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Local Court 15 September 2017

R v Sarullah Mirzaie

[2017] NSWLC 20

Assault & violenceTraffic & driving
CRIMINAL LAW PARTICULAR OFFENCES DRIVING OFFENCES DANGEROUS DRIVING GRIEVOUS BODILY HARM FURIOUS DRIVING PART OF DANGEROUSNESS

Citation: R v Sarullah Mirzaie [2017] NSWLC 20
Court: Local Court of NSW (Downing Centre)
Date: 15 September 2017
Judge: Magistrate P Stewart

Background

The offender was driving a Toyota Echo hatchback along Horsley Drive, Wetherill Park, at around 12:48pm on 27 May 2016, carrying four female passengers. He was travelling at a speed in excess of the posted 70km/h limit along an uphill stretch with a sweeping left-hand bend. When a Hino truck moved into a right-turn lane ahead of him, the offender braked hard, skidded approximately 36 metres, and collided heavily with the side of the truck. All four passengers were trapped and required extraction by emergency services.

The four passengers sustained serious injuries. The offender's girlfriend suffered a severe traumatic brain injury requiring an induced coma, with lasting cognitive and physical impairments. Two other passengers sustained multiple fractures requiring surgery. A fourth passenger sustained spinal and other injuries and developed an anxiety disorder. Alcohol was not a factor.

The offender pleaded guilty to one count of Dangerous Driving Occasioning Grievous Bodily Harm (the primary charge, concerning one passenger). He also asked the court to take into account on a Form 1 two further counts of Dangerous Driving Occasioning Grievous Bodily Harm and one count of Furious Driving Causing Bodily Harm, relating to the other three passengers.

  • What discount should apply for the guilty plea, given it was entered on the day of hearing?
  • What weight should be given to the offender's conditional liberty at the time of the offending, and to his driving record?
  • How should the severity and number of victims' injuries bear on the sentence?
  • What were the appropriate sentencing objectives, including general and specific deterrence and retribution?
  • Whether special circumstances existed to justify a non-parole period departing from the standard ratio.
  • How to re-sentence the offender on the revoked section 9 bonds.

Decision

Magistrate Stewart allowed only a 10% discount for the guilty plea, applying the principles from R v Thompson; R v Houlton. The plea was entered on the day of hearing, not at an early opportunity, and the Magistrate rejected the submission that a 15 to 20% discount was warranted.

The Magistrate identified several significant aggravating features. The offending occurred while the offender was on multiple conditional liberty bonds. He remained a provisional licence holder with 11 traffic infringements on his record, including prior speeding offences. The Magistrate found the driving was not a momentary lapse of attention but involved a sustained abandonment of responsibility, with excessive speed forming part of the dangerousness of the driving.

The severity of the injuries, particularly the lasting traumatic brain injury suffered by the primary victim, was a prominent consideration. The Magistrate found that such serious harm required retribution as a sentencing objective alongside general and specific deterrence. The number of victims and the Form 1 matters also weighed on the overall assessment of seriousness.

A finding of special circumstances was made, resulting in a non-parole period set at 14 months of the 2-year maximum term available to the Local Court. The Magistrate noted that the jurisdictional limit of 2 years imprisonment is not reserved for worst cases, applying R v Doan. The revoked bonds were dealt with by way of concurrent fixed terms of 3 months imprisonment on the Affray and Assault matters, and a bare conviction recorded on the Receiving matter.

Orders Made

  • The offender was sentenced to 2 years imprisonment for Dangerous Driving Occasioning Grievous Bodily Harm (victim: Paula Simon), commencing 15 September 2017 and expiring 14 September 2019.
  • A non-parole period of 14 months was set (15 September 2017 to 14 November 2018), with supervised parole upon release.
  • Special circumstances were found.
  • Two further counts of Dangerous Driving Occasioning Grievous Bodily Harm and one count of Furious Driving Causing Bodily Harm were taken into account on a Form 1.
  • The offender was disqualified from driving for the automatic period of 3 years.
  • The section 9 bonds for Assault Occasioning Actual Bodily Harm and two counts of Affray were revoked; the offender was sentenced to concurrent fixed terms of 3 months imprisonment (15 September 2017 to 14 December 2017).
  • On the Receiving matter, the bond was revoked and a bare conviction recorded under section 10A of the Crimes (Sentencing Procedure) Act 1999.

Note: On appeal, the District Court upheld the appeal in part on 12 October 2017 and reduced the non-parole period from 14 months to 8 months.

Key Takeaways

  • A guilty plea entered on the day of hearing attracted only a 10% utilitarian discount; the Magistrate confirmed there was no basis for a higher discount in those circumstances, consistent with Thompson; Houlton and Borkowski.
  • Offending while subject to multiple conditional liberty bonds is a statutory aggravating factor under section 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, and the Magistrate treated it as such even where the bonds were already in their extended form following a prior call-up.
  • Dangerous driving that involves sustained excessive speed and a wholesale abandonment of driving responsibility is treated more seriously than momentary inattention; the furious nature of the driving was treated as part of the overall dangerousness.
  • Where grievous bodily harm of a severe and lasting kind is established, retribution operates as a legitimate and prominent sentencing objective alongside deterrence.
  • Under R v Doan, the Local Court's 2-year jurisdictional limit is not reserved for the worst category of cases, meaning mid-range or serious offending can still attract the maximum available term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(3), 53
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A(2)(j)
- Road Transport Act 2013 (NSW), s 205(2)(d)

Cases
- Gonzalez v R [2006] NSWCCA 4
- R v Borkowski [2009] NSWCCA 102
- R v Campton [2004] NSWCCA 56
- R v Christoff [2003] NSWCCA 52
- R v Doan (2000) 50 NSWLR 115
- R v Dodd (1991) 57 A Crim R 349
- R v Dunlop [2001] NSWCCA 435
- R v Dutton [2005] NSWCCA 248
- R v Errington (2005) 157 A Crim R 553
- R v Gardiner [2004] NSWCCA 365
- R v Janceski [2005] NSWCCA 228
- R v Jurisic (1998) 45 NSWLR 209
- R v Khatter [2000] NSWCCA 32
- R v Rushby [1977] 1 NSWLR 594
- R v Slattery (1996) 90 A Crim R 519
- R v Smith (1997) 95 A Crim R 373
- R v Taylor [2000] NSWCCA 442
- R v Thompson; R v Houlton [2000] NSWCCA 309
- R v Tzanis (2005) 44 MVR 160
- R v Whyte [2002] NSWCCA 345