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District Court 5 July 2021

R v Balla

[2021] NSWDC 487

HomicideTraffic & driving
CRIMINAL LAW SENTENCE DANGEROUS DRIVING OCCASIONING DEATH ABANDONMENT OF RESPONSIBILITY REMORSE SHOWN EXTRA

Citation: R v Balla [2021] NSWDC 487
Court: District Court of New South Wales
Date: 5 July 2021
Judge: DCJ Hanley SC

Background

The offender, a man born in 1983 with no prior criminal convictions, appeared for sentencing after pleading guilty to dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900. The offence carried a maximum penalty of ten years imprisonment with no standard non-parole period. He had been driving a utility vehicle at the time of the collision, with his 21-month-old son seated in the front passenger seat.

The incident occurred on 18 June 2020 at the intersection of Windsor Road and Schofields Road, Rouse Hill. The offender turned right at an intersection while the traffic light was red, entering the intersection approximately two seconds after the signal had changed. The deceased, Aaron Vidal, was riding his motorcycle through the intersection on a green light travelling in the opposite direction. The motorcycle collided with the side of the offender's vehicle, and the deceased suffered fatal injuries and was pronounced dead at the scene.

The offender was arrested on the day of the collision but spent no time in custody before sentencing. He gave evidence at the sentence hearing, as did his partner. The judge found both to be compelling and honest witnesses.

  • What was the appropriate objective seriousness of the offending, including the relevance of the deceased's own manner of driving?
  • What weight should be given to extra-curial punishment, including significant public humiliation and media vilification the offender had experienced?
  • What mitigating factors applied, including remorse, rehabilitation, good character, and the offender's family circumstances?
  • Whether an Intensive Correction Order (ICO), including a home detention component, was an appropriate sentence in place of full-time custody.
  • What disqualification period applied to the offender's driver's licence?

Decision

DCJ Hanley SC assessed the objective seriousness of the offending as falling below the mid-range, though not at the lowest end. The offender made a conscious decision to proceed through a red light rather than stop, which the judge characterised as an abandonment of responsibility. Speed was not a contributing factor, and neither alcohol nor drugs were involved. The judge also considered the manner in which the deceased had been riding, accepting that the motorcycle may have been travelling at some speed and filtering through traffic, though this did not diminish the offender's culpability.

Significant attention was given to the extra-curial punishment the offender had endured. He had been subjected to intense and prolonged public humiliation and vilification through media coverage and social media, which the court accepted had materially affected him and constituted a form of punishment beyond the formal sentencing process. This was treated as a relevant mitigating factor in calibrating the sentence.

The court found the offender's remorse to be genuine and deep, as supported by the evidence of the offender and his partner, as well as the reports of a psychiatrist and psychologist. His prior good character, the steps taken toward rehabilitation including completing a Traffic Offender Program and a Positive Lifestyle Program, and his strong community and employment ties were all treated as significant mitigating factors. The presence of his young child in the vehicle at the time was noted as an aggravating feature.

The court was satisfied that the offender posed no ongoing risk to the community and that full-time imprisonment was not required. Pending a positive Home Detention Assessment Report, the court indicated its intention to impose a two-year term of imprisonment to be served by way of an Intensive Correction Order with a home detention condition, subject to work exemptions, and including 400 hours of community service.

Orders Made

  • The offender was convicted.
  • Bail was granted on conditions including attendance at Community Corrections Blacktown Office within three days, attendance at court as required, and compliance with all reasonable directions of Community Corrections.
  • A Home Detention Assessment Report was directed to be obtained.
  • Pending a positive Home Detention Assessment Report, the court indicated its intention to impose a two-year term of imprisonment served by way of an Intensive Correction Order, with a home detention condition (excluding working hours) and 400 hours of community service.
  • The court indicated its intention to disqualify the offender from holding a NSW driver's licence for four years, commencing 18 June 2020 and ending 17 June 2023 (note: this period appears to have already largely elapsed given the sentencing date of 5 July 2021).
  • In the event the offender was found unsuitable for home detention, the court indicated it would impose a two-year term of full-time imprisonment, with a non-parole period and special circumstances to be addressed on that occasion.

Key Takeaways

  • Significant and sustained public vilification through media and social media can constitute relevant extra-curial punishment in the sentencing of an offender for dangerous driving occasioning death, warranting reduction in the formal sentence imposed.
  • An Intensive Correction Order, including home detention, is available as a sentencing option for dangerous driving occasioning death where the objective seriousness falls below the mid-range and where the offender demonstrates genuine remorse, rehabilitation, and no ongoing risk to the community.
  • The conduct of a deceased victim, such as travelling at speed or filtering through traffic, may be a relevant sentencing consideration, though it does not remove or substantially reduce an offender's culpability for a deliberate decision to enter an intersection against a red light.
  • Genuine, deep remorse supported by expert psychological and psychiatric evidence, together with active participation in rehabilitation programs prior to sentencing, can carry significant weight as mitigating factors.
  • The presence of a very young child in the offending vehicle at the time of a fatal collision is treated as an aggravating circumstance in sentencing for this offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 52A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2), 525D(2)(a)
- Crimes (Administration of Sentences) Regulation 2014 (NSW) r 189
- Road Transport Act 2013 (NSW) ss 205, 206A
- New South Wales Road Rules 2014 rr 151.1, 313-2, 146

Key Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252
- Kerr v R [2016] NSWCCA 218
- R v Janceski [2005] NSWCCA 288
- Moodie v R [2020] NSWCCA 160
- McKinnon v R [2020] NSWCCA 106
- Duncan v R [2012] NSWCCA 78
- R v Errington (2005) 157 A Crim R 553
- Markham v R [2007] NSWCCA 295
- R v Williams [2014] NSWCCA 200
- De Groot [2016] NSWCCA 93
- Cvetjovski [2019] NSWCCA 100