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District Court 6 August 2010

R v Smith

[2010] NSWDC 202

Assault & violenceTraffic & driving
CRIME SENTENCE

Citation: R v Smith [2010] NSWDC 202
Court: District Court of New South Wales
Date: 6 August 2010
Judge(s): Norrish QC DCJ

Background

In the early hours of 2 June 2009, the offender drove a stolen taxi cab at high speed along Punchbowl Road, Wiley Park. Witness accounts and reconstruction evidence established that the vehicle was travelling well in excess of safe speeds before it ran a red light at the intersection of King Georges Road and Punchbowl Road, colliding heavily with a Nissan 200SX that was proceeding lawfully through a green light.

The driver of the Nissan was ejected from the vehicle and pronounced dead at the scene. The front passenger was also ejected and suffered critical, life-threatening injuries, including skull fractures, liver lacerations, rib fractures, and a small intracranial haemorrhage. He spent nearly two weeks in intensive care requiring mechanical ventilation.

After the collision, the offender fled the scene without rendering any assistance. He had been driving whilst disqualified and was aware the vehicle had been taken without the owner's consent. Two juvenile co-offenders were also present in the vehicle.

  • The appropriate sentences for driving in a manner dangerous to the public causing death (the principal offence) and driving in a manner dangerous causing grievous bodily harm
  • How to structure the aggregate sentence, including the extent to which individual terms should accumulate or be concurrent
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 to justify a non-parole period shorter than the statutory default
  • The correct approach to Form 1 matters (failing to stop and assist after a fatal impact, and knowingly driving a vehicle taken without consent) and their effect on the principal sentence
  • Whether a compensation order was appropriate under the Victims Support and Rehabilitation Act 1996

Decision

The court sentenced the offender across three layers. The summary offence of driving whilst disqualified attracted nine months and one week imprisonment, commencing 3 December 2009. The serious indictable offence of dangerous driving causing grievous bodily harm was sentenced separately to three years and one month, commencing 3 January 2010 and accumulating partially upon the first term. No non-parole period was fixed for the grievous bodily harm offence, given its relationship to the overall structure.

For the principal offence of dangerous driving causing death, the court took the two Form 1 matters into account. It imposed a non-parole period of two years and two months commencing 3 February 2011, accumulating by one year upon the grievous bodily harm sentence, with a balance of sentence of two years and five months expiring 2 September 2015. The total effective sentence amounted to six years imprisonment with a non-parole period of approximately three years and seven months.

The court found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act, warranting a longer-than-usual balance of term. The primary reasons were the offender's need for extended supervision to address psychological difficulties, drug dependence, and the challenges of reintegrating into the community after a substantial period of custody.

A compensation order of $18,500 was made in favour of a member of the Ahmad family pursuant to s 77B of the Victims Support and Rehabilitation Act 1996.

Orders Made

  • Summary offence (driving whilst disqualified): convicted and sentenced to 9 months and 1 week imprisonment, commencing 3 December 2009, expiring 9 June 2010
  • Dangerous driving causing grievous bodily harm: convicted and sentenced to 3 years and 1 month imprisonment, commencing 3 January 2010, expiring 2 February 2013 (no non-parole period fixed)
  • Principal offence (dangerous driving causing death, with Form 1 matters taken into account): convicted and sentenced to a non-parole period of 2 years and 2 months commencing 3 February 2011, expiring 2 April 2013; balance of sentence of 2 years and 5 months expiring 2 September 2015
  • Special circumstances finding made under s 44 Crimes (Sentencing Procedure) Act 1999
  • Compensation order of $18,500 payable to M. Ahmad pursuant to s 77B Victims Support and Rehabilitation Act 1996
  • Disqualification periods to be fixed after confirmation of the expiry of the existing disqualification

Key Takeaways

  • The District Court structured partially accumulative sentences across three offences arising from the same criminal episode, reflecting the distinct harm caused to different victims while avoiding a crushing total sentence.
  • Where multiple serious offences arise from a single incident involving separate victims, partial accumulation rather than full concurrency may be appropriate to reflect the individual gravity of each offence.
  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 can be supported by the offender's need for extended post-release supervision to address psychological difficulties, substance dependence, and reintegration challenges.
  • Form 1 matters are taken into account in sentencing for the principal offence, increasing its seriousness without adding separate sentences, consistent with the guideline approach confirmed in cases such as R v Janceski.
  • Compensation orders under s 77B of the Victims Support and Rehabilitation Act 1996 remain available to sentencing courts in conjunction with terms of imprisonment for serious driving offences causing death or injury.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c), 52AB(1), 154A(1)(b)
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 166
- Victims Support and Rehabilitation Act 1996 (NSW), s 77B

Cases
- R v Whyte (2002) 55 NSWLR 525
- Regina v Skrill [2002] NSWCCA 484
- R v Jurisic (1998) 48 NSWLR 209
- R v Henry (1999) 46 NSWLR 346
- R v Rosenthal [2008] NSWCCA 149
- Pearce v The Queen (1998) 194 CLR 610
- Veen (No 2) v The Queen (1988) 164 CLR 365
- Thomson and Houlton [2000] NSWCCA 309 (49 NSWLR 383)
- R v Read [2010] NSWCCA 78
- R v Janceski [2005] NSWCCA 281