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R v Feltham

R v Feltham

Case [2024] NSWDC 378 21 August 2024

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District Court

New South Wales

Medium Neutral Citation: R v Feltham [2024] NSWDC 378
Hearing dates: 14 August 2024
Date of orders: 21 August 2024
Decision date: 21 August 2024
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
1 year and 11 months imprisonment to be served by way of an Intensive Correction Order and 12 month driver licence disqualification, at [212] to [220].

Catchwords:
CRIME — Driving offences — Dangerous driving occasioning death — Momentary inattention — Lower end of objective seriousness — Approaching the lowest end of the continuum of moral culpability — Genuine remorse and contrition.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986

Cases Cited:
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

Texts Cited:
Nil

Category: Sentence
Parties: Rex (Crown)
Craig James Feltham (Offender)
Representation:
Counsel:

J Sfinas (Crown)
T C Jackson (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Pennicott Weir Lawyers (Offender)

File Number(s): 2020/00316986
Publication restriction: Nil

JUDGMENT

BACKGROUND [1]

FACTUAL CIRCUMSTANCES [13]

OBJECTIVE SERIOUSNESS [51]

VICTIM IMPACT STATEMENTS [75]

SUBJECTIVE CIRCUMSTANCES [86]

COMPARATIVE CASES [153]

CONSIDERATION [208]

BACKGROUND

Craig Feltham appears for sentence following his entering a plea of Guilty to a charge of dangerous driving occasioning death. Such an offence contravenes s 52A(1)(c) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no standard non-parole period.
The offence took place on 1 November 2020. The victim was Owen Fayle who was riding his motorbike from his place of work at the Hyne Timber Mill in Tumbarumba after a night shift and heading home on a major arterial regional road at 6:30am.
I will deal with the detail of the facts shortly but relevantly, the offender was travelling in the opposite direction, ironically travelling to the same place of work as the victim, who was known to him.
Mr Feltham was driving a Mazda BT50 utility and failed to see the approaching motorcycle as he turned onto the same road. Mr Fayle was killed in the consequent impact between the vehicles.
The offender suffered minor injuries and was treated by paramedics at the scene before being conveyed to Batlow Hospital for mandatory blood and urine testing. He was negative for the presence of both drugs and alcohol.
He subsequently participated in an…

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 R v Feltham

Details

AGLC: R v Feltham [2024] NSWDC 378
Case: [2024] NSWDC 378
Decision Date: 21 August 2024

CaseChat Overview and Summary

In the case of R v Feltham, the appellant was charged with dangerous driving occasioning death. The incident occurred when the appellant, momentarily inattentive, collided with a motorcycle, resulting in the death of the rider. The court was tasked with determining the appropriate sentence for this offence, considering the objective seriousness of the incident, the appellant's culpability, and his remorse. The case was heard in the Supreme Court of Queensland.

The legal issues before the court included the assessment of the objective seriousness of the offence, the appellant's culpability, and the degree of remorse demonstrated. The court was required to consider the lower end of the scale of objective seriousness and whether the case approached the lowest end of the continuum of moral culpability. Additionally, the court had to weigh the appellant's genuine remorse and contrition in determining the appropriate sentence.

In delivering the judgment, the court acknowledged the appellant's momentary inattention as a significant factor in the collision. However, it recognised that the incident was at the lower end of the scale of objective seriousness and approached the lowest end of the continuum of moral culpability. The court also considered the appellant's genuine remorse and contrition, which were deemed to be significant mitigating factors. Consequently, the court imposed a sentence of one year and eleven months imprisonment, to be served by way of an Intensive Correction Order, and a twelve-month driver licence disqualification.

The court's final orders were that the appellant was to serve one year and eleven months imprisonment through an Intensive Correction Order and be disqualified from holding a driver's licence for twelve months. The decision underscored the importance of momentary inattention as a contributing factor to the offence, the lower end of the scale of objective seriousness, and the mitigating effect of genuine remorse and contrition on the sentence imposed.

Orders

Orders of the court

1 year and 11 months imprisonment to be served by way of an Intensive Correction Order and 12 month driver licence disqualification, at [212] to [220].

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

R v Feltham [2024] NSWDC 378

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 18 of 18 shown

R v Quinlan
[2022] NSWDC 761 Para 163

…Another case involving a failure to stop at a red traffic light resulting in an Intensive Correction Order was the matter of R v Quinlan [2022] NSWDC 761. The circumstances of that matter related to the death of a 16-year-old boy riding a BMX bicycle across a pedestrian crossing. The 16-year-old commenced crossing…
R v Balla
[2021] NSWCCA 325 Para 157

…I do, however, make reference to the first of the comparative cases to which the Crown has made reference: R v Balla [2021] NSWCCA 325.…
R v Balla
[2021] NSWDC 487 Para 160

…The sentencing judge, Judge Hanley SC, had reserved and delivered an extensive and detailed judgment ( R v Balla [2021] NSWDC 487). His Honour ultimately determined that an appropriate sentence of 2 years was to be served by way of an Intensive Correction Order.…
R v Zaiter
[2021] NSWDC 277 Para 168

…R v Zaiter [2021] NSWDC 277 was another matter in which the term of imprisonment was directed to be served by way of an Intensive Correction Order. The offender had been driving in Harris Park when her vehicle continued straight without following the curve of the road which bent to the right. The offending vehicle…
R v Banks, Craig
[2021] NSWDC 827 Para 186

…In R v Banks [2021] NSWDC 827, Judge P Taylor SC passed a sentence of imprisonment of 18 months to be served by an Intensive Correction Order. The accident had occurred when the offender was distracted from the roadway in front of him as he approached a pedestrian crossing. He saw a friend at a bus stop on the side…
Moodie v R
[2020] NSWCCA 160 Para 84

…ath of a person as a consequence of driving, I respectfully adopt the observations of Bell P, as his Honour the Chief Justice then was, in Moodie v R [2020] NSWCCA 160, where his Honour commented on the difficulty in sentencing for such offences, at [109]:…
R v Boctor
[2020] NSWDC 46 Para 200

…The last published comparable in this category is R v Boctor [2020] NSWDC 46. The offender was driving his vehicle at 9:30pm along a residential street in Kellyville. There was low level street lighting and the street had a speed limit of 50 km/hr.…
R v Raymond
[2019] NSWDC 679 Para 192

…In R v Raymond [2019] NSWDC 679, the female offender had been at a party in Berry where she had consumed a number of alcoholic drinks. She had left the party to drive some passengers to the hotel in Bomaderry. She was returning to the party shortly after 11pm.…
R v Manok
[2017] NSWCCA 232 Para 181

…In R v Manok [2017] NSWCCA 232, the offender was driving a vehicle with three passengers. He was experiencing a high level of fatigue and fell into a “micro-sleep” . He woke up and saw the car was about to collide with a power pole. He tried to evade the pole but failed and struck it. Two passengers were killed and…
R v Barnett
[2016] NSWDC 302 Para 190

…His Honour made specific reference to R v Steven Barnett [2016] NSWDC 302 in which Yehia DCJ, as her Honour then was, had held that a period of 5 seconds was found to be “momentary inattention” . In that matter, the offender had been driving a heavy vehicle at 100 km/h when he collided into a stationary vehicle on…
Whelan v R
[2012] NSWCCA 147 Para 175

…These included Whelan v R [2012] NSWCCA 147 which is also referred to and summarised in the Crown’s written submissions before me. The appellant in that matter had collided with an oncoming car when he pulled out to overtake a convoy of four-wheel drive vehicles each of which was towing a boat.…
Markham v Regina
[2007] NSWCCA 295 Para 71

…I also take note of the observations of Hidden J in Markham v Regina [2007] NSWCCA 295 at [25] where his Honour said:…
R v Whyte
[2006] NSWCCA 75

…her by the kind of misconduct in paragraph (a), (b) or (c). The views expressed in many cases such as R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252 reflect the fact that the charge of a motor vehicle is one that is of great responsibility. The community expects such instruments of danger to be cont…
R v Errington
[2005] NSWCCA 348 Para 70

…In R v Errington [2005] NSWCCA 348; 157 A Crim R 553 at [27], Mason P observed that:…
R v Tzanis
[2005] NSWCCA 274 Para 95

…so concedes these positive subjective factors and referred, in written submissions, to the observations of the Court of Criminal Appeal in R v Tzanis [2005] NSWCCA 274 at [28] which recognised that such subjective circumstances may be deserving of considerable weight.…
R v Whyte
[2002] NSWCCA 343 Para 56

…In R v Whyte [2002] NSWCCA 343; 55 NSWLR 252, the Court, per Spigelman CJ, Mason P and Barr, Bell and McClellan JJ, exercised that new statutory power, and reformulated the Jurisic guideline. The reformulated characteristics in frequently recurring cases under s 52A are as follows (including the Crown’s observations…
Wong v The Queen
[2001] HCA 64 Para 55

…Subsequent to the judgment of the High Court in Wong v The Queen [2001] HCA 64; 207 CLR 584 with respect to guideline judgments, the Court of Criminal Appeal was given a new statutory power with respect to guideline judgements in s 37A of the Crimes (Sentencing Procedure) Act 1999 .…
R v Khatter
[2000] NSWCCA 32 Para 66

…ty of an offender’s driving which occasions the death of another human being, the observations of Simpson J, as her Honour then was, in R v Khatter [2000] NSWCCA 32 at [31] are important to bear in mind:…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
5(1) 2 mentions (from Para 55)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention

Medium Neutral Citation:	R v Feltham [2024] NSWDC 378
Hearing dates:	14 August 2024
Date of orders:	21 August 2024
Decision date:	21 August 2024
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	1 year and 11 months imprisonment to be served by way of an Intensive Correction Order and 12 month driver licence disqualification, at [212] to [220].
Catchwords:	CRIME — Driving offences — Dangerous driving occasioning death — Momentary inattention — Lower end of objective seriousness — Approaching the lowest end of the continuum of moral culpability — Genuine remorse and contrition.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	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
Texts Cited:	Nil
Category:	Sentence
Parties:	Rex (Crown) Craig James Feltham (Offender)
Representation:	Counsel: J Sfinas (Crown) T C Jackson (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Pennicott Weir Lawyers (Offender)
File Number(s):	2020/00316986
Publication restriction:	Nil