Citation: R v Jojkic, Dragan [2010] NSWDC 155
Court: District Court of New South Wales
Date: 26 March 2010
Judge(s): Nicholson SC DCJ
Background
The offender, a driver with a suspended licence, drove a high-performance eight-cylinder Ford Falcon XR8 utility northbound along a main road in Sutherland on the evening of 20 December 2008. Eleven days earlier, police had personally informed him his licence was suspended due to accumulated demerit points from speeding offences, and had explicitly warned him not to drive.
Travelling at approximately 120 km/h in a 60 km/h zone, the offender's vehicle lost tyre traction while negotiating a curve and crossed the median strip into the path of an oncoming vehicle. The collision killed the driver of the oncoming vehicle, Benjamin Rudzyn, and caused grievous bodily harm to the passenger, Olivia Stennett. Approximately 17 other persons were placed at actual risk. The offender's blood alcohol reading was 0.117 and prohibited drugs were also detected in his blood.
The offender pleaded guilty in the Local Court to manslaughter by gross criminal negligence and to aggravated dangerous driving occasioning grievous bodily harm. Several summary offences were also referred to the District Court for finalisation. The offender himself suffered serious injuries in the collision, and the judgment noted criticism of the standard of his custodial health care following those injuries.
Legal Issues
- What sentence was appropriate for manslaughter by gross criminal negligence in circumstances involving extreme speed, intoxication, and a suspended licence?
- What sentence was appropriate for aggravated dangerous driving occasioning grievous bodily harm arising from the same incident?
- Whether, and to what extent, victim impact statements were admissible and relevant in sentencing, particularly statements describing the emotional effects of a death on surviving family members.
- What discount was warranted for the guilty plea and demonstrated remorse?
- Whether special circumstances existed justifying an adjustment to the standard ratio of non-parole period to total sentence.
Decision
The court conducted a detailed assessment of the objective criminality, describing the combination of gross speed, intoxication, the presence of prohibited drugs, a suspended licence, and a high-performance vehicle on a main road as an extremely serious confluence of aggravating factors. Around 17 people were found to have been placed at actual risk, and the death and grievous bodily harm caused were direct consequences of the offender's conduct.
The court reviewed the offender's subjective circumstances, including his prior speeding and drink-driving offences, his serious injuries sustained in the collision, and the criticism directed at custodial health care. Notwithstanding the personal hardship the offender faced, the court emphasised that the primary focus in sentencing must be the protection of the community. A 25% discount was applied to reflect the guilty plea and genuine remorse.
On the question of victim impact statements, Nicholson SC DCJ examined the limits of what such statements may properly contain. Drawing on the analysis in Previtera (1997), the court confirmed that victim impact statements in death cases that speak only to the emotional effect of the loss on surviving family members are irrelevant to the sentencing task. The court further noted that the responsibility for tendering victim impact statements rests with the prosecution, and that this implies a corresponding responsibility to assist victims in preparing statements in admissible form.
The sentences for the two principal offences were made partly cumulative, producing an overall sentence that reflected the totality of the offending without crushing the offender's prospect of rehabilitation.
Orders Made
- Manslaughter: Non-parole period of 4 years and 9 months; balance of term of 3 years and 6 months; disqualified from driving for 8 years from 26 March 2010.
- Aggravated dangerous driving occasioning grievous bodily harm: Non-parole period of 3 years; balance of term of 1 year and 6 months; disqualified from driving for 8 years from 26 March 2010.
- Sentences partly cumulative, producing an overall sentence of 9 years and 6 months with a non-parole period of 6 years.
Key Takeaways
- The District Court confirmed that where an offender drives at double the speed limit while intoxicated, carrying prohibited drugs and with full knowledge of a licence suspension, the objective criminality of resulting manslaughter is very serious and warrants a substantial custodial sentence.
- A 25% sentencing discount was available for a guilty plea entered at the Local Court stage, combined with demonstrated remorse, even where the objective gravity of the offending was high.
- Victim impact statements in death cases that describe only the emotional suffering of surviving family members fall outside the proper scope of sentencing considerations: they are irrelevant to the sentencing exercise and cannot be taken into account by the court.
- Where disputed aggravating matters are contained in a victim impact statement, the prosecution bears the onus of proving those matters beyond reasonable doubt; if disputed, the statement's author would need to be called as a witness.
- The prosecution's responsibility to tender victim impact statements carries with it an implied obligation to assist victims in preparing statements that comply with admissibility requirements, so that the statements can serve a legitimate purpose in the proceedings.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crimes (Sentencing Procedure) Regulations 2005 (NSW)
- Road Transport (Vehicle Registration) Act 2007 (NSW)
- Road Transport (Driver Licensing) Act 1998 (NSW)
Cases:
- Gladue v The Queen [1999] 1 SCR 688
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby [1977] 1 NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- Salvatore Previtera (1997) 94 A Crim R 76
- R v Sellers (1997) 92 A Crim R 381
- R v Whyte (2002) 55 NSWLR 252