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Local Court 12 April 2016

NSW Police v Nash

[2016] NSWLC 3

Traffic & driving
SENTENCE NEGLIGENT DRIVING OCCASIONING DEATH FAILURE TO KEEP PROPER LOOKOUT SENTENCING CONSIDERATIONS HARM TO VICTIM AND COMMUNITY PRIOR GOOD CHARACTER

Citation: NSW Police v Nash [2016] NSWLC 3
Court: Local Court of NSW
Date: 12 April 2016
Judge(s): Stewart LCM

Background

The offender, a 66-year-old farmer from the Dubbo region, pleaded guilty to negligent driving occasioning death under s 117(1)(a) of the Road Transport Act 2013. The offence arose from a fatal collision on the Putty Road, Mount Thorley, in March 2015, when the offender turned right across oncoming traffic and failed to observe an approaching motorcycle. The motorcyclist died at the scene.

The offender's wife was in the car at the time. Conditions were clear and dry, no mechanical fault contributed, and neither alcohol nor drugs were involved. The offender had held a licence since 1965 and, apart from a speeding caution almost two decades earlier, had an essentially clean traffic record spanning 50 years.

A back-up charge of failing to give way was withdrawn after the offender entered his guilty plea to the substantive offence. The matter proceeded to sentencing before Magistrate Stewart at Dubbo Local Court.

  • What was the appropriate level of objective seriousness and moral culpability for the offending conduct, given limited factual information?
  • What sentence was appropriate for a lower-to-mid-range negligent driving occasioning death offence, having regard to mitigating factors including prior good character, remorse, and a guilty plea?
  • Whether a community service order was a sufficient penalty in light of the Court of Criminal Appeal's remarks in Bonsu v R [2009] NSWCCA 316 about the inadequacy of lenient sentences for this offence?
  • Whether the automatic three-year licence disqualification period should be reduced to the statutory minimum of 12 months.

Decision

Objective seriousness and culpability

The magistrate found that the available facts were limited, noting the absence of information about the offender's speed, whether he stopped before turning, or the motorcycle's distance when the turn commenced. Drawing on the offender's own account (as recorded in a psychologist's letter), the court inferred that the offender looked but failed to see the motorcycle before committing to the turn. There was no suggestion of obstructed vision or deliberate disregard for road safety. The magistrate placed the offending between the lower end and the halfway mark of the seriousness range for this type of offence.

Appropriate sentence

The magistrate engaged carefully with Bonsu v R, in which Howie J described a community service order as "a very lenient sentence" for negligent driving occasioning death and expressed concern about the inadequacy of sentencing in such cases. The magistrate read those remarks as indicating that bonds under s 9 or bare convictions under s 10A should rarely, if ever, be imposed, and that imprisonment of some kind should be considered. However, the magistrate declined to read Bonsu as mandating full-time custody in every case, noting that Howie J did not rule out suspended sentences or intensive corrections orders. Taking into account the offender's prior good character, his 50-year virtually unblemished driving record, demonstrated remorse, his age, and the utilitarian value of his early guilty plea (attracting a full 25% discount), the magistrate imposed a community service order of 250 hours.

Licence disqualification

The automatic disqualification period upon conviction is three years, with a statutory minimum of 12 months. The magistrate noted that courts retain discretion to reduce disqualification below the automatic period where circumstances justify it, drawing on the High Range PCA Guideline Judgment and Mitchell v R [2009] NSWCCA 95. Relevant factors included the offender's near-perfect driving record over five decades, the character evidence describing him as a careful driver, his occupation as a farmer in a rural area lacking viable public transport, and his prospects for rehabilitation. The magistrate exercised the discretion to impose the minimum 12-month disqualification.

Orders Made

  • The offender was sentenced to perform 250 hours of community service and required to report to the Dubbo office of Community Corrections within 7 days.
  • Licence disqualification was imposed for the minimum period of 12 months, with a warning that driving during that period, or before obtaining a new licence thereafter, would constitute a criminal offence.
  • An order was made under s 134 of the Law Enforcement (Powers and Responsibilities) Act 2002 requiring the offender to attend Dubbo Police Station for photograph and fingerprints.

Key Takeaways

  • A community service order of 250 hours was found to be an appropriate, if lenient, sentence for a lower-to-mid-range negligent driving occasioning death offence where the offender had an exceptional traffic record, demonstrated genuine remorse, and entered an early guilty plea.
  • Bonsu v R does not, on this court's reading, mandate full-time custodial sentences for all offences of negligent driving occasioning death. Rather, bonds and bare convictions should rarely if ever be imposed, while community service orders remain available at the lenient end of the sentencing range.
  • Factual gaps in the prosecution's case, including absence of crash investigation data about speed, braking, and sight-lines, materially constrained the court's assessment of moral culpability. Greater evidentiary detail from crash investigators may have altered that assessment.
  • Under s 117 of the Road Transport Act 2013, the automatic disqualification period of three years may be reduced to the statutory minimum of 12 months where circumstances such as rural location, vocational necessity, rehabilitation, and an otherwise exemplary driving record are established.
  • The 25% utilitarian discount for an early guilty plea applies in this jurisdiction, consistent with R v Thomson; R v Houlton (2000) 49 NSWLR 383, even where the plea followed the DPP referral process (the Singh Protocol).

Legislation and Cases Referenced

Legislation
- Road Transport Act 2013 (NSW), s 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 8, 9, 10A, 21A, 26-30
- Crimes (Sentencing Procedure) Regulation 2010 (NSW), cl 23(c)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 134

Cases
- Attorney General's Application (No.3 of 2002) (High Range PCA Guideline Judgment) [2004] NSWCCA 303
- Bonsu v R [2009] NSWCCA 316
- Mitchell v R [2009] NSWCCA 95
- DPP (NSW) v Pelletier [2014] NSWLC 9
- DPP v Bhandari [2011] NSWLC 7
- DPP v Markovski [2011] NSWLC 31
- R v Borkowski [2009] NSWCCA 102
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Carroll [2008] NSWCCA 218
- R v Jurisic (1998) 45 NSWLR 209
- Police v Curkovic [2008] NSWLC 1
- Police v Turner [2011] NSWLC 27
- R v Barbetta [2008] NSWSC 688
- R v Bloomfield (1998) 101 A Crim R 404
- R v Dodd (1991) 57 A Crim R 349
- R v Foster (2001) 33 MVR 565
- R v McIntyre (1988) 38 A Crim R 135
- R v Rushby [1977] 1 NSWLR 594
- R v Ryan (2003) 141 A Crim R 403