New South Wales District Court CITATION: R v Thai [2009] NSWDC 57 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 11/02/09 and 03/04/09 JUDGMENT DATE: 3 April 2009 JURISDICTION: Criminal JUDGMENT OF: Murrell SC DCJ CATCHWORDS: CRIMINAL LAW - particular offences - offences against the person - driving offences - culpable or dangerous driving causing death or bodily harm - test of liability - relevance of deceased's manner of driving - CRIMINAL LAW - particular offences - offences against the person - driving offences - sentence - culpable or dangerous driving causing bodily harm - New South Wales - periodic detention LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing and Procedure) Act 1999 R v Jurisic (1998) 45 NSWLR 209 CASES CITED: R v Khatter [2000] NSWCCA 32 R v Samadi [2006] NSWCCA 308 R v Whyte [2002] NSWCCA 343 PARTIES: Regina Thanh Vinh THAI FILE NUMBER(S): 2008/00000676 COUNSEL: Mr R Cooley for the Crown Mr E Ozen for the Defendant 1 On the trial date, the offender pleaded guilty to the offence that, on 25 September 2006 at Smithfield, he drove in a manner dangerous and thereby caused the death of another person contrary to s 52A (1)(c) of the Crimes Act 1900. 2 The maximum available penalty is ten tears imprisonment. The Accident 3 The offender drove south along the Cumberland Highway, Smithfield, within the speed limit of 60 km per hour. Where the Cumberland Highway intersects with Brennan Street, he drove through a red light without slowing. His vehicle collided with the deceased's vehicle, causing the death of the deceased. In the course of the accident, the offender injured his head. He has no clear recollection of the accident. 4 The parties agree that the offender was "momentarily inattentive" when he failed to observe the amber and red lights. The offender's brother died a couple of months before the accident. The offender had been very close to his brother, who was also his next-door neighbour. The offender had been attempting to reconcile with his estranged wife, who resided in the United States. She died suddenly, two weeks before the accident. I accept that the offender's "monetary inattention" was due to distraction associated with these recent tragedies. The Deceased's Manner Of Driving 5 The Crown submitted that the deceased entered the intersection from Brennan Street, to the offender's right, in accordance with a green light. The offender submitted that the Crown cannot exclude the possibility that the deceased drove north along the Cumberland Highway, attempted an illegal right-hand turn into Brennan Street, and drove across the path of the offender's vehicle. The offender argued that, on the alternative scenario, his culpability is lower. 6 The Cumberland Highway and Brennan Street do not intersect at right angles. An aerial view of the intersection was provided in Exhibit 2, Figure 3. 7 A green light for Brennan Street traffic was triggered only by a vehicle or pedestrian. Once the trigger was activated, an amber light was displayed to southbound Cumberland Highway traffic for 4.5 seconds, then a red light was displayed in both directions for two seconds. Thereafter, the light facing the Cumberland Highway remained red for a further five seconds, while the light facing Brennan Street is green for five seconds. 8 The drivers of other southbound vehicles said that, when the impact occurred the Cumberland Highway lights were red and southbound cars were stopped at the lights, four or five cars deep. The witness Mr Berkeley said that the lights turned green approximately five seconds after the impact. The witness Mr Hart was certain that the deceased's vehicle came from Brennan Street. 9 The evidence of the light phasing and the evidence of the other southbound drivers is consistent with the Brennan Street lights having just turned green, permitting the deceased's vehicle to enter the intersection from Brennan Street. The evidence sits poorly with the alternative scenario that the deceased attempted to "run the red light". If southbound cars were stationary four or five deep, the Cumberland Highway lights must have been red for two to three seconds and any attempt by the deceased to "run the red light" would have been extremely foolish. 10 Mr Sculthorpe, a motor vehicle accident reconstructionist called by the prosecution, relied on vehicle damage profiles and post-collision vehicle movements to conclude that the deceased entered the intersection from Brennan Street, as illustrated in Exhibit D, Figure 9. 11 The only evidence supporting the alternative scenario was that of Mr Joy, a traffic engineering and road safety consultant called by the offender. He said that the vehicle damage profiles showed an offset head-on impact. The damage profiles, including the damage to the floor rail of the deceased's vehicle made the alternative scenario more likely. Mr Joy opined that the vehicles impacted at a 20° angle, when the offender's vehicle was travelling at 55 km per hour and the deceased's vehicle was travelling at 9 km per hour. 12 Mr Joy agreed that the prosecution scenario was possible. On that scenario, the vehicles impacted head–on at a 40° angle, when the offender's vehicle was travelling at 58 km per hour and the deceased's vehicle was travelling at 17 km per hour. Mr Joy conceded that the post-impact rotation of the deceased's vehicle 270° in a clockwise direction may have been more likely with a 40° collision because that would have involved a greater offset and therefore more rotation. 13 Given Mr Joy's concession, and because Mr Sculthorpe's opinion is supported by the evidence of light phasing and the lay evidence, I have no doubt that Mr Sculthorpe's opinion is correct. The deceased entered the intersection from Brennan Street in accordance with a green light. 14 The offender's culpable conduct was "momentary inattention" and the resulting failure to observe amber and red lights. That conduct had nothing to do with the deceased. 15 In any event, an offender's culpability under s 52A (1) (c) of the Crimes Act 1900 is to be assessed by reference to his own conduct, not that of the deceased. Section 52A provides: "(1) A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle: … (c ) in a manner dangerous to another person or persons. … (8) It is a defence to any charge under this section if the death … occasioned by the impact was not in any way attributable …: … (c) to the manner in which the vehicle was driven." 16 In order to prove the offence, the Crown need only establish that an accused drove a vehicle that was involved in an impact occasioning death and that, at the time of the impact, the accused was driving the vehicle in a manner dangerous to another person. Pursuant to s 52A(8), The accused will be exonerated only if it is established that the death "was not in any way attributable" to his/her manner of driving (emphasis added). Under s 52A, there is no scope for apportioning responsibility between an accused and a deceased in the way in which responsibility may be apportioned in civil proceedings. Objective Seriousness of Offence 17 The guideline judgements of R v Jurisic (1998) 45 NSWLR 209 and R v Whyte [2002] NSWCCA 343 and cases such as R v Khatter [2000] NSWCCA 32 refer to the spectrum of culpable conduct ranging from cases involving "momentary inattention or misjudgement " at one extreme to cases involving an "abandonment of responsibility" at the other. In Whyte, a typical case was identified, as were typical aggravating features. The Court confirmed that a full-time custodial sentence should usually be imposed, unless there is a low level of moral culpability, such as "momentary inattention or misjudgement", although the converse does not necessarily apply (at [214]). A sentencing judge must make a clear finding on where on the continuum of culpability an offence lies: R v Samadi [2006] NSWCCA 308, [21]. 18 In this case, the offender's culpable conduct had one facet, "momentary inattention" and the associated failure to observe amber and red lights. His conduct was inadvertent rather than deliberate. The offender was distracted because of the recent loss of his brother and estranged wife. The failure to observe the lights lasted for five or six seconds. No aggravating feature was present. I find that the offender's culpability was low. It may not have been at the very lowest end of the spectrum because it lasted for five or six seconds, but was close to that end. 19 The case bears the features of the Whyte "typical case", except that the offender is not a young offender. In some respects, age tells in his favour. It adds significance to his lack of a prior criminal or traffic history, although persons who commit dangerous driving offences are often of prior good character and that factor may be of less relevance in such cases. In so far as the "typical case" contemplates that a plea of guilty was entered at the earliest reasonable opportunity, this case differs because the plea was entered on the day fixed for the trial. 20 The Crown concedes that, because of the offender's low moral culpability, the Court is not bound to impose a sentence of full-time imprisonment. Subjective Circumstances 21 The offender is 54 years old. He lives with his teenage son and adult daughter, both of whom are students and financially dependent on the offender. The offender is a forklift driver and storeman. He has no prior criminal or traffic record. The offender is a very experienced driver. He has held a driver's licence for many years. For several years prior to the accident, he drove to and from work, one hour each way. 22 The offender was raised in Vietnam. At the end of the civil war, the offender migrated to the United States as a refugee. The remainder of his family came to Australia. The offender married in the United States. In 2000, the offender separated from his wife and migrated to Australia with his children. He has permanent resident status. 23 As a result of injuries that he sustained in the accident, the offender was hospitalised for three days after the accident. He underwent surgery to a broken ankle. The injury has healed well and he is left with minimal disability. He suffers from lower back pain. Other Considerations 24 I bear in mind the sentencing objectives set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. Of particular importance are the objectives of general deterrence and recognition of harm to the victim, the victim's family and the community. 25 I have considered the provisions of s 21A (2) and (3) of the Act. In so far as those provisions are relevant to the present case, they form part of the "typical case". I have referred to the offender's prior good character and lack of prior criminal record. It is most unlikely that he will reoffend. The Crown concedes that he has shown remorse within the meaning of s 21A (3). 26 I have considered the JIRS statistics. 27 The offender's counsel submitted that a suspended sentence under s 12 of the Act was warranted. In my view, such a sentence would be too lenient. Whatever the merits of the offender's subjective case, his conduct was not at the very lowest end of the spectrum of culpability and it must not be forgotten that his conduct resulted in the loss of a life. 28 I have considered the contents of the pre-sentence report. Although the offender has been assessed as unsuitable for periodic detention, I consider that such an order should be imposed. I do not accept that his work and family commitments render him unsuitable. The offender's adult daughter and other relatives are able to assist with his teenage son. Work commitments are no reason to exclude the sentencing option of periodic detention. Subject to the offender signing an appropriate undertaking, I am satisfied of the requirements in s 66 of the Act. I intend to impose a non-parole period of 22 months and a balance of term of eight months. 07/04/2009 - Paragraph numbers were missing - Paragraph(s) all 07/04/2009 - Tense error - Paragraph(s) 6 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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