Citation: R v Moananu [2020] NSWDC 672
Court: District Court of New South Wales
Date: 5 November 2020
Judge: Buscombe DCJ
Background
On the evening of 28 September 2018, the offender drove a motor vehicle at grossly excessive speed and in an erratic, dangerous manner along Mamre Road, the M4 motorway, and then the Northern Road at Orchard Hills. His blood alcohol reading at the time was 0.204, more than four times the legal limit, and cannabis was also present in his blood. Witnesses described his driving variously as travelling at a "ridiculous speed" and performing "the most craziest thing I have ever seen anyone do."
The offender's vehicle mounted a concrete median strip, became airborne, and crossed into oncoming traffic. It collided head-on with a vehicle carrying three occupants: a 17-year-old learner driver (referred to as AH), her 25-year-old brother Bronko Hoang, and Hoang's wife Katherine Gordon, who was 23 years old and pregnant with twin boys due to be delivered by elective caesarean the following week.
AH and Ms Gordon died at the scene. Ms Gordon's unborn twin sons also died as a result of her death. Mr Hoang survived but suffered serious head, leg, and internal injuries. A further driver, Blake Reid, sustained injuries when his vehicle was struck by the chain reaction collision.
Legal Issues
- What sentences were appropriate for two counts of manslaughter (unlawful and dangerous act) under s 18 of the Crimes Act 1900, given the offender's guilty pleas?
- What sentence was appropriate for one count of aggravated dangerous driving occasioning grievous bodily harm under s 52A(4) of the Crimes Act 1900, where the aggravating circumstance was a blood alcohol concentration at the prescribed level?
- How should the additional offences on the Form 1 certificate (driving on the incorrect side of the road causing bodily harm, driving unlicensed, and driving with a prescribed illicit drug in his blood) be taken into account?
- What aggregate sentence, including a non-parole period, was appropriate across the three principal offences?
- What licence disqualification periods were required?
Decision
Buscombe DCJ convicted the offender on all three principal counts following his guilty pleas. Her Honour applied a 25% discount on each count to reflect those early pleas. The offender's conduct was characterised by a prolonged and escalating pattern of dangerous driving while heavily intoxicated, resulting in catastrophic and irreversible consequences for multiple victims and their families.
The indicative sentence for the manslaughter of AH (after the 25% discount) was 8.5 years imprisonment. The indicative sentence for the manslaughter of Ms Gordon, which also took into account the Form 1 offences, was 9 years imprisonment. The indicative sentence for the aggravated dangerous driving occasioning grievous bodily harm to Mr Hoang was 4.5 years imprisonment.
Her Honour imposed an aggregate sentence of 15 years imprisonment with an aggregate non-parole period of 10 years. The sentence was backdated to commence on 29 September 2018, the day after the offence, reflecting time the offender had already spent in custody. The earliest date of eligibility for parole is 28 September 2028, though the State Parole Authority will determine the actual release date having regard to the offender's conduct in custody.
Mandatory three-year licence disqualification periods were imposed on each of the three principal offences. Those disqualification periods do not begin to run until the offender is released from custody. The offences listed on the s 166 certificate were withdrawn and dismissed upon the imposition of sentence.
Orders Made
- Conviction recorded on all three principal offences to which the offender pleaded guilty.
- Indicative sentence of 8.5 years imprisonment for the manslaughter of AH (reflecting 25% early plea discount).
- Indicative sentence of 9 years imprisonment for the manslaughter of Ms Gordon (reflecting 25% early plea discount and Form 1 offences).
- Indicative sentence of 4.5 years imprisonment for aggravated dangerous driving occasioning grievous bodily harm to Mr Hoang (reflecting 25% early plea discount).
- Aggregate sentence of 15 years imprisonment imposed, commencing 29 September 2018 and expiring 28 September 2033.
- Aggregate non-parole period of 10 years, expiring 28 September 2028.
- Mandatory three-year licence disqualification imposed on each of the three offences, each period to commence upon the offender's release from custody.
- Offences on the s 166 certificate withdrawn and dismissed.
Key Takeaways
- An aggregate sentencing structure was used across three serious offences arising from a single criminal episode, producing a total term of 15 years with a 10-year non-parole period, reflecting the exceptional gravity and multiplicity of harm caused.
- A 25% discount applied to each indicative sentence in recognition of early guilty pleas, consistent with the sentencing discount framework under the Crimes (Sentencing Procedure) Act 1999.
- Additional offences acknowledged under a s 166 Form 1 certificate (driving on the wrong side of the road causing bodily harm, driving unlicensed, and driving with cannabis in the blood) were taken into account in the sentence for the manslaughter of Ms Gordon, then withdrawn and dismissed.
- Mandatory three-year licence disqualification periods did not begin running until release from custody, in accordance with the relevant statutory provisions.
- The deaths of Ms Gordon's unborn twin boys, who were due for delivery the following week, formed part of the factual context accepted by the court in assessing the full extent of harm arising from the offending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18 and 52A(4)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Cases:
- R v Borkowski [2009] NSWCCA 102
- SBF v R [2009] NSWCCA 231
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343
- Bugmy v R (2013) 249 CLR 571