District Court New South Wales Medium Neutral Citation: R v Raffaghello [2019] NSWDC 624 Hearing dates: 13 June 2019 Date of orders: 13 June 2019 Decision date: 13 June 2019 Jurisdiction: Criminal Before: Neilson DCJ Decision: Charge dismissed under s10(1)(a) of Crimes (Sentencing Procedures) Act 1999 Catchwords: CRIME. SENTENCE APPEAL. Drink driving. Offender had unrestricted drivers licence for a motorcar; but a P1 licence to ride a motorcycle. Guilty of driving with the special range prescribed concentration of alcohol (0.02 grams). Recorded reading was 0.021 grams i.e. 0.002 grams over the legal limit. Prior good character. Appeal allowed. S10(1)(a) of Crimes (Sentencing Procedures) Act 1999 applied Legislation Cited: Crimes (Sentencing Procedures) Act 1999 Category: Sentence Parties: Appellant - Giacomo Raffaghello Crown - Regina Representation: Appellant - S. O'Connell Crown - D. Curran File Number(s): 2019/00042749 Publication restriction: Nil. Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 28 March 2019 Before: Magistrate Atkinson File Number(s): 2019/00042749 Judgment 1. HIS HONOUR: This is an appeal from a severity of sentence imposed by Magistrate Atkinson, sitting in Local Court in the Downing Centre on 28 March 2019. 2. The appellant was charged with driving on Cleveland Street, Redfern whilst there was present in his breath or blood the special range prescribed concentration of alcohol, on 17 June 2019. The special range of alcohol is a concentration of 0.02 grams or more but less than 0.05 grams of alcohol in 210 litres of breath or 100 millimetres of blood. The reading recorded was 0.021. The appellant was 0.002 over the limit. 3. The appellant was, at the time of the offence, 32 years old. He has now attained his 33rd year. He was born in Italy and grew up in a village about 80 kilometres south of Milan. In accordance with the practices and laws of Italy, he commenced driving a scooter at the age of 14. He came to Australia in 2011, having been driving in Italy for ten years. His driving record is not the best. One can find in it, between the issuing of his initial licence until 16 March 2013, a large number of offences, explicable by the fact that he was learning to drive the Australian way rather than the Italian way. During that period, he was convicted of driving with a midrange prescribed concentration of alcohol, for which his licence was disqualified for 335 days, commencing on 15 April 2013. He served that period of suspension. He obtained an unrestricted driver's licence again on 25 October 2014 and the appellant received three traffic infringement notices between that time and the present time. One of those traffic infringement notices was incurred at the same time as he committed the offence now in question. He was carrying his girlfriend as a pillion passenger when he was not lawfully permitted to do so. 4. The appellant was living at the time, at Maroubra. His girlfriend was living with her parents in Redfern, and the appellant was travelling on Cleveland Street. His girlfriend and he were then going to a play. The appellant admitted to police that he had had one 400 millimetre glass of full strength beer between 6.30pm and 7.30pm. That explains the reading which was obtained. 5. It should be noted that the appellant was given a learner licence to ride a motorcycle on 22 November 2017 and a provisional P1 rider's licence on 29 May 2018. However, he had been driving car since at least 2012 and had an unrestricted driver's licence for driving his car. 6. One can understand that the offences which occurred prior to 16 March 2013 and the offences that had been committed since that time were minor. The extent of the offender's criminality for this offence is extremely low. He has impressive character evidence. Two of his referees are the parents of his current partner, Tess. Tess' father is former director of the National Press Club and Tess' mother is the former Chief Executive Officer of the Pharmacy Guild of Australia. They say this: "We consider Mr Raffaghello to be a person of excellent character - of integrity, industry, generosity and sincerity, who was well regarded by his peers, his work colleagues and all the members of our family. We further consider ourselves privileged to have made the close acquaintance of Mr Raffaghello's extended family in Italy, who are similarly equal at industry, principle and integrity. In our association with Mr Raffaghello, we have found him to be a responsible person and, when driving, to exercise great care in his consumption of alcohol." 1. There is also a reference from Dr Stephen FitzGerald, an Emeritus Fellow of the Whitlam Institute at the Western Sydney University and a well-known sinologist. He came to know the appellant in May 2015 because of a family connection to the offender's girlfriend, Tess. Dr FitzGerald says this: "Mr Raffaghello impresses me as a stable and truthful person, hardworking and of moderate habits and good behaviour. I can affirm that he is a very temperate drinker, and in the many social situations in which I have seen him, he is particularly abstemious with alcohol if he intends to drive. It is clear that on the occasion of this offence, he wrongly assumed that the alcohol for a scooter provisional licence was the same as for a car licence, and that he should have informed himself of the limit for a scooter provisional licence. That being said, I am confident that he genuinely and honestly believed the alcohol limits for the two kinds of licence were the same. Had he believed the scooter provisional licence alcohol limit was zero, I have no hesitation in saying that he would not have had that one drink driving a scooter. It is simply not in his character to do anything knowingly which is against the law, and I believe all who know him think the same and would testify to this effect if required." Interestingly, Dr FitzGerald did not know that the scooter provisional licence alcohol limit was 0.02 rather than zero. However, bearing in mind the extent of the reading, and what I have said thus far, it appears to me that this is a matter that is suitable to be dealt with under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. 1. For those reasons, I set aside the conviction recorded and the sentence passed by the Downing Centre Local Court on 28 March 2019. Under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, without proceeding to a conviction but having regard to the good character of the offender and the extenuating circumstances of the offence. I am satisfied that it is inexpedient to inflict any punishment. I order the charge be 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: 05 November 2019