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District Court 6 June 2016

Kioko v R

[2016] NSWDC 281

Traffic & driving
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE LOW RANGE PCA S 10(1)(B) APPLIED

Citation: Kioko v R [2016] NSWDC 281
Court: District Court of New South Wales
Date: 6 June 2016
Judge(s): Neilson DCJ

Background

The appellant pleaded guilty before the Manly Local Court in February 2016 to a low-range prescribed concentration of alcohol (PCA) offence. He was stopped at a random breath testing station on Pittwater Road, Collaroy, on a Saturday evening and recorded a reading of 0.053. His driving had not attracted police attention, the road conditions were ordinary, and his two young sons were passengers in the vehicle at the time.

The Local Court convicted the appellant and imposed a sentence. He appealed to the District Court on the ground that the sentence was too severe, seeking that the conviction be dismissed under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 and replaced with a good behaviour bond.

This was not the appellant's first low-range PCA charge. A prior offence from 2007 had been resolved in the District Court in exactly the same way: the conviction was set aside on appeal and the charge dismissed under section 10(1)(b). The appellant was therefore asking the Court to apply section 10 a second time for the same category of offence, approximately nine years later.

  • Whether the circumstances of the offending and the appellant's personal situation warranted dismissal of the charge under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, without proceeding to a conviction.
  • Whether the appellant's good character, relatively blameless driving record, and occupational reliance on a driver's licence constituted sufficient grounds to justify a section 10 outcome on a second low-range PCA offence.

Decision

Neilson DCJ accepted that the circumstances of the offending were at the less serious end of the scale. The appellant had consumed two beers at a family picnic, was not driving erratically, and had only finished his last drink shortly before being tested. The court noted he had been under significant personal and workplace stress, including a marital separation that had resulted in a diagnosed major depressive episode for which he received psychiatric treatment.

The court accepted evidence from a forensic psychologist and senior colleague, Associate Professor Stephen Woods, about the appellant's character and the importance of driving to his professional role. The appellant worked for the Schizophrenia Fellowship of New South Wales, conducting home visits to people with serious mental illness, supporting patients through crises, and attending community meetings across sectors including homelessness and general health. The court found that the appellant genuinely needed his licence to fulfil those duties.

Taking into account the appellant's generally good character, the nature of the offending, and the significant extenuating circumstances, Neilson DCJ exercised the discretion under section 10(1)(b) to dismiss the charge without proceeding to conviction. The court was satisfied that releasing the appellant on a two-year good behaviour bond was the appropriate outcome.

Orders Made

  • The conviction and sentence imposed by the Manly Local Court on 24 February 2016 were set aside.
  • Without proceeding to a conviction, the appellant was released on a good behaviour bond for a period of two years from the date of the District Court's order.
  • Conditions of the bond:
  • Appear before the court if called upon during the term of the bond.
  • Be of good behaviour.
  • Reside at the appellant's stated residential address (redacted).
  • Advise the Registrar by pre-paid registered post of any change of residential address during the term of the bond.

Key Takeaways

  • Under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, a court may dismiss a charge without conviction and impose a good behaviour bond where the offender's good character and extenuating circumstances make that outcome expedient, even where the offender has previously received a section 10 outcome for the same type of offence.
  • The District Court treated the appellant's occupational dependence on a driver's licence, specifically his role providing support to people living with serious mental illness, as a material extenuating circumstance in favour of a section 10 outcome.
  • Personal hardship, including a documented major depressive episode arising from marital separation and workplace stress, formed part of the broader extenuating circumstances the court considered, alongside the low objective seriousness of the offending.
  • A prior section 10 outcome for the same category of offence did not automatically foreclose a second application of that provision, though nine years had elapsed between the two matters and the court's reasoning was closely tied to the specific facts before it.
  • No error of principle is apparent from the judgment itself; the decision turned entirely on the particular combination of the appellant's personal circumstances, character, and community-focused employment.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 10(1)(b)

Cases:
No cases were cited in the judgment.