R v Beard
[2015] NSWDC 399
•14 December 2015
|
New South Wales |
Case Name: | R v Beard |
Medium Neutral Citation: | [2015] NSWDC 399 |
Hearing Date(s): | 10 December 2015 |
Decision Date: | 14 December 2015 |
Jurisdiction: | Criminal |
Before: | Judge S Norrish QC |
Decision: | CONVICTED: Sentenced to a term of imprisonment of 1 year and 6 months. |
Catchwords: | Criminal - Sentence, driving in a manner dangerous to other persons, failing to stop and render assistance, early plea, related matters on a Form 1, lack of remorse, "vulnerable victim". |
Legislation Cited: | Crimes (Sentencing Procedure) Act 1999 |
Cases Cited: | Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147 |
Category: | Sentence |
Parties: | Director of Public Prosecutions – Crown |
Representation: | Solicitors: |
File Number(s): | 2015/00010625 |
SENTENCE
HIS HONOUR: Guy Cully Beard appears today for sentence in relation to two offences for which he pleaded guilty at the Local Court.
The two offences are respectively, driving a motor vehicle when it was involved in an impact, occasioning grievous bodily harm to Matthew Hutchinson, when he was driving in a manner dangerous to other persons, committed on 12 January 2015 at Surry Hills. This is an offence contrary to s 52A(3)(c).
The second offence to which he pleaded guilty at the Local Court and was committed for sentence, is an offence contrary to s 52AB(2) on the same date, at the same place, failing to stop and render assistance after his vehicle had impact with the motor cycle ridden by Mr Hutchinson. The impact caused grievous bodily harm to that person.
Each of these offences carries a maximum penalty of seven years’ imprisonment. There is no standard non parole period in respect of either offence.
There are also to be taken into account in sentencing the prisoner for the principal offence, which is the driver manner dangerous cause grievous bodily harm offence - seven matters on a Form 1. These matters all arise out of the sequelae, if I could use that expression, or the aftermath, of the driving in a manner dangerous, giving rise to the principal charge and the related offence.
The offences are respectively, behaving in an offensive manner in a public place, ‘resisting a police officer contrary to s 58, the Crimes Act 1900’, two separate offences of ‘refusing to submit to breath testing’ and ‘refusing to submit to breath analysis’ under the relevant clauses of the Road Transport Act, ‘driving a vehicle under the influence of alcohol or other drug’, ‘not giving particulars to a driver of damaged property relating to a collision’ occurring, as I understand it almost immediately after the impact causing grievous bodily harm to Mr Hutchinson, and ‘not give driver particulars to police’.
Each of those offences are directly dealt with in the detailed statement of facts which in the first three or four paragraphs, set out the events either contributing to or immediately after the primary offences, but which go on to detail the character of the prisoner’s behaviour after the event. I am informed by the prisoner’s counsel that the prisoner on 12 January 2015, before he had involved himself in the collisions which are set out in the facts, had driven from Botany Road in Redfern to Crown Street, Surry Hills. The prisoner was driving a Holden Rodeo, registered number BZ 28 UU. He was driving in a northerly direction along Crown Street, Surry Hills which is a sealed road with one lane of traffic in each direction - one direction going south, the other direction going north, divided by a double unbroken centre line. The applicable speed limit in Crown Street at this point is 40 kilometres per hour, which is relatively signposted. The facts state:
“In the immediate vicinity, are small businesses and residential properties. The vehicular and pedestrian traffic was heavy at the time.”
12 January 2015 was a weekday and as I said, shortly after 5pm, the prisoner had his first collision with another vehicle when he was seen to accelerate his vehicle harshly, causing it to fishtail up Crown Street. The front near side tyre of the vehicle, collided with the western kerb alignment. He then crossed the double centre unbroken line, causing the entirety of the vehicle to be within the southbound lane of traffic although he was heading in a northerly direction.
The prisoner’s car then swerved harshly to the left. However, the rear offside of the prisoner’s vehicle collided with a Honda motorcycle, registered number 0ER33, ridden by Mr Hutchinson, who was wholly within the southbound lane of Crown Street. The prisoner re entered the northbound lane and stopped momentarily, before then accelerating away harshly, as it is described in the facts, failing to stop and render assistance to the victim.
These are the bare facts in relation to the two committal for sentence offences.
He then crossed over double unbroken centre line and overtook numerous vehicles that were stationary at a red traffic signal on Crown Street. He disobeyed the red traffic signal and turned left into Devonshire Street and accelerated away harshly. He continued to travel at speed and came into collision with another Holden Rodeo, registered numbered AQ99GU, that was parked along Steel Street. He failed to stop after colliding with this vehicle and was later seen driving in an easterly direction on Phillip Street, Waterloo, by officers at Botany Bay Highway Patrol.
The Court Attendance Notices prepared at the time of his arrest, gave the prisoner’s address as Morehead Street, Redfern. The prisoner was stopped on Young Street, in close proximity to the intersection of Phillip Street. He failed to produce his driver’s licence and used offensive language towards the police. He eventually complied with exiting the vehicle but he was unsteady on his feet and appeared to be affected by intoxicating liquor or an illicit drug. He had suffered a form of injury to his mouth and was bleeding but kept yelling at police, amongst other things, “fuck off cunt, fuck you”. He was restrained by police who put handcuffs on him. He kept on shouting abuse at the police in various ways, which I need not dilate upon. But he was slurring his words, his eyes were bloodshot and he smelt heavily of intoxicating liquor. He clearly was under the influence of some substance.
The accused showed signs of what were described in the facts as, “irrational behaviour”, and then would show signs of calmness and then he would explode with “bursts of verbal abuse towards police”. When he was cautioned by police he became aggressive. He twisted his body back and forth and became difficult to restrain. Eventually, he had to be forced to the ground for him to be subdued. He was told that he was required to undergo a breath test by exhaling air from his lungs into a device, held by the police officer. He was told if he did not do it, it would be an offence. The prisoner said, “Fuck off get that away from me”. He refused to supply a relevant breath sample, twisted his head away and spat a large amount of saliva with blood in it towards the officer attempting to submit him to a blood test.
While police were awaiting the arrival of a caged vehicle, the prisoner continued to use offensive language, continually using the words, “fuck off and fuck you”. This caused a large number of residents and motorists to stop and watch his behaviour. He was told on many occasions to stop swearing but he ignored the requests. He was taken to Redfern Police Station and entered into custody and then was requested to undertake breath analysis. He refused to exit the dock area and enter the breath analysis room. Upon being cautioned by the police, he told them to, “get fucked”. He was asked if he had received any medical or dental treatment in recent times and he said to the police officer, “No get fucked you cunt”. Asked if there was any reason that would prevent him supplying a sample of his breath, he said, “Yeah you’re a cunt”. He was given three separate opportunities to supply a sample of breath analysis but he refused to do so.
Various other administrative steps were then taken and because there was a serious motor vehicle collision reported, involving the prisoner’s car - or police believed that to be so - and there was serious injury to a person, an interim order for a forensic procedure was sought to get a sample of his blood for analysis. This was granted by the duty manager. The prisoner was still abusive towards police. A doctor attended at the police station at 1am the following morning and conducted the forensic procedure and a blood sample was taken.
The results of the blood sample returned a positive reading for cannabis. There was a negative reading for alcohol. Dr Judith Perl, a respected scientist expressed the opinion that there would have been some impairment of his driving ability at the time of the collision on the results of that blood test.
Various other investigations were later undertaken. Police attended upon Silverwater Remand Centre to speak to the prisoner on 24 February. A standard form of demand for driver and passenger identification and vehicle information suspected of being involved in indictable offences was read to the prisoner. He was warned that if he failed to reply, he would be committing an offence under the LEPRA. When asked who the driver of the vehicle that he now admits driving at the time was, the prisoner simply stated, “No comment”. He refused the participate in an electronic interview which is his right and refused to sign any documentation.
On 25 March 2015 police from the Crash Investigation Unit attended Silverwater Gaol and listened to telephone call recordings between the prisoner and his mother. At 2.34pm on 4 March the prisoner whilst in custody spoke with his mother. During this telephone conversation the prisoner said:
“I get the brief on the 10th so I still don’t know if old mate was injured or not but as long as I, but as long as like I don’t think he was, as long as I didn’t hurt him and I hit the bloke on the motorbike I should be pretty right. Yes. So we will see, we will just see what happens”.
The victim in fact was taken to St Vincent’s Hospital and I have seen some medical records in relation to his treatment. He was found to have suffered a comminuted fracture of the right patella, or kneecap, that required tension band wiring and an open wash out and cleaning of the open wound. He was placed in an extension splint and that was in place for approximately six weeks.
The victim has in accordance with the Act provided a victim impact statement which attaches a photograph showing the scarring to his knee, the wiring of his knee and other matters. He states that he ended up having his leg in a splint for four months. He was unable to undertake household duties. He was a self-employed man. He was not able to receive any income, has not been receiving any income since the accident, has not been able to pay mortgage or car loan repayments and this has put enormous stress upon his family. He is a married man with children.
He had to have a second operation to remove the wire and screw that were used to hold his knee together. He has not been able to drive for in excess of ten months. He has difficulty walking upstairs and his knee will probably require further surgery. He describes 2015 as:
“The worst year of my life of my life both financially and physically”,
not to mention the stress upon his family. I appreciate the victim impact statement has not been subject to oath nor cross-examination, but the truth is that the victim suffered grievous bodily harm in a delicate area of the body and it has caused him continuing hardship over a lengthy period of time.
The prisoner has a criminal history that goes back quite some time and is one which reflects offending in a range of ways during that period of time. The prisoner had a number of appearances in the Children’s Court through 1995, 96 and 97. As an adult he has a number of appearances in the Local Court and he has one appearance in the District Court for various types of offences ranging from acts of violence to acts of dishonesty to the mishandling of motor vehicles.
So far as his driving record is concerned to deal with that, although it is not the only relevant matter, he has a conviction in the Central Local Court on 5 May 2003 for driving under the influence of alcohol or another drug from an offence committed on 7 September 2002, and two convictions for driving under the influence of alcohol or drug and driving in a manner dangerous to the public or furiously or recklessly, each committed on 30 October 2002. In respect of those matters as I understand the orders of the Court, he was ultimately disqualified for five years and sentenced to terms of imprisonment which are more detailed in the criminal history which is provided to the Court in the Crown bundle.
In respect to the drive under the influence of alcohol or other drugs matter committed in October 2002, he was sentenced to nine months’ imprisonment with a non-parole period of six months. In respect of the drive vehicle either recklessly, furiously or in a speed or manner dangerous to the public he was likewise sentenced to nine months’ imprisonment with a non-parole period of six months. Those sentences commencing presumably from the date that he came into custody 11 November given that he was sentenced from 5 May 2003.
The prisoner has other convictions, failing to quit licensed premises and assaulting police officers in November 2001, possessing a prohibited drug, an offence committed in May 2002 for which he was fined $1,500. In October 2002 he was convicted of possessing a prohibited drug and imprisoned for six months. He was also convicted and sentenced in May 2003 for offences of common assault and custody of a knife in a public place to terms of imprisonment of six months, obviously run concurrently with a non-parole period for the other matters.
He appeared at the Sydney District Court on 24 April 2003 and was convicted and sentenced on indictment, it would seem, for an offence of either maliciously or recklessly destroying or damaging property and was sentenced to 12 months’ imprisonment with a non-parole period of six months. At the same time he was dealt with in relation to the drink driving or drug driving matter to which I earlier referred. He was convicted of assaulting a police officer in the execution of his duty, resisting a police officer in the execution of his duty, destroying and damaging property and threatened to cause injury to potential witnesses for which offences he received s 9 good behaviour bonds. He was also imprisoned for six months at that time in respect of the first of the drive under the influence of alcohol or drugs matter committed on 7 September 2002.
Subsequently in 2006 he was convicted of possession a prohibited drug, possessing housebreaking implements in 2007 for which he received three months’ imprisonment. He was convicted in 2007 of behaving in an offensive manner in a public place and having goods in custody reasonably suspected of being stolen or unlawfully obtained, sentenced to one month imprisonment in respect of each matter. He was further convicted in April 2007 of damaging property by fire or explosive, behaving in a manner dangerous to the public, having in his custody an offensive implement in a public place, damaging property and common assault to a total of eight months’ imprisonment, all those offences apparently committed on 11 February having previously committed the previous two offences on 8 February 2007.
He was convicted in 2001 of dishonestly obtain property by deception for which he was fined a modest amount. He was convicted of larceny in January 2012 for which he was fined. He was also convicted in 2012 for behaving in an offensive manner and convicted of a common assault for which he was placed on a 12 month good behaviour bond.
He was convicted in 2013 of resisting a police officer in the execution of his duty, resisting and hindering police in the execution of their duty, having in his custody a knife in a public place, for which he received convictions under s 10A of the Act. For goods in custody suspected of being stolen or unlawfully obtained, another offence committed at the same time, he was sentenced to two months imprisonment.
That brings us to the most substantial of his more recent offences for which he was on bail when he committed the offences with which I am concerned. I had the appeal against the severity of those sentences before me, and reading from the Crown cover sheet he committed an offence of common assault on two separate occasions at Dee Why on 19 November 2014. For those matters when he was dealt with at the Manly Local Court, as I understand, on 16 September 2015, he was sentenced to four months imprisonment.
On 20 November 2014 he committed the offence of intimidate police officer in the execution of his duty without causing actual bodily harm. For that offence he was sentenced to seven months imprisonment. In respect of an offence of having goods in personal custody suspected of being stolen, or unlawfully obtained, committed on 27 November 2014 he was sentenced to one month imprisonment. For an offence of destroy or damage property with intent to injure, committed on 15 December 2014 at Balgowlah, he was sentenced to three months imprisonment and ordered to pay a modest amount of compensation.
The detail of these sentences reflects the fact that he was ultimately sentenced to a total of seven months imprisonment - all the terms of imprisonment were concurrent one with the other - dating from 15 January 2015. That means in effect that he appeared before me for sentence in relation to the matters with which I am directly concerned in circumstances where he had been for part of the time since 12 January when he was arrested in custody in relation to other matters. But it would appear when he was sentenced in the Magistrate’s Court all the sentences were fixed to commence from 15 January, so he missed out on three days credit between 12 January and 15 January.
What I have resolved to do is to commence any relevant sentences I have to impose from 12 May 2015, which means that the sentences I impose are partially accumulative upon the sentences fixed at the Magistrate’s Court. But I am fixing the sentences to start from 12th of the month, not the 15th of the month, to give the prisoner that three days credit.
There is a pre-sentence report prepared in relation to the prisoner. The prisoner has previously of course been under supervision of Community Corrections, or the Probation and Parole Service as it was known. He has previously been on parole, and has been subject to s 9 bonds, which apparently he has successfully completed. His response to previous supervision was “deemed to have been satisfactory”. It is also to be observed that, as I have pointed out from his record, he has regularly continued to offend.
He is not married, he does not have any children, and - as I understand it - at the time of coming into custody he had no place of fixed abode. He had been living with a friend in Waterloo, but that option is no longer available to him.
He grew up in Western Sydney but his mother was exposed to a degree of domestic violence. His father was an abuser of alcohol and drugs, as I understand it, and the family had to relocate frequently to avoid threats from the father, leading to much disruption to his education. His mother apparently lives in Queensland, as do two of his three siblings.
He left school at about the age of fifteen. He had some learning difficulties, and since leaving school he has worked - according to Community Corrections - on a casual basis in various employments, although he was unemployed for 12 months prior to his arrest in relation to the current matters, receiving the Newstart Allowance.
As it reflects upon the facts of the case, his admission of guilt in relation to ‘driving under the influence’ and the use of cannabis has relevance to the offending with which I am concerned. Although he is specifically charged with driving in a manner dangerous by reason of the character of his control of the vehicle, I note that he told the Community Corrections Service that he was “under the influence of cannabis” at the time of the offences, claiming to be poly-drug dependent, using cannabis and methylamphetamine on a regular basis, although there is no suggestion of methylamphetamine in his bloodstream at the time of the offending on this occasion. He also was a heavy drinker of alcohol.
He had undertaken a residential rehabilitation programme in Queensland and attended a detoxification clinic in Sydney. But he said that he was in need of further intervention, which is self-evident.
So far as his attitude to the offending was concerned - again to emphasise how unfit he was to be in control of a motor vehicle at the relevant time - the prisoner sought, according to the Community Corrections Service, to minimise his behaviour by referring to the fact that he was “acting under the influence of illicit drugs”.
He did not have any expression of remorse for the victim, or the consequences of his behaviour, and I have seen no evidence of victim empathy at all in this matter.
He needs particular assistance on release in relation to education and employment, accommodation, alcohol and drug problems, and of course his general attitude. So far as the future is concerned it will be a matter for the Community Corrections Service to determine what programme will be appropriate for the prisoner. He is assessed as being in a medium/high risk of re-offending. His record and his behaviour in relation to the matters with which I am concerned shows that to be self-evidently true.
He was co-operative in the interview process, was said to have provided a “frank account of his antecedents” and acknowledged the correlation between his substance abuse and his offending behaviour, and the need for what were described as “urgent interventions”. However his lack of a fixed place of abode does limit the scope of the Community Corrections at this point to identify a particular programme that would be appropriate for him, he would need to undertake some programmes, that are referred to in the report, in custody.
With regard to the material that was available in respect of the matters that were the subject of appeal I have read the facts in relation to those matters, although I dismissed the appeals because there was no point now in pursuing the appeals against the sentences in the Local Court, the prisoner having served those sentences.
The prisoner did not give evidence before me in these proceedings. What was not made available to me in relation to the prisoner’s background was his traffic record until recently. I have referred to his previous convictions for what are regarded under the legislation as serious offences. However it is to be pointed out that particularly since 2011 the prisoner has a large number of infringement notices issued for a range of offences, including driving a motor vehicle with his number plate either obscured, or containing misleading information, driving a motor vehicle while using a mobile phone, disobeying a left turn, or right turn signal, exceeding the speed limit by more than 10 kilometres in January 2013, exceeding the speed limit by more than 10 kilometres per hour, but less than 20 kilometres per hour in February 2013, exceeding the speed limit about 14 days later by no more than 10 kilometres per hour, and disobeying traffic lights in July 2014.
From what I can see of the traffic history the offender has been sent warning letters in relation to demerit points acquired on at least five separate occasions. I note in relation to the current matters that his licence was suspended by police on his arrest and, as I have indicated, that means that I should backdate any disqualifications to the date that that suspension was ordered by the police.
His counsel in his case produced some photographs, and also a medical discharge summary, relating to the victim which I have taken into account. In relation to the submissions of his counsel, his counsel in the written submissions provided to the Court noted, amongst other things, the prisoner’s age at the time of offending, being 33 years and six months, and his current age at about thirty-four and a half years, the maximum penalties and the fact that the plea of guilty was one entered at the Local Court. I propose to give the prisoner a discount of 25% upon the otherwise appropriate sentences for the two offences requiring the imposition of penalties to reflect the utilitarian benefit of those pleas of guilty.
In relation to the injuries suffered by the victim it was submitted that, in effect, the injuries are not in the worst category of injury contemplated by the legislation, and that I accept. It was submitted there was no permanent disability. I cannot conclude beyond reasonable doubt that there is a permanent disability but it is clear from the victim impact statement that the victim still continues to suffer some disability some time after the events.
Some comments were made about the number of people that may have been present at the time, but that aspect of the submissions was met by what was in the agreed facts. One would expect in this area of Sydney quite a number of people and vehicles about. That is clear as the agreed facts state.
With regard to the driving, it was submitted it was not premeditated or planned driving, and I accept that that is so. But it usually is not the case that crimes of this type are committed by pre meditated or planned actions. If they are, particularly where grievous bodily harm or death occurs, one might have thought, well serious charges would be brought.
With regard to the driving it was submitted that the relevant driving at the crux of the drive manner dangerous charge was not over a great distance and as for speed, whilst the car did accelerate harshly, as the facts says, there is no specific speed identified.
With regard to considering aggravating factors, under s 21A(2), it was submitted that the prisoner does not have a criminal history that constitutes what relevantly would be an aggravating factor under s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999, which I will hereinafter refer to as, “the Act”. With that submission I agree, but he certainly does not have a record which entitles him to any leniency and his record is a matter of some concern, in the context of his prospects of rehabilitation, given the fact that it reflects a scope of offending across a range of offences, both of violence and dishonesty and disregard for road laws, with varying penalties being imposed. But apparently with no influence upon the prisoner’s conduct as the events of this day demonstrated.
It was submitted on behalf of his counsel, that his offending included the aggravating factor of “committed without regard for public safety”. Well of course, his conduct did show a lack of regard for public safety. But in my view, that constitutes an element of the offence in the context of the allegation of driving in a manner dangerous. It is conceded that his offences, with which I am concerned, were a breach of conditional liberty. It is apparent that he was on bail in relation to a number offences that were dealt with, as I pointed out earlier, in September 2015, at the Local Court.
The character of the driving of the prisoner, brings into sharp focus the guideline judgment of R v Whyte [2002] NSWCCA 343. There the Court of Criminal Appeal reviewed the guideline that had been laid down in the earlier decision of the Court of R v Jurisic (1998) 45 NSWLR 209. The matter that ultimately required review of the previous guideline, was the reference in the previous judgment to the ‘abandonment of responsibility’ and related comments subsequently by the Court in that matter. It was noted for the purposes of the guideline, concerning an offence contrary to s 52A of the character that the prisoner has pleaded guilty to here, usually was concerned with a young offender of good character with limited or not prior convictions with a victim who was a stranger, and with limited injury to the driver or the driver’s intimates, and a showing of genuine remorse but a plea of guilty of limited utilitarian value.
With regard to the amended guideline, the Court pointed out in the decision of Whyte, as it had in Jurisic, that the consideration of the guideline involved a consideration of what was thought to be a 'typical' case, where there was not to be taken into account to a material degree aggravating factors relating to the conduct of the offender. The aggravating factors might include the extent and nature of the injuries inflicted, the number of people at risk, the degree of speed, the degree of intoxication or of substance abuse, erratic driving, competitive driving or showing off, length of the journey during which others were exposed to risk, and ignoring of warnings, or escaping of police pursuit, and other aggravations identified in Whyte, included failing to stop.
In this particular matter of course, the failure to stop by the prisoner is charged as a discrete offence and thus is irrelevant to the assessment of the guideline but here by reference to aggravating factors that rise. We have clearly on the facts a number of people at risk. We have both the manner of driving of itself dangerous while the accused was, on his own admission, affected by cannabis, and we have intimately bound up in the character of the driving at the time of the impact and immediately afterwards, quite erratic driving.
The length of journey during which others were exposed to risk was relatively short by comparison one might make, for example, to cases in rural or regional areas. But the prisoner drove over at least a couple of kilometres, one would have thought having regard to the geography, in an area that is very highly populated at a very busy time of the day.
Ultimately, in relation to the matter, the Court in Whyte determined that for a typical case where the offender’s moral culpability is high, a fulltime custodial sentence of less than three years in the case of death and two years in the case of grievous bodily harm, would not generally be appropriate. However, in the case of the aggravated version of each offence, an appropriate increment to reflect either the higher maximum penalty, or alternatively, the existence of aggravating factors, would need to be considered, and of course, here were have in sentencing, a consideration taken of aggravating factors arising, under s 21A(2) of the Act.
The prisoner’s counsel referred to his history of gainful employment. The background of the prisoner set out in the PSR I am prepared to accept from the history obtained by the Community Corrections Service. The prisoner has not had an ideal upbringing and his family was subjected to threats of violence from his father and his father’s abusive behaviour impacted upon the family is a matter of regret and certainly a matter that has some relevance to explaining the prisoner’s development.
But on the other hand the prisoner now comes forward in his mid-30s, not as a young man, and of course he comes forward with a history of offending of various types without, seemingly, any impact upon of previous supervision by Community Corrections. It must be fairly said that he comes for sentence in this matter charged with the most serious offences that he has had to face. I accept that he has indicated a willingness to undertake some program of rehabilitation. But clearly there is much work for him to do as otherwise he would not be in a situation he currently is at the present time.
With regard to the submissions of his counsel, there was a suggestion put that the prisoner might be regarded as contrite. In my view that could not be found in his favour. The facts of themselves speak of an unwillingness of the prisoner, even after he had sobered up, to be of any assistance to the investigating police. I appreciate that there may have been a question mark about the identification of the prisoner as the driver of the relevant motor vehicle or that his vehicle was the vehicle that came into collision with the victim. I point out again that the collision with the victim was not a deliberate act on the prisoner’s part, as such. But it was a direct consequence of the fact that he was in no state to drive a motor vehicle and he was, whilst he was behind the wheel of the car on this afternoon a danger to anybody else on the road nearby to him and it is a matter of good fortune that other people were not seriously injured or even killed in the course of his driving of the motor vehicle.
The Crown submitted that the victim was a vulnerable victim. I cannot accept that submission. I understand the point the Crown made about the fact the victim was on a motorbike and was thus was “quite vulnerable” to injury if he came into collision with a car being driven in a manner dangerous to the public. But it is quite clear when one has regard to s 21A(2) that when the legislation in subparagraph (l) talks of vulnerability it is talking about a characteristic of the victim that must have been known to the offender at the time of the commission of the offence and thus was in some way a contributing factor to the choice of the victim or the commission of a particular offence charged. The subparagraph talks about a vulnerable victim, for example, “because the victim was very young or very old or had a disability, or because of the victim’s occupation”, giving some examples such as a taxi driver, a bank teller or a service station attendant. It is self-evident to my mind that what the subsection is talking about is a vulnerability known to the person who commits the offence and provides a motive for the person to commit the particular offence with which that person is charged. That does not arise in this matter. It is either apparent, or self-evident, or clearly able to be found, that the prisoner, by his conduct of the motor vehicle, was oblivious to the motorcyclist, which does characterise the danger the prisoner’s driving created for the public at large.
With regard to mitigating factors arising under s 21A(3) I am prepared to accept that the offence was not part of planned or organised criminal activity. I could not obviously find the prisoner was a person of good character or is unlikely to reoffend or even has good prospects of rehabilitation. They are not even submitted as mitigating factors by his counsel. But the plea of guilty is a mitigating factor. I bear in mind of course the uncertainty as to the identification of the prisoner’s motor vehicle, but then again the intercepted telephone call between the prisoner and the prisoner’s mother reflected clear admissions by him of his offending.
I have determined that there are ‘special circumstances’, pursuant to s 44 of the Act. In my view the Community Corrections Service speaks to issues that need to be addressed over an extended period of time and the prisoner, who will be facing his most substantial sentence, will need professional assistance to adjust to community living. I bear in mind also that I have adjusted the non-parole period to reflect the two portions of partial accumulation. The first sentence I impose is a sentence of 18 months which will be partially accumulative upon the sentences imposed in the Local Court, and the second sentence I impose of 3 years imprisonment will be partially accumulative upon that 18 months sentence.
In assessing the appropriate sentence, however, for the principal offence, that is the most serious offence, the drive in a manner dangerous causing grievous bodily harm by impact, it is to be borne in mind that I am required to take into account the seven matters on the Form 1. Some of those offences would, if dealt with separately in the Local Court, attract terms of imprisonment.
In the guideline judgment in relation to Form 1 matters, Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147, it was held by the Court of Criminal Appeal that the fact that there matters to be taken into account on a Form 1 means that greater weight should be given to the need for personal deterrence and the community’s entitlement to extract retribution. The Court held that the “entire point of the process” is to impose a longer sentence or to alter the nature of the sentence that would have been imposed for the principal offence if it had stood alone. It was wrong to suggest that the additional penalty should be small, sometimes it will be substantial. But the sentencing process is only concerned with the principal offence, not to determine appropriate sentences for matters listed on a Form 1 or to determine an overall sentence that would be appropriate for all the offences and apply a discount, giving weight to the matters referred to above. The Court said that deterrence and retribution were entitled to be given greater weight than they otherwise might be given when sentencing for the primary offences.
However, there is a limit to what the court can do in relation to this matter, such as, for example, the maximum penalty for the principal offence and of course the principle of 'totality'. It should be understood that the principal offence, if being sentenced alone without the matters on the Form 1, would have attracted a sentence lower than the sentence I ultimately concluded is appropriate. The court held that it would be rarely appropriate for a sentencing judge to attempt to quantify the effect on the sentence for the principal offence from taking into account Form 1 matters, and I do not propose to do so. The matters on a Form 1 will have a significantly lower salience in the sentence process, for various reasons, but a judge must be careful to assess whether it is appropriate to proceed to sentence on the basis that there may be cases where the administration of justice could be brought into disrepute by a person being sentence for criminal conduct on a “manifestly inadequate, unduly narrow or artificial basis”.
Concluding the appropriate sentences to be imposed, as I said I have had regard to all the submissions that were put. As I understood it, it was conceded that the totality principle in relation to the two matters requiring the fixing of sentences would require some partial accumulation. The sentence to be imposed for the offence of failing to stop and assist after causing grievous bodily harm will be substantially less than the sentence for the principal offence, and the extent of partial accumulation will be, as I have indicated, for a period of six months. I do not propose to fix a non-parole period for the failing to stop offence because the balance of that sentence will be subsumed into the non-parole period for the driving in a manner dangerous cause grievous bodily harm offence.
In relation to the offence of failing to stop and render assistance, which is sequence 8 - this is a technical term for the benefit of the JusticeLink system - you are convicted. You are sentenced to a term of 18 months imprisonment. That will date from 12 May 2015 and expire on 11 November 2016. In relation to that offence you are disqualified from holding a motor vehicle driver’s licence for a period of two years from 12 January 2014.
In relation to sequence 6, that is the offence of driving in a manner dangerous by impact causing grievous bodily harm, taking into account the matters on the Form 1, you are convicted. You are sentenced to a term of imprisonment by way of a non-parole period of one year and four months. That will date from 12 November 2015 and on my calculation will expire on 11 March 2017. The balance of sentence I calculate to be one year and eight months. That will expire on 11 November 2018. In respect of that offence you are disqualified from holding a motor vehicle driver’s licence for a period of four years from 12 January 2014. The total sentence as I have calculated is three years and six months with a non-parole period of one year and ten months, but the non parole period has been adjusted down by two months to reflect the fact that the sentences I impose are partially accumulative upon the sentences that were imposed in the Local Court in September. Now you received a sentence of seven months in September. I have started the sentences I imposed four months into those sentences, so that partial accumulation is another matter I have had to take into account in fixing the non-parole period.
Mr Crown?
AMARANATH: Your Honour, there’s a backup charge of negligent driving causing grievous bodily harm, I make an application to withdraw that charge.
HIS HONOUR: Withdrawn and dismissed, Mr Crown. Is it on a s 166 certificate?
AMARANATH: That is correct.
HIS HONOUR: Have I got the certificate or not?
AMARANATH: Yes, it has been sent to the Court papers.
HIS HONOUR: Yes, but it wasn’t tendered by you last--
AMARANATH: No, it wasn’t tendered.
HIS HONOUR: It has to be tendered. The fact that it sits on the file means nothing unless it’s brought to the attention of the Court, but we will find the certificate. Do you know what sequence number it is?
AMARANATH: Yes, it’s sequence 9, your Honour.
HIS HONOUR: Sequence 9 right.
The sentences I have imposed are in relation to sequences 6 and 8. In relation to sequence 9 the charge is withdrawn and dismissed.
Is that right?
AMARANATH: Thank you.
HIS HONOUR: Anything else?
AMARANATH: No, your Honour.
HIS HONOUR: Anything else from you Mr Williams?
WILLIAMS: No, your Honour.
HIS HONOUR: Mr Beard, one thing you should understand, your release to parole will be a matter for the Parole Authority. The sentence I have imposed does not permit me to direct that you be released to parole. So when you get close to the end of your non-parole period it will be a matter for the Parole Authority as to whether you are released on the release date. You will no doubt have discussions with the Community Corrections Services before you are released.
OFFENDER: It’s not guaranteed.
HIS HONOUR: I beg your pardon?
OFFENDER: It’s not going to be guaranteed?
HIS HONOUR: It’s not guaranteed because it’s a matter for the Parole Authority. I don’t decide who is released to parole, that’s not my task, I just fix the sentence and then the Parole Authority makes its decision.
HIS HONOUR: Thank you Mr Williams. Thank you Mr Crown.
AMARANATH: Your Honour, just one matter. I attempted to take down the sentence as it was read out, but I wasn’t altogether sure whether I had taken it down correctly.
HIS HONOUR: Well in a moment I will sign the orders. If they’re correct I will ask my Associate to print out a copy for you. How is that?
AMARANATH: Thank you.
HIS HONOUR: And give Mr Williams a copy too?
WILLIAMS: Thank you, your Honour.
HIS HONOUR: I will just double check the orders. That looks spot on. I will just have my Associate print them out and you will have them all typed up. The matters on the Form 1 have been taken into account in relation to the principal offence, which is the drive in a manner dangerous cause grievous bodily harm offence, which is obviously the most serious offence. So you have it Mr Crown and you have it Mr Wiliams, the detail of which will be entered up in JusticeLink.
ADJOURNED
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