R v Mohamed Abbasher Fageer

Local Court

New South Wales

Medium Neutral Citation:	R v Mohamed Abbasher Fageer [2017] NSWLC 18
Hearing dates:	5 October 2017
Decision date:	14 November 2017
Jurisdiction:	Criminal
Before:	Judge Graeme Henson, Chief Magistrate
Decision:	See [23] and [26]
Catchwords:	CRIMINAL LAW – Sentencing – particular offences – dangerous driving occasioning death – failure to keep a proper lookout – negligence more than momentary inattention - factors relevant to sentencing – degree of moral culpability – impact on community and victim – need for general deterrence- prior good character - plea of guilty – remorse – sentence other than imprisonment appropriate – suitable for community service
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A(g), 5, 21A(3) Road Transport Act 2013 (NSW) ss117(1)(a), 205(2)(d), 225
Cases Cited:	Bonsu v R [2009] NSWCCA 316 DPP v Pelletier [2014] NSWLC 9 Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303 R v Borkowski [2009] NSWCCA 102 R v Pyritz (1998) 29 MVR 90 R v Foster (2001) 33 MVR 565 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 R v Youkhana [2005] NSWCCA 231
Category:	Sentence
Parties:	Director of Public Prosecutors (prosecution) Mohamed Abbasher Fageern (defendant)
Representation:	E Curran (for the prosecution) J Sutton (for the defendant)
File Number(s):	2016/00386928

Judgment

1. On 23 December 2016 Police issued a Court Attendance Notice against the offender for the offences of Dangerous Driving Occasioning Death and Negligent Driving Occasioning Death. Given the more serious offence is one that can only be dealt with on indictment, conduct of the proceedings was assumed by the Office of the Director of Public Prosecutions (the DPP). In accordance with procedures established under the Court’s Practice Note, a period of time was allowed following service of the brief to enable negotiations to take place between the prosecution and defence.

2. On 27 July 2017 the DPP withdrew the strictly indictable charge. The defendant entered a plea of guilty to the lesser summary charge of Negligent Driving Occasioning Death. Section 117(1)(a) of the Road Transport Act 2013 (NSW) (the RT Act) provides that the maximum penalty for this offence is 18 months imprisonment and/or a fine of up to $3300. Upon conviction Section 205(2)(d) provides for an automatic disqualification of license for 3 years with a mandatory minimum period of 12 months.

3. Tragedy comes in many forms. On occasions it is shared inasmuch as the consequences affecting those regarded by the law as responsible as well as those who have to bear the outcome more acutely and do so long after the shock of the event has passed. For victims of tragedy, beyond acknowledging the impact of the crime in a legal and human sense the legal system can do very little. The pity of this occurs when tragedy follows a breach of the law in the simplest of terms. Absent of malice, a contradiction…