Regina v Trevor John Wilkins

[2007] NSWDC 360

CITATION:	Regina v Trevor John Wilkins [2007] NSWDC 360
JUDGMENT DATE:	28 September 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Sentenced to 7 months imprisonment with a non-parole period of 2 months.
CATCHWORDS:	Criminal law - Sentence appeal - Drive under the influence of alcohol or other drug - Bad record for drink driving offences - Protection of the community - Special circumstances
LEGISLATION CITED:	s12(1)(a) Road Transport (Safety and Traffic Management) Act 1999 s51(1AA) Crimes (Sentencing Procedure) Act 1999
PARTIES:	Regina Trevor John Wilkins
FILE NUMBER(S):	07/52/0378
COUNSEL:	Mr McCallum for the appellant
SOLICITORS:	Ms Mudge for the NSW DPP

SENTENCE

1. I am sentencing a man with a poor driving record for offences of driving under the influence of alcohol. I am sentencing him for yet another offence of driving under the influence of alcohol. The case comes before me because it is an appeal.

2. Trevor John Wilkins was convicted after a hearing in the Local Court at Inverell on 13 August 2007. He had been charged with a number of driving offences, one of which was driving under the influence of alcohol on a road. That is an offence contrary to s 12(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999. He was unsuccessful in defending the prosecution and the learned magistrate convicted him.

3. He was then sentenced to a term of imprisonment of 9 months with a non-parole period of 6 months. He was disqualified for holding a licence for the statutory period of 3 years. Mr McCallum, who appears before me for Mr Wilkins on this appeal, asks for either a suspended sentence or a reduced non-parole period.

4. In considering whether to accede to that submission, it is relevant to refer to some of the evidence. Two pieces of evidence are of significance. The first is Mr Wilkins' driving record, and the second are some character references.

5. Turning to the driving record first, there was some confusion about the record and indeed, there still is, but the evidence before me demonstrates, I am satisfied, the following. Mr Wilkins has been convicted a number of times in Queensland of driving under the influence of liquor. His earliest convictions for that offence were in the 1980s. His most recent conviction for that offence in Queensland was on 7 December 2005 when he recorded a reading of .153 which, in New South Wales, would be a high range prescribed concentration of alcohol in the blood.

6. Before then, the most recent and most significant offence was driving under the influence of liquor in 1993. It is clear, in my opinion, that Mr Wilkins has a poor record for drink driving. In fact, it is worse than poor, it is a bad record for drink driving. It means that it is important for me to take into account so far as the protection of the community is concerned, the need to stop Mr Wilkins from driving in those circumstances.

7. The second aspect of the evidence which is of significance, as I have said, are the character references. He is obviously well regarded by people in the community. In particular, he has been helping people on properties in the country. It appears to me that he has been doing this for his board and lodging without charge. One person whom he helped, describes him as:

“ Helping around the property, repairing machinery, and performing a myriad of farming tasks. He has worked on the tractor for 14 or 15 hours a day. He has maintained the only source of water on this particular property .”

This referee, a Mr Justin Sutton, said the following:

“ Trevor has been at our beck and call for 4 to 5 years now, and never, not once, did he ask for anything in return - but a feed and a bed!”

The reference further went on to say that Mr Wilkins had had never once let them down and has been indispensable and an integral part of that particular farming family. They said they owe him a great deal. He is described as an honest and loyal customer of a business. He has been looking after his mother's property since his late father died and has also been helping on a property at Tenterfield.

8. What happened in this case which I am sentencing Mr Wilkins for briefly, is this, he was driving a car on the Brunxton Highway at Bonshaw. He was seen to run off the road. I am satisfied that that was caused by a tyre blow out. He was seen by a local grazier who helped him, but who, in the course of helping him noticed that Mr Wilkins was obviously affected by alcohol. Mr Wilkins insisted on getting back behind the wheel. The local grazier followed him. Mr Wilkins was driving with the flat tyre. Sparks from the rim caused a fire to occur in Mr Wilkins' car which forced him to stop.

9. I will make these observations about that driving. First, it was irresponsible. The evidence is clearly consistent with him being affected by alcohol. I should add that he did not co-operate with a breath test and blood was not able to be taken at that point because of the unavailability of facilities.

10. The second observation is, to adopt a submission made by his counsel, Mr McCallum, that perhaps by good fortune the two incidents which occurred were not brought about by poor driving caused by the alcohol. They were brought about by poor driving caused by bad judgment, but not by the alcohol.

11. Mr Wilkins acknowledges that he has served some period of imprisonment in the past. The extent of his driving record was the subject of an application by the respondent prosecutor to reopen her case. Ms Mudge, who appears for the prosecutor, discovered during the course of submissions that the traffic record before the learned magistrate was different to the one before me. The one before the learned magistrate was worse. It explains what had puzzled me, namely, such a significant sentence for a person with what appeared to be an unremarkable traffic record. The supplementary record became exhibit C.

12. In my opinion, Mr Wilkins' driving record leaves me little choice but to sentence him to a period of imprisonment. In my opinion, a period of imprisonment of 7 months is appropriate. Mr Wilkins clearly has a problem with alcohol and driving, and I think it is about time that he took an opportunity to look at it. I regard that circumstance as special circumstances and for that reason, I propose to allow a longer period than the standard period on parole. I propose to fix a non-parole period of 2 months to date from 13 August 2007. I do not propose to exercise my discretion regarding the disqualification, given Mr Wilkins' record.

13. Mr Wilkins, I am sentencing you to a period of imprisonment of 7 months. I set a non-parole period of 2 months to date from 13 August 2007 and to expire 12 October 2007. The balance of the term of 5 months is to commence on 13 October 2007 and to expire on 12 March 2008. I direct that you be released to parole on 12 October 2007. I expressly state in accordance with s 51(1AA) that the offender is not to be subject to supervision. The statutory period of disqualification applies from 13 August 2007 until 12 August 2010.

oOo