Citation: R v Gerard De Groot [2016] NSWDC 93
Court: District Court of New South Wales
Date: 27 May 2016
Judge(s): Mahony SC DCJ
Background
The offender, a 47-year-old B-double truck driver with approximately 23 years of heavy-vehicle experience, pleaded guilty to dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900. The offence occurred on 11 March 2015 on the Hume Highway near Yass.
Two vehicles had stopped on the left-hand shoulder of the northbound carriageway, protruding approximately 50 centimetres into the travel lane. The deceased, an 83-year-old man, was standing beside his car when the offender's prime mover, towing two trailers, struck the rear vehicle and then the deceased, inflicting fatal injuries. The offender had 200 metres of clear vision of the stopped vehicles before impact and did not brake.
There was no apparent explanation for the failure to respond in time other than inattention or distraction. The matter came before the District Court for sentence following committal from Yass Local Court.
Legal Issues
- Whether the objective seriousness of the offending fell within, above, or below the mid-range for dangerous driving occasioning death.
- Whether the offender's moral culpability was low, given submissions that the inattention was a mistake rather than a wilful act.
- Whether a full-time custodial sentence was the only appropriate sentencing option under s 5 of the Crimes (Sentencing Procedure) Act 1999.
- Whether special circumstances existed to warrant a reduction of the non-parole period below the statutory ratio.
- What utilitarian discount applied as a result of the offender's early guilty plea.
Decision
Objective Seriousness
The court assessed the objective seriousness of the offending as below the mid-range, but not very far below it (at [57]). The offender was a professional driver operating a heavy B-double rig on a major highway, had 200 metres of clear vision of the stopped vehicles, and failed to respond for a significant period before the collision (at [57]). The court noted that this was not a case of momentary inattention (at [57]).
Moral Culpability
The court rejected the submission that the offender's moral culpability was low (at [58]). As a professional driver in control of a heavy vehicle, his failure to brake at any time and his late swerve demonstrated inattention over a significant period, which led to tragic consequences (at [58]). The court noted as an aggravating factor that four occupants of the parked vehicles were put at risk (at [69]).
Remorse and Subjective Factors
The court rejected the pre-sentence report's assessment that the offender lacked remorse, finding that he was truly remorseful (at [65]). The court accepted psychiatric and psychological evidence that the offender had been diagnosed with PTSD, suffered from recurring visions of the incident, and had twice been admitted to psychiatric care following suicidal ideation (at [59]-[62]). A 25% utilitarian discount was applied for the early guilty plea (at [65]).
Sentencing Outcome
The court was satisfied that no alternative to a full-time custodial sentence was appropriate under s 5 of the Crimes (Sentencing Procedure) Act 1999 (at [74]). Drawing on the comparable facts in Barnett v R [2014] NSWCCA 296, where an aggregate of 3 years with an 18-month non-parole period was imposed for two deaths caused by a heavy-vehicle driver, the court imposed 2 years and 3 months imprisonment (at [74]-[75]). Special circumstances were found on the basis of the offender's diagnosed PTSD and depressed mood, justifying a reduction of the non-parole period below the statutory ratio (at [74]).
Orders Made
- Conviction entered for dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900.
- Non-parole period of 15 months, commencing 27 May 2016 and expiring 26 August 2017.
- Further term of 12 months, commencing 27 August 2017 and expiring 26 August 2018 (total sentence: 2 years and 3 months).
- Parole eligibility date: 26 August 2017.
- Disqualification from driving for 3 years.
- Recommendation that Justice Health assess the offender for administration of anti-depressant medication during the sentence.
- Direction, upon discharge on parole, to accept any directions from Community Corrections regarding mental health and drug and alcohol issues.
- Section 166 Certificate offences: Sequence 2 withdrawn and dismissed; Sequence 3 dismissed pursuant to s 10A(1) of the Crimes (Sentencing Procedure) Act 1999.
Key Takeaways
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Professional drivers of heavy vehicles attract elevated moral culpability for dangerous driving offences where inattention is sustained rather than momentary, particularly where they fail to brake despite having extended clear vision of a hazard (at [57]-[58]).
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The District Court confirmed that Barnett v R [2014] NSWCCA 296 provides useful sentencing guidance for dangerous driving occasioning death involving heavy vehicles and prolonged inattention, even where only one death results, given the principle of proportionality (at [71]-[72]).
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A pre-sentence report's characterisation of an offender's attitude to the offending is not determinative. The court weighed it against psychiatric, psychological and oral evidence and made its own finding of genuine remorse (at [65]).
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Diagnosed PTSD and major depression, supported by medical evidence and a history of psychiatric admissions, can constitute special circumstances justifying a reduction in the non-parole period below the statutory ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (at [74]).
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Under the Whyte guideline, a full-time custodial sentence will generally be appropriate for dangerous driving occasioning death unless moral culpability is genuinely low, such as in cases of momentary inattention or misjudgement. An inattention spanning 200 metres of clear highway did not meet that threshold (at [67]-[70]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
Cases
- Barnett v R [2014] NSWCCA 296
- R v Whyte [2002] NSWCCA 343