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District Court 1 February 2022

Monk v R

[2022] NSWDC 44

Traffic & driving
CRIME DRIVING OFFENCES NEGLIGENT DRIVING OCCASIONING DEATH

Citation: Monk v R [2022] NSWDC 44
Court: District Court of NSW
Date: 1 February 2022
Judge(s): Bennett SC DCJ

Background

The appellant was convicted in the Local Court on three driving-related offences arising from an incident on 13 July 2020 in Macquarie Street, Sydney. While attempting to execute an illegal U-turn to take a parking spot, he reversed his Ford Ranger utility into a pedestrian, John Schaeffer, who was standing near the edge of the footpath. The appellant did not realise he had struck anyone until a bystander informed him. Mr Schaeffer did not regain consciousness and died after life support was withdrawn in hospital.

The Magistrate sentenced the appellant to ten months imprisonment with a non-parole period of six months for negligent driving causing death, imposed a $550 fine for the presence of cocaine in his oral fluid, and recorded a conviction with no penalty for crossing dividing lines to perform the U-turn. The appellant appealed all three sentences to the District Court.

The appellant had a lengthy and poor driving record spanning nine pages and a prior criminal history that included a six-year term of imprisonment for drug supply offences. He also suffered from post-traumatic stress disorder, which he attributed in part to his experience as one of the first responders to the 1991 Strathfield Massacre during his time as a police officer.

Legal Issues

  • Whether the Magistrate had properly accounted for the period of licence suspension that commenced on 14 July 2020 when structuring the disqualification periods under s 206B of the Road Transport Act 2013.
  • Whether the ten-month sentence of imprisonment for negligent driving causing death should be confirmed, varied, or served by way of an intensive corrections order rather than full-time detention.
  • Whether cocaine found in the appellant's system was a contributing factor to the offence.
  • Whether the objective seriousness of the negligent driving offence crossed the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 requiring a custodial sentence.

Decision

Issue 1: Disqualification periods and licence suspension

The Magistrate had not brought to account the licence suspension that took effect on 14 July 2020, the day after the incident. The District Court corrected this by specifying end dates for the disqualification periods using the mechanism in s 206B(5) of the Road Transport Act 2013. The three-year disqualification for the negligent driving offence was confirmed to expire on 13 July 2023, and the six-month disqualification for the drug offence was confirmed to have already expired on 13 January 2021 (at [4]-[5]).

Issue 2: Objective seriousness and the sentencing threshold

The court accepted the Crown's submission that the offence of negligent driving causing death was above the mid-range of objective seriousness, and that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 requiring imprisonment had been crossed. Neither party contested this characterisation (at [17]). The court confirmed that the appellant's failure to keep a proper lookout while reversing, his unawareness that he had struck a pedestrian, and the resulting death demonstrated the requisite degree of negligence (at [13], [21]).

Issue 3: Cocaine as a contributing factor

The court found that cocaine detected in the appellant's oral fluid was not established to the requisite standard as a contributing factor to the offence. The pharmacologist concluded that the level detected indicated consumption at least 24 hours before the sample was taken, which was consistent with the appellant's own evidence (at [19]).

Issue 4: Intensive corrections order in place of full-time detention

The court confirmed the ten-month sentence but ordered it be served by way of an intensive corrections order, replacing full-time imprisonment. Under s 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is the paramount consideration when assessing whether an intensive corrections order is appropriate. The court was satisfied that nothing in the material required full-time detention to protect community safety (at [27], [29]). Community Corrections had assessed the appellant as being at the low end of the risk of reoffending and suitable for home detention (at [29]). The court also noted that, while the appellant's overall driving record was poor, offending had reduced to only three matters since September 2016 (at [28]). The sentence was to be served with a home detention condition for its full duration, along with standard conditions (at [32]).

Issue 5: Sentencing factors

The court accepted that the appellant was genuinely remorseful and had demonstrated appropriate contrition, satisfying s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (at [16]). A 25% utilitarian discount for the early guilty plea was confirmed as reflected in the Magistrate's sentence (at [18]). The court considered the appellant's criminal history and poor driving record not as aggravating the offending itself, but as informing the need for specific deterrence and reducing the scope for leniency (at [25]).

Orders Made

  • The appeal in respect of the U-turn/dividing lines offence was abandoned and the Magistrate's orders (conviction, no penalty under s 10A) were confirmed.
  • The conviction for negligent driving causing death was confirmed; the ten-month sentence of imprisonment was ordered to be served by way of an intensive corrections order, with a home detention condition for the full duration, commencing 1 February 2022.
  • The conviction, $550 fine, and six-month disqualification for driving with an illicit drug in oral fluid were confirmed, with the disqualification period confirmed as already expired (13 January 2021).
  • The three-year disqualification for the negligent driving offence was confirmed, expiring 13 July 2023.

Key Takeaways

  • Under s 206B(5) of the Road Transport Act 2013, a sentencing court must take into account any period of licence suspension already served when structuring disqualification periods, and may specify an end date to give effect to that obligation. Failure to do so is an error correctable on appeal (at [4]-[5]).

  • The District Court confirmed that an offence of negligent driving causing death can sit above the mid-range of objective seriousness even where the conduct falls short of recklessness, provided the degree of negligence is sufficiently demonstrated by the surrounding circumstances (at [17], [21]).

  • Detection of an illicit drug in a driver's oral fluid does not automatically establish that the drug contributed to the offence. Pharmacological evidence going to the timing of consumption can negate that causal link (at [19]).

  • A sentence of imprisonment for a driving offence may properly be served by way of an intensive corrections order with a home detention condition where community safety considerations are addressed and the offender has been assessed as low risk of reoffending, even where the offending involved the death of a pedestrian (at [27]-[32]).

  • A poor prior driving record and criminal history do not increase the proportionate sentence for a specific offence, but they can reduce available leniency and inform the weight to be given to specific deterrence at sentencing (at [25]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999
- Road Transport Act 2013

Cases
- Not stated