Police v Curkovic

Siganto -v- The Queen (1998) 194 CLR R -v- Thomson & Houlten (2000) 49 NSWLR 383 Veen -v- The Queen (No.2) (1988) 164 CLR 465 R -v- King (2004) 150 A Crim R 409 Markarian -v- The Queen (2005) 79 ALJR 1048 CASES CITED: R -v- Jurisic (1998) 45 NSWLR 209 R -v- Whyte (2002) 55 NSWLR 252 R -v- Way (2004) 60 NSWLR 168 ATG DPP -v- Cooke [2007] NSWCA 2 R -v- Zamagias [2002] NSWCCA17 R -v- Pyritz (1998) 29 MVR 90 R -v- Foster (2001) 33 MVR 565

The Facts

1. On 17th July 2007 the offender was driving a large lorry towards the intersection of Botany Road and McEvoy Street Waterloo. Traffic control lights manage the passage of motor vehicles and pedestrians through and across this intersection.

Shortly before midday the victims, 3-year-old Jessica De Andrade and her Mother Somsri Phongsuphawech alighted from a bus that stopped on the eastern side of Botany Road some 40 metres from the intersection with McEvoy Street. At the intersection the pedestrian crossing walk lights turned to green. At the same time the traffic lights controlling the movement of traffic in McEvoy Street turned to green. At the time the offender had stopped in McEvoy Street intending to make a left hand turn into Botany Road.

For all intents and purposes Ms. Phongsuphawech who was carrying her daughter in her arms and the offender moved off in response to their respective green lights at the same time. The intended direction of travel by the offender required him to turn left around the corner of the intersection and across the area provided for traffic light controlled movement of pedestrians. It is clear from the offender's plea of guilty that he failed to observe either that a green pedestrian walk sign had been activated putting him on notice that pedestrians may be in his immediate vicinity or that Ms. Phongsuphawech and her daughter were crossing the road. The offender completed his left hand turn and his lorry struck both victims causing them to fall to the ground in front of the lorry and for it to pass over them. As a result of the impact Jessica Andrade was killed and her mother suffered serious and enduring injury.

On 7th August 2007 Police issued a Court Attendance Notice against the offender for the offence of Negligent Driving contrary to the provisions of Section 42(1) of the Road Transport (Safety and Traffic Management) Act 1999. In circumstances where as a result of the act of negligent driving results in the occasioning of a death Section 42(1)(a) provides in the case of a first offence for a penalty of $3300 or imprisonment for 18 months or both.

The proceedings first came before the Local Court on 18th September 2007. They were adjourned to 11th October 2007 upon which date the offender entered a plea of guilty. There is no issue that the plea was entered at the earliest opportunity. I believe it is important at this point to identify the benefits that are available to an offender on sentence where a plea of guilty is entered early in the proceedings.

The Common Law has long recognized that a plea of guilty is something that a sentencing court should ordinarily take into account. As the High Court said in Siganto -v- The Queen (1998) 194 CLR at 663-664:

"a plea of guilty is ordinarily a matter to be taken into account in mitigation; first because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial."

I would add to this observation that so too is the need for those who are directly affected by the tragic circumstances of this incident spared the necessity of reliving the horrendous consequences from the witness box.

Since the decision in Siganto the legislature in this State has also intervened to give statutory recognition to a plea of guilty.

Section 22 of the Crimes (Sentencing Procedure) Act 1999 provides as follows: " 22 Guilty plea to be taken into account (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed."

In R -v- Thomson & Houlten (2000) 49 NSWLR 383 the Court of Criminal Appeal established a guideline required to be taken into account when sentencing in light of a guilty plea. This Court is bound to take into account the guideline. The Guideline is expressed in the following terms: "(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant -contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, a single combined quantification will often be appropriate, (iii)_ The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range of a particular case should fall is the timing of the plea. What is to be regarded as an early plea will be….. a matter for determination by the sentencing judge." 11. Ordinarily the highest level of discount will be given to a plea entered at the earliest available opportunity. In these proceedings I accept that the timing of the offender's plea brings it within the purview of considering the highest level of discount. As indicated, the removal of the necessity for the State to prove this charge through the summary trial process and the corresponding lack of requirement for Ms. Phongsuphawech to give evidence highlights the utilitarian value. As a consequence and in line with the guiding principles set out by the Court of Criminal Appeal I apply a discount of 25% for the utilitarian value of the plea.

There are other matters a sentencing court is required to take into account. I acknowledge the provisions of Section 3A of the Crimes (Sentencing Procedure) Act 1999 which sets out the purposes of sentencing. They do not need reiteration and also note the observations of the High Court as to the purposes of punishment as set out in Veen -v- The Queen (No.2) (1988) 164 CLR 465 where the Court said: "sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."

The combination of these considerations inevitably leads to what the court in R -v- King (2004) 150 A Crim R 409 the "instinctive synthesis".

It may be gathered from these observations that sentencing is neither a mathematical exercise nor a simple process, nor is it an outcome that can be produced on a whim or by favouring one side or the other within the proceedings. The identification of heads of consideration set out in Section 3A and Section 21A of the Crimes (Sentencing Procedure) Act 1999, to borrow from the observations of the Court in Veen (No.2) supra, clearly identify guideposts that point in different directions, some which may be said to count against an offender and some which are to be taken into account in favour.

I am mindful before embarking on those considerations the Court is required to take into account pursuant to Section 21A (2) and 21A (3) of the legislation that I must have regard to the maximum penalty for the offence. As the court said in Markarian -v- The Queen (2005) 79 ALJR 1048 at [31]: "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 and thirdly because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick."

The maximum penalty for this offence, as indicated earlier, is a term of imprisonment of 18 months and/or a monetary penalty of $3300. This penalty is within the jurisdictional limit of the Local Court. Section 21A Factors

Section 21A of the Crimes (Sentencing Procedure) Act 1999 requires the Court to take into account a combination of aggravating factors and mitigating factors when assessing an offender's culpability.

The Court is of the view that it is required to take into account Section 21A(2)(g) -the injury, emotional harm, loss or damage caused by the offence was substantial and Section 21A(2)(i) that the offence was committed without regard for public safety. Both these circumstances of aggravation require explanation.

I turn firstly to Section 21A(2)(g). The loss of a human life as a consequence of the commission of an offence is a tragedy both to those who value such a life by virtue of their relationship with the deceased and to the community. Recognition of the impact is reflected both in the capacity for the Court to receive a Victim's Impact Statement and in the provisions of Section 3A(g) of the Act which reinforces the need for the court to take into account as part of the purpose of sentencing, the impact on the victim(s).

In these proceedings I have been assisted in understanding the impact of the offence on the victim(s) through the oral evidence given by Jessica De Andrade's father in reading to the Court the victim impact statement and by reflection on that document outside the Courtroom environment.

There is no doubt that the effects of this offence on Jessica's parents, immediate and extended family have been and will likely remain, catastrophic. In modern society with are conditioned to believe that the natural order of life means that children do not pass from this earth before their parents. When events intervene to disturb that equilibrium the ability of those directly and indirectly affected to cope with the unanticipated is correspondingly affected. No one who either heard Mr. De Andrade in the witness box or who may read the Victim Impact Statement could come to any other conclusion than that neither he nor his wife and family will ever recover completely from their tragic loss. The law has no capacity to restore the balance in their lives. No words or outcome from this Court or elsewhere can ever replace the hopes and aspirations eloquently and movingly described to the Court by Mr. De Andrade. All that I can say is that from my own experience and as a member of society is that I understand the pain of this tragic loss. I extend the sincerest sympathies of the Court to the victim and his family.

Acknowledging the cost in human terms of this tragedy however does not limit the court to a consideration solely from the viewpoint of the impact of the crime on the victim. This would be to ignore the other competing considerations that the law requires me to take into account.

Turning to the second aggravating factor - that considered under Section 21A(2)(i), that the offence was committed without regard to public safety there is a clear inference arising from the facts in this matter and the nature of the charge preferred that the prosecution rely on failure to keep a proper lookout as the gravamen of the offence. Counsel for the offender says in his written submissions that the failure by the offender to see Ms Phongsuphawech and her daughter Jessica was a combination of the nature of the intersection, a blind spot in the truck and the invitation to use that word somewhat loosely, extended by the green light permitting the offender to move away from his stationary position at the light. The combination of those aspects it is submitted, place the nature of the offender's conduct towards the lower end of the scale of objective seriousness.

The documents tendered in relation to accidents at the intersection whilst they demonstrate that over a 4-year period there have been 55 accidents involving injury to a person between 2002 and October 2006 closer inspection reveals that only 5 incidents relate to injuries caused to a pedestrian crossing the road. The corollary must surely be that the general motoring public, and it is reasonable to infer that all types of vehicles travel through this intersection with regularity, does not have any established pattern of difficulty in negotiating the intersection without endangering pedestrian traffic.

So far as the suggestion of a blind spot in the offender's truck being a contributing factor no evidence is before me that takes this submission beyond mere speculation. This accident appears on the facts before me to be attributable either to what I have described as a failure to keep a proper lookout or what otherwise may be described as momentary inattention. There is nothing before the Court to rebut the inference the offender was aware that the intersection was one across which pedestrians may from time to time cross. Even though the weight of evidence rebuts the offender's original assertion "it was red" in answer to the question by detectives if he noticed the walkway sign the corollary of this response is that he was aware that the intersection is controlled by traffic lights for both vehicular and pedestrian traffic. Given the capacity for a motor vehicle, particularly one of the size driven by the offender to cause the very outcome the subject of these proceedings, a failure to pay due and proper attention does in my view give rise to the inference that the offender's act of driving off from his stationary position to the point of contact with Ms. Phongsuphawech and her daughter Jessica was a course of conduct undertaken without regard for public safety.

It is my view that the only apparent circumstance that reduces the level of negligence below that of a worst-case scenario is the short distance travelled. I reject the submission that this offence involves a low level of culpability and place it in the upper range of an offence of this category.

Having dealt with the aggravating factors I turn to the mitigating factors.

I have already dealt with the approach to be taken in relation to a plea of guilty and the reasons why that is a matter to be taken into account both in accordance with the general law and in accordance with Section 22 of the Act.

Section 21A(3) lists the mitigating factors to be taken into account in determining the appropriate sentence. In my view Section 21A(3) sub paragraphs (b)(c) and (e)(i) inclusive all have relevance.

Sub paragraphs (b) and (c) speak for themself and need no expansion. Through the tender of the offender's record the prosecution concedes in relation to Section 21A(3)(e) that the offender does not have any record of previous convictions. By this I mean criminal convictions. It is true to state that his driving record has a small number of entries since 1988 but the court notes that in recent times his record has been comparatively good.

It is clear from the offender's criminal record and the content of the pre-sentence report that he is a person of prior good character. This type of offence as recognized by analogy with the Court of Criminal Appeal decision in R -v- Jurisic (1998) 45 NSWLR 209 is typically committed by people of otherwise good character with no or limited prior convictions. Nonetheless I am required to give weight to the offender's prior good character and I do so. It is important both on its own and in the context of considering the prospects of rehabilitation and likelihood of re-offending within the considerations relevant under Section 21A(3)(g) and (h).

Having read the psychological report I also accept the offender is genuinely remorseful. Although I acknowledge the disappointment expressed by Mr. De Andrade at the lateness of a proffered apology I am of the view that this does not detract from the genuine feelings of remorse set out both within the psychological report and the pre sentence report. Although the offender has not and can never suffer either in the same context or to the same degree as the victim and his family there is no doubt he has been severely traumatised by this event and as a consequence so too has his family. The psychological impact on the offender is another matter that, whilst not directly raised by counsel for the offender, is a relevant consideration on the question of sentence.

Having identified the relevant statutory and common law considerations that apply to the sentencing process I turn to the submission made by counsel for the offender that the appropriate sentence in this matter is one of a deferred sentence pursuant to Section 9 of the Crimes (Sentencing Procedure) Act 1999. Counsel has put nothing before this Court as to why that should be the appropriate sentence. Perhaps it is because it is not. There is little point in a court imposing a good behaviour bond on an offender who is accepted as being unlikely to re-offend and will successfully rehabilitate themselves without any further involvement of the Court post sentence.

A deferred sentence would also in my view, fail to have proper regard to the persuasive approach that can be derived from the decision of R -v- Jurisic [supra] and R -v- Whyte (2002) 55 NSWLR 252. Although these decisions deal with the more serious offence of dangerous driving occasioning death, an offence which carries a 10-year term of imprisonment the difference between an offence of that type and this offence is confined solely to the aspect of dangerousness as opposed to negligence. This is not the place to attempt to explain the considerations relevant to those respective heads of consideration. It is however pertinent to note that the guideline reflected in each judgment identifies the need for general deterrence and a need to tread cautiously in showing lenience for good character in such cases. This is particularly so in my view where the legislature has intervened to strengthen the general deterrence aspect of the penalty for offending.

The penalty provisions for this offence were amended in 1998 to increase the term of imprisonment and the maximum amount of the court fines. The maximum term of imprisonment has increased in recent years from 6 months to 12 months to 18 months. The offence was also classified as a major offence and remains so classified. This final observation has a bearing on the issue of disqualification, a matter that I will return to shortly.

The consequence of increased penalties was considered in R -v- Way (2004) 60 NSWLR 168 ATG [52] wherein the court said, inter alia: "Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum. The courts are expected to recognize and reflect that intention when sentencing offenders for offences after such amendments are made. "

The guideline judgment in Whyte discusses the issue of moral culpability in the context of the 11 identified aggravating circumstances and suggests that for an offence of this type where the level of moral culpability is high, that a full time sentence of imprisonment would ordinarily be expected. Objectively only 2 of the identified aggravating factors set out in that judgment appear to be present on the facts in this matter - the extent and nature of the injuries inflicted and the number of people put at risk.

In these proceedings the reliance by the prosecution on momentary inattention as being the identifiable cause of the accident together with the nature of the offence, being one of lesser severity in the eyes of parliament, requires a cautions approach by the court when considering whether imprisonment is the appropriate.

Section 5 of the Crimes (Sentencing Procedure) Act 1999 further restricts the capacity of a court to impose a term of imprisonment. The relevant provision is expressed in the following terms: "5(1) A court must not sentence an offender to imprisonment unless it is satisfied having considered all the possible alternatives, that no other penalty other than imprisonment is appropriate."

In considering this requirement I take into account all that I have said thus far and turn for additional guidance to the decisions of the Court of Criminal Appeal in R -v- Pyritz (1998) 29 MVR 90 and R -v- Foster (2001) 33 MVR 565.

Although both these decisions deal with the more serious offence of dangerous driving occasioning death each refer to the distinction in terms of moral culpability between abandonment of responsibility and momentary inattention or misjudgement. The tenor in each is that the approach demonstrated by a concentration on imprisonment in cases involving abandonment of responsibility is not necessarily the approach that is universally appropriate in cases of momentary inattention. In the case of Pyritz the appellate court came to the view that the sentence of the trial judge was inappropriate and a fine should be substituted. In the case of Foster the court dismissed a crown appeal on inadequacy against the imposition of a suspended sentence. Both these cases involved findings of momentary inattention in respect of charges that I repeat are objectively far more serious than the one preferred against this offender.

Mindful as I am that appellate courts are constrained to an extent by the nature of their role I am nonetheless of the view having considered the factual circumstances in those proceedings and compared them with those relevant in these proceedings that there is assistance to be drawn in relation to the approach on sentence.

Taking all of the relevant considerations into account I am persuaded to the view that the sentence to be imposed in this matter must be one that emphasises general deterrence. That is the approach commended in the second reading speech at the time the penalty for this offence was introduced in 1998. It is the approach generally adopted in relation to driving offences where death or serious injury occurs.

Protection of the community is the fundamental obligation of the Courts in the exercise of their criminal jurisdiction. General deterrence is an important objective in the pursuit of that ultimate outcome but not an objective to be emphasised as highly in relation to this category of offence as it is in relation to more serious driving offences. This is because the objective seriousness of the two categories of offences is significantly different. So too is the nature of the conduct required to be proven.

Having found that the objective seriousness of this offence places it towards the upper range for this category of offence I come to the view despite the submissions of counsel to the contrary that the appropriate sentence is one of imprisonment. Objectively the appropriate term is 12 months. After applying the 25% discount the identified term becomes one of 9 months. Having identified both the lack of appropriate alternatives and the length of the sentence I turn to the circumstances in addition to the guidance derived from Pyritz and Foster [supra] as to the alternatives to full time custody.

The circumstances that direct the sentence in this matter away from full time imprisonment being applied in the traditional sense are to be found in the psychological report and the underlying capacity for rehabilitation based upon the offender's subjective circumstances.

Since this accident the offender has changed from the hard working, non-drinking constructive and contributing member of society that he was to a man who is deeply troubled by remorse and guilt. He has been diagnosed as suffering from a mixed anxiety depressive disorder. To quote from that part of the report dealing with prognosis: "The most pervasive symptoms of a disorder consisting of depression and anxiety include confused thinking and difficulties in concentration problem solving and memory… Mr. Curkovic's mixed anxiety-depressive disorder is at a level that needs treatment to prevent worsening… Mr. Curkovic's distress is at a significantly increased risk of intensifying."

In making this observation I am mindful that they are likely to be mirrored by the victim and his family however this only confirms the reality that everyone suffers from a tragic incident such as this.

The ultimate objective of any sentencing exercise, beyond the immediacy of punishment is rehabilitation of the offender. As a society we recognize the need to deal with people in a manner that contains an element of humanity, an expectation of reform and provides the environment in which the prospects of rehabilitation may be enhanced rather than crushed. Society has no interest in blindly imposed sentences of imprisonment that give no thought to the future. Against that background and for the reasons to which I have adverted I am of the view that although denunciation of the offender's crime together with the objective seriousness of the offending merit the imposition of a term of imprisonment, the particular underlying condition from which the offender now suffers merits a lesser outcome than full time imprisonment. I am of the view the competing interests of justice can best be met by suspending the execution of the sentence. In coming to this conclusion I acknowledge the observations of the Court of Criminal Appeal in R -v- Zamagias [2002] NSWCCA17 at [32] where the court said: "A sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent both to the general public and the particular offender. Of course it must also be recognized that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment… It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate.

It is important to note that although it remains undecided as to whether it is a punitive or protective outcome the offender for this offence, unlike offenders for non-driving related offences, will suffer the consequence of license disqualification. Driving his livelihood. He and his family depend on the income derived from this pursuit, one that will be now taken away from him for a period of time. This is not to be overlooked when considering the totality of consequences visited upon the offender for his conduct. Nor are the consequences of a breach of a bond under Section 12. The Court of Criminal Appeal in DPP -v- Cooke [2007] NSWCA 2 makes it abundantly clear that a breach of such a bond will invariably result in the loss of the offender's conditional liberty.

Before formally imposing sentence in this matter I turn to the issue of license disqualification. Counsel for the offender and the learned Police Prosecutor proffer the view that there is no established period of disqualification for an offence under Section 42(1) (a). I disagree. The disqualification of an offender convicted of an offence under this section is governed by the provisions of Section 188 of the Road Transport (General) Act 2005. Section 188(1)(c) (ii) includes an offence under Section 42 within the parameters of the section. The disqualification provisions set out in subsection (2) (a) (b) and (c) identify discrete disqualification periods for particular offences set out in Section 188(1) not including an offence under Section 42 of the Safety and Traffic Management Act. For all other offences within the Section sub paragraph (d) establishes an automatic disqualification period of 3 years or a shorter period of not less than 12 months if the court otherwise thinks it appropriate.

In the Guideline judgment on High Range Drink Driving Offences the Court of Criminal Appeal said, inter alia, that the automatic period of disqualification would be appropriate unless there is good reason to reduce the period of disqualification. The observations of the Court on this point are directly relevant to the approach this Court is required to take in relation to disqualification.

However the Court went on to say that "good reason" may, inter alia, include the nature of the offender's employment. I have already noted this offender's occupation. Once disqualified he will cease to be involved in it for the period of the disqualification. This does not mean the Court should then disregard it, quite the contrary it still remains a relevant consideration particularly in relation to underpinning prospective rehabilitation. Reducing an automatic period of disqualification is discretionary. The minimum period to which it can be reduced is in 12 months. I do not believe that this would accurately reflect the appropriate period by reason of the objective seriousness of the offending. I do however form the view that it is in the interests of justice and the community as well as the rehabilitation of the offender that my discretion be exercised to vary the automatic period. That period will be one of 2 years.

The offender is convicted and sentenced to a term of imprisonment of 9 months. The sentence is suspended and you are to be released from custody on condition you enter into a bond to be of good behaviour under Section 12 of the Crimes (Sentencing Procedure) Act 1999 for a period of 9 months. The conditions of the bond are that the offender be of good behaviour and appear before the Court if called upon to do so. The offender is further conditioned to accept the supervision and direction of the Probation and Parole Service for the next 9 months and to obey all reasonable directions of the service as to participation in psychological counselling.

In addition the offender is disqualified from holding or obtaining any license under the Road Transport (General) Act 2005 for a period of two years from today.

Graeme Henson Chief Magistrate 16th January 2008

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