Motor manslaughter cases

Summaries of motor manslaughter cases from Kidd’s Traffic Law (criminal)

see www.kiddslaw.com for more. Email kiddlrs@optusnet.com.au

 

See R v Borkowski 15/4/09 [2009] NSWCCA 102 [52 MVR 528] where CCA reviewed a sentence for motor manslaughter in the case of a 37y.o. involved in street racing resulting in the deaths of two people. “The sentence imposed upon the [R] was made up of a fixed term of imprisonment of 4 years from 31 July 2007 on the first count, relating to the death of Mrs Howle, and a term of imprisonment made up of a non-parole period of 4 years and a balance of term of 3 years from 31 July 2009 on the second count, relating to the death of Mr Howle. As a consequence the [R] is eligible to be released to parole on 30 July 2013. The [R] was disqualified from driving for a period of 6 years from 5 November 2008”@14. Such sentence was considered too light, but was not overturned for various reasons.

 

In SBF v R 10/9/09 [2009] NSWCCA 231 [(2009) 53 MVR 438] the CCA compared the offences of aggravated dangerous driving causing death and motor vehicle manslaughter, finding the latter to be the more serious offence. See discussion from paragraph 104.

 

In Gallagher v State of Tasmania 18/9/09 [2009] TASSC 84 [54 MVR 6] the CCA, by majority, dismissed A’s appeal against a sentence of four years imprisonment with a two year and eight month non-parole period for causing death by dangerous driving. A, who was 21, and his friend, Anderson, dangerously raced their cars at high speed over a 30 kph distance endangering others. This driving eventually resulted in Anderson, who A knew was driving while heavily intoxicated, killing a motorcyclist. A fled the scene without providing help. He also had a bad driving record. Both were jointly charged with manslaughter, but A was sentenced for the lesser crime of causing death by dangerous driving. Various prior sentencing cases were considered. Anderson was sentenced to six years imprisonment with a four year non-parole period for manslaughter.

 

In Young v R 18/12/09 [2009] NSWCCA 298 [55 MVR 37] the A drove at speed, whilst heavily intoxicated, toward the deceased, whom he had previously had an altercation with. A intended only to scare the victim, but killed him. A fled the scene, only to be caught by police. A had no priors, made plea, and had good prospects for rehabilitation. His sentence of eight years with a five year non-parole period was confirmed.

 

In Doddridge v Tasmania 11/11/10 [2010] TASCCA 18 the COA dismissed the appeal in a case where “the [A] was tried for manslaughter … The charge concerned the manner in which he drove a red Ford Falcon sedan northwards on Natone Road on 21 March 2008. It collided with a motor cycle travelling in the opposite direction. The rider was killed. The [A] was found guilty and sentenced to imprisonment for five years … with a non-parole period of three years and three months, and disqualified from driving, effectively for eight years from the date of the sentence” @1.

 

In R v Jojkic 26/3/10 [2010] NSWDC 155 Nicholson SC DCJ sentenced D for various offences including manslaughter (gross criminal negligence), aggravated driving causing grievous bodily harm (gbh), driving unregistered vehicle while unlicensed, and a mid range PCA offence. D lost control of his vehicle while travelling 120 kph in 60 zone on busy road killing one person and causing gbh to another. His adverse driving record showed his disregard for traffic laws. D made early plea and was 26 at the time of the offending. D’s overall sentence, which was partly cumulative was nine and a half years imprisonment with a non-parole periond of six years.

 

In R v Robertson 16/11/10 [2010] QCA 319 the COA allowed A’s appeal re sentence. A was 47 at the time of his offending and had a poor driving offence history. Fraser J stated “The [A’s] deliberate ramming of the deceased’s vehicle, the speed at which he drove, and the callousness demonstrated by his leaving the scene and expressing a lack of concern to the police about the death and injuries he had caused, were all properly taken into account by the trial judge. A severe sentence was demanded where the [A’s] grossly culpable driving caused the death of a young man, the grievous bodily harm of another young man, and the injuries to the three other passengers. … [T]he [A’s] offending, which arose out of an extravagant overreaction … did not have those additional features such as evasion of the police, disregard of a police direction, or considered persistence in highly dangerous driving over a long period and distance, which would have put this into the worst category of dangerous driving or criminal negligence. … [T]he sentences of imprisonment of 14 years and 12 years on counts 1 [manslaughter] and 2 [dangerous operation of a vehicle causing grievous bodily harm, whilst excessively speeding and leaving the scene] were manifestly excessive and that those sentences should be varied by instead imposing sentences of imprisonment of 12 years and 10 years respectively” @35-36.

 

In Duncan v R 3/5/12 [2012] NSWCCA 78 the A lost control of her uninsured and unregistered vehicle on a bend while travelling at least 45 kph above the 100 kph speed limit. Two passengers who were children were killed and three young passengers suffered serious injuries. A suffered minor injuries. There was no reason for her to be travelling at high speed and she had reached speeds near 200 kph. She was showing off. She ignored passengers’ calls for her to slow down. In light of her gross moral culpability little weight was given to mitigating factors. Extra-curial punishment considered. A’s sentence of 12 years and six months imprisonment for two counts of manslaughter and three counts of aggravated dangerous driving causing grievous bodily harm confirmed.

 

In R v Hyde aka Rayward 29/6/12 [2012] NSWDC 93 “[i]mmediately before the collision, Mr Hyde … drove, at speed, the wrong way, up the entrance ramp to the Hume Highway … The offender’s driving in the lead up to Mr Feralla’s death was truly dangerous. He drove to escape a lawful and careful police pursuit. He was driving a stolen car. He was disqualified from driving. He had never held a driving licence. He was serving an incomplete sentence for other offences. He had been released to parole on 1 October 2010. In the collision his two passengers were injured” @2. D sentenced to an aggregate of 11 years and 3 months with non-parole period of 7 years and 3 months for motor manslaughter, aggravated dangerous driving causing grievous harm and driving furiously occasioning actual bodily harm. D fled accident scene. No objective matters to excuse D’s conduct.

 

In Spark v R 4/7/12 [2012] NSWCCA 140 an appeal against a sentence of imprisonment of 15 years with a non-parole period of 11 years and 3 months and a parole period of 3 years and 9 months for two counts of manslaughter was dismissed. The A was on parole at the time of his offending. He was driving a stolen vehicle whilst under the influence of drugs and whilst unlicensed (in fact he’d never held a licence. He drove in an extremely reckless manner at speeds double the speed limit in wet conditions while being pursued by police for several kilometres and after the pursuit was abandoned. It was not possible to conclude that A would not reoffend. He was injured in the accident too. Issue of extra-curial punishment and mitigation considered.

 

See R v Glenbar 29/11/13 [2013] QCA 353 where A, who was 42, killed two pedestrians and caused grievous bodily harm to his passenger when he drove with an alcohol reading between 0.168 per cent and 0.224 per cent at high speed whilst attempting to evade police. A continued driving despite his passenger’s plea to stop and after having hit and killed two pedestrians and the rear of another vehicle. He travelled about 4km whilst being pursued by police before he crashed. He travelled 50-100kph above the 80kph speed limit. His driving was not in a built up area, but there were houses in the vicinity. A “demonstrated rehabilitation, remorse and insight, together with an early guilty plea” @74. D’s priors included “drink driving conviction in 1987, dangerous driving and unlicensed driving in 1987, a drink driving offence in 1998, and another drink driving offence in 2008. The last offence involved a disqualification which would have ended only a few months before the applicant committed the offences in question” @97. A’s concurrent sentence of 10 years imprisonment on each count of manslaughter and four years imprisonment on the count of doing grievous bodily harm confirmed by majority after considering comparable cases. “[T]he imposition of the 10 year sentence meant an automatic serious violent offence declaration, resulting in the applicant being required to serve eight years before becoming eligible for parole” @74.

 

See R v Armstrong 31/10/14 [2014] QCA 274, an unsuccessful appeal from A’s conviction and sentence subsequent to “pleas of guilty to a count on indictment of manslaughter and to summary offences of driving under the influence of alcohol and driving while unlicensed” @1. The applicant when he was about 29 in 2009 knocked over and killed a road worker when he was travelling recklessly and in disobedience to traffic controllers at well over 100 kph through road works. A was affected by alcohol and had cognitive and brain deficits. “For the manslaughter conviction, the applicant was sentenced to nine years’ imprisonment with eligibility for parole after three years and six months” @1.

 

See Day v R 22/12/14 [2014] NSWCCA 333 an appeal from a decision where A had “pleaded guilty to an offence of manslaughter … and an offence of dangerous driving causing grievous bodily harm” @2. The trial judge also took into account two further offences of dangerous driving  causing grievous bodily harm and “an offence of driving under the influence of a drug and driving having worked more than 12 hours in 24 hours” @2. “The overall sentence was … a total sentence of imprisonment for 10 years with a total non-parole period of 7 years” @9. A in 2010 had hit four cyclists with his truck, killing one, when his truck diverged onto road shoulder. A was 27 at the time and suffering from anxiety and depression due to his harsh employment conditions. “The agreed facts establish that the applicant got behind the wheel of a Mack truck with a heavy load in a state of acute exhaustion and having recently smoked marijuana, a drug he says he would smoke to help him sleep. The uncontested facts were that he smoked that drug within hours before driving, in which case he must have smoked it in the early hours of the morning. He should not have driven in those circumstances. The consequences were tragic, not only for the man who died but for the three other victims, each of whom suffered serious injuries. One of the victims now suffers from post-traumatic stress disorder. Another has suffered a brain injury of mild severity as a consequence of the accident” @27. Sentence regarded as stern, but appeal dismissed.