Citation: R v Weldon [2024] NSWDC 313
Court: District Court of New South Wales
Date: 19 July 2024
Judge: Anderson SC DCJ
Background
The offender pleaded guilty to two offences arising from an incident on the night of 11 to 12 June 2022 near Denman, New South Wales. The first offence was dangerous driving occasioning grievous bodily harm (s 52A(3)(c) of the Crimes Act 1900). The second was failing to stop and assist after causing grievous bodily harm (s 52AB(2) of the Crimes Act 1900). Each offence carries a maximum of seven years' imprisonment.
The offender had been drinking at the Denman Hotel on the afternoon and evening of 11 June 2022. He drove after doing so, struck a person causing serious injuries, and left the scene without stopping. He presented at Denman Police Station the following morning, where he was ultimately spoken to by officers who attended from Muswellbrook.
The offender entered an early guilty plea on 5 July 2023, attracting a 25 per cent discount on the sentence that would otherwise have been imposed.
Legal Issues
- What weight should be given to the offender's attendance at the police station as a mitigating factor, given disputed evidence about whether that attendance was truly voluntary or prompted by a third party?
- What is the appropriate sentence for the two offences, having regard to all objective and subjective factors?
- Whether an Intensive Corrections Order (ICO) was the appropriate means of serving the custodial term, rather than full-time imprisonment.
Decision
The factual dispute about attending police. The sentencing hearing was reopened after the Crown obtained new evidence from a witness, Mr Hiriaki, who had been present with the offender on the morning of 12 June 2022. Mr Hiriaki gave evidence that he had effectively pressured the offender to go to the police station, that he had arranged transport, and that he had communicated with police via intercom at the unmanned Denman station because the offender was unable or unwilling to do so himself.
The offender, by contrast, gave evidence at the original hearing that he had attended voluntarily out of shame and disgust at his conduct. Anderson SC DCJ found that both accounts could largely be reconciled. His Honour accepted that the offender genuinely intended to go to police, but also found that it was Mr Hiriaki's urging that actually got the offender moving at that time. The court concluded that the offender, whose memory was hazy by his own admission, had simply forgotten the role Mr Hiriaki played. This finding had implications for the weight attributable to the attendance at police as a sign of remorse and contrition.
Sentencing. Anderson SC DCJ imposed an aggregate term of imprisonment of 2 years and 4 months. Both offences each attract an automatic three-year disqualification and a minimum 12-month disqualification. The court imposed an 18-month disqualification for each offence. No standard non-parole period applied to either charge.
Intensive Corrections Order. Rather than full-time gaol, the court ordered the sentence be served by way of an Intensive Corrections Order (ICO) under s 7(1) of the Crimes (Sentencing Procedure) Act 1999. The court attached a range of additional conditions, including a six-month nightly curfew, 200 hours of community service, mandatory abstinence from alcohol and prohibited drugs, and continuation of psychological counselling. The court expressly warned the offender that non-compliance could result in revocation and full-time custody.
Orders Made
- Conviction entered for both offences.
- Driving disqualification of 18 months for each offence.
- Aggregate term of imprisonment of 2 years and 4 months (pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999).
- Sentence to be served by way of an Intensive Corrections Order commencing 19 July 2024 and ending 18 November 2026.
- Standard ICO conditions applied (no offending; supervision by Community Corrections).
- Additional conditions:
- Nightly curfew 9pm to 5am for six months (expiring 18 January 2025), with an exception for Alcoholics Anonymous meetings.
- 200 hours of community service.
- Abstain from alcohol.
- Abstain from prohibited or restricted drugs (except lawfully prescribed medication).
- Continue psychological counselling with Ms Leontios (or an alternative psychologist) for as long as deemed necessary.
- Offender required to attend Sydney City Community Corrections office within seven days.
Key Takeaways
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Where an offender claims voluntary surrender as a mitigating factor, the court will scrutinise the circumstances carefully. Here, the District Court found that a third party's urging was the operative cause of the offender's attendance at police, which affected the weight given to that factor in mitigation.
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A guilty plea entered at the earliest reasonable opportunity can attract a 25 per cent discount on an otherwise applicable sentence, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999.
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An ICO is available as the means of serving a custodial sentence, but the court retains broad discretion to attach conditions reflecting the particular circumstances of the offending and the offender's rehabilitation needs, including alcohol abstinence and mandatory counselling.
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Dangerous driving offences involving alcohol carry automatic licence disqualification consequences under the Crimes Act 1900, with the court retaining discretion above the 12-month minimum. Here, the court fixed 18 months per offence, below the three-year automatic maximum.
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The procedural history illustrates that sentencing proceedings can be reopened to receive fresh evidence where that evidence is directly relevant to a factual dispute bearing on mitigation, even after submissions have concluded.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 52A(3)(c), 52AB(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7(1), 53A
Cases:
- R v Whyte (2002) 55 NSWLR 252
- Stanley v Director of Public Prosecutions [2023] HCA 3