New South Wales District Court CITATION: R v Sung Goo JUN [2008] NSWDC 374 JUDGMENT DATE: 30 July 2008 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: The appeal is dismissed. The orders of the learned magistrate are confirmed. CATCHWORDS: CRIMINAL LAW - Appeal - driving with mid-range prescribed concentration of alcohol - no criminal history - significant reading - whether character warrants a s. 10 order LEGISLATION CITED: Road Transport (Safety & Traffic Management) Act 1999 s 9.3A Crimes (Sentencing Procedure) Act 1999 s 10 PARTIES: Regina Sung Goo Jun FILE NUMBER(S): 2008/10466 SOLICITORS: NSW Office of the Director of Public Prosecutions Mr Seo (for Mr Jun) JUDGMENT 1. This is an appeal by Sung Goo Jun against a sentence imposed upon him by a magistrate at the Burwood Local Court on 17 April 2008. Mr Jun had pleaded guilty to driving whilst under the influence of alcohol. The specific offence was driving with a middle range prescribed concentration of alcohol. That was against s 9.3A of the Road Transport (Safety and Traffic Management) Act 1999. 2. The offence occurred on 27 March 2008. The learned magistrate at Burwood fined Mr Jun $950 and disqualified him for six months from driving, dating from the date of the offence 27 March 2008. I note that the standard automatic disqualification for this offence is twelve months. It may be reduced at the discretion of the sentencing judicial officer to six months but no less than that period. Mr Jun received the benefit of such a reduction. 3. What happened in this case is set out in the facts sheets which is part of exhibit A. Mr Jun was pulled over for a random breath test after going through an amber light late. Police observed that he smelt strongly of alcohol, that his eyes were bloodshot, that his speech was slurred, that he was vague in his responses to questioning and that he was unsteady on his feet. Police formed the opinion that he was well affected by alcohol. This opinion was confirmed when his reading was ascertained. He had 0.125 grams of alcohol per 100 millilitres of blood. That falls within the middle range of these offences. It is not lower than middle range which commences at .08 and is about halfway between the low and the high range. 4. Mr Seo who appears for Mr Jun asks me to exercise my discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999. He relies upon 10(3)(a), referring to his client's character. There is indeed documentary evidence from two people indicating that he is honest, reliable and an extremely capable businessman and dedicated family man. He has also attended eight sessions of a traffic offender intervention program. Mr Jun does not have a criminal record but has two entries on a traffic record report of exceeding speed and disobeying emergency stop sign. 5. I take into account Mr Seo's submission that the entries on that report showing that warning letters were sent points to an error in this respect, the offences in respect of which the warning letters were sent - or at least the majority of them - were not committed by Mr Jun but by his employee. I also accept that Mr Jun has had his driver's licence since 1999 and has an otherwise clear record here and in Western Australia. 6. However I am not satisfied that I ought to exercise my discretion under s 10 of the Crimes (Sentencing Procedure) Act. Such a decision should be exceptional. I am not satisfied that any of the factors referred to in s 10(3) has been made out to a sufficient degree to warrant such an order. I also take into account the seriousness of this offence. It was, as I said, a mid range PCA offence and the reading itself was in the middle of that range. Mr Jun was driving his car when his potential ability to control it was obviously affected. The findings or observations made by the police are consistent with, in my opinion, a reduced capacity to control adequately his car or to respond to any emergency which presented itself. Parliament has made it clear that offences of drink driving ought to be accompanied by punishment. In fact Mr Jun received the minimum period of disqualification. He benefited from the exercise of the discretion by the magistrate, the automatic period of disqualification is twelve months but he had that time halved. It has also been backdated to the time of the offence. 7. In my opinion the appeal ought not to succeed and I am going to dismiss the appeal. 8. The formal orders which I make are these. In accordance with s 20(2)(c) of the Crimes (Appeal and Review) Act 2001 I dismiss the appeal. Mr Jun I'm sorry, you have lost your case. It was a significant reading and what the police saw about your condition at that time was not a good thing. It is important that people don't drink and drive and I regard the disqualification as appropriate. ********** 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.