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District Court 9 October 2008

Regina v Murray Douglas DALE

[2008] NSWDC 343

Traffic & drivingPublic order & justice offences
CRIMINAL LAW SENTENCING DANGEROUS DRIVING CAUSING DEATH

Citation: Regina v Murray Douglas Dale [2008] NSWDC 343
Court: District Court of New South Wales
Date: 9 October 2008
Judge(s): Norrish QC DCJ

Background

The offender was a married farmer in his early thirties from the Gulgong district of New South Wales. On 6 October 2006, after consuming alcohol at a shearing shed, he took a group of friends out on a shooting party in an unregistered Toyota Hilux utility. The vehicle was in a seriously unsafe condition: the rear brakes did not work and the foot pedal did not operate the front brakes, a condition the offender had known about for at least several weeks.

Three passengers rode unrestrained on the open tabletop tray of the vehicle, which was not designed for carrying passengers. During the outing, the offender drove in a manner dangerous to others, and the resulting impact caused the death of one of the passengers, Gerard Haswell.

Following the fatal collision, the offender provided false information to police and approached several witnesses, endeavouring to get them to give false accounts to police. This conduct gave rise to a second serious charge of doing an act with intent to pervert the course of justice.

  • What sentence was appropriate for dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900, which carries a maximum of ten years imprisonment?
  • What sentence was appropriate for the perverting the course of justice offence under s 319 of the Crimes Act 1900, which carries a maximum of fourteen years imprisonment?
  • How should the two principal sentences interact, including the question of accumulation or concurrence?
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the total sentence under the Crimes (Sentencing Procedure) Act 1999.
  • What ancillary orders, including licence disqualification and fines, were appropriate for the remaining offences on the s 166 certificate?

Decision

His Honour treated the dangerous driving causing death as the more serious of the two principal offences, notwithstanding that the perverting the course of justice offence carries a higher maximum penalty. The condition of the vehicle, the offender's knowledge of its defective brakes, and the carrying of unrestrained passengers on an open tray were all significant aggravating factors. The offender's post-offence conduct in attempting to obstruct the investigation compounded the overall criminality.

For the perverting the course of justice offence, the offender received a sentence of 15 months imprisonment by way of periodic detention, commencing 25 October 2008. For the dangerous driving causing death, the offender received a total sentence of two and a half years, with a non-parole period of 18 months (rather than the standard proportion), also to be served by way of periodic detention, commencing 25 April 2009. The sentences were partially accumulative.

His Honour found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999, citing the partial accumulation of sentences (which itself required adjustment of the non-parole period), and the offender's need for an extended period of supervision and counselling upon release. The offender was serving his first term of imprisonment and, despite no identified criminogenic issues, the court considered Probation and Parole Service supervision during the one-year balance of sentence to be appropriate.

For the remaining matters on the s 166 certificate, the offender was fined and a two-year licence disqualification was imposed. Numerous back-up and related charges, including a charge of failing to stop and assist after impact causing injury, were dismissed.

Orders Made

  • Dangerous driving occasioning death: Convicted; sentenced to imprisonment with a non-parole period of 18 months, total sentence of 2 years and 6 months, to be served by way of periodic detention. Non-parole period commences 25 April 2009, expires 24 October 2010; total sentence expires 24 October 2011. Release to parole directed at conclusion of non-parole period.
  • Perverting the course of justice: Convicted; sentenced to 15 months imprisonment by way of periodic detention, commencing 25 October 2008, expiring 24 January 2010.
  • Special circumstances found under s 44 Crimes (Sentencing Procedure) Act 1999, adjusting the non-parole period to parole period ratio.
  • Driving in a manner dangerous: Disqualified from holding a driver's licence of any type for 2 years, commencing 9 October 2008, expiring 8 October 2010. Licence surrendered to the court.
  • Driving with three unrestrained passengers (s 166 certificate): Fined $100 (maximum $110). Twenty-eight days to pay.
  • Using unregistered registrable Class A motor vehicle (s 166 certificate): Fined $500 (maximum 20 penalty units). Twenty-eight days to pay.
  • All back-up charges and related charge G (failure to stop and assist after impact causing injury) dismissed at the Crown's request.
  • Order made for fingerprints to be taken.

Key Takeaways

  • The District Court confirmed that the relative seriousness of two offences is not determined solely by comparing maximum penalties: dangerous driving causing death was treated as the principal and more serious offence even though perverting the course of justice carries a higher statutory maximum.
  • Where a vehicle is driven with known, serious mechanical defects (here, effectively no functioning brakes) and carries unrestrained passengers on an open tray, those circumstances weigh heavily in assessing the objective gravity of a dangerous driving causing death offence.
  • Post-offence conduct aimed at obstructing a police investigation, including pressuring witnesses and providing false information, forms a distinct and significant aggravating factor that attracted a separate substantial sentence in this matter.
  • Special circumstances justifying a longer-than-standard parole period can be established by a combination of factors, including the structural effect of partially accumulative sentences and the identified need for supervision and counselling for a first-time prisoner.
  • Periodic detention was available as the mode of serving both custodial sentences in this case, reflecting the offender's personal circumstances, though the court made clear that any subsequent driving whilst disqualified would be treated seriously.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(1)(c), 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 66(2)
- Criminal Procedure Act 1986 (NSW), ss 166, 167

Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Henry (1999) 47 NSWLR 346
- R v Wong (1999) 48 NSWLR 340
- R v Whyte (2002) 55 NSWLR 252
- Markarian v R [2005] HCA 25
- R v Errington [1999] NSWCCA 18; (2005) 157 A Crim R 553
- R v Berg (2004) 41 MVR 399
- R v Tzanis (2005) 44 MVR 160
- R v Takoai (2004) 149 ACR 593
- R v Gardiner [2004] NSWCCA 365
- R v Khatter [2000] NSWCCA 32
- Thomson and Houlton (2000) 49 NSWLR 383
- R v Sharma [2002] NSWCCA 142
- R v Pisciuneri [2007] NSWCCA 265
- R v Giang [2005] NSWCCA 387
- R v Bloomfield (1998) 44 NSWLR 734
- Pearce v The Queen (1998) 194 CLR 610
- Veen (No 2) v The Queen (1988) 164 CLR 365
- R v Elyard [2006] NSWCCA 43
- R v Zamagias [2002] NSWCCA 17
- Douar v The Queen (2005