R v Sleiman (No 2)

[2022] NSWDC 158

District Court

New South Wales

Medium Neutral Citation:

R v Sleiman (No 2) [2022] NSWDC 158

Hearing dates:

29 April 2022, 13 May 2022

Date of orders:

13 May 2022

Decision date:

13 May 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Dangerous driving occ death-drive manner dangerous: Sentenced to a term of imprisonment of 3 years 6 months. Non parole period of 2 years.

Fail to stop & assist after vehicle impact causing death: Community Correction Order for 2 years.

For orders see [93]-[107]

.

Catchwords:

CRIME - Drive manner dangerous causing death - fail to give assistance after vehicle impact

SENTENCING - Relevant factors on sentence - facilitation of administration of justice - late guilty plea – impact of EAPG negotiations - related traffic offences – young offender - no prior convictions - remorse - possible intellectual disability - application of Whyte guideline- is an ICO available – moral culpability - impact of imprisonment – fulltime custody required for a drive manner dangerous

Legislation Cited:

Crimes Act1900

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986(NSW)

Road Rules 2014

Road Transport (Driver Licencing) Regulation 2017

Cases Cited:

Anderson v R (1981) VR 155

Barbaro v The Queen [ (2014) 253 CLR 58

Blackman & Walters [2001] NSWCCA 121

BP v R [2010] NSWCCA 159

Clarke-Jeffries v R [2019] NSWCCA 56

DPP v De LaRosa [2010] NSWCCA 195

Elphick v R [2021] NSWCCA 167

Geagea v R [2020] NSWCCA 350

Hili v The Queen (2010) 242 CLR 520

Hoskins v R [2020] NSWCCA 18

Howard v R [2019] NSWCCA 109

KT v R [2008] NSWCCA 51

LeggevR [2007] NSWCCA 244

Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120

Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294

R v Allpass (1993) 72 A Crim R 561

R v Daetz [2003] NSWCCA 316

R v Dodd (1991) 57 A Crim R 349

R v Errington (2005) 157 A Crim R 553

R v Herring (1956) 73 WN (NSW) 203

R v McKeown [2013] NSWDC 22

R v Musumeci NSWCCA, unreported, 30/10/97

R v Previtera (1997) 94 A Crim R 76

R v Pullen [2018] NSWCCA 264

R vShashati [2018] NSWCCA 167

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v Sleiman [2022] NSWDC 41

R v Smith [2016] NSWCCA 75

Rv Smith (1997) 95 A Crim R 373

R vTuala [2015] NSWCCA 8

R v Tzanis [2005] NSWCCA 274

Ryan v The Queen (2001) 206 CLR 267

The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550

Whyte v R [2002] NSWCCA 343; (2002) 55 NSWLR 252

R v Windle [2012] NSWCCA 222

WW v R [2012] NSWCCA 165

Texts Cited:

NSW Legislative Assembly, Parliamentary Debates (Hansard), 21 September 2005 at 18124.e

Category:

Sentence

Parties:

Mohsen Sleiman (the accused)
Director of Public Prosecutions

Representation:

Counsel:
Mr R Bonnici (for the accused)
Ms N Keay, Deputy Senior Crown Prosecutor

Solicitors:
Vision Legal (for the accused)

File Number(s):

2020/00168026

SENTENCE

Introduction

1. On the 25 April 2021, a Nissan Silvia 200SX driven by Mohsen Sleiman left the Lady Wakehurst Drive in the Royal National Park, south of Sydney. It hit a large tree. As a result of that impact, the front seat passenger, Emrah Nokic, died.

2. After the impact Sleiman checked on his friend, who was still in the passenger seat. He appeared dead. Sleiman did not call Emergency Services. He did however use his mobile phone to take images of the crashed car and to ring another friend. About 10 minutes after the impact Emergency Services were called by one those who stopped to assist. Ambulance and police arrived another 10 minutes later. Mr Nokic was dead.

3. Police charged Sleiman with several offences. On 21 March 2022, at Wollongong District Court, Sleiman entered a guilty plea to Count 1 on an indictment:

That Mohsen Sleiman, on 25 April 2021, at Lillyvale NSW, did drive a vehicle namely DF S072, when the vehicle was involved in an impact occasioning the death of Emrah Nokic and at the time of the impact Mohsen Sleiman was driving the vehicle in a manner dangerous to another person: s 52 A(1)(c) Crimes Act 1900.

4. He said he was not guilty of Count 2:

That Mohsen Sleiman on 25 April 2021 at Lillyvale NSW, did drive a vehicle, namely DF S072, when the vehicle was involved in an impact and which occasioned the death of Emrah Nokic and Mr Sleiman knew, or ought reasonably to have known, that the vehicle was involved in such an impact occasioning the death of Emrah Nokic and Mr Sleiman failed to stop and give any assistance that may have been necessary and was in Mr Sleiman’s power to give: s 52 AB(1) Crimes Act 1900.

5. Sleiman elected to be tried by judge alone. After a short trial I found him guilty of Count 2. In the same proceedings I also made factual findings relating to his culpability: R v Sleiman [2022] NSWDC 41.

6. In the Local Court Sleiman also pleaded guilty to two related offences listed on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW):

1. Not keep left of a dividing line: r132(2) Road Rules 2014, maximum penalty a $2,200 fine.

2. Not comply P1/P2 high performance vehicle restriction: cl 119(1) Road Transport (Driver Licencing) Regulation 2017, maximum penalty a $2,200 fine.

The Guilty Plea

7. The guilty plea to Count 1 came late. In the ordinary course this would require a reduction of 5% to reflect the utilitarian value of the plea: s 25D (2) Crimes (Sentencing Procedure) Act 1999 (C (SP) Act). No such reduction is warranted for Count 2 as no guilty plea was entered.

8. Mr Bonnici, counsel for Sleiman, submits that a greater discount was required as Sleiman had always accepted he caused the death. In the Local Court he indicated he was prepared to plead guilty to the summary offence of negligently driving causing death. The key dispute there was whether that summary count was more applicable.

9. When the matter came to this court the critical dispute was whether the first count should proceed as a s52A(1)(b) Crimes Act, speed dangerous count or as a s52A(1)(c), drive manner dangerous count. Although, a s52A(1)(b) carries the same maximum penalty, the prosecution, as they were entitled to, and correctly as it turned out, took the position that Sleiman’s dangerous manner of driving involved more than excessive speed and that a s 52A(1)(c) drive manner dangerous count should be put before the court. The guilty plea to that count came late. Accordingly, s 25D (2) C (SP) Act limits the available discount for the utilitarian value of the plea to 5%. The guilty plea has more than utilitarian relevance, which must be synthesised along with all other relevant factors. They do not need to be quantified.

10. The Prosecution submit that I should not apply a sentencing discount at all, or, that I apply a reduced sentencing discount, because the utilitarian value of the plea of guilty was eroded by the dispute about facts that was not determined in favour of the offender: s 25F C (SP) Act.

11. Both the trial and sentence matter were resolved expeditiously, with a particular focus on the issues of dispute; other matters having been admitted. In a sentence matter the discount allowable for the utilitarian value of an early guilty plea is determined by s25D C (SP) Act. However, if an accused is tried on indictment a judge can impose a lesser penalty than would otherwise have been imposed having regard to the degree to which the administration of justice has been facilitated by disclosures made pre-trial or during the trial or otherwise: s 22A C (SP) Act.

12. If I were to accede to the Crown submissions and apply s 25F there would be not much to reduce. If the matter had gone to trial on the issue of whether there should be a conviction pursuant to ss 52A(1)(b) or s 52A(1)(c) Crimes Act, s 22A C (SP) Act would have applied, justifying some reduction in the otherwise appropriate penalty. Despite the time spent on the disputed facts hearing there was some utilitarian benefit in the guilty plea. The otherwise appropriate sentence should be reduced by 5% for its utilitarian value.

Maximum penalties

13. Section 52A(1) Crimes Act offences have maximum penalty of 10 years and an automatic driving disqualification of 3 years with a minimum licence disqualification of 12 months. Section 52AB (1) Crimes Act offences also have maximum penalty of 10 years and an automatic driving disqualification of 3 years with a minimum of 12 months. Careful attention to the maximum penalty fixed by Parliament is always required. They are sentencing measures that must be balanced with all other relevant factors.

14. A driver who fails to stop and render assistance after an accident, commits a serious offence. It is possible to conceive of a situation where that failure alone could lead to a police investigation being compromised and a charge of dangerous driving being avoided. It is possible to conceive of a situation where death results from such a failure. But where the s52AB charge falls to be sentenced along with a s52A matter, although both offences carry the same maximum penalty, a stop and render assistance offence will rarely bear the same degree of moral culpability as dangerous driving occasioning death, even though the maximum penalties are the same: Hoskins v R [2020] NSWCCA 18, Basten JA at [14] – [15].

Facts for sentence

15. Sleiman was 19 at the time of the impact. He was unfamiliar with the road where the impact occurred. He was a P1 licenced driver. The Nissan had modifications that meant a P1 licenced driver should not drive it. He was not affected by drugs or alcohol. In my earlier judgment I concluded at [98] & [99]:

“The impact occurred when the Nissan Mr Sleiman was driving left the roadway. The Nissan left the roadway when its rear wheels lost traction. Thereafter Mr Sleiman was unable to control the vehicle as it moved from his lane across the opposing lane and left the roadway hitting a tree. The driving immediately prior to the collision at the point traction was lost was dangerous. It was dangerous because:

(1) Of the excessive speed of the Nissan – in the range of 96 kp/h to 98 kph.

(2) The Nissan was travelling too fast for the road conditions - a 60 kph limit, on a narrow scenic road, with dual centre lines with many turns and tree lined with limited forward visibility.

(3) The Nissan entered the corner before the impact site at excessive speed and on the wrong side of the road.

(4) Mr Sleiman’s steering as he moved toward the correct side of the road as it approached a 45 kph speed limited corner.

(5) He changed gears and accelerated as he did so.

(6) He was not able to manage and control the Nissan in those conditions; conditions his manner of driving brought about.

In addition, his culpability is increased because:

(7) He was driving a vehicle that he was, as a P 1 licenced driver, not supposed to drive.

(8) He did not have sufficient experience as a driver to be driving that vehicle in that manner or at that speed.

(9) He was driving in that manner and for the purpose of gaining a thrill and showing off.”

16. So far as Count 2 is concerned I found that s 52AB Crimes Act creates a single requirement not two. A driver is obliged to both stop and give assistance. It is not in dispute that Sleiman suffered a cut hand and a sore hip from the impact. Several witnesses formed the opinion he appeared to be in shock. In my earlier judgment I concluded that:

“Mr Sleiman did stop but his obligation was twofold to both stop and render assistance. He failed in the second part of that obligation. Despite any shock or trauma and his belief Mr Nokic was dead, he had the power or capacity to giving necessary assistance - at a minimum this meant he use his phone to call emergency services. With respect the matters raised by Mr Bonnici on this issue go to Mr Sleiman’s level of culpability not his liability: WW v R [2012] NSWCCA 165; R v Pullen [2018] NSWCCA 264 at [45] – [52].”

Objective seriousness

Fail to stop and render assistance

17. Our law requires a driver involved in an impact, where someone is killed or injured, stop and take steps to assist directly or obtain expert help by contacting police or emergency services. The focus of the law is to ensure professional expert assistance for victims of serious vehicle impacts. That assistance may save a life, minimise injury, improve the prospect of recovery, alleviate suffering, and preserve the dignity of the injured or deceased. Further, if a driver flees the scene this may thwart police in their ability to identify them and collect necessary evidence: NSW Legislative Assembly, Parliamentary Debates (Hansard), 21 September 2005 at 18124.e.

18. Here, Sleiman did stop. He did not flee the scene. His failure to call emergency services did nothing to thwart, impede or compromise the investigation. This can be contrasted with the authorities relied on by the prosecution: Geagea v R [2020] NSWCCA 350; WW v R [2012] NSWCCA 165; R v Pullen [2018] NSWCCA 264 at [45] – [52]. At worst his failure to call 000 delayed the arrival of police by 10 minutes. His failure to call emergency services did not increase the harm suffered by Mr Nokic as he had, most likely, died on impact. But this was not Sleiman’s decision to make. His failure to call emergency services meant Mr Nokic’s body was trapped in the car for another 10 minutes and in that sense, for that short period, it suffered indignity after death.

19. Sleiman had been involved in a traumatic incident. He had experienced a high-speed car crash. An airbag had gone off in his face. He was slightly injured. And, he had seen his friend dead inside the wreckage. He may have been in shock but he was also capable of offering an explanation for the crash to those who attended the scene. It was not an accurate account. This inaccuracy may have been either a wilful lie or an unconscious attempt to rationalise what he had done. The delay gave him some opportunity to think up a lie.

20. His shock and confusion can mitigate but, that cannot excuse his conduct. Ms Keay, for the Director, accepts that the delay did not lead to a poorer outcome: but she noted that it did delay the identification of the deceased and the subsequent notification of his death to his family: Crown Submissions MF 1.

21. The obligation placed on a driver in such circumstances is both legal and moral. Sleiman failed in both his obligations. Criminal acts and their consequences are punished. Although the prosecutor chooses which charge to lay, the prosecutor does not choose what punishment will be imposed. The court must determine the punishment and must do so according to law: Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40.

22. Each crime has its own objective gravity, meriting at most a sentence proportionate to that gravity: R v Dodd (1991) 57 A Crim R 349. Care must also be taken not to double count matters already taken into account when sentencing for other related offences. Here, behaviour immediately post impact, such as failure to stop, can be an aggravating circumstance when sentencing for a s52A offences, as the assessment of moral culpability in such matters in not narrowly confined: Whyte v R [2002] NSWCCA 343; (2002) 55 NSWLR 252; R v Shashati [2018] NSWCCA 167 at [24].

“Where an offender is to be sentenced both for causing death by dangerous driving and for failing to stop at the scene, care is required not to give undue weight to the fact that Parliament has prescribed the same maximum penalty for each offence. Each sentence must of course take into account the prescribed maximum but at the same time the comparative length of the two sentences must be capable of being reconciled, rationally and coherently, with the very different criminality involved in each:” Gaegae v R [2020] NSWCCA 350 at [40]; Hoskins v R [2020] NSWCCA 18 at [14]-[16].

23. When one considers the gravity of Sleiman’s inaction the only consequence was a 10-minute delay in emergency services responding to an incident after a death had occurred. Here, had Sleiman done what was required of him the outcome could not have been any different for Mr Nokic or the police. At worst there was additional inconvenience to other responders, and possibly some consequent delay in notifying the deceased’s family. Accordingly, this offence falls at the bottom of the range.

24. Sleiman’s critical failure was moral not legal. He could not face, and tried to avoid, the consequences of his actions; actions that had caused his friend’s death. Sleiman, as he demonstrated by his driving, was thinking only of himself not about anyone else.

25. Sleiman will have to live with his moral failings and their public airing, but I could not be satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate: s 5 C(SP) Act.

Drive manner dangerous

The Guideline

26. To assist sentencing judges, in 2002, the Court of Criminal Appeal (CCA), re-worked, in a non-prescriptive way, their guideline for sentencing judges in matters such as this: Whyte. One reason for the guideline was to encourage a sharp upward shift in penalties and put a stop to a perceived pattern of leniency and inconsistency on the part of sentencing judges of this court: Whyte at [142].

27. A guideline must be taken into account when fixing an appropriate sentence: s 42 A C(SP) A. A guideline is not a “reference point” or a “starting point:” R v Errington (2005) 157 A Crim R 553 at [40]. A guideline is not a “tramline.” It should not be used to impermissibly confine the exercise of the sentencing discretion: Legge v R [2007] NSWCCA 244, at [59]. It must however be given appropriate weight and content. Giving proper effect to it often means that a person of good character, who is unlikely to reoffend, be sent to gaol: Whyte at [145].

28. In Whyte the CCA recognised the broad discretion given judges at first instance. The Court set out typical cases that were intended to be illustrative, not definitive. The Chief Justice made it clear that the greater the degree a driver abandons their responsibility to others, the greater the moral culpability of the offender and the more objectively serious the offence. That in turn impacts on the penalty that should be imposed: Whyte at [214].

29. For the “typical case offences, involving s 52A(1) Crimes Act, where the offender’s moral was high, a full-time custodial head sentence of less than three years in the case of death would not generally be appropriate:” Whyte at [229].

30. While every Judge has an individual sentencing discretion, that discretion must be informed by proper principle, and those principles should be applied consistently: R v McKeown [2013] NSWDC 22 at [17], approved in R v Smith [2016] NSWCCA 75 at [18] & [19].

Applying the guideline

31. Here the evidence establishes that Sleiman was:

1. a young offender;

2. of good character;

3. with no or limited prior convictions.

32. He;

1. caused the death of a friend;

2. entered a late plea of guilty that had some utilitarian value;

3. has shown remorse.

33. In addition, his driving in the period before the impact after he entered the National Park:

1. put him and his passenger at extreme risk;

2. exposed them both to for the whole period they were driving in the National Park;

3. put other road users at risk, although thankfully pandemic restrictions meant traffic was light;

4. was too fast for the conditions;

5. was at a speed well over the 60 KP/H speed limit;

6. was at speed beyond well beyond his capacity as a driver; and,

7. Was showing off, not just to his passenger, the video recordings made by Mr Nokic were intended to be viewed by others on Instagram.

34. His driving at the point he lost control of the vehicle immediately before impact:

1. continued that earlier poor driving and showing off;

2. was too fast for the conditions;

3. was erratic and while the loss of control occurred on the correct side of the road immediately prior to this he was on the wrong side of the road;

4. he subjected the Nissan to excessive steering manoeuvres beyond his capacity as a driver.

35. In addition, after the impact he did stop but he did not render assistance. A matter going to his moral culpability but also the subject of a separate charge.

35. The real substance of a s52A offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life: R v Musumeci NSWCCA, unreported, 30/10/97.

36. The combination of circumstances here show a high degree of moral culpability. Immediately before the impact Sleiman had abandoned responsibility for his conduct as a driver and citizen: R v Whyte (2002) 55 NSWLR 252 at [228]. His actions cost the life of a young man. That loss can never be repaired.

Victim impact

38. Mr Nokic’s father wrote a Victim Impact Statement (VIS) for the Court. It was read out today (13 May 2022). Also tendered was a psychologist’s report noting that since his son’s death he had been treated for a persistent complex bereavement disorder.

39. Mr Nokic senior cannot comprehend how or why Sleiman did not call emergency services. He told me of how he came to be told of his son’s death having first seen photographs of the accident on Facebook. He wrote that since that tragic day his life has not been the same; he has lost a son and a best friend. He told me of a young man; with ambition who loved school, who spoke three languages, a good positive person, who always looked at the good things in life. All his hopes and dreams for his son were dashed. His life is not the same and he still needs professional help in coping with his son’s death. But his son’s spirit keeps him alive every day.

40. The VIS sets out the harms that might be expected in such cases; there is little difficulty with acceptance of its contents: R v Tuala [2015] NSWCCA 8. In the case of death there can be no issue of fact and degree. Such an injury is necessarily “substantial”: R v Tzanis [2005] NSWCCA 274. But this fact cannot aggravate the offence as it is an element of the charge to which Sleiman pled guilty. A court should not seek to apportion degrees of harm by reference to the individual killed or the impact of that person’s death on family and the community: R v Previtera (1997) 94 A Crim R 76.

41. The VIS draws to the court's attention the damage and sense of anguish which the tragic death of Mr Nokic has caused. It gives the family their opportunity to bring that anguish to the attention of the court, the community and the offender. Director of Public Prosecutions v DJK [2003] VSCA 109, Vincent JA at [17] & [18]. When the VIS was read today the impact of the offence on the deceased’s family was acknowledged by Mr Bonnici on behalf of the offender and his family.

42. When a human life is taken; when a young man is deprived of all that life has to offer; where a family loses a son and loved one, it understandable that a call will be made for retribution to be extracted. 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: R v McKeown at [5].

Subjective case

43. Mohsen Sleiman was born September 2001. He grew up in Western Sydney.

44. Although his parents separated when he was 11, he was well cared and provided for. He is one of 5 children, but a brother died of leukemia when he was young. He has a twin sister, who is at university. He was a quiet child. He was not in trouble at school. He had some learning difficulties and left school to take up as an apprentice plumber, studying at TAFE. Since then, he has always been in regular employment. He lives with his father. Before the incident he was a car enthusiast. A hobby he shared with the deceased. All his money went on his car.

45. He is regarded as a person of good moral character. He has relied on his family to support him still.

46. He has no criminal record. He got his P1 provisional licence in August 2018. He had one traffic infringement. His license was suspended when he was arrested for this incident. He has not driven since.

47. A Sentence Assessment Report was tendered. It notes that Sleiman has completed the Traffic Offender Intervention Program and that his response to their assessment process has been satisfactory. He is assessed as a “low-risk offender” and if not gaoled no conditions other than supervision would be required. He can do community service work.

48. Sleiman’s letter of apology to the deceased’s father was tendered. In it he spoke of the guilt he felt. He said he was deeply sorry for Emrah’s death and ruining his family’s lives. He said “I wish it was me instead of Emrah. I’ll always feel guilty for what happened for the rest of my life and I will never forgive myself.”

49. Sleiman gave evidence on 28 April 2022. He affirmed what he said in his letter and to his psychologists. He told me he was aware of the seriousness of his crime. He told me of the impact of the offences on himself and his family. He expressed his appreciation for all their support. He said he wanted to do what he could to make sure others did not make the same mistake he did.

50. When cross-examined he reaffirmed his assertion that Mr Nokic was his best friend and spoke of their shared interest in cars. He could not explain why he did not call 000, other than to say at the time he was “not all there.” He accepted that his taking images of the car was “disrespectful.” He accepted he was not truthful when he initially told police and others the speed he was travelling, something he now regrets.

51. I accept that Sleiman is remorseful and full of regret. He appears to have learnt an import lesson. I am sure he wants others to learn from what he did. However, perhaps because of his intellectual deficits and his youth, he still appears not to understand the gravity of his crime or how seriously dangerous his driving was. His behaviour was not merely reckless, as still he wants to make out. It involved deliberate and seriously criminal driving.

52. Sleiman’s father wrote a letter to Mr Nokic’s father saying his prayers were with him and asking God to give him strength and guidance in processing this tragedy. He knows what it is like to lose a son and now fears for another son.

53. A number or references were tendered. They were respectful and inciteful. His sister’s began by expressing condolences to the deceased’s family. She spoke of the emotional pain caused both families She told me her brother’s life has changed since the incident.

54. Sleiman’s Iman told me about the remorse and contrition shown by Sleiman and of his resolution that this behaviour will never be repeated. The Iman has engaged in dialogue with Sleiman to help him comes to grips with what he has done, deal with his burdens and make amends.

55. His employer also speaks highly of him. He said Sleiman works hard and is dedicated to learning his trade.

56. Sleiman has completed a Traffic Offenders Intervention Program (TOIP). The completion certificate notes his responsible approach and that he took the program “seriously with a lot of thought.” The TOIP report notes his remorse and concludes: “He has demonstrated in his final reflection “life wouldn’t be the same and sadly I live with the trauma and guilt every day.””

57. Reports from a forensic psychologist, Ms De Santa Brigida, and a treating psychologist, Ms Huggins were tendered.

58. Ms Huggins has been seeing Sleiman since the incident. Her report noted his distress and trauma, including nightmares and intrusive images from the accident. She said he has withdrawn from family and friends and still feels numb and shocked. He has a lot of family support but that would not be readily available if he is imprisoned. Nor will her treatment regime be available to him. She fears his suicidal tendencies could be triggered if he is incarcerated and necessary support is not available.

59. Ms De Santa Brigida noted evidence Sleiman had some birth complications. She was alert to a possible need for a neurodevelopmental assessment. Her testing puts Sleiman’s level of intellectual functioning in the extremely low range. His level of adaptive behaviour is in the low range. His strength is his Practical Domain score but it still has him in the below average range, consistent with is work as a plumber. His full-scale intelligence quota falls into the range for mild intellectual disability.

60. She also notes that his reactions to the accident; sleeplessness, loss of appetite and energy, suicidal ideation and flashbacks and intrusive thoughts, are all indicative of Post Traumatic Stress Disorder with depressive features. Her testing also revealed significant underlying trauma. In her opinion Sleiman will require trauma informed treatment for a considerable period.

61. In Ms De Santa Brigada’s opinion Sleiman has no underlying risk factors, suggesting he is not only unlikely to reoffend but that he is likely to suffer if imprisoned.

62. Sleiman has suffered trauma because of the incident. That trauma causes him continuing harm, requiring psychological treatment. Even though he was responsible for the impact and the death I take into account that he has already suffered some serious loss or detriment as a result of having committed the offence: R v Allpass (1993) 72 A Crim R 561; R v Daetz [2003] NSWCCA 316.

Remorse

63. The Prosecution accept remorse has been shown but, in their submissions, suggest the offender has overstated his relationship with his “best” friend. This is evidenced by his inability to provide details of either his surname, or next of kin and his behaviour at the impact scene, including his attempts to minimise his offending; attempts that continued throughout the hearing.

64. In his letter to the deceased’s father Sleiman also repeats his assertions that what he did was “reckless” by acceding to the deceased asking him to speed. As remorseful as he is, he still does not understand how seriously criminal his actions were. This may in some way be explained by his intellectual deficits, but he still shows little understanding of his legal and moral culpability for causing a death and for a criminal offence carrying a maximum penalty of 10 years imprisonment.

Intellectual Disability

65. Intellectual disability attracts the same application of proper principle as those that apply when an offender has a mental illness: Anderson v R (1981) VR 155. The relevant principles were very succinctly summarised by the Chief Judge at Common Law McClelland in DPP v De LaRosa [2010] NSWCCA 195 at [177].

66. There is no indication Sleiman’s intellectual disability contributed to the principal offence, but it may help explain his response to the incident and his failure to call 000. Despite any disability he was able to gain a driver’s licence and understood his licence obligations. His disability may have meant he was less capable of thinking through the consequences of his actions. His disability will mean that a custodial sentence will weigh more heavily on him than on a prisoner without his disability. While both personal and general deterrence principles must apply to him a degree of understanding and leniency is required.

Youth an immaturity

67. The law also recognises that cognitive, emotional and or psychological immaturity of a young person can contribute to their offending: Clarke-Jeffries v R [2019] NSWCCA 56; BP v R [2010] NSWCCA 159; Howard v R [2019] NSWCCA 109. Young people, such as this offender, can reform and learn to conform to society’s norms. When sentencing youthful offenders, considerations of general deterrence and principles of retribution are often of less significance than they would be when sentencing a mature adult for the same offence. Allowance can be made for an offender’s youth, and not just their biological age: KT v R [2008] NSWCCA 51.

68. There is however a countervailing consideration. Holding a driver’s licence is a privilege extended to the young. It is expected that all drivers, young and old, will meet their obligations to other road users. It is well known that they will suffer appropriate punishment if they do not. Courts have consistently noted that given the prevalence of offences of this type among young drivers sentencing judges have a duty to seek to deter dangerous driving by the imposition of significant penalties: R v Smith (1997) 95 A Crim R 373. And, consistency is an important consideration in any sentencing exercise, a reason why youth and immaturity were relevant factors that informed the Whyte guideline.

Submissions

69. Mr Bonnici and Ms Keay, Deputy Senior Crown Prosecutor, provided oral and written submissions. I have considered and addressed them in coming to my determinations. I hope this judgment does justice to them.

70. Ms Keay submits Sleiman’s moral culpably was high given; the speed of the vehicle over a period prior to the impact and the unsafe and unnecessarily dangerous manner of driving undertaken for the “purpose of gaining a thrill and showing off.”

71. She submits, with proper restraint, that the objective facts I have found exceeded those that attracted the 3 years full time guide proffered in Whyte. And, that even were I to impose an aggregate sentence of 3 years or less, the fact a life was taken by the deliberate dangerous driving of the offender and the need for a sentence giving full weight to general deterrence meant there should not be any need to consider the making an intensive correction order: Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294, Simpson AJA [186] to [188].

72. In those circumstances, while she accepts a case has been made for leniency and that its unlikely Sleiman will reoffend, only a full time custodial sentence is appropriate.

73. In expansive oral submissions Mr Bonnici reiterated some key points; Sleiman’s; youth, good character, his previously undiagnosed intellectual disability, his remorse and the fact a close friend was killed. This he submitted required some departure from the Whyte guideline. In the circumstances here I do not believe the distinction between a friend and a stranger could make a material difference to the sentence. Mr Bonnici asked for an individualised sentence. He focused on evidence supporting a sentence that would promote community protection by allowing Sleiman to give back to the community by telling others about the dangers of driving as he did and on the dangers to this young man of a full-time gaol sentence.

74. Mr Bonnici’s ultimate submission was that a sentence served subject to an Intensive Correction Order was just, appropriate, and called for here. He put particular emphasis on the purposive provisions in s 66 C (SP) Act 1999 that require a court to not only consider community safety and the purposes of sentencing in s 3A but also to “…consider any other matters that the court thinks relevant;” s 66(3) C (SP) Act. Those other matters he submitted compelled a conclusion that full time custody was not necessary; and the imposition of a sentence to ensure that outcome. In that regard he urged on me a substantial departure from the Whyte guideline and changed his initial position noting that a combined custodial; sentence of 3 years or less could be imposed given there are two matters for sentence.

Impact of imprisonment.

75. There is a danger when someone goes to gaol for the first time that the habits learnt in gaol will mean that they return to gaol. In other words, that gaol makes people worse, not better.

76. If Sleiman goes to gaol he will be forced to undergo necessary COVID quarantine. He will be subject to the continuing COVID restrictions, which will inevitably mean more time locked in cells than is ordinary, less access to work programmes and psychological treatment. He will not have face to face visits with family and friends. He could not maintain his current psychological treatment. He is young and psychologically vulnerable.

77. Judges do not underestimate the lived experience of gaol. Gaol will not assist in his rehabilitation. It may well impede it.

Other cases

78. I have had regard to statistics and the other cases to which I have been referred. The consistent application of principle must always be considered. The guidance offered by appellate courts and other decisions is always welcome. However, each case and each offender is individual. Sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [47]; Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen [ (2014) 253 CLR 58 at [74].

Special Circumstances

79. Sleiman is young and vulnerable on a number of levels, His access to pro-social supports and necessary psychological treatment will be limited while he remains in custody. On release will need help adjusting to normal community life. He is unlikely to re-offend. And it appears that this type of offence will not be repeated. All these factors provide a basis for a finding of special circumstances. However, in so finding I am mindful of a requirement that the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Intensive Correction Order

80. Before an Intensive Correction Order (ICO) can be imposed the term of the sentence must be first determined. If, and only if, that sentence (if an aggregate one) does not exceed 3 years (ie, is 3 years or less) or 2 years (for a single offence), consideration may be given to ordering that it be served by way of an ICO. An evaluative assessment must then be made.

81. That assessment requires I consider the express terms of s 66 C (SP) Act and the authorities which have considered it. Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order: s66(1). I am also obliged to consider whether making an ICO or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending: s 66(2).

82. Evidence shows that supervision within the community is often more effective at facilitating medium- and long-term behavioural change, particularly when it is combined with stable employment and treatment programs: Pullen v R at [89]. Here, community safety would not be endangered by allowing this offender to serve his sentence in the community. His risk is reoffending is low. But that risk is low whether he is gaoled or subject to an ICO. I must also assess the matter by reference to the purposes of sentencing in s 3A C(SP) Act and any other relevant matter: s66(3). In doing so I must also take into count the guideline judgement: s 42 C(SP) Act.

83. Subsection (3) of s 66 C(SP) Act directs the sentencing court, when deciding whether to make an intensive correction order, to consider:

• the provisions of s 3A of the C (SP) Act;

• any relevant common law sentencing principles; and

• any other matters the court thinks relevant.

84. Those considerations do not however have any role to play until and unless the preconditions for making an intensive corrections order are met. As a matter of principle, a court does not start by first asking the question; are their relevant matters that would make an ICO the best option? And then adjusting the length of the sentence to allow for that option.

85. In any event even if an ICO would better serve the offender a relevant circumstance in determining how a sentence must be served is the seriousness of the offending: Quinn at [183]-[185].

86. This objectively was a serious example of driving in a manner dangerous, with several aggravating features. The only conclusion I could reach, even after making allowance for Sleiman’s youth, immaturity and any intellectual disability is that his moral culpability was high. The matters raised in mitigation do not significantly reduce that culpability. Even if I had determined that a sentence of less than 3 years was appropriate the purposes of sentencing in particular, general deterrence and retribution would not be sufficiently served by the sentence being served subject to an ICO: Elphick v R [2021] NSWCCA 167.

Synthesis

87. A sentencing judge must identify all the factors that are relevant to the sentence and then making a value judgment as to the appropriate sentence in all the circumstances of the case: Markarian v The Queen; 228 CLR 357 [2005] HCA 25 at [51]; Muldrock v The Queen (2011) 244 CLR 120 at [26].

88. Sentences should, as far as possible, not just punish but also protect the community from further offending by this offender and others. Removal of a person from the community by gaoling them can achieve only short-term protection, as they must be returned to the community. Protection of the community is helped by the successful rehabilitation of offenders and “[T]his aspect of sentencing assumes particular importance in the case of first offenders and others who have not developed settled criminal habits:” Blackman & Walters [2001] NSWCCA 121.

89. Sleiman was, and is, a young man. His offending showed how immature he was. He had a very inflated idea about his capacity and experience as a driver. He took extreme risks, and another young man paid the ultimate price for that risk taking. He abandoned his responsibility as a driver to other road users

90. It is hoped that by the severity of the sentences imposed other drivers will pause and consider before driving dangerously. As this case demonstrates, that may be a forlorn hope. Both young men here took extreme risks that day. But Sleiman was driving, so only he put others at risk. Only he could be criminally liable for what occurred. Here, even when full weight is given to the many matters raised in mitigation, there must be a custodial sentence of some length:

“It is never easy to send a youthful person of good character to gaol but, where it is appropriate, it is something which must be done as a deterrent to others. The need for public deterrence will usually outweigh the fact that the particular offender has already learned his or her lesson. Also, retribution remains an important purpose which the sentence must serve:” R v Musumeci NSWCCA, unreported, 30/10/97

91. Retribution is the notion that reflects the community's expectation that the offender will suffer punishment and that some offending will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222; R v Herring(1956) 73 WN (NSW) 203 at 205.

92. The extent and nature of the offender’s dangerous driving, at the time of and shortly before the impact, and the consequential death of Mr Nokic require a full time custodial sentence. By the punishment inflicted it is hoped that other will learn the consequence of failing to respect the safety of others when they get behind the wheel of a motor vehicle.

Orders

93. “Back up” offences on s 166 Criminal Procedure Act Certificate withdrawn and dismissed.

94. Not keep left of a dividing line: r132(2) Road Rules 2014: Convicted but no further penalty is expedient: s 10A C (SP) Act.

95. Not comply P1/P2 high performance vehicle restriction: sl 119(1) Road Transport (Driver Licencing) Regulation 2017: Convicted but no further penalty is expedient: s 10A C (SP) Act.

Count 1

96. You are convicted.

97. You are disqualified from holding a driver’s/rider’s licence for 3 years.

98. There will be account a 5% reduction for the utilitarian value of the late guilty plea .

99. You are sentenced to a term of imprisonment of 3 years 6 months consisting of a non-parole period of 2 years to commence on 13 May 2022 and expire on 12 May 2024.

100. You will be eligible for consideration for release to parole on 12 May 2024 to serve the balance of term of 1 year 6 months to commence on 13 May 2024 and expire on 12 November 2025.

Count 2

101. You are convicted

102. Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, you are ordered to comply with a community correction order. The term of the order is 2 years.

103. Only the standard conditions of the order apply as this sentence is subsumed by that imposed for count 1.

104. You are disqualified from holding a driver’s/rider’s licence for 1 year.

Note- Licence disqualification

105. Section s205D Road Transport (General) Act 2005 applies as Sleiman’s licence was suspended on the day of the offences.

106. Any Driving licence disqualification will be suspended while you are in custody as the period of disqualification is extended by any period of imprisonment that is served after the commencement of the disqualification: s 225(3)(b) Road Transport Act 2013 applies.

107. I have taken into account that while you must be disqualified for a period, given your prospects for rehabilitation depend on you getting a job on release and those job prospects will be enhanced if you can return to driving as soon as possible.

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Decision last updated: 13 May 2022