(2005) 159 A Crim R 154, R v McNaughton (2006) 66 NSWLR 566
(2005) 159 A Crim R 154
Filippou v The Queen (2015) 256 CLR 47
[2015] HCA 29
GAS v The Queen
SJK v The Queen (2004) 217 CLR 198
Source
Original judgment source is linked above.
Catchwords
(2005) 159 A Crim R 154, R v McNaughton (2006) 66 NSWLR 566(2005) 159 A Crim R 154
Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29
GAS v The QueenSJK v The Queen (2004) 217 CLR 198[2004] HCA 22
Karout v R [2019] NSWCCA 253
King v The Queen (2012) 245 CLR 588
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Meis v R [2022] NSWCCA 118
Nguyen v The Queen (2016) 256 CLR 656[2016] HCA 17
Prineas v R [2018] NSWCCA 221
Quinn v Cth DPP [2021] NSWCA 294
R v Borkowski [2009] NSWCCA 102[1998] NSWSC 423
R v Koosmen [2004] NSWCCA 359
R v McNaughton (2006) 66 NSWLR 566[2006] NSWCCA 242
R v Parente (2017) 96 NSWLR 633
R v Pullen [2018] NSWCCA 264
R v Whyte (2002) 55 NSWLR 252[2002] NSWCCA 343
The Queen v De Simoni (1981) 147 CLR 383[1981] HCA 31
Veen (No 2) v The Queen (1988) 164 CLR 465
Judgment (2 paragraphs)
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Police v Chidiac [2022] NSWLC 20 | Case summary | Zoe
JUDGMENT
The defendant has pleaded guilty to one offence of negligent driving occasioning death under s 117 of the Road Transport Act 2013 (NSW). The offence as committed by the defendant is classified as what is known as a second offence or subsequent offence under Road Transport law and attracts the higher maximum penalty of a fine of 50 penalty units or imprisonment for 2 years or both. This is because the defendant has been convicted in a court for 2 major offences in the last 5 years. More particularly 2 offences of drive with illicit drug present in blood on 25 March 2021 at Bankstown Local Court and 23 June 2021 at the Downing Centre Local Court.
During the course of the sentencing hearing the prosecution tendered without objection a document entitled "Facts Sheet". The Facts Sheet is sometimes referred to as "agreed facts." It is the factual basis of the defendant's plea of guilty and the basis upon which the defendant is to be sentenced. The court is bound to sentence on the facts tendered by the prosecution. It has a limited capacity in a practical sense to find any additional facts. The High Court made this clear in GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [31]:
" … there may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge's capacity to find facts will be affected by the evidence and the admissions. In deciding the sentence, the judge must apply to the facts as found, the relevant law and sentencing principles."
In the facts there is reference to CCTV footage of the incident and also dash camera footage taken from the car hit by the defendant. This footage is described in the facts sheet but the prosecutor made a decision in the sentencing proceedings not to play or tender any of this footage in court.
The following sets out substantially the facts that were tendered by the prosecution and upon which the plea of guilty was entered.
The accused in this matter is Antoine Chidiac, born [xx] August 1988. He is the holder of an unrestricted New South Wales Drivers Licence. The victim in this matter is Rima Hanna, born [xx] January 1982. The collision occurred in the southbound lanes of the Princes Highway, Sylvania New South Wales on a portion of a roadway directly in front of 216, Princess Highway at a point where northbound vehicles are required to travel around a sweeping right hand bend in the roadway and southbound vehicles, corresponding left hand bend.
The sign posted speed limit is 70 km/h. There are three lanes for southbound, and three lanes for northbound vehicles with the directions separated by a raised concrete median strip. At the time of the collision, there had been scattered rain, and the roadway was drying with scattered wet patches, the weather overcast.
At 11:10 AM on 27 March 2022 a Maroon Toyota Corolla was being driven by the accused, travelling north on the Princes Highway Sylvania. At the time, the victim was seated in the front passenger seat.
At this time another driver was travelling south in lane 3 of 3 in a blue Honda HRV, at a speed not suspected of being above the speed limit. A Navman branded dash camera was affixed to the front windscreen of her vehicle and was recording both sound and audio.
The accused changed lanes from lane 2 into lane 1 (closest to the kerb) and approached the pedestrian traffic control lights ahead of 254A, Princes Highway before travelling around a sweeping right hand bend.
As the accused' vehicle travelled around the right hand bend, the vehicle commenced rotating with the rear left hand side of the vehicle leading. This resulted in the vehicle travelling from lane 1, across lane 2, and into lane 3 between a silver Ford Utility and a Silver -Hyundai hatchback. As the vehicle entered lane 3 during this uncontrolled slide, the vehicle commenced sliding in a broadside skid - travelling perpendicular to the northbound lanes.
The vehicle collided with the median strip, travelled across it and into lane 3 of 3 of the southbound lanes, at which point the other driver, unable to react in time, collided with the left-hand side of the Toyota. This sequence of events is captured clearly on the other driver's vehicle dash camera. The victim is clearly visible in the passenger seat and the accused driving. The collision resulted in the death of the victim who passed away a short time after the collision. The accused exited the vehicle under his own power, suffering minor injuries. The other driver was uninjured and exited her vehicle under her own power.
Emergency services from NSW Fire and rescue, NSW Ambulance and NSW Police and Traffic and Highway and Patrol attended. The accused was conveyed by road to hospital where mandatory blood and urine samples were supplied. The other driver supplied breath test, returning a negative result before being conveyed to Sutherland Hospital for mandatory blood and urine tests before being released. Due to the circumstances of the collision the Crash Investigation Unit and Forensic Imaging Section attended. The scene was measured, documented, and photographed. The accused' vehicles was seized for mechanical examination. The accused blood samples were analysed and the results were received on 20 May 2022 and revealed while there were trace amounts of THC and Fentanyl in the accused' blood sample, the levels were not at a point to which the accused would have been impaired by drugs or alcohol at the time of the collision.
A mechanical examination of the accused' vehicle was completed by the Engineering Investigation Section on 3 May 2022. No faults or defects were found with the vehicle during the examination that would have contributed to the collision. An examination of the accused' mobile phone was completed. Police are unable to state the accused was using any of the phone's functions at the time of the collision. Investigators obtained CCTV from several sources leading up to and at the time of the collision the footage from the other driver's vehicle captures the Toyota as a commences to rotate and the collision itself. The accused is clearly the driver, with both hands on the wheel at the time of impact. There were no other vehicles involved in the collision. Further CCTV was obtained from two locations south of the collision on the Princes Highway Sylvania capturing the accused vehicle travelling north towards the collision location.
On 12 May 2022, investigators were formally notified by the accused' nominated legal representative that he would not take part in any record of interview nor supply the required particulars to police pursuant to Rule 287 of the Australian Road Rules. At no point has the accused supplied any reason to any police officer as to the exact cause of the collision and the collision remains unexplained.
Police respectfully submit the collision occurred due to the manner of driving by the accused. The accused vehicle was travelling around a sweeping right hand bend and commenced sliding, resulting in the collision and the death of the victim for no explained or obvious reason. There were no faults or contributing factors found with the roadway, the vehicle, or any other vehicles involved. CCTV clearly shows other vehicles navigating the same stretch and lanes of travel driven by the accused with no issues prior to or following the collision. The loss of control led to the accused' vehicle to travel into oncoming traffic where he collided with the other vehicle. Police alleged the accused failed to have a proper control of his vehicle resulting in the collision. The accused to date has declined to supply required particulars to police and the collision remains unexplained.
Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires that the sentence that is imposed must reflect the need for deterrence, facilitate rehabilitation, make the defendant accountable and recognise the harm done to the victim and the community. The court must also have regard to the subjective features of the case and the fact that the defendant pleaded guilty at an early stage.
A central part of the sentencing process is for the court to assess the seriousness of the crime. The starting point is the maximum penalty for the offence and the ingredients of the offence. In the High Court decision of Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31], Gleeson CJ, Gummow, Hayne and Callinan JJ said:
"…careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick."
The maximum penalty is two years imprisonment and/or a fine of 50 penalty units. The offence carries an automatic driving disqualification period of 3 years. The appellate courts have made observations concerning the seriousness of the offence of negligent driving occasioning death. In Bonsu v R [2009] NSWCCA 316 at [19] Justice Howie observed that:
"… [sentencing] statistics reveal that little regard or insufficient regard is being paid in the Local Court or the District Court on appeal to the fact that the offender being sentenced has caused the loss of life."
The previous Chief Magistrate, His Honour Judge Henson, examined these observations in R v Fageer [2017] NSWLC 18 and said:
"… the Court highlighted what it considered to be inadequate sentences being imposed for driving offences leading to the death or deaths of members of the community. So far as this matter is concerned, the message to be taken from Bonsu is that great care must be taken to ensure both consistency in approach to sentencing for these types of matters and also to ensure that sentences are not weighted in favour of the offender, to the extent that the impact of the crime on the victim and the community together with the obvious need for general deterrence are not undermined."
It is necessary to also recognise the ingredient of negligence in the offence before the court as compared to other driving offences in the criminal calendar. The High Court in King v The Queen (2012) 245 CLR 588; [2012] HCA 24 at [38] when referring to materially similar Victorian legislation referred to "a coherent hierarchy of offences relating to death or serious injury arising out of motor vehicle accidents". The principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 at 389 prohibits the court from taking into account, as an aggravating circumstance of an offence, a circumstance which would render the offence a different and more serious offence: Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [28], [60]. Whatever may be said of the facts in this case the court cannot sentence the defendant on the basis that he drove in a dangerous manner. To do so would impermissibly punish him for the more serious offence under s 52A of the Crimes Act of dangerous driving occasioning death which carries a maximum penalty of 10 years imprisonment. The court must only sentence the offender on the basis that he drove negligently.
Turning to the assessment of the crime before the court. A good starting point is to examine the nature of the offence. In Prineas v R [2018] NSWCCA 221 the Court of Criminal Appeal affirmed the Supreme Court decision of Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953. It was held that negligent driving is established where it is proved beyond reasonable doubt that an accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances. It is axiomatic that a high degree of departure from the standard of care expected of the ordinary prudent driver in the circumstances would warrant a corresponding finding that the crime fell at the higher level of objective seriousness. A small degree of departure would warrant a finding of low level of objective seriousness. Section 117(3) of the Road Transport Act also provides that in considering whether an offence has been committed under s 117, the court is to have regard to all the circumstances of the case, including the nature, condition and use of the road on which the offence is alleged to have been committed, the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road, and any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes).
In this case the parties did not agree on the issue of the degree of negligence. On the question of the assessment of the crime it was submitted by counsel for the defendant that the court could not find that the driving by the defendant involved an abandonment of his responsibility. The concept of abandonment of responsibility was introduced as part of sentencing law in the guideline judgment for the more serious offence of dangerous driving occasioning death - most notably in the Court of Criminal Appeal cases of R v Jurisic (1998) 45 NSWLR 209; [1998] NSWSC 423 and R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343.
For the reasons that follow the court will not be making a finding on the question whether the driving by the defendant involved an abandonment of responsibility. In the High Court decision of Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 Justices Gageler, Nettle and Gordon JJ held at [58] that it is irrelevant in assessing the objective gravity of an offence of manslaughter to contrast it with what would be an offence of murder. More particularly taking into account the absence of a circumstance which, if it were present, would render the subject offence a different offence. It is erroneous simply because it is irrelevant to, and likely to distort, the assessment of objective gravity. Justices Bell and Keane JJ at [29] stated the judge would err because, plainly enough, that fact is irrelevant to the assessment of the seriousness.
Applying that High Court decision to this case in assessing the seriousness of the crime the court will not ask and answer the question of whether the defendant's driving involved an abandonment of responsibility because that is not part of the statute and case law for this offence. It is a concept that applies to the more serious offence of dangerous driving. As the High Court made clear in Nguyen v The Queen it is irrelevant to the assessment of the seriousness of the offence and "likely to distort the assessment of objective gravity".
It was also submitted by counsel for the defendant that the court should treat the case as one where the collision was caused by the defendant's momentary inattention. This is because the facts state that the defendant had both his hands on the steering wheel prior to the collision. The submission is rejected. There is no reference to momentary inattention in the facts sheet and the evidence relied upon does not support a finding on the balance of probabilities that the collision was caused by the defendant's momentary inattention. It was certainly not a point conceded by the prosecutor. The facts sheet twice states at page 4 "the collision remains unexplained" and the defendant gave no account of the incident.
This issue is resolved by high authority. The High Court accepted in the case of Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 that it is sometimes not possible for the court to ascertain everything that is relevant at sentence. In a joint judgment in Filippou v The Queen Chief Justice French and Justices Bell, Keane and Nettle JJ said:
"….a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability. Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard." [emphasis added]
Therefore, applying Filippou v The Queen this is a case where the defendant has chosen not to offer any evidence on the plea. He stated in an unsworn statement tendered at sentence that - and I quote- "I do not remember anything at all about how the accident happened". This statement was made in circumstances where the facts state and I quote "The accused exited the vehicle under his own power, suffering minor injuries". There is no mention of momentary inattention in his unsworn statement. It bears repeating that the facts tendered state twice that the collision remains unexplained. There is no basis to find the collision occurred due to the defendant's momentary inattention.
In determining the objective seriousness of the crime the court must have regard to all the circumstances. The defendant was driving northbound on a six lane highway at 11:10 AM in the morning at Sylvania. There were three lanes for northbound traffic and three lanes for southbound traffic. The speed limit was 70 km/h. The sky was overcast and there had been scattered rain and the roadway was drying with scattered wet patches. Initially the defendant was in the middle lane and he changed lanes into the far left hand lane described in the facts as lane 1. He approached a pedestrian traffic control light prior to travelling around a sweeping right hand bend. At this point the defendant's manner of driving resulted in the vehicle commencing rotating with the rear left hand side of the vehicle leading in what is described as an uncontrolled slide. His vehicle travelled from lane 1 across lane 2 entered lane 3 between a Ford utility and a silver Hyundai hatchback. As the vehicle entered lane 3 in an uncontrolled slide it commenced sliding in a broadside skid travelling perpendicular to the northbound lanes. It then collided with the median strip travelled across that into lane 3 of 3 of the southbound lanes. The driver travelling southbound had no time to react and collided with the left-hand side of the defendant's car.
Just focusing on the driving itself the defendant completely failed to have a proper control of his vehicle and completely failed to safely negotiate the sweeping right hand turn on a busy highway. Given the sheer distance which his vehicle travelled across three lanes and a median strip of a six lane highway I find the degree of negligence was substantial. His manner of driving involved losing control of the vehicle on a busy highway. His driving was a high degree of departure from the standard of care expected of the ordinary prudent driver in the circumstances. I find the offence falls just above the middle range of objective seriousness for an offence of negligent driving. This finding of objective seriousness takes into consideration that there were no faults or defects found with his vehicle, there were no contributing factors found with the roadway he was travelling and other drivers safely navigated the sweeping right hand turn both prior to and after the collision. In short there was no evidence that this stretch of road was difficult to drive on or a source of accidents. This finding is also made in circumstances where it is accepted that he also had trace amounts of THC and fentanyl in his blood. It must be emphasised however that the evidence was that these two drugs did not impair his driving ability they were merely present at the time of his driving. That conduct was illegal but formed the basis of an offence on the Form 1.
Turning to other sentencing factors it was accepted by counsel for the defendant that the defendant's prior record and traffic history disentitled him to any leniency. Whatever may be said of the defendant's prior criminal history the law as declared in the five judge bench decision of R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [25] is that the Court cannot use the prior convictions to determine the upper boundary of a proportionate sentence. In the recent decision of Meis v R [2022] NSWCCA 118 at [42] the Court of Criminal Appeal revisited the principles in relation to use of prior record at sentence including the High Court decision of Veen (No 2) v The Queen (1988) 164 CLR 465; [1998] HCA 14 at 472. The court explained that before the defendant's previous record can properly be taken into account as an aggravating factor under s 21A(2)(d), it is necessary that the Court consider:
whether the present offending was an uncharacteristic aberration;
whether the defendant manifested in the commission of this offence a continuing attitude of disobedience of the law; and
whether the defendant's previous offending illuminates his moral culpability in relation to the current offending or shows a dangerous propensity, or a need to impose "condign punishment" by way of specific and general deterrence.
The defendant has a lengthy traffic history and a limited criminal history. He committed an offence of negligent driving in 2009 and was sentenced in Bankstown Local Court. His traffic record is littered with speeding offences. He has committed at least 17 speeding offences since 2010. Three of those speeding offences involved travelling more than 30 km over the speed limit. In addition to these speeding offences he has committed the offence of use mobile phone whilst driving, not stop at red arrow, disobey traffic lights and committed an offence of burnout. His license has been suspended on a number of occasions. Further, he has repeatedly committed the offence of drive vehicle with prescribed illicit drug present with the consequence that the offence before the court is characterised as a second or subsequent offence. Applying the decision of Meis v R [2022] NSWCCA 118 at [42] in this case I find beyond reasonable doubt that the present offence cannot be regarded as an uncharacteristic aberration and that it shows a continuing attitude of disobedience of Road Transport law. Further, the offence illuminates his moral culpability. The speeding offences show a dangerous propensity. This is a case where the court must apply the principles of general and specific deterrence. There are other matters on his criminal history particularly a conviction for supply prohibited drug on 20 June 2019 for which he received a 2 year community correction order. There are also two further offences of possess prohibited drug on 16 September 2020 for which he also received a 1 year community correction order. None of these court orders have been breached as a result of the offence. They have limited weight in this sentencing exercise. However what is apparent from this criminal history as well as the other subjective material put before the court is that the defendant has had issues with drugs in at least the last 10 years.
I turn now to other sentencing factors. In addition to the charge of negligent driving occasioning death there also what is known as a Form 1 attached to the offence pursuant to s 32 of the Crimes (Sentencing Procedure) Act. Under that provision the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence. In this case there are 2 offences on the Form 1 and the conduct of the defendant arises out of the same incident. The first offence is an offence of drive with illicit drug present in blood - 2nd and subsequent offence and the second offence is fail to give particulars to police following a crash under rule 287(3) of the Road Rules. A driver involved in a crash must comply with this rule. The driver must give the driver's required particulars, within the required time, to a police officer if anyone is killed or injured in the crash. Both offences on the Form 1 are fine only offences and one with a disqualification period - that is they do not carry imprisonment. It would be erroneous to increase a sentence of imprisonment for a principal offence where fine only offences are placed on a Form 1. However at least one of those offences is relevant in calculating an appropriate period of disqualification.
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Decision last updated: 04 May 2023
I turn now to other aspects of the sentencing exercise. This crime involved taking the life of a young person called Rima Hanna. The sentence must reflect the sanctity of human life and all that is involved in taking it away. Section 3A of the Act sets out the purposes of sentencing and makes express reference to recognise the harm done to the victim of the crime and the community. Part 3, Div 2 Crimes (Sentencing Procedure) Act 1999 permits the court to receive a victim impact statement setting out the impact of primary victim's death on family victim and other members of primary victim's immediate family. See ss 26, 28(2).
In this case Barbara Hanna read out a statement in court on behalf of Rima Hanna's six siblings and elderly parents. I will not detail here everything that Barbara Hanna told the court. What follows is a summary. Barbara Hanna told the court that they are still in mourning for the loss of Rima and her loss has been especially felt by their 85 year old father. He has suffered severe depression and has been taken to hospital multiple times, his health is declining and he has lost the will to live. Barbara Hanna told the court that Rima was caring and full of life and there are no words to truly express how the family feels. She told the court that one of the hardest things that the family has had to deal with is that they were not given an opportunity to be with Rima in her last moments and let her know she was not alone. The crime has had the effect that Rima Hanna will never get a chance to marry and start a family and the family will never get a chance to support and celebrate her the way she did to them. Rima was the fun aunty. Barbara Hanna told the court that because of the defendant's negligence their heartache and anxieties never go away.
Section 30E of the Act provides a court must consider a victim impact statement when tendered and may make any comment on it that the court considers appropriate. The court has carefully considered the statement and recognises the immense loss, pain and suffering of the victim's family. The statement confirms the kind of harm that might be expected of the offence in question.
It is important to also recognise the effect on the driver of the car travelling in the southbound lane. This aspect of the crime has had a direct impact on a member of the community as referred to in s 3A. She was an innocent driver and she was taken to Sutherland Hospital afterwards. The court can assume without evidence that this fatal collision would have a deleterious impact on her. Indeed in this case the defendant has raised the impact of a fatal accident on him involving his father when he was young as part of his subjective case.
Counsel for the defendant submitted that the court should have regard to the fact that the victim was the partner of the defendant. In his unsworn note to the court the defendant states that he and Rima were supposed to get engaged this year and start a family and that he is heart broken. In the decision of R v Koosmen [2004] NSWCCA 359 at [32] it was confirmed that:
"…the effect of the death in the accident on the offender and self punishment (the self inflicted sense of shame and guilt) were often highly relevant factors, that the weight to be given to these depended on the circumstances and that different judges may give different weight to those factors."
Counsel for the defendant tendered a letter to the court from defendant's sister Bonita Chidiac. She details the detrimental effect of the crime on the defendant and that he battles with guilt, depressive thoughts and suicidal thoughts. A psychologist Julie Dombrowski interviewed the defendant for 2 hours on 26 October 2022 and her report dated 8 November 2022 was tendered in the defendant's case. She stated that the defendant lost his father when he was aged 6 as a result of a motor vehicle accident. Julie Dombrowski opines that the defendant has experienced significant grief and symptoms of trauma (including anxiety, depression and suicidal ideation) associated with his involvement in the accident. She opines that it will be important to monitor his mental health and suicidal ideation throughout the sentencing period. A sentencing assessment report was prepared. The author of the report states that the defendant displayed emotional distress when discussing the offences and that he understood the impact of his actions and is grieving for the loss of his partner. The court will attribute some weight to the factor of self punishment as referred to in the decision of R v Koosmen.
The sentencing assessment report addressed other aspects of the sentencing process. The defendant told the author of the report that he regards himself as a safe driver who is willing to undertake intervention and willing to do community service work. He was assessed as being a medium risk of reoffending. This is to be contrasted with the assessment of the defendant's psychologist Julie Dombrowski who assessed him as being a low risk of reoffending. Under the heading "substance use" in the sentencing assessment report the defendant told the author that he was a social cannabis smoker and that he has not consumed cannabis since the offence. There is no reference to any other drug. This is to be contrasted with paragraph 14 of the psychologist report where it is said the defendant use cannabis and cocaine sporadically during his early 30s but he did not report any problematic illicit substance use. No explanation was forthcoming on the presence of fentanyl in his oral fluid.
The defendant pleaded guilty to the offence at the first opportunity. Given the timing of the plea and applying s 22 of the Crimes (Sentencing Procedure) Act 1999 and R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32] it is appropriate that he receive a 25% discount for the utilitarian value of the plea.
In determining an appropriate sentence a preliminary question for the court is whether there are any alternatives to the imposition of a sentence of imprisonment. The court must be satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate: s 5(1) Crimes (Sentencing Procedure) Act. This is sometimes referred to in submissions to the Court as the "custodial threshold".
In this case the Court has made a finding of a high degree of negligence. And that there was a high degree of departure from the standard of care expected of the ordinary prudent driver in the circumstances. When this finding is combined with the fact that the offender caused the loss of life and the importance of general and personal deterrence in this particular sentencing exercise the court is satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate. The submission by counsel for the defendant the court should impose a community correction order because the offence fell at the low end on the range is not accepted. A penalty of that kind would be a grossly disproportionate sentence. As Chief Justice Spigelman said in R v McNaughton at [15]:
"… the proportionality principle is also held to apply so that a sentence should not be less than the objective gravity of the offence requires."
Having decided to impose a penalty of imprisonment the Court must next determine the appropriate term of imprisonment. As the Court of Criminal Appeal explained in Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 at [70] the determination of the term of imprisonment is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. In this case having regard to the maximum penalty of 2 years imprisonment, the findings in relation to objective seriousness of the offence and the subjective features of the offender outlined above including the utilitarian value of the plea of guilty I find that the appropriate term of sentence is 12 months imprisonment.
The next step is that the Court must consider whether any alternative to full-time imprisonment should be utilised in the circumstances of the case. Here the alternative available is an intensive correction order with an additional conditions of community service and rehabilitation. In Douar v R Justice Johnson said with support of the other Justices:
"The appropriateness of an alternative to full-time custody will depend upon a number of factors; one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purpose of punishment. The Court in choosing an alternative to full-time custody cannot lose sight of the fact that the more lenient the alternative, the less likely it is to fulfil all the purposes of punishment."
An alternative form of imprisonment must accommodate the objective seriousness of the offence and fulfil the purposes of punishment which are relevant to the sentencing exercise. In this case the principle of proportionality looms large. In R v Dodd (1991) 57 A Crim R 349 at 354 Gleeson CJ, Lee CJ at CL and Hunt J (as he then was) said in a judgment of the Court of Criminal Appeal:
"Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472 … stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary. …. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case (R v Rushby [1977] 1 NSWLR 594)."
In this case the defendant has some very compelling subjective factors. He has pleaded guilty at the earliest opportunity. He has mental health conditions, shown contrition and he has suffered self-punishment.
However after careful consideration I find that the sentence of imprisonment should not be served by way of an intensive correction order because such a sentence would not reflect the objective seriousness of the crime. This is a case where because of the high degree of negligence the Court must have regard to and give effect to the decision of R v Bonsu explained above. An intensive correction order would not meet the purposes of sentencing of general deterrence, adequately denounce crime, make the offender accountable or properly recognise the harm to the victim and the community. If an intensive correction order was imposed it would attribute excessive weight to the subjective features of the case. In R v Pullen [2018] NSWCCA 264 at [53] the Court noted that an intensive correction order reflects a significant degree of leniency.
Given the recent controversy concerning the application of s 66 of the Act to the sentencing exercise and for legal clarity in this case the Court is not considering an intensive correction order for the reasons stated by Justice Fullerton J in Karout v R [2019] NSWCCA 253 at [94]:
"The fact that his Honour made positive findings as to the applicant's good prospects of rehabilitation and that he was unlikely to reoffend, findings which might, in addition to a finding of special circumstances, have supported the exercise of the power in s 66 for the making of an ICO, did not dictate that an ICO was the appropriate sentencing outcome. Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant's offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play."
Similarly, Simpson AJA said in Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR; [2021] NSWCA 294 said at [187]:
"…it was the seriousness of the offending that brought the consideration of making an intensive correction order to an end. Once the primary judge concluded that the offending was too serious to be dealt with by way of a sentence served otherwise than by way of full-time imprisonment, considerations of community safety (in the context of s 66) did not arise. It may be observed that s 66(1) requires community safety to be taken into account as the paramount consideration when a court is "deciding whether to make an intensive correction order". Where a court has concluded, having regard to the relevant material, that the seriousness of the conduct precludes such an order, there is no further decision to be made."
It remains for the Court to determine the length of the non-parole period of the 12 month term of sentence of imprisonment. I find the minimum period of custody justice requires that the offender serve in the circumstances is 8 months. I find special circumstances under s 44 of the Act to vary the statutory ratio on the basis of the defendant's need for rehabilitation and treatment.
The defendant is sentenced to a term of imprisonment of 12 months which will commence on 21 November 2022 and expire on 20 November 2023. I impose a non-parole period of 8 months which will commence on 21 November 2022 and expire on 20 July 2023. The defendant is disqualified from driving for a period of 3 years.