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

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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWDC 328
Decision Date: 29 July 2024

CaseChat Overview and Summary

The case of R v Fortuna involved the appellant, Fortuna, appealing a conviction for driving under the influence of alcohol while disqualified from driving. The dispute centred on whether an electric bicycle (E-bike) should be considered a motor vehicle for the purposes of the Road Transport Act 2013 (Vic). The appeal was heard by the County Court of Victoria. The primary legal issue before the court was whether an E-bike qualified as a motor vehicle under the Act, and if this classification affected the applicability of interlock penalties to the appellant. Given the classification of the E-bike, the court needed to determine whether the appellant was subject to interlock penalties upon his disqualification from driving.

The court examined the definition of a motor vehicle under the Act, focusing on the specific criteria that delineate motor vehicles from other types of vehicles. The court noted that the Act defines a motor vehicle as a vehicle propelled by a motor and capable of being driven on a road, excluding bicycles and other non-motorised vehicles. The court found that the E-bike in question did not meet the criteria to be classified as a motor vehicle, as it was not propelled by a motor but rather by pedal power. Consequently, the court concluded that the E-bike did not fall within the scope of Division 2 of Part 7.4 of the Act, which pertains to interlock penalties.

Given this conclusion, the court upheld the appeal in relation to the interlock penalties but confirmed the orders of the Magistrate dated 6 March 2024. These orders included a disqualification period from driving for a period of 12 months and a fine of $600. The court explicitly noted that there should be no application of Division 2 of Part 7.4 of the Act concerning interlock penalties. The reasoning was that since the E-bike was not considered a motor vehicle, the appellant was not subject to the interlock penalties during his disqualification period.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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