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District Court 14 July 2021

R v Raouf

[2021] NSWDC 384

Public order & justice offences

Citation: R v Raouf [2021] NSWDC 384
Court: District Court of New South Wales
Date: 14 July 2021
Judge(s): Montgomery DCJ

Background

Following a police pursuit in Bankstown on 21 February 2020, a highway patrol officer identified the appellant as the registered owner of a silver Volkswagen that had fled at speeds up to 110 km/h on streets signed at 50 km/h. The officer attended the appellant's address two days later and served a formal demand requiring the appellant to disclose the identity of the driver.

The appellant responded in writing, claiming his car keys had been stolen from a university common room without his knowledge, and that he had tried but failed to identify the culprit. Despite multiple requests from the officer to provide a formal statement so that the stolen vehicle claim could be investigated, the appellant did not attend the police station and made no further substantive contact.

The appellant was charged with, and convicted by, Mulroney LCM at Bankstown Local Court on 24 March 2021 of failing to disclose the identity of the driver when required to do so under s 17(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). The appellant appealed the sentence to the District Court, seeking that the court proceed to sentencing without recording a conviction.

  • Whether the appellant's conduct satisfied the elements of the offence under s 17(1) LEPRA, including whether any reasonable excuse existed for failing to comply with the disclosure requirement under s 14 LEPRA.
  • Whether the District Court should exercise its discretion under ss 9(1)(b) and 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to discharge the appellant on a Conditional Release Order without recording a conviction.
  • What weight to give to the appellant's personal circumstances, including mental health, upbringing, and hardship, in moderating the sentencing considerations under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

Montgomery DCJ upheld the finding that the offence was proved. The underlying facts were not disputed: the appellant was the vehicle's owner, the vehicle was involved in a police pursuit constituting an indictable offence under s 51B of the Crimes Act 1900 (NSW), and the disclosure obligation under LEPRA was properly triggered. The claim that his car had been stolen without his knowledge and that he could not identify the driver did not, on the facts, provide a complete answer to the charge.

On the sentencing question, the court considered the appellant's personal circumstances in detail. Psychological evidence from a Mr Borenstein established that the appellant experienced extremely severe symptoms of anxiety, moderate symptoms of depression, and trust difficulties rooted in a deprived upbringing marked by extensive physical abuse from an early age. The court accepted this evidence and treated these circumstances as moderating the appellant's culpability, drawing on the principles in Muldrock v The Queen (2011) 244 CLR 120 and Bugmy v The Queen (2013) 249 CLR 571.

The court concluded that the appellant's troubled background and psychological state diminished the weight to be given to general deterrence, denunciation, and rehabilitation in the sentencing calculus. Montgomery DCJ found the appellant was not an appropriate vehicle for making an example to others. On that basis, the court exercised its discretion to proceed to sentencing without recording a conviction and to discharge the appellant on a Conditional Release Order.

Orders Made

  • The Local Court conviction and any order for costs were set aside.
  • The offence was found proved.
  • Pursuant to ss 9(1)(b) and 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the appellant was discharged without conviction to a Conditional Release Order (bond to be of good behaviour on standard conditions, with the obligation to appear for conviction if called upon in the event of breach) for a period of one year from 14 July 2021.
  • Additional condition: the offender must keep the Registrar of the District Court advised of any change of residential address.

Key Takeaways

  • The obligation under s 17(1) LEPRA for a vehicle owner to disclose the identity of a driver is engaged where the vehicle has been involved in an indictable driving offence. A claim of ignorance as to the driver's identity does not automatically constitute a reasonable excuse, particularly where the owner fails to cooperate with follow-up investigations.
  • Under ss 9(1)(b) and 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may discharge an offender on a Conditional Release Order without recording a conviction even where an offence is found proved, provided the discretionary criteria are met.
  • Applying Bugmy v The Queen (2013) 249 CLR 571, a deprived upbringing involving serious physical abuse from an early age can moderate the culpability of an offender at sentencing, even for regulatory or police-powers offences.
  • Consistent with Muldrock v The Queen (2011) 244 CLR 120, where an offender's psychological condition and personal history reduce their culpability, the weight attached to general deterrence and denunciation may be diminished accordingly.
  • In dismissing the original conviction and substituting a non-conviction order, the District Court demonstrated that the upper sentencing range applied at first instance is open to challenge where the court below did not adequately account for mitigating personal circumstances.

Legislation and Cases Referenced

Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 3, 4, 5, 7, 11, 12, 13, 14, 17 and Schedule 1
- Crimes Act 1900 (NSW), s 51B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9(1)(b), 10(1)(b)
- Road Transport Act 2013 (NSW), s 223

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Muldrock v The Queen (2011) 244 CLR 120
- Prior v Mole (2017) 261 CLR 265
- R v De Simoni (1981) 147 CLR 383