On 23 December 2016 Police issued a Court Attendance Notice against the offender for the offences of Dangerous Driving Occasioning Death and Negligent Driving Occasioning Death. Given the more serious offence is one that can only be dealt with on indictment, conduct of the proceedings was assumed by the Office of the Director of Public Prosecutions (the DPP). In accordance with procedures established under the Court's Practice Note, a period of time was allowed following service of the brief to enable negotiations to take place between the prosecution and defence.
On 27 July 2017 the DPP withdrew the strictly indictable charge. The defendant entered a plea of guilty to the lesser summary charge of Negligent Driving Occasioning Death. Section 117(1)(a) of the Road Transport Act 2013 (NSW) (the RT Act) provides that the maximum penalty for this offence is 18 months imprisonment and/or a fine of up to $3300. Upon conviction Section 205(2)(d) provides for an automatic disqualification of license for 3 years with a mandatory minimum period of 12 months.
Tragedy comes in many forms. On occasions it is shared inasmuch as the consequences affecting those regarded by the law as responsible as well as those who have to bear the outcome more acutely and do so long after the shock of the event has passed. For victims of tragedy, beyond acknowledging the impact of the crime in a legal and human sense the legal system can do very little. The pity of this occurs when tragedy follows a breach of the law in the simplest of terms. Absent of malice, a contradiction of the hope all responsible motorists subconsciously take with them on their journeys along our highways, causing an accident that results in the death of an innocent human being leads to a lifetime of consequences for those who are drawn into the aftermath. This case engenders all of these emotions. The innate sadness of the loss of a young life with so much achieved and so much to offer the world at large is a loss to the whole community.
The facts tendered in these proceedings are agreed as accurately reflecting the Prosecution case and the conduct of the defendant. The full statement of facts forms part of the Court record. Such is the simplicity of what came to pass the facts can be stated succinctly. They confirm the tenuous hold we have on life and how it can be snatched away in an instant.
The gravamen of the failure on the part of the offender is contained within the words attributed to him by one of the witnesses "I didn't see her". This is the essence also of the plea of guilty - a failure to keep a proper lookout, a responsibility that all motorists bear when driving on our public streets and elsewhere. Why the defendant failed to see a cyclist in daylight, albeit on an overcast morning, when he had observed and waited until a motor vehicle approaching him had passed before beginning his turn is a question that can only be answered by the reality that he just didn't. The reason he did not was because he was not keeping a proper lookout. Such a simple failure, such a tragic consequence.
Confirmation of this reality is eloquently set out in the heartfelt Victim Impact Statements from the partner of Ann Formaz-Preston and from Ms Formaz-Preston's mother, tendered through the DPP. Each describes the sense of loss and devastation arising from the untimely death of Ms Formaz-Preston. Each in their own way describes Ms Formaz-Preston as a devoted daughter, partner and highly motivated member both of society and in her chosen field, the medical profession. There can be little doubt the community at large is worse for her passing save for having had the benefit of her life as she lived it, with enthusiasm and dedication to helping others.
All of us in society value human life and achievement and we are all saddened when what might have continued to be a life lived in large part for the benefit of others is suddenly taken way. Although all persons who are lost to the community are regarded in the law as of equal value in the sense that an offender cannot be sentenced more harshly simply because the contribution made by one member of the community might be valued above that given by another, this does not mean that we are blinded to the reality that in a real worlds sense Ms Formaz-Preston's achievements and her potential for more stand.
Outside the life experience that informs all of us of the consequences of tragedy, the Victim Impact Statements personalise the depth of loss and the grief. Both aspects of understanding the loss created by unnecessary tragedy are relevant for the purpose of section 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act) so far as the need of a Court to take into account the impact of the crime on the community, one of the legislatively stated purposes of sentencing relevant to the determination of sentence from the perspective of public policy. I agree with the submission from counsel for the accused that apart from the fact that death is a factor that attracts a higher range of penalty, the observations of the Court in R v Youkhana [2005] NSWCCA 231 are relevant and that section 21A(2)(g) of the CSP Act does not apply to this matter.
[2]
The Plea
The defendant entered a plea of guilty to the charge before the Court on 27 July 2017. Although not a plea entered at the first available opportunity the plea was nonetheless entered at an early stage in the proceedings and following the negotiation period established under the Court's Practice Note (Local Court Practice Note Crim 1). In this regard the Court record notes that despite allowing the parties a six week period to engage in negotiation, a further period was required to enable the DPP to consider accepting a plea to an alternative charge than the most serious one preferred. At the end of that additional period as indicated earlier, the more serious charge was withdrawn and the plea to the lesser offence was accepted by the DPP in full discharge. Although in line with the well-established principles in R v Borkowski [2009] NSWCCA 102 a plea to the lesser charge could have been entered earlier in the proceedings, and there is an inference it was likely withheld as part of the negotiation process, the Court cannot ignore Principles 8 and 9 in the Principles of General Application set out in Borkowski in assessing the utilitarian value of the plea. Given the short period between charge and plea I allow a lesser discount than that which "ordinarily" would apply. The discount for the utilitarian value of the plea will be 20%.
[3]
Subjective Factors
I turn to those factors particular to the offender which are both relevant in assessing the prospect of rehabilitation and are required to be taken into account in mitigation of penalty in accordance with section 21A(3) of CSP Act. The offender comes before the Court as a person of prior good character. He first came to Australia from Dubai in 2006, attaining permanent residency in 2011 and citizenship in October 2012. He is an educated member of the community with a degree in Business Management, a graduate diploma in Software Engineering and a Masters in Information Technology. He is professionally engaged in the latter field of endeavour.
The offender has been married since 2006, with two children. The offender's wife is a general medical practitioner. He and his wife had been expecting a third child however in September 2017 scans revealed the child had passed away in utero. I pause to observe that tragedy comes in many forms in our lives and even those who have caused tragedy elsewhere are not immune from that reality albeit, perhaps, in varying degrees.
The offender has what might be described as an average driving record over the last decade, having held a license to drive in Queensland, Victoria and since 2014, in New South Wales. I note his New South Wales record has only one matter recorded on it in the last three years. There are no entries in any state for a matter similar to the proceedings before this Court. It is of note that his Victorian driver licence details show a condition requiring him to wear corrective lenses whilst driving. His Queensland and New South Wales licence details are silent on this issue.
The Court has also been provided with a number of references attesting to the character of the offender. It is clear from the content of the references that the offender is regarded as a diligent, industrious contributing member of society whose character is held in high esteem by his referees. It is also clear that as a consequence of the accident, the impact of the event has not been confined to the victims.
Two reports from psychologists regarding the offender were tendered to the Court. Each in their own way expresses the view the offender suffers from symptoms of anxiety and depression and possibly post-traumatic stress. These conditions are said to arise out of a combination of reaction to his acceptance of responsibility for the death of Ms Formaz-Preston, and a degree of discord within his marriage. It is appropriate in my view to also refer to the letter of support from the offender's wife. This is based on the nature of her profession and her relationship to her husband. Ms Nasser describes changes to her husband's demeanour, hyper vigilance in motor vehicles, noting this is displayed as a passenger as he cannot at present lawfully drive. She further describes his depression and withdrawal from what might otherwise be described as ordinary events within life.
I accept that the offender has and will continue to suffer from the events surrounding this tragedy. This is not to express the view that these consequences are sufficient of themselves to meet the purposes of the law. It is to conclude that his contrition for causing the accident is palpable and his letter of apology provided to the prosecution genuinely expressed.
[4]
The Sentence
Determining an appropriate sentence for matters of this nature is difficult. It is part of the reality in participating in the act of driving a motor vehicle that accidents happen, that as individuals the exercise of the privilege of having a license to drive carries with it risks and the knowledge that meeting those risks will not always be discharged to a standard of perfection. Where the failure is predicated on negligence as opposed to a deliberate act of contravening the law the level of moral culpability is affected, in the instance of this type of matter by the degree of negligence. An illustration of the breadth of differing consideration can be demonstrated by comparing the factual circumstances of the decision, of this Court, in DPP v Pelletier [2014] NSWLC 9. In Pelletier the length of time during which the need for due care and attention on the part of the driver failed to be demonstrated represents as a more egregious form of negligence compared to what is accepted by both the prosecution and the defence to have been a failure to keep a proper lookout measured in less than a few seconds.
Failure to keep a proper lookout is analogous but not identical with momentary inattention. The latter suggests fleeting conduct whilst, as demonstrated, negligence reflected in a failure to keep a proper lookout is arguably a more significant demonstration of negligence, although it too can be varied in degree, as in the case of Pelletier, such that the section 5 threshold set out in the CSP Act is crossed.
In the decisions of R v Pyritz (1998) 29 MVR 90 and R v Foster (2001) 33 MVR 565 each court spoke about the impact on moral culpability leading to death where the cause was momentary inattention. Each of those cases related to the more serious offence of Dangerous Driving Occasioning Death. Whilst the law has changed outwardly and in terms of penalty since those decisions, and has also received appellate direction from cases such as R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343, I will return to the effects of Pyritz and Foster shortly.
It is appropriate at this point to note that both of these decisions pre-date the decision in Bonsu v R [2009] NSWCCA 316, where at [19] and [24] the Court highlighted what it considered to be inadequate sentences being imposed for driving offences leading to the death or deaths of members of the community. So far as this matter is concerned, the message to be taken from Bonsu is that great care must be taken to ensure both consistency in approach to sentencing for these types of matters and also to ensure that sentences are not weighted in favour of the offender, to the extent that the impact of the crime on the victim and the community together with the obvious need for general deterrence are not undermined.
Nonetheless it remains the case that the observations in Pyritz and Foster remain relevant. It is perhaps the case that they do no more than infer that not every case of a particular type is the same as other offences within that cohort. However the observations regarding the degree of moral culpability attaching to the conduct remain no less pertinent irrespective of later decisions wherein sentences have trended towards a higher level.
Mindful of the observations in those two cases and the concession from the DPP that the degree of moral culpability in this matter is towards the lower end of the scale, it follows that where an offender is of prior good character, there is demonstrated contrition, the need for special deterrence is limited and the prospects of rehabilitation are almost a given, that the threshold required to be met within the provisions of section 5 of the CSP Act is not reached. In all the circumstances a sentence other than one of imprisonment is appropriate.
In reaching that conclusion however I am not in agreement with the submission from Counsel for the offender that a bond pursuant to section 9 is appropriate. Bonds of this nature are in part imposed as a caution against future offending. It is the view of the Court that such an outcome does little to recognise the impact of the crime nor does it ensure the offender is adequately punished for their offending. The conclusion to which the Court comes in this matter is that the appropriate sentence is one of Community Service. The offender has been assessed as suitable for such a punishment.
The order of the Court is that the offender be convicted and ordered to undertake 300 hours of community service. He is to report to Hornsby Community Corrections Office within seven days from the date of this decision. If available, he is to complete within that order, attendance at the Traffic Offender Program.
I turn to the issue of disqualification from holding a license. The automatic period of disqualification upon conviction for this offence is three years. The minimum period is 12 months. Guidance in relation to decisions to reduce statutory periods of disqualification is to be found primarily within the Guideline Judgement on High Range Drink Driving [2004] NSWCCA 303 delivered by the Court of Criminal Appeal on 8 September 2004. I note the observations in that decision at [127]. They do not need to be repeated. Within the Guideline Judgment views are expressed regarding a reduction in the automatic period of disqualification.
Need for a license within employment is a matter for active consideration. Within the references provided it is conceded the offender does not need his license for work purposes although it is conceded by his employer that there are instances when that would be of benefit. Similarly in his wife's letter to the Court it is said that the inability of the offender to drive has "placed unbearable pressure on our family over the last few months". I accept that is likely the case. Such pressures pale into insignificance compared to the pressures brought to bear on Ms Formaz Preston's partner, her mother and other family.
The DPP submissions on sentence express the view at [20] that the offending behaviour does not warrant imposition of the automatic period of disqualification. Bearing in mind the observations in relation to automatic periods of disqualification in the High Range Guideline Judgment why that concession is made is unexplained. Nonetheless I do accept there is a greater than usual impact on the offender's wife's effective discharge of her obligations as a medical practitioner and accept that there is a marginal consequence in relation to his ongoing employment. The combination of these two factors however does not persuade the court that the minimum period of disqualification is appropriate. The offender is disqualified from holding or obtaining a license for a period of two years. Section 225 of the RT Act is to be applied.
Judge Graeme Henson
Chief Magistrate
14 November 2017
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 08 December 2017