R v Marc Leopold Streel [2018] NSWDC 15

District Court New South Wales

Medium Neutral Citation: R v Marc Leopold Streel [2018] NSWDC 15 Hearing dates: 7 February 2018 Decision date: 16 February 2018 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full time custodial sentence. For orders see [70] Catchwords: Dangerous driving occasioning death, drive manner dangerous Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Road Transport Act 2013 Cases Cited: R v Berg [2004] NSWCCA 300 R v Jurisic [1998] 45 NSWLR 209 R v Whyte (2002) NSWCCA 343 Category: Sentence Parties: Director of Public Prosecutions (Crown) Marc Leopold Streel (Offender) Representation: Counsel: B Queenan (Crown Prosecutor) P Harper (Offender) Solicitors: A Pankhurst M Spicer File Number(s): 17/16398 Publication restriction: Nil

remarks on sentence 1. The offender was committed for sentence on 19 September 2017 from Taree Local Court on a charge pursuant to s 52A(1)(c) of the Crimes Act 1900 of dangerous driving occasioning death – drive manner dangerous. 2. The maximum penalty for the offence is 10 years imprisonment and there is no Standard Non-Parole Period. The court has also been asked to deal with the following offence on a s 166 Certificate, namely, an offence of low range PCA – first offence pursuant to s 110(3)(a) of the Road Transport Act 2013. 3. The offences occurred on 17 January 2017 at Hallidays Point. A summary of the agreed facts is as follows. 4. On Tuesday 17 January 2017 the offender drove his white Nissan Patrol 4‑wheel drive vehicle from his home at Rainbow Flat to Port Macquarie to work on a construction site, leaving home at 4am. At 3pm that afternoon he drove his vehicle to a supermarket at Hallidays Point to buy groceries. He then went to the Hallidays Point Tavern at approximately 3.20pm where he drank five schooners of beer between 3.22pm and 5.32pm. He then began to drive home to Rainbow Flat along Blackhead Road. He had travelled west for approximately five kilometres and was approximately 300 metres to the east of the T-intersection of Blackhead Road and The Lakes Way. He was travelling at 80 kph, and the weather was fine, visibility good and traffic moderate. 5. The offender whilst driving lit a cigarette. In raising his left hand to take a puff from the cigarette, he dropped it and the cigarette fell down onto the inside edge of his shorts. The offender looked down to try and flick the cigarette out of his shorts, and whilst looking down, the left side of his vehicle crossed over the fog line onto the gravel shoulder of the road. The offender looked up and noticed the passenger side of the vehicle on the gravel shoulder of the road, and the vehicle approaching an aluminium guide post. He turned the steering wheel harshly to the right, causing a sharp turn, in which the tyres of the vehicle started to slide sideways. The vehicle continued to slide across the road onto the east-bound lane, his incorrect side of the road, and the car rotated clockwise. 6. At the same time, the deceased, Mark Ian Harrison, who was 60 years of age, was driving his BMW motorcycle east-bound on Blackhead Road. The front of the offender's 4-wheel drive vehicle collided heavily with the front and right hand side of the motorcycle in the centre of the east-bound lane. The force of the impact caused the motorcycle to disintegrate. The deceased's body was thrown approximately 30 metres from the road, and the force of the collision caused his helmet to be pulled from his head. The deceased sustained catastrophic injuries and died at the scene. 7. Following the collision, the offender's vehicle continued off the road down an embankment and landed on its driver's side on the northern side of the road. It sustained significant damage. 8. The offender was uninjured as a result of the collision and gave an account to paramedics who attended the scene consistent with the facts outlined above. Police arrived a short time thereafter and the offender was observed to be very distressed. He gave police an account consistent with the above, saying: "I was lighting a cigarette and I dropped it and I looked down and when I looked up I was off to the left side of the road and I was about to hit a pole and I swerved over to the other side of the road and hit the bike." 1. That version was later adopted by the offender in a record of interview. 2. The offender told police he had consumed three beers prior to committing the offence. He underwent a roadside breath test at approximately 6.04pm, which indicated a positive result of 0.078. The crash investigation unit attended and examined the collision scene and the vehicles. The results of those investigations are not in issue. Police also took statements from witnesses travelling east-bound on Blackhead Road, which confirmed the movements of the offender's vehicle and the collision with the deceased's motorcycle. 3. At 7.03pm, the offender underwent a breath analysis at Taree Police Station which returned a reading of 0.052. At 7.35pm, at Manning Base Hospital, he underwent blood and urine testing and was found to have a blood alcohol reading of 0.038/100 ml. 4. On the same evening, he was returned to Taree Police Station where he underwent a record of interview commencing at 8.29pm, in which he told the police the following: 1. He had owned the vehicle for approximately 12 months and had no mechanical issues with it. 2. He had left for work at 4am that morning and had spent the day working on a jack-hammer. It had been very hot and he had eaten no food during the day. 3. He consumed three schooners of beer at the Hallidays Point Tavern, and left shortly before the collision occurred. 4. He did not feel affected by alcohol and he regularly attended the tavern and consumed the same quantity, namely three schooners. 5. He was taking his normal route home and was familiar with it. 6. He was going 80 kph or less at the time of the collision. 7. He had control of the vehicle when he pulled the vehicle to the right but lost control after this point. 8. He had smoked for the last 40 years and normally smoked when he drove 9. He suffered from a medical issue with his left hand and was unable to straighten the ring finger on that hand. 10. He told the Officer in Charge that over the years a couple of times he had dropped a cigarette whilst driving. It happened rarely. When asked whether he could have done anything to prevent the crash from happening, he said "not smoke in the car, not go to the tavern". 1. In a report dated 28 March 2017, Dr Judith Perl, Clinical Forensic Pharmacologist, opined that at the time of the collision the offender's blood alcohol content would have been 0.065 g/100 ml. She opined: "At that level, all people would be under the influence of alcohol to the extent that there would be some impairment of at least some driving skills, in particular, perceptions, judgment, divided attention skills, lane-keeping skills, visual functions (such as scanning of the visual field and peripheral vision) and reaction skills (particular emergency reaction skills), which would all be impaired. She concluded: "I'm of the opinion that at the time of driving, Marc Leopold Streel was under the influence of alcohol to the extent that there would have been some impairment of his driving ability which would have contributed to the collision."