Citation: R v Hale [2020] NSWDC 684
Court: District Court of New South Wales
Date: 9 October 2020
Judge(s): Bennett SC DCJ
Background
The offender, a 38-year-old man at the time of the offending, appeared before the District Court for sentencing on four offences arising from events in late 2019 and early 2020. Two indictable offences had been committed for sentence from the Local Court following guilty pleas there, and two summary offences were dealt with concurrently under s 166 of the Criminal Procedure Act 1986.
The central incident involved the offender riding a motorcycle without registration at speeds reaching 192 km/h in a 90 km/h zone while being pursued by police on the Central Coast. The motorcycle had been left in a fitness centre car park by its owner after a flat battery, and was taken without the owner's consent. The offender was riding the motorcycle while already disqualified from driving, and drug testing revealed the presence of an illicit drug in his oral fluid.
At the time of these offences, the offender was on parole. His parole was revoked following his arrest in January 2020, and he was required to serve the balance of that parole before his pre-sentence custody in relation to the present offences commenced.
Legal Issues
- How to assess the objective seriousness of each offence on the relevant sentencing scale
- Whether and to what extent the offender's extensive criminal history and conditional liberty at the time of offending should affect the sentence
- How to determine the commencement date for the sentence, given the revocation of parole and time already spent in custody
- Whether partial accumulation with the balance of the parole period was appropriate
- Whether a s 10A finding (conviction without further penalty) was suitable for the drug driving offence
- How to structure the individual indicative sentences into an appropriate aggregate term
Decision
Bennett SC DCJ assessed each offence individually before arriving at an aggregate sentence. The police pursuit offence was placed above the mid-range of objective seriousness, given the extreme speed involved and the danger created on a public highway. The take-and-drive offence was assessed at or below mid-range, while the driving whilst disqualified offence was placed at the upper end of seriousness in light of the offender's repeated disqualification offending.
The offender received a 25% discount on each sentence for his early guilty pleas across all four matters. His extensive criminal antecedent history and the fact that he was on parole at the time of the offences were treated as aggravating factors relevant to specific deterrence and rehabilitation, though the Court noted that such factors do not increase a sentence beyond what is proportionate to the objective conduct itself.
On the drug driving charge, the Court imposed no penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999, on the basis that imprisonment was already being imposed for the other matters and requiring the offender to also face a fine upon release would be unduly burdensome. The automatic 12-month licence disqualification still attached to that conviction.
Regarding commencement of the sentence, the Court drew on the approach in Callaghan v R [2006] NSWCCA 58, concluding that partial accumulation with the revoked parole period was appropriate. The sentence was backdated to commence on 30 May 2020, reflecting partial overlap with the parole balance already served.
Orders Made
- The offender was convicted of all four offences.
- An aggregate sentence of 3 years and 3 months imprisonment was imposed, commencing 30 May 2020.
- A non-parole period of 2 years was specified, expiring 29 May 2022, with a further parole-eligible period of 1 year and 3 months expiring 29 August 2023.
- For the police pursuit offence: indicative sentence of 2 years and 3 months imprisonment; 5-year automatic licence disqualification imposed.
- For the take-and-drive offence: indicative sentence of 1 year, 10 months and 15 days imprisonment.
- For driving whilst disqualified: indicative sentence of 9 months imprisonment; 12-month automatic disqualification imposed.
- For driving with illicit drug in oral fluid: no penalty under s 10A; 12-month automatic disqualification imposed.
- Several back-up charges (H75423777, sequences 2, 3 and 5) were withdrawn.
Key Takeaways
- The District Court applied the Callaghan v R principle to determine that partial accumulation of a fresh sentence with a revoked parole period can be appropriate, and in this case backdated the sentence commencement to achieve a degree of concurrence.
- A conviction for repeated driving whilst disqualified can attract an assessment at the upper end of objective seriousness where the offender has an established pattern of the same conduct.
- Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction for an offence while declining to impose any additional penalty, particularly where other sentences render further punishment disproportionate.
- Antecedent criminal history and offending whilst on conditional liberty are aggravating factors relevant to specific deterrence and prospects of rehabilitation, but do not operate to inflate a sentence beyond what the objective seriousness of the particular conduct warrants.
- Early guilty pleas across multiple charges can attract a uniform 25% discount, applied individually to each indicative sentence before those sentences are synthesised into an aggregate term.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 51B(1), 154A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A; Part 4 Div 1A
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), ss 54(1)(a), 111(1)(a)
Cases:
- Callaghan v R [2006] NSWCCA 58
- Imbornone v R [2017] NSWCCA 144
- Muldrock v R [2011] HCA 39
- R v Henry [1999] NSWCCA 107
- R v Qutami [2001] NSWCCA 353