Geagea v R

1. [1]

   THE COURT: This is an application for leave to appeal against an aggregate sentence passed by his Honour Judge Colefax SC in the District Court at Parramatta on 21 June 2019. The sentence was imposed for the following offences, upon the applicant having pleaded guilty to each charge:

   1. (1)

      Dangerous driving occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW).

   2. (2)

      Failing to stop and assist after a vehicle impact causing death, contrary to s 52AB(1) of the Crimes Act.

2. [2]

   Both offences were committed on 28 December 2016. The applicant was arrested and charged on 7 January 2017 and was on bail from then until he entered his plea of guilty on 19 June 2019. His sentence was fixed to commence on that day. The aggregate imposed by his Honour was 6 years and 6 months with a non-parole period of 4 years and 2 months. The ratio between the non-parole period and the head sentence, 64%, gave effect to his Honour’s finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

3. [3]

   The learned judge nominated an indicative sentence for count 1 of 4 years and 2 months. This incorporated a 10% discount for the plea of guilty, which was entered late. The starting point for that indicative sentence would have been 4 years and 8 months. For count 2 the indicative sentence was 4 years and 1 month. The applicant’s plea of guilty to count 2 had been entered at the earliest opportunity and his Honour made allowance for a 25% discount. The starting point would have been 5 years and 6 months.

Grounds of appeal

1. [4]

   The grounds of appeal for which leave is sought are as follows:

Facts of the offences

1. [5]

   The fatal accident that is the subject of both counts occurred at about 3:53pm on 28 December 2016 on Clarence Street, Condell Park. That street’s southern commencement point is at its intersection with Augusta Street. From there, Clarence Street runs straight in a northerly direction. There are freestanding homes on each side of the street. Approximately 260m north of Augusta Street there is a low concrete roundabout at the intersection with Lancelot Street, running east-west. Clarence Street continues to the north from there, still in a straight line, for a further 600m or so to a T intersection with Marion Street.

2. [6]

   The location of the accident was about 130m north of Augusta Street, outside No 99A Clarence Street, which is on the west side of that street. Between Augusta Street and the roundabout at the Lancelot Street intersection, Clarence Street is approximately 10m wide, sufficient for vehicles to be parked on both sides of the street while still allowing for other vehicles to travel in both directions comfortably. The speed limit is 50kph. At the time of the accident the road was dry and there was bright sunshine. A Ford utility belonging to the deceased, Mr Zacharias Andreau, was parked on the western side of the street outside No 99A and facing north. The utility was approximately 1.85m wide. A small sedan was parked on the other side of Clarence Street, opposite the utility and facing south. There was a Closed Circuit Television (“CCTV”) camera mounted at the front of No 101 Clarence Street, the house immediately to the south of No 99A. That camera was trained in an easterly direction, across the street. It took in Mr Andreau’s parked Ford utility.

3. [7]

   The CCTV footage that was tendered to His Honour shows Mr Andreau approach the eastern kerb of the street, opposite his vehicle. He paused at the kerb for four seconds to wait for a southbound vehicle to pass. He then walked across the street and reached the driver’s side of his vehicle another five seconds later. Mr Andreau opened the driver’s door and stood immediately behind it. He was still in that position 13 seconds later when he was struck by the applicant’s Toyota HiAce van, travelling north. The front left side of the applicant’s van impacted Mr Andreau and the open door of his vehicle. The door was peeled forward and the deceased was propelled forward and onto the roadway. Mr Andreau had been in full view of anybody who may have been looking towards him from further south on Clarence Street for a total of 18 seconds while he crossed the road and then stood beside his vehicle.

4. [8]

   The applicant drove his van at 57-61kph as he reached and passed Mr Andreau’s position. There was no oncoming traffic travelling south. The last vehicle going in that direction had passed Mr Andreau’s utility about 18 seconds before the impact. Nor was there any other traffic going north. No other vehicle had travelled in that direction for at least 26 seconds before the accident and the next north-going vehicle that followed the applicant’s van approached the location 12 seconds later.

5. [9]

   The applicant did not stop but continued north. He drove over the roundabout at the Lancelot Street intersection at speed and continued away from the scene. Local residents heard the impact and came out of their homes. The deceased had suffered multiple blunt force injuries and was pronounced dead at the scene.

6. [10]

   When the applicant was arrested he did not provide to police any explanation of how or why the collision had occurred. In the sentence proceedings he did not give evidence. The circumstances were left to inference. The inferences available to the learned judge were clear. His Honour found, having regard to the damage to the door of the deceased’s utility, that the applicant must have driven very close to the offside of that vehicle.

7. [11]

   Taking into account the width of the roadway referred to above, the applicant had ample room to pass at a safe clearance from the deceased and his utility. The combination of circumstances leads to an inescapable inference that this was a totally unnecessary and inexcusable accident. A high degree of negligence was involved in failing to steer at a safe clearance from the deceased and his vehicle, on this straight, wide, quiet street. Only a high level of negligence could have led to a fatal collision with a man standing in the position of the deceased, visible as he must have been for the whole length of the applicant’s approach from the intersection at Augusta Street.

8. [12]

   The applicant failed to stop to render assistance, either to Mr Andreau or to investigating officers, and he did not subsequently report his involvement in the collision to police. As the learned sentencing judge found, he must have been aware of the collision, considering the damage to his own vehicle. The police made appeals to the public through the media for the driver who had killed Mr Andreau to come forward. The applicant became aware of those appeals through internet searches that he conducted between 29 December 2016 and 3 January 2017, using keywords relating to the accident. Rather than contact police, on 4 January 2017 the applicant attempted to dispose of the vehicle as a write-off for $1,000. He left it parked outside his prospective buyer’s wrecking yard, without having received payment, so anxious was he to dispose of it. On the same day the applicant negotiated the purchase of a replacement Toyota Hi-Ace van and took delivery of it on 5 January 2017.

9. [13]

   A member of the public observed the applicant’s damaged van parked outside the wrecking yard and, being aware of the police media appeals, informed the intending buyer that it may be connected with the fatal accident on Clarence Street. The buyer’s daughter contacted police who were able to link the van, forensically, to the accident. They traced ownership to the applicant. When they approached him at his home he asserted that he had discovered his van had been stolen. However, shortly afterwards he admitted that he had been involved in the accident and he was arrested.

Ground 1 – objective seriousness of count 2 (failing to stop and assist)

1. [14]

   In furtherance of ground 1 the applicant complains of the following findings by the learned sentencing judge:

2. [15]

   The sub-section of the Crimes Act creating the offence of failing to stop is in the following terms:

3. [16]

   It is argued on behalf of the applicant that an offence contrary to this sub-section “concludes when the offender effectively leaves the scene of the collision, not having stopped and not having provided assistance”. The applicant accepts that, in general, actions before and after those that constitute the physical elements of a crime may be considered as part of the objective circumstances. Counsel cited R v Wilkinson (No. 5) [2009] NSWSC 432 in which Johnson J considered the relevant principles when assessing the objective seriousness of a murder. His Honour said:

4. [17]

   The applicant expressly does not challenge what his counsel referred to as “the theoretical principle” expressed in the above passage, that “common sense and moral sense extend the circumstances of an offence which may be considered for an assessment of the objective seriousness of a crime, to events which precede and follow the technical limits of the crime”. The applicant submits that at [24] of the remarks his Honour erroneously treated the failure to stop and give assistance as if it were a continuing offence. He submits that this is shown by the learned trial judge’s finding at [23] that the applicant had “persisted in [his] disgraceful abandonment of responsibility” by initially lying to police when they came to his address, asserting that the van had been stolen.

5. [18]

   In oral submissions counsel accepted that the applicant’s conduct after he had left the scene without having stopped to render assistance could be relevant to sentencing – as follows:

6. [19]

   The term “objective seriousness” is used in the applicant’s argument on this ground in the familiar sense of the gravity of the applicant’s actions and of their consequences, assessed by reference only to what constituted his particular infringement of the section. It is at the heart of the applicant’s argument that his Honour was bound to evaluate the objective seriousness in this sense and separately to consider all factors personal and subjective to the applicant, such as what may have caused him to act as he did, what state of mind he may have been in (apart from having the actual or constructive knowledge of the impact and its consequences that is an element of the offence: s 52AB(1)(b)), what remorse he had shown, his character, his antecedents, his prospects of reoffending or of rehabilitation and so on.

7. [20]

   The Crown submitted that his Honour did not err by taking into account the applicant’s actions in attempting to dispose of his vehicle in order to thwart police investigation, as part of his assessment of the objective seriousness of the offence. It was submitted that those actions, in the days following the collision, are capable of being considered part of the failure to assist that is addressed by the offence provision. Further, it was submitted that even if the applicant’s actions on days after the accident were outside the technical limits of the crime, they nevertheless impacted directly upon assessment of the applicant’s moral culpability and were in that way relevant to the nature and gravity of the offending. The Crown pointed out that there is a twofold purpose in s 52AB, namely, to require the driver of the vehicle involved in an accident to assist both the injured person and the police who investigate the matter: R v Pullen [2018] NSWCCA 264 at [49]-[51].

8. [21]

   The Crown cited Sarikaya v The Queen [2015] VSCA 236 in which the offender knocked over an elderly lady while reversing from his driveway and drove off. He attempted to conceal his vehicle in a next-door carport and tampered with it to give the appearance that it was inoperable. He was arrested later the same evening. The Victorian Court of Appeal considered that his culpability for the offence of failing to stop and assist was “compounded … by taking deliberate steps to conceal his involvement in the accident, taking this case out of the category of those cases which involve flight actuated by a moment of panic”.

9. [22]

   Determination of ground 1 requires the Court to consider whether his Honour took into account post-offence conduct as if it were part of the commission of the offence; if so, whether such mis-characterisation of conduct and events as objective features of the offence rather than as subjective considerations was significant; whether any such mis-characterisation led to an overstatement of the relative seriousness of the offence; and whether his Honour’s evaluation of seriousness as “significantly above a mid-range offence” constituted a material error.

10. [23]

    His Honour found the following facts that were relevant to the objective gravity of the fail to stop offence:

11. [24]

    Making all due allowance for inadvertent imprecision in the way the learned judge expressed himself, which may be overlooked in brief sentence remarks delivered under the pressure of the criminal list in the District Court at Parramatta, it does appear that his Honour treated the applicant’s attempts to dispose of his van, some eight days after the accident, as aggravating the objective seriousness of the fail to stop offence. Paragraph [24] of the sentence remarks is couched in terms that indicate that it is solely concerned with the objective gravity of each of the counts. The finding that the failure to stop “was made substantially worse by your efforts to cover up your misconduct” is immediately followed by the conclusion that the offence was “therefore significantly above a mid-range offence”. This is clearly enough of a conclusion by his Honour that conduct occurring eight days after the accident added to the objective seriousness of the offence. His Honour’s words could not be understood as taking the subsequent conduct into account merely as a reflection upon the applicant’s character or lack of remorse. Such an approach would have required his Honour to articulate a further step in reasoning; namely, to state what was demonstrated, by the attempted sale of the van and the applicant’s initial lies to police, about the applicant’s character and his attitude to the offending. There is no such articulation in the remarks.

12. [25]

    The fact that the offence created by s 52AB is in part directed to an obligation of the driver to assist police, as opposed to assisting the injured person, does not in our view lead to a conclusion that actions taken over one week later, designed to avoid detection and to dispose of evidence, can be regarded as part of the objective circumstances of an offence that is formulated by the words: “failing to stop and give any assistance that may be necessary and that it is in his or her power to give”. It is not necessary to decide whether acts of concealment undertaken later on the same day, such as those considered in Sarikaya v The Queen, may be regarded as part of the commission of the offence under the applicable section in New South Wales. It is sufficient to say that the conduct that his Honour treated as making the objective gravity of the offence “substantially worse” did not actually form part of the objective circumstances of the crime. The Crown’s further argument that these post-offence actions contributed to the level of moral culpability of the offence does not assist. If the later actions are not part of the commission of the offence then they are not part of the moral culpability involved in it.

13. [26]

    As no standard non-parole period was prescribed for the fail to stop offence, the sentencing judge was not bound to locate this instance of breach on a notional spectrum of gravity. In the absence of a standard non-parole period, the requirement to evaluate objective seriousness relative to “the middle of the range” that is referred to in s 54A(2) of the Crimes (Sentencing Procedure) Act did not arise: R v Georgopolous [2010] NSWCCA 246 at [30] (Howie AJ), explained by Simpson J (as her Honour then was) in Khoury v R [2011] NSWCCA 118 at [71]-[78]. Such a characterisation may serve a useful purpose: R v Pearce [2020] NSWCCA 61 at [59]. But it is not essential where there is no standard non-parole period, provided the sentencing judge has adequately identified and taken into account the objective features of the offence: Delaney v R [2013] NSWCCA 150 at [56]-[57].

14. [27]

    In this case, the learned judge’s assessment of gravity as “significantly above a mid-range offence” inevitably had a bearing upon how his Honour measured the crime against the yardstick of the statutory maximum penalty. The applicant’s attempt to conceal both offences by disposing of the van was too remote from the completed crime of failing to stop to be treated as an aspect of its seriousness but his Honour relied on that post-offence conduct in arriving at his evaluation of “significantly above a mid-range offence”. There is every reason to think that this caused his Honour to adopt an indicative sentence of which the starting point was more than half the statutory maximum.

15. [28]

    Leave to appeal will be granted in respect of ground 1. We consider that a lesser aggregate sentence than that imposed by his Honour was warranted in law and the appeal will be upheld on this ground and the applicant re-sentenced, as explained below.

Ground 2 – failure to accept the applicant’s remorse

1. [29]

   Ground 2 arises from the following findings by his Honour:

2. [30]

   It is necessary to consider the substance of this ground as, although the appeal is to be upheld and the applicant will be re-sentenced, this Court would not depart from the learned sentencing judge’s findings on a matter such as remorse unless those findings were not open to him. Here, the learned judge did not adopt a definitive view of whether the applicant was remorseful. The applicant’s central submission on this ground is as follows:

3. [31]

   Remorse in relation to both offences was to be assessed at the date of sentencing. The importance of the issue lay primarily in the bearing that genuine demonstration of remorse might have upon the sentencing judge’s assessment of the applicant’s prospects of rehabilitation and likelihood of re-offending. We accept the broad thrust of the applicant’s contention that his ongoing endeavours to conceal the offences as late as eight days after their commission did not preclude him from exhibiting true remorse at the date of the sentence proceedings. However, it was for the applicant to satisfy the sentencing judge that he was truly remorseful and his reliance on secondhand statements in his psychologist’s report and in testimonials was weak.

4. [32]

   For the purpose of resentencing we give limited weight to the applicant’s expressions of remorse to his psychologist and to those who provided testimonials. We also recognise that the applicant’s attempts to conceal his offences by trying to sell his van, after having had more than a week to contemplate the fact that he had killed a man by driving his vehicle in a dangerous manner, is a serious adverse reflection upon his character. Despite these limitations, like his Honour we find other, stronger indications that the applicant has good prospects of rehabilitation and is unlikely to re-offend.

Ground 4 – manifestly excessive sentence

1. [33]

   As ground 1 is to be upheld and the applicant is to be re-sentenced, it is not necessary to resolve grounds 3 and 4.

Re-sentence

1. [34]

   The learned judge had before him very moving victim impact statements from Mr Andreau’s widow, three children and two grandchildren. The Court recognizes the tragedy of their loss. It may be difficult for them to accept that the applicant’s sentence is to be reduced but the duty of this Court is to intervene where the law has not been correctly applied and to re-determine a sentence proportionate to the relative seriousness of the applicant’s criminality.

2. [35]

   The applicant was 51 years old at the date of the offences. He was born in Lebanon where his education was disrupted by civil war. He joined a militia in 1982 at the age of 15 and was engaged in combat. He experienced shelling and destruction of homes in his family’s neighbourhood in Beirut. The applicant migrated to Australia in 1994 and found work assisting a tailor. In about 1997 he established his own tailoring business, being a mobile operation in which he travelled to clients’ homes. He continued to conduct that business up to the date of the accident. As a result of these offences and his loss of licence, he also lost most of his livelihood. The applicant was married in 2007 and has four children, now aged between three and 11 years. He is an active member of the Maronite Catholic Church and has a wide circle of friends within the Church community. He produced to the sentencing judge impressive testimonials from the Bishop of his Church and from other respectable community members. The applicant has minor coronary artery disease, diabetes and cervical disc disease, for all of which he takes regular medication. He does not use alcohol or intoxicants. He suffers residual symptoms that may be consistent with post traumatic stress disorder as a result of his experiences in the civil war in Lebanon. He has also been medicated for depression and anxiety.

3. [36]

   The applicant’s criminal history consists of offences of dishonesty on two occasions: uttering counterfeit money in January 2002 and shoplifting and having goods in custody in October 2009. He has no prior record for driving offences of any nature. His limited criminal record, concerning offences of quite a different type from those now under consideration, does not disentitle him from leniency for these matters. Having regard to the applicant’s history of self-employment, his mature years and his strong family, community and church connections, his prospects of rehabilitation are highly favourable. The likelihood of re-offending seems low. The applicant’s affidavit describing his positive, constructive and cooperative approach to his incarceration supports these conclusions. On the hearing of the application the Crown did not question the learned judge’s finding of special circumstances or the ratio of 64% that he applied in fixing a non-parole period. We adopt his Honour’s finding and will apply approximately the same ratio.

4. [37]

   With respect to count 1, the applicant exceeded the speed limit and, although the excess was not great, anything above 50kph involved significant risk in a residential street where a pedestrian had crossed the roadway in view of the applicant and was standing beside his vehicle. The negligence involved in the collision was significant given that the presence of Mr Andreau should have been obvious to the applicant for more than 10 seconds, throughout the whole length of his approach of about 130m from the Augusta Street intersection. There was no evidence upon which a finding could be made in the applicant’s favour that the collision resulted from mere momentary inattention. On the other hand, nor was there any basis for a conclusion that the manner of driving involved an abandonment of responsibility, as spoken of in R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [218]-[223]. Typical aggravating features as referred to in those cases were not present: the excess of speed was not great; no intoxication was involved; there was no evidence that erratic or aggressive driving had occurred; there was no evidence that any aspect of the applicant’s driving that may have contributed to the collision had been ongoing for an extended period; neither sleep deprivation nor disregard of warnings played any part.

5. [38]

   On those facts and taking into account the applicant’s subjective case and the ever-present need for general deterrence in relation to dangerous driving charges, an appropriate starting point indicative sentence would be imprisonment for 3 years and 6 months. We would allow the discount of 10% that his Honour adopted for the late plea of guilty, resulting in an indicative sentence of 3 years and 2 months.

6. [39]

   With respect to count 2, the applicant’s failure to stop was a serious breach of s 52AB(1). As it happens, there is no evidence that by stopping he could have rendered any assistance to Mr Andreau. Further, such assistance as could have been given by a person not trained in medical care, such as the applicant, was in fact promptly given by local residents. They summoned an ambulance, which arrived as quickly as could have occurred if the applicant had stopped and summoned it himself. On the other hand, the applicant’s failure to stop certainly deprived police of the assistance that he should have given them, by way of identifying himself and his vehicle. The applicant’s haste in driving at speed away from the scene, taken alone, supports an inference that panic overcame his will to discharge the obvious obligation to stop, to assist and to accept responsibility. The applicant’s failure over the ensuing days to respond to police calls for public assistance and his attempt to dispose of the vehicle and to deceive police are matters that give rise to an adverse assessment of his character, as stated earlier in these reasons. Dishonourable as that conduct was, it does not detract from the Court’s assessment that there are favourable prospects of rehabilitation and of the applicant not offending again.

7. [40]

   Where an offender is to be sentenced both for causing death by dangerous driving and for failing to stop at the scene, care is required not to give undue weight to the fact that Parliament has prescribed the same maximum penalty for each offence. Each sentence must of course take into account the prescribed maximum but at the same time the comparative length of the two sentences must be capable of being reconciled, rationally and coherently, with the very different criminality involved in each. This is so whether the sentencing judge nominates indicative sentences as part of an aggregation process or imposes separate individual sentences. For the offence of causing death by dangerous driving contrary to s 52A(1)(c), the gravity of the result and the need to deter dangerous driving that may have that result readily explains why imprisonment up to a relatively high maximum of 10 years may be imposed. In relation to failing to stop, the result of the offending will be highly variable. If the victim could have been saved by assistance being promptly rendered, or if his or her suffering could have been relieved, then the result of the offence may be very grave. Otherwise, as in the present case, the result may be limited to impeding a police investigation, which is obviously a much less serious matter than a death. A constant in all offences of failing to stop will be that it is dishonest to fail to identify oneself and to take responsibility. But the gravity of failing to assist a police investigation of the accident, in any circumstances of which one can conceive, appears far less than the gravity of causing a death by dangerous driving.

8. [41]

   In Hoskins v R [2020] NSWCCA 18 the applicant was convicted of failing to stop at the scene of a fatal motor accident. A young woman had been killed when she stepped out in front of the applicant’s moving vehicle. He was not charged with causing death by dangerous driving and there was no allegation of negligence or indeed any fault on his part. The applicant had turned himself in to police the day after the accident. At first instance a starting point sentence of 4 years had been adopted, reduced by 25% for an early plea of guilty. The resulting sentence of three years included a non-parole period of 18 months. On appeal this was reduced to 2 years and 3 months with a non-parole period of 15 months. This implied a starting point head sentence of 3 years. Basten JA was of the view that the substituted sentence “was itself at the very top of the appropriate range in the circumstances of the case”: at [19]. As a determination had been made at the conclusion of the hearing that the applicant was entitled to immediate release, the Court was not addressed as to the appropriate range.

9. [42]

   Basten JA made the following observations upon the difficulty that arises from the seeming incongruity of Parliament having prescribed the same maximum sentence for leaving an accident scene as for causing a death by dangerous driving:

10. [43]

    Because the applicant now before the Court was charged with both causing death by dangerous driving and failing to stop and assist, this case illustrates Basten JA’s observation that giving excessive weight to the statutory maximum for the failure to stop may lead to anomalous results. The decision in Hoskins v R was published seven months after the learned judge passed sentence. In the Court’s view his Honour assessed the failure to stop at a higher level of objective seriousness than was warranted and in addition gave excessive and unbalanced weight to the statutory maximum. The resulting starting point sentence of 5 years and 6 months for that offence compared to the starting point of 4 years and 8 months for causing the death of Mr Andreau is properly described as anomalous and incongruous.

11. [44]

    Section 52AB commenced from 13 February 2006. In the second reading speech on 21 September 2005, the Minister who spoke on behalf of the Attorney General said this in relation to the offences of failing to stop that were introduced by the section:

12. [45]

    From this it is apparent that Parliament contemplated a range of seriousness of breaches of the new section that would include abandonment of an injured or dying accident victim, by the person who caused the accident and who could have rendered assistance, in circumstances where such assistance could have been of material benefit to “save a life, minimise injury, improve the prospect of recovery, alleviate suffering and preserve … dignity”. Evidently the maximum was prescribed by the legislature to permit stern penalties in cases of such callousness, aggravated by a worse outcome for the victim than if the statutory and moral obligation to stop had been fulfilled. That is not this case.

13. [46]

    We would adopt a starting point for the fail to stop offence of 2 years and 8 months. After applying the 25% discount that his Honour allowed for the applicant’s early plea, the indicative sentence is 2 years.

Orders

1. [47]

   A substantial degree of notional accumulation is appropriate between the indicative sentences of 3 years and 4 months for causing death by dangerous driving and 2 years for failing to stop. An aggregate sentence of 3 years and 10 months with a non-parole period of 2 years and 6 months is appropriate. The orders of the Court will be as follows:

   1. (1)

      Time for filing the application for leave to appeal is extended so far as necessary to enable the application to proceed.

   2. (2)

      Leave to appeal is granted.

   3. (3)

      The appeal is upheld.

   4. (4)

      The aggregate sentence imposed by Colefax DCJ on 21 June 2019 is quashed.

   5. (5)

      In lieu thereof the applicant is sentenced to an aggregate sentence of 3 years and 10 months commencing on 19 June 2019 and expiring on 18 April 2023 with a non-parole period of 2 years and 6 months expiring on 18 December 2021. The applicant will be eligible for parole from 19 December 2021.