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Local Court 21 November 2022

Police v Chidiac

[2022] NSWLC 20

Traffic & driving
SENTENCING S 117, ROAD TRANSPORT ACT NEGLIGENT DRIVING OCCASIONING DEATH SECOND AND SUBSEQUENT OFFENCE ASSESSMENT OF OBJECTIVE SERIOUSNESS PURPOSES OF SENTENCING

Citation: Police v Chidiac [2022] NSWLC 20
Court: Local Court of New South Wales
Date: 21 November 2022
Judge: Donnelly LCM

Background

The defendant pleaded guilty to one count of negligent driving occasioning death under s 117 of the Road Transport Act 2013 (NSW). The offence was classified as a second or subsequent offence because the defendant had been convicted of two major traffic offences within the preceding five years, both involving driving with an illicit drug present in blood. This classification attracted a higher maximum penalty of two years imprisonment and/or a fine of 50 penalty units.

The incident occurred on 27 March 2022 on the Princes Highway at Sylvania. The defendant was driving north when his vehicle entered an uncontrolled slide around a sweeping right-hand bend, crossed multiple lanes, mounted a raised median strip, and entered oncoming traffic. A southbound driver was unable to react in time and struck the left side of the defendant's vehicle. The front-seat passenger in the defendant's vehicle died shortly after the collision.

The collision remained unexplained. Investigations found no mechanical defects in the defendant's vehicle, no contributing roadway faults, no phone use, and no relevant impairment from the trace amounts of drugs detected in the defendant's blood. The defendant declined to participate in a police interview or provide any account of what occurred.

  • Whether the defendant's driving met the legal standard for negligent driving, specifically whether it constituted a departure from the standard of care expected of an ordinary prudent driver in the circumstances.
  • How the objective seriousness of the offending should be assessed for sentencing purposes.
  • What weight should be given to the defendant's subjective circumstances, including an early guilty plea, against the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether an Intensive Correction Order (ICO) was an appropriate sentencing outcome, or whether full-time imprisonment was required.

Decision

The court found that the defendant's driving constituted negligence by reference to the established standard: a departure from the level of care expected of an ordinary prudent driver in the circumstances. The vehicle entered an uncontrolled slide for no explained or obvious reason, crossed three lanes of traffic, and entered the path of oncoming vehicles. No external cause existed to account for the loss of control, and other vehicles navigated the same stretch without incident immediately before and after the collision.

On objective seriousness, the court assessed the degree of departure from the standard of care expected of a prudent driver as central to the analysis. The unexplained nature of the loss of control, the resulting death of a passenger, and the classification of the offence as a second or subsequent offence each informed that assessment. The court placed the offending in a range that required a meaningful custodial response.

The defendant's subjective circumstances were taken into account. An early guilty plea attracted a discount, and findings regarding rehabilitation and the low likelihood of reoffending were noted. However, consistent with the Court of Criminal Appeal's approach in cases including Bonsu v R and Quinn v Cth DPP, the court found that the objective seriousness of the offending and the requirements of general deterrence overwhelmed those considerations. The principles applicable to ICOs confirmed that where offending is too serious to be dealt with by a non-custodial sentence, no further question about an ICO arises.

The court also found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), justifying a departure from the standard statutory ratio between the non-parole period and the balance of the sentence, on the basis of the defendant's need for rehabilitation and treatment.

Orders Made

  • The defendant was sentenced to a term of imprisonment of 12 months, commencing 21 November 2022 and expiring 20 November 2023.
  • A non-parole period of 8 months was imposed, commencing 21 November 2022 and expiring 20 July 2023.
  • The defendant was disqualified from driving for a period of 3 years.

Key Takeaways

  • Negligent driving occasioning death under s 117 of the Road Transport Act 2013 (NSW) is established where the driver's conduct departs from the standard of care expected of an ordinary prudent driver in the circumstances; the degree of that departure directly informs the assessment of objective seriousness at sentencing.

  • Where a loss of control is unexplained, no mechanical defects are identified, and other vehicles successfully navigate the same route, a court may find that the defendant's driving constituted the operative cause of the collision and the resulting death.

  • Applying Bonsu v R and Quinn v Cth DPP, the court confirmed that favourable subjective circumstances, including an early guilty plea, good prospects of rehabilitation, and low likelihood of reoffending, do not automatically make an ICO appropriate if the objective seriousness of the offending and general deterrence are sufficiently weighty to demand full-time imprisonment.

  • Under s 66(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court deciding whether to make an ICO must consider the purposes of sentencing in s 3A and applicable common law principles; once a court concludes that the offending is too serious for any sentence other than full-time imprisonment, the question of an ICO effectively closes.

  • Special circumstances warranting a variation to the standard non-parole ratio can coexist with a finding that full-time imprisonment is the only proportionate outcome, as demonstrated here where rehabilitation and treatment needs justified the extended parole period.

Legislation and Cases Referenced

Legislation
- Road Transport Act 2013 (NSW), s 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 22, 26, 27, 28, 30E, 32, 44, 66

Cases
- Bonsu v R [2009] NSWCCA 316
- Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953
- Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Karout v R [2019] NSWCCA 253
- King v The Queen (2012) 245 CLR 588
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Meis v R [2022] NSWCCA 118
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Prineas v R [2018] NSWCCA 221
- Quinn v Cth DPP [2021] NSWCA 294
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v Campbell [2014] NSWCCA 102
- R v Dodd (1991) 57 A Crim R 349
- R v Fageer [2017] NSWLC 18
- R v Jurisic (1998) 45 NSWLR 209; [1998] NSWSC 423
- R v Koosmen [2004] NSWCCA 359
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v Parente (2017) 96 NSWLR 633