The Facts

Vehicle driven with three passengers, none wearing seatbelts

On an evening in 2015, a 19-year-old man was driving the streets of a small country town in a single cab utility motor vehicle, with two passengers in the cabin not wearing seatbelts and a third passenger seated on a toolbox in the back tray.

The driver did not own the vehicle, but had driven it several times and was familiar with it and with the road he was driving along. The driver was the designated driver and had not been drinking that evening.

Driver accelerates to 104 km/h and loses control of vehicle

The driver had accelerated to a speed of 104 km/h in a 60km/h zone and when the ute hit a crest in the road its front suspension lifted and the vehicle began swaying from side to side. The driver lost control of the vehicle and it rolled four or five times until it stopped upside down and slid on its roof into an irrigation canal.

The accident resulted in the death of two passengers and serious injury to the third.

Driver sentenced to non-parole period of 20 months

The driver was charged and pleaded guilty to two counts of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm. The maximum sentences for these offences was ten and seven years respectively.

The sentencing judge in the District Court imposed a total term of imprisonment of three years and two months for all three charges, with a non-parole period of one year and eight months.

The driver was also sentenced for two related offences of negligent driving under section 117(1)(c) of the Road Transport Act 2013 (NSW), which related to the driver having driven with a person on the back tray on two separate occasions that same night.

In relation to these charges, the sentencing judge imposed convictions without further penalty and disqualified the respondent from driving for the automatic period of three years.

Crown appeal brought by DPP against leniency of sentence

The Director of Public Prosecutions on behalf of the Crown brought an appeal under section 5D of the Criminal Appeal Act 1912 (NSW) against the leniency of the sentence imposed on the driver.

case a - The case for the prosecution

case b - The case for the defence
  • Given the extent and nature of the injuries inflicted and the number of people the driver put at risk, the sentences imposed are so manifestly inadequate that they are likely to undermine public confidence in the proper administration of criminal justice.
  • The judge failed to take important points into account – the fact that the driver failed to stop at a stop sign just before the accident and that he intentionally accelerated to 104 km/h in a 60 km/h zone in circumstances where he knew that none of the passengers were wearing seatbelts, that one passenger was in the rear tray, that the surface of the road was in poor condition and that the vehicle had soft suspension which caused it to handle poorly.
  • For these reasons, the driver's moral culpability in committing these offences is in the high range.
  • The terms and non-parole periods of the sentences are each manifestly inadequate and "plainly unjust". They should be increased.
  • The driver entered an early plea of guilty and has shown deep and genuine contrition.
  • The driver is young and this is his first custodial sentence.
  • Taking all the circumstances into account, the driver's moral culpability is not in the high range.
  • The driver has been diagnosed by a psychologist as having major depression (recurrent type) and chronic post-traumatic stress disorder (PTSD), both of them triggered by the accident. He has not received treatment for these conditions since he went to prison and his symptoms continue unabated.
  • There is a real risk that an increase in the driver's sentence would cause further significant deterioration of his already fragile mental state, so the sentence should be allowed to stand.

So, which case won?
Cast your judgment below to find out

Vote case A – The case for the prosecution
Vote case B – The case for the defence

Peter Schmidt
Criminal law
Stacks Law Firm

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