Ewart, Warren James v The Queen - [2009] NSWDC 403

CITATION: EWART, Warren James v R [2009] NSWDC 403

JUDGMENT DATE:
18 November 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: I adjourn the proceedings pursuant to s 32(2) of the Mental Health (Forensic Provisions) Act 1990.

CATCHWORDS: CRIMINAL LAW - sentence appeal - driving whilst disqualified - significant relevant prior record - pre-sentence report noting unsuitable for Community Service Order or Periodic Detention Order - psychiatric report diagnosing major depressive disorder - application pursuant to s 32 Mental Health (Forensic Provisions) Act 1990 - diversion from criminal justice system to mental health system - purposes of sentencing

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 3A
Mental Health (Forensic Provisions) Act 1990 s 32
Road Transport (Driver Licensing) Act 1998 s 25A(1)(a)

CASES CITED: DPP v El Mawas (2006) 66 NSWLR 93

PARTIES: Regina
Warren James Ewart

FILE NUMBER(S): 2009/47494; 2009/155247

SOLICITORS: Mr Lee (NSW Office of the Director of Public Prosecutions)
Ms Cashman

JUDGMENT

1. Warren James Ewart was sentenced by a magistrate of the Local Court at Bankstown to imprisonment. This sentence occurred on 22 September 2009. In fact he received three prison sentences because he was convicted of three offences. He has appealed to the District Court against those sentences.

2. The offences he committed which caused the magistrate to send him to prison were three offences of the same kind; each was driving a car whilst disqualified. Each of those is made into an offence by the Road Transport (Driver Licensing) Act 1998 s 25A(1)(a). They carry a maximum of eighteen months imprisonment or two years imprisonment, depending I expect on whether or not it is a first offence.

3. The magistrate sentenced Mr Ewart to one month imprisonment for the first offence and for two months imprisonment for the second offence, which was completely cumulative on the first sentence, and to three months imprisonment for the third offence, which was completely cumulative on the second sentence. Hence he received an overall penalty of six months imprisonment.

4. When a person appeals to the District Court from a sentence imposed by the Local Court the District Court does not look for any error made by the magistrate but sentences the person afresh.

5. In this case I can understand why the magistrate sentenced Mr Ewart to imprisonment. The three offences of driving whilst disqualified were committed only some months apart, the first on 14 March 2009, the second on 27 April 2009 and the third on 4 June 2009. Not only that but Mr Ewart had a traffic record which included a significant number of offences of driving whilst unlicensed; he had received fines and disqualifications in the past for those offences.

6. What the magistrate was confronted with was a person not only with a bad record for driving whilst unlicensed but who then disregarded the court orders or legislative disqualification and drove on three occasions despite that disqualification. Each occasion was unremarkable in itself except on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWDC 403
Decision Date: 18 November 2009

CaseChat Overview and Summary

Warren James Ewart appealed his sentence for driving whilst disqualified, a matter that came before the court. The appeal was grounded in the severity of the sentence and the appellant's mental health condition, which was diagnosed as major depressive disorder. The court was tasked with determining whether the sentence was appropriate in light of the appellant's psychiatric condition and whether the diversion from the criminal justice system to the mental health system was warranted.

The primary legal issues centred on the appropriate sentence for the offence of driving whilst disqualified, considering the appellant's extensive criminal history and mental health status. The court had to evaluate the purposes of sentencing, which include deterrence, retribution, rehabilitation, and protection of society, against the backdrop of the appellant's psychiatric condition. Additionally, the court examined the applicability of Section 32 of the Mental Health (Forensic Provisions) Act 1990, which allows for the diversion of mentally ill offenders from the criminal justice system.

In reaching its decision, the court meticulously considered the appellant's significant prior criminal record, his unsuitability for community service or periodic detention orders, and the psychiatric diagnosis of major depressive disorder. The court found that the appellant's mental health condition warranted a diversion from the criminal justice system to the mental health system. Consequently, the court exercised its discretion under Section 32 of the Mental Health (Forensic Provisions) Act 1990 and adjourned the proceedings to facilitate this diversion.

The court's final orders were to adjourn the proceedings in accordance with Section 32(2) of the Mental Health (Forensic Provisions) Act 1990. This decision effectively diverted the appellant from the criminal justice system to the mental health system, recognising the appellant's mental health needs and the potential for rehabilitation within the mental health framework.

Orders

Orders of the court

I adjourn the proceedings pursuant to s 32(2) of the Mental Health (Forensic Provisions) Act 1990.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	EWART, Warren James v R [2009] NSWDC 403
JUDGMENT DATE:	18 November 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I adjourn the proceedings pursuant to s 32(2) of the Mental Health (Forensic Provisions) Act 1990.
CATCHWORDS:	CRIMINAL LAW - sentence appeal - driving whilst disqualified - significant relevant prior record - pre-sentence report noting unsuitable for Community Service Order or Periodic Detention Order - psychiatric report diagnosing major depressive disorder - application pursuant to s 32 Mental Health (Forensic Provisions) Act 1990 - diversion from criminal justice system to mental health system - purposes of sentencing
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 3A Mental Health (Forensic Provisions) Act 1990 s 32 Road Transport (Driver Licensing) Act 1998 s 25A(1)(a)
CASES CITED:	DPP v El Mawas (2006) 66 NSWLR 93
PARTIES:	Regina Warren James Ewart
FILE NUMBER(S):	2009/47494; 2009/155247
SOLICITORS:	Mr Lee (NSW Office of the Director of Public Prosecutions) Ms Cashman