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District Court 1 August 2008

JOHNSON, Peter Vincent v R

[2008] NSWDC 376

Traffic & driving
CRIMINAL LAW SENTENCE APPEAL DANGEROUS DRIVING

Citation: JOHNSON, Peter Vincent v R [2008] NSWDC 376
Court: District Court of New South Wales
Date: 1 August 2008
Judge(s): Cogswell SC DCJ

Background

The appellant was convicted of dangerous driving under s 42 of the Road Transport (Safety and Traffic Management) Act 1999, arising from an incident on 23 February 2008 on the M4 Motorway at Prospect. He was recorded travelling at 167 km/h on a motorbike, with police estimating speeds of up to 210 km/h, while weaving through and overtaking approximately 30 vehicles. At the time, the appellant was already disqualified from holding a driver's licence.

The Local Court (the Magistrate) imposed a two-year licence disqualification (the statutory minimum), a fine of $1,200, court costs of $70, and a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999. The appellant, who appeared in person, appealed against the sentence to the District Court.

The central issue on appeal was whether the disqualification should be reduced further or avoided altogether, in light of the appellant's personal circumstances, including financial hardship, a back injury, and significant personal grief.

  • Whether there was any proper basis to make an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 (which would have allowed the court to dismiss the matter without recording a conviction, thereby avoiding mandatory disqualification)
  • Whether the two-year minimum disqualification period should be reduced or otherwise modified
  • Whether the fine imposed by the Magistrate should be varied given the appellant's personal financial circumstances
  • Whether the disqualification period should be backdated to the date of the offence, given that the licence had been taken by police on that date

Decision

Cogswell SC DCJ found no proper basis for a s 10 order, which is the only mechanism by which a court can avoid imposing a disqualification for this offence. The court characterised the offence as serious, though not at the top of the range, and noted that the appellant's prior convictions for driving whilst disqualified precluded any leniency on the disqualification question.

On the question of personal circumstances, the court acknowledged several mitigating factors: the appellant had been travelling to visit the grave of his infant daughter who had died from sudden infant death syndrome, he was emotionally distressed at the time, and he had made commendable efforts to move away from a decade of crime and drug use. Despite these factors, the court held that the minimum two-year disqualification was not only mandatory but, given the appellant's record, quite lenient in the circumstances.

The court did exercise some leniency regarding the fine. Accepting the appellant's evidence of difficult financial circumstances, including a current workers' compensation claim for a back injury, the court reduced the fine from $1,200 to $500 and waived the court costs entirely. The existing s 9 good behaviour bond was confirmed without the need for re-entry.

At the appellant's request, and having heard briefly from the prosecution, the court also backdated the commencement of the disqualification period to 23 February 2008, the date of the offence, recognising that the appellant's licence had been taken by police at the time of the incident.

Orders Made

  • The Magistrate's sentence was set aside
  • A two-year licence disqualification was imposed, backdated to 23 February 2008 and expiring on 22 February 2010
  • A fine of $500 was imposed
  • Court costs were waived
  • The existing s 9 good behaviour bond (entered 26 April 2008) was confirmed for 12 months

Key Takeaways

  • Under s 42 of the Road Transport (Safety and Traffic Management) Act 1999, a licence disqualification of five years applies automatically for dangerous driving where no order is made; the statutory minimum a court may impose is two years.
  • A s 10 order under the Crimes (Sentencing Procedure) Act 1999 is the only mechanism available to avoid the mandatory disqualification, and where such an order is not appropriate, the minimum two-year period cannot be reduced further.
  • Prior convictions for driving whilst disqualified are a significant factor in sentencing for dangerous driving offences, and the District Court here treated such a record as foreclosing any claim to additional leniency.
  • Personal mitigating circumstances, including financial hardship, may support a reduction in the quantum of a fine even where they cannot affect a mandatory minimum disqualification.
  • A disqualification period may be backdated to the date of the offence where a licence was physically taken from the offender by police at that time, reflecting the period during which the person was effectively unable to drive.

Legislation and Cases Referenced

Legislation:
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 42
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9, s 10
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)

Cases: No cases were cited in the judgment.