De Silva v Commissioner of Police [2020] QDC 241

DISTRICT COURT OF QUEENSLAND CITATION: De Silva v Commissioner of Police [2020] QDC 241 PARTIES: MIHIRI ANUSHKA DE SILVA (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: D17/19 DIVISION: APPELLATE PROCEEDING: APPEAL ORIGINATING COURT: Magistrates Court, Beenleigh DELIVERED ON: 25 September 2020 DELIVERED AT: Beenleigh HEARING DATE: 16 September 2020 JUDGE: Chowdhury DCJ ORDER: Appeal dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – s 222 JUSTICES ACT 1880 – DRIVING WITHOUT DUE CARE AND ATTENTION CAUSING DEATH – WHETHER SENTENCE WAS MANIFESTLY EXCESSIVE Legislation: Crimes Act 1900 (NSW) Criminal Code 1899 (Qld) Justices Act 1886 (Qld) Penalties and Sentences Act 1992 (Qld) Road Transport (Safety and Management) Act 1999 (Qld) Road Transport Act 2013 (NSW). Transport Operations (Road Use Management) Act 1995 (Qld) Cases Bonsu v R [2009] NSWCCA 316 Crispin v Rhodes (1986) 40 SASR 202 -- 1 of 17 -- 2 Cutler v Zollar [2015] QDC 10 House v The King (1936) 55 CLR 499 Johannesen v Zeller, ex parte Zeller [1958] Qd R 366 NSW Police v Nash [2016] NSWLC 3. R v Allen [2012] QCA 259 R v Clout [2017] NSWDC 114 R v Conquest ex parte Attorney-General [1995] QCA 567 R v Gray [2005] QCA 280 R v Hart [2008] QCA 199 R v Lawley [2007] QCA 243 R v MacDonald [2014] QCA 9 R v Wells (No.2) [2016] NSWDC 313 Shambayati v Commissioner of Police [2013] QCA 57 Simpson v Peat [1952] 1 All ER 447 COUNSEL: M. McMillan (sol) for the appellant E. L. Kelso for the respondent SOLICITORS: McMillan Criminal Law for the appellant Commissioner of Police for the respondent Introduction [1] On 31 July 2019, the appellant was convicted in the Beenleigh Magistrates Court of driving without due care and attention causing death. The precise terms of the charge were as follows: “That on the 13th day of September 2018 at Underwood in the Magistrates Court District of Beenleigh in the State of Queensland [the appellant] did drive a motor vehicle namely a Toyota Corolla on a road namely Kingston Road Underwood without due care and attention. And the said [appellant] caused the death of David John Lund. And it is averred that the said Toyota Corolla was a motor vehicle as defined in Schedule 4 of the Transport Operations (Road Use Management) Act 1995. And it is averred that the said Kingston Road Underwood was a road as defined in Schedule 4 of the Transport Operations (Road Use Management) Act 1995.” -- 2 of 17 -- 2 [2] The appellant was sentenced to five months imprisonment, wholly suspended for an operational period of two years. She was disqualified from holding or obtaining a driver licence for 12 months. The appellant appeals against that sentence on the sole ground that it is “manifestly excessive”. Circumstances of the offence [3] The transcript of the sentence proceedings in the Magistrates Court, as well as the transcript of the Magistrate’s reasons, were attached to the affidavit of David Rigby filed on 14 April 2020. [4] Exhibit 1 was described as a “sentencing schedule” which set out the circumstances of the offence. In short, at about 6.00 pm on Thursday, 13 September 2018 there was a fatal traffic collision that occurred on Kingston Road, Underwood at the intersection with Ferguson Street. The appellant was driving a Toyota Corolla Hatchback, the deceased was riding a Honda motorcycle. At the time of the collision the appellant was travelling in a northerly direction along Kingston Road, and turned into the right turn only lane, and then commenced a right-hand turn directly into the path of the deceased’s motorcycle, which was travelling in a southerly direction along Kingston Road. The motorcycle collided heavily with the front passenger side of the Toyota Corolla. The deceased was flung from his motorcycle, became airborne over the roof of the Toyota Corolla and then struck the roadway before coming to rest in the intersection on the south bound lanes of Kingston Road. He suffered critical injuries and was transported to the Princess Alexandra Hospital where later he died. There were street lights present along the road and at the intersection, providing sufficient illumination. The road was in good condition and the weather was dry at the time. [5] A forensic examination of the scene did not reveal any pre-impact braking which could be attributed to either the motorcycle or the Toyota Corolla. Both vehicles were inspected mechanically and there were no defects that could have contributed to the collision. Attached to Exhibit 1 were a series of photographs of the intersection, showing that there was no obstruction of oncoming traffic from the right turn only lane. The intersection was controlled by traffic lights. There was no record of any defect with those lights. [6] In essence, the appellant simply turned into the path of the motorcycle which had right of way, causing the collision and the subsequent death of the deceased. -- 3 of 17 -- 3 [7] Exhibit 2 was the victim impact statements of Amee Lund and Cheryl Lund. Both statements poignantly describe the devastating loss caused by the death of the deceased. Submissions on sentence before the Magistrate [8] The police prosecutor indicated that the circumstance of aggravation of causing death or grievous bodily harm was a new circumstance added to the charge of driving without due care and attention. That had only come into effect in 2018 so there was no authority that the prosecutor was aware of on the appropriate sentence. It was accepted that sentencing decisions on the more serious charge of dangerous operation of a vehicle causing death or grievous bodily harm were not comparable. It was observed that the maximum penalty was 12 months imprisonment, with a mandatory disqualification period of at least six months imprisonment. [9] The police prosecutor made the following submission: “I’ll just put my submission out there, that my submission in relation to penalty was to be a period of six months wholly suspended with a disqualification period of 12 months. The reason that I’m submitting that, and I know that there’s no current cases that have been published – I did have a matter that was in Court last week, a matter of Tarlow, before Magistrate Pinder. Now, I don’t have a transcript or anything. That was a grievous bodily harm case. They received three months but he also advised me that another matter had been dealt with in Bundaberg in relation to death where they were given six months imprisonment wholly suspended. Both matters were wholly suspended. So I’m sort of basing my submission, and I understand that Magistrates Court decisions are not binding on this Court and they are not published decisions, so I’m not taking that too far. But that’s just giving you some grounding as to why my submission is a period of six months wholly suspended with a disqualification period of 12 months. Look, my submission is, given the serious nature of, well, I guess the results of the defendant’s driving, the serious impact that this has had to the family of the deceased, my submission is that imprisonment is within range and I’m still submitting a period of imprisonment despite the fact that my friend’s tendering these cases.” [10] On behalf of the appellant, the solicitor tendered a letter of apology from the appellant, as well as a number of references, which were marked Exhibit 5. [11] The solicitor for the appellant also provided to the Magistrate a number of cases: R v Clout [2017] NSWDC 114, R v Wells (No 2) [2016] NSWDC 313 and NSW Police -- 4 of 17 -- 4 v Nash [2016] NSWLC 3. It was submitted by the solicitor that regard could be had to the New South Wales cases because the offence before the Magistrate was similar to the offence considered by those New South Wales cases. [12] The solicitor highlighted the following features in the appellant’s favour: • The appellant took part in an interview with police and made full admissions to her offending conduct; • The appellant had no criminal history nor traffic history; • The circumstances of the driving was “toward the lower end of scale of severity”. There were no aggravating features. She wasn’t unlicensed, she wasn’t fatigued, she wasn’t speeding, no question of intoxication, no flight from police, she simply did not see the motorcyclist as she was turning; • The appellant remained at the scene after the collision, called the emergency number, and the collision was traumatic not only for her but also her husband and two children in her car; • She was a loving mother to a nine year old and 13 year old, and had an ambition to be a permanent resident of Australia; • The appellant was still suffering psychological stress as a result of the incident. [13] It was submitted that the appellant was an otherwise “law abiding, upstanding member of our community”. The following submissions were then made: “Given all of those features, given the fact that a sentence of imprisonment is still – no matter how it is constructed, suspended or otherwise – is still the sentence of last resort. Given what I submit is real guidance from those New South Wales decisions, I urge upon your Honour to accept that the appropriate penalty would be a period of probation and community service, she would be eligible to receive both of those, and I am instructed she would consent to that. That would have the real effect of some punishment to the community service component, she would have to give something back to the community, perhaps your Honour would accept this, from which she’s taken something over a lengthy period of time and being an extended period of disqualification. The disqualification, of course, has the flow on punitive effects and not just restricting her own abilities to get around, but she won’t be able to pick up her kids and take them to and from the various activities that they involve themselves in and nor will she be able to contribute to the community in the way she has in the -- 5 of 17 -- 5 references because she won’t be able to get around. So it will have a punitive effect as well.”1 [14] The learned Magistrate took into account the following matters: • The appellant, after the incident, remained at the scene. She cooperated with the police and had entered an early plea of guilty to the charge; • As a result of the collision, a wife had lost her husband. Both daughters and son had lost their father. The grandchildren would never know him as they should have. Life is sad for the victim’s family and is sad for all the parties as both parties are affected by the tragedy. He acknowledged the loss that the deceased’s family have suffered as a result of the loss of a husband, father and grandfather; • Due to the nature of such tragedies on Queensland roads, the Parliament amended legislation to provide for a maximum penalty of imprisonment for 12 months in relation to this offence. Prior to those amendments, the only penalties other than disqualification of licence in relation to the matters had been fines or community service. Obviously, through Parliament, the legislature has made an indication that stronger penalties should be made in respect of these types of matters; • As the legislation is relatively new in Queensland neither the prosecution nor the defence can provide any relevant comparatives as to what has transpired in respect of these types of matters. The case of R v Allen [2012] QCA 259 was not a relevant comparative as he had been charged with the more serious offence of dangerous driving; • The New South Wales cases referred to by the solicitor for the appellant were not binding, but merely persuasive; • He had regard to the provisions of ss 9 and 11 of the Penalties and Sentences Act 1992; • All the submissions of the prosecutor and the solicitor for the appellant were taken into account. 1 R1-20, l 30. -- 6 of 17 -- 6 [15] Relevantly, his Honour said this: “I have considered all matters today as to the range of sentence from a fully suspended sentence, as submitted by the prosecution, together with the range of sentence submitted by Mr McMillan today in relation to these matters. Taking into account all factors, all cases that I’ve read today, taking into account the amendments to the legislation which the Queensland legislature saw fit to make in relation to this matter, obviously, where penalties involving the death of any person is required, fines or community service may not be the most appropriate penalty. In relation to these matters today, taking into account all submissions, taking into account section 9 and 11, I am satisfied it is appropriate and no more severe in all the circumstances the defendant should be sentenced to a term of imprisonment. The defendant is convicted. The conviction is recorded. In respect of the matter, I order the whole of the term of imprisonment be suspended forthwith. The operational period during which the offender must not commit another offence punishable by imprisonment, if the offender is to avoid being dealt with under s 146 of the Penalties and Sentences Act is two years from today.” [16] The Magistrate then sentenced the appellant to five months imprisonment, wholly suspended for an operational period of two years. The appellant’s driver licence was disqualified for a period of 12 months. Appellant’s submissions [17] In brief written submissions filed on 12 March 2020, the solicitor for the appellant summarised the proceedings before the Magistrate and the submissions made. In the course of oral submissions, it was submitted that the Magistrate wrongly considered to be bound by the increase in maximum penalty to only consider imprisonment, and that fines or community based orders were not appropriate. Submissions of the respondent [18] The respondent referred to s 222(2)(c) Justices Act 1886 (“Justices Act”), which states that if a defendant pleads guilty to a complaint, that person may only appeal on the sole ground that a penalty was excessive or inadequate. It was submitted that before this Court could interfere with the sentence of the Magistrate, it must be satisfied that some error had been made in exercising the sentencing discretion, in accordance with the well-known principles in House v The King (1936) 55 CLR 499 at 504. Reference -- 7 of 17 -- 7 was also made to Shambayati v Commissioner of Police [2013] QCA 57 and R v Lawley [2007] QCA 243. [19] It was submitted that in the course of submissions before the Magistrate errors were made. On two occasions he was told the incorrect maximum penalty for the offence, although the Magistrate correctly noted the maximum penalty of 12 months in his reasons. It was also submitted on two occasions that imprisonment should only be considered as a last resort. This last proposition was incorrect due to s 9(2A)(b) Penalties and Sentences Act 1992 (“PSA”). It was observed by the respondent that the learned Magistrate made no reference to this in his remarks, and in any event that error was in favour of the appellant. [20] The following was submitted by the respondent in the outline: “[16] Neither the applicant or police prosecutor were able to provide his Honour with any decisions relating to the offence of careless driving causing death determined in Queensland. The offence came into effect on 18 June 2018.2 It discussed the number of deaths or serious injury caused on Queensland Roads, before stating ‘improving safety on our roads must be a priority’. It went on to propose implementing a circumstance of aggravation where the careless driving occasioned death or grievous bodily harm. That offence would see the previous maximum penalty available for careless driving simplicter doubled.” [21] It was submitted that the appellant’s contention that the offence simply occurred in circumstances where she turned and didn’t see the motorcyclist, served to increase the appellant’s liability under the section, as the photographs and map tendered demonstrated that the appellant had a considerable distance in which to observe the deceased before she commenced her turn. Those features “speak against it being a matter of momentary inattention. There was no explanation offered as to her failure to observe the deceased.”3 [22] The following was submitted in conclusion by the respondent: “[28] The applicant was 41 years of age. She had no criminal or traffic history. She was on a five year residence (sic) return 2 It was introduced by the Transport Legislation (Disability Parking and Other Matters) Amendment Bill 2019. This seems to be an error in the respondent’s outline. It in fact appears to have been introduced in the Heavy Vehicle National Law and Other Legislation Amendment Act 2018, which was assented to on 18 June 2018. 3 [23] of outline of respondent. -- 8 of 17 -- 8 visa. She received her licence in Queensland in 2016. She did not leave the scene or attempt to avoid responsibility, although it seems either position would have been difficult to achieve. The applicant’s prior good character, plea of guilty, remorse and cooperation were appropriately reflected by the immediate suspension of the five months imposed. The applicant’s circumstances do not suggest she, or the Queensland community, would benefit from her being supervised under probation. [29] The learned Magistrate imposed a sentence that was properly within the range of a sound sentencing discretion. Such a sentence also provides a strong deterrent to otherwise generally law-abiding drivers whose carelessness causes catastrophic consequences to other innocent road users and their families. The appeal should be dismissed.” Relevant legislation [23] Section 83 Transport Operations (Road Use Management) Act 1995 (“TORUM”) relevantly reads as follows: “83 Careless driving of motor vehicles (1) Any person who drives a motor vehicle on a road or elsewhere without due care and attention or without reasonable consideration for other persons using the road or place is guilty of an offence. Maximum penalty— (a) if the person causes the death of or grievous bodily harm to another person and was an unlicensed driver for the motor vehicle at the time of committing the offence—160 penalty units or 2 years imprisonment; or (b) if the person causes the death of or grievous bodily harm to another person—80 penalty units or 1 year’s imprisonment; or (c) otherwise—40 penalty units or 6 months imprisonment. (2) If the court convicts a person of an offence against subsection (1) in the circumstances mentioned in paragraph (a) or (b) of the penalty, the court, whether or not any other sentence is imposed, must disqualify the person from holding or obtaining a Queensland driver licence for a period of at least 6 months.” [24] The addition of a circumstance of aggravation of causing death or grievous bodily harm to another person was discussed in the explanatory notes to the relevant Bill. In brief, it was stated that in 2016, “250 people were killed and an estimated 6,400 were seriously injured on our roads. Death and serious injuries on Queensland’s roads -- 9 of 17 -- 9 continue to cause significant devastation for individuals, families and the broader community. As a result, improving safety on our roads must be a priority.” As a result, TORUM was amended to increase penalties for driving offences involving death or grievous bodily harm. [25] In Johannesen v Zeller, ex parte Zeller [1958] Qd R 366, the Full Court of the Supreme Court of Queensland considered the earlier incarnation of s 83 TORUM, which was in identical terms. Stanley J, with whom Hanger and Wanstall JJ agreed, approved of the interpretation of the words “due care and attention” in the case of Simpson v Peat [1952] 1 All ER 447 at 449, and that the question for a court is – “Was the defendant exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances?”. His Honour said at [8]: “In my opinion it must not be forgotten that the relevant circumstances are in part created by the defendant driver; and that lack of ‘due care and attention’ may not have amounted to negligence towards another person but may have been a failure to exercise that degree of care and attention that a reasonable and prudent driver would have exercised in looking after his own safety…” [26] In Crispin v Rhodes (1986) 40 SASR 202, O’Loughlin J said the following at 204: “It must be borne in mind that when considering whether or not a defendant has driven without due care the matter must be viewed objectively. The obligation to drive with due care ‘is the duty to exercise the standard of care that one would expect of a reasonably prudent driver in the like, or similar circumstances’.” [27] In Cutler v Zollar [2015] QDC 10, his Honour Judge Farr SC said this at p.4 of his judgment: “I turn now to my consideration of these matters. In my view, the Magistrate placed too much emphasis on the fact that the respondent’s conduct was not deliberate. I refer to a passage by way of example at page 15, line 35 of the transcript. That it was not deliberate is hardly surprising given the nature of the charge. Were it deliberate, there would be no doubt that the driving would have amounted to dangerous operation of a motor vehicle. The very nature of the charge of drive without due care and attention connotes a lack of deliberateness. It is a charge that is designed to reflect unintentionally, yet criminally, substandard driving. In my view, this is a serious instance of such driving.” -- 10 of 17 -- 10 Relevant sentencing principles [28] In R v Conquest ex parte Attorney-General [1995] QCA 567, the following was said in the joint judgment of McPherson JA and Thomas J at pp. 9-10 of their judgment: “The consequences of criminal acts sometimes bear little relationship to the innate reprehensibility of the act of the offender. A violent malicious assault may produce surprisingly little injury while a relatively minor reactive assault may produce grave injury or even death. In driving cases extremely reprehensible driving may cause little damage, whilst less serious driving may result in death or serious harm to others. Offenders however must face up to the consequences of their actions. Plainly the actual result of conduct like this is a highly relevant factor in the sentencing process. So too is the nature of the driving. The reasons of the Chief Justice, which we have had the advantage of reading, demonstrate that the evidence does not bring the offender's conduct in this case into the most serious class of dangerous driving, but it still lies toward the more serious end of the spectrum.” [29] In R v Gray [2005] QCA 280, Williams JA, with whom McPherson JA agreed, said this at [12]: “The Court is dealing with a young man with no previous convictions, and they are important considerations when it comes to determining the appropriateness of the sentence imposed on him. But equally it cannot be overlooked that causing the death of a fellow citizen is one of the most, if not the most, serious offence known in our society. Killing by grossly negligent conduct is, of course, significantly less serious than intentional killing, but the criminal law for centuries has recognised that the consequences of criminal conduct play a critical role in determining the appropriate sentence. For example, dangerous driving causing death must attract a more severe penalty than similar driving which fortunately does not have such a consequence. Further, it is not irrelevant here on the issue of sentence, that the applicant did not only cause the death of one person, but he caused very serious life- threatening injuries to another person who will suffer the consequences for the rest of her life.” [30] In R v MacDonald [2014] QCA 9, the Court of Appeal considered whether there was a separate category of dangerous operation of a vehicle that could be categorised as “momentary”. A number of authorities were considered in the joint judgment of Fraser and Morrison JJA, and the following was said at [17]: -- 11 of 17 -- 11 “Three things are evident from that review of the authorities. First, the decisions in Gruenert4 and Proesser5 do not lay down any empirical formula by which one can say that one offence is an offence of momentary inattention such as to merit a non-custodial sentence, and another is not. Every case will depend upon its own facts. Furthermore, in every case the crucial issue is not what category (‘momentary inattention’ or otherwise) best fits the facts. Rather, the crucial issue is, as Thomas JA said in Harris,6 ‘the level of seriousness of the actual driving of the offender’. Secondly, the circumstances of the offending in Hart7 involved a turn across a highway at an intersection without sufficient vigilance to ensure that it was safe to do so. That involved a level of fault more serious than the fault characterised as ‘momentary inattention’ in Gruenert and Proesser. Thirdly, the circumstances in Hart bear a reasonably close relationship to those in the present case, allowing for the differences in vehicles. The turn was similar, as was the chance to observe the oncoming traffic.” [31] The governing principles of sentencing set out in Pt II of the PSA applied in this case, in particular the principles in s 9(2) PSA. However, the principle that sentence of imprisonment should only be imposed as a last resort did not apply in the circumstances of this case, as the offence resulted in physical harm to another person: see s 9(2A) PSA. The New South Wales cases [32] In Bonsu v R [2009] NSWCCA 316, Howie J considered the difference between dangerous driving causing death and negligent driving occasioning death. The former offence is created by s 52A(1)(c) Crimes Act 1900 (NSW). The latter offence was created by s 42(1)(a) Road Transport (Safety and Management) Act 1999 (NSW). In that case the offender had originally been ordered to perform 200 hours community service. He failed to complete his community service order, and at a breach hearing before another District Court Judge he was sentenced to three months imprisonment. The offender had originally been charged with dangerous driving causing death, he had a trial conducted by Judge alone; he was convicted of the alternative charge of negligent driving occasioning death. 4 R v Gruenert; ex parte A-G (Qld) [2005] QCA 154. 5 R v Proesser [2007] QCA 61. 6 R v Harris; ex parte A-G [1999] QCA 392. 7 R v Hart [2008] QCA 199. -- 12 of 17 -- 12 [33] Justice Howie considered that the discretion of the sentencing Judge had miscarried, and set aside the sentence of imprisonment of three months. Relevantly, he said this at [16]: “The matter now comes before me on appeal. There is really no dispute between the parties as to the manner in which I should deal with the application. The judge’s discretion having seriously miscarried, I am to re-sentence the applicant. There is some dispute, however, as to what I should do now. With great respect to Judge Morgan it is difficult to understand precisely what facts her Honour found that gave rise to the driving negligently that was not driving in a manner dangerous to the public. It is difficult at times to discern the difference between the two offences because driving in a manner dangerous is merely an aggravated form of negligence. But it is an important distinction, not only because of the relevant penalties that apply, but also because one cannot sentence a person for negligent driving on the basis of conduct which would amount to driving in a manner dangerous.” (emphasis added) [34] His Honour was critical of the sentences imposed in the Local Court in New South Wales for the offence of negligent driving occasioning death, having regard to statistics that reveal that “very minor sentences have been imposed upon offenders who have actually caused the death of another human being, albeit by negligent driving”.8 His Honour considered that the statistics reveal that little regard or insufficient regard was being paid in the Local Court or indeed the District Court on appeal to the fact “that the offender being sentenced has caused the loss of life”. As the offender had already served one month in prison, he considered the only appropriate course was to place him on a good behaviour bond. [35] Following the decision in Bonsu, there must have been an amendment of the relevant legislation, as subsequent cases referred to the Magistrate refer to the offence of negligent driving occasioning death being created by s 117 Road Transport Act 2013 (NSW). In NSW Police v Nash [2016] NSWLC 3, the offender was in a right turning lane on a roadway with the intention of turning right from that lane. As he turned he collided with a motorcycle travelling in the opposite direction, and as a result of the collision the motorcyclist was killed. The offender had no criminal history, was 66 years of age, and only had one speeding matter on his traffic history. The Magistrate imposed community service of 250 hours, with licence disqualification of 12 months. It was noted by the Magistrate in his reasons that the maximum penalty where death 8 [19] of the judgment. -- 13 of 17 -- 13 was occasioned by negligent driving was a fine of up to $3,300, imprisonment for up to 18 months or both. There was an automatic licence disqualification period of 3 years with a minimum of 12 months. That decision of the Magistrate was part of Exhibit 4 in the court below. [36] Also part of Exhibit 4 was a decision of the District Court of New South Wales in R v Clout [2017] NSWDC 114. There was a curious procedure adopted in that case, which is obviously allowed by New South Wales legislation. That offender had been placed on trial in the District Court on a charge of dangerous driving causing death. The jury found him not guilty, but there was a certificate pursuant to s 166 Crimes Act 1900 that alleged that the offender negligently drove a motor vehicle occasioning the death of the two deceased. The offender pleaded guilty to the two charges, and the District Court Judge proceeded to sentence on the basis of the evidence that had been led at the trial. It appears that he was negotiating a right hand turn from a rural property and failed to see an oncoming motorcycle until it was 20 metres away from him. As a result the motorcycle rider and his pillion passenger were killed. His Honour Judge Norrish QC placed the offender on a good behaviour bond for a period of two years, and disqualified him from holding a driver’s licence for 15 months. [37] The third case in Exhibit 4 was R v Wells (No.2) [2016] NSWDC 313. In that case the offender attempted a U-turn without giving way to an oncoming vehicle which collided with the offender’s car, causing the death of the other driver. The offender was a volunteer rural firefighter and he was on his way to attend an incident where a load of orange juice had been spilt. In his desire to get to the scene quickly, he approached a U-turn bay and executed the U-turn when it was not safe to do so. His Honour Judge Berman SC referred the offender for assessment as to his suitability to serve his sentence by means of an intensive corrections order. As apparently allowed under sentencing legislation in New South Wales, his Honour had regard to “sentencing statistics” which the Crown had provided to him. His Honour observed at [34]: “It is a relatively rare event for a full time custodial sentence to be imposed on someone convicted of negligent driving occasioning death. I do not regard the manner of the offender’s driving in the present case as requiring that ultimate sanction.” -- 14 of 17 -- 14 Consideration [38] Like s 328A(4) Criminal Code, s 83(1)(b) TORUM has the same maximum penalty when death is caused, as when grievous bodily harm is caused by driving without due care and attention. Of course, injuries amounting at law to grievous bodily harm vary in their severity, from potential permanent injury or death to actual permanent injury. The death of a person has always been viewed seriously, and the consequences were evidenced here by the victim impact statements that were placed before the learned Magistrate. The circumstances in which the offence of dangerous driving is committed varies widely, and the same can be said for driving without due care and attention. At one end, the driving can be fleeting or momentary and just meet the definition of driving without due care and attention; at the other end, the driving may be so bad as to border on dangerous. [39] One must take care in analysing a Magistrate’s sentencing remarks, as they are often delivered in the course of a busy day with numerous other matters to be heard. It is true that the Magistrate said that when the offence involves the death of any person, “fines or community service may not be the most appropriate penalty”. Depending on the nature of the driving, in some cases a substantial fine or a substantial period of community service may be the appropriate penalty, even where death has been caused by the driving. [40] Little assistance can be gained from the New South Wales cases, as there is a completely different statutory sentencing regime. I agree with Howie J that good behaviour bonds are very lenient sentencing options for negligent driving causing death. [41] There are a number of factors to be considered when imposing a sentence for this relatively new offence: (i) the nature of the driving of the defendant; (ii) whether the deceased contributed in any way to the collision; (iii) if grievous bodily harm is caused, the nature of the injuries; -- 15 of 17 -- 15 (iv) the antecedents of the defendant, including any criminal history and traffic history; (v) the impact of the offending on the victim, where grievous bodily harm has been caused, or the family of the deceased where death has been caused; (vi) matters in mitigation in favour of the defendant. [42] It is obvious that the level of penalty for this offence should be greater than the penalties imposed on the offence of driving a motor vehicle without due care and attention simpliciter. No doubt a pattern of sentencing will emerge as time goes on. [43] There are a number of features in favour of the appellant. She had no traffic history, she co-operated with investigating police, she pleaded guilty at the earliest opportunity, there were a number of references which spoke highly of the appellant, and she had written a letter of apology to the family of the deceased. [44] The appellant’s driving conduct in turning across the path of an oncoming motorcyclist is very similar to the dangerous driving in R v Hart [2008] QCA 199. That offender was driving a taxi and turned right across the path of an oncoming police motorcycle, which collided with the passenger side of the offender’s taxi. As a result the passenger in the taxi was killed, and the police officer suffered grievous bodily harm. Hart was sentenced to 18 months imprisonment, suspended after four months for an operational period of 18 months. He was disqualified from holding or obtaining a driver’s licence for 12 months. [45] In my view, the appellant’s driving came close to the border of dangerousness. She failed to keep a proper lookout, and failed to see the oncoming motorcycle and turned in its path, causing the fatal collision. It was open to the learned Magistrate to impose a period of imprisonment, albeit wholly suspended. No complaint was made on appeal concerning the disqualification period. It was equally open to impose a substantial period of community service, or a substantial fine, and had I been sentencing the appellant, I might have been minded to impose a lengthy period of community service due to the mitigating factors. As I have already said, however, it was open to the learned Magistrate to impose the sentence he did, and on the principles set out in House v The King, supra, the sentence imposed, though heavy, was not manifestly excessive in all the circumstances. -- 16 of 17 -- 16 [46] The appeal is dismissed. -- 17 of 17 --