R v Forster - [2024] NSWDC 212

District Court

New South Wales

Medium Neutral Citation: R v Forster [2024] NSWDC 212
Hearing dates: 22 April 2024
Date of orders: 22 April 2024
Decision date: 22 April 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate imprisonment sentence of 3 years and 9 months with a non-parole period of 2 years and 3 months

Catchwords:
CRIME — Driving offences — Dangerous driving occasioning grievous bodily harm— Failure to stop and assist — Drive mid-range PCA
SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions
SENTENCING — Guidelines for sentencing — Role of guidelines
SENTENCING — Mitigating factors — Plea of guilty — Remorse
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Objective seriousness
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Drug and alcohol addiction — Mental disorders — Childhood sexual abuse — Deprived childhood — Special circumstances

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Road Transport Act 2013 (NSW)

Cases Cited:
Hoskins v R [2020] NSWCCA 18
R v Douglas (1998) 29 MVR 316
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252

Category: Sentence
Parties: Brett Warren Forster (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
J Hibbard (for the offender)
Solicitors:
L McGonigal for the Director of Public Prosecutions (NSW) (Crown)
Legal Aid (NSW) (for the offender)

File Number(s): 2023/128063

JUDGMENT – ex tempore revised

Introduction

On 20 April 2023 at about 5 o’clock, a man left work at the BlueScope Steel facility in southern Wollongong. He was driving his utility vehicle. He entered Springhill Road with a green light. Traffic had stopped to allow the exit from the facility of vehicles. Heading south was a van driven by Brett Forster, the offender now before the Court. That van did not stop. It did not slow. It went straight through the intersection, colliding heavily with the utility driven by the victim. Such was the extent of the collision that, due to a faulty seatbelt, the victim was thrown through the driver’s side window. He ended up unconscious on the roadway.
Such was its speed, the van continued for some distance, before running off the road. Forster did not return to render assistance. He fled the scene and called someone to help him. He was arrested soon after, following a police search. When his blood alcohol was tested and analysed, he returned a reading of 0.144 grams of alcohol in 2.1 litres of breath. A bottle of alcohol was found in Forster’s vehicle.
The victim was airlifted to St George Hospital. His injuries are set out in the Agreed Facts and a report of Dr Langcake. He suffered, what is described as a “flail chest”, that is, a number of ribs were fractured with multiple fractures per rib. A portion of his chest wall was destabilised. He had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Forster

Details

AGLC: R v Forster [2024] NSWDC 212
Case: [2024] NSWDC 212
Decision Date: 22 April 2024

CaseChat Overview and Summary

In the matter of R v Forster, the defendant was charged with dangerous driving occasioning grievous bodily harm, failure to stop and assist, and driving a mid-range PCA. The case was heard in a relevant Australian court where the defendant had pleaded guilty to the charges. The defendant was involved in a collision that resulted in significant harm to another individual, leading to the charges being brought against him. The court was tasked with determining the appropriate sentence for the defendant, taking into account the aggravating and mitigating factors present in the case.

The legal issues the court needed to address included the appropriate weight to give to various aggravating factors, such as the defendant's breach of conditional liberty and prior convictions, and mitigating factors like the defendant's plea of guilty and expressions of remorse. Additionally, the court had to consider the role of sentencing guidelines in determining an appropriate sentence, as well as the need for general deterrence in this type of case. The court also needed to assess the relevance of the defendant's personal circumstances, including his drug and alcohol addiction, mental disorders, and history of childhood sexual abuse, in the sentencing process.

In delivering its judgment, the court began by emphasising the importance of general deterrence in cases involving dangerous driving. The court acknowledged the defendant's guilty plea and expressions of remorse as mitigating factors, but found that these were outweighed by the aggravating factors present. The court also considered the defendant's personal circumstances, but concluded that these did not warrant a significant reduction in the sentence. Ultimately, the court determined that an aggregate imprisonment sentence of 3 years and 9 months, with a non-parole period of 2 years and 3 months, was appropriate in this case. The court's decision was based on an instinctive synthesis of all the relevant factors, taking into account both the objective seriousness of the offence and the subjective considerations pertaining to the defendant.

The court's final orders were that the defendant be sentenced to an aggregate imprisonment term of 3 years and 9 months, with a non-parole period of 2 years and 3 months. This sentence reflects the court's consideration of all relevant aggravating and mitigating factors, as well as the need for general deterrence in cases involving dangerous driving.

Orders

Orders of the court

Aggregate imprisonment sentence of 3 years and 9 months with a non-parole period of 2 years and 3 months

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Forster [2024] NSWDC 212
Hearing dates:	22 April 2024
Date of orders:	22 April 2024
Decision date:	22 April 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate imprisonment sentence of 3 years and 9 months with a non-parole period of 2 years and 3 months
Catchwords:	CRIME — Driving offences — Dangerous driving occasioning grievous bodily harm— Failure to stop and assist — Drive mid-range PCA SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Drug and alcohol addiction — Mental disorders — Childhood sexual abuse — Deprived childhood — Special circumstances
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Road Transport Act 2013 (NSW)
Cases Cited:	Hoskins v R [2020] NSWCCA 18 R v Douglas (1998) 29 MVR 316 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
Category:	Sentence
Parties:	Brett Warren Forster (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: J Hibbard (for the offender) Solicitors: L McGonigal for the Director of Public Prosecutions (NSW) (Crown) Legal Aid (NSW) (for the offender)
File Number(s):	2023/128063