At about 8.30am on the morning of 6 September 2019, a 12 year old boy was walking to school at Hurstville. He was a Year 7 student at Sydney Technical High School. He was crossing a pedestrian crossing with the lights in his favour. The offender Rabih Abdulrahman, then aged 36, was driving a car which collided with him. He was a disqualified driver. He was driving at about 65km/h in a 40km/h zone. He drove through a red light and he drove with a number of illicit and non-prescribed substances in his blood, including methylamphetamine, which would have substantially impaired his driving ability.
This leads to the offender pleading guilty to one count of manslaughter, contrary to s 18(1)(b) of the Crimes Act 1900, which carries a maximum penalty of 25 years imprisonment with no standard non-parole period, and one count of driving while disqualified which carries a maximum penalty of six months imprisonment.
He pleaded guilty in circumstances justifying a 25% discount on a term of imprisonment. Mr Lange of counsel for the offender, concedes that there is no alternative to full-time custody. He was arrested on the day of the accident. An intensive corrections order was revoked leading to him being in custody for two months and 27 days. As a result of that revocation and exercising my discretion, I will commence the sentence one month after the date of his arrest, namely 6 October 2019.
There are two matters to be taken into account on a Form 1 attached to the manslaughter count. They are possess 1.17 grams of codeine, contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 and possess 0.34 grams of diazepam, contrary to S 16(1) of the Poisons and Therapeutic Goods Act 1966. These matters will be taken into account in the way suggested by the Chief Justice in the guideline judgment on those matters (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146).
The agreed facts show that the offender was disqualified from driving from 4 October 2018 until 4 October 2020 as a result of a conviction for driving under the influence of drugs. He was driving up Lily Street in Hurstville towards the intersection of Forest Road. He was the only person in his car. He was driving erratically and merging between lanes without indicating. This caused other drivers on Lily Street to take evasive action and brake to avoid colliding with him.
R v Abdulrahman [2020] NSWDC 731 | Case summary | Zoe
The area was clearly marked with signs and road markings alerting drivers to the fact that this was a school zone and the maximum speed was 40km/h at the time. Several cars came to a stop on Lily Street at the intersection, waiting to turn left into Forest Road. They were in the left turning lane and the offender was in the right hand lane. He failed to stop at the stop line in Lily Street in accordance with the red light that was facing him. He did not slow down or brake before entering the intersection. Cars had been stopped, facing the yellow or red lights for 12 seconds before he entered the intersection and he hit the young person with the front bonnet of the Corolla. He was about halfway across the pedestrian crossing and his friend was walking about a metre behind him and witnessed the collision.
The offender was driving at about 65km/h and the victim was thrown into the air above the Corolla. He continued driving across Forest Road onto oncoming traffic in both directions, with drivers applying their brakes to avoid colliding with him. He first applied his brakes about 13 metres after crossing the stop line where skid marks were located at that point. He went straight ahead, mounted the kerb outside Hurstville Public School, struck and dislodged a traffic light that was cemented into the footpath and then crashed into the metal fence. Photographs in the Crown case show the final position of the car, having demolished the traffic light and the fence.
The victim was thrown to the ground near the passenger side of the vehicle. His head was near the rear end of the car, and he was bleeding heavily from his head. Several witnesses crawled through to the victim and attempted to provide him with first aid. They moved him from underneath the car, and one of the witnesses who was a trained nurse commenced CPR. Several teachers from the school brought a first aid kit and attempted to re-direct other pedestrians.
Police then arrived.
While the witnesses were first providing aid to the victim, Abdulrahman got out of the driver's seat of the car, looked at the victim, got his bag out of the car, got his mobile phone out which was plugged into a charger in the car and was deleting messages on his phone while standing on the footpath near his car. He smoked a cigarette and did not offer any assistance to the witnesses who were providing first aid.
The victim was taken by ambulance to Randwick Children's Hospital and formally pronounced deceased at 10.02am. The cause of death was multiple traumatic injuries to the head, chest and pelvis triggering cardiac arrest along with fractures to the upper and lower limbs.
At the time of the incident, it was dry and sunny and there were no obstacles on the road. Traffic was moderate and there was no mechanical defect or fault in the car.
When police arrived, they arrested Abdulrahman who was still talking on his mobile phone. He said, "I'm talking to my family". He walked over to the car and reached inside saying he wanted to charge his phone. The police prevented him from accessing the car. He started talking on his phone again and refused to get off the phone, again tried to access the car and he told police "I got hit by a car, it's not my fault" which he admits was not true. He told the policeman that he did not have a licence and he said, "I've got fucking PTSD I need my medication" and he attempted to get hold of something in a bag that he had. He was screaming. Ultimately, they put handcuffs on him and took him to a caged vehicle.
On searching his car, they found a mobile phone, a capped syringe, two round white codeine tablets which were the subject of the first Form 1 offence and a clear bag containing two Diazepam tablets, which is the subject of the second Form 1 offence.
The offender was uncooperative and agitated. He was taken to St George Hospital for testing and a blood sample was taken.
After he had been cautioned he told police that he was driving unlicensed. He said that he used some cocaine about three days ago, and that he takes morphine and "calmers" every day. Again, he said he had not caused the accident. He said his lights were green, that he had been hit on the side by another car. Again, he admits in the agreed facts that this was not accurate. He declined to be interviewed but while in custody he told the sergeant that he had been taking morphine, Alprazolam and methadone as medications for anxiety, PTSD and depression. He screamed to the police, "Go and look for that car that hit me. I did not mean to kill anyone. Give me fucking bail".
The blood test analysis showed levels of a number of intoxicating substances in his blood including amphetamine, methylamphetamine, methadone, Diazepam, Nordiazepam and Alprazolam. Amphetamine and methylamphetamine are illegal drugs. The others are all prescribed or restricted substances, and he did not have any prescribed pharmaceutical items registered on the Pharmaceutical Benefits Scheme (PBS) during 2019 up to that time. He was to participate in a drug and alcohol methadone program run by the Department of Health at Liverpool.
He was under the influence of the effects of methylamphetamine to the extent that his driving ability would have been very substantially impaired and it is likely there would have been some additive impairment due to the combination of methadone, Diazepam and Alprazolam.
The level of methylamphetamine in his blood was well within the reported toxic to potentially fatal range. The concentrations of amphetamine and methylamphetamine strongly suggest that he used methylamphetamine in the early hours of the morning of 6 September 2019.
The levels of methadone, Diazepam, Alprazolam were within therapeutic levels but each of them were likely to have exacerbated his driving impairment due to the other drugs.
Inside the Corolla police also located a razor blade, two plastic straws that had been adapted for drug consumption, some burnt aluminium foil and an empty resealable plastic bag.
His record involves previous periods in custody:
A sentence of one year with a six months non-parole period imposed in 2009, following the revocation of a periodic detention order;
A three year sentence with a two year non-parole period from May 2010 - May 2013, for firing a firearm in a public place;
An eight month sentence with a four month non-parole period for affray commencing July 2010;
A sentence of two years and six months with a non-parole period of two years, for concealing a serious offence commencing June 2007; and
A period of almost three months, to which I have referred, following the revocation of an Intensive Corrections Order.
He has a number of speeding offences in addition to the driving under the influence offences to which I have referred, and a low range PCA offence. I have been provided with the facts of some of the previous offences in the Crown bundle but it is unnecessary to repeat them.
A Sentence Assessment Report was prepared in August 2018 when he was dealt with for a number of offences including possess a prohibited weapon, assault officer, resist officer, custody of a knife in a public place and driving under the influence.
He was at that time residing alone in a Department of Housing property. He has five children, three of whom resided with the offender's mother and twins who resided with their mother. He admitted then that he was under the influence of illicit drugs at the time of his arrest for offences in October 2017. He was assessed then as being at a medium risk of re-offending. His identified criminogenic needs to be addressed included his alcohol/drug problems; his emotional/personal issues; and his attitude/orientation.
He disclosed a history of substance misuse and he admitted to frequent use of heroin which he had been using every week or two, for a few days at a time. At that stage, the author said that his misuse of substances was unaddressed and negatively impacted the management of his mental health. He was diagnosed as having post-traumatic stress disorder, anxiety and depression.
A brief report in relation to the Intensive Corrections Order was prepared shortly after this fatal accident. His response to supervision during the ICO had been described as borderline. His case plan focussed on his drug use, mental health issues, impulsivity and aggression. He had been referred to a number of residential rehabilitation programs but had not been accepted due to his history of violence.Two days before the accident he had been engaged in an assessment at St Vincent's Hospital in relation to a drug treatment program. There had been concerns throughout his supervision regarding intermittent drug use, with drug tests in March and August 2019 returning a positive result for benzodiazepines, amphetamines and methamphetamines. On both occasions he was issued with warnings to cease drug use.
The victim's father read to the Court a victim impact statement which graphically describes the tragic consequences of the accident and the long term effects that his son's death will have upon his family. It will be taken into account in the way suggested by Basten JA in R v Thomas [2007] NSWCCA 269 as an accurate and heartfelt recollection of the consequences of the accident, notwithstanding that it is not evidence on oath subject to testing. It is entirely consistent with community expectations as to the tragic consequences of this behaviour. I also take into account the victim's impact statement of the victim's friend who was walking shortly behind him at the time of the accident.
The offender gave evidence today and adopted a history given to psychiatrist Dr Olav Nielssen. His evidence overall, was given frankly and contained numerous acknowledgements of his very serious criminal behaviour. He says that he had been taking drugs before the accident, as was clear, but he does not remember driving shortly before the accident or what happened.
As Mr Lange points out, that was said by Dr Nielssen to be consistent with the effect of a relatively high level of Diazepam, which interferes with the conversion of short term to longer term memories. The offender has a 12 year old child himself and he says that the knowledge that he has killed someone of that age is something that affects him greatly. He expresses remorse and says that he wishes he had not done it. He acknowledges in cross-examination by the Crown Prosecutor that having taken ecstasy and ice on the day of the accident and methadone two days before and Diazepam, that he knew that those drugs affected his mental state. He knew that he did not have a licence and he knew that he was in breach of the Intensive Corrections Order in taking drugs. He describes efforts to get off drugs for many years. As the Crown Prosecutor points out, his protestations about wishing to get off drugs, expressed since as early as 2007, have not come to fruition.
There is evidence in the form of the police summary of facts of an event on 7 July 2002 which Mr Abdulrahman places some significance upon in his subjective case. The facts show that he left his home address with two other males. He was abducted and taken to a park in Greenacre and shot in the upper left leg and struck in the back of the head with a golf club. He said that drug use has been a big part of his life since he was 12 or 13 and although he controlled his drug use several times, it always seemed to come back.
As Mr Lange puts, a number of attempts of detoxification in a controlled environment appeared to have been started, without involving any criticism of the Corrective officers or the community workers who were attempting to assist him. He said that he had first taken cannabis at age 12 and was a regular and heavy cannabis smoker until he was about 22 or 23. He switched to heroin and prescribed opioids after the facial injuries that he received in 2005. He then started regular opioid replacement medication in 2013.
His father came from Lebanon and his mother was born in Australia of Lebanese heritage. His father was a Sunni Muslim from the North of Lebanon. He grew up in the St George area and went to Hurstville and Kingsgrove High. He had numerous manual jobs but had last worked in 2012 and had been receiving the disability support pension on the grounds of his mental health.
Dr Nielssen diagnosed an anxiety disorder and substance use disorder. He acknowledged that at the time of the accident he was affected by a combination of substances with sedating and disinhibiting properties as well as the stimulant drug methamphetamine which can result in increased confidence and agitation. Dr Nielssen recommends, not surprisingly, that he should complete all substance related programs available to him in custody and be subject to close supervision and ongoing substance related counselling after his eventual release. As Mr Lange puts, that is a powerful factor in support in the finding special circumstances, which I make.
The Crown Prosecutor and Mr Lange have provided very helpful and detailed written submissions. The Crown has also provided a 24 page document, digesting in summary form, 33 cases in which vehicle manslaughter or dangerous driving occasioning death have been considered. I take into account all those matters, many of which are familiar to the courts and in particular the recent consideration by the Court of Criminal Appeal in Smith v The Queen [2020] NSWCCA 181, an appeal of the sentence imposed by Robison DCJ.
As Hulme J said in Woodbridge v The Queen [2010] NSWCCA 185 at [22],
Because of the disparate circumstances that can constitute the offence of manslaughter - c.f. R v Forbes (2005) 160 A Crim R 1 at [133] - [134]; R v Blacklidge (unreported, NSWCCA, 12 December 1995) - a judgment as to what was an appropriate sentence is not so easily made. Nevertheless, as was said in the last-mentioned case:-
… the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case
The starting point is also informed by the maximum penalty which is a yardstick in the sentencing process and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, and it is self-evident that the different maximum penalty for manslaughter, namely 25 years, compared to ten years for dangerous driving occasioning death, clearly indicates that manslaughter is a markedly more serious offence and that therefore the submissions based upon cases of dangerous driving occasioning death must be treated with some caution in the light of that. That is not to deny the general relevance of the guideline judgments oN dangerous driving offences such as R v Jurasic (1998) 101 A Crim R 259 and R v Whyte (2002)134 A Crim R 53.
As the Crown points out there are a number of common features in relation to the offences dangerous driving, as set out in R v Whyte, which do not apply here; this offender was not young; he has a poor driving history and a lengthy criminal history.
As Hulme J said in Elkassir v The Queen [2013] NSWCCA 181, it may be expected that most offenders would experience significant remorse and the absence of such response would then be taken that a person has such gross insensitivity as to be in effect mentally unhinged, but I accept Mr Abdulrahman's genuine expressions of remorse here.
The aggravating features identified in Whyte, are to be taken into account, as submitted by the Crown, namely,
1. the extent of the fatal injuries inflicted;
2. the number of people put at risk - given that this was a busy time with schoolchildren and others walking in the vicinity of two schools;
3. the speed was significantly in excess of the posted speed limit;
4. the degree of intoxication or substance abuse;
5. the erratic and aggressive driving that; and
6. the driving was over some relatively short distance.
As to aggravating features under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, it is clear that the offender was on conditional liberty at the time and has previous convictions.
Ultimately, I accept Mr Lange's submission, that insofar as is necessary to place the manslaughter charge on a scale, this is in the midrange, but very objectively serious, as the Crown says, because of the manner in which he drove before the impact and immediately after the impact; the speed at which he was travelling; the location of the collision; the time of the collision; the fact that he was aware that his driving ability was impaired due to drug use, and the fact that he was under the influence with a number of drugs, and the fact that he was driving while disqualified and knew that he was disqualified. Finally, of course, as the Crown points out, his driving resulted in the tragic death of a 12 year old boy.
Having previously been dealt with by the courts for driving under the influence of drugs he was, as acknowledged in evidence today, well aware of the grave risk that he exposed other people to by driving under the influence of multiple substances.
His expressions of willingness to rehabilitate are, as the Crown points out, to be regarded with some caution given that he has been making such assertions for at least 13 years. One would hope that at his age, and given the lengthy period of custody that he is facing, that he will be able to remain drug free as he has since this offence and be able to undertake significant rehabilitation while in custody and while on supervision upon his release.
The submissions put by Mr Lange take issue with what the Crown described as a number of aggravating features set out in Whyte. While they are of course not said by the Crown to be aggravating features under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, they are matters that the courts have suggested should be taken into account in cases such as that considered in Whyte. Of course, as Mr Lange puts the nature and extent of the injuries inflicted cannot be an aggravating factor in the offence of manslaughter because death is an element of the offence and by pleading guilty, he acknowledged that a reasonable person in his position, would have realised that he was exposing others to an appreciable risk of injury.
The offence of driving while disqualified is subject of a separate plea and will be subject to a separate sentence. Mr Lange acknowledges that the court may not take his drug addiction into account as a mitigating circumstance but it is a factor to be taken into account in his subjective mix. Mr Lange has helpfully set out in his written submissions relevant extracts from the contemporaneous medical records dealing with his attempts to engage in rehabilitation and substance abuse programs. It is unnecessary to describe them to any greater extent than has already been done. I accept that he was making attempts from time to time but they clearly were not pursued or successful.
I take into account on questions of totality, Mr Lang's reference to what was said in Cahyadi v R (2007) 168 A Crim R 41 that there should be a modest degree of accumulation.
The orders I make are as follows:
1. The offender is convicted of each offence.
2. The indicative sentences are:
1. 006 taking into account the Form 1 matters (011, 012): 6 years, 9 months.
2. 002: 3 months.
1. I impose an aggregate sentence of imprisonment of 6 years, 10 months to commence on 6 October 2019.
2. I impose a non-parole period of 4 years, 6 months, expiring on 5 April 2024.
3. I find special circumstances.
STATUTORY NON-PUBLICATION
1. I note that pursuant s 15A of Children (Criminal Proceeding) Act 1987 statutory non-publication applies to this matter in relation to the identity of the victim and any minor witnesses.
Further to the sentence orders I make the following orders in relation to the disqualification of the offender's licence:
LICENCE DISQUALIFICATION ORDERS
006 Manslaughter
1. The offender's licence is automatically disqualified for a period 3 years to commence from the offender's release from custody.
2. The periods of disqualification are to run concurrently.
002 Drive motor vehicle during disqualification period - 1st offence
1. The offender's licence is automatically disqualified for a period 6 months to commence from the offender's release from custody.
2. The periods of disqualification are to run concurrently.
Note - These extempore remarks were revised without access to the court file.
Note - The matter was re-mentioned, at the request of the parties, for further orders to be made in relation to the disqualification of the offender's driver's licence. See [49].
[2]
Amendments
27 November 2020 - Remove identifying details of victim at [8].
30 November 2020 - Correct formatting issues in relation to the bulleted list at [22].
26 October 2022 - Update catchwords on coversheet
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 26 October 2022