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District Court 24 August 2011

R v Abbas CHOUKEIR

[2011] NSWDC 123

Traffic & driving
CRIMINAL LAW SENTENCE CONVICTED AFTER TRIAL FATHER OF FAMILY KILLED 2 CHILDREN INJURED VICTIM IMPACT STATEMENT

Citation: R v Abbas Choukeir [2011] NSWDC 123
Court: District Court of New South Wales
Date: 24 August 2011
Judge: Cogswell SC DCJ

Background

On 19 May 2009, the offender drove his vehicle along Burwood Road, Belmore at a speed of at least 80 kilometres per hour, some 30 kilometres per hour over the posted 50 km/h limit. A family in a crossing vehicle had stopped, checked for traffic, and then proceeded into Burwood Road. The offender collided with their car, killing the father and seriously injuring two of his four children.

The offender was 19 years old at the time and had a low concentration of cannabis detected in his blood, though the court was not satisfied beyond reasonable doubt that this impaired his driving. He was charged in November 2009 and pleaded not guilty. A jury convicted him on all three counts following a trial in July 2011.

The sentencing proceedings addressed three serious offences under the Crimes Act 1900: one count of driving in a manner dangerous occasioning death, and two counts of driving in a manner dangerous occasioning grievous bodily harm to the two injured children.

  • What weight, if any, should a victim impact statement about the death of a family member carry in sentencing?
  • How should evidence of the children's injuries be taken into account for the two grievous bodily harm counts?
  • What role did the offender's criminal and traffic history play in assessing the appropriate sentence?
  • Whether the principles in Veen v The Queen No 2 (community protection and personal deterrence) applied given the offender's prior driving conduct.
  • How to structure the sentence across three serious offences on the principle of totality.

Decision

On victim impact statements, the court drew a careful distinction between the two parts of the statement provided by the deceased's widow. The portion describing the loss of her husband did not affect the sentence for the death count. Citing the Court of Criminal Appeal's decision in R v Previtera, the court confirmed that the law already recognises the value the community places on human life, and that Parliament's fixing of a ten-year maximum for this offence reflects that recognition. Imposing a harsher sentence because one victim's life is perceived as more valuable than another's would be wholly inappropriate.

For the two grievous bodily harm counts, the court relied on the trial evidence, specifically medical records tendered as exhibits, rather than the victim impact statement, to assess the nature and seriousness of the children's injuries. Sarah El Chami had sustained a fractured pelvis, pulmonary contusion, and a closed head injury. James El Chami sustained a fractured tibia, a forehead haematoma, and a small brain haemorrhage. The court treated these as serious injuries sustained by children under eighteen.

The court addressed the offender's prior record with some nuance. His criminal history included a contravention of an apprehended violence order, an assault, and a drug possession offence. His traffic history included multiple infringement notices over several years, including a failure-to-give-way offence issued just four days before the fatal crash. The court found his record did not aggravate the offences directly, but meant he could not claim the benefit of a clean record in mitigation. Applying Veen v The Queen No 2, the court held that to a limited extent his pattern of inattentive driving justified some weight being given to community protection and personal deterrence.

The court also noted mitigating factors: the offender's youth, his supportive family background, evidence of remorse, and his psychological profile. Having regard to totality across the three offences, the court imposed an aggregate sentence of five years with a non-parole period of three years.

Orders Made

  • Count 1 (driving in a manner dangerous occasioning death): convicted and sentenced to a term of imprisonment (forming part of the aggregate sentence).
  • Count 2 and Count 3 (driving in a manner dangerous occasioning grievous bodily harm to each child): convicted and sentenced to terms of imprisonment (forming part of the aggregate sentence).
  • Related offence of driving with a prescribed illicit drug present (Road Transport (Safety and Traffic Management) Act 1999, s 11B(1)(a)): convicted and fined $100.
  • Total effective sentence: five years imprisonment, with a non-parole period of three years commencing 19 August 2011, expiring 18 August 2014.

Key Takeaways

  • A victim impact statement describing the death of a family member does not increase the sentence for a dangerous driving occasioning death offence. The Court of Criminal Appeal in R v Previtera established that the law already recognises the inherent value of human life, and Parliament's prescribed maximum reflects that.
  • Where multiple victims have suffered injury, the sentencing court relies on medical evidence from the trial record to assess the grievous bodily harm counts, not on descriptions in a victim impact statement.
  • Under Veen v The Queen No 2, a pattern of traffic infringements short of major offences can still, to a limited degree, support considerations of community protection and personal deterrence in sentencing for a serious driving offence.
  • A prior record that includes minor and traffic offences does not aggravate the principal offences themselves, but it does preclude the offender from claiming the benefit of good character as a mitigating factor.
  • The District Court applied the totality principle across three separate serious driving offences arising from a single incident, arriving at an aggregate sentence that reflected the overall criminality without disproportionate cumulation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 11B(1)(a)

Cases
- R v Previtera (1997) 94 A Crim R 76 (NSWCCA)
- Veen v The Queen No 2 (1988) 164 CLR 465 (HCA)
- Regina v Musumeci (NSWCCA, unreported, 30 October 1997)
- Regina v Whyte (2002) 55 NSWLR 252 (NSWCCA)