prosecution opposed the application, submitting that the criminal history alone warranted continued imprisonment and that the evidence of rehabilitation was insufficient.

The District Court adjourned the matter under section 11 of the Crimes (Sentencing Procedure) Act 1999 to assess the appellant's rehabilitation prospects. The appellant attended Adele House, a rehabilitation centre near Coffs Harbour, for approximately two months before returning to court.

  • Whether the appellant's rehabilitation was genuine and sufficient to warrant suspension of his sentence of imprisonment under section 12 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the three-year automatic licence disqualification period should be reduced to allow the appellant to return to his occupation as a truck driver

Decision

The court accepted the appellant's sworn evidence that he had reached a genuine crossroads in his life, despite reservations about the quality of his rehabilitation. The rehabilitation report from Adele House was not glowing, noting that the appellant had made little progress and was discharged following a dispute. However, the report did confirm that he had remained abstinent from alcohol throughout his stay, verified by urine and random breath testing. The court treated that confirmed abstinence as the most significant aspect of the report.

The court weighed the appellant's personal circumstances, including his age of 57, the risk to his marriage, and his wife's medical condition requiring his support. His stated motivation to remain sober, namely that he was too old for gaol and needed to care for his wife, was accepted as credible. Cogswell SC DCJ acknowledged openly that suspending the sentence exposed the community to risk, but concluded that the evidence of genuine rehabilitation justified the opportunity.

On the disqualification question, the court declined to reduce the three-year automatic period. The court noted the appellant's appalling driving record and observed he had in fact been fortunate to receive no more than the standard three-year disqualification from the magistrate. The availability of other casual employment near his home in Uralla was noted but did not alter this conclusion.

The costs application made informally by defence counsel at the conclusion of proceedings was not granted. The court noted it was disinclined to award costs and that no relevant statutory provision was identified to ground the application.

Orders Made

  • The magistrate's sentence of six months' imprisonment was set aside
  • A sentence of five months' imprisonment was imposed, wholly suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999
  • The appellant was released on a good behaviour bond for five months, subject to the following conditions:
  • Be of good behaviour for the term of the bond
  • Appear before the court if called upon at any time during the bond period
  • Notify the District Court Registrar at Armidale in writing of any change of residential address
  • Submit to supervision by the NSW Probation and Parole Service and comply with all reasonable recommendations and directions
  • Submit to alcohol monitoring procedures as directed by Probation and Parole Service officers
  • Attend the Probation and Parole Service at Armidale on or before 4 pm on 22 April 2008
  • The magistrate's orders in all other respects (including the three-year licence disqualification) were confirmed

Key Takeaways

  • Under section 12 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court may suspend a term of imprisonment even where a defendant carries a serious and repeated criminal history, provided evidence of genuine rehabilitation is accepted.
  • The District Court treated confirmed alcohol abstinence, verified by testing during a residential rehabilitation programme, as the most meaningful indicator of rehabilitation in the circumstances, despite an otherwise unfavourable programme report.
  • An appalling prior record for the same offence does not automatically preclude a suspended sentence, but it will weigh heavily against reduction of mandatory disqualification periods.
  • In dismissing the disqualification reduction application, the court reinforced that automatic disqualification periods may in fact be increased for repeat offenders, and that occupational hardship does not, of itself, justify a reduction.
  • The court was candid that suspending the sentence involved a degree of community risk, illustrating that sentencing decisions in rehabilitation cases require explicit weighing of individual prospects against potential harm to others.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), section 20
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 11 and 12

Cases cited: None cited in the judgment.