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

1. 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.

2. 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.

3. 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 a number of injuries associated with air being forced from the lung and leaking into other parts of his body. He had other serious fractures, multiple bruises and wounds that required suturing. He is lucky to be alive.

4. The dashcam footage tendered shows how dangerous the offender’s driving was. It was exacerbated by him being heavily intoxicated with alcohol, paying no attention to the road he was driving on, the time of day at which the offence occurred and the erratic nature of his driving immediately prior to the collision, which was noted by others.

5. He further exacerbated his criminal behaviour by fleeing the scene. Although it is a matter mentioned in the Whyte guideline judgment this is a separate offence for sentence: R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343. I treat that offence separately and do not double count it.

6. When spoken to by police, Forster said:

“I aint going to lie bro, I panicked and I ran. If I knew someone was involved, I would’ve never have run. I would’ve straight to see if they were all right … that’s the straight truth. I legged it because I was fucking pissed.”

7. While there was some truth in that statement, there was also a clearly false one, because the nature of the collision was such that any thinking person would have known that the risk of someone being hurt was very high. But of course, because he was well-intoxicated with alcohol Forster was not thinking straight, as he now appears to recognise.

8. Given the serious nature of the injuries and the multiple dangerous aspects to his driving, this was a particularly serious example of this type of offence.

The charges

9. The offender was charged with an indictable offence and two related summary matters that come before the Court on Criminal Procedure Act 1986 (NSW) s 166 certificate:

1. Dangerous Driving Occasioning Grievous Bodily Harm: Crimes Act 1900 (NSW), s 52A (3)(c).

2. Drive with a mid-range prescribed concentration of alcohol: s 110(4)(A) Road Transport Act (2013), maximum penalty 9 months imprisonment.

3. Fail to stop and assist: Crimes Act 1900, s 52A(B)(2), maximum penalty 7 years imprisonment but if dealt with on s 166 Certificate – 2 years.

Maximum penalty

10. Dangerous Driving Occasioning Grievous Bodily Harm carries a maximum penalty of 7 years’ imprisonment. That maximum is one important guide to the exercise of my sentencing discretion.

11. I must have regard to that guideline: Crimes (Sentencing Procedure) Act 1999 (NSW), 42A; R v Whyte. Courts must apply a sentencing principle consistently. To that end, both Mr Hibbard, who appears for the offender, and Mr McGonigal, solicitor for the Director of Public Prosecutions, have provided written submissions which set out the relevant principles that I must apply. There is no significant difference between them. I will seek to address what is set out in those submissions in this judgment.

Objective seriousness

12. The Whyte guideline speaks of a typical case. As I indicated in discussion, there are some aspects of this matter that exceed the typical case when I look at its objective factors only. And, where intoxication is involved in any driving offence there is a particular need for sentences to adequately reflect the sentencing principle of general deterrence.

13. It has to be understood and repeated time and time again that a driver’s licence is a privilege and that that privilege carries with it responsibilities to other road users. The use of alcohol significantly increases the risk to other drivers and others on the roads.

14. There were matters that aggravate the dangerous driving offence that are iterations or variations of the same offence, but which do not render the offender liable for a greater penalty: R v Douglas (1998) 29 MVR 316. That there are multiple objective factors here increases the seriousness of the offence.

15. Forster fled the scene. A driver who fails to stop and render assistance after an accident also commits a serious offence. Although this matter came to the Court on a 166 Criminal Procedure Act certificate with a statutory cap on sentence of 2 years imprisonment, it is still regarded as a serious. Although clearly it could not be as serious as the substantive offence.

16. It is possible to conceive of a situation where even more serious injury or death might result because someone fled and did not render assistance. Here, given the time and place where this incident occurred, other citizens did their duty and rendered assistance immediately, preventing perhaps further harm: Hoskins v R [2020] NSWCCA 18 at [14]-[15]. It is still a matter that calls for a custodial sentence, as does the related offence involving drinking and driving.

Deterrence

17. Each of these matters call for what the law describes as deterrent sentences. I sometimes express concern about the deterrent value of maximum penalties in cases where someone has behaved with no respect for themselves or other road users. One would think that the most important deterrent for any thinking person is that they would seriously injure themselves or die or kill or seriously injure another citizen. That should be a sufficient deterrent. And yet time and time again courts have to sentence people who have seriously injured others on the road, put other road users at risk, and put themselves at serious risk.

18. The offender was not thinking because he was intoxicated. He was not thinking about himself, and he was not thinking of the consequences of his actions. His alcohol use cannot and does not mitigate. At best, it can help me understand why he committed these offences and what can be done to prevent reoccurrence in the future.

Other matters

19. Forster does not come to the Court with a clean record. He is not deserving of the leniency often given to first offenders.

20. He was on parole at the time. His release to parole was subject to him making a firm promise that he would not break the law, and he failed that first test.

Subjective case

21. While the fact he breached parole is an aggravating factor, the material in the reports before me indicate that, given his past history, he had been doing very well on parole. He is now 34 (33 at the time). He had left gaol promising to do better. He had done better. He had a job. He had family. He had responsibilities. He had dealt with a long-term gambling problem, and he had, apparently, dealt with long-term drug and alcohol problems that had blighted his life since he was too young to make rational choices.

22. He drank this day, he said, because he was triggered by a song that reminded him of the funeral of a close friend who had died sometime earlier. He has no other idea why he started drinking. Again, I note alcohol use does not excuse his behaviour.

23. I have a report from Dr Brann, prepared before this matter for civil proceedings. It notes a history of alcohol related blackouts (at [20]) and sets out in detail the sexual abuse he suffered and the impact on him. I am prepared to accept that given he was similarly alcohol affected, and now has no real recall of what he was doing that day prior to the collision, he had a “blackout” and was, as a consequence of his drinking, not thinking or behaving rationally.

24. In his letter to the Court, Forster sought as best he could to apologise to his victims, his family, and the community, for his actions. He does not make excuses and he has hopes that the victim will make a “full recovery”. He “would like to make it up … in any way possible” but sadly, given the nature of the injuries, nothing he says could assuage the hurt the victim has felt. I suspect, given the nature of the injuries, he will feel harm at various times in his life. The bones and the initial wounds may heal, but there may be long-term consequences from those injuries.

25. The reports before the Court indicate a background of neglect, childhood trauma, exposure to domestic violence and alcohol. There is evidence before the Court that he was sexually abused both by family friends and when in care. His schooling was disrupted. There is evidence he suffered a traumatic brain injury in a motor vehicle accident in 2014.

26. Mr Bembrick’s report of 30 August 2023, blandly speaks of his “childhood spent in sub-optimal conditions” which he linked to substance abuse, depression, and criminal behaviour: at [16]. He has, however, while on parole, completed Illawarra Drug and Alcohol program, and started the process of reintegration into the community.

27. Clearly, Forster’s moral culpability is not the same as that of a person who did not have such a background. He is entitled to such leniency as the Court can extend to him. His progress towards rehabilitation while on parole on the last occasion can be recognised. I will make another attempt, by the structure of the sentence, to allow for longer time on parole so that the progress, that was started on the last occasion, be continued. While he is at risk of re-offending, given his background, his growing maturity must be recognised.

28. He is a concrete thinker, but he suffers from anxiety while in custody. Given his background, this is entirely understandable.

29. The reports speak of multiple early vulnerabilities; Oppositional Defiance Disorder, Post-Traumatic Stress Disorder, Substance Use Disorder, and a Major Depressive Disorder. His psychological prognosis is poor, and he will be more vulnerable than most to the ordinary pressures and demands of life in the community. But he has prospects, and he has support.

Synthesis

30. How then to balance all those matters. There are three matters for sentence. There should be a high level of concurrency because each are interrelated and the 166 certificate matters, the driving while intoxicated before the collision and the failing to stop afterward, have given context to the substantive matter. Elements or factors in common must not be double punished.

31. Each of the indicated sentences reflect a 25% reduction for the utilitarian value of the plea of guilty. The plea had other values, as an indication of remorse which I accept is genuinely felt. I have sought in the accumulation not to undermine the benefit of that discount.

32. An aggravating feature was the commission of the offence on parole. I chose not to risk double-counting because I have already taken that into account in assessing the sentences indicated, because of his progress whilst on parole and as the offending was the reason for the breach. He therefore gets the additional benefit of this sentence being partly concurrent with the breach of parole, by approximately a month and a half.

33. There must be a period in custody both to punish him and to recognise the harm that he did to the victim. At the same time, he must be released into the community. His prospects for the future really depend upon him having a goal to work towards while he is in custody. The length of the sentence should not destroy his hopes for life on release.

34. Forster will, on release, not be able to drive for a period of 2 years. That will impede his prospects for getting a job, but he has demonstrated by his actions that he should be removed from the road for that period of time. I do not undervalue the loss of a licence to a person as it will impede his chances of obtaining employment, and employment is one of the critical factors that helped him on the last occasion. But I have to return to how he drove, where he drove, and the harm that he did.

Orders

35. In relation to each matter, you are convicted. I indicate the following sentences:

• In relation to Sequence 5, the dangerous driving offence: I indicate a sentence of 3 years’ imprisonment. There will be a licence disqualification of 2 years.

• In relation to Sequence 1, the drink driving matter: There will be a sentence of imprisonment of 4 months. There will be a driver’s licence disqualification of 12 months. Note: Pursuant to s 43 Crimes (Sentencing Procedure) Act, the initial disqualification order was amended, and a mandatory interlock order of 24 months was imposed by a consent Chambers Order on 10 May 2024.

• In relation to Sequence 6, the fail to stop: There will be a sentence of 1 year and 1 month. Note: Pursuant to s 43 Crimes (Sentencing Procedure) Act a subsequent order was made imposing the mandatory minimum driving licence disqualification of 12 months by a Chambers Order on 7 June 2024.

36. There will be an aggregate sentence in this matter of 3 years and 9 months. The non-parole period is 2 years and 3 months. It will commence on 20 April 2023, the date he went into custody. Forster will be eligible for parole on 19 July 2025. There will be a parole period of 1 year and 6 months from 20 July 2025 to 19 January 2027.

37. There is no automatic right to release to parole. He will have to come before the Parole Board. But I don’t expect that there be any problem with his release to parole.

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Decision last updated: 07 June 2024