Antunes v R

The appeal

1. The appellant does not complain about the fine, which was less than half the maximum fine. Under the traffic infringement notice system the fine would have been $944. The learned Magistrate only fined the appellant $900.
2. The complaint made by the appellant is about the disqualification period. The disqualification period ends up being greater than three months. The reason for that is that the appellant at the time of this driving was driving on a "good behaviour" licence and his conviction would result in his incurring a licence suspension of six months, to which would be added the three-month disqualification for the current offence, leading all told to his being disqualified from driving for a period of nine months.
3. In the Local Court the offender did not rely upon any evidence about his mental health or state of his mental health. He did rely upon a character reference from his parents in which they each said that they were extremely worried about his mental health. The complication for the appellant if he loses his licence, that is, if the conviction is not set aside, is that he will probably lose his current job.

The appellant's employment

1. The appellant is employed by Twilight Signs Pty Ltd and has been employed by that company over the past four years. In evidence is an affidavit of Mr Ashley Askaro, the managing director of the company, affirmed on 28 January this year. Paragraphs 4 and 5 of that affidavit are these: "4. Nathan is employed in sign installation and maintenance, which requires him to leave the warehouse and attend job sites all over the Sydney metropolitan area and regional New South Wales. His duties require him to drive the truck, which is loaded with signs and installation equipment. Frequently, the signs and steel frames required to be transported to the installation sites weigh up to 5 tonnes. He is the only staff member who holds a HR licence (heavy rigid licence), which licences Nathan to drive larger trucks for larger jobs. 5. Nathan is one of our most valuable workers. He is of good character, trustworthy, hardworking, reliable, honest and considerate, and brings great leadership to the young apprentices who work under his guidance and supervision."
2. In par [8] of his affidavit Mr Askaro sets out the work schedule that is planned for the appellant from the commencement of this month until the end of March. He will be required to travel extensively within this State and the ACT. The same paragraph goes on to tell me about a long-term project that Twilight Signs has acquired, which will require the appellant to work extensively throughout the State in the middle of this year. In par [10] of his affidavit Mr Askaro said this: "We are sign installation and maintenance company. We do not manufacture. The warehouse [at Belmore] is used to receive signs and material, and employees collect these and equipment and take them to the various sites in a truck and instal the signs onsite. If Nathan loses his licence we have no work which we can give him which does not involve driving and we will have to terminate his employment."
3. The appellant told me in his oral evidence that although he had two apprentices working for him, neither of those apprentices has a driver's licence. It is clear from Mr Askaro's affidavit that there is no other person working at the current time for Twilight Signs who has a HR licence to fill the role that the appellant currently fills. Nevertheless, the company had two positions vacant to fill over the last four months and no suitable candidate has been found for them. I find it exceedingly strange that if there were two positions vacant that cannot be filled that the appellant would be laid off, and that no alternative arrangements could be made to have somebody drive the truck or drive him in some other vehicle.
4. Paragraph [13] of Mr Askaro's affidavit tells me that it would be even harder to find somebody who had a HR licence to fill the place vacated by the dismissal of the appellant, despite the fact that the two positions have been vacant for the last four months.
5. It is clear from the history obtained by the psychologist, Ms Cullen, that the appellant up until recently was working as a driving coach and up until the outbreak of the COVID‑19 pandemic was earning good money from it. In her report Ms Cullen said this: "He claimed that he continued this work 'on and off for three years', explaining that he concurrently ran 'defensive driving coaching on the side'. Mr Antunes explained that he subcontracted to various companies, including Mercedes Benz, where he was responsible to teach 'safer driving techniques' to individuals learning to drive, as well as 'companies and manufacturers'. He stated, 'I love teaching. It's a great sense of satisfaction when they leave that day with something more than when they arrive'. When such coaching work slowed down, he reported that he picked up additional labouring work. Mr Antunes claimed that his coaching business revenue was approximately $60,000 per annum. Mr Antunes confirmed that he continued to work as a driving coach up until December 2021, however reported that he requires a driver's licence to maintain this employment." In his oral evidence the appellant confirmed that he was earning $60,000 per annum for his weekend driver coaching work, but that had evaporated with the outbreak of COVID‑19.
6. The appellant's affidavit tells me that he has some future driver coaching sessions planned, and that he wishes to take that work up as he has borrowed $6,000 on the strength of that future work in order to fund his life because of lack of work during the COVID‑19 pandemic, including the period that he had off work due to his back injury.

The appellant's driving history

1. The significant stumbling block for this application is the offender's driving record. He obtained a learner's licence on 23 April 2004. He obtained a P1 provisional licence on 21 December 2005. He obtained a P2 provisional licence on 23 January 2007. On 4 April 2008 he obtained a rider's learner's licence; a rider's licence being for the driving of motorcycles.
2. His first traffic offence occurred shortly thereafter when he exceeded the speed limit by more than 15 km per hour, but less than 30 km per hour on 20 June 2008. There was the same driving offence committed on 10 October 2008. On 22 January 2009 the appellant obtained an unrestricted driver's licence. He was to be granted an unrestricted rider's licence in October 2009.
3. After obtaining the unrestricted driver's licence the offender committed the offence of not complying with the conditions of his provisional rider's licence in that he rode a motorcycle of a prohibited capacity. For that he received a fine of $405. At the same time he did not comply with another condition of his provisional rider's licence, he did not display his P-plate. For that offence he obtained another fine of $189. Those two offences led to his receiving a suspension of his rider's licence between 12 June 2009 and 11 September 2009.
4. On 21 December 2009 the appellant committed an offence related to the numberplate of the vehicle which he was driving. What the exact offence was I do not know. He incurred a fine of $338.
5. His licence was suspended between 1 April 2010 and 30 September 2010 by the police. No reason is given in his traffic record as to why that occurred.
6. In April 2010, the exact date has been obscured in my copy of the papers, the offender exceeded the speed limit by more than 45 km per hour whilst driving a motor vehicle. That offence occurred during a double demerit point period. He obtained a traffic infringement notice of $1,744.
7. On 6 July 2010 the appellant was charged with driving on a road whilst his licence was suspended and obtaining or renewing a licence by making a false statement. For the first of those offences, which occurred when the appellant was 22 years old, he was fined $750, ordered to pay court costs by the Local Court at Burwood, and disqualified from driving for 12 months. For the latter offence a fine was imposed, but he appealed that penalty to this Court sitting at Parramatta, and was given the benefit of s 10 and placed on a bond to be of good behaviour for a period of six months, an older version of the current Conditional Release Order.
8. The last set of offences, including the offence of April 2010, led to suspension of the appellant's driver licences for a period of 12 months, but that was not implemented as the offender elected to obtain a "good behaviour" licence. That was issued on 1 October 2011. The appellant did not break that good behaviour condition during the period of the good behaviour licence.
9. However, on 27 May 2013 he exceeded the speed limit by more than 20 km per hour, but less than 30 km per hour, for which he received a traffic infringement notice for $417. On 25 October 2015 he exceeded the speed limit by more than 10 km per hour, but less than 20 km per hour, for which he received another traffic infringement notice for $260. On 20 August 2016 he committed the same offence and on that occasion received a traffic infringement notice of $265.
10. On 20 March 2017 he exceeded the speed limit by more than 10 km per hour, but less than 20 km per hour, for which he received another traffic infringement notice. On 10 May 2018 he exceeded the speed limit by more than 10 km per hour, but less than 20 km per hour, for which earned another traffic infringement notice of $269. On 28 January 2019 he exceeded the speed limit by more than 10 km per hour, but less than 20 km per hour, and on that occasion received a traffic infringement notice for $275.
11. In short, there was an annual exceeding of the speed limit, with the exception of 2014, between 2013 and 2019.
12. Again it was proposed by the RMS that his licence be suspended for a period between 23 May 2019 and 22 August 2019, but the offender elected to obtain a good behaviour licence for a period of one year, commencing on 23 May 2019 and extending until 22 May 2020.
13. On 11 May 2019 he drove in a bus lane which incurred a traffic infringement notice of $337.
14. On 9 November 2020 he exceeded the speed limit by more than 10 km, but less than 20 km per hour, which incurred a traffic infringement notice of $285. On Christmas Eve 2020 he exceeded the speed limit by more than 20 kms per hour, but less than 30 km per hour, whilst driving a motor vehicle. That was during a double demerit point period. He incurred a traffic infringement notice of $489. On Australia Day 2021, that is just over a year ago, he exceeded the speed limit by more than 10 km per hour, but less than 20 km per hour, again during a double demerit point period. That incurred a traffic infringement notice for $285.
15. However there was then a suspension of the appellant's driver licence because of an accumulation of demerit points, but again the offender elected to obtain a "good behaviour" licence for a period from 13 April 2021 to 12 April 2022; that is for a one-year period. It was, of course, during the currency of that good behaviour licence that the appellant committed the offence which currently brings him before this Court.

Psychological evidence

1. Before going on I should advert to the psychological evidence before me. Ms Cullen, in essence, diagnoses an adjustment disorder with depressed mood. An adjustment disorder is by definition something that is reactive to an external stimulus. Earlier in her report Ms Cullen referred to administrating the PTSD checklist, but the offender has not been exposed to any stressor that would warrant the diagnosis of PTSD, hence the diagnosis, I suspect, of the adjustment disorder with depressed mood.
2. In her concluding remarks Ms Cullen said this: "Whilst this assessment has revealed an unremarkable childhood, it is also revealed that Mr Antunes developed unrelenting and perfectionistic standards of himself. Such expectations were likely compounded as the eldest of four boys. Whilst such traits appear to have contributed to great success and a Red Bull sponsorship, they also appear to have hindered his capacity to adjust to adulthood adversities. This has been evidenced by his disclosure of depressive symptomatology at around 20 years when his sponsorship was abruptly revoked, as well as a second bout of depression leading up to and following the dissolve [sic] of his marriage in August 2020. Between this period of time (when his marriage ended) and early 2021 Mr Antunes was charged with excessive speed during a period of double demerit provisions, which ultimately resulted in a good behaviour licence. He maintained that on both occasions he had been emotionally distracted. In early 2021, Mr Antunes described being able to abstain from maladaptive coping mechanisms...and adopting adaptive strategies (resuming soccer) to improve his mental health. This denotes that he accepted responsibility for his own wellbeing and functioning. It appears, however, that Mr Antunes psychologically decompensated once more, followed by a significant back injury on 24 April 2021, whereby he again reported feeling withdrawn, depressed and unmotivated. To his credit Mr Antunes maintains he did not relapse to using [a certain substance]. Further this period of physical incapacity, Mr Antunes advised that the COVID lockdown that took place in Sydney further rendered him unable to work. He clarified that he was therefore unemployed between 24 April and 30 September 2021 which compounded his depressed mood. Amongst these psychosocial stressors, Mr Antunes continued to also struggle with the aftermath of his marriage breakdown and impending divorce hearing, which is set down in February 2022. The impact of such traumas [sic] has been captured in Mr Antunes' account, as well as collateral information gathered during the course of this assessment... Mr Antunes attributed the aforementioned psychosocial stressors to having been absent-minded at the time of the index offence. Further consideration for Mr Antunes' auto-pilot state is given based on him [sic] having not driven for a period of eight weeks prior to the index offence, coupled with his apparent aversion to being unreliable (to himself and others), especially when it came to taking accountability for his own wellbeing (i.e. making progress in his rehabilitation process)."
3. It is clear from what I have just quoted and clear from common sense that a psychologist or a psychiatrist are largely in the hands of their patient in making both a diagnosis and relating the diagnosis to some cause. Of course the appellant's evidence is that the offending occurred because he was not concentrating on where he was driving, and he got himself into the wrong lane and panicked when he found that it would be difficult to take the correct exit from the Warringah Freeway, and hence he accelerated over a relatively short distance in order to change lanes leading to the speeding offence.
4. Exceeding the speed limit by 34 km per hour in an area where one might expect there to be heavy traffic, in a period of heavy traffic, cannot be regarded as trivial. 19 June 2021, the date of the offence, was a Saturday. Even on a Saturday morning traffic can be heavy on the Warringah Freeway. Changing lanes at a high speed is highly likely to lead to a collision. Collisions in multi‑lane traffic are often caused by a person in a left-hand lane seeking to go right, or in a right-hand lane seeking to go left, especially if, for example, there are three lanes of traffic and a person travelling in the left-hand lane wants to turn right, or travelling in the right-hand lane wants to turn left. Necessarily a number of lanes of traffic have to be crossed and the prospect of there being a collision is increased.
5. As I pointed out to learned counsel for the appellant, if there had been an accident and someone had been seriously injured or killed we would not be concerned with a disqualification period, but we would be concerned with the length of a prison sentence.

Extenuating circumstances

1. I must have regard to any extenuating circumstances in which the offence was committed. There are a number of circumstances where a speeding offence can be "justified", for example where a person is driving a pregnant lady, who has commenced her labour, to hospital because of the imminent birth of the child. Likewise, a driver could be justified in speeding if, for example, he was taking a passenger who had a serious health problem, such as a heart attack or stroke, to hospital because that was quicker than waiting for an ambulance to arrive. There are certain circumstances in which speeding can be done in extenuating circumstances.
2. Here the circumstances are not extenuating. Many people miss turn‑offs, many people take wrong lanes in multiple lane traffic, and if merely being in the wrong lane justified a speeding offence of this nature, then there would be many circumstances where the speeding could be seen to be in extenuating circumstances. The appellant was travelling either to see his physiotherapist or his chiropractor at Cremorne and there is nothing to suggest that he was running late, rather that he missed the appropriate turn-off. He could have taken a subsequent turn-off and come back to reach his desired destination. I am not persuaded that the offence was committed in any extenuating circumstances.
3. What is in fact relied upon is the offender's mental condition, that he was distracted by the vicissitudes of life, by his depressive illness from concentrating on what he was doing. With the utmost respect, a lack of concentration on what one is doing is the antithesis of good driving. A driver must be alert and attuned to the circumstances in which he is driving. Increasingly, Parliament and the executive have taken steps to stop drivers being distracted. The most recent cause for distraction are mobile phones and the propensity of people to use them to send text messages, which causes them not to observe the road in front of them and potential traffic hazards, but to have their eyes concentrating on their mobile telephone. This has led to a new range of cameras to detect people using mobile phones whilst driving and new driving offences based on such conduct.
4. Drivers are always advised to be alert, to take regular breaks, not to be distracted by their passengers or other matters which take their eyes off the carriageway. If the appellant's mental state was such that he was not concentrating on his driving, he ought not to have been driving.
5. I accept that if this conviction is not set aside, the offender will likely lose his current work and will certainly not be able to do his coaching driving work. He tells me, and I accept, that organisations such as Mercedes insist that their driving coaches have a driver's licence which is valid. One can clearly understand why: they would be brought into ridicule if it was ascertained that an official driving coach did not have a driver's licence.

Considering antecedents

1. The appellant's driving record is, in my view, quite inconsistent with his valuing his licence and does not permit me to look upon his antecedents favourably. One would think that as a driving coach, that is not merely a driving instructor but a coach of advanced driver training techniques, that he would value his licence because of the work it gave him and that he would inculcate in those who he was coaching the significance of having a valid licence, as well as having the ability to drive well. In other words, the appellant's driving record is quite inconsistent with his background and antecedents. Given his role in driving he ought to have valued his licence, but his record clearly indicates that he has not done so.
2. Age can be a relevant factor, for example a very young person, 18 or 19 years old or even a minor standing for sentence in a court of law has their relative youth, their physical, mental and emotional immaturity taken into account. Equally a person who had been driving for 50 years without blemish might, if charged with a driving offence of the nature here in question, put before the Court his unblemished driving record or her unblemished driving record. Here the offender's age is of no moment.
3. His health I have already taken into account, and I have also taken into account the mental condition. One can have a depressive illness and still drive satisfactorily. A depressive illness does not of itself compromise one's ability to concentrate. Indeed, concentrating on something such as the road may be a way of clearing the brain of concerns arising from other vicissitudes in life. To escape depression and anxiety one often seeks distraction and the distraction can be concentrating on good driving.

Consideration

1. In Matta v The Australian Competition and Consumer Commission [2000] FCA 729 a full bench of the Federal Court of Australia considered s 19B of the Crimes Act 1914 (Cth), which is in almost identical terms to the current s 10 of the Crimes (Sentencing Procedure) Act 1999. The leading judgment was given by Kiefel J (as her Honour then was). The appeal in that case was alleged to be against a failure of the trial judge, Dowsett J, in not dealing with an offender under s 19B of the Crimes Act 1914 (Cth). At par [8] her Honour said this: "8. In his reasons, his Honour identified the following factors as relevant: that the absence of the required warning on the sunglasses posed a safety threat to persons whilst driving and could affect other persons; his serious view of the offences; that those who manufactured and supplied sunglasses had both a legal and moral duty to comply with Australian standards which were designed to meet real needs; that the appellant was aware that the sunglasses did not comply with the relevant standards and were supplied notwithstanding non-compliance; that the offences were motivated by commercial considerations, and that a punishment must be such as to pose a deterrent to others who may be minded to ignore the standards. On the other hand, his Honour took into account the appellant's age and the fact that he would be faced with a substantial bill for legal costs. This was influential in particular with respect to the extent of the fine, the prosecutor having pressed for a larger penalty. His Honour also took into account that, to an extent, the appellant had been overborne by his business partner. As against that, the appellant was found by his Honour to have been aware of the standards of his profession as an optician and the relevant legal requirements. 9. His Honour rejected a submission that a conviction should not be recorded. It was submitted before his Honour that the appellant needed to be registered by the Optical Dispensers Board in New South Wales and that a conviction relating to the field in which he worked would create a serious obstacle to his achieving registration again, his registration having lapsed."
2. The presiding judge was French J (as his Honour then was). His Honour's judgment commences thus: "1. I agree for the reasons given by Kiefel J that the appeal should be dismissed. In Lanham v Brake (1983) 13 A Crim R 293, Cox J said of s 19B of the Crimes Act 1914 that: "…the exercise of a s 19B discretion requires more than the mere establishment of one of the par (b) conditions." (at 300) 2. Quoting Windeyer J from Cobiac v Liddy (1969) 119 CLR 257, he said: "Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration." 3. The exercise of the discretion under s 19B is exceptional. For the reasons given by Justice Kiefel, his Honour, in my opinion, properly exercised his discretion in that regard. Even had it been demonstrated that he approached that task with the unduly narrow focus asserted on behalf of the appellant, that would not have led the Court necessarily to intervene - R v Johnston (1987) 45 SASR 482 at 485- 486. 4. This was not an appropriate case for the invocation of s 19B when proper regard is had to all the factors which his Honour identified including the seriousness of the offence and the want of remorse on the part of the appellant. The appellant was not able to enjoy the benefit of a plea of guilty in the submission in mitigation and had the burden of an adverse finding as to his credit in relation to evidence given by him at the hearing."
3. Clearly there is no adverse finding here as to credit and there clearly was a plea of guilty. However, the other matters which I am required to consider do not in my view provide the appropriate evidence to enable me to interfere with the discretion exercised by the learned Magistrate in the Court below.
4. It is clear that a s 10 dismissal or s 10 Conditional Release Order application was made to the Local Court because that is specifically said in a written submission provided to the learned Magistrate by Mr Dion Accoto of Auslex Law Group, bearing date 15 October 2021.
5. For those reasons the appeal against the severity of the sentence is dismissed. HIS HONOUR: Any other orders sought? AVERRE: No, your Honour, please the Court. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2022