Wraydeh v R

Objective features

1. In short, the two substantive offences were closely connected. As will be shown, they were both serious examples of their type, and the failure to stop offence was deplorable.
2. A statement of agreed facts was tendered, and summarised by the learned sentencing judge in the remarks on sentence ("ROS"), and it is upon that summary that the following sketch is based.
3. On Sunday 7 August 2016, the applicant and the deceased, his then-romantic partner, Ms Georgina Abdullah, left their home in the western suburbs of Sydney in a white Mitsubishi Lancer. The applicant was driving, despite being disqualified from doing so at the time, and the victim was seated in the front passenger seat. The Mitsubishi Lancer and the numberplates attached to it had been stolen that weekend, and the applicant was aware of those facts.
4. Shortly before 11 am, the applicant was driving the vehicle in a westerly direction along a street in Punchbowl when he failed to negotiate a sweeping right bend, and crossed double unbroken lines onto the wrong side of the road. It was not alleged that excessive speed had caused the applicant to lose control of the vehicle. There was a Honda CRV travelling in the opposite direction; that is, heading east on that side of the road. The person driving the Honda braked suddenly, which led the applicant to lose control of his vehicle.
5. The Mitsubishi Lancer spun to the right, causing the passenger side of the vehicle to collide heavily with the front passenger side of the Honda CRV. The force of the impact pushed the Honda CRV backwards.
6. The deceased, who was seated in the front passenger seat of the Mitsubishi, took the force of collision.
7. Those events formed the basis of the fatal driving offence.
8. A short time after the collision, several bystanders approached the Mitsubishi. The applicant was observed to be cradling the deceased and screaming for her to wake up. He was yelling "Gina Gina can you hear me". After the deceased took a few breaths, the applicant was heard to say "She's ok… she's just in shock". Witnesses described the applicant as being distressed after the collision. When asked by a member of the public who the injured passenger was, the applicant confirmed that she was his partner.
9. Witnesses and CCTV footage confirmed that, shortly after that, the applicant used an item of clothing to wipe down the driver's side door of the Mitsubishi in an effort to remove fingerprints, and separately rummaged through the vehicle for his wallet.
10. The applicant did not remain at the scene and render assistance to the deceased. Within minutes, he had fled the scene. At the time, no emergency personnel were there.
11. Those events formed the basis of the failure to stop offence.
12. A short time after the applicant departed, the brother of the applicant arrived, as did ambulance officers. The deceased was conveyed to hospital in a critical and unstable condition. She had sustained a severe closed head injury, multiple rib fractures, a vertebrae fracture, multiple pelvic bone fractures, and lacerations to the spleen and kidney.
13. At 6:10 pm that evening, she was pronounced dead. The death was said to be caused by the multiple injuries sustained during the collision. It was also the opinion of the forensic pathologist who conducted her autopsy that she was likely under the influence of methylamphetamine, oxycodone and ketamine at the time of the collision.
14. In contrast, the proceedings on sentence did not feature any evidence of intoxication at the time of the collision on the part of the applicant.
15. The vehicle that the applicant had been driving was mechanically examined after the collision. No faults were detected that could have contributed to what occurred.
16. The applicant remained at large until 20 February 2018 when the police requested an interview from him. He was charged with the two offences almost exactly two years after they were committed, on 2 July 2018.

Objective seriousness

1. As for the objective seriousness of the driving offence, in light of the absence of evidence of speeding, the sentencing judge noted that the offending itself was confined to the applicant having allowed the vehicle to cross onto the wrong side of the road, that being a relatively narrow suburban street, in broad daylight, into oncoming traffic.
2. Whilst noting the extremely grave and tragic consequences of the dangerous driving offence, the sentencing judge stated that the "offence cannot objectively be described as a very serious example of dangerous driving" (ROS 3.2).
3. The offence was not characterised as one of "momentary inattention" nor as "a complete abandonment of responsibility"; it was found to involve "a gross failure to responsibly manage the vehicle" (ROS 3.8). As a result, it was found that the applicant's moral culpability "lies along the continuum between those indicators", to which I have just referred.
4. In short, the sentencing judge described the dangerous driving causing death to be "towards the middle of the range of objective gravity" (ROS 3.11).
5. The offence of failing to stop and render assistance was also found to be "towards the middle of the range of objective gravity" (ROS 3.13). It was noted by her Honour that the applicant must have known that the deceased was gravely injured. Her Honour rejected the proposition that the applicant believed that she was only suffering from shock.
6. The sentencing judge found that the behaviour of the applicant was marked by "callous disregard for the welfare" (ROS 3.22) of the deceased. This finding was made in light of the applicant retrieving his wallet from the glovebox and wiping down the driver's side door, instead of providing whatever help he could to his gravely injured partner.

Subjective features

1. The subjective circumstances of the applicant were largely unfavourable. They were also recounted in the ROS, which featured acceptance of the contents of psychiatric and psychological reports tendered by the applicant.
2. He was aged 38 at the time of offending, 41 years at the time of sentence, and is aged 42 presently.
3. The sentencing judge noted that the applicant came from an entirely supportive and conventional family life, and had parents who were always willing to accommodate him. For unexplained reasons, however, he resisted discipline both at school and at home. As a result, he was expelled from school in year 9, and left the family home at the age of 15.
4. His life since then had largely been marked by drug abuse and criminal offending, with some stretches of incarceration. He had a limited employment history, save for one year as a concreter at the age of 27, and a separate year participating in a work release program.
5. Specific deterrence and the protection of the community loomed large in the ROS, because of the criminal antecedents of the applicant. He had been convicted of four offences of driving dangerously, and of two offences of driving recklessly during a police pursuit. Those convictions spread across a period of almost two decades. Two dangerous driving offences are of particular note: in 2006 the applicant was exceeding 140km/h in a 60km/h zone whilst evading the police and nearly colliding with several vehicles; two years later, the applicant was caught up in a police pursuit in which he travelled at up to 180km/h in a 60km/h zone.
6. Separately, in 2012 and 2014 the applicant was convicted of driving recklessly during a police pursuit. The latter of the offences involved the applicant accelerating away from the police, colliding with another vehicle, driving onto a footpath, and later into a reserve, where the applicant flattened several wooden bollards erected to restrict vehicle access into the reserve.
7. In addition, his criminal history featured other offences. To recount one serious offence, in 2008 the applicant was sentenced for the offence of robbery in company causing wounding to a term of imprisonment for 6 years 6 months, with a non-parole period of 2 years 9 months.
8. The fact that the applicant committed these two serious offences whilst on parole for an offence of driving recklessly during a police pursuit was found by her Honour to be a significant aggravating factor.
9. Whilst the applicant was reported to have suffered numerous head injuries arising out of road accidents, the sentencing judge found it difficult to evaluate the impact that the alleged concussions may have had, in light of an absence of expert medical opinion.
10. It was accepted by the sentencing judge that the applicant suffered from poor intellectual functioning, a consequence of his long-term drug abuse that commenced at the age of 15. After repeated attempts at drug abstinence whilst in custody between 2010 and 2015, his drug abuse remained largely unabated and unresolved as at the date of sentence.
11. His drug dependency had also led to symptoms of anxiety and depression, but no finding by the sentencing judge was made of any major mental illness or disorders.
12. His prospects of rehabilitation were found by the sentencing judge to be "dim" (ROS 7.14), and the sentencing assessment report placed him at a "medium to high risk of reoffending" (ROS 5.23).
13. Her Honour found that the applicant also refused to accept responsibility for the offending, demonstrated to some extent by a false statement made to a psychiatrist about the aftermath of the collision. The sentencing judge found that his refusal to accept responsibility adversely affected the integrity of his expressions of remorse about the death of his partner.
14. Each of the sentences imposed had a 25% discount applied to it, reflective of an early plea of guilty in the Local Court.
15. Finally, as I have said, a measure of accumulation between the sentences was adopted, in order to reflect the totality of the applicant's criminality.

Ground of appeal

1. In support of the application for leave to appeal against sentence, the following ground was notified and pressed at the hearing before this Court: Ground 1: The sentence was manifestly excessive.

Submissions of the applicant

1. The nub of the argument that the overall sentence was manifestly excessive was that, even though the sentencing judge had found that the fatal driving offence could not objectively be described as a very serious example of dangerous driving, its head sentence of 5 years 3 months is unreflective of that. The proposition was developed by the point that the starting point of that head sentence, before the application of the 25% discount, must have been 7 years.
2. Furthermore, the applicant relied upon sentencing statistics from the Judicial Commission for the offence of dangerous driving occasioning death, to submit that a sentence of 5 years 3 months is at the upper end of the sentencing range, and not one to be expected for an offence that had been found to be below mid-range of objective seriousness.
3. It was also said in written submissions that there was a real risk that the sentencing judge may have placed too much weight on the extensive and unfavourable criminal history of the applicant, leading to a sentence which was disproportionate to the objective seriousness of the offence.
4. In circumstances in which the applicant had pleaded guilty at the earliest available opportunity and the offending was below the mid-range of objective seriousness, it was submitted that the sentence is plainly unjust, as a result the overall sentence is manifestly excessive, and a lesser sentence is warranted in law.
5. In oral submissions, the applicant emphasised that, irrespective of the unfavourable subjective case of the applicant, the starting point of the driving dangerous offence was simply not justified and manifestly excessive.
6. Whilst accepting that the objective seriousness of the offence had been found to be towards the "middle of the range of objective gravity" (ROS 3.11), counsel reminded the Court that there had simply been no finding that the applicant had been speeding, or under the influence of drugs or alcohol.
7. It was also said that the accumulation of sentence for the failure to stop offence "on top" of the sentence for the fatal driving offence was very significant, because the final result is that 21 months of a total of 2 years 3 months (or 27 months) for that offence was cumulated.
8. Although counsel accepted that there were some aggravating factors pertaining to that offence, she emphasised that the applicant at the time of the offending was in a distressed state, he correctly identified the deceased as his partner, and the offence was not a situation whereby an offender abandoned the victim and left the scene in an isolated area. In contrast, the offence had occurred in a visibly public area. I understood the submission to be that, in the circumstances, the dying woman would have received treatment in any event, despite the flight of the applicant.

Determination of single ground

1. In the circumstances that I have recounted, I believe that I can be concise.
2. I do not propose to discuss comparative sentences countenanced or interfered with by this Court, except to say that, since the promulgation of the guideline judgment in R v Whyte (2002) 55 NSWLR 252, there has been an obvious trend over the past 20 years towards the imposition of more severe sentences in more serious fatal driving cases.
3. Despite the fact that, on the evidence, the extremity of the driving of the applicant that morning is inexplicable, I approach the matter on the basis that, because it was incumbent upon the Crown to prove aggravating features beyond reasonable doubt on sentence, the applicant was neither driving at high speed, nor intoxicated by alcohol, nor by prohibited or unprescribed drugs.
4. Having said that, this was not a case featuring a motor vehicle that strayed onto the wrong side of the road for half a second, and just "clipped" an oncoming vehicle. Nor was it a case in which momentary inattention, such as glancing at the in-car media panel for a moment, led to a fatal outcome. As the sentencing judge found, this matter was well away from that lower end of the spectrum. The time and distance over which the Mitsubishi was on the wrong side of the road was extended. It is also noteworthy that, ultimately, the vehicle driven by the applicant ended up colliding with the gutter on completely the wrong side of the road; in other words, having completely traversed the path of oncoming traffic.
5. Furthermore, to adopt the characterisation of senior counsel for the applicant at first instance, his heartless conduct after the collision founding the failure to stop offence was "disgraceful". And the focus of the applicant on the removal of scientific evidence and the wallet that could identify him as the driver showed an engaged and self-centred mind, not a panicked or overly distressed one.
6. The criminal record of the applicant demonstrated, in a nutshell, that the criminal justice system had for years been seeking to deter him from driving in such a way that someone could be seriously harmed or killed. That effort failed, and precisely what the road rules and the system of punishment for their infringement had been trying to forestall ended up occurring. And it did so whilst the applicant was on parole for driving recklessly during a police pursuit.
7. In other words, the death of the deceased must be seen in the context of a wilful refusal to obey the rules of the road over many years, culminating in tragedy.
8. It is true that the starting point of the head sentence of the fatal driving offence needed to reflect the comparatively limited finding about objective gravity. But it also needed to reflect all objective and subjective features of the matter, other than the utilitarian discount. It was a matter for the instinctive synthesis of the sentencing judge as to how that starting point was to reflect, in particular, the very adverse findings about subjective matters.
9. As for the measure of cumulation within the sentence structure, as the diagram demonstrates it was significant. But it is to be recalled that the failure to stop offence had the same maximum penalty as the fatal driving offence. And the former was a serious example indeed of that kind of offending. Although closely related chronologically, the two offences focused on different criminal liability and different moral culpability. In particular, the fatal driving offence could have readily been committed without the failure to stop and assist offence. The significant measure of cumulation adopted by the sentencing judge in the circumstances of this case was, in my opinion, open.
10. Finally, the starting point of 7 years for the fatal driving offence was, I agree, stern, in light of the maximum penalty of imprisonment for 10 years, and the findings about objective gravity. And I also agree that the starting point had the effect that the sentence for that offence, and the ultimate overall sentence, are stern as well. But neither that starting point, nor the discounted sentence ultimately imposed, nor the overall sentence, can be said to be patently beyond the discretion reposed in the sentencing judge, so as to demonstrate the error upon which the ground is founded.
11. For those reasons, although the ground is sufficiently arguable to justify a grant of leave, the appeal against sentence should be dismissed.

Orders

1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.
2. N ADAMS J: I agree with Button J.

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: 27 November 2020