Kioko v R [2016] NSWDC 281

District Court New South Wales

Medium Neutral Citation: Kioko v R [2016] NSWDC 281 Hearing dates: 6 June 2016 Date of orders: 06 June 2016 Decision date: 06 June 2016 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal allowed

Conviction recorded and sentence passed by Manly Local Court on 24 February 2016 set aside

Pursuant to s 10(1)(b) Crimes (Sentencing Procedure) Act 1999 good behaviour bond of 2 years imposed Catchwords: CRIMINAL LAW – Appeal against severity of sentence – Low range PCA – Appellant's personal circumstances required licence to perform valuable community work for disadvantaged members of community – S 10(1)(b) applied Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Category: Principal judgment Parties: Jason Muendo Kioko (Appellant) Director of Public Prosecutions(NSW) (Respondent) Representation: In person (Appellant) Solicitor for the Director of Public Prosecutions(NSW) (Respondent) File Number(s): 2016/23872 Publication restriction: No Decision under appeal Court or tribunal: Manly Local Court Jurisdiction: Criminal Date of Decision: 14 February 2016 Before: Longley LCM File Number(s): 2016/23872

Judgment 1. HIS HONOUR: This is an appeal against the severity of sentence passed by Magistrate Longley sitting in the Manly Local Court on 14 February 2016. The appellant pleaded guilty to a charge that on 23 January 2016 at Collaroy he did drive a motor vehicle on Pittwater Road whilst there was present in his breath or blood the low range prescribed concentration of alcohol. The reading was 0.053. 2. 23 January 2016 was a Saturday. The offence appears to have occurred about 8.26pm. The road was dry. There was medium traffic. It was dusk. The appellant was not guilty of any erratic driving. Nothing that he did drew the police's attention to his driving. He was stopped at a fixed random breath testing station and underwent breath analysis. He told the police that he had taken two beers earlier in the evening at a family picnic or barbecue. He only finished drinking his last drink five minutes prior to being breath tested. He was allowed the 20 minutes for residual mouth alcohol to be absorbed and then submitted to breath analysis at 9.26pm. That resulted in the reading that I have mentioned. At the time of driving the appellant had in his car his two young sons. 3. The appellant obtained a driver's licence on 21 June 2006. He has been driving in this State for almost ten years. But for two offences he has a previously unblemished record. On 28 September 2006 he was fined for driving in a bus lane. Of more significance is that on 8 April 2007 he was charged with a low range PCA offence. For that offence he appeared before the Manly Local Court on 9 May 2007 and was fined $550 and disqualified from driving for three months. He appealed to this Court. This Court set aside the conviction and pursuant to s 10 dismissed the charge and placed the offender on a bond to be of good behaviour for a period of 12 months pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. In essence the appellant now asks me to do again what happened approximately nine years ago in June 2007. 4. The appellant's career is in the field of mental health advocacy. He holds a very responsible position with a Schizophrenia Fellowship of New South Wales. He has held that position since April 2006. A reference has been tendered from Associate Professor Stephen Woods, a well-known forensic psychologist, with whom the appellant has been working at the Schizophrenia Fellowship since 2008. In his reference Professor Woods tells me this: "Mr Kioko is, in my opinion, a person of high moral and social values who has dedicated himself to assisting persons less fortunate than others due to mental illness. I have discussed the circumstances of the offence with Mr Kioko and note that he has been subject to sustained exposure to major workplace stressors over the past number of years. Unfortunately, the work-related stress inevitably impacted on his marital relationship to the extent that he [and] his wife briefly separated; the separation manifested in Mr Kioko suffering a Major Depressive Episode for which he was treated by a psychiatrist." The reference goes on to point out that Professor Woods was told by the appellant that he had consumed two full strength beers (Coopers Red) whilst picnicking with his family. It would appear this was at the time of the separation because when he was breath tested the appellant's wife was not present in the car, only their two children. Professor Woods went on to point out that the appellant was particularly self-critical for what would be the negative ramifications for both his continued employment and his ability to transport his children to and from their normal activities and because of his wife who has part-time employment. The Professor records that the appellant had requested supervision at meetings focusing upon alcohol-use counselling and psycho-education. 1. I accept that the appellant needs his licence to perform his role with the Schizophrenia Fellowship. He conducts home visits to individuals living with serious and persistent mental illness. He attends appointments with and provides support to patients during crises and he has to attend meetings with other interested parties in the community, in particular others involved in the Mental Health sector and sectors such as homelessness and general health. 2. Given the circumstances of the offending and given the offender's generally good character and relatively blameless driving record I accede to the appellant's request that he be dealt with under s 10. For those reasons I set aside the conviction recorded and the sentence passed by the Manly Local Court on 24 February 2016. Under s 10 of the Crimes (Sentencing Procedure) Act 1999 without proceeding to a conviction and having regard to the good character of the offender and extenuating circumstances I am satisfied that it is expedient to release the offender on a good behaviour bond. I order that the offender be released on a good behaviour bond for a period of two years from today. Conditions of the bond are as follows: 1. to appear before the Court if called upon to do so any time during the term of the bond; 2. to be of good behaviour; 3. to reside at [redacted]; or 4. to advise the Registrar of the Court by pre-paid registered post of any change of any residential address during the term of the bond. 1. Any other orders sought? 2. O'KANE: No your Honour. 3. HIS HONOUR: You will have to go to the registry to sign the new bond Mr Kioko. You will have to go back to the Downing Centre. 4. O'KANE: Level 3 your Honour. 5. HIS HONOUR: Level 3, the Downing Centre, next door and you might need to wait awhile because my Associate has to get all the paper work over there. 6. APPELLANT: Thank you very much your Honour. 7. HIS HONOUR: Needless to say Mr Kioko don't do it again.