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District Court 1 April 2021

R v Banks, Craig

[2021] NSWDC 827

HomicideTraffic & driving
PEDESTRIAN CROSSING EARLY GUILTY PLEA NO PRIOR OFFENCES LOW END OF THE RANGE LOW LEVEL OF MORAL CULPABILITY HIGH LEVEL OF CONTRITION

Citation: R v Banks, Craig [2021] NSWDC 827
Court: District Court of New South Wales
Date: 1 April 2021
Judge: P Taylor SC DCJ

Background

The offender, a 26-year-old man with no prior criminal history, pleaded guilty in the Local Court to one count of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900. The matter was committed to the District Court for sentence.

On 12 February 2019, the offender was driving along Anzac Parade, Chifley, at or below the posted speed limit of 60 km/h. As he approached a marked pedestrian crossing, he recognised a friend at a nearby bus stop and looked towards him, diverting his attention from the road. During that brief moment of inattention, a pedestrian stepped onto the crossing. The offender did not see the pedestrian, did not brake or swerve, and struck him heavily. The pedestrian was thrown through the air and pronounced dead at the scene.

The offender stopped immediately, rendered aid, and was heard admitting fault at the scene. He tested negative for alcohol and drugs. His vehicle had no defects. Police determined that less than approximately one second elapsed between the moment the offender looked away and the collision.

  • What was the objective gravity of the offence, given the brief duration of inattention and the location at a marked pedestrian crossing?
  • Whether the offence fell within the "momentary inattention or misjudgement" category identified in the guideline judgment R v Whyte, such that a non-custodial sentence might be appropriate.
  • What weight should be given to the offender's subjective circumstances, including his mild intellectual disability, high level of contrition, early guilty plea, and absence of prior offences?
  • Whether a sentence of imprisonment served by way of an intensive correction order (ICO) was appropriate in the circumstances.

Decision

The District Court placed the offence at the low end of the range for moral culpability within the category of dangerous driving causing death, but not at the very lowest. The court acknowledged the inattention was brief and that the offender's conduct showed no abandonment of driving responsibility. However, the visible presence of a pedestrian crossing, which carries an elevated duty of attention for drivers, elevated the offence above the minimum.

The court applied the guideline judgment in R v Whyte as a check on its reasoning rather than as a starting point. Under that guideline, a custodial sentence will usually be appropriate unless the offender's moral culpability is low, as in cases of momentary inattention or misjudgement. General deterrence was identified as a significant sentencing purpose, given how prevalent driving is and the severe consequences that can follow from a driver's momentary failure.

The offender's subjective case was found to weigh substantially in his favour. The court accepted evidence of mild intellectual disability, which limited the weight given to general deterrence without eliminating it. The offender demonstrated high contrition, had written a letter of apology to the deceased's family, and entered an early guilty plea in circumstances where a finding of dangerous driving was not inevitable. The victim impact statement, read by the deceased's niece, described profound and ongoing grief, including the deceased's close bond with his sister and his family's subsequent hardship. Notably, the statement expressed a wish that the offender not be imprisoned.

Balancing the objective seriousness of the offence, the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999, and the strong subjective factors, the court concluded that imprisonment was necessary but that it should be served by way of an intensive correction order rather than full-time custody.

Orders Made

  • Convicted of dangerous driving causing death.
  • Sentenced to 18 months' imprisonment, to be served by way of an intensive correction order commencing 1 April 2021 and concluding 30 September 2022.
  • Standard ICO conditions imposed: no further offences, and submission to supervision by a Community Corrections Officer.
  • Additional condition: 200 hours of community service work.
  • Disqualified from holding a driver licence for 13 months and 5 days from 1 April 2021 (ending 5 May 2022).
  • Required to report to or telephone the City Community Corrections Office within seven days of sentencing.

Key Takeaways

  • Under the guideline judgment in R v Whyte, a custodial sentence will usually be appropriate for dangerous driving occasioning death unless the offender's moral culpability is low, such as in cases of momentary inattention or misjudgement. This District Court case confirms that the presence of a visible pedestrian crossing lifts an offence above the very lowest level of culpability, even where inattention lasted less than a second.

  • Driving at or below the speed limit, with no alcohol, drugs, phone use, or vehicle defects, does not preclude a finding of dangerous driving where inattention at a pedestrian crossing results in a fatality.

  • General deterrence carries particular weight in dangerous driving sentencing due to the prevalence of driving and the grave consequences that can follow from momentary inattention. The court confirmed that the need for public deterrence will ordinarily outweigh the fact that the particular offender has already learned his lesson.

  • Mild intellectual disability is a recognised mitigating factor in sentencing: it does not eliminate the weight given to deterrence but reduces it, particularly where the disability affects the offender's general capacity rather than their understanding of the offending.

  • An early guilty plea, genuine remorse, a letter of apology accepted by the victim's family, and the absence of prior offending are all capable of supporting an intensive correction order in lieu of full-time custody for an offence at the lower end of moral culpability, even where the offence involves the loss of life.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 21A, 66, 68, 73A
- Road Transport Act 2013 (NSW), ss 205, 206B, 207A

Cases:
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (guideline judgment)
- R v Jurisic (1998) 45 NSWLR 209
- Regina v Manok [2017] NSWCCA 232
- R v Errington (2005) 157 A Crim R 553; [2005] NSWCCA 348
- R v Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep)
- R v George Tzanis [2005] NSWCCA 274
- R v Pisciuneri; Pisciuneri v R [2007] NSWCCA 265
- Hughes v R (2008) 185 A Crim R 155; [2008] NSWCCA 48
- Ross v R [2012] NSWCCA 161
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Steven Barnett [2016] NSWDC 302
- R v Slattery (1996) 90 A Crim R 519
- R v Turner (Court of Criminal Appeal (NSW), 12 August 1991, unrep)