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District Court 20 April 2007

R v HAOUI

[2007] NSWDC 139

Assault & violenceTraffic & driving
CRIMINAL LAW SENTENCE GRIEVOUS BODILY HARM DRIVING AT A SPEED DANGEROUS LENGTHY DELAY

Citation: R v HAOUI [2007] NSWDC 139
Court: District Court of New South Wales
Date: 20 April 2007
Judge(s): Berman SC DCJ

Background

The offender, a 19-year-old man at the time of the offence, was found guilty after trial of driving at a speed dangerous to the public whereby grievous bodily harm was occasioned. The offence occurred on a suburban street in Rockdale, where an expert witness calculated the offender's minimum speed at 91 kilometres per hour in a 50 km/h zone, on a wet road at 5 o'clock in the evening.

The offender's vehicle struck the rear of a utility that had pulled out of a driveway. The passenger in that vehicle sustained a fractured cheekbone requiring surgery, though he was left with no lasting disabilities. The court noted this injury fell at the low end of the grievous bodily harm scale, and that the driver of the other vehicle had himself seen the offender's car before pulling out, though little weight was placed on that circumstance.

By the time of sentencing, four years had elapsed since the offence. The offender was by then 23 years old, had no criminal history beyond traffic matters, and was working full-time in his family's cleaning business. The delay in proceedings was substantially attributable to the Crown rather than the offender.

  • Whether a sentence of imprisonment was warranted given the objective gravity of the offence, the offender's personal circumstances, and the lengthy delay in proceedings
  • Whether any term of imprisonment should be suspended or served by way of periodic detention
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio
  • Whether the automatic three-year licence disqualification should be reduced

Decision

The court found that the offender's decision to drive at 91 km/h on a wet suburban street was deliberate, not a momentary lapse in judgment. Applying the guideline judgments in R v Jurisic and R v Whyte, the court placed the conduct in an intermediate category: not mere misjudgement, but also not a case where the offender had entirely abandoned responsibility. The deliberate nature of the risk-taking required a sentence that reflected the objective gravity of the conduct and served as a general deterrent.

The court acknowledged significant mitigating factors: the offender's youth at the time, his otherwise good character, his supportive background, strong references, and particularly the four-year delay in proceedings, most of which was attributable to the Crown. However, the court noted a qualification: the offender must have known he was driving dangerously, and a plea of guilty at an earlier stage would have avoided much of the delay.

Although imprisonment is a sentence of last resort under the Crimes (Sentencing Procedure) Act, the court was satisfied a custodial term was necessary to reflect the seriousness of the conduct. Full-time custody was rejected in favour of periodic detention, recognising the offender's positive qualities and potential contribution to society. Special circumstances were found, given this was the offender's first custodial sentence and his traffic history indicated an extended period of supervision on parole would be beneficial.

The automatic three-year licence disqualification was reduced to 18 months to reflect the offender's reliance on his licence for his current occupation.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of nine months and a head sentence of eighteen months, to be served by way of periodic detention commencing at the Parramatta Periodic Detention Centre on 5 May 2007
  • The offender was disqualified from driving for a period of eighteen months (reduced from the automatic three-year period)

Key Takeaways

  • Deliberate high-speed driving on a suburban street, even without a history of serious criminal offending, can attract a sentence of imprisonment under the principles in Jurisic and Whyte, which were designed to increase sentencing levels for dangerous driving offences.
  • A conviction for dangerous driving occasioning grievous bodily harm does not require conduct at either extreme of the Jurisic spectrum: cases involving deliberate speed but no other indicia of abandoned responsibility may fall in the middle category.
  • Lengthy pre-sentence delay, particularly where attributable to the Crown, is a recognised mitigating factor that courts may account for through a measure of leniency in sentencing, though the weight given to delay may be qualified where the offender knew of the criminality of his conduct and could have pleaded guilty earlier.
  • Under the Crimes (Sentencing Procedure) Act, imprisonment remains a sentence of last resort, but the objective gravity of an offence can require a custodial term even for an offender of otherwise good character.
  • The standard three-year automatic licence disqualification is subject to reduction where the sentencing court identifies specific circumstances, such as occupational necessity, that warrant a lesser period.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act (NSW), including s 5 (imprisonment as last resort)

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