The ‘catastrophic’ mistake that left a five-year-old dead

3 weeks ago 3

A man who killed a five-year-old boy by driving through floodwaters that swept the car away has avoided jail, after describing the fatal act as the worst decision of his life.

Joseph El Jer drove his 4WD Toyota Hilux through closed roads as he headed home from Western Plains Zoo at Dubbo in 2022, continuing through floodwaters up to 1.3 metres deep because his five-year-old passenger wanted an adventure, a court heard.

Joseph El Jer arrives at Parramatta District Court on Friday.

The 40-year-old had pleaded guilty to dangerous driving occasioning death of the child, who can’t be named for legal reasons.

On Friday, El Jer was sentenced to a supervised intensive correction order lasting one year and nearly six weeks.

Sentencing El Jer in the Parramatta District Court, Judge Philip Ingram said El Jer made a “grave misjudgment … which gave rise to catastrophic circumstances”.

“Young children who travel in motor vehicles are reliant on adults … for their safety and security,” he said.

‘[El Jer made a] grave misjudgment … which gave rise to catastrophic circumstances.’

Judge Philip Ingham

However, Ingram said El Jer was “genuinely remorseful,” had a low risk of reoffending, and showed good rehabilitation prospects.

Ingram said his “prolonged grief disorder” would be exacerbated in prison without the appropriate psychological treatment and would be better treated in the community.

On the afternoon of September 23, 2022 – during the Central West NSW floods – El Jer spent the day at the zoo with his wife and three other people – including the five-year-old-boy.

The night before, a neighbour had warned him about road closures. He also checked the Narromine Shire Council Facebook page, which stated Genaren Creek Crossing, a low-lying concrete causeway without safety rails on The McGrane Way, was closed after receiving 100 millimetres of rain in 24 hours.

While he took a longer and safer route to the zoo, El Jer decided to take the shorter, more direct and partially closed route home because he felt the water may have receded, the court heard.

Joseph El Jer (second from right), pictured at court in September, killed a five-year-old boy.

Arriving at the flooded crossing, he drove past two depth indicator signs showing floodwater reaching between one and 1.3 metres, and got out of the car to assess its depth.

He returned to the car and began reversing, until the five-year-old boy said words to the effect of “don’t be a sook”, court documents said.

“The offender then said (either to himself or out loud) ‘nah, f--- it, we are gonna make it’, decided to ‘give it a go’ and drove across the flooded causeway.”

Earlier giving evidence, El Jer agreed with the Crown prosecutor that he “ignored his wife’s concerns” about driving through the crossing – an admission that made him burst into tears.

Joseph El Jer and a screenshot from a video taken inside his 4WD.

“At the time, I felt it was safe enough for [us] to cross; unfortunately it wasn’t,” he said.

“I told [my passengers] to hold on; we’re going to go and do some more splashes.”

Moments after El Jer continued driving, the 4WD was swept off the road and pushed downstream.

He unbuckled his seatbelt, opened his door and rushed to open a fully submerged back door. With the car filled with water, he manged to rescue three passengers and take them one by one to a nearby tree.

However, by the time he returned to help the boy, he found him trapped in his booster seat with his seatbelt stuck closed. He tried unsuccessfully to unclip it several times before the boy drowned.

“I tried my best – I’d done everything I could,” El Jer said.

For several hours, the surviving passengers clung to trees as El Jer pulled his wife up from underneath the water several times.

Eventually, a Toyota Camry also attempted to cross Genaren Creek. Its passengers were swept off the road, but managed to escape and heard El Jer’s calls for help.

The men called police and an emergency response was set up on the Tullamore side of the creek, with the surviving passengers eventually rescued by boat. El Jer’s wife was hospitalised with hypoxia and was discharged days later.

The fact sheet stated that El Jer told police the five-year-old was “happy for his adventure and [to] go through the water and that’s what convinced me to keep going”.

An emotional El Jer described his choice to drive through the floodwaters as “the worst decision of my life”, adding that he will “never get over it”.

“I don’t wish this upon my worst enemy,” he said.

El Jer said he had previously driven his ute through floodwaters “a good five to 10 times”, but this tragedy taught him not to take those risks.

Asked about his poor traffic record, consisting of several licence suspensions and a negligent driving conviction, he admitted he was a “bad driver”.

El Jer, who was also ordered undergo psychological treatment and 500 hours of community service, received a 25 per cent sentence discount for his early guilty plea.