18th time Disqualified Driving offender avoids actual imprisonment

Today a 38 year old man avoided jail in the Magistrates Court in relation to the charge of drive whilst disqualified. We fought hard to keep him out of prison. This would otherwise not be significant, except for the fact he had a record 17 prior offences for disqualified driving. Spanning a traffic history of 12 pages and a criminal history of 9 pages, he had what could only be described as a shocking history that included several dangerous operations of a vehicle, evade police, driving under the influence and the like. He had sadly developed an addiction to drugs just after school, and spent most of his adult life in and out of jail. His life was hopeless and negative, and remained in a negative spiral for most of his adult life. Having been released from prison in August of 2023, he drove his vehicle again in May of 2024.

So what kept him out of jail? His history was fairly described as one of a recalcitrant dangerous driving offender who showed a flagrant disregard for the law. Each occasion he committed offences of driving whilst disqualified, he would put the community in danger, by driving dangerously, speeding or being under the influence of drugs. He would normally avoid arrest and wait until he was caught. I described his offending as ‘prison resistant’, in that terms of imprisonment were not deterring him. This latest offence less than a year since being released, whilst disqualified for life, would easily have sent him back to jail but for the time and care taken in placing all relevant matters before the Court.

What changed that allowed him to avoid imprisonment? After being released from prison in August 2023, he made significant efforts to turn his life around. The catalyst to this was his daughter being born whilst he was in prison, and missing out on her birth and development. He eschewed his previous life and drugs. He participated in drug rehabilitation and demonstrated a positive attitude to not reoffend. He had not committed any drug offences since and remained drug free. He went to mediation and had started meaningful contact with his child. He obtained and kept a job. He showed a strong work ethic and was well regarded. He seemingly had a bright future. As soon as he was charged with this offence, he contacted his parole officer. He was not breached.

The deterrence effect came from the birth of his daughter, kick starting rehabilitation. His regular contact with his daughter is the reason for his ongoing rehabilitation. The circumstances were also crucial, in that the driving was a momentary lapse in judgement, deciding to move a car a short distance from a street to a car park. He cooperated fully with Police and made admissions. Unlike his previous offences, there was no other danger associated with the driving, he was simply driving – and not very far. As such it was an example of the offence at the very lowest level. His history was the problem.

The cases support a cautious approach to imposing custody (see Low v McMonagle). Consistent with section 9 (2)(i) and (ii) of the Penalties and Sentences Act, it is clear that in sentencing an offender a court must have regard to the principles that: a sentence of imprisonment should only be imposed as a last resort; and a sentence that allows the offender to stay in the community is preferable…”.

Further section 78 (2) of the TORUM applies and states that in deciding what penalty to impose, the Court must consider:
a. all the circumstances of the case, including circumstances of aggravation or mitigation; and
b. the public interest; and
c. the person’s criminal history and traffic history; and
d. any information before it relating to the person’s medical history or the person’s mental or physical capacity, that the Court considers relevant; and
e. whether the offence was committed in association with the commission or attempted commission of another offence and, if so, the nature of the other offence;
f. and any other matters the Court considers relevant.

The learned Magistrate was persuaded that sending him to jail with actual custody would derail his rehabilitation and would likely cause more danger to the community. By taking him away from his daughter, jail would likely have the opposite effect to the desired specific deterrence. Instead he was given a wholly suspended term of imprisonment. It is a case where persuasive articulation of the sentencing principles has allowed a man to continue to learn from his mistakes and build his life away from jail.