R v Crowley [2022] NSWDC 296

District Court New South Wales

Medium Neutral Citation: R v Crowley [2022] NSWDC 296 Hearing dates: 22 July 2022 Decision date: 09 September 2022 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Imprisonment for 2 years 7 months with a non-parole period of 1 year 7 months; disqualified from driving for 2 years. Catchwords: CRIME - SENTENCE - dangerous driving occasioning death - causing bodily harm by misconduct Legislation Cited: Crimes Act 1900 (NSW): ss 52A(1)(c) and 53. Cases Cited: R v Whyte [2002] 55 NSWLR 252; Moodie v R [2020] NSWCCA 160 Category: Sentence Parties: Regina (Crown)

Joseph Paul Crowley (aka Joseph Paul Winters) (Offender) Representation: Ms Prowse (Crown Prosecutor)

Mr Shukoor (Counsel for Offender) File Number(s): 2021/00105445 Publication restriction: Nil

1. Joseph Paul Crowley (you are also known as Joseph Winters), you appear for sentence today in relation to the principal offence of dangerous driving occasioning death. This offence (sequence 2) involves a contravention of s52A(1)(c) of the Crimes Act. The maximum penalty for that offence is 10 years imprisonment. There is no standard non-parole period. There is an automatic period of disqualification of 3 years and a minimum period of disqualification of 1 year. 2. Although there is no standard non-parole period, there is a relevant guideline judgment, R v Whyte [2002] 55 NSWLR 252. 3. In addition to the principal offence, you have asked me to take into account one matter on a Form 1 which I have certified. The matter on that Form 1 is causing bodily harm by misconduct (sequence 3). That matter involves a contravention of s53 of the Crimes Act. 4. Before proceeding further, it is appropriate at this point to quote from the decision of Bell P (as the Chief Justice then was – and with whom Davies J and N Adams J agreed) in Moodie v R [2020] NSWCCA 160. At [109], his Honour said: "In approaching the task of [sentencing] in cases involving death by dangerous driving, as has frequently been said… judges are asked to perform an impossible task as no human life can ever be equated with a period of imprisonment and no gaol term can return a loved one. A life should never be measured simply by the punishment meted out to an offender. The sentencing discretion must reflect an adequate punishment, recognising the harm done and denouncing the conduct of the offender and also reflect the objective seriousness of the offence, the offender's moral culpability, his or her prospects of rehabilitation and the likelihood or unlikelihood of future offending." And at [136], his Honour said: "Any death occasioned by dangerous driving will leave a family and friends of the deceased bereft and invariably angry at the actions of the driver. A broad spectrum of culpability may underpin such tragic outcomes, however, as is recognised in the sentencing guideline judgment for offences under s52A of the Crimes Act, as well as the fact that a driver may be charged under s52A(2) of the Crimes Act with the offence of "[a]ggravated dangerous driving occasioning death", which can attract a penalty of up to 14 years' imprisonment." 1. The facts surrounding the offending are, to a significant extent, contained in a document entitled "Agreed Facts" (see Exhibit A, Tab 4). However, to fully understand what is contained in those facts, it is necessary for regard to be had to the contents of the dashcam footage (Exhibit D), to which I shall also later refer. 2. The facts can be summarised as follows. 3. On 15 April 2021, at about 8:30pm, you were driving a 2015 Isuzu truck along the Cumberland Highway in the Sydney suburb of Smithfield. You were alone in your vehicle. 4. Also travelling along that highway, and in the same direction (but ahead of you), was a Hyundai van which was being driving by Mr Aziz Alhanyan. Mr Alhanyan's younger brother (Mr Abdallah Al Turfi) was a passenger in that van. 5. At a point on the highway, near and to the north of the intersection with Sturt Street, the van being driven by Mr Alhanyan broke down. Mr Alhanyan's vehicle was in lane 1 (i.e. the far left lane). 6. The section of the highway where that van broke down had three lanes in each direction, separated by a raised concrete island. There was no separate or additional breakdown lane. 7. After his vehicle broke down (and, therefore, came to a stop), Mr Alhanyan turned on the van's hazard lights and got out of the vehicle. He opened up the bonnet and was standing in front of the van inspecting the engine. His brother remained in the van. 8. In the meantime, you had stopped at the intersection of the Cumberland Highway and Sturt Street which was controlled by traffic lights. You were also in lane 1. 9. After the traffic lights at that intersection turned green, you continued driving north along the highway in lane 1. You were not driving in excess of the speed limit - or in any other fashion which might have constituted an aggravating circumstance (as considered in R v Whyte). An Uber driver (whose vehicle had an operative dashcam) was driving more or less beside you in lane 2. 10. You and the Uber driver travelled towards the spot where Mr Alhanyan's vehicle was stopped. The dashcam footage (which was played once during the sentence hearing but which I have seen on numerous occasions subsequently in chambers) clearly shows that the traffic at that time on the highway was light and that the roadway was dry. It shows the very substantial and effective street lighting and the gentle left-hand bend in the highway. And it also clearly shows Mr Alhanyan's vehicle and its operative hazard lights. 11. All of this was clearly visible for a significant distance and for a significant period of time, and would, and should, have been obvious to you if you had been keeping a proper lookout – but you were not. Why you were not keeping such a lookout is not revealed in the material before me. In this context, I note that you have given 3 different explanations: one to police (see [17] and [18] of the Agreed Facts); another to your treating psychologist, Ms Cat (see Ex 1 p1); and another to the psychologist who prepared an expert's report, Mr Borenstein (see Ex 3 p2). 12. Just as the Uber vehicle passed by Mr Alhanyan's van, and at the last possible moment, you sought to move from lane 1 to lane 2. But it was far too late. 13. Your truck collided with the left-hand side of the Uber vehicle (which was travelling at about 60-65 km/h) and the back of Mr Alhanyan's van. 14. Mr Alhanyan, who was still standing in front of his vehicle, was propelled forward. He landed in lane 2, and your truck then ran over him. Mr Alhanyan died shortly thereafter at the scene from the blunt force injuries he sustained. 15. Mr Al Turfi was still inside the van at the time of the impact with your truck. He was thrown about in the van and subsequently taken to hospital where a 3cm wound was sutured. He also sustained a right nasal bone fracture. Mr Al Turfi was discharged from the hospital on the next day. The agreed facts state that he is expected to make a full (physical) recovery. 16. This impact was not the result of momentary inattention; nor was it a total abandonment of responsibility. Your moral culpability was neither high nor low. 17. At the time of his death, Mr Alhanyan was only 32 years old. He was a deeply and much loved husband, son, brother and father – he and his wife had 5 young children. 18. Mr Alhanyan's death has caused immeasurable grief to his family as the victim impact statements made by his wife, mother, father, brother and sister powerfully reveal. 19. You did not give sworn oral evidence during the course of the sentencing proceedings. 20. Rather, your subjective circumstances were advanced through the reports of two psychologists (Ms Cat and Mr Borenstein); a Traffic Offenders Intervention Program Court report; and a collection of references. 21. You are 42 years of age. 22. Your upbringing was unremarkable except that, at about age 9, you were diagnosed with ADHD. 23. You were brought up in a loving and supportive family where there was no trauma, abuse, domestic violence or neglect. 24. However, in more recent years, you have become estranged from your mother, but you have a good relationship with your stepfather. 25. You left school after completing Year 12. You then had a series of responsible jobs in the IT industry, sales and marketing, mortgage broking and real estate. 26. At some point not clearly identified in the material before me, you became involved in illegal drugs. 27. You have significant offences as a juvenile but, of course, they are not to be held against you. 28. However, you also have significant offences as an adult. That offending occurred in the period 2000 to 2011. Those offences included larceny, common assault, supplying prohibited drugs, participating in a criminal group, possessing an unauthorised firearm and driving whilst disqualified. Some of the offences received terms of imprisonment – which were suspended. However, you have not served a term of full-time imprisonment. 29. Although you have not offended since 2011 (and appear to have addressed your previous illegal drug issues), you are not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender. 30. However, the fact that you have not offended in that period is relevant to your prospects of rehabilitation. 31. At the time of the collision, you were working as a supervisor for a traffic control company. In fact, you were on your way to start a night shift. 32. Since the collision, you have not driven a motor vehicle and you have been working as a bicycle mechanic. 33. Unsurprisingly, as a result of the collision, you have suffered from PTSD as well as genuine feelings of guilt, remorse and contrition. 34. There is no evidence that, as a consequence of the collision, you have sought to deal with your emotional difficulties by resuming the use of illegal drugs. Rather, you have engaged a professional psychologist to assist you. 35. You are held in high regard by people you have worked with; and you have the support of your partner, family and friends. 36. In all these circumstances, I regard your prospects for rehabilitation as being good. 37. Accordingly, specific deterrence is of reduced – but still some – significance. However, for the principal offence general deterrence is fully engaged. 38. No sentence other than a period of imprisonment is appropriate for the principal offence. Because of the nature of the matter on the Form 1 there will be a modest increase in the sentence for the principal offence. 39. You entered an early plea of guilty and, accordingly, you will receive a discount of 25 per cent for the utilitarian value of the plea. 40. Joseph Paul Crowley, for the offence of dangerous driving occasioning death, and taking into account the matter on the Form 1, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 3 years 6 months. After the discount of 25 per cent, the term of imprisonment is 2 years 7 months. 41. Because this is your first time in custody, I make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. 42. The start date of the sentence will be backdated by two days to take account of the period of time you were refused bail after your arrest on 15 April 2021. 43. Accordingly, I fix a non-parole period of 1 year 7 months to date from 7 September 2022 and which will expire on 6 April 2024. 44. I fix a balance of 12 months to date from 7 April 2024 and which will expire on 6 April 2025. 45. You are disqualified from driving for a period of 2 years to date from 7 April 2024. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 September 2022