District Court New South Wales Medium Neutral Citation: Alameddine v R [2016] NSWDC 269 Hearing dates: 2 February 2016 Date of orders: 02 February 2016 Decision date: 02 February 2016 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal dismissed Catchwords: CRIMINAL LAW – Severity appeal – Drive motor vehicle in a manner dangerous to the public – Driving at estimated speed above 100 kilometres per hour where sign posted speed limit was 60 kilometres per hour – Offence committed during peak hour in inner-suburban Sydney – Appellant has poor traffic record – Appellant asserts economic hardship following loss of licence – Appellant hired a driver to drive him during the course of his operating his business – No evidence of actual economic hardship Category: Principal judgment Parties: Mohammed Alameddine (Appellant) Director of Public Prosecutions (NSW) (Respondent) Representation: Mr M Jovancevic (Appellant) Solicitor for the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2015/205014 Publication restriction: No Decision under appeal Court or tribunal: Newtown Local Court Jurisdiction: Crime Date of Decision: 27 October 2014 Before: Williams LCM File Number(s): 2015/205014 Judgment 1. HIS HONOUR: This is an appeal against the severity of a sentence passed by Magistrate Williams sitting in the Local Court in Newtown on 27 October 2014. 2. On 8 July 2015 the appellant was handed a court attendance notice by a member of the New South Wales Police shortly after he had been stopped by the police. The court attendance notice required him to appear before the Local Court at Newtown on 28 July 2015. At the same time the police the police suspended the operation of the appellant's driver's licence. A formal court attendance notice charged the offender with two offences but eventually the second offence was withdrawn. The relevant court attendance notice charged the appellant that on 8 July 2015 at Dulwich Hill he did drive a motor vehicle registered number CKA 47K in a manner dangerous to the public upon a road, namely, Marrickville Road. 3. The matter was dealt with ex parte by Magistrate Grogan on 15 September 2015. For this offence Magistrate Grogan imposed a fine of $1,500 and disqualified the appellant from driving for three years but directed that s 225 of the Road Transport Act applied, such that the suspension commenced on 8 July 2015 the time that the police suspended the appellant's licence. That ex parte conviction and sentence were set aside pursuant to s 4 on 21 September and eventually on 27 October 2015 the appellant pleaded guilty to the offence which I have described and the learned magistrate imposed a fine of $1,200, disqualified the appellant from driving for 14 months but again made an order s 225 of the Road Transport Act backdating the suspension to 8 July 2015 and also required the appellant to enter into a bond pursuant to s 9 for a period of 12 months. 4. The appellant now appeals against the length of the disqualification period imposed by Magistrate Williams. The automatic disqualification period is three years, the disqualification period imposed originally by Magistrate Grogan. The minimum disqualification period is 12 months. The disqualification period imposed by Magistrate Williams was only 14 months. 5. The facts of the offender's offence are disturbing. 8 July 2015 was a Wednesday. The offence occurred at or shortly after 6.35pm in what can generally be described as peak hour. The appellant was driving a BMW X5 which was owned by his mother. He was driving south on Marrickville Road. He passed the intersection of that road with Wardell Road. A police car in the opposite side of the road in a line of traffic observed the appellant to be driving well above the sign posted speed limit of 60 kilometres per hour. It was estimated that the appellant's speed was greater than 100 kilometres per hour, increasing to 120 kilometres per hour. A radar fitted to the police vehicle indicated speeds between 113 kilometres per hour and 121 kilometres per hour. The final reading 'locked' onto the radar was 118 kilometres per hour but unfortunately the radar device could not be used because it had not recorded the speed at 118 kilometres per hour for sufficient time. The excuse proffered by the appellant for driving at this speed was to enable him to watch a State of Origin rugby league match. 6. The police facts state this: "At that time of night the Inner West of Sydney, and particularly in Marrickville Road, is heavily used by all road users, being motorists travelling via vehicles, cyclists and pedestrians. None of these other road users would be expecting a vehicle to be travelling well in excess of the sign posted speed limit, and therefore the risk of a serious collision is greatly exaggerated due to the elevated speed the accused was travelling at the time." It could be rightfully stead using technical language non‑technically that the appellant was driving fast, he was driving furiously, he was driving recklessly. 1. At the time the appellant was 24 years old. At the current time he is 25. The appellant's traffic record is before me and comprises four pages which indicate that in the period from the granting of a learner licence on 1 August 2006 to 15 January 2016, a period less than ten years, the appellant had been suspended on 13 occasions, mainly for fines faults but for offences including using a handheld mobile phone, exceeding the speed limit but by less than 20 kilometres per hour, failing to display a P‑plate, but the main offences were disobeying traffic control signs and traffic control lights and failure to stop at a traffic control light when it displayed a red arrow. Failing to obey control signs and traffic signals can often result in collisions which can cause serious injury and even death. The appellant has now completed a traffic offender's program but Magistrate Williams was aware of that when he sentenced the appellant on 27 October 2015. 2. The crime that the offender committed was a serious one, the criminality, that is, the extent of the driving in a manner dangerous to the public was extreme, given the time of day, peak hour traffic on an afternoon in mid‑winter in inner-suburban Sydney when there were many motorists and other road users exposed to the appellant's excessive speed. 3. In his letter to the learned magistrate the appellant said this: "I have been off the road since 8 July 2015, and it has been difficult. I am fortunate to have my own small business. I am a carpenter by trade and I own Connect Building Pty Limited. My office is in Greenacre and my home is in Marrickville. The nature of my work requires me to drive daily to and from construction sites around Sydney. I haven't been able to do that as of late. Getting to places on public transport is time consuming, I have tried that, it's been hard. Catching a taxi has been expensive and I cannot afford that long term. Lately, I have been asking my fiancée to drive me around when she is available, but I know that has put a burden on her. It has been quite challenging, and the business has suffered. I am getting married soon, and all this has been on my mind, all because of one poor decision." Essentially the appellant was putting forward as the need to hold on to his driver's licence economic hardship. I am told today that the appellant has now hired a driver to drive him around in the course of his business and to drive him after hours, presumably during the working week. 1. The appellant was also providing transport to his mother who has serious health problems, taking her to medical examinations and any necessary attendances at hospitals and the like. However, that duty has now been taken up by the appellant's fiancée who does not need to drive him around because of the driver that has been employed by his business. One can understand that hiring somebody to drive another in the course of work would incur cost to the business and might eat up some of his profit but there is no evidence before me of economic hardship of any moment that requires that the disqualification period should be reduced to the minimum. 2. Indeed, the Local Court and, indeed, this Court has a discretion to impose a higher disqualification period than the automatic three year period. 3. In the circumstances there is nothing on the evidence before me which persuades me that I should interfere with the discretion exercised by Magistrate Williams on 27 October 2015. Quite frankly, bearing in mind the disqualification period imposed by Magistrate Grogan based on the same facts, the appellant should consider himself to have been lucky that Magistrate Williams only imposed a disqualification period of 14 months. 4. For those reasons the appeal is 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: 26 October 2016