Citation: R v Schilder (No 2) [2013] NSWDC 24
Court: District Court of New South Wales
Date: 24 January 2013
Judge: Neilson DCJ
Background
The offender, a man in his late twenties with a mild intellectual disability, suffered a complex partial epileptic seizure while driving, causing his vehicle to collide with another car. The collision killed one person (Timothy Ioannou) and caused grievous bodily harm to another (Amanda Sutton). The offender had a documented history of epilepsy-related motor vehicle incidents prior to the fatal collision.
In earlier proceedings (reported the day before this sentencing judgment), the court had determined whether the charges should be the aggravated forms of the offences, which required proof that the offender was travelling more than 45 km/h above the applicable 70 km/h speed limit at the moment of impact. The court was not satisfied beyond reasonable doubt of that element and accordingly the offender fell to be sentenced on the non-aggravated versions of the charges.
The offender had pleaded guilty at the earliest opportunity, both in the Local Court and when arraigned before the District Court. His history included multiple prior accidents with some causal links to his epilepsy, and he had made false representations to the Roads and Traffic Authority (RTA) to obtain renewal of his driver's licence, concealing the existence of his epilepsy.
Legal Issues
- Whether the offender should be sentenced for the aggravated or non-aggravated forms of dangerous driving causing death and dangerous driving occasioning grievous bodily harm
- How the circumstances of the offending, particularly the epileptic seizure and prior accident history, bore on objective seriousness
- What weight to give to the various subjective factors, including early guilty plea, genuine remorse, intellectual disability, prior good character, extra-curial punishment, delay in proceedings, and potential hardship in custody
- Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and total sentence
Decision
The court was not persuaded beyond reasonable doubt that the offender was travelling above 115 km/h at the relevant time, and as a matter of law concluded that the excessive speed had to be proved before the onset of the epileptic seizure rather than at the point of impact. The aggravated charges therefore could not be made out, and the offender was sentenced on the non-aggravated charges to which he had pleaded guilty.
The sentencing judge carefully assessed the offender's prior accident history. At least two previous incidents were causally connected to his epilepsy, establishing that he had known reasons to understand the danger he posed when driving. Critically, he had misled both a psychologist and the RTA to obtain and retain his licence, concealing his epileptic condition. He was also sleep-deprived at the time of the fatal collision, compounding the risk.
Against those aggravating features, the court weighed a number of mitigating factors in the offender's favour. These included his early guilty plea, genuine remorse and contrition, prior good character, mild intellectual disability, the extra-curial punishment he had already experienced as a result of the offences, the delay in proceedings, and the particular hardship he would face in custody given his medical vulnerability and intellectual disability.
The court found special circumstances warranting a greater balance of sentence to be served on parole, reflecting the offender's need for supervision and support following release.
Orders Made
- Charge of dangerous driving occasioning death: imprisonment with a non-parole period of 1 year and 8 months commencing 24 January 2014 and expiring 23 September 2015, with a balance of term of 1 year and 4 months, giving a total sentence of 3 years expiring 23 January 2017
- Special circumstances found
- Back-up charges dismissed
- Licence disqualification: 6 years in total (3 years per offence, cumulative)
- Direction that medical evidence accompany the offender to Metropolitan Remand and Reception Centre, given his epilepsy and vulnerability to stress-induced seizures
Key Takeaways
- The District Court confirmed that for the aggravated form of dangerous driving, the Crown must prove the excessive speed existed before the loss of control that caused the incident, not merely at the point of impact. The timing of the excessive speed relative to the onset of the medical episode was determinative.
- A history of prior epilepsy-related driving incidents, combined with deliberate misrepresentation to licensing authorities, significantly elevated the moral culpability of an offender whose collision was itself triggered by a medical episode. The dangerous conduct lay in choosing to drive while concealing a known risk, not merely in the driving at the moment of crisis.
- Intellectual disability was treated as a mitigating factor relevant both to the weight given to general deterrence and to the hardship the offender would experience in custody.
- Extra-curial punishment, delay in proceedings, and the particular vulnerabilities of an offender can collectively justify a meaningfully reduced custodial term, even where the objective circumstances of the offending are serious.
- Special circumstances permitting a reduced non-parole period relative to the total sentence were established where an offender's medical condition and intellectual disability indicated a particular need for supervised support during reintegration.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
Cases:
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Gillett v R [2006] NSWCCA 370
- R v Whyte [2002] NSWCCA 343