Wheeler [2008] NSWDC 165

Reported Decision : 7 DCLR (NSW) 271

New South Wales District Court

CITATION: Wheeler [2008] NSWDC 165

HEARING DATE(S): 1 August 2008

JUDGMENT DATE: 1 August 2008

JURISDICTION: Criminal

JUDGMENT OF: Murrell SC DCJ

CATCHWORDS: Relevant disqualification period. - Second or subsequent offence.

LEGISLATION CITED: Road Transport (Driver Licensing) Act 1998 s25A

CASES CITED: Johnson [2008] NSWDC 47

PARTIES: Rick Jason Wheeler (Appellant) DPP (Respondent)

FILE NUMBER(S): 2008/10342

COUNSEL: Bruce Brown (For Appellant)

SOLICITORS: Graham Whitaker (For Respondent)

JUDGMENT

1 HER HONOUR: The appellant appeals against the severity of penalties imposed by the Local Court on 16 June 2008 for offences of fail to submit to breath analysis (on 21 March 2008) and drive while licence suspended (on 30 April 2008). The appellant does not contest the fines that were imposed. Rather, he argues that the disqualification periods ought to be reduced.

2 The facts are set out in Exhibit A. In relation to the offence of failing to submit to a breath analysis, the appellant says that he did not submit to the analysis because he thought that the reading may be false. He had just finished a beer and thought that his mouth alcohol may affect the reading. According to Professor Starmer, that would not have occurred. The failure to submit to the breath test exposed the appellant to the penalty applicable for a high range prescribed concentration of alcohol offence. The minimum disqualification period that can be imposed for the offence of failing to submit to a breath analysis is twelve months. Mr Brown submits that that is the period which ought to be imposed, given the circumstances of the refusal and Professor Starmer's evidence that the reading would have been between 0.54 and 0.104.