Citation: R v Jeans [2019] NSWDC 915
Court: District Court of New South Wales
Date: 25 October 2019
Judge: King SC DCJ
Background
The offender, a 61-year-old bus driver, appeared for sentence on two charges arising from a multi-vehicle collision on the Newell Highway near West Wyalong on 18 March 2018. At the time, a severe dust storm had dramatically reduced visibility on the highway, and several vehicles had already stopped or collided in the affected area. The offender was driving an unoccupied Scania bus northbound at speeds of between 86 and 103 kilometres per hour as he approached the storm.
The victims were a married couple travelling south in a Holden Colorado utility vehicle. Mr Gassman had stopped his vehicle due to the conditions. The offender's bus struck the stationary utility from behind at approximately 79 kilometres per hour, with no evidence of braking in the 12 metres prior to impact. The force of the collision pushed the utility and a Mitsubishi Lancer off the road and down an embankment. Mr Gassman suffered fatal intracranial and spinal injuries; his wife sustained fractured ribs and other injuries.
CCTV footage from inside the bus revealed the offender had been intermittently handling his iPhone in the period leading up to the crash, including in the minute immediately before the collision, when he appeared to be filming or photographing the approaching dust storm.
Legal Issues
- What sentence was appropriate for dangerous driving occasioning death (s 52A(1)(c), Crimes Act 1900), given the agreed facts and expert evidence about mobile phone use?
- Where did the offender's moral culpability sit on the sentencing scale, having regard to the manner of driving, the environmental conditions, and the role of the mobile phone?
- What weight should be given to the offender's guilty plea, remorse, rehabilitation prospects, and other subjective factors?
- Was a sentence of imprisonment necessary, or could an Intensive Correction Order (ICO) serve as an appropriate alternative?
- What sentence was appropriate for the concurrent offence of causing bodily harm by misconduct in charge of a motor vehicle (s 53, Crimes Act 1900)?
Decision
King SC DCJ rejected the defence submission that the offender's moral culpability was at the lower end of the scale. The court found that entering a dust storm at significant speed, without braking or reducing speed appropriately, constituted a serious and sustained failure to respond to an obvious environmental hazard. This was not a case of momentary inadvertence.
On the mobile phone question, the court accepted the common ground between the expert engineers: the offender was distracted to some undefined extent by using his phone, and that phone use made him at least three times more likely to be involved in a collision than a non-user. While the experts could not conclusively determine from the CCTV footage whether the offender was looking at his phone, the dust storm, or both at the moment of impact, the court treated the phone use as a significant aggravating feature of the manner of driving. Overall, the court assessed the offender's moral culpability as towards the higher end of the scale.
The court acknowledged several mitigating factors, including the offender's genuine remorse and contrition, his lack of prior criminal history, positive prospects for rehabilitation, and his 25% discount for the utility of his early plea of guilty. The court found that specific deterrence was not a significant sentencing consideration in the circumstances. However, it concluded that these subjective matters could not overcome the need for the sentence to reflect the serious consequences of the offending and, in particular, the imperative of general deterrence.
The court rejected the submission that an ICO was appropriate, finding that the custodial term warranted by the offending exceeded the duration eligible for an ICO. The offence of causing bodily harm by misconduct was treated as encompassed within the criminality addressed by the principal sentence, resulting in a concurrent fixed term.
Orders Made
- Convicted on Count 1 (dangerous driving occasioning death): sentenced to a non-parole period of 2 years, with a balance of term of 1 year and 6 months, giving a total sentence of 3 years and 6 months, commencing 25 October 2019.
- Convicted on Count 2 (causing bodily harm by misconduct in charge of a motor vehicle): sentenced to a fixed term of 6 months' imprisonment, served entirely concurrently with the sentence on Count 1.
- Automatic mandatory licence disqualification of 5 years applied.
- The backup charge of negligent driving occasioning death (first offence) was withdrawn and dismissed.
Key Takeaways
- Entering a dust storm at high speed without braking or meaningfully reducing speed was characterised by the District Court as a serious, sustained failure to respond to an obvious hazard, not mere momentary inadvertence, placing the offender's moral culpability towards the higher end of the scale.
- Mobile phone use in the lead-up to a fatal collision can constitute a significant aggravating feature of manner of driving even where expert evidence cannot conclusively establish that the phone, rather than another factor, was the sole cause of inattention.
- A 25% discount for the utilitarian value of a guilty plea, as established in Thomson & Houlton, applied to reduce the sentence, but could not override the paramount need for general deterrence in fatal dangerous driving cases.
- Strong subjective factors, including genuine remorse, no prior criminal history, and sound rehabilitation prospects, were given weight but were insufficient to displace a full-time custodial sentence where moral culpability was assessed as high.
- Where the duration of the appropriate custodial sentence exceeds the threshold for an Intensive Correction Order, an ICO is unavailable regardless of the offender's personal circumstances.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c), 53
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 166
Cases
- Thomson & Houlton (2000) 49 NSWLR 383 (guilty plea discount)