R v Pearce

[2020] NSWDC 176

District Court

New South Wales

Medium Neutral Citation:	R v Pearce [2020] NSWDC 176
Hearing dates:	26 March 2020
Date of orders:	26 March 2020
Decision date:	26 March 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	1 Allow the appeal in each case 2 Confirm the indicative sentences identified by the magistrate as appropriate 3 Specify an aggregate term of imprisonment of 2 years to be served by way of ICO
Catchwords:	SENTENCING — Appeal against sentence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy [2013] HCA 37
Category:	Principal judgment
Parties:	Regina (Crown) Christopher Marni Pearce (Appellant)
Representation:	Michael Belcher (Crown) Jesse Sinclair (Appellant)   Director of Public Prosecutions (NSW) (Crown) Aboriginal Legal Service (Appellant)
File Number(s):	2019/000542420; 2019/00327784 & 2019/000521640
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 13 January 2020 Before: Prowse LCM File Number(s): 2019/000542420; 2019/00327784 & 2019/000521640

EX TEMPORE REVISED JUDGEMENT

INTRODUCTION

1. Christopher Pearce was born in mid-1994 and this year will turn 26 years of age. He is an indigenous man and from the history that he has given, not challenged in cross-examination after he gave his evidence in chief, he has experienced life through his formative years up to adulthood such that it attracts consideration of the principles expressed in Bugmy [2013] HCA 37 because of the disadvantage to which he has been subject.

2. This notwithstanding he has according to his evidence demonstrated some aptitude for school achieving Year 10 without doing better because of his failure to comply with course requirements it appears.

3. He has after school engaged upon studies through tertiary institutions in civil construction, agriculture, horticulture and is a qualified site surveyor he told me. I have no supporting material in respect of any of that but I will accept his evidence. He gave it in a forthright manner, it has not been the subject of challenge, and leads me to the view that he demonstrates some potential as a member of the community, consistent I might say with what the sentence assessment report has provided.

4. He is assessed at a medium risk of reoffending which, upon what I have before me, does not seem to be too far from the mark. He has effectively no antecedent record apart from the misconduct that has him before this Court.

THE OFFENCES AND LOCAL COURT PENALTIES

5. There are three offences, one on 19 January 2019 of driving in a police pursuit for which the maximum penalty is imprisonment for three years.

6. He was also charged with two other offences in that episode which according to the police fact sheet appear to have been an offence of driving unaccompanied as a learner driver and proceeding through a red traffic light.

7. For the other two offences he was fined and disqualified for I would expect the licensing offence, but for the pursuit when before the Magistrate for the first time he was given the benefit of the community corrections order for a period of 12 months. The Magistrate disqualified him for 15 months upon that conviction.

8. On 15 February 2019 he was engaged in another pursuit, he was also charged on this occasion with additional offences. I should add to what I have said so far that the other two offences from the events on 19 January 2019 are not the subject of appeal. The other offences on this occasion are again not complying with his learner licence conditions requiring a display of an L plate and being unaccompanied by an appropriate qualified person. He also had an offence of displaying misleading number plates on the motor vehicle.

9. He was fined for that offence, he was disqualified for the offence of driving unaccompanied, and in respect of that offence and for driving without an L plate display the Court applied s 10A Crimes (Sentencing Procedure) Act 1999.

10. An indicative sentence however was adopted for the pursuit of 12 months imprisonment and he was called up in respect of the community corrections order, which was revoked and an indicative sentence of 11 months was adopted for that offence.

11. On 20 September 2019 he was detected driving whilst disqualified and an indicative sentence for that offence was specified at seven months.

12. In the result the Magistrate imposed an aggregate sentence of imprisonment of 24 months from 12 January 2020, including a non-parole period of 16 months.

THE APPEAL FROM SENTENCE

13. The appeal is brought in the hope that the Court might entertain the imposition of an intensive corrections order in place of full-time custody. The Crown does not argue against that proposition bearing in mind the subjective case of which we heard and that this is the first time the appellant has been required to serve a sentence of imprisonment, at 26 years of age and 24 years of age at the time of the earlier offending, and notwithstanding the disadvantaged background that he suffered that he has been able to negotiate life without the criminal antecedents that one unfortunately comes to see accumulated by people who have had his difficulties.

14. His traffic record is another issue though; in 2011 he was fined and disqualified for driving with a middle range prescribed concentration of alcohol and being an unlicensed driver. It appears on the bail report and the traffic record that has been provided. He has no other offences upon his traffic record.

15. There is an entry on his traffic record in the proceedings determined on the 13 January 2020 in respect of the offence on 19 January 2019. It specifies that he was disqualified automatically for a period of five years. That has to be an error. The Magistrate disqualified him for a period of 15 months and there was no further order in respect of that when the matter was finally dealt with. Consequently, following the breach of the CCO extended to him by reason of the subsequent offending, I propose to make an order that the disqualification period for that offence is as the Magistrate specified, namely 15 months. There is no period specified for the subsequent offences. I will specify in each case periods of disqualification of 12 months; that is for the second police pursuit on 15 February 2019 and the drive whilst disqualified on 20 September 2019. In each case the disqualification period will be 12 months. Transport New South Wales now as it is known can calculate the commencement date in accordance with the regulations.

THE FACTS

16. The offending was serious and the line so called provided in s 5 Crimes (Sentencing Procedure) Act 1999 was crossed in my view.

17. At 11.45pm on 19 January 2019 the police saw the appellant driving a utility with Queensland registration. They activated their warning devices when they took a position behind that vehicle. Their intention was to have him stop for the purposes of a breath test. He continued on at a slow speed notwithstanding the activation of those warning devices. There was a large truck in front slowing for a red light at the intersection that all three vehicles were approaching. The appellant began to swerve. I note that the facts have the word serve; there is obviously a ‘w’ omitted.

18. He swerved on the road left and right and then crossed onto the incorrect side of the roadway through the red traffic light at the intersection. Police activated their warning devices and initiated a pursuit. The appellant turned left at an intersection then continued after not indicating that he was doing so on the incorrect side of the roadway into which he entered. This was the Newell Highway Moree bypass which was mostly divided by a concrete median strip. He was on the incorrect side of the roadway, there were a number of heavy vehicles approaching from the opposite direction, the appellant could not return to the correct side of the roadway because of the construction of the median strip, he was seen to continue and the police in the circumstances terminated the pursuit, sensibly, because of the imminent danger.

19. About 4pm on 29 January 2019 the police noticed the vehicle at an address in Moree. They spoke to the appellant, he made full admissions as to the driving and explained that he had panicked because he was a learner and then spoke about being only inches away from the trucks as he passed on the incorrect side of the roadway.

20. The next offence was on 15 February 2019 at 4pm when the appellant was seen by an off duty police officer driving the same utility. He was known to the officer who notified police who were on duty. Police caught up with the vehicle travelling at an estimated speed of 100 kilometres per hour. Police activated their warning lights; the appellant refused to stop and continued travelling prompting the police to activate their sirens. A pursuit was initiated, the appellant increased his speed on occasions to 130 kilometres per hour in the area with a limit of 100 kilometres per hour, but there was no other breach of the traffic rules in the course of this driving. He overtook one small rigid vehicle in the course of the pursuit which extended for some 25 kilometres to the vicinity of Warialda Police Station where the police terminated the pursuit aware that there was an active school zone ahead.

21. Inquiries ultimately led to the appellant. He again acknowledged his wrongdoing, he said he just did not think and did something stupid.

22. Then finally there is the drive whilst disqualified on 20 September 2019. In the early hours of Friday 20 September 2019 the police engaged in an hour long pursuit of a Holden Commodore, a different vehicle to the utility earlier described. The investigations that followed included access to closed circuit television footage from a service station. From those the appellant was identified driving the vehicle and at 1am on 28 September 2019 he was located. He made admissions about the driving of the motor vehicle. He denied any knowledge of the pursuit that occurred on that occasion, on 20 September 2019, but conceded that he should not have been driving where detected on the CCTV footage and was charged with that. One might be suspicious of the denial regarding the pursuit but that is not a matter before me.

THE APPELLANT

23. The sentence assessment report is positive. He lives with his mother. His mother and sister exhibit pro-social attitudes and support him. He remains on good terms with his former partner; together they have a child.

24. He is currently unemployed; he attributed his misbehaviour to a rough patch in his life and difficult circumstances. He otherwise agreed with the facts that were before him. He acknowledged the wrongfulness of what he did, but demonstrated limited insight; he was willing to undertake intervention, willing to undertake community service. He has never been supervised by community corrections in the past. He is assessed at a medium risk of reoffending and the supervision plan that is suggested is referral to the traffic offenders’ intervention program and engagement in modules relevant to his criminogenic factors. There was available to him 21 hours of work per month.

CONSIDERATION

25. I compliment Mr Sinclair on the quality of his submissions and the Crown for the fairness in the approach taken in the matter. I agree that this is a case where I should intervene and allow him to serve this sentence by way of an intensive corrections order in the community.

26. I do not propose to reduce the period though; my orders are that the appellant serve the aggregate sentence of imprisonment by way of an intensive corrections order in the community.

27. I have had regard to the relevant provisions in the Crimes (Sentencing Procedure) Act including the need for an assessment report which I have before me with the information I should know for the purposes of the determination.

28. I am aware that community safety is the paramount consideration when deciding whether to make an intensive corrections order as required by s 66 of the Act and I have assessed that to serve the sentence by way of an intensive corrections order is more likely to address the offender’s medium risk of reoffending.

29. I shall note that he has already served a period of imprisonment from 12 January 2020 until the determination of this appeal. He was not extended bail in the period after the determination by the Magistrate. However, taking into account that period, I am satisfied that a sentence of imprisonment of two years is appropriate to be served by way of an intensive corrections order commencing today.

DECISION

30. I allow the appeals; I confirm the indicative sentences subject to what I said previously about disqualifications. I confirm the periods of disqualification of 15 months imposed by the Magistrate in respect of the first of the police pursuit offences and the periods of 12 months for each of the subsequent offences to which they apply namely the second pursuit offence and the driving whilst disqualified. [1]

    1. This was subsequently corrected in further orders on 27 March 2020 added at the end of this judgement.

31. I specify an aggregate sentence of imprisonment of 2 years but allowing the appeal, I order that the sentence is to be served by way of intensive corrections in the community.

32. The standard conditions shall apply they are that he must not commit any offence, he must submit to the supervision of community corrections. He must complete the traffic offenders’ intervention program that is available to him in the venue nearest to where he is presently residing. He is to perform community service. I specify 80 hours to be served at the rate identified as appropriate by those responsible for his supervision.

33. I note in the sentence assessment report that an additional requirement that as a condition as part of the supervision that he engage with practice guide intervention modules relevant to his criminogenic factors, I shall require that as part of the rehabilitation program including the referral to the traffic offender’s intervention program in accordance with s 73A (2)(e) Crimes (Sentencing Procedure)Act.

ADDENDUM

34. Subsequent to the conclusion of this matter I was asked to re-list the matter on 27 March 2020 to address an error in the specification of the disqualification periods. It was my intention to confirm the orders of the Magistrate imposing the disqualification periods.

35. In the material provided from the Local Court there was on the face of the documents confusion as to the orders made and to which of the offences the periods specified attached. With the assistance of the parties I identified the offences to which periods of disqualification were to be applied. I thereupon made the following orders:

1. Re-mentioned today to address the issue of the disqualification periods.

2. Confirm the disqualification periods ordered at first instance on 08 April 2019 by the magistrate of 15 months, in each case for each of the police pursuit offences.

3. For the offence for drive whilst disqualified I order a disqualification period of 12 months.

4. Transport for New South Wales to calculate the commencement date in accordance with the regulations.

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Endnote

Decision last updated: 07 May 2020