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District Court 30 July 2008

R v Sung Goo JUN

[2008] NSWDC 374

Traffic & driving
CRIMINAL LAW APPEAL DRIVING WITH MID NO CRIMINAL HISTORY SIGNIFICANT READING

Citation: R v Sung Goo JUN [2008] NSWDC 374
Court: District Court of New South Wales
Date: 30 July 2008
Judge(s): Cogswell SC DCJ

Background

The appellant was convicted in the Burwood Local Court after pleading guilty to driving with a mid-range prescribed concentration of alcohol, contrary to s 9.3A of the Road Transport (Safety and Traffic Management) Act 1999. The offence occurred on 27 March 2008, when police pulled him over following a late amber-light incident and observed signs of significant alcohol impairment. His blood alcohol reading was 0.125 grams per 100 millilitres, placing him roughly in the middle of the mid-range category.

The magistrate fined the appellant $950 and disqualified him from driving for six months, backdated to the date of the offence. That represented the minimum available disqualification period, reduced from the standard automatic twelve-month term. The appellant appealed to the District Court, seeking a more favourable outcome under s 10 of the Crimes (Sentencing Procedure) Act 1999, which would have allowed the court to deal with the matter without recording a conviction.

  • Whether the appellant's character and personal circumstances warranted the exercise of the court's discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 to dismiss the charge without recording a conviction.
  • Whether the magistrate's sentencing orders were appropriate and should be confirmed on appeal.

Decision

The appellant relied on s 10(3)(a), which directs the court's attention to the offender's character when considering whether to dismiss a charge without conviction. In support, he tendered character references describing him as honest, reliable, a capable businessman, and a dedicated family man. He had also completed eight sessions of a traffic offender intervention program.

The court accepted that most of the adverse traffic record entries were attributable to an employee rather than the appellant himself, and acknowledged that the appellant otherwise held a clean record in both New South Wales and Western Australia since obtaining his licence in 1999. Despite this, the court was not satisfied that the s 10(3) factors had been made out to a sufficient degree to justify the order.

The court emphasised that a s 10 order in these circumstances should be exceptional. It pointed to the seriousness of the offence, noting that the reading sat in the middle of the mid-range category and that the appellant's observable condition at the time was consistent with a meaningfully reduced capacity to control his vehicle. Parliament's intention that drink driving offences attract punishment carried significant weight in the analysis.

The appeal was dismissed, and the magistrate's orders were confirmed. The court also observed that the appellant had already received the benefit of the minimum disqualification period, backdated to the date of the offence.

Orders Made

  • The appeal is dismissed pursuant to s 20(2)(c) of the Crimes (Appeal and Review) Act 2001.
  • The orders of the Burwood Local Court magistrate are confirmed, comprising a $950 fine and a six-month licence disqualification backdated to 27 March 2008.

Key Takeaways

  • A section 10 order in the context of a mid-range PCA offence is an exceptional outcome, not a routine consequence of good character evidence.
  • Character references and completion of a traffic offender program, while relevant, do not automatically satisfy the threshold under s 10(3)(a) of the Crimes (Sentencing Procedure) Act 1999 where the offence itself is serious.
  • The District Court treated Parliament's clear intention that drink driving attract punishment as a significant countervailing factor against the grant of a s 10 order.
  • A blood alcohol reading in the middle of the mid-range category, combined with observable signs of impairment, weighed heavily in the court's assessment of objective seriousness.
  • In dismissing the appeal, the Court confirmed that the appellant had already received the benefit of the minimum disqualification period, reduced from the automatic twelve months and backdated to the date of the offence.

Legislation and Cases Referenced

Legislation:
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 9.3A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)(c)

Cases: No cases were cited in the judgment.