R v El Kerhani

[2021] NSWLC 14

Local Court

New South Wales

Medium Neutral Citation:

R v El Kerhani [2021] NSWLC 14

Hearing dates:

1 December 2021, 15 December 2021

Decision date:

22 December 2021

Jurisdiction:

Criminal

Before:

Brender LCM

Decision:

(1) The Defendant is ordered to pay a $500.00 fine

(2) The Court disqualified the defendant from holding a driver’s/rider’s license for 6 months from 1 December 2021

Legislation Cited:

Road Transport (Driver Licensing) Act 1998 (NSW), s 25A

Road Transport (General) Act 2005 (NSW), s 96(2)

Road Transport Act 2013 (NSW), s 9

Cases Cited:

Bimson, RMS v Damorange Pty Ltd [2014] NSWSC 734

DPP v Partridge (2009) 74 NSWLR 62; [2009] NSWCCA 75

Edwards v the Queen (1854) 9 Ex. 628

R v Ahmed [2008] NSWDC 380

R v Miller [1986] 2 Qd R 518

RTA v Fletcher (2008) 51 MVR 41; [2008] NSWSC 936

Valentine v Eid (1992) 27 NSWLR 615

Texts Cited:

Edward Coke, Second Part of the Institutes of the Laws of England (1797)

Category:

Principal judgment

Parties:

Regina (Crown)
Ahmad El Kerhani (Accused)

Representation:

Solicitors:
Baraa Saddiq (Accused)
NSW Police Force (Prosecutor)

File Number(s):

2021/293120; 2021/260918

Judgment

1. The accused is charged with twice driving a vehicle with illicit drugs in blood. The first charge relates to driving on 13 July 2021 and was first before the court on 1 December 2021 when there was a plea of guilty. The second charge relates to driving on 29 July 2021 and was first before the court on 18 November 2021 when there was a plea of guilty.

2. An earlier offence against the same provision was the subject of a conditional release order without conviction, which concluded on 15 September 2020. He has no other driving matters on his criminal record. These two offences however did breach a community correction order imposed for six months from 16 June 2021 for offensive conduct. Breach of that order aggravates these offences and is a relevant factor on sentencing, however I have decided not to call up the community correction order because it is different offending, and because I also took the existence of that community correction order into account as an aggravating factor when sentencing some other unrelated matters.

3. Both driving offences were charged as a first offence. The prosecutor has submitted that should I convict him of the first of these offences, they would seek to amend the court attendance notice to charge the second in time offence as a second or subsequent offence, thereby exposing the accused to the increased penalty - the maximum fine increases from $2200 to $3300, and the periods of disqualification increase from automatic 6 months to 12 months, and the minimum disqualification on conviction from 3 months to 6 months

4. The question to be determined is whether the accused is liable to a penalty and disqualification as a first offence, or as a second or subsequent offence.

Supreme Court Authority on previous legislation

5. In RTA v Fletcher [2008] NSWSC 936, Price J dealt with s 96(2)…