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Local Court 6 May 2011

Police v Anton Karel TOCIN

[2011] NSWLC 24

Traffic & drivingPublic order & justice offences
SENTENCING DRIVE WHILST DISQUALIFIED PRIOR RECORD AN AGGRAVATING FACTOR THREATEN TO CAUSE INJURY TO A WITNESS

Citation: Police v Anton Karel Tocin [2011] NSWLC 24
Court: Local Court of New South Wales
Date: 6 May 2011
Judge: Magistrate Lerve

Background

The offender appeared for sentence on two charges arising from separate incidents in Leeton, NSW. The first was driving a motor vehicle while disqualified, contrary to the Road Transport (Driver Licensing) Act 1998, committed on 25 November 2010. The second, and more serious charge, was threatening to cause injury to a person believed to be a witness in judicial proceedings, contrary to the Crimes Act 1900, committed on 5 April 2011.

The witness-threatening charge arose from a chance encounter in the back of an ambulance. The offender, who was on Supreme Court bail for murder at the time, found himself transported by a paramedic he believed had provided a statement in those proceedings. Intoxicated and injured following a motorbike accident, he made a series of threatening remarks to the paramedic during the ambulance trip. The offender also made incriminating statements at the time of his formal processing by police.

The offender entered guilty pleas to both charges at the first opportunity. Magistrate Lerve also noted with some surprise that the witness-threatening charge, given its connection to a pending murder matter in the Supreme Court, had remained in the Local Court for determination.

  • What was the appropriate objective seriousness of each offence?
  • What weight should be given to the offender's prior record and his status on conditional liberty at the time each offence was committed?
  • What discount applied to sentence given early guilty pleas, and whether the strength of the prosecution case affected that discount?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of term?
  • How should the two sentences be structured, including the extent of cumulation?

Decision

Magistrate Lerve assessed the driving while disqualified offence as sitting at approximately the midpoint of objective seriousness for that type of offence. It was characterised as a straightforward case of a person knowingly defying a court order prohibiting him from driving. The court noted that the offender was subject to a good behaviour bond at the time, making the commission of the offence an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.

The witness-threatening charge was treated as the more serious matter. Carrying a maximum penalty of ten years imprisonment, the Parliament's view of its seriousness was evident. The court assessed the offence as slightly below the midpoint of objective seriousness, accepting that it arose from a chance meeting rather than a deliberate search for the victim, and that the offender was intoxicated at the time. However, the offender was on conditional Supreme Court bail for murder when he committed the offence, which again operated as a significant aggravating factor. The nature of the threats, directed at a person the offender believed was a witness against him in those very proceedings, added to the gravity of the conduct.

The court applied a 25 percent discount to both sentences for the utilitarian value of the early guilty pleas. In doing so, Magistrate Lerve reaffirmed that the strength of the prosecution case has no bearing on that discount, citing R v Thomson; R v Houlton and R v Sutton. Special circumstances were found, principally because of the need to structure the two sentences with some cumulation, which warranted a modest variation to the standard non-parole to total sentence ratio.

Orders Made

  • Driving while disqualified: Convicted; fixed term of imprisonment of eight months commencing 5 April 2011 and expiring 4 December 2011. Starting point was twelve months, reduced by 25 percent for the guilty plea.
  • Threatening a witness: Convicted; non-parole period of nine months commencing 5 September 2011 and expiring 4 June 2012, followed by a balance of term of fifteen months commencing 5 June 2012 and expiring 4 December 2013. Parole to be unsupervised. Starting point was twenty months, reduced by 25 percent to fifteen months total.
  • Disqualification from holding or obtaining a driver licence for three years from 29 December 2012.
  • Any habitual offender declaration quashed.
  • Transcript of remarks directed to be kept with the papers in the event of a sentence appeal.

Key Takeaways

  • Committing an offence whilst on conditional liberty, whether a good behaviour bond or bail, constitutes a statutory aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 and consistently increases the seriousness with which the sentencing court views the conduct.
  • A 25 percent discount for the utilitarian value of an early guilty plea applies regardless of the strength of the prosecution case, confirming the approach in R v Thomson; R v Houlton and R v Sutton.
  • Threatening a witness in judicial proceedings carries a maximum of ten years imprisonment under s 326(2) of the Crimes Act 1900, reflecting the legislature's view that offences against the administration of justice warrant strong deterrent sentences.
  • The need to impose cumulative sentences can itself constitute special circumstances justifying a departure from the standard statutory ratio between the non-parole period and the total term of imprisonment.
  • Driving while disqualified, even in relatively unremarkable circumstances, remains a serious matter treated as deliberate defiance of a court order, with prior driving record capable of further aggravating the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 326(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 44
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25A(1)(a)

Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Sutton [2004] NSWCCA 225
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 137 A Crim R 196
- Bourke v R [2010] NSWCCA 22
- Cahyadi v R [2007] NSWCCA 1
- Marinellis v R [2006] NSWCCA 307
- R v AD [2008] NSWCCA 289
- R v Doan (2000) 50 NSWLR 115
- R v Jones (unreported, NSWCCA, 30 June 1994)
- R v Lenard; R v Fail [2006] NSWCCA 345
- R v Van Rysewyk [2008] NSWCCA 130