Police v Andonakis

[2023] NSWLC 15

Local Court of NSW|2023-06-20

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At a glance

Source facts

Court

Local Court of NSW

Decision date

2023-06-20

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

The Charges and the Pleas

The offender Jonathan Andonakis has pleaded guilty to the following offences: Offence Offence Date of Not Guilty Plea Date of Guilty Plea Date 28.05.22 Drive with Illicit Drug in Oral Fluid Blood (2+ offence) - s 111 Road Transport Act 27.09.22 H89782438/1 H89782438/2 Drive Disqualified (2+ offence) 27.09.22 - s 54(1)(a) Road Transport Act 26.07.22 Drive Disqualified (2+ offence) 27.09.22 21.04.23 H90398418/1 - s 54(1)(a) Road Transport Act 04.08.22 Drive Disqualified (2+ offence) 27.09.22 21.04.23 H9130078/1 - s 54(1)(a) Road Transport Act 09.08.22 Drive Disqualified (2+ offence) 27.09.22 21.04.23 H89941150/1 - s 54(1)(a) Road Transport Act 04.11.22 Exceed Speed > 20 kph 29.11.22 H91846664/1 04.11.22 Drive Disqualified (2+ offence) 29.11.22 29.6.23 H91846664/5 - s 54(1)(a) Road Transport Act 04.11.22 Drive with Illicit Drug in Oral Fluid (2+ offence) - s 111 Road Transport Act 29.11.22 29.6.23 H91846664/8 11.03.23 Drive Disqualified (2+ offence) 06.04.23 H77015259/1 - s 54(1)(a) Road Transport Act H77015259/2 Exceed Speed > 30 kph lidar 06.04.23 Section 20 of the Road Rules 2014 H770544727 (same event) Drive with Illicit Drug in Oral Fluid (2+ offence) - s.111 Road Transport Act 20.06.23 11.03.23

[11]

Criminal Record

The offender has an extensive criminal and traffic record in both Queensland and New South Wales. Both sets of criminal and traffic records are before the Court.
The majority of matters on the offender's criminal record in NSW relate to driving offences. He committed the offence of Drive Whilst Suspended in 2005 and, on appeal, was placed on a non-conviction good behaviour bond. He was convicted of Driving Whilst Suspended in 2009, and 2017 (2016 offence). In 2018 (2016 offence) he was again convicted of Drive Whilst Suspended for which he received imprisonment for 1 month and 23 days.
On 3 September 2016, the offender committed the offence of Dangerous Driving Occasioning Death contrary to section 52A(1)(c) of the Crimes Act 1900 (NSW). He was initially imprisoned for 3 years and 8 months and disqualified for 6 years. However, a successful appeal against the inadequacy of sentence resulted in the sentence being increased to 5 years and 2 months, with a non-Andonakis [2019] NSWCCA 123.
The offender was Driving Whilst Disqualified at the time that he caused the death of a man whilst driving. He had a high level of methylamphetamine in his blood sample, being "well within the toxic to potentially fatal range, being sufficient to impair driving ability, although she (senior pharmacologist Dr Perl) was unable to express an opinion as to the degree of impairment": R v Andonakis (supra) at [8].
The NSW Traffic Record tendered in these proceedings was incomplete, however the Court of Criminal Appeal referred to the findings of the Judge at first instance who had access to his complete record, and said at [12]: "The judge noted that his New South Wales traffic record included more than 20 offences of exceeding the speed limit over the years since he first obtained a licence (1991). In fact, his traffic record includes some 60 offences from 1991 to 2017. The judge noted that his driving record in Queensland ran to 9 pages, primarily in the period from 2008 to 2017. In combination the judge correctly noted that the records painted a picture "of an individual who has little regard for his obligations to obey the driving laws of either state."
The offender's driving history since being released from custody supports those comments. I have set out later in this judgment at [153] a summary of driving offences since April 2022.
The offender's Queensland criminal record includes offences of possession of suspected stolen property, stealing, unlawful use of a motor vehicle, possession of a knife in a public place, entering premises with intent to commit an indictable offence, possession of utensils for using drugs and drug possession.
In Queensland, the offender's traffic record has 20 speeding offences, 10 offences of driving whilst unlicensed; three offences of using a mobile phone; one of driving whilst suspended due to demerit point loss; one offence of failing to give way; six offences of failing to stop at a red light and one offence of failing to stop at a yellow light; two offences of driving a defective vehicle; one offence of driving a vehicle when not safe to do so; and one offence of driving a vehicle with a relevant drug present.
The offender's driver's licence was disqualified in Queensland for six months from 29 June 2016 for multiple offences of unlicensed driving, driving whilst relevant drug is present. The offender was driving whilst disqualified when he committed the offence of Dangerous Driving Occasioning Death in 2016. He has been suspended in that State on multiple occasions.
I am satisfied that the offender's criminal record affords him no leniency. I am also satisfied that the offender's convictions for traffic related matters amount to a statutory aggravating factor pursuant to section 21A(2)d) of the Crimes (Sentencing Procedure) Act 1999.

[13]

Sentencing Assessment Report

Reference was made to the offender's family support, his intended residence upon release from custody and his prior employment.
Under the heading 'History of Antisocial Behaviour', the offender identified that his driving offences are all linked to drug use as he is careless and stupid when using drugs.
The author of the report wrote: "Notably, his most recent driving charges, were of a similar nature to his current offences and resulted in severe consequences, which did not appear to have any impact on his decision-making on this occasion."
Under the heading 'Attitudes', the following is reproduced in full: "Mr Andonakis reported that he was under the influence of ice at the time of his current offences. He claimed that he had made enquiries to the court on several occasions to find out if his licence was disqualified, as he claimed that he had obtained a Queensland drivers licence whilst in custody, so thought it was valid. Despite this, he also claimed that he knew his licence was initially suspended for six years. Mr Andonakis stated that he was speeding, no one was on the road, and when under the influence of ice he does not care and feels invincible.He said, "I knew I couldn't drive. It was in the back of my head."
Under the heading 'Insight into Impact of Offending', the offender said he is regretful and acknowledged that he did not think about the seriousness of his offending at the time. He further said: "My actions were dumb. It was exactly what I did last time and it quite easily could have happened again. I could have killed someone."
The offender was found to be unsuitable to undertake community service work due to an injury suffered earlier this year.
The offender was assessed as a medium-low risk of re-offending. That assessment is firmly rejected.
The 'Supervision Plan' did not involve face to face reporting and placed obligation on the offender to advise any changes of address or contact details. Further, Community Corrections would receive automatic notification if the defendant had contact with the NSW Police Force or entered a NSW Correctional Centre.
I am unable to identify any form of supervision in that supervision plan.

[14]

Plea in Mitigation

Ms Zafiris, solicitor for the offender, tendered a copy of the remarks on sentence for the Dangerous Driving Occasioning Death matter and a copy of the successful inadequacy of sentence appeal: Director of Public Prosecutions v Andonakis [2019] NSWCCA 123.
Counsel for the offender submitted that it was difficult to argue against the imposition of an aggregate sentence, and ultimately sought disposition by way of an Intensive Corrections Order. It was conceded that the section 5 threshold, referring to section 5 of the Crimes (Sentencing Procedure) Act 1999, had been crossed in relation to the driving whilst disqualified offence of 11 March 2023.
Contradictory to the reference to an aggregate sentence, it was submitted that offences of 28 May 2022, 26 July 2022, 4 August 2022, 9 August 2022, and 4 November 2022 did not cross that threshold and could be dealt with by way of a Community Corrections Order. I reject both aspects of that submission and will give reasons for that rejection shortly.
I pointed out to Mr Nichols of defence counsel that the Court could not impose an aggregate sentence where only one offence crossed the threshold of imprisonment. It was then submitted that if the Court was of the opinion that all of the matters crossed the threshold, then an aggregate sentence would be appropriate.
The offender is 49 years old and previously a businessman. He has the support of his family, and some family members were in court when submissions were made and are in court again today.
The offender was said to have used drugs from the age of 24 and in 2014 developed an addiction to the drug methylamphetamine.
Defence counsel referred to the Court of Criminal Appeal decision relating to the inadequacy of sentence appeal, submitting that the Court did not deal with the term of the disqualification period.
Reliance was placed upon this fact to assert that the offender's moral culpability for the offences of 28 May 2022, 26 July 2022, 4 August 2022, 9 August 2022, and 4 November 2022 was significantly reduced due to his belief that he was entitled to drive as at the date of each of those offences. I reject that submission and will give reasons for that rejection.
The offender's belief is said to have arisen because he was reissued with a Queensland driver licence. The facts for the offence of 26 July 2022 refer to the offender telling police that the disqualification period had been quashed by the Court of Criminal Appeal, producing a document from the Supreme Court where there was no mention of the disqualification period, and telling police that he had obtained a Queensland driver licence.
On page 1 of annexure B of the Queensland record there is reference to a Queensland licence 36041858 with an expiry date of 22 March 2026 and an effective date of 6 July 2022. No explanation is given to the meaning of 'effective date'.
The fact sheet for the offence of 4 August 2022 refers to the defendant telling police that his disqualification period had been quashed by the Supreme Court, and he produced a photograph of a document indicating the term of imprisonment with no mention of disqualification period.
The fact sheet for the offence of 9 August 2022 similarly refers to the defendant producing a document from the Supreme Court referring to the term of imprisonment without mention of any disqualification period.
It was submitted that the offender's moral culpability was not reduced in relation to the three offences occurring on 11 March 2023 due to the conviction and disqualification imposed on 8 November 2022. That sentence was for the offence of driving with an illicit drug present in the blood that occurred on 20 May 2022 for which the offender was disqualified for a period of six months commencing 24 May 2024.
It was conceded that the offender's traffic history was abysmal, but it was submitted that his record was not an aggravating factor. When challenged on that submission, Mr Nichols said that the offender's traffic record did not aggravate the offending conduct. I accept that a finding pursuant to section 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 of a record being a statutory aggravating factor does not affect the objective serious of an offence - rather, it is to be reflected in the sentence imposed.
It was further submitted that had the offender been eligible for Drug Court, these matters could have been dealt with in that jurisdiction due to the offender's significant drug issues. That submission is of no consequence as the offender is simply not eligible.
The court was asked to consider some concurrency in relation to the disqualification periods to be imposed so as to "provide a glimmer of motivational hope that the offender would get his licence back one day".
If it was found by the court that only a sentence of full-time imprisonment was appropriate, then the court was asked to make a finding of special circumstances concerning the offender's drug addiction issues.
The offender has been in custody since 11 March 2023.

[15]

Status of the Offender's Disqualification at the time of offending

The sentencing remarks of acting Judge Charteris SC were helpfully provided by Mr Nichols' instructing solicitor, Ms Zafiris.
On page 23 of those sentencing remarks, the offender was disqualified from driving for a court ordered period of six years to take effect from the time he was released from prison. The earliest date for release from prison at that time was 24 December 2019.
The inadequacy appeal to the Court of Criminal Appeal was by the Director of Public Prosecutions. The offender did not lodge an appeal against sentence.
The appeal was upheld, and the offender was re-sentenced to an overall term of imprisonment of five years and two months with a non-parole period of three years and 10 months, such that the first eligible date for parole was 24 July 2021.
Section 205(1) of the Road Transport Act 2013 defines 'automatic disqualification' to mean a disqualification under this section from holding a driver licence without specific order of a court. 'Ordered disqualification' means disqualification under this section from holding a driver licence that is ordered by a court.
As a matter of law, upon the Court of Criminal Appeal pronouncing sentence without referring to a disqualification period, the provisions of section 205(2)(d)(i) Road Transport Act 2013 resulted in an automatic disqualification for a period of three years. There was no obligation on the Court to order a period of disqualification due to the operation of section 205 of the Act.
Section 206A(2) of the Road Transport Act 2013 applies to a person who is disqualified from holding a driver licence as a consequence of being convicted by a court of a major disqualification offence, whether or not the disqualification is imposed by an order of a court, and sentenced to imprisonment as a result of that conviction.
The disqualification period commences from the date that an offender is released to parole: see section 206A(3) and (4) of the Road Transport Act 2013.
The offence of dangerous driving occasioning death pursuant to section 52A of the Crimes Act 1900 is defined as a major offence under section 4 of the Road Transport Act 2013.
The offender was therefore disqualified from 24 July 2021 to 23 July 2024.
The New South Wales traffic history document has recorded the disqualification period for the offence for which the offender was imprisoned as concluding on 24 May 2024, whereas it should probably be 23 July 2024. Notwithstanding that apparent anomaly, there can be no doubt that the offender's driver licence status was that of being disqualified on each of the relevant offending dates, i.e., 28 May 2022, 26 July 2022, 4 August 2022, 9 August 2022, 4 November 2022 and 11 March 2023.

[16]

The Offender's Subjective Beliefs

The Certificate of Evidence document from the Queensland Department of Transport and Main Roads indicates that the status of the offender's licence was recorded as 'cancelled' due to 'show cause' from interstate disqualification, effective date 20 September 2018 and expiring on 23 July 2024.
The annexed traffic record (page 1) refers to an effective date the offender's licence of 6 July 2022 with an expiry date of 22 March 2026.
However, on page 2 of the Queensland record it shows that as of 20 September 2018, the offender's licence was marked 'cancelled' due to 'show cause' for a period of 70 months and 4 days. This is consistent with the Queensland Certificate of Evidence.
Section 127(6) of the Transport Operations (Road Use Management) Act 1995 (Qld): Effect of disqualification (6)A person shall not apply for or obtain a Queensland driver licence or licence of any other kind, class, or description at a time when the person is disqualified - (a)by this Act; or (b)by an order made under this or any other Act (including any Act of a State or Territory or any other country); from holding or obtaining a driver licence or, as the case may be, licence of that other kind, class, or description.
The offender was ineligible to make an application for a Queensland drivers' licence or to renew such a licence. I do not need to determine if he has committed an offence in Queensland by obtaining or renewing a Queensland licence. However, his obtaining and possession of an interstate licence did not overcome the fact that he was, and still is, disqualified from driving in New South Wales. His possession of a Queensland licence does not establish that it was lawfully acquired, or that he was able to use that licence to drive in New South Wales.
Neither the prosecution nor defence have produced a copy of any documentation used by the offender to obtain a Queensland driver licence whilst disqualified in New South Wales.
The offender's stated belief that his disqualification was quashed by the Court of Criminal Appeal is factually and legally incorrect. There is no mention in the NSW Criminal Court of Appeal decision of the disqualification period being quashed. His repeated assertions to police were at best mistaken and at worst lacking honesty.
For the offending on 4 August 2022 (H91630078) the offender positively asserted that he had 'paperwork from the Roads and Maritime Services indicating that his driver's licence was not disqualified, which he obtained within the last few weeks but was at home'. Police told the offender not to drive as he was disqualified and to send the 'paperwork' to them when he returned home. The offender failed to do so.
The document was not produced by the offender in these sentencing proceedings. In the circumstances, I do not accept that such a document exists or existed.
When the offender was detected driving disqualified 5 days later on 9 August 2022, he produced a document from NSW Roads and Maritime which stated that they would not conduct business with Mr Andonakis and did not mention his licence or licence status.
On 4 November 2022, the offender persisted in presenting a Queensland driver licence to police and referring to the disqualification period being shortened on appeal, rather than quashed on appeal which he had previously asserted to police on a number of earlier occasions.
I note in submissions that counsel said the offender could not rely upon any belief of being entitled to drive using a Queensland licence for the offence of 11 March 2023 as the offender was convicted and disqualified for 6 months on 8 November 2022. However, the record shows that the disqualification period was added on to the existing disqualification, i.e., from 24 May 2024 to 23 November 2024.
Notwithstanding that submission, and the offender's early guilty plea to driving whilst disqualified on 11 March 2023, the offender still produced a Queensland driver licence to police and claimed that his disqualification in NSW was shortened on appeal. Knowing that he had been disqualified on 8 November 2022, there could be no legitimate or reasonable basis for producing his Queensland licence to police.
The disqualification for the dangerous driving occasioning death matter was indeed reduced on appeal as it reverted to the automatic period of 3 years. I note that the offender was not attempting to tell police on this occasion that the disqualification was quashed.
Being aware of the shortened disqualification, rather than no disqualification, infers that the offender was indeed aware that he was still disqualified for the Dangerous Driving Occasioning Death matter. Despite that awareness, he still drove on 4 November 2022 whilst speeding, with the illicit drug methylamphetamine in his oral fluid and whilst disqualified, with a passenger in the car. Further, on 11 March 2023 the offender had the additional knowledge of disqualification imposed on 8 November 2022 and yet drove whilst disqualified, at a speed of 134 km in a 100 km zone, with the illicit drug methylamphetamine in his oral fluid and once again relied upon having a Queensland licence.
I do not accept that the offender honestly believed that he was entitled to drive on any of the dates for which the offender committed offences that he is to be sentenced for.
The defence tendered a copy of Director of Public Prosecutions v Andonakis (supra) at [26] - [28], reference is made to a psychological report tendered on behalf of the offender: "[26] Not only was the offender's misconduct serious on the occasion in question, he had displayed a flagrant disregard for the law relating to driving and drug use from an early age. It is convenient to refer to one further passage in Ms Dombrowski's report in this regard: "17. Mr Andonakis shows strong characteristics of poorly developed personality functioning with narcissistic features. People with a narcissistic personality style see the world through a very different lens. In Mr Andonakis' case, he has a strong sense of entitlement, grandiosity and a belief that rules don't apply to him in the same way in which they apply to others. His infidelity, excessive drug use (including cocaine, methylamphetamine and steroid use) and persistent driving offences are reflective of these personality features, combined with a degree of social immaturity and a propensity for risk taking behaviour. To be clear, he doesn't have a flagrant disregard for the law, his indifference is grounded in his narcissistic personality style and the poor insight and egocentric worldview that defines this personality style." (emphasis added) [27] The first part of this passage may be accepted; the proposition that the offender does not have "a flagrant disregard for the law", in the respects noted, cannot be accepted. The fact that there may be a psychological explanation for his attitude confirms the existence of the attitude, rather than denying it. [28] After setting out this passage from the report, the sentencing judge said, "I accept, in broad terms, the opinion of the psychologist." If, by that, the judge intended to dismiss the possibility that the offender had a flagrant disregard for the law, his approach was misguided. That such may have been the intention is supported by an earlier observation that Ms Dombrowski "seems to have, to an extent, minimised his previous record but that is not of great moment." Ms Dombrowski's report indicated that she had before her both the offender's criminal history and traffic record in both New South Wales and Queensland. The dismissive summary of these records [13] was of considerable moment, although it is fair to say that the sentencing judge discussed the record in detail. What is unclear is the extent to which it was reflected in the sentence. In response to the offender's submissions that the judge should not take the driving record into account as an aggravating circumstance of the offence, the judge stated: "I accept her submission but his driving record is so poor that, in my view, it will aggravate the penalty I impose but not aggravate the circumstances of the offence."" (footnotes omitted)
There is reference in the Court of Criminal Appeal decision to the offender "fabricating a story as to whether he was driving at the time", though he eventually pleaded guilty.
I raised with counsel that even if the offender held an honest belief that he was entitled to drive, which I do not accept, the principles in the High Court decision of Ostrowski v Palmer [2004] HCA 30 at [13] and [16] have application. At best, it is a mistake of law, though I do not accept that he was mistaken.
The law in Queensland prevented Mr Andonakis from obtaining or renewing a Queensland Driver Licence due to the disqualification that was, and remains in force, by virtue of the automatic disqualification period of 3 years in New South Wales to date from the offender's release from prison to parole.
Despite that, the offender managed to obtain a further licence in that State. How he did so is not clear. Obtaining a Queensland licence did not entitle the offender to drive in NSW whilst he was disqualified.
The offender had previously been imprisoned for Driving Whilst Suspended and subsequently Driving Whilst Disqualified. He was informed each time that he was stopped by police that he was being prosecuted for Driving Whilst Disqualified. The offender was aware that he potentially faced imprisonment because he had previously been imprisoned for driving whilst disqualified and was still on parole for Dangerous Driving Occasioning Death. There was a risk that the offender's parole might be revoked. He kept offending.
Notwithstanding that awareness of potential imprisonment, there is no evidence or submission that the offender sought legal advice or went to the Road Transport Authority to obtain a copy of his driving record and check whether it accorded with his asserted belief that the disqualification was quashed or confirmed what police officers had said to him.
The offender persisted with a not guilty plea to driving whilst disqualified for the offences of 26 July 2022, 4 August 2022, 9 August 2022, and 4 November 2022. However, I note that he pleaded guilty on 27 September 2022 to the earlier drive whilst disqualified and drive illicit drug matters from 28 May 2022.
It is difficult to reconcile that he admitted his guilt for the earlier offence (of 28 May 2022), yet on the same date he entered not guilty pleas to the subsequent offences, and later to those of 4 November, in circumstances where he was relying on the same belief of entitlement to drive when stopped on each occasion.
The offender was legally represented on each occasion when he entered a guilty or not guilty plea.
I repeat what the offender said as set out in the Sentencing Assessment Report under the heading 'Attitudes': "I knew I couldn't drive. It was in the back of my head."
The offender did not give evidence in these proceedings. His asserted belief that he could drive is not tested. I do not accept his asserted belief.

[17]

General Remarks

I raised with defence counsel the decision of Jibran v R [2020] NSWCCA 86 and referred to the specific paragraphs regarding the facts at [37] - [39], and the sentencing remarks and sentencing principle from [189] - [205] excluding [203] and [204].
The facts in Jibran involve an offender driving whilst disqualified with a passenger in the car. He had a poor traffic record. There were no factors of aggravation regarding driving, i.e., there was no speeding, drug, or alcohol use, erratic or competitive driving, or significant distance travelled.
The relevant paragraphs to the sentencing proceedings for Mr Andonakis are as follows: "[189] It is the bare act of driving whilst disqualified which constitutes the offence. In New South Wales, disqualification from driving follows conviction by a court, which may give rise to "ordered disqualification" or "automatic disqualification" (without a specific court order): ss.204-205, Road Transport Act 2013. Disqualification differs from licence suspension or cancellation which results from administrative action and not court proceedings: see, for example, ss.40, 59 Road Transport Act 2013. Accordingly, driving whilst disqualified involves an offender defying an order made in or flowing from curial proceedings. ……… [190] Factors which may affect the objective seriousness of a disqualified driving offence include the distance travelled and whether there is some urgent or unexpected need to drive which might explain (but not excuse) the act of driving. …. [193]: The Applicant's attitude towards driving whilst disqualified was reflected in his statement to the Community Corrections Officer that transporting himself around was "more important than community safety" (see [48] above) (emphasis added). [194]: The present offence of disqualified driving was a further example of the Applicant's defiance of the law which prohibited him from driving a motor vehicle at all unless he held a driver's licence, an option which was not open to him in any event until his disqualification period expired in 2024. [195] An order of disqualification is made in addition to any penalty imposed for an offence: s.205(5) Road Transport Act 2013. The power to disqualify is given in aid of the proper protection of members of the public in their lawful use of a public highway: R v Veatufunga [2007] NSWCCA 54 at [40]. [196] The plain purpose of the legislation is to regulate aspects of road transport, including the disqualification of persons from driving where it is established those persons have not shown the requisite degree of responsibility necessary to drive, a matter which concerns the protection of the public: Hei Hei v R [2009] NSWCCA 87 at [37]; R v Greaves [2014] NSWCCA 194 at [70]. [197] Further, the Applicant has never held a driver's licence. In R v AB (2011) 59 MVR 356; [2011] NSWCCA 229, this Court said at [112]: "… this Court has said that a licence to drive a motor vehicle is a privilege which carries with it significant obligations to drive safely and not to endanger the lives of others: Gillett v R [2006] NSWCCA 370; 166 A Crim R 419 at 437-438 [47]. The Respondent had never been licensed to drive a motor vehicle and was a disqualified driver at the time of these offences. Far from being privileged to drive as a licensed driver, he was prohibited by law from driving. His driving history, and status as a disqualified driver, indicated an attitude of disobedience to the law and required that increased weight be given on sentence to issues of retribution and personal deterrence: R v Nguyen [2008] NSWCCA 113 at [51]." (emphasis added). [198] Offences of driving whilst disqualified are summary offences prosecuted in the Local Court, although the present offence was before the District Court (and this Court) by way of a s.166 Certificate. It is helpful to note what was said by his Honour Judge Henson in Police v Te Pairi [2008] NSWLC 17 at [53]: "The second sequence of driving whilst disqualified … also warrants the imposition of a term of imprisonment. The principles of general and specific deterrence are of particular importance to these types of offences. Offenders who are disqualified from driving need to know that the community and the court expects that the sentences imposed for offending behaviour will not simply be ignored. Irrespective of the motivation of the offender, predicated as it was on self-interest, the need to respect the law requires from time to time a strong message to be sent to offenders that their wilful disobedience of its strictures comes at a price. In this case the price the offender will pay will be to lose his liberty." (emphasis added). [199] It was an aggravating factor on sentence that these offences were committed in breach of conditional liberty whilst the Applicant was on bail. He was already a disqualified driver, but his actions in driving on 4 and 5 May 2018 constituted further express breaches of his conditional bail. In addition, at the time of these offences, the Applicant was subject to two non-custodial sentencing orders for driving whilst disqualified (see [50] above). All of this needs to be reflected in penalty for these offences. [200] A very strong measure of specific and general deterrence is required for the offence of driving whilst disqualified. [201] Having regard to factors which bear upon sentencing for offences of driving whilst disqualified, I am satisfied that the Applicant's offence on 5 May 2018 lies at the top of the range for such offences. The Applicant's driving whilst disqualified offence warrants the imposition of the maximum penalty of imprisonment for 12 months, reduced to nine months by application of the 25% discount for his early plea of guilty. The maximum penalty represents the legislature's assessment of the seriousness of the offence and for this reason provides a sentencing yardstick: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. Both the nature of the offence and the circumstances of the offender have been considered in determining that this penalty is warranted in this case: Kilic v The Queen (2016) 259 CLR 256; [2016] HCA 48 at [18]. An offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence: Kilic v The Queen at [18]. The sentence to be imposed for driving whilst disqualified in this case accords with the proportionality principle explained in R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15]. [202] The Applicant had prior non-custodial sentencing options extended to him and he had not made full use of the indulgences he had received through those sentencing measures. …. [205] A real concern with respect to the Applicant is his complete disregard for the law as demonstrated by his recidivist history of driving whilst disqualified. That contumelious approach requires a further level of significant caution in assessing his prospects of rehabilitation and compliance with court orders."
The defence do not rely upon any fresh psychological report for these sentencing proceedings, however the opinion offered by the offender's psychologist as referred to in [26] - [28] of the Court of Criminal Appeal judgment appears to still be relevant, noting the Court found that the offender does have a flagrant disregard for the law.
There was no stated urgent or unexpected need for the offender to drive on any occasion.
The offender's assertion that he was under the influence of 'ice' at the time of his offences is not borne out by the facts. None of the driving matters for sentence concern the offender being under the influence of methylamphetamine. The offences of 26 July, 4 August and 9 August make no reference to affectation by drugs or positive testing for drugs. The offences of 28 May 2022, 4 November 2022 and 11 March 2023 involve the illicit drug methylamphetamine found in the offender's oral fluid, but not being under the influence.
The offender's attitude of disobedience to the law requires increased weight to be given on sentence to the issues of retribution and personal deterrence.
The principles of general and specific deterrence are of particular importance in sentencing for driving whilst disqualified offences.
The offender was on conditional liberty by way of parole for dangerous driving occasioning death at the time of each offence for which he is now to be sentenced, other than the March 23 offences for which he was on bail.
Previous sentences of imprisonment have not deterred the offender from driving whilst disqualified, or from driving with an illicit substance in his oral fluid.

[19]

Prospects of Rehabilitation

The Court of Criminal Appeal found that the judge at first instance noted the offender's records paint a picture "of an individual who has little regard for his obligations to obey the driving laws of the state" (emphasis added) [at 12].
That observation is apposite to this sentencing exercise.
There is no information before this Court that indicates that the offender's previous psychological issues have resolved, and nor would I expect that to be the case. To repeat what was opined in the psychological report and relied upon by the offender in the Dangerous Driving Occasioning Death matter: "Mr Andonakis shows strong characteristics of poorly developed personality functioning with narcissistic features. People with a narcissistic personality style see the world through a very different lens. In Mr Andonakis' case, he has a strong sense of entitlement, grandiosity and a belief that rules don't apply to him in the same way in which they apply to others. His infidelity, excessive drug use (including cocaine, methyl amphetamine and steroid use) and persistent driving offences are reflective of these personality features, combined with a degree of social immaturity and a propensity for risk-taking behaviour."
Since that opinion was offered, the offender has reoffended on multiple occasions by driving despite being disqualified, on parole, on bail, and on some occasions coupled with other offending that I shall refer to shortly.
The offender has also relapsed into the use of illicit drugs.
Further, there is no remorse demonstrated by the offender. No submissions were made on his behalf as to remorse. He told the author of the Sentencing Assessment Report that he is regretful, however there is no evidence of remorse or contrition: see Brzozowski v The Queen [2023] NSWCCA 129 at [49] - [61] and s21A(3)(i) Crimes (Sentencing Procedure) Act 1999.
I am unable to find that the offender has good prospects of rehabilitation. His prospects are poor.
Even if the offender ceased to use drugs, I would be guarded as to his prospects of rehabilitation. The offender's assertion in the Sentencing Assessment report that all of the driving offences are linked to his drug use, and that he was under the influence at the time of his current offences, is simply not credible.
I am unable to find that the offender is unlikely to re-offend.

[20]

Sections 3A and 5 Crimes (Sentencing Procedure Act.

Section 3A sets out the purposes of punishment, namely: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
There is a strong need to impose a sentence that reflects specific deterrence, general deterrence and to protect the community from the offender by the nature of the penalty to be imposed and the adequacy of the sentence.
It is acknowledged that the offender's drug issues require consideration of promoting his rehabilitation. However, the other purposes of sentencing identified have greater importance in this sentencing exercise.
Section 5 of the Crimes (Sentencing Procedure) Act 1999 provides that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate.
To adopt the words of Johnson J. in Jibran at [201]: "Having regard to the factors which bear upon sentencing for offences of driving whilst disqualified, I am satisfied that" the offences of drive whilst disqualified for which the offender is to be sentenced sit at the top of the range for such offences.
I am satisfied that all of the drive whilst disqualified offences for which the offender is to be sentenced for cross the section 5 Crimes (Sentencing Procedure) Act 1999 threshold and that only a period of imprisonment is appropriate. The submission that the first four of the drive disqualified offences should be dealt with by way of Community Correction Orders is with respect, aspirational, and would fail to properly reflect the identified purposes of sentencing.
I have rejected the submission that the offender's moral culpability is reduced due to his subjective beliefs.
The offender's very significant traffic record both in New South Wales and Queensland; the frequency of committing traffic offences; the disregard for the law; the risk taking behaviour when driving including having illicit drugs in his system, and speeding, coupled with his psychological issues identified in paragraph 17 of the report used in the sentencing proceedings in 2018, leads me comfortably to the conclusion that he presents more of a danger to the community which require considerations of specific deterrence. If mental health issues had been raised by the defence in the nature of the psychologist opinion referred to in the inadequacy of sentence appeal, the fifth principle in paragraph 177 of DPP (Cth) v De La Rosa [2010] NSWCCA 194 at 177 would be relevant: "Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]."
In Meis v R [2022] NSWCCA 118 at [40] - [42], the Court examined whether there was an obligation to take into account a significant previous conviction pursuant to section 21A(2)(d) Crimes (Sentencing Procedure) Act 1999. The court said: "[40] If it is accepted that the previous conviction was significant and therefore the sentencing judge was obliged, under s 21A(2)(d), to take it into account, a real question concerning the manner in which it was to be taken into account arises. That is because, as mentioned above, it could not be taken into account in a way that was inconsistent with common law principles. [41] The relevant principles were stated authoritatively by Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 ("Veen (No 2)") in the following way: "The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." [42] Accordingly, before the applicant's previous conviction could properly be taken into account as an aggravating factor, it was necessary that the sentencing judge consider: whether the present offending was an uncharacteristic aberration; whether the applicant manifested in the commission of these offences a continuing attitude of disobedience of the law; and whether the applicant's previous offence illuminates his moral culpability in relation to the current offending or shows a dangerous propensity, or a need to impose "condign punishment" by way of specific and general deterrence."
The matters for which the offender is now to be sentenced are not an uncharacteristic aberration. His offending represents a continuing disobedience of the law. His previous offending illuminates his moral culpability in relation to the current offending. I note in De La Rosa (supra) that moral culpability may be reduced where there is a causal connection between the offender's driving and his mental health, and I repeat that no reliance was placed by the defence on his mental health to reduce moral culpability. The offender's thoughts in the Sentencing Assessment Report are revealing and do not support a reduction in moral culpability: ""It was exactly what I did last time and it quite easily could have happened again. I could have killed someone." Mr Andonakis stated that he was speeding, no one was on the road, and when under the influence of ice he does not care and feels invincible. "I knew I couldn't drive. It was in the back of my head.""
There is a dangerous propensity and a need to impose condign punishment by way of specific and general deterrence.
The Dangerous Driving Occasioning Death matter occurred when the offender was disqualified from driving and with a high level of methylamphetamine in his blood sufficient to impair his driving ability.
Whilst on parole or bail and disqualified, the offender's traffic and criminal record show that he drove on the following dates: Date Offence 18 April 2022 Speeding - Qld Record 20 May 2022 Drive Illicit Drug 28 May 2022 Drive Disqualified; Drive Illicit Drug 6 June 2022 Speeding - Qld Record 26 July 2022 Drive Disqualified (Charged); Speeding More Than 20 Less Than 30kph (NSW Record) 2 August 2022 Speeding (Qld Record) 2 August 2022 Speeding (Qld Record) 4 August 2022 Drive Disqualified (Detected Speeding) 9 August 2022 Drive Disqualified 11 August 2022 Speeding - Qld Record 16 August 2022 Speeding - Qld Record 30 August 2022 Speeding - NSW Record 7 September 2022 Speeding - Qld Record 8 September 2022 Speeding - Qld Record 5 October 2022 Speeding - NSW Record 14 October 2022 Speeding - NSW Record 17 October 2022 Speeding - NSW Record 17 October 2022 Speeding - NSW Record 4 November 2022 Speeding, Drive Illicit Drug and Drive Disqualified 11 March 2023 Drive Disqualified, Drive Illicit Drug and Speeding (134/100kph)

[24]

Consideration of Intensive Correction Order

In R v Cahill [2015] NSWCCA 53 referred to the inherent leniency of an Intensive Correction Order at [114]: "This Court has emphasised the significant degree of leniency involved in the use of an ICO as a sentence. Although statements made in R v Pogson (in the joint judgment of McClellan CJ at CL and myself) point to the breadth of the concept of rehabilitation, and the capacity of an ICO to operate as a form of punishment, it is important not to lose sight of the need for an appropriate and proportionate level of punishment, in the form of immediate incarceration, in cases of serious offending."
In R v Fangaloka [2019] NSWCCA 173 Basten JA. Said at [67]: "……there will remain cases in which the significant element of leniency contained in an ICO is inconsistent with the imposition of an adequate penalty, so that an ICO is an unacceptable form of punishment".
In Karout v R [2019] NSWCCA 253 at [94], Fullerton J. said: "The fact that his Honour made positive findings as to the applicant's good prospects of rehabilitation and that he was unlikely to reoffend, findings which might, in addition to a finding of special circumstances, have supported the exercise of the power in s 66 for the making of an ICO, did not dictate that an ICO was the appropriate sentencing outcome. Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant's offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play."
I have specifically found that the offender has poor prospects of rehabilitation, and I could not find that he is unlikely to re-offend. Nothing appears to have changed since the major offence committed in 2016: see Director of Public Prosecutions v Andonakis (supra) at [42] and [43].
In relation to section 66(3) of the Crimes (Sentencing Procedure) Act 1999, I have already referred to relevant case law and the purposes of sentencing pursuant to section 3A of the Act, which are required considerations in determining whether it is appropriate to deal with an offender by way of an Intensive Corrections Order.
In relation to section 66(2) of the Crimes (Sentencing Procedure) Act 1999, I am satisfied that a sentence of full-time imprisonment is more likely to deal with the offender's risk of re-offending. Being disqualified from driving, being on parole, and being on bail has not abated the offender's offending and the consequent risk to the community - whether with illicit drugs in his system or not.
In relation to section 66(1) of the Crimes (Sentencing Procedure) Act 1999, I could not be satisfied that the imposition of an Intensive Correction Order would afford community safety. I have made findings concerning the increased need for the protection of the community from the offender.
There exists a genuine risk of the defendant re-offending in a manner that may affect community safety: see Stanley v DPP [2023] HCA 3 at [72].
I reject the submission that it would be appropriate to place the offender on an Intensive Correction Order. The sentence will be served by way of full-time imprisonment.

[26]

Disqualification Periods

In determining the appropriate periods of disqualification for each offence, I note the following: 1. The offences of Drive Disqualified and Drive Illicit Drug have automatic disqualification periods of 12 months. The speeding offence has a disqualification period of 3 months. The Court has the power to reduce a disqualification period to the minimum period if considered appropriate to do so. 2. The overall disqualification period to be imposed should not simply be an accumulation of the individual disqualification periods imposed for each offence. 3. The fact that the offender is currently disqualified as presently reflected on his NSW traffic record, until 24 November 2024. 4. The fact that the offender has previously committed a 'never-eligible offence' as defined in section 221A of the Road Transport Act 2013 and is therefore not eligible to apply for removal of licence disqualifications pursuant to section 221D of the Act. 5. The fact that section 206A of the Act has no application as the offender is not being imprisoned for a 'major offence' as defined in section 4 of the Act. Accordingly, the overall disqualification period will commence from the date that I set, and not automatically by law from the date of his release to parole. 6. The Court can order that disqualification begin on the date of conviction or on a later day specified by the court: see section 207A of the Act.
No reason has been advanced as to why the automatic disqualification periods should not apply, and in the circumstances the automatic periods will apply. However, I consider it appropriate to stagger the commencement date of the disqualification periods to effectively put in place an overall disqualification period of 5 years to commence from today.
By doing so, I note that some of that disqualification will operate whilst the offender is in custody.
My clear intention in determining the overall disqualification period is such that the offender will still be disqualified for a period of not less than 3 years upon his release.

Police v Andonakis

At a glance

Court

Decision date

Source

Judgment (29 paragraphs)

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Legislation Cited (5)

Cases Cited (32)