KRT v The Queen

[2015] NSWDC 375

District Court

New South Wales

Medium Neutral Citation:	KRT v R [2015] NSWDC 375
Hearing dates:	18 November 2015
Date of orders:	18 November 2015
Decision date:	18 November 2015
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Conviction recorded and the sentence passed by the Local Court at Waverley on 9 September 2015 set aside  Appellant released on a good behaviour bond for a period of 18 months
Catchwords:	CRIMINAL LAW – Severity appeal – Mid-range PCA offence – Prior good character – Medical condition resulting in consumption of alcohol being aberrant behaviour – Appellant was partying with friends and had made arrangements to sleep at friend’s house – Appellant sought to avoid unexpectedly sharing bed with ex-partner
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Road Transport Act 2013
Category:	Principal judgment
Parties:	KRT (Appellant) Crown (Respondent)
Representation:	Ms K Richardson (Appellant) Ms S Mascia (Respondent)
File Number(s):	2015/205264
Publication restriction:	Appellant’s name anonymised
Decision under appeal	Court or tribunal: Waverly Local Court Date of Decision: 9 September 2015 Before: Huber LCM File Number(s): 2015/205264

Judgment

1. HIS HONOUR: This is an appeal against the severity of sentence passed by Magistrate Huber sitting in the Local Court at Waverley on 9 September 2015. The appellant pleaded guilty to a charge that on 4 July 2015 at Mascot in this State she did drive with a mid-range prescribed concentration of alcohol in her blood. The reading recorded was 0.137. The maximum penalty for this offence is 9 months imprisonment and/or a fine of $2,200. There is a mandatory license disqualification. The automatic disqualification period is 12 months; the minimum disqualification period is 6 months. Her Honour fined the appellant $1,000 and disqualified her from driving for 6 months, noting that s 225 of the Road Transport Act2013 applied, backdating the disqualification period, in effect, to the date of the offence, 4 July 2015.

2. The appellant asks me to set aside that sentence and to grant her the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999 and impose upon her a bond to be of good behaviour.

3. A clear objective of fact, speaking against the grant of the relief sought, is the extent of the appellant’s blood alcohol reading. As I have already indicated, it was 0.137. Mid-range commences at 0.08 and the high range commences at 0.15. The appellant’s blood alcohol reading was closer to the high range than it was to the bottom of the mid-range, let alone anywhere close to the low range. However, the s 10 is available for such offences because, in the guideline judgment for high range PCA offences, the Court of Criminal Appeal did not exclude that s 10 was available in a rare type of case. The question before me really is whether this is a sufficiently rare case.

4. The appellant is 31 years old. At the time of the offence she was 31 years old. She has no prior criminal conviction. She was first granted a learner license on 26 June 2000, that is 15 years ago, and she has been a licensed driver ever since. Her driving record discloses 5 earlier speeding offences but there is no suggestion of any drink-driving. The appellant therefore comes before the Court as a lady of prior good character.

5. She provided a statement to the Local Court and has given oral evidence in this Court. In her statement to the Local Court the appellant said this:

“I would like to make it known that I do not drink. I have a condition where I do not have a fully functioning liver, caused by contracting glandular fever and subsequent hepatitis in my late teens. [I] cannot handle the load of a normal healthy person, which has spurred my decision to not drink much or often.”

That has been confirmed by her general practitioner, Dr Liew. He confirms that the plaintiff suffered moderately severe glandular fever in 2002 which has affected her liver function. He had a history that the appellant drank less than monthly and when she drank did so “very conservatively”. He thought that her drinking and driving was “aberrant behaviour”.

6. The appellant on Friday 3 July 2015 was working at Port Botany as a sea freight operator. She left her place of employment about 7pm and went to her home at Ramsgate Beach. She then decided to attend a housewarming party of a friend of hers, Nicki. She believed that her friend was living in premises in Liverpool Street, Darlinghurst near to Oxford Street. She drove there. She arrived about 9pm. Shortly thereafter she commenced drinking Corona beers. All told she drank 4 Corona beers.

7. Nicki was a friend of the appellant’s ex-partner. The appellant and her “ex” had been together for 7 years but by 4 July 2015 had been separated for a year. However they retained many friends in common. At one stage the appellant and her “ex” and two other friends left the housewarming party to attend a nearby club. The appellant had one cocktail at that club. She knew it was “strong” from its taste. They, the party of four, then went to another club “down the road”, by which I refer she meant Oxford Street, and she consumed a further two cocktails there. All told she had 3 cocktails.

8. However, after the appellant had the second bottle of Corona beer she had decided that she would not drive home that evening. Nicki told her that she could stay on the couch at Nicki’s home where the housewarming party was occurring.

9. I return to the second club. The two friends that accompanied the appellant and her ex to the clubs then left the second club leaving the appellant alone with her ex-boyfriend. He then made advances towards her seeking probably to have some sexual relations with her. At first the appellant did not object but subsequently she did. They returned to Nicki’s flat and found others asleep on the couch. Nicki had vacated her own bed, leaving it to be occupied by the appellant and her ex-partner. That was not what the appellant desired and it is clear that she thought that bearing in mind the advances that had been made to her by her ex-partner, he might seek to have sexual intercourse with her.

10. She told me that she felt in a “heightened emotional state”. She felt extremely uncomfortable. She made a decision to leave, which was a normal human reaction when threatened, to run away. She went to her car which was parked in a nearby cross street. She then drove towards her home at Ramsgate Beach. She drove down South Dowling Street and onto Mill Point Road. At Mill Point Road she was stopped by police for random breadth testing, which led eventually to the breathalyser test which was the subject of a certificate and the charge to which the appellant pleaded guilty.

11. There was no suggestion in the police facts that the appellant’s driving was in any way erratic or that anything that she did drew the police’s attention to her. The facts tendered by the police indicated that the traffic conditions were a dry sealed bitumen road “with minimal to no other vehicles on the roadway”. Therefore she was offering probably greater danger to herself than to other motorists.

12. The appellant has already served 4½ months of the suspension period imposed by the learned Magistrate, the minimum suspension period. The appellant can with the aid of friends and public transport commute between her place of residence and her workplace. There is no suggestion that the appellant’s job is in jeopardy. However, a criminal record is a matter of concern for her and concern for her in future job seeking. She has completed the traffic offender’s program at the PCYC at Daceyville. She had completed that course prior to standing for sentence in the Local Court. In her statement to the Local Court she said this:

“Having a criminal conviction will affect me greatly, especially in terms of future employment. I see myself as a very competent and enthusiastic worker, I am extremely worried that a criminal conviction will set me back in this regard. Not to mention the simple shame and disappointment I feel with myself for being considered a criminal.”

The appellant in her statement to the Local Court made it clear that she considered her behaviour aberrant. Other statements obtained from those who know her well indicated not only was this considered aberrant behaviour but it was highly unlikely to occur again and that the appellant was extremely embarrassed and remorseful because of what she had done.

13. I accede to the submission put to me by Miss Richardson, on behalf of the appellant, that his crime was committed in extenuating circumstances. The appellant after having drunk 2 bottles of Corona beer knew that she should not drink further if she were to drive. Because she was enjoying the party she chose not to drive and made arrangements to stay with her friend overnight. Unfortunately those arrangements evaporated because of the attention paid to the appellant by her ex-boyfriend. She was placed in a position in which she felt uncomfortable, threatened and emotionally aroused. She elected to leave, not to stay at the place where she was to stay overnight, went to her car and then proceeded to drive homewards. Her choice was a poor one but clearly her decision making was affected by alcohol. However, that was because the arrangements made for her to stay overnight had in essence failed because of the unexpected and uninvited interest shown in her by her ex-boyfriend. In my view this is an appropriate case for the application of s 10.

14. For those reasons I set aside the conviction recorded and the sentence passed by the Local Court at Waverley on 9 September 2015. [KRT], under s 10 of the Crimes (Sentencing Procedure) Act 1990 without proceeding to a conviction but having regard to your good character and health and the extenuating circumstances of the offence, I am satisfied that it is expedient to release you on a good behaviour bond. I order that you be released on a good behaviour for a period of 18 months from today. Conditions of the bond are as follows:

1. you are to appear before the Court if called upon to do so at any time during the term of the bond,

2. you are to be of good behaviour.

3. you are to reside at [NFP],

4. you are to advise the Registrar of the Court by prepaid registered post any change of residential address during the term of the bond.

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Decision last updated: 01 March 2016