AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 19 November 2021

R v Sutton

[2021] NSWDC 640

Traffic & driving
SENTENCE SEVERITY APPEAL ROADS AND TRAFFIC OFFENCE USE OF MOBILE PHONE WHILE DRIVING

Citation: R v Sutton [2021] NSWDC 640
Court: District Court of New South Wales
Date: 19 November 2021
Judge(s): Abadee DCJ

Background

The appellant was convicted in the Penrith Local Court after pleading guilty to driving while using a mobile phone, contrary to s 300 of the Road Rules 2014 (NSW). The offence occurred on 24 March 2021 at Rouse Hill and was captured on camera, which showed him holding his phone in his left hand while driving. The Local Court imposed a $500 fine against a maximum of $2,200.

The appellant's explanation was that a flat tyre caused his phone to fall from its holder into the footwell, and he picked it up in a moment of panic to place it in the centre console. He did not hold the phone for an extended period, the District Court accepted, though reservations about this account were noted.

The appellant appealed the severity of the sentence, seeking instead a Conditional Release Order (CRO), an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that would have discharged him without recording a conviction. Transport for NSW opposed that application.

  • Whether the $500 fine imposed by the Local Court was excessive, making a CRO the more appropriate penalty.
  • Whether the court was satisfied, under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), that it was inexpedient to inflict punishment or otherwise expedient to discharge the appellant on a CRO.
  • What weight, if any, should be given to the offending having occurred during a "good behaviour" licence period.
  • Whether hardship to the appellant's family and financial consequences from licence loss constituted mitigating factors capable of supporting a CRO.

Decision

Abadee DCJ refused to impose a CRO and dismissed the severity appeal, confirming the $500 fine. The central concern was that the offending occurred while the appellant was subject to "good behaviour" licence conditions, imposed after a suspension was scheduled in October 2020 following a pattern of speeding and other traffic infractions. His Honour held that good behaviour conditions are not limited to the specific type of offence that triggered them, and that offending during this period elevated both the gravity of the conduct and the need for accountability.

The appellant's driving record since 1995 included numerous speeding offences concentrated in 2019 and 2020, demerit warning letters, and an earlier fine for speeding. His Honour observed that this history meant he could not claim the degree of leniency ordinarily afforded to first-time offenders. The circumstance of repeated road rule infractions also carried its own weight against leniency.

On the CRO application, his Honour considered the s 10(3) factors and found they did not weigh in the appellant's favour. Drawing on the Court of Appeal's guidance in Re Attorney-General's Application (No. 3 of 2002), the court held that a s 10 order cannot be used to circumvent automatic consequences that flow from the legislative scheme, including licence-related consequences. The financial hardship flowing from the inability to drive fell within that category and could not justify a CRO.

His Honour also rejected the argument that being a self-employed contractor and sole breadwinner constituted exceptional circumstances. Treating such categories as a basis for leniency would offend the principle of equality before the law: self-employed contractors and family breadwinners are not a preferential class for traffic offending.

Orders Made

  • The severity appeal was dismissed.
  • The $500 fine imposed by the Penrith Local Court was confirmed.

Key Takeaways

  • Offending during "good behaviour" licence conditions elevates the gravity of the offence, even where the new offence is of a different type from the conduct that originally triggered those conditions. The conditions impose a general and unqualified promise of compliance with road rules.

  • A Conditional Release Order under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) cannot be used to sidestep consequences that flow automatically under the legislative scheme, including licence-related consequences arising from a traffic conviction.

  • Financial hardship flowing from the loss of a driver's licence, even where driving is integral to an offender's livelihood, does not ordinarily constitute the kind of exceptional circumstances that materially elevates hardship as a mitigating factor.

  • The principle of equality before the law means that self-employed contractors or sole breadwinners do not occupy a preferential sentencing class for traffic offences. Treating such status as a basis for leniency would produce an impermissible inequality among offenders.

  • In dismissing the appeal, the District Court confirmed that evidence of good character is of very limited weight when sentencing for driving offences of this kind, and that completion of a road safety program, while accepted as a positive step, carries reduced force where earlier court appearances had not deterred further road rule breaches.

Legislation and Cases Referenced

Legislation:
- Road Rules 2014 (NSW) s 300 (using a mobile phone while driving)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A (purposes of sentencing), 10 (conditional release orders and dismissal of charges)

Cases:
- Re Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act (No. 3 of 2002) (2004) 61 NSWLR 305