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District Court 28 August 2013

MILSON v R

[2013] NSWDC 267

Traffic & driving
CRIMINAL LAW PARTICULAR OFFENCES DRIVE WHILE DISQUALIFIED POLICE PURSUIT NOT STOP DRIVE RECKLESSLY

Citation: MILSON v R [2013] NSWDC 267
Court: District Court of NSW
Date: 28 August 2013
Judge: Cogswell SC DCJ

Background

The appellant had been convicted of two driving offences committed on the same occasion: driving while disqualified from holding a licence, and a police pursuit offence involving reckless driving. The Local Court magistrate sentenced him to a fixed term of 18 months imprisonment, comprising 10 months and 12 months partially accumulated.

The appellant appealed against that sentence to the District Court. His counsel accepted that some form of custody was inevitable, but argued the sentence should be reduced and potentially served in the community, pointing to significant changes in the appellant's personal circumstances since approximately 2006.

The Crown opposed any community-based order, relying heavily on the appellant's extensive criminal and traffic history, including six prior convictions for driving while disqualified and the fact that he had been on bail for a similar offence at the time these offences were committed.

  • Whether the total sentence imposed by the Local Court was manifestly excessive and warranted reduction on appeal.
  • Whether the sentence could appropriately be served in the community rather than as full-time custody, including through an intensive correction order.
  • How to weigh the appellant's rehabilitative progress and changed personal circumstances against his serious and persistent driving record.
  • The proper structure of the aggregate sentence, including the non-parole period.

Decision

Cogswell SC DCJ reduced the total sentence from 18 months to 9 months imprisonment, with a non-parole period of 5 months. The reduction reflected several mitigating factors: the appellant had spent time on bail with regular reporting conditions, had ceased heroin use since 2006 and was on a methadone program, had entered a stable relationship, and had a child born in April 2013. The likelihood of serving the sentence in maximum security, given a prior escape or attempted escape on his record, was also taken into account.

Despite the reduction, the court rejected any form of community-based custody. The appellant had no driver's licence beyond a learner's permit obtained in the early 1990s, had accumulated six prior convictions for driving while disqualified, had received prior prison sentences for similar offending, and was on bail for a comparable offence at the time of these incidents. During the police pursuit, he reached speeds exceeding 100 km/h in a 60 km/h zone during peak hour traffic, forcing police to terminate the chase.

The court treated the appellant's driving record as an aggravating factor and gave substantial weight to both specific and general deterrence, as well as the protection of the public from an unlicensed rider with extensive prior offending. Full-time custody was treated as unavoidable in these circumstances.

The appellant was released on parole on 27 November 2013, on an unsupervised good behaviour basis. The court also imposed a further two-year licence disqualification to commence on 12 May 2016, upon expiry of an existing disqualification period.

Orders Made

  • Aggregate sentence of 9 months imprisonment, commencing 28 June 2013 and expiring 27 March 2014.
  • Non-parole period of 5 months, commencing 28 June 2013 and expiring 27 November 2013.
  • Order under s 50 of the Crimes (Sentencing Procedure) Act 1999 (NSW) directing release on parole on 27 November 2013, on an unsupervised good behaviour basis.
  • Licence disqualification for 2 years commencing 12 May 2016.

Key Takeaways

  • A prior history of repeated driving while disqualified, including prior custodial sentences for similar offending, will be treated as a significant aggravating factor in sentencing for further driving offences.
  • Committing a driving offence while on bail for a like offence weighs against leniency, even where genuine rehabilitation is demonstrated.
  • Evidence of rehabilitation, changed personal circumstances, and compliance with bail conditions can justify a reduction from the Local Court sentence, but will not necessarily displace the need for full-time custody where the offending and criminal record are sufficiently serious.
  • The District Court confirmed that protection of the public from unlicensed and dangerous driving is a proper sentencing consideration, alongside specific and general deterrence.
  • Where multiple sentences are accumulated in the District Court, an aggregate sentence with a single non-parole period is the correct sentencing structure under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50 (order for release on parole)

Cases cited: None stated in the judgment.