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District Court 16 February 2018

R v Marc Leopold Streel

[2018] NSWDC 15

HomicideTraffic & driving

Citation: R v Marc Leopold Streel [2018] NSWDC 15
Court: District Court of New South Wales
Date: 16 February 2018
Judge: Mahony SC DCJ

Background

The offender, a 56-year-old man with no prior criminal history, was sentenced after pleading guilty to dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900. The offence occurred on 17 January 2017 on Blackhead Road at Hallidays Point, on the Mid North Coast of New South Wales.

The offender had consumed five schooners of beer at a local hotel between approximately 3.22pm and 5.32pm before driving home. While travelling at 80 km/h, he dropped a lit cigarette onto his shorts, looked down momentarily to retrieve it, and allowed his vehicle to drift across the fog line onto the gravel shoulder. He then oversteered sharply to the right, causing the vehicle to slide across into the oncoming lane.

The offender's four-wheel drive collided heavily with a motorcycle ridden by a 60-year-old man travelling in the opposite direction. The force of the impact caused the motorcycle to disintegrate and the rider was thrown approximately 30 metres, sustaining catastrophic injuries from which he died at the scene.

Legal Issues

  • Whether the offender's moral culpability should be characterised as falling at the lower end of the sentencing range, consistent with mere momentary inattention and misjudgement under the guideline judgment in R v Whyte
  • Whether the offender's blood alcohol content of 0.065 g/100 ml constituted an aggravating factor that elevated his moral culpability above the lower range
  • Whether the oversteering that caused the collision amounted to momentary misjudgement, or instead reflected impaired driving ability
  • Whether an alternative to full-time custody was appropriate, and whether special circumstances existed to vary the standard ratio between the head sentence and the non-parole period

Decision

Issue 1: Objective seriousness and momentary inattention versus misjudgement

The court accepted that the offender's conduct in looking down for less than one second constituted momentary inattention (at [60]). However, the court rejected the submission that what followed was also momentary misjudgement (at [68]). The oversteering and loss of control that sent the vehicle into the oncoming lane was found to be a product of impaired driving skills caused by the offender's blood alcohol level, not a mere misjudgement that any sober driver might make (at [68]).

Issue 2: Role of blood alcohol level in assessing moral culpability

Dr Perl's forensic pharmacology evidence placed the offender's blood alcohol content at 0.065 g/100 ml at the time of the collision. At that level, she opined there would be some impairment of perception, judgment, divided attention, visual functions, and emergency reaction skills (at [59]). The court accepted this opinion and found that the blood alcohol reading was an aggravating factor that lifted moral culpability above the lower end of the range (at [59]-[60]). The offender had consumed five schooners of beer within two hours and, the court found, must have known he was likely over the limit when he left the hotel (at [60]).

Issue 3: Overall objective seriousness

The court placed the offending below the mid-range of objective seriousness, given the absence of other aggravating factors, but above the lower range on account of the blood alcohol reading (at [61]). The moral culpability of the offender was described as significantly above the lowest level (at [61]).

Issue 4: Sentencing outcome, alternatives to custody, and special circumstances

The court concluded, after considering all alternatives, that no penalty other than imprisonment was appropriate (at [69]). The offender was entitled to a 25% utilitarian discount for his early plea of guilty, and genuine remorse and low reoffending risk were also taken into account (at [65]). The court found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999, on the basis that this was the offender's first custodial sentence and he required ongoing psychological treatment, and varied the non-parole period accordingly (at [67], [69]). The back-up low-range PCA charge was dealt with by conviction under s 10A with no further penalty, as it was a first offence across 37 years of driving and the blood alcohol content had already been taken into account as an aggravating factor on the principal charge (at [70]).

Orders Made

  • Convicted of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900
  • Sentenced to a non-parole period of 14 months imprisonment, commencing 16 February 2018 and expiring 15 April 2019
  • Balance of term of 13 months imprisonment, from 16 April 2019 and expiring 15 May 2020 (head sentence: 2 years 3 months)
  • Parole eligibility date: 15 April 2019
  • On the back-up low-range PCA charge (s 110(3)(a) Road Transport Act 2013, dealt with by s 166 Certificate): convicted under s 10A of the Crimes (Sentencing Procedure) Act 1999, with no further penalty imposed

Key Takeaways

  • A finding of momentary inattention does not automatically produce a finding of momentary misjudgement. The District Court drew a clear distinction between the two concepts: looking away from the road momentarily was inattention, but the subsequent loss of control through oversteering was attributed to alcohol-impaired reaction and judgment, not to a misjudgement that might have occurred regardless of intoxication (at [60], [68]).

  • Under the Whyte guideline, non-custodial alternatives to imprisonment for dangerous driving occasioning death are generally confined to cases of true momentary inattention or misjudgement. Where alcohol impairment contributes to the causation of the fatal event, even at the lower end of the impairment range, moral culpability may be lifted beyond the range in which such alternatives are available (at [59]-[60], [69]).

  • Blood alcohol content below the mid-range is still capable of functioning as a meaningful aggravating factor when expert evidence establishes that it would have affected the specific driving skills engaged at the time of the collision, including emergency reaction skills (at [59]).

  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 can be established on the combined basis of a first-time custodial sentence and the offender's demonstrated need for continuing psychological treatment, justifying a reduction in the non-parole period relative to the head sentence (at [67], [69]).

  • Where a blood alcohol level has been treated as an aggravating factor on a principal dangerous driving charge, a court may deal with a related low-range PCA offence by conviction only under s 10A of the Crimes (Sentencing Procedure) Act 1999, imposing no further penalty, to avoid double-counting (at [70]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Road Transport Act 2013

Cases
- R v Berg [2004] NSWCCA 300
- R v Jurisic [1998] 45 NSWLR 209
- R v Whyte (2002) NSWCCA 343