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District Court 26 April 2024

R v Koosmen

[2024] NSWDC 161

Assault & violenceHomicideDrugsTheft & propertyTraffic & drivingPublic order & justice offences

Citation: R v Koosmen [2024] NSWDC 161
Court: District Court of New South Wales
Date: 26 April 2024
Judge(s): Sutherland SC DCJ

Background

On the evening of 1 December 2022, the offender took his father's utility vehicle without consent and drove it while disqualified and under the influence of cocaine and methamphetamine. After a lengthy police pursuit spanning over an hour across the Lake Macquarie area, he ran a red light at a major intersection and struck a motorcycle ridden by Christian Langham, killing him. The offender fled the scene without stopping to render assistance.

Over the following period, the offender broke into three nearby premises. At the first, he intimidated and assaulted one of the owners. At the second, he intimidated the owner. At the third, he stole car keys and another vehicle, driving away from the area.

The offender pleaded guilty to manslaughter and a series of related charges, including aggravated break and enter, break and enter with commission of a serious indictable offence, and theft of car keys from a dwelling. Several additional matters were placed on a Form 1 document to be taken into account on sentence, including failure to stop and render assistance, driving while disqualified, taking and driving a conveyance without consent, common assault, and property damage.

  • What was the appropriate sentence for manslaughter in the context of vehicular killing while intoxicated and driving whilst disqualified?
  • To what extent did the offender's claimed "accidental" methamphetamine ingestion affect moral culpability?
  • How should the sentencing court structure an aggregate sentence across multiple serious offences spanning a single criminal episode?
  • What weight should be given to the 25% discount for the guilty pleas, the offender's background, and prospects of rehabilitation?
  • Was a non-parole period shorter than the statutory one-third ratio justified in the circumstances?

Decision

Sutherland SC DCJ found that the manslaughter was serious, involving deliberate and dangerous driving while disqualified, intoxicated, and in flight from police. The judge identified the offender's conscious decision to drive in such a state as a central factor in his moral culpability. The offender's claim that he had accidentally consumed methamphetamine was treated with scepticism, and the court drew on the principle that voluntary intoxication does not mitigate moral culpability for the underlying dangerous conduct.

The court acknowledged the offender's difficult personal background and the principle, drawn from Bugmy v The Queen, that disadvantage and trauma may remain relevant throughout sentencing even where a person is an adult. Some weight was also given to evidence of remorse and potential for rehabilitation, including the offender's engagement with drug treatment while on remand.

A starting point of 14 years was identified for the manslaughter before discount or Form 1 matters. After applying the 25% guilty plea discount and accounting for the Form 1 offences, an indicative sentence of 12 years was arrived at for that count. The other offences attracted indicative sentences ranging from 18 months to 3 years.

The court imposed an aggregate sentence of 15 years, with a non-parole period of 10 years. That non-parole period exceeds the statutory one-third minimum, reflecting the court's view that the gravity of the offending and the need for extended supervision upon release warranted departure from the standard ratio. The sentence was backdated to 1 December 2022, the date the offending occurred and the offender was taken into custody.

Orders Made

  • Aggregate head sentence of 15 years imprisonment, commencing 1 December 2022 and expiring 30 November 2037
  • Non-parole period of 10 years, expiring 30 November 2032 (with an additional term of 5 years thereafter)
  • Indicative sentence of 12 years imprisonment for manslaughter (Count 1)
  • Indicative sentence of 3 years imprisonment for aggravated break and enter and committing a serious indictable offence (Count 2), with an indicative non-parole period of 2 years
  • Indicative sentence of 18 months imprisonment for break and enter and commit a serious indictable offence (Count 3)
  • Indicative sentence of 2 years and 6 months imprisonment for theft of car keys from a dwelling (Count 4)
  • The earlier Local Court fixed-term sentence of 5 months for driving whilst disqualified subsumed within the aggregate sentence
  • Driving disqualification of 3 years to commence upon the offender's ultimate release on parole

Key Takeaways

  • Voluntary intoxication does not reduce moral culpability for dangerous driving causing death; the District Court treated the offender's decision to drive while affected by drugs as a weighty aggravating factor, regardless of his claim that one substance was consumed accidentally.
  • An aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 requires the sentencing court to specify indicative individual sentences for each count, even where the overall term is expressed as a single period.
  • A non-parole period greater than one-third of the head sentence is available where the sentencing court is satisfied that extended post-release supervision is warranted, and the District Court applied that reasoning here given the nature and breadth of the offending.
  • The principle in Bugmy v The Queen, that the relevance of background disadvantage and trauma does not diminish simply because an offender has reached adulthood, was considered in mitigation alongside evidence of remorse and drug treatment engagement.
  • Form 1 matters, though not the subject of conviction, were taken into account in calibrating the indicative sentences for the principal counts to which they were attached, affecting the overall sentencing outcome.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 53A (aggregate sentencing)
- Crimes Act 1900 (NSW), including s 154A(1)(a) (take and drive conveyance)
- Road Transport Act 2013 (NSW), including s 54(1)(a) (driving whilst disqualified)
- Drug Court Act 1998 (NSW)

Cases:
- Bugmy v The Queen [2013] HCA 37
- Davidson v R [2022] NSWCCA 153
- Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114
- Moananu v R [2022] NSWCCA 85
- R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70
- R v Cook [2023] NSWCCA 9
- R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198
- R v Gordon (No 8) [2017] NSWSC 574
- R v Holder (1983) 3 NSWLR 245
- R v Smith, Jarad [2016] NSWCCA 75
- R v Winter [2012] NSWCCA 218
- Regina v Whyte [2002] NSWCCA 343
- Shumack v R [2008] NSWCCA 311
- Smith v R [2020] NSWCCA 181
- Sparke v R [2012] NSWCCA 140