Pearce v R

Facts

1. The person who suffered grievous bodily harm in the commission of the offence was Mr Luke Blain, a workmate of the applicant. On the night of Thursday 7 April 2016 and into the early hours of Friday 8 April they worked as labourers on a railway construction site at Windsor. They had a break in their shift from about 2:45am and left the worksite to get food. The applicant drove Mr Blain in a Mazda 6 sedan. He had purchased the vehicle about one week earlier, according to evidence he gave in the sentence proceedings. Mr Blain was seated in the front passenger seat and did not have his seatbelt fastened.
2. At about 3:25am the applicant drove the vehicle on Richmond Road, Marsden Park, in a south-westerly direction. The agreed facts and the findings of the sentencing judge do not disclose that there was any other traffic in the vicinity apart from an unmarked police vehicle travelling ahead of the applicant. The speed limit for the road in that location was 80 km/h. As the applicant's vehicle entered a slight left hand curve in the road it was travelling at more than 200 km/h. A speed of 202 km/h was subsequently calculated by police from the length of skid marks and other data. It was accepted on behalf of the applicant that his speed had been between 202 km/h and 220 km/h when he lost control.
3. The applicant lost control in the left-hand bend and the vehicle commenced to rotate anticlockwise. It continued down Richmond Road, skidding sideways, for approximately 120 m. The driver of the unmarked police vehicle had to accelerate to avoid a collision from his rear. The applicant's vehicle then mounted the left-hand curb and crossed over a grass verge. The vehicle collided with a large light pole to the eastern side of the roadway, the front passenger side door making heavy contact. The vehicle then collided with a barbed wire fence, continued about 90 m down a grass embankment into a paddock and then rolled over a number of times, coming to rest on the passenger side.
4. During the crash sequence, after the vehicle left the roadway, Mr Blain was ejected from his seat either through the front passenger side window or through the rear windscreen. The officer from the unmarked police car, who had witnessed the accident, found Mr Blain soon after the applicant's vehicle came to rest, lying in a foetal position about 10 m to the rear of it. His breathing was laboured. Although the agreed statement of facts does not specifically record this, it may be inferred that Mr Blain was unconscious. Paramedics attended and he was conveyed to Westmead Hospital.
5. The applicant was taken to Nepean Hospital. After examination he was released with no injuries. The Diazepam tablets that were the subject of the Form 1 offence under the Poisons and Therapeutic Goods Act were located by police in a small satchel beneath the handbrake in the vehicle. The applicant told police that he believed the tablets were Valium and that he used them to help him sleep when he worked shifts. He said that he bought them from a friend, without prescription.
6. It was an agreed fact before the sentencing judge that, at Westmead Hospital, Mr Blain was found to have suffered "severe diffuse axonal injury to his brain". He also had a displaced fracture of his nasal bone, fractures to his ribs and pelvis on the left side, a small laceration of his spleen, bruising to his chest and extensive haemorrhagic contusion to his left lung. Of these injuries, that occasioned to the brain was clearly the most serious.
7. Mr Blain remained in hospital and was unable to walk for six weeks after the accident, as a result of his pelvic fractures. He was discharged eight weeks after the accident, at which time he could walk with minimal assistance for about 200 m. At the time of discharge Mr Blain had ongoing deficits of memory, language, abstract thinking, orientation and visuospatial/executive function. Arrangements were made for continuing rehabilitation.

Objective seriousness

1. The sentencing judge noted that the speed of the applicant's vehicle when the crash sequence commenced was over the applicable limit by between 115 and 140 km/h. His Honour concluded that the excessive speed, alone, "demonstrates an abandonment of responsibility". The applicant had informed Ms Duffy, his psychologist, that the reason he was travelling so fast was that he had only recently purchased the vehicle and decided to "let it go" to see how it would perform at speed.
2. His Honour noted that it is the responsibility of a driver to ensure that any passenger wears a seatbelt. He said that "having an unrestrained passenger in the vehicle is one other matter which adds to the seriousness of what is already a very serious matter". His Honour found that the combination of excessive speed and lack of restraint of the passenger demonstrated a "degree of moral culpability on the part of the offender [that] is very high."
3. His Honour assessed Mr Blain's injuries as follows: I regard the injuries sustained by Luke Blain to be severe. He has sustained a brain injury of a kind that, as at today's date, persuades me that he has been left with significant cognitive and functional deficits. One can imagine more severe examples of grievous bodily harm involving for example quadriplegia and one can imagine a more gross acquired brain injury but, as presently advised, it is my view that Mr Blain's injuries mean his life - and possibly his personhood - will never be the same again.
4. The learned judge concluded that the applicant's conduct was "well above the mid-range of objective seriousness, approaching the most serious level for an offence of this kind".

Applicant's driving record and other offences

1. His Honour had regard to the applicant's record of traffic offences, particularly with respect to licensing and suspensions, as follows: 15 August 2011 (age 19 years): first issue of provisional license. 7 November 2011: driving a high performance vehicle and not displaying P plates in contravention of provisional licence conditions. Licence suspended for 3 months from 17 January 2012 to 16 April 2012. 22 January 2012: driving while licence suspended, disqualified for 12 months from 17 April 2012 to 16 April 2013. 31 March 2012: driving while licence suspended. Good behaviour bond 1 year, disqualified from driving for 2 years from 17 April 2013 to 16 April 2015. 11 May 2014: (1) Driving under the influence of alcohol or drug - good behaviour bond 1 year; disqualified 6 months from 17 April 2015 to 16 October 2015; (2) Refusing to submit to the taking of a blood sample for drug testing - good behaviour bond 3 years from 8 September 2014, disqualified 6 months from 8 September 2014 to 7 March 2015; (3) Driving while disqualified - good behaviour bond 2 years from 8 September 2014.
2. When the applicant committed the offence for which McLennan DCJ sentenced him, his most recent period of licence disqualification had concluded only one month earlier and he remained subject to 3 concurrent bonds to be of good behaviour.
3. The applicant's record includes offences other than traffic matters. In February 2007, at age 14, he committed an assault occasioning actual bodily harm in company with others, for which he was dealt with in the Children's Court. In May 2014 at age 21 he committed a common assault. He committed offences of destroying or damaging property in June 2014 and shoplifting in March 2015.
4. The applicant's offences prior to April 2016 were sufficient to disentitle him from leniency, although in fairness to him it may be said that his record did not demonstrate persistent misuse of motor vehicles in disregard of the safety of others or the rules of the road. As noted above, there was one offence of driving under the influence of alcohol, on 11 May 2014, which resulted in 6 months' disqualification. Apart from that, all his other prior offences were breaches of licence conditions, or driving whilst suspended or disqualified. Whilst serious, those were licence regulatory matters rather than offences of handling a motor vehicle in an unlawful manner.

Applicant's subjective circumstances

1. The applicant's personal history was presented to the learned sentencing judge primarily in hearsay form through the psychological report of Ms Duffy but the applicant gave evidence and was therefore available to be cross-examined on his subjective circumstances. His Honour accepted that the applicant's parents separated when he was 9 years old and that thereafter the applicant had little contact with his father for several years. The applicant's mother moved to Darwin and the applicant lived with her and her new partner for some time but returned to Sydney after conflict with the partner.
2. The evidence established that the applicant suffered from epilepsy. He had experienced about 15 to 20 seizures over the preceding 5 years but was generally able to control the disorder with regular medication, taken morning and night.
3. Unsurprisingly, having regard to the circumstances of his childhood, Ms Duffy said the applicant is insecure, lacking in confidence and needy of acceptance, support and approval. She found that he suffers from anxiety which "may have originated in his youth when his life was unstable and his attachments to his family were disrupted". His Honour accepted that significant levels of anxiety prior to April 2016 had led the applicant to a habit of self-medicating with Valium, Xanax and other drugs. However, his Honour concluded that the applicant's underlying emotional instability and anxiety had not contributed to the commission of the subject offence. The applicant described himself to Ms Duffy as having been happy at that time because he had acquired a job with good pay and recovered his licence and purchased a new car.

Remorse, rehabilitation

1. The learned judge accepted the applicant's expressions of remorse. Mr Blain had been a friend of the applicant for 10 years prior to the accident, since they were 14 years of age. The applicant said that he thought about the accident and what had happened to Mr Blain every day and did not think he would ever be able to forgive himself. At the time of sentence, the applicant had been employed for 10 months with an air-conditioning contractor. He had commenced the first three weeks of a four year apprenticeship in air-conditioning mechanics. His Honour accepted that, despite his criminal history and record of driving violations, it was more likely than not that he would not reoffend. His Honour found special circumstances, justifying a non-parole period of less than 75% of the head sentence.
2. At the conclusion of his Remarks on Sentence the learned judge made the following assessment: The egregious nature of the driving on this occasion must be denounced. There is a clear need for a sentence in this case to reflect a high level of general deterrence. Having regard to the offender's poor traffic history and, in particular, having regard to the fact that he was on two different kinds of bonds that arose out of his driving on other occasions there must be a significant level of specific deterrence imposed as well.

Extension of time

1. Not long after sentence was passed the applicant was advised that an appeal did not have sufficient prospects of success to warrant an application for leave. Having now served his non-parole period, the applicant has found that his disqualification from obtaining a driver licence is a significant handicap with respect to the range of employment positions that he is able to apply for. The lack of a driver licence also handicaps him generally in his endeavour to resume normal life in the community, particularly in relation to the level of assistance he can provide to his mother and grandfather who are both in ill health.
2. To the applicant's credit he has obtained work in a part time subcontract capacity since his release and would like to work full time. He is restricted by his inability to drive himself to worksites each day. He is presently managing with the generous support of an employer who permits him to use a spare bedroom in the employer's house during the week, so that he can be driven to and from worksites. This arrangement may not be sustainable in the long-term. It is apparent that the principal object of the application for leave to appeal is to secure reduction of the period of disqualification and that the delay in bringing the appeal has resulted from failure to appreciate at an earlier time the degree to which licence disqualification would impact upon the applicant.
3. In the circumstances, leave to bring this application out of time should be granted so that its merits may be considered substantively.

Ground 1 - assessment of objective seriousness

1. The applicant argued ground 1 on the basis that "the present case is objectively fairly typical for this type of offence, without any additional aggravating features that would take it above the usual". Reference was made to the checklist of aggravating features provided by Spigelman CJ in R v Jurisic (1998) 45 NSWLR 209 at 231. As modified by his Honour in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [216] and [217], the list is as follows: (i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic or aggressive driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit. (x) Degree of sleep deprivation. (xi) Failing to stop.
2. In R v Jurisic at 231, Spigelman CJ noted the following with respect to the above list: Paragraph (i) and par (ii) focus on the occurrence, whereas pars (iii)-(ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence. That observation was reiterated by his Honour in R v Whyte at [218].
3. It was well open to the sentencing judge in the present case to find that the applicant's driving exhibited an abandonment of responsibility. The applicant's counsel, correctly, accepted that in his written submissions. The "degree of speed", in the words of the Chief Justice, was extremely great. It was coupled with the circumstance that the applicant drove at that speed while his front seat passenger was not restrained by a seatbelt.
4. The second guideline propounded by Spigelman CJ in R v Jurisic is as follows: 2. With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional. I realise that the formulation I propose - does the relevant aggravating factor manifest, in the circumstances of the case, that the offender has abandoned responsibility for his or her own conduct - introduces an element of judgment on which reasonable minds may differ. […] The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence.
5. In R v Whyte Spigelman CJ noted that the above guideline related to offences under sub-ss (1) and (3) of s 52A. His Honour said: [231] In the case of the aggravated version of each offence under s 52A, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. The offence in the present case was "the aggravated version", provided for in s 52A(4).
6. In Elyard v R [2006] NSWCCA 43 Howie J made the following observations: [45] It should also be borne in mind that when sentencing for offences of aggravated dangerous driving it will almost inevitably be the case that the offender will have "abandoned responsibility" as that expression is used in R v Jurisic or will have displayed "high moral culpability" as that expression is used in R v Whyte. The fact that the aggravating element of the offence is present will generally be sufficient to show that the offender's culpability has reached at least that degree. There is in my view simply no point in seeking to apply the guideline in R v Whyte in order to determine that question when the offence is an aggravated one by reason of the elements of the offence charged. There is a real risk that, in trying to apply the guideline judgment to decide that question, the court will double count an aggravating factor in the guideline which is an element of the aggravated offence. The judgment in R v Whyte recognises that the increased sentence for the aggravated offence will generally reflect the increased moral culpability inherent in the aggravated form of the offence.
7. The applicant's approach, of seeking to minimise the objective seriousness of his offence on the basis that relatively few of the potential aggravating features on Spigelman CJ's list were present, is unsound. The degree to which any one feature is exhibited in the facts of such an offence may be sufficient to place it higher in the range of seriousness. Here, a speed of 125 km/h would have been sufficient to constitute the aggravated offence provided for in s 52A(4). The vehicle speed of over 200 km/h, alone, raised this infringement towards a greater level of objective seriousness, within the range of conduct that may constitute the aggravated form of the offence. The exposure of the passenger to injury by conveying him at that speed whilst unrestrained was extreme and the grievous bodily harm that resulted is pervasive and has been life changing for Mr Blain. His Honour's conclusion that this offence was "well above the mid-range of objective seriousness, approaching the most serious level for an offence of this kind" was open to him and involved no error. I would reject ground 1.

Ground 2 - assessment of impact on the injured person

1. The material tendered by the Crown concerning Mr Blain's brain injury was limited to the agreed fact that it was of a severe diffuse axonal type and that the effects upon Mr Blain as at the date of his discharge from hospital, eight weeks after the incident, were as summarised at [13] above. With respect to ongoing deficits to Mr Blain's cognitive function and quality of life the only additional information came from the applicant and was sparse. Ms Duffy recorded that as at 15 March 2017 Mr Blain was living with his family in Newcastle and "needs considerable care". It may be inferred that this information came from the applicant. He also told Ms Duffy that he blamed himself "for wrecking [Mr Blain's] life".
2. As a matter of definition, in the ordinary usage of medical terminology, diffuse axonal injury is the shearing or tearing of the brain's long connecting nerve fibres caused by the brain shifting and rotating inside the skull as a result of traumatic acceleration and/or deceleration, with the damage to the connecting nerve fibres causing injury to multiple parts of the brain. Obviously, the degree of brain damage from an injury of this type is variable, on a spectrum. The learned sentencing judge had before him the agreed fact that the diffuse axonal injury in this case was "severe".
3. The gravity of the harm occasioned to the injured person is a very significant factor in determining the objective seriousness of an offence under s 52A(2) or (4). Where brain injury is concerned, long-term impairments and scope for medical rehabilitation are variable. In order to place a sentencing judge in a position fully to determine this aspect of the facts in such a case it is incumbent upon the Crown to provide evidence of the condition of the injured person current to the date of the sentence proceedings, together with a prognosis from an appropriately qualified specialist. No such material was made available in this case. His Honour was left to infer the degree of harm from the assessment that the degree of this pervasive form of brain injury was, in this case, "severe" and from agreed facts about Mr Blain's condition at the date of his discharge from hospital, together with the admissions made by the applicant to Ms Duffy concerning the ongoing need for a high level of care.
4. Notwithstanding the Crown's failure to tender in the sentence proceedings appropriately detailed evidence on this subject, there were sufficient materials before his Honour to support the finding quoted above at [16]. I would reject ground 2.

The term of imprisonment

1. The principles upon which the Court determines a ground of appeal that a sentence is manifestly excessive, as restated by RA Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443], are as follows: Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. It is not to the point that this Court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust.
2. Taking into account the applicant's abandonment of responsibility in driving at over 200 km/h with an unrestrained front seat passenger, the high degree of moral culpability inherent in that conduct and the very serious nature of the grievous bodily harm that was occasioned, and making due allowance for the applicant's troubled background, relative youth, genuine remorse and good prospects of rehabilitation, the discounted sentence of 6 years' imprisonment with a non-parole period of 3 years and 9 months was stern and at the high end of the range of his Honour's discretion but in my view not manifestly excessive.
3. The sentence is not so plainly unjust as to indicate that there must have been some misapplication of principle. This conclusion is not amenable to detailed exposition. As Gleeson CJ and Hayne J said in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54: [6] Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.
4. The applicant referred to a large number of decisions of this Court in sentence appeals relating to offences against s 52A(4) of the Crimes Act. He referred to Vale v R [2016] NSWCCA 154 and to the six earlier decisions that were cited in the judgment of Hoeben CJ at CL in that case, at [29]. The applicant also referred to Brooks v R [2009] NSWCCA 265; R v Tuhakaraina [2016] NSWCCA 81; Priovolidis v R [2016] NSWCCA 201; Ul-Hassan v R [2018] NSWCCA 177; Reddy v R [2018] NSWCCA 212; Lawson v R [2018] NSWCCA 215. A number of those decisions were considered and compared by Johnson J in McGonigle v R [2020] NSWCCA 84 at [129]-[140].
5. Combinations of objective and subjective circumstances are infinitely variable in offences against s 52A(4) of the Crimes Act. The severity of the injury sustained by the victim is self-evidently a very important factor in determining an appropriate term of imprisonment. Many of the cases cited by the applicant involved orthopaedic injuries that would cause lifelong disability and suffering, of various degrees. The severe diffuse axonal brain injury in the present case is more severe than many of the orthopaedic injuries that occurred in those cases. Only Lawson v R involved brain injury. In that case an indicative sentence of 3 years and 6 months was arrived at by the sentencing judge after substantial allowance had been made for reduced culpability. The offender's schizophrenic delusional state had materially contributed to his erratic driving, at excessive speed, through fast moving traffic. There is no such mental illness factor here.
6. In Application by the Attorney General (No. 3 of 2002) [2004] NSWCCA 303, Howie J (with the agreement of Spigelman CJ, Wood CJ at CL, Grove J, and Dunford JJ) concluded that disqualification from holding a driver licence is a matter that must be taken into account "when determining what the consequences should be, both penal and otherwise, for a particular offence committed by a particular offender": see [116]. Howie J likened disqualification to extra-curial punishment and referred to R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 for the proposition that that is a matter that a sentencing court is entitled to take into account.
7. It may be inferred that the sentencing judge in this case took into account the 5 years' disqualification which would be automatically imposed by operation of statute. His Honour discussed that matter with counsel immediately before delivering his Remarks and passing sentence. The applicant has not suggested that the learned judge failed to consider this in deciding upon the term of imprisonment. On the basis that the applicant would be disqualified for the default 5 year period, I would not regard the sentence as manifestly excessive. Whether his Honour should have exercised his discretion under the Road Transport Act to reduce the period of disqualification is a separate question, considered below.
8. The term of imprisonment fixed in this case is not shown to have been manifestly excessive by comparison with the cases referred to.

The period of disqualification

1. The circumstances in which leave to appeal has been very belatedly applied for and the terms in which ground 3 has been formulated and argued show that the gravamen of the applicant's complaint is the length of his disqualification from holding a licence. His attempt to show error with respect to the prison term is really a means to the end of having this Court consider afresh the period of disqualification.
2. The applicant's offence against s 52A(4) was a "major offence" within the meaning of par (a)(ii) of the definition of that term in s 4 of the Road Transport Act. Section 205 of that Act provides for periods of disqualification from holding a driver licence where a person is convicted of a major offence. The relevant subsections of s 205 for present purposes are as follows (omitting words that are presently irrelevant): (3) Disqualification if previous major offence. If, at the time of the conviction of the convicted person or during the period of 5 years before the conviction […] the convicted person is or has been convicted of one or more other major offences […] (whether of the same or a different kind) - [pars (a)-(c1) concern convictions for offences against ss 110 and 111 of the Road Transport Act itself and against cll 17 and 18 of Sch 3 of that Act] (d) where the conviction is for any other offence - (i) the person is automatically disqualified for 5 years from holding a driver licence, or (ii) if the court that convicts the person thinks fit to order a shorter period (but not shorter than 2 years) or longer period of disqualification - the person is disqualified from holding a driver licence for such period as may be specified in the order. (5) Disqualification in addition to any other penalty. Any disqualification under this section is in addition to any penalty imposed for the offence.
3. The applicant's offence of driving while under the influence of alcohol or a drug, committed on 8 September 2014, was a major offence, being contrary to s 112(1)(a) of the Road Transport Act. That offence was committed within 5 years prior to the applicant's conviction under s 52A of the Crimes Act. Accordingly, he was subject to automatic disqualification under s 205(3)(d)(i), unless the sentencing judge saw fit to exercise the discretion conferred by sub-par (3)(d)(ii).
4. His Honour stated, at the conclusion of his Remarks and after pronouncing sentence, that the applicant was disqualified from holding or obtaining a driver licence for 5 years. That was a statement of the automatic effect of s 205(3)(d)(i), not an order for disqualification. No order to that effect was noted in the District Court record of proceedings or entered on Justice Link.
5. Section 206A of the Road Transport Act applies to the applicant because his conviction was for a major disqualification offence as defined in that section. Therefore, the following subsections of s 206A applied: (2) This section applies to a person who is, after the commencement of this section - (a) disqualified from holding a driver licence for a specified period as a consequence of the person being convicted by a court of a major disqualification offence (whether or not the disqualification is imposed by an order of a court), and (b) sentenced to imprisonment as a result of that conviction. (3) The specified period of disqualification of the person is extended (by the operation of this section) by any period of imprisonment under that sentence that is served after the commencement of the disqualification. (4) For the purposes of this section, a period of imprisonment does not include any period that the person has been released on parole. (5) The extension of a period of disqualification by the operation of this section is subject to any order of the court that convicts the person relating to the operation of this section.
6. Pursuant to s 224(1)(a)(ii) a police officer issued to the applicant an immediate licence suspension notice upon him being charged on 8 April 2016. That notice had the effect that his licence was suspended until the charge was heard and determined: s 224(4)(a). He had therefore already been without a licence for 11 months and 16 days when he came to be sentenced. Section 206B provides as follows (extracted so far as relevant, emphasis added): 206B Effect of immediate or other licence suspension on period of disqualification (1) This section applies where a driver licence or other authority to drive in this jurisdiction has been suspended under this Act or the statutory rules for an alleged offence. (2) A court that determines a charge for the offence […] is required to take into account the period of suspension when deciding on any period of disqualification from holding or obtaining a driver licence on conviction for the offence […]. (4) The period of suspension satisfies all or the relevant part of any minimum period of disqualification that is or is required to be imposed under this Act on conviction for the offence […]. Accordingly, the total of the period of suspension and of the period of disqualification is not to be less than that minimum period of disqualification. (5) The court may order that the period of disqualification ends on a day specified by the court.
7. Section 206B is engaged only where a court orders a period of disqualification, not where an automatic period takes effect. In conjunction with s 205(3)(d), s 206B only applies where the sentencing court makes an order under sub-par (ii), departing from the automatic 5 year period of disqualification that would apply under sub-par (i). If sub-s (2) of s 206B stood alone, the requirement to "take into account" any period of suspension "when deciding on any period of disqualification" would be interpreted in the sense that the suspension period is a factor that must be considered in the exercise of a discretionary judgment, not in the sense that the suspension period must in all cases be counted towards the total disqualification that is ordered. However, sub-s (2) must be read with sub-s (4). When a variation order is made under s 205(3)(d)(ii), sub-s (4) of s 206B has the effect that the period of suspension must be counted towards any disqualification that it is imposed.
8. The fact that a police officer had suspended the applicant's licence from 8 April 2016 was before his Honour in the traffic record supplied by Roads and Maritime Services. It is clear from discussion between his Honour and counsel towards the end of the sentence hearing that his Honour did not appreciate that he had a discretion under s 205(3)(d)(ii) to reduce the period of disqualification or that if he exercised that discretion he would be required to take into account the 11 months and 16 days for which the applicant's licence had been suspended. The learned judge was not adequately assisted by counsel with respect to the relevant provisions. It cannot be said that his Honour in fact exercised his discretion by refraining from altering the automatic period of disqualification. The learned judge was not aware of the power to do so and therefore made no determination in the matter.
9. In my view the absence of a decision whether or not to vary the disqualification period under s 205(3)(d)(ii) was an erroneous failure to exercise jurisdiction. The grounds of appeal do not identify this error in terms. Ground 3 is drafted upon the mistaken assumption that the learned judge exercised a judgment to confirm the automatic period. The issue of duration of disqualification is in my view sufficiently raised to enable this Court to interfere where there has been an inadvertent failure to make a decision on this important matter. If his Honour had turned his mind to the question of whether or not to depart from the automatic 5 years, a significant consideration would have been that, upon doing so, the applicant would by force of s 206B(4) have received credit for the 11 months and 16 days of suspension that had already run, towards the minimum period of 2 years.
10. The learned sentencing judge did not deliberately refrain from varying the automatic period of disqualification as part of his determination of an appropriate term of imprisonment. The failure to exercise this jurisdiction was not conscious, nor was it integral to his Honour's determination of the appropriate term of imprisonment. Therefore the exercise by this Court, now, of the previously overlooked separate power to vary the disqualification period does not require that the Court should exercise afresh the discretion with respect to length of sentence.
11. The error in the present case is similar to the imposition of a parole condition beyond power, as occurred in Daniels v R [2016] NSWCCA 35, where it was held that the exercise of the sentencing judge's discretion had not been vitiated. In Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [84], Bathurst CJ said of that decision: [It] is explicable on the basis that the invalid condition was something entirely discrete from the sentencing process or the exercise of the sentencing discretion.

Determination of appropriate disqualification period

1. Having found error this Court should determine for itself whether the discretion under s 205(3)(d)(ii) should be exercised and, if so, to what effect. To give effect to the minimum 2 years disqualification prescribed in s 205(3)(d)(i), it would be necessary to order that the applicant be disqualified for a further period of 1 year and 14 days from when he was released to parole on 23 December 2020, that is, a period expiring on 5 January 2022.
2. I have concluded above that the sentence of imprisonment imposed by his Honour is not manifestly excessive but is at the high-end of the range of sentences that have been imposed in more or less comparable cases. I consider that a reduction of the automatic period of 5 years disqualification is well justified in order to avoid double or super-added punishment.
3. At the date when sentence was passed, the applicant was gainfully employed and was undertaking training to improve his work skills. His willingness to participate in the workforce was a factor strongly in favour of reducing the period of disqualification, so that on release from prison his return to employment would be facilitated. Rehabilitation would thereby be promoted. The lack of a driver licence is a substantial impediment to the applicant's pursuit of a useful life and his reintegration into the community. The frustration of ambition and life progress that may be caused by such an impediment poses the risk of the applicant backsliding into antisocial conduct as exhibited on his record.
4. These considerations are all more pronounced at the present date. The applicant has now served a substantial punishment. He remains subject to supervision on parole, he has matured by several years and since his release he has shown himself willing to pursue a productive life. In my view, the interests of the community will best be served by substituting a period of disqualification that will expire in the very near future. That can be achieved by ordering, pursuant s 205(2)(d)(ii) of the Road Transport Act, disqualification for a period of 1 year and 4 months, commencing on 23 December 2020 when the applicant was released to parole. That period will expire on 22 April 2022. Taken together with the earlier period of suspension, the total duration for which the applicant has been at liberty without the privilege of a driver licence will be 2 years and 3½ months, thereby complying with the minimum of 2 years prescribed in s 205(2)(d)(ii), by force of s 206B(4).
5. If, contrary to the view expressed at [58]-[59] above, it should be thought that his Honour's failure to exercise his discretion under s 205(3)(d)(ii) of the Road Transport Act requires the entire sentencing determination to be undertaken anew, then I would first reconsider the period of disqualification. For reasons already given, I would order that the period be reduced to 1 year and 4 months commencing from the date of the applicant's release to parole. With that shortened period in place, I would not consider that a sentence of imprisonment less than that fixed by the learned judge would be warranted.

Orders

1. I propose the following orders: (1) Extend time for the filing of the application for leave to appeal sufficient to allow the application to proceed on its merits; (2) Grant leave to appeal; (3) In lieu of the period of automatic disqualification prescribed under s 205(2)(d)(i) of the Road Transport Act 2013 (NSW), order pursuant s 205(2)(d)(ii) of that Act that the applicant is disqualified from holding a driver licence for a period of 1 year and 4 months, commencing on 23 December 2020 and expiring on 22 April 2022; and (4) Otherwise dismiss the appeal.

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