Citation: R v Saleh [2023] NSWDC 639
Court: District Court of New South Wales
Date: 29 November 2023
Judge(s): S Hanley SC DCJ
Background
The offender appeared for sentencing on two counts arising from a collision on Betts Road (Cumberland Highway), Merrylands on 7 September 2020. He was driving a highly modified 1995 Nissan Skyline with an estimated 800 horsepower, a vehicle not legally permitted on public roads due to its modifications. His passenger was Aaron Pritchard.
Claire Georgey was lawfully turning right at a green traffic light when the offender's vehicle, travelling approximately 45 km/h above the 70 km/h speed limit, struck her car. She was trapped, suffered a cardiac arrest at the scene, underwent multiple surgeries, and died on 14 September 2020. Mr Pritchard suffered serious injuries requiring multiple surgeries, including removal of 35 cm of small intestine.
The offender pleaded guilty on 21 June 2023 at a District Court Super Call Over, after two previously listed trials had been vacated. The pleas were accepted by the Crown in full satisfaction of the indictment, which had originally charged more serious offences.
Legal Issues
- The appropriate objective seriousness of the two offences, by reference to the guideline factors in R v Whyte (2002) 55 NSW LR 252
- Whether the offending was typical or atypical for the purposes of the Whyte ranges
- The extent of the percentage reduction available for the guilty pleas, given their timing and the history of vacated trials
- Whether the offender's physical injuries from the collision constituted ongoing extra-curial punishment warranting a reduction in sentence
- Whether the restrictive bail conditions over more than three years warranted a sentencing discount
- The weight to be given to the offender's mental health, remorse, prospects of rehabilitation, and personal circumstances as mitigating factors
- Whether special circumstances existed to vary the statutory ratio between the head sentence and non-parole period
Decision
Objective seriousness and moral culpability: The court found the offender's moral culpability was significant, representing an abandonment of responsibility, with the objective gravity of each offence falling above the mid-range (at [79]). Excessive speed was the major contributor to the collision (at [64]). The court accepted that the journey from the point of acceleration to the point of collision covered approximately 625 metres, limiting the period during which other road users were in immediate danger, but held that this consideration was constrained by the fatal outcome and by witness evidence that the offender had driven at speed on multiple occasions that night (at [67]). The court rejected any suggestion that the vehicle's illegal modifications directly contributed to the collision speed, but found they were indicative of the offender's general attitude toward speed and road safety (at [69]).
The offender as an atypical case: The Crown submitted, and the court accepted, that the offender fell outside the typical case contemplated by Whyte, given the combination of factors present: excessive speed, an illegal high-performance vehicle, multiple victims, and an extensive history of speeding and driving violations (at [169]-[172]). The court noted the offender's driving record demonstrated "little regard for the safety of the community" and disqualified him from leniency, though it did not aggravate the offences (at [80]).
Guilty plea discount: The court allowed a 10% reduction for the guilty pleas, reflecting their late entry after two prior vacated trials (at [86]). The court separately noted the pleas at the Super Call Over as advancing the interests of justice but did not apply an additional percentage reduction for that circumstance (at [87]).
Extra-curial punishment and bail conditions: The court declined to treat the offender's physical injuries as ongoing extra-curial punishment. The medical material provided did not establish ongoing injury or treatment as of the sentencing date (at [138]-[143]). The restrictive bail conditions, including an effective curfew for a significant period, were taken into account in the general mix of mitigating factors, but the court declined to assign a specific percentage discount equivalent to full-time custody, noting the offender had also been able to work, socialise, marry, and undertake rehabilitation during that time (at [146]-[147]).
Subjective factors and sentence structure: The court accepted the offender was remorseful and had accepted responsibility, demonstrated by his guilty pleas and letter of apology, notwithstanding some reservations about his capacity to fully accept responsibility for his conduct generally (at [98]-[99]). His mental health conditions, including depressive illness, PTSD, and possible bipolar disorder, did not reduce moral culpability at the time of the offence (at [123]), but were relevant to the hardship of imprisonment and his prospects of rehabilitation (at [148]). The court found special circumstances justified varying the statutory ratio to allow a longer parole period for rehabilitation (at [175]). Starting points of 4 years 6 months (count 2) and 2 years 9 months (count 4) were identified, reduced by 10% for the guilty pleas to indicative sentences of 4 years and 2 years 5 months respectively (at [178]-[179]). An aggregate sentence of 5 years with a non-parole period of 3 years was imposed (at [180]-[181]).
Orders Made
- Aggregate sentence of 5 years imprisonment, commencing 26 November 2023 and expiring 25 November 2028
- Aggregate non-parole period of 3 years, commencing 26 November 2023 and expiring 25 November 2026, with eligibility for release to parole on 25 November 2026
- Automatic licence disqualification for each offence, to be served concurrently
- Direction that Dr Nielssen's psychiatric report be provided to Corrective Services to assist in the offender's rehabilitation
Key Takeaways
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The District Court confirmed that an offender charged with dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm may fall outside the "typical" sentencing range in R v Whyte where a combination of aggravating factors is present, including excessive speed, multiple victims, illegal vehicle modifications, a poor driving record, and late guilty pleas (at [169]-[172]).
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An extensive history of traffic and driving offences does not directly aggravate the index offending but operates to deny the offender a claim to leniency that might otherwise be available (at [80]).
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Where medical material tendered to establish extra-curial punishment from injuries sustained in the offence does not demonstrate ongoing treatment or effect at the time of sentencing, the court may decline to treat those injuries as a mitigating factor beyond acknowledging their short-term impact (at [138]-[143]).
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Restrictive bail conditions may be taken into account in the general mix of mitigating factors, but the benefit of time spent at liberty in the community, including opportunities for rehabilitation, employment, and family life, is a relevant counterweight that may limit the weight attributed to those conditions (at [146]-[147]).
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A guilty plea entered at a Super Call Over, after two prior trials had been vacated and a third was listed two months away, attracted a 10% utilitarian discount; the court gave no additional percentage reduction merely because the plea was entered at the Super Call Over, but did acknowledge it as advancing the interests of justice (at [86]-[87]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 , ss 52A(1)(c),52A(3)(b)
Cases
- Barnett [2014] NSW CCA 296
- Clampitt-Wotton [2002] NSWCCA 383
- Costello [2017] NSWCCCA 32
- Markham v Regina [2007] NSWCCA 295
- Moodie [2020] NSWCCA 160
- Morabito [2007] NSWCCA 126
- R v Errington (2005) 157 A Crim R 553
- R v Hasna [2020] NSWDC 947
- R v Whyte (2002) 55 NSW LR 252