Citation: R v Lu [2020] NSWDC 450
Court: District Court of New South Wales
Date: 14 August 2020
Judge: Weinstein SC DCJ
Background
The offender, a 26-year-old Chinese national residing in Australia since age 16, was sentenced for driving a BMW on Victoria Road, Gladesville on the evening of 4 November 2018 at an estimated speed exceeding 100km/h in a 60km/h zone. He was using a hands-free phone call at the time. He failed to navigate a sweeping left-hand bend on a slight incline, crossed the concrete median strip into oncoming traffic, and struck three vehicles in succession.
The collision caused devastating injuries to multiple victims. One victim suffered burst spinal fractures at L2 and L3, bowel perforations, rib fractures, a frontal bleed, and a fractured forearm requiring surgical plating. A second victim, who was already a paraplegic prior to the collision, sustained further bowel injuries, a pelvic fracture, spinal fractures, splenic laceration, and deep vein thrombosis. A third victim suffered a sternum fracture and spinal fracture.
The offender had a significant history of traffic infringements: nine separate speeding notices between 2011 and 2018, and had been intercepted just five weeks before this collision travelling at approximately 98km/h in a 60km/h zone. He pleaded guilty to all three counts.
Legal Issues
- What aggregate sentence was appropriate for two counts of dangerous driving occasioning grievous bodily harm and one count of causing bodily harm by furious driving?
- Whether the sentence should be served by way of an Intensive Correction Order (ICO) rather than full-time custody, including whether the conditions of parole would be equivalent to an ICO.
- The relevance of the offender's potential deportation as a sentencing consideration.
- The appropriate discount for the guilty plea.
- The appropriate period of licence disqualification.
Decision
Weinstein SC DCJ sentenced the offender to an aggregate term of 2 years and 10 months. The Judge considered the objective seriousness of the offending, noting that driving at more than 100km/h on a major six-lane Sydney arterial road at dusk, with moderate traffic and while using a mobile phone, represented a serious instance of the offence. The offender's traffic history, including nine prior speeding infringements and an interception for excessive speeding just weeks before the fatal collision, aggravated the offending considerably.
The court applied a 25% discount to each indicative sentence to reflect the guilty pleas. In setting the indicative (individual) sentences, the court would have imposed 18 months for each of the two grievous bodily harm counts and 9 months for the furious driving count before arriving at the aggregate. The court accepted submissions regarding the offender's remorse, his cooperation with police, his rehabilitation steps, and his prospects.
The court determined that the aggregate term of imprisonment would be served by way of an Intensive Correction Order (ICO) in the community. This included mandatory conditions: supervision, monthly psychology sessions for the duration of the ICO, and 500 hours of community service work. The court also imposed a 3-year licence disqualification.
Orders Made
- Convicted on two counts of dangerous driving occasioning grievous bodily harm (s 52A(3)(c) Crimes Act 1900) and one count of causing bodily harm by furious driving (s 53 Crimes Act 1900).
- Aggregate sentence of 2 years and 10 months imprisonment, to be served by way of an Intensive Correction Order commencing 14 August 2020 and expiring 13 June 2023.
- Standard ICO conditions: no further offending; supervision by a Community Corrections Officer.
- Additional conditions: monthly attendance with a psychologist for the term of the ICO; 500 hours of community service work.
- Required to contact Burwood Community Corrections Office within 7 days.
- Licence disqualification of 3 years, commencing 14 August 2020.
- Backup offence on the s 166 Certificate dismissed.
Key Takeaways
- An aggregate sentence of 2 years and 10 months was imposed for a multi-vehicle collision caused by driving at over 100km/h in a 60km/h zone, with a history of nine prior speeding infringements treating the objective seriousness and the offender's traffic record as significant factors.
- A 25% guilty plea discount was applied to each indicative sentence, consistent with the approach in Muldrock v The Queen (2011) 244 CLR 120 and related sentencing authority.
- Where an offender facing a term of imprisonment holds the prospect of deportation, this may be a relevant consideration in sentencing, though the judgment does not treat it as determinative.
- The District Court accepted that the aggregate term could be served by way of an ICO rather than full-time custody, with onerous additional conditions including 500 hours of community service and monthly psychological treatment across the full order period.
- Driving at nearly double the posted speed limit on a busy major Sydney road, in moderate traffic, at dusk, while using a mobile phone, and with a demonstrated prior pattern of speeding, was treated as a serious instance of dangerous driving occasioning grievous bodily harm.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 52A(3)(c), 53
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7(1), 53A(2)(b), 66(3)
Cases:
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen [2005] HCA 25
- R v Whyte (2002) 55 NSWLR 252
- Frlanov v The Queen [2018] NSWCCA 267
- Casella v R [2019] NSWCCA 201
- Karout v R [2019] NSWCCA 253
- Kristensen v R [2018] NSWCCA 189
- Maxwell v R [2020] NSWCCA 94
- R v Fangaloka [2019] NSWCCA 173
- R v Manok [2017] NSWCCA 232
- Hoskins v R [2016] NSWCCA 157
- R v AB [2011] NSWCCA 229
- R v Cartwright (1989) 17 NSWLR 243
- R v Errington (2005) 157 A Crim R 553
- R v Fowler (2003) 151 A Crim R 166
- R v Khamas (1999) 108 A Crim R 499
- R v Khatter [2000] NSWCCA 32
- R v McKeown [2013] NSWDC 22
- R v Webb (2004) 149 A Crim R 167