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District Court 2 September 2021

Samanmitmongkhol v R

[2021] NSWDC 682

Public order & justice offences
APPEALS PROCEDURE ORDERS ON APPEAL

Citation: Samanmitmongkhol v R [2021] NSWDC 682
Court: District Court of NSW
Date: 2 September 2021
Judge(s): Bennett SC DCJ

Background

The appellant was a licensee of hotel premises, including a Thai restaurant, who pleaded guilty in the Local Court to an offence under s 73(1)(a) of the Liquor Act 2007. The offence concerned the service of alcohol to a patron who was intoxicated on the premises. The Local Court convicted and fined her close to the maximum penalty of $11,000.

Following that conviction, the appellant appealed to the District Court. The appeal centred on whether the Local Court's decision to proceed to conviction and impose a substantial fine was the appropriate sentencing outcome, given the circumstances of the offending and the appellant's personal and professional history.

The patron who had been served that evening later fell down a non-operational and unbarricaded escalator on the premises. The tragic accident formed part of the surrounding context, though the court ultimately treated it as a separate matter from the offence itself.

Legal Issues

  • Whether the patron's fall down the escalator could be treated as part of the objective facts of the offence for sentencing purposes.
  • Whether the offence fell toward the lower end of the range of objective seriousness for offences of this kind.
  • Whether the circumstances warranted the application of s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, resulting in a finding of guilt without proceeding to conviction.

Decision

Issue 1: The escalator accident as part of the objective facts

The court declined to bring the patron's fall down the escalator into account as part of the objective facts of the offence (at [6]). Although the escalator was not operating and had no barricade in place, the evidence was insufficient to establish a causal relationship between the appellant's conduct and the tragic outcome, to the required standard of proof beyond reasonable doubt (at [7]). The court accepted that the patron's state of intoxication may have contributed to the fall, but held that this could not be conclusively determined on the available material (at [7]).

Issue 2: Objective seriousness of the offence

The court found the offence fell toward the lower range of objective seriousness for offences of this type (at [13]). The patron displayed no observable signs of intoxication during the course of the evening, going to the bar at no stage himself and only showing minor indicators of possible impairment right at the end of the night as the group was leaving (at [36]). The court also noted that, absent the appellant's cooperation and guilty plea, the prosecution may have faced real difficulty establishing the offence at all (at [35]).

Issue 3: Application of s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999

The court held that this was a case calling for the application of s 10(1)(b), finding that a conditional release order would adequately serve the purposes of sentencing, including general deterrence and denunciation (at [40]). In reaching that conclusion, the court identified numerous mitigating factors: the appellant was on her night off when the offence occurred and had taken all reasonable steps to ensure staff met their responsibilities (at [37]); she had implemented extensive proactive measures including regular RSA training sessions and covert compliance audits (at [23]-[24]); there were no aggravating factors and a low risk of re-offending (at [38]); and her cooperation with the investigation attracted credit under s 23 of the Crimes (Sentencing Procedure) Act 1999, alongside a higher-range utilitarian discount for the guilty plea (at [38]). An expert report described her management practices as simply best practice (at [39]).

Orders Made

  • The appeal is allowed.
  • The finding of guilt made by the Magistrate in response to the guilty plea is confirmed.
  • Pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, the offence is found proved but without proceeding to conviction; the appellant is discharged upon entering into a Conditional Release Order under s 9(1)(b) for a period of 12 months, subject to conditions that she be of good behaviour and appear before the court if called upon during the term of the bond.

Key Takeaways

  • Under s 73(1)(a) of the Liquor Act 2007, the liability attaching to a licensee for serving an intoxicated patron is strict, but the objective seriousness of any particular offence still depends closely on the facts and circumstances of the individual case (at [3], [13]).
  • A patron's subsequent injury following departure from licensed premises does not automatically become part of the objective facts of the offence for sentencing purposes; the Crown must establish a causal link to the requisite standard of proof beyond reasonable doubt (at [7]).
  • Section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 remains available even for offences attracting significant maximum penalties, provided the sentencing court finds, after balancing all relevant factors, that a finding of guilt without conviction adequately serves the purposes of sentencing (at [40]).
  • Where a licensee demonstrates comprehensive proactive compliance measures, absence of visible signs of intoxication during service, cooperation with authorities, remorse, and no aggravating factors, those matters collectively may tip the balance toward a s 10 outcome rather than a recorded conviction (at [38]-[40]).
  • The District Court confirmed that the definition of intoxication under s 5 of the Liquor Act 2007, as discussed in State of New South Wales v Tomlinson [2018] NSWCA 151, requires observable indicators of intoxication; in this case, those indicators were largely absent until the final moments of the patron's time on the premises (at [34]-[36]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999
- Liquor Act 2007

Cases
- CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] 239 CLR 390
- George v Rockett (1990) 170 CLR 104
- Prior v Mole [2017] HCA 10
- R v Mauger [2012] NSWCCA 51
- State of New South Wales v Tomlinson [2018] NSWCA 151