R v Fortuna

[2024] NSWDC 328

District Court

New South Wales

Medium Neutral Citation:

R v Fortuna [2024] NSWDC 328

Hearing dates:

29 July 2024

Date of orders:

29 July 2024

Decision date:

29 July 2024

Jurisdiction:

Criminal

Before:

Anderson SC DCJ

Decision:

(1) I uphold the appeal.

(2) I confirm the orders of the Magistrate of 6 March 2024, that is a disqualification period from driving for a period of 12 months and a fine of $600. I expressly note that there is to be no application of Division 2 of Part 7.4 of the Act with respect to interlock.

Catchwords:

CRIMINAL – appeal – interlock penalties – is an E bike considered as an motor vehicle?

Legislation Cited:

Crimes Appeal and Review Act 2001 (NSW)

Road Transport Act 2013, s 4, s 112(1)(a), s 209

Motor Accident Injuries Act 2017 (NSW)

Road Vehicle Standards Act 2018 (Cth)

Cases Cited:

CFD v AAI Limited t/as AAMI [2023] NSWPIC 592

Category:

Principal judgment

Parties:

Paul Fortuna (Appellant)
Director of Public Prosecutions (Defendant)

Representation:

Counsel:
Mr M Beroni (Appellant)
Dr Katherine Fallah (Appellant)

Solicitors:
Director of Public Prosecutions

File Number(s):

2024/3689

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Local Court, Sydney Downing Centre

Jurisdiction:

Crime

Date of Decision:

21 March 2024

Before:

Magistrate J Zaki

File Number(s):

2024/3689

JUDGMENT

1. This is an ex tempore judgement delivered in Court 3.1. Before the Court is the matter of Mr Paul Fortuna. Mr Fortuna comes before the Court by way of a severity appeal from a sentence imposed upon him by Magistrate Zaki at the Sydney Local Court on 6 March 2024 and amended 21 March 2024.

2. Mr Fortuna pleaded guilty to one charge under the Road Transport Act, specifically the offence at s 112(1)(a), driving a vehicle under the influence of alcohol, in his case, recorded to be in the high range. It was his first offence.

3. For an offence of that nature there is a maximum term of imprisonment of 18 months or a fine of 30 penalty units. There is also an automatic mandatory licence disqualification period for three years or a minimum licence disqualification period of 12 months. There is also a mandatory interlock order which can be in place, as a minimum, for six months or up to 24 months, depending on different circumstances.

4. In this instance the fine imposed upon Mr Fortuna was $600. That fine is not the subject of the appeal, nor is the disqualification period of six months. However, what is the subject of the appeal, is the fact that there is an interlock driver licence condition in place for 24 months. The application of that aspect of her Honour Magistrate Zaki’s order has been stayed pending the outcome of this appeal.

5. The circumstances giving rise to the offence are these: at about 10.45pm on 7 September 2023 Mr Fortuna was riding an electric bike south bound in the designated bike lane on Sydney Harbour Bridge near Miller’s Point. He was observed, it seems, riding and swaying from side to side while on the E bike. The appellant continued to ride in this manner, ultimately losing control approximately 80 metres from the bike lane exit onto Observatory Hill. He slammed into the fencing of the Sydney Harbour Bridge and fell to the concrete, sustaining serious head injuries which resulted in his hospitalisation for some period of time. A passerby witnessed the appellant lying on the ground and called triple zero. He was taken to hospital and a blood alcohol sample was ultimately taken from him. That sample returned a reading of 0.152 grams of alcohol in 100 millilitres of blood placing the blood alcohol reading in the high range.

6. When the matter came before the Local Court it was made clear to the Magistrate that there was some ambiguity in the legislation with respect to how someone who was in charge of an E bike - as opposed to a “motor vehicle” – should be punished. The learned Magistrate’s reasons did not deal with whether the definition of motor vehicle within the Road Transport Act would apply and instead her Honour, not surprisingly, assumed that it did. There were a number of consequences which flowed from that decision.

7. By way of background, section 112 of the Road Transport Act and its application is well known to the Court. It reads, relevantly:

112 Use or attempted use of a vehicle under the influence of alcohol or any other drug

(1)  A person must not, while under the influence of alcohol or any other drug—

(a)  drive a vehicle, or

(b)  …

(c)  …

Maximum penalty –

(a) in the case of a first offence—30 penalty units or imprisonment for 18 months, or both, or

(b)  in the case of a second or subsequent offence—50 penalty units or imprisonment for 2 years, or both.

8. Section 112 specifically refers to “drive a vehicle”. The definition of vehicle within the Road Transport Act at section 4 states:

(a) Any description of vehicle on wheels, including a light rail vehicle but not including any other vehicle used on a railway or tramway or

(b) any description of tracked vehicle (such as a bulldozer) or any description of vehicle that moves on revolving runners inside endless tracks that is not used exclusively on a railway or tramway or

(c) any other description of vehicle prescribed by the statutory rules.

9. An E bike comes within that definition and is therefore picked up by the offence provision at s 112 of the Road Transport Act. Division 2 of Part 7.4 of the Road Transport Act deals with mandatory interlock orders for certain offences and it is that section which is of some importance for Mr Fortuna in this appeal. Section 209 states,

“that a mandatory interlock offence includes an offence against s 112(1)(a) for drink driving offences for offenders for a first or second offence when it is a major offence”.

10. Pursuant to s 209(1)(f) of the Road Transport Act, an offence against s 112(1)(a) is an alcohol related offence only where it involves driving a motor “vehicle” under the influence of alcohol. A person who rides an E bike under the influence of alcohol commits an offence against 112(1)(a) because, as I have already set out, it is a “vehicle”. The issue before the Court is whether an E bike is also a “motor vehicle”, in which case the mandatory interlock orders would become engaged.

11. This is an appeal from the Local Court under s 17(1) of the Crimes Appeal and Review Act2001 and I take into account the matters that were placed before the Magistrate. The Magistrate did not have the benefit that I have received of an affidavit from the appellant, which I have marked Exhibit A, nor the helpful written submissions and additional oral submissions from Counsel, when dealing with the question of what a motor vehicle is.

12. Section 4 of the Road Transport Act defines a motor vehicle in this way:

“Motor vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle”.

13. I note also in passing that the Commonwealth’s Road Vehicle Standards Act 2018 at section 5 contains a number of definitions. It defines a “motor vehicle” as one that is designed to use:

1. volatile spirit, gas, oil, electricity or any other power (other than human or animal power) as the principal means of propulsion or;

2. more than one of the powers mentioned in para (a) (other than human or animal power) as a means of propulsion but does not include a vehicle used exclusively on a railway or tramway.

14. The E bike that Mr Fortuna was riding at the relevant time was a Cannondael Tesoro Neo X with a 250 watt pedal assisted Bosch electric motor. Critically, like a normal bike, the bicycle can only be propelled by pedalling. It has no throttle and the motor does not work unless the rider is actually peddling. The pedal assist cuts out at 25 kilometres per hour. There are photographs attached to Mr Fortuna’s affidavit which demonstrate the E bike’s appearance.

15. The appellant provided the Court with the case of CFD v AAI Limited t/as AAMI [2023] NSWPIC 592. That case was handed down by the Personal Injury Commission. It considered an incident where CFD was riding an E bike through Prince Alfred Park, Surry Hills. The Nominal Defendant, who was the respondent to the claim, represented by AAMI, denied liability. In a decision dated 2 February 2023 Senior Member Williams determined that the bike involved in the incident was not a “motor vehicle” as defined by the Motor Accident Injuries Act 2017.

16. The E bike involved in CFD v AAI Limited was described at paragraph [39] with a number of characteristics that is relevant to my consideration in this case. It was noted that the E bike in that case had a throttle located on the right handle of the bike. There was a motor attached to the rear wheel of the bike and the motor was powered by a battery located under the seat. The motor was activated by the throttle and the throttle was used to increase speed while the bike was being peddled including when moving off at intersections and going up hills.

17. In CFD v AAI the Senior Member of the Commission stated at [55]:

“I am not satisfied on the balance of probabilities that the bike is a ‘motor vehicle’ as defined by and for the purposes of the Motor Accident Injuries Act. That being the case I find that for the purposes of s 1.9 of the MAI Act CFD’s injuries did not result from the use or operation of a motor vehicle. The MAI Act therefore does not apply. This finding on its own would prevent CFD from recovering statutory benefits under the MAI Act”.

18. It is clear to the Court, based on the appellant’s affidavit, that the E bike he was riding was one that was less powerful than the one the subject of the case in CFD v AAI Limited. Mr Fortuna’s E bike did not have a throttle and there was no suggestion that it was motorised in the same way. The photographs annexed to his affidavit indicate that while there may well be a battery and motor forming part of the bike, in the absence of human propulsion, using the pedals, the “vehicle” would not move. There was no motor forming part of the E bike that resulted in its propulsion unless power was also generated by someone pushing its pedals. While the battery may ease the burden of the rider, in the absence of someone manually pedalling it, it will not move. Its propulsion was not the result of a motor alone, but combined with human activity. The absence of a throttle on the E bike is a key consideration, as is the absence of any ability for the E bike to move without human activity on the pedals.

19. While it is not determinative, I have also considered the definition of motor vehicle in the Commonwealth’s Road Vehicle Standards Act, which lends some support to my conclusion, albeit, it is from a different legislative scheme.

20. I do not consider the E bike falling within the statutory regime at Division 2 of Part 7.4 of the Road Transport Act and I do not consider that the mandatory interlock orders which could otherwise apply to someone who has committed an offence under s 112(1)(a) applies to a person riding an E bike.

Orders

21. On that basis, I will make the following orders:

1. I uphold the appeal.

2. I confirm the orders of the Magistrate of 6 March 2024, that is a disqualification period from driving for a period of 12 months and a fine of $600. I expressly note that there is to be no application of Division 2 of Part 7.4 of the Act with respect to interlock.

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Decision last updated: 07 August 2024