Director of Public Prosecutions v Victoria BHANDARI

The Facts 1A comprehensive statement of agreed facts were tendered by the Prosecution and are attached to the Court record. For the sake of these remarks I have condensed them. 2At approximately 8.45 pm on 3 August 2009 the offender was driving South along Illawarra Road, Marrickville. She had her two children, aged 11 and 5 with her in the car at the time. The offender was familiar with this section of roadway having travelled it on a number of prior occasions. She approached the intersection with Warren Road with the intention of making a right hand turn. The intersection in question is controlled by a number of traffic control lights for the purpose of managing the intersection, including facilitating the passage of pedestrians. 3Night-time prevailed. There is a suggestion in the facts that visibility at the intersection was, at the time, affected by a level of overshadowing of the intersection from tree foliage reducing the overall effectiveness of lighting in general and that a street light was inoperative. However the prosecution facts establish that these environmental factors were not so significant as to provide any real impediment to the capacity of motorists or pedestrians to observe the passage of either on or through the intersection. 4The offender stopped at the intersection in obedience to a red traffic light facing her vehicle. The lights turned to green and she began to make a right hand turn. At the same time the lights governing passage of pedestrians across Warren Road changed from red to green. In response to the change Mrs Krsnak, a 76-year-old woman wearing what may be described as neutral clothing under a long grey coat began to cross the road. Her movement from the footpath in conformity with the "walk" sign was observed by a Mr Mustafa. He had brought his vehicle to a stop in Warren Road in response to the red light facing him. He told police he saw the pedestrian walk sign illuminate and Mrs Krsnak leave the footpath. He said she walked past his vehicle and was illuminated in his vehicle headlights. 5The offender began her right hand turn. Her vehicle came into collision with Mrs Krsnak at a point almost in the centre of Warren Road. There is no issue Mrs Krsnak was entirely within the marked passageway for pedestrians. The offender offered the view that the lights governing passage of pedestrians was red at the time she began her turn and that she had looked to see if there were any about before continuing. In light of the observations of Mr Mustafa this statement by the offender is patently wrong. 6The front of the offender's vehicle struck Mrs Krsnak at a point closer to the passenger side than the driver's side. Tragically the force of the impact and the continuing passage of the offender's vehicle brought about the death of Mrs Krsnak. It is implicit in the eventual plea of guilty by the offender that her belief regarding the manner in which Mrs Krsnak crossed the road was mistaken and that the tragedy ensued as a result of a failure on her part to keep a proper lookout. 7Following investigation by police the offender was charged with a series of offences. Following participation in a Case Conference and, I am informed, with the consent of the victim's extended family a more serious charge was withdrawn. As a consequence the offender is before this Court today to be sentenced for the offence of negligent driving causing death, an offence set out in section 42(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999. The maximum penalty for this offence is imprisonment for 18 months and/or a fine of $3300. The offence is classified as a serious traffic offence. In addition to any penalty imposed conviction carries an automatic disqualification of license of 3 years with a minimum period of 12 months. 8As a prosecution brought by the Director of Public Prosecutions before the Downing Centre Local Court the proceedings became subject to the Criminal Case Conferencing Trial Act 2008. This process is intended to enable a more expeditious conclusion to prosecutions through the requirement that the parties participate in a conference intended to resolve the issues between the parties and, where appropriate facilitate an early plea of guilty. 9The legislation provides for a statutory range of discounts in matters where the offender acknowledges guilt. In these proceedings, despite the inordinate delay in bringing the matter to finality entry of a plea of guilty activates section 17 of the Criminal Case Conferencing Trial Act 2008. Contrary to what would have been the position at common law the offender is entitled to have the ultimate penalty discounted by 25%. 10In determining penalty the Court is required by section 21A of the Crimes (Sentencing Procedure) Act 1999 to take into account a combination of aggravating factors and mitigating factors when assessing an offender's culpability. 11I turn firstly to section 21A(2)(g). The offence of negligent driving is an offence set out in section 42(1) of the Road Transport (Safety and Traffic Management) Act 1999. The fact of death is not an element of the offence but a circumstance that elevates the maximum penalty. 12The solicitor for the Director, when asked whether a Victims' Impact Statement had been prepared informed the Court that such a document had not been compiled but that he was aware members of the extended family of Mrs Krsnak had been devastated by the loss and continue to suffer as a consequence. In such circumstance I am of the view the Court from its own experiences of life can take emotional harm and loss into account where it is satisfied that it is substantial. I am satisfied that in this matter this threshold consideration is established. 13The loss of human life as a consequence of the commission of an offence is a tragedy to those who rightly value such a life by virtue of their relationship with the deceased. The effect of this offence has been and will likely remain, significant. Despite the familiarity within modern society of the tragic consequences often flowing from motor vehicle accidents the community has not become so inured to such sudden unanticipated loss through accidents as to accept it as a normal vicissitude of life. 14I have expressed the view elsewhere that the law has no capacity to restore the balance in the lives of those affected by the unexpected loss of a loved one through accidents such as this. Before turning to other considerations the law requires me to take into account on sentence I extend my sincerest sympathies to the victims and their families. 15In addition to the foregoing circumstance of aggravation I am of the view that section 21A(2)(i) also has application. There is a clear inference arising from the facts and implicit in the plea that this offence was committed without proper regard to public safety. The responsibility attendant upon the holder of a driver's license to exercise it in accordance with the standards of a reasonable and prudent driver demanded that at all material times the offender have proper regard for the presence or potential presence of pedestrians and other motor vehicles that might be at risk of injury or collision. 16It is clear from the statement of Mr Mustafa that the offender in executing her right hand turn across the intersection and into the path of Mrs Krsnak had a clear and unobstructed view. Failure to see both the green illuminated walk sign and/or Mrs Krsnak can only be put down to a failure to keep a proper lookout. No other explanation is reasonable. I do not accept that minor issues to do with overshadowing by tree foliage or the possible reduction in general lighting suggested by one witness were of such significance as to mitigate the level of negligence. Such a failure on the part of the offender places the negligence towards the higher end of the objective seriousness. 17Having dealt with the aggravating factors I turn to those I am required to consider in mitigation of penalty. 18I have already dealt with the approach to be taken in relation to a plea of guilty and the reasons why the statutory scheme is applicable. It is not necessary to further consider the impact of the plea of guilty. 19Section 21A(3) lists the mitigating factors a court is required to take into account in determining the appropriate sentence. For the record I am satisfied that section 21A(3) (b), (d), (e), (f) (g) (h) are all applicable in the offender's favour to mitigate the penalty. The mitigating fact of the plea of guilty has been addressed elsewhere and need not be further considered under section 21A(3)(k). Given the comments at page 2 of the Pre Sentence Report under the heading "Attitude to the Offence" the offender cannot in my view establish contrition and remorse sufficient to further mitigate the penalty.