R v Quinlan

District Court of NSW|2022-05-24

Introduction

Just before 6pm on 11 February 2020 on Wattle Road, Shellharbour a white Nissan sedan driven by Dimity Quinlan impacted with a BMX bicycle ridden by a young man, Shaye Tallis ('Shaye'). Shaye died as a result of the impact.
Members of the Wollongong community are gathered today for proceedings that everyone involved desperately want not to be true. My focus must be on exacting appropriate punishment or retribution on Dimity Quinlan for causing the Shaye's death. She must be punished for what she did; a significant breach of the road rules and the death that resulted.
That punishment cannot bring Shaye back. It cannot, in any significant way, remove the hurt and anguish that his family will feel for the rest of their days. Nor can it remove the responsibility Quinlan bears. From the moment she saw Shaye on his bicycle crossing in front of her and applied the brakes, Quinlan must forever bear the personal consequences for taking another's life.
Shaye was 16 years old. His father has consented to the publication of his name.
The collision and impact that caused the death occurred at the pedestrian crossing on the corner of Wattle Road and Benson Street in Southern Wollongong. Benson Street leads from a local shopping complex.
Quinlan, driving her Nissan, approached the intersection from the south. She noted the lights facing her turn orange. She sped up. As she came close to the pedestrian crossing on her side of the intersection, Shaye, on his BMX bicycle, entered the northern pedestrian crossing from her left.
Shaye had a red pedestrian indicator facing him. Ms Quinlan saw him and applied the Nissan's brakes hard. The Nissan's wheels locked, and it slid across the road and through the intersection. It hit the bicycle and Shaye was thrown into the windscreen and then onto the road. Quinan stopped to check on Shaye and other bystanders attended and rendered assistance to him. Emergency services were called. Police and ambulance were soon on the scene and Shaye was taken, by helicopter, to hospital, but died soon after.

Facts for sentence

The following matters were not in serious dispute. Agreed Facts were prepared by both counsel, and both counsel in written submissions have provided summaries of those Agreed Facts. My own summary is, I believe, consistent with those findings. I prepared it soon after the trial.
Wattle Road is a four-lane arterial road, it travels roughly north/south. The lanes are separated by a grass median strip, it has a signposted maximum speed of 60 kilometres per hour.
At 6pm on 11 February 2020 the weather was fine. It was daylight. The road surface was good. There was nothing to impede anyone's view of the road or adjacent areas. Quinlan was driving in the lane closest to the centre strip. She chose not to slow down she tried to get through the intersection. There were no vehicles travelling close behind her, it would have been safe for her to slow and stop.
She saw the bicycle as it entered the northern pedestrian crossing from her left. It appeared to be travelling fast. She reacted immediately but her reaction time before the brakes took effect would have been one second. Her brakes locked as she entered the intersection.
The Nissan slid through the intersection and hit the bicycle. It was within her lane and within the pedestrian crossing on the northern side. Her vehicle continued to slide forward, carrying Shaye with it. At the point her brakes locked she would have been travelling at about 86 kilometres per hour. At the point of impact, the Nissan would have been travelling about 61 kilometres per hour. As she entered the intersection the light facing her was orange, but it changed to red soon after.
Shaye had ridden west along the footpath on Benson Street. He was not wearing a helmet. He had an earphone in one ear. At the intersection he would have had a clear view south, but a vehicle heading north was beside the Nissan. It had slowed on orange as its driver intended to turn left into Benson Street.
As Shaye entered the pedestrian crossing the light facing him was red. He was not riding slowly as he moved across the intersection. Two drivers of vehicles waiting to turn north from Benson into Wattle did not see him; in fact, one of them mistakenly thought he had entered Wattle Road from the west.
The prosecution case at trial was that Quinlan was driving in a manner dangerous because she was: 1. Not paying attention to pedestrians approaching the pedestrian crossing at the intersection; 2. Did not slow and stop on orange; and 3. Speeding at well over the 60 kilometres per hour limit.
The case for the defence was that when all relevant factors were considered, a driver on that road and at that time would not expect the cyclist to cross the road at speed and against their (the cyclist's) red light in the face of oncoming traffic.
The jury, by its verdict, accepted the prosecution case despite the fact that Shaye had not stopped at the crossing and cycled across the road. Quinlan had a duty to him and other users. That duty, they found beyond reasonable doubt, was breached.
From the way the case was presented the jury's verdict is clear. Quinlan's driving was more than negligent; at the time of the impact and in the circumstances in which the driving occurred, she was driving in a manner dangerous to others. What she did was, beyond reasonable doubt, a serious breach of the proper management and control by her of her vehicle.
While I note that no other driver at the scene saw the bicycle before it entered the pedestrian crossing, as the photographs and plan of the scene make clear, if she had looked, Quinlan may have seen the cyclist coming towards the crossing before the collision became inevitable. She did have the opportunity to slow on seeing the orange traffic controller light. She chose to speed up to about 20 kilometres over the speed limit. She did so simply to get through the intersection in time. She braked heavily as soon as she saw the cyclist, Shaye, on his bicycle, but by that time both their paths were set.

Objective seriousness

That thoughtless decision not to slow but to speed as she up, is what makes Quinlan morally and legally culpable for the death that occurred. The law of this State is clear; even a casual or momentary lapse, if it results in a potential danger to another, is not outside the offence of dangerous driving just because it was casual or momentary.
But the driving here involved more than a momentary lapse of attention or observation. As the Crown Prosecutor properly submits, a conscious decision was made to accelerate to high speed to get through the red light. But I also note, as Mr Anderson, who appeared at trial and sentence for the offender, submits, there was little conscious decision. It was a spontaneous decision to speed up on seeing the light turn orange. A spontaneous but criminally dangerous decision.
At the time she had a clear road ahead of her and she would have got through the intersection before the red light. But tragically, by speeding up she reduced her capacity to observe and, more importantly, to react in an emergency situation.
Drivers must continually be aware of other road users, and that includes young people on bicycles. Drivers must be acutely aware of the dangers that could be posed if they breach the road rules and there are children about.
Cyclists too, must be aware that not everyone scrupulously keeps to the road rules. It is notorious that young people as their brains develop, also develop their spatial awareness.
While Mr Anderson drew my attention to many of the factors that can make other offences pursuant to s 52A(1)(c) Crimes Act more serious than this one, there were enough features here for the jury to be convinced beyond reasonable doubt of the offender's guilt.
One reason the maximum penalty of 10 years imprisonment is fixed is to cause all road users to be aware of the consequences to themselves of breaching their obligations to other road users. But one would think that the consequences of causing a child's death would be an even more important and serious deterrent. And yet, as the Crown Prosecutor makes clear, offences such as this are tragically prevalent.
The real substance of the offence is not just the dangerous driving, it is the dangerous driving in association with the taking of human life. The taking of a human life by driving a motor vehicle dangerously, as here, is thus regarded as a crime of particular seriousness.
Any sentence must have a reasonable proportionality in the objective circumstances of the crime. Persuasive subjective circumstances must not lead to an inadequate penalty given the objective circumstances: R v Musumeci (Court of Criminal Appeal (NSW), 30 October 1997 unrep) (Hunt CJ at CL).
In assessing an appropriate penalty, I have an obligation to take proper reference and guidance from the guideline judgment of the Court of Criminal Appeal: R v Whyte (2002) 55 NSWLR 252; s 42A Crimes (Sentencing Procedure) Act 1999. The Court in Whyte recognised the broad discretion given to sentencing judges. The Chief Justice did, however, make it quite plain that the greater the degree a driver abandons their responsibility to others, the greater their moral culpability and the more objectively serious the offence. That in turn, impacts on the penalty that should be imposed.
The guideline judgment is a "check" or "indicator". It is "not a tramline" and it should not be used to impermissibly confine the exercise of discretion of a sentencing judge: Legge v R [2007] NSWCCA 244 at [59]. It is not a "starting point - it is a reference point": R v Errington (2005) 157 A Crim R 553 at [40].
Courts should strive to ensure equal justice and the consistent application of principle, but each case is different as is each offender. No offender's conduct should ever be assigned to a pigeonhole.
Whyte described a typical case; and there are both similarities and differences here. It is not suggested there are additional aggravating features. The Chief Justice noted that, "A custodial sentence will usually be appropriate unless there is a low level of moral culpability". It is not suggested here by Mr Anderson that this matter falls into that low level. He accepts on behalf of the offender that a custodial sentence should be imposed. The Chief Justice formulated a numerical guideline to which I will have regard.

Victim Impact Statement

This morning Shaye's father, Mr Fred Tallis, read a Victim Impact Statement to the Court on his and the family's behalf, including Shaye's many siblings. He described the birth of his son in 2003 as "bringing a diamond into their lives".
Shaye was born with a heart condition and spent many months in hospital after surgery. He had got over that problem. He was loved by many, and he had plans, both immediate and long-term. Mr Tallis told me, with particular resonance to any parent, that he "never thought [he] would ever lay one of [his] children to rest before [his] passing."
Mr Tallis spoke of his responsibility to be strong so that he could continue to care for Shaye's brothers and sisters. He spoke of the particular impact on him; his sleeplessness, his anxiety, his depression, his fear. His children suffered. At times they are angry and abusive, at other times they are reserved and tried to hide their emotions. They are still distressed, and their schooling has suffered. They have changed schools. He notes: "As an Aboriginal community, losing someone, we grieve as one. We grieve as a community. We love hard and we grieve hard. I still to this day get asked how my family are going from the community. [Everyone is] still shocked".
To him and his family the death and the trial feels surreal. He told me, "we desperately don't want this to be true."
He hopes that he and his family can learn to be stronger for Shaye's case. He makes the point, also made by the prosecutor and I, that it is not enough when someone takes a life to say, "I was only speeding a little bit". This criminal action has significantly destroyed a very special part of his family, "A link in the chain … a piece of our family is … missing".
He speaks of, "A beautiful young man talented and destined for anything in life … [who] had just come out of his shell and was just beginning [a] journey". He concludes by saying, "[Shaye] will always be our little warrior".
A Victim Impact Statement draws to the community's and the Court's attention the damage and sense of anguish which has been created. That damage and sense of anguish which will continue while anyone who knows Shaye lives. For practical purposes, such statements provide the only such opportunity.

Subjective case

Although no evidence was given by Quinlan at trial or on sentence, there is no contest about the material that was put before the Court on her behalf. I read to the Court her letter. Although a judge is entitled to be sceptical of any letter written that is not subject to cross-examination, she was not required for cross-examination. It is accepted that her remorse, as expressed in the letter and to others, is heartfelt and real.
She wrote that "not a day goes by that she does not think of [Shaye]". She wrote, "I am absolutely shattered that I have caused so much heartache for his family and friends and I know that the word 'I'm sorry' will never be enough." She spoke of punishing herself every day and of her acceptance of responsibility. She said, "I will think about Shaye and his family every day for the rest of my life".
Guilty pleas were offered in the Local Court but the Crown, as is their right, and as the jury found, preferred the charge for sentence today. Quinlan cannot have the benefit given to those who enter guilty pleas at an early opportunity. I do note, however, that she did cooperate with the course of justice, the trial was conducted expeditiously, and admissions were made; matters I can and should take into account: Crimes (Sentencing Procedure) Act, s 22A.
There is a report from Mr McIntosh, Quinlan's treating psychologist, before the Court. It indicates the results of his testing and of his continued treatment of her. In his opinion, Quinlan is living with and managing Post-Traumatic Stress Disorder as a direct result of her actions and her witnessing the consequence of those actions; that is, the death of Shaye.
She did stop and she did seek to render assistance, even though her emotional reaction meant that other bystanders comforted her while whatever assistance they could give to Shaye was given. Those who stopped and those who rendered assistance, to Shaye and also Quinlan, are to be commended for their actions as citizens.
Returning to Mr McIntosh's report, he notes her self-esteem is low and considerable disruptions in her life have left her uncertain, tense, and pessimistic, plagued by worry, subject to depression and anxiety. He notes a passive woman who takes a submissive and withdrawn stance.
It would appear from his testing that she suffers General Anxiety and Depression Dysthymia, and this event has introduced a more prominent condition of Post-Traumatic Stress Disorder, which to date has responded poorly to treatment.
He says, "her current symptom remediation has been very limited." In his opinion, "the impacts of this event are considerable and ongoing … her current mental health challenges [mean] further treatment and additional treatment [is required] to mitigate her severe presentation". She will need to continue to participate in programs for a considerable period of time.
If she were to be imprisoned today, given the COVID-19 pandemic, she would be subject to the strictest quarantine; being kept in cells, with lack of access to prosocial members of the community by way of visits and regular lockdowns.
The information available on the Community Corrections' website indicate that Corrections are not yet ready to have outside providers provide the sort of assistance that she requires; it is doubtful that she would get it while in custody, which would put on hold the necessary treatment that she needs. A decision that that is entirely justified but has important consequences; a matter I will address later.
On her behalf, a number of friends, employers and people who respect her provided references. They are not in any serious contest. She has a job. Her employer speaks of her as a person who has made herself indispensable to her business, she says Quinlan has a "bright future … she shows up, does her best, and works [daily] to improve."
Her partner told me a bit about their background together and the impact of this offence on her and her expressions of remorse and their plans for the future. His father spoke of his daughter-in-law in glowing terms. He told me of the "remorse … and … regret … [that] has plagued her [on a] daily [basis]." He has also seen a "wonderful young woman that has matured and grown" through the experience and work hard to better herself.
Her friends, those who have known her a long time, speak of her commitment and promise their support. Those referees include her former teacher, who still maintains contact. They speak of her work in the local creative arts community, often on a voluntary basis, and her participation in charitable events, offering her talents and time to help others in need.
Quinlan has engaged in community activities. She is a community-minded person, a hard-working person, a vulnerable person on an emotional level, who has lost, as one of her referees said, a "spark that she [previously] carried", it has not returned. She is a woman of promise.
The Sentence Assessment Report confirms those matters. It says she accepts responsibility. It notes how she has struggled to manage her mental health but is engaged in treatment. She has completed the first part of a traffic offender program and is due to complete the program shortly. She would not need to be supervised in the community. She is willing to provide community service if not imprisoned.
I am prepared to accept her expressions of remorse; they appear heartfelt. But in a case, such as this, they cannot take back what occurred.
She is still a young woman. She was born in 1996. She has no criminal record. She has one speeding offence on her traffic record, from 2017.
She can and should be treated as a first offender who is unlikely to ever offend again. But as Mr Crown points out in his submissions, tragically, this offence is often committed by otherwise upstanding members of the community, who fail to take their driving responsibilities seriously. As a consequence prior good character must be appropriately weighed and not given undue emphasis.
The same principle applies when sentencing young people. It is notorious that as people mature, they take less risks and young people are risk takers. But from the moment you are given a driver's licence and assume responsibilities as a driver, no matter how old you are, you are obliged to obey the traffic rules.
As I said at the outset, and in discussion, it needs to be said and said again that the road rules, particularly those relating to traffic signals, are designed for everyone's protection. They have built into them a requirement that if it is safe to do so you slow and stop on orange. The road rule is not - as long as you get through before the red it's okay. A breach of those rules can have, as this case demonstrates, tragic consequences.

Submissions

I have had the benefit of submissions from Mr Todd, Crown Prosecutor, and Mr Anderson. Mr Todd, for the Director, speaks of a young life cut short because of criminal actions which demand appropriate punishment to ensure there is specific and general deterrence.
In regard to specific deterrence, I think it is accepted that this young woman has learnt the consequences of her dangerous driving and will not commit an offence such as this again and is truly remorseful.
General deterrence can be a blunt instrument. But by the penalty imposed, others should learn the consequence of their actions, and that penalty here is often a custodial sentence and a cell door closing. I would have thought the consequences of causing the death of another would be an even greater deterrent than a gaol sentence. But sadly, as the Crown point out, neither the maximum penalty nor the consequences of causing another's death prevented this offence, and sadly may not prevent others.
Mr Anderson contrasted this offence with many that involved greater deliberation in the dangerous driving. He pointed out that while Quinlan a did decide to speed through the intersection it was a momentary, spontaneous decision, to beat the red light. He submits that there are options other than a full-time custodial sentence as "this case lacks most of the features that generally render offences of this kind relatively more serious".
He notes that prior to this offence Quinlan was a person without a criminal record, with an almost unblemished driving record, of otherwise extraordinary good character. He noted she has taken all sensible available steps to rehabilitate herself. He said the Court can have complete confidence she is someone who has demonstrated her rehabilitation, and who is overwhelmingly unlikely to reoffend. In his submission, a custodial sentence, would have devastating consequences to her.
I note at this point that Quinlan's letter to the Court does not dwell on the consequences to herself, it focuses on the consequences to Shaye and his family.
Mr Anderson urges upon me a sentence that could allow Quinlan to put something back by way of community service, rather than occupying a gaol cell for a short period. He submits that a sentence served subject to an Intensive Corrections Order could also reflect the seriousness of what she did.

An intensive Corrections Order?

Before a court can consider ordering that a custodial sentence is served pursuant to an Intensive Correction Order (ICO), a prerequisite is that a court impose a sentence of less than 2 years. When I consider all the purposes of sentencing, matters in mitigation, the need for both personal and more importantly general deterrence, prospects for rehabilitation, reoffending, the community's safety, a sentence of 2 years would be appropriate. That then raises the question of how that sentence is to be served. I am obliged to consider an ICO in every case where the preconditions are met, and a submission is made requesting that option be considered.
There are some dangerous driving causing death matters where the objective seriousness of the offence and the need for adequate punishment and general deterrence, as the Crown said here, require a full-time custodial sentence, even though the possibility of serving the sentence by intensive correction is available: Elphick v R [2021] NSWCCA 167 at [26]-[27].
I have given this matter anxious consideration, noting that I have already considered the purposing of sentencing set out in s 3A Crimes (Sentencing Procedure) Act. I must consider community safety as the paramount consideration: Crimes (Sentencing Procedure) Act, s 66(1).
The concept of community safety is broad. It is not achieved simply by locking someone up. In many cases sending someone to gaol has the opposite effect. Gaol can, by breaking prosocial bonds with the community, by impeding treatment and rehabilitation, turn out people who are significantly worse than when they went in. We do not have punishment for punishment's sake. Punishment is linked with rehabilitation, but here that process is well under way and the risk of reoffending is low, whether Quinlan is gaoled or subject to an Intensive Correction Order.

Synthesis

In the case of R v Smith [2016] NSWCCA 75, Justice Hulme noted that sentencing in cases such as this is probably one of the hardest tasks that befall a judicial officer. His Honour then referred to two passages from my decision in R v McKeown [2013] NSWDC 22, at [5] and [17]: "In matters such as this judges are asked to perform an impossible equation; no life can ever be equated with a period of imprisonment; no gaol term can return a loved one and a life should never be measured simply by the punishment metred out to the offender ... While every judge has an individual sentencing discretion, that discretion must be informed by proper principle."
Ms Quinlan did have an opportunity to slow on seeing the orange traffic control light. She chose to speed up. She sped up to over 20 kilometres per hour over the speed limit of 60, simply to get through the intersection in time. She did brake heavily as soon as she saw Shaye on his bicycle, but by that time their paths were set.
This criminally wrong decision set in train a series of nightmares; for her, the realisation she had killed a boy, the trial, the sentence, and her punishment. For Shaye, he lost a young life of promise; that promise is over. For his family there will be a hole in their lives that will last forever.
The Crown asks for my focus to remain on general deterrence; that is, by the severity of the sentence to send a message to others that if they do what Quinlan does the cell door will close upon them: R v Manok [2017] NSWCCA 232. In matters such as this, I prefer the term "retribution" which often is used interchangeably with general deterrence. "A proper sentence should mark the Court's view of the seriousness of a crime, a proper sentence should let others know the retribution which will fall upon them if they commit similar crimes": R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.
The courts administer justice on behalf of the community, but they administer justice according to law. This process is governed by the Sentencing Act and other relevant laws. I do not impose the sentence I personally would like to impose, nor do I impose a sentence that I think would satisfy the public. To do either would be contrary law: R v Nemer [2003] SASC 375 at [13] (Doyle CJ).
The criminal law has many purposes, but it is a very blunt instrument. Sentencing involves a synthesis of competing features which attempt to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time: Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [18]-[24].
In this matter a custodial sentence of 2 years is appropriate. But I can see little utility in closing the cell door on this offender given the nature of her offence and the material put before me. There are other options available, and she fulfils all the criteria for those other options.
I also have to consider the question of licence disqualification and the Crown's helpful summary of the principles recently reiterated by the Court of Criminal Appeal in Pearce v R [2022] NSWCCA 68.
The automatic driving disqualification is 3 years. The minimum is 1 year. I have to take into account that she has been suspended for 2 years and 2 months as the suspension applied immediately. Section 205(2) Road Transport Act 2013 (NSW) applies, so too does s 206B which means it must be taken into account.

Orders

There will be a driving licence disqualification of 2 years and 6 months from today, the date of conviction, but 206B Road Transport Act 2013 (NSW) applies. It is my intention that her total period of licence disqualification be 2 years and 6 months, from 11 February 2020. It has to be adjusted because of s 206B for account for the suspension period. When she becomes eligible to drive again will be calculated by Roads and Maritime.
If you could please stand Ms Quinlan.
In relation to the offence consistent with the jury's verdict; you are convicted.
There will be a sentence of 2 years imprisonment. That sentence will be served by way of intensive correction in the community. Standard orders apply. In addition you must completer 250 hours of community service. A further condition is you complete the Traffic Offender Program.
Ms Quinlan; you continue to punish yourself, that is sadly the reaction that I would expect from someone who did what you did and the person that you are. I have to sentence many people who are callously indifferent to the consequences of their crime. You do not fall into that category, but you took a life and you have left a hole in the lives of many others. It is in a sense sometimes easier for a judge to say go to gaol - and people might be satisfied by someone going to gaol. But gaols, even in driving matters, are often not the solution to crime. It is sometimes better that the person responsible for a death, think about the consequences of their actions, during every hour of community service work, every hour that they live in the community. I am sure you will.
But others in the community have to understand how a split-second decision can have such tragic consequences - I only wish that they did.
The standard ICO orders will be explained to you. You will need to report within 7 days to Community Corrections to allow them to take effect. You will have to enter into that order in the Court office before you leave the building.
There are three backups on a s 166 Criminal Procedure Act 1986 (NSW) certificate - they are noted "withdrawn and dismissed".

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