R v Geagea [2019] NSWDC 345

District Court New South Wales

Medium Neutral Citation: R v Geagea [2019] NSWDC 345 Hearing dates: 21 June 2019 Decision date: 21 June 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Aggregate term of imprisonment of 6 years 6 months with a non parole period of 4 years 2 months. Catchwords: CRIME - SENTENCE - dangerous driving occasioning death - failing to stop and assist after a vehicle impact causing death - special circumstances to vary ratio of non parole to head sentence. Legislation Cited: Crimes Act 1900 (NSW): ss 52A(1)(c) and 52AB(1). Cases Cited: R v Whyte [2002] NSWCCA 343. Category: Sentence Parties: Regina (Crown)

Georges Youssef Geagea (Offender) Representation: Mr Tunks (Crown Prosecutor)

Mr Stanton (Counsel for the offender) File Number(s): 2017/4507 Publication restriction: Access to Exhibit B is not granted to the media.

​Judgment 1. Georges Youssef Geagea, you appear for sentence today in relation to two offences. 2. The first offence is dangerous driving occasioning death. This involves a contravention of s 52A(1)(c) of the Crimes Act. 3. The maximum penalty for that offence is 10 years imprisonment. There is no standard non‑parole period. There is, however, a relevant guideline judgment of R v Whyte [2002] NSWCCA 343. 4. The second offence is failing to stop and assist after a vehicle impact causing death. This involves a contravention of s 52AB(1) of the Crimes Act. 5. The maximum penalty for this offence is also 10 years imprisonment and, again, there is no standard non-parole period. 6. The facts surrounding your offending are contained in an agreed statement of facts and, slightly recast by me as to style but not substance, they are as follows. 7. Clarence Street, Condell Park is an ordinary suburban street. It is fairly wide and it does not have a lot of thoroughfare traffic. The speed limit for that unremarkable suburban street is 50 kilometres an hour. 8. Although the street is unremarkable it contains, amongst other things, the loving family of Zacharias Andreau. He had been a hardworking man and, as a much beloved grandfather, was still working hard. He had a close and loving family. 9. On 28 December 2016, that is a few days after Christmas, Mr Andreau at about 4 o'clock in the afternoon left his house for the last time. He crossed that street to where his utility van was parked and he opened the door. There was no traffic on the road. There were no adverse weather conditions. 10. You were driving your van along that road at a speed somewhere between 57 and 61 kilometres an hour and you collided with Mr Andreau and you killed him. 11. The impact of the collision caused the offside door of Mr Andreau's vehicle to be peeled forwards. You must have therefore been driving within a matter of inches from the side of Mr Andreau's vehicle. 12. Why you collided with this man - whom you should have been able to see from a considerable distance away - is not the subject of any express evidence before the Court. You have not chosen to provide an explanation because it is you - and no-one else - who knows the answer to that question. 13. However, I have noted in the psychologist's report something about your work. You had your own tailoring business, which you operated on a mobile basis, and that you travelled to measure clients and to tailor from your home. Whether you were at work, travelling to and from customers, on 28 December 2016 - and whether you were on your mobile phone whilst doing so - is not the subject of evidence before the Court. Whilst I suspect that that may be an explanation, there being no other that occurs to me, as to why this collision occurred, I am unable to be satisfied of that fact beyond reasonable doubt and therefore I shall not sentence you on the basis of that being a proved fact. 14. I do pause to observe, however, that, if that had been proved, the sentence that would have been imposed upon you today would have been significantly greater. And I also pause to observe that I regard the current penalties for people using mobile phones whilst driving as being inadequate. But that is a matter for another venue and another case. 15. To return to the narrative of your offending. 16. You must have been aware of this collision because of the damage caused to your vehicle but you drove off, leaving Mr Andreau on the road. 17. Witnesses and residents heard the impact. They came to his assistance, while you did not. 18. And he died on the road. 19. In your attempt to escape from what you had done, you drove over a roundabout. That indicates to me some desperation on your part in seeking to flee from the scene. 20. After the collision the police made numerous media appeals for the driver who had killed Mr Andreau to come forward. You were aware of those media appeals. In fact, you conducted internet searches between 29 December 2016 and 3 January 2017 on topics such as "video for man dying on Bankstown New South Wales on 27 December". 21. So you were aware of what you had done and that the police wanted to talk to you. What you did, instead of the honourable thing of contacting the police, was you tried to get rid of that vehicle. You tried to sell it and to purchase another one that looked remarkably similar to the one that had impacted with the victim. 22. Fortunately for the community, but unfortunately for you, a member of the public recognised your vehicle and put two-and-two together - the media reports, the description of your vehicle. And, as a consequence of that, the police were engaged. 23. But even then, when the police came to your address, you persisted in your disgraceful abandonment of responsibility for what you had done because you lied. You told the police, when they first asked you about your van, that it had been stolen. However, the police were not fooled by this feeble lie of yours and the game was up. When confronted with the unavoidable consequences, you admitted your offending conduct. 24. Because I am unable, on the evidence before me, to be satisfied as to how it was that this accident occurred, I find the objective seriousness of the offending of the dangerous driving to be just below the mid-range for an offence of its kind. But your failing to stop and assist itself was reprehensible. It was made substantially worse by your efforts to cover up your misconduct in the period thereafter. It is therefore significantly above a mid-range offence for an offence of its kind. 25. The Crown has placed into evidence the compelling victim impact statements of the members of the family of Mr Andreau: his wife, who has lost her husband and who requires ongoing psychiatric intervention to deal with her grief; his children, some of whom also require ongoing specialist assistance to deal with their grief; and his grandchildren - all of whose lives, by your conduct, you have substantially damaged. 26. The Crown, however, has submitted that the impact on those victims is not of the kind that establishes any aggravating feature. In that sense, Mr Geagea, my hands are tied because, absent that submission, I would have found that, in the circumstances of this case, some, at least, of the members of the deceased's family have suffered more severely than might ordinarily be expected for an offence of this kind. But in the circumstances I have just described I shall not regard that as an additional aggravating factor. 27. Your subjective circumstances did not come to me through your presence in the witness box. Perhaps the reason for that I have already touched on, but again, I specifically want to say I am not speculating adversely to you about the cause of the accident. But for whatever reason, you have advanced your subjective circumstances to me not through the witness box - where your answers could be tested by the Crown - but through a psychologist's report. 28. You were born in Lebanon. You have been brought up in the Maronite Catholic faith. You had a loving family life as a young person. 29. When you were 15 you joined the local militia and you saw some terrible things when you were a teenager. 30. Your education was disrupted in Lebanon; and you did not go back to school in Lebanon after you joined the militia. 31. You came to Australia in 1994. You went to TAFE and from 1995 you have worked hard in this country in the tailoring business that I have already referred to. You have made a valuable contribution to the Maronite Catholic community. You are held in high regard by many people in that community, although it is not clear to me that your referees are aware of your disgraceful behaviour on 28 December 2016 and in the weeks following. 32. You are married and you have four young children. Your wife and your children are dependent on you for their income. 33. You have no issues with illegal drugs or alcohol. 34. It is speculated by the psychologist who prepared the report for me that it is possible that your fleeing the scene "may" have had something to do with the psychological consequences to you of being in the militia when you were 15. But I also note that the psychologist said there is no way to establish any causal connection between that experience and your decision to flee. I also note that the psychologist went on to say that your later decisions of investigating means of having your van destroyed or sold are less able to be viewed within the construct of any possible mental disorder. 35. You gave an indication through your lawyers to the prosecuting authorities at any early stage that you would be pleading guilty to the failure to stop and you will receive a discount of 25% for that early plea. However, in relation to the dangerous driving, whilst you indicated after your arrest that you were the driver, there was a prolonged dispute with the Crown as to whether or not the driving was dangerous. You ultimately have accepted that and therefore there will be a 10% discount for the late plea in relation to that matter. 36. You have purported to express remorse to the author of the psychologist's report. But I regard with some scepticism that expression of remorse by having regard to the circumstances of the failing to stop and assist and your conduct thereafter. 37. Remorse is an important aspect in considering a person's prospects of rehabilitation. Although I have some doubts about your remorse, there are other factors which positively point to your rehabilitation: your extremely limited criminal history; the strength and support of your family and your friends, many of whom are here in Court today; and your long history as a valuable contributor to Australian society. 38. I assess your prospects of rehabilitation as being reasonable to good. 39. No sentence other than a sentence of full-time imprisonment is appropriate for either of these offences. 40. You were taken into custody on 19 June 2019 when you, for the second time, failed to appear at court and the sentence date will be backdated to that date. 41. I shall impose an aggregate sentence. Consequently, it is necessary for me to state the indicative sentences underpinning the aggregate sentence. 42. In relation to the dangerous driving offence, except for your plea of guilty, the term of the sentence would have been 4 years and 8 months imprisonment. Because of the plea of guilty, the indicative sentence is 4 years 2 months imprisonment. 43. In relation to the failure to stop, except for your plea of guilty, the indicative sentence would have been 5 years and 6 months imprisonment. Because of the plea of guilty, the indicative sentence is 4 years and 1 month imprisonment. 44. Neither sentence would have been totally concurrent with the other. There would have been partial accumulation of each. The offences are discrete and, as the Court of Criminal Appeal has pointed out on numerous occasions, there is no proper basis for total concurrency for offences of this kind. 45. I therefore sentence you to an aggregate sentence of 6 years and 6 months imprisonment. 46. The question is: what period of time should be spent before you can be considered for parole? Ordinarily, the non parole period should be 75% of the head sentence. 47. Your counsel has submitted that there should be a finding of special circumstances to vary that ratio downwards. The circumstances he points to are: first, your age; and secondly, that this will be your first time in custody. In addition to the two matters raised by your counsel, there does seem to me to be two additional factors which I should take into account in support of his application. The first is touched upon by the author of the psychologist's report when he notes that your limited English skills would make you ineligible to participate in some correctional programming. The other matter is the fact that you have young children and a dependent wife and that will make prison more onerous for your than for many other offenders. 48. Consequently, I make a finding of special circumstances to slightly vary the ratio of the head sentence to the non-parole period. 49. I therefore fix a non-parole period of 4 years and 2 months to date from 19 June 2019 and which will expire on 18 August 2023. 50. I fix a balance of two years and four months to date from 19 August 2023 and which will expire on 18 December 2025. 51. Whether you are admitted to parole, Mr Geagea, will be a matter for the Parole Authority. It will depend largely on how you co‑operate and behave whilst you are in custody. 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: 25 July 2019