Medium Neutral Citation: Police v Chidiac [2022] NSWLC 20
Hearing dates: 15 November 2022
Date of orders: 21 November 2022
Decision date: 21 November 2022
Jurisdiction: Criminal
Before: Donnelly LCM
Decision:
Defendant is sentenced to a term of sentence of 12 months imprisonment with a non-parole period of 8 months. The defendant is disqualified from driving for a period of 3 years.

Catchwords:
Sentencing – s 117, Road Transport Act – negligent driving occasioning death – second and subsequent offence – negligent driving established where the defendant drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances – assessment of objective seriousness – degree of departure from the standard of care expected of the ordinary prudent driver in the circumstances informs the assessment of objective seriousness – purposes of sentencing – requirement of sentence to reflect the objective seriousness, general and personal deterrence, the need for rehabilitation, denunciation, accountability and harm to the victim – subjective matters – guilty plea – principle of proportionality – intensive correction orders – proportionality principle required a sentence of full-time imprisonment – appellate cases of Bonsu v R [2009] NSWCCA 316, R v Dodd (1991) 57 A Crim R 349, Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154, R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 and Quinn v Cth DPP [2021] NSWCA 294 applied.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 22, 26, 27, 28 30E, 32
Road Transport Act 2013 (NSW), s117

Cases Cited:
Bonsu v R [2009] NSWCCA 316
Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953
Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22
Karout v R [2019] NSWCCA 253
King v The Queen (2012) 245 CLR 588
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Meis v R [2022] NSWCCA 118
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
Prineas v R [2018] NSWCCA 221
Quinn v CthDPP [2021] NSWCA 294
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Campbell [2014] NSWCCA 102
R v Dodd (1991) 57 A Crim R 349
R v Fageer [2017] NSWLC 18
R v Jurisic (1998) 45 NSWLR 209; [1998] NSWSC 423
R v Koosmen [2004] NSWCCA 359
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Parente (2017) 96 NSWLR 633
R v Pullen [2018] NSWCCA 264
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Veen (No 2) v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Chidiac

Details

AGLC: Police v Chidiac [2022] NSWLC 20
Case: [2022] NSWLC 20
Decision Date: 21 November 2022

CaseChat Overview and Summary

The case of Police v Chidiac involved the defendant being charged with negligent driving occasioning death, a second and subsequent offence under section 117 of the Road Transport Act. The dispute centred around the appropriate sentence for the defendant's actions, which resulted in the death of another road user. The case was heard and determined in the NSW Court of Criminal Appeal.

The legal issues the court had to decide included the assessment of objective seriousness of the offence, the purposes of sentencing, and the application of the principle of proportionality to determine the appropriate sentence. The court also considered the defendant's guilty plea and the impact of the offence on the victim and their family.

The court found that the negligent driving was established as the defendant drove in a manner that departed from the standard of care expected of an ordinary prudent driver. The court noted that the degree of departure informed the assessment of objective seriousness. In determining the sentence, the court balanced the purposes of sentencing, including general and personal deterrence, the need for rehabilitation, denunciation, accountability, and harm to the victim. The court held that a sentence of full-time imprisonment was required due to the principle of proportionality, considering the appellate cases of Bonsu v R, R v Dodd, Douar v R, R v McNaughton, and Quinn v Cth DPP. The court ultimately sentenced the defendant to 12 months imprisonment with a non-parole period of 8 months and disqualified the defendant from driving for 3 years.

The court's decision reflects a careful consideration of the principles of sentencing and the specific circumstances of the case, ensuring that the sentence serves the objectives of punishment and deterrence while also considering the impact on the victim and the need for rehabilitation.

Orders

Orders of the court

Defendant is sentenced to a term of sentence of 12 months imprisonment with a non-parole period of 8 months. The defendant is disqualified from driving for a period of 3 years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Police v Chidiac [2022] NSWLC 20

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 25 of 25 shown

Meis v R
[2022] NSWCCA 118 Para 17

…s that the Court cannot use the prior convictions to determine the upper boundary of a proportionate sentence. In the recent decision of Meis v R [2022] NSWCCA 118 at [42] the Court of Criminal Appeal revisited the principles in relation to use of prior record at sentence including the High Court decision of Veen (N…
Quinn v Commonwealth Director of Public Prosecutions
[2021] NSWCA 294 Para 37

…Similarly, Simpson AJA said in Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR; [2021] NSWCA 294 said at [187]:…
Nguyen v The Queen
[2020] HCA 23 Para 8

…an aggravating circumstance of an offence, a circumstance which would render the offence a different and more serious offence: Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [28], [60]. Whatever may be said of the facts in this case the court cannot sentence the defendant on the basis that he drove in a dang…
Karout v R
[2019] NSWCCA 253 Para 36

…for legal clarity in this case the Court is not considering an intensive correction order for the reasons stated by Justice Fullerton J in Karout v R [2019] NSWCCA 253 at [94]:…
R v Pullen
[2018] NSWCCA 264 Para 35

…the community. If an intensive correction order was imposed it would attribute excessive weight to the subjective features of the case. In R v Pullen [2018] NSWCCA 264 at [53] the Court noted that an intensive correction order reflects a significant degree of leniency.…
Prineas v R
[2018] NSWCCA 221 Para 9

…Turning to the assessment of the crime before the court. A good starting point is to examine the nature of the offence. In Prineas v R [2018] NSWCCA 221 the Court of Criminal Appeal affirmed the Supreme Court decision of Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953. It was held that negligent driving…
Parente v R
[2017] NSWCCA 285

…WLR 209; [1998] NSWSC 423 R v Koosmen [2004] NSWCCA 359 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Parente (2017) 96 NSWLR 633 R v Pullen [2018] NSWCCA 264 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Veen (No 2) v The Queen (1988) 164 CLR 465;…
R v Mohamed Abbasher Fageer
[2017] NSWLC 18

…kowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Campbell [2014] NSWCCA 102 R v Dodd (1991) 57 A Crim R 349 R v Fageer [2017] NSWLC 18 R v Jurisic (1998) 45 NSWLR 209; [1998] NSWSC 423 R v Koosmen [2004] NSWCCA 359 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Parente (2017) 96 NSWLR 633 R v Pullen…
Nguyen v The Queen
[2016] HCA 17 Para 8

…mstance of an offence, a circumstance which would render the offence a different and more serious offence: Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [28], [60]. Whatever may be said of the facts in this case the court cannot sentence the defendant on the basis that he drove in a dangerous manner. T…
Filippou v The Queen
[2015] HCA 29

…CCA 316 Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953 Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22 Karout v R [2019] NSWCCA 253 King v The Queen (2012) 245 CLR 588 Markarian v The Que…
R v Campbell
[2014] NSWCCA 102

…R [2018] NSWCCA 221 Quinn v Cth DPP [2021] NSWCA 294 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Campbell [2014] NSWCCA 102 R v Dodd (1991) 57 A Crim R 349 R v Fageer [2017] NSWLC 18 R v Jurisic (1998) 45 NSWLR 209; [1998] NSWSC 423 R v Koosmen [2004] NSWCCA 359 R v McNaughton (2006) 66 NSWLR 566; [2…
King v The Queen
[2012] HCA 24 Para 8

…n the offence before the court as compared to other driving offences in the criminal calendar. The High Court in King v The Queen (2012) 245 CLR 588; [2012] HCA 24 at [38] when referring to materially similar Victorian legislation referred to “ a coherent hierarchy of offences relating to death or serious injury…
Bonsu v R
[2009] NSWCCA 316 Para 7

…f 3 years. The appellate courts have made observations concerning the seriousness of the offence of negligent driving occasioning death. In Bonsu v R [2009] NSWCCA 316 at [19] Justice Howie observed that:…
R v Robert Borkowski
[2009] NSWCCA 102 Para 28

…the offence at the first opportunity. Given the timing of the plea and applying s 22 of the Crimes (Sentencing Procedure) Act 1999 and R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32] it is appropriate that he receive a 25% discount for the utilitarian value of the plea.…
Director of Public Prosecutions (NSW) v Yeo
[2008] NSWSC 953 Para 9

…nce. In Prineas v R [2018] NSWCCA 221 the Court of Criminal Appeal affirmed the Supreme Court decision of Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953. It was held that negligent driving is established where it is proved beyond reasonable doubt that an accused person drove a motor vehicle in a manne…
R v McNaughton
[2006] NSWCCA 242 Para 17

…may be said of the defendant’s prior criminal history the law as declared in the five judge bench decision of R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [25] is that the Court cannot use the prior convictions to determine the upper boundary of a proportionate sentence. In the recent decision of Meis v…
R v Whyte
[2006] NSWCCA 75 Para 10

…ous driving occasioning death - most notably in the Court of Criminal Appeal cases of R v Jurisic (1998) 45 NSWLR 209; [1998] NSWSC 423 and R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343.…
Douar v R
[2005] NSWCCA 455 Para 31

…a penalty of imprisonment the Court must next determine the appropriate term of imprisonment. As the Court of Criminal Appeal explained in Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 at [70] the determination of the term of imprisonment is to be made without regard to whether the sentence will be immediate…
Markarian v The Queen
[2005] HCA 25

…Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22 Karout v R [2019] NSWCCA 253 King v The Queen (2012) 245 CLR 588 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Meis v R [2022] NSWCCA 118 Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 Prineas v R [2018] NSWCCA 221 Quinn v Cth DPP [2021] NSWCA 294 R v Bor…
R v Koosmen
[2004] NSWCCA 359 Para 25

…fendant states that he and Rima were supposed to get engaged this year and start a family and that he is heart broken. In the decision of R v Koosmen [2004] NSWCCA 359 at [32] it was confirmed that:…
GAS v The Queen
[2004] HCA 22 Para 2

…y in a practical sense to find any additional facts. The High Court made this clear in GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [31]:…
R v Whyte
[2002] NSWCCA 343 Para 10

…ng death - most notably in the Court of Criminal Appeal cases of R v Jurisic (1998) 45 NSWLR 209; [1998] NSWSC 423 and R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343.…
Johnson v American Home Assurance Co
[1998] HCA 14 Para 17

…ed the principles in relation to use of prior record at sentence including the High Court decision of Veen (No 2) v The Queen (1988) 164 CLR 465; [1998] HCA 14 at 472. The court explained that before the defendant’s previous record can properly be taken into account as an aggravating factor under s 21A(2)(d), it…
Veen v The Queen (No 2)
[1988] HCA 14 Para 17

…minal Appeal revisited the principles in relation to use of prior record at sentence including the High Court decision of Veen (No 2) v The Queen (1988) 164 CLR 465; [1998] HCA 14 at 472. The court explained that before the defendant’s previous record can properly be taken into account as an aggravating factor under…
R v De Simoni
[1981] HCA 31 Para 8

…offences relating to death or serious injury arising out of motor vehicle accidents ”. The principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 at 389 prohibits the court from taking into account, as an aggravating circumstance of an offence, a circumstance which would render the offence a differ…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
22, 26, 27, 28, 32, 3A, 5 8 mentions (from Para 5)
Road Transport Act 2013 (NSW)
117 2 mentions (from Para 1)

Medium Neutral Citation:	Police v Chidiac [2022] NSWLC 20
Hearing dates:	15 November 2022
Date of orders:	21 November 2022
Decision date:	21 November 2022
Jurisdiction:	Criminal
Before:	Donnelly LCM
Decision:	Defendant is sentenced to a term of sentence of 12 months imprisonment with a non-parole period of 8 months. The defendant is disqualified from driving for a period of 3 years.
Catchwords:	Sentencing – s 117, Road Transport Act – negligent driving occasioning death – second and subsequent offence – negligent driving established where the defendant drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances – assessment of objective seriousness – degree of departure from the standard of care expected of the ordinary prudent driver in the circumstances informs the assessment of objective seriousness – purposes of sentencing – requirement of sentence to reflect the objective seriousness, general and personal deterrence, the need for rehabilitation, denunciation, accountability and harm to the victim – subjective matters – guilty plea – principle of proportionality – intensive correction orders – proportionality principle required a sentence of full-time imprisonment – appellate cases of Bonsu v R [2009] NSWCCA 316, R v Dodd (1991) 57 A Crim R 349, Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154, R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 and Quinn v Cth DPP [2021] NSWCA 294 applied.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 22, 26, 27, 28 30E, 32 Road Transport Act 2013 (NSW), s117
Cases Cited:	Bonsu v R [2009] NSWCCA 316 Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953 Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22 Karout v R [2019] NSWCCA 253 King v The Queen (2012) 245 CLR 588 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Meis v R [2022] NSWCCA 118 Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 Prineas v R [2018] NSWCCA 221 Quinn v CthDPP [2021] NSWCA 294 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Campbell [2014] NSWCCA 102 R v Dodd (1991) 57 A Crim R 349 R v Fageer [2017] NSWLC 18 R v Jurisic (1998) 45 NSWLR 209; [1998] NSWSC 423 R v Koosmen [2004] NSWCCA 359 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Parente (2017) 96 NSWLR 633 R v Pullen [2018] NSWCCA 264 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Veen (No 2) v…