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District Court 9 June 2015

McCarry v R

[2015] NSWDC 209

DrugsTraffic & driving
CRIMINAL LAW APPEAL AGAINST SENTENCE PARTICULAR OFFENCES POSSESS PROHIBITED DRUGS DANGEROUS DRIVING RELEVANT FACTORS

Citation: McCarry v R [2015] NSWDC 209
Court: District Court of New South Wales
Date: 9 June 2015
Judge: Cogswell SC DCJ

Background

The appellant had pleaded guilty before a Magistrate to dangerous driving under s 51B(1) of the Crimes Act 1900 (NSW) and was sentenced to 16 months' imprisonment with a non-parole period of 10 months. The offending occurred on 13 February 2015 and involved a high-speed police pursuit through residential streets, speeds of up to 90 km/h in a 50 km/h zone, weaving between heavy vehicles, and a near-collision at a roundabout. Because the appellant had a prior conviction for a similar offence within the preceding five years, the applicable maximum penalty was five years' imprisonment.

The appellant appealed to the District Court, seeking a reduction in sentence. He also lodged appeals against four separate sentences for possession of prohibited drugs, but those sentences had already been served and leave was sought to withdraw those appeals.

A key complicating factor was the appellant's extensive criminal record, primarily for domestic violence and drug-related offences, and an identified need for residential drug rehabilitation. A pre-sentence report prepared by Community Corrections confirmed that substance abuse had significantly contributed to the appellant's offending, but noted that he had been ambivalent about entering residential rehabilitation.

  • Whether the sentence of 16 months' imprisonment with a 10-month non-parole period was manifestly excessive in the circumstances.
  • How significant weight should be given to the appellant's criminal record, including limited prior traffic offending but extensive offending in other categories.
  • What role the appellant's prospects for rehabilitation played in the sentencing exercise.
  • Whether the court could structure conditions of parole so as to require direct entry into a residential rehabilitation facility upon release.

Decision

His Honour accepted the appellant's submission that the jump from an $800 fine for a prior dangerous driving conviction to a sentence of nearly 16 months was significant. However, the court also noted that Parliament had fixed a five-year maximum for repeat offenders in this category, making the Magistrate's sentence relatively lenient in that broader context. The appellant's extensive record of flouting court orders and committing serious offences, including domestic violence, meant he could not claim leniency on the basis of good character.

On rehabilitation, the court accepted that the appellant's drug addiction had substantially driven his offending behaviour. The pre-sentence report characterised the appellant as presenting as "ambivalent" about residential rehabilitation and noted he had not initiated contact with any facility despite his psychologist's recommendations over two years. The court took the view that rehabilitation was critical both to reducing reoffending and to protecting the community.

His Honour indicated a willingness to reduce the sentence to 12 months with a six-month non-parole period, on the condition that the appellant proceed directly from custody into a residential rehabilitation centre. A practical difficulty then arose: there was no confirmed bed available for the appellant at the time of the hearing. The Crown raised the concern that a parole condition requiring immediate entry into a facility could not be satisfied if no vacancy existed, creating a risk of technical breach.

Because of that logistical uncertainty, the court declined to finally determine the appeal on that day. His Honour adjourned the matter to 7 August 2015 to receive information about the availability of a rehabilitation placement, intending to finalise the sentence once a bed could be confirmed, so that the parole condition requiring direct entry into the facility could operate effectively.

Orders Made

  • Leave granted to the appellant to withdraw the drug possession appeals (counts 1, 2, 3 and 5).
  • The licence disqualification period reduced to two years (correcting the Magistrate's order, which had fallen below the applicable minimum).
  • Final determination of the dangerous driving sentence appeal adjourned to 7 August 2015 at Parramatta.
  • Transcript of the judgment to be provided to the parties by 3 August 2015.
  • Proposed (but not yet finalised) sentence: 12 months' imprisonment from 13 February 2015, with a six-month non-parole period, subject to confirmation of rehabilitation placement.

Key Takeaways

  • The District Court treated the availability of residential rehabilitation as a matter of sufficient importance to adjourn a sentence appeal rather than impose conditions that could not practically be met on the day of release.
  • Where an offender's criminal record includes numerous serious offences and repeated non-compliance with court orders, the record operates as an aggravating factor that precludes any claim to leniency, even where the specific category of offending (here, dangerous driving) is relatively infrequent.
  • Under s 51B(1) of the Crimes Act 1900, a repeat dangerous driving offender within five years faces a maximum penalty of five years' imprisonment, and a sentence of 16 months was characterised by the court as relatively lenient measured against that maximum.
  • Ambivalence toward rehabilitation, acknowledged in a pre-sentence report, did not preclude the court from structuring parole conditions to compel entry into residential treatment; the court viewed direct post-custody placement as the mechanism most likely to protect the community and improve rehabilitation prospects.
  • A sentencing court's inability to confirm the practical availability of a required rehabilitation placement can, in appropriate circumstances, justify adjourning the final determination of a sentence appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 51B(1) (dangerous driving causing death or grievous bodily harm; repeat offender maximum)
- Crimes (Appeal and Review) Act 2001 (NSW), s 20 (determination of appeal against sentence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50 (parole orders)

Cases cited: None recorded in the judgment.