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District Court 30 March 2021

R v Meers

[2021] NSWDC 352

DrugsTraffic & driving

Citation: R v Meers [2021] NSWDC 352
Court: District Court of NSW
Date: 30 March 2021
Judge: M L Williams SC DCJ

Background

The offender, a 26-year-old man holding a provisional P1 licence, was driving a Nissan Patrol on a rural road near Binda, NSW, on 7 June 2019. Without apparent cause, on a straight, dry, level stretch of road, he crossed the centre line into the oncoming lane and collided with two vehicles travelling in the opposite direction.

The first collision struck a Subaru driven by a 64-year-old woman, causing it to roll. The offender's vehicle then struck a second vehicle driven by Trevor Picker, a 91-year-old man, with catastrophic force. A third vehicle swerved to avoid the wreck and struck a tree. Mr Picker was conscious but trapped. Despite lengthy resuscitation efforts by paramedics, he died at the scene. The other drivers and a passenger sustained bodily harm.

Police subsequently found that the offender had illicit drugs present in his blood at the time. He had a prior history of licence suspensions and was subject to a conditional release order for a drug supply offence at the time of the crash. He pleaded guilty to dangerous driving occasioning death, three counts of causing bodily harm by misconduct, and the drug-driving offence.

  • What is the appropriate sentence for dangerous driving occasioning death, having regard to the objective seriousness of the offence and the offender's moral culpability?
  • What weight should be given to mitigating factors, including the early guilty plea, remorse, and the offender's Aboriginal background, drug addiction, and mental health?
  • What weight should be given to aggravating factors, including the breach of conditional liberty and the substantial harm caused?
  • Does general deterrence retain its usual force when sentencing a young offender for a dangerous driving offence?
  • What licence disqualification period is appropriate?

Decision

The court fixed the offender's moral culpability as moderately high. The collision occurred in clear conditions on a straight road, with no mechanical or environmental explanation for the vehicle crossing into oncoming traffic. The offender was on a provisional licence with a history of prior suspensions, and he was driving while illicit drugs were present in his system. The death of Mr Picker, a 91-year-old man, and the injuries to three others constituted substantial harm as an aggravating factor. The breach of the conditional release order was also an aggravating circumstance.

In mitigation, the court credited the offender's early guilty plea with a 25 per cent discount. The court accepted evidence of genuine remorse and noted the offender's difficult personal history, including his Aboriginal background (addressed in accordance with the principles in Bugmy v The Queen), significant drug addiction, mental health difficulties, and a disadvantaged upbringing. These subjective factors were weighed carefully but could not displace the weight due to the objective gravity of the offence.

On the question of general deterrence, the court reaffirmed the principle drawn from R v Jurisic and subsequent authorities: general deterrence applies with full force to dangerous driving offences committed by young people. The prevalence of such offences among young drivers and the perception of invulnerability that can accompany youth make deterrence a prominent sentencing consideration. Inexperience and immaturity do not operate as mitigating factors where fatal driving conduct is involved.

The court found special circumstances justifying a non-parole period shorter than the statutory norm, given the offender's need for supervised rehabilitation and reintegration upon release. For the drug-driving offence (sequence 5), the court recorded a conviction under s 10A of the Crimes (Sentencing Procedure) Act 1999 but imposed no further penalty. No action was taken on the call-up for breach of the conditional release order.

Orders Made

  • Aggregate sentence of imprisonment of four years and nine months, commencing 30 March 2021
  • Non-parole period of two years and six months, expiring 29 September 2023 (special circumstances found)
  • Sequence 5 (drug driving): conviction recorded, no further penalty (s 10A, Crimes (Sentencing Procedure) Act 1999)
  • Sequences 6 and 7: withdrawn
  • Call-up of conditional release order: breach proven, no action taken
  • Licence disqualification of 18 months, commencing on date of release from custody

Key Takeaways

  • General deterrence applies with full force when sentencing young offenders for dangerous driving occasioning death. The District Court confirmed that the prevalence of such offences among young drivers heightens, rather than reduces, the weight given to deterrence.
  • A prior record of driving offences is not relevant to the objective seriousness of a dangerous driving offence, but it is relevant to personal and general deterrence and may indicate a pattern of disregard for traffic laws.
  • Significant subjective mitigating factors, including Aboriginal background, drug addiction, and mental illness, must be genuinely considered in the sentencing exercise, but they cannot override the objective gravity of an offence involving a fatality and multiple injuries.
  • Under Bugmy v The Queen, the effects of social deprivation and disadvantage on an offender's moral culpability do not diminish with repeated offending and must be weighed at sentence.
  • Where an offender's rehabilitation needs are substantial and a structured reintegration into the community is required, special circumstances can justify adjusting the ratio between the non-parole period and the total sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c), 53
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 166
- Road Transport Act 2013 (NSW), s 111(1)(a)

Cases
- Bugmy v The Queen (2013) 249 CLR 57
- R v El-Seidi [2020] NSWDC 375
- R v Errington (2005) 157 A Crim R 553
- R v Jurisic (1998) 45 NSWLR 209
- R v Manok [2017] NSWCCA 232
- R v Musumeci (unreported, NSW Court of Criminal Appeal, 30 October 1997)
- R v Pullen [2018] NSWCCA 264
- R v Qutami (2001) 127 A Crim R 369
- R v Whyte [2002] NSWCCA 343