Furio Rossi v Regina [2016] NSWDC 168

District Court New South Wales

Medium Neutral Citation: Furio Rossi v Regina [2016] NSWDC 168 Hearing dates: 9 August 2016 Date of orders: 17 August 2016 Decision date: 17 August 2016 Jurisdiction: Criminal Before: Judge AC Scotting Decision: 1 The order that I make is that the appeal against conviction for the offence of exceed speed by more than 45km/hour is dismissed. 2 I will hear the appellant on the severity appeal. Catchwords: CRIMINAL LAW – appeal – speeding offence – speed measuring device – appropriate inspection officer – definition – interpretation – admissibility of inspection certificate Legislation Cited: Crimes (Appeal and Review) Act 2001 s.12 Road Transport Act 2013 ss135, 136, 137 Australian Road Rules 2014 rr10-2(7), 20 Cases Cited: Henning v Lynch [1974] 2 NSWLR 254 RTA v Nicholls [2005] NSWSC 946 Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049 In re The Fourth South Melbourne Building Society (1883) 9 VLR (E) 54 Category: Principal judgment Parties: Furio Rossi (Appellant) Regina (Repsondent) Representation: Counsel: Ms Graham (Appellant)

Solicitors:

C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/00101733

Judgment 1. Furio Rossi (the appellant) appeals against the severity of the sentence imposed on him by his Honour Magistrate Bailey on 1 April 2016 at the Downing Centre Local Court. The appellant also sought leave to appeal against the conviction based on his plea of guilty in the Local Court, pursuant to section 12 Crimes (Appeal and Review) Act 2001, if it was necessary to do so. 2. At about 10.10pm on 18 August 2015 the appellant was the driver of a vehicle on River Road at Northwood. At that time Senior Constable Wolven was operating a hand held Lidar radar device serial number LA 396 (the device) to measure the speed of vehicles that drove past. The prosecution alleged that the appellant was detected driving at 101km/hour in a 50km/hour zone, by reference to the reading from the device obtained by Senior Constable Wolven. 3. The appellant was charged with one count of exceeding the speed limit by more than 45km/hour, contrary to rule 20 of the Australian Road Rules 2014 (the Road Rules). The maximum penalty for the offence was a fine of $2,530. A conviction for the offence also carried with it a mandatory and minimum licence suspension for 6 months. The magistrate convicted and fined the appellant the sum of $2,500. 4. The appellant accepted that he was speeding at the time he was observed by the police, but disputed that he was doing so by more than 45km/hour over the limit. The magistrate convicted the appellant of the offence after he pleaded guilty in the course of the hearing. 5. On the appeal, the appellant contended that the certificate tendered pursuant to section 137 Road Transport Act 2013 (the section 137 certificate) was inadmissible and if I accepted that argument that I should set aside the conviction and find the appellant guilty of the statutory alternate of exceed speed by between more than 30km/hour but less than 45km/hour provided for by rule 10-2(7) Road Rules.