Director of Public Prosecutions (NSW) (Crown)
Crawford and Duncan Lawyers
File Number(s): 2020/00033651
[2]
SENTENCE
Samuel William Davidson appears for sentence upon seven charges arising from his management of a motor vehicle on 1 February 2020 and another two offences which are before the Court pursuant to s 166 Criminal Procedure Act 1986 to be withdrawn at the conclusion of the sentence proceedings. The offences are:
Sequence 1, the manslaughter of Angelina Abdallah born 24 December 2007. At the time she was approaching 13 years of age and would now be that age.
Sequence 2, manslaughter of Sienna Abdallah born 9 August 2011. At the time she was approaching nine years of age and would now be ten years of age.
Sequence 3, manslaughter of Antony Abdallah born 26 June 2006. At the time he was approaching 14 years of age and would now be that age.
Sequence 4, manslaughter of Veronique Sakr born 16 December 2008. At the time she was approaching 12 years of age and would now be that age.
Sequence 26, aggravated dangerous driving occasioning grievous bodily harm to Charbel Kassas born 19 September 2008, at the time approaching 12 years of age and is that age now.
Sequence 15, cause bodily harm by misconduct in charge of a motor vehicle to Mabelle Kassas born 1 February 2007, at the time turned 13 years of age and is now 14 years of age.
Sequence 16, cause bodily harm by misconduct in charge of a motor vehicle to Liana Abdallah born 19 June 2009, at the time approaching 11 years of age and is that age now.
The maximum penalties to which the offender is exposed for these offences is in the case of the manslaughter offences 25 years imprisonment. In the case of the aggravated dangerous driving occasioning grievous bodily harm 11 years imprisonment and in the cases of cause bodily harm by misconduct in charge of a motor vehicle two years imprisonment. There is no standard non‑parole period for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999 for any of these offences.
The offender pleaded guilty to the offences in the Local Court from whence he was committed for sentence to the District Court where, before me, he adhered to each plea of guilty after which in each case I announced his conviction. For each offence he is therefore entitled to a discount of 25% for the utility of a plea of guilty to be applied to the sentence determined upon the synthesis of objective and subjective factors arising from the circumstances of the offending and the offender including his contrition and remorse. This will be an analysis conducted in respect of each of these offences and to each there will be applied the discount of 25% to achieve what are in my judgement appropriate indicative sentences. I will in due course impose an aggregate sentence reflecting what I perceive to be appropriate concurrence and accumulation arising from the entirety of the misconduct upon which he engaged. The offender has been held in custody for these matters since his arrest on 1 February 2020. As I said, I shall impose an aggregate sentence that shall be taken to have commenced on that day, applying s 53A Crimes (Sentencing Procedure) Act 1999.
I shall read the Statement of Agreed Facts, their accuracy and detail has been acknowledged on behalf of the offender subject to one matter of opinion that is of little significance overall. These facts were presented to me upon the hearing of the matter and as they were presented video recordings were played to the Court showing the management of the vehicle throughout up to a point before the tragic collision that took four young lives and caused harm to three other children.
On Saturday 1 February 2020 the offender was at his residence at Greens Avenue, Oatlands with friends and flatmates including Daniel Newman and Daniel Smith. Throughout the day the men consumed vodka cruisers and beer. They also spent time alongside a swimming pool at those premises consuming alcohol. Sometime after 11am the offender self‑administered cocaine by snorting it. His blood concentrations suggest a quantity of MDMA was also ingested within six hours of the blood sample having been taken at 10.45pm that night. Between 3pm and 4pm the offender, Daniel Newman and Daniel Smith walked to a liquor store in Oatlands, they purchased a case of vodka cruisers before returning to the residence where they continued to consume their alcohol.
During the evening there was a discussion regarding the offender and Daniel Newman owing money to Daniel Smith. The offender and Daniel Newman left the residence in the offender's vehicle, being a blue coloured 2019 model Mitsubishi Triton Dual Cab 4WD utility. The offender was driving the vehicle and Daniel Newman occupied the front passenger seat. About 7.30pm the offender and Daniel Newman drove to the same liquor store, they asked to withdraw $120 cash, the store owner Mr Gillett told them he could not do that without a sale. They both made a purchase and Mr Gillett gave the cash and processed the sale. After 7.30pm the offender drove to the Budget Petrol station located at the corner of North Rocks Road and Statham Avenue at North Rocks. Included in the Crown bundle were diagrams and a street map showing the course of travel taken by the offender beginning with the departure from that petrol station. The significant points are marked along the course of travel and identified by number.
At this first location the offender abruptly drove his vehicle into the driveway of the service station, he parked in front of the entrance of the service station store, he remained in the driver's seat while Daniel Newman exited the vehicle and entered the store. He walked to the ATM located inside and withdrew a quantity of cash. While Daniel Newman was inside the store the offender repeatedly sounded the vehicle horn. Daniel Newman returned to the front passenger seat of the offender's vehicle, the offender then abruptly accelerated, exiting the service station driveway, speeding subsequently through a red light and turning right into Statham Avenue, Oatlands. There were video images of that manoeuvring.
About 7.45pm the offender continued driving southward along Statham Avenue, Oatlands onto Bettington Road, Oatlands. On Bettington Road, Oatlands a gun-metal grey coloured Aldi Q7 SUV driven by Ms Wakim was driving at about 60 kilometres per hour with her cousin and two children, her niece aged 11 and her nephew aged 14 years, in the same southward direction in front of the offender's vehicle. She saw the offender in her rear vision mirror as he was driving very close to the rear of her vehicle. She estimated the distance between the vehicles at approximately half a metre. She then saw the offender's vehicle commence swerving from side to side behind her vehicle while the offender was trying to get past her.
The road commenced to slope downwards. The witness looked in her rear view mirror and could see two males in the offender's vehicle. Both were shirtless. Both had, according to her description, fair hair. Both were laughing. The manner of driving so described, is in my judgement, menacing driving and of itself, was in breach of s 118 Road (Transport) Act 2013.
The offender continued to drive closely behind this vehicle, to point 2 on the map, where approached a roundabout located at the corner of Felton Road and Bettington Road, Oatlands. The offender overtook this vehicle on the right hand side and crossed into oncoming traffic, on the incorrect side of the road, before reaching the roundabout.
The witness observed Daniel Newman, occupying the passenger seat next to the offender. She saw him stick his middle finger up at her, as the offender's vehicle overtook. She then saw an oncoming car in the roundabout, in front of the offender's vehicle. The offender's vehicle briefly stopped, facing the oncoming traffic on the incorrect side of the road.
The oncoming vehicle entered the roundabout, turning and then exiting the roundabout. The offender waited for the oncoming vehicle to exit the roundabout. He then drove his vehicle through the roundabout, on the incorrect side of the road. The Crown clarified that in the course of the presentation of the matter, confirming that he negotiated the roundabout in an anti-clockwise direction.
Another witness, Ms Hole, said that she was driving at 7.50pm along Bettington Road, towards North Rocks. As she approached the roundabout, she saw the offender's vehicle travelling on the incorrect side of the roundabout at a fast speed, overtaking a grey or gold SUV. She saw the offender laughing, saw that he was quite animated at the time. She said that she saw the offender stick up the middle finger of his right hand toward the grey or gold SUV, before crossing back to the correct side of the road.
Chief Inspector Hole was a passenger in the car and saw a motor bike swerve sharply left towards the gutter, as the offender's vehicle drove through the roundabout on the incorrect side of the roadway at high speed. He saw the offender's vehicle rocking from side to side and heard the engine revving hard. The vehicle then approached point 3 on the map. After driving through the roundabout, the offender stopped at a red light at the intersection of Bettington Road and Pennant Hills Road, Oatlands.
The witness, Ms Wakim caught up to the offender and continued to drive southward, behind the offender's vehicle. At the intersection, she saw the offender's vehicle creeping forward, onto the intersection, across the stop line. She saw the offender in his vehicle looking from side to side in both directions. Then, against the red traffic light, the offender harshly accelerated into the intersection and drove straight four lanes of traffic and continued driving southward, along Bettington Road.
This conduct was also captured and as I observed the recording, there were up to six vehicles who passed in front of the offender, as they were permitted to do, because they had a green light facing in their direction. Afterward, he crossed the intersection against the traffic light and continued on. Ms Wakim waited at the traffic light for 40 to 60 seconds, until it turned green and she then continued to drive along Bettington Road in a southward direction.
Thus the offender would have been held there for 40 to 60 seconds before he could have lawfully crossed that intersection. The observation I made of the recording, is consistent with the timeframe identified by the witness during which she waited for the light to change, to allow her to pass through the intersection. At this time, the seven victims were walking together, on a designated pedestrian footpath, on the eastern side of Bettington Road, heading in a southerly direction.
One of the children, Charbel Kassas, was riding a black BMX bicycle. Closed-circuit television footage was obtained from a nearby residence which showed the group of children walking slowly on Bettington Road, behaving lawfully and walking where they were entitled to be. This was moments before the tragedy that followed. The children had walked from a residential address at Robert Street, Telopea and walked approximately one kilometre to this point.
They had attended a family function and were intending to go to a nearby store to buy ice-cream. As the offender's vehicle drove along Bettington Road, it approached a sharp right hand bend, at the bottom of a downhill slope. He was captured in the aforementioned closed-circuit television travelling in excess of a sign-posted 50 kilometre speed limit. Indeed, my observation of the recording revealed his vehicle to flash across the field vision. This is at point 4 on the map.
The offender attempted to turn right as he entered the bend. Due to his vehicle's excessive speed, he lost control around the bend and the vehicle left the roadway. The vehicle mounted the concrete kerb and gutter, on the left hand of Bettington Road. It travelled directly towards the seven children walking on the footpath. His vehicle struck all seven children from behind at high speed. His vehicle dragged some of the children along a cyclone fence that bordered the nearby golf course.
Four of the seven children were killed by his vehicle. They were, as I indicated when referring to the charges, Angelina, Sienna, Antony Abdallah and Veronique Sakr. The remaining three children, Charbel and Mabelle Kassas and Liana Abdallah, suffered injuries. The offender's vehicle continued travelling a further approximately 90 metres in a southerly direction along the footpath until it collided with a road sign.
It then changed direction, travelling from the footpath and on to the north-bound lane of Bettington Road. The total approximate distance from Greens Avenue, Oatlands to the service station and return, to where the collision occurred, was approximately 5.3 kilometres. The offender's vehicle sustained major pedestrian impact damage to the front and nearside.
There are images included in the agreed statement of facts that were captured after the event. The last of these depicts the damage to the cyclone wire fence. The offender and passenger alighted from the vehicle. They were uninjured. Daniel Newman went to assist Charbel Kassas. The offender appeared distressed and said to Daniel Newman, "What have I done? I've killed people. I am going to gaol."
This is a fact that Dr Furst found odd, against the offender's representations to him, that he had no memory of what had occurred and that his awareness returned at the point when he was being fingerprinted by the police after his arrest. At the time of the collision the weather was dry. It was a hot day, very humid. There was still some daylight at 7.50pm. The sun set that day at 8.01pm. The roadway was in good condition and it was dry.
A number of witnesses from the community arrived at the scene and attended to the children and reported the event to Emergency Services. A local general practitioner, Dr Wong who lived nearby, attended the scene shortly after the collision. She spoke to a triple-0 operator and described the condition of each of the four deceased children and informed the operator that one of the children, Charbel Kassas, still displayed signs of life but was in a critical condition.
Police, ambulance and the fire brigade arrived at the scene a short time later.
They established a crime scene perimeter in the area, it became unmanageable though as family members were arriving at the scene and members of the community became increasingly distressed and started screaming. Approximately 200 people, including family members, local members of the community and emergency personnel were present, they saw the four deceased children in situ at the crime scene, as a result of this evolving circumstance the public order and riot squad attended to maintain and secure the perimeter around the crime scene to ensure that the safety of those present.
Approximately 9.20pm police from the crash investigation unit arrived at the scene, they located the four deceased children at the scene in the following order. I am about to embark upon the discussion of the injuries suffered by these children, it is distressing but I am required to bring this information to account as part of the assessment of the objective seriousness of this egregious behaviour upon which the offender engaged.
First Angelina Abdallah, the first deceased child was located upon approach in a southerly direction towards the collision scene. She was positioned on her back on top of and pressed against the lower part of the cyclone fencing that boarded the golf course. She exhibited a large quantity of square shaped impact marks along her flank, back and stomach, consistent with the cyclone wire fence in which she was entangled. There are significant defamation of her right leg at the knee and the right ankle where it appeared the foot was almost separated from the tibia and fibula bones of the lower leg. On subsequent medical examination the more significant injuries were as follow;
"Significant blunt force injuries to the body, evidenced by exterior, extensive bruising in areas patterned, abrasions patterned tyre tread marks brush and multiple lacerations. There were fractures to three different bones of the right leg, CT Imaging showed the presence of skull trauma, fractures to the sternum and ribs, blood in the pericardial sac of the heart, air in the space between the lungs and chest wall, bruising to the lung and blood in the peritoneal cavity".
Sienna Abdallah aged eight years. The second deceased child, Sienna Abdallah was positioned ten metres away from her sister Angelina, she was laying on her right side and was significantly deformed, her right arm was unnaturally position across the chest and her left leg was twisted and forced upward with her foot positioned near her face. The left leg was also torn near the knee joint, her right leg was stretched outward and underneath the cyclone fence. This leg had significant lacerations to the rear thigh and under the right knee joint, she also suffered a facial injury and extensive grazing to the back of her neck and shoulders, next to her was a severed right arm which had been severed at the shoulder and belonged to the deceased Veronique Sakr.
On subsequent medical examination the more significant injuries were as follow:
"Significant blunt force injuries to the body, evidenced by extensive bruising in areas patterned, abrasions patterned, brushed, mutilating lacerations and multiple fractures of the upper and lower limbs. CT imaging showed the presence of multiple skull facial and upper and lower limb fractures".
Antony Abdallah aged 13 years. The third deceased child Antony Abdallah was positioned a short distance south of his sister Sienna. He was laying on his back, he had impact marks to his forehead and nose, his left arm was fractured in several places, on the left side of his torso were significant lacerations in conjunction with an amount of grazing, several indent marks were present on his lower right leg, leading to tyre transfer inside his right ankle. His right foot was partially severed with the majority of the separation occurring underneath the foot. On subsequent medical examination, the more significant injuries were as follow:
"Multiple skull fractures, palpable fractures to the left arm, palpable open fracture on the right food, bleeding into and around the brain, bleeding in the maxillary sinuses, bleeding in the abdomen, air in the space between the lungs and chest wall, collapsed lung, all confirmed by CT imaging. There were also lacerations, abrasions and bruises on the face, brush type abrasion on the chest, abdomen and back. Abrasion on the left arm, lacerations and bruising on the right hand, bruising and abrasion to both lower limbs".
Veronique Sakr aged eleven. The fourth deceased child Veronique Sakr was positioned five metres diagonally inward from Antony Abdallah, inside the grounds of the golf course. She was projected the furthest in this impact and over the cyclone wire fence that provided the boundary between the public land and the golf course. She was projected over the cyclone fence during impact and was laying face down, her right arm was severed from the shoulder and located 7.5 metres from her body. Her left leg was splayed out with an open wound behind the knee joint, two toes from her left foot had been severed.
On a subsequent medical examination the more significant injuries were as follow:
"Amputation of the right upper arm at the level of mid-upper arm, multiple skull fractures, fracture of T2/3 vertebrae, fracture of pelvis and both legs, ribs 3 and 4 were widely separated from each other, bleeding from ears, abrasions on face, air in the cranial cavity, air in the space between the lungs and chest wall, collapsed lung, blood in the space between the lung and chest walls, patterned abrasions on chest and abdomen, abrasions on back, bruising, abrasions and laceration to upper limbs and lower limbs".
The distance between the first deceased Angelina and the last deceased Veronique was approximately 7.5 metres. The total distance travelled by the offender's vehicle from the point where the vehicle mounted the footpath to its position of rest was approximately 150 metres, if travelling in a straight line. The collision damage to the offender's vehicle was to the front and nearside of the Mitsubishi.
The offender was arrested and underwent a road side breath test at 8.33pm indicating the presence of alcohol in his blood with a high range reading of 0.182, he was taken to the Castle Hill Police Station where he later underwent breath analysis at 9.35pm, returning a high range reading of 0.150 grams of alcohol in 210 litres of breath. This is right at the beginning of the high range. The offender told the breath analysis operator a Constable Parsons that he consumed his first drink around 7am, on the day of the collision and his last drink around 7.40pm. This representation must be qualified with what he has attributed with by Doctor Furst who records that he was drinking as well the night before.
The offender stated that he consumed eight full strength Asahi beers and five Bundaberg Rum and Cokes, hand poured, under measured amounts. He stated that he had not consumed any food during the drinking period and he had no known illnesses nor on medication but he "might have had some cocaine today, yes this morning". The breath analysis record also indicated that the offender was around 184 centimetres tall and weighed around 100 kilograms. Once again he exhibited memory of his activities during the day and the consumption of alcohol and cocaine but purports to have no memory of the collision. He was taken to Westmead Hospital where he provided a sample of blood and urine as per mandatory requirements at 10.45pm. The results indicated the blood alcohol concentration of not less than 0.142 grams per 100 millilitres, Benzoylecgonine 0.12 milligrams per litre, break down product of cocaine, 3‑4, methylenedioxyamphetamine, less than 0.01 milligrams per litre and 3-4, methylenendioxy-methylamphetamine, 0.13 milligrams per litre. Cocaine was also detected in the offender's urine test results.
The toxicology results were examined by Dr Judith Perl, a clinical pharmacologist, who offered the opinion that the offender would have a very substantial impairments of driving skills given the blood alcohol concentration of not less than 0.160 grams per 100 millilitres of blood and above at the time of collision. In addition Doctor Perl found that there was:
"Some additional impairment of the offender's driving ability due to MDMA at the time of collision, however compared to the very substantial impairment due to his blood alcohol concentration, the effects of the MDMA may have been minor".
Regarding the cocaine Dr Perl opined that "Based on the assumption that the accused did use cocaine in the morning then it cannot be stated with any certainty that cocaine use would have contributed to the accused impairment at the time of the collision. The quotation continues:
"However withdrawal effects of fatigue cannot be entirely excluded, withdrawal effects of cocaine use may have contributed to the accused alcohol induced impairment although compared to alcohol the cocaine would have had no significance."
The underlined section was the subject of objection on behalf of the offender because of the absence of any sound basis it is said upon which that opinion could be reached. I have taken the view that I should put that to one side in the consideration of this matter. Ultimately and upon balance it adds little to the assessment of the objective gravity of misconduct upon which the offender engaged.
The offender declined the opportunity to answer questions and he exercised his right to silence. He was entitled to do so. He attracts no adverse inference from having exercised the right to silence which we all enjoy as members of our democracy. All deceased were pronounced dead at the scene, they were taken to the Lidcombe mortuary to await formal identification by their family and post mortem examination. Charbel Kassas, Mabelle Kassas and Liana Abdallah were taken to the Westmead Children's Hospital. The results of the medical examinations of the deceased were that as a result of the external post mortem examination and CT imaging the direct cause of death was multiple blunt force injuries in the case of Angelina, similarly in the case of Sienna and similarly in the case of Antony and Veronique.
Charbel Kassas was taken to the Westmead Children's Hospital and upon examination the following injuries were revealed:
Left temporal and parietal scalp hematoma;
multiple small focal haemorrhage contusions at the bilateral frontal white matter bilateral basal ganglia; right choroid plexus body and splenium of the corpus callosum and midbrain;
fracture dislocation of the right mandibular condyle, associated swelling of the right parotid gland and adjacent subcutaneous soft tissue;
alveolar fractures along the right mandibular first molar and premolar; misplaced teeth in the hypothurinx likely deciduous teeth.
Charbel underwent surgery for the severe brain injury and high impact trauma to the head and face. Liana He spent 13 days in the Intensive Care Unit before he was transferred to the in-hospital rehabilitation unit.
Dr Al Witro, opined in his report that the victim sustained significant injury to the brain with likely long term impacts on his cognitive and social abilities and he will have lifelong disabilities with poor quality of life.
Mabelle Kassas was also taken to Westmead she sustained a 3cm deep laceration to her right thigh which required suturing. She also experienced pain to her left shoulder and upper arm and pain and swelling to the dorsum of her right hand.
Liana Abdallah was also taken to Westmead Hospital. She had sustained a 5cm laceration to her right eyebrow with underline fractures as well as pain to her right forearm and head.
Associate Professor Kerpelowski opined that the laceration was a significant facial scar.
The offender's vehicle was forensically examined and found to have no mechanical defects or faults that might have contributed to the collision. Speed analysis using the CCTV footage was conducted by a Sergeant Derek Fenton. The conservative estimate of the speed of the offender's vehicle in the lead up to the collision was in the range of 122 kilometres per hour to 125 kilometres per hour. The offender's vehicle was travelling at least 72 kilometres per hour over the sign posted speed limit of 50 kilometres per hour upon this analysis. Sergeant Fenton also conducted a critical corner analysis of the right hand bend where the Mitsubishi left the road and estimated that a vehicle on that trajectory could only accommodate a maximum corner speed of approximately 75 kilometres per hour. The restraint control module was removed from the offender's vehicle on 26 February 2020 and forwarded to Mitsubishi, the vehicle's manufacturer in their Japan operation.
The offender's vehicle crash data retrieval was received by police on 30 March 2020. The data retrieved for the offender's vehicle restraint control module indicated one trigger event consistent with a frontal impact. The speed of the offender's vehicle in the lead up to the collision was captured and recorded in half second intervals for a total of five seconds prior to the activation of safety equipment for the vehicle occupants. During that five second period the speed of the offender's vehicle varies between 131 kilometres per hour to a maximum speed of 133 kilometres per hour. This was at 4.5 seconds and four seconds. The vehicle then records a slight deceleration from 125 kilometres per hour at 1.5 seconds from impact to 111 kilometres per hour at the time of impact. The offender was estimated to be travelling at a maximum speed of 133 kilometres per hour prior to reaching the right corner of Bettington Road.
The retrieved restraint control module data displays that there was a significant application of steering to the right by the driver leading up to the impact and that the offender's vehicle accelerator pedal was fully depressed by the driver at the five and 4.5 seconds point prior to impact. The accelerator pedal percent data displays that the accelerator pedal was at 100 percent application. An inspection of the service brake indicator shows that the brakes of the offender's vehicle were not applied at any time in the five seconds preceding that impact.
The agreed facts upon which sentence is to be determined provide an horrific example of unlawful and dangerous conduct and gross negligence by the offender in this use of the subject motor vehicle in which he demonstrated no regard for the safety of any other road users including his victims. The conduct to which he has pleaded guilty could be relied upon by the Crown for both unlawful and dangerous conduct and gross negligence in the prosecution of the manslaughter charges. His dangerous and aggressive driving behaviour was sustained over a significant period up to the tragic impact of his vehicle with the seven child victims as they walked along a footpath adjacent to the road where there offender lost control. He drove in this egregious manner whilst impaired from the ingestion of alcohol and after having ingested illicit drugs. The manner of driving was such that tragedy was inevitable, the magnitude of the tragedy though extends to the unimaginable. These offences fall well above the mid-range of objective seriousness. I find that he drove the motor vehicle abandoning all responsibility and his moral culpability was high.
For the offences of manslaughter I find that the objective seriousness falls near to the high end of the range. For the offence of driving dangerously causing grievous bodily harm I find that the offence falls toward the high end of the range of objective seriousness but marginally below the objective seriousness of the offences of manslaughter upon the assessment of the harm suffered by the victim. The offences of causing bodily harm by misconduct fall marginally below the objective seriousness of the offence of dangerous driving causing grievous bodily harm upon the assessment of the harm suffered by the victims.
I have come to this view upon the course of driving undertaken up to the collision, the length of the journey in which he drove so dangerously and the number of other members of the community including the victims he put at risk. His manner of driving along this journey included what I find to have been menacing and without regard to public safety. I refer to s 118 Road Transport Act 2013 and s 21A(2)(i) Crimes (Sentencing Procedure) Act 1999.
Submissions on his behalf advanced the incontestable fact that there is but one sequence of driving with the tragic consequence wrought in respect of each of the victims. However, the assessment of the conduct which each individual charge is referable requires appropriate weight to be given to the tragic consequences for each of the victims including the extent of their horrific injuries.
Victim impact statements were tendered by the Crown in the Crown bundle; some of them were read. These were provided by family members of the victims who suffered death and injury from this collision. Before this occurred the Crown ensured that the Court convicted the offender of each of the offences without objection and without objection asked the Court to apply s 30(3) Crimes (Sentencing Procedure) Act 1999. This provision is in the following terms:
"A victim impact statement of a family victim may also be taken into account by a Court in connection with the determination of the punishment for the offence on the basis that the harmful impact of a primary victim's death on family victims is an aspect of harm done to the community, but only if:
(a) the prosecutor applies for this to occur, and
(b) the court considers it to be appropriate."
Thus I may if I consider it appropriate take into account the impact statements of the family victims in connection with the determination of the punishment the offences on the basis that the harmful impact of the primary victims' death on family of victims is an aspect of harm done to the community.
In The Queen v Palu (2002) 134 A Crim R 174, Howie J with whom the other members of the Court agreed said:
"The attitude of the victim cannot be allowed to interfere with the proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness:
R v Glen (NSWCCA Unreported 19/12/94). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim.
A serious crime is a wrong committed against the community at large and that community is itself entitled to retribution. In particular crimes of violence committed in public are an affront to the peace and good order of the community and require deterrent sentences, Henderson (NSWCCA, unreported, 5/11/1997). Matters of general public importance are at the heart of policies and principles that direct the proper assessment of punishment the purposes of which is to protect the public not to mollify the victim."
Johnson J, said, with reference to authority in R v Burton [2008] NSWCCA 128 at [102]:
"The victim's attitude towards sentencing of the respondent ought to have played no part on sentence."
I note that these decisions were published prior to the promulgation and operation of s 30E introduced by the Crimes Legislation Amendment (Victims) Act 2018 No. 88 operated from 27 May 2019. This said it is appropriate in my view to bring to account the statements provided by their Honours:
"This is not to suggest that the family members who presented statements in this case have sought to direct the court in its function. In unquestionable commitment to their faith, their statements included expressions of their forgiveness to the offender for his misconduct and the hope that he finds his way in the remainder of his life but at the same time they expressly recognised the importance of the function that the Court must perform in the exercise of the sentencing discretion".
There was no application for the rules of evidence to apply to these proceedings. Each of the Victim Impact Statement was presented without any objection to the content or other challenges on behalf of the offender. There is no opportunity for an offender to test an assertion in such documents though it is open to the offender by way of counsel to make submissions upon the use to which the documents might be put in the assessment of sentence. The offender has not by way of his missive to the Court or through counsel sought to minimise the impact of his misconduct expressed so eloquently by the authors of the statements presented in the Court. In his favour this reflects his remorse. At the same time the statements provide ample material for what could not be disputed that this tragedy has caused extensive and substantial emotional harm to the family victims and correspondingly to the community generally.
This is reflected in the interest to which I would apply the term "intense" in the event, the subsequent prosecution and the outcome of these proceedings.
The injury to Charbel Kassas, who survived, although substantial, is an element of the offence to which the offender has pleaded guilty in respect to that victim it is brought to account not as an aggravating factor, but as part of the assessment of the extent of the grievous bodily harm suffered.
The victim impact statements were in some instances read. I am referring to them not in the order in which they were read to the Court, but it is appropriate in my view that I refer to the contents of each of them to assess the extent of the impact these events have had.
Daniel Abdallah read his statement. He represents that the offender is a person who he will never forget until the day he dies. He referred to the ingestion of drugs and alcohol and the decision to enter a motor vehicle with arrogance, such that he said he has not seen before. He has inferred that the offender had a perception of indestructability in the way he drove after which in an instant he took the lives of seven children close to him. Four of the children were his children. The others were three of his cousin's children. He killed this writer's children. He killed Bob Sakr and his wife's daughter, and he stole the innocence of the three surviving children, but for him the sequence of consequences did not end at that point. He spoke of his mother's deterioration and the shortening of her life as a consequence of what occurred, so too with his father-in-law. This event has removed the joy from their household and turned what was a loving family to a suffering family. He robbed his daughter, Liana, a survivor of her siblings and of his two surviving sons of their brother and sisters. Although he blames the offender, he blames our culture, which permits children to hold the view that excessive drug use and alcohol is, as he described as "cool", because of this culture he said he has buried half of his children and Veronique.
He speaks of his relationship with Antony. He speaks of his Angelina and of his princess, his baby girl Sienna. He speaks of Veronique and the impact she had on his life. He speaks of the relationship between Charbel and his son, Antony, he speaks of Mabelle, his fourth daughter, and the loss that she suffered with the death of his siblings. He writes that the offender has broken the mother of his children. They were proud of their six children and bragged about them to others. He observed that the offender will move forward in his life and will ultimately be released from gaol, but the family will continue with the burden they have been forced to suffer.
He spoke of what he was doing with his life while the offender was embarking upon the destructive style of drug and alcohol consumption. He was attempting to build his family with love, joy and kindness and compassion and forgiveness and instilling those values that he had hoped would be passed onto their children and he was doing this while the offender chose what he said was a partying lifestyle. Their worlds collided on 1 February 2020. He continues that he has forgiven the offender and for the offender's sake and for his sake, and most importantly for his family's sake, he prays that the offender can repent and find Christ in the midst of his suffering. He observes that without justice there is no forgiveness, there is only anarchy and continues that "we entrust the laws of this land for the Court" and believes that the Judge will make his sentence based on all of the circumstances and evidence given. Whatever sentence is imposed will never be enough for the loss that they have suffered.
I will observe at this point that regardless of the orders I make at the end of this judgement and no matter how severe the punishment might be it can in no measure assuage the pain suffered by this extended family through the loss of these children and the injury to those that survived. At the same time I would observe that this event has involved a conjunction of two, it appears, closely knit families.
On the one hand, as will be evident when I continue with the victim impact statements, we have the extended family from which these children each came. On the other hand, we have a father and mother in their years of retirement, who lost a daughter in 2009 from cystic fibrosis and then in 2020 saw the event that will take from them immediate access to their remaining child for a significant period of time into the future.
The Court does not lose sight of the sympathy to which they deserve. I can imagine nothing worse than sitting in a court listening to a judge rehearse this litany of misconduct in preparation of the imposition of a significant sentence of imprisonment. They are paying an enormous price for the decision made by the offender to behave as he did and the Court recognises that. It does not extend though to such circumstances that the penalty to which he has justly earned should not be imposed.
The next victim impact statement is from Bob Sakr. This was read. There was objection taken to one part of this document on the third page, beginning at the sixth paragraph. I agree with the observation made that that is not material upon which the Court should determine the matter and the paragraph has been marked "not read", in keeping with the acknowledgement by the Crown regarding that.
Bob Sakr writes of his daughter, Veronique. He speaks of the past tragedy in his life including the loss of his mother, the two hour lunch he enjoyed with his lost daughter and son in January 2020. He did not know at that point that it was the last contact he would have with her because she was killed three days later. Each year her birthday highlights that she is dead. Each social occasion, parties, weddings, that he might attend etches this loss in his mind. He speaks of the lost opportunity to take her down the aisle of her wedding. The impact of her death on family and friends. The impact upon another person he identifies as "Uncle Tony", who has since lost his life through illness.
He became aware of the collision after receiving a call letting him know that it had occurred and that he had to get to Oatlands. He arrived at the scene not knowing what had happened, but saw the flashing lights, the road block and the police officers forming a line. He was denied access to the crime scene. He still did not know what had happened to Michael and Veronique. He was then told that they were not in a car accident nor were crossing the road, but were simply walking along the footpath to the shop to buy an ice cream when they were hit by the car. Michael was not present, but unusually he was apart from Veronique at the time this occurred. He spoke of a confrontation at the scene without having access to his daughter. His son, Michael, arrived at the scene. He was emotionally distressed. He described a fatherly response to what was presented to him.
He speaks of everyday as a struggle with some days worse than others. He speaks of events and things that remind him of his daughter. He speaks of how she would run and meet him when he attended his son's soccer game. He speaks of the pride that his daughter had with Michael. He speaks of the distress of not being able to have access to his daughter's body until after the Coroner had completed the work required at that office.
He also speaks of his faith that tells him to forgive and he records that "they have forgiven", and notes that they are unable to do anything else but leave the outcome of the offender's future to the justice system, in which they believe. He notes that nothing with bring the children back, that he and the family have put faith in their religious belief and have done what many believe are not possible and extreme for forgiving the offender.
Bridget Sakr, Veronique's mother, read her victim impact statement. She spoke of the horrific experience being notified of the event and attending and the observations she made at the scene, and how she was required to sit on the footpath like everybody else waiting for the Emergency Services to complete their tasks.
Since that night her and her family's life have been turned upside down. Nothing is the same. It is all about existence. To make it to the other side in the best way possible. She operates on minimal sleep. She struggles to breathe. She has the sense of being choked-up, forever trying to hold back the tears, with flashbacks of the night which she cannot control. She speaks of her physical response. Shaking when she sees any kind of red or blue lights, which takes her back to this horrible night. Her past success is unqualified and compromised because she is unable to concentrate and needs professional help for her trauma. The closeness with her relationship with her daughter is described and how this manifested. Her excitement at attending school with her new locker, where she had just commenced.
She speaks of the devastation brought by this event and how she is broken and shattered and how she yearns for her daughter's kisses, her smell and her laughter, her quirkiness and her wisdom. She spoke about the last contact with her daughter, the impact upon her son, Michael, and his cousins and that Michael had only Veronique as a sibling and how close they were. Again, she is someone of deep faith, who observes that her freedom will only be guaranteed when she enters eternal life to be reunited with her daughter. She again speaks of forgiveness and mercy giving the offender the chance to repent for his horrid actions and that one day she might be given the opportunity to introduce him to God for the chance to call out for God's mercy. She writes that the tragedy is bigger than all of us. Please do not make excuses for the actions and take accountability before killing four innocent children and significantly impacting the other three. Notwithstanding the impact of this event she refuses to allow the offender to take any more from her and hence her attitude borne in her faith of forgiveness. She has started an online prayer platform to assist others who have experience comparable tragedy.
Craig Stewart Mackenzie read his statement, he is Bridget's Sakr's fiancée. Bridget Sakr was separated from her husband and clearly has re-partnered. He writes of the closeness of the relationship with Veronique. He too expresses his faith and the forgiveness and the opportunity to be reunited with Veronique in heaven. He is also determined to find some greater good out of this tragedy with focus upon work with the Government and other stakeholders to improve road safety in this State. He writes of forgiveness. He wants to be satisfied of the offender's apology, that he seeks forgiveness and that he commits the balance of his life serving others.
Michael Sakr, the brother of Veronique, read his statement. It was patent that he was close to his sister and has suffered great loss. He too has a deep and abiding faith to which he had made reference in his document. He too prays that the offender learns from these mistakes, as he describes them, and he understands significance of the sentence to be handed down. He records the severe impact upon his family and cousins and urges the offender not to waste time, to work on himself, to grow out of his bad addictions and to find faith and follow the footsteps of Christ.
Charbel's mother, Rania, provided a statement which was read by another family member. She speaks of what she faced at the scene and that she could not see her son until the third day after the event. She saw her husband's distress when he stayed with Charbel. She speaks of the stages of grief that they have experienced through the months that followed. She speaks of the presentation of Charbel in hospital and when he was released from hospital, his physiotherapy, his occupational physiotherapy and his speech therapy that continued for a year. His personality as it was and his presentation now. There is description of the impact upon the family not only because of the brain injury, but the stress of having lost cousins.
Rania Kassas provided a statement that was not read. She speaks of Charbel and how he was functioning at the level of a four year old child. His differences now contrasted with how he was before these events. He appears to be presenting normally, but he has behavioural problems which impacts upon his family, friends and teachers and the hospital teams that are there to assist him. Because he presents with normality his conduct causes confusion in people with whom he comes into conduct. He has problems with language, memory, and is confused by too much information. He has trouble keeping track of information. He has trouble in day-to-day activities such as the preparation of food and using a microwave and leaving it there without adequate water for the process to be carried out. He has to be assisted with simple tasks, such as turning on the television, closing the door and even washing his hands. He becomes stuck on ideas. He repeats questions and persists in his expressed desires until he gets his way. He exhibits frustration including punching his mother and the house structure. He swears at hospital staff which she refers to his frontal lobe damage.
She speaks of the impact upon his education in which he is easily distracted, impacting upon his capacity to learn, he needs to be supervised and supported at school. He spends two hours a day, three times a week, at school and stays home otherwise. She describes the family pressure and their lifestyle at home because of his presentation. She speaks of his attitude towards the offender because of the impact upon his life through the offender's conduct including the loss of his best friends and cousins. He has difficulty understanding why others have forgiven the offender. The statement concludes with the statement that he was normal before the incident. He is now living a brain injury. He demonstrates fearfulness. He is dependent on his parents and family which, in turn, has the impact upon them.
A statement by Mabelle Kassas was provided, but not read. She speaks of the injuries to her face. The impact upon her schooling. The persistent nightmares that continued for six months, that she slept with her mother and with her sister until she could acclimatise to that circumstance. She speaks of the loss of her friends, so called in this event. She speaks of the impact upon her mother and how that has reduced their relationship. The statement goes into detail of impact upon extended families after dealing with the immediate family. The loss as a consequence of Veronique's death, the extent of her grief and the impact upon her mental health as described, the circumstances in which the collision occurred and then how her life has changed. There are images included in this statement showing the victim in bed and depicting her upper thigh.
The statement of Leila Abdallah was read. Again, she speaks of the impact this tragedy has had, but again a person of deep faith, recognises the need to live on for her husband and her surviving children. She speaks of the children having lost the significance of the day was that it was Mabelle's birthday. A day of celebration until these events. She speaks of the distress occasioned by the need to arrange multiple funerals for these children. The arrangements they had to make to divide themselves between hospital and morgues to where the children had been taken. She is no longer living, but is existing. She attributes to the offender the loss of joy and love in the house. She needs to work hard to allow her family to stay closer while she continues to be broken. She too has prayed that he finds faith, turns away from drugs and alcohol and asks that justice be served. She observes that what happened will impact upon their generations to come and she speaks of the loss of the opportunity to see her children, touch them, feel them, smell them, hear their voices and watch them grow. She too writes of her trust in the judicial system and that the right justice will be served and God's Will will be done.
Robert Van Aalst provided a statement not read on behalf of himself and Reena Van Aalst, they are the maternal aunt and uncle of Veronique, and he writes in detail of the association with the little girl, his affection for her, how the event has turned their lives upside down. He asks why such an event occurred. Was the thrill of speeding down a suburban street so enjoyable with the safety of innocent pedestrians and other road users were totally disregarded. He writes of the life sentence of emotional pain, sadness and grief, and continues on with reference to specific occasions in which he and his wife interacted with this child. He observes that the offender's parents have also suffered loss and will suffer for the rest of their lives and that he feels for them in their sorrow. He accepts that the offender did not get into the car with the idea of killing, but that was the result and there must be consequences.
Finally, Liana Abdallah provided a statement that was not read. This is recorded one year after the incident. The family has been torn apart. She has to rethink the purpose of life. She is heartbroken about the loss of her siblings and her cousin. Some days are good and others are such that she needs a hug from one of those lost. She has learned to forgive with the help of her parents. She asks why he had driven in the circumstances. She writes expressly to Angelina, Antony and Veronique expressing her affection and in her terms her loss.
The offender was born in 1990 and thus turns 31 years of age this year. He has no record of criminal antecedents. According to the history gleaned by Dr Furst he demonstrated no suggestion of juvenile delinquency or of substance abuse in his high school years. However, he has a traffic record from 23 July 2007, when his learner licence was issued. His past offending is recorded as:
1 February 2009, exceeding speed by not more than 15 kilometres per hour camera detected;
17 February 2010, exceed speed by more than 10 kilometres per hour but not more than 20 kilometres per hour camera detected in a school zone;
16 July 2010, not display signs 'P' signs;
29 October 2010, failing to give way;
27 June 2013, exceeding speed by more than 10 kilometres per hour but not more than 20 kilometres per hour;
19 November 2013, exceed speed by more than 10 kilometres per hour but not more than 20 kilometres per hour;
19 November 2013, unlicensed, his previous licence having expired;
12 February 2018, exceed speed by more than 10 kilometres per hour but not more than 20 kilometres per hour;
20 November 2018, cross continuous line separating marked lanes;
20 November 2018, exceeding speed by more than 20 kilometres per hour but not more than 30 kilometres per hour;
26 October 2019, disobey a traffic light.
Interspersed with these entries are others when the offender was given notice of the accumulation of demerit points, putting at risk the licence extended to him to permit him to drive.
The offender did not give evidence. I am left to assess the extent of his contrition and remorse and explanations for the egregious conduct upon which he engaged with reference to documents tendered in his case, including his missive to the Court. I shall read the entirety of the document.
"Your Honour, I write this letter to you to tell you how I feel and how this has affected me.
I also wanted to say that I come from a really good family and that they are the best family, loving and kind, that anyone could wish for and it breaks my heart that I have ended up in gaol and responsible for this horrible accident.
It also breaks my heart that I have hurt this beautiful family and that I am responsible for this horrible accident which took the lives of four children: Angelina Abdallah, Sienna Abdallah, Antony Abdallah and Veronique Sakr and injured three children: Charbel Kassas, Mabelle Kassas and Liana Abdallah that will never be the same again. Waking up every day knowing that I am responsible for this is the worst punishment as it will never go away and it will live with me forever. I would do anything to relive that day and have been sober and never left the house.
I would like to say a few words and ask you to please read the section below to the family.
I am so sorry for what has happened and what I did to your beautiful family. Mr Daniel Abdallah, Ms Leila Abdallah, Ms Rania Kassas, Mr Assad Kassas, Mrs Bridget Sakr and Mr Craig Mackenzie and Mr Bob Sakr. I am so sorry also to the three injured children who will never be the same again. I am so sorry for all of this and hate what I have put you all through and know it will never go away.
I just wanted to apologise for all of this and let you know it was an accident and I wish this never happened and I pray for you every day and was really touched by your program on Channel 7 as you looked like such a beautiful family.
Your Honour, thank you so much for reading that out to the family as I have wanted to apologise to them since the start of all this. I wake up sad every day knowing I am responsible for all this and it really doesn't get much worse than that. I will definitely never touch drugs again or get drunk ever again and I never want to drive a motor vehicle again even if I am sober.
Thank you for taking the time to read this, your Honour.
Kind regards,
Samuel Davidson"
And he has affixed his signature and the date 10.2.2021.
The offender's father provided a testimonial to character. The offender according to this document lived with his parents in their family home most of the time until about four months before the collision. He moved out of home to be closer to his work. He comes from a loving, supportive family which helped him grow into an honest, happy and gentle-natured person. He experienced the death of his sister, to whom he was very close, when he was 19. This affected him severely and it took a long time for him to adjust. He had a number of casual jobs but ultimately gained permanent employment driving trucks to deliver chemicals in Sydney, and up to Newcastle, and occasionally in the country. This contract was for a period of five years. There is further reference to his work as a driver and how he moved out of home to live with two friends at Oatlands to be close to his workplace. He is described as hardworking, honest and caring, according to reports from his managers. He volunteered to drive with a convoy of trucks to Baradine in country New South Wales to deliver drinking water to the farmers who were seeking drought relief. At home he was eager to help his father and mother in the normal household chores: mowing, gardening, cooking and washing the dishes and clothes. His father has read the fact sheet and, unsurprisingly I might say, was shocked and deeply affected by what he has read. This has taken a toll on his father and his mother; again, unsurprisingly. It is said that his conduct was totally out of character. He spoke of it being beyond his comprehension that his son behaved as he did on this day. He referred to his past practice of never driving after having consumed alcohol and his use of either an Uber service or his father when he might need to be picked up after having consumed alcohol. He was not aware of the offender having taken illegal drugs. He writes of the ADHD with which the offender was diagnosed when five years of age and the difficulty he had at school because of this. He was prescribed Ritalin and dexamphetamine at different times. This was not entirely successful because it caused him to withdraw and he developed facial tics. He was on and off this medication throughout his life to help manage the condition. He is attributed with what is said to be incredible remorse and he quotes his son having expressed those sentiments. He asks that the Court afford the offender any possible leniency.
The offender's mother provided a testimonial. She speaks of his good character, the nature of the family from which he has come, the loss of his older sister to cystic fibrosis, his diagnosis of ADHD at the age of five, the development of facial tics. The loss of his sister at the age of 30 when she lost her battle with cystic fibrosis had a profound impact upon the offender, who was then aged 19. He knows, she said, how it feels to lose someone whom you love and adore. He feels the pain and loss of his sister every day. She writes that he would not normally drink and drive and clearly he was not in his right mind. He is attributed with expressions of remorse and that he will never put himself in such circumstances in the future. She has trouble comprehending the offences that he committed. She asserts that it is totally out of character and she wishes that she could turn back time. She has lost her daughter and now her son and attributes him with true sorrow for the pain he has caused.
Leigh Smart, a director of his employer company, has provided a reference written on 15 February 2021. He has known the offender for some two years. He has read his traffic and criminal history and is aware that he has no antecedent criminal offences. He writes that he must stress how his behaviour deviates from his normal temperament and actions. He is very surprised at what the offender has done and is of the belief that it is totally out of character. He was employed by the company from 23 January 2019 until the offence on 1 February 2020. He held a position as a heavy rigid truck driver. He began as a casual and made full-time on 22 May 2019. His work was from Monday to Friday with a minimum of 38 hours per week and overtime. He came recommended from another employee.
He was single living with his parents on the Central Coast and had to commute every day. He spoke highly of his parents and he was very family orientated. He found the offender to be friendly, polite and courteous but also naïve and childlike in personality. He had further training and ultimately earned five further qualifications and licences. He struggled with learning, the author was aware of the offender's ADHD, notwithstanding which he pushed himself to achieve successful outcomes. One of the important aspects of work was completing the work diary required of drivers of such vehicles so that there was a record of the steps taken to manage fatigue against the risk of being unfit to drive. He is said to have been conscientious in trying to complete the record correctly and always strove to ensure he was doing the right thing. There were no instances of customer complaints. He was subject to regular drug and alcohol testing by Roads and Maritime Services or the Highway Patrol. It was not uncommon for that process to follow when a driver was stopped at a safety station. There was no instance of any breach of his obligations under the policies and procedures of the company.
He writes of the service to the community, taking part in the water run to Narrabeen, and said, "Sam had a clear understanding of his responsibility for himself and others on the road, this is why I am so surprised that this has occurred. It is completely out of the character I have experienced with Sam." He has stayed in touch with the offender by speaking on the phone. On every occasion he has expressed remorse. He repeats that he is a kind, generous and thoughtful young man, an opinion which he has formed over the two years that he has known him. There is something in the nature of a curriculum vitae listing the achievements of Lee Smart, the author of the letter. There is attached to this reference material from a member of Parliament and the speech by that member of Parliament in the House of Representatives in Canberra supporting Mr Smart in his representations regarding the community service in the water run.
The offender was assessed by Dr Richard Furst, forensic psychiatrist. Dr Furst was not required for cross-examination, his reports of 29 January 2021 and 11 February 2021 were tendered. There was ample material provided to Dr Furst upon which he could conclude that the offender was throughout his life burdened by attention deficit hyperactive disorder. However the specific question put to him and to which he responded in his first report was "What, if any, psychological or psychiatric illness was our client suffering from, prior to and during the time of the offending?" In response to that question Dr Furst wrote that the offender meets the criteria for attention deficit hyperactive disorder and alcohol use disorder, binge pattern. In response to further questions Dr Furst wrote the following opinions:
1. "Mr Davidson was suffering from ADHD at the time of the offence in February 2020, his ADHD having its onset in his early childhood and been diagnosed and treated by paediatricians from the age of five years". This appears at p 8;
2. "Treatment included prescription of Ritalin at first, followed by Dexamphetamine which led to 'motor tics' in response to which he stopped the medication", pp 2 to 3 of the report. This occurred in his childhood and again in his teenage years. At ages 21 to 26 years he tolerated Dexamphetamine to take control of his life but ceased to avoid reliance upon it. In 2019 he resumed the medication for three months;
3. "This is a disorder marked by an ongoing pattern of inattention and/or hyperactivity/hyper-impulsivity that interferes with functioning or development", p 8;
4. "This is characterised by wandering off task, lacking persistence, having difficulty maintaining focus and being disorganised, problems that are not due to defiance or a lack of comprehension", p 8;
5. "This is characterised by the individual seeming to move about constantly, including in situations in which it is not appropriate, excessive fidgeting, tapping or talking", p 8;
6. "Impulsivity is characterised by the individual making hasty decisions and/or doing things 'in a moment' without first thinking about those actions and their potential for harm. It is also characterised by a desire for immediate reward and/or the lack of ability to delay gratification. An impulsive person is often socially intrusive and will excessively interrupt other people or make important decisions without considering the long-term consequences", p 8;
7. "To be diagnosed with ADHD there would be chronic and long-lasting symptoms, impairment to psycho-social function, falling behind, typical development for age with onset before the age of 12", p 8;
8. The physiological aspects of brain function were explained with the effect of medication in the control of symptoms and the risk of addiction therefrom leading to the ultimate proposition expressed thus, pp 8 to 9, "Therefore, although the primary cause of his aggressive dangerous driving was probably his intoxication with alcohol [high range intoxication], I am of the opinion that his ADHD predisposed Mr Davidson to drink excessively in the first place";
9. "Excessive drinking and cannabis use after the death in 2009 from cystic fibrosis of his sister to whom he was close were "most likely" maladaptive means of coping with grief which likely added to vulnerability towards substance abuse/alcohol abuse", p 9;
10. "He is attributed with guilt and remorse after confrontation with the impact of his crimes from a television program upon the incident to which he was exposed when it was broadcast", p 9;
11. "Confinement and segregation can have a deleterious impact upon physical and mental health, exacerbating the difficulties extant at the time of incarceration", p 10;
12. "The offender would benefit from stimulant medication and psychological input with drug and alcohol counselling", p 11;
13. "His risk of reoffending is relatively low", p 11;
14. "Management of treatment when transitioning into the community will depend upon progress in custody and other needs at the time of release, however consideration such as adjustment issues, guilt and stigma arising from the crimes through the public attention given to them indicate that a mental health care plan is appropriate to facilitate transition into the community with the need for medication should depression and/or anxiety evolve to high levels", p 12.
The information summarised in sub paragraphs (c), (d), (e) and (f) are drawn upon general observations upon which it appears Dr Furst relied for the opinion given that the primary cause of his aggressive dangerous driving was probably intoxication to which he was predisposed through excessive drinking to which he was predisposed by ADHD. That might be accepted as a general proposition but it does not sit comfortably at all with what is said on behalf of the offender by his parents and his employer, the effect of which is that he has up until the point of this misconduct demonstrated appropriate insight into the need to maintain an appropriate level of abstinence before driving a motor vehicle, particularly the motor vehicle he was required to operate in his employment.
In the first report there are other noteworthy features:
1. He initially worked as a chef, kitchen hand, disc jockey and began driving trucks from 24/25 years old. At the time of the offences he was employed as a truck driver in a position held for 12 months, p 2;
2. His ingestion of cannabis and alcohol was moderate until the death of his sister, after which he initially evolved into binge drinking which decreased to social drinking when 21 or 22 years of age;
3. He embarked upon the use of cocaine and MDMA upon late 2017 to 2019 at raves every six months. In 2019 he moved to Oatlands where he was living at the time of the offences, occupying premises with two friends and began to misuse Dexamphetamine once more;
4. Regarding the events leading to the offences "He had been drinking on the night prior to the accident offences, stating he had 'a few drinks'.
He recalls waking up on the Saturday morning and 'feeling depressed for some reason'. He then had a shower and had some drinks. He said his friends/housemates came home who had been out the previous night. He believes that was around midday. He said his friends wanted to get some cocaine and MDMA so the three of them arranged to purchase one gram of cocaine and three to four capsules of MDMA between them which they then shared. Mr Davidson stated he had consumed eight beers and a quarter bottle of rum [about 200 mls] by the time he took the cocaine and MDMA. He said his memory for events after that were 'a bit of a blur' and then he was unable to give a clear account of his drinking or other events later that afternoon. Mr Davidson said he had no memory of the motor vehicle accident in question that resulted in the death of four children and serious/other injuries to the other three children, victims of Oatlands on 01/02/20, however, the agreed facts suggest he was still conscious and aware of his actions at the time including being heard to say 'What have I done, I've killed people, I'm going to gaol."
He said he had no idea why he was driving at the time, adding "I have never been that silly to get behind the wheel [after just drinking or using drugs]... if I went to a rave, I'd give three or four days clearance [before driving again]. I don't understand why."
Dr Furst's second report of 11 February 2021 responded to an objection by the Crown to the opinion given regarding the risk of reoffending upon release expressed at p 11 of his first report. The challenged passage was "In all the circumstances, I am of the opinion that Mr Davidson's risk of reoffending is relatively low, certainly much lower than the average young male criminal offender coming before the Courts in New South Wales". The absence of detailed analysis leading to this conclusion was addressed in the second report with reference to the Level of Service Inventory-Revised (LSI-R), an instrument in common use to assess actuarially the risk of general and violent reoffending. I find that the analysis described in the second report and the supporting documents tendered in this case provide a sound basis for the opinion given by Dr Furst as to the risk of re-offence, which I accept. The Crown has not sought to challenge the opinion in light of the further material produced.
The parties provided written submissions and spoke to them on the day of the hearing. On behalf of the offender issue was first taken with regard to the opinion offered by Dr Perl to which I earlier referred and upon which I have already commented. There was no challenge to the alcohol and drugs found in the offender's system. The strong argument advanced on behalf of the offender was in terms that the details of the offending conduct giving rise to the individual charges were inherently common to all offences. There was a single driving event leading up to and including the time of the collision. The factors of that driving are a common feature to the multiplicity of charges.
This then led to submissions with regard to the application of principle to determination of sentences for multiple offences and the extent to which there should be concurrence and accumulation so as to ensure that the punishment imposed does not exceed the totality of the wrongdoing upon which the offender engaged. I was reminded of authorities such as The Queen v Holder [1983] 3 NSWLR 245 and in particular the judgement of Street CJ. I was reminded that what was said by the High Court of Australia in The Queen v Pearce [1998] 103 A Crim R 372 and the approach taken when sentencing for multiple offences discussed in Sheehan v R [No 2] [2006] NSWCCA 332 citing a passage from R H McL v R [2000] 203 CLR 452 in which the plurality of Gleeson CJ, Gaudron and Callinan JJ quoted Brennan J in Ryan v R [1982] 149 CLR 1 which imposed upon a sentencing court to assess sentence having regard to the entire course of criminal conduct to ensure that a penalty is not imposed for the same act or omission twice.
If the offences are part of a series the entirety of the conduct of the same or similar nature rather than the several acts or omissions constituting the several offences may determine the appropriate overall sentence to be imposed. The offender conceded from the outset that the only appropriate and justifiable sentence was one of full-time imprisonment and invited me to apply s 53A Crimes (Sentencing Procedure) Act 1999 and impose an aggregate sentence. Further authority was discussed with regard to the need to apply with care the principle of totality and the common features identified were the length of the journey, the course of driving behaviour, the toxicology and the speed. Submissions included guidance upon where I should place the objective seriousness of the misconduct with reference to decisions such as The Queen v Borkowski [2009] NSWCCA 102 and the judgement of Howie J at [58] who identified manslaughter as standing at the very pinnacle of the structure of offences arising from vehicular homicide.
I was given examples of cases that led to sentences of imprisonment upon charges of manslaughter from the use of a motor vehicle and it was submitted that I would find the manslaughter offences to fall between the high end and the middle range of seriousness and the high end of objective seriousness. This is not it was said a worse case category.
There was reference to the aggravated dangerous driving occasioning grievous bodily harm falling at the high end of the mid-range of seriousness and the remaining two charges falling at the mid to high mid-range of objective seriousness for that offence. I have already indicated earlier in this judgement where I have placed the seriousness of this misconduct. I am reminded that the offence was not part of planned or organised criminal activity, s 21A(d) Crimes (Sentencing Procedure) Act 1999. The offender had no record of past convictions and limited traffic offences in his past, s 21A(2)(e) Crimes (Sentencing Procedure) Act, and that he is a person of good character, s 21A(3)(f).
The offender is unlikely to reoffend, s 21A(3)(g); he has good prospects of rehabilitation, s 21A(3)(h); he has demonstrated remorse, s 21A(3)(i) and he pleaded guilty s 21A(3)(k). I am reminded of the subjective features to which I have already referred and the mental health issues and how they should be brought to account drawing upon what was said by Dr Furst and on the application of principle found in decisions such as Muldrock v The Queen to the effect that such might have the effect of reducing a person's moral culpability and impact upon the assessment of general deterrence, retribution and denunciation attracting to them less weight than might otherwise be the case.
The impact statements were conceded subject to the challenged paragraph in the document provided by Mr Bob Sakr to which I have already referred. I am invited to find special circumstances arising from this as the first time the offender has been in custody, his restrictive incarceration because of the fear of consequences from the nature of the conduct upon which he engaged and the need for treatment as discussion by Dr Furst. I am also asked to consider the modification of the periods of disqualification that will attach to these convictions. The statutory periods of major offences is one of three years which may be ameliorated to 12 months when considering that I am asked to consider, the offender's sole pre‑custody occupation as a professional driver.
The Crown's submissions in some detail provide an analysis upon with which to assist the Court to determine the objective seriousness of these offences. It is said that the offending to the manslaughter falls at the higher end of objective seriousness for such offences with reference to the substantial impairment from the high level intoxication from alcohol with the added impact of the illicit drugs, the nature of the driving upon which he engaged including excessive speed, the manner of driving including what I find to be conduct that was in breach of s 118 Road Traffic Act 2013, the sequence of the driving and the length of travel as I have described on rehearsing the statement of facts and the number of road users that were present both as drivers, passengers and regrettably in the ultimate sequence seven pedestrians. I agree with the Crown submission as I have earlier reflected that the moral culpability of the offender was at least high, the Crown put it as extreme. Perhaps there is another way of expressing it but I have already expressed the view in the terms that I have.
In relation to the aggravated dangerous driving occasioning grievous bodily harm the Crown submits that the objective seriousness falls within the high range and I have already observed my view with regard to that. With regard to that offence I am reminded of guidelines that were given by the Court of Criminal Appeal and it is submitted that this case falls within the range significantly more serious than a typical case contemplated by the guideline, with this I agree, the offender was not a young offender, he has a traffic record which is said to be not particularly lengthy given his occupation as a professional driver but it contains a number of speeding offences with demerit points and warning letters. The injuries sustained were serious including brain injury with long‑term impacts on cognitive and social abilities. The victim was a stranger to the offender. There is remorse and there is a plea of guilty at the earliest possible levy to which I have already referred.
The Crown relies upon aggravating factors in s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999, substantial injury and emotional harm, (i) the offence was committed without regard to public safety and (i)(b) there was a grave risk of death to another person or persons. As I said tragedy was inevitable, the extent of the tragedy though unimaginable. I am urged to provide appropriate accumulation and observe the principle of totality. I am reminded of the impact of the Victim Impact Statements and how they should be approached. The disqualifications for the major offences of manslaughter and aggravated dangerous driving causing grievous bodily harm the Crown submits should be set at the statutory level of three years in each case.
Comparative cases were provided and it was observed in the course of the presentation of the matter there was no case in truth comparable to what the Court was faced with on this occasion. However, after the hearing both parties brought to my attention a judgement which I have found in the course of my research in preparation of this judgement, Crowley v The Queen (2021) NSWCCA 45.
The offender in that case was charged with manslaughter and three counts of aggravated dangerous driving causing grievous bodily harm. In respect of the sole count of manslaughter the indicative sentence identified was 11 years imprisonment and for the other three offences four years and six months imprisonment. An aggregate sentence of 14 years and three months was imposed with a ten year non-parole period. The appeal turned upon questions of procedural fairness and loss of opportunity said to have been suffered when the sentencing Judge would not allow the matter to be adjourned to allow further evidence to be adduced upon a point of difference he noted between the separate items tendered in the offender's case. Ultimately, that was resolved with the appeal not succeeding upon that point.
The facts of that matter were that at about 7.10pm on a Friday the offender was driving in Raby Road at Kearns. It happened at 40 kilometres per hour in excess of the speed limit offender 70 kilometres per hour. He engaged upon a sequence of dangerous manoeuvres until ultimately coming into collision head-on with another motor vehicle. There are comparisons that might be made with regard to the extent of the abandonment of responsibility and the level of moral culpability in that judgement, which I have read carefully for the guidance that it might offer, but upon my assessment the case with which I am concerned is at a more serious level and attracts a more significant penalty ultimately.
There is much to be said in favour of the offender in this case to which I shall now come. I am reminded of what has been said by Acting Justice Martin and Qutami at 201 NSWCCA 353 in the course of my research and more recently with reference to a number of authorities which I need not here cite, and the judgement of Wilson J, Imbornone 217 NSWCCA 144, where her Honour wrote at para [57] of the caution with which untested out of Court statements are to be treated although statements made to third parties are generally admissible in sentencing proceedings the Court should exercise very considerable caution and relying upon them where there is no evidence given by the offender. In some cases, such statements can be given little or no weight. Statements to psychiatrists and others or assertions contained in letters written by an offender and tendered to the Court should all be treated with considerable circumspection and may be deserving of little or no weight. It is open to a Court to have regard to the fact that an offender did not give evidence and was not subject to cross-examination. It is one matter for an offender to express remorse to a psychologist or other third party, and quite another to give sworn evidence and be cross-examined on the issue if an offender appearing for sentence wishes to places evidence before the Court which is designed to minimise his criminality or otherwise mitigate penalty, then it should be done directly and in a form which can be tested. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible or verify or test in the absence of any independent verification of the asserted behaviour or the state of mind or of a tangible expression of contrition to treat this evidence with anything but scepticism represents a triumph of hope over experience.
The offender may not be compelled to enter the witness box. He is entitled not to do so. Moreover, the Crown has not objected to the material tendered in the defence case. Subject to almost hearsay when dealing with an aspect of the first report of Dr Furst, psychiatrist, which was addressed in a subsequent report putting to rest apparently the concerns of the Crown.
Bearing this in mind, and bringing into account the supposition summarised above, upon careful scrutiny of the material offered on behalf of the offender I find that I can contribute appropriate weight to the representations in his written letter and as are attributed to him by others. I observed him in Court in the course of reading of the victim impact statements. Upon my observation they had an effect upon him.
I accept on this material applying the circumspection urged by Wilson J and Smart AJ that the offender is appropriately contrite and remorseful. The long history he provided to Dr Furst did not on my reading of it suggest any attempt by him to minimise the seriousness of his misconduct. Some of the representations were against his interest for they diffuse any suggestion that his ADHD, of which there is ample evidence which has affected him throughout his life provides an explanation in mitigation for the conduct for which he is now to be punished. Impulsivity and the ingestion of alcohol does not explain the decision to drive. The extent of course of driving in such a dangerous manner described burdened by intoxication all of which is assessed in the context of his acknowledgment to Dr Furst that he was aware that he were not to drive after drinking or taking drugs before this addressed by abstinence for a period of days between the ingestion of substances and planned driving. So much is also apparent from the material provided by his parents and by the supervisor in the company where he was employed.
The terms of his acknowledgement of his wrongdoing and the consequences for his victims and their families are such that it is difficult to see what forensic purpose would be achieved from cross-examination of the offender. He has not sought to minimise or qualify the objective circumstances of his course of driving so dangerously impaired by alcohol and substances laid out in such detail in the Statement of Facts to which he has subscribed. He is to be accepted as a person of otherwise good character.
I accept that he has shown remorse shown by the offender for the offences and has provided evidence that he has accepted responsibility for his actions, has acknowledged the injury and was caused by his actions. It is not possible for him to provide reparation for those who have suffered in consequence of those crimes, and thus I am satisfied that the requirements for s 21A(3) dealing with remorse and condition are satisfied.
On behalf of the offender weight is attributed to the undoubted diagnosis of ADHD and the opinions offered by Dr Furst regarding the significance it has for the conduct upon which sentence is to be imposed. However, the significance of this condition rests in the circumstances of incarceration which the offender must suffer. I agree with the Crown's submission that there is no connection between the ADHD and the conduct upon which the offender engaged when driving. His decision to drink and consume drugs is suggested to be at least possibly explained by impulsivity, which is a symptom of his condition. At the same time, as I reflected earlier, he has demonstrated considerable insight into the risks attendant upon the consumption of drugs and alcohol before driving and employed strategies against those risks for abstinence for days before his next occasion of driving. The insight he had is supported by the observations of his employer/supervisor, who wrote in such positive terms of his attitudes to his responsibility as a driver.
I do not accept that he impulsively ingested these substances which upon the agreed Statement of Facts was over an extended period of time beginning in the evening before, according to what he had told Dr Furst. I do not accept that he acted on impulse when he chose to drive and I do not accept the act of impulsivity when he chose to drive so dangerously over the course of travel taken to the tragic conclusion of his journey.
The offender's counsel correctly concedes that no punishment other than imprisonment is appropriate in this instance. It is also conceded that an aggregate sentence is appropriate in this case.
The purposes for which a Court may impose a sentence upon an offender are expressed in s 3A Crimes (Sentencing Procedure) Act 1999 reflecting the Commonwealth principles that have revolved in this area of jurisprudence over the years. These are:
1. To ensure that the offender is adequately punished for the offence.
2. To prevent crime by deterring the offender and other persons from committing similar offences.
3. To protect the community from the offender.
4. To promote the rehabilitation of the offender.
5. To make the offender accountable of his or her actions.
6. To denounce the conduct of the offender.
7. To recognise the harm done to the victim of the crime and the community.
There must be adequate punishment for this misconduct to the extent that it might do so the sentence must also serve to discourage such misuse of motor vehicles by others in the community. Regrettably disregard for safety for others to varying degrees is to be regularly observed by those of us who drive upon the licence extended to us to engage in that activity, highlighting the significance of this purpose in the determination of sentences in this matter.
I accept that the offender has demonstrated in his past an understanding of the risks of such conduct revealing the measure of insight he has had and which he clearly disregarded on this occasion. Thus, for the future specific deterrence of the offender is not of such significance in this case.
I accept that there is limited weight to be given to the need to protect the community from the offender. I accept that his risk of re-offending is low.
The sentences can aggregately be structured with the need for rehabilitation in mind, although for reasons expressed, I accept that this is of limited significance. The sentence must reflect that the offender is to be made accountable for his conduct and this attracts a substantial weight in the exercise of the discretion. So too with regard to the need to denounce this egregious behaviour. Substantial weight is attributed to the final purpose that the Court recognises the extent of the harm he has caused to each individual victim and to the community generally beginning, of course, with the family members who are now forced to live on without the opportunity to see their children develop to their full potential in life, at least in respect of five of his victims.
With regard to the question of special circumstances I have considered that with some care, I might say, but the sentence I shall impose in a moment will involve a parole period of such length that there will be more than ample opportunity for him to be transitioned back into the community from a custodial setting.
I accept that he has a measure of punishment arising from the perception of the conduct which was put in before the Court. I accept that the ADHD will require management whilst he is in custody and I have brought that to account in the assessment of the punishment which he must suffer for the offences which he has admitted.
I shall now impose the sentence.
I have decided to impose an aggregate sentence of imprisonment. The aggregate sentence I impose consists of a non-parole period of 21 years commencing on 1 February 2020 with a head sentence of 28 years. The offender will be eligible to be released on parole on 31 January 2041.
The sentence that would have been imposed for each offence if separate sentences had been imposed instead of an aggregate sentence are:
1. The offence of manslaughter of Angeline Abdallah, a sentence of 14 years and 3 months. The term has been reduced by a discount of 25% for the plea of guilty.
2. For the offence of manslaughter of Sienna Abdallah, a sentence of 14 years and 3 months. This term has been reduced by a discount of 25% for the plea of guilty.
3. For the offence of manslaughter of Antony Abdallah, a sentence of 14 years and 3 months. This term has been reduced by a discount of 25% for the plea of guilty.
4. For the offence of manslaughter of Veronique Sakr, a sentence of 14 years and 3 months. This sentence has been reduced by a discount of 25% for the plea of guilty.
5. For the offence of aggravated dangerous driving occasioning grievous bodily harm to Charbel Kassas, a sentence of 6 years. This sentence has been reduced by the discount of 25% for the plea of guilty.
6. For the offence of cause bodily harm by misconduct in charge of a motor vehicle to Mabelle Kassas, a sentence of 1 year and 4 months. This term has been reduced by a discount of 25% for the plea of guilty.
7. For the offence of cause bodily harm by misconduct in charge of a motor vehicle to Liana Abdallah, a sentence of 1 year and 4 months. This term has been reduced by a discount of 25% by a plea of guilty.
The s 166 matters are to be withdrawn.
I order that the disqualification of three years for the major offences, the four charges of manslaughter and the charge of aggravated dangerous driving, causing grievous bodily harm, will apply. They will not operate until the point of his release.
It will be a matter for Transport for New South Wales, to apply the period of time from that day forward in the course of their administrative function.
[3]
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Decision last updated: 11 May 2021