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District Court 25 September 2020

R v Abdulrahman

[2020] NSWDC 731

HomicideDrugsTraffic & drivingPublic order & justice offences

Citation: R v Abdulrahman [2020] NSWDC 731
Court: District Court of New South Wales
Date: 25 September 2020
Judge: M L Williams SC DCJ

Background

At approximately 8:30am on 6 September 2019, a 12-year-old boy was crossing a pedestrian crossing on his way to school in Hurstville, with the lights in his favour. The offender, then aged 36, drove a Toyota Corolla through a red light at around 65km/h in a clearly marked 40km/h school zone and struck the child on the crossing. The boy was thrown into the air and landed near the vehicle. He was taken to hospital and pronounced deceased at 10:02am. The cause of death was multiple traumatic injuries to the head, chest and pelvis, with associated fractures to the limbs.

The offender was a disqualified driver at the time of the collision, having been disqualified as a result of a prior conviction for driving under the influence of drugs. Blood analysis revealed the presence of amphetamine, methylamphetamine, methadone, diazepam, nordiazepam and alprazolam. The methylamphetamine level fell within the reported toxic to potentially fatal range. None of the prescribed or restricted substances appeared on the offender's PBS records, with the exception of methadone through a hospital-based drug program. His driving ability was found to have been very substantially impaired.

The offender's conduct after the collision was notably callous. While bystanders, including a trained nurse, provided first aid to the dying child, the offender retrieved his bag and mobile phone from the car, deleted messages on his phone, smoked a cigarette, and offered no assistance. On arrest, he told police the accident was not his fault and attempted to re-enter the vehicle. He had a significant prior criminal record, including previous custodial sentences for firearms, affray, and drug-related driving offences.

  • What sentence was appropriate for manslaughter under s 18(1)(b) of the Crimes Act 1900, having regard to the objective seriousness of the offending?
  • What weight should be given to the offender's guilty plea, prior criminal history, breach of conditional liberty, drug addiction, and mental health history as subjective factors?
  • How should two Form 1 drug possession matters be taken into account on sentence?
  • Were special circumstances established justifying a variation to the standard ratio between head sentence and non-parole period?

Decision

The sentencing judge characterised the offending as serious. The offender drove in a school zone at nearly twice the permitted speed, ran a red light, and was heavily impaired by illicit and non-prescribed substances. He had been disqualified from driving specifically because of a prior drug-driving conviction. The presence of multiple intoxicants, the location in a school zone, and the breach of his disqualification all compounded the objective gravity of the conduct.

The judge applied a 25% discount to reflect the guilty plea, entered at a time that justified that level of reduction. The offender's prior record was substantial and included offences of violence and drug-related driving. The breach of an intensive corrections order, which had been revoked upon his arrest, was treated as an aggravating factor. The judge also noted the offender's post-offence conduct, including deleting phone messages and making false statements to police.

As mitigating factors, the court accepted that the offender had a long history of drug dependency and diagnosed mental health conditions, including PTSD, depression and anxiety. Some attempts at rehabilitation had been made, though they were not ultimately sustained or successful. These subjective matters were taken into account in the sentencing mix, but did not substantially reduce the weight of the objective criminality.

Special circumstances were found, permitting a longer than usual parole period relative to the non-parole period. Applying principles of totality from Cahyadi v R, the court imposed a modest degree of accumulation between the manslaughter count and the driving while disqualified count. The two Form 1 matters were taken into account in accordance with the approach outlined in Attorney General's Application No 1 of 2002.

Orders Made

  • The offender was convicted of manslaughter (count 006) and driving during a disqualification period (count 002).
  • Indicative sentence for manslaughter (taking into account Form 1 matters): 6 years, 9 months.
  • Indicative sentence for driving while disqualified: 3 months.
  • Aggregate sentence of imprisonment: 6 years, 10 months, commencing 6 October 2019.
  • Non-parole period: 4 years, 6 months, expiring 5 April 2024.
  • Special circumstances found.
  • Licence disqualification for manslaughter: 3 years from release, running concurrently with a 6-month disqualification for the driving while disqualified offence.
  • Statutory non-publication order in place regarding the identity of the victim and any minor witnesses, pursuant to s 15A of the Children (Criminal Proceedings) Act 1987.

Key Takeaways

  • A conviction for manslaughter arising from dangerous driving in a school zone, where the offender was disqualified, substantially speeding, and heavily drug-impaired, will be treated as objectively serious, warranting a substantial head sentence.
  • Breach of conditional liberty (here, the revocation of an intensive corrections order) operates as an aggravating factor on sentence, consistent with the Crimes (Sentencing Procedure) Act 1999.
  • Long-standing drug dependency and diagnosed mental illness may be accepted as subjective mitigating matters, but their weight is significantly diminished where the offending is directly connected to voluntary drug use and prior relevant convictions exist.
  • Post-offence conduct, including deleting messages, making false statements to police, and failing to assist an injured victim, formed part of the sentencing court's assessment of the offender's character and response to the offending.
  • Under the Form 1 procedure, ancillary drug possession offences are taken into account on the principal count in the manner established by Attorney General's Application No 1 of 2002, without imposing a separate sentence for those matters.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Cahyadi v R (2007) 168 A Crim R 41
- Elkassir v The Queen [2013] NSWCCA 181
- R v Jurasic (1998) 101 A Crim R 259
- R v Whyte (2002) 134 A Crim R 53
- Smith v The Queen [2020] NSWCCA 181
- Woodbridge v The Queen [2010] NSWCCA 185