R v Thomas Joseph

[2006] NSWDC 191

CITATION:	R v Thomas Joseph [2006] NSWDC 191
HEARING DATE(S):	11th June 2006
EX TEMPORE JUDGMENT DATE:	06/11/2006
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Severity appeal upheld. Convictions confirmed. Periods of disqualification confirmed. Drive Whilst Disqualified (11/12/04) 9 months non parole period to date from 4/2/06 to 3/11/06; balance of term 6 months to expire 3/5/07. Drive Whilst Disqualified 28/1/06 and assault (4/2/06) 9 months non parole period to date from 4/11/06 expire 3/8/07; balance of term 11months to expire 3/7/08. Supervised parole; attend Pacific Islander Program. [para 16].
CATCHWORDS:	Criminal Law - Severity Appeal from Local Court - Drive Whilst Disqualified (x2) - assault occasion actual bodily harm - road rage - driver's licence - nature of - poor driving record aggravating feature - plea of guilty taken into account.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1989
PARTIES:	Regina Thomas Joseph
FILE NUMBER(S):	06/22/0289

JUDGMENT

1 HIS HONOUR: Thomas Joseph appeals against sentences imposed upon him at the Parramatta Local Court for four offences. Two of those offences occurred on 28 January 2006, one occurred on 4 February 2006 and the final offence occurred two years ago, on 11 December 2004. Of the two offences that occurred in January this year, one was driving whilst disqualified and the other was an offence of assault occasioning actual bodily harm in circumstances as will soon be seeing of what he has identified correctly, as road rage.

2 The offence on 4 February 2006 was an offence of driving whilst disqualified. The offence on 11 December 2004 was an offence of driving whilst disqualified. It was in fact the fifteenth occasion to that point in time, if my counting is correct, that he had driven whilst disqualified. The two subsequent offences now bring up to seventeen the occasions that he has driven whilst disqualified.

3 The Probation and Parole Service reports that the appellant is having difficulty understanding why it should be so that his driving whilst disqualified is something that can land him in gaol. Let me see if I can make it clear. There is no inherent right to drive on public roads. The roads do not belong to him, they belong to the government of New South Wales, or in some cases the federal government. It is the government who repairs them, makes them, marks them and who maintains them. And it is a matter for the government who will be allowed to drive on their roads.

4 The government licences those people who are allowed to drive upon its public roads. The dictionary definition of licence includes “to permit”, “to allow”. The driving licence that one is given is always conditional upon obeying the rules of the road, so that when a licensed driver sees a sign saying 60 KPH, it is a condition his/her licence, that he obey that sign. Another condition of an issued licence is that the license driver will not drive when he/she has more alcohol in him/her than is allowed.

5 The government who makes the roads, maintains the roads and permits others to drive upon the roads, has an obligation to ensure that all licensed drivers can move on the roads safely. If a driver is driving on those roads with more than the prescribed concentration of alcohol or at a speed greater than he should be driving, then that driver puts in danger those others who are allowed on the government’s roads.

6 Those roads that the appellant is driving on are not his roads but the government’s roads. The government has an obligation to ensure that people who drive on its roads are safe drivers. It does that by putting conditions on the licence. From time to time the government [prosecution] will approach the Court arguing that because of the way in which a person has been driving, that person is no longer entitled to drive upon our roads. It asks the Court to make an order disqualifying the driver.

7 The Court’s first recourse is to make the order to the person who stands before the Court for sentence. If that person sticks his finger up in the air and says, “Well I am not going to listen to that order,” the Court looks to the man in the uniform over on the side who works with Corrective Services and says:

“We tried to make an order for this man and he wouldn’t listen to us, so we are making an order now for you to keep him in custody for a period of time because he will not listen to us.”

8 The police are charged with making sure that people who do not have a licence or permission to drive do not drive. They do that firstly when they speak to people and see them driving in the incorrect way. They ask to see their licence.

9 But secondly, from time to time if they see a driver who for some reason attracts their attention, they will feed the registration number of his car into their computers to find out whether that man has any record, or the owner of that vehicle has any record. That happened in this case.

10 The appellant before me was pulled up on 4 February as a result of a computer check before the police had even spoken to him. I mention that because many drivers who are not allowed to drive think they will not be detected if jump into their cars and drive, not knowing that the police are always checking to see if the cars that are going past them have drivers that are authorised to drive.

11 To say to anybody “I’m entitled to drive whether I'm licenced or not” is a nonsense. You do not pay for the roads, you do not maintain the roads, you do not set conditions for other people on the roads. That is all done by the government, so it is the government regulations that determine who can and who can not drive upon its roads.

12 I can assure you that every time you come back to this Court or any other court, having driven whilst you are disqualified, given your record of seventeen occasions when you failed to obey the order of the Court, the Court will look to Corrective Services to ensure that you stay off the road for a period of time. It is likely to be longer than the periods I am currently setting. If you like gaol, you continue to drive. If you do not like gaol, the message is simple. Do not drive anymore.

13 The maximum penalty that has been imposed upon the appellant can only be reserved for the worst category of cases. It is true that an aggravating feature of the appellant’s driving is his terrible record in the past. Section 21A makes the point that a record can aggravate an offence, and indeed it does in this occasion. But if one is to look at the objective criminality of the offence otherwise, there is nothing about the manner of his driving on either of these two occasions, that is the occasion in January and the occasion in February, which suggests that it was a driving which required a maximum penalty.

14 The driving on 28 January has the second aggravating feature which is that the offender was impatient with the driver in front of him. Anybody who has driven through Newtown knows it is not an easy place to get through. His impatience was such that ultimately he alighted from his car to assault the driver of the car in front of him. That, of course is separate charge. The second aspect of the maximum penalties is the Court below does not appear to me to have recognised and given any credit for the pleas of guilty. It seems to me that these pleas of guilty were early entered and had a utilitarian value. Some acknowledgement should have been given for that.

15 Twenty months imprisonment with a nine month non-parole period for the January and February offences. In respect of the suspended sentence of two years, the criminality involved in that offence is not nearly as great as it is in the three that I am dealing with, and I intend to reduce that penalty to one of fifteen months with a nine month non-parole period.

16 The fifteen month sentence for the first offence is the one that I will impose first, and that is to date from 4 February, so nine months from 4 February 2006 to 3 November 2006 with the balance of term of six months to 3 May 2007. In respect of the January and February offences of this year, twenty months to date from 4 November, a non-parole period of nine months to expire on 3 August 2007. I find special circumstances and I make a balance of term of eleven months to expire on 3 July 2008. I order the release of the appellant on 3 August 2007 pursuant to s51 of the Crimes (Sentencing Procedure) Act. I require the appellant as a condition of his parole to be supervised by probation and parole. I require him to attend the Pacific Islander Program for the duration, which I understand is an intensive four month program. Convictions recorded by learned magistrate confirmed. Period of disqualification confirmed. In the event that that program no longer exists, the matter can be re-listed before me at 2 o’clock.

HIS HONOUR: I ordered his release on 3 August next year. .

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