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District Court 11 June 2021

R v Zaiter

[2021] NSWDC 277

HomicideTraffic & driving
CRIMINAL LAW DANGEROUS DRIVING OCCASIONING DEATH NO AGGRAVATING FACTORS MITIGATING FACTORS DISCOUNT FOR EARLY GUILTY PLEA PRIOR GOOD CHARACTER

Citation: R v Zaiter [2021] NSWDC 277
Court: District Court of New South Wales
Date: 11 June 2021
Judge: Hatzistergos DCJ

Background

The offender pleaded guilty to one count of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 10 years' imprisonment and a mandatory three-year driving disqualification.

On 23 February 2020, the offender was driving a Holden Captiva north along Good Street, Harris Park, when her vehicle failed to follow the curve of the road and crossed the marked fog line. The vehicle mounted the footpath, struck a metal railing, and sustained severe tyre damage to three of its four wheels, making steering difficult. Despite this, the vehicle mounted the kerb a second time and struck a pedestrian, who was walking north on the footpath with his back to the vehicle. The pedestrian died in hospital on 17 March 2020 from traumatic brain injuries.

The vehicle travelled approximately 52 metres from the point it crossed the fog line to its final resting position against a bollard. No mechanical fault was found in the vehicle, and the offender returned a negative breath test. The exact speed at the time of impact and the extent to which the offender braked or steered before the collision could not be determined from the evidence.

  • What was the appropriate objective seriousness of the offence, and how did the offender's moral culpability compare to the "typical" case of dangerous driving occasioning death as described in R v Whyte (2002) 55 NSWLR 252?
  • Which mitigating factors applied, and what discount was appropriate for the early guilty plea?
  • Whether it was appropriate to impose a term of imprisonment to be served by way of an Intensive Correction Order (ICO) in the community, rather than by way of full-time custody.

Decision

Both the Crown and the defence agreed there were no aggravating factors. The Crown accepted that moral culpability was not high, placing it in the lower range but not at the lowest end, on the basis that the conduct went beyond mere momentary inattention. The court assessed the offence as falling below the mid-range of objective seriousness, noting the absence of aggravating features such as speed, intoxication, or deliberate risk-taking, and the acknowledged difficulty in steering caused by the tyre damage after the initial kerb collision.

The court identified several mitigating factors: the offender had no prior convictions, held prior good character, demonstrated genuine remorse, and presented a low likelihood of reoffending with excellent prospects of rehabilitation. A discount was applied for the early guilty plea in accordance with R v Thomson; R v Houlton and s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

On the question of sentence form, the court considered whether full-time custody was required under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides that a court must not impose imprisonment unless satisfied no other sentence is appropriate. Relying on Mandranis v R [2021] NSWCCA 97 and related authorities, the court concluded that an ICO was an appropriate alternative. The combination of mitigating factors, the offender's rehabilitation prospects, and the objective seriousness of the offence collectively supported a community-based custodial sentence.

Orders Made

  • The offender was sentenced to a term of imprisonment to be served by way of an Intensive Correction Order (ICO) in the community.
  • The ICO is subject to a community service work condition requiring 400 hours of community service work.
  • The offender was warned that failure to comply with ICO conditions may result in a formal warning, imposition of more stringent conditions, or revocation of the order, which could require the offender to serve the sentence in full-time custody.
  • The offender was disqualified from driving a motor vehicle for the statutory period of three years under the Road Transport Act 2013 (NSW), with credit for any period already served by way of licence suspension.

Key Takeaways

  • The District Court assessed an instance of dangerous driving occasioning death as below mid-range in objective seriousness where no aggravating features were present, the offender's conduct did not involve speed, intoxication, or deliberate risk-taking, and tyre damage caused by the initial kerb strike materially reduced the offender's ability to steer.
  • Under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court must not impose imprisonment unless satisfied no other sentence is appropriate; this threshold applied equally to full-time custody and informed the assessment of whether an ICO sufficed.
  • An Intensive Correction Order remained available as a sentencing option even for an offence resulting in death, where the combination of mitigating factors, good character, remorse, and rehabilitation prospects supported a non-custodial form of imprisonment.
  • Moral culpability in dangerous driving cases is assessed by reference to the "typical" features identified in R v Whyte (2002) 55 NSWLR 252; the absence of those aggravating features moves a case toward the lower end of the range.
  • Evidentiary gaps, such as unknown speed at impact and inconclusive evidence of braking and steering attempts, were acknowledged in the agreed facts and formed part of the factual matrix the court took into account when assessing culpability.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 66, 69, 73A
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 187
- Road Transport Act 2018 (NSW), ss 4, 205

Cases
- R v Whyte (2002) 55 NSWLR 252
- Mandranis v R [2021] NSWCCA 97
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Palu (2002) 134 A Crim R 174
- Newman v R [2015] NSWCA 270
- Gavin v R [2013] NSWCCA 99
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- WHELAN v R [2012] NSWCCA 147
- R v Townsend [2010] NSWCCA 336
- Hedges v R [2011] NSWCCA 263
- R v Manok [2017] NSWCCA 232
- R v McIntyre (1988) 38 A Crim R 135