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District Court 15 March 2019

R v Thornton

[2019] NSWDC 56

Assault & violenceTraffic & driving
SENTENCING TWO VICTIMS ASSESSMENT OF MORAL CULPABILITY NUMBER OF PEOPLE PUT AT RISK PRIOR TRAFFIC OFFENCES REMORSE ESTABLISHED

Citation: R v Thornton [2019] NSWDC 56
Court: District Court of New South Wales
Date: 15 March 2019
Judge: Hatzistergos DCJ

Background

On the evening of 16 February 2018, two police officers were struck and seriously injured while setting up a random breath testing operation on Campbelltown Road near Campbelltown. The offender was driving a Fiat Doblo south along the road when he picked up his mobile phone and read messages from his girlfriend. He was looking at his phone for an estimated 10 to 20 seconds, during which he traversed a bend without looking up, and did not see the marked police vehicle, its activated lights, or the officers at the car's boot until he was only four to five metres away. His vehicle collided with the stationary police car, crushing both officers between the vehicles.

One officer suffered a partial traumatic amputation of his right leg. The other sustained serious injuries including a broken leg and trauma to his arms and head. The offender exited his vehicle, retrieved a first aid kit, and was co-operative with police at the scene. He was arrested and gave detailed electronically recorded interviews in which he admitted to using his phone both on the Hume Highway beforehand and on Campbelltown Road at the time of the impact.

The offender pleaded guilty to two counts of dangerous driving occasioning grievous bodily harm under s 52A(3)(c) of the Crimes Act 1900 (NSW). The sentencing proceedings addressed a range of factors including the objective gravity of the offending, the extent of phone use during the journey, prior traffic offences, the offender's remorse, and whether sustained media coverage of the incident constituted extra-curial punishment warranting a reduced sentence.

  • What was the appropriate assessment of the offender's objective moral culpability, taking into account the duration of distracted driving and the number of people put at risk?
  • Did the offender's prior traffic history, including mobile phone offences, aggravate the sentence?
  • Was genuine remorse established on the evidence?
  • Did media scrutiny of the offender amount to extra-curial punishment that the court could take into account as a mitigating factor?
  • Was a sentence of full-time imprisonment required, or was an Intensive Corrections Order (ICO) an available and appropriate alternative?

Decision

Hatzistergos DCJ assessed the objective seriousness of the offending as above the mid-range. Key factors elevating culpability included the extended duration of mobile phone use commencing on the Hume Highway at 110 km/h, the sending of 29 messages between 7:45 pm and the collision, the entry of a PIN code to unlock the phone, the negotiation of a bend without looking at the road, and the number of police officers and other road users exposed to risk throughout that journey. The judge found that the use of a mobile phone while driving at highway speed represents a serious and conscious departure from the standard of a competent driver.

The court found that the offender's prior traffic record, which included a previous mobile phone offence, was an aggravating factor. The offender's youth (he was 21 at the time) and relative lack of a broader criminal history were taken into account, along with evidence of genuine remorse. The court accepted that his immediate co-operation with police, his admissions at the scene, and psychological evidence of ongoing distress demonstrated that his remorse was authentic rather than forensic.

On the question of media coverage, the court acknowledged the principle, drawn from cases including Ryan v The Queen (2001) 206 CLR 267, that extra-curial punishment can be taken into account as a mitigating factor. However, Hatzistergos DCJ found that the circumstances here did not warrant meaningful weight being given to this consideration. The court was also satisfied, having regard to the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), that the offending was too serious for an ICO. Full-time imprisonment was required. A recommendation was made that the offender be placed in the Young Adult Offenders programme.

Orders Made

  • The offender was convicted of two counts of dangerous driving occasioning grievous bodily harm.
  • An aggregate sentence of imprisonment of 3 years and 8 months was imposed, comprising:
  • A non-parole period of 2 years (12 January 2019 to 11 January 2021); and
  • An additional term of 1 year and 8 months (12 January 2021 to 11 September 2022), during which the offender would be eligible for parole.
  • Earliest release date: 11 January 2021.
  • A recommendation was made to the Commissioner for Corrective Services that the offender be placed in the Young Adult Offenders programme.
  • The offender was disqualified from driving for the statutory period of 3 years under s 205(2)(d) of the Road Transport Act 2013 (NSW), calculated to account for the suspension already in place from the date of arrest.

Key Takeaways

  • The District Court held that mobile phone use spanning an extended journey at highway speed, including unlocking a device with a PIN and sending multiple messages, elevates objective culpability well beyond a momentary lapse of attention.
  • A prior conviction for a mobile phone driving offence can be treated as an aggravating factor when the same conduct is repeated and causes serious harm.
  • Under the principles applied in Ryan v The Queen, extra-curial punishment from media coverage may reduce a sentence, but only where that exposure is demonstrated to be of sufficient weight; the court found no such basis on the facts here.
  • Genuine remorse, evidenced by immediate co-operation with police, frank admissions in interview, and independently verified psychological distress, can operate as a mitigating factor even where the offending is serious.
  • Where the objective seriousness of a dangerous driving offence involving catastrophic injuries to victims is assessed as above mid-range, full-time imprisonment will ordinarily be required, notwithstanding the availability of alternatives such as an ICO.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 21A, 23, 24, 26, 28, 44, 53A, 68, 69
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2018 (NSW)
- Road Transport Act 2013 (NSW), s 205(2)

Cases
- Ryan v The Queen (2001) 206 CLR 267
- R v Whyte (2002) 55 NSWLR 252
- R v Palu (2002) 134 A Crim R 174
- R v Takai [2004] NSWCCA 392
- R v Koosmen [2004] NSWCCA 359
- R v Janceski [2005] NSWCCA 288
- Harrigan v R [2005] NSWCCA 449
- R v Ngyuen [2008] NSWCCA 113
- Black v R [2010] NSWCCA 321
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Nashed v R [2010] NSWCCA 282
- R v AB [2011] NSWCCA 229
- Duncan v R [2012] NSWCCA 78
- R v Greaves [2014] NSWCCA 194
- Primmer v R [2015] NSWCCA 155
- Kerr v R [2016] NSWCCA 218
- Panetta v R [2016] NSWCCA 85
- R v Manok [2017] NSWCCA 232
- Mansweto v R [2018] NSWCCA 232
- R v Pullen [2018] NSWCCA 264
- R v Ellis (1986) 6 NSWLR 603