Citation: R v Wells (No 2) [2016] NSWDC 313
Court: District Court of New South Wales
Date: 16 September 2016
Judge: Berman SC DCJ
Background
The offender was the deputy captain of a Rural Fire Service brigade who, in October 2012, was driving a heavy 13-tonne fire tanker back toward a weighbridge station on what was then the F3 Freeway. To turn the vehicle around, he performed a U-turn through a designated bay in the median divide, activating the tanker's red and blue flashing lights as he did so.
An approaching Toyota Corolla, travelling northbound, flashed its high-beam headlights and briefly changed lanes. The offender and his colleague interpreted this as a signal that the Corolla's driver would give way, and the offender chose to maintain the tanker's momentum rather than stop and wait. The tanker entered the northbound carriageway and a collision followed. The Corolla was left stationary and unlit in lane three. The Corolla's passenger, Mrs Mihailidis, survived the initial collision but was subsequently struck and killed by a third vehicle as she was exiting the Corolla.
The offender had previously faced jury trial on charges of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. The jury acquitted him of both. He was then convicted by the judge under a section 166 certificate (a mechanism allowing conviction on a lesser offence disclosed by the evidence at trial) of negligent driving causing death and breaching Road Rule 38 by making a U-turn without giving way to another vehicle.
Legal Issues
- What sentence was appropriate for negligent driving causing death, an offence carrying a maximum of 18 months imprisonment?
- What weight should be given to the offender's moral culpability, given the nature of his negligence and the absence of any genuine emergency?
- How should the offender's personal circumstances, community contributions, and the need for general deterrence be balanced?
- Was a full-time custodial sentence warranted, or was an Intensive Corrections Order appropriate?
Decision
The District Court found that the offender's negligence lay in his failure to foresee that entering a high-speed lane presented a threat to oncoming vehicles, and in his failure to wait the approximately 11 seconds that would have allowed the Corolla to pass safely. His motivation was purely one of convenience: he did not want to lose the tanker's momentum or change back to first gear. The court found there was no emergency and no urgency requiring him to proceed as he did.
On the question of moral culpability, the court acknowledged two competing considerations. The nature of the negligence was at the lower end of the scale, being a momentary failure of foresight rather than prolonged or reckless conduct. However, the absence of any genuine emergency significantly reduced any justification for the risk taken. The court also noted that because there was no backup charge relating to the serious injuries suffered by Mrs Mihailidis' husband, those injuries could play no part in the sentencing exercise.
The court gave considerable weight to the offender's personal circumstances, including his lengthy record of community service through the RFS, his role as a carer for his wife who was undergoing chemotherapy, and the collateral consequences a loss of his driver's licence would have on his employment and family. These factors were balanced against the court's stated concern, citing the Court of Criminal Appeal in Bonsu v R, that courts have historically given insufficient weight to the fact that a human life has been lost in cases of negligent driving.
The District Court concluded that while a full-time custodial sentence was not required given the manner of the offending, a sentence of imprisonment was nonetheless necessary to reflect the loss of life and to deter other road users, including drivers of emergency vehicles. The court indicated it would impose a term of imprisonment to be served by way of an Intensive Corrections Order, subject to an assessment of the offender's suitability for that order.
Orders Made
- The sentencing proceedings were adjourned to 2 December 2016 for sentence.
- The offender was ordered to be assessed for suitability to serve a sentence of imprisonment by way of an Intensive Corrections Order.
Key Takeaways
- The District Court confirmed that a sentence of imprisonment is available and, in appropriate cases, necessary for negligent driving causing death, even where the offending falls toward the lower end of the objective criminality scale.
- A conviction for negligent driving causing death does not require a finding that the offender drove dangerously or with prolonged negligence: a momentary failure to foresee risk, absent any emergency justification, can suffice.
- Citing Bonsu v R [2009] NSWCCA 316, the court reaffirmed that sentencing courts must give genuine and sufficient weight to the fact that another person has died, a principle the Court of Criminal Appeal found had historically been underweighted in the Local and District Courts.
- Collateral consequences, including loss of employment, carer responsibilities, and community service history, are relevant to the form of custodial sentence imposed, though they did not displace the need for imprisonment in this case.
- Where no urgency or emergency can be established for the conduct of an emergency services driver, the absence of such justification is a material factor that elevates the assessment of objective criminality.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act (NSW)
- Road Rule 38 (U-turns: duty to give way)
Cases
- Bonsu v R [2009] NSWCCA 316