Citation: R v Feltham [2024] NSWDC 378
Court: District Court of New South Wales
Date: 21 August 2024
Judge(s): Sutherland SC DCJ
Background
The offender, a 59-year-old metal fabrication contractor, pleaded guilty to dangerous driving occasioning death contrary to section 52A(1)(c) of the Crimes Act 1900. The offence occurred on 1 November 2020 on Batlow Road near Tumbarumba, when the offender's Mazda utility collided with a motorcycle at a rural T-junction during the early morning commute.
The victim, Owen Fayle, was 39 years old and was riding home from a night shift at Hyne Timber Mill in Tumbarumba. The offender was travelling in the opposite direction, ironically heading to the same workplace. As the offender turned onto Batlow Road, he failed to observe the approaching motorcycle and collided with it. Mr Fayle sustained catastrophic injuries and died at approximately 8:10am despite prolonged emergency intervention.
The guilty plea was entered on 12 August 2024, the third scheduled trial date, after earlier dates were vacated due to COVID-related complications and the unavailability of a defence expert. As a result, only the minimum statutory discount of 5% applied.
Legal Issues
- What was the objective seriousness and moral culpability of the offending conduct, characterised as momentary inattention?
- Whether any of the aggravating factors identified in the guideline judgments of R v Jurisic and R v Whyte were present?
- What weight should be given to the offender's subjective circumstances, including his character, mental health consequences, and post-offence conduct?
- Whether the sentence should be served by way of an Intensive Correction Order rather than full-time imprisonment?
- What period of licence disqualification was appropriate?
Decision
Objective Seriousness and Moral Culpability
The court found that the fundamental cause of the collision was the offender's momentary inattention in failing to observe the approaching motorcycle before entering the intersection (at [35]-[37]). The Crown itself conceded this characterisation, and also acknowledged that the offender's conduct at the scene was consistent with a low level of moral culpability (at [26], [68]). Although the court accepted that the offending did not fall at the very bottom of the continuum of moral culpability, it was clearly well towards that lesser end of the scale (at [74], [209]). The offender's speed of 60 to 70 km/h was found to have played little, if any, causal role in the collision, with inattentiveness being the operative cause (at [64]-[65]).
Aggravating Factors
None of the aggravating factors identified in R v Whyte were found to apply. The death of Mr Fayle was an element of the offence, not an additional aggravating factor (at [59]). The number of people put at risk was limited to the deceased (at [60]), and the Crown did not assert that the length of the offender's journey carried any relevant additional risk (at [61]). The court also found that the vehicle being partially on the incorrect side of the road at the point of impact was not a further aggravating feature in the circumstances (at [36]).
Subjective Circumstances
The court accepted the genuineness of the offender's remorse and contrition (at [212]). The offender was well-regarded by colleagues and his general practitioner, with multiple references describing him as honest, reliable, skilled, and safety-conscious (at [117]-[145]). His driving record, which included one mid-range drink-driving offence at age 25 and five speeding infringements over 20 years, did not disentitle him to leniency (at [148]-[150]). He had suffered significant mental health consequences including suicidal ideation immediately after the accident, approximately ten days' admission to a mental health unit, and ongoing treatment for depression, insomnia, and severe anxiety (at [111]-[124]).
Sentence
Applying the 5% mandatory discount, the court arrived at a sentence of 1 year and 11 months imprisonment (at [212]). The court was satisfied the threshold for imprisonment under section 5 of the Crimes (Sentencing Procedure) Act 1999 had been crossed, but that the sentence could appropriately be served by way of an Intensive Correction Order (at [208], [215]). The court declined to impose additional conditions such as community service work or home detention, noting the offender's rural circumstances and the practical difficulties those conditions would create (at [218]). A 12-month licence disqualification was imposed, the court expressly acknowledging this was at the lenient end of its discretion given the significant impact on the offender's livelihood and family (at [220]).
Orders Made
- 1 year and 11 months imprisonment to be served by way of an Intensive Correction Order
- 12-month disqualification from driving or holding a driver licence, commencing from the date of sentencing
Key Takeaways
- Momentary inattention at a rural T-junction, in the absence of aggravating factors such as speed, drugs, alcohol, or a deliberate diversion of attention, can properly be characterised as falling well towards the lower end of the continuum of moral culpability for dangerous driving occasioning death, even where it does not sit at the very bottom (at [74], [209]).
- Where the Crown concedes that an offence arises from momentary inattention, that concession carries significant weight in the sentencing court's assessment of objective seriousness and is consistent with a finding of low moral culpability (at [26], [68]).
- A sentence of imprisonment for dangerous driving occasioning death may appropriately be served by way of an Intensive Correction Order where the moral culpability is low, the subjective case is strong, and the risk of reoffending does not call for full-time detention (at [213], [215]).
- Genuine remorse, good character, and significant mental health consequences suffered as a result of the offending are subjective factors capable of attracting considerable weight in sentencing for this class of offence, as confirmed by reference to R v Tzanis (at [152]).
- The practical impact of a licence disqualification on an offender living in a regional or rural area, who depends on a vehicle for employment and family support, is a factor the sentencing court may take into account when exercising discretion over the period of disqualification, provided the mandatory minimum is observed (at [219]-[220]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999
- Crimes Act 1900
- Criminal Procedure Act 1986
Cases
- Markham v Regina [2007] NSWCCA 295
- Moodie v R [2020] NSWCCA 160
- R v Balla [2021] NSWCCA 325
- R v Balla [2021] NSWDC 487
- R v Banks [2021] NSWDC 827
- R v Boctor [2020] NSWDC 46
- R v Errington [2005] NSWCCA 348; 157 A Crim R 553
- R v Jurisic (1998) 45 NSWLR 209
- R v Khatter [2000] NSWCCA 32
- R v Manok [2017] NSWCCA 232
- R v Quinlan [2022] NSWDC 761
- R v Raymond [2019] NSWDC 679
- R v Steven Barnett [2016] NSWDC 302
- R v Tzanis [2005] NSWCCA 274
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- R v Zaiter [2021] NSWDC 277
- Whelan v R [2012] NSWCCA 147
- Wong v The Queen [2001] HCA 64; 207 CLR 584