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Local Court 14 November 2017

R v Mohamed Abbasher Fageer

[2017] NSWLC 18

Traffic & driving
CRIMINAL LAW SENTENCING PARTICULAR OFFENCES DANGEROUS DRIVING OCCASIONING DEATH FAILURE TO KEEP A PROPER LOOKOUT FACTORS RELEVANT TO SENTENCING

Citation: R v Mohamed Abbasher Fageer [2017] NSWLC 18
Court: NSW Local Court
Date: 14 November 2017
Judge: Judge Graeme Henson, Chief Magistrate

Background

The offender was charged following a fatal motor vehicle incident on 23 December 2016 in which he struck and killed a cyclist, Ann Formaz-Preston, while making a turn. The offender's own words to a witness at the scene captured the essence of what occurred: "I didn't see her." He had waited for an oncoming vehicle to pass before turning but failed to observe the cyclist in the path of his vehicle, despite the collision occurring in daylight hours.

The offender was initially charged with the more serious strictly indictable offence of Dangerous Driving Occasioning Death. After a negotiation period, the DPP withdrew that charge and accepted a plea of guilty to the summary offence of Negligent Driving Occasioning Death under s 117(1)(a) of the Road Transport Act 2013 (NSW).

Victim impact statements from the deceased's partner and mother were tendered through the DPP. These described the profound loss of a dedicated medical professional with significant personal and community contributions. The sentencing court acknowledged the grief and loss while noting that, as a matter of law, an offender cannot be sentenced more harshly simply because one victim's contributions to the community are considered greater than another's.

  • Whether a sentence of imprisonment was required for the offence of Negligent Driving Occasioning Death, or whether a community service order was appropriate.
  • What weight to give the utilitarian value of the guilty plea, given it was not entered at the earliest available opportunity but was made at a comparatively early stage in proceedings.
  • What period of licence disqualification to impose, given the automatic disqualification period of three years and the statutory minimum of 12 months.
  • How to assess the offender's degree of moral culpability and relevant subjective factors, including prior good character, remorse, and psychological impact.

Decision

The court found the offending constituted negligence beyond mere momentary inattention, characterising the failure to keep a proper lookout as a straightforward but serious breach of the duty all motorists carry. The court acknowledged the tragic outcome, the community impact of the death, and the need for general deterrence as relevant considerations under s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court also noted that the aggravated circumstances provisions of s 21A(2)(g) of that Act did not apply, consistent with the reasoning in R v Youkhana [2005] NSWCCA 231.

On the question of sentence, the court accepted that the offender was a person of prior good character, had expressed genuine remorse, and was experiencing psychological symptoms including anxiety, depression, and possible post-traumatic stress connected to the incident. These subjective factors, combined with the nature of the offending and the guilty plea, led the court to conclude that a sentence other than imprisonment was appropriate. A 20 per cent discount was applied for the utilitarian value of the plea, which was somewhat below the ordinary discount, reflecting that the plea was not entered at the first available opportunity and appeared to have been withheld as part of charge negotiations.

On the issue of licence disqualification, the court declined both the automatic three-year period and the statutory minimum of 12 months. The court accepted that the inability to drive created some genuine difficulty for the offender's wife in her medical practice and a marginal effect on his own employment. However, the court was explicit that these factors, taken together, did not justify imposing only the minimum period. A two-year disqualification was imposed as a middle position between the automatic and minimum periods.

Orders Made

  • The offender was convicted and ordered to undertake 300 hours of community service.
  • The offender was directed to report to Hornsby Community Corrections Office within seven days of the decision.
  • The offender was directed to complete the Traffic Offender Program within the community service order, if available.
  • The offender was disqualified from holding or obtaining a driver licence for a period of two years under s 225 of the Road Transport Act 2013 (NSW).

Key Takeaways

  • A conviction for Negligent Driving Occasioning Death under s 117(1)(a) of the Road Transport Act 2013 (NSW) does not automatically require a custodial sentence; the sentencing court found a community service order of 300 hours appropriate where the offending arose from a failure of attention rather than deliberate or aggravated conduct.
  • Failure to keep a proper lookout, even in the absence of any other aggravating circumstance such as speed or alcohol, can constitute negligence beyond momentary inattention sufficient to ground a finding of culpability for the purposes of the offence.
  • The utilitarian value of a guilty plea may attract a lesser-than-ordinary discount where it appears the plea was withheld as part of charge negotiations rather than entered at the first available opportunity, consistent with the principles in R v Borkowski [2009] NSWCCA 102.
  • Licence disqualification periods are not confined to the automatic or minimum statutory periods; the court may impose an intermediate period where the circumstances warrant, drawing on the guidance in the High Range Drink Driving Guideline Judgment [2004] NSWCCA 303.
  • The sentencing court confirmed that victim impact statements are relevant to assessing the impact of the crime on the community under s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), while also affirming that victims are of equal value in law regardless of individual contribution or achievement.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 5, 21A(3)
- Road Transport Act 2013 (NSW), ss 117(1)(a), 205(2)(d), 225

Cases:
- Bonsu v R [2009] NSWCCA 316
- DPP v Pelletier [2014] NSWLC 9
- Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol (No. 3 of 2002) [2004] NSWCCA 303
- R v Borkowski [2009] NSWCCA 102
- R v Foster (2001) 33 MVR 565
- R v Pyritz (1998) 29 MVR 90
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- R v Youkhana [2005] NSWCCA 231