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District Court 18 November 2020

Simmons v R

[2020] NSWDC 808

Traffic & driving
CRIME APPEAL FROM LOCAL COURT SEVERITY OF SENTENCE MIDRANGE PCA OFFENCE EXCEPTIONAL CASE

Citation: Simmons v R [2020] NSWDC 808
Court: District Court of New South Wales
Date: 18 November 2020
Judge: Neilson DCJ

Background

The appellant was caught at a random breath testing station on a Saturday night in Byron Bay and recorded a mid-range prescribed concentration of alcohol (PCA) reading of 0.108. He had attended a dinner party and told police he consumed three glasses of red wine over approximately three hours before driving home. There was no suggestion of bad driving, and the road conditions were dry and light in traffic.

The Local Court convicted the appellant, imposed a $750 fine, a three-month minimum disqualification period, and a mandatory 12-month interlock order. The disqualification period had already expired by the time of the appeal, and the appellant's unrestricted licence was reissued in September 2020. The appellant did not challenge the fine. His sole ground of appeal was the severity of the sentence, specifically the mandatory interlock condition.

The appellant appeared before the Local Court with no prior criminal history and no traffic offences for more than a decade. He had completed an online Traffic Offenders Rehabilitation Program before the original sentencing and presented extensive character references, including from a former NSW minister, an NRMA regional manager, a soccer club representative, and a senior employee.

  • Whether this was an exceptional case warranting an order under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, thereby avoiding a conviction and the mandatory interlock order
  • Whether the mandatory interlock order imposed by the Local Court was, in all the circumstances, too severe

Decision

Neilson DCJ accepted that the mandatory interlock order substantially interfered with the appellant's ability to work. The appellant operates an automotive repair business employing approximately 40 staff, holding authorisations from NSW Police, NSW Ambulance, and as a Tesla-certified repairer. His role requires him to test-drive repaired vehicles, including police cars and ambulances, and the interlock condition restricted him to driving only his own vehicle.

His Honour noted that the appellant was a person of undoubted prior good character. The police facts sheet itself opened with an unusual commendation of the appellant's cooperative attitude, community involvement, and genuine remorse. References described someone who had served as a retained firefighter for ten years, sponsored and volunteered at junior sport, organised charitable fundraising, and actively promoted apprenticeships in the automotive industry.

His Honour acknowledged that a section 10 order (which allows a court to dismiss a charge without recording a conviction, subject to conditions) would rarely be appropriate even in high-range PCA cases according to the relevant guideline judgment. However, given this was a mid-range offence, and given the confluence of exceptional good character, genuine remorse, community contribution, and the concrete occupational impact of the interlock order, His Honour found this to be an appropriate case in which to exercise that discretion.

The conviction and sentence imposed by the Local Court were set aside.

Orders Made

  • The conviction and sentence imposed by the Local Court at Byron Bay on 27 July 2020 were set aside.
  • The appellant was discharged on a conditional release order for two years without conviction, under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999.
  • Conditions of the order: the appellant must not commit any offence during the two-year period, and must appear before the Court if called upon to do so.

Key Takeaways

  • The District Court held that a mandatory interlock order can, in genuinely exceptional circumstances, be displaced by a section 10(1)(b) conditional release order even for a mid-range PCA offence.
  • Exceptional good character, documented community contribution, genuine remorse, and concrete and significant occupational harm from the interlock order together formed the basis for the exceptional circumstances finding in this case.
  • Under the relevant guideline judgment, a section 10 order is described as rarely appropriate even for high-range PCA offences, implying such orders remain available in appropriate mid-range cases, though the threshold remains high.
  • The absence of prior offending, no suggestion of bad driving, completion of a rehabilitation program before sentencing, and an unusually favourable police facts sheet all contributed to the court's characterisation of this as an exceptional case.
  • Occupational impact alone was not the sole determinative factor. The court treated it as one element within a broader combination of exceptional circumstances.

Legislation and Cases Referenced

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

Cases:
- No specific cases were cited in the judgment. His Honour referenced the guideline judgment for high-range PCA offences but did not name it explicitly in the available text.