The case of Bonsu v R [2009] NSWCCA 316 is the binding authority for cases involving negligent driving causing death. The case has significantly changed the landscape of cases involving this offence. If convicted, an offender is now much more likely to face a custodial sentence than was previously the case.
What follows in this article is a review of recent Local Court decisions concerning negligent driving causing death. Since the decision of Bonsu was handed down, courts are compelled to tread cautiously in showing lenience for good character in such matters.
In light of this recent case law, it is imperative to seek assistance from an experienced defence lawyer if you are charged with negligent driving causing death or grievous bodily harm. The penalties are severe and if you are convicted, there is a real likelihood that you could be sentenced to full-time jail.
Bonsu v R [2009] NSWCCA 316
I. Overview
In Bonsu the offender was acquitted of a charge of Dangerous Driving Causing Death (s.52 Crimes Act) but found guilty of a back-up charge of Negligent Driving Causing Death (s.42(1)(a) Road Transport (Safety and Traffic Management) Act) after a Judge alone trial.
Mr Bonsu came before the NSW Court of Criminal Appeal after failing to complete the 200 hours Community Service Order he was sentenced to at first instance. Importantly for present purposes, after reviewing the sentencing statistics for the offence the court held that the range of penalties being imposed was inadequate and failed to reflect the fact that offenders charged with the offence had taken a human life.
Bonsu is currently the benchmark for cases of Negligent Driving Causing Death. The case clearly advocates nothing short of a full-time custodial sentence for the offence. The recent Local Court decisions that are reviewed below were heard after the decision of Bonsu was handed down. What they show is a decreased willingness of the courts to impose a non-custodial sentence for Negligent Driving cases, even if the offender has no prior convictions and is a person of good character.
Director of Prosecutions v Bhandari [2011] NSWLC 17
I. Facts
The offender approached an intersection and stopped at a red light, with the intention of making a right hand turn into Warren Road. The lights turned to green. At the same time, the pedestrian lights on Warren Road turned from red to green and Mrs Krsnak began to cross the road. The offender began to make her right hand turn, failing to see Mrs Krsnak. The force of the impact and the continuing movement of the offender’s car caused the immediate death of Mrs Krsnak.
The court accepted evidence that in executing her right hand turn across the intersection and into the path of Mrs Krsnak the offender had a clear and unobstructed view. The failure to see both the green illuminated walk sign and/or Mrs Krsnak could therefore only put be down to the offender’s failure to keep a proper look out. It was held that such a failure placed the negligence towards the higher end of the objective seriousness.
II. Plea
The offender was charged with Negligent Driving Causing Death. She pleaded guilty at the first available opportunity.
III. Subjective factors
The offender was 35 years of age with no criminal record. At the time of the accident she had held a driver’s licence for 15 years and only had one speeding matter on her record. The court accepted that she was undoubtedly a person of good character. She was a single mum with two children; one of whom had a serious disability. The offender herself also had a number of medical issues, having recently suffered a stroke.
IV. Sentencing considerations
Despite the strong subjective circumstances of the offender, the court could not ignore the high degree of negligence associated with the commission of the offence. Reiterating that general deterrence is the paramount consideration when sentencing offenders charged with Negligent Driving Causing Death, the only sentence that would adequately address the purposes of sentencing and the objective seriousness of the offending was a sentence of imprisonment.
Evidence in respect of the relationship between the offender and her severely disabled son led the court to the conclusion that the offender’s individual circumstances were so exceptional that the hardship that would be caused by full-time imprisonment must be taken into consideration on penalty. As such it was appropriate to consider whether a custodial sentence may be better dealt with other than by way of full-time imprisonment.
V. Sentence
Because the level of offending was towards the higher end of the range the court held that the appropriate sentence was 14 months. A 25% discount for the offender’s early plea of guilty was applied, reducing the sentence to 10 months and 15 days.
Having found exceptional hardship to a third party the court considered whether it should suspend the sentence pursuant to s12 Crimes (Sentencing Procedure) Act or apply an alternative form of sentence.
As previously noted, general deterrence is a paramount consideration when sentencing offenders of this type of offence. In R v Taylor [2000] NSWCCA 442 Wood J observed that ‘suspended sentences provide very little, if anything, by way of general deterrence. The court consequently determined that the sentence should be served by way of Home Detention, which would address the competing considerations of the purposes of sentencing and hardship to a third party; while enabling the offender to continue caring for her severely disabled son.
The offender was therefore sentenced to imprisonment for 10 months and 15 days, to be served by way of Home Detention.
VI. Commentary
The finding of exceptional circumstances did not mean that full-time imprisonment was no longer an option; it is not a finding that necessarily leads to a change in the sentence outcome. It did, however, lead the court to the conclusion that the purposes of sentencing could be met adequately by a sentence of Home Detention.
Home detention is an alternative to full-time custody whereby an offender is confined to an approved residence for specified periods of time for the duration of the sentence of imprisonment. It enables the sentence to be served in the offender’s home. Offenders who are subject to home detention orders are strictly supervised and are subject to electronic monitoring.
Director of Public Prosecutions v Markovski [2011] NSWLC 31
I. Facts
The offender was driving south on the Olympic Highway when he swerved onto the wrong side of the road to avoid hitting an animal running onto the road. The offender saw a car travelling towards him and turned the car further right in an attempt to get off the road and avoid the on-coming car. Unfortunately the two cars collided, seriously injuring the passenger in the offender’s car and killing the driver and passenger in the other car. The offender suffered no serious injuries.
In this case there were none of the usual aggravating factors seen in fatal collisions such as speed, alcohol of drugs and there was no evidence of any sustained irregular driving behaviour leading up to the point of collision. There was, in effect, no chance for anyone to do anything to avoid the inevitable collision and any culpability was simply momentary inattention or misjudgement on the part of the offender. The court therefore concluded that in this case the negligence was at the lower end of the scale of offending.
II. Plea
The offender was originally charged with Dangerous Driving Causing Death (x2) and Dangerous Driving Causing GBH (x1). These are serious charges carrying maximum gaol terms of 10 years and 7 years respectively.
Following negotiation with the NSW Director of Public Prosecutions the offender pleaded guilty to the less serious charges of Negligent Driving Causing Death (x2) and Negligent Driving Causing GBH (x1); the negligent act being the swerving onto the wrong side of the road.
III. Subjective factors
The offender was 22 years of age. He had no prior criminal history and was a person of good character; he was remorseful and had suffered emotionally and physically as a result of his conduct. A psychological report concluded that the offender had symptoms consistent with Post-Traumatic Stress Disorder.
IV. Sentencing considerations
Despite the culpability of the offender being placed at the lower end of the scale the court stressed that the offender’s conduct had resulted in the deaths of two completely innocent persons and the infliction of grievous bodily harm upon a third.
After reviewing the authorities (in particular Bonsu and R v MacIntyre(1998) 38 A Crime R 135) the court stressed the need to tread carefully in showing leniency for good character in these cases to avoid giving the impression that persons of good character may, by their action, take the lives of others and yet receive lenient treatment.
The magistrate was of the view that because of the objective seriousness of the charges no penalty other than a custodial sentence was warranted. The court afforded the offender a 15% discount for his pleas of guilty but still considered that the only appropriate way for the sentence to be imposed was by way of full-time imprisonment.
Multiple victims
Because there was more than one victim the issue arose as to whether any sentences imposed should be served cumulatively. The court quoted from R v Janceski [2005] NSWCCA 288 in explaining the approach of sentencing for a single action aggravated by multiple victims:
“…separate sentences should usually be fixed which are made partly concurrent and partly cumulative, each such sentence being appropriate to the existence of only one victim and the aggregate of the sentence reflecting the fact that there are multiple victims resulting from the same action by the offender.”
In this case the court was of the view that there must be some partial cumulation in sentences in order to address the total criminality involved.
Non-parole period – finding of “special circumstances”
Section 44 of the Crimes (Sentencing Procedure) Act provides that when sentencing an offender to imprisonment for an offence, the court must first set a non-parole period for that sentence (that is, the minimum period for which the offender must be kept in detention). The non-parole period is imposed because justice requires that the offender serve that period in custody. It must reflect the criminality involved in the offence, including its objective gravity and the need for general deterrence.
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 that there are special circumstances for it being more. A finding of special circumstances therefore authorises a reduction in the otherwise appropriate non-parole period.
In this case the magistrate was prepared to find ‘special circumstances’ due to the age of the offender, the fact that this would be his first time in custody and the impact of the sentence upon his family and girlfriend.
V. Sentence
The offender was convicted and received the following sentence:
1. Count 1 – Negligent Driving Causing Grievous Bodily Harm:
- 12 month good behaviour bond under s.9 Crimes (Sentencing Procedure) Act;
- Disqualified from holding a driver’s licence for 12 months.
2. Count 2 – Negligent Driving Causing Death:
- Two months fixed term imprisonment;
- Disqualified from holding a driver’s licence for 12 months.
3. Count 3 – Negligent Driving Causing Death:
- 10 months and six days imprisonment (after applying a 15% discount to an original term of 1 year) with a non-parole period of two months;
- Disqualified from holding a driver’s licence for 12 months.
The court ordered partial cumulation of counts 2 and 3 so that the offender was to serve a total of 3 months imprisonment. Thereafter he was released to parole for a further period of eight months and six days.
VI. Commentary
The court was bound by the decision of the NSW Court of Criminal Appeal in Bonsu that nothing short of a full-time custodial penalty was appropriate. The offender’s conduct had resulted in the deaths of two innocent people and the infliction of grievous bodily harm upon a third. Full-time custody was clearly the appropriate sentence, however the finding of ‘special circumstances’ and partial cumulation of the sentence enabled the offender to receive a shorter non-parole period. This meant that the ultimate sentence was consistent with the court’s finding that the offender’s negligence was at the lower end of the scale of offending, while still addressing the objective gravity of the offending behaviour and the need for general deterrence.
Director of Public Prosecutions v Pearce [2011] NSWLC 32
I. Facts
The offender was driving a B Double semi-trailer on the Pacific Highway when he fell asleep at the wheel. His vehicle failed to navigate a left hand bend and crossed to the wrong side of the road, crashing into a car travelling in the opposite direction. The driver of the car was taken to hospital but died some time later.
Despite having received training in ‘Basic Fatigue Management’ by his employer, the offender had been driving for a total of almost 36 hours in the 72 hours leading up to the accident. The court noted that common sense tells us this amount of driving is likely to result in a significant level of tiredness and impact on the capacity of for the appropriate level of concentration required when driving such a large vehicle.
After the accident the offender sought medical assistance. He was subsequently diagnosed as suffering from ‘severe obstructive sleep apnoea’; a diagnosis that was confirmed by a medical practitioner appointed by the NSW Director of Public Prosecutions.
II. Plea
The offender was originally charged with Dangerous Driving Causing Death and committed to stand trial before the District Court. Following the independent assessment of the offender’s medical condition of sleep apnoea the charge was downgraded to that of Negligent Driving Causing Death, which carries a less severe penalty.
The matter was remitted back to the Local Court and the offender entered a plea of guilty. This plea was taken into account at sentencing pursuant to s.22 Crimes (Sentencing Procedure) Act 1999 NSW and the offender received a 17.5% discount on his sentence.
III. Subjective factors
The offender was 52 years of age with no criminal record. He had been a truck driver for 10 years. The court noted that he was a person of good character and unlikely to re-offend.
IV. Sentencing considerations
The court noted that if it were not for the post-accident diagnosis of a sleep disorder (which was likely to have contributed to the cause of the accident) the level of negligence involved in the circumstances would have placed this matter at the upper end of the range of seriousness. A reasonable member of the community would have realised that long periods of driving over three days was likely to result in significant tiredness. Taking into account the sleep disorder, however, the court placed the offender’s negligence in the middle range of objective seriousness.
The court relied on Bonsu and disregarded sentencing statistics in relation to previous offences of Negligent Driving Causing Death put forward by defence counsel. The court also noted that the maximum term of imprisonment for the offence had in recent years increased from 6 months to 12 months to 18 months, meaning the appropriate sentence to be imposed in this matter needed to be one that emphasises general deterrence.
V. The sentence
Having found that the objective seriousness of the offence placed it towards the middle range for the category of offence, the magistrate was of the view that the appropriate sentence was one of imprisonment for 12 months; reduced to 9 months and 27 days having regard to the plea of guilty. The offender was an interstate resident, meaning the sentencing options of Home Detention and Intensive Correction Order were both unavailable.
The offender was therefore convicted and sentenced to imprisonment for a period of 9 months and 27 days, such sentence being suspended pursuant to s.12 of the Crimes (Sentencing Procedure) Act 1999 upon the offender entering a bond to be of good behaviour and to continue receiving treatment for his sleep disorder. He was also disqualified from holding a drivers licence for two years, which was reduced from the automatic period of disqualification of three years.
VI. Commentary
Avoiding full time custody was a fortunate result for the offender. His diagnosis of sleep apnoea led to the original charge of Dangerous Driving Causing Death being downgraded to Negligent Driving Causing Death, an offence which carries substantially less severe penalties. The offender had no prior criminal convictions and the court accepted that the offender was a person of good character. Coupled with the steps the offender took after the accident to investigate his sleeping activities the court accepted that he would learn from his experience and was unlikely to re-offend.
Despite these subjective characteristics of the offender however, the court accepted that in light of Bonsu it must tread cautiously in showing lenience for good character in such cases. Noting the need for general deterrence it determined that imprisonment was the appropriate sentence. Taking into consideration the personal circumstances of the offender the court was satisfied that the competing interests of justice would be met by suspending the execution of the sentence.
The court also exercised its discretion in reducing the automatic period of disqualification from three years to two, taking into account the steps the offender had taken in respect of his sleep disorder.
