Citation: R v Raffaghello [2019] NSWDC 624
Court: District Court of New South Wales
Date: 13 June 2019
Judge(s): Neilson DCJ
Background
The appellant was a 33-year-old Italian-born man who held an unrestricted driver's licence for motor vehicles but only a provisional P1 licence to ride motorcycles. In June 2018, he was riding a motorcycle along Cleveland Street, Redfern, with his girlfriend as a pillion passenger, when police recorded a breath reading of 0.021 grams, placing him in the "special range" category of drink driving applicable to provisional licence holders (0.02 grams or above but below 0.05 grams). He admitted to consuming one 400 millilitre glass of full-strength beer in the hour before riding.
The appellant stated he had genuinely believed the alcohol limit for his motorcycle provisional licence was the same as for his unrestricted car licence. At the Local Court, Magistrate Atkinson recorded a conviction and imposed a sentence on 28 March 2019. The appellant then appealed to the District Court on the ground that the sentence was excessive.
Legal Issues
- Whether the severity of the sentence imposed in the Local Court was appropriate given the circumstances of the offence and the offender's personal history.
- Whether the matter was suitable for disposal under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, which allows a court to dismiss a charge without recording a conviction where it is inexpedient to inflict punishment.
Decision
Neilson DCJ found that the extent of the appellant's criminality was extremely low. The recorded reading of 0.021 grams placed him only 0.002 grams over the legal threshold, and the evidence strongly supported that the breach arose from a genuine, if mistaken, belief that the limit applicable to his car licence also applied to his motorcycle provisional licence.
The court placed significant weight on the appellant's character evidence, which was described as impressive. Referees of considerable standing, including the parents of his partner and a distinguished academic, attested to the appellant being a temperate drinker who was habitually careful about alcohol consumption when driving. One referee specifically confirmed his belief that the appellant would not have consumed any alcohol had he known the correct limit applied.
His Honour also took into account that, while the appellant's earlier driving record contained a number of offences and a prior drink driving conviction, those early matters were explained by his adjustment to Australian road rules after a decade of driving in Italy. His driving history since regaining his licence in October 2014 was comparatively minor.
On those findings, Neilson DCJ concluded it was inexpedient to inflict any punishment and that the matter warranted a section 10(1)(a) dismissal, setting aside both the conviction and sentence imposed in the Local Court.
Orders Made
- The conviction and sentence imposed by the Downing Centre Local Court on 28 March 2019 were set aside.
- Pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, the charge was dismissed without proceeding to conviction.
Key Takeaways
- The District Court confirmed that section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 remains available in drink driving matters where the degree of criminality is very low, the offender is of prior good character, and extenuating circumstances are present.
- A recorded reading only marginally above the prescribed threshold, combined with a credible explanation for the breach, can constitute an extenuating circumstance relevant to the sentencing discretion.
- Strong and credible character references from persons of standing can carry material weight in a sentencing appeal, particularly where those referees speak directly to the offending conduct.
- An honest (though mistaken) belief about which alcohol limit applied to a particular licence class was treated as a relevant, though not determinative, consideration in assessing moral culpability.
- Prior convictions do not automatically foreclose a section 10 outcome, particularly where those earlier matters are explained by context and the offender's subsequent record demonstrates genuine improvement.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a)
Cases cited: None identified in the judgment or provided metadata.