District Court New South Wales Medium Neutral Citation: Barris v R [2016] NSWDC 291 Hearing dates: 19 September 2016 Date of orders: 19 September 2016 Decision date: 19 September 2016 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal allowed Sentence passed by Sutherland Local Court on 19 May 2016 set aside Sentenced to 200 hours community service Catchwords: CRIMINAL LAW – Appeal against severity of sentence – Driving whilst disqualified – Poor driving record – Second offence of driving whilst disqualified – Sentenced to imprisonment for 4 months – Sole parent of 8 year old boy for last 4 years – No evidence that child's mother could care for boy – Sentence set aside, ordered to perform 200 hours community service Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Road Transport Act 2013 Category: Principal judgment Parties: Andrew Barris (Appellant) Director of Public Prosecutions(NSW) (Respondent) Representation: Ms Subeska (Appellant) Solicitor for the Director of Public Prosecutions(NSW) (Respondent) File Number(s): 2016/94185 Publication restriction: No Decision under appeal Court or tribunal: Sutherland Local Court Jurisdiction: Criminal Date of Decision: 19 May 2016 Before: Richardson LCM File Number(s): 2016/94185 Judgment 1. HIS HONOUR: This is an appeal against the severity of a sentence passed by Magistrate Richardson sitting in the Local Court at Sutherland on 19 May 2016. The appellant was charged with an offence contrary to s 54(1)(a) of the Road Transport Act 2013. The formal charge was that on 24 March 2016 at Rockdale he did drive a motor vehicle on a road during a period of disqualification, he being a person who was disqualified from holding a driver's licence. The appellant pleaded guilty to that offence but at the time of sentence was unrepresented. He was sentenced to imprisonment for four months. 2. The appellant's driving record is, putting it in very blunt terms, appalling. He has previously been disqualified from driving on a number of occasions, including disqualifications imposed by the courts. He was disqualified from driving by the Downing Centre Local Court on 6 March 2013 following upon a conviction for a mid-range PCA offence. He was also disqualified from driving by a sentence passed by the Blacktown Local Court on 17 March 2014. He was also disqualified from driving for a further offence of driving whilst disqualified by the Local Court at Kogarah on 6 May 2014. The appellant then drove a motor vehicle on a public street on 24 March 2016 prior to his last disqualification period expiring. 3. The appellant, however, gives extenuating circumstances for the circumstances of his driving whilst disqualified. On the morning of 24 March 2016 he, together with a driver, drove a truck to a mechanic's workshop on West Botany Street at Rockdale for service and to obtain a pink slip inspection certificate because the registration was probably overdue. Later in the day he received a phone call from the repairer indicating that the truck was ready to be collected ahead of schedule. At the time the appellant was buying groceries at a supermarket using a bicycle as his means of transport. He then drove to the mechanic's workshop, placed his bicycle in the back of the truck, placed his groceries in the front cabin of the truck and proceeded to drive along West Botany Street back to his place of work when he was pulled over by the police moments after leaving the mechanic's workshop. He admitted that he was driving whilst unlicensed and that he was driving whilst the vehicle had not yet been re‑registered or reinsured. Police described him at the time as a "moron" and perhaps with the benefit of hindsight he would so describe himself. 4. For this repeated breach of court imposed disqualification periods I am confident that the appellant realises that the courts have little option but to sentence to imprisonment. The only problem in the current matter is that the appellant is a sole parent, sole guardian and carer of a son, and has been for the last four years. There was no suggestion that his son's mother is a person who could now care for him, bearing in mind that for the last four years the appellant has looked after his now eight year old son by himself. 5. In a letter addressed to the presiding magistrate at the Sutherland Local Court the appellant explained his personal circumstances completely and adequately. Since the appellant appeared before the Local Court he has again gone to Community Corrections and obtained a report saying that he can now reliably nominate one day each week to perform community service work should the Court sentence him to a community service order. 6. Some form of custodial sentence is appropriate. A community service order is an alternative to full-time custody and indeed an alternative to other forms of custody. A community service order will bring home to the appellant the fact that he must pay for his crimes against the community and since it must necessarily be pursued over a long period of time will reinforce in his mind the need to stay away from cars and other forms of transport whilst disqualified. 7. For those reasons I set aside the sentence passed by the Local Court at Sutherland on 19 May 2016. I am satisfied on the matters referred to in s 86 of the Crimes (Sentencing Procedure) Act 1999. I have had regard to the contents of an assessment report which states that the offender is suitable for community work. Andrew Barris, I sentence you to 200 hours community service. You are to report to the community service organiser at Hurstville within seven days. 8. You are disqualified from driving for two years from the last date. There is nothing I can do about that, Mr Barris. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2016