Mackenzie v R [2021] NSWDC 764

District Court New South Wales

Medium Neutral Citation: Mackenzie v R [2021] NSWDC 764 Hearing dates: 23 February 2021 Date of orders: 23 February 2021 Decision date: 23 February 2021 Jurisdiction: Criminal Before: Neilson DCJ Decision: The disqualification period imposed by the Local Court at Manly for the sequence 3 offence is set aside Catchwords: CRIME – APPEAL – DRIVING OFFENCE. Failing to give way to a pedestrian when making a left-hand turn. Offender fined for breach of Road Rule. Local Court also disqualified offender from driving for 6 months. Effect of appeal was to make that period cumulative with a disqualification period of 3 months for a low range PCA offence. Disqualification period not mandatory. Wholly discretionary as to whether to impose and, if so, for how long. Significant impact on offender's ability to manage his businesses and derive his income. Legislation Cited: Road Rules 2014 (NSW) Road Transport Act 2013 (NSW) Cases Cited: Application by the Attorney General (No 3 of 2002) (2004) 61 NSWLR 305; [2004] NSW CCA 303 Texts Cited: Nil Category: Sentence Parties: R – Crown Appellant – Keith James Mackenzie Representation: Crown Makin Appellant Self-represented File Number(s): 2019/00221297 Publication restriction: Nil

Judgment 1. HIS HONOUR: This is an appeal against the severity of a sentence passed by Magistrate Reiss sitting in Local Court at Manly on 26 November 2020. After a contested hearing his Honour found the appellant guilty of a crime of not giving way at lights to a pedestrian on his left as he was turning left. That is an offence contrary to r 62(1)(b)(ii) of the Road Rules 2014. The maximum penalty for the offence is a fine of $2,200. His Honour imposed a fine of $1,200 and also disqualified the appellant from driving for a period of six months. 2. The offence occurred on 1 February 2019. As a result of what happened on that day the appellant was charged with three offences, the first was a low range PCA offence to which he pleaded guilty. The second offence was negligent driving occasioning grievous bodily harm. His Honour ultimately was not satisfied that the Crown had proved beyond reasonable doubt that the victim of the driving, a young lady of approximately 30 years of age, had suffered grievous bodily harm and therefore that charge was dismissed. However his Honour found the appellant guilty of not giving way at lights to a pedestrian as he was turning left. 3. The offence does not carry any automatic or mandatory period of disqualification. However, the Road Transport Act 2013 provides a sentencing court with power to order a disqualification for offences against the Road Transport Legislation. Section 204 subs(1) provides this: "A court that convicts a person of an offence against the Road Transport Legislation may, at the time of the conviction, order the disqualification of the person from holding a driver's licence for such period as the Court specifies." Here his Honour exercised that power and disqualified the appellant from driving for six months. On this severity appeal the appellant asks me to set aside the disqualification period. 1. In Application by the Attorney General (No 3 of 2002) (2004) 61 NSWLR 305; [2004] NSW CCA 303, it was pointed out at [116] that licence disqualification is such a significant matter, and can have such a devastating effect upon a person's ability to derive income and to function appropriately within the community, that it is a matter which must be taken into account by a court when determining what the consequences should be both penal and otherwise for a particular offence committed by a particular offender. However the sentence discretion should not be controlled by one such factor alone nor should a court in fixing a sentence disregard the clear intention of Parliament has the effect that the commission of an offence is to have on the offender's right or privilege to drive a motor vehicle on public streets. 2. Here the offence was under the Road Rules and Parliament has not prescribed any mandatory disqualification period. The matter was purely discretionary. The appellant tells me and I accept that his businesses require him to travel weekly to St Marys to attend upon a factory which manufactures products on his behalf. He is also the chief salesman for both his businesses, one that manufactures coatings and one that he imports coatings and he is required to travel both within this State and interstate, in particular to Victoria and Queensland, to go about his business and that is required from time to time to travel to New Zealand where no doubt it is convenient to drive a rental car rather than to rely on taxi cabs. 3. I am persuaded that the disqualification period imposed will cause a major impact on the offender's businesses and therefore his ability to derive his own income and to protect his economic interests because an absent manager, or the like, is often an invitation for things to go amiss in any business. 4. The learned magistrate who convicted the appellant of this offence, for the PCA offence, imposed the minimum disqualification period which is about to expire. It expires on 25 February. However, the making of this application to this Court stayed the other disqualification period so that if it is not set aside, or refused, the appellant will be required to spend another six months without a licence. It may be pointed out that that is the result of his invoking the appeal process, but it is unlikely in my view that he realised that that might be what would occur. Had he not appealed, the two disqualification periods would have run concurrently so there would only be a further three months that he would be required not to drive. 5. However, there is still the consideration of this further disqualification period. The appellant has been fortunate in that in December his businesses are not busy and only return to demand after the Australia Day holiday so that his three-month disqualification period commencing on 26 November 2020 was in a period of low demand for him. Going forward, however, will be a period of high demand and the need to travel. 6. The Crown has submitted that I should consider the fact that the appellant pleaded not guilty but was found guilty but that is reflected by the fact that the learned Magistrate imposed a fine of $1,200 where the maximum penalty is $2,200 reflecting a finding of mid-range of objective seriousness for the offence without any reduction for a guilty plea. Unfortunately, the learned Magistrate's reasons are not before me. I can understand the circumstances of this case that the disqualification period is severe bearing in mind the personal circumstances of the appellant and his need to have a licence to go about is business and earn his livelihood. 7. For those reasons the disqualification period imposed by the Local Court at Manly for the sequence 3 offence is set aside. APPELLANT: Thank you your Honour. 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: 23 March 2022