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      Driving While Disqualified

      The Law, Defences and Penalties for Dangerous Driving Occasioning Death

      Police have charged 32-year-old Wilbert Gabrielle Guevara with Dangerous Driving Occasioning Death, amongst other charges after he collided with 27-year-old Maria Alejandra Landazabal Contreras who was waiting at a red light.

      She was riding a scooter and tragically lost her life at Liverpool Hospital a few hours after the incident.

      Significantly, Mr Guevara was disqualified from driving.

      He was arrested on 21 September 2020 and was refused bail by Police. He is due to front Liverpool Local Court on a slew of charges once his own injuries are treated.

      What happened?

      At approximately 11:35pm on 20 September 2020, Police and Ambulance attended the intersection of the M5 and Heathcote Road in response to reports of a collision between an electric scooter and a Honda HRV wagon.

      It has been alleged that the female was stopped at a red light on her scooter when the Honda drove into her from behind.

      Paramedics did their best to treat her at the scene for serious head and internal injuries before transporting her to Liverpool Hospital. Unfortunately, she passed away in the early hours of the morning.

      Police have revealed that the disqualified driver was Doonside resident, Wilbert Gabrielle Guevara. He was also taken to Liverpool Hospital for treatment for back injuries. Police conducted drug and alcohol testing on the man while he was at the hospital.

      Officers from Liverpool City Police Area Command and the Crash Investigation Unit commenced an investigation into the circumstances surrounding the crash.

      Following inquiries, Mr Guevara was arrested about 10.40am on 21st September 2020 at Liverpool Hospital.

      He was charged with Dangerous Driving Occasioning Death, Drive in a Manner Dangerous, Negligent Driving Occasioning Death, Not Stop at Red Light and Driving Whilst Disqualified.

      What is Dangerous Driving Occasioning Death?

      Dangerous Driving Occasioning Death is defined in Section 52A of the Crimes Act 1900 (NSW).

      In order to prove the charge, the prosecution need to establish beyond reasonable doubt that:

      1. The Accused drove a vehicle. This means that he was “in control of the steering, movement or propulsion of a vehicle”;
      2. That vehicle was involved in an impact;
      3. The impact caused death to another person;
      4. At the time of the impact the Accused was:
      5. Under the influence of alcohol or drugs, or
      6. driving the vehicle at a speed or in a manner that created a danger to other users of the road.

      The maximum penalty for Dangerous Driving Occasioning Death is 10 years imprisonment.

      Guideline Judgement for Dangerous Driving Occasioning Death

      The Guideline Judgement for Dangerous Driving Causing Death is set out in R v Whyte [2002] NSWCCA. Guideline judgments are decisions of superior Courts that give guidance to Judges and Magistrates in relation to how they should sentence offenders.

      The guideline held that in an ordinary case, a court must impose a term of full-time imprisonment unless the offender has a low level of criminal responsibility for the accident such as momentary inattention or misjudgement.

      What is an ordinary case of Dangerous Driving Occasioning Death?

      The following characteristics make up the typical offender in an ordinary case:

      • young offender
      • of good character with no or limited prior convictions
      • death or permanent injury to a single person
      • the victim is a stranger
      • no or limited injury to the driver or the driver’s intimates
      • genuine remorse
      • plea of guilty of limited utilitarian value.

      It was held that the Court should impose a penalty of at least 3 years imprisonment for this charge where the offender’s criminal responsibility is high.

      The circumstances which can increase your criminal responsibility include:

      • extent and nature of the injuries inflicted
      • number of people put at risk
      • degree of speed
      • degree of intoxication or of substance abuse
      • erratic or aggressive driving
      • competitive driving or showing off
      • length of the journey during which others were exposed to risk
      • ignoring of warnings
      • escaping police pursuit
      • degree of sleep deprivation
      • failing to stop.

      Friends and Family Speak Out

      Ms Contreras was born in Colombia. She travelled to Sydney in early 2020 to study at University. Ms Rosa Rutte, who lived with the deceased told media outlets, “She made an instant connection with my daughters and reminded me of myself when I came to Australia as a student”.

      ‘She had so many dreams to fulfil. She loved travelling, she was planning to travel through Asia while she was studying in Australia.’

      Will You Go to Jail for Dangerous Driving Occasioning Death?

      Despite the tragic circumstances of the case, there is no guarantee that a gaol sentence will be imposed.

      The first hurdle the prosecution face is to establish that Mr Guevara was in fact driving dangerously.

      In order to prove this, prosecutors would have to establish that the speed or manner of Mr Guevara’s driving posed a danger to other road users.

      Given the allegations are that he drove into Ms Contreras while she was waiting at a red light, much will depend on his explanation for why this occurred.

      There have been cases in the past where an Accused suffered from a medical condition such as sleep apnea and was able to successfully run an automatism defence.

      This would require an expert Dangerous Driving Occasioning Death Lawyer to obtain specialist medical evidence from a qualified expert. Generally, a general practitioner would not have the requisite expertise to give such an opinion.

      Alternatively, his lawyers may argue that his actions were negligent as opposed to dangerous. They may try to have the dangerous driving offence withdrawn in lieu of entering a plea of guilty to the offence of Negligent Driving Occasioning Death.

      It is not unusual for criminal defence lawyers to enter into plea negotiations with the prosecution by writing ‘representations’. This is a detailed legal document which sets out the weaknesses in the prosecution case and why the charges should be amended or withdrawn.

      If you or someone you know has been charged with a serious criminal or traffic offence, it is important to speak to experienced Liverpool Criminal Lawyers as soon as possible to obtain the best defence.

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