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District Court 4 August 2022

Moule v R

[2022] NSWDC 410

DrugsFraud & dishonestyTraffic & drivingPublic order & justice offences
CRIME APPEAL AGGREGATE SENTENCE 5 OFFENCES NEGLIGENT DRIVING CAUSING DEATH BREACH OF PUBLIC HEALTH REGULATION

Citation: Moule v R [2022] NSWDC 410
Court: District Court of New South Wales
Date: 4 August 2022
Judge: Neilson DCJ

Background

The appellant pleaded guilty in the Central Local Court to five separate offences: negligent driving causing death, breach of a Public Health Regulation (relating to COVID-19), possession of a false document, and two counts of possession of prohibited drugs. Magistrate Christofi imposed an aggregate sentence of two years' imprisonment with a non-parole period of 18 months, backdated to 17 November 2021 to account for pre-sentence custody.

The negligent driving offence arose from a fatal collision at Palm Beach on 11 April 2021. The appellant, driving a 10-metre, 14-tonne truck, failed to keep a proper lookout and turned right into Surf Road across the path of a southbound motorcyclist, Matthew Butcher, who died as a result. The maximum penalty for negligent driving causing death under the Road Transport Act 2013 is 18 months' imprisonment.

The appellant appealed against the sentence, contending that the indicative sentences assigned to the drug offences were disproportionately high relative to the maximum penalties applicable to those offences.

  • Whether the indicative sentences fixed by the Local Court for the drug offences were excessive in light of the applicable maximum penalties.
  • How the aggregate sentence should be recalculated if the indicative sentences for individual offences were found to be erroneous.
  • Whether the non-parole period was appropriately set, taking into account special circumstances (including the appellant's mental health condition) and the totality of the offending.

Decision

Neilson DCJ accepted that the indicative sentences assigned to the drug offences in the Local Court were too great relative to the maximum penalties for those offences. The District Court recalculated the indicative sentences for the drug counts, applying the same ratio to the maximum penalty as the Local Court had used, and fixed new, lower indicative sentences accordingly.

On the question of maximum penalties generally, his Honour noted that the maximum penalty for negligent driving causing death is fixed by Parliament at 18 months' imprisonment and is reserved for the worst category of cases. The Court applied the principles from Ibbs v The Queen and Veen v The Queen (No 2), observing that a lesser penalty is not automatically required merely because a worse case can be imagined. His Honour acknowledged the profound distress of the deceased's family but was constrained by the statutory maximum.

Regarding special circumstances, the appellant had been diagnosed with what his psychologist described as PTSD. His Honour accepted a reactive depressive disorder with similar symptoms but expressed reservations about the PTSD diagnosis given the DSM-5 criteria in circumstances where the appellant was himself the actor. The Court found that appropriate psychological treatment would not be readily available in custody, which was a relevant factor.

Weighing the totality of the offending, and noting that "rounding down" of the periods already reflected some leniency, his Honour concluded that a non-parole period of less than 12 months would be inappropriate. The aggregate sentence was reduced to 1 year and 5 months, comprising a 12-month non-parole period and a 5-month balance of sentence.

Orders Made

  • Sentence imposed by the Central Local Court on 19 May 2022 set aside.
  • Aggregate sentence of 1 year 5 months imposed, comprising:
  • Non-parole period of 12 months, commencing 17 November 2021 and expiring 16 November 2022.
  • Balance of sentence of 5 months, commencing 17 November 2022 and expiring 16 April 2023.
  • Appellant eligible for release on parole at expiration of the non-parole period.
  • Indicative sentences fixed as follows:
  • Negligent driving causing death: 12 months
  • Breach of Public Health Regulation: 3 months
  • Possession of false document: 6 months
  • Two drug possession counts: 1 month each
  • Driving disqualification of 17 months, commencing 16 November 2022.

Key Takeaways

  • Under section 53A of the Crimes (Sentencing Procedure) Act 1999, a court imposing an aggregate sentence must record an indicative head sentence for each individual offence, and those indicative sentences must bear a defensible relationship to the applicable maximum penalties.
  • Where indicative sentences for component offences are disproportionate to their statutory maximums, the appellate court may fix new indicative sentences using the same ratio to the maximum penalty as was applied in the court below.
  • The District Court reaffirmed that the maximum penalty for any offence represents the benchmark for the worst category of cases, drawing on Ibbs v The Queen and Veen v The Queen (No 2). A lower penalty is not automatically required simply because worse scenarios can be constructed.
  • Rounding down of a non-parole period in an aggregate sentence can itself constitute a form of leniency, which a court may take into account when assessing whether special circumstances warrant further reduction.
  • Negligent driving causing death carries a maximum of only 18 months' imprisonment under the Road Transport Act 2013, a ceiling that binds the sentencing court regardless of the gravity of the consequences in any individual case.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Road Transport Act 2013 (NSW), s 117(1)(a)
- Crimes Act 1900 (NSW), s 52A
- Drug Misuse and Trafficking Act 1985 (NSW)
- Public Health Act 2010 (NSW)

Cases
- Ibbs v The Queen (1987) 163 CLR 447
- Veen v The Queen (No 2) (1988) 164 CLR 465