R v Tupou [2020] NSWDC 216

District Court New South Wales

Medium Neutral Citation: R v Tupou [2020] NSWDC 216 Hearing dates: 15 May 2020 Date of orders: 15 May 2020 Decision date: 15 May 2020 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraphs 32-33 Catchwords: CRIMINAL LAW – severity appeal – appeal to vary length of licence disqualification period – first time offence Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 20 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 10 Road Transport Act 2013 (NSW), ss 54, 110, 203, 209, 211, 212 Texts Cited: Odgers, Sentence (4th ed, 2018) Category: Sentence Parties: Director of Public Prosecutions Mr O Tupou Representation: Solicitors: Solicitor for the Director of Public Prosecutions Mr D Conn for the appellant File Number(s): 2020/49225 Publication restriction: Nil

Judgment

INTRODUCTION 1. This is a severity appeal from the sentence imposed upon the appellant by the Gosford Local Court on 18 March 2020, following a plea of guilty to the offence that on 13 February 2020, he was driving at Koolewong with a middle range prescribed concentration of alcohol, being a reading of 0.135, contrary to s 110(4)(a) of the Road Transport Act 2013 (NSW) ('RT Act'). He was also subject to a $250 fine for a related offence of not complying with his license conditions. 2. The sentence was the imposition of a Community Correction Order ('CCO'), further upon the appellant being disqualified for a period of 6 months from holding a driver license and his holding an interlock driver license for 12 months. The appellant was also ordered to pay a $1,000 fine. The sentence was stayed pending his appeal against sentence. 3. I note that the maximum punishment (and legislative guidepost to sentence) is 9 months' imprisonment and/or a $2,200 fine. 4. Through the written submissions of his solicitor, the severity appeal is narrowly based. The appellant does not dispute the CCO or the fine. He only seeks an order, pursuant to s 20(2)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), for the Court to vary the period of disqualification in regards to his holding a driver license, from 6 months to 3 months; and for that period to be backdated to 13 February 2020. 5. On severity appeals, the Court is to have regard to the sentencing material that was before the Local Court, as well as any fresh evidence. 6. When this matter was before the Court at the recent call-over, it was foreshadowed that the appellant would be absent, working. He has been represented on this appeal by his solicitor. His solicitor relied upon short written submissions and some other material (Exhibit A). This includes an email message apparently prepared by the appellant's mother, and directed to the Court, a letter from an engineer (Mr Mahfoud) and a character reference from Mr Aboleli that had been placed before the Magistrate. 7. On appeals of this kind, the Court is required to exercise the sentencing discretion afresh. As noted, the Court is empowered to vary sentences.