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District Court 11 November 2019

R v Fennell (No 2)

[2019] NSWDC 652

Traffic & driving
SENTENCING DANGEROUS DRIVING CAUSING DEATH AFTER TRIAL MORAL CULPABILITY NOT LOW BUT NOT HIGH RELEVANT FACTORS ON SENTENCING DEATH OF PEDESTRIAN

Citation: R v Fennell (No 2) [2019] NSWDC 652
Court: District Court of New South Wales
Date: 11 November 2019
Judge: Haesler SC DCJ

Background

On 7 September 2017, a 23-year-old driver struck a 78-year-old pedestrian in a designated high pedestrian area at Oak Flats, south of Wollongong. The driver had just left work following an argument with her employer and was travelling at an estimated 58 km/h in a 40 km/h zone as she exited a roundabout. The pedestrian had stepped from a pedestrian refuge onto the roadway. She died in hospital some days after the collision.

The driver was charged with driving in a manner dangerous to another person and occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW). She pleaded not guilty. A jury at Wollongong District Court returned a guilty verdict on 8 August 2019.

The sentencing judgment followed. The driver was a young mother, had good prior character, and showed genuine remorse. These matters were weighed against the objective seriousness of the offence and the need for general deterrence.

  • What was the appropriate sentence for dangerous driving causing death after a contested trial, having regard to the objective circumstances and the offender's subjective factors?
  • How should the moral culpability of the offender be assessed, and where did it fall on the spectrum from low to high?
  • What weight should be given to good character, youth, remorse, and the impact of custody on the offender's young children?
  • Were there special circumstances justifying a variation to the standard non-parole period ratio?

Decision

The court assessed the offender's moral culpability as neither low nor high, but clearly above the threshold for a non-custodial outcome. The key objective features were driving at 58 km/h in a well-signposted 40 km/h pedestrian zone, and distraction caused by anger following the workplace dispute and attention directed at a parked van rather than the roadway. The jury had rejected the defence contention that the pedestrian stepped into the vehicle without warning.

His Honour applied the principles from R v Whyte (2002) 55 NSWLR 252, which confirmed that a custodial sentence will ordinarily be required unless moral culpability is low, such as in a case of momentary inattention alone. The court noted that the offence involved a combination of factors: excessive speed for the conditions, reduced capacity to stop in time, and a failure to keep a proper lookout in an area specifically designated to protect pedestrians.

Subjective factors in the offender's favour included good character, genuine remorse, psychological harm, her role as a mother to young children, and strong prospects for rehabilitation. The court acknowledged the hardship that imprisonment would impose on her family. However, consistent with the guideline principles for this type of offence, the court held that good character and personal circumstances must yield substantial weight to the need for general deterrence and proportionate punishment. Retribution also remained a relevant purpose.

Special circumstances were found, justifying an extended parole period relative to the non-parole period. The court acknowledged the impact of the sentence on the offender's children and directed that she be assessed for the Corrective Services NSW Mothers and Children's Program at Jacaranda House.

Orders Made

Charge under s 52A(1)(c) Crimes Act 1900:
- Convicted
- Non-parole period of 1 year, commencing 8 November 2019 (release to parole 7 November 2020)
- Parole period of 2 years
- Total sentence of 3 years, expiring 7 November 2022
- Disqualified from driving for 3 years

Charge under s 166 Criminal Procedure Act:
- Convicted
- No additional penalty imposed pursuant to s 10A Crimes (Sentencing Procedure) Act 1999
- Disqualified from driving for 3 months

Additional direction:
- The Registrar of the District Court was directed to request that the offender be assessed for the Corrective Services NSW Mothers and Children's Program at Jacaranda House.

Key Takeaways

  • A custodial sentence for dangerous driving causing death will ordinarily be required unless moral culpability is low, such as where the dangerous driving consisted only of momentary inattention or misjudgement, consistent with the principles in R v Whyte.
  • Driving significantly above the speed limit in a designated high pedestrian area, combined with driver distraction, placed this offence above the low-culpability threshold even where the offender had good character and demonstrated genuine remorse.
  • Where a dangerous driving causing death offence is involved, good character and compelling personal circumstances receive less weight than they would in other sentencing exercises. The need for general deterrence and proportionate retribution will ordinarily prevail.
  • A finding of special circumstances permitted the court to extend the parole period beyond the standard ratio, taking into account the offender's rehabilitation prospects and the interests of her children.
  • The District Court also flagged a practical administrative failure. The offender spent an unexplained period in police cells rather than being transported to a corrections facility as directed, and the court indicated it would make enquiries to prevent recurrence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A
- Road Transport Act 2013 (NSW)
- Criminal Procedure Act (NSW), s 166

Cases:
- R v Whyte (2002) 55 NSWLR 252
- R v Musumeci, NSWCCA, unreported, 30 October 1997
- Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Power v The Queen (1974) 131 CLR 623
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23
- R v Edwards (1996) 90 A Crim R 510
- R v Errington (2005) 157 A Crim R 553
- R v SLR (2000) 116 A Crim R 150
- R v Smith [2016] NSWCCA 75
- Hoskins v R [2016] NSWCCA 157
- HJ v R [2014] NSWCCA 21
- Dipangkear v R [2010] NSWCCA 156
- Legge v R [2007] NSWCCA 244
- R v McKeown [2013] NSWDC 22
- R v Fennell [2019] NSWDC 397 (the trial judgment)