R v Schilder (No 2)

[2013] NSWDC 24

District Court

New South Wales

Medium Neutral Citation:

R v Schilder (No 2) [2013] NSWDC 24

Hearing dates:

24 January 2013

Decision date:

24 January 2013

Before:

Neilson DCJ

Decision:

Dangerous driving occasioning death

Sentenced to 3 years imprisonment with a non-parole period of 1 year and 8 months.

Finding of special circumstances.

Dangerous driving occasioning grievous bodily harm

Sentenced to 2 years and 3 months imprisonment with a non-parole period of 1 year and 3 months.

Finding of special circumstances.

Sentences partially accumulated, with a total head sentence of 4 years and a total non-parole period of 2 years and 8 months.

Catchwords:

CRIMINAL LAW - sentence - dangerous driving occasinoing death - dangerous driving occasioning grievous bodily harm - Offender suffered complex partial epileptic seizure leading to collision - Offender previously involved in motor accidents caused by his epilepsy - Offender lied to psychologist and RTA to obtain renewal of licence - Offender was sleep deprived - Offender suffering from intellectual disability of mild severity - Prior good character - Extra-curial punishment - Delay - Early plea of guilty - Genuine remorse and contrition - Potential hardship in custody

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 s 21A(2)

Cases Cited:

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Gillett v R [2006] NSWCCA 370
R v Whyte [2002] NSWCCA 343

Category:

Sentence

Parties:

Regina (Crown)
Daniel Gordon Schilder (Offender)

Representation:

Ms K Ratcliffe (Crown)
Mr P Pearsall (Offender)
Ms L Cocca (Crown)
Ms S Foggo (Offender)

File Number(s):

2011/055324

Judgment

1. HIS HONOUR: Daniel Gordon Schilder stands for sentence on two charges. Yesterday I delivered a judgment that is sixty-eight pages long. The issue which had been left for my determination by the parties was whether the offender was guilty or not guilty of the crimes of aggravated dangerous driving causing death and aggravated dangerous driving causing grievous bodily harm.

1. The circumstance of aggravation which the Crown alleged was that at the time the vehicle that the offender was driving collided with the vehicle being driven by the late Timothy Ioannou, the offender was driving at a speed that exceeded by more than forty-five kilometres per hour the speed limit applicable to the length of road being travelled. The applicable speed limit for the length of road in question was 70km/h. Accordingly, the Crown had the burden of proving beyond reasonable doubt that the offender was driving at more than 115km/h. The Crown sought to establish such a speed immediately prior to the moment of impact and not immediately prior to when the offender lost control of his vehicle. It is common ground that the offender was suffering from a partial complex epileptic seizure. That seizure occurred some distance, about 270 metres, prior to the point of impact.

1. For reasons that I published, I was not persuaded beyond reasonable doubt that at the moment of impact the accused was driving at more than 115km/h. The evidence raised a reasonable possibility that the accused was driving…