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2
District Court 19 January 2021

R v ELPHICK

[2021] NSWDC 1

HomicideTraffic & driving
PENALTIES — PURPOSES OF SENTENCING AGGREGATE SENTENCE INTENSIVE CORRECTION ORDERS

Citation: R v Elphick [2021] NSWDC 1
Court: District Court of New South Wales
Date: 19 January 2021
Judge: Lerve DCJ

Background

The offender pleaded guilty to two charges arising from a collision at the intersection of the Hume Freeway and the old Hume Highway at Tumblong, New South Wales, on 24 August 2019. Driving a Toyota Hilux, he failed to give way when crossing the westbound lanes of the freeway, striking a Nissan four-wheel drive travelling at approximately 105 km/h. The driver of that vehicle, Paul Sinclair, died at the scene. His wife, Gail Sinclair, suffered a fractured left collarbone requiring surgery and subsequently developed post-traumatic stress disorder and ongoing neurological symptoms.

The offender was familiar with the intersection and acknowledged in his police interview that his view was not obstructed and there was no sun glare. Visibility along the freeway extended approximately one kilometre in each direction. Multiple give way signs regulated the intersection. The offender returned a negative breath test reading.

The charges were brought under ss 52A(1)(c) and 52A(3)(c) of the Crimes Act 1900, carrying maximum penalties of 10 years and 7 years imprisonment respectively. No standard non-parole period applied to either offence.

  • What was the appropriate objective seriousness of the offending within the spectrum of dangerous driving causing death and grievous bodily harm?
  • Was an Intensive Correction Order (ICO) a suitable alternative to full-time custody, given the offender's subjective case?
  • Were special circumstances established justifying a non-parole period shorter than the statutory ratio?
  • What aggregate sentence and non-parole period properly reflected the purposes of sentencing, including general deterrence?

Decision

Lerve DCJ assessed the objective seriousness of the offending as falling below the mid-range for this category of offence. The criminality encompassed by ss 52A(1) and 52A(3) ranges from momentary inattention at the lower end to an outright abandonment of responsibility at the higher end. While the offender's failure to give way despite excellent visibility and prominent signage was serious, his conduct was not at the most culpable end of the scale.

The court accepted a strong subjective case for the offender, including this being his first time in custody, his age, his unlikely prospects of reoffending, and findings in a psychological report (the Duffy Robilliard report) identifying treatment needs. A full 25% utilitarian discount was applied to reflect the early guilty pleas entered in the Local Court and maintained at the District Court sentence hearing.

Despite the strong subjective case, the court declined to impose an ICO. The seriousness of the offending and the need for general deterrence were determinative. Lerve DCJ relied on the analysis of Fullerton J in Karout v R [2019] NSWCCA 253, and found that the statutory requirement to consider the purposes of punishment under s 3A of the Crimes (Sentencing Procedure) Act 1999 was not satisfied by a community-based order in these circumstances.

The court did find special circumstances, justifying a departure from the standard one-third ratio between the non-parole period and the balance of term. The offender's age, his first-time custody status, and his need for extended supervision to access treatment and reintegrate into the community all supported that finding. An aggregate sentence of three years was imposed with a non-parole period of two years, resulting in a one-year parole period.

Orders Made

  • The offender was convicted of both charges.
  • An aggregate sentence of 3 years imprisonment was imposed, with a non-parole period of 2 years.
  • The non-parole period commenced 19 January 2021 and expires 18 January 2023.
  • The parole period commences 19 January 2023 and expires 18 January 2024.
  • The offender is to be released to supervised statutory parole at the expiration of the non-parole period.
  • The offender was disqualified from driving for 2 years in respect of each matter, with the disqualifications to run concurrently.
  • Back-up offences attached to the s 166 certificate were dismissed.

Key Takeaways

  • An ICO was refused notwithstanding a strong subjective case, because the objective seriousness of the offending and the need for general deterrence outweighed personal mitigation in the context of dangerous driving causing death.
  • The spectrum of culpability under ss 52A(1) and 52A(3) of the Crimes Act 1900 runs from momentary inattention at the lower end to abandonment of responsibility at the higher end, and a sentencing court must locate the offending within that range before assessing the appropriate penalty.
  • Special circumstances were found on the basis of the offender's age, his first time in custody, and his need for an extended period of supervised parole to access treatment and reintegrate into the community, justifying a non-parole period representing two-thirds of the aggregate term.
  • A full 25% utilitarian discount applied where guilty pleas were entered at the Local Court and maintained at the District Court sentence hearing.
  • No sentence can equate to the value of a life lost, and the District Court reiterated that the sentencing discretion must reflect adequate punishment, denunciation, and moral culpability rather than any attempt to measure that loss in years of imprisonment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(g), 66(3)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Karout v R [2019] NSWCCA 253
- Karout v R [2020] HCASL 56
- R v Fangaloka [2019] NSWCCA 173
- Fangaloka v R [2020] HCASL 12
- R v Barnett [2016] NSWDC 302
- R v Magro [2019] NSWSC 343
- R v Pullen [2018] NSWCCA 264
- R v Manok [2017] NSWCCA 232
- R v Tuala [2015] NSWCCA 8
- Cross v R [2019] NSWCCA 280
- Casella v R [2019] NSWCCA 201
- Brown v R [2014] NSWCCA 215
- Hopley v R [2008] NSWCCA 105
- R v AB [2011] NSWCCA 229
- Hili & Jones v The Queen [2010] HCA 45
- Jago v District Court of NSW (1989) 168 CLR 23
- Atkinson v Coles Supermarkets [2020] NSWSC 1063
- R v Raymond [2019] NSWDC 679
- R v Gagliano [2020] NSWDC 359