NSW Police v Pipe - [2015] NSWLC 20

Local Court

New South Wales

Medium Neutral Citation: NSW Police v Pipe [2015] NSWLC 20
Hearing dates: 30 July 2015
Decision date: 25 September 2015
Jurisdiction: Criminal
Before: Magistrate R Clisdell
Decision:
Sentence

Catchwords: CRIMINAL LAW – high range PCA – drive while suspended – application of guideline judgment -
2 offences within 24 hours - danger to public - prior good character - excellent traffic record - serious alcohol abuse – rehabilitation - general deterrence - custodial sentence required - consideration of ICOs and suspended sentences as alternatives to full-time imprisonment - full-time imprisonment imposed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 7, 9, 12, 67
Cases Cited: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303
R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
R v Zamagias [2002] NSWCCA 17
Whelan, Heath Andrew v R [2012] NSWCCA 147
Category: Sentence
Parties: NSW Police
Tony Jason Pipe (offender)
Representation: Solicitors:
Sgt Patterson (for the Police)
Mr P Blunt (for the offender)

File Number(s): 2015/72009
Publication restriction: Nil

Judgment

On 9 and 10 March 2015, Tony Pipe was arrested by Police for High Range PCA offences. On the second occasion he was also driving whilst suspended, having been suspended the day before.
His reading at 18:55 on 9 March was 0.387. At 16:33 on 10 March he recorded a blood alcohol concentration of 0.361.

Facts

On both occasions his manner of driving brought him under notice.
The first offence occurred around 17:15 on 9 March. An off duty police officer noticed a vehicle stationery in the middle of an intersection at Winmalee for some time. It appeared the driver was having difficulty in starting his red utility. Traffic was banking up so the police officer walked over to assist the driver with what appeared to be a mechanical problem.
Immediately the officer smelt intoxicating liquor. He saw the driver continue to attempt to start the vehicle by turning the key, but his movements lacked co-ordination and his speech was incoherent. Finally the driver started the vehicle but stalled it as the ute moved forward. The police officer jumped out of the way, then reached into the vehicle and removed the keys from the ignition.
Mr Pipe was told to get out of the vehicle but either refused to do so or was unable to do so. He was then physically removed through the passenger door where he fell onto the ground as a result of his intoxication. He was handcuffed and assisted to the side of the road as he was unable to stand up or walk.
The intersection where the incident took place has both high pedestrian and vehicle traffic, located in close proximity to shops and a school. Traffic was heavy at 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.

Continue reading NSW Police v Pipe

Details

AGLC: NSW Police v Pipe [2015] NSWLC 20
Case: [2015] NSWLC 20
Decision Date: 25 September 2015

CaseChat Overview and Summary

In the case of New South Wales Police v Pipe, the defendant was convicted of driving while his license was suspended. The matter was heard in the relevant court, which imposed a sentence on the defendant. The court had to determine the appropriate penalty for the defendant's actions, considering the circumstances of the case, including the defendant's prior good character, excellent traffic record, and serious alcohol abuse. The court also had to consider whether the defendant posed a danger to the public and if a custodial sentence was necessary for general deterrence.

The primary legal issues the court addressed were the application of the guideline judgment in similar cases, the fact that the defendant committed two offences within a 24-hour period, and the consideration of alternative sentences such as Intensive Corrections Orders (ICOs) and suspended sentences. The court had to weigh these factors against the defendant's prior good character and excellent traffic record, as well as his serious alcohol abuse and the potential for rehabilitation.

In reaching its decision, the court considered the principles of general deterrence and the need to protect the public. The court determined that a custodial sentence was necessary, as the defendant's actions demonstrated a disregard for the law and posed a danger to the public. The court also took into account the defendant's prior good character, excellent traffic record, and serious alcohol abuse in its decision. Ultimately, the court decided that full-time imprisonment was the most appropriate sentence for the defendant, considering all the circumstances of the case.

The court ordered that the defendant, Pipe, be sentenced to a period of full-time imprisonment, reflecting the seriousness of his actions and the need for general deterrence. The court also noted that alternative sentences, such as ICOs and suspended sentences, were considered but ultimately deemed unsuitable in this case.

Orders

Orders of the court

Sentence

Background

Background to the litigation

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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 Pipe [2015] NSWLC 20
Hearing dates:	30 July 2015
Decision date:	25 September 2015
Jurisdiction:	Criminal
Before:	Magistrate R Clisdell
Decision:	Sentence
Catchwords:	CRIMINAL LAW – high range PCA – drive while suspended – application of guideline judgment - 2 offences within 24 hours - danger to public - prior good character - excellent traffic record - serious alcohol abuse – rehabilitation - general deterrence - custodial sentence required - consideration of ICOs and suspended sentences as alternatives to full-time imprisonment - full-time imprisonment imposed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3A, 7, 9, 12, 67
Cases Cited:	Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303 R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 R v Zamagias [2002] NSWCCA 17 Whelan, Heath Andrew v R [2012] NSWCCA 147
Category:	Sentence
Parties:	NSW Police Tony Jason Pipe (offender)
Representation:	Solicitors: Sgt Patterson (for the Police) Mr P Blunt (for the offender)
File Number(s):	2015/72009
Publication restriction:	Nil