Citation: R v Wheway [2020] NSWDC 25
Court: District Court of New South Wales
Date: 28 January 2020
Judge: Tupman DCJ
Background
The offender, a scaffolder, drove his Ford Ranger onto the M1 Motorway at Wahroonga on a Friday afternoon in March 2018, heading home to Wyong after work. Over approximately 32 kilometres, his dashcam recorded a pattern of erratic driving that included weaving across lanes, tailgating, undertaking, and travelling at speeds above the posted limits, with portions reaching around 132 kilometres per hour in 100 or 110 kilometre-per-hour zones.
Just before the collision, the offender drove quickly up behind a vehicle being driven by the deceased, Mr Harvey, who was travelling in the middle lane. The offender indicated to overtake, but Mr Harvey braked sharply and unexpectedly. The offender's vehicle struck Mr Harvey's, causing his death. A third driver, Mr Vororath, sustained bodily harm in the collision.
The offender had originally faced three charges, including manslaughter by gross criminal negligence. A jury acquitted him of manslaughter. He maintained earlier guilty pleas to dangerous driving occasioning death (s 52A(1)(c) Crimes Act 1900) and causing bodily harm by dangerous driving misconduct (s 53 Crimes Act 1900), which proceeded to sentencing before Tupman DCJ.
Legal Issues
- What was the appropriate sentence for dangerous driving occasioning death, taking into account the nature and extent of the erratic driving and the circumstances of the collision itself?
- How should the court apply the guideline principles from R v Jurisic and R v Whyte in assessing objective seriousness?
- What weight should be given to mitigating factors including early guilty pleas, genuine remorse, youth, good rehabilitation prospects, and the fact that the erratic driving was not continuous up to the point of impact?
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio.
- What periods of licence disqualification were appropriate, given a prior traffic record?
Decision
Tupman DCJ assessed the objective seriousness of the dangerous driving occasioning death offence as falling in the mid-range, with some features pulling in different directions. The erratic driving, including weaving, tailgating, and speeding, was serious and had been captured clearly on the offender's own dashcam. However, the driving was not continuous right up to the moment of impact: in the period before the collision, the offender was travelling below the speed limit, and the immediate cause of the crash was Mr Harvey's unexplained sharp braking. There was no alcohol, no drugs affecting his driving, and no competitive or road-rage element.
The court applied the Whyte guideline factors and found a number of significant mitigating circumstances. The offender entered early guilty pleas, attracting a 25 per cent discount. He was young, had expressed genuine remorse, and had good prospects of rehabilitation. His prior traffic record was noted but not treated as an aggravating factor. The court found special circumstances, given that it was his first time in custody and his youth, justifying a longer-than-standard parole period to support his reintegration.
For the disqualification periods, the court noted that disqualification is not punitive in purpose but reflects the need to protect other road users. The offender had a prior traffic offence (a special range PCA in 2014), which the court took into account. A three-year disqualification period was imposed for both the driving offences, in preference to the two-year minimum, but not the five-year mandatory maximum.
Orders Made
- Count 2 (dangerous driving occasioning death): sentenced to imprisonment with a non-parole period of 21 months commencing 9 September 2018, expiring 8 June 2020, followed by parole of 15 months expiring 8 September 2021 (overall term: 3 years).
- Count 3 (causing bodily harm by misconduct): a concurrent sentence was imposed within the overall term above.
- Licence disqualification of 3 years for both counts 2 and 3, to run concurrently with each other.
- Section 166 summary matters: two charges withdrawn and dismissed; two charges (including driving with illicit drugs in blood) convicted under s 10A of the Crimes (Sentencing Procedure) Act 1999 with no further order, except a concurrent 6-month licence disqualification for the illicit drugs driving offence.
Key Takeaways
- The District Court confirmed that erratic driving over a substantial distance can constitute dangerous driving for the purposes of s 52A(1)(c) of the Crimes Act 1900, even where the driving was not uniformly dangerous at every moment of the journey.
- Mid-range objective seriousness was appropriate where the driving included prolonged weaving, tailgating, and speeding, but was not accompanied by alcohol, drugs affecting driving, or competitive behaviour, and the erratic conduct had abated somewhat before the fatal collision.
- A 25 per cent discount for early guilty pleas, entered in the Local Court and maintained throughout, was applied consistently with established sentencing practice.
- Special circumstances can be found where an offender is young and entering custody for the first time, justifying a longer parole period to support supervised reintegration.
- Licence disqualification serves a protective rather than punitive function: the court set the period above the minimum but well below the mandatory maximum, reflecting the nature of the offending and the prior traffic record without treating disqualification as an additional punishment.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c), 53
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Road Rules 2014 (NSW), s 287(1)
- Road Transport Act 2013 (NSW), s 111(1)(a)
Cases
- R v Jurisic [1998] 45 NSWLR 209
- R v Whyte [2002] 55 NSWLR 252