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District Court 28 March 2017

R v CLOUT

[2017] NSWDC 114

Traffic & driving
CRIMINAL AFTER TRIAL S167 CERTIFICATE.

Citation: R v Clout [2017] NSWDC 114
Court: District Court of New South Wales
Date: 28 March 2017
Judge(s): Judge S Norrish QC

Background

The offender, a farmer in his early sixties with no prior criminal or traffic history, was involved in a fatal collision on 25 January 2015 on Muttama Road, Coolac in regional New South Wales. While driving a utility vehicle approximately 100 metres along a rural road to access a neighbouring block of land, his vehicle collided with a motorcycle. Both the motorcycle rider and his pillion passenger were killed.

The offender had initially been charged with two counts of driving in a manner dangerous to other persons contrary to s 52A(1)(c) of the Crimes Act 1900. Those primary charges were tried before a jury in the Wagga Wagga District Court. The jury returned not guilty verdicts on both counts.

Attached to the committal were two backup charges under s 117(1) of the Road Transport Act 2013, alleging negligent driving causing death. These charges had been certified under s 166 of the Criminal Procedure Act 1986, which permits the District Court to deal with matters that would ordinarily be heard in the Local Court. Judge Norrish agreed to retain the matters rather than remit them, noting the practical inefficiencies of further delay and the benefit of having presided over the trial.

  • Whether the pleas of guilty to the negligent driving charges were entered at the first reasonable opportunity, and what discount (if any) should apply.
  • What sentence was appropriate for two counts of negligent driving causing death, taking into account the maximum penalty, the objective and subjective circumstances, and the principle of totality.
  • What period of licence disqualification was required, including the interaction between mandatory minimum and automatic disqualification provisions under the Road Transport Act 2013.

Decision

Judge Norrish accepted that the pleas of guilty were entered at the first reasonable opportunity. From the time the matter was before the Local Court, the offender had offered to plead guilty to the negligent driving charges on the basis that the more serious indictable charges would be withdrawn. The Crown proceeded to trial on the dangerous driving counts, and the backup charges were only activated following acquittal. In that context, the timing of the pleas attracted the relevant discount.

The court drew on the trial evidence, supplemented by material tendered on the plea, to assess the circumstances of the offending. The Crown's case at trial had centred on an alleged failure to keep a proper lookout. The offender's own consistent account, both in his police interview on the day and in his trial evidence, was that he did not see the motorcycle until less than a second before impact. The non-expert evidence was largely uncontested. Judge Norrish noted that the expert evidence had been contested by both sides at trial and declined to expand upon those conflicts for sentencing purposes.

In assessing the appropriate sentence, the court noted that the maximum penalty for a first offence under s 117(1) was 30 penalty units or 18 months imprisonment, or both. Having regard to the offender's age, good character, absence of any prior criminal or traffic record, the circumstances of the collision, and the fact that the conduct amounted to negligence rather than the more culpable dangerous driving of which he had been acquitted, Judge Norrish concluded that good behaviour bonds under s 9 of the Crimes (Sentencing Procedure) Act 1999 were appropriate. No conviction was recorded for one of the sequences; a conviction was recorded for the other.

On the question of totality, the court imposed a two-year bond for one charge and a three-year bond for the other, with no supervision ordered. Licence disqualification periods were staggered to produce a total disqualification of 15 months, satisfying the mandatory minimum requirement while reflecting the overall sentencing disposition.

Orders Made

  • Sequence 3 (death of Mr Black): Section 9 good behaviour bond for two years from 28 March 2017; licence disqualification for one year from 28 March 2017, expiring 27 March 2018.
  • Sequence 4 (death of Mrs Black): Conviction recorded; s 9 good behaviour bond for three years from 28 March 2017; licence disqualification for one year from 28 June 2017, expiring 27 June 2018.
  • Total licence disqualification: 15 months.
  • No supervision ordered under either bond.
  • Conditions of both bonds: appear before the court if called upon; be of good behaviour; notify the Registrar or Clerk of the Criminal Listing Directorate at Wagga Wagga District Court of any change of residential address.

Key Takeaways

  • A not guilty verdict on dangerous driving causing death does not preclude sentencing on backup charges of negligent driving causing death, provided those charges were properly before the court by certificate under s 166 of the Criminal Procedure Act 1986.
  • Where an offender offers to plead guilty to backup charges from the earliest opportunity but is subject to a Crown-elected trial on the primary charges, a court may still treat the subsequent plea as entered at the first reasonable opportunity.
  • Good behaviour bonds under s 9 of the Crimes (Sentencing Procedure) Act 1999 remain available for offences of negligent driving causing death, even where two people have died, where the objective and subjective circumstances so warrant.
  • The District Court applied the totality principle by imposing bonds of different lengths for the two offences, and by staggering the commencement dates of the disqualification periods to produce a combined disqualification exceeding the mandatory minimum.
  • Sentencing proceedings conducted in the District Court following a jury trial may proceed on the trial evidence together with any additional material tendered on the plea, without the court needing to revisit contested expert evidence in detail.

Legislation and Cases Referenced

Legislation:
- Road Transport Act 2013 (NSW), s 117(1)
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Criminal Procedure Act 1986 (NSW), ss 166, 167

Cases:
- R v Mauger [2012] NSWCCA 51