R v Haydon Charles Ready

[2021] NSWDC 341

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Haydon Charles Ready [2021] NSWDC 341

Hearing dates:

3 - 7 May 2021 (Trial)
5, 8 and 12 July 2021 (Sentence)
Crown written submissions – 30 June, 5 and 9 July 2021
Defence written submissions – 3 July 2021

Date of orders:

12 July 2021

Decision date:

12 July 2021

Jurisdiction:

Criminal

Before:

Hatzistergos AM DCJ

Decision:

Sequence 2 – 9 months imprisonment. Sentence stayed pending assessment for Intensive Correction Order with home detention condition

Sequence 4 – fined $300

Catchwords:

CRIMINAL LAW –– Negligent driving occasioning death (Sequence 2) – Public bus driven by the Offender collided with the deceased whilst conducting a right hand turn on green light – Offender failed to keep a proper lookout in circumstances where his view was impaired by a combination of environmental factors – Significance of the Offender driving heavy vehicle – Obligation to ensure appropriate response for any reason driving conditions were compromised –Offending found to be in mid-range of objective seriousness – Driving with illicit substances in blood (sequence 4) – small residual presence from earlier consumption – No impact on driving

SENTENCE –– No aggravating factors – Mitigating factors – Discount for early guilty plea where Crown did not accept Defence offer prior to trial – Remorse established – Reasonable prospects of rehabilitation

Legislation Cited:

Crimes (Sentencing Procedure Act) 1999 (NSW), ss 17C, 17D, 30E, 21A

Criminal Procedure Act 1986 (NSW), s 166

Road Transport Act 2013 (NSW), ss 111, 117

Cases Cited:

Bonsu v R [2009] NSWCCA 316

Director of Public Prosecutions (NSW) v Mansouri [2016] NSWLC 17

Director of Public Prosecutions (NSW) v Pelletier [2014] NSWLC 9

Director of Public Prosecutions v Markovski [2011] NSWLC 31

Director of Public Prosecutions v Victoria Bhandari [2011] NSWLC 7

Mitchell v R (2009) 52 MVR 488 at 491

R v Fageer [2017] NSWLC 18

R v Janceski [2005] NSWCCA 288

Category:

Sentence

Parties:

Regina (the Crown)
Haydon Charles Ready (the Offender)

Representation:

Counsel:
Mr C Evans (the Crown)
Mr P Allport (the Offender)

Solicitors:
Director of Public Prosecutions (the Crown)
Astoria Lawyers Pty Ltd (the Offender)

File Number(s):

2019/240832

Publication restriction:

Nil

Judgment

1. Following a trial of five days duration, Haydon Charles Ready was found not guilty on 7 May 2021 of one charge that he did:

On 3 February 2019, at Carlingford in the State of New South Wales, did drive a motor vehicle namely, a public bus registered as [redacted], in a manner dangerous to other persons, whereby the vehicle was involved in an impact as a result of which the death of Alan William Cameron was occasioned.

2. Thereafter, the Crown proceeded on a back-up charge and a further related charge placed on a certificate pursuant to section 166(1)(b) of the Criminal Procedure Act 1986 (NSW) (the 1986 Act). The relevant charges were as follows:

1. On 3 February 2019, at Carlingford in the State of New South Wales, did negligently drive a motor vehicle, namely, a public bus registered as [redacted], whereby the vehicle was involved in an impact as a result of which the death of Alan William Cameron was occasioned: (Sequence 2). This is an offence contrary to section 117(1)(a) of the Road Transport Act 2013 (NSW) (the 2013 Act) carrying a maximum penalty of 18 months imprisonment and/or maximum fine of 30 penalty units with an automatic licence disqualification for 3 years or a minimum disqualification period of 12 months.

2. On 3 February 2019, at Carlingford in the State of New South Wales, did drive a motor vehicle, namely, a public bus registered as [redacted], on a road, namely, Coleman Avenue, Carlingford, whilst there were present in his blood prescribed illicit drugs, namely, Delta-9-THC acid, Nordiazepam, Amphetamine and Methylamphetamine: (Sequence 4). This is an offence contrary to section 111(1)(a) of the 2013 Act carrying a maximum penalty of a maximum fine of 20 penalty units and an automatic licence disqualification period of 6 months or a minimum disqualification period of 3 months.

3. The Offender entered a plea of guilty to Sequence 2 on 7 May 2021 and a Sentence Assessment Report was ordered. The matter came for sentence before me on 05 July 2021. However, it was adjourned to 8 July 2021 due to the unavailability of the Offender’s Counsel. On 8 July 2021, a plea of guilty was also entered in relation to Sequence 4 and oral submissions were then heard. Brief further submissions were heard earlier today.

Background of the matter

4. On 3 February 2019, the Offender was driving a Mercedes City Bus on behalf of the NSW bus authority. He commenced his route around 6:59pm and the weather at the time was fine and the road was dry. The Offender drove the bus for around 20 seconds before stopping at the red traffic light facing southbound traffic on Coleman Avenue at Carlingford. He activated his right indicator indicating that he was going to turn westward. Mr Alan Cameron (the deceased) was on the southwestern corner of the intersection; the corner facing the Offender. Mr Cameron pressed the pedestrian crossing button and waited on the footpath as the pedestrian crossing symbol was red. The Offender waited at the intersection stationary at the red light for 1 minute and 8 seconds. Thereafter, the light turned green allowing him to proceed. The walk signal also turned green enabling Mr Cameron to cross the road. The Offender proceeded to turn the corner for 5 seconds before colliding with the deceased. An autopsy report completed for the Coroner concluded that the direct cause of the death resulted from blunt force head injuries. ^[1] Subsequent examination of the Offender’s vehicle by a heavy vehicle inspector at Road and Maritime Services found it to not be subject to any defects that would have contributed to the collision. ^[2]

   1. Exhibit U at [3].

   2. T 40.23-.38.

5. A diagram indicating the location of Mr Cameron on the roadway and where the tyre marks were by found from the Offender’s vehicle was tendered as Exhibit A in the trial.

6. Three screenshots were also tendered from CCTV footage taken within the Offender’s vehicle and were marked as Exhibit E, F and G. Relevantly, Mr Cameron was not to be seen in the screenshot timed at 19:00:59 until 19:01:00 when Mr Cameron can be seen in the right hand corner of the Offender’s vehicle. Also tendered was Exhibit R which was a photograph taken by Senior Constable Racker based on a reconstruction at the approximate location from where the Offender’s vehicle was stationary viewing the southwest corner of the intersection between Pennant Hills Road and Coleman Avenue. The photograph relevantly depicts the position of shading. Exhibit R is reproduced below:

7. Further tendered was an image marked as Exhibit S depicting a possible blind spot to the vehicle being driven by the Offender when he was stationary due to the presence of an A frame. Exhibit S is reproduced below:

8. Also tendered as Exhibit P in the trial was a diagram showing the possible directional position but not the height of the sun (marked by an orange circle) at the time, date and location of the collision. The shaded area under the orange line beneath is the positon of the sun setting. ^[3] Exhibit P is reproduced below:

3. T 38.5-40.19.

9. In relation to Sequence 4, the Offender was the subject of a blood and urine test following the accident. ^[4] Those tests were the subject of a certificate by analyst under the 2013 Act which revealed the following drugs to be present:

   4. Sequence 4 only related to presence in the blood.

SAMPLE	DRUG IDENTIFIED
BLOOD (Preserved)	Delta-9-THC acid	< 0.002 mg/L
BLOOD (Preserved)	Nordiazepam	< 0.01 mg/L
URINE	Amphetamine	DETECTED
URINE	Methylamphetamine	DETECTED

10. Evidence from Dr Judith Perl indicated that the presence of the inactive metabolite delta-9-THC acid in the blood was an extremely low concentration and the absence of any active delta-9-tetrahydrocannabinol indicates that the Offender has not used cannabis in the recent past (not within the previous 24 hours) and given the delta-9-THC acid was inactive there was no signs suggestive of any effects due to cannabis. Dr Perl was of the opinion that there would have been no impairment at the time of the collision due to previous use of cannabis. Dr Perl further opined that nordiazepam was the primary metabolite (breakdown product) of diazepam and described it as a drug that is available under various brand names and which was a medication requiring a doctor’s prescription. She stated that given that there was no diazepam detected and the nordiazepam concentration was extremely low, the drug diazepam had most likely not been used within possibly 2-3 days and there would be no impairment due to the nordiazepam. Dr Perl further opined that methylamphetamine was metabolised partially to amphetamine. The detection of methylamphetamine and amphetamine in the urine of the Offender confirmed that he had used methylamphetamine but given the absence of those drugs in the blood, usage would have been more than 24 hours prior to the incident. Dr Perl stated that given the absence of methylamphetamine/amphetamine in the blood and the absence of any signs or symptoms suggests of methylamphetamine/amphetamine effects, she was of the opinion that the Offender would have no impairment due to his prior use of the drug.

Victim Impact Statement

11. Mr Cameron’s partner (Ms Julie Reynolds) provided a Victim Impact Statement. Within it, she describes the deceased as a wonderful, honest, kind, fun loving man who always did the right thing and loved and took great pride in his family. She informed the Court that the deceased had a loving family which included his three children, her own three children, eleven grandsons and one granddaughter.

12. Ms Reynolds stated that he didn’t deserve to be tragically killed while crossing on a pedestrian crossing with a green light. She describes knowing the road well. She is haunted by her partner’s face of total fright of when he knew the bus wouldn’t stop. She described seeing the video on the news and it affected her greatly and haunted her in her dreams and stopped her from sleeping. She described the deceased as the love of her life and being the happiest when they were together. Ms Reynolds described the death as having a profound effect on her physically, mentally and emotionally as the deceased was her love, joy, support, companion and chauffeur. She describes the impact on her of being left alone without the deceased’s companionship and how she lost her self-worth and depends on others for shopping and appointments. Ms Reynolds describes that she does not sleep well, lost all her dreams and that she is sad, lonely and anxious. She describes that when there is no love in the heart, there is no joy in living.

13. Regrettably this kind of tragedy and the impact described by Ms Reynolds is one that the Court sees in dealing with such matters. Nevertheless, it is important to be reminded of it. The consequences of this offence will be significant to all who value human life but particularly to those close to Mr Cameron. Despite the familiarity of the tragic consequences often flowing from such an accident, the community has not been so desensitised to such events as to accept them as an ordinary incident of modern life.

14. The Victim Impact Statement is taken into account in the way that the law provides. ^[5]

    5. Section 30E of the Crimes (Sentencing Procedure Act) 1999 (NSW) (the 1999 Act).

Objective Seriousness

Submissions

15. In assessing the objective seriousness of Sequence 2, the Crown submitted that the offending conduct falls at the upper level of objective seriousness for this offence for the following reasons:

1. The continued failure to keep a proper lookout. (That is the length of time being 1 minute and 13 seconds);

2. The time of day (7pm on a Sunday night in summer), and nature of the intersection;

3. The offender did not take adequate steps to make observations of any potential pedestrians crossing from the south-western corner of the intersection;

4. The failure to give way to the deceased, breaching regulation 62 of the Road Rules;

5. The continued failure to give way i.e stationary at the red light for 1 minute and 8 seconds;

6. The manner in which the offender commenced driving once the light turned green;

7. The Offender was in the process of turning the corner for 5 seconds before impacting the victim;

8. The Offender continued making a turn failing to keep a proper lookout, to give way at the crossing;

9. Driving in a manner where he was unable to stop if required; and,

10. The nature of the vehicle (being a large public bus). ^[6]

    6. Crown written submissions at [27].

16. The Defence submitted that whilst the Offender conceded the gravity of his negligence, that should be viewed in the context of a “perfect storm” of environmental and situational factors being:

1. The setting of the sun and the sudden impact of bright light on the windshield of the bus;

2. The extent of the shadowing on the streetscape from which the deceased emerged when crossing the road;

3. The interior design of the windshield of the bus including the metallic frame which further impeded the Offender’s view of the deceased prior to, and up and until, the point of collision (as evidenced in the internal vehicle/bus CCTV footage at the moment of the impact);

4. The sudden appearance of the deceased in the Offender’s field of vision at the extreme right-hand side of the windshield;

5. The deceased was not visible in the CCTV footage up and until that point in time, which was milliseconds before the collision;

6. The setting sun momentarily blinded the Offender milliseconds before impact;

7. The Offender had insufficient time to stop the forward momentum of the bus during the course of a right hand turn.

17. The Defence drew attention to what it described as “contributory negligence” said to comprise the speed at which the deceased entered into the intersection and his failure to look for oncoming traffic and the fact that various video recordings did not depict the deceased looking for oncoming traffic.

18. The Defence submitted that but for the fact of the collision, there was little by way of concrete, discreet facts that would elevate the degree of the Offender’s negligence to anything approaching the mid-range of objective seriousness. It submitted that the momentary inattention on the part of the Offender was not an adequate descriptor of his criminality and that it would be akin to “inadequate attention” to a foreseeable risk in the prevailing circumstances.

19. The Defence further submitted that the aetiology of the collision cannot be solely ascribed to the Offender’s acknowledged negligence. Rather, it was the perfect situational storm of a low, setting sun blinding the driver and the possible inattention of the deceased coupled with the negligence of the Offender.

20. In reply, the Crown submitted although the actions of the deceased cannot be a mitigating factor, the culpability of the deceased will usually be relevant to the assessment of the seriousness of the Offender’s conduct and therefore to the Offender’s culpability. ^[7] In this instance, the Crown submitted that there was no evidence capable of a finding that the deceased was in anyway culpable as he was entitled at law to adopt the relevant conduct and cross on the green pedestrian signal. There was no obligation on the deceased to give way to the Offender’s vehicle because of the relative positions of the deceased and the Offender’s vehicle at the time the lights turned green in that he is almost in front (on a slight angle) and it cannot be said whether or not the deceased looked in the direction of the bus. In any event, had the deceased not done so, that does not make him culpable. The Crown submitted that to the extent that the Offender was impeded by environmental factors, the Offender had an obligation to take steps to overcome them. ^[8]

    7. R v Janceski [2005] NSWCCA 288.

    8. Mitchell v R (2009) 52 MVR 488 at 491.

21. The Crown furthermore drew attention to the following aspect of the Offender’s evidence:

1. His concession that when he was stationary at the intersection he had time to check for any pedestrian that might have been coming from the north-western corner. ^[9] In this respect, the Offender stated “Probably, I don't know, halfway through the ‑ when I was there I'd glanced and, yeah”. He subsequently admitted that he was guessing. ^[10] He conceded that at the time he was impeded by the A frame but did nothing about it. ^[11]

   9. T 205.47-206.6.

   10. T 207.28.

   11. T 208.04.

2. The Offender conceded that at the time he was stationary looking in the direction of the south-western corner the sun was not a hindrance to his vision. ^[12] The Offender admitted that the sun and shadows weren’t in his eyes stopping him from seeing across the road. ^[13]

3. The Offender acknowledged that when the light turned green he did not check to see that it was safe to proceed before driving. ^[14]

4. The Offender acknowledged that as he was proceeding towards Pennant Hills Road in the manner that he was driving he would not have been able to stop if he saw someone cross the road. ^[15] Further, the Offender conceded that at the beginning of making the turn when he was at a stage of about 45 degrees, he was looking straight ahead on the road and he would not have been looking directly into the sun. ^[16]

Assessment

12. T 209.30.

13. T 210.01.

14. T 208.44-209.01.

15. T 217.41.

16. T 218.09.

22. In assessing the objective seriousness of Sequence 2, I bear in mind the absence of any prior planning as a mitigating factor pursuant to section 21A(3)(b) of the Crimes (Sentencing Procedure Act) 1999 (NSW) (the 1999 Act). However, that is inevitably the case with such offending.

23. The Offender was driving a large public bus. As a driver of what could be described as a heavy vehicle he had an obligation to other users of the roadway so as to ensure that he responded appropriately for any reason the driving conditions were compromised. ^[17]

    17. Mitchel v R (2009) 52 MVR 488 at 491.

24. I reject any suggestion that the deceased’s conduct was such as to reduce the culpability of the Offender. The deceased traversed a pedestrian crossing in an ordinary way. He had priority of passage and it was the Offender that had to heed his presence and allow him to pass in safety.

25. In the case of his own conduct, the Offender was stationary for a period accepted as being 1 minute and 8 seconds contemplating executing a right hand turn on a green light not a green arrow. I accept that in doing so he had to also account for all pedestrian and vehicular traffic at the intersection. However, this did not diminish his responsibility to take into account Mr Cameron’s presence at the south western corner of Pennant Hills Road. I accept that his ability to make observations of the deceased would have been affected by the shadowing on the corner and the fact that the deceased was stationary. However, had a proper lookout been made beyond the glance that the Offender described in his evidence, I am satisfied he should have noted Mr Cameron particularly in circumstances where the latter was wearing a striped shirt and holding a white bag. To the extent that the Offender’s view was obscured by the bus’ A frame he needed to adjust his position to overcome its impact.

26. Mr Grant Johnson (a road safety engineer called by the Defence at trial) gave evidence stating:

Once the bus driver started moving, or prepared to move, the first issue that came into play would have been the occlusion from the A pillar. As you move largely, as long as you maintained a path that was predominantly forward, that A pillar occlusion with the pedestrian coming towards him could remain in place. Once the bus turned sufficiently to the right, the A pillar with the bus will also move around and that will then potentially expose the pedestrian, and that is where the sun would start to become an issue potentially as well. ^[18]

18. T 228.28-35.

27. I accept this evidence. It is consistent with the Offender’s concession that the sun impacted on his vision at the point commencing the 45⁰ right hand turn. After reviewing the CCTV footage in Exhibit D from inside the bus, Mr Johnston stated that when Mr Cameron came within a shot of the bus cam, he was below the eye line of the Offender. In assessing the likely impact of the sun at that point, he stated that the Offender was looking forward not downwards. However, he added:

If you're looking directly at the sun without it being shielded it would be more difficult to see around than if you're sort of looking away from it or you can keep it out of the prominent part of the eye so I don't know if that answers your question or not but if you look directly at the sun that is worse than not looking directly at the sun. ^[19]

19. T 231.16-.20.

28. He then further added:

No but it's not zero when you look away from it if it's still within your area of optical area put it that way. ^[20]

20. T 231.24-.25.

29. I accept that there was occlusion from the positon of the A frame and the sun. Both of these factors presented challenges to the capacity to make observations but nonetheless they were matters that an ordinary prudent driver in the Offender’s positon needed to account for in his movements as he proceeded.

30. Yet, the Offender proceeded from a parked positon to execute the right hand turn in a continuous movement in a heavy vehicle without accounting for the inhibitions brought about by the circumstances described.

31. In assessing the objective seriousness, I do not accept that the matter is to be looked at solely from the point the Offender embarks on his movement from the stationary position. Clearly his capacity to make observations needs to be factored in the assessment.

32. This was a situation calling for great care, yet the Offender fell short of exercising it.

33. In Director of Public Prosecutions v Victoria Bhandari,^[21] Henson DCJ (sitting as Chief Magistrate) found somewhat similar offending falling in the upper end of objective seriousness. That case did not involve a public bus and nor did it involve the challenging environmental factors I have referred to.

    21. [2011] NSWLC 7.

34. Overall, I would regard the matter before this Court as falling around the mid-range of objective seriousness.

35. So far as the Sequence 4 is concerned, the consumption of any illicit substances by a driver of a motor vehicle particularly a public bus is a matter of concern. Multiple substances were involved and the residual quantities in the blood were low consistent with earlier consumption. Neither the charge nor the agreed facts reflect impact on the Offender’s driving. In the circumstances, this offending falls towards the lower end of objective seriousness.

Subjective circumstances

Plea of Guilty

36. The Crown acknowledges the plea of guilty by the Offender to sequence 2 (the back-up charge) and to sequence 4 (related charge). The Crown acknowledges that it rejected an offer made on behalf of the Offender to plead guilty to sequence 2 (and withdraw the offence to which the Offender was found not guilty).

37. In the circumstances, the Crown accepts that the Offender is entitled to a 25% discount.

38. In respect of Sequence 4, the Offender first entered a plea in this Court as earlier indicated, however, the circumstances were such that both parties accepted that a 25% discount should apply and I will proceed on this basis.

Criminal Antecedents

39. The Offender does have a prior criminal record being offences of a larceny nature and are 15 years prior to the current offences. The Crown concedes that those offences have very little relevance in respect of the current sentencing exercise.

40. The Offender’s traffic history indicates that he was licenced on 8 October 1998. His record reveals relatively less serious traffic infringements including:

1. 8 infringements for not wearing a seatbelt;

2. 3 speeding matters (one for exceeding the limit greater that 30km per hour);

3. 1 infringement for disobeying a traffic light;

4. 1 infringement for disobey turn sign at intersection;

5. 1 infringement for following too closely;

6. 1 infringement for using a handheld mobile; and

7. 1 infringement for negligent driving.

41. The traffic history is one punctuated by disobedience of the road rules although only three infringements are for speeding and the other instances are of differing character. The 8 infringements for not wearing a seat belt are matters going more to the Offender’s own safety.

42. Overall, no submissions were advanced by either party that the Offender was entitled to have his sentence mitigated on the basis of his criminal history or his traffic antecedents. I accept that this is so.

Remorse

43. The Sentence Assessment Report records that the Offender stated that he thinks about the impact that his actions have had upon the deceased’s family on a daily basis and that he has had suicidal thoughts as a result of the affect it has had on them. He described the incident as an accident. He acknowledged that there had been double green lights, however, he reported not having seen the deceased. He is noted as describing himself as feeling “destroyed” by the incident and that it has impacted on every aspect of his life and that he reported having flashbacks of what had occurred.

44. The aforesaid statements in the Sentence Assessment Report to which I have referred are consistent with the evidence at trial particular from Mr Mathew Boreland and Ms Norazlin Nor who in examination in chief stated that they saw the deceased in a distressed state expressing concern for the person he had just struck. ^[22]

    22. T 109.30-110.5 and T 116.35-.39.

45. Overall, I am satisfied by his plea and expressions, the Offender is remorseful within the terms of section 21A(3)(i) of the 1999 Act.

Mental Health

46. The Sentence Assessment Report also reports that the author was provided with a copy of a Mental Health Care Plan dated 28 April 2021 which indicated that the Offender suffers from Post-Traumatic Stress Disorder following the motor vehicle accident as well as depression and anxiety.

47. The Sentence Assessment Report noted that at the time of writing the report the Offender had not commenced treatment, however, enquiries with the psychologist indicated that he had an appointment scheduled for 16 June 2021.

48. The Offender submitted that the Court should consider the impact of the accident on his mental health and that this arguably contributed to the deterioration of his relationship with his partner from who he is estranged.

49. I am prepared to accept that the accident as a traumatic event has had some impact on the Offender. That is frequently the case with such offending. However, beyond that in the absence of substantive evidence to support it, I am unable to find the impact the Defence submits.

Prospects of Rehabilitation and the Likelihood of re-offending

50. The Sentence Assessment Report indicates that the Offender is afforded the support of both his parents describing his relationship with his step-father as positive and his relationship with his mother as somewhat strained due to issues related to his formative years. It notes that he has been in an on/off relationship with his former partner for approximately 14 years prior to separating in September 2020 due to the volatility within the relationship. There are two children aged five and three years as a result of their union. However, the Offender has not had contact with them since the separation due to pending Family Court matters.

51. Following the aforementioned offences, the Offender is described as working sporadically up until the middle of 2020 supplementing his income with Centrelink payments. The report notes that he is currently unemployed and in receipt of Centrelink Job Seeker payments.

52. On 15 March 2021, the Offender was sentenced in relation to multiple domestic violence related offences which postdate the offending in respect of which he is to be sentenced. On 17 April 2021, the Offender was released on parole and a Conditional Release Order pursuant to section 20(1)(B) of the Crimes Act 1914 (Cth).

53. The Crown notes that the Offender has been assessed at medium risk of re-offending noting the commission of the offences since the instant offence. Moreover, however the Crown concedes that in respect of the further serious driving offences, it cannot be said that the Offender will reoffend or does not have good prospects in relation to this type of offending in light of the nature of the subsequent matters. The Crown submitted that any potential for reoffending was difficult to comment on and is also somewhat unrelated to specific and general deterrence required in the current sentencing exercise.

54. The Defence submitted that there was an unlikelihood of offending in a similar manner to Sequence 4.

55. Overall, I accept that the offences are such that the Offender can be described as having reasonable prospects of rehabilitation. There is a lack of information in relation to the domestic violence matters and, what if any, relationship it could have had to his offending for which he is to be sentenced.

Sentence

56. In respect of Sequence 2 the Crown submitted that considering all possible alternatives no penalty other than imprisonment is appropriate within the terms of section 5(1) of the 1999 Act. The Defence did not concede that the section 5(1) threshold had been met and submitted that the case would be an appropriate one for the imposition of a Community Correction Order albeit of considerable length.

57. I do not accept the Defence position.

58. I have had regard to a series of cases including: Director of Public Prosecutions v Bhandari, Director of Public Prosecutions v Markovski,^[23] Director of Public Prosecutions (NSW) v Pelletier,^[24] Director of Public Prosecutions (NSW) v Mansouri,^[25] R v Fageer. ^[26] Comparable cases can provide guidance as to what is the appropriate end result however, in the end, all sentencing must be individual to this offending and the Offender’s subjective case.

    23. [2011] NSWLC 31.

    24. [2014] NSWLC 9.

    25. [2016] NSWLC 17.

    26. [2017] NSWLC 18.

59. Nonetheless, I adopt the principles referred to by O’Brien DCM (as his Honour then was) in Mansouri following the decision of the Court of Criminal Appeal in Bonsu v R ^[27] constituted by Howie J sitting alone. As O’Brien DCM there noted, the harm done to the deceased’s family is an aspect of the harm done to the whole community and it is appropriate to take that harm into account in determining sentence. ^[28]

    27. [2009] NSWCCA 316.

    28. Director of Public Prosecutions (NSW) v Mansouri [2016] NSWLC 17 at [18].

60. In sentencing the Offender, I bear in mind the maximum penalty for each sequence. The Offender needs to be punished, he needs to be made accountable, his conduct denounced and the harm suffered to the victim and the community needs to be recognised. The sentence also needs to provide for general deterrence. I do not see a particular need for emphasis on specific deterrence or protection of the community from the Offender.

61. Taking into account the objective and subjective matters described, I am satisfied that considering all possible alternatives, no penalty other that imprisonment is appropriate for sequence 2. To do otherwise would in my view not meet the purposes of sentencing in section 3A of the 1999 Act.

62. Overall, but for the plea of guilty, I would have imposed a sentence on the Offender of 12 months imprisonment for Sequence 2. In light of the plea, I would impose a sentence of 9 months imprisonment.

63. Accordingly, the Offender is convicted in respect of Sequence 2 and there being no other appropriate penalty, and taking into account the plea of guilty, he is sentenced to a period of 9 months imprisonment.

64. In respect of Sequence 2, the Offender is disqualified from driving for the statutory period of three years pursuant to the 2013Act but to have a credit for any time served by way of suspension.

65. That give rise to the consideration of how the sentence in Sequence 2 is to be served and whether it is able to be served in the community by way of an Intensive Correction Order. Whilst I have a Sentence Assessment Report, I will require an assessment as to suitability for a home detention condition. Following that being obtained, I will be in a position to finalise consideration of the matters set out in section 66 of the 1999 Act.

66. Noting the requirements in s 17D(2) of the 1999 Act, I will defer further consideration of that matter until 20 August 2021 pursuant to s 17C(1)(b)(ii) of the 1999 Act.

67. Pursuant to section 17C(2)(a) of the 1999 Act, the execution of the sentence in Sequence 2 is stayed and the Offender’s bail is to continue.

68. I order a further Sentence Assessment Report as to the suitability to serve an Intensive Corrections Order with a home detention condition.

69. In respect of sequence 4, but for the plea of guilty, I would have imposed a sentence of a fine of $400. However in light of the plea, the Offender is convicted and fined the sum of $300.

70. In respect of Sequence 4, the Offender is also disqualified from driving for the statutory period of 6 months pursuant to the 2013Act but to have a credit for any time served by way of suspension.

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Endnotes

Amendments

03 August 2021 - Typographical amendments

Decision last updated: 03 August 2021