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District Court 2 December 2022

R v Burrell

[2022] NSWDC 719

Assault & violenceTraffic & driving
SENTENCING — NON PAROLE PERIOD

Citation: R v Burrell [2022] NSWDC 719
Court: District Court of New South Wales
Date: 2 December 2022
Judge: Bright DCJ

Background

A 25-year-old woman with no prior criminal history was sentenced at Gosford District Court after pleading guilty to dangerous driving occasioning grievous bodily harm and driving with an illicit drug present. The offending occurred on 2 May 2021, when the offender drove her passenger and friend along Wilfred Barrett Drive on the Central Coast.

Witness accounts described the offender driving aggressively, tailgating other vehicles and repeatedly overtaking on the wrong side of the road, including over a hill and past double unbroken lines that prohibited overtaking. Despite multiple opportunities to return to her lane, and with oncoming headlights visible, the offender continued until a collision with an oncoming vehicle became unavoidable. The passenger suffered grievous bodily harm as a result.

The offender had pleaded guilty at Wyong Local Court on 21 June 2022. She had spent no time in pre-sentence custody and had a nil criminal record at the time of sentencing.

  • What weight to give mitigating factors, including the offender's youth, lack of criminal history, mental health issues, and guilty plea
  • Whether an Intensive Corrections Order (ICO) was an available or appropriate sentencing option
  • Whether special circumstances existed justifying a variation to the standard ratio between the non-parole period and the balance of term on parole
  • What sentence and licence disqualification period were appropriate for both offences

Decision

The District Court imposed a total sentence of two years and three months' imprisonment for the dangerous driving offence, reflecting a starting point before the guilty plea discount. The 25% discount for the guilty plea was applied having regard to the timing of the plea. The court took into account the offender's youth, nil criminal record, mental health issues, and drug issues as mitigating factors, but concluded that the objective seriousness of the conduct was significant.

The court found that an ICO was unavailable because the total sentence exceeded two years, and stated that even had it been available, it would not have been appropriate. The purposes of punishment, denunciation, accountability, and both specific and general deterrence all required a full-time custodial term. The court noted that while an ICO might better address the risk of reoffending, those considerations did not outweigh the other sentencing objectives in these circumstances.

Special circumstances were established under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, justifying a longer parole period relative to the non-parole period. The rationale was that the offender would benefit from extended supervised time in the community after release to address her mental health and drug-related issues.

For the secondary offence of driving with an illicit drug present, the court imposed a conviction under s 10A of the Crimes (Sentencing Procedure) Act 1999 with no further penalty, alongside an automatic six-month disqualification.

Orders Made

  • Convicted of dangerous driving occasioning grievous bodily harm
  • Sentenced to imprisonment with a non-parole period of one year, commencing 2 December 2022 and expiring 1 December 2023
  • Balance of term on parole of one year and three months, expiring 1 March 2025 (total sentence: two years and three months)
  • Release to parole directed on 1 December 2023
  • Licence disqualification of one year, nine months and seven days (being the three-year automatic disqualification, less time already served on disqualification from 9 September 2021)
  • Convicted of driving with illicit drug present under s 10A with no further penalty
  • Automatic six-month licence disqualification for the drug driving offence

Key Takeaways

  • The District Court confirmed that a full-time custodial sentence may be warranted for a young first offender where the objective seriousness of the conduct and the need for denunciation, punishment, and deterrence collectively outweigh the rehabilitative benefits of a supervised community-based order.
  • An Intensive Corrections Order is not available where the total term of imprisonment exceeds two years, pursuant to the Crimes (Sentencing Procedure) Act 1999.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 can be established where an offender requires a longer supervised period in the community after custody to address mental health and substance use issues.
  • A 25% discount on sentence was applied for a guilty plea entered at the Local Court on committal, reflecting the timing of the plea in the overall sentencing exercise.
  • Where a secondary offence carries a relatively minor maximum penalty (here, 20 penalty units), a court may impose a conviction with no further penalty under s 10A, leaving the automatic licence disqualification as the operative consequence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 44(2), 66
- Road Transport Act 2013 (NSW), ss 111(1)(a), 166, 257

Cases:
- Apulu v R [2022] NSWCCA 244
- DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194
- R v White (2002) 55 NSWLR 252