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District Court 24 May 2022

R v Quinlan

[2022] NSWDC 761

HomicideTraffic & driving
19 ON PRISONERS — IMPACT OF COVID

Citation: R v Quinlan [2022] NSWDC 761
Court: District Court of New South Wales
Date: 24 May 2022
Judge: Haesler SC DCJ

Background

In February 2020, the offender drove her Nissan sedan through a signalised intersection in Shellharbour at approximately 86 kilometres per hour in a 60 kilometre per hour zone. She had accelerated on seeing the light turn orange, intending to clear the intersection before red. A 16-year-old cyclist, riding against a red pedestrian signal, entered the northern pedestrian crossing from her left. The offender braked hard, but the vehicle slid through the intersection and struck the bicycle. The cyclist died shortly after being taken to hospital by helicopter.

The offender was charged with dangerous driving occasioning death under s 52A(b) of the Crimes Act 1900 (NSW), along with summary offences including speeding and failing to stop at a traffic signal. She pleaded guilty to the summary offences in the Local Court but contested the dangerous driving charge.

A jury at Wollongong District Court convicted her of the s 52A(b) offence on 10 March 2022. The sole issue at trial was whether the prosecution had proved beyond reasonable doubt that the offender's driving was "in a manner dangerous to another person or persons."

  • Whether the offender's driving met the statutory threshold of being "in a manner dangerous to another person or persons" under s 52A(b) of the Crimes Act 1900 (NSW)
  • The objective seriousness of the offence for the purposes of sentencing
  • The appropriate sentence, having regard to subjective factors including good character, remorse, mental health, youth, and the absence of prior convictions
  • Whether an Intensive Correction Order (ICO) was an appropriate disposition rather than full-time custody
  • The appropriate period of licence disqualification, accounting for the pre-sentence suspension period under the Road Transport Act 2013 (NSW)

Decision

The jury's verdict resolved the central legal question: the offender's driving was more than negligent and constituted driving in a manner dangerous to others. Haesler SC DCJ accepted that the conscious decision to accelerate to approximately 86 kilometres per hour on an orange light, reducing her capacity to observe and react, was criminally dangerous. The judge noted that while the decision was spontaneous rather than calculated, spontaneity did not diminish its criminal character. The court also observed that, had the offender been paying proper attention, she may have seen the cyclist approaching before a collision became inevitable.

On objective seriousness, the court placed the offence at a moderate level within the range for s 52A(b). The offender's decision to speed up was described as the key act of moral and legal culpability. The court acknowledged that the cyclist had also breached the road rules by crossing against a red signal, but held that this did not displace the offender's duty to other road users.

On subjective factors, the court found the offender to be a person of good character with no prior record, genuine remorse, and strong prospects of rehabilitation. Her youth and mental health were treated as mitigating considerations. The court declined to impose full-time custody, noting that gaol is not always the appropriate response in serious driving matters and that serving an ICO in the community, with the accompanying obligations, could better achieve the purposes of sentencing in this case.

The summary offences were noted on a s 166 certificate under the Criminal Procedure Act 1986 (NSW) and dealt with as back-up charges.

Orders Made

  • Convicted of dangerous driving occasioning death (s 52A(b) Crimes Act 1900 (NSW))
  • Sentenced to 2 years imprisonment, to be served by way of an Intensive Correction Order (ICO) in the community
  • Standard ICO conditions apply
  • 250 hours of community service
  • Completion of the Traffic Offender Program
  • Licence disqualification of 2 years and 6 months from the date of conviction, with the pre-sentence suspension period taken into account under s 206B of the Road Transport Act 2013 (NSW), with the intended total disqualification period being 2 years and 6 months from 11 February 2020
  • Three back-up summary charges (speeding, not stopping at traffic signal, negligent driving) noted on a s 166 Criminal Procedure Act 1986 (NSW) certificate: withdrawn and dismissed

Key Takeaways

  • A spontaneous decision to accelerate through an orange light can satisfy the "manner dangerous" element of s 52A(b) of the Crimes Act 1900 (NSW); the fact that a dangerous choice was made quickly does not reduce its criminal character.
  • The contributory fault of another road user (here, the cyclist crossing against a red signal) does not extinguish an offender's duty of care to other persons on the road, and does not preclude a conviction for dangerous driving occasioning death.
  • Under the instinctive synthesis approach to sentencing, an ICO remains an available and appropriate disposition for a mid-range dangerous driving occasioning death offence where subjective factors, including genuine remorse, good character, youth, and mental health, weigh significantly in the offender's favour.
  • The District Court recognised the COVID-19 pandemic's effect on access to custodial programmes as a relevant consideration in assessing whether full-time imprisonment was the right response.
  • Where a pre-sentence licence suspension has already been served, s 206B of the Road Transport Act 2013 (NSW) requires the sentencing court to account for that period when fixing the total disqualification to be imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Road Transport Act 2013 (NSW), ss 205(2), 206B
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Elphick v R [2021] NSWCCA 167
- Legge v R [2007] NSWCCA 244
- Pearce v R [2022] NSWCCA 68
- R v Errington (2005) 157 A Crim R 553
- R v Herring (1956) 73 WN (NSW) 203
- R v Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep)
- R v Nemer [2003] SASC 375
- R v Smith [2016] NSWCCA 75
- R v Whyte (2002) 55 NSWLR 252
- R v Windle [2012] NSWCCA 222
- Regina v Manok [2017] NSWCCA 232
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
- Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629