R v Banks, Craig [2021] NSWDC 827 | Case summary

Objective gravity

Perhaps the primary matter in determining an appropriate and adequate punishment is in the objective gravity of the offence. Matters indicating the seriousness of this offence are that it involved the loss of life and it carries a maximum penalty of 10 years' imprisonment.
None of the aggravating factors listed in s 21A of the Crimes (Sentencing Procedure) Act and which are to be taken into account in determining the appropriate sentence are present here, save for the substantial emotional harm and loss occasioned by the offence, ultimately to Mr Constantine, but also to his family. Yet that consequence is to be expected in every offence that involves the loss of life, an element of the offence, and for that reason, I do not give it additional weight as an aggravating factor.
The central feature of Mr Banks' conduct in committing the offence is his inattention to the roadway as he approached the bus stop and pedestrian crossing. As the offence occurred at a pedestrian crossing, visible for some distance, this inattention has an added significance, increasing the level of risk.
Persons crossing a road at a pedestrian crossing might be expected to assume cars will stop, and thus may pay less attention to approaching vehicles than would a pedestrian walking across a roadway at other locations. The presence of a pedestrian crossing serves as a reminder for particular attention by the driver.
This matter must be weighed against the circumstance that the offence involved a short period of inattention, and no features of Mr Banks' driving or his condition indicated an abandonment of responsibility. Mr Banks' actions in rendering aid to Mr Constantine when stopping immediately after the collision, together with his words at the scene acknowledging the wrong of his actions, and his early plea of guilty in circumstances where a finding of dangerous driving would be less than certain, all bespeak of an acceptance of responsibility for his wrong.
In these circumstances, the offence by Mr Banks would seem to be at the low end of the range in moral culpability for the offence of dangerous driving causing death, but above the lowest because of the visible presence of a pedestrian crossing.
The taking of human life by dangerous driving is rightly recognised as a "crime of some seriousness" [1] . The substance of the offence is both the dangerous driving in association with the taking of human life. Matters of general deterrence assume some primacy. "The need for public deterrence will usually outweigh the fact that the particular offender has already learned his…lesson". [2] General deterrence is important "because of the prevalence of the activity of driving, and the terrible consequences that can flow from a failure by a driver in the management of a motor vehicle". [3] The risk that any driver could commit an offence resulting in death or serious injury means all drivers must be deterred from driving dangerously by the sentences imposed on those who transgress. [4] Retribution or appropriate punishment is also an important purpose of sentence.
The Court must take into account the guideline judgment of R v Whyte [5] as a "check" or "indicator" of its findings on sentence. It is not a "starting point". [6] The typical case referred to in the guideline judgment is that of a young offender of good character with no or limited prior convictions, death or permanent injury to a single person victim who was a stranger to the offending driver with no or limited injury to the driver, genuine remorse and a plea of guilty of limited utilitarian value.
The guideline judgment indicates that a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability as in the case of momentary inattention or misjudgement, [7] and that where the offender's moral culpability is high, a full-time custodial sentence of less than three years in the case of death would not generally be appropriate.
It can be observed that in all respects, the circumstances of Mr Banks equate to or are more favourable than the characteristics in the guideline. The way in which Mr Banks might be regarded as less serious than a typical case is in two respects: the level of remorse is at least "genuine", and may more accurately be described as substantial, even extreme. Secondly, the plea of guilty is not of limited utilitarian value. Because it was given early, as the Crown concedes, Mr Banks is statutorily entitled to the maximum discount reflective of a high utilitarian value. Further, the circumstances of the offence indicate that a jury finding of the element of dangerous driving was not at all certain, so the plea provided significant assistance in proof of guilt.
The guideline judgment lists a number of aggravating factors, some of which would constitute circumstances of aggravation warranting the more serious charge under s 52A(2). Several of the aggravating factors listed relate to the moral culpability of the offender. None of those, and none of the circumstances of aggravation, were present in the case of Mr Banks.
The listed aggravated factors in the guideline judgment was said to "directly impinge on the moral culpability of the offender at the time of the offence" and "may indicate that the moral culpability is high" or that "the offender has abandoned responsibility for his… own conduct". [8] As these aggravating factors were not present in the circumstances of Mr Banks' offence, they do not indicate that Mr Banks' moral culpability was high, and I do not find any indication of abandonment of responsibility by Mr Banks.
The R v Whyte recognises that "momentary inattention or misjudgement", a feature of Mr Banks' case, is properly to be regarded as constituting a low level of moral culpability relative to the offence. In such a case, the general rule that a custodial sentence is usually appropriate does not apply, and there remains room for a non-custodial sentence. [9]
Yet the time and distance travelled is relevant to what constitutes "momentary inattention". Although the inattention exceeded one second, it seems not to have been more than two or three seconds from the time Mr Banks could have a view of his friend at the bus stop. That period. in my view. is properly to be regarded as momentary inattention. [10]
Whilst the guideline judgment focusses attention on the objective circumstances of the offence, subjective circumstances such as contrition, good prospects of rehabilitation, and unlikelihood of reoffending, also require consideration and are deserving of considerable weight. [11]

Subjective considerations

Mr Banks has a good driving record, having had only 2 relatively minor camera-detected speeding offences in almost 10 years of driving. He has no criminal history, and I accept him to be a man of good character. Whilst his relative youth and good character is noted as typical in R v Whyte, and may be of less significance in this offence, [12] yet Mr Banks past driving record reinforces that a lack of care or responsibility is not characteristic of his driving.
Although Mr Banks was a stranger to Mr Constantine, the level of remorse and its associated effect on Mr Banks warrants separate consideration.
Mr Banks' high level of contrition is manifest by his letters of apology to Mr Constantine's family and to the Court, by his immediate attempts to assist Mr Constantine at the scene, and his words there acknowledging fault, by the reports of treating and expert medical professionals that record his concern for Mr Constantine's family and his regret, by the adverse impact on his mental health and personality as a result of the personal devastation he has felt at the harm he has caused to Mr Constantine and Mr Constantine's family, as well as the prospective harm to Mr Banks' own family consequent upon any custodial sentence. His personality has been affected, from previously being a "happy and friendly person" to one showing symptoms of depression.
This adverse impact on Mr Banks' caring and thoughtful nature is also attested by many of the references from his partner, his sisters, father, mother, members of his partner's Aboriginal community, who have observed Mr Banks' contribution to that community, friends, teachers, family friends, his employer and government employees who have each dealt with him. I was especially cognisant of the consistent message across these references and the medical reports: that Mr Banks has had challenges since he was a young child, but with the watchful care of his parents, family, teachers and those in whose programs he has enrolled, he has made a large positive contribution to his community, including having a long period of full-time employment. As Dr Olav Nielssen reported, "The striking feature of his life to date is how well he has done considering his intellectual disability". [13]
As the medical reports record, Mr Banks was diagnosed with a mild intellectual disability. He was found to have an extremely low intellectual capacity for general cognitive ability and in processing visual material, and borderline for verbal comprehension, perceptual reasoning, and sustaining concentration, a matter which may have impacted upon his mind not returning to the task at hand when he was distracted by seeing his friend at the bus stop.
Dr Nielssen, psychiatrist, mentioned that: "documented impairment in his capacity to maintain attention and in his motor coordination, together with the global deficits in his capacity to process and respond to information…that increased his susceptibility to a traffic accident arising from a lapse in his surveillance of his surroundings while driving". [14]
This diagnosis militates against Mr Banks' case being an appropriate vehicle for attaching strong importance to the sentencing purposes of general deterrence and denunciation. Yet the comment of Dr Nielssen must be measured against Mr Banks' proven good driving record, and the evidence in the character references about his care when driving.
Consistently with the impression derived from the references, the Sentencing Assessment Report records that Mr Banks "became physically distraught whilst talking about the impact of his offending". [15]
The psychologist's report evidenced that the trauma of the accident and its sequalae have produced a condition of anxiety and depression, although Dr Nielssen expects this will resolve once the proceedings are concluded. Adverse injuries and adverse health outcomes such as despair and depression that arise from the offence can be a significant element in mitigation. [16]
Mr Banks had completed a safe driver course before he obtained his probationary licence initially, and has completed the Traffic Offender Intervention Program since the offence.
I accept that Mr Banks is unlikely to reoffend, and has very good prospects of rehabilitation as the Sentencing Assessment Report suggests.
I have also considered Mr Banks' personal circumstances, and the impact on his young family. He is the father of two young children with his partner, and also a stepfather to his partner's two other children. All accounts in the references indicate a very involved and caring father and husband, and his partner, Sharon, and the children would suffer significantly from his absence. Yet through his counsel, he has accepted that his is not an exceptional case in this regard, and warrants no specific separate discount.
The Crown asserts, and Mr Banks accepts, that no penalty other than imprisonment is appropriate, and having considered all possible alternatives, I am satisfied that the taking of a life through the dangerous driving of the offender in this case reaches the s 5(1) threshold that only a penalty of imprisonment is appropriate.
In my view, Mr Banks' sentence of imprisonment should be 2 years prior to the 25% discount for the early plea of guilty, leaving a period of 18 months. That period of imprisonment enlivens the option of the sentence being served by an intensive correction order, [17] an option ordered in a significant proportion of cases according to the sentencing statistics, especially where there is a guilty plea and no prior offences, though reference to the statistics are of limited assistance or authority in a particular case. [18]
Mr Banks is assessed as a low risk of reoffending in the Sentencing Assessment Report, a view, as I said, which I share. I am of the view that the risk of reoffending is better addressed by an intensive correction order than full‑time detention, a view supported by Dr Nielssen. [19] That report indicates that Mr Banks is suitable for community service work and that no conditions other than a supervision condition are required.
An intensive correction order is subject to standard conditions that Mr Banks must not commit any offence and that he must submit to supervision by a Community Corrections Officer.
The Crimes (Sentencing Procedure) Act 1999 also requires an additional condition be imposed in the absence of exceptional circumstances. [20] Exceptional circumstances were not urged upon me in this case and I do not find them. It follows that an additional condition must be imposed.
The Sentencing Assessment Report indicates that Mr Banks was willing and able to undertake community service work, and that Community Corrections can provide the equivalent of up to 18 hours per month. [21]
In these circumstances, I impose an additional condition of 200 hours of community service.
So far as the period of disqualification is concerned, I do not propose to impose a shorter period than the three-year automatic period of disqualification under s 205(2)(d) of the Road Transport Act 2013, save for one issue.
Section 206B(2) of the Act requires that the Court take into account any period of suspension when deciding on the period of disqualification, presumably since the disqualification dates from the date of conviction, or a later specified date under s 207A. Thus, the existence of any suspension is important.
Paragraph 12 of the Agreed Facts on Sentence refers to an apparent immediate suspension of Mr Banks' licence at the time of the offence, a matter referred to in some of the character material. But the Crown outline of submissions on sentence states in paragraph 5 that "the offender's licence was not suspended".
The parties are agreed that Mr Banks' licence was suspended from 6 May 2019. Section 206B(4) provides that the total period of suspension and disqualification is not to be less than the minimum period. That means that if the period of disqualification was for 13 months and five days, ending on 5 May 2022, it would still amount to three years, when the suspension period is taken into account, as it must under s 206B(4).
Accordingly, to ensure that the total period of disqualification is three years, including the period of suspension, the period of disqualification to date from today under s 207A is for 13 months and 5 days ending 5 May 2022.

R v Banks, Craig

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