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District Court 4 August 2023

R v Issa

[2023] NSWDC 333

Traffic & driving
CRIME SENTENCE APPEAL CHILD OFFENDER STATUTORY INTERPRETATION

Citation: R v Issa [2023] NSWDC 333
Court: District Court of New South Wales
Date: 4 August 2023
Judge: Montgomery DCJ

Background

The offender was a young man who, at 17 years of age, drove a Mercedes on the M4 freeway at 207 kilometres per hour at 12:41am. He held a CP1 (provisional) licence with a maximum permitted speed of 90 km/h. He was charged with driving recklessly, furiously, or at a speed dangerous under s 117(2) of the Road Transport Act 2013 (NSW).

The offender pleaded guilty at the earliest opportunity in the Penrith Local Court and received a fine of $1,000 and the minimum disqualification period of one year. He appealed that sentence to the District Court, not on the ground that the penalty was excessive, but seeking to be sentenced under the children's sentencing regime, which would have allowed a conviction-free outcome.

On appeal, Montgomery DCJ had all the powers and functions of the Local Court. The central question was whether the sentencing court had jurisdiction to treat the offender as a child under the children's sentencing provisions, despite s 28(2) of the Children (Criminal Proceedings) Act 1987 (NSW) excluding traffic offences from the Children's Court's jurisdiction.

  • Whether s 210 of the Criminal Procedure Act 1986 (NSW) confers jurisdiction on the Local Court to sentence a child traffic offender under the children's sentencing provisions, notwithstanding that s 28(2) of the Children (Criminal Proceedings) Act 1987 (NSW) removes the Children's Court's jurisdiction over traffic offences
  • Whether the sentence imposed in the Local Court (fine and minimum disqualification) was appropriate, having regard to the offender's youth, character, and the principles of general deterrence and denunciation

Decision

Jurisdiction: The statutory construction question

Montgomery DCJ held that s 210 of the Criminal Procedure Act does not independently create jurisdiction to sentence a child traffic offender as a child where the Children's Court itself lacks jurisdiction. The key phrase in s 210(2) is that the Local Court may exercise the children's sentencing functions "as if the Local Court were the Children's Court." His Honour construed this as a deliberate conditional: the power under s 210 is available only where the Children's Court would have had jurisdiction in the first place.

Because s 28(2) of the Children (Criminal Proceedings) Act expressly removes the Children's Court's jurisdiction over traffic offences (subject to two exceptions that did not apply here), the condition for activating s 210 was not satisfied. The sentencing court therefore had no jurisdiction to deal with the offender under the children's provisions and was required to sentence him as an adult.

Sentence: Appropriateness of the Local Court's orders

Montgomery DCJ accepted that the sentence imposed, assessed from the perspective of an adult offender, fell within the lenient range, as the appellant's representative had responsibly conceded. The offender had excellent character, no prior history, was highly remorseful, had completed a Traffic Offenders course, and presented a low risk of reoffending. Those matters weighed in his favour.

Nevertheless, the court placed significant weight on general deterrence and denunciation. While specific deterrence was a less prominent consideration given the offender's remorse and the experience of the court process, the court found that driving at 207 km/h on a public freeway as a P-plater carried catastrophic potential consequences, and that general deterrence in relation to dangerous driving offences is a very significant sentencing consideration. The appeal was dismissed and the sentence affirmed, with only a technical variation to the commencement date of the disqualification period.

Orders Made

  • Sentence appeal dismissed
  • Orders made in the Local Court on 19 June 2023 varied: the licence disqualification commences 4 August 2023 and concludes 2 May 2024

Key Takeaways

  • The District Court held that s 210 of the Criminal Procedure Act 1986 (NSW) does not grant independent jurisdiction to sentence a child as a child offender in traffic matters; it operates conditionally on the Children's Court having had jurisdiction to hear the matter in the first place.
  • Under s 28(2) of the Children (Criminal Proceedings) Act 1987 (NSW), the Children's Court has no jurisdiction over traffic offences alleged against a child (unless specific exceptions apply), which means the children's sentencing regime under Division 4 of Part 3 of that Act is also unavailable in the Local Court via s 210.
  • In dismissing the appeal, the District Court reaffirmed that general deterrence is a "very significant" sentencing consideration for dangerous driving offences, and that the catastrophic potential of loss of vehicle control at extreme speed is not diminished by the youth of the driver.
  • The offender's age and inexperience as a CP1 driver was treated as cutting both ways: it was a mitigating feature personal to him, but also an aggravating factor in assessing community protection and the denunciation of the offending conduct.
  • A 25% discount for an early guilty plea at the first available opportunity was confirmed as applicable to the sentence.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 28 (particularly s 28(2))
- Criminal Procedure Act 1986 (NSW), s 210
- Road Transport Act 2013 (NSW), s 117(2)

Cases: No cases were cited in the judgment.