R v Zaiter

Submissions

1. The Crown noted that the evidence was inconclusive as to the extent to which the Offender applied the brakes from the point that the vehicle collided with the kerb. Further, the degree to which the Offender's vehicle lost speed as she travelled along the footpath was accepted as being unknown such that it was not known what speed the vehicle was travelling at the time the vehicle struck the deceased. Further, there were no mechanical defects or faults to the vehicle which may have been a contributing factor to the collision. The Crown referring to the features of the driving that constitute "driving in a manner dangerous" as stated in the agreed facts submitted that many of the typical features identified in R v Whyte [4] were present and there were no additional aggravating factors as identified in R v Whyte. The Crown also accepted that the moral culpability was not high. In written submissions, it contended that the moral culpability was towards the lower but not at the low end. In oral submissions, the Crown submitted that it was in the lower range but not the lowest arguing: 1. It is similar to the typical case in R v Whyte; [5] 2. There are no aggravating features; 3. This is not a case where the Offender's conduct falls within 'momentary inattention'; and 4. The Offender's action or inaction continued for a significant distance without sufficient action to prevent the impact with the deceased.
2. The Defence accepted the features outlined by the Crown going to the seriousness of the offence pointing out that there were no aggravating factors under section 21A of the Crimes (Sentencing Procedure Act) 1999 (NSW) (the 1999 Act) or aggravating features identified in R v Whyte. It argued that the mitigating factor in section 21A(3)(b) of the 1999 Act was engaged in that the offence was not part of a planned or organised criminal activity. The Defence contended that there was no evidence of the extent of any damage to the vehicle at Marker 'A'.

Consideration

1. The agreed facts clearly indicate that the vehicle would have been difficult to steer due to damaged tyres "caused as a result of the vehicle colliding with the kerb and railing". The agreed facts do not indicate the extent if any this was because of the kerb contact at Marker 'A' and the extent of damage at subsequent points when it contacted the railing. I cannot be satisfied that the vehicle was undamaged after first contact with the kerb nor that the ability to drive the vehicle thereafter was unaffected.
2. The circumstances which led the Offender to cross the marked fog line are not apparent. I accept that the offence was unplanned and not part of an organised criminal activity; [6] that is frequently the case with such offending. There is nothing to suggest that speed or alcohol was a factor and I accept the Offender's account that she tried to stop and was unable to do so. So much is consistent with location of the steering wheel found at 90o. The capacity to steer the vehicle moments prior to the collision would no doubt have been significantly affected by the circumstances immediately preceding the collision with the deceased. Overall, I accept that the moral culpability of the Offender and the objective seriousness was at the lower end.

Exhibit 2

1. The Court has evidence before it in Exhibit 2 which indicates a letter from Mr Tony Khamis and Mr Charbel Khediar who describe themselves "family members of the deceased person and also the accused." Their statement records support to the Offender and acceptance of forgiveness and that at no time did they feel that the Offender's actions were intentional. Further, they stated that the Offender's health and mind is of concern to them as well.
2. Exhibit 2 was tendered only as to evidence that the deceased was not a stranger to the Offender, a factor to which I accept. I acknowledge the loss sustained by both Mr Khamis and Mr Khediar. The loss of a human life in circumstances such as these is tragic. However, I am also mindful of what was said by Howie J in R v Palu: The attitude of the victim cannot be allowed to interfere with a 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 December 1994). 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 the 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 November 1997). Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim. [7]

Plea of Guilty

1. The Offender has pleaded guilty at the earliest opportunity and is entitled to a 25% discount on this account. [8]

Prior Good Character

1. It is accepted that the Offender has prior good character. This is a mitigating factor pursuant to section 21A(3)(f) of the 1999 Act but less weight is to be afforded to this in circumstances of the subject offence in question. [9]

Prior Record

1. The Offender does not have a record of convictions; a mitigating factor pursuant to section 21A(3)(e) of the 1999 Act. The Offender's traffic record shows that she has been driving between 1991 and 2017 and has accumulated six speeding infringements. Four of the six infringements relate to exceeding speed limit by not more than 10 km/h. The further two infringements relate to exceeding speed limit by more than 15 km/h but not more than 30km/h. There are additional infringements for disobey turn sign (one) and not make a turn with safety (one). The Crown accepts that this is an average record and is not one that would adversely affect the Offender in anyway. [10] I accept that this is so.

Remorse

1. The Offender was seen by Jason Borkowski (Forensic Psychologist) on 17 March 2021 and he prepared a report dated 4 May 2021. [11] The report indicates that the Offender became visibly tearful discussing the consequences of her offence to the extent where she had difficulty verbalising the effects that the accident has had on everyone involved. The Offender reported that immediately after the accident, she "stood next to the car crying and [she] couldn't move". Mr Borkowski further records that the Offender explained that she knew the deceased as an acquaintance, as he was someone who was from the same village as her husband in Lebanon, and they had previously spoken to each other. She reported that she was "shocked when [she] found out who it was" after the accident. She reported that she made contact with the deceased's wife to try and offer an apology and support. She attended the deceased's funeral to say sorry and she "prayed for him" in hospital, and visited him when he was in a coma. The Offender told Mr Borkowski "I will always think I wish I died and he stayed alive. It's affected everything in my life. I'm unable to be happy anymore, I don't deserve to be happy. I smile for my family, but my life is not the same". Mr Borkowski further records: "Ms Zaiter appeared to accept responsibility for her actions, and she did not attempt to attribute blame, or justify the incident. She also expressed what appeared to be genuine remorse and contrition, and she acknowledged how her actions have likely affected those impacted by the incident". [12]
2. The Sentence Assessment Report records that the Offender fully accepted responsibility for her actions, appeared deeply affected by the offence and was unable to offer an explanation or identify factors that may have contributed to the offence. The Offender indicated the deceased's family were deeply affected by the deceased's death noting that their lives have been irreversibly altered by her actions. She further discussed the immediate and long term effects associated with grief and emotional stress on the deceased's family as well as the financial impact as he was the family's primary income carer. [13]
3. The Court had before it a report prepared by Daniella Taouk (Gestalt Psychotherapist & Counsellor) from Peace the Pieces Therapy dated 29 April 2021. The report states that the Offender has been consulting her for 9 months. The report documents that the Offender has stated feeling great remorse and sadness, and not being able to cope. [14]
4. Similar statements are recorded in: 1. A testimonial prepared by the Rev. Fr Tony Sarkis from Our Lady of Lebanon Maronite Catholic Co-Cathedral dated 27 April 2021; [15] 2. An affidavit dated 18 May 2021 by the Offender's husband at [8]: [16] 3. A letter from the Offender's daughter dated 19 April 2021. [17]
5. Overall, I am satisfied that remorse has been established within the terms of section 21A(3)(i) of the 1999 Act.

Background

1. The Offender was born and grew up in Lebanon where she resided until 1991 when she relocated to Australia with her family. Mr Borkowski recorded that the Offender stated that her mother is still alive and she is her mother's fulltime carer, due to her mother having significant health issues. The Offender is described as being "so close" to her siblings. Her older sister passed away in 2009, her other sister resides in Lebanon, her brother lives in Australia and is employed as an engineer and has a stable family. The Offender married in 1992 and moved out of the family home and into her parent-in-law's home where she currently resides. In addition to her immediate family, she has broad extended family network in Australia, including cousins and her sister-in-law with whom she has always been close to.
2. She has four children from her marriage with age ranges from 27 to 17 years of age. Each of her daughters are employed or in tertiary studies and her son is currently completing his Higher School Certificate. The Offender identified her mother, husband, sister-in-law and her children as her primary prosocial supports.
3. The Offender completed schooling in Lebanon and after arriving in Australia completed courses in English followed by Information Technology and Administration courses at TAFE. After her marriage, she remained responsible for home duties, raising her family and caring for her mother and mother-in-law's day to day health and care needs. It is reported that she recently has been engaging in paid part-time work where she assists in transporting autistic children.

Mental Health

1. Mr Borkowski records that the Offender first experienced depressive episodes after her mother-in-law passed away in 2018. The Offender was subsequently referred for psychological counselling by her General Practitioner. However, she did not regard this as helpful initially and she instead relied on counselling services offered by her church. The Offender was also prescribed anti-depressant medication. Her condition has gradually improved and she established stability in her life., Mr Borkowski records that following the accident the Offender reported a further onset of depressive episodes and became visibly tearful discussing the offence stating that she has "tried to be strong" in front of her family and she tended to be socially isolated stating "when I go to bed every night I cry". She attends appointments with a psychiatrist (Dr Samir Benjamin) with whom she had consultations with every three weeks and currently attends appointments every three months. She is currently prescribed Effexor (75mg) for management of her symptoms.
2. Prior to the aforementioned mental health interventions, the Offender denied any involvement with mental health services. Mr Borkowski verbally administered a Psychiatric Diagnostic Screening Questionnaire (PDSQ) which is a self-report instrument designed to screen for DSM (Diagnostic and Statistical Manual of Mental Disorders). He reported that the Offender endorsed a number of symptoms indicative of depression or depressed moods, anxiety, stress and worry; and trauma. Mr Borkowski noted that the Offender reported a range of depressive symptoms including low moods, anhedonia, amotivation, negative cognitions, negative self-perception, poor concentration and decision making, and thoughts of dying. Symptoms arising from anxiety, stress and worry were reported as including insomnia, tension, difficulties concentrating, irritability as well as anxiety attacks. Mr Borkowski obtained a report that the symptoms also had onset following the accident including panic attacks as a result of her current circumstances. The Offender also reported that she tended to isolate and withdraw from her usual activities and tended to avoid places or situations where she may meet people who are aware of the accident.
3. In relation to the trauma symptoms, Mr Borkowski recorded that the Offender reported nightmares, flashbacks, distressing memories, anxiety, emotional lability, detachment, and guardedness. Similar symptoms are also recorded in the report of Ms Taouk [18] and the Sentence Assessment Report. [19]
4. The Offender has been diagnosed by Mr Borkowski as suffering from Post-Traumatic Stress disorder (PTSD) and major depressive disorder, with anxious distress.

Likelihood of Reoffending [20] and Prospect of Rehabilitation [21]

1. The Sentence Assessment Report assessed the Offender at a Low risk of reoffending according to the Level of Service Inventory - Revised (LSI-R).
2. Mr Borkowski observed that the Offender presents with a number of strengths and protective factors that suggest a low risk of reoffending. He particularly notes that she appears to have general self-regulations skills, did not report a history indicative of impulsive behaviour, has ability to maintain stable interpersonal relationships, has access to prosocial support networks and peers, and did not provide a history of socializing within a criminal sub-culture. He noted that she had a positive attitude towards study and employment, and a history of being able to maintain employment. Further, he noted that she has no history of serious mental illnesses or serious personality dysfunction. She has no prior criminal history and she demonstrated prosocial values and beliefs and there is nothing to suggest antisocial rationalizations to support a criminal lifestyle. In particular, she had an interest and actively engages in prosocial leisure pursuits and did not appear to have a current substance use problem or gambling disorder.
3. The Offender has undertaken the Traffic Offenders Intervention Program. [22]
4. Overall, I am satisfied that the Offender has a low likelihood of reoffending and excellent prospects of rehabilitation.

Sentence

1. In sentencing the Offender, I have regard to the maximum penalty provided being 10 years imprisonment. Both parties accepted that having considered all possible alternatives, no penalty other than imprisonment is appropriate. [23] In this case, it is necessary to ensure that the Offender is adequately punished, made accountable, her conduct is denounced and the harm done to the Victim is recognised. The sentence must provide for general and specific deterrence, although I do not consider that either specific deterrence or protection of the community require any particular emphasis. The Offender can generally be described as an otherwise law abiding citizen. Following conviction in this matter, she will also be disqualified from driving a motor vehicle.
2. The Offender has been compliant on conditional bail since her arrest however there is no evidence that she served time in custody.
3. But for the plea of guilty, I would have imposed a penalty of 2 years and 6 months imprisonment. In light of the plea, I would reduce this to a period of 1 year and 10 months imprisonment.
4. This leaves me to consider the application of the Offender for her to be considered to serve the term of imprisonment by way of an Intensive Correction Order (ICO) within the community. In terms of section 66(1) of the 1999 Act, I am not satisfied that there is any risk to community safety by making an ICO. In terms of section 66(2) of the 1999 Act, I am unable to be satisfied that in light of the low risk of reoffending, making an ICO is more likely to address the Offender's risk of reoffending than full-time detention. However, that is not a prerequisite for making such an order. [24] In determining whether to make an order, regard must also be had to the purposes of sentencing in section 3A of the 1999 Act.
5. In Whelan v R, [25] the Appellant collided with an oncoming car when he tried to overtake another vehicle that was involved that was travelling in a convoy. A pregnant female passenger of the oncoming car suffered a separated placenta, causing her foetus to be born prematurely four days after the accident and then dying 33 days later when the baby developed an illness. The Appellant was then aged 36 and had a strong subjective case, accepted responsibility for his actions and had genuine remorse and good prospects of rehabilitation. A 2 year ICO was ordered and the Crown appeal was dismissed. In agreeing with that course, Allsop P referred to the imposition of an ICO as a non-custodial sentence. I infer by this that his Honour meant a non-fulltime custodial sentence. Subject to that qualification his Honour stated: The consideration and choice of a sentence for an offence contrary to s 52A(1) may be one of extraordinary difficulty. A sentencing judge may well be faced with an offender of otherwise good character who faces the potentially catastrophic consequences of imprisonment. Yet, that offender has taken the life of another by the kind of misconduct in paragraph (a), (b) or (c). The views expressed in many cases such as R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252 reflect the fact that the charge of a motor vehicle is one that is of great responsibility. The community expects such instruments of danger to be controlled responsibly. General and specific deterrence are important as is the statement of the sentencing court of the public denunciation of dangerous driving. That does not, however, require that every error of judgment, tragic in its consequences, demands incarceration. If it be necessary to state it for any judicial officer, the Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1) requires that a court not sentence an offender to imprisonment unless satisfied that no penalty other than imprisonment is appropriate. The evaluation, here, by the sentencing judge, of an appropriate non-custodial sentence was, in my view, both reasonable and just. [26]
6. The Crown drew the Court's attention to a number of decisions by way of guidance.
7. In R v Townsend [27] the facts were that the driver drifted over the double separation lines as he negotiated a bend in the road colliding with the deceased's vehicle. The moral culpability of the Offender was found to be low and appeal against the sentence of 300 hours Community Service was dismissed.
8. In Hedges v R [28] the Offender was found guilty in a judge alone trial of crossing onto oncoming traffic as he attempted to overtake another vehicle and remained on the wrong side of the road until he collided with an oncoming vehicle, causing the death of its driver. He was travelling at or under the speed limit at the time. The Offender was a young driver aged 19, his licence was suspended at the time, he was diagnosed with PTSD and depression since the accident and good character was found. On appeal, he was resentenced to a penalty of 2 years and 6 months imprisonment comprising of a non-parole period of 1 year and 3 months.
9. In R v Manok [29] the Offender was driving three passengers and was experiencing a high level of fatigue and fell into "micro-sleep" and awoke to see a car was going to collide with the power pole which he tried to evade but failed and struck the pole. He had returned from overseas and been busy setting up a café business and drove for a period of up to 12km whilst "feeling tired". The moral culpability was described as by the primary judge as low and "very close to that end of the spectrum which ends at momentary inattention." The sentence confirmed on appeal for two charges pursuant to section 52A(1)(c) and one pursuant to section 52A(3)(c) of the 1900 Act was an aggregate term of 2 years imprisonment by way of ICO.
10. The Crown concedes that R v Whelan was an example of a sentence where the degree of moral culpability is low and that the offending conduct in Hedges v R was more serious. The Crown also argued that the instant matter is more serious than R v Townsden because of the nature of the ongoing failure to correct or take meaningful action. That submission needs to be considered in light of my own findings.
11. With regards to R v Manok, the Crown argued that it had some similarities as to the level of moral culpability. However, on appeal, Payne JA held that the facts of the case gave rise to a finding of sleep deprivation preceding a journey of about 1.5 hours. His Honour held that the case was not akin to momentary inattention. Wilson J also found sleep deprivation and held that the level of moral culpability was higher than "just above that attributable to momentary inattention, and to some not inconsiderable degree." A further distinguishing feature of that case was that it involved three charges and, in this respect, Wilson J found an inadequate level of accumulation. Despite being satisfied that error had been established, Payne JA and Wilson J dismissed the appeal in the exercise of residual discretion. McCallum JA would have dismissed the appeal outright. In the circumstances, I do not accept that either the primary judge's finding on moral culpability or the sentencing outcome to be of assistance in the present case.
12. Beyond that, I am mindful of principles as to the potential assistance and limitation of using comparable cases. [30] The end result in any case must be a sentence that reflects the objective seriousness of the actual offending and the Offender's subjective case.
13. I have had regard to the typical case described in the Court of Criminal Appeal guideline judgment in R v Whyte.
14. Here, the Offender is an older person to that described in a typical case. The deceased is also not a stranger to her. The plea cannot be described as being of limited utilitarian value and I have found the moral culpability to be at the low level. Both parties accepted that it was open to the Court to order the sentence of imprisonment to be served by way of intensive correction in the community. In all of the circumstances, I am satisfied that the purposes of sentencing would be met by allowing the Offender to serve the period of imprisonment by that means.
15. Both parties were invited to prepare written submissions as to any additional conditions proposed in the event an ICO was imposed. [31] The Crown submitted that the Court would consider the imposition of a home detention condition pursuant to section 73A of the 1999 Act whilst the Defence proposed a home detention or a community service condition.
16. The Crown submitted that its proposal was apposite where the level of culpability rises above momentary inattention and where there has been no explanation by the Offender as to how or why her vehicle left the road and continued for some distance. The Defence contended that the fact that there is no evidence as to how or why the vehicle left the road is not to be held against the Offender. Rather, the case should be addressed as one involving an event slightly more serious than momentary inattention. I have earlier expressed my findings as to objective seriousness and moral culpability. I accept that the absence of explanation as to why the vehicle left the road adds nothing of any consequence to those findings.
17. In all of the circumstances including having regard to the matters in section 66 of the 1999 Act and the contents of the Sentence Assessment Report pursuant to section 69 of the 1999 Act, the Offender is sentenced as follows:
18. [OFFENDER TO STAND] 1. You are convicted. 2. There being no other appropriate penalty, taking into account the plea of guilty you are sentenced to a term of imprisonment for a period of 1 year and ten months. 3. The sentence is to be served by way of an intensive correction order commencing today 11 June 2021 and expiring on 10 April 2023. 4. You are to report to the Community Corrections office at Parramatta as soon as practicable but no later than 7 days from today pursuant to clause 187(1)(a)(ii) of the Crimes (Administration of Sentences) Regulation 2014 (NSW). 5. The standard conditions of the order apply. 1. You must not commit any offence and 2. You must submit to supervision by a Community Corrections Officer. 1. The following additional conditions apply: 1. The order is subject to a community service work condition requiring the performance of 400 hours of community service work. 1. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions or it may include revocation of this order. 2. If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody. 3. Finally, you are directed to attend the Court Registry where a copy of this order will be explained and provided. 4. You are disqualified from driving a motor vehicle for the statutory period of 3 years pursuant to the Road Transport Act 2013 (NSW) but to have a credit for any time served by way of suspension.

Endnotes

1. Hereinafter 'the deceased'.
2. Section 205(2)(d) of the Road Transport Act 2018 (NSW). This provision applies as the offence in question is known as a "major offence". See section 4 of the Road Transport Act 2018 (NSW).
3. Exhibit A, tab 3.
4. (2002) 55 NSWLR 252; [2002] NSWCCA 343.
5. (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [204].
6. Section 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the 1999 Act).
7. R v Palu (2002) 134 A Crim R 174 at [37] (Levine and Hidden JJ agreeing).
8. Section 21A(3)(k) of the 1999 Act and R v Thomson; R v Houlton (2009) 49 NSWLR 383; (2000) 115 A Crim R 104; [2000] NSWCCA 309.
9. R v McIntyre (1988) 38 A Crim R 135.
10. Crown written submissions at [41] and [43].
11. Exhibit 1, tab 1.
12. Exhibit 1, tab 1 p8.
13. Exhibit A, tab 6.
14. Exhibit 1, tab 3.
15. Exhibit 1, tab 4.
16. Exhibit 1, tab 2.
17. Exhibit 1, tab 5.
18. Exhibit 1, tab 3.
19. Exhibit A, tab 6.
20. Section 21A(3)(g) of the 1999 Act.
21. Section 21A(3)(h) of the 1999 Act.
22. Exhibit 1, tab 6.
23. Section 5(1) of the 1999 Act.
24. Mandranis v R [2021] NSWCCA 97 at [49] (per Simpson AJA, Garling and Adams JJ agreeing )
25. [2012] NSWCCA 147.
26. [2012] NSWCCA 147 at [4].
27. [2010] NSWCCA 336.
28. [2011] NSWCCA 263.
29. [2017] NSWCCA 232.
30. Newman v R [2015] NSWCA 270 at [20]-24] (Fagan J with Macfalan JA and Adams J agreeing); Gavin v R [2013] NSWCCA 99 at [41] (Campbell J with Macfarlan JA and Hall J agreeing); Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [303]-[305].
31. MFI 3. 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: 25 June 2021