Wheeler, Anthony John Thomas v The Queen

[2008] NSWDC 364

CITATION:	WHEELER, Anthony John Thomas v R [2008] NSWDC 364
JUDGMENT DATE:	14 April 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The sentence of the learned magistrate is set aside. Instead of that sentence - a sentence of imprisonment five months, wholly suspended on the condition that Mr Wheeler enter into a good behaviour bond for 5 months.
CATCHWORDS:	CRIMINAL LAW - judgment - appeal from magistrate's sentence - appalling prior record of drink-driving offences - whether to suspend sentence
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 s 11, s 12
PARTIES:	Anthony John Thomas Wheeler Regina
FILE NUMBER(S):	07/52/0426
COUNSEL:	Mr O'Connor
SOLICITORS:	Director of Public Prosecutions

JUDGMENT

1. This appeal concerns a man who has an appalling driving record. He has no fewer than ten convictions for drink-driving offences. When he came before the learned magistrate at Armidale on 17 September 2007 the magistrate sent him to gaol for six months. He has been to gaol before for his drink-driving. This time, through his solicitor, Mr O’Connor, he claims that he has rehabilitated himself, and asks for a suspended sentence. The question in this case is whether I impose the penalty which the crime obviously deserves, namely six months imprisonment, or accept the evidence that he is finally on a genuine path of rehabilitation and give him a suspended sentence.

2. The matter came before me on 10 October 2007 at Armidale. I adjourned the proceedings under s 11 of the Crimes (Sentencing Procedure) Act 1999 for the purpose of assessing Mr Wheeler’s capacity and prospects for rehabilitation, and whether the rehabilitation has taken place.

3. Today I have a report from the rehabilitation centre which he attended. In addition, Mr O’Connor called his client to give evidence. The report is not a not a glowing report. It says that Mr Wheeler had made little progress and was biding his time for the court hearing, and would only perform the programme guidelines when pushed. It points to Mr Wheeler’s residency being terminated by a discharge. That occurred about an argument over funds.

4. When called to give evidence, Mr Wheeler said he had in fact cooperated and done the best that he could. He suffers from a bad back and was not able to engage in all of the vigorous activity which the programme offered, but he used the exercise break to some good effect. He said he was usually up early. He explained to me the disagreement over the availability of funds.

5. The one notable - so far as I am concerned - aspect of the report is that Mr Wheeler remained abstinent from alcohol, confirmed by urine and random breath-testing, for the period that he was admitted to this particular rehabilitation centre called Adele House, which is near Coffs Harbour. That period was some two months between 4 February and 2 April 2008. Mr Wheeler told me in the witness box that since his discharge nearly two weeks ago he has not had anything to drink. When asked why he would stay off the drink now since on previous occasions he has failed, he said that he is now too old for gaol and is sick of it, and, in any event, wants to stay at home to look after his wife.

6. Mr O’Connor says that the appropriate way to deal with this case is by a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act. Mr Spohr, who appears for the respondent prosecutor, says that the case clearly warrants full-time gaol, and that Mr Wheeler has not rehabilitated himself. The criminal history is sufficient to point to the necessity for full-time custody. It also, Mr Spohr, says, points to an unsatisfactory response to conditional liberty provided by the courts on a bond. That occurred in 1980 when Mr Wheeler breached his bond after two days.

7. The second submission made by Mr O’Connor is that I should reduce the standard period of disqualification of three years to enable Mr Wheeler to reengage in his occupation. That occupation is as a truck driver with particular experience in transporting stock. The period of disqualification commenced on 30 January 2007, which was the date of the offence, and therefore expires on 29 January 2010.

8. I have decided to accept Mr O’Connor’s submission so far as the suspended sentence is concerned, but not so far as the disqualification is concerned. In accepting his submission, I accept the sworn evidence given by his client. I do have reservations about his client’s rehabilitation. Mr Spohr cross-examined him about a number of matters. One of them was the fact that Mr Wheeler had something to drink shortly before being admitted to Adele House. That, Mr Spohr says, points to a lack of genuine prospects for rehabilitation and a likelihood of re-offending. Mr Spohr also points to the unsatisfactory discharge from the facility.

9. I get the impression that Mr Wheeler has genuinely come to a crossroads in his life. He has been to gaol full-time on a number of occasions in the past for just this kind of offending behaviour. He has been married for many years, and my recollection from his evidence which he gave at Armidale was that his marriage was now at risk as a result of his offending behaviour. In addition, his wife has a medical condition which requires him to support her. I can understand a man who is now fifty-seven also being tired of returning to gaol and of seeing the need to rehabilitate himself. I am encouraged in my finding that his efforts at rehabilitation are genuine because of the report indicating that he did in fact remain abstinent from alcohol for the period of his time at Adele House.

10. I appreciate that I am taking a risk, or at least exposing the community to a risk, in reaching this decision. It could be that Mr Wheeler goes back to drinking alcohol and, in breach of his suspension, gets behind the wheel again, and this time injures or kills someone. However, I have decided, for the reasons that I have given, to accept his evidence that his rehabilitation is genuine, that he has reached a significant stage in his life, and to give him that opportunity.

11. In so far as the submission made by Mr O’Connor about the suspension or disqualification period is concerned, I accept Mr Spohr’s submission in this regard. The three-year disqualification is a standard automatic period. It can indeed be increased. Mr Wheeler, as I said, has an appalling driving record for drink-driving. He was, in a sense, lucky to receive from the learned magistrate no more than the standard period of three years’ disqualification. I do not propose to reduce the period of disqualification any further. I do take into account that, although experienced as a truck driver, there is evidence that he has available where he lives in Uralla other casual employment which he is able to take up.

12. I have therefore decided to uphold, or allow, Mr Wheeler’s appeal. The formal orders which I make are as follows. In accordance with s 20 of the Crimes (Appeal and Review) Act 2001, I determine this appeal against sentence by varying the sentence of the learned magistrate in the following respects:

I impose a sentence of imprisonment on Mr Wheeler for six months, but I make an order under s 12 of the Crimes (Sentencing Procedure) Act suspending the execution of the whole of the sentence for the whole of the period of six months, and I direct Mr Wheeler to be released from custody on condition that he enters into a good behaviour bond for the period of six months. The good behaviour bond is to be subject to the following conditions:

(1) For the term of the bond Mr Wheeler must be of good behaviour.
(2) Mr Wheeler must appear before the court if called upon to do so at any time during the period of the bond.
(3) Mr Wheeler is to notify the registrar of the District Court at Armidale of any change in his residential address. That notification should be in writing and arranged by Mr Wheeler, because I appreciate he does not write.
(4) Mr Wheeler must subject himself to the supervision of the New South Wales Probation and Parole Service and accept all reasonable recommendations and directions made by officers of that service.
(5) Mr Wheeler must subject himself to whatever procedures officers of the Probation and Parole Service direct concerning the monitoring of any alcohol intake.

Otherwise, I confirm the orders of the learned magistrate.

Mr O’Connor and Mr Spohr, my question is whether there are any other orders I should make, or anything I have omitted. I need to direct that Mr Wheeler should attend the Probation and Parole Service at - Mr O’Connor, Armidale?

O'CONNOR: It’s Armidale.

HIS HONOUR: Armidale, on or before 4 pm next Tuesday 22 April 2008. Perhaps I will ask you first, Mr O’Connor, are there any other orders that I ought to make or which you submit I should make?

O'CONNOR: No, thank you, your Honour.

HIS HONOUR: Mr Spohr, are there any orders that I ought to make, or which you recommend I should make?

SPOHR: I think the orders you've made are sufficient, your Honour.

HIS HONOUR: All right, now I need to explain things to you, Mr Wheeler. Just stand up. I have allowed your appeal. Do you understand that?

APPELLANT: Yes.

HIS HONOUR: You have won your case. I haven’t given you 100 per cent because I think that your licence disqualification has to stay at three years. You have got about 20, 21 months to go. You are lucky to have got that. You could have got higher than that, given your record. But I have allowed your appeal so far as Mr O’Connor says, that I should suspend your sentence. So I have suspended your sentence. You could see I was a bit reluctant to do that because it is not so much me taking a risk as I am putting the community at risk because of your driving record, and, if you go back to the grog and get behind the wheel and you kill someone or injure them, then that is the risk I am exposing the community to. So it is very important that you stay off the grog and you stay away from any cars, until your licence comes back to you in January 09.

There are conditions I have fixed for the bond. You have got to behave yourself, not get into trouble, for the next six months. You have got to tell the court if you change your address, put it in writing, ask your wife or someone you know to do that for you.

APPELLANT: Yeah.

HIS HONOUR: You have got to go to the Probation and Parole the next week and report. You have got to accept their directions, particularly to do with any urine analysis or breath-testing, because I want to make sure that you stay off the grog and, if they want you to do random analysis, then you do it.

APPELLANT: Right.

HIS HONOUR: Do you understand that?

APPELLANT: Yes.

HIS HONOUR: If you breach the bond, you are back here before me. Do you understand?

APPELLANT: Yes.

HIS HONOUR: And it is very hard not go to gaol. It’s not like an ordinary good behaviour bond. These good behaviour bonds mean that it is very hard for you to avoid gaol if you breach it. Do you understand all of that?

APPELLANT: Yes.

HIS HONOUR: Okay, good luck. Mr Spohr? Have a seat, Mr Wheeler.

SPOHR: It just occurred to me, your Honour. I don't know if your Honour imposed the date on which the sentence was to commence?

HIS HONOUR: No, I was wondering that. What do I do? Yes, apparently I don't set a date for the period of the suspended sentence, but I need to set a date for the bond.

SPOHR: Yes, your Honour, the only reason I raised it is in case Corrective Services are confused by the fact that the offender has a spent a period already in full-time custody, and I am just concerned to ensure that everybody is aware of exactly what periods--

HIS HONOUR: How long was he in custody?

SPOHR: As I understand it - I think my friend will assist me on this - but, as I understand it, from 17 September to 8 October, on which date your Honour granted bail, as I understand it.

HIS HONOUR: That's right. Tell me both of you whether this is the relevant way to - I don't specify - well should I vary the sentence by reducing it if - because in effect, if he breaches the bond and comes back, he is doing six months again, isn’t he?

SPOHR: Yes, your Honour.

HIS HONOUR: Which, without a Parker warning, is not appropriate.

SPOHR: Yes, in those circumstances, as your Honour has outlined, if the offender - whether that period would then be taken into account would then need to be considered at that point, perhaps.

HIS HONOUR: I understand that, but he has still got six months.

SPOHR: Yes, your Honour.

HIS HONOUR: That's the problem, which you've drawn to my attention, and I think you're right. Should I not reduce the sentence by the period that he was in custody? I will round it off.

SPOHR: Or perhaps backdate it by however many days.

HIS HONOUR: I don't think I can backdate because I don't specify a commencement date for the sentence. So I think I have got to just reduce it. So you say from 17 September until--

SPOHR: I think my friend had something to say--

HIS HONOUR: 8 October?

SPOHR: I think it actually appears perhaps in a bundle - I think I have it somewhere separate, your Honour, but the custodial history--

HIS HONOUR: I’m thinking I will make it five months. That will take into account - what do you say about that, Mr O’Connor?

O'CONNOR: That's correct, your Honour. I think that’s about the right period.

HIS HONOUR: Thank you for drawing that to my attention, Mr Spohr. In any event, it’s not entered yet.

13. I vary the sentence which I impose - I will make these orders. In accordance with s 20 of the Crimes (Appeal and Review) Act, I set aside the sentence of the learned magistrate. Instead of that sentence, and in accordance with s 12 of the Crimes (Sentencing Procedure) Act, I impose a sentence of imprisonment on Mr Wheeler of five months, and I make an order suspending the execution of the whole of the sentence for the period of five years, and I direct that Mr Wheeler be released from custody on condition that he enters into a good behaviour bond for five months. The good behaviour bond is to commence today, 14 April 2008. The conditions of the good behaviour bond are those which are listed previously.

Does that deal with it?

SPOHR: Yes, your Honour.

HIS HONOUR: Mr O’Connor, does that deal with it?

O'CONNOR: Yes, your Honour.

HIS HONOUR: I had overlooked the fact that he had spent time in custody.

O'CONNOR: Taking up a word that dropped from your Honour’s lips when you addressed my client, that he was successful in his appeal, technically there has been also a reduction in the sentence, that not all his costs, but some of his costs might be awarded and it might be appropriate to exercise discretion to award some costs, given the personal expenditure that he has--

HIS HONOUR: What, to ask the DPP to pay?

O'CONNOR: To the degree of my client’s personal expenditure and he has pursued this rehabilitation course at some expense. I mean it’s not a huge expense, but it’s some - without looking at the question of legal costs, but purely his expenditure.

HIS HONOUR: It should be paid by whom?

O'CONNOR: By the Police Department, or, in this case, the DPP. Just the questions of the costs--

HIS HONOUR: I must say I’m disinclined to, but what is the power that I have? Is it statutory, and what are the factors which are relevant?

O'CONNOR: Only this, your Honour, that--

HIS HONOUR: What is the power?

O'CONNOR: That if the appeal were successful in its entirety then there is power within--

HIS HONOUR: Where is the power, where do I find it?

O'CONNOR: I'm sorry, I don't know the section of it.

HIS HONOUR: Mr Spohr?

SPOHR: Perhaps I can indicate it in this way: I have never heard of costs been awarded even where an appeal is granted. And, if it be the case that there is a power, then in my submission any expense that the offender has gone to is in effect to his own benefit.

HIS HONOUR: I’m thinking along the same lines. The only difficulty I have, Mr O’Connor, is that I don't know what the legislation, what the relevant factors are. I am disinclined - I would really need convincing that the--

O'CONNOR: Yes, your Honour.

HIS HONOUR: But without you directing me to the relevant section, I don't know what the relevant factors are.

O'CONNOR: The only relevant factor would be that--

HIS HONOUR: No, we don't know it until you tell me what the section is. If you're asking me to exercise a statutory discretion, we need to find the statute.

O'CONNOR: I can't direct you to the statute but, in my experience, it has occurred that if in the event that the laying of charges, there has been no basis for - or almost no basis for laying such a charge, in those circumstances that--

HIS HONOUR: But that's not the case here.

O'CONNOR: No, your Honour.

HIS HONOUR: No. Anything else?

O'CONNOR: No, your Honour.

HIS HONOUR: I will now adjourn. Thank you both for your help. I appreciate it.

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