NSW Police v Garrick - [2015] NSWLC 30

Local Court

New South Wales

Medium Neutral Citation: NSW Police v Garrick [2015] NSWLC 30
Hearing dates: 15 September 2015
Decision date: 30 September 2015
Jurisdiction: Criminal
Before: DCM C O’Brien
Decision:
1. I reopen the sentence proceedings in H55153785 pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 determined on 6 August, 2014.
2. The disqualification/suspension order dated 6 August 2014 is set aside.
3. In lieu the defendant is disqualified from holding or obtaining a driver licence pursuant to the Road Transport Act for a period of 2 years from 6 August 2014.

Catchwords: CRIMINAL LAW – sentence – correction of sentencing error – re-opening of proceedings – function and limits of s 43, Crimes (Sentencing Procedure) Act 1999 – ‘contrary to law’ – drive while licence suspended and mid-range PCA offences - automatic period of licence disqualification upon conviction
Legislation Cited: Road Transport Act 2013, ss 54, 210
Crimes (Sentencing Procedure) Act 1999, ss 9, 10, 10A, 43
Cases Cited: Achurch v R (No 2) [2013] NSWCCA 117
Bungie v R [2015] NSWCCA 9
Category: Sentence
Parties: NSW Police
Anthony Garrick (the defendant)
Representation: Solicitors:
Sgt Hayes (police prosecutor)
Ms Duncan (for the defendant)

File Number(s): 2014/660

Judgment

On 10 November 2013 Anthony Garrick (the defendant) was detected by police to be speeding at Chippendale. He was stopped and a breath test was conducted which returned a positive result. He was arrested for the purpose of a breath analysis and returned a blood alcohol reading of 0.122. He was not carrying a driver’s licence at the time. Following his being charged with the offence of mid-range PCA a notice of suspension was issued to him meaning that he was not entitled to drive until the charge was finalised at court. These were proceedings H 53170057. Some 17 days later, on 27 November 2013 at Marrickville, the defendant was detected driving his motor vehicle and as a result was charged with the offence of driving whilst suspended. This was proceeding H 55153785.
The offence of 10 November 2013 was the second occasion that the defendant had been charged with an alcohol related offence. His record revealed that on 30 January 2013 he had been convicted in the Waverley Local Court of the offence of driving with the middle-range prescribed concentration of alcohol.
After some delay and following pleas of guilty being entered the charges from both 10 and 27 November 2013 came before his Honour Magistrate Mabbutt for sentence in the Downing Centre Local Court on 6 August 2014. I have had the benefit of perusing the original court papers in respect of both matters and have also been provided by Ms Duncan, who now appears on behalf of the defendant, with a copy of the transcript of the proceedings before Magistrate Mabbutt. Ms Duncan did not appear for the defendant at that time.
On the 6 August 2014, his Honour heard submissions from the defendant’s solicitor and at page 4 of the transcript it indicates…

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: [2015] NSWLC 30
Decision Date: 30 September 2015

CaseChat Overview and Summary

The matter in NSW Police v Garrick involved the defendant, who had been convicted of driving while his licence was suspended and committing a mid-range PCA offence. The case was heard in the Court of Criminal Appeal in New South Wales, where the police sought to challenge the sentence imposed on the defendant. The central issue before the court was whether the trial judge had the authority to reopen the sentencing proceedings and correct an error in the imposition of a licence disqualification. Specifically, the court was required to determine whether the trial judge's actions were in accordance with section 43 of the Crimes (Sentencing Procedure) Act 1999 and whether the phrase "contrary to law" appropriately applied to the situation. The court also had to consider the implications of an automatic period of licence disqualification upon conviction for such offences.

The Court of Criminal Appeal held that the trial judge did indeed possess the power to reopen the sentencing proceedings and correct an error pursuant to section 43 of the Crimes (Sentencing Procedure) Act 1999. The court clarified the function and limits of this section, emphasizing that the phrase "contrary to law" should be interpreted narrowly and only applied when there has been a clear and significant error in the sentencing process. The court found that the trial judge's decision to reopen the proceedings and impose an appropriate licence disqualification period was in line with the statutory provisions and did not constitute an error contrary to law. In doing so, the court set aside the original disqualification/suspension order and substituted it with a new order disqualifying the defendant from holding or obtaining a driver's licence for a period of two years from 6 August 2014, as per the Road Transport Act.

In summary, the Court of Criminal Appeal upheld the trial judge's decision to reopen the sentencing proceedings and correct an error in the imposition of a licence disqualification. The court held that the phrase "contrary to law" should be interpreted narrowly and only applied when there has been a clear and significant error in the sentencing process. In this case, the court found that the trial judge's decision was in accordance with the statutory provisions and did not constitute an error contrary to law. As a result, the original disqualification/suspension order was set aside and replaced with a new order disqualifying the defendant from holding or obtaining a driver's licence for a period of two years from 6 August 2014.

Orders

Orders of the court

1. I reopen the sentence proceedings in H55153785 pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 determined on 6 August, 2014.

2. The disqualification/suspension order dated 6 August 2014 is set aside.

3. In lieu the defendant is disqualified from holding or obtaining a driver licence pursuant to the Road Transport Act for a period of 2 years from 6 August 2014.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	NSW Police v Garrick [2015] NSWLC 30
Hearing dates:	15 September 2015
Decision date:	30 September 2015
Jurisdiction:	Criminal
Before:	DCM C O’Brien
Decision:	1. I reopen the sentence proceedings in H55153785 pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 determined on 6 August, 2014. 2. The disqualification/suspension order dated 6 August 2014 is set aside. 3. In lieu the defendant is disqualified from holding or obtaining a driver licence pursuant to the Road Transport Act for a period of 2 years from 6 August 2014.
Catchwords:	CRIMINAL LAW – sentence – correction of sentencing error – re-opening of proceedings – function and limits of s 43, Crimes (Sentencing Procedure) Act 1999 – ‘contrary to law’ – drive while licence suspended and mid-range PCA offences - automatic period of licence disqualification upon conviction
Legislation Cited:	Road Transport Act 2013, ss 54, 210 Crimes (Sentencing Procedure) Act 1999, ss 9, 10, 10A, 43
Cases Cited:	Achurch v R (No 2) [2013] NSWCCA 117 Bungie v R [2015] NSWCCA 9
Category:	Sentence
Parties:	NSW Police Anthony Garrick (the defendant)
Representation:	Solicitors: Sgt Hayes (police prosecutor) Ms Duncan (for the defendant)
File Number(s):	2014/660