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District Court 4 February 2022

Antunes v R

[2022] NSWDC 148

Traffic & driving
CRIME APPEAL SENTENCE SEVERITY OF SENTENCE REQUEST FOR A CONDITIONAL RELEASE ORDER APPELLANT ALLEGES NEED FOR LICENCE

Citation: Antunes v R [2022] NSWDC 148
Court: District Court of New South Wales
Date: 4 February 2022
Judge: Neilson DCJ

Background

The appellant, a 33-year-old former racing driver and driving coach, pleaded guilty before the Downing Centre Local Court to travelling at 114 km/h in an 80 km/h zone on the Warringah Freeway at North Sydney at 8.48 am on 19 June 2021. The Magistrate imposed a fine of $900 and the compulsory three-month licence disqualification that accompanied the offence under the Road Rules 2014.

Because the appellant was driving on a good behaviour licence at the time, his conviction also triggered a six-month suspension under that licence, bringing his total period off the road to nine months. The appellant did not challenge the fine on appeal. His sole complaint was the effective loss of his licence.

Before the District Court, the appellant relied on fresh evidence including an affidavit deposing to his personal circumstances: the breakdown of his marriage, a spinal injury sustained playing football roughly two months before the offence, a diagnosis of depression, and his current employment in sign installation that required him to drive between job sites daily. He argued the Local Court should have granted a Conditional Release Order under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, which would have avoided a conviction and the associated disqualification.

  • Whether the sentencing Magistrate erred in declining to dismiss the charge or impose a Conditional Release Order under s 10 of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the appellant's personal circumstances, including his mental health, employment dependency on a licence, and the circumstances of the offending, warranted the exercise of that discretion on appeal.
  • Whether the factors prescribed by s 10(3) (character, antecedents, the trivial nature of the offence, and extenuating circumstances) were satisfied to the requisite level.

Decision

Neilson DCJ reviewed the appellant's circumstances in detail. The court acknowledged the appellant's difficult personal history, including his abandoned racing career, his marriage breakdown, his depression, and his back injury. The court accepted that the speeding incident occurred when the appellant, driving for the first time after weeks of injury-related bedrest, panicked on the freeway when he found himself in the wrong lane approaching his physiotherapy exit.

Despite this context, the court was not persuaded that a s 10 order was appropriate. The court noted the offence was not trivial: the appellant was travelling at 34 km/h over the speed limit, on a busy arterial route, during peak morning traffic. The speed was 42.5% above the posted limit.

The court also considered the appellant's driving history and antecedents. He had prior traffic matters and was already driving on a good behaviour licence at the time of the offence. These antecedents weighed against granting s 10 relief, notwithstanding the favourable factors such as the guilty plea and no adverse credit finding.

Drawing on the reasoning in Matta v Australian Competition and Consumer Commission [2000] FCA 729, the court observed that a s 10 discretion (and its federal equivalent, s 19B of the Crimes Act 1914 (Cth)) is an exceptional remedy. The existence of qualifying circumstances does not automatically justify its exercise. The court concluded that the Magistrate had properly exercised the discretion below, and no basis existed to interfere with that decision on appeal.

Orders Made

  • The appeal against the severity of the sentence was dismissed.

Key Takeaways

  • A Conditional Release Order under s 10 of the Crimes (Sentencing Procedure) Act 1999 is an exceptional remedy. Establishing one or more of the factors in s 10(3) does not automatically warrant its exercise; the discretion requires those circumstances to reasonably support a departure from conventional sentencing.
  • The District Court treated travelling at 34 km/h (42.5%) above the speed limit on a busy motorway during peak hour as a serious enough offence to weigh significantly against a s 10 order, even where personal circumstances were sympathetic.
  • An appellant's prior traffic history and the fact of driving on a good behaviour licence at the time of the offence are relevant antecedents under s 10(3)(a) and may diminish an otherwise compelling case for leniency.
  • The risk of losing employment due to licence disqualification, while a relevant consideration, did not on these facts constitute an extenuating circumstance sufficient to justify s 10 relief.
  • Fresh evidence adduced on a severity appeal, including psychological material not placed before the original sentencing court, will be assessed alongside all other s 10(3) factors. Its introduction does not guarantee a different outcome.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10(1)(b), 10(2), 10(3)
- Road Rules 2014 (NSW), r 20
- Crimes Act 1914 (Cth), s 19B

Cases:
- Matta v Australian Competition and Consumer Commission [2000] FCA 729
- Cobiac v Liddy (1969) 119 CLR 257
- Lanham v Brake (1983) 13 A Crim R 293
- R v Johnston (1987) 45 SASR 482