Citation: Chetty Shakuntala v R [2008] NSWDC 305
Court: District Court of New South Wales
Date: 29 September 2008
Judge(s): Berman SC DCJ
Background
The appellant was convicted in the Local Court of a speeding offence, having been detected by a speed camera travelling at 75 km/h in a 60 km/h zone. The Magistrate imposed a fine of $80 and court costs of $73. The appellant had pleaded not guilty in the Local Court, and at the time of the offence was on a good behaviour licence.
The appellant brought an appeal against the severity of her sentence. Her solicitor had apparently advised her that obtaining an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 (which allows a court to dismiss a charge without recording a conviction) would prevent the Roads and Traffic Authority (RTA) from recording demerit points against her licence. That advice was incorrect.
Early in the appeal hearing, the court raised with the appellant's solicitor the risk that the sentence could be increased on appeal, given the appellant's good behaviour licence and her not guilty plea. The solicitor sought and obtained instructions before returning after an adjournment to seek leave to withdraw the appeal.
Legal Issues
- Whether a s 10 order under the Crimes (Sentencing Procedure) Act 1999 would prevent the RTA from recording demerit points against the appellant's licence
- Whether the appeal against sentence severity should be permitted to proceed or withdrawn
Decision
The court confirmed, with the Crown's agreement, that a s 10 order would not prevent the RTA from recording demerit points. The entire basis on which the appellant had pursued the appeal was therefore misconceived, and the solicitor's advice to the contrary was wrong.
The court expressed considerable concern that the appeal had been pursued on a false premise, noting that this was apparently not a recent change in the law. The court observed that the solicitor should have identified the correct legal position before filing and progressing the appeal, rather than wasting the court's and the client's time and resources.
Following the adjournment, the appellant sought leave to withdraw the appeal, which the court granted.
A separate issue arose from a medical letter included in the written submissions. The letter, from a neurologist, referred to the appellant experiencing seizures. The court expressed serious concern about the appellant's continued fitness to hold a driver's licence, and directed that the RTA be provided with a copy of the court's remarks and the neurologist's letter so that it could review the matter.
Orders Made
- Leave granted to the appellant to withdraw the appeal
- The RTA to be provided with a copy of the court's remarks and the letter from Dr Henry Miller to Dr Daniel Teo dated 3 July 2008, for the purpose of reviewing whether the appellant should continue to be licensed to drive
Key Takeaways
- A s 10 order under the Crimes (Sentencing Procedure) Act 1999 does not prevent the RTA from recording demerit points against a driver's licence; the RTA proceeds independently of the criminal sentencing outcome.
- In dismissing the appeal by leave, the District Court was pointed in its criticism of the solicitor for providing incorrect legal advice on a settled point of law, resulting in unnecessary expenditure of court and client resources.
- Where a defendant is on a good behaviour licence and has pleaded not guilty, an appeal against sentence severity carries a real risk of a more severe outcome, a factor that bears directly on whether such an appeal has utility.
- The court's power to act on welfare and public safety concerns is illustrated here: upon becoming aware of medical information suggesting the appellant had been experiencing seizures, the court directed the relevant regulatory authority to review her fitness to drive.
- No cases were cited in the judgment; the legal position on demerit points and s 10 orders was treated as settled and uncontroversial by both the court and the Crown.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
Cases cited: None cited in the judgment.