R v Wells

District Court of NSW|2022-06-24|Before: Mr J

Solicitors: Mr M Mantaj Conditsis Lawyers Mr J Murray ODPP File Number(s): 2020/00298662

JUDGMENT

HIS HONOUR: Michael Wells appears for sentence in respect of two offences. The first of those is dangerous driving, manner dangerous occasioning death in circumstances of aggravation, exceeding speed limit by more than 45 kilometres per hour, contrary to s 52A(2) of the Crimes Act 1900. The maximum penalty is 14 years' imprisonment and there is no relevant standard non-parole period. There is also an automatic disqualification period of three years with a minimum of one year.
There is also a further offence contained on a s 166 certificate, being did cause bodily harm by wanton driving, contrary to s 53 of the Crimes Act. The maximum penalty available in relation to that section is two years' imprisonment and/or 100 penalty units, and there is an automatic disqualification period of three years and a minimum of one year. There is no relevant standard non-parole period.
The facts are agreed and are as follows: (1) The victims in this matter are: 1. Yasemin Osman. 2. Christopher Davies. (2) The offender held a current New South Wales driver's licence. (3) The offender and Davies were work colleagues and had known each other for approximately four and a half years.

Description of the road: (4) The intersection of the Pacific Highway and Colongra Bay Road, Lake Munmorah, is located on the Central Coast. It is a T-style intersection governed by give way signs. The section of the Pacific Highway has a signposted 80 kilometre per hour speed limit. The highway generally runs in a north‑south direction; however, this section of the Pacific Highway at the intersection with Colongra Bay Road runs in an east to west direction. (5) The Pacific Highway has provision for two lanes of traffic in each direction with the addition of a turning lane leading into Colongra Bay Road. East and westbound lanes are separated by a grass median strip. There is an allocated bay in the median strip which allows traffic to turn right from the Pacific Highway eastbound into Colongra Bay Road. It also allows traffic to turn right from Colongra Bay Road into eastbound lanes of the Pacific Highway. There are give way signs governing traffic and enough room is allowed for traffic to stop within the bay. (6) The area surrounding this section of the Pacific Highway is residential and both the Pacific Highway and Colongra Bay Road are bitumen surfaced. (7) Leading up to the intersection from the westbound lanes of the Pacific Highway (the direction the offender was travelling) there is a slight left-hand bend leading up a hill.

Car accident: (8) On 16 October 2020, Davies and the offender met at the Lake Munmorah Shopping Centre. The offender arrived in a Subaru WRX Impreza sedan bearing New South Wales registration plates 5HMICK. Davies asked the offender if he would take him for a drive, as Davies and his partner had been discussing getting a Subaru vehicle. (9) At approximately 8pm on 16 October 2020, Davies and the offender left the shopping centre eastbound on the Pacific Highway. (10) The offender drove Davies east on the Pacific Highway to Kangaroo Avenue, where the offender performed a U-turn. At this stage, the offender had accelerated "...hard through the first couple of gears up to the speed limit..." where Davies noted "...I don't think we went above the speed limit..." of 80 kilometres per hour. (11) After the offender performed the U-turn, the offender said to Davies "We'll go fast." The offender then adjusted the dial on the console to sport mode and "...accelerated hard..." westbound on the Pacific Highway. The offender was driving well in excess of the speed limit and overtook a vehicle moving into the right lane. (12) As the offender was again returning to the left lane, and as he approached the crest in the road, he applied the brakes and collided with a Toyota Landcruiser bearing New South Wales registration plates EHI 37U. That vehicle was being driven by Ms Osman as she was turning into Colongra Bay Road. (13) As a result of the collision, the Landcruiser was shunted into a nearby power pole. The agreed facts contained photos of the vehicles as they came to rest.

Assistance of bystanders: (14) Several witnesses attended the scene and observed the offender and Davies alight from the Subaru WRX Impreza through one of the side windows. (15) One of the bystanders who approached the Landcruiser observed Ms Osman's five-month-old baby in a capsule located and secured on the rear passenger seat. The bystander, unable to open the door, smashed the rear window of the Landcruiser, climbed in and unclipped the baby from the capsule. (16) The bystander was unable to find a pulse on Ms Osman and was unable to remove her body from the vehicle.

Assistance of emergency services: (17) A short time later, emergency services arrived at the scene. NSW Ambulance paramedics pronounced Ms Osman deceased on examination and were unable to gain full access to her body because of the Landcruiser being up against the power pole. Ms Osman's baby, Davies and the offender were all transported to John Hunter Hospital.

Crash investigations attendance: (18) At approximately 9pm on 16 October 2020, NSW Police officers attached to the Metropolitan Crash Investigation Unit attended the scene. The following observations were made: (a) The Toyota Landcruiser was located up against a solid concrete power pole with the Subaru WRX Impreza located right up against the nearside. (b) The Toyota Landcruiser had clearly sustained two impacts, (i) At the nearside, front and rear doors took the initial impact between it and the Subaru WRX Impreza, and (ii) The second impact occurred on the offside, mainly at the driver's door between it and the concrete power pole. (c) There was nothing that would have obstructed Ms Osman's view in either the windshield or the side windows. (d) There was nothing in the offender's footwell which would have impacted on the acceleration or braking, nor was there anything that would have had an impact on the view of the offender prior to the collision.

Injuries to the victims: (19) The cause of Ms Osman's death was "...extensive head and pelvic injuries..." as a direct result of the car accident. (20) Ms Osman's five-month-old baby did not receive any injuries as a result of the collision. (21) Davies received a bloody nose and mouth as well as bruising over his body.

Arrest: (22) On 18 October 2020, the offender was discharged from John Hunter Hospital where he was then conveyed to Wyong Police Station. He was introduced to the custody manager and had his rights read and explained to him in accordance with the requirements. The offender was offered the opportunity to participate in an electronically recorded interview after a special caution but declined as was his right.

Road and traffic conditions: (23) At the time of the accident: a. The road surface was sealed bitumen. b. The road surface appeared to be in good condition with no obvious potholes or pre-existing damage that may have contributed to the damage. c. The weather was fine with clear visibility at night and no sign of rain having recently fallen. d. The area where the collision occurred was illuminated, giving low to medium light.

Engineering investigations report: (24) Senior Constable Stewart Davenport opined that there were no contributing mechanical faults or defects identified during the examination of the Subaru WRX that the offender was driving at the time of the accident.

Toxicology: (25) Neither the offender nor Ms Osman had any illicit substances or alcohol that impaired their ability in driving at the time of the accident.

Expert report: (26) Gavin Lennon, Crime Scene Officer specialising in collision reconstruction, opined the following: a. The pre-impact speeds recorded by the crash data retrieval system of the Subaru are validated by the independent post-impact change in speed data recorded. b. The impact to the Subaru was between 84 and 85 kilometres per hour. c. The maximum speed of the Subaru in the five seconds immediately prior to the collision was 138 kilometres per hour. d. The driver of the Subaru began to brake approximately two seconds prior to the collision, at which point the speed of the vehicle was 130 kilometres per hour. e. The driver of the Landcruiser committed to the right-hand turn approximately 3.65 seconds prior to the collision. f. The Subaru was approximately 112 metres from the point of impact when the driver of the Landcruiser committed to the turn. g. The Landcruiser needed no more than an extra 0.42 seconds to successfully negotiate the right-hand turn. h. Had the Subaru been approaching at the sign-posted speed limit when the driver of the Landcruiser committed to the turn, there would have been more than sufficient time for the Landcruiser to successfully negotiate the turn and avoid the collision. (27) At the point in time that the deceased committed to crossing the intersection, she was around 15 metres from the give way line at the intersection and around 24.5 metres from the point of impact. While it is unclear the extent to which she continued to monitor for oncoming traffic, the deceased did not slow her vehicle down again after that point in time. The deceased's vehicle crossed the give way line at the intersection approximately 1.11 seconds before the collision occurred. At 1 second before the collision, the offender's vehicle was 24.98 metres away from the point of impact, and at 1.5 seconds before impact the offender's vehicle was 41.73 metres from the impact.

In R v Whyte (2002) 55 NSWLR 252 a number of guiding principles with respect to sentencing for dangerous driving offences were set out at para 204. Common characteristics of a typical case were referred to as follows: 1. A young offender. 2. Of good character with no or limited prior convictions. 3. Death or permanent injury of a single person. 4. The victim is a stranger. 5. No or limited injury to the driver or the driver's intimates. 6. Genuine remorse. 7. Plea of guilty.
At paras 216 to 217 a number of aggravating factors were set out in such cases, being: 1. The extent and nature of the injuries inflicted. 2. Number of people put at risk. 3. Degree of speed. 4. Degree of intoxication or of substance abuse. 5. Erratic or aggressive driving. 6. Competitive driving or showing off. 7. Length of the journey during which others were exposed to risk. 8. Ignoring of warnings. 9. Escaping police pursuit. 10. Degree of sleep deprivation. 11. Failing to stop.
Items referred to at (3) through to (11) relate to the moral culpability of an offender.
I note the case of Whyte referred to typical cases where the relevant section for the offence was s 52A rather than s 52A(2), being an aggravated version of offences under s 52A. While their Honours set out a particular range of sentences in relation to s 52A, there is an obvious need for an increment in relation to the more aggravated form of the offence.
In this matter, the offender cannot be characterised as "young" as he was 33 years of age at the time of the offence. I accept from the material that has been provided on sentence by way of references and from the offender's own evidence on sentence that he is genuinely remorseful, and, as this was a plea entered on 19 October 2021 at the Wyong Local Court in relation to each offence, I accept that he is entitled to a discount for the utility of the plea alone of 25%. Such a discount will be provided.
The fact that this matter involved a loss of life is already included in effect as part of the charge.

AGGRAVATING FEATURES

The offending occurred at 8pm on a major highway with low to moderate lighting. The offender had a passenger in his car and there was also a baby in the deceased's car who fortunately escaped injury but tragically lost its mother. Accordingly, there were multiple people placed at risk by the offender's actions, not simply himself or Mr Davies or Ms Osman but the child, and indeed even potentially other road users. It being only 8pm in the evening, and the Pacific Highway at that point passing through a residential area, it could reasonably be expected that other traffic might be present, and the offender on sentence accepted that at 8pm the road is generally relatively busy.
It was a roadway with which he was very familiar, living in the local area. He overtook the first vehicle at high speed, and he was travelling at a high speed, in excess of 45 kilometres an hour over the speed limit. I accept that in the circumstances he was showing off the capabilities of the vehicle to Mr Davies, and the offender on sentence has accepted that he was in fact doing that.
In the circumstances of the high speed while travelling on a highway which could be expected to have other traffic, and indeed this offender had travelled in the opposite direction, which took him past the crossover utilised by Ms Osman, before he used the next one in order to reverse directions by doing a U-turn. He was clearly very familiar with the possibility that as he approached there might be other traffic wishing to cross over and off the Pacific Highway to the residential areas.
At the commencement of the high-speed portion of his journey, he in fact turned the controls on the car to "sports" mode in order to better demonstrate to Mr Davies, it would appear, the high acceleration rate of the vehicle. He accepted in cross-examination that if he had not been travelling at an excessive speed there would have been no accident. The road itself was not particularly well lit at night. Material tendered on sentence indicates that there was in fact a single light at the intersection on the verge close to where the vehicles came to rest, with the Landcruiser significantly impacted by a concrete power pole placing a large U-dent into that vehicle at the driver's door, which of course explains the injuries to Ms Osman.
The evidence indicates that the offender had abandoned responsibility to a gross degree in the endeavour to show off his vehicle to his friend. That finding is not affected by material that has been placed before the Court, being the report of Grant Johnson of CSI Australia, being an independent report in relation to the accident obtained by the defence. He carried out his own analysis and does not in any fundamental way disagree with the analysis carried out by the police experts. He states in his report at p 24, "(66) As previously noted, it is my opinion based on the geometry of the intersection unequivocal that the Toyota Landcruiser has failed to give way to the Subaru Sedan. (67) In my opinion the driver of the Landcruiser has made the decision that it was safe to proceed into the intersection shortly after turning right whilst on the crossover roadway, which is generally consistent with the intended operation of a give way sign which does not require a driver facing a give way sign to stop at the intersection and give way, but the ultimate onus occurs at the holding line and if there is a risk of conflict at this point the vehicle should yield or stop. (68) I concede that it is possible that the excessive speed of the Subaru during this process has initially misinformed the driver of the Landcruiser in relation to the available gap and has probably influenced their initial decision it was safe to proceed at that point as the roadway appeared to be clear. (69) At this point, the driver had not however reached or passed through the give way controls of the holding line and sign, and in my opinion should have continued to monitor the roadway to her left. (70) If the driver of the Landcruiser continued to monitor the roadway to her left as she is required to do when approaching and before passing the give way sign and holding line, then she should have identified the approach of the Subaru Sedan as it would now be inside any visible obstruction created by the crest and realise at that point it was too close to proceed prior to the Landcruiser entering the intersection and they could have stopped at the give way sign and allowed the Subaru to pass without incident. (71) The evidence appears to suggest that the driver of the Landcruiser had seemingly committed to proceeding, and at some point shortly thereafter probably identified the Subaru and made the decision to accelerate harshly in what would appear to be a deliberate avoidance manoeuvre, as I would not expect a driver to apply full throttle in this type of situation but for a deliberate avoidance attempt. (72) I therefore agree that the speed of the Subaru on approach to the incident location was well in excess of the speed limit and may have contributed to the Landcruiser driver's decision to enter the intersection." [Emphasis added.]
I note that Ms Osman was presumably familiar with the area as she had been visiting her father, who lived within proximity, some hundreds of yards from the intersection. She had left her father's premises to buy some nappies for one of her two children and was returning to her father's house. It was 8pm at night and the lighting was low, although not absent. Lighting provided at the intersection would not have been capable of highlighting the Subaru at the time when she first saw it. I presume that considering the period at night, the Subaru had its headlights on as it approached. It was approaching on a slightly righthand curve and from a lower point than where the crossover was located.
To Ms Osman, it is probable that what she saw was two lights, being the Subaru headlights in the distance, and there would have been great difficulty, in my view, in realising the speed of the vehicle at the distance that it was. She obviously calculated that she had plenty of time to in fact cross over. I note also that there were some trees, at least between the crossover and the approach of the Subaru. It is likely that, having the expectation that the offender would be obeying the traffic rules and proceeding at no more than 80 kilometres per hour, and with an inability to make any considered calculation of the vehicle approaching on her left, that she made an entirely reasonable decision to cross, but only realised as she was crossing that the offender was proceeding at a very high speed.
Of significance is the fact that if he had been proceeding at the speed limit of 80 kilometres per hour there would never have been an accident. In my view the actions of Ms Osman in crossing when she did, did not in any way contribute to the accident. There was no requirement that she come to a stop at the give way sign to reassess the speed of the oncoming vehicle or the gap that she had available to her. It is for those reasons that I have concluded that the offender had abandoned his responsibility in a gross fashion and his moral culpability in the circumstances must be found to be high and, in those circumstances, this is a serious case of such offending. Although it is not necessary to assess it in relation to any midrange of objective seriousness as there is no standard non parole period provided, I would assess it as being above the midrange.

SUBJECTIVE MATTERS:

As to subjective matters, before the Court is the offender's criminal history, which I note indicates that he has never been convicted of a criminal offence. In addition, before the Court is his traffic record. He was first issued a provisional licence in February of 2004 and has been convicted of a number of offences up to October 2020. Of relevance is that there are seven offences of speeding; three of those are for speeding at more than 15 kilometres but not more than 30 kilometres, two of those in 2005 and one in 2006. The further four speeding offences are all by exceeding the speed limit by not more than ten in 2011, 2012, 2014 and 2018. He has at least on those occasions according to his traffic record, demonstrated a degree of contempt for the speed limit. Although I would not regard his criminal history as a particularly aggravating feature, it nonetheless is relevant that almost all his offences as a driver are in relation to speeding over the period of time I have referred to.
I also note from material before me that had the offender, when first observing the Landcruiser, moved from the kerbside lane to the second lane, it is likely that he would have in fact passed behind the Landcruiser after it had passed in front of him, or if he had braked earlier than he did he would also have been unlikely to have impacted the vehicle.
Victim Impact Statements were provided in this matter by the father of the deceased, Mr Osman, and by Ms K Aydin, being a first cousin of Ms Osman. It is from that material that I drew the fact that she had gone to obtain some nappies and the fact that she was visiting her father who lived only a few hundred metres from the incident itself. It is not difficult to understand the fierceness of the reaction of Ms Osman's father to her death, particularly in the circumstances where she left behind two young children, the five-month-old who was fortunately not injured, and another child who was then 20 months of age. Those children will clearly be deprived of the love and devotion of their mother which can never be replaced, no matter how loving the attention that might be provided to them in the future by those who must now take up the chores of motherhood.
Mr Osman's Victim Impact Statement was an eloquent expression of what can be anticipated as the entirely reasonable reaction to the consequences of offending of this nature. Indeed, he will also lose the benefit in his waning years of the support of his daughter. It is of course in the circumstances easy to understand how tragic this event is, but it is not only tragic for Ms Osman's family and the children. It is also tragic in relation to the offender. As I have said, he had no criminal history. He is a married man with two children of his own. He must inevitably receive a sentence of imprisonment, as he understands, in relation to this matter, which will deprive his children of his support for the period he is in custody.
To quote Haesler SC DCJ from his decision in R v McKeown [2013] NSWDC 22 at 5; "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 life should never be measured simply by the punishment meted out to the offender."
In my view that is a highly apt comment to make in relation to matters such as this where the tragedy falls on both sides. Apart from the expert report tendered on the offender's behalf, there have been a number of references, being a reference from a James Connell of James Connell Earthmoving and Excavation, dated 16 February 2022, who, having known the offender over a 12 year period, refers to him as hardworking, a generous and thoughtful person who at work operates various construction vehicles in a manner consistent with work, health, safety and a duty of care; who also refers to having spoken to him on numerous occasions in relation to this matter, and the offender having indicated his remorse on an ongoing basis. "Being a family man with two young children himself, Michael has expressed his empathy for what the family of the victim must be going through. He has been deeply affected by the outcome."
There is a further reference from Tracy Lindley, dated 6 February 2022, who also speaks highly of the offender, having known him for more than 20 years, as he is a close friend of her son. She indicates that shortly after the tragedy she was in contact with him, and he expressed instantly his remorse. She also indicates that he has been reminded of this accident every day since, as it occurred only around the corner from his home and particularly because there is now apparently a memorial at the site.
There is a further reference from Paul Mallat, who has known the offender for some 25 years. He speaks well of the offender and particularly states: "In the two years since the accident I have seen and talked at length to Michael on a number of occasions and he is struggling, in my opinion. The obvious guilt he feels weighs heavily and will do so for the rest of his life and I was glad to hear he is getting professional help in that regard."
There is a further reference from Nicole Boyd who has known him for some 16 years, the offender being a close friend of her husband. She indicates: "Michael has shown true remorse and has been greatly affected by the outcome of what had happened the night of the offences...Michael expresses his remorse for the offences to me almost every time we speak. Michael's remorse is not in relation to himself or feeling sorry for himself, Michael is remorseful to the woman who lost her life and the family that have to live without her."
As I have previously indicated, it was because of the offender's evidence on sentence and the references that have been provided that I accept that he is genuinely remorseful and contrite in relation to his offending on this occasion.
Fortunately, in this matter there were no other aggravating circumstances in the matters I have referred to. The offender was not affected by alcohol or any prohibited drug, although in my view the overtaking of the first vehicle and the speed at which he was doing so can be referred to as aggressive driving, and that he was proceeding at the speed of approximately 138 kilometres in an 80-kilometre zone, in my view, indicates an abandonment of responsibility.
I have taken into account the purposes of sentencing as provided by s 3A of the Crimes (Sentencing Procedure) Act 1999. This is an offence where its seriousness clearly warrants a sentence of imprisonment, the s 5 threshold being passed. Appropriately, no submission to the contrary has been made on behalf of the offender. I have taken into account the guideline judgment of Whyte where the range of sentences was expressed in relation to s 52A, noting of course that this offence, at least the first offence I have to deal with, is an aggravated form of s52A, and that indicates that there must be some increment in the range referred to.
As to the risk of reoffending, considering the offender's past history, the impact on him of this offending and the fact that he will have to serve a prison sentence, in my view indicates that there will be very little risk of the offender reoffending. As to rehabilitation, I also find that there is a high probability that the offender can be rehabilitated. Nonetheless, both specific deterrence and general deterrence remain relevant, and particularly general deterrence, where offending such as this can lead to such serious consequences and so adversely impact other members of the community.
Accordingly, taking all those matters into account, together with the previously indicated 25% discount, in respect of the offence of dangerous driving causing death in circumstances of aggravation, contrary to s 52A(2), the sentence will be one of a non-parole period of three years and six months commencing today, 15 July 2022, and a balance of term of two years, giving a total sentence of five years, six months. The total sentence will of course expire on 14 January 2028. He will be first eligible for parole on 14 January 2026.
It will be evident that I have varied the statutory relationship between the non-parole period and the balance of term in the offender's favour, particularly to allow for a full period of two years' supervision to assist him in rehabilitation and reintegration into the community, in particular noting that for the period of three years and six months he will no longer be able to provide support to his wife and children, and in my view it is important that he is able to return to the community sooner than would otherwise be the case if the statutory relationship was applied. I note the Crown has reasonably accepted in submissions on sentence, although it is perhaps a moot point, that there was room for a realignment of the statutory relationship particularly because of the offender's family circumstances.
In relation to the offence of did cause bodily harm by wanton driving contained on the 166 Certificate, I note that the injuries to Mr Davies were simply a bloody nose and mouth as well as bruising over his body. Those are, in effect, relatively minor injuries. The serious impact on Mr Davies was far more likely to be his realisation as the Landcruiser was first observed that there would inevitably be an accident unless the offender's braking could cause the vehicle to stop before impacting with the Landcruiser.
That must have been a terrifying period, although lasting only seconds, as they approached and eventually collided with the Landcruiser. Otherwise, any impact on him appears to have been relevantly minor, and the speed of the offender's vehicle is already taken into account in relation to the offence that I have already provided a sentence for.
In my view, the appropriate sentence in respect of the matter concerning Mr Davies is a term of nine months; however, I would make that entirely concurrent with the previously imposed sentence, so it commences today and will expire on 14 April 2023.
In my view, the sentence imposed in relation to the offence of dangerous driving occasioning death in circumstances of aggravation is adequate to reflect the criminality involved and the moral culpability involved in each of the two offences. HIS HONOUR: Is there anything I have omitted? O'CONNOR: Thank you, your Honour. There is the backup offence on the 166 certificate that does need to be withdrawn, that's Sequence 1, the offence of negligent driving occasioning-- HIS HONOUR: Yes, you need not worry about that, Mr O'Connor, my associate will automatically do that. O'CONNOR: Thank you, your Honour. MANTAJ: There is one other matter and that's the disqualification. I don't know whether your Honour-- HIS HONOUR: Yes, sorry, I failed to refer the disqualification period.
In relation to the offence of dangerous driving, manner dangerous occasioning death in circumstances of aggravation, the disqualification period will be the automatic period of three years, and in relation to the further offence, having already imposed the disqualification period of three years for the dangerous driving offence - Mr Crown, can I make the disqualification periods concurrent? O'CONNOR: Yes, your Honour, you can. Could I also just clarify that these disqualification periods are to commence on 16 October 2020 which was the day that the offender's licence was taken away?
HIS HONOUR: Yes. That is s 201 and I ask Road and Maritime Services to take into account the period of time that the offender was without a licence, being from the date of arrest on 18 October 2020 until - has he been able to drive up until these proceedings? MANTAJ: He has not, your Honour, no. HIS HONOUR: He has not been able to drive since that time? MANTAJ: Correct, your Honour.
HIS HONOUR: I would ask that that be taken into account as part of the three-year disqualification period. I will simply impose a disqualification period of one year in relation to the offence of did bodily harm by driving and indicate that that should be concurrent with the three years imposed for the other offence. Nothing else, Mr O'Connor? O'CONNOR: No, there is nothing further to raise, your Honour, thank you. HIS HONOUR: Thank you. Mr Wells, you are about to go into custody. If there is anything in your possession that you would like to give to your family or your solicitor, please take the opportunity to do it now, because when Corrective Services come up, they will take a number of things off you if you have them like, mobile phones et cetera. O'CONNOR: That has been attended to already. HIS HONOUR: All right, thank you.

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: 05 July 2023

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