Ammula v R [2022] NSWDC 557

District Court New South Wales

Medium Neutral Citation: Ammula v R [2022] NSWDC 557 Hearing dates: 3 August 2022 Date of orders: 3 August 2022 Decision date: 03 August 2022 Jurisdiction: Criminal Before: Neilson DCJ Decision: I reduce the disqualification period to the minimum disqualification period of three months. The appeal is otherwise dismissed. Catchwords: CRIME – APPEAL – SEVERITY OF SENTENCE – Whether Appellant received Court Attendance Notice – Whether Appellant had sufficient reason for not attending Court when required to do so. Legislation Cited: Nil. Cases Cited: Nil. Texts Cited: Nil. Category: Sentence Parties: Appellant – Chandra Shekar Ammula R - Crown Representation: Appellant – Moore. Crown – Gunter, D. File Number(s): 2022/00099394 Publication restriction: Nil. Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Civil Date of Decision: 24 May 2022 Before: Miller LCM File Number(s): 2022/00099394

Judgment 1. HIS HONOUR: This is an appeal against a sentence imposed by Magistrate Miller sitting in the Local Court at Burwood on 24 May 2022. The Appellant pleaded guilty to a charge that on 4 April 2022 at Auburn he did drive on a road a motor vehicle of a class to which a suspended driver licence related, and that the Appellant was a person whose drivers licence of that class had been suspended. The maximum penalty for that offence is imprisonment for six months and/or a fine of 30 penalty units. The offence carries a minimum disqualification period of three months and an automatic disqualification period of six months. His Honour imposed a fine of $700 and disqualified the Appellant from driving for a period of four months. 2. The Appellant came to Australia from India on 11 July 2019. Initially, he was living with a friend at Westmead. In September 2019, he moved to an address in O'Neill Street, Guildford, where he also lived with a friend, whether it be the same friend or not I do not know. According to the Appellant he moved from the address in O'Neill Street, Guildford, on 4 August 2021 to an address in Pitt Street, Parramatta. His evidence is that he has lived at that address since that time. 3. On 17 September 2021, police, using a Lidar device, ascertained that the Appellant was speeding well in excess of 80 kilometres per hour on Warringah Road at Roseville Chase. He was pulled over by the police and given a traffic infringement notice. He tells me that, at the time that he obtained that notice, he told the police that his address was in fact his address at Parramatta, albeit that his driver's licence still showed him as residing at Guildford. He told me that he was advised by the police to advise the Roads & Maritime Service NSW ("RMS") of his change of address. He told me that on the following day, 18 September 2021, he advised the RMS of his change of address from Guildford to Parramatta. 4. He elected not to pay the traffic infringement notice and therefore to go to court. A Court Attendance Notice was issued out of the Local Court at Hornsby. The return date for that Court Attendance Notice was 20 January 2022. The Appellant did not appear before the Local Court on that day. The matter came on before Magistrate Mijovich, who convicted the Appellant in his absence and ordered him to pay a fine of $288. According to Exhibit 3, a letter advising the outcome at court on 20 January 2022 was sent by the Registrar at Hornsby to the Appellant at the address in Guildford. However, it was returned to the Court and marked "Return to sender". On 25 January 2022, the Appellant's drivers licence was suspended because of his failure to pay either the traffic infringement notice or the fine imposed by the Local Court at Hornsby on 20 January 2022. 5. The Appellant was pulled over by police at 10.10am on Monday 4 April 2022 whilst he was driving a red Toyota Aurion on Queen Street, Auburn. The purpose of his being pulled over was for the purpose of random breath testing. The Facts Sheet continues thus: "Police identified themselves, that the interaction was being recorded and the reason for which he had been stopped before requesting that he produce his driver's licence. The Accused produced an Indian driver's licence, [number redacted] expiring 04/05/2037. He was subject to a breath test with [a] negative result. Enquiries revealed the Accused to be the holder of a New South Wales class CP1 driver's licence, [number redacted] expiring 24/12/2022. The licence was endorsed suspended due to demerit point suspension commencing the 01/03/2022 until the 31/05/2022. Police directed the Accused to produce the licence and he complied producing his digital driver's licence which was clearly endorsed suspended." 1. The Appellant has a responsible position as a software employee at Linfox Armaguard Group, which is based at Frenchs Forest. According to a letter from his manager, he is a permanent full-time member of the ATM monitoring team. I assume that "ATM" means an "Automatic Teller Machine". 2. The Appellant is not an unintelligent man. He has a Bachelor's degree in Mechanical Engineering from his native land. He has a Master's degree in Information Technology from the Charles Sturt University here in New South Wales. He says that he did not turn up to the Local Court at Hornsby on 20 January 2022 to make what submissions he wished to make to the Local Court about the speeding offence because of three reasons. The first reason was that he had Covid-19. In an affidavit sworn on 20 April 2022 the appellant said this: "3 On 7 January 2022, I underwent a PCR test for COVID-19 as I was experiencing symptoms. I received a positive result on 9 January 2022. I registered this result with the New South Wales Government as I had to take time off work... 4 While Covid positive, I experienced severe symptoms. This prevented me from being able to work from office and moved to work from home. However, due to my symptoms, I was not actively checking my emails. 5 I was due to come out of quarantine on 14 January 2022. However, as I was still suffering from symptoms, I continued to quarantine myself in line with the guidelines from New South Wales Health. 6 As I had to work from office, I took a RAT test on 20th January which returned a negative result, but I was still experiencing symptoms. Due to my symptoms, my GP recommended I refrain from attending work and gave me a medical certificate... 7 After couple of days when I was checking mails, I saw the email with the Court Attendance Notice attached listing 20 January 2022 at Hornsby Local Court as my court date." 1. It is unclear from the oral evidence that the Appellant gave as to whether he was aware of the Court Attendance Notice in the email chains that he had access to prior to 20 January 2022. Indeed, he is consonant with his evidence that he was aware of the return date of the first Court Attendance Notice because he told me that he had forgotten about it, and put forward again as a reason his being stricken with Covid-19 and for two other reasons: secondly disharmony with his girlfriend which led to some depressive symptoms and thirdly, concern about his visa permitting him to be in Australia which he alleges was about to expire on 17 February 2022. 2. When pressed as to why he did not, for example, ring up the Court to ask what he should do or merely to prove that he was ill, the Appellant said that he was unfamiliar with what he should do and never asked for the assistance from anybody about that, neither from his girlfriend nor his flatmate, nor from anyone with whom he worked. Indeed, no representation was made to the Local Court at Hornsby at all. The Appellant's evidence is that the first he knew about his being suspended because of the fine imposed by the Local Court at Hornsby on 20 January 2022 was when he was pulled over by the police on 4 April 2022 at Auburn. 3. Even if he was stricken with Covid-19 on 20 January 2022, he appears to have rapidly overcome his symptoms. His certificate issued via telehealth expired on 21 January 2022. The certificate is in fact dated 20 January 2022. Once that concern had been removed, the Appellant, on the strength of par [7] of his affidavit, had drawn to his attention after 20 January 2022 the fact that his matter was before the Hornsby Local Court on 20 January 2022. One would expect him to at least then, if he had forgotten about it on and prior to 20 January 2022, to have his memory jogged or refreshed by reading the email as referred to in par [7] of his affidavit and to have made some inquiries as to what the result was. However, he did not. 4. The Appellant in evidence told me that he was aware that the legal system in India was taken from the British legal system, imposed from the time when India was part of the British Empire, and that the legal system in India is very similar to the legal system in Australia. He was aware that a failure to attend court when required to do so may result in a person finding themselves in trouble. 5. I found it very difficult to accept what the Appellant was telling me about his lack of knowledge of the court system and his apparent indifference to what had happened at court on 20 January 2022, when one takes into account his level of education and his background. It would have been very easy for him, prior to 20 January 2022, to have someone inform the court that he was ill or to at least make inquiries of others as to what he ought do, yet he did nothing. 6. Even after refreshing his memory about the Court Attendance Notice requiring his appearance on 20 January 2022 after the event, he again appeared to have done nothing if one believes what he says. That, unfortunately, does not bode well for the events of 4 April. He was pulled over by the police and asked to produce his driver's licence. He did not produce his Australian drivers licence but an Indian drivers licence, which clearly would not have been the subject of any suspension imposed by the RMS after failing to pay a fine. After the police made inquiries and found out that he did have a New South Wales drivers licence, which was endorsed suspended because of demerit points, he was directed by the police to produce the licence and he did so. In his evidence before me today, he said that he tried to find it in his wallet but could not, but clearly when directed by the police to produce the New South Wales drivers' licence, he was able to comply. 7. The Appellant, when asked by the police to produce his driver's licence, was able to comply producing his digital driver's licence, which was clearly endorsed suspended. In other words, he knew that he had available to him digitally a driver's licence and, when he looked at that, he knew it was suspended. One wonders therefore why, when he's asked to produce his driver's licence, did he not produce his New South Wales drivers' licence digitally, but he may well not have done that because he knew it was suspended. Hence, he is producing his Indian drivers licence. 8. I am afraid I cannot accept the Appellant's evidence about this, it just does not make any common-sense. Common-sense would indicate that he knew his driver's licence had been suspended, hence he produced his Indian driver's licence. Furthermore, there are difficulties, for example when he obtained a medical certificate by telehealth from the Railway Terrace Medical Practice at Merrylands, the certificate produced reproduced the Appellant's address as being that of O'Neill Street, Guildford. That was clearly a telehealth attendance. I understand that the Appellant had previously consulted the Merrylands practice, but when that was he was unable to tell me. I do not know whether it was before or after he moved to Parramatta on 4 August 2021. 9. The problem is further complicated by the fact that the affidavit sworn on 20 April 2022 gave as his address the address in Guildford which the appellant told me that he thought he should give that address because he believed that was the address shown on his driver's licence. Equally, the affidavit was drawn by his solicitor and she tells me that she only used the Guildford address because that was the address shown on the records of her practice, but the Appellant only consulted her practice on 6 April 2022 which clearly indicates that he is using both the Guildford and Parramatta addresses interchangeably when he wished to. 10. I, therefore, am loathe to interfere with the penalty imposed by the learned Magistrate sitting at Burwood. However, I do accept from two sources of evidence that the Appellant may jeopardise his current employment which is employment by two different bodies, each of which requires him to hold a valid driver's licence. I therefore reduce the disqualification period to the minimum disqualification period of three months. The appeal is otherwise 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: 15 November 2022