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District Court 13 May 2022

R v Sleiman (No 2)

[2022] NSWDC 158

HomicideTraffic & driving
CRIME DRIVE MANNER DANGEROUS CAUSING DEATH RELEVANT FACTORS ON SENTENCE LATE GUILTY PLEA IMPACT OF EAPG NEGOTIATIONS RELATED TRAFFIC OFFENCES

Citation: R v Sleiman (No 2) [2022] NSWDC 158
Court: District Court of New South Wales
Date: 13 May 2022
Judge: Haesler SC DCJ

Background

On 25 April 2021, a 19-year-old P1 licence holder drove a modified Nissan Silvia on Lady Wakehurst Drive in the Royal National Park at speeds well above the posted limit. The vehicle lost traction on a bend, crossed to the wrong side of the road, and struck a tree. The front-seat passenger died as a result.

After the crash, the driver checked on his passenger, who appeared dead, but did not call emergency services. Instead, he used his phone to photograph the wreck and contact a friend. Emergency services were alerted approximately ten minutes later by passing motorists, and police and ambulance arrived around ten minutes after that.

The driver pleaded guilty in the District Court to driving in a manner dangerous causing death (s 52A(1)(c) of the Crimes Act 1900). He was also found guilty after a judge-alone trial of failing to stop and render assistance after a fatal impact (s 52AB(1)). Two related traffic offences dealt with in the Local Court were also before the court on a s 166 certificate.

  • What discount, if any, applied to the guilty plea to Count 1, given the late timing and the earlier dispute about the precise nature of the dangerous driving charge?
  • Whether s 25F of the Crimes (Sentencing Procedure) Act 1999 should reduce or eliminate the plea discount because the factual dispute was not resolved in the offender's favour.
  • How to assess the objective seriousness of each offence and the relative moral culpability between the dangerous driving and the failure-to-render-assistance counts.
  • Whether a full-time custodial sentence was required for Count 1, or whether an Intensive Correction Order (ICO) was available.
  • How to sentence a young offender with no prior convictions, possible intellectual disability, and genuine remorse, while giving proper weight to general deterrence.

Decision

Guilty plea discount. The plea to Count 1 was entered late, limiting the available discount for utilitarian value to 5% under s 25D(2) of the Crimes (Sentencing Procedure) Act 1999. His Honour rejected the Crown's submission that s 25F should further erode or eliminate that discount. The court noted that, had the matter proceeded to a contested hearing on the precise charge, s 22A would have permitted some reduction anyway. The overall approach balanced the limited utilitarian benefit of the plea against all other relevant factors without needing to quantify each separately.

Objective seriousness and moral culpability. The dangerous driving was found to be well above the mid-range of objective seriousness. The offending involved a combination of excessive speed (96 to 98 km/h in a 60 km/h zone on a narrow, winding road), driving on the wrong side of the road, inexperience, driving a vehicle a P1 holder was prohibited from driving, and driving recklessly for thrills. The failure-to-render-assistance offence, while also serious, carried lower moral culpability than the dangerous driving, consistent with the Court of Criminal Appeal's reasoning in Hoskins v R. The court accepted that the driver had suffered shock and genuinely believed his passenger was dead, but found that shock did not excuse the failure to call emergency services.

Personal circumstances. The court considered the offender's youth, absence of prior convictions, genuine remorse, and evidence of possible intellectual disability. These factors carried significant weight in mitigation. Nonetheless, his Honour concluded that the gravity of the dangerous driving, combined with the need for general deterrence, meant that a full-time custodial sentence was the only appropriate response for Count 1. An ICO was not available.

Count 2 and the related traffic offences. A community correction order of two years was imposed for the failure-to-render-assistance count, effectively subsumed within the sentence for Count 1. The two Local Court traffic offences resulted in conviction with no further penalty under s 10A.

Orders Made

Local Court traffic offences (s 166 certificate):
- Not keep left of a dividing line (r 132(2) Road Rules 2014): convicted, no further penalty (s 10A).
- Not comply with P1/P2 high performance vehicle restriction (cl 119(1) Road Transport (Driver Licencing) Regulation 2017): convicted, no further penalty (s 10A).

Count 1 (driving in a manner dangerous causing death):
- Convicted.
- Sentenced to imprisonment of 3 years 6 months (incorporating a 5% reduction for the late guilty plea).
- Non-parole period of 2 years, commencing 13 May 2022, expiring 12 May 2024.
- Balance of term of 1 year 6 months, commencing 13 May 2024, expiring 12 November 2025.
- Disqualified from holding a driver's/rider's licence for 3 years (noting the disqualification period is extended by any period of custody served after its commencement).

Count 2 (fail to stop and render assistance after fatal impact):
- Convicted.
- Community correction order of 2 years (standard conditions only), subsumed by the sentence for Count 1.
- Disqualified from holding a driver's/rider's licence for 1 year.

Key Takeaways

  • A late guilty plea in dangerous driving matters attracts a maximum 5% utilitarian discount under s 25D(2) of the Crimes (Sentencing Procedure) Act 1999, even where the offender had earlier indicated willingness to plead to a lesser or differently framed charge.
  • Where s 25F is raised because a factual dispute was not resolved in the offender's favour, the court will not automatically eliminate the plea discount, particularly where the overall proceedings were conducted efficiently and some utilitarian benefit was nonetheless achieved.
  • Under s 52AB(1) of the Crimes Act 1900, the obligation to "stop and give assistance" is a single composite duty. A driver who stops but fails to call emergency services breaches that obligation, even if shock or a genuine belief that the victim was already dead affected the driver's state of mind. Those circumstances bear on culpability, not liability.
  • Full-time custody remains the expected sentencing outcome for dangerous driving causing death of significant objective seriousness, even for a young offender with no prior convictions, genuine remorse, and other strong mitigating factors.
  • Where a failure-to-render-assistance charge is sentenced alongside a dangerous driving causing death charge, the court confirmed (following Hoskins v R) that the former will rarely warrant the same level of moral culpability as the latter, despite both offences carrying the same statutory maximum of 10 years.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52AB(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 10A, 22A, 25D, 25F
- Criminal Procedure Act 1986 (NSW), s 166
- Road Rules 2014 (NSW), r 132(2)
- Road Transport (Driver Licencing) Regulation 2017 (NSW), cl 119(1)
- Road Transport (General) Act 2005 (NSW), s 205D
- Road Transport Act 2013 (NSW), s 225(3)(b)

Cases:
- Hoskins v R [2020] NSWCCA 18
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen (2005) 228 CLR 357
- Magaming v The Queen (2013) 252 CLR 381
- Barbaro v The Queen (2014) 253 CLR 58
- Hili v The Queen (2010) 242 CLR 520
- DPP v De La Rosa [2010] NSWCCA 195
- Geagea v R [2020] NSWCCA 350
- Clarke-Jeffries v R [2019] NSWCCA 56
- Howard v R [2019] NSWCCA