R v Gagliano [2020] NSWDC 359

Citation: R v Gagliano [2020] NSWDC 359
Court: District Court of New South Wales
Date: 9 July 2020
Judge(s): Mahony SC DCJ

Background

On the morning of 1 April 2019, the offender was driving his Toyota Prado north along Milton Street, Croydon Park, approaching its intersection with Georges River Road. He stopped at a red light, then turned left into Georges River Road through a red left-turn arrow light and a green pedestrian "walk" signal. The left side of his vehicle struck a pedestrian who was lawfully crossing the road in the marked crossing. The vehicle's left wheels then drove over the pedestrian, who later died from his injuries.

The offender stopped a short distance from the deceased and was observed to be in a visibly distressed state. He told police he had not seen the pedestrian. He was breath-tested and returned a negative result.

The offender pleaded guilty in the Local Court to dangerous driving occasioning death (driving in a manner dangerous) under s 52A(1)(c) of the Crimes Act 1900 and was committed to the District Court for sentence.

Legal Issues

How should the objective seriousness of the offending be assessed, and in particular, did it amount to momentary inattention, abandonment of responsibility, or something in between?
What weight should be given to the subjective mitigating factors, including the plea of guilty, remorse, good character, and the offender's psychological condition?
Whether the threshold for imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 was crossed and, if so, whether the sentence should be served by way of an Intensive Correction Order rather than full-time custody.
What period of licence disqualification was appropriate?

Decision

Objective seriousness: between momentary inattention and abandonment of responsibility

The court accepted that only two of the aggravating factors identified in the guideline judgment of R v Whyte applied: the death of the deceased, and the placing of a small number of people at risk (the deceased and the two Tarm sisters). The collision occurred at low speed (approximately 10 km/h) (at [93]). The court found, however, that the offender would have had a clear and unobstructed view of the traffic lights on the north-western corner of the intersection, which displayed a red arrow for left-turning vehicles. Three pedestrians were crossing when he proceeded (at [94]).

The court held that proceeding through a red arrow and into a pedestrian crossing, with the green walk signal illuminated and pedestrians crossing from both sides, in a busy urban area, did not amount to mere momentary inattention. Nor did it amount to an abandonment of responsibility. The objective criminality fell towards the lower end of the range for an offence under s 52A(1)(c), though not at the lowest point. The conduct was characterised as carelessness that abrogated the offender's responsibility to other road users, rather than deliberate or reckless conduct (at [94], [101]).

Subjective factors and the 25% discount

The court accepted that the offender was entitled to a 25% utilitarian discount for his early guilty plea (at [97]). Despite the offender's initial explanations to police about not seeing the deceased and obstructed sightlines, and a later claim to the Sentencing Assessment Report author that he was preoccupied with his wife's back injury, the court found he now accepted full responsibility and was genuinely and entirely remorseful (at [97]). The court noted he was 52 years of age, of good character, had no prior criminal convictions, and was assessed as a low risk of reoffending with good prospects of rehabilitation, while acknowledging that good character carries less weight in sentencing for s 52A offences (at [98]).

The court distinguished R v Davies on several bases: the offender in Davies was younger, had a prior dangerous driving offence, was sentenced after trial, showed no remorse, and was travelling at 60 km/h rather than low speed, resulting in higher moral culpability (at [100]).

Imprisonment threshold and the ICO

The court was satisfied that the s 5 threshold was crossed and that no penalty other than imprisonment was warranted. A term of 2 years imprisonment was imposed (at [101]). The court then considered whether the sentence should be served by way of an Intensive Correction Order. Applying the principles in Karout v R and Parente v R, the court noted that community safety is not a paramount consideration overriding the purposes of sentencing in s 3A. Having regard to the lower end objective seriousness, the manifold purposes of punishment, and its finding that the mature offender with no significant traffic history posed a very low risk to community safety, the court was satisfied that the purposes of sentencing could be fulfilled by an ICO with conditions (at [103]-[105]).

Licence disqualification

The court imposed a two-year disqualification period, backdated to 1 April 2019 (the date of the offence, from which the offender's licence had already been suspended), with the disqualification expiring on 31 March 2021 (at [106]).

Orders Made

Convicted of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900.
Sentenced to 2 years imprisonment, to be served by way of an Intensive Correction Order commencing 9 July 2020.
Standard ICO conditions: no further offending; submission to supervision by a Community Corrections Officer.
Additional conditions: 300 hours of community service work (subject to possible suspension due to COVID-19 restrictions); completion of the psychological treatment plan set out in Dr Pollicina's report for as long as required.
Disqualified from driving for 2 years, backdated to 1 April 2019 and expiring 31 March 2021.
A copy of Dr Pollicina's report to be provided to Community Corrections.
Sequences 2 and 3 on the s 166 Certificate withdrawn and dismissed.

Key Takeaways

In sentencing for dangerous driving occasioning death under s 52A(1)(c), the court confirmed that the spectrum of culpability runs from momentary inattention at the low end to abandonment of responsibility at the high end, with careless inattention across a pedestrian crossing in an urban area placing an offender in the lower-to-mid range rather than at either extreme (at [94]).
An Intensive Correction Order remained available as an alternative to full-time custody for a s 52A offence where objective seriousness fell towards the lower end of the range, the offender was mature, genuinely remorseful, had pleaded guilty, and posed a very low risk to community safety (at [105]).
Under Karout v R and Parente v R as applied by the District Court, community safety is neither a paramount consideration over s 3A sentencing purposes nor a mandatory factor in determining whether to impose an ICO; it forms part of an overall evaluative assessment (at [103]).
General deterrence retains significant importance in dangerous driving causing death cases given the serious potential consequences of failures in vehicle management, but its weight must be assessed alongside all relevant sentencing factors and does not automatically mandate full-time custody (at [95], [105]).
Good character carries reduced weight in sentencing for s 52A offences, consistent with established authority, though it remains relevant to the assessment of prospects of rehabilitation and risk of reoffending (at [98]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Road Transport Act 2013

Cases
- Karout v R [2019] NSWCCA 253
- Parente v R [2017] 96 NSWLR 633; [2017] NSWCCA 284
- R v Davies [2000] NSWCCA 84
- R v MacIntyre (1988) 38 A Crim R 135 at 139
- R v Manok [2017] NSWCCA 232
- R v Pullen [2018] NSWCCA 264
- R v Whyte [2002] NSWCCA 343
- Sahyoun v R [2020] NSWCCA 87
- Thai v R [2009] NSWCCA 314
- Whelan v R [2012] NSWCCA 147