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Local Court 8 February 2011

Director of Public Prosecutions v Victoria BHANDARI

[2011] NSWLC 7

Traffic & driving
CRIMINAL LAW NEGLIGENT DRIVING OCCASIONING DEATH SENTENCE QUESTION OF HARDSHIP TO THIRD PARTY IMPORTANCE OF GENERAL DETERRENCE

Citation: Director of Public Prosecutions v Bhandari [2011] NSWLC 7
Court: Local Court of NSW (Downing Centre)
Date: 8 February 2011
Judge: Henson DCJ, Chief Magistrate

Background

The offender was driving along Illawarra Road, Marrickville, on the evening of 3 August 2009, with her two young children in the vehicle. She stopped at a red light at the intersection with Warren Road and, when her light turned green, commenced a right-hand turn. At the same moment, the pedestrian walk signal activated for crossing Warren Road.

A 76-year-old pedestrian began crossing in accordance with the walk signal and was well into the marked pedestrian crossing when the offender's vehicle struck her. An independent witness, stopped in Warren Road, observed the pedestrian signal illuminate and the pedestrian step off the footpath and pass in front of his vehicle. The collision proved fatal. The offender maintained that the pedestrian light had been red when she turned, but the Chief Magistrate rejected that account as plainly inconsistent with the witness evidence.

The offender was originally charged with a more serious offence. Following a criminal case conference conducted under the Criminal Case Conferencing Trial Act 2008, and with the agreement of the victim's extended family, that charge was withdrawn. The offender ultimately pleaded guilty to negligent driving occasioning death under s 42(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999, which carries a maximum penalty of 18 months imprisonment and/or a $3,300 fine, together with an automatic three-year licence disqualification.

  • What sentence was appropriate for negligent driving occasioning death, having regard to aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999?
  • What discount, if any, applied to the sentence by reason of the guilty plea under the Criminal Case Conferencing Trial Act 2008?
  • Whether exceptional hardship to a third party (specifically, a severely disabled child dependent on the offender's care) justified a departure from an immediate custodial sentence.
  • Whether, having found exceptional hardship, the court should suspend the sentence or impose an alternative form of custody such as home detention.
  • What period of licence disqualification applied?

Decision

The Chief Magistrate assessed the offending as falling towards the higher end of objective seriousness. The offender had an unobstructed view of the intersection, and the failure to observe the illuminated walk signal and the pedestrian crossing could only be attributed to a failure to keep a proper lookout. Environmental factors (partial overshadowing from trees and a reportedly inoperative street light) were found insufficient to reduce the level of negligence. The court identified two aggravating factors under s 21A(2): the death itself as a circumstance elevating the maximum penalty, and the commission of the offence without proper regard to public safety.

Several mitigating factors under s 21A(3) were accepted in the offender's favour, including her lack of prior criminal history and other personal circumstances. The statutory 25% discount for the guilty plea applied under s 17 of the Criminal Case Conferencing Trial Act 2008, overriding the common law approach. The Chief Magistrate found that the offender had not established sufficient contrition and remorse to obtain further mitigation on that basis.

A significant portion of the judgment addressed the offender's severely disabled son, who was entirely dependent on her care. The Chief Magistrate found that this gave rise to exceptional hardship to a third party at a level warranting consideration in the sentencing exercise, though it did not automatically dictate a non-custodial outcome. The court expressly noted that hardship to a third party does not displace the sentencing purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999, including general deterrence.

On the question of how to balance those competing considerations, the court declined to suspend the sentence. Relying on observations from R v Taylor [2000] NSWCCA 442, the Chief Magistrate noted that suspended sentences offer little or nothing by way of general deterrence. Home detention was instead identified as the appropriate disposition: it addressed both the primacy of general deterrence in this class of offence and the need to preserve the offender's capacity to care for her son. The offender was sentenced to 10 months and 15 days imprisonment, subject to an assessment of suitability for home detention.

Orders Made

  • The offender was convicted of negligent driving occasioning death under s 42(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999.
  • Sentence of imprisonment for 10 months and 15 days was imposed.
  • Proceedings adjourned to 22 March 2011 for assessment of suitability for home detention.
  • The offender was disqualified from holding or obtaining a driver's licence for the automatic period of three years, effective immediately.

Key Takeaways

  • A finding of exceptional hardship to a third party does not, of itself, compel a non-custodial outcome; the sentencing court retains the obligation to give proper weight to all purposes of sentencing under s 3A, including general deterrence.
  • In offences of negligent driving occasioning death, general deterrence is paramount, and the court confirmed that suspended sentences contribute little or nothing to that purpose, following R v Taylor.
  • Home detention was accepted as capable of satisfying both the demands of general deterrence and the need to address exceptional hardship flowing from a dependent third party's circumstances.
  • Under the Criminal Case Conferencing Trial Act 2008, a 25% discount for a guilty plea applies as a statutory entitlement, displacing the common law approach to quantifying the discount.
  • Where no Victims' Impact Statement is tendered, a sentencing court may nonetheless take significant emotional harm and loss into account based on the court's own experience of life, provided it is satisfied the harm is substantial.

Legislation and Cases Referenced

Legislation:
- Road Transport (Safety and Traffic Management) Act 1999, s 42(1)
- Crimes (Sentencing Procedure) Act 1999, ss 3A, 5, 12, 21A
- Criminal Case Conferencing Trial Act 2008, s 17
- Crimes Act 1914 (Cth), s 16A(2)

Cases:
- Bonsu v R [2009] NSWCCA 316
- R v Edwards (1996) 90 A Crim R 510
- R v Jurisic (1998) 45 NSWLR 209
- R v Taylor [2000] NSWCCA 442
- R v Togias [2001] NSWCCA 522
- R v Way (2004) 60 NSWLR 168
- R v Whyte (2002) 55 NSWLR 252
- R v Wirth (1976) 14 SASR 291
- R v Zamagias [2002] NSWCCA 17