McCarry v The Queen

[2015] NSWDC 209

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	McCarry v R [2015] NSWDC 209
Decision date:	09 June 2015
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	(1) Leave granted to the appellant to withdraw his appeals in respect of counts 1, 2, 3 and 5. (2) The offender is disqualified from driving for a period of 2 years. (3) Adjourned, part heard, to Friday 7 August 2015 at 10am.
Catchwords:	CRIMINAL LAW – appeal against sentence – particular offences – possess prohibited drugs – dangerous driving – relevant factors - prior criminality – extensive criminal record – prospects of rehabilitation – ambivalent regarding rehabilitation – rehabilitation critical to avoiding future offending behaviour – protection of the community – adjournment pending availability of rehabilitation facility
Legislation Cited:	Crimes Act 1900 (NSW), s 51B(1) Crimes (Appeal and Review) Act 2001, s 20 Crimes (Sentencing Procedure) Act 1999, s 50
Category:	Principal judgment
Parties:	Jonathan Richard McCarry (Appellant) Regina (Respondent)
Representation:	Solicitors: R Whyte, Tasdemir Lawyers (Appellant) A Baker, Office of the Director of Public Prosecutions NSW (Respondent)
File Number(s):	2015/046500; 2015/039277; 2015/039278
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 09 April 2015 Before: McCosker LCM File Number(s): 2015/046500; 2015/039277; 2015/039278

Judgment

1. I am hearing an appeal by Jonathan McCarry against a sentence for dangerous driving. Mr McCarry pleaded guilty to the charge and on 9 April 2015 his Honour Magistrate McCosker sentenced Mr McCarry to 16 months’ imprisonment. His Honour fixed a non-parole period of 10 months. At the same time, Mr McCarry appealed from four other sentences, all of them for possessing prohibited drugs. He also received gaol sentences for those, but they have expired. He has applied for leave to withdraw those appeals and in due course I will grant it.

2. Returning to the driving offence, it occurred on 13 February 2015. Significantly, that was about two and a half years after he had been convicted of a similar offence. What happened this time is contained in a summary in exhibit A. Police know Jonathan McCarry and so when they saw him on that day turning without giving way or indicating, they followed him. Mr McCarry accelerated away and was driving up to 90 kilometres an hour in a 50 kilometre an hour zone. He was rapidly changing lanes and passing between two vehicles, causing the rear one to brake heavily. Two large garbage trucks were approaching a roundabout and Mr McCarry “swerved back and forth between the two southbound lanes, until sufficient room was created between the two heavy vehicles”. He then “rapidly accelerated through the roundabout”. Police followed him for about 200 metres but then wisely discontinued the pursuit. They knew who he was and where he lived. They watched him turning off a main road and as he did, he “failed to give way for an oncoming vehicle, which required him to brake heavily to avoid a collision.”

3. The police arrested Mr McCarry later that day. He said that he “knew straight away youse were coming for me. I gave it a tickle...I wasn’t looking at my speedo.” Police said that he tried to explain that he was getting away from the police so that they would not check the car for defects, but then police found out that he had just had it returned from the mechanic, and the defects fixed.

4. Mr McCarry was charged with the offence which is contained within section 51B(1) of the Crimes Act 1900 (NSW). Parliament regards it as a very serious crime and in a case such as this, where an offender has committed the same offence within five years, Parliament has fixed a maximum penalty of five years imprisonment to the offence. That demonstrates how serious Parliament regards it as Mr A Baker, who appears for the respondent to the appeal, the Director of Public Prosecutions, pointed out. I have to bear in mind, of course, that the jurisdictional limit of his Honour was two years imprisonment.

5. Mr R Whyte, who appears for Mr McCarry on the appeal, had to deal with two significant issues. One was his client’s criminal record and the other was his client’s prospects for rehabilitation.

6. Mr McCarry has a bad criminal record. As Mr Whyte correctly argued, the record is mostly for domestic violence related offences. That is not to condone such offending, but Mr Whyte’s point is that there are few traffic offences. Of course, there is a prior conviction which was recorded on 4 April 2013 for driving recklessly. Mr McCarry has served a number of prison sentences for domestic violence related offences and drug related offences. Significantly, as Mr Whyte pointed out, for the previous dangerous driving offence he was given an $800 fine.

7. Two observations can be made about Mr McCarry’s record. First, I agree with Mr Baker that although driving offences are very few, Mr McCarry has regularly flouted the law and disobeyed court orders. His offences have been serious enough for him to spend time in gaol. In other words, he is not a person who can claim any leniency because of his previous record and, indeed, is a person the courts have to regard as some threat to the community because of his violence and, in two instances, his driving.

8. The second observation is the one made by Mr Whyte, that when one considers his convictions for driving, they are very few. Significantly, the previous conviction was for the same offence, but he received a fine rather than a gaol term. Mr Whyte argues, and Mr Baker acknowledges, that it is a significant jump from a fine to a prison sentence so far as sentencing options are concerned. On the other hand, as I say, Parliament has fixed a maximum of five years to this crime in cases such as this where there is a repeat offender. Seen in that way, the sentence of 16 months is relatively lenient.

9. An additional factor addressed by Mr Whyte were his client’s prospects for rehabilitation. That emerges because his record shows, and a pre-sentence report confirms, that he has problems with prohibited drugs. In a report prepared for the Magistrate and dated 18 March 2015, the Community Corrections Officer pointed out that Mr McCarry has been having regular contact with a clinical psychologist “however, he was resistant to attending residential rehabilitation which was recommended by his psychologist.” The psychologist “believed the offender’s primary issue was substance abuse, and towards this end, had encouraged him towards attending a residential rehabilitation program.”

10. Mr McCarry frankly acknowledged to the Community Corrections Officer that he is a “slave to my addiction”. It is apparently “difficult for him to avoid the drug scene in the Forster area”. But the officer concluded that Mr McCarry “presented as ambivalent regarding engaging in a residential drug rehabilitation program to address his offending behaviour.” He acknowledged that he was prepared to, but the officer observed that “this appeared to be primarily as an alternative to custody.” Apparently he mentioned Benelong’s Haven “however, he has not initiated contact to date.” The officer made contact with that facility and found out that “the assessment process would take approximately two weeks and at present there are no vacancies in the program.”

11. It is obvious, as the officer reported, that “substance abuse issues have had a significant impact on Mr McCarry’s lifestyle and offending behaviour.” Keeping away from prohibited drugs “will be critical if he is to avoid future offending behaviour.” Despite seeing the psychologist for something like two years, he “failed to engage with alcohol and other drug services.”

12. The driving was dangerous. In doing what he did, Mr McCarry flouted the law yet again and put other road users at risk. I do not accept that he showed any contrition, although he was prepared to acknowledge his offending. He had little choice because the police knew who he was and where he lived. However, Mr Whyte does have a point about the gap between an $800 fine and a prison sentence of almost one and a half years.

13. I would be prepared to reduce the sentence to one of 12 months and to fix a non-parole period of six months. However, it would be a condition of the parole that Mr McCarry is admitted immediately to a residential rehabilitation centre and complies with that centre’s directions.

14. Accordingly, the formal orders which I make are these -

1. I grant leave to the appellant to withdraw his appeals in respect of counts 1, 2, 3 and 5 in exhibit A.

2. Under section 20(2) of the Crimes (Appeal and Review) Act 2001, I determine this appeal against sentence by varying the sentence. Instead of the sentence of 16 months imprisonment, I fix a sentence of 12 months imprisonment to date from 13 February 2015 and to expire on 12 February 2016. I fix a non-parole period of six months to commence on 13 February 2015 and to expire on 12 August 2015.

3. Under section 50 of the Crimes (Sentencing Procedure) Act 1999, I make an order directing Mr McCarry’s release on parole on 13 August 2015. The conditions of his parole are these:

1. that he be of good behaviour;

2. that he attends court if he receives a notice to do so;

3. (iii)    that he proceeds from custody immediately to a residential rehabilitation centre and complies with all reasonable recommendations and directions of staff of such a centre for the balance of his parole.

BAKER: Your Honour, might I just interrupt, I apologise. Just logistically, the Crown is concerned with an order that he immediately go to a residential rehabilitation centre if a bed is not available. We don’t want him breaching just simply because that hasn’t been put into place.

HIS HONOUR: Well, I don’t want him in the community.

BAKER: Perhaps if it’s a condition of his parole that he accept orders of Probation and Parole that, and one of those directions may be that he attend a residential rehabilitation centre.

HIS HONOUR: Or that he be released on parole only if there is a bed available. Can I do that?

BAKER: No, it’s under three years, so your Honour sets a non-parole period, and he is released to parole on that day. So I think to best achieve your Honour’s goal, without a report here saying a bed is available, and we’re about two months away from his release date, your Honour can make it a condition of his parole that he accepted all reasonable directions of the Probation and Parole office, particularly in regard to attendance to a residential rehabilitation program, and perhaps if your Honour marks the papers so the Probation and Parole office knows that the intention was that he attend a program. I just don’t think, without a bed being set aside for him, that on that day he is released to parole, it be ordered that he attend there, because the way these things are, it takes weeks from initial contact.

HIS HONOUR: I can see your point. I can see your point. But what troubles me, Mr Baker, is that, as I said, he has expressed some ambivalence about going into rehabilitation, but Mr Whyte says he has instructions that he is prepared to go into rehabilitation. I want him not to have any option. The pre‑sentence report acknowledged that it is really the compulsion of it, the alternative to custody, which is driving him. I would be prepared to revise my orders and list the matter, I think I am sitting in Parramatta in August, and bring him back before me on a section 11 and find out that he has got a bed, and give the orders accordingly. Mr Whyte, Mr Baker, I will hear you both on that.

WHYTE: I’m with your Honour on that.

HIS HONOUR: Yes.

BAKER: The other alternative may be, with delicate wording, your Honour can order attendance of a residential rehabilitation program when one is available, and logistically I don’t think the Parole Office is going to breach him if he is making all the attempts to get in.

HIS HONOUR: Look, you are right, but there is too much flexibility there.

Mr McCarry, just to explain to you what is happening, you have heard what I have been saying, haven’t you? Can you hear me?

APPELLANT: Yes I can.

HIS HONOUR: I am prepared to reduce your sentence from 16 to 12 months and to give you a non-parole period of six months, which will expire in August, do you understand that?

APPELLANT: Yes.

HIS HONOUR: But I want you to go straight into rehab and sort your life out, so that you are not a threat to the community any more either because of domestic violence or driving; that’s the best way of, I think, protecting the community, and also, hopefully, you getting your life back in order and not commit any more crimes. Do you understand that?

APPELLANT: Yeah.

HIS HONOUR: So for that reason, I want it to be compulsory for you to go from gaol into rehab without any choice and without any time in the community. Do you understand that?

APPELLANT: Yeah.

HIS HONOUR: All right. So what I am going to do is - so the parole will expire, or was to expire 13 August. I am thinking of Friday 7 August, and before me at Parramatta. All right, I am going to return to my reasons and revise my orders in light of Mr Baker and Mr Whyte’s submissions.

15. I no longer regard it as appropriate to finally determine this appeal today. That is because, as Mr Baker pointed out, my proposed order may not work as a matter of logistics. On the other hand, I think it is important for the protection of the community and for increasing Mr McCarry’s prospects of rehabilitation that he proceed directly from gaol into a residential rehabilitation centre. We do not have information at this point of time about the availability of a bed in a rehabilitation centre. I am therefore prepared to adjourn the case to a date in August so that I can be informed about the availability of a bed. Hopefully it will be confirmed and I can finalise the case by fixing the sentence and the non‑parole period, and making it a condition that he proceed, on release on parole, straight to that bed in that facility.

16. So the formal orders which I make today are these.

1. I grant leave to the appellant to withdraw his appeals in respect of counts 1, 2, 3 and 5 in exhibit A.

2. I note that his Honour reduced the period of disqualification to 12 months. I am informed that the minimum available at the Court’s discretion is two years, and I direct that the disqualification period be reduced to two years.

3. I adjourn these proceedings to Friday 7 August 2015 before me at Parramatta at 10am.

4. I direct that a transcript of my judgment be taken out and made available to me and the parties on or before Monday 3 August 2015.

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Amendments

23 September 2015 - cover sheet amended - spelling of judge's name corrected

Decision last updated: 23 September 2015