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District Court 26 March 2020

R v Pearce

[2020] NSWDC 176

Traffic & driving
SENTENCING — APPEAL AGAINST SENTENCE

Citation: R v Pearce [2020] NSWDC 176
Court: District Court of New South Wales
Date: 26 March 2020
Judge(s): Bennett SC DCJ

Background

The appellant was a 25-year-old Indigenous man who appeared before the District Court on a sentence appeal arising from three separate traffic-related offences committed in 2019. The offences were two instances of driving in a police pursuit (19 January and 15 February 2019) and one offence of driving whilst disqualified (20 September 2019). Each pursuit involved dangerous conduct on public roads in the Moree area, and the appellant made full admissions to police in each case.

The Local Court had imposed an aggregate sentence of 24 months' imprisonment, with a non-parole period of 16 months, commencing 12 January 2020. A community corrections order imposed for the first pursuit offence was also revoked, having been breached by the subsequent offending.

The appeal was brought on the basis that the sentence should be served by way of an Intensive Corrections Order (ICO) rather than full-time custody. The Crown did not oppose that outcome.

  • Whether the aggregate sentence of imprisonment imposed by the Local Court should be varied to permit service by way of an ICO rather than full-time custody
  • What weight should be given to the appellant's Indigenous background and the principles in Bugmy [2013] HCA 37
  • What disqualification periods applied to each of the three offences, given inconsistencies in the Local Court records

Decision

Bennett SC DCJ accepted that the "line" under s 5 of the Crimes (Sentencing Procedure) Act 1999 had been crossed and that the offending was serious enough to warrant imprisonment. The first pursuit was particularly dangerous: the appellant crossed onto the wrong side of a highway while trucks approached from the opposite direction, and police terminated the pursuit because of the imminent risk to life.

Notwithstanding the seriousness of the offending, the sentencing judge gave significant weight to the subjective case. The appellant was a young Indigenous man whose background attracted the Bugmy principles regarding the relevance of profound disadvantage experienced during formative years. He had effectively no prior criminal record, had made full admissions on each occasion, and had demonstrated employment-related qualifications and some rehabilitative potential consistent with the sentence assessment report.

The Court also noted that this was the first time the appellant had been required to serve a custodial sentence, and that he had reached his mid-twenties without accumulating the kind of criminal history sometimes seen in people with comparable backgrounds. The Crown's non-opposition to an ICO was consistent with these considerations. The District Court allowed the appeal and substituted an ICO for the term of full-time imprisonment.

On the question of disqualification, there were inconsistencies in the Local Court records. The sentencing judge corrected a clearly erroneous entry showing a five-year automatic disqualification for the first pursuit, and clarified the applicable periods in further orders made on 27 March 2020.

Orders Made

  • Aggregate sentence of 2 years' imprisonment confirmed, but ordered to be served by way of Intensive Corrections Order (ICO) in the community
  • Standard ICO conditions imposed: no further offending; submission to Community Corrections supervision
  • Completion of the Traffic Offenders' Intervention Program at the nearest available venue
  • 80 hours of community service, at a rate determined by supervising officers
  • Engagement with practice guide intervention modules addressing the appellant's criminogenic factors, as part of the rehabilitation program under s 73A(2)(e) of the Crimes (Sentencing Procedure) Act 1999
  • Disqualification periods confirmed (via addendum orders on 27 March 2020): 15 months for each police pursuit offence; 12 months for the drive whilst disqualified offence
  • Transport for NSW directed to calculate commencement dates in accordance with the regulations

Key Takeaways

  • The District Court confirmed that serious traffic offending, including high-speed police pursuits and driving whilst disqualified, can cross the imprisonment threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999, even for a first-time custodial offender.
  • Under the Bugmy principles, an Indigenous offender's background of disadvantage during formative years remains a relevant mitigating consideration at sentencing, and the District Court applied those principles here in the context of an ICO application.
  • Where an offender has made full admissions, has no prior criminal record, and demonstrates genuine rehabilitative potential, these factors can support the substitution of an ICO for full-time custody, even where the offending is objectively serious.
  • Inconsistencies or apparent errors in Local Court records regarding disqualification orders do not prevent the appellate court from identifying and correcting the intended orders, including by relisting the matter after judgment.
  • The Crown's non-opposition to an ICO, while not determinative, was treated as a relevant factor in the overall sentencing assessment.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 5, 10A, and 73A(2)(e)

Cases:
- Bugmy v The Queen [2013] HCA 37 (principles regarding the relevance of background disadvantage in sentencing Indigenous offenders)