Johnson, Peter Vincent v The Queen

[2008] NSWDC 376

CITATION:	JOHNSON, Peter Vincent v R [2008] NSWDC 376
JUDGMENT DATE:	1 August 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I set aside the sentence of the learned magistrate. I order Mr Johnson be disqualified from holding a driver's licence for 2 years. I impose a fine of $500 and waive court costs. I confirm the bond imposed under s 9 Crimes (Sentencing Procedure) Act 1999.
CATCHWORDS:	CRIMINAL LAW - sentence appeal - dangerous driving - riding motorbike in manner or at speed dangerous - criminal record including previous convictions for driving whilst disqualified - no basis for order under s 10 of the Crimes (Sentencing Procedure) Act 1999
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 s 20(2) Crimes (Sentencing Procedure) Act 1999 s 9, s 10 Road Transport (Safety & Traffic Management) Act 1999 s 42
PARTIES:	Regina Peter Vincent Johnson
FILE NUMBER(S):	2008/8088
SOLICITORS:	Mr Kiru for the NSW Office of the Director of Public Prosecutions Mr Johnson in person

JUDGMENT
1. Mr Peter Johnson has appealed against his sentence. He was convicted of dangerous driving, that is an offence against s 42 of the Road Transport (Safety and Management) Act 1999 . The maximum sentence--
It says here Mr Kiru five years.

KIRU: Automatic disqualification is five years your Honour.

HIS HONOUR: Five years.

KIRU: Automatic, say if there is no conviction, there’s no disqualification imposed by the magistrate your Honour then automatically five years.

HIS HONOUR: Her Honour said three years, but it is five.

KIRU: Five.

HIS HONOUR: She reduced it to two.

KIRU: The five years is automatic your Honour. If the condition if there is no disqualification imposed by the magistrate.

HIS HONOUR: Yes.

KIRU: But the minimum is two years.

HIS HONOUR: I understand the maximum, I understand the minimum, so she reduced it from five down to two,

KIRU: She has given the minimum two years, that’s the minimum she could impose.

HIS HONOUR: I see. All right thank you.

2. The offence was committed on 23 February 2008 at Prospect. Mr Johnson was riding his motorbike weaving in and out of traffic on the M4 Motorway at Prospect. He was recorded at driving 167 kilometres an hour. Police estimate that he went more than that, up to 210 kilometres an hour. Even if it was 167 kilometres an hour I find that that was sufficient for the conviction of driving in a manner dangerous or speed dangerous. Mr Johnson was observed to have overtaken about 30 other cars with his motorbike. The opinion was expressed in the police facts that the speed caused significant danger to other motorists.

3. Mr Johnson has a criminal record which includes previous convictions for driving whilst disqualified. At the time that he was riding his motorbike on this occasion he was disqualified. His criminal record does not allow me to extend any leniency to him.

4. The circumstances in which the offence occurred do attract some mitigation. He was going to visit the grave of his daughter who had died a year before from a cot death. He was upset and feeling depressed at the time. He has managed to turn his life around from a decade of crime and drug use and this is very commendable. He and his wife are in difficult personal financial circumstances. He needs his licence and he is presently on workers’ compensation having suffered a back injury. He otherwise had a successful business in scaffolding.

5. As I said, the maximum disqualification or the automatic disqualification for this offence is five years, the minimum is two years. The learned magistrate, although the correctness of her decision is not in issue before me, reduced the disqualification from five years to two years from 29 April 2009. Her Honour clearly took into account Mr Johnson’s personal circumstances. She fined Mr Johnson $1,200 and ordered court costs of seventy dollars.

6. The only way that I can not impose a disqualification is by making an order under s 10 of the Crimes (Sentencing Procedure) Act 1999. There is no appropriate basis for such an order. I regard this offence as serious, although not at the top of the range. Nevertheless Mr Johnson’s record does not, as I said, allow him any leniency. I regard a period of disqualification of two years as quite lenient given his record and given the riding that he was undertaking. As I said there is no alternative way of avoiding that minimum period of disqualification which is an appropriate, that is appropriate alternative way.

7. Because of his own personal financial circumstances I propose to reduce the fine from $1,200 to $500. Accordingly I propose to partly allow the appeal. The orders which I make in this matter under s 20(2) of the Crimes (Appeal and Review) Act 2001 are these. I set aside the sentence of the learned magistrate. Instead of that sentence I order that Mr Johnson be disqualified from holding a driver’s licence from 29 April 2008 the minimum period of two years. I Impose a fine of $500 and I waive the requirement to pay the court costs. I confirm the bond imposed under s 9 of the Crimes (Sentencing Procedure) Act for twelve months, that bond to be of good behaviour.

8. Anything else Mr Kiru?

KIRU: I note your Honour the appellant has already entered into a s 9 bond on 26 April this year so there’s no need for--

HIS HONOUR: No need to re-enter it. Mr Johnson you have lost your appeal on your main point, the disqualification stays at two years for the reasons that I gave. It has to in my opinion because of your conduct on the road, but you have the minimum. I had not realised the automatic is not three years which I was saying to you, but five years. You could have been, as I said, facing a jury for a death or you could have been off the road for five years. The court has in fact been extremely lenient to give you the minimum particularly with your driving record, you have done very well. Not only that, I have reduced the fine more than half because of your personal circumstances and you do not have to pay court costs. You have a bond which means you have to stay out of trouble for twelve months or you will come back here, do you understand? Now you want to say something?

APPELLANT: Yes your Honour, please.

HIS HONOUR: Go ahead.

APPELLANT: There was two things. When I spoke to you on our previous occasion I mentioned to you that when the officer pulled me over and took my licence he said that I’d lost my licence on the spot, that was in February and you said that you would be prepared to backdate me from February.

HIS HONOUR: What was the date of the offence?

APPELLANT: 23 February I believe.

HIS HONOUR: You want me to backdate it. Do you want to be heard on that Mr Kiru?

KIRU: The licence has been taken your Honour, there is room for your Honour to take into account the licence--

9. I review my order which I have just made and I backdate the period of disqualification to be for two years from 23 February 2008 and to expire on 22 February 2010.

Yes, what was the second thing?

APPELLANT: It fell out of my head your Honour, I’m sorry.

HIS HONOUR: All right. Stay out of trouble, continue with the good efforts that you have been making up to now.

APPELLANT: Thank you.

HIS HONOUR: I will return the file.

**********