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District Court 12 March 2021

R v Conway

[2021] NSWDC 198

HomicideTheft & propertyTraffic & driving
CRIME SENTENCE MANSLAUGHTER BY GROSS NEGLIGENCE FAILING TO STOP AND ASSIST TAKE AND DRIVE WITHOUT CONSENT OF OWNER DRIVE WHILE DISQUALIFIED

Citation: R v Conway [2021] NSWDC 198
Court: District Court of NSW
Date: 12 March 2021
Judge: Norrish QC DCJ

Background

The offender was convicted after a judge-alone trial on 24 November 2020 of three offences arising from events on 15 January 2019 at Tumbi Umbi, near Wyong. He drove a stolen vehicle on the wrong side of the road at speed, killing a man named Darren Hill. He then fled the scene without stopping or rendering assistance.

At the time of the offending, the offender was 26 years old, driving a vehicle he had taken without the owner's consent, and was disqualified from holding a driver's licence. He was also on a conditional liberty bond (a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999) imposed in January 2017 for a prior offence of driving while disqualified, which had not yet expired.

The offender was already serving a separate aggregate sentence of four years, imposed by Judge Bright at Gosford District Court in December 2019, for offences including reckless wounding in company and related matters. Sentencing in this matter was therefore structured to run partially consecutively to that existing sentence.

  • What is the appropriate aggregate sentence for manslaughter by gross negligence, failing to stop and render assistance, and taking and driving without the owner's consent?
  • To what extent should the sentences for the individual offences be concurrent or accumulative?
  • Whether special circumstances existed to justify a departure from the standard ratio of non-parole period to total sentence?
  • How should the principle of totality apply when sentencing an offender already serving a term of imprisonment?
  • What weight should be given to the offender's lack of remorse, his conditional liberty status at the time of offending, and his poor prospects of rehabilitation?

Decision

The court convicted the offender of manslaughter by gross negligence, finding that the driving was not a momentary act of recklessness but a sustained course of dangerous conduct over an extended period. The offender showed no remorse or contrition. His guilty plea to the alternative "allow himself to be carried" charge was consistent with his trial defence that he was not driving at the moment of impact, and the court held that plea reflected no genuine contrition.

His Honour found several significant aggravating factors. The offender was on conditional liberty for a related offence (driving while disqualified) at the time. He was both disqualified from driving and operating a stolen vehicle. His only reason for fleeing the scene without rendering assistance was self-preservation from arrest, which the court characterised as entirely selfish given he had no legitimate reason to avoid apprehension.

On the question of accumulation and totality, the court imposed the sentence for the stolen vehicle entirely concurrently, noting that the circumstances of the theft were already factored into the assessment of the principal offending. The sentence for failing to stop and render assistance was made partially accumulative, by 12 months, on the manslaughter sentence. The court reasoned that this offence was distinct in character from the manslaughter and warranted some additional punishment beyond concurrence.

Special circumstances were found, warranting a longer than usual balance of sentence (the period remaining after the non-parole period expires), primarily because of the effect of accumulation on the existing sentence. The court found it could not conclude the offender was unlikely to reoffend or had good prospects of rehabilitation, but recognised his need for professional assistance during the extended period on parole.

Orders Made

  • Aggregate sentence of 11 years imprisonment, commencing 21 June 2021 (at the expiry of the non-parole period of the existing sentence).
  • Non-parole period of 7 years, expiring 19 January 2028.
  • Effective total sentence (including time already in custody under the existing sentence) of 13 years and 4 months, with an effective non-parole period of 9 years and 4 months.
  • Indicative sentence of 10 years for manslaughter.
  • Indicative sentence of 3 years for failing to stop and render assistance (1 year accumulative on the manslaughter sentence, remainder concurrent).
  • Indicative sentence of 3 years for taking and driving without consent (entirely concurrent).
  • 12 months imprisonment for driving while disqualified, commencing 21 June 2021 (concurrent).
  • Disqualification from holding a driver's licence for 7 years, commencing at the expiry of the sentence.
  • Mandatory automatic disqualification of 2 years for driving while disqualified, commencing at the expiry of any existing disqualification.
  • Backup charges withdrawn and dismissed.

Key Takeaways

  • The District Court confirmed that where an offender is already serving a sentence, partial accumulation of a new sentence is appropriate, with the non-parole period adjusted to reflect special circumstances arising from the effect of that accumulation.
  • A finding of special circumstances does not require good rehabilitation prospects; here, the finding rested on the structural need created by accumulation and the offender's requirement for supervised support, despite poor rehabilitation indicators.
  • Where an offender flees the scene of a fatal collision for purely self-interested reasons, with no legitimate basis to avoid apprehension, a sentence for failing to stop and render assistance warrants at least partial accumulation on the principal offence rather than full concurrence.
  • Being on conditional liberty at the time of offending for a related offence (here, a prior driving disqualification) constitutes an aggravating factor of considerable weight under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, particularly where the subsequent offending is of a similar character.
  • The court emphasised that a sentence for manslaughter does not represent a monetary or moral valuation of the victim's life; the quantum is determined within a structured framework of sentencing principles, including comparative decisions, not by reference to the worth of the life lost.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(b), 52AB, 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 21A(2)
- Sentencing Act 1989 (NSW)

Cases
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Duncan v R [2012] NSWCCA 781
- Pearce v R [1998] HCA 57
- R v Borkowski [2009] NSWCCA 102
- R v Cramp [1999] NSWCCA 324
- R v Do [2000] NSWCCA 459
- R v Falzon [2000] NSWCCA 530
- R v Gorman [2002] NSWCCA 516
- R v Hammoud (2000) 118 A Crim R 66
- R v Jurisic (CCA, unreported, 12 October 1998)
- R v Ryan [2000] NSWSC 724
- R v Whyte [2002] NSWCCA 343
- R v XX (2009) 195 A Crim R
- Reynolds v R [2015] NSWCCA 29
- Smith v R [2020] NSWCCA 181
- Spark v R [2013] NSWCCA
- Stevens v R (CCA, unreported, 15 August 1993)
- Veen (No 2) v R (1988) 164 CLR 465
- Woodbridge v R [2010] NSWCCA 185
- Young v R [2009] NSWCCA 298