WHEELER, Anthony John Thomas v R [2008] NSWDC 364

New South Wales District Court

CITATION: WHEELER, Anthony John Thomas v R [2008] NSWDC 364

JUDGMENT DATE: 14 April 2008

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The sentence of the learned magistrate is set aside. Instead of that sentence - a sentence of imprisonment five months, wholly suspended on the condition that Mr Wheeler enter into a good behaviour bond for 5 months.

CATCHWORDS: CRIMINAL LAW - judgment - appeal from magistrate's sentence - appalling prior record of drink-driving offences - whether to suspend sentence

LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 s 11, s 12

PARTIES: Anthony John Thomas Wheeler Regina

FILE NUMBER(S): 07/52/0426

COUNSEL: Mr O'Connor

SOLICITORS: Director of Public Prosecutions

JUDGMENT

1. This appeal concerns a man who has an appalling driving record. He has no fewer than ten convictions for drink-driving offences. When he came before the learned magistrate at Armidale on 17 September 2007 the magistrate sent him to gaol for six months. He has been to gaol before for his drink-driving. This time, through his solicitor, Mr O'Connor, he claims that he has rehabilitated himself, and asks for a suspended sentence. The question in this case is whether I impose the penalty which the crime obviously deserves, namely six months imprisonment, or accept the evidence that he is finally on a genuine path of rehabilitation and give him a suspended sentence. 2. The matter came before me on 10 October 2007 at Armidale. I adjourned the proceedings under s 11 of the Crimes (Sentencing Procedure) Act 1999 for the purpose of assessing Mr Wheeler's capacity and prospects for rehabilitation, and whether the rehabilitation has taken place. 3. Today I have a report from the rehabilitation centre which he attended. In addition, Mr O'Connor called his client to give evidence. The report is not a not a glowing report. It says that Mr Wheeler had made little progress and was biding his time for the court hearing, and would only perform the programme guidelines when pushed. It points to Mr Wheeler's residency being terminated by a discharge. That occurred about an argument over funds. 4. When called to give evidence, Mr Wheeler said he had in fact cooperated and done the best that he could. He suffers from a bad back and was not able to engage in all of the vigorous activity which the programme offered, but he used the exercise break to some good effect. He said he was usually up early. He explained to me the disagreement over the availability of funds. 5. The one notable - so far as I am concerned - aspect of the report is that Mr Wheeler remained abstinent from alcohol, confirmed by urine and random breath-testing, for the period that he was admitted to this particular rehabilitation centre called Adele House, which is near Coffs Harbour. That period was some two months between 4 February and 2 April 2008. Mr Wheeler told me in the witness box that since his discharge nearly two weeks ago he has not had anything to drink. When asked why he would stay off the drink now since on previous occasions he has failed, he said that he is now too old for gaol and is sick of it, and, in any event, wants to stay at home to look after his wife. 6. Mr O'Connor says that the appropriate way to deal with this case is by a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act. Mr Spohr, who appears for the respondent prosecutor, says that the case clearly warrants full-time gaol, and that Mr Wheeler has not rehabilitated himself. The criminal history is sufficient to point to the necessity for full-time custody. It also, Mr Spohr, says, points to an unsatisfactory response to conditional liberty provided by the courts on a bond. That occurred in 1980 when Mr Wheeler breached his bond after two days. 7. The second submission made by Mr O'Connor is that I should reduce the standard period of disqualification of three years to enable Mr Wheeler to reengage in his occupation. That occupation is as a truck driver with particular experience in transporting stock. The period of disqualification commenced on 30 January 2007, which was the date of the offence, and therefore expires on 29 January 2010. 8. I have decided to accept Mr O'Connor's submission so far as the suspended sentence is concerned, but not so far as the disqualification is concerned. In accepting his submission, I accept the sworn evidence given by his client. I do have reservations about his client's rehabilitation. Mr Spohr cross-examined him about a number of matters. One of them was the fact that Mr Wheeler had something to drink shortly before being admitted to Adele House. That, Mr Spohr says, points to a lack of genuine prospects for rehabilitation and a likelihood of re-offending. Mr Spohr also points to the unsatisfactory discharge from the facility. 9. I get the impression that Mr Wheeler has genuinely come to a crossroads in his life. He has been to gaol full-time on a number of occasions in the past for just this kind of offending behaviour. He has been married for many years, and my recollection from his evidence which he gave at Armidale was that his marriage was now at risk as a result of his offending behaviour. In addition, his wife has a medical condition which requires him to support her. I can understand a man who is now fifty-seven also being tired of returning to gaol and of seeing the need to rehabilitate himself. I am encouraged in my finding that his efforts at rehabilitation are genuine because of the report indicating that he did in fact remain abstinent from alcohol for the period of his time at Adele House. 10. I appreciate that I am taking a risk, or at least exposing the community to a risk, in reaching this decision. It could be that Mr Wheeler goes back to drinking alcohol and, in breach of his suspension, gets behind the wheel again, and this time injures or kills someone. However, I have decided, for the reasons that I have given, to accept his evidence that his rehabilitation is genuine, that he has reached a significant stage in his life, and to give him that opportunity. 11. In so far as the submission made by Mr O'Connor about the suspension or disqualification period is concerned, I accept Mr Spohr's submission in this regard. The three-year disqualification is a standard automatic period. It can indeed be increased. Mr Wheeler, as I said, has an appalling driving record for drink-driving. He was, in a sense, lucky to receive from the learned magistrate no more than the standard period of three years' disqualification. I do not propose to reduce the period of disqualification any further. I do take into account that, although experienced as a truck driver, there is evidence that he has available where he lives in Uralla other casual employment which he is able to take up. 12. I have therefore decided to uphold, or allow, Mr Wheeler's appeal. The formal orders which I make are as follows. In accordance with s 20 of the Crimes (Appeal and Review) Act 2001, I determine this appeal against sentence by varying the sentence of the learned magistrate in the following respects: I impose a sentence of imprisonment on Mr Wheeler for six months, but I make an order under s 12 of the Crimes (Sentencing Procedure) Act suspending the execution of the whole of the sentence for the whole of the period of six months, and I direct Mr Wheeler to be released from custody on condition that he enters into a good behaviour bond for the period of six months. The good behaviour bond is to be subject to the following conditions: (1) For the term of the bond Mr Wheeler must be of good behaviour. (2) Mr Wheeler must appear before the court if called upon to do so at any time during the period of the bond. (3) Mr Wheeler is to notify the registrar of the District Court at Armidale of any change in his residential address. That notification should be in writing and arranged by Mr Wheeler, because I appreciate he does not write. (4) Mr Wheeler must subject himself to the supervision of the New South Wales Probation and Parole Service and accept all reasonable recommendations and directions made by officers of that service. (5) Mr Wheeler must subject himself to whatever procedures officers of the Probation and Parole Service direct concerning the monitoring of any alcohol intake. Otherwise, I confirm the orders of the learned magistrate.