Citation: R v Dany Mazbouh [2018] NSWDC 46
Court: District Court of New South Wales
Date: 9 March 2018
Judge: Judge AC Scotting
Background
The offender pleaded guilty in the District Court to two charges arising from a collision at a pedestrian crossing in Strathfield on 29 January 2016. He had been driving along Raw Square when he failed to stop at a red traffic light at the intersection with Churchill Avenue, striking three pedestrians who were crossing on a green walk signal. One victim, Louisa Huang, died two days later from her injuries. The other two pedestrians sustained significant fractures and other physical harm.
The offender voluntarily attended Penrith Police Station the following day and participated in an electronically recorded interview. He maintained throughout that he had believed the lights were green when he entered the intersection and that he attempted to brake and swerve when he saw the pedestrians. The prosecution accepted it could not exclude the possibility that the offender had seen a green light at a different intersection, and did not allege that excessive speed was involved.
The charges were dangerous driving occasioning death (Count 1, maximum 10 years) and dangerous driving occasioning grievous bodily harm (Count 2, maximum 7 years). A further charge of causing bodily harm by misconduct whilst in charge of a motor vehicle was placed on a Form 1 (meaning it was taken into account during sentencing without a separate conviction).
Legal Issues
- What was the appropriate objective seriousness of the offending, given the absence of speed or intoxication as aggravating features?
- Were there applicable mitigating factors, including remorse, good prospects of rehabilitation, and the offender's mental health (diagnosed post-traumatic stress disorder)?
- What discount should apply to reflect the utilitarian value of the guilty plea entered in the District Court?
- Was imprisonment the only appropriate sentencing option, and if so, was an Intensive Corrections Order (ICO) a suitable means of serving that sentence?
Decision
Judge Scotting found no aggravating factors in the circumstances of the offending. The collision did not involve excessive speed, alcohol, drugs, or deliberate disregard of a known red light. The court accepted the agreed facts, including the prosecution's concession that it could not prove the offender consciously ignored the red signal.
Three mitigating factors were established. First, the offender had good prospects of rehabilitation, having continued to work and support his family in difficult circumstances after the collision; the court was satisfied that the sentence and disqualification period would alter his future driving behaviour. Second, the offender had demonstrated genuine remorse and contrition, as expressed to the psychologist, to family and friends, and to the court. Third, the guilty plea, entered in the District Court, attracted a 15% discount on the utilitarian basis recognised in R v Thomson & Houlton and R v Borkowski, with the court noting the plea also provided further evidence of remorse.
The court determined that no penalty other than imprisonment was appropriate after considering all alternatives under section 5 of the Crimes (Sentencing Procedure) Act 1999. The base terms were 21 months for Count 1 (incorporating the Form 1 matter) and 12 months for Count 2, each discounted by 15% for the guilty plea. Partial accumulation of the two sentences was imposed to reflect the distinct criminality of each offence, producing a total head sentence of two years.
The court identified the matter as appropriate for consideration of an Intensive Corrections Order and referred the offender for an ICO suitability assessment, adjourning the proceedings part-heard to 20 April 2018.
Orders Made
- The offender was convicted on both counts.
- A sentence of two years imprisonment was imposed (head sentence), comprising 21 months for Count 1 and 12 months for Count 2, partially accumulated, with each term discounted by 15% for the guilty plea.
- The Form 1 offence was taken into account in the sentence for Count 1.
- The offender was disqualified from driving for the automatic period.
- The offender was referred for assessment of suitability for an Intensive Corrections Order.
- The offender was directed to report to the Penrith Community Corrections Office by 4pm on Monday 12 March 2018.
- Proceedings adjourned part-heard to 20 April 2018.
Key Takeaways
- The District Court found no aggravating factors where dangerous driving causing death involved neither excessive speed nor intoxication, and where the prosecution could not exclude a genuine perception by the driver that the lights were green.
- A guilty plea entered in the District Court attracted a 15% discount, consistent with the approach in R v Thomson & Houlton and R v Borkowski, reflecting both the utilitarian value of the plea and its evidentiary significance as an indicator of remorse.
- Genuine remorse and good prospects of rehabilitation were accepted as mitigating factors under the Crimes (Sentencing Procedure) Act 1999, supported by the offender's psychological report, continued employment, and family responsibilities.
- Under section 5 of the Crimes (Sentencing Procedure) Act 1999, the court determined imprisonment was the only appropriate penalty for offences of this nature, even where mitigating factors were present and no aggravating factors existed.
- Partial accumulation of sentences for separate counts was applied to reflect the distinct criminality of causing death to one victim and grievous bodily harm to another in the same incident.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c), 53
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(3)(h), 21A(3)(i), 21A(3)(k), 22
Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1
- R v Whyte (2002) 55 NSWLR 252