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District Court 16 August 2006

R v Jones

[2006] NSWDC 43

HomicideTraffic & driving
SENTENCE DANGEROUS DRIVING CAUSING DEATH LEVEL OF MORAL CULPABILITY EFFECT OF AGGRAVATING FACTORS

Citation: R v Jones [2006] NSWDC 43
Court: District Court of New South Wales
Date: 16 August 2006
Judge(s): Nield DCJ

Background

At approximately 2:30 pm on 23 November 2004, the offender was driving a motor vehicle westbound along Lambert Street, Bathurst, when she struck a 74-year-old pedestrian who had begun crossing the road. The pedestrian suffered severe injuries and died as a result of the collision.

Police calculated the offender's speed at the time of impact at 72 kilometres per hour in a 50 kilometre per hour zone. Approximately 90 minutes after the collision, a breath analysis recorded the offender's blood alcohol concentration at 0.080 grams per 100 millilitres, placing her in the middle range. She was also driving without a current licence, her licence having been cancelled in 1992 for unpaid fines.

The offender pleaded guilty to dangerous driving causing death under s 52A of the Crimes Act. The sentencing hearing addressed the objective seriousness of the offence, the aggravating factors present, and various subjective matters including the offender's personal circumstances and the likely hardship to her children.

  • What was the appropriate starting point for the sentence, having regard to the objective seriousness of the offence and the relevant aggravating factors?
  • What discount, if any, should be applied for the guilty plea?
  • Whether special circumstances existed justifying a departure from the standard non-parole to parole period ratio?
  • Whether the non-parole period should be served by way of full-time custody, periodic detention, or a suspended sentence?
  • What weight should be given to hardship suffered by the offender's children as a result of her imprisonment?

Decision

The court identified several aggravating factors: the offender was driving at 72 km/h in a 50 km/h zone; she had a blood alcohol reading of 0.080 at the time of testing (placing her in the middle range); and she was driving without a current licence. The court exercised caution regarding the alcohol factor, noting that without expert evidence it could not determine the offender's precise blood alcohol level at the time of the collision, nor the effect such a level would have had on her driving ability.

The court assessed the offender's moral culpability as falling between mid-range and the higher end of the mid-range, taking into account the combined effect of the aggravating circumstances. It set a starting point of three years' imprisonment, then applied a 15 percent reduction for the guilty plea, resulting in a sentence of two years and six months.

The court found that special circumstances existed, namely that the offender had never previously served a custodial sentence, had excellent rehabilitation prospects, and that both she and her children (particularly the two youngest) would suffer hardship from her imprisonment. These factors justified varying the standard ratio, producing equal non-parole and parole periods of one year and three months each.

The court declined to suspend the sentence but determined that periodic detention was appropriate for the non-parole period, given the special circumstances identified. A licence disqualification of two years and six months was also imposed.

Orders Made

  • The offender was convicted of dangerous driving of a motor vehicle causing death.
  • Sentenced to imprisonment for two years and six months.
  • Non-parole period fixed at one year and three months; parole period fixed at one year and three months.
  • The non-parole period ordered to be served by periodic detention, commencing 26 August 2006 at Bathurst Correctional Centre.
  • Disqualified from holding or obtaining a driver's licence for two years and six months from the date of sentencing.
  • Back-up and related charges dismissed.

Key Takeaways

  • The District Court treated the combination of excess speed, a middle-range blood alcohol reading, and driving unlicensed as cumulative aggravating factors capable of elevating an offence into the upper mid-range of objective seriousness, even where the individual weight of each factor was moderated by evidentiary limitations.
  • Where expert evidence is absent, a sentencing court cannot draw firm conclusions about a defendant's actual blood alcohol level at the time of an offence, or the precise effect of that level on driving capacity, and must limit its findings accordingly.
  • Hardship to an offender's children can constitute a special circumstance under the sentencing framework, justifying adjustment of the non-parole to parole ratio beyond what the legislation would otherwise produce.
  • A guilty plea attracted a 15 percent discount from the starting point sentence, reducing the term from three years to two years and six months.
  • Periodic detention was available as the mode of serving a non-parole period where the sentencing court found full-time custody disproportionate in light of the offender's circumstances, though suspension of the sentence was not considered appropriate on the facts.

Legislation and Cases Referenced

Legislation:
- s 52A, Crimes Act 1900 (NSW) (dangerous driving causing death)
- s 3A, Crimes (Sentencing Procedure) Act 1999 (NSW) (purposes of sentencing)
- s 21A, Crimes (Sentencing Procedure) Act 1999 (NSW) (aggravating and mitigating factors)

Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252