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Local Court 29 June 2023

Police v Andonakis

[2023] NSWLC 15

DrugsTraffic & drivingPublic order & justice offences
SERIAL TRAFFIC OFFENDER REPEAT OFFENDER DRIVE DISQUALIFIED REPEAT OFFENDER DRIVE ILLICIT DRUG SECOND OR SUBSEQUENT OFFENCES SPEEDING DRUG ADDICTION

Citation: Police v Andonakis [2023] NSWLC 15
Court: Local Court of New South Wales
Date: 29 June 2023
Judge(s): LCM Stewart

Background

The offender, a 49-year-old man with an extensive criminal and traffic history in both New South Wales and Queensland, pleaded guilty to multiple offences committed between May 2022 and March 2023. The offences included driving whilst disqualified on six separate occasions, driving with methylamphetamine present in his oral fluid on three occasions, and two speeding offences. Several of these were classified as second or subsequent offences, carrying increased maximum penalties.

The offender had previously been convicted of dangerous driving occasioning death, committed in 2016 while he was already disqualified and with a high level of methylamphetamine in his system. That conviction attracted a sentence ultimately increased on an inadequacy appeal to five years and two months' imprisonment. He was on parole for that offence during the commission of most of the current offences, and on bail (with a condition not to drive) during the final offence on 11 March 2023.

On multiple occasions when stopped by police, the offender produced a Queensland driver licence and claimed his New South Wales disqualification had been quashed or shortened on appeal. He also asserted, without producing documentation, that Roads and Maritime Services had confirmed he was not disqualified. These claims formed the basis of a defence submission that his moral culpability was reduced by an honest belief he was entitled to drive.

Legal Issues

  • Whether the offender held an honest belief that he was entitled to drive, and whether that belief reduced his moral culpability for the drive whilst disqualified offences
  • Whether obtaining a Queensland driver licence while disqualified in New South Wales entitled the offender to drive in New South Wales
  • Whether the drive whilst disqualified offences crossed the section 5 threshold requiring imprisonment, or whether some could be dealt with by Community Corrections Orders
  • Whether an Intensive Corrections Order was an appropriate alternative to full-time imprisonment
  • Whether special circumstances existed, warranting a balance of term exceeding one-third of the non-parole period
  • How the offender's traffic record, commission of offences on conditional liberty, and psychological profile bore on the sentence

Decision

Issue 1: Honest belief and moral culpability

The court rejected the submission that the offender honestly believed he was entitled to drive on any of the relevant dates (at [103]). The offender's stated belief that the Court of Criminal Appeal had quashed his disqualification was factually and legally incorrect: the appeal concerned only the inadequacy of the imprisonment term, and the disqualification reverted to the automatic three-year period under the Road Transport Act 2013, running from the date of release to parole (at [82]-[86], [94]). The court found that, as a matter of law, even a genuine mistake of this kind would amount only to a mistake of law, which does not reduce moral culpability under the principles in Ostrowski v Palmer [2004] HCA 30 (at [106]).

The court also rejected the claim that the offender held a paperwork-supported belief. Documents he produced to police showed only his term of imprisonment and made no mention of any quashed disqualification; a Roads and Maritime Services document he produced merely stated that the authority would not conduct business with him (at [97]). He failed to provide police with further paperwork he claimed to hold, and no such document was produced at sentencing (at [95]-[96]). His inconsistent accounts to police across multiple incidents, combined with his early guilty plea to the first offence while maintaining not guilty pleas to subsequent offences based on the same alleged belief, further undermined the credibility of the claim (at [111]-[112]).

Issue 2: Queensland driver licence

The court found that the offender was ineligible under Queensland law to obtain or renew a driver licence while subject to an interstate disqualification (at [92]). In any event, possessing a Queensland licence did not entitle the offender to drive in New South Wales while disqualified there (at [108]).

Issue 3: Threshold for imprisonment

The court was satisfied that all of the drive whilst disqualified offences crossed the section 5 threshold, such that only imprisonment was appropriate (at [146]). Each offence was assessed as sitting in the upper range of objective seriousness, several being compounded by concurrent speeding or illicit drug presence (at [126]-[131]). The submission that the first four offences could be dealt with by Community Corrections Orders was described as "aspirational" and inconsistent with the identified purposes of sentencing (at [146]).

Issue 4: Intensive Corrections Order

The court declined to impose an Intensive Corrections Order. Applying principles from R v Cahill, R v Fangaloka, and Karout v R, the court found that the inherent leniency of an Intensive Corrections Order was inappropriate given the offender's poor rehabilitation prospects, the genuine risk of reoffending, and the need to protect the community (at [157]-[165]). The court found it could not be satisfied that an Intensive Corrections Order would afford community safety (at [163]).

Issue 5: Special circumstances and disqualification

The court made no finding of special circumstances, noting the Court of Criminal Appeal had previously found no adequate basis for such a finding even accounting for the offender's drug addiction (at [168], [177]). Disqualification periods were staggered to produce an overall disqualification of five years from the date of sentencing, with the clear intention that the offender remain disqualified for at least three years after his release from custody (at [170]-[172]).

Orders Made

  • Convicted on all counts
  • Aggregate sentence of imprisonment of 2 years 8 months, commencing 11 March 2023 and concluding 10 November 2025
  • Non-parole period of 2 years, from 11 March 2023 to 10 March 2025
  • Balance of term from 11 March 2025 to 10 November 2025
  • No finding of special circumstances
  • Bare conviction without further penalty (under section 10A of the Crimes (Sentencing Procedure) Act 1999) for each of the drive with illicit drug offences and the speeding offence
  • Staggered disqualification periods across all offences, creating an overall disqualification of 5 years from 29 June 2023 to 10 March 2028
  • Recommendation that the offender not be reissued a New South Wales driver licence after the disqualification expires unless the licensing authority is satisfied he is unlikely to present an ongoing risk to the community and can demonstrate abstention from illicit drug use

Key Takeaways

  • Obtaining an interstate driver licence while subject to a disqualification in New South Wales does not entitle a person to drive in New South Wales, and possession of such a licence does not establish that it was lawfully acquired (at [92], [108]).
  • A claimed belief that a disqualification has been quashed by an appellate court will not reduce moral culpability where the belief is factually and legally incorrect, and even an honest mistake about disqualification status constitutes a mistake of law that does not diminish culpability under Ostrowski v Palmer (at [94], [106]).
  • Where a drive whilst disqualified offender has an extensive history of similar offending, is on conditional liberty, and presents a genuine risk of reoffending, the principles in Jibran v R support the conclusion that the maximum penalty for each offence is the appropriate starting point, and that an Intensive Corrections Order is inadequate to protect the community (at [145], [165]).
  • An offender's traffic record constitutes a statutory aggravating factor under section 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 even where it does not increase the objective seriousness of the individual offence; its relevance is properly reflected in the sentence imposed (at [45], [72]).
  • Disqualification periods may be staggered to produce an intended overall period of disqualification, including time that will run while an offender is in custody, so that the practical effect of the disqualification operates for a meaningful period after release (at [170]-[172]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Road Transport Act ( 2013) (NSW)
- Road Rules Regulation
- Transport Operations (Road Use Management) Act 1995 (Qld)

Cases
- Brzozowski v The Queen [2023] NSWCCA 129
- Director of Public Prosecutions v Andonakis [2019] NSWCCA 123
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Greaves v R [2020] NSWCCA 140
- Jibran v R [2020] NSWCCA 86
- Karout v R [2019] NSWCCA 253
- Markarian v The Queen (2005) 79 ALJR 1048
- Meis v R [2022] NSWCCA 118
- Ostrowski v Palmer [2004] HCA 30
- Park v The Queen [2022] HCA 37
- R v Borkowski [2009] NSWCCA 102
- R v Cahill [2015] NSWCCA 53
- R v Fangaloka [2019] NSWCCA 173
- R v Fidow [2004] NSWCCA 172
- R v Thomson; R v Houlton [2000] 49 NSWLR 383
- Stanley v DPP [2023] HCA 3
- Veen v The Queen (No 2) (1988) 164 CLR 465