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District Court 16 August 2023

R v Crane

[2023] NSWDC 315

HomicideDrugsTraffic & driving
CRIME SENTENCE VERY HIGH INTOXICATION DANGEROUS DRIVING OCCASIONING DEATH CIRCUMSTANCES OF AGGRAVATION PLEA OF GUILTY

Citation: R v Crane [2023] NSWDC 315
Court: District Court of New South Wales
Date: 16 August 2023
Judge: Montgomery DCJ

Background

The offender, aged 39 at the time, was driving a Toyota Echo westbound on the Great Western Highway from Mudgee to Sydney in the early hours of 19 January 2022. His front-seat passenger, a woman referred to in the judgment as Bonnie, died as a result of the collision. The offender was driving at approximately 114 km/h in a 60 km/h zone when the vehicle failed to navigate a gentle right-hand bend and struck a concrete safety barrier at Wentworth Falls.

Police who attended the scene observed the offender to be heavily affected by drugs: drowsy, disorientated, and barely conscious. A sharps box containing used syringes was found near the vehicle. Bonnie sustained catastrophic internal injuries and was pronounced dead at Nepean Hospital at 3:55am, approximately two hours after the collision.

The offender pleaded guilty to the charge under s 52A(2) of the Crimes Act 1900 (NSW): dangerous driving occasioning death in circumstances of aggravation. The aggravating circumstance was that he was travelling more than 45 km/h above the posted speed limit. At the time of the offence he was also driving while his licence was suspended and was subject to a Community Corrections Order. He had an extensive criminal and traffic antecedent history spanning more than two decades, including prior drink-driving, speeding, drug possession, and driving while disqualified offences.

  • What is the appropriate sentence for an offence of dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900 (NSW), where the aggravating circumstance is speed exceeding 45 km/h above the limit?
  • How should the offender's very high level of drug intoxication (which did not itself constitute the statutory aggravating circumstance) be treated in the sentencing synthesis?
  • What weight should be given to the offender's guilty plea, entered at the first available opportunity, entitling him to a 25% discount?
  • How should the offender's extensive criminal antecedents, breach of a Community Corrections Order, and personal circumstances (including mental health and possible Indigenous heritage) be balanced in fixing the sentence?

Decision

Montgomery DCJ convicted the offender and sentenced him to 6 years and 6 months' imprisonment, with a non-parole period of 4 years and 6 months. The sentence commenced on 10 February 2022, the date the offender was arrested upon discharge from hospital, and expires on 9 August 2028. The offender becomes eligible for parole on 9 August 2026.

The parties agreed that the offender's intoxication, while not forming the basis of the statutory aggravating circumstance (which was excessive speed), remained a relevant factor to be weighed in the overall sentencing exercise. The court's approach reflected the principle that both circumstances increased the objective seriousness of the offending.

The court took into account the offender's early guilty plea (attracting a 25% discount), his cooperation with paramedics, and the remorse he expressed. Against these mitigating factors, the court weighed his lengthy history of speeding and drug-related offences, the fact that the offence was committed while his licence was suspended and while he was subject to a Community Corrections Order, and the catastrophic and irreversible consequences of his conduct for Bonnie and her family.

The court made no specific order in respect of the breach of the Community Corrections Order. The sentencing judge also made a series of detailed recommendations for the offender's management on parole, addressing mental health support, alcohol and drug treatment, and the possibility of cultural engagement with his Wiradjuri heritage.

Orders Made

  • The offender is convicted of dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900 (NSW).
  • Charges of negligent driving occasioning death and driving with illicit drug present in blood are dismissed.
  • The offender is sentenced to imprisonment for 6 years and 6 months, commencing 10 February 2022 and expiring 9 August 2028.
  • Non-parole period of 4 years and 6 months; eligible for release on parole on 9 August 2026.
  • The offender is disqualified from driving for 3 years from the date of his release on parole.
  • No specific order made in relation to the breach of the Community Corrections Order.
  • Recommendations made for parole conditions to include: mental health plan with GP and psychiatrist involvement; abstinence from illicit drugs and alcohol; referral to community mental health, drug and alcohol services, EQUIPS Foundation, and the Traffic Offenders Intervention Program; random drug and alcohol testing; and cognitive behavioural programs targeting impulsivity and self-awareness.
  • Recommendation that, if the offender chooses to identify with his Wiradjuri heritage, he be directed to appropriate cultural engagement programs.

Key Takeaways

  • Drug intoxication that does not constitute the statutory aggravating element under s 52A(7) of the Crimes Act 1900 (NSW) may nonetheless be treated as an aggravating circumstance within the broader sentencing synthesis.
  • A 25% sentence discount applied where the offender entered a guilty plea at the first available opportunity, consistent with the standard approach under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Extensive prior traffic and drug offending, including repeat speeding and drink/drug-driving convictions spanning over 20 years, weighed heavily against the offender when assessing specific deterrence and the need for community protection.
  • Offending while on a suspended licence and while subject to a Community Corrections Order are factors that increase the objective gravity of an offence and inform the assessment of moral culpability.
  • The District Court's parole recommendations reflected a holistic approach to post-release management, encompassing mental health, substance abuse, cultural identity, and offending behaviour programs, though such recommendations are not binding orders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A (dangerous driving occasioning death; aggravated form)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9
- Mental Health Act 2007 (NSW)
- Road Rules 2014 (NSW), r 287
- Road Transport Act 2013 (NSW), ss 111, 117

Cases
- Norouzi v R [2020] NSWCCA 237
- R v Meakin [2019] NSWSC 1555
- R v Munro [2019] NSWDC 743
- R v Polutele [2020] NSWDC 33
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- SBF v R [2009] NSWCCA 231