Citation: R v KA [2021] NSWDC 566
Court: District Court of New South Wales
Date: 12 July 2021
Judge(s): Noman SC DCJ
Background
The offender drove her family from the Wollongong area toward Queensland in the early hours of 26 September 2017. She was travelling with her two sons, her daughter, and a family friend. Her parents accompanied the group in a separate car because the offender and others had been unwell.
After more than eight hours on the road, the offender was observed driving erratically over a period of approximately 12 minutes, including varying her speed and drifting across lane markings in a roadworks zone. She then gradually drifted left onto a gravel shoulder before overcorrecting sharply to the right, crossing into oncoming traffic. The resulting collision and subsequent impacts involved multiple vehicles.
As a consequence of the collision, the offender's mother died at the scene. The offender's daughter sustained severe injuries, including serious traumatic brain injury, and required airlifting to hospital. The offender was convicted after trial of driving in a manner dangerous causing death and driving in a manner dangerous causing grievous bodily harm.
Legal Issues
- What facts were established for sentencing purposes, consistent with the jury's verdicts?
- What weight should be given to post-trial explanations advanced by the offender, including a claim that she was avoiding potholes?
- What was the nature and extent of the offender's impairment at the time of the collision (fatigue, illness, and cannabis use)?
- What aggregate sentence was appropriate, having regard to the objective seriousness of the offending, the offender's personal circumstances, and the impact on the surviving victim?
- Whether special circumstances existed to justify a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
Decision
The court determined the facts for sentence on the basis of the trial evidence, applying the appropriate standard of proof depending on whether each matter was aggravating or mitigating. The offender's post-trial assertion that she had been avoiding potholes was rejected as it had been raised belatedly and was unsupported by any trial evidence. A disputed character reference that conflicted with the offender's account of sleeping during the day before departure was retained in evidence; the court noted it could not definitively resolve what the offender did that day but found it inconsistent with her account.
The court found beyond reasonable doubt that the offender was fatigued at the time of the collision as a result of illness, the extended period of travel without sleep, and cannabis use during the journey. Expert evidence established that she would have been at least mildly impaired from cannabis, potentially affecting her response times. She was not paying attention to the road. Her erratic driving was evident for at least 12 minutes before the fatal collision, going beyond a momentary lapse while still falling short of the most serious category of dangerous driving.
On objective seriousness, the court noted that two serious offences arose from the one episode of driving, each involving a different victim. The offender's mother died and her daughter sustained devastating and permanent injuries. Other road users were also placed at risk during the period of erratic driving. The court found some degree of accumulation of sentences was required because neither offence's criminality could be subsumed within the other.
The court found special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW), departing substantially from the standard non-parole period ratio. Three factors grounded this finding: it was the offender's first custodial sentence; she would require support for trauma and mental health issues upon release; and the separation from the offender would adversely affect the surviving daughter's ongoing rehabilitation. The offender's denial of legal responsibility meant any remorse expressed was for moral rather than criminal culpability, and this was taken into account.
Orders Made
- The offender was convicted of both offences.
- An aggregate sentence of 3 years and 3 months imprisonment was imposed, commencing 27 January 2021.
- A non-parole period of 1 year was set, with eligibility for parole from 26 January 2022 (a ratio of approximately 30%, reflecting the finding of special circumstances).
- Minimum licence disqualification periods were applied to both offences.
- Back-up and related charges were withdrawn.
Key Takeaways
- Where an offender advances a post-trial explanation for their conduct that was not raised during the trial and is unsupported by evidence, a sentencing court may dismiss that account as belated and unreliable.
- A sentencing court may decline to permit the withdrawal of tendered evidence after sentence proceedings have been heard, particularly where that evidence is independent of the offender and bears on contested factual matters.
- Combined fatigue, illness, and cannabis impairment can found a finding of driving in a manner dangerous even where the offender was not speeding and the poor driving extended over a relatively short period, provided it went beyond the momentary.
- The District Court confirmed that where two offences arising from a single episode of driving each involve different victims, the criminality of one cannot be fully subsumed into the other, and some accumulation of sentences is appropriate.
- Special circumstances sufficient to reduce the non-parole period well below the standard ratio can be established where the offender faces a first custodial sentence, requires mental health support, and a surviving victim's ongoing recovery depends substantially on the offender's presence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Whyte (2002) 55 NSWLR 252