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District Court 16 September 2016

R v Steven Barnett

[2016] NSWDC 302

HomicideTraffic & driving
DANGEROUS DRIVING OCCASIONING DEATH MOMENTARY INATTENTION INTENSIVE CORRECTION ORDER IMPRISONMENT AS LAST RESORT

Citation: R v Steven Barnett [2016] NSWDC 302
Court: District Court of NSW
Date: 16 September 2016
Judge(s): Yehia DCJ

Background

The offender was a professional truck driver with an unblemished record who, in May 2014, was driving a Kenworth prime mover with trailer southbound on the M1 motorway at 100 kilometres per hour. As he crossed the Hawkesbury River Bridge, he took his eyes off the road to look at the water. When he looked back, a Mazda that had broken down and stopped in his lane was only 36 to 43 metres away. He could not stop in time.

The collision was catastrophic. The Mazda was caught beneath the prime mover and both vehicles travelled approximately 105 metres before coming to rest. A young female passenger in the Mazda died as a result. The driver of the Mazda survived.

The offender was tried in the Sydney District Court in May 2016 for dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900, which carries a maximum penalty of ten years imprisonment. He was found guilty and the matter proceeded to sentencing.

Legal Issues

  • Whether the offender's conduct constituted momentary inattention or a more serious category of dangerous driving closer to abandonment of responsibility
  • What level of moral culpability to attribute to the offender, given he was driving a heavy vehicle at speed
  • Whether the threshold for imposing a custodial sentence under s 5(1) of the Crimes (Sentencing Procedure) Act 1999 was met
  • Whether a two-year term of imprisonment, if warranted, should be served as an intensive corrections order rather than by way of fulltime custody

Decision

Issue 1: Nature of the conduct and moral culpability

Her Honour found, based on the offender's own account in his police interview and the expert reconstruction evidence, that the offender took his eyes off the road for approximately five seconds to admire the view over the water (at [25]). That period was long enough that he was unable to brake before impact (at [25]).

The court accepted that the conduct constituted momentary inattention rather than abandonment of responsibility, noting the absence of excessive speed, alcohol or drugs, erratic driving, fatigue, or any other form of driver misconduct (at [38]-[39]). However, the court declined to place the offender's culpability at the lowest end of the range, observing that an onerous duty rests on drivers of heavy vehicles because even brief inattention carries enormous potential for harm (at [36], [101]).

Issue 2: Whether the section 5 threshold was met

Her Honour was satisfied that the s 5 threshold for imprisonment had been met, having regard to the objective seriousness of the offence, the guideline in R v Jurisic, and the fact that a young woman had lost her life (at [102]). The court noted that the Jurisic guideline and subsequent authorities treat a non-custodial sentence for an offence under s 52A as exceptional and almost invariably confined to cases involving momentary inattention or misjudgment (at [31]).

Issue 3: Length of sentence

Balancing the offender's low moral culpability against his compelling subjective case, the court determined that two years imprisonment was warranted (at [103]). The subjective case included significant and genuine remorse (at [79]), rehabilitation (at [83]), no prior criminal record, a long history of responsible driving (at [84]), and the diagnosis of an ongoing autoimmune condition (at [68]-[75]).

Issue 4: Mode of service

Her Honour declined to impose a suspended sentence, finding the conduct was not at the lowest level of moral culpability (at [104]). The court was satisfied, however, that a two-year sentence served by way of an intensive corrections order was appropriate (at [109]). The judgment emphasised that an intensive corrections order constitutes a form of imprisonment with significant punitive effect, and that mandatory conditions impose real restrictions on liberty (at [108]). The court adjourned to allow an ICO assessment to be completed.

Orders Made

  • An intensive corrections order assessment was ordered
  • The offender was directed to attend the Albury office of Community Corrections within seven days to facilitate the preparation of that assessment
  • The matter was adjourned to 4 November 2016 for finalisation of the sentence (pending the outcome of the ICO assessment)

Key Takeaways

  • A finding of momentary inattention does not automatically result in a finding of low moral culpability: the circumstances of the offence, including the type of vehicle and speed at which it was driven, must be weighed in assessing culpability (at [39], [101]).

  • Under the Jurisic guideline and subsequent Court of Criminal Appeal authority, non-custodial sentences for dangerous driving occasioning death are exceptional and generally confined to cases of momentary inattention or misjudgment; the guideline operates as a guide rather than a prescriptive rule, and individualised sentencing remains paramount (at [27], [31], [98]).

  • Driving a heavy vehicle at speed carries heightened responsibility because even brief inattention creates serious potential for harm; this factor bore on culpability even where the court characterised the conduct as momentary inattention (at [36], [101]).

  • An intensive corrections order is a form of imprisonment capable of satisfying the purposes of sentencing, including deterrence and denunciation, in appropriate cases where fulltime custody is not required by proportionality (at [105]-[109]).

  • Hardship to third parties, including a young child in the primary care of the offender, is a relevant factor in the subjective case but is not determinative of whether the s 5 threshold is met or of the mode in which a sentence is served (at [88]-[90]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900, s52A(1)(c)
- Crimes (Sentencing Procedure) Act 1999, ss 3A, 5(1), 21A

Cases
- Hili v The Queen (2010) 242 CLR 520
- Morabito v R [2007] NSWCCA 126
- R v Davies [2000] NSWCCA 84
- R v Errington (2005) 157 A Crim R 553
- R v Foster [2001] NSWCCA 215
- R v Jarad Smith [2016] NSWCCA 75
- R v Jurisic (1998) 45 NSWLR 209
- R v Khatter [2000] NSWCCA 32
- R v Melissa McKeown [2013] NSWDC 22
- R v Nahlous (2013) 228 A Crim R 503
- R v Radley [2010] NSWCCA 64
- R v Townsend [2010] NSWCCA 336
- R v Whyte (2002) 55 NSWLR 252
- R v Zamagias [2002] NSWCCA 17
- Thai v R [2009] NSWCCA 314
- Whelan v R (2012) 228 A Crim R 1
- Zaky v R [2015] NSWCCA 161