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District Court 9 September 2022

R v Crowley

[2022] NSWDC 296

Traffic & driving
CRIME SENTENCE DANGEROUS DRIVING OCCASIONING DEATH CAUSING BODILY HARM BY MISCONDUCT

Citation: R v Crowley [2022] NSWDC 296
Court: District Court of New South Wales
Date: 9 September 2022
Judge: Colefax SC DCJ

Background

The offender, a 42-year-old man working as a traffic control supervisor, was driving an Isuzu truck along the Cumberland Highway at Smithfield on the evening of 15 April 2021. He was travelling in the far-left lane, heading to begin a night shift. Ahead of him, a Hyundai van had broken down in the same lane with its hazard lights activated. The van's driver had exited the vehicle and was standing in front of it inspecting the engine, while the driver's brother remained inside as a passenger.

Despite favourable conditions including light traffic, dry roads, good street lighting, and an extended line of sight, the offender failed to keep a proper lookout. He did not attempt to change lanes until the last possible moment. His truck struck both the broken-down van and an adjacent Uber vehicle, propelling the van's driver forward and running over him. The van's driver died at the scene from blunt force injuries. He was 32 years old and left behind a wife and five young children. The brother inside the van sustained a nasal fracture and a laceration requiring suturing and was discharged from hospital the following day.

The offender faced sentencing on the principal charge of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW), carrying a maximum of 10 years imprisonment. A further matter of causing bodily harm by misconduct under s 53 of the same Act, relating to the injury to the passenger, was taken into account on a Form 1.

  • What sentence was appropriate for dangerous driving occasioning death where the offending did not involve speed or other aggravating factors under the R v Whyte guideline, but did involve a prolonged failure to keep a proper lookout?
  • Where did the offending fall on the spectrum of moral culpability?
  • What weight should be given to the offender's prior criminal history, his subjective circumstances, his early guilty plea, and his prospects for rehabilitation?
  • Was a finding of special circumstances warranted to adjust the ratio between the head sentence and the non-parole period?

Decision

His Honour began by quoting the Court of Criminal Appeal in Moodie v R [2020] NSWCCA 160, acknowledging the impossibility of equating a human life with a term of imprisonment and the broad spectrum of culpability that can underlie fatal dangerous driving. The court confirmed that the sentencing discretion must reflect adequate punishment, denunciation, the objective seriousness of the offence, the offender's moral culpability, and prospects of rehabilitation.

Colefax SC DCJ assessed the offender's moral culpability as neither high nor low. The offending was not a momentary lapse of attention, nor was it a total abandonment of responsibility. The hazard lights and stationary van were clearly visible for a significant distance and should have been obvious to any driver keeping a proper lookout. The offender gave three inconsistent explanations for his failure to observe the hazard, which the court noted without resolving.

On subjective circumstances, the court accepted that the offender had not offended since 2011 and had addressed prior drug issues, giving him good prospects for rehabilitation. However, his significant adult criminal history, which included firearms, drug supply, and driving whilst disqualified offences, meant he could not be treated as a first offender. The court found he suffered genuine PTSD, remorse, and contrition following the collision. A 25 per cent discount applied for the early guilty plea.

The court found that no sentence other than imprisonment was appropriate for the principal offence, with general deterrence fully engaged. A finding of special circumstances was made, given this was the offender's first period of full-time custody, justifying a non-parole period shorter than the standard statutory ratio.

Orders Made

  • Non-parole period of 1 year 7 months, commencing 7 September 2022 and expiring 6 April 2024.
  • Balance of term of 12 months, commencing 7 April 2024 and expiring 6 April 2025 (total head sentence: 2 years 7 months).
  • Disqualification from driving for 2 years, commencing 7 April 2024.
  • Sentence backdated by 2 days to account for time refused bail following arrest on 15 April 2021.

Key Takeaways

  • The District Court treated a prolonged failure to maintain a proper lookout as occupying the middle of the culpability spectrum under the R v Whyte guideline: more than momentary inattention, but short of total abandonment of responsibility.
  • A prior criminal history spanning larceny, drug supply, weapons and traffic offences precluded the leniency available to first offenders, even where the offender had been clear of offending for over a decade.
  • General deterrence is fully engaged for dangerous driving occasioning death, even where aggravating factors such as excessive speed or alcohol are absent.
  • A first period of full-time custody can ground a finding of special circumstances, permitting the court to extend the balance of the sentence beyond the standard statutory ratio in order to support rehabilitation on release.
  • Inconsistent explanations given by an offender to police and treating or expert psychologists will be noted by the sentencing court, even where the court does not need to resolve which account is accurate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1)(c) (dangerous driving occasioning death)
- Crimes Act 1900 (NSW), s 53 (causing bodily harm by misconduct)

Cases
- R v Whyte [2002] 55 NSWLR 252 (guideline judgment for dangerous driving offences under s 52A)
- Moodie v R [2020] NSWCCA 160 (principles of sentencing in fatal dangerous driving cases)