R v Charters

[2008] NSWDC 258

CITATION:	R v CHARTERS [2008] NSWDC 258
HEARING DATE(S):	3 July 2008
JUDGMENT DATE:	15 August 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Effective sentence of two and a half years with a non parole period of 18 months.
CATCHWORDS:	Criminal law - sentence - dangerous driving occasioning grievous bodily harm - driving whilst under the influence of ecstasy - significant injuries
CASES CITED:	R v Jurisic (1998) 45 NSWLR 209 R v Whyte (2002) 55 NSWLR 252
PARTIES:	The Crown Chad Charters
FILE NUMBER(S):	08/11/0215
SOLICITORS:	NSW DPP Watkins Tapsell Solicitors

SENTENCE

1 HIS HONOUR: On the 2 March 2007 the offender went out to celebrate a friend’s 21st birthday party. He says that he remembers drinking some alcohol and having a single ecstasy tablet. The following evening he was driving his car along Alfords Point Road at Menai. With him were two of his friends, Matthew Darwin and Christopher Jones. The offender was still under the influence of ecstasy. His driving was impaired to the extent that he could not perform the relatively simply task of negotiating a slight left hand bend. He drove onto the incorrect side of the road, forcing an oncoming vehicle to swerve out of the way. He continued to travel on the wrong side of the road, crossing into what was, for vehicles travelling the other way to him, the kerb side lane. Eventually the inevitable happened. There was a head on collision between the car that he was driving and the car driven by Mrs Patricia Hamilton. The forces generated by that collision must have been enormous. It is amazing, having seen photographs of the cars after the collision, that no one was killed. Mr Hamilton suffered very significant injuries. Mr Darwin and Mr Jones, the offender’s friends, also suffered grievous bodily harm.

2 The offender pleaded guilty at an early stage to three counts of dangerous driving occasioning grievous bodily harm. He admits that he was driving under the influence of ecstasy.

3 The offender’s decision to drive, whilst under the influence of that drug, was described in some of the references, tendered on his behalf, as a mistake. It was much more than that. It was a decision to commit a serious crime with terrible consequences for which the offender must now be punished.

4 He was born on 7 February 1986. His parents separated when he was two and he has had very limited contact with his father since then. His mother remarried when he was sixteen, which caused a rift in his relationship with her, but following her separation from her new husband and her becoming ill, the relationship improved. He currently lives with a friend and his friend’s family. He was a gifted student at high school, obtaining a scholarship to attend a private school. He was apparently a gifted singer as well. Upon leaving school he took up a carpentry apprenticeship and is now doing building studies at TAFE. He is performing very well in his studies. He has been employed at Southern Cross Constructions for the last four years and his employer speaks very highly of him.

5 I am satisfied that the offender is a young man with much to contribute to society and that he is generally, a person of good character. One qualification to that finding concerns his drug use. He began using cannabis while still at school and later started using it on a daily basis. He also used alcohol and started using cocaine and ecstasy. His use of these drugs appears to have been regular and for him, commonplace. Thus, while these offences for which I am to sentence the offender, are the first to appear on his criminal history, he has been regularly breaking the law by his voluntary consumption of illegal drugs. It was one particular aspect of this illegal behaviour which led to him causing significant injuries to three innocent people.

6 After the motor vehicle accident, Mrs Hamilton suffered severe injuries. They were fractured left ribs, a left pneumothorax, fractured left ulna, fractured left clavicle, fractured distal left femur, a rupture of the left patella tendon, subarachnoid haemorrhage, splenic contusion, soft tissue trauma to the left breast and facial scars. She was in hospital and then a rehabilitation unit for over two months. She must now use a crutch. Before the collision Mrs Hamilton led a full and active life, which was often envied by many. She enjoyed her work, was fit and happy. She regularly bushwalked and kayaked and these activities would often take her overseas with friends. Since the collision, her friends have travelled to Kakadu and Italy, but she was not able to accompany them on these trips. She can paddle her kayak, for short distances only, with the aid of friends, but is unable to bushwalk at all. Her mother died whilst she was in hospital being treated for her injuries and she is greatly saddened because she was not able to be with her mother in her final days. Mrs Hamilton now feels old and has lost her independence. She requires assistance with many simple tasks, including shopping, gardening and housekeeping. Though she is hopeful of returning to work, that prospect is becoming more remote. She is in constant pain in her knee, ankle and more recently her left arm. Mrs Hamilton is unable to exercise and thus her weight is increasing with associated health problems. She is of the belief that she faces at least a further four operations and is currently seeing a psychologist.

7 Christopher Jones underwent surgery as a result of suffering various fractures. He also suffered a laceration to his right forehead, broken teeth, lacerations to his chin, multiple lacerations to his right upper leg and foot, lacerations to his left leg, lacerations to his right calf and a four-centimetre laceration to his right lumbar region. Mr Jones has received several apologies from the offender and appears to have accepted those apologies, having supplied a written testimonial.

8 Matthew Darwin suffered various fractures, a large bowel tear with three mesentric tears, a lacerated bowel artery, an avulsed appendix and bruising to the left lung. He still has some weakness associated with the repair to his abdominal wall and may require further surgery.

9 Evidence was given by the offender that he had apologised to his friends and that they had apparently accepted that apology. The Crown Prosecutor specifically told me that Mrs Hamilton did not wish the offender to be sent to full time custody. At the time I indicated, with the greatest of respect to Mrs Hamilton, that her views, whilst admirable, were irrelevant to the task I had to perform. I will explain why. Many victims of criminal behaviour, particularly where that criminal behaviour has led to life long consequences for those victims, want to see the offender punished in the severest possible way. Judges must ignore such desires for revenge and retribution. Equally, where victims of offences are able to forgive an offender, those wishes too must also be ignored. When sentencing an offender, the Court has to take into account the protection of other potential victims, not only those people who might have forgiven the offender. For that reason, general deterrence is an important aspect of most sentences. It is a credit to Mrs Hamilton that despite having her life changed in an instant by the offender’s wrongdoing, she expressed the view that she did. I trust she will understand and not be offended when I say that I am unable to do what she asks.

10 The decision of the Court of Criminal Appeal in R v Jurisic (1998) 45 NSWLR 209 is clearly important because it is a guideline judgment to which I must necessarily refer, of course, as reconsidered in a later decision of R v Whyte(2002) 55 NSWLR 252 . In fact Jurisic was the first guideline judgment issued by the New South Wales Court of Criminal Appeal. It came after a relatively constant stream of successful Crown appeals against the leniency of sentences imposed for offences of dangerous driving causing either death or grievous bodily harm. The decision in Jurisic is relevant for another reason as well. There is a close similarity between the circumstances of that case and the circumstances of the present case. The offender in Jurisic was also affected by a drug, in his case cocaine, when he crossed to the wrong side of the road and collided head on with a car coming the other way. Jurisic also involved three offences of dangerous driving under the influence of a drug occasioning grievous bodily harm. Perhaps the most important point of distinction however, was that he, unlike this offender, had a significant history of traffic offences. He was also older. In Jurisic the Crown appeal against the leniency of the sentence imposed upon him was allowed. The sentence was quashed and he was sentenced to imprisonment for two years with a minimum period of one year. Justice Sully held that a much longer sentence would not have been appealably severe, although that view was not shared by other members of the Bench who addressed that particular issue.

11 I mention the facts in Jurisic because of their similarity with the present. On occasions, the Court of Criminal Appeal has suggested that sentences in other particular cases are not particularly useful in deciding the appropriate sentence to impose on a particular offender because of differences between the two cases. But here, where there is a close similarity in the objective facts and where Jurisic was the case which first introduced guideline sentences to New South Wales, I have paid particular attention to the sentence ultimately imposed by the Court of Criminal Appeal. Of course, that is not to say that a single case sets a benchmark. There are differences between Jurisic and the present circumstances and it must be remembered that the sentence imposed by the Court of Criminal Appeal followed a successful Crown appeal, such sentences ordinarily being lower than what the court considers should have been imposed at the first instance.

12 The present case falls closely within what the Court identified in Whyte as being a frequently occurring case. The submissions made on behalf of the offender accepted that that was the position, however, there is one matter where there is a difference between the frequently recurring case and the present and that is a matter which works in the offender’s favour. It should have been identified in the submissions made on behalf of the offender but was not. The frequently recurring case, as identified by the Court of Criminal Appeal, involved a plea of guilty of limited utilitarian value. In this case, the three pleas of guilty were entered before the magistrate. That is a matter which works in the offender’s favour when the guideline judgment is considered. The guideline judgment says that a custodial sentence would usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement. This is not a case where the moral culpability of the offender is low by any means. It is a serious decision to get behind the wheel of a car when the person’s ability to drive is impaired by either alcohol or drugs. By so doing the offender accepted a risk that because of his inability to control his car properly, he would cause serious injury or even death to other innocent road users. It is the decision to take that risk which shows a high level of moral culpability. It must also be remember that drug taking is itself a criminal offence, so what led to three serious criminal offences was the offender’s earlier criminal conduct.

13 It is to be noted that the number of people put at risk by the offender’s driving were not only those who ended up being seriously hurt. Another car had to swerve out of the way once the offender started driving on the wrong side of the road and he had travelled eight kilometres, intending to travel further of course, on a Saturday evening.

14 The level of MDMA found in the offender’s blood was well above usual blood levels following typical street doses. Dr Perl’s statement was tendered. She said that at such high concentrations there are changes in perceptions, blurred vision, ataxia, unsteadiness, anxiety, and muscle tension in addition to cardio vascular changes. Hallucinations are also much more likely to occur.

15 I have found that the offender’s moral culpability is high. In such a case the guideline in Whyte says that a full time custodial sentence of less than two years would not generally be appropriate. That is for a single offence. Questions of accumulation have also to be considered. The solicitor for the offender conceded that there needed to be a level of accumulation in the sentences to be imposed. That concession is appropriate.

16 I have no doubt that the offender is remorseful, but that is usually the case for offences of this type. It is a rare offence of dangerous driving occasioning either death or grievous bodily harm, where the offender does not feel sorry and even ashamed of his or her conduct. Once confronted with the devastating consequences of their criminal actions, most offenders wish that they could turn the clock back. So although the offender is, of course, entitled to the benefit of my finding that he is remorseful, that is a finding almost universally made in cases of this type, a fact which must be borne in mind when formulating the appropriate sentence in the light of sentences imposed in other similar cases.

17 The offender has good prospects of rehabilitation and I am satisfied he is unlikely to offend again in this way. It was suggested in the submissions made on behalf of the offender, that it was a mitigating feature that he was not fully aware of the consequences of his or her actions. In this regard, reliance was placed on the fact that the offender was under the influence of alcohol and drugs. It cannot be a mitigating feature of an offence of dangerous driving whilst under the influence of a drug, that the offender was under the influence of a drug.

18 There are clearly special circumstances in this case. The offender is a young man who will be serving his first custodial sentence. The written submissions on behalf of the offender suggested an appropriate sentence of two and a half to three years imprisonment with a non-parole period of two to two and a half years, to be served by way of periodic detention. Having reviewed this matter carefully, I am satisfied that the overall sentence suggested by the solicitor for the offender was, surprisingly, longer than appropriate. I am also satisfied that the sentence should be served by way of full time imprisonment, rather than periodic detention. A sentence of periodic detention of any length, is one which would be insufficient to reflect the objective gravity of the offender’s conduct and the effects of that criminal conduct on the three victims of it. A sentence of periodic detention is, in my way, a lenient one, especially as it remains the case that after serving one-third of the sentence, there is no overnight component to the offender’s custody and the sentence becomes more like a community service order. A sentence of periodic detention of any length would be insufficient to effectively deter others who might be tempted to drive whilst under the influence of drugs. The safety of our roads is of concern to all of us and the courts must take whatever steps they can to promote the idea that innocent road users are able to travel along public roads without the risk that they will be faced with a vehicle coming directly towards them as a result of an offender’s decision to drive whilst his or her ability to drive is seriously impaired.

19 After reducing the sentences I would otherwise have imposed upon the offender by approximately twenty-five per cent to reflect his pleas of guilty, the sentences I impose are as follows:

20 For the offences to which the offender pleaded guilty relating to Mr Darwin and Mr Jones, the offender is sentenced to imprisonment. I set a non-parole period of one year and a head sentence of two years to have commenced on the day the offender went into custody, July 3 2008. For the offence involving Mrs Hamilton, the offender is sentenced to imprisonment. I set a non-parole period of one year with a head sentence of two years to commence on 3 January 2009. Thus, the effective sentence will be a non-parole period of eighteen months with a head sentence of two and a half years. The offender is to be released to parole on 2 January 2010. Any other orders required?

21 BUTT: Your Honour, there are a number of matters on the 166 Certificate. My instructions are that they be dismissed as back up charges, I believe there are five charges.

22 HIS HONOUR: I will dismiss the back up charges on the 166 Certificate.

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