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District Court 19 September 2016

Barris v R

[2016] NSWDC 291

Traffic & driving
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE DRIVING WHILST DISQUALIFIED POOR DRIVING RECORD SENTENCED TO IMPRISONMENT FOR 4 MONTHS

Citation: Barris v R [2016] NSWDC 291
Court: District Court of New South Wales
Date: 19 September 2016
Judge(s): Neilson DCJ

Background

The appellant pleaded guilty in the Local Court to driving a motor vehicle whilst disqualified, contrary to s 54(1)(a) of the Road Transport Act 2013. The offence occurred on 24 March 2016 at Rockdale, when he drove a truck from a mechanic's workshop back to his place of work shortly after the vehicle had been serviced. He was pulled over by police moments after leaving the workshop.

The appellant's driving history was described by the sentencing judge as "appalling." He had accumulated multiple court-imposed disqualification periods since 2013, including a prior conviction for driving whilst disqualified. The current offence was committed before his most recent disqualification period had expired.

The Local Court at Sutherland sentenced the appellant to four months' imprisonment. The appellant, who had been unrepresented at the original sentencing, appealed against the severity of that sentence to the District Court.

  • Whether the four-month term of imprisonment imposed by the Local Court was manifestly excessive in all the circumstances
  • Whether the appellant's role as the sole parent and carer of an eight-year-old child for four years constituted a sufficient mitigating factor to justify an alternative to full-time custody
  • Whether a community service order was an appropriate disposition given the appellant's suitability assessment and personal circumstances

Decision

Neilson DCJ acknowledged that the appellant's driving record plainly warranted a custodial response. Repeated breaches of court-imposed disqualification periods left little room for leniency, and the judge confirmed that a form of custodial sentence remained appropriate.

The critical distinguishing factor was the appellant's status as the sole carer of his eight-year-old son for the preceding four years. There was no evidence that the child's mother was in a position to care for the boy, meaning a term of full-time imprisonment would leave the child without a parent. This created an extenuating circumstance that the original sentencing, at which the appellant was unrepresented, had not adequately addressed.

Since the Local Court hearing, the appellant had obtained a Community Corrections assessment confirming his suitability for community service work. The District Court accepted that a community service order, as an alternative form of custody, would still convey the punitive and deterrent purposes of sentencing. The judge reasoned that requiring the appellant to perform community service over an extended period would reinforce the need to comply with disqualification orders.

The District Court set aside the Local Court sentence and substituted a community service order of 200 hours.

Orders Made

  • Sentence of four months' imprisonment set aside
  • Appellant sentenced to 200 hours of community service
  • Appellant directed to report to the community service organiser at Hurstville within seven days
  • Two-year driving disqualification confirmed from the last date

Key Takeaways

  • The District Court confirmed that repeated breaches of court-imposed driving disqualification periods ordinarily warrant a custodial response, even where the individual offending occasion involves relatively brief driving.
  • Where an offender is the sole parent and carer of a young child and there is no evidence of an alternative carer, that circumstance can constitute a significant mitigating factor capable of displacing full-time imprisonment in favour of an alternative form of custody.
  • A community service order under the Crimes (Sentencing Procedure) Act 1999 is treated as an alternative to full-time custody, not merely a non-custodial option, and can satisfy the punitive and deterrent purposes of sentencing in appropriate cases.
  • Being unrepresented at the original sentencing, combined with material personal circumstances that were not adequately placed before the Local Court, supported intervention on appeal.
  • A post-sentence Community Corrections suitability assessment, obtained after the original hearing, was accepted as relevant material on the severity appeal.

Legislation and Cases Referenced

Legislation:
- Road Transport Act 2013 (NSW), s 54(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 86

Cases:
No cases were cited in the judgment.