R v Hoskins

[2019] NSWDC 278

District Court

New South Wales

Medium Neutral Citation:

R v Hoskins [2019] NSWDC 278

Hearing dates:

31 May 2019

Date of orders:

14 June 2019

Decision date:

14 June 2019

Jurisdiction:

Civil

Before:

Weber SC DCJ

Decision:

1 The offender is sentenced to a term of imprisonment of 3 years, with a non-parole period of 1 year and 6 months, with such term of imprisonment to commence on 7 September 2018.

2 The offender is disqualified from holding a drivers licence for:

(a) 12 months, in respect to the offence under section 52AB(1) of the Crimes Act 1900 (NSW); and

(b) 6 months, in respect to the offence under section 54(3)(a) of the Road Transport Act 2013 (NSW),

With such driving disqualification periods to operate concurrently.

Catchwords:

CRIME – Driving offences – Failure to stop and assist after vehicle impact causing death – where offender’s licence was suspended at time of offence – where offender drove through red light shortly after impact– where offender knew that victim had died – where no suggestion that offender’s driving played any part in causing the fatality

  SENTENCING – where offence in the mid-range of objective seriousness – aggravating and mitigating factors – where offender unlikely to reoffend – where offender has good prospects of rehabilitation – where offender entered early guilty pleas – where imprisonment necessary – where lengthy periods of disqualification and pecuniary penalty not warranted –multiple offences – accumulation, concurrency and totality

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Road Rules 2014 (NSW)
Road Transport (Driver Licensing) Regulation 2017 (NSW)
Road Transport Act 2013 (NSW)

Cases Cited:

Adam v R [2014] NSWCCA 265
R v Pullen [2018] NSWCCA 264

Category:

Sentence

Parties:

Regina (Crown)
Scott Hoskins (Offender)

Representation:

Counsel:
Mr K. Prince (Crown)

  Solicitors:
Mr G. Morrison (Offender)

File Number(s):

2018/00275416

Publication restriction:

Nil

Judgment

1. The offender comes before the Court having pleaded guilty to a charge of failing to stop and assist after a motor vehicle impact causing death, pursuant to section 52AB(1) of the Crimes Act 1900 (NSW) (the “Principal Offence”).

2. The maximum penalty for the offence is 10 years imprisonment. There is no standard non-parole period.

3. He is also charged with two further counts being:

1. proceeding through a red traffic light (section 59(1) Road Rules 2014 (NSW)); and

2. drive motor vehicle while licence is suspended (section 54(3)(a) Road Transport Act 2013 (NSW)).

4. The offender has also entered a plea of guilty to these offences.

5. The offences occurred on 6 September 2018. The plea was entered in the Local Court on 12 March 2019.

6. The fatal accident occurred on 6 September 2018. The offender presented himself to Police on the day following the accident, namely 7 September 2018. He was refused bail, and has been in custody since that time.

The Principal Offence

7. Section 52AB(1) is in the following terms:

(1) A person is guilty of an offence if:

(a) a vehicle being driven by the person is involved in an impact occasioning the death of another person, and

(b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and

(c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give.

Maximum penalty: imprisonment for 10 years.

Agreed Facts

8. The matter proceeded by way of a Statement of Agreed Facts. As these Agreed Facts are in short compass, I shall set them out in full.

1. At about 2.15pm on Thursday 6 September 2018, 20 year old Ms Yan Hao (the deceased) left her apartment… [in] Waterloo. She began to cross Lachlan Street near the intersection of Sam Sing Street.

2. At the same time, 21 year old Scott Hoskins (the offender) was driving a white 2017 model Kia Rio hatchback with NSW registration…in an easterly direction along Lachlan Street. The vehicle had been hired by the offender’s partner on 30 August 2018. The offender had a male passenger in his vehicle at the time.

3. As the offender drove along Lachlan Street, the deceased stepped out on to Lachlan Street. The car driven by the offender impacted with the deceased. There is no physical evidence that the offender perceived or reacted to the deceased’s presence on the road prior to the impact.

4. The offender did not stop after the collision and was observed by witnesses to speed from the scene along Lachlan Street before turning left in to Gadigal Avenue, Waterloo.

5. A CCTV camera on Gadigal Avenue captured the offender’s vehicle driving through a red traffic light after the collision.

6. Emergency services attended the scene and the deceased was taken to hospital. She passed away at about 4.20pm that afternoon.

7. The offender’s vehicle received damage to the front offside (gutter side) headlight, bonnet, and base of the windscreen.

8. Police were able to identify the registration of the vehicle from CCTV footage, however CCTV footage did not capture the actual point of impact.

9. During the afternoon of 7 September 2018, the offender attended Wollongong Police Station and admitted to driving the vehicle involved in the collision with the deceased.

10. The offender participated in an electronically recorded interview.

11. During the interview, the offender admitted that he knew that he had collided with the victim and that she had died.

12. He said that he thought the person was dead and decided to drive from the scene because he had no licence and knew he shouldn’t be driving.

13. The offender told Police that the deceased ran out in front of him and he was not able to stop in time.

14. The offender’s drivers licence was suspended at the time.

15. A report has been prepared by a NSW Police Force officer with experience in crash investigations.

16. He formed the opinion based on all of the available evidence that the offender’s vehicle travelled between 16 and 21 metres for 1.58 seconds at between 36 and 48 kilometres per hour after the deceased stepped on to the road.

9. The principal offence is a serious one for which the Legislature has seen fit to set a maximum penalty of 10 years imprisonment. The purpose of the offence was described by Harrison J in the following way in R v Pullen [2018] NSWCCA 264:

[49] The purpose of the offences under s 52AB is twofold. First, it emphasises the need for drivers involved in serious motor vehicle accidents to stop and provide assistance to anyone who is injured by at least contacting emergency services. Secondly, it seeks to deter people from impeding a police investigation into an accident. If a driver in a serious motor vehicle accident flees, it may hinder police in their ability to collect the necessary evidence to discover the cause of the accident and to determine who is at fault as well as, if necessary, to lay charges against the driver or to issue fines: see Adam v R at [22].

10. I consider that this offence is at the mid-range of the scale of objective seriousness for the following reasons.

11. The offence applies to those offenders who both know that their vehicle has been involved in occasioning the death of another person, and those who ought reasonably to know that fact.

12. In the present case, the offender not only knew that he had collided with a person, but knew that she had died (Agreed Facts, [11]). In addition, the offender did not flee the scene of the fatal accident in blind panic, but rather did so on a more calculated basis. Namely, that he was concerned that he was driving unlicensed (Agreed Facts, [12]).

13. Also relevant to the assessment of the objective seriousness of the offence, is the fact that there is no suggestion that the manner of the offender’s driving played any part in causing the fatality (Adam v R [2014] NSWCCA 265).

14. The Crown submitted that these matters set forth in paragraphs 9 and 10 of the Agreed Facts, should be taken into account not only in assessing the objective seriousness of the offence, but also in assessing the offender’s moral culpability. I agree with this submission.

Moral culpability of the offender

15. The offender submitted that the offender's disadvantaged upbringing was relevant to his moral culpability and thus to sentencing. In that regard, the offender relied on an expert report dated 23 May 2019 of Kris North, a forensic psychologist. This report was admitted without objection.

16. In her report, Ms North gives evidence of the offender’s troubled up bringing which involved his mother having a problem with drug use, and there being a constant presence of domestic violence between the offender’s mother and his stepfather in the family home.

17. The offender was the victim of physical and psychological abuse perpetrated by his stepfather.

18. I accept the disadvantaged upbringing which the offender has experienced, but do not see that upbringing as having played any part in the commission of the Principal Offence, and thus I do not see it as having any bearing on his moral culpability. It was submitted on his behalf that the present offence could be explained by some sort of “flight” response as a result of his upbringing, that is, that his moral culpability and community responsibility has not developed to the same extent as that of a person raised in a law-abiding environment.

19. I do not accept that that is the case. I take that view for two reasons, being:

1. Ms North’s report demonstrates the offender has made considerable and commendable steps towards overcoming his childhood disadvantage, and thus I do not see it playing any part in the commission of this offence; and

2. in relation to the possibility of the offender's flight from the accident scene being attributable to the offender’s upbringing, the Agreed Facts in fact demonstrate that he decided to drive from the scene because he had lost his licence and knew that he should not be driving (Agreed Facts, [12]).

20. That is not to say that I consider the admirable efforts of the offender to overcome his disadvantaged upbringing, as being irrelevant. I believe that it is relevant to the question of both his prospects of rehabilitation and the risk of him reoffending, to which I shall return.

The Offender

21. The offender is aged 22. His mother is of Aboriginal descent, and his father is of Maori descent. The offender’s early childhood was characterised by frequent moving, and thus he told Ms North that he attended up to 10 different schools. He completed the last two years of his education at a high school in Wollongong, and obtained his Higher School Certificate (HSC) in 2014. After completing his HSC, the offender completed a four year apprenticeship as a plumber, finishing in 2012.

22. The offender began working as a subcontracting plumber and was so employed at the time of his offence.

23. The offender has been in a serious relationship with his fiancée for the last six years. They met in high school, and the offender is close to his partner’s family. The offender and his partner have a two-year-old son.

Aggravating and Mitigating Factors pursuant to section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)

24. The Legislature has legislated a non-exhaustive list of aggravating and mitigating factors to be taken into account in determining an appropriate sentence. These factors largely mirror the common law.

25. In respect to the offender, it was submitted that there were in existence no aggravating factors pursuant to section 21A. The Crown did not put this in issue, and I accept that it is the case.

26. The offender submitted that the following were mitigating factors:

1. The offending was not planned (section 21A(3)(b)).

2. The offender is unlikely to re-offend (section 21A(3)(g)).

3. The offender has good prospects of rehabilitation (section 21A(3)(h)).

4. The offender has pleaded guilty (section 21A(3)(k)).

The offending was not planned

27. I do not believe that this is a mitigating factor which can be taken into account as it must, by definition, be a factor present in virtually every offence of this nature.

The offender is unlikely to reoffend

28. I accept that the offender is unlikely to reoffend. The Crown did not wish to be heard to the contrary.

The offender has good prospects of rehabilitation

29. In this regard, the offender pointed to the fact that at the time of his arrest, he was in full-time employment, and that while he was estranged from his partner at the time of the offences, they have now reconciled.

30. The offender also pointed to the fact that the couple have a child and that the offender is a qualified plumber. He submitted that in the long-term, there is no reason why he will not regain employment as a plumber, although noting that the mandatory loss of his drivers licence will by its nature make the conduct of his trade as a plumber somewhat more difficult.

31. The offender submitted that he continued to have the support of his partner and his partner's mother.

32. I accept each of these propositions, and again did not understand the Crown to cavil with them. Indeed, the Crown was supportive of the proposition that the offender’s prospects of rehabilitation were good.

Guilty plea

33. The offender pleaded guilty following a case conference. The offender should be given a reduction in his sentence of 25% for the utilitarian value of the early plea of guilty. I will not otherwise take this plea of guilty into account as a mitigating factor (section 21A (3)(k)), as to do so would be to double count this factor.

The offender’s criminal record

34. The offender’s criminal and traffic record discloses what are overwhelmingly traffic matters. Indeed, it was the combination of traffic matters, and their resultant demerit points, which led to his licence being suspended at the time of the Principal Offence.

35. I do not see that the offender’s criminal/traffic record has any bearing on the issue of sentence before me.

Should the offender serve a term of imprisonment in addition to the time already served?

36. In his submissions, the accused urged upon me that it be appropriate to deal with the matter by the imposition of an intensive correction order (“ICO”), pursuant to Part 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Crimes Sentencing Act”). The offender submitted that the present case is one in which an ICO was an outcome open to the Court, and would fall within a legitimate sentencing discretion. He drew my attention to the decision of the Court of Criminal Appeal in R v Pullen [2018] NSWCCA 264, where such an order was made in respect of an offence under section 52AB(2).

37. The Crown correctly submitted that the offence to which the accused has pleaded guilty is a more serious offence, that is to say, an offence pursuant to 52AB(1), which carries a maximum term of imprisonment of 10 years compared to that of seven years for the offence pursuant to 52AB(2).

38. The offender submits that an ICO would be appropriate having regard to his limited prior criminal history, his need for ongoing community support and the reality that a further custodial environment is likely to be counter-productive to achieve any worthwhile benefit.

39. The Crown did not submit that, as a matter of law, an ICO was not available to me as a sentencing option, but rather submits that given the seriousness of the offence reflected in the maximum term of imprisonment of 10 years, together with the circumstances in which the offence has occurred (to which I have earlier referred), the only appropriate sentence is a sentence of imprisonment.

40. I agree with the Crown’s submission and have come to the view that it is necessary to imprison the offender, having considered all possible alternatives, and having concluded, following that consideration, that no other penalty other than imprisonment is so appropriate (section 5 of the Crimes Sentencing Act)..

41. I note in that regard, that the purposes for which a term of imprisonment on the offender might be imposed are as follows (section 3A of the Crimes Sentencing Act):

1. to ensure that the offender is adequately punished for the offence;

2. to prevent crime by deterring the offender and other persons from committing similar offences;

3. to protect the community from the offender;

4. to promote the rehabilitation of the offender;

5. to make the offender accountable for his or her actions;

6. to denounce the conduct of the offender; and

7. to recognise the harm done to the victim of the crime and the community.

42. I have formed the view that a term of imprisonment is necessary for the following reasons:

1. to ensure that the offender is adequately punished for the offence;

2. to prevent the crime by deterring both the offender and other persons in the community from committing similar offences;

3. to make the offender accountable for his actions;

4. to denounce the conduct of the offender;

5. to recognise the harm done to the victims of the crime in the community, especially the deceased's grieving relatives and friends; and

6. as general deterrence and denunciation are important sentencing considerations in relation to the offence (R v Pullen [2018] NSWCCA 264 at [52]).

43. Pursuant to the provisions of section 44(1) of the Crimes Sentencing Act, in sentencing the offender to a term of imprisonment, I am first required to set a non-parole period for sentence.

44. Pursuant to section 44(2), the balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the Court decides there are special circumstances for it being more. The offender submitted that it is appropriate for the Court to conclude that there were special circumstances justifying the exercise of discretion pursuant to section 44(2). The Crown accepted that this is the case.

45. I have concluded that it is appropriate to exercise the discretion residing in the Court pursuant to section 44(2) in this case, for the following reasons:

1. the offender’s age;

2. the offender’s prospects of rehabilitation; and

3. the low risk of the offender reoffending.

46. I have come to the conclusion that the offender should be imprisoned with a head sentence of 4 years, to which a 25% discount should be applied to reflect the utilitarian value of his early guilty plea, thus a 3 year head sentence.

47. Having applied a reduction in non-parole period pursuant to the discretion which the Court possesses pursuant to section 44(2), I set the non-parole period at 1 year and 6 months. The sentence is to commence on 7 September 2018, the date of the offender’s incarceration.

Licence Disqualification and Pecuniary Penalties

48. The offence of proceeding through a red traffic light (other than at toll booths or in school zones) carries with it a penalty of 3 demerit points and/or a fine of up to 20 penalty units, which is currently $2,200: (section 59(1) - Road Rules 2014 (NSW); section 17 - Crimes (Sentencing Procedure) Act 1999 (NSW); Schedule 1 - Road Transport (Driver Licensing) Regulation 2017 (NSW)).

49. With respect to a second or subsequent offence of driving a motor vehicle with a suspended licence, aside from imprisonment, the legislative provisions provide for a minimum period of licence disqualification of 6 months, a default disqualification period of 12 months, and/or a fine of up to 50 penalty units, currently $5,500: (section 54(3)(a), 205A - Road Transport Act 2013 (NSW)).

50. Pursuant to the provisions of section 205A(1)(b) of the Road Transport Act 2013 (NSW), the Court is entitled to vary the disqualification period for such a suspended licence offence, provided such period is not shorter than the minimum period of disqualification; in this case, 6 months.

51. In addition to the red traffic light and suspended licence offences referred to above (together, the “Driving Offences”), the Primary Offence (as it is the offender’s first “major offence”) carries with it an automatic licence disqualification period of 3 years. This disqualification period may be varied by the Court, provided such period is not shorter than 12 months (section 205(2)(d) – Road Transport Act 2013 (NSW)).

48. In assessing the licence disqualification period and whether any pecuniary penalty should be imposed on the offender, I consider that principles of totality lead to the conclusion that it is appropriate to consider the Primary Offence and the Driving Offences as being a single course of criminal conduct. I believe that this approach is the appropriate course as:

1. the fact that the offender was driving unlicensed was a key factor in his decision to flee the accident, and thus commit the Principal Offence; and

2. the red light offence was in turn the product of that same decision.

53. Having found that the offender is unlikely to reoffend, and has good prospects of rehabilitation, I consider that it would not be consistent with the advancement of these factors if the offender was subject to a lengthy period of disqualification, or had imposed on him a heavy fine.

54. As I have indicated, the offender is a qualified plumber, and as such, the disqualification of his licence is a factor which will tend to militate against him recommencing his trade upon his release. Similarly, a heavy fine would lead to a situation where, on his immediate release from custody, the offender may well be both unemployed and in debt. I do not believe that this is an advisable situation, being as it is, inconsistent with the aim of the Court to assist in his rehabilitation.

55. Accordingly, I have come to the conclusion that the offender should be disqualified from driving for 12 months, being the minimum disqualification period for the Primary Offence: (section 205(2)(d) – Road Transport Act 2013 (NSW)). For the offence of driving with a suspended licence, the offender should be sentenced to a period of drivers licence disqualification of 6 months, which period of disqualification is to be concurrent with the disqualification for the Principal Offence.

56. Pursuant to section 206A of the Road Transport Act 2013 (NSW), this period of disqualification is extended by the time that the offender is in prison. The effect of this provision therefore is that the offender’s 12 month disqualification period will begin to run once he is released from custody.

57. No pecuniary penalty should be imposed on the offender.

Orders

58. Scott Hoskins:

1. In respect of the offence pursuant to section 52AB(1) of the Crimes Act 1900 (NSW), you are convicted and are sentenced to a term of imprisonment of 3 years, with a non-parole period of 1 year and 6 months, such term of imprisonment to commence on 7 September 2018. The non-parole period will expire on 6 March 2020.

2. In respect of the offences under section 59(1) of the Road Rules 2014 (NSW) and section 54(3)(a) of the Road Transport Act 2013 (NSW), you are convicted under section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

3. I order that you be disqualified from holding a drivers licence for:

1. 12 months, in respect to the offence under section 52AB(1) of the Crimes Act 1900 (NSW); and

2. 6 months, in respect to the offence under section 54(3)(a) of the Road Transport Act 2013 (NSW),

3. With such driving disqualification periods to operate concurrently.

**********

Decision last updated: 24 June 2019