R v Hutchison

[2019] NSWDC 683

District Court

New South Wales

Medium Neutral Citation:	R v Hutchison [2019] NSWDC 683
Hearing dates:	6 June 2019
Date of orders:	26 July 2019
Decision date:	26 July 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [93]
Catchwords:	CRIME – sentence – multiple charges arising from the driving of a motor vehicle
Legislation Cited:	Crimes Act 1900 ss 52A; 52AB; 53; 58; 195 Crimes (Sentencing Procedure) Act 1999 s 3A Motor Accidents Compensation Act 1999 s 8 Road Transport Act 2013 ss 54; 68; 110; 117 Road Transport (Driver Licensing) Regulation 2017 s 119 Victims Rights and Support Act 2013
Cases Cited:	R v Whyte (2002) 55 NSWLR 252
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Neil Hutchison (Offender)
Representation:	Counsel: Mr J O’Sullivan (Offender)   Solicitors: ODPP (Crown) Ryan Seton Lawyers (Offender)
File Number(s):	2018/00095974
Publication restriction:	None

Judgment

1. In the matter of Neil Hutchinson, the Offender appears before the court today for sentencing in relation to a number of very serious charges. He is now 52 years of age and is a retired dentist. According to the testimonials I have seen, prior to his retirement he was a contributing member to society and the community. Unfortunately, that has now changed with this offending and other offending which seems largely driven by the consumption of alcohol.

2. There are a number of charges for which the Offender is to be sentenced, including H number ending 845 sequence 3, being cause bodily harm by misconduct in breach of s53 of the Crimes Act. That offence carries a maximum penalty of two years imprisonment with a minimum disqualification period of two years and an automatic disqualification period of five years.

3. The second charge to which the Offender has pleaded guilty is aggravated dangerous driving occasioning grievous bodily harm in breach of s52A(4) of the Crimes Act. That offence carries a maximum penalty of 11 years with a minimum disqualification period of two years and an automatic disqualification period of five years.

4. The third charge to which the Offender has pleaded guilty is the same charge of aggravated dangerous driving occasioning grievous bodily harm for which the same maximum penalty applies. That is sequence 12.

5. He is also to be sentenced having pleaded guilty to sequence 15, being a charge of destroy/damage property in breach of s195(1)(a) of the Crimes Act. That carries a maximum penalty of two years imprisonment.

6. The offence which is sequence 11, being the first charge of dangerous driving occasioning grievous bodily harm, has a Form 1 attaching. That offence is sequence 9, being fail to stop and offer assistance after a vehicle impacts a grievous bodily harm, in breach of s52AB(2) of the Crimes Act. That offence on the Form 1 carries a maximum penalty of seven years imprisonment with a minimum disqualification period of twelve months and an automatic disqualification of three years. I take the Form 1 into account in sentencing the Offender in relation to the charge to which it attaches, mindful of the need for deterrence and also the community’s expectation to extract retribution for that offending. It has the effect of increasing the sentence for the charge to which it attaches.

7. There are four backup charges which are withdrawn and dismissed. All of them carry the same H charge number ending 845. The first is sequence 1, being a charge of dangerous driving occasioning grievous bodily harm in breach of s52A(3)(a) of the Crimes Act. That charge is withdrawn and dismissed.

8. The second is sequence 2, being a charge of negligent driving occasioning grievous bodily harm in breach of s117(1)(b) of the Road Transport Act. That charge is withdrawn and dismissed.

9. The third is sequence 4, being a charge of cause bodily harm by misconduct, in breach of s53 of the Crimes Act. That charge is withdrawn and dismissed.

10. The fourth is sequence 14, being a charge of drive with a high range PCA, in breach of s110(5)(a) of the Road Transport Act. That charge is withdrawn and dismissed.

11. The offence carrying sequence 14, being a breach of s119(1) of the Road Transport (Driver Licensing) Regulation, is also withdrawn and dismissed.

12. There are three further charges on a s166 certificate for which the Offender is to be sentenced. They are:

1. sequence 5, being drive whilst disqualified in breach of s54(1)(a) of the Road Transport Act. That offence carries a maximum penalty of six months imprisonment and/or a fine of 30 penalty units, with a minimum disqualification period of three months and a maximum of six months;

2. sequence 6, being use an unregistered motor vehicle in breach of s68(1) of the Road Transport Act. That offence carries a maximum penalty of a fine of 20 penalty units; and

3. sequence 8, being use an uninsured motor vehicle in breach of s8(1)(a) of the Motor Accidents Compensation Act and that offence carries a maximum penalty of 50 penalty units.

13. At the time of this offending, the Offender was subject to a number of bonds which are to be called up today. The first bond relates to charge number ending 552, sequence 1, being drive with a high range PCA, first offence, in breach of s110(5)(a) of the Road Transport Act. On 19 April 2017, the Offender was sentenced to a s10 bond for a period of two years by the Wyong Local Court. On 27 October 2017, that bond was called up in the Gosford Local Court, where the Offender was sentenced to a s9 bond for a period of 18 months, his license disqualified for six months and an interlock program was ordered for 24 months.

14. Also on that date the Offender was sentenced for two offences. They were both relating to charge ending 311. The first offence was sequence 1, being resist an officer in the execution of duty in breach of s58 of the Crimes Act. For that offence he was sentenced in the Local Court to a s9 bond for 12 months. Sequence 2 of the same charge number was a charge of drive with a high range PCA, namely 0.275, second offence, in breach of s110(5)(a) of the Road Transport Act. For that offence the Offender was sentenced to a s12 bond for a period of eight months and his license was disqualified for nine months with an interlock program ordered for four years.

15. The primary charges for which the Offender is to be sentenced relate to events that occurred on 26 March 2018. The next day, that is 27 March 2018, the Offender was arrested and charged and has been bail refused since that date. The sentence to be imposed today, therefore, will commence from the date of first incarceration, namely 27 March 2018.

16. The following facts are agreed between the parties and form the factual basis upon which the Offender is to be sentenced. On 26 March 2018, the Offender was driving a silver Mitsubishi Nimbus registration number ending in 231. The car was unregistered and uninsured, having had its registration cancelled in November 2017. At the time, the Offender was disqualified from driving until 27 October 2022. On that same date at around 5.30pm, the Offender drove his car to the top level of Westfield at Tuggerah. He parked his car parallel to an air conditioning vent, not within a designated parking spot. CCTV vision showed the Offender entering the shopping centre and going to Liquorland to purchase alcohol.

17. At this time, two cars were parked close-by to the Offender’s car. In one of the cars, Molly and Lily Alexander were placing groceries into the back of their mother’s Holden Astra. Parallel to their car was a grey Mazda 3 station wagon, where Jodie Conlon was comforting her 18 month old son before attempting to take him out of the car-seat. Parallel to the Mazda 3 was a grey Toyota Hilux which was unattended.

18. At approximately 5.40pm the Offender returned to his car and got into the driver’s seat. He attempted to drive forward out of the car park, however, the vehicle travelled in reverse at speed, colliding heavily with the rear of the Holden Astra. Both Molly and Lily were hit heavily by the car suffering injuries to which I will refer in a moment.

19. The force of the impact caused the Holden Astra to be pushed into the Mazda 3, trapping Ms Conlon between the two vehicles. Her young son remained in the vehicle and fortunately was not injured. The force of the impact caused the Mazda 3 to be pushed into the unoccupied Toyota Hilux.

20. The Offender continued to drive at speed, colliding with a parked silver Ford Focus. The impact of this collision caused the Ford Focus to be pushed into a black Subaru Forrester which subsequently was pushed into a blue Suzuki Ignus. Luckily all three vehicles were unattended at the time, but a total of six cars were damaged as a result of this driving. A number of passers-by witnessed the crash and attended to the victims and the Offender for their injuries.

21. Police arrived at approximately 5.50pm and were approached by a witness who pointed them to the Offender, who had told witnesses that he wanted to leave the scene. Police found the Offender in the driver’s seat of his car with a laceration on his head. The roadside breath test returned a reading of 0.278. Due to the laceration the Offender was escorted by police to Wyong Hospital. Whilst at the hospital a further alcohol test occurred providing a reading of 0.175.

22. On 27 March 2018 the Offender was arrested at Wyong Hospital and taken to Wyong Police Station. Among other comments, the Offender said that he had had on the previous day, a standard glass of shiraz around midday when he was making a casserole for dinner and he denied consuming any other alcohol prior to driving. That was plainly a lie.

23. The Offender said that he put the vehicle into drive but it had gone into reverse. He additionally thought that his shoelace had got caught in the pedals. I note that in the course of giving evidence in this Court, the Offender made some concessions which contradicted his representations first made to the police which were plainly directed towards minimising his offending.

24. Returning to the agreed facts, the Offender accepted that his car was not registered. He said he drove the car because the distance was not far and that he had been driving the car for two or three times a week since it had become unregistered.

25. On 13 April 2018, the Offender’s vehicle was assessed by a police expert in the engineering investigation section. The expert came to the opinion that prior to the impact damage being sustained there were no mechanical defects or faults on the vehicle which may have been a contributing factor to the collision. Additionally, Exhibit E, namely a statement by Senior Constable Simon Smith with photographs attaching of the various motor vehicles that were damaged, demonstrate the extent of the damage suffered by those motor vehicles.

26. Those are the agreed facts.

27. It is plain from Exhibit E that the force involved in the impact was severe and could only have resulted from rapid acceleration in a rearward direction of the Offender’s vehicle. Even after colliding with the first vehicle, he continued driving colliding with further vehicles.

28. In terms of injuries, Molly suffered multiple fractures to her pelvis and underwent surgery. Molly had to use a wheelchair and could not bear any weight on her legs for a period of some six weeks. In relation to Lily, her physical injuries at least were assessed as being minor. They included a small abrasion to the side of the forehead, multiple superficial abrasions to both legs and diffused swelling and pain to her left hand with abrasions. Her physical prognosis was considered to be good upon discharge from hospital.

29. In relation to Ms Conlon, she was conveyed to Gosford Hospital suffering serious leg injuries and losing two veneers on her teeth. As a result of further treatment, she underwent surgery to her left knee and may require surgery also to her right knee. She has been largely immobilised since the collision.

30. At the sentence hearing, Kristy Alexander read the Victim Impact Statements for her two sisters, Molly and Lily. I read onto the record the Victim Impact Statement for Jodi Conlon. Nothing the Court says will be able to make up for what occurred on that day. The statements provide great insight into not just the physical injuries suffered by the victims of this Offender’s conduct but the long lasting psychiatric or psychological effects and impacts upon the family which are made clear through the victim impact statements. The consequences of the Offender’s conduct on the day of the offending could only be described as devastating for those affected by his reckless, illegal behaviour.

31. In terms of his subjective case, counsel for the Offender tendered a Psychologist’s Report under the hand of Anne Lucas. The report was generated following an assessment of the Offender at Cessnock Correctional Centre on 10 July 2018. His upbringing was unremarkable, although there is some notation of being sexually abused by an older student at the age of 11. He studied dentistry in the United Kingdom before emigrating to Australia in 1991. He worked as a dentist until 2015 when he retired due to a medical condition. He has been in a relationship since 1992 and has three sons.

32. The Offender reported to the Psychologist normal alcohol use until his retirement. He recalled that after his retirement he was drinking at least three bottles of wine per day and hid his drinking problem from others. The Offender described severe withdrawal symptoms if he had been required to cease alcohol use for any reason.

33. Concerning his psychological health, Ms Lucas noted that the Offender’s mood since the physical diagnosis causing his retirement had been low. After testing using a Personality Assessment Inventory, Ms Lucas noted that the Offender’s clinical scale suggested a substantial history of drinking problems and experienced prominent stress and anxiety. With regards to the subject offending, the Offender described to Ms Lucas an incomplete recollection of the event, but was of the opinion that during the collision he struck his head.

34. The Offender recalled that whilst he felt intoxicated, he did not feel significantly impaired so as not to drive to the shopping centre. That statement could only be regarded as a fabrication, again, designed to minimise his offending. It does shed some light onto his attitude towards the impact of his offending which was further considered by Ms Lucas.

35. Ms Lucas found that he expressed remorse for his behaviour and the injuries sustained by the victims. He has resolved, apparently, that he will never drink alcohol again or get behind the wheel of a motor vehicle. A Corrective Services letter dated 23 May 2019 informed the Court that the Offender has participated in the Remand Addictions Program within custody, having attended eight sessions and contributing well in all sessions.

36. Additionally, the Offender tendered a letter dated 19 June 2018 purported to have been sent to the victims. Upon inquiry of the victims on the last occasion, it became apparent that the letter purportedly sent to the victims was not received by them and I understand that it may have been sent to his solicitor. There was no written apology received by the victims of this offending, although the letter which was circulated amongst his legal representatives contains the following words: “Please try to forgive my sins because I can never forgive myself”. I am not sure that the victims of your offending would be able to forgive you for what you have done to them.

37. The Offender gave sworn evidence before the Court. Whilst the history that he gave to the Psychologist was now some 12 months old, the Offender said that he could now vividly recall the tragic event. That is, the history provided to the Psychologist earlier as to having a poor recollection of events purportedly due to a head injury had changed upon giving evidence. That casts some doubt as to the reliability of the account he account he provided to the Psychologist, both as to that matter and others.

38. It is unexplained by evidence how the Offender’s memory has improved over time such that he can now recall his offending. He said that he tried to move the gears but could not get his foot off the accelerator. The Offender confirmed his problems with alcohol.

39. The Offender had for some time maintained that the cause of the accident was the fact that his shoelace somehow caused his foot to become wedded to the accelerator of the vehicle. That explanation seems to me to be ludicrous and in the course of giving evidence on 6 June 2019 he was asked questions about that by his own counsel. At T17.16:

“Q. I just want to be clear with this do you maintain that your shoelace may have got caught on the brake pedal or the--

A. I said I could move my foot. The only foot I could come up with was - was that the only thing on my foot was my shoelace.

Q. Was it thought that you were highly intoxicated?

A. That’s a fair point.

Q. That’s the case, wasn’t it?

A. Yes.

Q. You were highly intoxicated?

A. I was.

Q. You were not capable of managing a motor vehicle?

A. No”.

40. Up until that time, the Offender had maintained this false explanation that the offending occurred as a result of some circumstance out of his control, namely to do with his shoelace attaching his foot to the accelerator of the vehicle. Again, that demonstrates a lack of insight into his offending and an attempt to exculpate himself from the consequences of his own behaviour.

41. Overall, I found the Offender to be a most unimpressive witness who, as I observed, attempted to blame circumstances other than his own intoxication for his offending until confronted in the course of giving evidence at Court. In fact, I asked the Offender questions pertaining to this matter at page 23 of the transcript. He was in the course of cross-examination by the Crown questioning. The following exchange occurred:

“Q. The reason you told the police that you had your shoelace or the shoelace may have tied around the accelerator was because you were worried about the trouble that you were in?

A. No, that wasn’t the case. The reason I said that was I simply was unable to move my foot.

Q. Do you accept that you were unable to move your foot because you had such a high range of alcohol in your system?

A. I think I was.

Q. Looking back now, do you accept that?

A. It’s very probable.

Q. It is very probable?

A. Very probable”.

42. I then asked the Offender the following question:

“Q. Does that mean you still--

A. I wasn’t making up the fact that I couldn’t move my foot”.

43. My next question was:

“Q. Does that mean you still entertain the possibility that it was caused by the shoelace?

A. It is very unlikely.

Q. Very unlikely?

A. As opposed to very probable”.

44. Even when confronted with questioning by the Court, the Offender appeared to still maintain as a possibility, although very improbable, that the accident was caused by circumstances outside of his control, namely, the attachment of his shoelace to the accelerator.

45. At page 25 of the transcript, the Offender finally gave up in answer to questions from the Crown when he was asked:

“Q. Why did the car keep going?”

A. Because my foot was stuck down on the accelerator pedal.

Q. How was your foot stuck on the accelerator?

A. I have no idea but we - as we have come to I was drunk. This is the words that you wanting me to say. I was drunk. I was too drunk to drive.

Q. It is your evidence?

A. Yes”.

46. Finally, after all of the time that has elapsed since the incident occurred and despite the questioning by his own counsel and the Court he finally accepted that the accident was caused and the injuries to the victims were sustained through his decision to drive a motor vehicle whilst heavily intoxicated.

47. Further, the Offender confirmed his problems with alcohol. He said that it would not be unusual to drink three bottles of wine per day. He conceded in examination-in-chief by his counsel that he should not have been behind the wheel. So much would be obvious to the most novice of drivers.

46. He was pressed by his counsel to acknowledge the bulk of his letter supposedly sent to the victims concerned his own suffering in custody. He answered that he was suffering for the harm he did to them. He stated that hearing the victim impact statements was difficult but necessary. It is unfortunate that he had no realisation of the effect of his offending until the victim impact statements were read aloud in court.

47. He said that he completed programs in custody which allowed him to understand the root cause of his addiction and to take ownership of his issues. That seems complete rubbish compared to his evidence in Court where he still maintained the involvement of the shoelace as the cause of the incident.

48. He was then cross-examined about his short but very troubling criminal history leading to this matter. He accepted that a solicitor would have explained to him he had to be of good behaviour whilst on the various bonds to which he was subject at the time on the day this collision occurred. It was also brought to the attention of the Court by reason of documents from Community Corrections that, as part of his reporting requirements to Community Corrections, he attended an appointment with them and presented heavily intoxicated. He then failed to attend subsequent appointments and had sent abusive text messages to the Corrections staff who were attempting to assist in his rehabilitation.

49. It is plain from the facts that the Offender is a reckless, careless alcoholic who caused significant injury to innocent members of the community going about their business.

50. After being given leave for further examination-in-chief, the Offender stated that he had paid money as compensation for his actions. Again, in an attempt to obtain some degree of sympathy from the Court. Upon further documentation tendered by the Offender, he apparently has paid money to a number of institutions or insurers.

51. When the matter was last before me, I inquired of his counsel whether he simply paid the excess of his insurance policies. I note in the Court transcript at page 27 that that was in fact the payments that had been made indicated by his partner who was sitting in court and nodding her head to that suggestion at the time. Nevertheless, his counsel suggested some monies had been paid over and above but information could not be provided at that time.

52. It would appear from information that has since been provided to the Court that close to $6,000 was paid to Recoveries Corp on 11 September 2018. I have no knowledge as to the reason for or nature of that payment except, plainly, it is not a payment made to the victims of the offending. Upon further documentation tendered by the Offender, he has paid monies in the following amounts to the following institutions:

1. $5,823.85 to Recoveries Corp on 11 September 2018;

2. $10,413.84 to NRMA on 13 September 2018;

3. $11,243.00 to NRMA on 15 November 2018;

4. $4,431.87 to AAMI on 15 February 2019; and

5. $15,492.42 to Guild Insurance on 3 June 2019.

55. The Court has also received since the last occasion a letter indicating the Offender is willing to pay Ms Conlon the sum of $21,548 pursuant to the Victims Rights and Support Act. No explanation is provided as to why payments have not been made or offered to other victims of the offending who, according to their victim impact statements, were badly affected by the Offender’s behaviour.

56. A number of character references were tendered on behalf of the Offender on the last occasion. They were all written prior to the subject offending and spoke highly of him as being a contributing member of society. Those references were generated in an attempt to obtain leniency from the Local Court in relation to an earlier drink driving offence. They, obviously, have limited use, if any, in relation to this sentencing exercise.

57. The Crown drew the Court’s attention to the guideline judgment of R v Whyte (2002) 55 NSWLR 252 which outlined a typical case in these circumstances comprising the following factors:

1. the Offender is young. This, plainly, does not apply to this Offender who is not young and, plainly, ought to have known better;

2. the Offender is a person of good character with no or limited convictions. The Crown submitted, and I accept, that the Offender is not a person of good character based on his earlier convictions of high range drink driving;

3. permanent injury to a single person. Each of the charges referred to involves serious injury to individuals;

4. the victims were strangers. That is the case here. The persons affected by the illegal conduct of the Offender were not known to him prior to the offending;

5. there was limited injury to the Offender himself and there were no passengers. That also seems to be the case here, although I do observe that he spent one night in hospital prior to being taken to the police station;

6. the Offender appears to have genuine remorse. For reasons which I will provide, I do not accept that this Offender has demonstrated genuine remorse; and

7. a plea of guilty of limited value, which the Crown quite fairly conceded worked to the advantage of the Offender, with a guilty plea in this case being made in the Local Court.

58. The Crown further submitted this offence was more serious than a typical case based upon the aggravating factors which the judgment of Whyte provides and exists in this case, including the extent and nature of the injuries, the number of people whose lives were threatened and put at risk by the reckless conduct of the Offender, his incredibly high level of intoxication and his failure to stop and provide assistance to those affected by his driving after the collision had occurred.

59. The Crown finally submitted that the offending with regards to sequences 3, 11 and 12 all fall above the mid-range of objective seriousness based on the aggravating factors mentioned. Additionally, the Crown submitted the objective seriousness of sequence 15 being destroy/damage property falls above the mid-range of objective seriousness when compared with the other breaches of that offence. The photographs which are Exhibit E depict the widespread carnage caused by the conduct of the Offender at the time of his offending.

60. The Crown further submitted the following aggravating factors pursuant to s21A were present:

1. a prior criminal record;

2. the offences were committed in the presence of a child under the age of 18;

3. the injury, emotional harm, loss and damage was substantial;

4. the offence was committed without regard for public safety; and

5. the offence was committed whilst on conditional liberty.

61. I accept of all those submissions. Plainly, the offending occurred without any regard whatsoever for public safety in order for the Offender, an alcoholic, to obtain alcohol to feed his habit of consumption.

62. Counsel for the Offender conceded that the offending was objectively serious. Counsel also conceded a number of aggravating factors from the Whyte guideline judgment were present in this matter. It was submitted that the Offender’s employment history and enforced retirement was relevant to the Court’s understanding of the subsequent effect of his loss of employment. Counsel quite fairly submitted that it did not heighten to the level of a causal link to the offending behaviour.

63. I find that, notwithstanding his loss of employment, there is no evidence or any basis upon which a finding may be made that any medical condition or employment circumstance led to the offending behaviour.

64. The Crown in reply conceded, having re-considered the matter, that the Offender’s criminal record did not aggravate the offending pursuant to s21A, but it resulted in the Offender not being entitled to a finding of leniency based on a finding of prior good character. Notwithstanding the earlier acceptance of the principal submissions made by the Crown, I do prefer the subsequent submissions made by the Crown and I decline to find prior good character on behalf of the Offender and thereby disentitle him to a finding of leniency.

65. To be clear, I find the offending is aggravated by the statutory factors of:

1. the offence occurring in the presence of a child under the age of 18;

2. the substantial injury, emotional harm, loss and damage caused by the offending;

3. the offences were committed without any regard for public safety. They were driven by a personal desire to continue consuming alcohol in circumstances where he was already well intoxicated; and

4. the offending was committed whilst on conditional liberty for earlier offences.

66. The Offender has shown himself to be a person who is ignorant as to compliance of the law, again disentitling him to any leniency in sentencing. It was submitted on his behalf that on the balance of probabilities, he was remorseful for his actions based upon comments made to the Psychologist. I, without hesitation, reject that submission. My analysis of the evidence previously referred to makes it clear that even in the course of the sentence hearing, he attempted to exculpate himself from the offending and to blame circumstances beyond his control. The Offender behaved in a cowardly and reckless manner.

67. In terms of objective seriousness, I find that the offending in relation to the four offences on the Crown sentence summary being sequences, 11, 3, 12 and 15 fall above the mid-range for objective seriousness for offending of this type. This is because the offending occurred at a time when the offending was the subject of three bonds stemming out of incidents where he had previously driven under the influence of alcohol. Secondly, his complete disregard for those people around him at the time of driving and, thirdly, the substantial harm that he has caused by his reckless offending. Whilst not double-counting the harm suffered in the charges in the Crown Sentence Summary just referred to, I find that when compared to like offences, the objective seriousness of the three offences on the s166 certificate, namely sequences 5, 6 and 8, fall at about the mid-range of objective seriousness.

68. In relation to the Offender’s subjective case, I have had regard to all the evidence that has been offered in that regard and I found it to be quite weak and unpersuasive. I find that his chances of success of rehabilitation can only be described as guarded and the risk of re-offending likewise. He is a man from whom the community needs to be protected.

69. The purposes for sentencing set out in the Crimes (Sentencing Procedure) Act obviously apply in determining the appropriate sentence outcome in this case. The first purpose is to ensure adequate punishment. The victims in this crime may feel that there is no punishment which would be adequate for the offending and effects it that it has had, however, I am satisfied that the sentence to be imposed is measured and does provide for adequate punishment.

70. The second is to prevent crime of this nature by deterring both the Offender and other persons from committing similar offences. There is no doubt that this offending requires general deterrence in order to avoid these reckless, selfish acts occurring in the future.

71. The next is to protect the community from the Offender. There is rarely a clearer case where this purpose looms as a significant purpose for sentencing. The Offender left his home on the day of the offending well and truly over the limit for alcohol consumption, driving an unregistered vehicle in a reckless and dangerous manner. The motive for driving was because he only had to drive a short distance and that he was driving to get alcohol. The recklessness of that conduct is rarely seen in the community, most often confined to young offenders, not senior, intelligent members such as the Offender. The community requires protection from this Offender and the sentence will achieve that purpose.

72. The next is to promote the rehabilitation of the Offender and I have had regard to that in determining the sentence.

73. The next purpose is to make the Offender accountable for his actions and I am satisfied the sentence will achieve that. The next is to denounce the conduct of the Offender. If it remains in any way unclear, the conduct of the Offender is denounced by this Court as being anti-social, reckless, dangerous and contrary to any behaviour of any reasonable person in society. He was motivated by the personal need for the consumption of alcohol and put at risk not only those injured but many other people who could have been injured as a consequence of his conduct. In making that observation, I have not taken into account in sentencing the Offender the risk posed to other members of the community not harmed by his conduct. And, finally, to recognise the harm done to the victims of the crime and to the community generally.

74. It was conceded by counsel for the Offender that the s5 threshold had been crossed and the overall sentence outcome is to be imprisonment. I find that after considering all sentence outcomes, the only sentence which is reasonable in the circumstances is full time custodial imprisonment. It was agreed between the parties that special circumstances exist based upon this being the Offender’s first time in custody, his age and need for rehabilitation. I accept that special circumstances do exist and make that finding accordingly.

75. The Crown has also asked that the following bonds be called up. The first relation to H ending 552 sequence 1 being a charge of drive with high range PCA, first offence. This had been called up on an earlier occasion as I have observed on 29 October 2017. The second is charge number ending 311 sequence 1 being a charge of resist officer in execution of duty and a third being charge ending 311 sequence 2 being a charge of drive with high range PCA being the second offence.

76. It was submitted on behalf of the Offender that in what will already be a severe sentence that the Court should find that breaches have occurred but take no further action. It was submitted on behalf of the Crown that the Offender should be re-sentenced to terms of imprisonment as the offences were not trivial and displayed a pattern of escalating behaviour.

77. I do agree that it is troubling that the Offender chose to breach his bonds and continue his offending behaviour. The fact that he was subject to bonds at the time of the offending is found to be an aggravating factor. In my view, to re-sentence him in respect of those breaches may result in a crushing sentence and may also involve doubling up in circumstances in which they have been taken to aggravate the principal offending. I do not intend to proceed to sentence him further in relation to the breaches of those bonds but I do find the breaches proved.

78. Sequences 6 and 8 on the Crown’s Sentence Summary carry maximum penalties of fines. For each of those two offences, being use unregistered motor vehicle on road and use uninsured motor vehicle, I convict the Offender and impose fines of $1,000 and $2,000, respectively.

79. It was submitted that in relation to the other charges, the Court should impose an aggregate sentence, as the offending occurred at the same time, on the same day and as a continuous course of conduct. In my opinion, an aggregate sentence is appropriate. First, I am required to provide indicative sentences which I would have imposed had I not been imposing an aggregate sentence.

80. In relation to sequence 3, being cause bodily harm by misconduct in breach of s53 of the Crimes Act to which a maximum penalty of two years imprisonment applies, I would, but for the aggregate sentence impose a sentence of 12 months discounted by 25% resulting in an indicative sentence of nine months.

81. In relation to sequence 5, being drive whilst disqualified, a charge appearing on the s166 certificate, the maximum penalty is six months imprisonment and/or a fine. I would, but for the fact that I intend on imposing the aggregate sentence, have imposed a sentence of four months, discounted by 25% resulting in a three month term of imprisonment as an indicative sentence.

82. In relation to sequence 11 to which the Form 1 matter, namely sequence 9 attaches, sequence 11 being aggravated dangerous driving occasioning grievous bodily harm for which a maximum penalty applies of 11 years imprisonment, I would, but for the aggregate sentence, have imposed a sentence of seven years, discounted by 25% resulting in an indicative sentence of five years and three months.

83. In relation to sequence 12, being aggravated dangerous driving in breach of s52A of the Crimes Act, the maximum penalty, again, is 11 years imprisonment. I provide an indicative sentence of six years, discounted by 25% resulting in an indicative sentence of four years and six months.

84. In relation to sequence 15, namely destroy/damage property, the maximum sentence is two years imprisonment. I provide an indicative sentence of one year, reduced for the guilty plea to nine months.

85. Additionally, sequence 5 carries a maximum disqualification period of six months. For sequence 5 being drive whilst disqualified in breach of s54(1)(a) of the Road Transport Act, I disqualify the Offender from driving for a period of six months to commence today and expire on 25 January 2020.

86. For sequences 3, 11 and 12, each offence carries a maximum disqualification period of five years. For these offences, I disqualify the Offender from driving for a period of ten years commencing 25 January 2020 and expiring 24 January 2030.

87. Before proceeding to sentence, there is the payment to the victim, Jodi Conlon. The Crown has asked that an order be made on the basis that she is a person aggrieved by the conduct of the Offender. I find that she is a person so aggrieved within the meaning of the Victims Rights and Support Act. In respect of sequence 12, I order that pursuant to the Victims Rights and Support Act, the Offender pay compensation to Jodi Conlon in the sum of $21,548.80. Should either of the other victims of the offending wish to make an application through the Crown for a payment pursuant to the Act then leave to do so within seven days is granted.

88. Before imposing an aggregate sentence, it is necessary for the Court to have regard to principles of totality and ensure that the sentence reflects the overall criminality of the offending behaviour without imposing a sentence which is crushing. Please stand.

89. You are convicted of the four offences on the Crown Sentence Summary, being sequence 3, cause bodily harm by misconduct in breach of s53 of the Crimes Act.

90. You are further convicted of sequence 11 being aggravated dangerous driving occasioning grievous bodily harm in breach of s52A(4) of the Crimes Act. You are further convicted of sequence 12 being another charge of aggravated dangerous driving occasioning grievous bodily harm.

91. You are also convicted of sequence 15 being a charge of destroy damage property in breach of s195(1)(a) of the Crimes Act.

92. You are further convicted of three offences on s166 certificate being sequence 5 being drive whist disqualified in breach of s54(1)(a) of the Road Transport Act. You are also convicted of sequence 6, being use an unregistered motor vehicle in breach of s68(1) of the Road Transport Act and, finally, you are convicted of sequence 8 being use an uninsured motor vehicle in breach of s81 of the Motor Accidents Compensation Act.

93. For sequences 6 and 8, I convict you and impose fines of $1,000 and $2,000 respectively. For the remaining convictions, I impose an aggregate sentence of seven years to date from 27 March 2018 and expire on 26 March 2025. I impose an aggregate non-parole period of four years and eight months to date from 27 March 2018 and expire on 26 November 2022.

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Decision last updated: 20 November 2019