Citation: Mackenzie v R [2021] NSWDC 764
Court: District Court of New South Wales
Date: 23 February 2021
Judge(s): Neilson DCJ
Background
The appellant was found guilty after a contested hearing in the Local Court at Manly of failing to give way to a pedestrian while making a left-hand turn at lights, contrary to r 62(1)(b)(ii) of the Road Rules 2014. The offence arose from an incident on 1 February 2019 in which the appellant struck a pedestrian. He also faced a low range PCA charge (to which he pleaded guilty) and a charge of negligent driving occasioning grievous bodily harm (which was dismissed when the court was not satisfied that grievous bodily harm had been proved).
The Magistrate fined the appellant $1,200 (against a maximum of $2,200) and imposed a six-month licence disqualification for the pedestrian fail-to-give-way offence. The three-month minimum disqualification for the PCA offence had already been running since 26 November 2020 and was about to expire.
The appellant appealed to the District Court against the severity of the six-month disqualification. A practical consequence of the appeal was that the disqualification period for the pedestrian offence was stayed pending the appeal's outcome, meaning the two periods would run consecutively rather than concurrently if the disqualification were upheld.
Legal Issues
- Whether the six-month disqualification imposed for the pedestrian fail-to-give-way offence was excessive given that no mandatory disqualification applies to that offence.
- Whether the appellant's personal and business circumstances, including his need to travel extensively to conduct two businesses, justified setting aside the disqualification.
- What weight a sentencing court should give to the significant personal impact of licence disqualification when exercising a purely discretionary power.
Decision
The discretionary nature of the disqualification
The court confirmed that the pedestrian fail-to-give-way offence under the Road Rules carries no automatic or mandatory disqualification period (at [3], [5]). The power to disqualify arose under s 204(1) of the Road Transport Act 2013, and the decision whether to exercise it, and for how long, was entirely within the court's discretion (at [5]).
The impact on the appellant's livelihood
Neilson DCJ accepted the appellant's evidence that both his businesses required extensive travel, including weekly trips to a manufacturing facility at St Marys, interstate travel to Victoria and Queensland, and periodic travel to New Zealand (at [5]). The court was satisfied that the disqualification would cause major disruption to his businesses and his ability to derive income, noting that an absent manager creates conditions for things to go wrong (at [6]).
The cumulative effect of the appeal
The court noted that, had the appellant not appealed, the two disqualification periods would have run concurrently, leaving only a further three months to serve (at [7]). The appeal process stayed the second period, making it cumulative. The court accepted that the appellant was unlikely to have appreciated this consequence when he lodged the appeal (at [7]).
Conclusion
Taking into account the wholly discretionary nature of the power, the significant personal impact on the appellant, and the broader circumstances of the case, the court concluded that the six-month disqualification was excessive and set it aside (at [9]-[10]).
Orders Made
- The disqualification period imposed by the Local Court at Manly for the sequence 3 offence is set aside.
Key Takeaways
- Where a road rules offence carries no mandatory disqualification, the sentencing court's power under s 204(1) of the Road Transport Act 2013 is purely discretionary, both as to whether to impose a disqualification and as to its length (at [3], [5]).
- A conviction after a contested hearing is reflected in the level of the fine rather than through additional penalties such as disqualification; the District Court noted the Magistrate's $1,200 fine (against a $2,200 maximum) already accounted for the absence of a guilty plea (at [9]).
- Licence disqualification can have a devastating effect on a person's ability to earn income and function in the community, and established authority requires that factor to be weighed carefully alongside other sentencing considerations (at [4]).
- Appealing a sentence imposed in the Local Court can produce an unintended consequence: the stay of the challenged order means disqualification periods that would otherwise run concurrently become cumulative if the appeal fails or, as here, informs the appellate court's assessment of overall severity (at [7]).
- Personal business circumstances, specifically a demonstrated need to travel regularly for commercial purposes, can be sufficient to displace an otherwise available discretionary disqualification for a non-mandatory driving offence (at [5]-[6], [10]).
Legislation and Cases Referenced
Legislation
- Road Rules 2014 (NSW)
- Road Transport Act 2013 (NSW)
Cases
- Application by the Attorney General (No 3 of 2002) (2004) 61 NSWLR 305; [2004] NSW CCA 303