New South Wales District Court CITATION: R v HAOUI [2007] NSWDC 139 HEARING DATE(S): 30th January 2007 - 7th February 2007 20th April 07 JUDGMENT DATE: 20 April 2007 EX TEMPORE JUDGMENT DATE : 20 April 2007 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: See paragraphs [47], [48] & [49] CATCHWORDS: Criminal Law - Sentence - Grievous Bodily Harm - Driving at a speed dangerous - Lengthy Delay LEGISLATION CITED: Crimes Sentencing Procedure Act CASES CITED: R v Jurisic (1998) 45 NSWLR 209 R v Whyte & Ors (2002) 55 NSWLR 252. PARTIES: Crown Joseph Robert Haoui FILE NUMBER(S): 04/11/1278 COUNSEL: Paul Leask (Crown) D Campbell SC (Offender) SOLICITORS: NSW DPP Slattery Jurd & Co SENTENCE 1 HIS HONOUR: Joseph Robert Haoui appears for sentence today after having been found guilty of an offence of driving at a speed dangerous to the public whereby grievous bodily harm was occasioned. 2 The offender was driving down Frederick Street in Rockdale. I am satisfied beyond reasonable doubt that he was travelling at at least ninety-one kilometres an hour. 3 The reason I am satisfied that that was at least the speed at which he was travelling is because of evidence adduced by the crown at trial from Sergeant Kelly. He concluded from the objective material available to him, with the aid of various measurements and calculations, that 91 kph was the lowest speed at which the offender was travelling. 4 As he was heading down Frederick Street, a utility driven by Mr Khanafer pulled out of the driveway at number 89. The passenger in the front seat was a man by the name of Kamal Mousselamani. 5 Mr Khanafer said that he saw the offender's vehicle before he pulled out of the driveway but had not realised it was travelling so fast. 6 The offender's vehicle struck the rear of the utility causing it to spin around. Mr Mousselamani suffered injuries in that collision and he was taken to hospital. It was there discovered that he had a fractured cheekbone. He underwent an operation and the evidence suggested that he has been left with no residual disabilities or impairment. 7 Indeed at trial, one of the real issues for the jury to determine was whether Mr Mousselamani had suffered grievous bodily harm. There was evidence that a very short time after this collision he attended his son's wedding and there played a musical instrument which required him to blow into that instrument. 8 I am satisfied that the injuries of course amounted to grievous bodily harm but very much at the low end of that scale. 9 The offender was nineteen years of age at the time. He had a number of matters on his driving history including three speeding matters. 10 Since this collision, he has also committed other traffic offences: one more speeding matter and an offence of making an unlawful U-turn. 11 However, the offender has no criminal history. 12 He was brought up in a supportive family, living with his parents and two younger sisters in the family home. He completed Year 12 and has then undergone further study, initially in the IT area before commencing further study in the hope that he would become a police officer. 13 After this collision, it may be that someone told him that he could not become a police officer if he was convicted, or it may be that he felt uncertain himself, and so he discontinued his studies. 14 Since then he has begun to work full-time in the family cleaning business. References and other material were tendered to me today which indicate that there is a lot to be said for the offender. He is a hard worker and gets on well with his employees and clients. 15 This is, like many cases of this offence which come before the courts, an offence committed by a person who, (in this case, apart from some traffic matters), is a person of otherwise impeccable character. 16 He is now twenty-three years old. He was only nineteen when this collision occurred. That four year delay is a matter about which Mr Campbell spoke at length this afternoon. 17 This is a case where the offender has had the matter hanging over his head for that period. It has led to some uncertainty which in turn has led to the offender discontinuing a tertiary education course that he was undergoing, and no doubt the offender has been anxious at the outcome of these proceedings. 18 It seems that no part of the delay was attributable to any failure of the offender to appear at court or have his witnesses available or things of that nature. Instead, delay seems to be attributable to three circumstances: the first that the offender was discharged at committal; the second that a trial listed in 2005 was adjourned on application of the crown when its witnesses were not available; and the third when the crown was dilatory in paying the costs thrown away by the offender because of that successful adjournment application. 19 The authorities speak of the measure of leniency which can be shown to someone in the offender's position who has had a matter hanging over him for a lengthy period of time. 20 There is, however, one qualification to what I have been saying and that is this. The offender must have known that he was travelling at high speed down Frederick Street. He could not have believed that he was travelling at or close to fifty kilometres an hour, that being the speed limit applicable at the time. 21 Although it is an objective test as to whether he was driving dangerously or not, I am satisfied that the offender must have realised that he was driving at a dangerous speed. 22 It was always open for the offender to admit his guilt. It may be that he thought he had a chance of getting off, especially given the state of the crown brief until very late. But given what the offender must have known about the way he was driving, a plea of guilty would have obviated the need for these protracted proceedings. 23 So there is that qualification, as I have said, to the circumstances which have resulted in this matter being delayed for such a lengthy period of time. 24 It is not a case either where the offender is a mature man. This is a man whose life is changing as he grows older, and so a four year delay to him would be felt particularly keenly. At a time when he would be thinking about consolidating his career, settling down, things of that nature, he has had this matter in front of him for a long time. 25 I want to also refer to the circumstance that, in some sense, this collision was attributable to the way that Mr Khanafer drove. He did see the offender's car before he pulled out of the driveway. It is not a case where the collision was solely attributable to the dangerous speed at which the offender was travelling. However, not too much weight can be placed on this circumstance. 26 The offender drove in such a way that he represented a grave risk to people like Mr Khanafer and Mr Mousselamani. Mr Khanafer might be forgiven for thinking that there would be few people travelling on a wet road down Frederick Street at ninety-one kilometres an hour. 27 The offender's decision to drive at such a high speed was a seriously criminal one. This is, as the photographs revealed, a normal suburban street. There are always likely to be people out and about at 5 o'clock in the evening. There will be people pulling out of driveways, as Mr Khanafer was. There will be pedestrians crossing at pedestrian crossings. The decision by the offender to drive at such a high speed, especially on a wet road, must be firmly borne in mind when deciding on the appropriate sentence. 28 Of course, attention was paid during sentencing proceedings to the two guideline judgments of R v Jurisic (1998) 45 NSWLR 209 and R v Whyte & Ors (2002) 55 NSWLR 252. At one stage Jurisic led to some decisions as to whether there was a bright line between momentary inattention or misjudgement on the one hand and abandonment of responsibility on the other. But the better view and the prevailing view now is that there are sometimes cases in the middle. I am satisfied that this is one of them. 29 It is certainly not a case of momentary inattention or misjudgement. The decision to drive at ninety-one kilometres an hour was a deliberate one. But nor is this a case where there was anything in the driving itself which indicates that the offender had abandoned responsibility for his actions. 30 One thing that Jurisic and Whyte had in common of course was that they were intended to change the way judges imposed sentences for this type of offence. There can be no argument against the proposition that they were intended to increase the level of sentencing for offences of this type. 31 When people drive as the offender did there is always a substantial risk of injury or death, and that is why sentences should be imposed which reflect the fact that the offender deliberately chose to run the risk of such injury or death, and which act as a general deterrent to others who might be tempted to run such risks. 32 The offender, as I have said, has no prior convictions. There are some qualifications to a finding that he was of prior good character and has good prospects of rehabilitation and they, of course, relate to his driving history. 33 As to whether the offender has shown remorse, there seems to be some contradiction between what the offender told the author of the pre-sentence report and what he told Dr Westmore. 34 The pre-sentence report includes these words: "Mr Haoui disputed that he was speeding at the time of the accident. He regrets the injuries sustained by the elderly man but maintained that it was an accident." 35 On the other hand, Dr Westmore's report suggests that the offender fully accepted the verdict of the jury in this case. 36 According to s 21A Crimes (Sentencing Procedure) Act I have to make a finding as to whether the offender was remorseful or not. I am satisfied that he is sorry in the sense that he regrets the injury to Mr Mousselamani, but I am not able to find, on the balance of probabilities, that he is remorseful in the sense that he accepts that that was because of the way he was driving. 37 This is a matter where the offence could have been dealt with at the Local Court. It seems that the DPP made a decision that the matter would be committed to this court if it was to go ahead. 38 I am not quite sure why that was the case. It seems to be a matter eminently suitable for the Local Court, especially given the very limited nature of the injuries suffered by Mr Mousselamani. Had that happened, the delay of four years would have certainly not been experienced. 39 I should make a specific finding that there are no aggravating matters as set out in s 21A of the Crimes (Sentencing Procedure) Act present in this case. 40 Mr Campbell submitted that I would not be able to find that a sentence of imprisonment was required in this case. 41 Section 5 of the Crimes (Sentencing Procedure) Act reproduces in statutory form a principle which has bound sentencing judges for many years, that is, that imprisonment is a sentence of last resort. 42 Notwithstanding that, I am satisfied that a sentence of imprisonment is required in this case. 43 There is a fundamental rule of sentencing which says that a sentence imposed has to reflect the objective gravity of an offender's conduct. Here, as I have mentioned a couple of times, the offence was objectively grave because the offender willingly and deliberately put other people at risk by travelling at high speed on a wet road where people were likely to be out and about. That deliberate decision can only be met, I am satisfied, with a sentence of imprisonment. 44 Mr Campbell, as a fallback position to his primary submission, said that I should suspend the sentence I will impose. Because the sentence I have in mind is less than two years, suspension is an option. However, I am not satisfied that in this case suspension adequately reflects the offender's conduct and adequately would act as a deterrent to others who may be tempted to drive as the offender did. 45 I find special circumstances in this case, this being the first sentence of imprisonment imposed on the offender and the fact that his speeding matters suggest that an extended period of supervision on parole would be of benefit to him. 46 I will not, however, impose a sentence of full-time custody. The offender is, as I have said, a man about which it can be said that he has a lot to contribute to society. He is an industrious and hardworking young man, and I am satisfied that the appropriate sentence is one of periodic detention. 47 The order I make is therefore this. The offender is sentenced to imprisonment. I set a non-parole period of nine months with a head sentence of eighteen months, that sentence to be served to be way of periodic detention. 48 The offender is therefore to attend the Parramatta Periodic Detention Centre at 8.30am on 5 May 2007 in order to commence serving his sentence. 49 I also disqualify the offender from driving for a period of eighteen months. That is reduced from the automatic period of three years because of the offender's need to have his licence in order to most efficiently carry out his current occupation. ********** 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.