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Local Court 1 August 2016

NSW Police v Waddington

[2016] NSWLC 12

Traffic & driving
CRIMINAL LAW SENTENCING DEFENDANT A HEAVY VEHICLE DRIVER

Citation: NSW Police v Waddington [2016] NSWLC 12
Court: Local Court of New South Wales
Date: 1 August 2016
Judge(s): Deputy Chief Magistrate C O'Brien

Background

A 65-year-old heavy vehicle driver pleaded guilty to negligent driving occasioning grievous bodily harm under s 117(1)(b) of the Road Transport Act 2013. The offence arose from a serious collision on the Sturt Highway at Narrandera on 20 September 2015, in which his approximately 50-tonne truck and vehicle transport trailers struck a motorcyclist who was slowing to make a right-hand turn.

The motorcyclist suffered severe injuries to her right hand, which was degloved in the collision. She was airlifted to Canberra Hospital, placed in an induced coma, remained hospitalised for eight days, and will never regain full use of her hand.

The defendant initially entered a plea of not guilty at Leeton Local Court in February 2016. The matter moved through several courts before a guilty plea was entered at the Downing Centre Local Court on 18 May 2016, the fifth appearance, which was not the first available opportunity.

  • What discount, if any, was appropriate for a guilty plea not entered at the first available opportunity?
  • What was the objective seriousness of the offending, including the full extent of the defendant's negligence?
  • What sentence was appropriate having regard to the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999, the defendant's personal circumstances, and the harm caused?
  • Whether the court was entitled to depart from the automatic period of driving disqualification.

Decision

The Deputy Chief Magistrate reduced the guilty plea discount to 15%, noting that the plea was not entered at the first available opportunity. The court applied the principle from R v Borkowski that a modified discount may result in a different type of sentence than would otherwise have been imposed.

On the question of negligence, the court found the defendant's culpability was not confined to the conceded act of crossing into oncoming traffic to avoid a rear-end collision. The Magistrate identified additional acts of negligence: failing to keep a proper lookout, failing to maintain a safe following distance, and failing to travel at a speed appropriate to the prevailing conditions, even if within the posted speed limit. These factors, taken together, were found to represent a serious departure from the standard expected of an ordinary and prudent driver.

The court assessed the objective seriousness of the offending as being at or about the mid-range. Particular weight was given to the defendant's role as a professional heavy vehicle operator, with the Magistrate noting that drivers of such vehicles carry a heightened responsibility to the public given the potential for catastrophic harm. The court found that a conviction was required, rejecting a non-conviction order as unduly lenient.

Balancing the defendant's prior good character, absence of criminal history, participation in a Traffic Offender Intervention Program, and good prospects of rehabilitation against the objective seriousness and the serious harm suffered by the victim, the court imposed a fine and a good behaviour bond. The court also found sufficient grounds to depart from the automatic disqualification period, reducing it to 15 months.

Orders Made

  • The defendant was convicted.
  • Fined $1,100.
  • Ordered to enter into a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 for a period of 18 months, with conditions to be of good behaviour, appear for sentence if called upon, and notify the Registrar of any change of residential address.
  • Disqualified from holding or obtaining a driver's licence for 15 months.

Key Takeaways

  • Travelling within a posted speed limit does not, of itself, mean a driver is travelling at a speed appropriate to all prevailing circumstances; a court may find additional negligence beyond any conceded conduct.
  • A guilty plea not entered at the first available opportunity attracted only a 15% discount in this case, consistent with the principle that the discount must be modified when the plea is delayed.
  • Under Gorladenchearau v R, the degree of negligence and the extent of resulting injuries are both relevant to assessing the objective seriousness of a negligent driving offence.
  • Professional heavy vehicle operators are held to a heightened standard of responsibility given the potential severity of harm their vehicles can cause to other road users.
  • A conviction was recorded despite the availability of non-conviction orders, as the court considered that outcome would be unduly lenient given the objective seriousness of the offending and the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation
- Road Transport Act 2013 (NSW), s 117(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 10, 21A

Cases
- R v Borkowski [2009] NSWCCA 102
- Gorladenchearau v R (2011) 34 VR 149
- R v Oliver (1980) 7 A Crim R 174
- R v Kennedy [2000] NSWCCA 527
- Skocic v R [2014] NSWCCA 225