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. CIRCUMSTANCES OF OFFENDING 1. The facts sheet that was before the learned Magistrate was placed before the Court on this appeal. There was no objection to my having regard to it. No other agreed facts were placed before the Court. 2. The report of the police breath analysis indicated that the appellant had been drinking scotch (straight on the rocks) between 11:00am and 2:00pm; during which time he ate some pizza. 3. Relevant features of that fact sheet included that on 13 February 2020, the appellant was driving on Brisbane Water Drive, Koolewong on the way towards an unspecified incident that had occurred in Woy Woy. He was carrying three passengers with him, which was in breach of his license conditions and which resulted in a fine imposed upon him. 4. At about 6:00pm, the appellant was pulled over by the police in Glenrock Parade, Koolewong. He was asked to produce his driver license and the appellant produced his Class CP1 driver license. A strong sense of alcohol could be smelled emanating from the vehicle. After the breath test yielded a positive reading, the accused was arrested for the purpose of having a breath analysis at Woy Woy police station. The accused's breath test analysis yielded a positive reading of 0.135 grams of alcohol in 210 litres of breath. 5. The appellant did not seek to elaborate upon the circumstances of the offending. 6. This fell within the middle range prescribed concentration of alcohol for the purposes of s 110(4) of the RT Act. On this appeal, the Crown noted that this was at the higher end of that range. Whether or not that was so, the relevant legislative structure indicates a graduated scale of offences with different sanctions attached to where an offence fits within the scale. SUBJECTIVE CIRCUMSTANCES 1. In his solicitor's written submissions prepared on his behalf, the appellant acknowledged that he made a poor decision to drive; albeit that he was only travelling a short distance from his house to his brother's house. He acknowledged the risk of danger to person or property even if driving occurs over short distances. 2. Before me, it was submitted, without challenge, that the appellant is 26 years old; and living with his mother and father. His mother's email (dated 12 May 2020) referred to the appellant's remorse. It also noted the appellant's need for use of the car for work purposes, but also to help her (who had health issues) to do certain errands for her. Contrary to what was submitted on the appellant's behalf, no indication was given, however, as to the need for his mother to drive at night. 3. He has worked since the age of 17 and is self-employed as a concreter. Given that he employs 7 other people, he appears to be performing well in that business. 4. What gives rise to the present appeal is the appellant's need to drive his motor vehicle between multiple job sites so that he can supervise and provide tools and equipment for his workers. This was confirmed in the letter from Mr Mahfoud. The appellant is concerned about the financial loss to his business should he be unable to drive. 5. The character reference of Mr Abolelai (a good friend of the appellant's father) referred to his surprise at learning of the appellant's offending: he had known him as having a sense of maturity and responsibility. He is a good family man and has a strong connection with a church congregation within the Tongan community. 6. The appellant entered a guilty plea. 7. The appellant acknowledged that his traffic record did not assist him. That record included his driving a vehicle whilst his license was suspended (2018), as well as other numerous instances of incurring demerit points for speeding going back to when he acquired his provisional license in 2016. His lawyer noted however, that his was his first drink-driving offence. 8. His solicitor submitted that he has no problem with alcohol. Accordingly, his prospects of rehabilitation were good and the likelihood of his re-offending was small. 9. It is submitted, on the appellant's behalf, that he has shown remorse. CONSIDERATION 1. I note that in circumstances where the appellant had been convicted and fined for the offence of driving whilst his license was suspended (s 54(3) of the RT Act), that offence did not make it an 'applicable offence' for the purposes of s 203(2) of the RT Act. In other words, the sentencing option under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was potentially available. 2. As one commentator has noted, there is a breadth of authority on the principles relating to license disqualification (Odgers, Sentence, 4th ed, 2018 [5.41], p 506 fn 128), however, the commentator noted that authorities from other jurisdictions indicated that important considerations of retribution, general deterrence and protection of society are also applicable. 3. In my view, given his traffic record, including but not limited to his earlier offence, those considerations, as well as the consideration of specific deterrence, this would have rendered the sentencing option under s 10 inappropriate. 4. However, as noted, the offender did not take issue with the learned Magistrate imposing a community corrections order under s 8 of the Crimes (Sentencing Procedure) Act, and a fine. CCOs were introduced with the purpose of containing punitive, denunciative and rehabilitative elements. 5. The offence for which the offender pleaded constituted a 'mandatory interlock offence' for the purposes of s 209(d) of the RT Act. By s 210, his Honour was obliged to make the mandatory interlock order. By the terms of s 211(1), the Court is empowered to determine a minimum or maximum period of disqualification. Such period was in addition to any other penalty imposed (s 211(3)). 6. I note that, by s 212(3)(c), for a first time offence under s 110(4)(a), the Court is empowered to make an interlock exemption order. No application was brought for such order. 7. In this case, the learned Magistrate imposed the maximum period of disqualification from holding any driver license, of 6 months; rather than the minimum period of 3 months. 8. No criteria are contained in the RT Act to guide a Court as to what criteria should be utilised in a court deciding whether to impose the maximum or minimum period. 9. In my opinion, having regard to the other penalties imposed (CCO and fines), the purposes of deterrence, retribution and denunciation were fulfilled. Given that this was the first time the appellant was convicted of a drink-driving offence, and having regard to his remorse and prospects of rehabilitation, I consider that adequate punishment is served by the selection of the minimum period of disqualification for the mandatory interlock order. It is plainly the case that the appellant is a responsible, hard-working citizen, with close family and community ties, who on this occasion let himself down. I am confident that this experience has been a salutary one for him. Ordering the maximum disqualification period for the mandatory interlock order is, in my view, unnecessarily punitive. 10. That being so, I accede to the application to vary the sentence imposed by the learned Magistrate. The mandatory interlocking order imposed by his Honour on 18 March 2020 is varied so that firstly, the appellant is disqualified from holding any driver license for a period of three months. 11. During the course of brief argument on the appeal, the Crown conceded that the Court is empowered to backdate the commencement date for the period of disqualification. That being so, the second order I make is that the period for disqualification period commences on 13 February 2020. ********** 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: 19 May 2020