R v Griffiths

[2024] NSWDC 605

District Court

New South Wales

Medium Neutral Citation:

R v Griffiths [2024] NSWDC 605

Hearing dates:

17 December 2024

Date of orders:

17 December 2024

Decision date:

17 December 2024

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

(1)   The offender is convicted.

(2)   The offender is sentenced to a term of two years imprisonment.

(3)   Pursuant to 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an intensive correction order. The sentence will commence today, 17 December 2024.

(4)   The standard conditions that apply during the term of the order are that the offender:

(a)   Must not commit any offence; and

(b)   Must submit to supervision by a community corrections officer at the Wollongong Community Corrections office and is to attend this office within 7 days to facilitate this condition.

(5)   The following additional conditions apply:

(a)   The offender is to perform 450 hours of community service work; and

(b)   The offender is to comply with any reasonable directions of his general practitioner and any treating psychiatrist, with respect to any treatment, including the treatment referred to in the report of Dr Samuels.

(6) The offender is disqualified from holding or obtaining a driver’s licence for a period of 3 years commencing on the date of his conviction. I note that s 206B of the Road Transport Act 2013 applies in relation to the offender’s disqualification period.

Catchwords:

CRIME – sentence - drive manner dangerous causing death – driver of public bus – collision with pedestrian at intersection - assessment of moral culpability from manner of driving – victim impact statements – remorse – contrition – psychiatric disability – consideration of intensive correction order

Legislation Cited:

Crime (Sentencing Procedure) Act 1999, ss 3A, 7(1), 66

Crimes Act 1900, ss 52A(1)(c)

Road Transport Act 2013, s 206B

Cases Cited:

Duncan v R [2012] NSWCCA 78

R v McKeown [2013] NSWDC 22

R v Smith [2016] NSWCCA 75

R v Whyte (2002) 55 NSWLR 252

R v Wran [2016] NSWSC 1015

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Category:

Sentence

Parties:

Rex
Samuel Griffiths

Representation:

Counsel:
Ms N Keay (Crown)
Mr P Kondich (Offender)

Solicitors:
Director of Public Prosecutions NSW (DPP) (Crown)
Lambert Legal (Offender)

File Number(s):

2022/00187273

Judgment

1. The offender is to be sentenced with respect to one offence of dangerous driving occasioning death – drive manner dangerous contrary to s 52A(1)(c) of the Crimes Act 1900. The maximum penalty is 10 years imprisonment with no standard non-parole period. The maximum penalty for the offence acts as a sentencing guidepost or reference point.

2. Admitted on behalf of the Crown were the following:

1. Ex C1 – Notice of committal

2. Ex C2 – Indictment

3. Ex C3 – Section 166 certificate

4. Ex C4 – Agreed facts

5. Ex C5 – Criminal history

6. Ex C6 – Traffic record

7. Ex C7 – CCTV compilation

8. Ex C8 – Sentencing assessment report

9. Ex C9 – Victim impact statements of Ms Woodward and Ms Litwiniec

3. Admitted on behalf of the offender were the following:

1. Ex O1 – Character reference of Mr Granland

2. Ex O2 – Character reference of Ms Smith

3. Ex O3 – Character reference of Mr Oste

4. Ex O4 – Character reference of Mr Askew

5. Ex O5 – Character reference of Mr Walker

6. Ex O6 – Character reference of Ms Simmons

7. Ex O7 – Character reference of Mr Hart

8. Ex O8 – Canberra Times news article dated 22 February 2023

9. Ex O9 – Report of Dr Anthony Samuels dated 28 November 2024

10. Ex O10 – Traffic Offender Intervention Program Court report

11. Ex O11 – Letter of apology by the offender

Agreed facts

4. On 27 June 2022 the offender was driving a Premier Illawarra bus having commenced his shift at 7:00am. At about 10:00am he was driving north on Corrimal Street, Wollongong in the right lane, approaching the intersection with Crown Street. The offender stopped in compliance with a red traffic arrow waiting to turn right into Crown Street.

5. At the same time the deceased was waiting at the traffic light controlled pedestrian crossing on the eastern side of the intersection, intending to cross from the southern to northern side of Corrimal Street. The deceased was thereafter given a green walk signal and proceeded to cross. At this time the offender remained stopped in accordance with the red arrow. However, once the deceased was about halfway across the crossing, the walk signal began to flash red although the deceased continued to cross as she was lawfully entitled to do so. Coinciding with the change in pedestrian signal the red arrow facing the offender was turned off, leaving a green light only. This permitted, when it was safe to do so, for the offender to turn right.

6. The offender began to make the right turn from Corrimal Street into Crown Street. The front left side of the offender’s bus collided with the deceased who was nearing the end of her crossing. The deceased was thrown into the curb where members of the public came to her aid.

7. The offender immediately stopped the bus and also assisted police. Emergency services subsequently attended. Despite the best efforts of attending paramedics, at the time of her arrival at Wollongong Hospital the deceased was pronounced life extinct. The cause of death were multiple injuries arising from the collision.

8. The offender was spoken to by attending police at the scene of the accident where he said the following: –

“No, I've hit her, like, look, I went to turn right, she was on the road, and then as I’m turning a cars [sic] honked me, I've just looked in my mirror for a second, but I think he was honking someone across, across that way, and I've just looked in the mirror, and then just heard the donk and she's just fallen straight… (inaudible)."

9. The circumstances in which the accident occurred were captured on a series of CCTV cameras installed on the bus the offender was driving. The footage shows that when the offender is stationary at the lights he looked towards the side of the road where the deceased was positioned and remained looking through that window for approximately three seconds. During this time the deceased began to cross the pedestrian crossing and is seen entering the footage from one of the camera angles. At the same time the offender is still looking to his right outside the side window.

10. In the meantime, the deceased is seen to continue to cross the road. At 9:59:25 a car horn can be heard, almost simultaneous to when the offender begins to turn. This is consistent with the version provided by the offender to police. The footage shows that as the offender begins to move, he quickly looks to his left before looking back in the direction in which he is travelling. One second later the offender begins to turn into Crown Street. The agreed facts then state that five seconds later the deceased is seen to be crossing the middle of lanes one and two eastbound. At the same time the offender is seen looking straight out the front window and a split second later the impact occurs.

11. However, the CCTV compilation shows that it is in fact a matter of seconds between the sound of the horn, the offender’s’ reaction to it and the accident.

12. It is agreed that the deceased was on the pedestrian crossing for approximately 10 seconds before the impact. Mandatory blood and urine testing of the offender returned a negative result for the presence of alcohol or prohibited drugs. The bus, when examined by an expert, was found to have no mechanical defects or faults.

Criminal and traffic record

13. The offender is not otherwise criminally known, having not previously been convicted of any criminal offences.

14. The offender was first issued with a learner's licence in 2006 and a P1 provisional license in 2007. The offender was detected driving contrary to stop sign and not comply with conditions of his license on separate occasions prior to the issue of his P2 provisional license in the middle of 2008. Following a speeding offence a demerit points suspension was put in place in 2009 although in October 2010 the offender was granted his unrestricted license. Between 2012 and 2013 there were several speeding offences before a demerits warning letter was sent in early 2014. There is a further offence in late 2015 of disobey traffic lights camera detected where a further warning letter was sent. In 2017 there was a further offence of disobey traffic lights camera detected and an initial license suspension was lifted in mid-2020. There was one further offence of disobey traffic lights camera detected in March 2022.

Victim impact statements

Sophie Woodward

15. Ms Woodward is the daughter of the deceased. It is readily apparent from her statement that the death of her mother has had a profound impact on every part of her life. In an eloquent and powerful way Ms Woodward describes her various “goodbyes" being the last time she saw her mother alive, her subsequent identification of her mother after the accident and at the time of her memorial. Ms Woodward describes the immediate impact including the initial identification process, dealing with her personal belongings, the funeral and subsequent impact on her family. She further describes the ongoing impact on her mental and physical health and the difficulties in meeting financial commitments related to her mother’s passing. She states: –

“I’m wrecked. I try to keep going, but the hole she left is massive. The weight of her absence is like a lead blanket that I carry every day. And some days, it just pulls me under."

16. Ms Woodward describes the enormous impact of her passing through even some of the simplest daily tasks and experiences. She refers to life's milestones which she will no longer be able to share with her mother. As Ms Woodward states in her closing remarks “her absence ripples through every corner of our lives".

Karolina Litwiniec

17. Ms Litwiniec was the deceased's niece who describes the impact of her passing on her and her family. Having spoken in glowing terms of her aunt's character and her own memories, she states that her death “has left an indescribable void in our lives". She referred to the impact upon her extended family including her own father who struggled with mental health in the wake of her passing. The statement concludes with the following: –

“Her death has had a lasting emotional impact on all of us, and the knowledge that her life ended in such a tragic and preventable way is pain we will carry forever".

18. I note that whilst the victim impact statement was being read, the offender became emotional and tearful.

Sentencing assessment report

19. Consistent with the other subjective material the offender candidly acknowledged that he failed to see the deceased in time. Also consistent with the other subjective material, the offender acknowledged the significant impact that the deceased's death would have on her family and friends. The offender expressed his willingness to engage in interventions and community service work. He was assessed at low risk of reoffending and was assessed suitable for community service.

Subjective material

Report of Dr Anthony Samuels, Psychiatrist

20. Dr Samuel's reviewed the offender for the purposes of the assessment on 28 November 2024. He had available the statement of agreed facts.

21. By way of background the offender was born in 1990 and is aged 34. At the time of the offence the offender was aged 32. He is married with four children ranging from the age of two to eight.

22. At the time of the accident the offender had planned on moving permanently to Queensland and it was his last week of work. However, due to bail conditions, he has remained in the Illawarra area and is now renting his parents’ house, having built a granny flat where they now live.

23. The offender was raised in a loving and supportive Christian family and attended the local Christian school until year 10. He thereafter completed a carpentry apprenticeship before deciding to travel around Australia with his wife. Following the COVID pandemic he undertook truck driving and subsequently obtained a position as a bus driver.

24. Since the accident the offender has remained employed by the bus company although he no longer drives but is undertaking carpentry work. He has a generally unremarkable medical and psychiatric history. However, following the accident he worked with counsellors for approximately one year. Apart from some occasional binge drinking, the offender has no drug or alcohol history.

25. The offender spoke of the events of the day in question. He provided a version consistent with that provided to police including the fact of being distracted by a car horn immediately prior to the impact. While still having no recollection of seeing the deceased prior to the impact, he freely admitted that clearly she was right in front of the bus. He frankly conceded that he must not have been paying attention and he had no other explanation. He further frankly admitted that he should have seen the deceased.

26. The offender described the immediate emotional impact of the accident. He experienced constant nightmares, flashbacks and lost 20kg in weight. He socially withdrew from some people. His marriage almost broke down as he was not communicating with his wife. She threatened to leave the offender in circumstances where he allegedly had no emotions. The nightmares only ceased in circumstances where he instead sleeps poorly.

27. A constant theme in the report is the offender’s expressions of extreme guilt, remorse, and empathy for the deceased's family. Dr Samuel's observed that these feelings were preventing the offender from obtaining the psychiatric treatment he so badly needed in circumstances where the offender felt that he did not “deserve to be cared for". The legal process prevented him from trying to do something for the deceased's family. Dr Samuel's observed: –

“It is clear that he has an enormous sense of guilt, he feels powerless to do anything about it, he feels caught up in the legal process … He outlined his severe grief and remorse…".

28. Dr Samuel’s diagnosed the offender as suffering from post-traumatic stress disorder and major depression. The offender was in dire need of psychiatric and psychological treatment to the extent that he proposed the offender commence such treatment with an inpatient stay in a psychiatric facility. Dr Samuel's concluded: –

“In my opinion his remorse is not only very genuine but he is in fact overwhelmed by so much guilt and despair, and I see this in part as reflecting a manifestation of his underlying post-traumatic stress disorder and it is completely preoccupying his thinking, his sense of self and identity as a person.."

Joh Granland

29. Mr Granland is the acting human resources manager at Premier transport where the offender was employed at the time of the offence and continues to do so. He confirmed that the offender commenced employment as a casual bus driver in October 2021. He noted that the offender had been a good employee of sound character and conducted himself well in the workplace. He attested to the offender’s personal characteristics whilst working as a bus driver which were caring and supportive and considerate of members of the public. He confirmed that the offender had remained employed with the bus company as a carpenter.

Margaret Smith

30. Ms Smith is the senior manager working with UN Women Australia. She is the offender’s aunt and accordingly has known him since birth. She described the offender as engaging, loving and bighearted who values the inherent worth of everyone. She further described the offender as gentle, generous and compassionate. He has been known to help strangers welcoming them into his home, providing them a meal and a place to stay. The offender has consistently expressed to her his remorse and sorrow as a result of the death of the deceased and his sympathy for her relatives. She has observed that the incident has had a severe psychological, emotional and physical impact on the offender and his family.

Philip Oste

31. Mr Oste is the offender’s brother-in-law although he had known the offender since childhood. He described the offender as caring and attentional to his immediate and extended family. He is respected for his loyalty, had gone the extra distance to ensure both friends and visitors were made welcome and unselfishly offered up a shared meal or spare bed. He had absolute faith in the offender’s general driving including for his own children.

Shannon Askew

32. Mr Askew is a lawyer with the NSW Crime Commission having previously been employed at the CDPP. He has known the offender's family for his entire life, with their families having met through their church. He similarly attested to the offender’s good character as well as his devotion to his immediate family. He has always admired the offender for his unfailing kindness and brutal honesty who was generous and open in nature such that he would lend a helping hand to anyone in need whether they be a friend or stranger. Mr Askew gave an example from his childhood days which demonstrated the caring and generous nature of the offender since childhood. He observed that the incident had taken an extraordinary toll on the offender’s physical and mental health who had clearly regretted the circumstances of the accident.

Robert Walker

33. Mr Walker is a retired magistrate having served in that role for a period of 23 years. He met the offender through his friendship with his eldest son as local surfers. Mr Walker noted that the offender was qualified carpenter and undertaken volunteer work overseas building an orphanage in Phnom Penh a volunteer. He observed that the offender was highly regarded by the local community and well-respected. He noted that the offender was devastated by the death of the deceased and has continued to demonstrate deep regret and remorse and sympathy for the victim’s family.

Rosemary Simmons

34. Ms Simmons indicated that she had known the family for a period of 16 years. She described the offender as compassionate, considerate, and caring, who is community minded and has undertaken voluntary work through organisations such as Christian Surfers.

Ben Hart

35. Mr Hart is a barrister practising in Wollongong who had known the offender for a period of some 10 years. He attested to the offender’s good character. However, he noted that the offender’s demeanour changed considerably following the accident. He has expressed to Mr Hart considerable remorse and regret. The offender has never tried to minimise what occurred or seek to excuse it.

The offender’s evidence

36. The offender affirmed the various histories contained in the subjective material including the report of Dr Samuels, the sentencing assessment report and his expressions of remorse to the various character referees.

37. The offender gave evidence of the events on the day in question. It should be immediately observed that the offender was emotional, tearful and struggled at times, particularly when giving evidence as to the circumstances of the accident.

38. The offender candidly acknowledged that he should have seen the deceased and he asks himself every day why he did not see her. He spoke with admiration for the persons immediately upon the scene and emergency services including the police. He described with considerable emotion the remaining events of that day including being arrested, undertaking mandatory tests, being charged and bailed.

39. The offender expressed his gratitude to his employer who returned him to work shortly after the accident to work in a carpentry role. He gave evidence that the bus he was driving on the day remains in operation and he sees it on an almost daily basis at the depot where he works. He indicated that it is a constant reminder of the accident. The offender also gave evidence of the circumstances in which he came to be a bus driver employed by Premier. He talked about his love of driving buses.

36. He hoped to continue working in the foreseeable future as a carpenter at the bus depot whilst being forever conscious of the possibility of serving a sentence in prison.

37. In cross examination the offender again fairly conceded that he failed to see the deceased although she was there to be seen. He referred to looking in various directions including being conscious of the vehicles around him in circumstances where it was to execute a right turn. Whilst he did not specifically recall seeing the deceased waiting to cross, he did recall seeing a white vehicle driven by a male. He recalled being conscious of the presence of this vehicle in the context of his intended right turn.

38. The offender candidly acknowledged that he had been previously fined for disobey traffic lights camera detected including an offence shortly before the accident. He was also questioned on an upcoming public event which had resulted in the changes of the bus route and some road closures. However, to his credit, the offender stated that he in no way sought to excuse or justify his behaviour by reason of these changes.

Letter to the deceased’s family

43. A letter written by the offender was provided to the deceased’s family. In that letter the offender states that he is “deeply saddened, in shock, greatly remorseful and genuinely sorry" for the deceased's loss. He accepts full responsibility for his actions and acknowledges that it has had a profound impact.

Crown submissions

44. The Crown contended that the offender's manner of driving was clearly dangerous in circumstances where there were a high number of road users. It involved a gross lack of care and attention. The Crown referred to various authorities with respect to sentencing for dangerous driving causing death including the guideline judgment of R v Whyte (2002) 55 NSWLR 252. The Crown identified the relevant features referred to in Whyte in assessing the objective seriousness/moral culpability.

45. Ultimately it was contended, by reference to several authorities, that the manner of driving involved more than momentary inattention or misjudgement.

46. The Crown ultimately contended that whilst the offender's moral culpability was not high, it was not appropriately described as “low level". The Crown also referred to several recent Court of Criminal Appeal decisions relating to sentencing for the same offence. Ultimately the Crown contended that the objective seriousness was such that a sentence of full-time custody ought to be imposed.

47. The Crown in oral submissions reiterated its written submission that the offence was not at the lowest category for moral blameworthiness. The failure to give way was more than momentary inattention. It was submitted that the evidence was not sufficient to amount to extra curial punishment.

Offender’s submissions

48. The offender referred to several authorities in the assessment of objective seriousness and the appropriate sentence for such offences. It was contended that there were no aggravating features identified in Whyte whilst the offender was relatively young, there was an absence of injury to the driver or driver’s intimates, there was an expression of genuine remorse and a plea of guilty. Ultimately it was submitted that the objective seriousness of the offence fell at the lower end.

49. Reference was also made to the offender's moral culpability, again contending that this would be found to be low.

50. Mitigating factors included strong prospects of rehabilitation and the unlikelihood of reoffending. By reference to various extracts of the report of Dr Samuels the offender contended that there was genuine remorse and an acceptance of responsibility. Further, the accident had resulted in significant psychiatric consequences for the offender.

51. A plea of guilty would result in a reduction in the sentence that would otherwise be imposed of 10%, and there was an element of extra curial suffering in the media attention and his identification in numerous news articles. Submissions were made as to the relevant principles applicable to the imposition of an intensive correction order if that became available as a sentencing option.

52. Reference was also made to the principles of totality and that a finding of special circumstances ought to be made.

53. In oral submission counsel conceded that the reporting of the accident in the media was insufficient to amount to extra curial punishment as contemplated by the authorities. It was submitted that the circumstances did amount to momentary inattention.

54. Reference was made to the offender’s evidence and his genuine expressions of remorse. Further, that the Court would consider alternatives to full time imprisonment.

Consideration

55. As a fellow judge so eloquently and poignantly observed in R v McKeown [2013] NSWDC 22, since cited with approval by the Court of Criminal Appeal in R v Smith [2016] NSWCCA 75:

“In matters such as this Judges are asked to perform an impossible equation; No life can ever be equated with a period of imprisonment; No gaol term can return a loved one, and; a life should never be measured simply by the punishment meted out to the offender.” at [5].

56. The agreed facts, supported by the CCTV footage, demonstrate that the deceased was visible to the offender at the time when the offender was stationary at the intersection and the deceased was waiting to cross the road. Whilst it appears from the CCTV footage that during this period the offender was looking in the direction of the deceased, I accept his evidence that that he was actually observing other vehicles in the vicinity in preparation for his right turn. The deceased was capable of being seen by the offender during the period she was crossing the road until the moment of impact. However, there is no issue that the accused failed to see the deceased. As the Crown conceded in submissions on a pre-trial argument as to the admissibility of expert evidence, it is not alleged that the accused saw the deceased and drove into her path deliberately.

57. In a contemporaneous account provided by the offender to police at the scene of the accident the offender acknowledged the presence of the deceased on the road. However, he then told the police that he looked in his mirror having heard the sound of a car horn, and it was shortly after this that the impact occurred. The offender’s contemporaneous statement to police that he was momentarily distracted by the sound of a car horn is corroborated by the CCTV footage. I do not accept, as suggested to the offender that he was in any way seeking to driving in a carless manner to compete the turn between oncoming vehicles.

58. I accept that the circumstances in which the offence occurred could not be characterised as momentary inattention or misjudgement. It must be acknowledged that the offender failed in a most fundamental way to drive safely through the intersection in circumstances where the pedestrian was visible to him before and as she crossed the road.

59. The period captured on the CCTV prior to commencing the right turn, including his approach to the intersection, demonstrates that the offender was attentive to his driving task. He is seen to be looking in his various mirrors for surrounding traffic during his time.

60. I am satisfied that the offender was dealing with a somewhat complex driving environment where he was executing a right turn in an intersection driving large bus. It required him to be aware of oncoming vehicles, other vehicles in the vicinity of the intersection and the possible presence of pedestrians such as the deceased. He was momentarily distracted from his primary driving task by the sound of a car horn and I am satisfied this distraction contributed to the offender’s failure to see the deceased in the moments before impact. Distinctly absent are the aggravating features identified in the guideline judgment in Whyte apart from the fact of the death of the deceased which is a constituent element of the offence.

61. I find, given the range of circumstances contemplated by the offence, that the offender’s manner of driving falls towards the lower end of moral culpability or blameworthiness.

62. It is readily apparent from the victim impact statements, particularly from the deceased's daughter, Sophie Woodward, that her mother's death has had a devastating impact on her and her extended family. In considering an appropriate sentence, the Court cannot lose sight of the ripple effect of the sudden and unexpected loss of a loved one through a car accident. The victim impact statement of the deceased's niece further demonstrates that the impact is far-reaching and extends to the deceased's extended family.

63. I accept that the offender is of good character and is unlikely to reoffend. Whilst the offender’s traffic record demonstrates a not insignificant number of infringements since obtaining his driver's licence in 2006, it must be considered in the context of a 16-year driving history which has included in recent times engaging in professional driving.

64. Having left school in year 10 he has been in constant employment apart from a period whilst travelling and is married with four young children. It is also readily apparent that the offender was well-regarded by his employer at the time of the accident. This is reflected in the fact that despite the offending occurring whilst driving a bus on behalf of his employer, he has continued in employment performing non-driving duties.

65. The various character references attest to the offender’s good character. He is clearly a fine young man who is dedicated to his family and his community.

66. I further accept that the accident has had a devastating impact on the offender. In making such an observation, the Court does not intend in any way to detract from the impact the accident has had on the deceased’s family as previously recognised.

67. The psychiatrist's report admitted on behalf of the offender is replete with expressions of remorse, guilt and empathy with the victim’s family. This is consistent with the various letters written in support of him, his evidence and the letter written to the victim’s family. Such guilt has led to the offender neglecting his own mental health in circumstances where he feels non-deserving of such help and support. I accept the opinion of Dr Samuel that the offender suffers from post-traumatic stress disorder and major depression of such moment that he is in need of inpatient care.

68. In considering the remaining purposes of sentencing provided in s 3A of the Crime (Sentencing Procedure) Act 1999 (the CSPA), deterrence is a relevant consideration. As the road toll statistics consistently demonstrate, serious injury and death caused by motor vehicles continues to be a major issue and any sentence must be a deterrence for others. The sentence which I intend to impose will make the offender accountable for his actions and ensure that he is adequately punished. This will include a lengthy period of disqualification from driving.

69. I am satisfied that the offender’s prospects of rehabilitation are good given his genuine expressions of remorse and his recognition of the devastating impact that the accident has had upon the deceased's family. However, his prospects of rehabilitation are also contingent upon accepting the psychiatric/psychological support he so badly needs. It would be hoped that the finalisation of the Court process and the passing of sentence will enable the offender to recognise the need for psychiatric/psychological treatment.

70. I am satisfied that the s 5 threshold has been crossed and having considered all possible alternatives, no penalty other than imprisonment is appropriate.

71. Given the timing of the plea, the offender is entitled to a discount of 10%. I find that the late plea is not as a result of any delayed acceptance of responsibility or remorse on the part of the offender. As the previous judgments demonstrate, the not guilty plea was entered in the context of a series of expert reports commissioned on behalf of the offender. The offender ultimately entered the plea of guilty following the Court's determination that the liability expert reports upon which the offender relied were inadmissible. However, it is readily apparent from the subjective material that from very early stage the offender had accepted responsibility for the accident and was genuinely remorseful.

72. I do not accept that the brief media reporting, absent any further evidence, constitutes extra curial punishment: Duncan v R [2012] NSWCCA 78; Wran [2016] NSWSC 1015.

73. Having regard to the guideline judgment in Whyte, and to an extent being assisted by the authorities referred to by counsel in submissions, I find that an appropriate sentence, following the discount of 10% for the plea of guilty, is a sentence of 2 years imprisonment.

74. In circumstances where the offender has been sentenced to a sentence not exceeding 2 years, it is necessary to determine whether the sentence be served in full-time custody or in the community by way of intensive correction order.

75. Section 66 of the CSPA provides as follows: –

“66 Community safety and other considerations

(1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.

(2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending.

(3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.”

76. In Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, Gordon, Edelman, Steward and Gleeson JJ observed: –

“[73] The identification of community safety in s 66(1) as the "paramount" consideration also indicates that s 66 is concerned with an aspect of the sentencing task that requires the sentencing court to have a particular and different focus at the third stage of the three-step process described earlier. When the court is deciding the discrete question whether or not to make an ICO, community safety is the consideration to which other considerations are to be subordinated, although other considerations must or may be taken into account as prescribed by s 66(3)[89].

R v Pullen (2018) 275 A Crim R 509 at 531 [86]; Mandranis v The Queen (2021) 289 A Crim R 260 at 270-271 [50]-[51]; cf Fangaloka [2019] NSWCCA 173 at [61].

…

[75] The assessment required by s 66(2) is not determinative of whether an ICO may or should be made. To the contrary, as is plain from s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO. Thus, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). In that respect, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending.”

77. It is the opinion of Dr Samuels that the offender is in need of significant psychiatric/psychological treatment including potentially an inpatient admission. There is likely to be the need for some family therapeutic intervention, not only to stabilise the offender's primary relationship, but also to assist his immediate family which have been impacted.

78. I accept Dr Samuel's opinion that the offender is severely psychiatrically unwell and that it is likely imprisonment would only further worsen these conditions. Indeed, there is a risk of self-harm in the custodial setting, exacerbated by the limited availability of psychiatric and psychological services in the custodial system.

79. My view is that the offender’s rehabilitation, prospects of reoffending, and community safety is better promoted by the offender serving his term of imprisonment in the community. However, the conditions which I intend to impose will ensure the offender is adequately punished for the offence and is held accountable for his actions.

Orders

1. The offender is convicted.

2. The offender is sentenced to a term of two years imprisonment.

3. Pursuant to 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an intensive correction order. The sentence will commence today, 17 December 2024.

4. The standard conditions that apply during the term of the order are that the offender:

1. Must not commit any offence; and

2. Must submit to supervision by a community corrections officer at the Wollongong Community Corrections office and is to attend this office within 7 days to facilitate this condition.

5. The following additional conditions apply:

1. The offender is to perform 450 hours of community service work; and

2. The offender is to comply with any reasonable directions of his general practitioner and any treating psychiatrist, with respect to any treatment, including the treatment referred to in the report of Dr Samuels.

6. The offender is disqualified from holding or obtaining a driver’s licence for a period of 3 years commencing on the date of his conviction. I note that s 206B of the Road Transport Act 2013 applies in relation to the offender’s disqualification period.

Decision last updated: 19 December 2024