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District Court 3 April 2009

R v Thai

[2009] NSWDC 57

HomicideTraffic & driving
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON DRIVING OFFENCES TEST OF LIABILITY CRIMINAL LAW

Citation: R v Thai [2009] NSWDC 57
Court: District Court of New South Wales
Date: 3 April 2009
Judge(s): Murrell SC DCJ

Background

The offender pleaded guilty on the trial date to dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900, arising from a collision at an intersection in Smithfield on 25 September 2006. He had been driving south along Cumberland Highway within the speed limit when he passed through a red light without slowing, striking the deceased's vehicle and causing the deceased's death. The offender sustained a head injury in the collision and had no clear memory of the event.

The agreed cause of the offender's lapse was momentary inattention. He had suffered significant personal losses in the weeks before the accident: his brother, to whom he was close, had died about two months earlier, and his estranged wife had died suddenly just two weeks before the collision. The court accepted that these bereavements explained his distraction at the intersection.

A contested factual question arose at sentencing about how the deceased had entered the intersection, with the defence arguing an alternative scenario that would have reduced the offender's relative culpability.

  • Whether the deceased had entered the intersection lawfully (on a green light from Brennan Street) or had attempted an illegal right-hand turn, as the defence contended
  • Whether the deceased's manner of driving was relevant to the offender's culpability under s 52A(1)(c) of the Crimes Act 1900
  • Where on the spectrum of culpability the offender's conduct fell, and what sentence was appropriate

Decision

The deceased's manner of driving: The court rejected the defence's alternative scenario. Evidence of the traffic light phasing, the positions and accounts of other southbound drivers, and the opinion of the Crown's accident reconstruction expert all pointed to the deceased having entered the intersection from Brennan Street on a green light. The defence expert, Mr Joy, conceded that the prosecution scenario was possible, and his own concession about post-impact vehicle rotation actually supported the Crown's account. The court found beyond doubt that the deceased entered lawfully.

Relevance of the deceased's conduct to liability: The court confirmed that, as a matter of law, an offender's culpability under s 52A(1)(c) is assessed by reference to the offender's own conduct, not the deceased's. The only avenue for a deceased's driving to bear on the charge is the statutory defence in s 52A(8), which requires the accused to establish that the death was "not in any way attributable" to the manner in which the accused drove. There is no mechanism under s 52A for apportioning responsibility between the accused and the deceased in the way that would occur in civil proceedings.

Objective seriousness and sentence: Applying the guideline judgments in R v Jurisic and R v Whyte, the court placed the offender's conduct toward the low end of the culpability spectrum, though not at its very lowest point, because the inattention lasted five to six seconds. There were no aggravating features. The court declined to impose a suspended sentence, finding that would be too lenient given that the conduct resulted in a death. Despite a pre-sentence report assessing the offender as unsuitable for periodic detention, the court disagreed and imposed a sentence of periodic detention.

Orders Made

  • Periodic detention ordered
  • Non-parole period of 22 months
  • Balance of term of 8 months

Key Takeaways

  • Under s 52A(1)(c) of the Crimes Act 1900, a court assesses an accused's culpability by reference to the accused's own driving conduct, not the conduct of the deceased. Apportionment of responsibility between the accused and a deceased, of the kind available in civil proceedings, has no place under this provision.
  • The statutory defence in s 52A(8) is narrow: it requires the accused to establish that the death was "not in any way attributable" to the accused's manner of driving, a high threshold.
  • Momentary inattention lasting five to six seconds, with no aggravating features, placed the offender near but not at the very lowest end of the culpability spectrum identified in R v Jurisic and R v Whyte.
  • A suspended sentence was found to be too lenient where the offender's conduct, though inadvertent and of low moral culpability, caused a death and did not sit at the absolute lowest end of the spectrum.
  • Work and family commitments alone do not render an offender unsuitable for periodic detention; the District Court was prepared to depart from the assessment in a pre-sentence report on that point.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A (dangerous driving occasioning death; statutory defence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 12, 21A(2), 21A(3), 66

Cases:
- R v Jurisic (1998) 45 NSWLR 209 (guideline judgment on dangerous driving sentencing)
- R v Whyte [2002] NSWCCA 343 (guideline judgment; typical case and culpability spectrum)
- R v Khatter [2000] NSWCCA 32
- R v Samadi [2006] NSWCCA 308 (requirement for clear finding on culpability continuum)