R v Issa

[2023] NSWDC 333

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Issa [2023] NSWDC 333

Hearing dates:

4 August 2023

Date of orders:

4 August 2023

Decision date:

04 August 2023

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

(1) Sentence Appeal is dismissed; and

(2) Orders made in the Local Court on 19 June 2023 are varied:

(i) Order for license disqualification commences 4 August 2023 and concludes on 2 May 2024.

Catchwords:

CRIME – Sentence Appeal – Child offender – Statutory Interpretation – Whether s 210 Criminal Procedure Act confers jurisdiction on Local Court to hear and determine a traffic offence despite s 28(2) Children (Criminal Proceedings) Act – Drive recklessly, furiously or speed in a manner dangerous

Legislation Cited:

Children(CriminalProceedings)Act 1987 (NSW), s 28

Criminal Procedure Act1986 (NSW), s 210

Road Transport Act 2013 (NSW), s 117(3)

Category:

Principal judgment

Parties:

Jason Richard Issa (Applicant/Offender)
Rex (Respondent/Crown)

Representation:

Counsel:
Mr Khouzame (Applicant/Offender)
Ms Brown (Respondent/Crown)

Solicitors:
Senses Legal (Applicant/Offender)
Office of the Director of Public Prosecutions (Respondent/Crown)

File Number(s):

2023/00104495

Judgment EX TEMPORE

1. In the matter of the Crown and Jason Issa. The offender was born in March 2005. He is presently 18 years of age. His representative today, Mr Khouzame, it would be appropriate to respectfully say, has tirelessly made every available argument on his behalf. The focus of which being the appropriate professional concession that the sentence imposed from if the offender were to be dealt with as an adult is in the lenient end of the appropriate range. And that the crux of his application is that he would seek that the offender be dealt with without the registration of a conviction for this serious offence.

2. The offence is under s 117(2) of the Road Transport Act 2013 (NSW), drive recklessly, furiously or speed in a manner dangerous. It is the offender’s first such offence. It occurred on 27 March 2023 at Orchard Hills when the offender was nearing his 18th birthday. He was still 17 years of age. He was originally sentenced, having, at the earliest opportunity, entered a plea of guilty in the Penrith Local Court on 19 June 2023. He is entitled to a discount of 25% on the sentence which might otherwise have been imposed.

3. The maximum penalty was 9 months imprisonment and/or a fine of $2,200 with an automatic licence disqualification of 3 years or 12 months minimum. That is the maximum penalty should the offender be dealt with as an adult. Other penalties are available under the Children (Criminal Proceedings) Act 1987 (NSW) were he to be dealt with as a child. I will return to that. The actual penalty imposed was a fine of $1,000 and the minimum disqualification period of 1 year.

4. The facts are that as a CP1 driver, that is, the most inexperienced licensed qualification for driving on the public roads of our state, putting aside of course, a learner’s permit to drive, at 12.41am on 27 March of this year, on the M4 freeway with a speed limit of 110 kilometres an hour and a licensed speed maximum limit of 90 kilometres an hour for him; he in fact drove a Mercedes motor vehicle at 207 kilometres an hour. It is that speed for which he was breached. There are no other complicating circumstances of recklessness but for speeding. It is to be accepted on those facts that the speed was only for the duration which it took for the vehicle to come to such an extremely high speed when he was detected by police Lidar radar instrument.

5. It is to be accepted that a Mercedes motor vehicle is generally regarded as a safe vehicle in that the manufacturer has a world reputation for manufacturing vehicles which are regarded as being safe on the road. There were no complicating factors such as an animal walking on the road, some debris on the road, something that had blown off a truck on the road, for instance. He was observed to have passed one vehicle, that is not on the facts beyond reasonable doubt to have occurred whilst he was travelling at the extreme speed of 207 kilometres an hour. Traffic was light.

6. The offending has all the hallmarks of a young man in a powerful, fast car, being impulsive in that he has been tempted by the thrill of speed and doing so when traffic was light at 12.41am on a major highway where he would expect all of those risks I just mentioned to be less likely to occur. He would expect properly that, more likely than not, the surface of the road would be very good. He would expect, more likely than not, that the traffic, as he saw it, would be light. And all of these considerations are to be balanced with his level of experience as a CP1 driver, the extreme speed of 207 kilometres an hour, reaction times, ability to control the vehicle in the event that any of the many unlikely scenarios did occur which might have caused him some difficulty in control of the vehicle.

7. It is conceded, responsibly by his representative Mr Khouzame, that had there been a loss of control the result would have been catastrophic. I agree. The risk may have been low, that is the risk of crashing at that speed, but the consequence would be catastrophic and not just for the offender as the driver, but catastrophic for the first responders who would have to attend to him should he have survived it and if he had not. Catastrophic for any vehicle that unfortunately did happen to be on that road.

8. I offered to Mr Khouzame that I considered it to be perhaps unlikely that a vehicle travelling at that speed and losing control at that speed would even have been retained from oncoming traffic by the median strip, but I say that as a general observation. I give it no weight whatsoever in my consideration because I do not know it scientifically to have been tested.

9. The fact is, the penalty, if the offender is treated as an adult was, as Mr Khouzame conceded, well within the lenient range and the possibility of catastrophic consequence is not disputed. Another fact not disputed is that the offender is a person of excellent character. He has no antecedent history including of traffic offences. He is a contributor to the community. He is the son of a truck driver and of, generally regarded, a good family. In all of these regards he is deserving of the closest consideration in sentencing as an excellent young adult who was a child at the time of offending. And so far as the consideration for penalty is concerned in the synthesis of sentencing, a person of excellent opportunity of rehabilitation.

10. He is deserved of individualised sentencing. From the experience which he has already had in regard to this matter with police and through the Court process and, as recounted in the many references including his own letter; I accept that he is highly remorseful. In particular, I note that he has completed the Traffic Offenders course successfully. He appreciates the possible consequences of this driving.

11. I accept that there is a low risk of him reoffending, having had all of that experience. And at the end of all of that, if he is to be sentenced as an adult, I would consider the sentence appealed from to be in the lenient range of appropriate sentencing. And I again acknowledge that his argument is put forward in the appeal accepting that the sentence of him as an adult is lenient.

12. I then come to what was the real course of Mr Khouzame’s excellently prepared argument. Having drawn my attention, firstly, to the section of the offence, s 117(2) of the Road Traffic Act 2013, he took me to the Children (Criminal Proceedings) Act 1987 s 28. Section 28 prescribes the jurisdiction of the Children’s Court to hear and to determine proceedings in respect of an offence, whether indictable or otherwise, other than a serious Children’s indictable offence and committal proceedings in respect of an indictable offence, including a serious Children’s indictable offence, if the offence is alleged to have been committed by a person who is a child.

13. Section 28(2) provides that, notwithstanding s 28(1), the Children’s Court does not have jurisdiction to hear or determine the proceedings in respect of a traffic offence that is alleged to have been committed by the child, unless either of the two exceptions apply. Neither of which provisions apply here. That is conceded in the appellant’s submission.

14. I was then taken to s 210 of the Criminal Procedure Act 1986 (NSW). That provision provides that the Local Court – and I have all of the powers and functions of the Local Court in this appeal – has a discretion to deal with a child, that is a person who is a child at the time of the offending – who has been found guilty of a traffic offence in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987. Section 210(2) provides that in so dealing with a child the Local Court has and may exercise the functions of the Children’s Court under that division, “as if the Local Court were the Children’s Court and the offence were an offence to which the division applies.”

15. Mr Khouzame, in a well-developed argument, submitted that s 210 provided this Court with power to deal with the offender as a child, despite s 28(2) of the Children (Criminal Proceedings) Act 1987 stating that the Children’s Court did not have or does not have jurisdiction to hear and determine the proceedings in respect of this traffic offence.

16. It is my opinion as a matter of statutory construction, the words, “as if the Local Court were the Children’s Court” are a deliberate statutory proviso. The condition under which this Court would have the power to sentence in this present case under s 210 is conditional upon the Children’s Court having had jurisdiction.

17. That is the meaning and subject of that first cause just quoted from s 210. Following the conjunctive “and” that the offence be an offence to which Division 4 of Part 3 of the Children (Criminal Proceeding) Act 1987 is not a clause qualifying or adding to the primary clause. The words following “and” are the subservient clause. This means, as a matter of grammar, that s 210(2) does not provide that the Local Court may deal with this offence, other than in accordance with the jurisdiction of the Children’s Court. I repeat, the Children’s Court would not have jurisdiction to deal with this offence because of s 28(2) of the Children (Criminal Proceedings) Act 1987.

18. In fact, in my opinion, the reading of the separate legislation of the Children (Criminal Proceedings) Act 1987 s 28 with the Criminal Procedure Act 1986 is deliberate. It has been expressed in the way in which I have interpreted it to meet a parliamentary purpose that the Local Court has powers to sentence children in accordance with the powers of the Children’s Court to do so, but expressly not to extend that jurisdiction in relation to this matter.

19. If I be wrong in that, I return to the word “may” in s 210(1) and the words “in so dealing with a child” in s 210(2). I do not understand the proposition to be contested, but in any event, it is my opinion as a matter of statutory interpretation, that this Court acting as the Local Court would, if this Court had jurisdiction to deal with the offender as a child, then have to determine according to the exercise of discretion as to whether or not to do so. It is my view that in the circumstances of the present offending it is not appropriate to deal with the offender as a child, even if that option were statutorily available to me as a matter of jurisdiction. I have determined that it is not.

20. I return to the considerations I voiced of the age, of the remorse, of the discount on plea, of the excellent family, of the excellent character, of the low risk of re-offending, and excellent prospects of rehabilitation. I return also to my evaluation of the facts of the offending. After acknowledging the importance of individual sentencing, particularly in regard to children, and acknowledging that in relation to this offender, specific deterrence may not have a lot to do given the experience he has already had with the police and court process, no doubt what he has been told by his father from his experience as a truck driver; even if I accept on the basis of those things that specific deterrence is not a heavily weighted factor in the synthesis of sentencing, I am left with the significant concern as to the sentence properly representing denunciation of the offence itself and general deterrence.

21. The fact that the offender was a child at the time of the offending, and I of course observe almost an adult, cuts both ways. The inexperience of drivers of his age is a relevant factor exacerbating concern for risk and the protection of the community. It is an exacerbating factor concerning denunciation of the offending. In my opinion, the principle of sentencing of general deterrence in relation to a traffic offence in the circumstances of the present offending, is a very significant one. It may be that the sentence including the recording of a criminal conviction for a young person for this offending is not of great deterrence for older drivers. At least I understood that Mr Khouzame may be making that submission. I said it may be because I am not sure that I agree with it.

22. But what I am firmly of the view of is that as soon as the offender was licensed he was subject to the laws of driving in this state. I am of the view that the catastrophe of the result of loss of control of that vehicle at that time would be no less because he was youthful. It would make no difference if the driver were 40, 50 or 60 years of age, the catastrophe for the driver or other occupants of a car, for the first responders, if there be other users of the road for them, not to mention all the loved ones involved, would be huge. General deterrence is a very significant consideration for offences of this type.

23. For all of these reasons, I make the following orders:

1. Sentence Appeal is dismissed; and

2. Orders made in the Local Court on 19 June 2023 are varied:

1. Order for license disqualification commences 4 August 2023 and concludes on 2 May 2024.

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Amendments

23 August 2023 - Amended to comply with Identity Theft and Anonymisation Policy.

23 August 2023 - Amended [14] for typographical error.

Decision last updated: 23 August 2023