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District Court 15 May 2020

R v Tupou

[2020] NSWDC 216

Traffic & driving
CRIMINAL LAW SEVERITY APPEAL FIRST TIME OFFENCE

Citation: R v Tupou [2020] NSWDC 216
Court: District Court of New South Wales
Date: 15 May 2020
Judge: Abadee DCJ

Background

The appellant, a 26-year-old self-employed concreter, pleaded guilty in Gosford Local Court to a mid-range drink-driving offence under the Road Transport Act 2013 (NSW). He was detected driving at Koolewong on 13 February 2020 with a blood alcohol reading of 0.135, while carrying three passengers in breach of his licence conditions. He was also fined for that licence breach.

The Local Court sentenced him to a Community Correction Order (CCO), a $1,000 fine, a six-month disqualification from holding any driver licence, and a 12-month mandatory interlock licence requirement. The sentence was stayed pending the appeal.

The appellant did not challenge the CCO or the fine. His appeal was confined to a single issue: whether the disqualification period should be reduced from six months to three months and backdated to the date of the offence.

  • Whether the maximum six-month disqualification period imposed by the Local Court was excessive, given the offender's personal circumstances and the other penalties already imposed.
  • Whether the minimum three-month disqualification period was adequate to satisfy the sentencing purposes of deterrence, retribution, and denunciation.
  • Whether the disqualification period could be backdated to the date of the offence.

Decision

Abadee DCJ noted that the mid-range drink-driving offence constituted a mandatory interlock offence under the Road Transport Act, obliging the court to make an interlock order. Under s 211(1), the court retains a discretion to impose a disqualification period between the statutory minimum of three months and the maximum of six months. No criteria are set out in the Act to guide that choice.

His Honour found that the other penalties already imposed, the CCO and the fines, adequately served the purposes of deterrence, retribution, and denunciation. Having regard to the fact that this was the appellant's first drink-driving conviction, his remorse, his good prospects of rehabilitation, and his character and community ties, Abadee DCJ considered the maximum disqualification period unnecessarily punitive.

On the question of backdating, the Crown conceded that the Court had power to backdate the commencement of the disqualification period. His Honour exercised that power, setting the start date at 13 February 2020, the date of the offence.

His Honour also noted that a s 10 order (which would have avoided a conviction) was not appropriate, given the appellant's traffic record, including a prior conviction for driving while suspended, and the considerations of specific and general deterrence that applied.

Orders Made

  • The mandatory interlock disqualification period was varied from six months to three months.
  • The three-month disqualification period was backdated to commence on 13 February 2020.
  • The CCO and $1,000 fine were not disturbed.

Key Takeaways

  • Where a mid-range drink-driving offence is a first-time conviction of its kind, and other significant penalties have already been imposed, a court may find the statutory minimum disqualification period sufficient to meet the sentencing objectives of retribution, deterrence, and denunciation.
  • Under s 211(1) of the Road Transport Act 2013 (NSW), a court has a discretion to impose a disqualification period anywhere between the statutory minimum and maximum; the Act provides no criteria to guide that choice, leaving the court to apply general sentencing principles.
  • The District Court confirmed it has power to backdate the commencement of a disqualification period, a point the Crown did not contest.
  • A prior conviction for driving while suspended did not constitute an "applicable offence" under s 203(2) of the Road Transport Act for the purposes of determining mandatory interlock requirements, though it remained relevant to the sentencing discretion and rendered a s 10 dismissal inappropriate.
  • In exercising the sentencing discretion afresh on a severity appeal, the court weighs the totality of penalties imposed rather than considering the disqualification period in isolation.

Legislation and Cases Referenced

Legislation:
- Road Transport Act 2013 (NSW), ss 54, 110, 203, 209, 210, 211, 212
- Crimes (Appeal and Review) Act 2001 (NSW), s 20
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 10

Secondary Sources:
- Odgers, Sentence, 4th ed, 2018 [5.41], p 506 fn 128

Cases cited: None specifically identified in the judgment.