NSW Police v Nash

[2016] NSWLC 3

Local Court

New South Wales

Medium Neutral Citation:	NSW Police v Nash [2016] NSWLC 3
Hearing dates:	23 February 2016
Decision date:	12 April 2016
Jurisdiction:	Criminal
Before:	Stewart LCM
Decision:	Community Service Order 250 hours Licence disqualification 12 months
Catchwords:	SENTENCE – negligent driving occasioning death – failure to keep proper lookout – sentencing considerations – harm to victim and community – prior good character – exemplary driving record – demonstrated remorse – general deterrence – licence disqualification – automatic period – discretion to reduce disqualification period
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3A, 5, 8, 21A, 26 – 30 Crimes (Sentencing Procedure) Regulation 2010, cl 23(c) Law Enforcement (Powers and Responsibilities) Act 2002, s 134 Road Transport Act 2013, s 117
Cases Cited:	Attorney General’s Application Pursuant to s. 37 of the Crimes (Sentencing Procedure) Act for Guideline Judgment Concerning the offence of High Range Prescribed Concentration of Alcohol (No.3 of 2002) [2004] NSWCCA 303 Bonsu v R [2009] NSWCCA 316 DPP v Bhandari [2011] NSWLC 7 DPP v Markovski [2011] NSWLC 31 DPP (NSW) v Pelletier [2014] NSWLC 9 Mitchell v R [2009] NSWCCA 95 Police v Curkovic [2008] NSWLC 1 Police v Turner [2011] NSWLC 27 R v Barbetta [2008] NSWSC 688 R v Bloomfield (1998) 101 A Crim R 404 R v Borkowski [2009] NSWCCA 102 R v Carroll [2008] NSWCCA 218 R v Dodd (1991) 57 A Crim R 349 R v Dutton [2005] NSWCCA 248 R v Foster (2001) 33 MVR 565 R v Jurisic (1998) 45 NSWLR 209 R v McIntyre (1988) 38 A Crim R 135 R v Musumeci (unreported, NSWCCA, 30/10/1997) R v Rushby [1977] 1 NSWLR 594 R v Ryan (2003) 141 A Crim R 403 R v Slattery (1996) 90 A Crim R 519 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168 R v Whyte [2002] NSWCCA 343
Category:	Sentence
Parties:	NSW Police Wallace Nash (defendant)
Representation:	Counsel: Mr J Dalzell (for the defendant)   Solicitors: Sgt D Gumley (police prosecutor) Ms K Clark, Austen Brown Boog Solicitors (for the defendant)
File Number(s):	2015/244670

Judgment

Remarks on Sentence

“Sentencing for an offence that is the product of tragedy arising out of an everyday and otherwise lawful activity is one of the most difficult tasks in which a Court may become engaged. The collective psyche of the community at large is not easily reconciled to the need for punishment attaching to negligence through the experience of failing to keep a proper lookout. This is because it is likely that everyone who drives a motor vehicle has been at one time or another guilty of this act of omission but fortunately with little or no consequence. The concept in judging tragedy in these circumstances will invariably be tempered at first blush by the aphorism “there but for the Grace of God go I”. This form of self-evaluation is not something that sits comfortably with the criminal law. Courts are required to apply the law, not distort it.”

Henson DCJ, Chief Magistrate in DPP (NSW) v Pelletier [2014] NSWLC 9 at [43]

The charges and the plea

1. The offender was charged with negligent driving occasioning death per s 117(1)(a), Road Transport Act NSW 2013 with a back-up charge of not give way to vehicle – right hand turn into terminating road. Once the Singh Protocol (providing for the referral of matters by the Police to the Officer of the Director of Public Prosecutions for consideration) was complied with and it was determined that the charges laid were appropriate, a plea of guilty was entered to the substantive charge. The back-up charge was withdrawn. Accordingly, I allow the full 25% discount for the utilitarian value of the plea – see R v Thomson; R v Houlton (2000) 49 NSWLR 383 and the judgment of Howie J in R v Borkowski [2009] NSWCCA 102 at [32].

Facts

2. A statement of facts was tendered by consent. They indicate that about 10.55am on Wednesday 18 March 2015, the offender drove a Holden Calais sedan in an easterly direction upon the Putty Road, Mount Thorley. His wife was in the passenger seat. The road was dry and weather fine. The applicable speed limit was 100 kph. Mr Nash approached the intersection of Mitchell Line of Road with the intention of turning right from a turning lane. From the opposite direction, a slip lane existed to facilitate cars turning left. The intersection appears to have been designed so that vehicles turning could do so without significantly impeding the flow of vehicles travelling east and west.

3. Samuel Pfitzner was riding a Harley Davidson motorcycle in a westerly direction. The offender commenced the turn. The motor cycle collided heavily with the passenger side of the car, causing the car to rotate in an anti-clockwise direction. Mr Pfitzner died at the scene. No other person was injured. There were no mechanical defects contributing to the accident. Alcohol and drugs were not a factor.

Maximum penalty

4. Section 117 of the Road Transport Act creates one offence i.e. negligent driving. The maximum penalty is dependent upon the outcome of the driving. Where the outcome is death, the maximum penalty is a fine of up to $3,300, imprisonment for up to 18 months, or both. The automatic disqualification period on conviction is 3 years with a minimum of 12 months.

Assessment of the criminality

5. The facts indicate that the offender provided a brief version to police who attended the incident. I have not been provided with that version. The offender declined to take part in an interview with police or provide any further information. There is no evidence or suggestion of momentary inattention. The facts are of little assistance in evaluating the level of objective seriousness or degree of moral culpability arising from the manner of driving. There is no indication as to the speed of the offender’s car or whether he came to a stop prior to commencing the turn; whether the lights of the motor cycle were on or off. The facts state that the motorcycle was travelling at a speed “not believed to be in excess of the posted speed limit.” Despite the collision being investigated by a sergeant from the Crash Investigation Unit, there is no information about whether the motorcyclist braked, deviated from his path of travel, or of the estimated range of distance that the motor cycle would have been from the car when the car commenced to turn etc.

6. In the letter from psychologist Sene Hicks, it is noted:

Mr Nash stated he did not see the motorcycle approaching initially but when he did, his car was already fully across the oncoming lane of the highway leaving the motorcyclist an inability to avoid colliding with this vehicle.

7. The reasonable inference is that in the course of making the right hand turn, Mr Nash failed to keep a proper lookout. It is difficult to determine precisely how long this occurred for given the paucity of information provided. Moral culpability may well be higher where a failure to keep a proper lookout occurs over a protracted time or distance – see DPP (NSW) v Pelletier [2014] NSWLC 9 at [29] to [31].

8. In this case, however, it does seem to be only a very short period of time if one accepts that Mr Nash looked but failed to observe the motorcycle, commenced his turn, and noticed the rider part way through the turn. There is nothing to suggest that his vision was obstructed in any way. The incident occurred in broad daylight. I do not find that Mr Nash abandoned his responsibility as a driver. I am satisfied that he looked but failed to see the motorcycle.

9. For the purpose of sentencing, I am of the view that the degree of negligence established falls between the lower end and half way mark for this type of offence.

Criminal history and traffic history of offender

10. The offender has no criminal history. He is 66 years of age. According to RMS records, Mr Nash has held a licence since 1 January 1965 when he was just 15. The only adverse entry on his traffic record is an exceed speed matter some 19 years ago for which he received a caution. Accordingly, his record is a mitigating factor.

Matters of general principle

11. In Bonsu v R [2009] NSWCCA 316, Howie J said at [19] and [24]:

19 … the statistics reveal that very minor sentences have been imposed upon offenders who have actually caused the death of another human being, albeit by negligent driving. I have difficulty in understanding how s 10A or s 9 of the Crimes (Sentencing Procedure) Act 1999 can be used for such an offence. It seems to me, that these statistics reveal that little regard or insufficient regard is being paid in the Local Court or the District Court on appeal to the fact that the offender being sentenced has caused the loss of life. …

…

24 Nothing that I say in this matter and the penalty that I impose should be taken in any way by either a Magistrate in the Local Court or a Judge in the District Court to indicate that a good behaviour bond is an appropriate penalty for this offence in these circumstances. I have made my view clear, for what it is worth, that the range of penalties being imposed, at least in the Local Court, is inadequate and fails to reflect the fact that offenders charged with this offence have taken a human life. 

12. Mr Bonsu was 24 at the time of the offence. The NSWCCA judgment records that ‘in effect’ he had no criminal record and a very minor traffic record: at [8]. He expressed remorse. The judge at first instance made a finding of ‘momentary inattention’. The offender was sentenced to perform a 200 hours Community Service Order. He subsequently failed to complete the CSO. The CSO was revoked and in lieu a 3 month sentence of imprisonment imposed, which was then appealed to the Court of Criminal Appeal.

13. Since the maximum penalty of imprisonment for this offence exceeds 1 year, the maximum amount of community service order hours that could have been imposed was 500 hours – see Crimes (Sentencing Procedure) Regulation, cl 23(c). Howie J said at [22], “I cannot now impose community service on the applicant. That was a very lenient sentence.” [my emphasis]

14. I take Justice Howie’s remarks to mean that in his opinion a penalty of a bond under s 9 or bare conviction per s 10A should rarely be applied, if at all. A Community Service Order would be a lenient sentence. A sentence of imprisonment of some kind should be considered, notwithstanding that the culpability being in the lower range of objective seriousness for such an offence.

15. Whilst it has been suggested that “Howie J in Bonsu advocates nothing short of a full-time custodial penalty for an offence of Negligent Driving cause Death” (see DPP v Markovski [2011] NSWLC 31 at [29]), I respectfully disagree. Howie J described a community service order as a very lenient sentence, not an inappropriate sentence: at [22]. Nor did his Honour rule out the imposition of a suspended sentence or an intensive corrections order.

16. There are a number of binding decisions which support the proposition that a full-time custodial sentence is not an inevitable outcome in more serious driving matters, and therefore not inevitable in matters such as the present case. In the guideline judgment of R v Whyte [2002] NSWCCA 343 at [214], it was determined that “a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment” [my emphasis]. That judgment was in relation to offences under s 52A, Crimes Act 1900 of dangerous driving causing death, which is a far more objectively serious offence carrying significantly higher maximum penalties. See also R v Musumeci (unreported, NSW Court of Criminal Appeal, 30 October 1997), amongst others.

17. Mr Dalzell handed up sentencing statistics. Those statistics reveal that approximately 70% of offenders received a penalty by way of s 9 or s 10A. The total number of cases was limited to 27. Further refining the information such as plea of guilty, single count, age etc. result in statistics that involve a pool of as little as 10 people. The statistics tendered are somewhat dated. More recent statistics are available from the Judicial Commission. These statistics covered 32 cases of which the majority received a s 9 bond. The penalty range for ‘all offenders’ revealed no matters dismissed under s 10, no fines imposed, and included s 10A through to 2 community service orders, 4 suspended sentences, 2 intensive corrections orders, 1 home detention order and 1 sentence of full time imprisonment.

18. As with most statistics, they are largely meaningless as the facts and circumstances of each case are not known. Though, they “may provide indications of general sentencing trends and standards, assist in assuring consistency and be useful in determining whether a sentence is manifestly excessive or manifestly inadequate”: R v Ryan (2003) 141 A Crim R 403 at 411 per Grove J, citing R v Bloomfield (1998) 101 A Crim R 404.

19. The range of available penalties, at least so far as sentencing statistics are concerned, is from s 10A through to imprisonment or alternatives thereto.

20. The statistics beg the question as to why in post-Bonsu sentencing, the majority of persons dealt with for this offence receive predominantly a s 9 bond and to a lesser extent, a s 10A bare conviction with no further penalty other than consequential disqualification.

21. I have had regard to a number of cases to assist me in dealing with the complexity of sentencing for this type of offence. Apart from Bonsu, the majority of reported decisions are from the Local Court. In Police v Curkovic [2008] NSWLC 1 at [36] and [37], and in DPP v Bhandari [2011] NSWLC 7 at [27], Henson DCJ, Chief Magistrate noted that the provisions for this offence were amended to increase the term of imprisonment and maximum amount of fines. The offence was classified as a major offence, which has some bearing on disqualification: Curkovic at [36]. His Honour cited R v Way (2004) 60 NSWLR 168 at [52]:

Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum. The courts are expected to recognise and reflect that intention when sentencing offenders for offences after such amendments are made.

22. In R v Slattery (1996) 90 A Crim R 519 at 524, Hunt CJ at CL said in relation to increased penalties for dangerous driving causing death matters:

The action of the Legislature in almost tripling the maximum sentence for a particular type of offence must be taken by the courts as reflecting community standards in relation to the seriousness of that offence, and the courts are required to give effect to the obvious intention of the Legislature that the existing sentencing patterns are to move in a sharply upward manner.

The same principles apply to negligent driving causing death matters as the maximum penalties have increased from 6 months, to 12 months, to 18 months.

23. In Curkovic, his Honour considered the provisions of s 5, Crimes (Sentencing Procedure) Act, the need for a cautious approach in the context of that case, and the nature of the offence as to whether a sentence of imprisonment was appropriate:

41 … I…turn for additional guidance to the decisions of the Court of Criminal Appeal in R v Pyritz (1998) 29 MVR 90 and R v Foster (2001) 33 MVR 565.

42 Although both these decisions deal with the more serious offence of dangerous driving occasioning death each refer to the distinction in terms of moral culpability between abandonment of responsibility and momentary inattention or misjudgement. The tenor in each is that the approach demonstrated by a concentration on imprisonment in cases involving abandonment of responsibility is not necessarily the approach that is universally appropriate in cases of momentary inattention. 

24. I have already determined that the matter before this court is not one involving an abandonment of responsibility as a driver. Yet imprisonment is still a sentencing option to be considered. A full-time custodial sentence may be inevitable where it is determined that the offender has abandoned responsibility, but it does not follow that simply because the offender had not abandoned responsibility, a full-time custodial sentence can be avoided. “It does not follow that, simply because the offence is not aggravated by the presence of certain factors, it is mitigated by the absence of those factors”: R v Dutton [2005] NSWCCA 248 at [29], cited in Police v Turner [2011] NSWLC 27 at [37].

25. General deterrence remains an objective to be emphasised in the sentencing for this case and this type of offence - such emphasis is to be applied relative to the objective seriousness of the offence with regard to the available penalties. The remarks of Howie J in Bonsu and Hunt CJ at CL in Slattery are noted. The fact that an offender by his negligent driving caused the death of a completely innocent person is to be denounced (Bonsu at [21]).

26. Borrowing from Curkovic again, this time in relation to rehabilitation (at [50]):

As a society we recognize the need to deal with people in a manner that contains an element of humanity, an expectation of reform and provides the environment in which the prospects of rehabilitation may be enhanced rather than crushed. Society has no interest in blindly imposed sentences of imprisonment that give no thought to the future.

27. A victim impact statement from the deceased’s mother was tendered by the prosecutor – see ss 26 to 30, Crimes (Sentencing Procedure) Act. I acknowledge her tragic loss and grief - a loss made even more difficult, if that is possible, as she had already lost her only other son. This goes beyond life’s anticipated natural order where a parent has the reasonable expectation that he or she will not outlive their progeny.

28. I recognise the harm done to the victim of the crime and the community as one of the purposes of sentencing: s 3A(g), Crimes (Sentencing Procedure) Act. However, as pointed out in Pelletier (supra) at [37], “the law does not allow the personal impact of the loss of a life to be taken into account on the quantum of sentence”, then citing R v Barbetta [2008] NSWSC 688 at [18] per Howie J: “Under the law all lives are precious and the death of any person is a harm inflicted on the community in general.”

Plea in mitigation – subjective matters

29. Powerful subjective circumstances were outlined to the court, many of which are mitigating factors per s 21A(3), Crimes (Sentencing Procedure) Act. Mr Nash is 66 years old, married and works as a farmer. As previously indicated, he has no criminal record. The only notation on his traffic history over a 50 year period is a caution for a speeding matter many years ago. A letter of apology was written addressed to the deceased’s next of kin for their loss and grief suffered.

30. Character references indicate that Mr Nash is a kind and courteous man, involved with his church, a former captain of the Rural Fire Brigade, a community minded person who acted as a community representative regarding a significant mining issue, a very careful and diligent driver not prone to taking risks.

31. A letter from a psychologist was tendered by consent. It indicates that Mr Nash takes full responsibility for the death. He feels enduring grief for the deceased and his family. He is described as a humble man who expressed genuine sadness and shame.

32. Mr Nash gave evidence in the sentencing proceedings. His remorse was palpable.

33. I accept that Mr Nash is unlikely to re-offend and has good prospects of rehabilitation – see s 21A(3)(g) and (h), Crimes (Sentencing Procedure) Act.

34. Whilst good character must be taken into account per s 21A(3)(f), Crimes (Sentencing Procedure) Act and it may inform in relation to a person being unlikely to re-offend and prospects of rehabilitation, it was said in R v McIntyre (1988) 38 A Crim R 135 at 139, dealing with an offence of culpable driving causing death:

… this class of offence is one which in many, perhaps even in most, cases is committed by persons who are not in any sense members of the criminal class or who even have criminal convictions against them, and for that reason the courts need to tread warily in showing leniency for good character to avoid giving the impression that persons of good character may, by their irresponsible actions at the time take the lives of others and yet receive lenient treatment.

(See also R v Jurisic (1998) 45 NSWLR 209)

35. Although the class of offence in the current matter is objectively less serious, the principle still has application. In Bonsu, discussing driving negligently and driving in a manner dangerous, Howie J said at [16]:

It is difficult at times to discern the difference between the two offences because driving in a manner dangerous is merely an aggravated form of negligence.

36. As indicated above, the subjective case for Mr Nash is strong. “Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case”: R v Dodd (1991) 57 A Crim R 349 at 354, citing R v Rushby [1977] 1 NSWLR 594, re-affirmed in R v Carroll [2008] NSWCCA 218 at [20]-[21].

Sentence

37. I have taken each of the purposes of sentencing per s 3A, Crimes (Sentencing Procedure) Act into account. I have also considered s 5 of the Act and find that in all of the circumstances, including the facts, aggravating and mitigating factors, relevant law, objective and subjective circumstances, that a penalty other than imprisonment is appropriate.

38. Mr Nash has been assessed as suitable for a Community Service Order. I note his age.

Disqualification

“… a licence to drive a vehicle is a privilege which will be removed when negligence occasions the death of another. The Parliament intended that when a licence holder breached the section disqualification from driving for a three year period would normally occur. There will be occasions when the circumstances of the offender or of the particular offence justify a lesser period of disqualification”

Mitchell v R [2009] NSWCCA 95 at [10].

39. The guideline judgment for high range drink driving provides examples of what may amount to a good reason to reduce the period of disqualification, including the nature of the offender’s employment, the absence of any viable alternative transport and sickness or infirmity of the offender or another person: [2004] NSWCCA 303 at [146]. That judgment takes into account that as a consequence of disqualification “there will almost invariably be hardship, or at least inconvenience, caused to the offender deprived of his or her licence for such a lengthy period as Parliament has prescribed. This is particularly so in country areas and other places where public transport is rare of non-existent” (at [128]).

40. The offender works as a farmer. The farm is in a rural setting out of Dubbo. In determining the appropriate disqualification period, I take into account a near perfect driving record over a period of 50 years, the supporting character material referring to him ordinarily being a very careful and diligent driver, his need for a licence and the lack of viable public transport in a rural setting. I also take into account the offender’s rehabilitation.

41. The objective seriousness of the offending conduct must be considered in determining the disqualification period. In my view it is within my discretion to vary the disqualification period from the automatic period and it is in the interests of justice to do so for the reasons outlined above.

Orders

42. Wallace Nash is sentenced to perform 250 hours of community service and report to the Dubbo office of Community Corrections within 7 days.

43. Disqualification will be for the minimum period of 12 months. Mr Nash is warned not to drive on a road or road related area during the disqualification period or thereafter until such time as he has reapplied for and been given his licence as to do so would constitute a criminal offence.

44. An order is made per s 134, Law Enforcement (Power and Responsibilities) Act 2002 for Mr Nash to attend the Dubbo police station today for the purpose of having his photograph and fingerprints taken.   

Magistrate P Stewart

Dubbo Local Court

12 April 2016

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Decision last updated: 23 May 2016