Antunes v R [2022] NSWDC 148

District Court New South Wales

Medium Neutral Citation: Antunes v R [2022] NSWDC 148 Hearing dates: 3-4 February 2022 Date of orders: 4 February 2022 Decision date: 04 February 2022 Jurisdiction: Criminal Before: Neilson DCJ Decision: The appeal against the severity of the sentence is dismissed. Catchwords: CRIME – APPEAL – SENTENCE – Severity of sentence – Request for a Conditional Release Order – Appellant alleges need for licence – Appellant's driving history considered – Appellant's antecedents considered – Whether case appropriate for a Conditional Release Order. Legislation Cited: Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Road Rules 2014 (NSW) Cases Cited: Matta v The Australian Competition and Consumer Commission [2000] FCA 729 Texts Cited: Nil. Category: Sentence Parties: R – Crown Appellant – Nathan William Cavaco Antunes Representation: Crown – Bowden, C., Gunther, M. Appellant – Cook, A., Averre, A. File Number(s): 2021/00208838 Publication restriction: Nil. Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Nil. Date of Decision: 18 October 2021 Before: Donnelly LCM File Number(s): 2021/00208838

Judgment

Background 1. HIS HONOUR: This is an appeal against the severity of a sentence passed by His Honour Magistrate Donnelly, sitting in the Downing Centre Local Court, on 18 October 2021. The appellant, Nathan William Cavaco Antunes, pleaded guilty to a charge that at about 8.48 am on 19 June 2021 he travelled at a speed of 114 km per hour in a traffic zone where the speed limit was 80 km per hour. At the time he was driving a motor vehicle with registration number EEJ 36Q. The offence is a breach of r 20 of the Road Rules 2014. The offence occurred on Warringah Freeway at North Sydney. The maximum penalty for the offence is a fine of $2,200. The offence carries a compulsory licence disqualification period of three months. It also carries five demerit points. His Honour imposed a fine of $900. The automatic disqualification period of three months followed. 2. The offender in this appeal asks me to give him the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999 and asks that I impose a Conditional Release Order pursuant to s 10(1)(b) of the Sentencing Act. Under s 10(2) the following is provided: "(2) An order referred to in subsection (1) (b) may be made if the court is satisfied— (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to discharge the person under a conditional release order." Under s 10(3) the following is provided: "(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors— (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider." 1. I must, in deciding whether to extend to appellant the relief which he seeks, consider the matters referred to in s 10(3). The appellant is 33 years old. Before the Local Court the appellant relied upon a letter addressed to the learned Magistrate bearing date 15 October 2021. In this Court he has affirmed an affidavit on 1 February 2022, which was read yesterday. 2. The appellant left school at the end of year 11. He attended Newington College for his primary education and his secondary education was at Trinity Grammar School at Summer Hill. When he was 17, after completing year 11, he went to England to participate in the Formula BMW Series for 12 months and was subsequently recruited by Red Bull as part of its young talent program, in which he participated in the following year until Red Bull cancelled his sponsorship, along with a number of other young drivers. It would appear that from an early age the appellant was interested in driving as a potential career. 3. One of his childhood sports was driving go-karts. That historical fact is contained in a history given by the appellant to Ms Alison Cullen, a psychologist who interviewed the appellant on 11 January 2022. It was perhaps his prowess as a go-kart driver that led to his obtaining the Formula BMW Series participation in England and his subsequent recruitment in the Red Bull young talent program. 4. The appellant's affidavit tells me that he then returned to Australia, "devastated with all my dreams, aspirations and confidence shattered." He then commenced working as a driver coach, coaching drivers who were already licensed on driver safety, defensive driving, and advanced driving skills. Up until very recently he was still doing such work. 5. Like many people he has experienced a number of vicissitudes in his life, the first I have already referred to, his loss of his work with Red Bull overseas. He has been in a number of relationships. The most recent one ended in marriage, but that marriage ended on the 12 August 2020. Like many people, the appellant found that the breakdown of his marriage affected him. In his affidavit he said this: "I felt completely without purpose. I was unable to concentrate on anything. I did not want to do anything. I felt totally lost. I had nothing to look forward to. I wanted to lose consciousness and not be aware and escape and forget." The breakdown of many relationships, whether they involve marriage or not, can leave one or both of the parties to the former relationship in states of such nature. That is common human experience. 1. After the breakdown of his marriage, the appellant commenced to cohabit with his brothers at Beverly Hills. To take his mind off the vicissitudes of life, he enrolled in a soccer team to play football on weekends. On 24 April 2021 he played his first game of football against a team that he described as "very rough". According to the offender's affidavit, one of the players in the other team deliberately struck him in the back, causing him back injuries. His pain was so severe that he was unable to walk and had to be carried to St George Hospital, where he was admitted overnight. A CT-scan performed at the hospital is reported in this fashion: "There are mildly displaced fractures of the first to third right transverse processes of the lumbar vertebra. There is a further irregularity in the inferior end-plate of L3, with associated linear calcification - suspicious for a further fracture." On discharge on the day after his admission, the appellant was told to take painkillers and was encouraged to exercise gently, such as walking and swimming, and was told to avoid bending or stooping. He was also told to undergo physiotherapy. The appellant told me that he had a long period of bedrest and was off work for between 12 and 14 weeks. 1. The circumstances in which the appellant committed this driving offence are deposed to in [29] of his affidavit. It is this: "The speeding incident happened when I had left my home for the first time after the incident on 24 April 2021 and I drove my car on my way to a physiotherapy consultation in Cremorne, which was the commencement of my rehabilitation treatment. I had driven from my home in Beverly Hills on my way to Cremorne and I went through the Sydney Harbour Tunnel, and when I exited the tunnel I realised that I was not in the correct lane to take the next Military Road exit to Cremorne. I panicked because there was only about 200 metres before the exit and I was in the far left lane and I accelerated to get to the exit. I accelerated and did not realise the speed that I was doing. When I was pulled over by the police I was shaking. I was not aware that I was doing that speed. I had been suffering for many months from depression, a lack of motivation, a lack of focus on what I was doing and I was not focussed on my driving on that day. I felt extreme remorse and regret for my actions." 1. The posted speed limit on that part of the Warringah Freeway was 80 km per hour. The appellant accelerated to a speed of 114 km per hour. The offence occurred at 8.48am. That is a time when there would have been much traffic travelling towards the city, in other words, in the opposite direction to the route being taken by the appellant, but still at a busy time for traffic in each direction on the Warringah Freeway. The northbound lanes would of course have been reduced to enable a larger number of southbound lanes to take traffic into the Sydney Harbour Tunnel and onto the Sydney Harbour Bridge to let it access the city.