Citation: R v Zreika [2019] NSWDC 864
Court: District Court of New South Wales
Date: 28 August 2019
Judge: Bourke SC DCJ
Background
The offender was driving a 6.5-tonne tip truck on a residential street in Merrylands, Sydney, in July 2017 when he suffered a seizure at the wheel. The truck crossed into oncoming traffic, sideswiped another vehicle, mounted the footpath, and struck two pedestrians who were gardening. One man died at the scene from catastrophic head and internal injuries. The other suffered very serious injuries.
A blood sample taken at hospital revealed tramadol at levels above the therapeutic range, consistent with toxicity or overdose. A box of tramadol prescribed to the offender had been purchased the previous evening, with six tablets missing. The offender also had traces of diazepam and cocaine metabolites in his blood, though the court found those substances played no relevant role in the collision.
The offender had a prior episode in January 2016 consistent with a generalised tonic-clonic seizure. At that time, he had discharged himself from hospital against medical advice and had been specifically warned not to drive until cleared by specialists. A jury found him guilty on both counts of dangerous driving after a trial in May and June 2019.
Legal Issues
- Whether the offender's driving was objectively dangerous, and whether he lacked an honest and reasonable belief that it was safe for him to drive
- What factual findings the sentencing judge should make, consistent with the jury's verdicts, as to the causes of the dangerous driving (medical condition, drug intoxication, or phone distraction)
- What weight to give subjective factors including the offender's medical history, remorse, family circumstances, and lack of prior criminal record
- Whether special circumstances justified varying the standard ratio between the non-parole period and the head sentence
Decision
The judge found that the offender had an undiagnosed and untreated epileptic condition at the time of the collision, and that he suffered a seizure while driving. The critical finding was that the offender had been explicitly warned in January 2016 not to drive until seen by a neurologist and cardiologist, and that he understood those warnings clearly. By continuing to drive without seeking specialist clearance, he took a serious and unjustifiable risk.
On the question of drug intoxication, the judge found that the tramadol level in the offender's blood was above the therapeutic range and likely in the toxic range. The court accepted that tramadol intoxication contributed to the dangerous driving, while the diazepam and cocaine metabolites were found to be irrelevant. The court could not make definitive findings as to the precise timing of the seizure, nor whether the offender had been distracted by a phone call.
The judge assessed the offending as above mid-range in objective seriousness. The deaths and injuries of innocent pedestrians, the disregarded medical warnings, and the elevated tramadol levels all weighed heavily. The offender's remorse, lack of prior criminal convictions, good character evidence, and family circumstances were accepted as mitigating factors, though the court noted scepticism about a psychological report that treated his driving history as a neutral protective factor.
Special circumstances were found to justify a departure from the standard non-parole period ratio, given that this was the offender's first time in full-time custody and that ongoing medical supervision would be important after release.
Orders Made
- Aggregate sentence of six years' imprisonment for the two dangerous driving offences, commencing 4 June 2019 and expiring 3 June 2025
- Non-parole period of four years, expiring 3 June 2023 (reflecting special circumstances)
- Driving disqualification for the automatic period of three years under the Road Transport Act 2013, commencing upon release to parole
- Charges at sequences 3, 4, and 7 on the s 166 certificate withdrawn and dismissed
- Offences of driving while suspended and driving with an unsecured load dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999: conviction recorded, no further penalty imposed
Key Takeaways
- A driver who continues to operate a vehicle after receiving explicit medical warnings not to drive, and who later causes a fatal collision, may be found to have lacked an honest and reasonable belief that it was safe to drive, even where the immediate cause of the crash was a seizure.
- Drug intoxication at above-therapeutic levels can form part of the factual basis for dangerous driving, even where another concurrent medical event (such as a seizure) also contributed to loss of vehicle control.
- The District Court declined to treat an absence of prior criminal convictions as straightforwardly mitigating where the offender's driving history and the nature of the offending qualified that characterisation.
- Special circumstances justifying a reduced non-parole period ratio can be established by a combination of first-time custody and the need for extended supervised release to manage a serious medical condition.
- Where a jury verdict does not specify which of several pleaded bases for "dangerous driving" it accepted, the sentencing judge must make independent factual findings on each basis, provided those findings remain consistent with the verdicts returned.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 10A and 166 (via Criminal Procedure Act 1986)
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW)
Cases
- R v Whyte (2002) 55 NSWLR 252