Sentencing in NSW for dangerous driving causing death

s52A(1)(c) – Dangerous driving occasioning death     (contact kiddlrs@optusnet.com.au for more cases, or for cases for your state)

See also Manslaughter (motor)

 

See Mitreski v R; R v Mitreski 11/12/08 [2008] NSWCCA 301 [(2008) 51 MVR 536] per Latham J, Full Court, from para. 53 where authorities on the meaning of ‘momentary inattention’ were canvassed and a sentencing appeal allowed. On two accounts of dangerous driving causing death the D was sentenced to a non parole period of two years on the first count and to a non parole period of two years on the second count and a disqualification period of three years.

 

In Shumack v R 16/12/08 [2008] NSWCCA 311 the COA upheld the sentences for dangerous driving causing death contrary to s52A(1)(c) and failing to stop after such driving contrary to s52AB(1). There was no error in considering the failure to stop to be an aggravating factor in the former offence. The issue of double punishment was thoroughly considered. A further aggravating factor was an alcohol reading of 0.1%. The A had a good record, was unlikely to reoffend, had good rehabilitation prospects, but did not plead guilty. His sentence was as follows: “imprisonment with a non-parole period of 4 years to date from 15 October 2007 and to expire on 14 October 2011 with an additional term of 2 years to expire on 14 October 2013 [for the s52A(1)(c) offence] … [and] imprisonment with a non-parole period of 3 years to date from 15 October 2009 and to expire on 14 October 2012 with an additional term of 2 years to expire on 14 October 2014 [for the s52AB(1) offence]. As a result of partial accumulation, the total effective sentence was imprisonment for 7 years with a non-parole period of 5 years. The earliest date that the [A] is eligible for release to parole is on 14 October 2012 [and disqualification for 3 years]”.

 

In R v Thai 3/4/09 [2009] NSWDC 57 Murrell SC DCJ sentenced a 53y.o. employed male with two dependent children and a good driving record to a balance term of 8 months and a non-parole period of 22 months for his momentary inattention which caused him to go through a red light and kill another driver going through on a green light. Not long before the accident the D had suffered tragic losses in the family and these contributed to his inattention. In Thai v R 22/12/09 [2009] NSWCCA 314 [55 MVR 187] appeal allowed and sentence reduced to 15 months imprisonment.

 

In TG v Regina 2/3/10 [2010] NSWCCA 28 [55 MVR 180] CCA dismissed appeal from sentence of four years imprisonment with non-parole period of two years in the case of a 17 y.o. who was convicted of four counts of aggravated dangerous driving causing death when overtaking above the speed limit and above the speed he was allowed to drive on his license. Howie J stated that “the [A’s] moral culpability was high. It was deliberate risk taking, in that he overtook the other vehicle across unbroken centre lines, without any reason to do so. He was travelling at speed on a dark, wet road and where he could not sufficiently see the road in front of him to be aware of what was coming by way either of other vehicles or the characteristics of the roadway. He was an inexperienced driver and the limit on his licence as to the speed at which he could drive was intended to limit the risk of that inexperience resulting in a serious motor vehicle accident@30”. Sentence regarded to be more on the lenient side.

 

In R v Adamczyk 18/3/10 [2010] NSWDC 76 “the accused suffered from severe and untreated sleep apnoea, it was dangerous for him to drive. It was particularly dangerous for him to drive a significant distance at a relatively high speed”@17. D’s car hit another, killing the occupant, whilst he was having a microsleep. D was unaware he had sleep apnoea. He honestly and reasonably believed that it was safe for him to drive. Murrell SC DCJ found D not guilty.

 

In Rose v R 6/8/10 [2010] NSWCCA 166 [56 MVR 123], on appeal a 34 y.o. A with mild mental retardation was sentenced to two years and three months imprisonment for 3 counts of aid and abet dangerous driving contrary to s52A(1)(c) and one count of aid and abet dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c). The A was pestered by unlicensed teenagers to allow them to drive his utility. He was in the front seat and advised them not to drive too fast. Other teens were on the utility tray. Speed was not an issue, but one of the drivers lost control of the vehicle on a corner resulting in the tragic deaths of three and serious harm to another. The relevance of mental illness re sentencing considered from paragraph 33. A was remorseful and had no priors.

 

In Nashed v R 3/12/10 [2010] NSWCCA 282  [57 MVR 66] “The applicant was a P-plate driver [who was 18] who set out to drive from the Gold Coast to Sydney which was a lengthy journey. … He was seriously sleep deprived, having had only two hours sleep in 28 hours prior to the collision during which time he had driven from Sydney to Brisbane, and two hours sleep in the 24 hour period prior to that time. … Drowsiness, and falling asleep commenced at least ten minutes before the collision. Although he realised from warnings that he was falling asleep, and that the truck was drifting out of its lane, the applicant decided to continue driving to Ballina. … There were a number of places where the applicant could have pulled up and stopped driving but he did not do so. … The applicant’s driving caused the death of Ms O’Nair [a cyclist riding to his left whom he hit whilst asleep]” @16. Drugs and alcohol were also involved. The A pleaded guilty. His sentence of three years imprisonment with a two year non-parole period and five year licence disqualification was upheld.

 

In R v Townsend 24/12/11 [2011] NSWCCA 336 [57 MVR 240] the R had pleaded guilty to an offence against this section and his sentence of 300 hours community service with a 12 month licence suspension was upheld on this appeal. R hit and killed the driver of another vehicle when he crossed onto the incorrect side of the road. “The judge found that the accident occurred due to ‘inadvertence or misjudgment of the road’s configuration relative to his speed’, and accepted that the [R] was not in a hurry and so driving ‘too fast’” @28. R was 25 y.o. at sentencing and only had one prior driving offence for speeding.

 

In Preston v Regina 2/3/11 [2011] NSWCCA 25 [57 MVR 346] on appeal, A’s sentence for one count of dangerous driving causing death was reduced to 36 months imprisonment with a non-parole period of 18 months and a licence disqualification of two years. A to be released after expiration of non-parole period. A was an experienced truck driver with an excellent driving record. He was in his late fifties at the time of the collision. He failed to give way when entering a highway, only slowing to about 25 kph, and collided with a vehicle killing the occupant. It was daylight and the road was dry. There was a partial blind spot affecting his view. Special circumstances in sentencing in A’s case should have been found. Given A’s excellent driving record, section 188(2)(d)(i)&(ii) of the RTA (General) Act 2005 were applied in A’s favour re the period of his  licence disqualification.

 

In Hedges v Regina 9/12/11 [2011] NSWCCA 263 [60 MVR 159] the A was convicted of one count of driving in a manner dangerous causing death. A, who was 19, was involved in an accident when he crossed double white lines whilst overtaking. There were no aggravating features. A had previous “convictions for driving whilst suspended, speeding, driving recklessly, furiously or at a speed or in a manner dangerous, and for not complying with the conditions of his learner’s permit and his provisional driver licence. His licence was suspended at the time of this accident” @73. Trial judge made errors in applying guideline judgment. A sentenced to a term of imprisonment comprising a non-parole period of 15 months after which A must be released on parole, with an additional term of 15 months.

 

In WW v R 9/8/12 [2012] NSWCCA 165 A was sentenced to two years and nine months imprisonment for failing to stop after an accident in October 2009 when he was 17 in which he killed a cyclist. On the count of dangerous driving causing death “the [A] was sentenced to imprisonment with a non-parole period of 4 years, commencing 1 January 2012 and expiring 31 December 2015, with a balance of term of 3 years expiring 31 December 2018. The overall sentence was a non-parole period of 5 years, with a balance of term of 3 years. His Honour also imposed a licence disqualification of 6 years commencing 19 April 2011. A only pleaded guilty to failing to stop. “In assessing moral culpability, his Honour appropriately took into account that the [A] was never licensed to drive, had been convicted on two occasions of driving while unlicensed and yet shortly before the accident had purchased the car which was involved. The [A’s] failure to stop was relevant, although its importance was limited given that it formed the basis of the second offence. His Honour considered that the deliberate use of a telephone to text a message so that the driver was totally oblivious to the fact that the car had moved onto the incorrect side of the road and had thereby lost control of the car, was an important factor in his assessment of the moral culpability of the [A] as high. That was a conclusion well open … [A]n activity which so occupies the attention of a driver that he does not or cannot observe the road for at least six – nine seconds and allows his vehicle to veer onto the wrong side of the road is tantamount to driving with one’s eyes closed. It is an activity deliberately undertaken and it is an activity which is highly dangerous. The fact that many young people misguidedly engage in such an activity while driving does not reduce the moral culpability of the conduct” @79-81. Appeal dismissed.

 

In Williams v R 20/12/12 [2012] NSWCCA 286 a passenger, who subsequently died, grabbed the steering wheel from A who was heavily intoxicated. Hulme J stated that “being denied the ability to operate one of the functions normally required for driving did not exclude … [someone] from being the ‘driver’” @63. “A person charged with an offence of dangerous driving occasioning either death or grievous bodily harm does not have to be shown to have been voluntarily and consciously managing and controlling the movement of the vehicle at the exact moment of impact. … The offence of culpable driving as it applies in the present case requires a motor vehicle to have been driven in a manner dangerous to the public at the time of the impact which occasioned death. Even if the motor vehicle was not being driven dangerously at the precise moment of impact, a preceding period of driving in a dangerous manner may be so nearly contemporaneous with the impact as to satisfy this element of the offence.” @67. A’s conviction and sentence confirmed.

 

See R v Schilder (No 2) 24/1/13 [2013] NSWDC 24 where D suffered an epileptic seizure while driving and killed one driver and caused grievous bodily harm to another. Neilson DCJ stated that “objectively this case is in, at least, the mid-range of seriousness [with high moral culpability]. Firstly the offender knew that he had epilepsy. He knew that driving whilst tired was likely to cause him to suffer an epileptic seizure. It had happened at least twice in the past … His driver’s licence was suspended. He was given advice … to take his medication regularly and to have proper rest and not go sleep deprived. That advice was not adhered to. He was sleep deprived at the time of the seizure on 7 September 2009. He was sleep deprived at the time he committed these crimes on 12 September 2010. He had clearly not ceased smoking cannabis. … Here the offender lied to Professor Pollard and lied to the RTA about what had happened on 7 September 2009 by failing to disclose that seizure at all, in fact, denying that there had been any such seizure. He did so in order to obtain the return of his driver’s licence … He maintained his deception, his misinformation to Professor Pollard and the RTA, some six weeks prior to the crimes that he committed on 12 September 2010” @34. D has limited intellectual functioning, but it did not contribute to his offence in a material way. It will however make prison gravely alarming and distressing to him. There was no need for specific deterrence in sentencing as D unlikely to offend again. D pleaded guilty (but not to the aggravated offences which he was acquitted of), was of good character and had suffered extra-curial punishment. D sentenced to three years imprisonment with a non-parole period of 20 months for dangerous driving occasioning death and two years and three months with a non-parole period of 15 months for dangerous driving occasioning grievous bodily harm. After a finding of special circumstances the sentences were partially accumulated, with a total head sentence of 4 years and a total non-parole period of 2 years and 8 months.

 

In R v Minna 25/3/13 [2013] NSWDC 104 Hoy SC DCJ sentenced D to two years and three months imprisonment with a non-parole period of nine months. D was about 22 in June 2012 when he was driving with an alcohol reading of 0.137. He swerved to miss a kangaroo, but rolled the car with four of his friends (who were more intoxicated than him) in it, killing one. He had nearly completed the 80km distance he intended to travel. D was a tourist who was working in Australia. He had no priors, pleaded guilty, was very remorseful, and was of good character. The victim’s mother did not want him to go to prison. D granted an extended parole period due to special circumstances.

 

See R v Woodward 25/11/13 [2013] NSWDC 264 where Berman SC DCJ sentenced D to six years imprisonment with a non-parole period of four and a half years and disqualified D from driving for five years. D, whilst heavily intoxicated, decided to overtake a car doing the speed limit of 90 kph near the crest of a hill. D lost control of his vehicle, killing his passenger. D’s driving was such that he was an ‘accident waiting to happen’. D showed remorse. Victim’s family devastated. D’s partner and three children will suffer while he is in prison. Appeal allowed 3/10/14 in [2014] NSWCCA 205. Trial judge did not explicitly state he had taken guilty plea into account and D would have been entitled to a 25% reduction. D “was 26 years old at the time of the offence, had a criminal history including a prior offence (in 2006) of low range PCA in relation to which no conviction was recorded” @23. D “had three children aged 5 years or younger at the time of sentence. There was also a letter from a general practitioner noting that the applicant was taking anti-depressant medication” @24. “[T]he moral culpability involved in this case and the abandonment of responsibility was very high. As the respondent pointed out, not only was the applicant well over the legal limit in terms of his blood alcohol reading but he was also speeding and, as a P-plate driver, he was in breach of the conditions upon which he was entitled to drive at all. His manoeuvre of crossing double separation lines as he approached the crest of a hill was reckless to a substantial degree” @33. Re-sentenced to three years and nine months imprisonment with a non-parole period of two years and nine months.

 

See R v Hennessy 22/11/13 [2014] NSWDC 14 where Berman SC DCJ sentenced D to four years imprisonment with a non-parole period of three years and five years licence disqualification. D was a truck driver. He distracted himself by checking the time on his mobile phone whilst approaching an intersection in a school zone. His truck collided with a bus killing a boy and injuring others. D had a long list of speeding offences, but had never been to prison before. He was very remorseful.

 

See Aitken v R 29/9/14 [2014] NSWCCA 201 where A’s sentence of imprisonment for 4 years 1 month with a non-parole period of 2 years 6 months for an offence of driving under the influence of intoxicating liquor occasioning death was confirmed. A “was 18 years of age and held a learner’s permit to drive. … [On] 25 November 2011 he was driving a utility with two passengers in Mudgee. He failed to negotiate a left hand bend in the road, lost control and the vehicle impacted heavily with a tree before coming to rest. One of the passengers … a close friend of the applicant’s, was killed” @5. “[I]t was pouring with rain at the time and visibility was reduced to about 20 to 50 metres ahead. It was a 50km/h speed limited area but it was an agreed fact that he had been travelling at between 76 and 93 km/h, more likely towards the upper end of that range. He told police that he was aware that as a learner driver he was subject to a zero blood alcohol limit, a speed limit of 80 km/h and was to be under the supervision of a fully licensed sober driver” @7. A had an alcohol reading of 0.109. A’s driving was noticeably erratic. He had a limited traffic and criminal record. A “had good prospects of rehabilitation and was unlikely to re-offend. The judge also took into account an element of extra curial punishment on account of the applicant having sustained a fractured vertebrae and other consequences such as being unable to continue with his work as a shearer’s rouseabout” @14. The sentence was severe, but within the bounds of the sentencing discretion.