Citation: Police v Blake [2023] NSWLC 12
Court: NSW Local Court
Date: 9 May 2023
Judge: Magistrate Stewart
Background
The offender, a young woman working as a behavioural therapist, pleaded guilty to negligent driving occasioning grievous bodily harm under section 117(1)(b) of the Road Transport Act 2013 (NSW). The offence occurred on 20 December 2022 on Hatfield Street, Blakehurst, when she turned right into a cross street and collided with an oncoming motorcyclist travelling in the opposite direction. Both vehicles were travelling at approximately 40 km/h before the turn.
The motorcyclist, a 51-year-old man, was ejected from his bike and landed approximately 10 metres away. He suffered a fractured right foot, groin lacerations, and a fractured pelvis requiring surgery involving screws and titanium plates, with ongoing physiotherapy and rehabilitation required. Drugs, alcohol, and adverse weather conditions were not factors.
Defence counsel presented a strong subjective case, focused principally on avoiding conviction in order to prevent the automatic three-year licence disqualification that follows. The offender had no criminal record, had completed a traffic offenders rehabilitation program, and possessed an impressive personal history including community work and postgraduate study. The potential consequences of disqualification for her employment and Masters degree were placed front and centre.
Legal Issues
- Whether the objective seriousness of the offence and the purposes of sentencing (particularly general deterrence and denunciation) warranted recording a conviction.
- Whether it was appropriate to deal with the matter without recording a conviction, specifically to avoid the consequential licence disqualification.
- What penalty and disqualification period were appropriate given the offender's strong subjective circumstances.
Decision
Magistrate Stewart rejected the submission that the matter be dealt with without recording a conviction. The court found it would be "inappropriate and improper" to adopt a non-conviction outcome solely to avoid the consequential licence disqualification. Citing the guideline judgment concerning high range PCA offences, the court affirmed the principle that where a conviction is warranted by the seriousness of an offence, a court cannot properly refuse that course merely because of its impact on the offender's licence.
The court acknowledged the offender's subjective case was strong: no prior criminal record, genuine remorse, a completed traffic offenders program, and significant personal and professional contributions. However, the objective seriousness of the offence, the severity of the victim's injuries, and the need for general deterrence and denunciation could not be adequately addressed without recording a conviction and imposing a meaningful sentence.
On penalty, the court determined that a fine alone would not give adequate effect to general deterrence. Community service work was unavailable because the offender resided in Victoria and such orders cannot be transferred interstate. The court therefore imposed a fine combined with an unsupervised Community Correction Order. The court reduced the disqualification period from the automatic three years to the statutory minimum of 12 months, noting the offender's low risk of reoffending and the ample reasons to reduce the period, though not to eliminate it.
Orders Made
- The offender is convicted of negligent driving occasioning grievous bodily harm.
- Fined $1,000.
- Placed on a Community Correction Order without supervision for 2 years.
- Disqualified from holding a driver licence for 12 months (9 May 2023 to 8 May 2024), with the court noting the disqualification also has effect in Victoria.
Key Takeaways
- Recording a conviction for the purpose of avoiding a consequential licence disqualification is, in the court's view, inappropriate and improper: the disqualification flows as a statutory consequence of conviction and cannot be sidestepped by withholding that conviction where the offence otherwise warrants one.
- Where offences involving serious injury require general deterrence and denunciation, even a very strong subjective case cannot, by itself, justify a non-conviction order.
- Under section 205(2)(d) of the Road Transport Act 2013, automatic disqualification for negligent driving occasioning grievous bodily harm is three years upon conviction, reducible to a minimum of 12 months at the court's discretion. Here, the minimum was applied in light of the offender's low reoffending risk and favourable personal circumstances.
- The unavailability of community service work for interstate residents operated as a practical sentencing constraint: the court expressly stated that community service would otherwise have been an appropriate component of the sentence.
- A 25% discount for the utilitarian value of an early guilty plea was applied in accordance with R v Thomson; R v Houlton and section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Legislation and Cases Referenced
Legislation:
- Road Transport Act 2013 (NSW), ss 4, 117(1)(b), 205, 207A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 37
- Crimes Act 1900 (NSW), s 4 (definition of grievous bodily harm)
Cases:
- R v Thomson; R v Houlton [2000] 49 NSWLR 383
- Park v The Queen [2021] HCA 37
- Greaves v R [2020] NSWCCA 140
- Markarian v The Queen (2005) 79 ALJR 1048
- Application by the Attorney General under Section 37... (No. 3 of 2002) [2004] NSWCCA 303 (High Range PCA Guideline Judgment)
- Gillmore v R [2016] NSWDC 401
- Haoui v R [2008] NSWCCA 209
- McGonigle v R [2020] NSWCCA 84
- R v Fangaloka [2019] NSWCCA 173
- ST v R [2022] NSWCCA 169
- R v Mauger [2012] NSWCCA 51
- Khanwaiz v R [2012] NSWCCA 168
- Skocic v R [2014] NSWCCA 225
- Babineau v The Queen [2016] NSWDC 354
- R v Dodd (1991) 57 A Crim R 349
- R v Hopley [2008] NSWCCA 105
- R v Paris [2001] NSWCCA 83
- R v Kennedy [2000] NSWCCA 527