R v Zreika

[2019] NSWDC 864

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Zreika [2019] NSWDC 864
Hearing dates:	16/5/19-4/6/19, 2/8/19, 28/8/19
Date of orders:	28 August 2019
Decision date:	28 August 2019
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 6 years with a NPP of 4 years. Disqualified from driving for the automatic period of 3 years.
Catchwords:	Crime – Sentence – Dangerous driving occasioning death – Dangerous driving occasioning GBH – Seizures - Intoxication
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Road Transport Act 2013
Cases Cited:	R v Whyte (2002) 55 NSWLR 252
Category:	Sentence
Parties:	DPP (Crown) Moustaffa Zreika (Offender)
Representation:	Counsel: Ms Nightingale for Crown Mr Fokkes for Offender
File Number(s):	2017/349310

sentence

1. Mr Moustaffa Zreika is before the Court for sentence. Mr Zreika stood trial before a jury from 14 May 2019 on a charge firstly of dangerous driving causing death and secondly a charge of dangerous driving causing grievous bodily harm. On 4 June 2019, he was found guilty on both counts. The maximum penalty for the offence involving death is ten years' imprisonment and the maximum for the offence of causing grievous bodily harm is seven years. There are no standard non parole periods applying to those offences.

2. In addition, there are a number of other traffic type offences before the Court pursuant to a certificate under s 166 of the Criminal Procedure Act 1986. I am required to make findings of fact in relation to the offending which must be consistent with the verdicts of the jury. The Crown bears the onus of satisfying me beyond reasonable doubt of any aggravating factors and the offender has the onus of proving any matters in mitigation on the balance of probabilities.

3. I find the following facts.

4. The offender was the holder of a class C unrestricted driver licence, which was suspended at the time of the offences. On Saturday, 22 July 2017, he was the driver of a 6.5 tonne tip truck in which his workmate, Jeremy Agha, was the passenger. The offender had driven the truck from a work site in Crows Nest to another work site in Parramatta. Shortly after noon that day, he was in the process of returning home and dropping off his passenger in the Merrylands area. At the relevant time, the truck was being driven south on Burnett Street, Merrylands. Burnett Street is a two lane road with a 50 kilometre per hour speed limit on which a large number of residential homes are located. The area of Burnett Street to which this case relates has a slight downhill slope and involves a number of relatively gentle curves which a driver is required to negotiate.

5. Shortly before 12.44pm, as the truck was being driven through a slight left hand curve, it crossed double lines and entered the oncoming lane. Although the driver of an oncoming vehicle took evasive action, the truck sideswiped his car, tearing off the rear bumper. The truck, however, continued on down Burnett Street on the wrong side of the road and mounted the western kerb just before the intersection with Dan Street. At that time, Mr Tannous Daher and Mr Milad Moujalli were doing some gardening on the footpath and apparently did not detect the truck coming towards them. After mounting the footpath, the front of the truck hit both of them. Mr Moujalli was thrown to the ground, suffering very serious injuries. Mr Daher was pushed by the truck across Dan Street, into the front yard of a house at 38 Burnett Street. He suffered catastrophic head and internal injuries and died at the scene.

6. The truck continued on and travelled through the front yard of 38 Burnett Street and into the front yard of number 36, where it hit a parked car before impacting the front of the house, where it stopped. Neither the offender nor his passenger sustained any significant injuries. Witnesses at the scene describe the offender as being aggressive and highly agitated, unable to follow instructions, and acting as though he wished to leave the scene. A number of witnesses described his pupils as pinpoint and some witnesses formed the view that he was affected by some substance. Due to his behaviour, he was physically restrained by police and ambulance officers and had to be given two forms of sedative before eventually becoming calm.

7. He was taken to Westmead Hospital, where a blood sample was taken. A search of the truck located a box of tramadol medication, prescribed to the offender, which had been purchased by him the previous evening. Six tablets were missing from the packaging. An examination of the truck showed that it had no mechanical defects. A blood sample taken from the offender showed a number of drugs or drug metabolites. Relevantly, they included tramadol, diazepam, nordiazepam, which is a metabolite of diazepam, and benzoylecgonine, which is a metabolite of cocaine. Pharmacologist Dr Perl said that the diazepam and cocaine were unlikely to have been taken within the previous 24 to 48 hours and are of no real relevance. I have concluded that neither of these drugs contributed to the dangerous driving or to the accident.

8. Mr Fletcher, a forensic chemist, gave evidence that the tramadol in the offender's blood was greater than 1 milligram per litre and likely to have been about 2.1 milligrams per litre, although he could not guarantee that higher figure because it was beyond the calibrated range for which the laboratory could test. Dr Perl explained that tramadol is a narcotic analgesic used to treat moderate to severe pain and similar to codeine and morphine in its "feel good serotonin effects". She said that a tramadol reading of more than 1 milligram per litre is outside the therapeutic range and getting into the range where toxicity or overdose could be expected.

9. Dr Perl also said that in her opinion, the descriptions of the offender's behaviour at the scene were consistent with the effects of tramadol toxicity or overdose and not consistent with the after effects of a seizure. She conceded, however, that it would be necessary to ask a neurologist whether or not behaviour of that type might also be expected after a seizure.

10. Given the offender's medical history and the observations of witnesses just before and just after the accident, it is clear that the offender suffered a seizure while driving on Burnett Street. This was also the conclusion of the neurologists, Dr Dowla and Professor Somerville. Due to the offender's incapacity, the truck continued down Burnett Street without any control from him, where it hit an oncoming car and then hit Mr Daher and Mr Moujalli.

11. The verdict of the jury indicates that it was satisfied beyond reasonable doubt that the offender's driving was objectively dangerous and that he did not have an honest and reasonable belief that it was safe for him to drive. The Crown put the case to the jury on the basis that the driving was objectively dangerous because of three matters. Firstly, the offender's medical condition, secondly, drug intoxication, and thirdly, that he may have been distracted from his driving or from signs of the onset of a seizure by being engaged in a telephone call. The jury verdicts do not specify what findings it made about these three suggested factors, and so it is necessary for me to make my own findings which must, of course, be consistent with the verdicts.

12. As to the first matter, being the offender's medical condition, the evidence establishes that at the time of the collision, he had an epileptic condition which was undiagnosed and untreated. Counsel for the offender conceded as much and submitted that there was no doubt that there was a pre-existing epileptic condition based on the events of January 2016. This was the opinion also of

13. Dr Dowla and Professor Somerville and was not challenged at trial. It was argued by the offender that the evidence supported a conclusion that he first suffered a focal seizure immediately before the collision and that this transitioned into a generalised seizure just after the collision when bystanders were trying to assist the offender from the truck. Although I am satisfied that the offender did suffer some kind of seizure just before and during the accident, the evidence, including that of Professor Somerville, does not permit me to conclude exactly when the seizure started, nor whether there was a focal seizure followed by a general seizure.

14. On 12 January 2016, which was about a year and a half before the fatal accident, the offender suffered an episode during which he was observed suddenly to stand up, turn in circles, and run into a wall, suffering loss of consciousness and a broken nose. He was taken to Westmead Hospital by ambulance, arriving just before 1am. A diagnosis of generalised tonic clonic seizure was made. However, the offender discharged himself less than an hour after arriving at hospital and against medical advice.

15. Before departing, he signed a discharge against medical advice form, which recorded that he had been advised of the dangers of leaving hospital, which included sudden cardiac death, seizures, and intracranial bleeding. These warnings were explained to him by emergency department registrar Dr Chen, who also told him not to drive until cleared by a neurologist and cardiologist. Dr Chen said he expressed his warnings very strongly and that the offender was able to explain in his own words what the concerns were. Dr Chen said he was satisfied that the offender had a good understanding and was very clear of mind. This is consistent with the medical records which state that the offender told Dr Chen he was self-employed, had to work the next day, would take a taxi home, and promised not to drive.

16. Despite this evidence, it was submitted that the offender may not have remembered Dr Chen's warning not to drive because the offender may have been suffering the after effects of seizure, and not laying down memory. This submission arose from evidence given by neurologist Professor Somerville to the effect that memory may be patchy in the period shortly after a seizure due to residual confusion in a patient's mind. Implicit in this submission is the suggestion that the offender may have been unaware or at least less mindful of any risk associated with his driving on 22 July 2017. This submission, however, needs to be considered against the background of all the evidence in the case, which includes the following.

17. The offender consulted with GP Dr Aboud the day after his admission to Westmead Hospital on 12 January 2016 and during this consultation, he told Dr Aboud that he had possibly suffered a seizure the day before, had been taken to hospital, and may have a broken nose. This evidence suggests that the offender had a reasonably clear memory of his hospital admission and was conscious of the need for medical follow up as advised by Dr Chen. Also, he consulted neurologist Dr Dowla on 17 February 2016, which again tends to confirm his mindfulness of the advice given by Dr Chen. Furthermore, Dr Dowla arranged for the offender to have an EEG on 24 March 2016, but the offender failed to attend. Dr Dowla said it was his standard practice for 20 years to tell patients not to drive before receiving EEG results and that he gave this same instruction to the offender.

18. He was challenged on this and accepted that his notes did not contain a record of this instruction not to drive and that there was no mention of it in his letter to the referring GP. However, I am satisfied that Dr Dowla did instruct the offender not to drive given that this was his longstanding practice and given that such advice merely accords with common sense.

19. In addition, the offender had consulted with a GP on 24 May 2014 complaining of a few episodes of loss of consciousness. Although he again consulted with the GP on 30 May 2014 and 21 November 2014, he refused to engage in further testing to determine the cause of his loss of consciousness.

20. The evidence leads me to the conclusion that the offender was aware of the warnings not to drive, that were given to him by Dr Chen and Dr Dowla. However, even if it is assumed in his favour that he did not remember Dr Chen's instruction in January 2016 not to drive and even if it is assumed that Dr Dowla did not give him that instruction, the fact remains that the offender clearly knew of his history of blackouts going back to 2014 and of the suspected seizure in January 2016. In circumstances where the causes of those episodes remained unexplained, the offender simply could not, in my opinion, have held an honest, let alone a reasonable, belief that it was safe for him to drive.

21. Despite this history going back to 2014, and despite his failure to attend for EEG testing after the seizure of 12 January 2016, the offender continued to drive and was detected driving on numerous dates in 2015 and 2016.

22. I am satisfied, therefore, that, consistent with the jury's verdict, the offender chose to drive on 22 July 2017 without any honest belief and without any reasonable belief that it was safe to do so. In my opinion, he chose to drive with knowledge of the risk that he might, without warning, suffer a seizure. In doing so, he favoured his own interests and disregarded the safety of others.

23. This conclusion is consistent with his behaviour subsequent to the catastrophic accident of 22 July 2017. Despite the consequences of that accident, the offender discharged himself from hospital the very next day against very strong medical advice and with clear instructions both to the offender and his mother that he must not drive. However, on 24 July 2017, he reapplied for his driver's licence. In doing so, he gave a number of false or misleading answers to questions such as, "Do you have any medical, physical, or mental disabilities which may affect your driving?" and "Have you ever had attacks of giddiness, blackouts, fainting, or other sudden periods of consciousness?" Furthermore, on 3 August 2017, 12 days after the accident, he was detected driving again. I do not regard these matters as aggravating the offences in any way. However, they do, as I have said, tend to confirm my conclusion that the offender chose to drive because it suited him and not because he reasonably or honestly believed it was safe to do so.

24. Of the drugs found in the offender's blood on 22 July 2017, it seems to me that the only drug of any relevance is, due to its high level, the drug tramadol. While the various medical and scientific witnesses said that seizure is a rare side effect of tramadol use, it was agreed that a person with a history of seizures should not take the drug at all. It is not possible for me to determine precisely how many tramadol tablets the offender ingested prior to the accident, but it is clear from the quantity of that drug in his blood and from the admissions in his ERISP interview that he ignored instructions as to the use of the drug and took at least twice the prescribed dose.

25. While the evidence is not capable of establishing that tramadol caused the offender's seizure, I am satisfied, based on the medical evidence, that his excessive use of that drug increased the risk that he would suffer a seizure. This is consistent not only with the medical opinion evidence and consumer medical information, but also consistent with the fact that, as reported by the offender to Dr Dowla, he had taken 600 milligrams of tramadol in the hours before his seizure of January 2016.

26. The second basis on which the Crown put its case as to the driving being objectively dangerous was that the offender's driving ability was impaired by drug intoxication, specifically by drug toxicity or overdose arising from the excessive consumption of tramadol. The Crown relied particularly upon the opinion of Dr Perl, who said that at a level of more than 1 milligram per litre and certainly at 2 milligrams per litre, she would expect significant toxic effects.

27. Dr Perl said that the observations of the offender's behaviour at the scene, which was aggressive and bizarre, was consistent with the effects of tramadol toxicity. Importantly, however, she said that it would be necessary to ask a neurologist whether the signs and symptoms observed in the offender just after the accident were consistent with the after effects of seizure. In this regard, the evidence of Professor Somerville was, in summary, that the behaviour displayed by the offender immediately after the accident was consistent with the after effects of seizure.

28. Counsel for the offender argued largely on the basis of this evidence and the evidence of the passenger in the truck, Mr Agha, that I could not be satisfied the tramadol contributed in any way to the driving being objectively dangerous. One difficulty in this submission is that I place no weight on the reliability of Mr Agha because critical parts of his evidence were inherently unbelievable. Mr Agha claimed, for instance, that he was using his phone to access the internet and did not recall that the truck hit a car on Burnett Street, mounted the gutter, and hit the two men. He claimed, in effect, to recall none of these things when asked about them by the Crown, although he appeared to have a clear recollection of other events when asked questions by counsel for the offender. In my view, he tailored his evidence in an effort to assist the offender and a large number of his answers were deliberately false.

29. I do accept, however, that there is no direct evidence of any impaired driving, such as swerving, before the onset of the seizure. I also accept the evidence of Professor Somerville that the offender's observed behaviour after the accident was consistent with the after effects of a seizure, although he did not dispute that the offender may also have been intoxicated by tramadol. All in all, I am unable to conclude that tramadol toxicity was a direct causative factor in the accident except, as I have already found, that it increased the risk that the offender would suffer a seizure while driving.

30. However, while I am unable to conclude that tramadol toxicity caused the accident in any direct sense, I am nonetheless satisfied beyond reasonable doubt that the offender's driving was objectively dangerous because his capacity to control the truck was significantly impaired by the high level of tramadol in his blood. I rely primarily on the evidence of Dr Perl and Mr Fletcher in this regard.

31. The third basis, although the Crown said this was only a very small part of its case, on which the Crown said the driving was objectively dangerous was the offender's participation in a telephone call and the argument that this was a contributing factor by reason of his being distracted from driving or distracted from the realisation of the onset of a seizure. I have considered this submission, but I am not satisfied to the requisite standard that this aspect of alleged dangerousness has been established. Firstly, while there is evidence that the offender was engaged in a telephone call just prior to the accident, there is insufficient evidence to establish beyond reasonable doubt the exact manner in which this call was conducted. That is, whether it involved the offender holding the phone in his hand or using some sort of hands-free device or function. Secondly, and more importantly, Professor Somerville said that usually, a person will receive no warning of the onset of a seizure. I am not satisfied, therefore, that the offender's use of a mobile phone was a factor that rendered his driving objectively dangerous, either by distracting him from driving or from any warnings of the onset of a seizure.

32. An important part of the sentencing exercise is that I assess the objective seriousness of the offences. I have had regard to the guideline judgment in R v Whyte (2002) 55 NSWLR 252 of the Court of Criminal Appeal of New South Wales, which describes the common characteristics of a "typical case" of dangerous driving. Of these, there are few which apply in this case. The offender, who was aged 28 at the time of the offences, cannot really be described as a young offender. Although at the time he had no previous criminal convictions, his traffic record does him no credit. While there is some evidence of remorse, the weight I can place on it is limited and the offender does not have the benefit of pleas of guilty. The Court of Criminal Appeal has said that in a typical case, after a guilty plea, a custodial head sentence less than three years in cases of death and less than two years in cases of grievous bodily harm would not generally be appropriate unless the offender's moral culpability is not high.

1. There are a number of aggravating factors that I need to take into account in this case and related to this is the need to consider the moral culpability of the offender. While I accept at the time of the accident there had been no formal diagnosis of the epileptic condition, the fact remains that the offender was aware that prior to 2014, he had suffered several blackouts without warning. He was also aware that in January 2016, he suffered a likely seizure, again without warning.

2. Notwithstanding this history, the offender failed to follow up on recommended testing and apparently continued to drive. It was by reason of his own irresponsible actions that his epileptic condition was not diagnosed earlier. There is also the fact that prior to the accident, and in spite of clear instructions from the pharmacist and on the packaging, the offender had ingested at least double the prescribed dose of tramadol, a drug that he had been told to stop taking when he consulted Dr Dowla in 2016.

3. In addition, and while the offender's driving caused fatal injuries to Mr Daher and grievous injuries to Mr Moujalli, he also put a large number of others at risk. Those persons included Mr Agha, the passenger in the truck, also Mr Youssef and his 13 year old son, who were in the car which was sideswiped on Burnett Street, as well as a young woman pushing a pram with a child in it who was captured on CCTV and who was placed in danger by reason of the need for Mr Youssef to take evasive action to avoid the truck. Also placed in danger were the persons, including young children, inside the house against which the truck eventually came to rest. There is also the fact

4. that the offender's driving on this day involved a 6.5 tonne truck with the increased risk to others associated with a vehicle of that size. Finally, I note also that the offender's driver's licence had been suspended and had not been renewed at the time of the accident, which means that he should not have been driving at all.

5. The maximum penalties make plain that the offences must be regarded as very serious, but of course, that question is also heavily dependent upon the particular circumstances of the case. I have had regard to the maximum penalties, as I am required to do, as guideposts in the sentencing exercise. Having taken into account all of the evidence, I find that the two offences of dangerous driving fall well within the middle range of objective seriousness and at the higher end of that middle range.

6. I consider the offender's moral culpability to be very high. In my view, this is a case where the offender had effectively abandoned responsibility for the risks involved in his driving and chose to continue driving, without investigating his blackout episodes, because it suited him.

7. There is some evidence of remorse in that, firstly, the offender recently expressed remorse to the psychologist for the effects of his actions on the victims and their families. In addition, the Court has a handwritten letter from the offender in which he apologises to the families of Mr Daher and Mr Moujalli, expresses sympathy for their situation, and says, in effect, that he accepts the jury's decision. Although I have taken into account these expressions of remorse, I note that it is not consistent with the attitude demonstrated in the offender's ERISP interview shortly after the accident, which tended to display a more detached, perhaps cavalier, attitude. More fundamentally, however, it is not possible for me to attach a great deal of weight to the expressions of remorse in the psychological report or in the letter given that the offender chose not to give evidence and be cross examined in the sentence proceedings.

8. It is difficult to form a positive view at to the prospects of rehabilitation and as to the unlikelihood of reoffending given the offender's admitted history of drug problems and his prior record in relation to traffic offences. In this regard, and as I have already noted, the Court is faced with evidence that a mere two days after the catastrophic accident involving Mr Daher and Mr Moujalli, and the very next day after being told by doctors at Westmead Hospital that he must not drive until cleared by medical follow up, the offender reapplied for a licence. Moreover, there is the fact that on 3 August 2017, 12 days after the accident, the offender was stopped by police for traffic offences and responded, when asked why he was using a mobile phone while driving, that the call had “just made him $1 million”. In my view, this comment is illustrative of the offender's cavalier attitude to his driving. It is an indication, taken together with his history of traffic offences and failure to follow up on his medical condition, that he is a person who chooses to put his own interests ahead of the safety of others. For these reasons, I am unable to form a positive view as to his prospects of rehabilitation.

9. The Court has received material in the form of victim impact statements, one prepared on behalf of Mr Daher's family and also a statement from Mr Moujalli. There is no doubt that the consequences of these offences have been extreme, tragic, and long lasting. I do not, however, treat these as aggravating features given that victim impact statements are not able to be tested by cross examination. Suffice to say that the Court is extremely conscious of the fact that these offences must have had terrible consequences. I am conscious of the fact that the sentence I impose can in no way lessen those tragedies. I am also conscious that the sentencing task I must perform cannot and must not be regarded as a measure of the value of Mr Daher's life, nor can it be regarded as a measure for the lasting effects of the injuries inflicted on Mr Moujalli or the lasting impact on each of these men's families.

10. Rather, the sentences that I impose must reflect proper sentencing principle, and provide appropriate punishment that reflects the objective seriousness of the offences as well as and including the offender's moral culpability and the need for both general and personal deterrence. The sentences must also take into account prospects of rehabilitation and also all of the other purposes of sentencing.

11. The offender is currently 30 years of age and was 28 at the time of the offences. He is of Lebanese background but was born in Australia and is the second eldest of his parents' four children. According to a psychological report tendered on sentence, he comes from a generally prosocial family background. He completed year 12 and obtained his Higher School Certificate, after which he completed an apprenticeship in carpentry and subsequently managed his own construction business. Subsequently, he had a period of unemployment largely due to drug and gambling problems for which, to his credit, he sought treatment.

12. According to the psychological report, the offender reported experiencing severe depressive symptoms at the time of assessment, although this is not surprising given his custodial situation and the fact that he was awaiting sentence in relation to the offences currently under consideration. The psychologist assessed him as being a low risk of reoffending. However, I note in this regard that the psychologist, in determining that risk of reoffending, took into account as a protective factor "nil prior offence history," which is rather questionable in my opinion given the offender's driving history and the nature of the offences for which I must sentence him.

13. I have had regard to the objective seriousness of the offences, the various subjective matters, the purposes of sentencing, and the case law relating to offences of this kind. Having done so, I have concluded that a sentence of imprisonment is the only appropriate penalty. I find, however, that there are special circumstances for some variation in the usual ratio between head sentence and non-parole period by reason that this is the offender's first time in fulltime custody and by reason of the desirability that he be supervised over a reasonably extensive period, given the importance of managing his medical condition.

14. In relation to the offences on the s 166 certificate and in accordance with the Crown's request, I note that sequences 3, 4, and 7, which are backup or related offences, are withdrawn and those charges are dismissed. In relation to the sequence 5 offence, drive while suspended, and sequence 6 offence, drive with unsecured load, I deal with those offences pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 and I convict the offender but impose no other penalty.

15. For the two offences of dangerous driving, I intend to impose an aggregate sentence. Had I not done so, the sentences that I would have imposed would have been as follows. For the offence involving the death of Mr Daher, imprisonment for a period of five years. For the offence involving grievous bodily harm to Mr Moujalli, imprisonment for a period of three years, six months. Instead of those sentences, however, I impose an aggregate term of six years' imprisonment.

16. I find special circumstances for varying the usual ratio of non-parole period to head sentence and therefore I impose a non-parole period of four years. Each of those will date from 4 June 2019, the date on which the offender went into custody for these offences. The head sentence will expire on 3 June 2025. The non-parole period will expire on 3 June 2023. The offender will be disqualified from driving for the automatic period of three years which, by operation of the Road Transport Act 2013, will commence upon his release to parole.

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Amendments

01 April 2020 - Formatting only.

Decision last updated: 01 April 2020