R v Awac - [2020] NSWDC 41

District Court

New South Wales

Medium Neutral Citation: R v Awac [2020] NSWDC 41
Hearing dates: 15 October 2019
Date of orders: 07 February 2020
Decision date: 07 February 2020
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Aggregate sentence of imprisonment of 4 years with a non-parole period of 2 years 6 months

Catchwords: CRIME — Driving offences — Dangerous driving occasioning grievous bodily harm — “In a manner dangerous to another person or persons”
CRIME — Driving offences — Failure to stop and assist after vehicle impact causing death or grievous bodily harm
SENTENCING — Relevant factors on sentence — Form 1 offences
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Evidence Act 1995
Road Rules 2014
Cases Cited: Attorney-General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518
The Queen v White [2002] NSWCCA 343
Category: Sentence
Parties: Regina (Crown)
Awac Awac (Offender)
Representation:
Kartini Saddington (Crown)
Sean Brennan (counsel) (Offender)
Director of Public Prosecutions (NSW) (Crown)
Hunter and Braddon Lawyers (Offender)

File Number(s): 2018/00094375

EX TEMPORE REVISED Judgement

INTRODUCTION

Awac Awac is before me today for the imposition of sentence in respect of four offences upon which he was committed for sentence to the District Court from the Local Court, and for sentence upon two summary matters that are before the court pursuant to s 166 Criminal Procedure Act 1986.
The matter commenced before me in the District Court at Parramatta on 15 October 2019 but could not conclude that day because of other commitments and it was adjourned at or about the time the offender had completed his evidence in chief in his case. The matter was adjourned until a date late last year when it was to be resumed but I am not sure now whether it was because I was required to sit in country sittings or because of illness that I suffered that it could not proceed on that occasion and was adjourned by another judge to resume today.

THE OFFENCES

The offences upon which sentence is to be imposed are, first, sequence 1, dangerous driving causing grievous bodily harm contrary to s 52A (3) (c) Crimes Act 1900. The maximum penalty for that offence is imprisonment for seven years.
The second offence, sequence 5, is contrary to the same provision, exposing the offender to the same maximum penalty.
Sequence 3 is an offence of cause bodily harm by misconduct contrary to s 53 Crimes Act 1900 which provides for a maximum penalty of imprisonment for two years.
Sequence 14 is another offence contrary to the same provision exposing the offender to the same maximum penalty.
When he is sentenced for the first offence of driving dangerously occasioning grievous bodily harm he asks that I take into account an additional offence, the particulars of which are on a Form 1. This alleges that on 25 March 2018 he failed to give particulars to a police officer in respect of the collision or crash from which the charges arose. The maximum penalty for this offence is a fine represented by 20 penalty units. The Crown acknowledges that the impact upon the sentence that would otherwise have been imposed on the principal offence standing alone will be marginal. But there must be some modest increase in what otherwise could have been suffered. This offence is contrary to s 287 (1) Road Rules 2014.
The offences that are before me pursuant to s 166 Criminal Procedure Act 1986, are first, driving whilst disqualified, for which the maximum penalty is imprisonment for 12 months with a fine represented by 30 penalty units and an automatic period of disqualification of 12 months.
The second offence, sequence 6, is the offence of failing to stop and assist after occasioning grievous bodily harm for which the maximum penalty is imprisonment for two years with a fine of 100 penalty units and an automatic period of disqualification of five years which can be reduced to two years.

THE PLEAS

The charges arise from an event on 25 March 2018 in the early hours of the morning when through the dangerous driving exhibited by the offender the motor vehicle he was using suffered a collision leading to the injuries upon which the four principal charges have been brought suffered by four passengers travelling in the car.
The offender pleaded guilty in the Local Court to the charges upon which he was committed for sentence and he adhered to his plea of guilty in the proceedings before me. He is therefore entitled to a discount of 25% to each of the indicative sentences I identify for these offences reflecting the utility he has provided; that is applied to the sentence achieved in each case upon the synthesis of objective and subjective material that is before me including the extent to which he has demonstrated contrition and remorse.
The offence of drive whilst disqualified and fail to stop and assist after occasioning grievous bodily harm, are summary offences before the court pursuant to the procedures which allow for the outstanding summary matters to be brought forth and dealt with in the one court sitting. The offender was charged in this court with each of those offences and he pleaded guilty. Thus, in respect of those matters also, he shall have a discount of 25% for the utility of those pleas of guilty, applied to the sentence in each case reached upon the synthesis of objective and subjective material before me.

PRE-SENTENCE CUSTODY

He has effectively spent no time in custody for this misconduct though I note that he was arrested on 25 March 2018 and for that limited period was denied his liberty. He shall suffer an aggregate sentence of imprisonment in this case, as I will explain, and I shall commence the sentence from yesterday to bring to account that earlier period to account that earlier period.

THE FORM 1

Insofar as the Form 1 offence is concerned I have had regard to the guideline judgement, and in particular the judgement of Spigelman CJ in Attorney-General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518. The offender confirmed his guilt and his wish that the additional offence be taken into account.
Having availed himself of this procedure, he has avoided separate punishment for that offence but in taking the course that he has, there has been utility provided which must be brought to account in his favour, with the opportunity this provides to pursue rehabilitation. The additional offence, as I indicated, will impact but marginally upon the sentence that would have been otherwise imposed. Appropriate weight is to be given to aspects of personal deterrence and that the community is entitled to have brought to account, the full extent of the offender’s misconduct.

THE FACTS

The agreed statement of facts informs me that at about 3.15am on 25 March 2018, the offender drove a Honda Civic along Bungaribee Road, Blacktown, travelling in a westerly direction. At the time, he was a disqualified driver as a result of an earlier prosecution to which I shall refer when I come to deal with his personal circumstances. Within the vehicle were four passengers of the name Ken, David, Wiew and Ayai.
A witness, Mr Florakis, about 3.17am, heard the sound of a car engine revving loudly and saw the vehicle driven by the offender along Bungaribee Road, toward the intersection of Walters Road. He was travelling at speed. It was in the middle of the two lanes provided for westbound traffic, and as it passed through the intersection, it appeared to bounce and become airborne. Moments later, Mr Florakis heard the sound of screeching tyres and then an impact, followed by a bright flash, with disruption, albeit momentarily to the power servicing the surrounding area. He drove his vehicle toward the crash site and saw that the Civic had come to rest on the incorrect side of the roadway, the carriageway for eastbound traffic. The rear of the vehicle was up against a retaining wall and there were flames coming from the front of the car.
There is a map, or a diagram, more correctly, included in the agreed statement of facts but it is challenging to read and appreciate all of the features that are there depicted because of the size. Today, the Crown provided a larger copy of that diagram. It is a photogrammetry document, the lower portion of which is in plan, showing Bungaribee Road for Westbound and Eastbound traffic. On each side, there is provision for two lanes on the carriageway, and in the centre, there is a median strip.
The diagram depicts tyre marks extending from the westbound side of the roadway. The passenger side marks begin at the line dividing the two lanes, and further along there is in parallel the lines apparently made by the driver’s side of the vehicle. The lines cross the median strip at what appears to be an angle of perhaps 30 degrees and they extend on to the eastbound carriageway in the number two lane and then disappear. Further along, the lines begin again, extending from the number two lane into the number one lane, and then immediately after them is the image of the motor vehicle with the rear against what is a retaining wall or structure, along that side of the roadway.
This structure along the median is provided as a result of Bungaribee Road for westbound traffic being at a much higher level than the carriageway for eastbound traffic. The difference in height is represented in the drawing above the plan, showing the carriageways in section. The first of the western extremity on the plan shows the height of the carriageway for westbound traffic in contrast to the lower level of the eastbound carriageway with the diagram of the retaining wall separating the two sections of roadway. That, as I understand it, represents the road in section at that point, and thus if one draws a line directly down, toward the roadway, that is the part of the road depicted in section.
Further to the east, there is a another diagram, showing the roadway in section and then another three such diagrams as one proceeds further east. As one looks at those, going one to the other, perhaps from east towards the west, one can see how the difference in the heights between the two carriageways progresses from the eastern most point on the plan through to the most western point.
Above that there is a diagram for the westbound lanes, and above that, one for the eastbound lanes. This is in longitudinal section and shows the progressive height over the westbound lane and the eastbound lane in each direction, in effect showing the gradient in each case.
The location is further informed by the photographs included in the Crown bundle and if one looks to photograph 5 it can be seen that the carriageways are comparable in their levels, although the westbound lanes appear to be a little higher than the eastbound lanes. Photograph 9 is further along the stretch of roadway, showing the median strip and showing how it slants into the lower levels of the eastbound lanes, as one looks along the length of the median strip. Photograph 16, shows the vehicle where it came to rest, clearly after the fire had been extinguished and within daylight hours, with the rear end against the retaining wall supporting the area where the westbound lanes are to be found.
Photograph 18 is the image of a timber utility pole depicting damage that it suffered in the course of the impacts in which this vehicle was involved.
After he heard the sounds and saw the bright flash, Mr Florakis went toward the crash site and saw that the Civic had come to rest where it is depicted in the photograph, on the incorrect side of the roadway with its rear up against the retaining wall. There were flames emanating from the front of the vehicle. The passenger Mr David, who had been sitting at the front passenger seat, was running around the vehicle and screaming for help. Mr Florakis parked his vehicle and ran toward the civic. He and Mr David attempted to open the rear door but the vehicle was too badly damaged to allow them to do so.
Mr Florakis pulled the passenger Mr Wiew out through the rear window. Wiew had not been secured by a seatbelt and was unconscious and bleeding heavily from a large vertical laceration to the centre of his forehead. Mr David and Mr Florakis carried Mr Wiew to the nature strip and another civilian witness provided first aid.
Mr Florakis returned to the vehicle and saw that the offender was still seated in the driver’s seat. He and Mr David pulled the offender from the vehicle through the open window. He had a cut above one of his eyes and was complaining about pain to his chest. He said he could not breathe. The passenger Mr Ken and the other passenger Mr Awai extricated themselves from the car without assistance.
The police and emergency services arrived at the scene and took over the care of Mr Wiew. The Civic at that point was engulfed in flame and the officers were unable to check for any remaining passengers who it appears had all been able to be removed or remove themselves by that point. The fire was not extinguished until 3.45am.
Witnesses saw the passenger Mr David and the offender walking down the street with the passenger Mr Ken. The witnesses notified the police who stopped the three of them from leaving the scene while they received brief medical care. Thereafter Mr Ken and the offender suddenly left the scene and travelled to a house in Blacktown; it is that conduct which underpins the charge of failing to stop and render assistance after having occasioned grievous bodily harm.
Mr David, Mr Wiew and Mr Ayai were taken to Westmead Hospital. Upon arrival, Mr Wiew presented with a score of 4 on the Glasgow Coma Scale. He had a comminuted or splintered depressed fracture of the cranium frontal bone, supra orbital rim above the eye, and an intra-parenchymal and a subarachnoid haemorrhage (bleeding within the brain tissue). The fracture to his orbital bone was displaced by 9mm and consequently caused displacement of his right eye. He underwent an urgent surgical craniotomy to elevate the skull depression, had his frontal sinus removed, his orbital cavity was reconstructed, and he had an external ventricular drain inserted. He was discharged ultimately on 10 April. He is the subject of the first charge, dangerous driving causing grievous bodily harm.
Mr Ayai suffered un-displaced fractures of his eighth and ninth and displaced fractures of his tenth and eleventh ribs with associated pulmonary contusion (bruising of the lung). He suffered fractures to the L1 and L2 transfers processes (bones within the sacrum). He underwent an explorative laparotomy on 26 March 2018 and was found to have multiple serosal tears to his sigmoid colon (tears to the tissue membranes of a colon) which were surgically repaired. During the surgery, a chest drain was inserted which was not removed until 30 March 2018. Following the surgery, he suffered persistent air leakage on his left lung and underwent a bronchoscopy on 28 March 2018 to correct this. He complained of left central scotoma (black dot vision) and was referred to an ophthalmologist. He was discharged home on 2 April 2018. This is the array of injuries underpinning the second charge of dangerous driving occasioning grievous bodily harm.
The passenger Mr David suffered from 30% anterior wedging to his L4 (compression of the front edge of the L4 vertebrae). L5 compression, fracture with 17% loss of vertebral height, a displaced fracture of his sternum, a displaced fracture to his second, seventh and ninth and eleventh right ribs and an un-displaced fracture to the second rib with a minor collapse of his lung which resulted in pneumothorax. He was discharged from 30 April 2018. This is the array of injuries underpinning the first charge of causing bodily harm by this conduct.
This as actual bodily harm is within the range of a worst case example of such and although minds would no doubt differ, there would be in my view an arguable case for that array of injury to be found to extend to grievous bodily harm. However, that is not the charge that is before me and it is not the allegation to which the offender has pleaded guilty, and therefore, he shall be dealt with on the basis of the charge of cause bodily harm by misconduct, albeit with recognition of the serious nature of the actual bodily harm upon which the charge is brought.
Passenger Ken suffered bruising to his face, a headache and some neck pain; his bodily harm caused by the offender’s misconduct is at the low end of the range.
Crash investigators arrived at the scene about 9am and made their assessments concluding that the vehicle had travelled about 70 metres from the intersection before it lost control and travelled over the 5.5 metre grass and concrete meridian strip onto the wrong side of the road. It then travelled across the road hitting a timber utility pole with such force that the pole snapped. The vehicle then travelled backwards and impacted with a concrete retaining wall where it came to rest.
Blood spatters were located on the retaining wall and there was a pool of blood near the rear passenger side of the vehicle. The vehicle was so damaged by fire that it could not be examined.
The assessment is that the vehicle had been travelling at or about 44 kilometres per hour above the applicable speed limit of 60 kilometres per hour.
The offender was taken to hospital by family members on 26 March 2018. He received a serious injury to his right eye. The offender took part in an interview with police at his bedside. He denied any memory of the event despite earlier informing friends that he had been the driver and hence the charge of not giving particulars to police.
There is no reference in the statement of agreed facts to the offender’s ingestion of alcohol or drugs. However, in the course of his evidence before me today in response to cross-examination by the Crown, he conceded that he had four to five cans of alcohol in the form of cider and beers and spirits. He could not remember how long after his last drink he decided to drive. He was questioned about his drinking pattern since these events and his use of cannabis since the collision and told me that his consumption has been reduced significantly to the point where he has not consumed alcohol for a month and has had limited access to cannabis. He told me that the vehicle belonged to a friend, Jethro Lidele.
The Crown cross-examined him on representations contained in a document which was not his and could not be shown to have been in any way or at any time adopted by him. He was shown that document and asked for his comment but little was forthcoming thereafter upon the point after there was objection and I invited the Crown’s attention to s 44 Evidence Act 1995.
There had been earlier cross-examination regarding his memory of the event, represented here and elsewhere to be absent, a proposition that was inconsistent with a conversation in which he took part through a social medium, a copy of which was put before him and marked for identification 1. There was some vacillation about whether it was his conversation or whether it was simply his account in the course of which the conversation was had but in due course he acknowledged that it was his account, no one else used it, and that whatever the communication was he was the participant. Notwithstanding what was contained therein he maintained that he had no memory of either the conversation or the collision.
The cross-examination upon his intoxication arose as a consequence of what was contained in the sentence assessment report tendered by consent and without any objection or any request for the officer to be present for cross-examination. In the section dealing with factors relating to offending and beneath a sub-heading of “History of Antisocial Behaviour” there is a dot point in the following terms:

“Whilst Mr Awac’s criminal history can be considered to be minimal, his offences all include aggression and violence that appears to be related to a poor attitude towards managing conflict when alcohol and drug affected.”

The second dot point in this part of the report lists a series of offences charged and which are pending in the Local Court at Penrith. Although there is a specification here of a hearing date on 29 October 2019 it is common ground that those proceedings are extant and there is yet to be a judicial determination in those matters. Accordingly, they are not relevant to the determination of the sentence in this case. His record or criminal history I should say, as that term is used in the report, in the documents before me does not include any offences of that type or any offences that might involve aggression and violence. It perhaps is the case that the author of the report had what is known as a bail report, which includes not only matters that have been determined but also matters that have been charged without resolution. One way or another I do not take note of what is there contained in the report, it is irrelevant to the decision I have to make today.
In the next sub-heading “Attitudes” the following appears:

“Mr Awac agrees with the police facts; however, he appears to have limited insight into his offending behaviour. He transferred blame to friends not wanting to drive and from not stopping him from driving whilst intoxicated.”

He denies having said to the Community Corrections officer that he blamed his friends or that he has said anything in terms that he did not want to drive and had complained that his friends did not stop him from driving because of his state of intoxication. The information is attributed to the offender but not in first person speech. The way the passage is expressed it is a conclusion by the author drawing upon, it appears, and her perception of what was said to her.
What was not contested though was the concept of intoxication but even that presents difficulties because there is nothing before me upon which I could assess the level of intoxication, whether it would be moderate or slight or more significant, but it is acknowledged by the offender that he had a measure of intoxication and that he had consumed four to five cans of alcoholic beverage. Cans usually have greater than one standard drink in them but again there is no evidence before me as to precisely what size cans he was consuming and thus the question of intoxication informs, but to a limited extent, his moral culpability in this case.
It is also relevant to note that he was not blood tested or breath tested, having disappeared the opportunity for the police officers to properly exercise their powers after such a significant event by leaving the scene and avoiding that part of the investigation.
I would take note of the fact that even a moderate or light level of intoxication will impair a driver and for someone even slightly affected by intoxicating liquor to manage a vehicle such as this offender drove on this occasion does impact, at least to some extent, upon the assessment of the moral culpability of his misconduct.
The offender is now 20 years of age or I should say 21 years of age when I look to his birthday and the year which is now acknowledged to be the year of his birth, thus he is a young offender.

THE OFFENDER

He comes before the court with a record of antecedents that are of relevance here. On his criminal antecedents there is a record of three offences on 3 December 2017 dealt with on 16 January 2018, a little more than two months before this collision. These were for driving whilst his licence was suspended for no-payment of fines. For that offence he was fined $300 and disqualified for one month. For an offence of driving with a special category prescribed concentration of alcohol he was fined $400 and disqualified for a concurrent period of three months. This was from 16 January 2018 until 15 April 2018 and thus he was a disqualified driver at the time of this collision. He was also fined for driving as a learner but without being accompanied by an appropriate person.
He has a record of driving offences, beginning with November 2015 when his learned licence was issued. On 29 March 2017 he was issued a traffic infringement for exceeding the speed limit by not more than 10 kilometres per hour. There was a fine default suspension that followed. Then on 24 July 2017 for an offence on 3 April 2017 he was fined for not giving particulars after a crash. On 24 July 2017 after a further offence on 3 April 2017 he was fined for not complying with the conditions of his licence, driving without having an appropriate person accompanying him. On 3 December 2017 there were the three offences to which I have already referred. They were dealt with on 16 January 2018 and then finally for an offence on 25 March 2018 which is the same date as the collision he was issued with a fine for exceeding the speed limit by more than 30 kilometres per hour but not more than 45 kilometres per hour; that was conduct detected by way of a camera and is a separate episode of misconduct upon which he engaged.
His evidence before me on the last occasion has been transcribed and this confirmed his year of birth in 1999 in South Sudan from which he travelled to Egypt after a period of time and then came to Australia. In cross‑examination the Crown asked him about that. He said he had not much memory of those other places.
He obtained an apprenticeship here as a plumber but lost contact with his boss and therefore lost his apprenticeship and has since then been engaged in labouring work which he continues at the present time. He told me today that he has been unable to arrange another apprenticeship because of his lack of a licence.
He was asked on the last occasion about injuries. He was reminded by counsel that he had told the author of the presentence or sentence assessment report and the police that he had no memory of the crash. He was asked whether he had injuries to which he replied “well it’s just the crash, I was just - I had just - I just get - I wouldn’t know what it is but it’s called PTS where I get post traumatic distress.” That appears at p 4 line 36. He said his injuries included the damage to his eyelid and some injury inside his elbow but it was not much and then he said he hit his head on the wall during the incident and had a headache for several months non-stop. There is no medical evidence before me at all regarding any injury or sequelae. There is nothing in the presentence report about any of that. He was cross-examined about that but said that he had not been asked questions about anything that he might have suffered in the collision. Whether or not that is so cannot be resolved one way or another. What I can find though, without difficulty, is there is no evidence before me of any significant injury or any ongoing sequelae for the offender as a consequence of this collision.
He added in later responses that he felt light headed and had a weak head for several months after the event and that he woke up with headaches. He spoke of his change in drinking pattern. He was asked why he made the decision he did to drive a motor vehicle on this occasion; at p 11 line 18 he said “Well the reason why I - it’s not really a good reason to why I did it but I just did it on my own, even though I got a chance not to say yes but I say yes to it, just for my own reasons. But then now I see the consequence, after seeing what a (sic) impact of what is done.” He was asked at line 28 on p 11: “Do you know what was dangerous about the way you drove?” And in response to this examination in chief he said, “The speed that I was going and the, the level I was on as well, the condition.” And then at line 36, “ ... of me knowing of what I was meant to - what I was on mentally, I thought put myself in a position to drive reckless and all that.”
At p 13 he represented to me that he thought about what happened to these other young men and how they are. He told me that he thinks about them every morning and that he has dreams and nightmares of the crash and the car “catching in flames” and of people dying. He said his decision would be different on the next occasion if similar circumstances might present to him. When asked why that was so he said at p 14 line 11, “Cause come to think of it well...incidents like that can cause - what it’s called, paying for the rest of your life and it’s not really a good thing that happened with myself yeah.” And then at p 14 line 24 he said in response to a question about cars, “Well as soon as I just get in a position where - in the car the memories comes back, or like just flashback of what occurred, the car crash itself and on top I just can’t really like - I don’t know, it’s not comfortable riding no matter what cars, just get me freaking out every certain kilometre, the car reach even though it is not over the speed limit.”
His evidence today was simply to confirm that he had told the truth on the last occasion. He did not amplify, or qualify, what had been said before. There were questions put to him challenging his credibility. He acknowledged he had done wrong and claims to have reduced his intake of alcohol and cannabis since these events.
The only evidence in the offender’s case, apart from that which was given by the offender, was by way of two documents, which have been marked exhibit 1. The first is from the Chairman of the Sudanese/Australian Catholic Community speaking of the offender being a member of the community, of his family being very religious in the Catholic faith, supportive of the community, and the role that his parents play in the church. He was an altar boy up to six years ago apparently.
There is a document from the chairperson of the Aweil Community New South Wales representing that he is from a family of good character, that he is a hard-working man, a very reasonable person in the community. The author has known the offender for several years and watched him grow into the friendly confident young man that he is today. He is said to be of good character, respectable, honest, with good moral character, cheerful and helpful.
The submissions developed on behalf of the offender were in terms that he has shown insight demonstrated by his reduced intake of alcohol. I am reminded of the De Simone principle with regard to the question of intoxication. His history of offending is said in terms to be of modest proportion. A submission was made in respect of his attitude towards motor vehicles and how he does not fit into the usual category of what might have been seen among young people who could be described as, to use counsel’s term, “petrol heads”.
It is suggested he has a limited risk of re-offending. He has demonstrated contrition and remorse and there is little risk to the community. He is young, but now wiser, as a consequence of what occurred on this occasion.
It was conceded that a custodial sentence is indicated but that it would be unproductive to require him to serve any time in gaol because it would deny him the opportunity to continue or pursue employment in circumstances where he has learnt his lesson from this unplanned and unpremeditated event.
He has some support in respect of some of those matters in the pre‑sentence report including his employment history, his history of substance use, consistent with what he has said to me. He has reported no mental health issues but he said that he would have a psychological assessment booked for the purposes of sentencing; it appears nothing was done in that regard. He is said to have displayed no insight into his offending behaviour and took no responsibility with his actions. That is not entirely consistent with his evidence before me where he, at least, said that he recognises the impact of what he has done and he carries some ongoing emotional response to it.
He is assessed with a medium to low risk of re-offending. There are recommendations made with regard to his management should he not serve a custodial sentence.

SUBMISSIONS

The Crown has helpfully provided written submissions reminding me of each of the offences upon which he is presented, referring me to the judgement in The Queen v White [2002] NSWCCA 343, drawing together the common features of cases such as this, which were there said to be sufficient to allow the Court of Criminal Appeal to provide a guideline for sentencing courts:

“Offences contrary to these provisions will lead to a custodial sentence in the usual case unless there is a low level of moral culpability such as in the case of momentary inattention or misjudgement.”

The examples of momentary inattention or misjudgement were not as I perceive that decision intended to be an exhaustive statement of indications of low level moral culpability. In fact where there is high moral culpability, such as I find in this case, a head sentence of less than two years would not generally be appropriate.
The Crown refers to the reference to intoxication in the report and concedes that it cannot prove the extent of intoxication, although the admission of him having a measure of intoxication, it says, increased the seriousness of the offending and therefore the moral culpability of the offender. Relevant to the assessment of moral culpability are the extent and nature of the injuries inflicted, and they were significant if not substantial, examples of grievous bodily harm in the first two charges upon which sentence is to be imposed.
The next aspect the Crown points to is the number of people put at risk; there were at least four, being the passengers in the motor vehicle, and that does not of course bring to account who might have been haplessly proceeding along these stretches of carriageway at the point the offender chose to drive in this manner.
The amount of speed in the circumstances is also a matter to be brought to account. In an area of a 60 kilometre per hour speed limit he was substantially above that at 104 kilometres per hour upon the assessment made of the driving, drawing upon the consequences of his management of the vehicle. Upon whether there was competitive driving, or showing off, the Crown submits, as I perceive, that the Court would infer that there might well have been a degree of showing off to his friends in the way he was driving. In any event, as the Crown points out, it would not be possible for the vehicle to be driving at such speed in such circumstances through mere inattention.
I am also asked to bring to account that he was a learner driver and therefore without the appropriate skills to manage a vehicle in such a fashion. The grave inadequacy of his driving is informed by the course taken by the vehicle leaving the western bound carriageway, traversing the medium strip, continuing along the eastern bound carriageway against the direction of traffic that might have been travelling along that road into impact with the telegraph pole with sufficient force to break it and then continuing on to come to rest at the resting point against the retaining wall where it ignited. I am reminded of the distance travelled of more than 70 metres once it had traversed the intersection.
I accept the proposition that the moral culpability demonstrated in this case is high and I am satisfied that he abandoned his responsibility as the person in charge of that motor vehicle with four companions as his passengers. The Crown reminds me that the injuries to Mr David are a most serious example of actual bodily harm and that Mr Ken’s injuries were a much lower scale.
With regard to the summary offences, the disqualification had been imposed two months and nine days prior to this offence. He failed to assist following the offences. He sought to leave the scene of the collision on two occasions, the first of which was thwarted by emergency services.
The Crown concedes there are no aggravating factors. It concedes the 25% discount for utility. It concedes that he has an essentially good character but that must be measured against the offending upon which he has engaged in the past and which is before the Court by way of his driving record and his antecedent record. He has suffered suspensions already from his driving offences in the past. This impacts upon his prospects of rehabilitation and suggests an ongoing disregard for his obligations as a member of our community.
This raises a difficult question. I must confess that even having heard him in the witness box, it is difficult to resolve whether or not he is truly contrite and remorseful in the circumstances and whether there are good prospects for rehabilitation, but on balance, bearing in mind he has the onus of proof in this regard on the balance of probabilities I will extend to him, consistent with the concession made by the Crown that he is appropriately contrite and remorseful.
As to prospects for rehabilitation, even if his representations are sincere in that regard, there is some qualification for the way he answered questions upon the topic and I am not prepared to find that he has good prospects of rehabilitation at this point, particularly in light of the history of offending including that he engaged upon another serious speeding offence at some point proximate to when this collision occurred.

CONCLUSION

I am satisfied that the line at s 5 Crimes (Sentencing Procedure) Act 1999 was crossed and I am also satisfied that no sentence other than a term of imprisonment is appropriate. I am not persuaded that there ought to be an alternative course taken for the manner in which the sentence is to be served. I do accept, however, that there are special circumstances requiring a reduction in the custodial component with a corresponding increase in the amount of time the offender can spend on parole to assist in his rehabilitation and to enable his appreciation of what is expected of him as a member of our community.
Section 3A Crimes (Sentencing Procedure) Act 1999 is a statement of the common law upon what the Court brings to account purposes for the imposition of a sentence. I agree with the Crown submission that there must be adequate punishment in this case and there is a need for general and specific deterrence, protection of the community, and the conduct must be denounced. General deterrence has a significant role to play in this case and so too the need to denounce this misconduct. Judges do not sit apart in towers; they are part of the community. We drive; we spend time on the roads. Moreover, we are given the unfortunate burden of having to deal with cases like this time after time where people because of the misuse of a motor vehicle have caused grievous bodily harm or death to other members of the community. The courts need to make clear to those who drive motor vehicles that if they misuse the vehicles and turn them into a weapon which is what they can become, they will face consequences and those consequences in cases such as this will be a gaol term.
So for these reasons, I convict the offender of each of the offences to which he has pleaded guilty and they are the dangerous driving causing grievous bodily harm upon Mr Wiew, the same offence upon Mr Ayai and of the cause bodily harm to Mr Ken and to Mr David.
He is convicted of the offence of driving whilst disqualified and convicted of the offence of failing to stop and assist after having caused grievous bodily harm. I have taken into account the Form 1 offence when determining the sentence upon the offence of dangerous driving causing grievous bodily harm, sequence 1. I will certify the Form 1 to confirm that I have taken it into account.

THE SENTENCE

I shall announce the following indicative sentences.
For the offence of dangerous driving causing grievous bodily harm, sequence 1, I specify a sentence of imprisonment of 2 years and 9 months. That has been reduced by the discount of 25% from the sentence that I set upon bringing to account the objective and subjective material before me and taking into account the Form 1 offence.

For the offence of dangerous driving causing grievous bodily harm, sequence 5, the sentence I indicate is one of 2 years 7 months and 15 days, again reduced in the same fashion by 25%.
For the offence of causing bodily harm by misconduct, the sentence is one of imprisonment of 1 year, again reduced by a discount of 25% in the same manner. That is sequence 3.
For the offence of causing grievous bodily harm by misconduct, sequence 14, the indicative sentence is 9 months reduced by the 25% discount in the same fashion.
For the offence of driving whilst disqualified, there is a sentence of imprisonment of 6 months and 23 days indicated, reduced by a discount of 25% for the plea of guilty.
For the offence of failing to stop and assist after the causing of grievous bodily harm, I impose a sentence of imprisonment of 9 months. The term has been reduced by a discount of 25% for the plea of guilty.
I find that the objective gravity of these offences upon which I have imposed sentence, that is the indictable matters before me, in each case fall about on the mid-range of objective seriousness for the reasons that I have articulated in the course of the analysis of the facts in the case and the aspects informing the moral culpability of the offender’s behaviour.
I specify an aggregate sentence. I specify a non-parole period of 2 years and 6 months commencing on 6 February 2020 with a head sentence of 4 years. I find special circumstances. He will be eligible to be released to his parole on 5 August 2022.
Insofar as disqualification periods are concerned, I am conscious of the youth of the offender and the opportunities that he will have lost by reason of his incarceration and the period of disqualifications that must be imposed. The disqualification to which he was subject expired on 15 April 2018, and thus the period of disqualification I impose will commence according to the calculation by Transport New South Wales.
Madam Crown, what I propose is that the period of disqualification, I think it will have to be concurrent, will not it in each case? I am not quite sure how it works these days in the way the legislation has been structured.
SADDINGTON: Yes, your Honour, I believe that the disqualification periods would be concurrent and the starting date is determined by the Road and Maritime Service.
HIS HONOUR: Yes. Well, what I propose to do is specify periods of disqualification of two years in each of the grievous bodily harm cases, which are sequences 1 and 5. In respect of sequences 3 and 14, again 2 years is the minimum term I can disqualify and so too in respect of sequences 4 and 6. I will apply the minimum periods of disqualification of 6 months and 2 years respectively and Roads and Maritime Services or Transport New South Wales can do the calculation for the dates upon which they will run.
I will make it clear and put it on the record that once he is released, he is going to need to take some steps toward employment and some opportunity to pursue a career. By force of the legislation, the disqualification periods will not run until he is released in any event.
SADDINGTON: I believe that’s the case, your Honour.
HIS HONOUR: So he has two years after he comes out of gaol that he will be off the road. That is what I am intending. Whether that finds favour with the administration of that department, that is a matter for them but that is my intention in this case.
Are there any other orders required so far as the Crown is concerned?
SADDINGTON: No, your Honour.
HIS HONOUR: All right. Any other orders required so far as you are concerned, Mr Brennan?
BRENNAN: No, thank you, your Honour.
HIS HONOUR: I will place the exhibits on file and I will adjourn.

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Decision last updated: 12 March 2020

Medium Neutral Citation:	R v Awac [2020] NSWDC 41
Hearing dates:	15 October 2019
Date of orders:	07 February 2020
Decision date:	07 February 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate sentence of imprisonment of 4 years with a non-parole period of 2 years 6 months
Catchwords:	CRIME — Driving offences — Dangerous driving occasioning grievous bodily harm — “In a manner dangerous to another person or persons” CRIME — Driving offences — Failure to stop and assist after vehicle impact causing death or grievous bodily harm SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Evidence Act 1995 Road Rules 2014
Cases Cited:	Attorney-General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518 The Queen v White [2002] NSWCCA 343
Category:	Sentence
Parties:	Regina (Crown) Awac Awac (Offender)
Representation:	Kartini Saddington (Crown) Sean Brennan (counsel) (Offender) Director of Public Prosecutions (NSW) (Crown) Hunter and Braddon Lawyers (Offender)
File Number(s):	2018/00094375