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District Court 25 March 2013

R v Minna

[2013] NSWDC 104

Traffic & driving
CRIMINAL LAW

Citation: R v Minna [2013] NSWDC 104
Court: District Court of New South Wales
Date: 25 March 2013
Judge: Hoy SC DCJ

Background

The offender, a young Italian tourist visiting Australia, pleaded guilty to dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900. The offence occurred in the early hours of 9 June 2012, when he was driving a group of friends home to Robinvale from Mildura along the Sturt Highway after a night of drinking. He was the driver of a vehicle carrying four passengers, all close friends.

As the vehicle approached an intersection near Euston, New South Wales, the offender lost control. He swerved to avoid a kangaroo, overcorrected, and the car rolled multiple times. One passenger, who was not wearing a seatbelt, was ejected from the vehicle and died almost instantly from fatal head injuries. The offender's blood alcohol reading was 0.137 grams per 100 millilitres of blood, placing it at the higher end of the mid-range under New South Wales drink driving legislation and just below the high-range threshold of 0.15.

The offender had pleaded guilty in the Local Court in November 2012 and was committed for sentence to the District Court at Griffith. He had remained on bail since the date of the offence.

  • What was the appropriate sentence for an offence of dangerous driving occasioning death, having regard to the maximum penalty of ten years imprisonment and established sentencing principles?
  • Whether the sentence should be structured to allow the offender to serve the term by way of a non-custodial or alternative arrangement, which required an overall term of no more than two years.
  • How to weigh the relevant aggravating factors (alcohol consumption, a death resulting) against significant mitigating factors (early guilty plea, genuine remorse, youth, good character, hardship as a foreign national awaiting proceedings).
  • What weight to give to the victim impact material and the unusual personal circumstances of the offender, including his status as a foreign national far from home.

Decision

His Honour accepted that a custodial sentence was inevitable given the nature of the offending. The offender was driving while affected by alcohol at a mid-range level, and the vehicle's loss of control resulted in a passenger's death. The court acknowledged this case as one in a recurring and serious category of offending where individuals drive dangerously after excessive alcohol consumption, notwithstanding persistent legislative and enforcement efforts to deter such conduct.

The court carefully weighed the aggravating features: the mid-range blood alcohol reading, the fact that a death occurred, and that the offending involved two separate particulars of dangerous driving (the swerving manoeuvre and the alcohol level). Against these, the court placed considerable weight on the offender's early guilty plea, his genuine and profound remorse (evidenced partly through his oral evidence at the sentence hearing), his youth, his prior good character, and the significant personal hardship he had experienced as a foreign national detained far from his family and home country while proceedings were resolved.

The court concluded that an overall sentence of two years or less was appropriate, which meant the sentence could potentially be served other than by way of fulltime imprisonment. However, His Honour ultimately determined that the sentence structure should include a nine-month non-parole period of actual imprisonment, with the offender to be released on parole upon its completion. Specific recommendations were made to Corrective Services regarding urgent psychological counselling, access to education and training, and the earliest possible minimum-security classification.

A related charge of negligent driving was withdrawn by the Crown and dismissed by the court at the conclusion of the sentence proceedings.

Orders Made

  • The offender was sentenced to imprisonment, with a non-parole period of nine months, commencing 25 March 2013.
  • Upon completion of the non-parole period, the offender was to be released on parole.
  • The court recommended that Corrective Services urgently provide counselling and psychological support, access to education and training programs, and the lowest relevant security classification as soon as practicable.
  • A related charge of negligent driving was withdrawn by the Crown and dismissed by the court.

Key Takeaways

  • Under s 52A(1)(c) of the Crimes Act 1900, dangerous driving occasioning death carries a maximum penalty of ten years imprisonment, with no statutory standard non-parole period; the maximum is reserved for the worst category of cases.
  • The District Court applied the principle of instinctive synthesis from Markarian v R (2005) 228 CLR 357, weighing all aggravating and mitigating factors together rather than by a mechanistic approach.
  • A mid-range blood alcohol reading combined with a fatal outcome constituted serious aggravating features, but an early guilty plea, genuine remorse, youth, good character, and significant personal hardship as a foreign national were capable of substantially reducing an otherwise heavier sentence.
  • Where an overall term of two years or less is imposed for this category of offence, the sentencing court retains discretion to adjust the ratio between the non-parole period and the head sentence significantly in favour of the offender, provided the circumstances justify it.
  • The deceased passenger's failure to wear a seatbelt was a circumstance relevant to the overall factual matrix, though the primary responsibility for the fatal outcome rested with the dangerous manner of driving.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 22A, 23
- Road Transport (General) Act 2005 (NSW)

Cases
- R v Veen (No 2) (1988) 164 CLR 465
- Markarian v R (2005) 228 CLR 357
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252
- R v Muldrock (2011) 244 CLR 120
- Hili and Jones v The Queen (2010) 242 CLR 520
- The Queen v Di Simoni (1981) 147 CLR 383
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Holahan v R [2012] NSWCCA 105
- R v Thomas [2007] NSWCCA 269
- R v Errington (2005) 157 A Crim R 553
- R v Khatter [2000] NSWCCA 32
- R v Berg [2004] NSWCCA 300
- R v Pisciuneri [2007] NSWCCA 265
- R v Dutton [2005] NSWCCA 248
- R v Nguyen [2008] NSWCCA 113
- R v Rushby [1977] 1 NSWLR 594
- R v Begbie (2001) 124 A Crim R 300