Chetty SHAKUNTALA v R

[2008] NSWDC 305

CITATION:	Chetty SHAKUNTALA v R [2008] NSWDC 305
HEARING DATE(S):	29 September 2008
EX TEMPORE JUDGMENT DATE:	29 September 2008
JURISDICTION:	DC 2008/12/1256
JUDGMENT OF:	Berman SC DCJ
DECISION:	Leave granted to withdraw appeal
CATCHWORDS:	Criminal law - Judgment - Appeal against severity of sentence - Incorrect advice given to appellant
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
PARTIES:	Chetty Shakuntala The Crown
FILE NUMBER(S):	DC 2008/12/1256
SOLICITORS:	NSW DPP M S Nair & Co

JUDGMENT

1 HIS HONOUR: In this matter the appellant, Chetty Shakuntala, was convicted in the Local Court of a speeding matter. She was detected by a speed camera exceeding the speed limit by fifteen kilometres an hour or less. The actual speed was seventy-five in a sixty zone. The Magistrate fined her $80 and ordered that she pay court costs of $73. It appears that the matter was disputed in the Local Court with the appellant pleading not guilty. She has however appealed only against the severity of the sentence imposed upon her.

2 Early in the appeal proceedings I raised with Mr Nair, who appeared for the appellant, the possibility that his client could find her sentence actually increased. I pointed out that she was on a good behaviour licence at the time and pleaded not guilty. Mr Nair then indicated after receiving instructions that his client wished to proceed with the appeal apparently on the basis that his client was concerned that she would lose her licence because of the accumulation of points that this offence represented. I told Mr Nair it was my understanding of the law that even if I gave his client the benefit of an order under s 10 Crimes (Sentencing Procedure) Act the RTA would still take the points from the appellant and so I questioned the utility of the appeal. The Crown indicated that my understanding of the law was correct.

3 The matter was then adjourned until 2 o’clock so that Mr Nair could obtain instructions and review the law. When he returned at two he indicated that his client wished to have leave to withdraw her appeal. I granted that leave.

4 It is a matter of some considerable concern that this whole appeal has been based on a false premise. It is a matter of considerable concern that Mr Nair, as a solicitor, has apparently given his client advice which is completely wrong, thus wasting the court’s time, and wasting his client’s time. Nor, as I understand it, is this a recent change in the law. It is one which Mr Nair should have become aware of before proceeding with this appeal on his client’s behalf.

5 There is another matter of concern raised as well. It concerns his client’s continued driving. In written submissions handed to me by Mr Nair is a document, I will receive it as evidence. It is a letter from a neurologist Henry Miller to Dr Daniel Teo. It concerns suggestions that the appellant has been having seizures. I am greatly concerned as to whether the appellant should continue to have a licence to drive. It is not of course for me to decide this matter but having been made aware of the appellant’s neurological history, at least as insofar as it is contained in the letter to which I have referred, it is incumbent upon me to make sure that the RTA is made aware of this matter so that it can review whether the appellant should continue to be licensed to drive. It goes without saying that the risks to others on the road are significant if the appellant is having seizures.

6 I will therefore direct that the RTA be provided with a copy of these remarks, and a copy of the letter from Dr Henry Miller to Dr Daniel Teo dated 3 July 2008 in order that the question as to whether the appellant should continue to drive may be properly reviewed.

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