Simmons v The Queen

[2020] NSWDC 808

District Court

New South Wales

Medium Neutral Citation:	Simmons v R [2020] NSWDC 808
Hearing dates:	18 November 2020
Date of orders:	18 November 2020
Decision date:	18 November 2020
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Order made under Crimes (Sentencing Procedure) Act 1999 s 10(1)(b).
Catchwords:	CRIME – APPEAL FROM LOCAL COURT – SEVERITY OF SENTENCE – Midrange PCA offence – Exceptional case – Mandatory interlock order substantially inhibits appellant from his work which was valuable for community – Order made under Crimes (Sentencing Procedure) Act 1999 s 10(1)(b).
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Category:	Principal judgment
Parties:	Appellant – Andrew Warren Simmons Respondent – Regina
Representation:	Appellant – J. Weller (Weller & Associates) Crown – Cornett (DPP)
File Number(s):	2020/00183929
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 27 July 2020 Before: Dakin LCM File Number(s): 2020/00183929

Judgment

1. HIS HONOUR: This is an appeal against the severity of a sentence passed by Dakin LCM sitting in the Local Court at Byron Bay on 27 July 2020. The appellant pleaded guilty to a charge that on 13 June 2020 at Byron Bay he did drive a motor vehicle on a road, namely, Ewingsdale Road at Byron Bay whilst there was present in his breath the middle range prescribed concentration of alcohol. The reading recorded by breath analysis was 0.108.

2. His Honour convicted the appellant, imposed a monetary fine of $750 and imposing the minimum disqualification period of three months and a mandatory interlock order for 12 months. The minimum disqualification period has expired and unrestricted licences were reissued to the appellant on 14 September 2020. The appellant does not complain about the size or the monetary fine. The problem for the appellant is that the mandatory interlock order substantially interferes with his ability to carry out his business.

3. The appellant appeared before the Local Court as a man of prior good character. I had cause to point out to those appearing today that I have never seen a New South Wales Police Facts Sheet which commences with an encomium of the person who has offended. That encomium is this:

“The accused was polite and cooperative during his short period of detention and apologised for his actions. He displayed genuine remorse for his actions and stated he was aware of the dangers that drink driving presents. The accused is self-employed and married with three school aged children whom he is the sole financial provider for. He pays a house mortgage and a business loan. He resides at the western side of Ewingsdale. The accused owns and manages his own local business which employs about 40 staff members and contributes to charities and local events. The accused is an active member of the Byron Bay Community, volunteering Juniors and Seniors soccer clubs, is a member of the Byron Bay Industrial Estate Council Advisory Committee and was a retained member of the NSW Fire Brigade (Byron Bay Division) for ten years. The accused has no prior criminal history and no traffic offences in NSW for more than ten years.”

4. The facts make it clear that this was a stationary random breath testing facility established on a Saturday night on the Ewingsdale Road which runs between Byron Bay and Ewingsdale. There is a large roundabout where Ewingsdale Road intersects with the motorway to Queensland. The appellant had attended a dinner party in Byron Bay, no doubt with his wife. The appellant told police that he had consumed three glasses of red wine between 7.30pm and 10.36pm before travelling home at the end of the dinner party. The appellant did not pour those drinks. They were poured for him, no doubt, by his host or hostess. Usually, three standard glasses of wine will put a person at the 0.05 level. One glass of wine per hour thereafter will maintain a person at that level. Given the facts, it would appear that the appellant had probably consumed a bottle of red wine. However, a standard glass of red wine can be described as almost thimble size and wine these days is generally served in what could be described as bird baths. Such makes it very difficult to count standard drinks.

5. There was no suggestion of any bad driving or the like by the appellant. The police facts tell me that the road was a sealed bitumen road, it was dry and traffic was light and it was in a residential area posted at 60 kph. There may have been some light pedestrian traffic. One would think that such traffic would be extremely light at 10.45pm in June.

6. The offender, prior to appearing in the Local Court, successfully completed an online Traffic Offenders Rehabilitation Program. He was issued a certificate of completion on 23 July 2020. According to the administrative officer of the Traffic Offenders Rehabilitation Program the appellant attended all seven sessions satisfactorily, passed his in class activities and discussions satisfactorily.

7. The offender is a man of undoubted good character. For example, the former local member and a former minister of the Crown, the Honourable Don Page, provided a reference. The reference contains this material:

“I have known Andrew and his parents for over 30 years. Andrew is the third generation of a highly respected family in Byron Bay who have contributed significantly to our local community. Andrew Simmons spent ten years serving as a senior firefighter with the NSW Fire and Rescue and has been actively involved in both the Junior and Senior soccer club. He is a very decent person of good character.

Over many years Andrew has organised numerous charitable fund raising events for our local community, including UNCLE, local Surf Club, cancer volunteers and many others.

Andrew and his family are large employers in the local motor vehicle repair industry who have an excellent reputation for honest, fair and professional operations. He has been very active in the promotion of Apprentices within the industry and is highly regarded in his workplace.”

There are also in evidence references from Mr Clinton Brown of the Byron Bay Soccer Club and from Mario Napoli, the Regional Manager North of the NRMA for 44 years and a justice of the peace. Tendered today is a further reference from Mr Tony Dimmick, who works for the appellant as a manager.

8. Mr Napoli’s reference tells me that he has known the appellant personally and professionally for over 20 years. He described the appellant as honest, sincere, emphatic, humble and engaged community member. The reference continues thus:

“I have watched Andrew mature from a young man, to an apprentice, to a leader. He is one of the highest private employers in the Shire. He is one of the most competent young men Byron Bay has seen for many years: the passion, dedication and enthusiasm he shows for the family business (which he now operates) is unmatched. He is well known and respected in the automotive industry and has now involved himself in the provision of NRMA Road Services and the towing industry, in a local, regional and on occasions - at a State level. I have been a part of Andrew’s advocating at a State level towards improving road safety for not only NRMA operations but working roadside in general with extremely dangerous circumstances. I was quite taken aback at the time by the pro activeness and passion he has shown towards the safety of others through this venture - a true credit of his character and ability to put the safety of others first.

Andrew has shown a significant special effort and consideration to the training of apprentices, being successful and acknowledged in receiving several State Awards. He has constantly demonstrated opening doors and creating opportunities for these apprentices - several still working for him today. I am aware that he negotiated with a regional training organisation and personally paid for a group of apprentices to attend a driver training course in Queensland, although something of the general training organisations would not offer, Andrew made it possible. He’s innovative and caring approach to his staff and leading the industry into safety is highly commended.”

Like the Honourable Mr Page, Mr Napoli also comments very positively on the appellant’s role as a husband and a father to three extremely well-mannered young people.

9. It is clear from the reference from Mr Brown of the Byron Bay Football Club that the appellant’s business is the major sponsor of the Junior soccer club and the appellant himself continues to play soccer in the senior levels.

10. The reference from Mr Dimmick of 2 November 2020 is also instructive. He says this:

“I have personally worked under Andrew now for three years and I must say after 35 years in the automotive industry firstly at Trevan Ford in Lismore and now with Andrew, I’ve never seen anyone with such a positive passion within the industry.

We have been entrusted by NSW Police and NSW Ambulance to ensure safe and adequate repairs are carried out at the highest standard and integrity. With the industry moving in exceptional rate towards technology improvements Andrew has proactively sourced and financed the state of the art and region’s leading automotive repair equipment technology. This includes a full Tesla Authorisation, ADAS (advance driver assisted systems) technology which includes radars, cameras and sensors all of which require calibrations and certification. As part of this is the final test drive of which Andrew is now limited to only his personal vehicle.

I ask the Court to consider a leniency based not only on Andrew’s good character and community orientated spirit but also for the proactive approach and leadership he has bought with him into our business where we are considered to be the region’s leading.

Andrew also assists his 24/7 team on the roadside in aid of managing fatigue of staff and maintaining a service delivery above required standards. Andrew is proactive in this aspect of the NRMA aspects of the overall operation. The limitations to a single vehicle negates the chance Andrew has to participate.”

11. It is clear that the existence of the mandatory interlock order interferes substantially with the appellant’s ability to work in his field, to continue his leading work in the field, to continue managing his large staff and to, for example, test drive vehicles once they have been repaired by his company, to test drive, for example, ambulances, police vehicles and other important road vehicles.

12. Whilst the level of the reading recorded is high, the guideline judgment for high range PCA offences indicates that an order under s 10 of the Crimes(Sentencing Procedure) Act 1999 would rarely be appropriate. That does indicate that sometimes such an order might be appropriate in a high range case. Bearing in mind the appellant’s prior good character, his undoubted remorse and his contribution to our community, I believe this is an appropriate case in which to deal with the offender under s 10.

13. For those reasons, I set aside the conviction recorded and sentence passed by the Local Court at Byron Bay on 27 July 2020. Andrew Warren Simmons, stand up. Without proceeding to conviction but having regard to your prior good character I order that you be discharged on a conditional release order for a period of two years. The conditions of the order are:

1. you must not commit any offence;

2. you must appear before the Court at any time during the period of the order if you are called upon to do so.

14. Mr Simmons, Mr Weller will take you to the registry. They will give some pieces of paper acknowledging that order. You are free to drive now.

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Decision last updated: 13 January 2021