Local Court of New South Wales CITATION: P v Te Pairi [2008] NSWLC 17 JURISDICTION: Criminal PARTIES: Police Te Pairi FILE NUMBER: H 32869053; H 185560792; H 61144001; H 33557279; H 34189846 PLACE OF HEARING: Downing Centre DATE OF DECISION: MAGISTRATE: Chief Magistrate G L Henson CATCHWORDS: Dangerous Driving causing grievous bodily harm – prescribed concentration of alcohol – drive whilst disqualified – drive unregistered – habitual traffic offender declaration Crimes Act 1900 Section 52A(3)(a) Road Transport (Safety and Traffic Management) Act 1999 Sections 9(3)(a) LEGISLATION CITED: Road Transport (Driver Licensing) Act 1998 Section 25A(1)(a), (3)(a) Motor vehicles Taxation Act 1988 Section 9(1)(a) Motor Vehicles (Third Party Insurance) Act 1942 Section 7(1) Australian Road Rules Section 40, 61(1) R –V- Bimahendali (1999) 109 ACR 355 R –v- Dang [2005] NSWCCA 430 R-v- Doan (2000) 50 NSWLR 115 R –v- Jurisic (1998) 45 NSWLR 209 R –v- MAK [2006] NSWCCA 381 CASES CITED: R –v- Poon 56 NSWLR 284 R –v- Price [2004] NSWCCA 186 R –v- Whyte (2002) 55 NSWLR 252 Adams –v- R [2008] HCA 15 Johnson –v- The Queen [2004] 78 ALJR 616 Postiglione –v- The Queen (1997) 189 CLR 295 Rosenthal –v- R [2008] NSWCCA 149 TEXTS CITED: REPRESENTATION: ORDERS: 1) The offender is to be sentenced for 5 separate episodes of offending behaviour involving 15 separate offences. The offending behaviour occurred over an 11-month period during the second half of 2007 and the first half of 2008. Much of the offending behaviour took place at a time when the offender was on bail facing earlier charges. The offender has entered a plea of guilty to each of the 15 charges. There is a measure of utilitarian value in the pleas 2) The serious nature of some of the offences together with the offender's prior antecedents warranted the preparation of a pre sentence report by the Probation and Parole Service. The report was sought on 27th March 2008. A report provided by that service and dated 10th June 2008 disclosed an unexplained failure on the part of the offender to participate in an assessment. 3) The offender was reminded of the importance of such an assessment in determining whether there were viable alternatives to imprisonment. He subsequently decided to engage himself in the process of providing information to Probation and Parole sufficient to enable the preparation of a report for the Court. An adjournment was afforded to allow the offender a second chance at being involved in the preparation of a pre sentence report. Between the date of that adjournment and the completion of the pre sentence report he was arrested and charged with further offending. 4) The offending is for like conduct to that for which he was awaiting sentence. With the customary clarity that hindsight brings the generosity of the court in extending the courtesy of a second chance to explore the alternatives to imprisonment may have been an unwise course to adopt. This is particularly so for the offender. 5) Nonetheless the contents of the pre sentence report together with submissions from his legal representative have been fully considered and the Court has taken the contents of a psychological report into account. I have also been provided with a number of references as to his character. I will return to these issues at an appropriate point in these remarks. The Facts Sequence One 6) The first series of offences for sentencing involve the offender's conduct on the evening of 22nd July 2007. There is no issue that he was, at this date a disqualified driver. On 22nd May 2007 the offender was disqualified from holding a license to drive by Blacktown Local Court for a speeding offence. 7) At approximately 2.40 a.m. on 22nd July 2007 the offender drove his unregistered and uninsured motor vehicle from the Collingwood Hotel in Liverpool. At the time he had two passengers, one in the front and one in the rear. The rear of the vehicle had no seat belts to secure any passengers. Intending to drive to the City the offender reached Alexandria, a suburb some 29 kilometres from his point of departure. 8) Whilst attempting to negotiate a left hand bend in Botany Road the offender lost control of the vehicle, mounted the kerb and collided with a brick wall. The front passenger was injured and required not only hospitalisation but also surgery for a wound to his arm. He also suffered broken ribs and a bruised liver. The rear passenger suffered a broken leg requiring the insertion of a metal rod. The offender admitted to travelling at 80 kph at the time. The speed limit in this area is 60 kph. The environmental conditions were such that it was raining, the roadway was wet and at 2.40 a.m. darkness prevailed. 9) Having been conveyed to hospital the offender was required to submit a blood sample. The blood sample was taken at 3.10 a.m. within the established 2 hour period of the driving. It returned a reading of .113. This placed the offender within the mid range category of offences for driving with the prescribed concentration of alcohol. On 26th November 2007 the offender attended Bankstown Police Station and was charged with this series of offences. Sequence Two 10) On 2nd August 2007 after the earlier offences had been committed but before the offender had been charged with their commission the offender was observed to drive through a red arrow controlling traffic at the intersection of Tangerine Street and Woodville Road Villawood. The offender was the only person in the vehicle. He was stopped by police for the infringement. In the course of attending to that matter it became apparent the offender was still a disqualified driver. He was arrested and charged with the second series of offending behaviour. Sequence Three 11) On 14th September 2007 the offender was seen undertaking a U turn at traffic lights controlling an intersection in Wentworthville. He was stopped. It was ascertained that his license status was that of cancelled. This would appear to be the consequence of the period after the expiry of his disqualification in circumstances where he had not attended to a renewal of the license. He was issued with a future court attendance notice for each offence. Sequence Four 12) On 7th April 2008 the offender was stopped for making a U turn at a traffic light. Once again he was found to be driving whilst cancelled. He was arrested, taken to Bankstown Police station and charged with the offence of driving whilst cancelled. Sequence Five 13) On 16th June 2008 the offender was observed to be driving a Toyota Hi Lux utility. This vehicle has been his companion in all driving incidents except for the events of 22nd July 2007. He was seen to execute a U turn at a traffic control light. Police activated their warning devices and followed the offender. He came to a stop inside the boundaries of a McDonald's restaurant. Inspection of the vehicle revealed that it was unregistered and uninsured. The offender conceded he had no license to drive. The police found he was a cancelled driver and arrested the offender. He was conveyed to Bankstown Police station where he was charged and released on bail. Antecedents Traffic Record 14) The offender is 27 years of age. The traffic record produced establishes that he has never held a license in New South Wales. Given the number of entries on that record there are good reasons why that should be so. There are 15 entries since December 2005 the last entry being a conviction for driving with a low range concentration of alcohol. He has been formally disqualified from driving on 3 separate occasions since the first offence in 2005. Sentencing issues - Overview 15) The conduct of the offender is an episodic display of compounding seriousness. Objectively the first sequence of offences is the most serious. Driving when disqualified in defiance of a court order whilst impaired due to the excessive consumption of alcohol and in circumstances where as a result of the management of the vehicle two people suffer a range of injuries from serious to life affecting warrant serious consideration of a custodial outcome. 16) The principles of general and specific deterrence together with the impact of such offending on the victims is deserving of such a focus. The approach on sentence is also affected by the Guideline Judgment of R –v- Jurisic (1998) 45 NSWLR 209 and R –v- Whyte (2002) 55 NSWLR 252. 17) The conduct of the offender subsequently has little to commend it. Whilst on bail for the July 2007 offences he is again arrested behind the wheel of a vehicle he was not lawfully entitled to drive and detected in circumstances where again his concern for public safety let alone respect for the law is questionable. 18) In September 2007 once again having been granted his conditional liberty his disrespect for the law is demonstrated again by driving when his license was deemed to be cancelled per force or law and doing so in a manner that yet again raised a potential danger to other members of the community. For the third time he was granted his conditional liberty. He repaid this largesse by driving yet again when his license had been cancelled. 19) It is time the offender was made to realise that the community will not accept such intransigence. Nor will it accept his disregard for public safety. The Penalties 20) The offence of Dangerous Driving occasioning grievous bodily harm is an offence under Section 52A(3) of the crimes Act 1900. These two offences along expose the offender in the jurisdiction of the Local Court to a potential penalty of 18months imprisonment on each offence in relation to an offence that has a statutory maximum of 7 years. A conviction for this offence also carries an automatic period of disqualification. As the offender has already been convicted of a major traffic offence the maximum period of automatic disqualification is 5 years. 21) The offence of driving with the mid range prescribed concentration of alcohol is a second major traffic offence. Consequently the maximum penalty is 12 months imprisonment a fine of $3300 and an automatic period of disqualification of 3 years. 22) Because each of these offences were committed at the same time and arise out of a single incident Section 188 (4) operates to limit the maximum disqualification period to 5 years. The minimum period under Section 188(4)(c) (ii) would be 2 years. 23) Each of the offences of driving whilst disqualified and driving whilst license cancelled are in the second offence category [the offender having been convicted of a major traffic offence within 5 years]. The maximum penalty for each offence is 2 years imprisonment or a $3300 fine or both. The automatic period of disqualification is 2 years on each offence. Section 25A(7) (a) of the Road Transport (Driver Licensing) Act 1998 requires that such disqualification commence from the expiry of any existing disqualification period, in other words on a cumulative basis. 24) Were the Court to impose the maximum penalties for each series of offences on a cumulative basis the offender would be facing 7 years imprisonment. The automatic consequences of conviction in relation to disqualification of license would see the offender disqualified from a mixture of concurrent and cumulative disqualification periods totalling 15 years. 25) The penalties for the offences of driving an unregistered and uninsured motor vehicle and disobeying traffic control lights each carry a maximum monetary penalty of 20 penalty units [or $2200] 26) Section 199 of the Road Transport (General) Act 2005 requires the Court to consider the offender's position as a declared habitual offender. Such consideration arises in circumstances where an offender is convicted for a 3rd time for an offence set out in Section 198 of that Act. Except for the regulatory offences all other offences are relevant offences for the purpose of both provisions. The first relevant offence occurred on 17th February 2007 for the offence of driving with the low range prescribed concentration of alcohol. The second relevant offence occurred on 22nd July 2007. Those relevant offences are, by reason of Section 199(b) regarded as a single relevant offence. The third relevant offence relates to the events of 2nd August 2007 for the offence of driving whilst disqualified. 27) Absent court intervention under Section 202 to quash or reduce the application of the habitual offender provisions the offender faces a further period of 20 years disqualification of license. Declarations under the Habitual Traffic Offender provisions require, pursuant to Section 201, periods of disqualification to be imposed consecutively. The offender is therefore facing a potential 35 years of disqualification. 28) Identifying the maximum penalties and consequences of conviction is important in relation to the assessment of an appropriate sentence. It is also important from the perspective of totality. I will return to these considerations shortly. Section 21A considerations 29) Acknowledging the purposes of sentencing set out in Section 3A of the Crimes (Sentencing Procedure) Act 1999 I turn to aspects of Section 21A that in my view apply both for the purpose of aggravating the offender's conduct in respect of some of the offending and that might be said to mitigate the penalty. 30) It is not necessary to deal with the aggravating factors seriatim. As I have already indicated the offender was at the time of the commission of the offences a known offender. His traffic record is relevant for the purposes of Section 21A(2)(d) so far as the twin issues of general and specific deterrence are concerned. 31) Section 21A(2)(g) is of particular relevance in relation to the offences of dangerous driving causing grievous bodily harm. Section 21A (2)(i) is particularly noteworthy in the context of the dangerous driving causing grievous bodily harm and driving with the mid range prescribed concentration of alcohol offences are concerned. The offender's wilful abandonment of his duty of care to his passengers irrespective of whether they knowingly and willingly entered his motor vehicle brought about substantial injury to both. The injuries and impairment to the rear seat passenger are demonstrably permanent in nature and establish an inference that they will permanently impact on that person's life. 32) One of his passengers gave evidence before the Court. For the purpose of these proceedings he is appropriately described as a victim. It is clear he bears the offender no ill will. That may be commendable but it is irrelevant for the purposes of sentencing. In R –v- Palu (2002) 134 A Crim R 174 at [37] the Court said: "The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness…Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution….Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment the purpose of which is to protect the public not to mollify the victim." 33) Other than by reason of his eventual plea of guilty and what I accept to be both from his evidence before me and the contents of the psychological report to be established contrition and remorse for the purpose of Section 21A(3)(i) the offender can draw no comfort from the other mitigating factors set out in section 21A(3). Counsel for the offender sought to convince the court that rehabilitation, particularly in relation to driving when not permitted to do so either by reason of disqualification, cancellation or through lack of a license was likely. It was said he had finally learned the consequences of such activities. Given the offender's attitude to this type of conduct on the seven occasions prior to the first of the offences before the Court for sentence and his attitude demonstrated in the commission of repeat offences subsequent thereto the Court is not convinced that the provisions of Section 21A(3)(g) have been made out. Subjective Features 34) The offender is 27 years of age. He is currently in a de facto relationship. He is the father of a 6-month old daughter. According to the pre sentence report he was the proprietor of a business employing 4 staff. Since the preparation of that report he has changed his working arrangements. Whilst the business still exists in name he no longer operates it having assigned his workers to another organisation and placed himself in a position analogous to that of a paid employee for that business. Further details of the offender's background are set out in the pre sentence report. They need no further reiteration for the purpose of the sentencing exercise. 35) The Court notes that the offender's view of his conduct is that it was "stupid". This is an understatement. The offender has been assessed as unsuitable for alternatives to full time imprisonment due to his business commitments. It is unclear whether this represents merely a speculative opinion proffered by the author of the report or a misconception on the part of the offender that somehow the Court will impose a sentence that meets his ambition to continue the management of his business. Irrespective of the basis for the assessment a change in assessment by the Probation and Parole officer or attitude on the part of the offender would not change the outcome of these proceedings. For that reason I declined to adopt a submission by the offender's counsel that the proceedings be further adjourned to enable the offender to be re-assessed for community service or periodic detention. 36) The offender was also involved in an assessment by a psychologist. The report of Mr. Terry Smith Clinical Psychologist is before the Court. The offender is described as a workaholic. I accept from his evidence before me that this is the case. The offender asserts that his drive to succeed in business was the catalyst for all of his driving offences save for the offences of 22nd July 2007. That is an explanation. It is not an excuse. He was assessed by the psychologist as being depressed as a result of the guilt associated with the offences in which his friends were seriously injured. He expresses the opinion that this may have impaired his judgment regarding subsequent decisions to drive when disqualified and then cancelled. 37) I am unable to draw that inference as a mitigating factor. The offender's conduct in driving on 7 prior occasions when not lawfully entitled to do so and indeed on the night in question cannot be said to have been affected by the consequences of the injuries occasioned to his passengers. His subsequent repeat offending is more consistent with the prevailing attitude of the offender towards the law and his belief that achieving in the workplace took priority over respecting decisions that he was not to drive. 38) The offender's mental health is an issue to be considered by the Court. That condition is one of depression arising from a sense of guilt and no doubt the realisation of the likely consequences of his self-serving behaviour. His condition is not in my view of such a magnitude that it should undermine the principles of general deterrence. Nor does it carry sufficient weight to affect the ultimate outcome of these proceedings. The prognosis is positive. The offender believes it is manageable without medicinal intervention. He may be correct. The plea of guilty 39) The offender is in my view entitled to a discount on the sentence to be imposed by reason of the plea of guilty entered before the Court. This arises both in the context of Section 22 of the Crimes (Sentencing Procedure) Act 1999 and in line with the guideline decision in R –v- Thomson & Houlten (2000) 49 NSWLR 383 40) The plea of guilty to these charges as already indicated, were not entered at the first available opportunity. The primary consideration determining where in a range a particular case should fall is the timing of the plea. For the purpose of these proceedings I allocate a discount of 20%for the utilitarian value of the plea of guilty. The inevitable question that arises from such an indication is 20% of what? 41) To answer that question the Court needs to identify the objective seriousness of the offending behaviour. 42) The most serious offences are the two offences of driving in a manner dangerous causing grievous bodily harm. Each of those offences carries a maximum penalty of 7 years imprisonment. It is the legislative maximum which is the relevant consideration not the jurisdictional limit R-v- Doan (2000) 50 NSWLR 115. The importance of this decision is demonstrated by the curious relationship between the jurisdictional limit for this offence, and the jurisdictional limit for what is essentially a victimless crime, such as driving whilst disqualified or whilst cancelled. 43) Where the offence of dangerous driving occasioning grievous bodily harm is dealt with in this Court the maximum term of imprisonment that may be imposed is 18 months. This is to be contrasted with the maximum term of 2 years for offences that have no identifiable victim. Given that Section 3A and Section 21A(2)(g) are relevant considerations it may well be that an anomaly exists in the relationship between the penalty structure within the Local Court regarding these types of offences. The extent of such anomaly is further tested when one has regard to the decision in R –v- Jurisic and R-v- Whyte at [229] wherein reference is made to the guideline sentence in circumstances where moral culpability is high as being two years 44) It is the view of the Court in these matters that the moral culpability of the offender is relatively high. Although the fact that he was at the time a disqualified driver is not relevant to these charges (Rosenthal –v- R [2008] NSWCCA 149; 2nd July 2008) he had an amount of alcohol in his blood that he concedes by the plea led to him driving under the influence and in circumstances, having left licensed premises where he could have been under no misapprehension that he was likely to be so affected. He permitted two passengers to occupy a vehicle that has no provision for seat belts in the rear. He left both passengers to travel unrestrained. He travelled a distance of approximately 29 kilometres through metropolitan Sydney and immediately prior to losing control of the vehicle is travelling at an admitted speed of 80 kilometres per hour on a wet road. As a consequence the injuries set out earlier are brought about. 45) The decision in Whyte identified a number of aggravating factors the Court must take into account in assessing the issue of moral culpability. There are 9 in total. In my view 4 apply in the case of the offender. They are: (iii) Degree of Speed – the offender concedes driving at a speed of approximately 80 kilometres per hour in a 60 zone (iv) Degree of intoxication or substance abuse – the blood alcohol level of the offender was at the time deemed to be .113. He concedes he was under the influence of alcohol at the time of driving (v) Erratic or aggressive driving – it is a reasonable inference that the failure of the offender to negotiate the bend in the road was due to his aggressive driving in inclement conditions (vii) Length of the journey during which others were exposed to risk – the offender drove from Liverpool to Alexandria. This is a distance of approximately 29 kilometres. 46) In my view this set of circumstances places his moral culpability and thus the objective seriousness of his offending behaviour towards the middle range of seriousness. Whilst I am mindful of the admonition set out in Section 5 of the Crimes (Sentencing Procedure) Act 1999 I am of the view that in light of the guideline judgment and the level of the offender's criminality the appropriate sentence for these offences is one of imprisonment. The Sentence Sequence One – H 32869053 47) Sentencing for multiple driving offences arising out of a single activity does not mean that the penalty imposed for each like offence should be identical. This has been well settled since R –v- Price [2004] NSWCCA 186. Objectively the serious injuries caused to the victim Katiaa [charge number 2] resulting in the insertion of a metal rod into his leg from the knee down are more extensive than the serious injury caused to Perry [charge number 1]. 48) Charge number 1: For the charge of dangerous driving occasioning grievous bodily harm to Marcus Perry the appropriate penalty is one of 10 months imprisonment. After applying the identified discount the offender is sentenced to imprisonment for a fixed term of 8 months. This sentence is to be served concurrently with the other sentences of imprisonment imposed in relation to this sequence of offences. Because other sentences imposed in respect of other offences exceed the length of this sentence I decline to fix a minimum and additional period. 49) Charge number 2: For the charge of dangerous driving occasioning grievous bodily harm to Bilal Katiaa the appropriate penalty in my view warrants a term of imprisonment of 15 months. The discount for the plea of guilty affects the ultimate sentence. The offender is convicted and sentenced to a minimum period of imprisonment in respect of sequence two of 9 months with an additional period on parole of 3 months, a total of 12 months. 50) Charge number 4: It would be unusual for an offender guilty of a second mid range drink driving offence following upon a low range offence to be sentenced to a term of imprisonment. The experience of the Court is that long-term involvement in alcohol rehabilitation and driver education programmes provides a better environment for the purpose of long-term rehabilitation. For the offence of driving with the mid range prescribed concentration of alcohol the offender is convicted and released under Section 9 to be of good behaviour for the next 3 years. The bond is conditioned to accept supervision by the Probation and Parole Service and obey all reasonable directions of the service in relation to participation in alcohol rehabilitation programmes and traffic education programmes. The discount for the plea entered in relation to this offence is reflected in a decision not to attach a financial penalty to the sentence. 51) Charge number 5: For the offence of driving whilst disqualified and after applying the identified discount for his plea of guilty the offender is convicted and sentenced to imprisonment for a period of 4 months. This sentence is to be served concurrently with the other sentences imposed in respect of this sequence of offences. 52) Charges number 6 & 7: For the offences of driving an unregistered and uninsured motor vehicle I acknowledge that the offender will have a limited capacity to pay a monetary penalty and that upon his release from gaol the burden of a financial penalty will do little to assist him in his re-assimilation into society. In 2006 the legislature introduced Section 10A into the Crimes (Sentencing Procedure) Act 1999. This amendment allows a Court to record a conviction but not to impose a penalty. In the second reading speech on the introduction of the legislation to Parliament it was indicated that the provision was being enacted, inter alia, to enable courts to dispose of minor matters in circumstances where an offender had been sentenced to a term of imprisonment. In the spirit of that amendment the offender is convicted. Each offence is dealt with pursuant to Section 10A. Sequence two – H 185560792 53) Charge number 1: The second sequence of driving whilst disqualified driving also warrants the imposition of a term of imprisonment. The principles of general and specific deterrence are of particular importance to these types of offences. Offenders who are disqualified from driving need to know that the community and the court expects that the sentences imposed for offending behaviour will not simply be ignored. Irrespective of the motivation of the offender, predicated as it was on self-interest, the need to respect the law requires from time to time a strong message to be sent to offenders that their wilful disobedience of its strictures comes at a price. In this case the price the offender will pay will be to lose his liberty. For the offence of driving whilst disqualified and after applying the identified discount the offender is convicted and sentenced to imprisonment for a fixed period of 5 months. 54) Charge number 2: For the offence of disobeying the traffic control signal the offender is convicted. The matter is dealt with in accordance with the provisions of Section 10A of the Crimes (Sentencing Procedure) Act 1999 Sequence 3 – H 61144001 55) Charge number 1: Although it would have been a fruitless exercise given the charges pending against him the offender was technically entitled to apply for his license after the expiry of the period of disqualification imposed for the earlier traffic offences. He did not do so reflecting more likely than not an ongoing contempt for the licensing laws dating back to at least 2005. The penalty for driving whilst cancelled is the same as that for driving whilst disqualified. Courts in the jurisdiction of the Local Court have long taken the view that driving whilst disqualified is more a more serious offence than driving whilst cancelled and should be punished more severely. 56) I doubt that this is a correct view of the law. It is arguable that just as the Court said in R –v- Dang [2005] NSWCCA 430 at [29] " the appropriate consideration is the relevant statutory regime and maximum penalty prescribed for the offence" that the approach on sentence for this type of offence should be no different than the approach to be taken in Dang [mirrored in other decisions such as Adams –v- R [2008] HCA 15, R –v- Poon 56 NSWLR 284; r –V- Bimahendali (1999) 109 ACR 355] in relation to sentencing for drug offences. The relevant consideration is that the objective seriousness of the offence is measured by the penalty for the offence not by some informal grading system predicated on the Court taking greater umbrage at their orders being defied compared to that to be applied when a legislative or administrative consequence operates to cancel an offender's license. 57) As Wood CJ at CL (as he then was) said in R –v- Bimahendali: "Ultimately the best guide is that given by the legislature as to the available penalty and not upon an impression or judgment as to its perniciousness…" 58) It cannot be the case that two streams of sentencing approach apply for offences prosecuted under Section 25A – one leading inexorably towards imprisonment and the other lending itself to repeated non custodial outcomes. In the case of the offender this would undermine the efficacy of special deterrence. In the case of the community it would affect the prospective success of general deterrence. Given that this is the third instance of the offender driving in defiance of the law I see no valid argument against the imposition of a term of imprisonment for this offence. The offender is convicted of the offence of Driving whilst cancelled and after applying the identified discount is sentenced to imprisonment for a fixed term of 6 months. 59) Charge number 2: For the offence of making a U turn at a traffic control light he is convicted. The matter is dealt with in accordance with the provisions of Section 10A of the Act. Sequence Four – H 33557279 60) My comments in relation to sequence three do not require reiteration other than to note that yet again the offender's conduct displays contempt for the law and for his own freedom. He is convicted of the offence of driving whilst cancelled and after applying the discount for the plea of guilty is sentenced to imprisonment for a fixed period of 8 months. Because the period of imprisonment to be served concurrently with this sentence exceeds the period of 8 months I decline to set a minimum and additional period. Sequence Five – H 34189846 61) Charge number 1: The offender's conduct in committing these offences whilst on bail awaiting sentence and the preparation of a pre-sentence report is beyond justification. The sentence is mitigated only by the early plea of guilty. He is convicted for the offence of driving whilst cancelled. After applying the discount of 20% he is sentenced to imprisonment for a minimum period of 9 months and an additional period of 3 months during which he is to be supervised on parole. Charges 2,3,4, and 5: The offender is convicted. The matters are dealt with in accordance with the provisions of 10A. The Principle of Totality 62) Sentencing for multiple offences, particularly where a number of terms of imprisonment are imposed for offences differing in time of commission and nature invariably presents a difficulty. It also requires the court at the end of the sentencing exercise for each offence to consider the aggregate outcome to assess whether it is just and appropriate to the totality of offending behaviour. 63) In Johnson –v- The Queen [2004] 78 ALJR 616 at [18] the High Court said, in adopting the statement from Thomas Principles of Sentencing: "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed … to review the aggregate sentence and consider whether it is just and appropriate…. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences." 64) In taking this approach however, as the Court said in R –v- MAK [2006] NSWCCA 381 at [18] "A sentencing Court must however take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of discount for multiple offending" 65) These words do not suggest that Courts need err on the side of minimising the circumstances in which totality is the governing determinant. As the Court further said in MAK: "… an extremely long total sentence may be crushing upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be for rehabilitation and reform." 66) In these proceedings if the court was to impose consecutive sentences even if only for the separate sequences of offending the offender would effectively be required to serve at least 3.9 years. Viewed from the perspective of totality it seems to this Court that this would be too long a period. In line with the authority of Postiglione –v- The Queen (1997) 189 CLR 295 at 308 I am of the view it is an appropriate exercise of discretion "to adjust the sentences downward to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." 67) I intend to make the sentences partly concurrent and partly cumulative. In my view the appropriate way in which to arrive at a just outcome that correctly identifies the totality of criminality is to accumulate the sentences of imprisonment imposed in respect of sequences two, three, four and five onto the sentences imposed in relation to sequence one date them from the expiry of the non parole period in relation to the sentence imposed for sequence two of series one and to make each of the sentences for sequences two, three, four and five concurrent with each other. 68) The effect of this will be to impose a length of imprisonment comprising 18 months full time with an additional 3 months on supervised parole. Given the additional sentence of releasing the offender under Section 9 subject to Probation and Parole Supervision I believe this will adequately provide for an environment in which the long-term rehabilitation of the offender can be addressed. 69) As indicated earlier each of the sentences of imprisonment imposed in respect of Sequence One [H32869053] is to be served concurrently. 70) Each of the sentences of imprisonment imposed in respect of Sequences two [H185560792] Sequence 3 [H 61144001] Sequence 4 [H 33557279] and Sequence 5 [H34189846] are to be served concurrently with each other but cumulatively upon the sentence imposed in respect of charge 2 of offence Sequence one and to date from the expiration of the non parole period imposed in respect of that sentence. 71) Counsel for the offender submitted that the sentences be suspended pursuant to Section 12 of the Crimes (Sentencing Procedure) Act 1999. The learned Police Prosecutor opposes that course on the basis that to do so would undermine the efficacy of the principles of general deterrence. I agree with the learned prosecutor. 72) In matters of this nature [and I exclude the regulatory offences] general deterrence is of particular importance. As the court said in R –v- Taylor [2000] NSWCCA 442, a suspended sentence is not an appropriate penalty where general deterrence is of such significance. A suspended sentence also has an inbuilt measure of leniency that has the capacity to deprive punishment of much of its effectiveness. It would in my view also be inconsistent with the guideline judgment in Whyte. I decline to exercise my discretion to suspend the sentence. 73) Counsel also submitted that these might be matters in which the Court could consider an adjournment for the purpose of a Home Detention assessment. I decline to take that option. In addition to not being persuaded that the offender is unlikely to re-offend Section 79 of the Crimes (Sentencing Procedure) Act 1999 prohibits such consideration where the length of the sentence whether separately or by accumulation exceeds 18 months. It is not the case that the Court in these proceedings should order that all sentences be served concurrently simply to render the offender available for assessment. That would be a misapplication of the law. 74) The sentences are to be served by way of full time imprisonment commencing forthwith. Disqualification of License 75) I have set out above the consequences of conviction for the respective offences. Such outcomes represent the application of a statutory scheme. The scheme lends itself to an approach consistent with the principles of totality inasmuch as it is made up of automatic periods of disqualification and statutory minimum periods of disqualification. In other respects it affects the capacity of the court to consider such principles in totality because of the statutory requirement to date some periods of disqualification from the expiry of existing periods. In addition the Court is required to consider the issue of the declaration of the offender as an Habitual Offender under the Road Transport (General) Act 1995. The Court has a measure of discretion under the relevant provisions save in relation to the operative date when it makes a declaration. 76) I referred earlier to the prospect of the offender being disqualified for a maximum period of 35 years. In my view whilst provided for in the relevant pieces of legislation such an outcome would crush any prospect of rehabilitation so far as the obtaining of a license is concerned. The likely response would be for the offender to continue to re-offend thereby condemning himself to the likelihood of returning to gaol on a regular basis. 77) Whilst I acknowledge that in ordinary circumstances an offender should not "gain" from multiple offending I also acknowledge that the flexibility in relation to the imposition of periods of disqualification in terms of applying maximum and minimum periods and in quashing entirely or reducing declarations as an habitual traffic offender must have been established by the legislature with a view to assisting Courts in bringing a flexible approach to sentencing. 78) With these considerations in mind I make the following orders in relation to disqualification: Sequence One 79) Charges 1, 2 and 4: The offender is disqualified from holding or obtaining any license under the relevant legislation for a period of 2 years to date from 27th August 2008 and expire on 26th August 2010. Such periods of disqualification are to be served concurrently. Charge 5: The offender is disqualified from holding or obtaining any license for the automatic minimum period of 2 years to date from 27th August 2010. This period of disqualification will expire on 26th August 2012. Sequence 2 80) Charge 1: The offender is disqualified from holding or obtaining any license for the automatic minimum period of 2 years to date from 27th August 2012. This period of disqualification will expire on 26th August 2014. Sequence 3 81) Charge 1: The offender is disqualified from holding or obtaining any license for the automatic minimum period of 2 years to date from 27th August 2014. This period of disqualification will expire on 26th August 2016. Sequence 4 82) The offender is disqualified from holding or obtaining any license for the automatic minimum period of 2 years to date from 27th August 2016. This period of disqualification will expire on 26th August 2018. Sequence 5 83) Charge 1: The offender is disqualified from holding or obtaining any license for the automatic minimum period of 2 years to date from 27th August 2018. This period of disqualification will expire on 26th August 2020. Declaration as Habitual Traffic Offender 84) The Road Transport (General) Act 2005 establishes a statutory regime to be considered in relation to persons who by the nature of their offending behaviour fall within the declaratory provisions of Section 198 of the Act. As I indicated earlier in these remarks the offender falls within those provisions. Were I to apply the provisions without further consideration it would add an additional 20 years of disqualification to the offender's already significant periods of exclusion from any capacity to obtain a license or drive a motor vehicle. 85) No outcome relevant to sentence should operate to crush the prospect of rehabilitation. My comments earlier in relation to the consideration of the principles of totality are no less applicable to considering an habitual offender declaration. This is not to say that a court should, in applying periods of disqualification for discrete offences conclude that the effect of those accumulated periods are more than enough and then proceed to quash subsequent declarations as an habitual offender. 86) To take that approach would be to ignore the existence of the legislation and to effectively contribute to undermining its intended application. It would also, in line with the decision in R –v- MAK (supra) be tantamount to offering offenders "a discount for multiple offending". The preferable course in my view is to apply an approach once again predicated upon the principles of totality. Such an approach is consistent with the provisions of Section 202 of the Road Transport (General) Act 2005. 87) Those provisions require a Court considering the quashing of the declaration to give reasons. It is not a simple exercise of concluding that, as in this case, that 10 years disqualification is enough. There must in my view be a rationale basis for intervening to quash the declaration. 88) In my view such a basis exists. Just as the Court re-assessed the combined effect of the terms of imprisonment imposed in respect of the series of offending so too it should in relation to the declaration of the offender and for the same purpose. Whilst it is important to foster the principles of general and specific deterrence in relation to traffic offences it is also important to promote an environment in which the prospect of rehabilitation is real rather than largely unobtainable. 89) In my view that cannot be done by adding the burden of additional periods of disqualification that must, by force of law, be imposed on an accumulative basis. Nor can it be the case that the court simply expunges the consequences of the offender's conduct by quashing the declaration in each instance. The better course in my view is to take this approach in relation to some offences but to leave the offender with the consequences of a single declaration, reduced to the minimum allowable period of additional disqualification such that it might serve as a reminder and disincentive to return to his previous conduct. 90) For the relevant offences of 2nd August 2007 and 14th September 2007 I exercise the discretion of the Court to quash the declaration of the offender as an habitual offender. 91) For the offence of 7th April 2008 I declare the offender to be an habitual Traffic offender. In accordance with the provisions of Section 201(3) for the reasons set out above and on the basis that to impose the 5 year automatic period of disqualification would be both unjust and disproportionate I order the offender be disqualified for a the minimum period of two years. Such period is to date from 27th August 2020 and expire on 26th August 2022. 92) For the offence of driving whilst cancelled on 16th June 2008 the circumstances of its commission justify in my view the making of a declaration. In accordance with the provisions of section 201(3) and for the reasons set out above and on the basis that to impose the 5 year automatic period of disqualification would be both unjust and disproportionate I order that the offender be disqualified for the minimum period of two years. Such period is to date from 27th August 2022 and expire on 26th August 2044. Graeme Henson Chief Magistrate 27th August 2008 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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