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Local Court 14 October 2011

Director of Public Prosecutions v Anthony David MARKOVSKI

[2011] NSWLC 31

Traffic & driving
CRIMINAL LAW NEGLIGENT DRIVING CAUSING DEATH NEGOTIATED PLEAS OF GUILTY YOUNG OFFENDER WITH NO PRIOR RECORD REQUIREMENT FOR FULL TIME CUSTODIAL PENALTIES

Citation: Director of Public Prosecutions v Anthony David Markovski [2011] NSWLC 31
Court: Local Court of New South Wales
Date: 14 October 2011
Judge(s): Magistrate P.S. Dare SC

Background

On 5 February 2010, the offender was driving south on the Olympic Highway near Wagga Wagga after an overnight journey from Brisbane, where he had purchased a vehicle. He crossed unbroken double centre lines into the path of an oncoming Mazda. The collision killed both occupants of the Mazda, May Edna McDonald (aged 56) and Ivy Violet Cardwell (aged 91), and caused serious spinal injuries to his passenger, Alana Mercuri.

The offender was originally charged with two counts of dangerous driving causing death and one count of dangerous driving causing grievous bodily harm. Following negotiations with the Director of Public Prosecutions, those charges were withdrawn and the offender pleaded guilty to the lesser offences of negligent driving causing death (two counts) and negligent driving causing grievous bodily harm (one count), all under the Road Transport (Safety and Traffic Management) Act 1999.

No aggravating factors such as speed, alcohol, drugs, or sustained aberrant driving were present. The offender told investigators he had swerved to avoid a small animal. The court proceeded on the basis that his culpability amounted to momentary inattention or a lapse in judgment.

  • Whether full-time custodial sentences were required for offences of negligent driving causing death and grievous bodily harm, in the absence of conventional aggravating factors
  • How sentences for multiple offences arising from the same incident should be structured, including the extent to which they should run concurrently or cumulatively (the totality principle)
  • Whether special circumstances existed justifying a departure from the standard ratio of non-parole period to head sentence
  • The appropriate discount for negotiated pleas of guilty entered at a relatively late stage
  • The proper approach to victim impact statements and the taking of a life as a sentencing consideration

Decision

The Magistrate accepted that the offender's culpability was at the lower end of the range for these offences, characterised as momentary inattention or misjudgement rather than sustained dangerous conduct. The court emphasised that it would be wrong to reason backwards from tragic consequences to a finding of serious criminality. Nevertheless, the taking of two lives and the causing of significant bodily harm required the court to impose full-time custodial sentences. Suspension was not appropriate.

The court applied a discount of 15 per cent for the pleas of guilty. Although the pleas were entered late in proceedings, they were the product of negotiation that resolved charges carrying substantially higher maximum penalties. The court noted the offender's youth, his absence of prior convictions, his remorse, and positive pre-sentence material from Corrections Victoria.

On the question of accumulation, the Magistrate applied the totality principle: sentences for separate offences involving separate victims should not simply be made fully concurrent, but the overall sentence must remain proportionate to the offender's total criminality. The two death counts were partially accumulated. The grievous bodily harm count, concerning Alana Mercuri, was subsumed within the other sentences given the circumstances.

Special circumstances were found to exist, justifying a longer-than-standard parole period relative to the non-parole period. The court directed supervision by the Probation and Parole Service as a condition of parole, acknowledging the offender's rehabilitation needs and the relatively short total custodial term.

Orders Made

  • Negligent driving causing death (McDonald): Convicted and sentenced to a fixed term of 2 months imprisonment, commencing 14 October 2011 and expiring 13 December 2011. Disqualified from holding any driver's or rider's licence for 12 months from 14 October 2011.
  • Negligent driving causing death (Cardwell): Convicted and sentenced to 10 months and 6 days (after 15% guilty plea discount), with a non-parole period of 2 months commencing 13 November 2011 and expiring 12 January 2012; balance of parole period of 8 months and 6 days expiring 18 September 2012. Disqualified from holding any driver's or rider's licence for 12 months from 14 October 2012.
  • Partial cumulation: The two death sentences were partially accumulated, resulting in a total term of 3 months imprisonment from 14 October 2011 to 12 January 2012, followed by release to supervised parole until 18 September 2012.
  • The offender was directed to be released to parole at the end of the non-parole period if otherwise eligible, subject to supervision by the Probation and Parole Service.

Key Takeaways

  • A finding of negligent driving does not follow automatically from the fact that a fatal collision occurred. The court must assess the nature of the driving conduct independently of its consequences, and culpability characterised as momentary inattention sits at the lower end of the sentencing range.
  • Where separate offences arising from a single act of driving cause the deaths of different victims, the totality principle requires at least partial accumulation of sentences rather than full concurrency, reflecting the separate harm done to each victim.
  • Full-time custodial sentences were required even where the offender was young, had no prior record, and the driving involved no aggravating features such as speed or intoxication. The taking of human life was a weighty consideration that precluded non-custodial alternatives or a suspended sentence.
  • A guilty plea entered as part of charge negotiations, while attracting a reduced discount compared to an early plea, still justifies a meaningful sentencing reduction. The court applied 15 per cent in these circumstances.
  • Special circumstances can be found in short-sentence cases where the non-parole period, if set at the statutory default proportion, would leave insufficient time on parole for the offender's rehabilitation and reintegration needs to be addressed.

Legislation and Cases Referenced

Legislation:
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 42(1)(a) and (b)
- Road Transport (General) Act 2005 (NSW), s 188(2)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 50, 51

Cases:
- Barlow v R [2008] NSWCCA 96
- Bonsu v R [2009] NSWCCA 316
- Cahyadi v R (2007) 168 A Crim R 41
- Close v R (1992) 31 NSWLR 743
- Mill v The Queen (1988) 166 CLR 59
- R v Borkowski [2009] NSWCCA 102
- R v Clissold [2002] NSWCCA 356
- R v De Simoni (1981) 147 CLR 383
- R v Dodd (1991) 57 A Crim R 349
- R v El-Hayek (2004) 144 A Crim R 90
- R v Fidow [2004] NSWCCA 172
- R v H (1980) 3 A Crim R 53
- R v Hammoud (2000) 118 A Crim R 66
- R v Ibrahim [2005] NSWCCA 43
- R v Jurisic (1998) 45 NSWLR 209
- R v King (2004) 150 A Crim R 409
- R v MA (2004) 145 A Crim R 434
- R v MacIntyre (1988) 38 A Crim R 135
- R v Merrin [2007] NSWCCA 255
- R v Musumeci (Unreported, NSWCCA, 30 October 1997)