District Court New South Wales Medium Neutral Citation: R v Sutton [2021] NSWDC 640 Hearing dates: 19 November 2021 Date of orders: 19 November 2021 Decision date: 19 November 2021 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 42 Catchwords: SENTENCE – severity appeal – roads and traffic offence – use of mobile phone while driving – where offence occurred during 'good behaviour' licence conditions – whether Conditional Release Order should be made Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 10 Road Rules 2014 (NSW) s 300 Cases Cited: Re Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act (No.3 of 2002) (2004) 61 NSWLR 305 Category: Sentence Parties: Road Transport for NSW (prosecutor) Peter Sutton (appellant) Representation: Counsel: Mr A Liashenko (solicitor advocate) for Road Transport for NSW Ms S Marinovic (solicitor advocate) for the appellant Solicitors: Ainsley Law for the appellant File Number(s): 2021/00203192 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: No reported Date of Decision: 13 October 2021 Before: Mijovich LCM File Number(s): 2021/00203192 Judgment BACKGROUND 1. On 13 October 2021, the appellant was sentenced by the Penrith Local Court for the offence that on 24 March 2021 at about 7:42pm at Rouse Hill, he drove his motor vehicle whilst using a mobile phone, contrary to s 300 of the Road Rules 2014 (NSW). After a plea of guilt was entered, the learned Magistrate imposed a $500 fine. The appellant appeals the severity of that penalty. 2. The maximum penalty for this offence was a $2,200 fine. THE FACTS 1. The essence of the offending was captured on camera. It showed the appellant's vehicle driving southbound along Windsor Road at Rouse Hill. Still photographs taken by the camera clearly showed the appellant carrying a mobile phone in his left hand as his right hand held the steering wheel. 2. Before the Magistrate, the appellant supplied a typed letter in which he explained the offending. He acknowledged that it was wrong for him to hold a phone and understood that by doing so, he might become distracted, but he explained that at the time of the offending, he was travelling to work and hit a huge pothole on a 'film shoot'. When he returned to his car, he discovered that a tyre was flat. He explained that he applied some hardening foam, as a temporary measure until he could drive his Mercedes vehicle to a repairer. That only made the journey bumpy. It was this bumpy ride, he said, which caused the phone holder and his mobile phone, to detach and fall into the foot well underneath his feet. He said that, in a moment of panic, he used his left hand to pull up the phone holder and place it in the centre console in the vehicle. 3. In support of his version of what occurred, the appellant relied upon an invoice showing repair works undertaken by Beaurepairs on his Mercedes vehicle 3 days after the subject offending. 4. Following a response to an inquiry from the Court as to how long the appellant held the mobile phone, his solicitor called the appellant to give evidence on that point. The appellant restated the process by which he got the phone into his hand and said he put it in the centre console. All he could say was that he did not hold it for an extended period of time. 5. The appellant was cross-examined on this. It was put to him that he could have pulled the car over. The appellant could not recall whether this was so. He was, he said, in a state of panic. He accepted that prior to the offending, it had been a stressful day for him. 6. Bearing in mind that it would be an adverse fact if the appellant had held the phone for an extended period of time, rather than a fleeting moment, despite my reservations (he did not allude to the period he held it in his letter of apology to the Local Court), I am not satisfied beyond reasonable doubt that he did hold it for any substantial period of time. 7. He also relied upon documents that purported to verify his evidence about the many places where he had driven for work purposes. THE APPELLANT'S SUBJECTIVE CASE 1. The appellant was aged 42 at the time of the offending. 2. I will defer consideration of antecedents until later when I address the appellant's principal application that a conditional release order be imposed on him. Plea 1. The appellant is entitled to a discount on account of his plea. Contrition 1. In his typed letter, the appellant touched upon this record and acknowledged, in particular, that at the time of offending, he was subject to 'Good Behaviour' driving conditions. He noted that by reason of this status, he recognised a need to drive responsibly, to follow all road rules and in particular, not to speed. 2. The appellant also relied upon a statement of his wife, Rumi Sutton. She confirmed his regret. 3. I accept that he is contrite about the offending. Character 1. There was also evidence that he is a person generally of good character. This was given by Chana McLallen, head of production for a company called 'Good Oil', a Television commercial production company. Reference was made, in particular, to pro bono work that the appellant had performed for various clients to produce television commercials. Although Chana McLallen described the appellant's role as 'Head of Electrics' on various productions, the referee did not specifically allude to the necessity for him to drive. 2. Evidence of general good character is of very limited weight when sentencing for offences of this kind. Hardship to offender's family and extra-curial punishment to the offender 1. The thrust of his presentation in the Local Court and in this Court, to a lesser degree, was the consequences of the offending. The appellant explained that he had sustained stress as a result of the realisation that not being able to drive would impact his business as a lighting technician for film productions. This required him to drive trucks across the State. He explained that he was a contractor and had no employees who could do this work. Without his being able to work, he was concerned about his capacity to provide for his family. He is the sole breadwinner and has a 9 year old daughter. 2. The appellant's evidence about his family's dependence upon him was confirmed by Mrs Sutton. She referred to particular difficulties caused as a result of the effects upon the film industry of the COVID-19 Pandemic. This evidence, it will be recalled, was evidence given as at March this year, before the prolonged Lockdown to Greater Metropolitan Sydney during the last winter. Rehabilitation and prospects of reoffending 1. The appellant placed before the Local Court evidence of his participation in a Road Sense TOPI program. This featured various modules (one of which included 'Distracted Driving') which he had completed. I accept the evidence in the appellant's typed statement about his recognising his duty, as a driver, to drive safely. 2. I accept, generally, that the experience has been salutary although I cannot help wondering why the appellant's earlier experiences before the Court had not driven the importance of his abiding by road rules home to him earlier. 3. I find his prospects of rehabilitation to be reasonable. SUBMISSIONS 1. In this appeal, the legal representative for the appellant submitted the appropriate penalty was a Conditional Release Order ('CRO'). 2. The representative for Transport NSW who appeared opposed that submission. 3. I take into account the maximum penalty and the considerations in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act'). 4. A CRO requires the Court to be satisfied that it is either inexpedient to inflict any punishment (other than nominal punishment) on the offender or that it is expedient to discharge him under a CRO. 5. The Court must consider the requirements in s 10(3), although they are not exhaustive. Further, none of them are conclusive. 6. As to s 10(3)(a), the offender's 'character' in the relevant sense, his age and health do not, on balance, materially assist him. 7. The appellant's driving record indicates that since 1995, when he obtained his Learner's permit, he has had a significant number of infractions of driving rules, relating to driving in excess of the speed limit. Many of those instances occurred in 2019 and 2020. There have been other offences, as well, such as disobeying traffic lights and driving with one passenger being unrestrained. He has had imposed on him a number of fines including, most recently, a $489 fine for a speeding offence in September 2020. Further, he has been the recipient of many demerit warning letters throughout 2019 and 2020. In October 2020, he had in fact had a suspension of an unrestricted licence scheduled to commence for a three month period on 12 November 2020, however that suspension was not implemented and he was subject to 'Good Behaviour' conditions, applicable from 12 November 2020 to 11 November 2021. It was In this period that the offence occurred. It is to be noted that there was no prior infringement of the present kind; of driving whilst holding a mobile phone. 8. Nevertheless, the circumstance that the offending occurred whilst the appellant was subject to 'Good Behaviour' is an obvious concern to the Court. There is no reason for construing the concept of good behaviour narrowly to mere speeding offences even if it was that particular offences which gave rise to the imposition of those conditions. The circumstance that his offending occurred at a time when he was subject to good behaviour conditions elevates the gravity of the offending and the consideration that he needs to be held accountable for his behaviour. 9. Moreover, the circumstance of repeated infringements of road rules generally means that the appellant would not be entitled to the degree of leniency extended to first time offenders. 10. I accept that for someone of his trade, he necessarily has to drive with greater regularity than most motorists and that this exposes him to the possibility of greater mistakes or even infractions of rules than motorists who do not drive with the same regularity. But his antecedents are such that, as the legal representative for Transport NSW submitted, they do not entitle him to leniency. 11. As to s 10(3)(b), I do not regard the offending as trivial. The time taken to retrieve the phone, however short, presented an inherent distraction to the driver. The act of holding the steering wheel single-handedly exposed the appellant, and other drivers, to the potential risk that he may not have full capacity to adjust to any unexpected circumstances on the road. Further, by using his left hand to pull up the phone, there was a real likelihood that this might have resulted in his averting his eyes from the road to what was at his feet, it was a risky manoeuvre. It is also quite possible that he averted his eyes from the road to secure the phone and handset in the console. 12. As to s 10(3)(c), I accept the submission of the appellant's solicitor that this was not a paradigm case of a driver holding a mobile phone for the purpose of using any function of the phone. But I also accept Transport for NSW's submission that the circumstance of a falling handset and phone is neither unprecedented nor unforeseeable. I accept that the appellant's conduct was likely to be an instinctive reaction; rather than a deliberate action. But it may be doubted whether the circumstance that a motorist chooses to hold a phone in their hand really assist the appellant: most motorists, if they thought about it, would appreciate that not only is there a road rule against holding a phone, but that it might be risky to do so, for any reason. At any rate, it is difficult to understand how the appellant panicked. The phone fell at his feet, even if it might have been moving around and possibly irritating him. It was not going anywhere. The appellant did not say that he heard that it was broken, which might instinctively have meant that he would become anxious about the condition of the phone. 13. A problem for the appellant is that he did not say that he was unable to pull over. Indeed, in his letter to the Magistrate, he said that, on reflection, he would have pulled over. I do not accept his solicitor's submission that by that written reference, he was only trying to convey to the Magistrate that he was intending to say that he would have tried to pull over. Read naturally and in context, I interpret him to say that there was no impediment to his pulling over. He opted to take the risky course of engaging in a risky manoeuvre in a context of a moving vehicle when there was no necessity to take the course he did. If there were extenuating circumstances here, they were not powerfully so. 14. As to other matters (per s 10(3)(d)), I accept that the appellant is remorseful and has learned more about the dangers of driving even if, as appeared from the content (the sixth and seventh paragraphs) of his letter to the Magistrate that what he had particularly learned was the need not to speed. 15. I accept that there is no suggestion that he has committed any other offence whilst being subjected to Good Behaviour conditions. I do not consider that this materially assists the appellant, given that it is the community's expectation that he would comply with those conditions. There is force in Transport for NSW's submission that, by his offending, the appellant effectively broke a solemn promise; and that his conduct had to be contextualised with reference to the graduated scheme of demerit points so that motorists are, or should be, deterred from committing further infractions of road rules by the ever looming prospect that they might become disqualified. His effective promise of good behaviour was general and unqualified. It was not limited by reference only to a promise not to drive in excess of speed limits. I accept that the effect of the appellant's application is that he is seeking dispensation from the consequences that flow from not complying with that promise. 16. It is well understood that an order under s 10 cannot be used to circumvent the operation of consequences flowing automatically by reason of legislative provisions where the dismissal of a charge is otherwise not warranted by the nature of the offending: Re Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act (No.3 of 2002) (2004) 61 NSWLR 305 at [132]. In that case, the consequences were disqualification of the person from holding a drivers' licence. In my opinion, the hardship to family and the appellant's own finances flowing from his inability to drive referred to by the appellant fall within this category. 17. Further, the circumstance that the offender is a contractor and a sole breadwinner and, in either or both of those capacities, depends upon driving would not usually be regarded as being of the kind of exceptional circumstances that would materially elevate the consideration of hardship or 'extra-curial' punishment as mitigating factors. If it was, it would contravene another principle of the law generally, that being equality before the law. Self-employed contractors or family breadwinners are not in a preferential class or classes of offenders for this type of offending. 18. Weighing the matters in s 10(3), I am not satisfied that it is expedient to discharge the appellant under a Conditional Release Order. 19. Taking into account more general sentencing considerations and the maximum penalty, I agree with the penalty imposed by the Local Court. 20. The severity appeal is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 November 2021