Citation: R v Hoskins [2019] NSWDC 278
Court: District Court of NSW
Date: 14 June 2019
Judge: Weber SC DCJ
Background
A 21-year-old man was driving a hired vehicle along Lachlan Street, Waterloo, when a 20-year-old pedestrian stepped onto the road and was struck by his car. The pedestrian was taken to hospital and died that afternoon. The driver's licence was suspended at the time of the collision.
Rather than stopping to assist, the offender drove away from the scene. CCTV captured his vehicle passing through a red traffic light shortly after the impact. He later told police he had decided to flee because he knew he should not have been driving, and he admitted knowing that the pedestrian had died.
The offender presented himself to police the following day and participated in a recorded interview. He pleaded guilty in the Local Court to three charges: failing to stop and assist after a vehicle impact causing death, proceeding through a red traffic light, and driving while his licence was suspended.
Legal Issues
- What was the appropriate objective seriousness of the principal offence under s 52AB(1) of the Crimes Act 1900 (NSW)?
- What weight, if any, should be given to the offender's disadvantaged upbringing in assessing his moral culpability?
- What sentence, licence disqualification period, and financial penalty were appropriate across all three offences, having regard to the principles of accumulation, concurrency, and totality?
Decision
Objective seriousness: Weber SC DCJ placed the principal offence in the mid-range of objective seriousness. The offender not only knew he had struck the pedestrian but knew she had died before fleeing. The departure from the scene was not a blind panic response but a calculated decision driven by the offender's awareness that he was driving unlicensed. Importantly, there was no suggestion that the manner of his driving contributed to the fatality, which the court regarded as a relevant moderating factor.
Moral culpability and upbringing: The offender relied on a forensic psychologist's report describing a troubled childhood marked by his mother's drug use, domestic violence, and physical and psychological abuse by his stepfather. The court accepted those difficult circumstances but declined to treat them as reducing the offender's moral culpability for this offence. The agreed facts showed the decision to flee was driven by a specific, practical concern about his licence status, not by any generalised flight response attributable to childhood trauma. The court did accept the offender's efforts to overcome that upbringing as relevant to his prospects of rehabilitation and his low likelihood of reoffending.
Sentence: The court imposed a term of three years' imprisonment with a non-parole period of 18 months, commencing 7 September 2018 (the date the offender entered custody). For the two remaining charges (red light and suspended licence), the court convicted the offender under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), meaning convictions were recorded but no additional custodial penalty was imposed.
Disqualification and financial penalty: The court declined to impose a lengthy disqualification period or any pecuniary penalty. Because the offender was a qualified plumber, an extended licence disqualification or heavy fine would undermine his rehabilitation by leaving him unemployed and in debt on release. The minimum disqualification of 12 months was imposed for the principal offence, with a concurrent six-month disqualification for the suspended-licence offence. Under s 206A of the Road Transport Act 2013 (NSW), the disqualification period does not begin running until the offender is released from custody.
Orders Made
- Convicted of the principal offence under s 52AB(1) of the Crimes Act 1900 (NSW) and sentenced to 3 years' imprisonment with a non-parole period of 1 year and 6 months, commencing 7 September 2018 (non-parole period expiring 6 March 2020).
- Convicted under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for the red-light offence (s 59(1) Road Rules 2014) and the suspended-licence offence (s 54(3)(a) Road Transport Act 2013), with no further penalty imposed.
- Disqualified from holding a driver's licence for 12 months in respect of the principal offence and 6 months in respect of the suspended-licence offence, both periods to run concurrently and to commence upon release from custody.
- No pecuniary penalty imposed.
Key Takeaways
- Under s 52AB(1) of the Crimes Act 1900 (NSW), the absence of any causal link between the driver's conduct and the fatality is a relevant factor moderating objective seriousness, as confirmed by reference to Adam v R [2014] NSWCCA 265.
- A calculated, self-interested decision to flee (here, to avoid detection for driving unlicensed) will weigh against an offender more heavily than a genuine panic response when a court assesses moral culpability.
- Evidence of a disadvantaged upbringing will not automatically reduce moral culpability where the agreed facts point to a specific, rational motivation for the offending conduct that is independent of that background.
- Rehabilitation considerations can justify imposing the minimum available licence disqualification period and foregoing a pecuniary penalty entirely, particularly where an offender has vocational skills that depend on a licence.
- Pursuant to s 206A of the Road Transport Act 2013 (NSW), a disqualification period is extended by the time spent in custody, so the practical effect of even a minimum disqualification begins only upon release.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 52AB(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Road Rules 2014 (NSW), s 59(1)
- Road Transport Act 2013 (NSW), ss 54(3)(a), 205(2)(d), 206A
- Road Transport (Driver Licensing) Regulation 2017 (NSW)
Cases
- Adam v R [2014] NSWCCA 265
- R v Pullen [2018] NSWCCA 264