Uch, Yi v R

[2007] NSWDC 389

CITATION:	UCH, Yi v R [2007] NSWDC 389
JUDGMENT DATE:	2 March 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Set aside the sentence of the learned magistrate. Mr Uch is to enter into a good behaviour order for the period of 12 months. Confirm the automatic period of disqualification.
CATCHWORDS:	CRIMINAL LAW - sentence appeal - driving whilst disqualified - commenced Traffic Offenders Program - character references - prior criminal record with relevant traffic offences - disregard for conditions of driver licence - whether a s 9 bond appropriate
LEGISLATION CITED:	Crimes (Local Courts) Appeal and Review Act 2001 s 11 Crimes (Sentencing Procedure) Act 1999 s 9
PARTIES:	Regina Yi Uch
FILE NUMBER(S):	07/22/3061
SOLICITORS:	Mr Grogin for Mr Uch Ms Hallett for the NSW Office of the Director of Public Prosecutions

JUDGMENT

1. This is an appeal by Mr Uch from a sentence imposed upon him by a Magistrate. The appeal is brought pursuant to s 11 of the Crimes (Local Courts) Appeal and Review Act 2001.

2. Mr Uch pleaded guilty to driving whilst disqualified on 7 September 2006, that was the date of the offence. On 25 October 2006 Magistrate O’Connor at the Campbelltown Local Court convicted Mr Uch, sentenced him to six months imprisonment but suspended that sentence and disqualified him from driving for a period of two years from 25 November 2006 and ordered him to pay court costs. The appeal is against the severity of the sentence.

3. Briefly the facts, which are not in dispute are that Mr Uch on 7 September 2006 was pulled over by a random breath testing police unit. When asked to produce his licence it became apparent that he had been disqualified from 26 May 2006 until 26 November 2006. Mr Grogin frankly acknowledges that the purpose of the appeal is to challenge, so to speak, the suspended sentence rather than the disqualification. He points out from the bar table that his client responded to a call of distress from some friends and then decided to take the car out on that night to assist them.

4. He was born in Thailand and his parents came to this country. His father has since left the family and Mr Uch has little or no contact with him. He left school in year ten and joined the workforce and has been employed ever since apart from three months. His mother has a medical condition which is the subject of a medical certificate which has been tendered before me. Mr Uch is very much committed to caring for and assisting his mother in her illness. In addition he is, with his sister, paying off the mortgage to the house occupied by the family.

5. Mr Grogin points out that for a twenty one year old he has a great responsibility: financial, his ill mother and being in a position of, in a sense, being one of the principal members of the household. He works six days a week. He has commenced the Traffic Offenders Program and is apparently in his fifth week of that program.

6. He pleaded guilty on the first occasion. Mr Grogin indicated to me from the bar table that his client said that he wished he had seen or been confronted by what he had seen in the Driving Offender Program before now. He has not driven since his conviction and his car has been taken over by his sister and because he cannot drive and because of the position he has in the family, the fact that he cannot drive has had a significant impact on him.

7. There are two character references which I have read and at least one of them points to Mr Uch showing a lot of responsibility, integrity and ambition. That person also says how much Mr Uch has learned from the Traffic Offenders Program.

8. One problem with Mr Uch’s case is his criminal record or rather his traffic record I should say. He received his learner and provisional licences in 2001 and 2002 respectively. In 2003, on no fewer than three occasions, he was issued with a traffic infringement notice because of not complying with conditions of his licence. He has been convicted at least twice, perhaps three times, of exceeding the speed limit.

9. Significantly, on 31 May 2006 he was convicted at the Campbelltown Local Court of driving with middle range of concentration of alcohol and was disqualified from driving for a year. He appealed that conviction, a fine was substituted or rather the fine was reduced and the disqualification reduced for six months. I do observe that appeal was heard on 20 June 2006. It is a little surprising that within three months after that, namely on 7 September 2006, he was driving in the circumstances which resulted in this conviction.

10. Mr Grogin suggests that a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 is a more appropriate sentence for this kind of offence. Ms Hallett, who appears for the Crown, frankly acknowledges that that is a contention which is not in contention so far as the Crown is concerned.

11. I have decided to accept the submission of Mr Grogin. I regard Mr Uch’s traffic record with some seriousness. It is not a good record for a young man. He has infringed the traffic code in minor but significant ways. Early in the piece he showed some disregard for the conditions of his licence. He has exceeded the speed limit a number of times and he has one significant conviction for mid range PCA. This is not at all a good start. However, I think that the best course at this stage, in addition to the period of disqualification which follows as a matter of statutory course, is to impose upon him a bond so that he is in a position to complete the course that he has undertaken.

12. I take into account the impact which the course has had on him which has been conveyed to me through his counsel and which is confirmed by one of his referees. I am hopeful that this is a case were a young man’s attitude to driving may be changed by the course and the opportunity - yet another opportunity afforded to him by the court will this time - will be taken most seriously.

13. Accordingly, in respect of this appeal against sentence I set aside the sentence of the learned Magistrate. Instead of the sentence imposed by the learned Magistrate I make an order directing Mr Uch to enter into a good behaviour bond for a period of 12 months and that good behaviour bond is subject to the usual statutory or regulatory conditions and in this case an additional condition that Mr Uch should complete the Driver Education Course which he has commenced.

Just pausing there, Mr Grogin, you suggested Probation and Parole supervision?

GROGIN: Your Honour, I certainly don’t think that is something which would do him any harm. It’s a matter for the court.

HIS HONOUR: And I direct that he - now what is the order I make, how does one--

GROGIN: To accept any supervision of probation and parole for a period deemed necessary by that service.

14. And I direct as a condition of the bond that Mr Uch accept any supervision from the Probation and Parole Service which is deemed appropriate by that service.

GROGIN: Mr Uch to attend the probation and parole office within a period of seven days from today.

15. For that purpose, he should attend the probation and parole office at Campbelltown within seven days of today. Now the disqualification which stays in place, I need to mention that. Am I right in thinking that is a statutory consequence of his conviction?

GROGIN: Yes your Honour. It’s an automatic period.

16. I confirm the automatic period of disqualification for two years from 25 November 2006 and I confirm the court costs order made by the Magistrate. Anything else Mr Grogin? Miss Hallett?

HALLETT: No your Honour.

GROGIN: Would it be of any assistance if I - would your Honour get any assistance if I were to forward to your Honour’s chambers some details about the Traffic Offenders Program?

HIS HONOUR: I’m sure it would be, thank you. Thanks Mr Grogin.

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