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District Court 26 February 2020

R v Boctor

[2020] NSWDC 46

Traffic & driving
CRIME: SENTENCE S 52A(1)(C) WHETHER MOMENTARY INATTENTION

Citation: R v Boctor [2020] NSWDC 46
Court: District Court of New South Wales
Date: 26 February 2020
Judge: Montgomery DCJ

Background

The offender, a 49-year-old man, pleaded guilty on the first day listed for trial to one count of dangerous driving causing death under s 52A(1)(c) of the Crimes Act 1900 (NSW). The maximum penalty for the offence is 10 years' imprisonment. There were no other offences and no Form 1 matters.

The incident occurred on the evening of 19 January 2018 on Arnold Avenue, Kellyville. The offender was driving his Toyota Corolla along a sweeping right-hand downhill bend at the posted speed limit of 50 km/h when he diverted his attention to two houses under construction on the right side of the road. While he looked away for approximately three to four seconds, his vehicle maintained a straight course as the road curved right, striking a pedestrian who was walking on the road surface beside the kerb, dressed in dark clothing and wearing earphones. The deceased was thrown approximately 20 metres and died in hospital on 22 January 2018.

The offender immediately stopped, rendered assistance, called triple-0, and voluntarily attended police the following day for an interview. Blood and breath testing returned negative results for alcohol and drugs, and the vehicle was found to be mechanically sound.

  • Whether the offender's conduct constituted momentary inattention or misjudgement, placing his moral culpability at the low end for an offence of this type
  • Whether the sentencing principles in R v Whyte (the Court of Criminal Appeal's guideline judgment for s 52A offences) supported a non-custodial sentence in the form of an Intensive Corrections Order (ICO)
  • What weight to give to the offender's guilty plea, remorse, good character, and prospects of rehabilitation when determining the appropriate sentence

Decision

Montgomery DCJ applied the guideline judgment in R v Whyte [2002] NSWCCA 343, which is binding on the District Court. That guideline sets out the characteristics of a "typical case" for dangerous driving causing death and identifies the circumstances in which full-time custody will usually be appropriate. Crucially, Whyte provides that a custodial sentence will not necessarily be required where the offender's moral culpability is low, as in a case of momentary inattention or misjudgement.

The District Court found that this case fell within the category of momentary inattention. The offender drove at the speed limit, was not intoxicated, did not drive erratically, and caused the impact solely because he briefly looked away from the road at houses under construction. None of the aggravating factors identified in Whyte (such as excessive speed, intoxication, erratic driving, or failure to stop) were present. The recently decided Simmons v R [2020] NSWCCA 16 was also considered, confirming the approach to assessing objective seriousness for this offence.

The court gave weight to several subjective factors favouring the offender: his immediate and genuine remorse, his cooperation with police, his good character supported by clinical psychology evidence and character references, and strong prospects of rehabilitation. His late guilty plea attracted some, though limited, utilitarian discount.

Balancing the importance of general deterrence against the low level of moral culpability, the court determined that a sentence of one year and ten months' imprisonment served by way of an Intensive Corrections Order, with home detention conditions and 250 hours of community service, was appropriate. The sentence was not yet formally imposed at this stage, pending receipt of a Home Detention Assessment Report.

Orders Made

  • The offender was convicted.
  • Bail was granted, subject to conditions requiring attendance at Community Corrections (Hornsby) and compliance with all reasonable directions.
  • A Home Detention Assessment Report was directed to be obtained.
  • The court indicated its intention to impose a sentence of one year and ten months' imprisonment, to be served by way of an Intensive Corrections Order with home detention conditions (home detention not to apply during the offender's working hours at his tobacconist and gift shop business) and 250 hours of community service work.
  • The court indicated its intention to disqualify the offender from holding a NSW driver's licence and from operating a motor vehicle for four years, from 19 January 2018 to 18 January 2022.
  • The matter was returned before the court (sentence hearing part-heard) on 20 April 2020.

Key Takeaways

  • Under the R v Whyte guideline, full-time custody for dangerous driving causing death is not automatically required where the offender's moral culpability is low, and a momentary lapse of attention can place an offender in that low-culpability category.
  • The District Court confirmed that none of the Whyte aggravating factors (excessive speed, intoxication, erratic driving, failure to stop) were present on these facts, which was central to the finding of low moral culpability.
  • A combination of genuine remorse, immediate cooperation with police, good character, and strong rehabilitation prospects can, taken together, support a non-custodial sentence even where the offending resulted in a fatality.
  • The Court of Criminal Appeal's confirmation in Simmons v R [2020] NSWCCA 16 that objective seriousness remains the primary sentencing consideration for s 52A offences was applied in this decision.
  • An Intensive Corrections Order served with home detention conditions represents a structured, community-based sentencing option that the court treated as capable of satisfying both general deterrence and rehabilitation objectives in appropriate low-culpability cases under s 52A.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Crimes (Administration of Sentences) Regulation 2014 (NSW), reg 189

Cases
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 (guideline judgment)
- Simmons v R [2020] NSWCCA 16
- R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209
- R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Shashati [2018] NSWCCA 167
- R v Pisciuneri [2007] NSWCCA 265
- R v Pullen [2018] NSWCCA 264
- R v Fangaloka [2019] NSWCCA 173