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District Court 17 May 2019

R v Rummukainen

[2019] NSWDC 452

HomicideTraffic & driving

Citation: R v Rummukainen [2019] NSWDC 452
Court: District Court of New South Wales
Date: 17 May 2019
Judge(s): Buscombe DCJ

Background

The offender was convicted by jury of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900, following a collision on 27 November 2016 on Gundaroo Road near Bellmount Forest. The offender had been working as a plasterer in Gunning that day and was driving his Toyota HiLux when his vehicle crossed onto the wrong side of a two-lane country road and struck an oncoming Hyundai sedan head-on. The driver of the Hyundai died at the scene.

The offender had consumed alcohol during the afternoon and had been using his mobile phone on the journey. He suffered serious injuries in the collision and was hospitalised until January 2017, reporting retrograde amnesia for the events of that afternoon.

The sentencing proceedings required Buscombe DCJ to determine the facts underlying the offence to the criminal standard, assess the objective seriousness of the offending, and impose an appropriate sentence.

  • What facts relevant to the offence could be established beyond reasonable doubt for the purpose of sentencing, given unresolved evidentiary disputes?
  • What was the objective seriousness of the offence in light of those established facts?
  • Whether the offender's subjective circumstances warranted a finding of special circumstances, justifying an extended parole period relative to the non-parole period.
  • Whether full-time custody was the appropriate sentencing disposition.

Decision

Factual findings at sentence

The court could not find beyond reasonable doubt that the offender's blood alcohol concentration was at or above the 0.05 limit at the time of the collision. Both expert witnesses ultimately conceded the BAC could have been either below or above that threshold. However, the court accepted unchallenged evidence that any level of alcohol causes some impairment, and found beyond reasonable doubt that the offender's driving skills were impaired to some degree. The court also found that shortly before the impact, the offender had been handling his mobile phone without hands-free equipment, but could not establish beyond reasonable doubt that phone use caused or contributed to him crossing onto the wrong side of the road. The precise cause of the vehicle crossing into the oncoming lane could not be determined to the required standard, though the combination of fatigue and alcohol was flagged as a probable contributor.

Objective seriousness

Applying the guideline judgment in R v Whyte, the court assessed the offending as being of moderate objective seriousness. Relevant factors included the degree of alcohol-related impairment (to an indeterminate extent), the recent mobile phone use, and the death of the victim. The absence of excess speed and the inability to definitively establish causation through alcohol or phone use tempered the assessment.

Subjective case and special circumstances

The court accepted that the offender had good prospects of rehabilitation, had no meaningful criminal history, had suffered significant physical injuries in the collision itself, and had shown genuine remorse. As this would be the offender's first period of custody, the court found special circumstances existed under the Crimes (Sentencing Procedure) Act, warranting a non-parole period that was shorter relative to the total sentence than the statutory default. The court rejected a submission that a sentence of two years or less was appropriate, holding that full-time custody was the only proper disposition on the facts.

Orders Made

  • Sentenced to 3 years' imprisonment commencing 17 May 2019 and expiring 16 May 2022, with a non-parole period of 18 months expiring 16 November 2020.
  • Driver's licence disqualified for 2 years.

Key Takeaways

  • At a sentencing hearing following trial, adverse factual findings must be proved beyond reasonable doubt; the District Court here declined to find that the offender's BAC exceeded 0.05, or that phone use caused the dangerous driving, because neither could be established to that standard.
  • A finding of some alcohol-related impairment of driving is available even where BAC cannot be fixed above the legal limit, provided there is expert evidence that any alcohol causes measurable impairment.
  • Under the guideline in R v Whyte, objective seriousness in dangerous driving occasioning death is assessed by reference to the nature and degree of the dangerous driving, including speed, intoxication, and distraction, weighed against what can actually be proved.
  • Special circumstances may be found where an offender is entering custody for the first time and has strong rehabilitation prospects, even where the offending involved a fatality and full-time custody is required.
  • The maximum penalty of 10 years' imprisonment operates as the legislative guidepost in accordance with Muldrock v The Queen, calibrating where a particular offence sits within the range of seriousness.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases
- R v Whyte (2002) 55 NSWLR 252 (guideline judgment on dangerous driving occasioning death)
- Muldrock v The Queen (2011) 244 CLR 120 (role of maximum penalty as sentencing guidepost)