R v Mark Reay

[2018] NSWDC 386

District Court

New South Wales

Medium Neutral Citation:	R v Mark REAY [2018] NSWDC 386
Hearing dates:	15, 20 June 2018
Date of orders:	20 June 2018
Decision date:	20 June 2018
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	I sentence you to imprisonment. I set a non-parole period of one year and three months, commencing on 20 June 2018 and expiring on 19 September 2019. I impose a further period of imprisonment of one year to commence upon the expiration of the non-parole period and expiring on 19 September 2020. The total sentence is therefore two years and three months, comprising the non-parole period and the balance of the sentence.
Catchwords:	CRIME – SENTENCE – Aggravated dangerous driving causing grievous bodily harm – Blood alcohol level of 0.216 – Prior PCA convictions – Victim close personal friend, passenger in offender’s case – Victim made good recovery with only intermittent low level sequelae – Offender 36 years old at time of offence – No prior imprisonment – After 25% discount for utilitarian value of plea of guilty, head sentence 2yrs 3months, NPP 1yr 3 months
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Crimes Act 1900
Cases Cited:	R v Kyle [2014] NSWCCA 300 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 452
Category:	Sentence
Parties:	Regina (Crown) Mark Reay (Offender)
Representation:	Counsel: S Stuart (Crown) P Murphy (Offender)   Solicitors: ODPP (Crown) Peter Murphy Criminal Law (Offender)
File Number(s):	2017/82305
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Mark Reay stands for sentence as a consequence to having pleaded guilty to a charge that, on 16 March 2017 at Mount Ku-ring-gai he did drive a vehicle, a blue coloured Mitsubishi Lancer registered number AR-38EK, when it was involved in an impact occasioning grievous bodily harm to Luke Towner and at the time of the impact the said Mark Reay was driving the vehicle under the influence of intoxicating liquor, in circumstances of aggravation, to wit, the said Mark Reay had in his blood the prescribed concentration of alcohol, a reading of 0.216. That is an offence contrary to s 52A (4) of the Crimes Act 1900 and carries a maximum penalty of 11 years imprisonment.

2. Section 52A creates a number of crimes. The first is dangerous driving occasioning death and then dangerous driving occasioning death in circumstances of aggravation. Subs (3) establishes the crime of dangerous driving occasioning grievous bodily harm, and, subs (4) establishes the crime of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. Subs (3) provides this:

“A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact driving the vehicle:

(a) under the influence of intoxicating liquor or of a drug, or

(b) at a speed dangerous to another person or persons, or

(c) in a manner dangerous to another person or persons.”

The penalty for that offence is imprisonment for seven years. The relevant circumstance of aggravation in this case is that provided by subs (7)(a) bearing in mind the definition of “prescribed concentration of alcohol contained in subs (9). The circumstance of aggravation is that there was a concentration of 0.15 grammes or more of alcohol in 210 litres of breath or 150 millilitres of blood in the blood of the offender. In essence the “prescribed concentration of alcohol” for the purpose of s 52A (4) is the high range prescribed concentration of alcohol. The minimum high range is 0.15 grams. As the Court Attendance Notice makes clear, the offender’s blood alcohol reading was 0.216 at the time of the offence.

Facts   

3. The parties have agreed on relevant facts. Those facts are in essence these which I may supplement by other material before me. The offender was 36 years old at the time of the offence committed on 16 March 2017. He had in his car his close personal friend, Mr Luke Towner, who was then 35 years of age. From the offender’s letter to the Court, I should state the nature of the offender’s relationship with Mr Towner, to whom the offender refers as Luke and to whom I shall also hereafter refer to as Luke.

“Luke and I have known each other since about the age of six. We went to primary school together and high school. 10 years ago Luke and I rented a house together in Terrigal. About six years ago Luke decided to move back to Sydney, where his family lives, he rented a small room in Bondi. I would visit him there regularly. In the last four years, Luke had been living with me again, on and off, sometimes staying with his family or girlfriend in Sydney.”

It is clear from the balance of the offender’s letter to me that Luke was staying overnight with him on the night of 15 to 16 March 2017.

4. The offender told me that on the night before the collision he was both working and taking alcohol at his home at Terrigal. He went to bed at about 4am. He arose at 11am. When he got out of bed the offender decided that he wanted to leave his home on the Central Coast and visit a friend who lived in Gulgong. When Luke got up the offender asked him if he would like to join him on the trip to Gulgong. Luke told him that he would, but he needed to call into his mother’s house in Sydney in order to obtain some clothing to wear on the trip to Gulgong. The offender before commencing the journey to Gulgong via Sydney consumed two vodkas in a shot glass and according to the agreed facts one bottle of full strength beer, that was a stubbie, a 375 ml bottle.

5. At about 1 o’clock the offender left his home intending to travel to Gulgong in his blue Mitsubishi Lancer. Luke took the front passenger seat of the Lancer. The offender drove onto the Pacific motorway at Kariong. According to the offender’s letter to the Court, after proceeding along the M1 there were signs indicating that there had been a crash on the south bound lanes of the M1 south of the Berowra turn off. For that reason the offender elected to leave the motorway at the Berowra turn off and turned onto the Old Pacific Highway heading south towards Hornsby. According to the agreed facts the offender stopped briefly at Berowra where he consumed a bottle and-a-half of full strength beer. The offender in his oral evidence today told me that as far as he could remember it was only half a stubbie that he consumed at Berowra, but the agreed facts upon which the offender stands for sentence clearly indicate that it was one-and-a-half stubbies of full strength beer.

6. After the break and the consumption of that alcohol, the offender continued his journey along the Old Pacific Highway travelling south between Berowra and Hornsby. Shortly after 2pm, a witness, Mr Max Lowery, who was also driving south along the Pacific Highway towards Hornsby became aware of the car being driven erratically and at speed by the present offender. Mr Lowery observed that the car was going considerably faster than he was and he was driving at the posted speed limit of 80 kilometres per hour, and Mr Lowery observed that the offender was “tail gating other cars”, “almost touching the cars in front”. Mr Lowery drove on further and observed that the car that he observed being driven in that manner was the same car involved in an accident. It is clear from the agreed facts that the car observed by Mr Lowery was that being driven by the offender.

7. Shortly before 2.10pm, Mr Jeffrey Perl was driving his Toyota Camry north on the Pacific Highway and approaching the intersection of the Highway and Excelsior Road. Mr Perl was driving at around 50 kilometres per hour in the lane closest to the mid line of the highway. The intersection is governed by traffic control lights. The traffic control lights were green in favour of Mr Perl, that is he had the right to proceed through the intersection. As Mr Perl approached the intersection he noticed that the offender’s car was stationary at the lights facing him waiting to turn right into Excelsior Road. The offender told me today that he actually did not become stationary but slowed down in order to make the right hand turn. I must proceed on the agreed facts. Mr Perl observed that “all of a sudden this car just accelerated and turned right in front of me”. Mr Perl applied his brakes but was unable to stop in time to avoid the collision. His vehicle struck the passenger side of the offender’s vehicle. The impact caused the offender’s Lancer to rotate before coming to rest in the break-down lane on the western side of the carriageway with its rear against the western grassed embankment of the Highway.

8. Mr Perl left his car and approached the offender’s car to assist the offender and his passenger. Fortunately, Mr Perl was uninjured and there was only minor damage to his vehicle. Police and ambulance workers then attended the scene from about 2.20pm. Luke was trapped in the offender’s vehicle and had to be extricated from it by the emergency personnel. He was found to be unable to move due to pelvic pain. A helicopter arrived and airlifted Luke to hospital. The offender was treated at the scene by ambulance officers for minor abrasions and soft tissue injuries. At 3.51pm he was breathalysed and eventually returned a blood alcohol reading of 0.216. He was arrested and taken to Hornsby Police Station and was released on bail soon after.

9. According to the agreed facts there was significant damage to the offender’s vehicle. The passenger side front and rear door windows were shattered. There was significant impact damage to the driver’s side, front and rear doors. The roof was deformed and the windscreen of the vehicle was cracked. Police observed that the road surface was wet as there had been heavy showers of rain earlier in the day. However it was not raining at the time of the collision. The level of natural light was good, albeit that there was a heavy cloud cover. There was no suggestion that the climatic conditions contributed to the collision.

10. The offender asks me to take into account on a Form 1, an offence of the possession of equipment for the administering of prohibited drugs, an offence contrary to s 11(1) of the Drug Misuse and Trafficking Act 1985. On searching the offender’s vehicle the police found a home made “bong” an implement used for smoking cannabis. The police also found an open stubbie of full strength beer in the centre console with about 2 centimetres of beer remaining in the bottle. Four other empty full strength stubbie bottles were found in the rear foot wells of the offender’s vehicle. It may well be that Luke consumed some of those stubbies of beer.

11. Despite his being released from Hornsby Police Station shortly after he was breathalysed, the offender was again arrested at about 7pm and taken to the Chatswood Police Station where he participated in an electronically recorded interview. The offender told the police that he thought he was sober and did not think that the alcohol he had drunk that day contributed “at all” to the accident. He estimated that his blood alcohol reading ought be 0.065 that is slightly above low range, the low range level of prescribed alcohol. The offender admitted to the police that he consumed a bottle of wine that night and said that he slept from between 1am and 7am albeit that his evidence to me is that he went to bed at 4am and got up at 11am. The offender told police that it was rare for him to drink and drive as in the past he had spent four years on the Interlock Program. He then told the police that he thought Mr Perl was driving at a very great speed. According to the agreed facts the offender said that he had “never encountered anyone going as fast as [Perl] when [he] turned right.” However, the agreed facts clearly indicate that Mr Perl was proceeding at 50 kilometres per hour. The agreed facts suggest that the speed limit on this section of the Old Pacific Highway was 80 kilometres per hour, but may be that it was only 60 in the vicinity of the intersection here in question. However, in no way could Mr Perl’s speed be said with any validity to be excessive or extremely fast.

12. The offender admitted in the witness box today that he made a grave error of judgment, that he mistook the speed at which Mr Perl’s car was travelling, that he made an error of judgment in forming the view that there was sufficient time for him to turn right in front of Mr Perl’s vehicle without there being a collision. The overwhelming inference to be drawn from the agreed facts and all the evidence is the offender’s judgment was clouded by his very large alcohol intake, the very large amount of alcohol in his bloodstream.

13. Luke sustained a number of injuries to his pelvis. There was a fracture of the left sacral area, fractures bilaterally of the superior and inferior pubic rami and a fracture of the anterior column and of an acetabulum. From the fact that it was the left sacral structure that was fractured I infer that the fracture of the anterior column and acetabulum were also on the left side. The acetabulum is the socket in the pelvis which holds the ball head of the femur. I was concerned that the acetabular fracture could lead to the onset of osteoarthritis in Luke’s left hip joint. The agreed facts also tell me that Luke suffered a low grade laceration of his left kidney. The pelvic fractures required Luke to undergo open reduction and internal fixation using, inter alia, screws. A treating doctor, Dr Sefton, stated in a report that Luke suffered “serious injuries which were potentially life-threatening and if left untreated would have seriously affected the comfort and well-being of the patient.”

14. Luke swore an affidavit which is exhibit 2. In that affidavit Luke told me that he spent 13 days in hospital and underwent rehabilitation for a further two-and-a-half months, requiring physiotherapy each fortnight at Royal North Shore Hospital. He told me in the affidavit that he received treatment all told for three months. The fourth paragraph of his affidavit is this:

“15 months on from these events I have recovered exceptionally well, with minimal ill-effects from the collision except for the odd minor pelvic pain, stiffness and some occasional clicking in my general pelvic area.”

15. Essentially at my request, Luke gave oral evidence. He added that he was off work until mid-May 2017, but his pelvic fractures had not interfered with his working ability since. He made it clear that he only had occasional pains in the sacral area, that is, in the area immediately above the coccyx and that might affect him. I was keen to ask Luke whether he had any symptoms in either of his hips or either of his lower limbs and he told me that he did not have any such symptoms. He also told me that he had not been advised by his treating surgeon that he had any risk in the future of developing symptoms affecting his hips. Put shortly, it appears that Luke made a very good recovery from his injuries within three months of their occurrence. Within three months of their occurrence he was back at work and has not lost time since. He has not had any need for treatment since the end of the three month period. His residual symptoms are minor and do not cause him any major problem at all. That is extremely important from the offender’s point of view, as a significant issue in an offence contrary to s 52A (4) is the extent of the grievous bodily harm.

16. The Crown referred me to the decision of the Court of Appeal in R v Kyle [2014] NSWCCA 300, which was also an offence contrary to s 52A (4). In that case however the victim of the offender sustained much more serious injuries than did Luke. According to [9] of the judgment of Adams J, the victim in that case:

“...suffered a fractured pelvis requiring surgical fixation, fractures to four ribs, displaced spinal fractures, spinal cord injury, cardiac arrest and renal failure. He has been left with no movement in his left leg and partial strength in his right leg which might improve if he were to have further surgery. He has no sexual function. He is permanently wheelchair-bound and needs assistance showering and dressing with all other routine activities.”

Seriousness   

17. The law requires me to categorise the crime committed by the offender according its objective seriousness. Cases of this nature are covered by the guideline judgment of the Court of Criminal Appeal in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 452. The Court identified a “typical case” of an offence of dangerous driving causing death or grievous bodily harm contrary to s 52A. The typical case involved these matters:

“1. A young offender;

2. Of good character with no or limited prior convictions;

3. Death or permanent injury to a single person;

4. The victim is a stranger;

5. No or limited injury to the driver or the driver’s intimates;

6. Genuine remorse;

7. A plea of guilty of limited utilitarian value.”

The present case does not involve a “young offender”. The majority of people standing for sentence for offences against s 52A are under 25 years of age. The offender at the time was 36 years old. This offender did have a number of prior driving convictions highly relevant to this offence and in such circumstances could not be said to be of good character even though otherwise he could be so described. Here there was injury to a single person, but that victim was not a stranger. Indeed the victim was one of the driver’s “intimates”, he was a close personal friend, a passenger in the offender’s vehicle. Here there is genuine remorse. I am confident the offender is truly remorseful for the injuries his which his conduct caused Luke to suffer. Here there has been a plea of guilty but the crime would be very easily proved to the satisfaction of any jury and therefore the plea has limited utilitarian value.

18. In other words, in considering the seven characteristics of a frequently recurring case, the first two do not arise in this case and they make the offender’s crime more serious than a typical case. The offender did cause permanent injury to a single person but the injury has no long term sequelae of any moment so that that factor is in favour of this offender. The victim was not a stranger but an intimate and again those two factors are in favour of the offender in that they are outside the normal case and the severity of the normal case. The last two items apply. Balancing things, as one must often do, it appears to me that this could be equivalent to a frequently recurring case of an offence under s 52A.

19. The Court of Criminal Appeal found that aggravating factors which frequently recur are these:

“1. The extent and nature of the injuries inflicted;

2. The number of people put at risk;

3. The degree of speed;

4. The degree of intoxication or of substance abuse;

5. Erratic or aggressive driving;

6. Competitive driving or showing off;

7. The length of the journey to which others were exposed to risk;

8. Ignoring of warnings;

9. Escaping police pursuit;

10. Degree of sleep deprivation;

11. Failing to stop.”

The guideline which the Court promulgated as to the length of sentence for a typical case should be, where the offender’s moral culpability is high, a fulltime custodial sentence of no less than two years in the case of the infliction of grievous bodily harm. The Court also held that in a case of an aggravated version of an offence contrary to s 52A, which the present case is, an appropriate increment to reflect the higher maximum penalty ought be made because the aggravated offence generally shows a higher level of moral culpability. The 11 items which I have last listed concern the moral culpability of the offender’s conduct.

20. It is clear to me from reading the guideline judgment that the aggravating factors are not confined solely to the driving which is immediately responsible for the collision in question. The offender’s solicitor in his written submissions, said that the number of people put at risk were merely the defendant himself, Luke and Mr Perl. He also submitted that there was no erratic or aggressive driving applicable to the offence itself. But I cannot accede to those submissions.

20. The seventh factor to be taken into account is the length of the journey during which others were exposed to risk. Others were exposed to risk during the whole of the time that the offender was behind the wheel of his Lancer motor vehicle driving from his home at Terrigal to the accident scene at Mount Ku-ring-gai. The blood alcohol level of 0.216 did not suddenly appear in the offender’s bloodstream immediately before he turned right in front of Mr Perl’s vehicle.

21. It is clear that the offender had a large amount of alcohol to drink prior to 4am on 16 March, he must have still been affected by that alcohol when he arose at 11am, he topped up his alcohol drinking vodka and beer before commencing the journey from Terrigal and then interrupted the journey at Berowra to take on more alcohol.

The M1 motorway and the Old Pacific Highway between Berowra and Hornsby are both busy roads. There would have been many people endangered by the offender’s driving whilst there was present in his blood the high range prescribed concentration of alcohol. There clearly was immediately prior to the collision erratic and aggressive driving as the agreed facts show in the observations of Mr Lowery. To read down the driving in question to that immediately involved in the collision that is the offender’s turning right from the Pacific Highway seeking to enter Excelsior Road, is inconsistent with such considerations as erratic or aggressive driving and competitive driving or showing off, as well as the length of the journey during which others were exposed to risk.

23. The degree of intoxication was high. The degree of intoxication is such that the offender has committed the aggravated offence proscribed by s 51A (4), indeed his level of intoxication was much greater than the bottom of the relevant range, 0.15. The length of the journey was well over an hour. There was no suggestion of aggressive driving on the M1. The evidence of Mr Lowery is that there was such driving on the Old Pacific Highway between Berowra and Mount Ku-ring-gai.

24. The offender himself in his letter to the Court said that when he left the M1 at Berowra the Pacific Highway “was very busy travelling south towards Hornsby”. That means in vernacular English that the traffic was heavy. The offender went on to say that he was not enjoying the drive and decided to turn off the highway at Mount Ku-ring-gai thus leading to the collision in which Luke was injured. One infers that he was not enjoying the drive because of heavy traffic and perhaps he sought to avoid the heavy traffic by turning off the Highway. It may be that the traffic on the Old Pacific Highway was very heavy because many motorists decided to turn off the M1 motorway at Berowra for the same reason that the offender did.

25. Bearing in mind the extent of the intoxication, the erratic and aggressive driving described in the agreed facts and the length of the journey over which others were exposed to the risk, I must conclude that the offender’s moral culpability for this offence was high. Having said that the countervailing factor is, of course, that although Luke suffered severe injuries, grievous bodily harm, he has made an excellent recovery from those injuries with no significant ongoing sequelae.

Personal circumstances

26. I turn now to consider the personal circumstances of the offender. The easiest source of information concerning the offender’s background is contained in the report of Mr Philip Gorrell, a psychologist, who interviewed the offender on 27 May and 10 June 2018. The offender is a citizen of the United States of America. He was born in Maine when his mother was 16 years old. He appears to have been the fruit of a short term relationship between his mother at a tender age and his father who was then in the United States Navy. The offender returned with his mother and grandparents to Australia in 1984 when he was either three or four years old. He took up residence with his family in Paddington.

27. According to Mr Gorrell’s history, due to his mother only being 16 years old at the time that he was born, the offender was in essence raised by his grandparents. When the family returned to Australia the offender’s mother attended an Arts School. She then worked for 10 years as an animator with Disney Australia. She then commenced operating an ice-cream van. For the last eight years the offender’s mother has resided in a commune outside of Coffs Harbour. His grandfather is now deceased. His grandmother now resides near the commune at Coffs Harbour. The offender’s father died in 2011 due to one of the many incidents of being a resident of the United States, a firearm accident.

28. The offender attended St Francis Xavier Primary School at Paddington and then at St Mary’s Cathedral College. He received a scholarship to enter that college through its Gifted and Talented Program. He achieved that scholarship because he was an accomplished pianist, having completed grade 7 with the Australian Music Examination Board. Although the offender enjoyed singing in St Mary’s Cathedral Choir he did not “fit in” with the other students at the Cathedral College. He left St Mary’s Cathedral College when he was in year eight. He then attended Dover Heights High School for two years, but again found that he did not “fit in” to that school. After leaving Dover Heights High he attended Ultimo TAFE where completed his school certificate and a tertiary preparation certificate.

29. The offender commenced a Bachelor of Computer Science course at university whilst undertaking fulltime employment in that field. He has not, however, completed his Bachelor’s degree. According to the pre-sentence report the offender has been in fulltime employment for at least the last 10 years working in the field of computer programming. Up until recently he was employed by Optus but resigned that employment in order to take up a job with a Dutch bank, ABN Amro.

30. The offender has had a number of relationships. When he was 14 years old he met a girl called Maria who resided in Queensland. They commenced a long distance relationship and at 17 years of age, he moved to Queensland to live with Maria. They lived together for five years. They had a son who is called William and carries his father’s surname. The offender would have begotten William when he was 19 years old. William is now 17 years old. During the five years that that the offender and Maria lived together, they moved from Queensland to Dubbo, where Maria’s parents owned a rural property. In Dubbo the offender was employed by a computer company. Each afternoon upon completing his day’s work he and his colleagues at the computer company would attend a local hotel. They would have a few drinks, but the offender would always get home by 7pm. The offender attributes his problems with alcohol to be introduced to that substance via his working practises at Dubbo.

31. Unfortunately Maria became involved with another man and gave up her relationship with the offender for that other man. As I understand it the offender and Maria were intending to become engaged and had planned to purchase a property together in Dubbo. The offender found it extremely difficult to cope with what he probably perceived as Maria’s infidelity, and the splitting up of his family, the splitting up of him, Maria and William and he turned to drink. According to Mr Gorrell’s report;

“In his despair he turned to alcohol and that was encouraged by his work colleagues would attend his home to console him and in doing so they would all drink.”

However, Mr Gorrell’s history goes on to point out that even when he was together with Maria their relationship often involved consuming alcohol. According to Mr Gorrell’s history the offender developed the habit of consuming half a bottle of vodka every few nights.

32. There were proceedings in the Family Court concerning access to William which had become problematical. The offender found the litigation in the Family Court to be particularly stressful. That also encouraged his alcohol intake. To escape what he found to be an oppressive situation in Dubbo the offender moved to Sydney and returned to Dubbo every second weekend for access to William.

33. Unexpectedly Maria’s new partner died, but she then entered into a relationship with another man and Maria and her third partner moved to Stockton. That caused the offender to move to Terrigal in order to be close to his son, but then he found out that Maria’s third partner did not want the offender to be involved in the lives of him, Maria and William and prevented him from seeing William. Frustrated by the development the offender only coped, according to Mr Gorrell’s history, by consuming alcohol.

34. Mr Gorrell has an extensive history of the offender’s alcohol and illicit substance use. It is more succinctly contained in the pre-sentence report. The pre-sentence report says this;

“Mr Reay described a history of heavy alcohol use, however he claimed that his use has now decreased. He stated that he had previously consumed alcohol at levels that in retrospect caused him concern, after the breakdown of the relationship with the mother of his son in 2003. He reported drinking up to one bottle of vodka per night at that time. He reported that his current level of consumption was approximately nine standard drinks per night, however he claimed that he did not consider his level of alcohol use problematic. In regards to his offences, he stated that he consumed one bottle of wine and several small bottles of beer the night prior to offending, and had not taken into account the amount of alcohol that he consumed late in the evening. The day of the offence he stated he consumed more alcohol in the afternoon, both vodka and beer, before deciding to drive to Western New South Wales. He stated that he was unclear how many small bottles of beer he had consumed while travelling from the Central Coast to Hornsby, but that it was at least one or two, however he did not consider himself to be affected by alcohol at the time of the offences.

Mr Reay stated that he consumed approximately 1 gram of cannabis on a regular basis on weekends, and has done so for many years. He has been referred to substance use intervention by Community Corrections and has also been referred to substance use intervention by his assessing psychologist [Mr Gorrell]. His treating psychologist has confirmed that Mr Reay commenced intervention on 12 June 2018.”

35. The offender appears to have taken to alcohol to help him through the various vicissitudes of life, the adversities and setbacks of life, and this has led to an obvious large alcohol use and clearly has led to the offence which he committed for which he now stands for sentence.

36. According to the history obtained by Mr Gorrell alcohol caused the offender to relax and alcohol had never affected his ability to work, but one must query the validity of that self-observation by the offender. It is hard to accept that one can perform intellectually demanding work whilst there is present in one’s blood a large alcohol content. As far as the alcohol is concerned the offender told Mr Gorrell that his past and current offences all involved the use of alcohol and as such he knew he needed to reduce his alcohol intake and the offender told Mr Gorrell that he believes that he can do so.

37. As far as drinking and driving is concerned the offender’s current attitude is not to give away drinking, but to give away driving. Laudable as that may be, one cannot foresee what the future may hold for this still relatively young man. He may yet marry, he may yet have children of his own, he may find that the needs of being a husband and father may cause him to have to drive and the alternative, when he has to drive, is to abstain from alcohol. Further, it is in the offender’s best interests that he manage his alcohol intake.

The offender attended, in 2017, two AA meetings but did not attend them any longer because of difficulties due to timing. He was attending AA meetings at a place near his place of work, but he still needed to commute two hours each day home from the central area of Sydney to the Central Coast and he found that there was not sufficient time available, without causing tiredness, to attend the AA meetings. However, he does not appear to have made any search for AA meetings near his home which might only require him to leave work a little earlier one afternoon a week.

38. The offender has a criminal history that reflects his alcohol habit and in many ways is directly relevant to the matter currently before me. On 12 November 1999 he committed an offence of shoplifting for which he was fined. On 31 July 2003 he was charged with driving whilst disqualified from holding a licence. For that offence he was sentenced to 50 hours community service. However, he breached that community service order and was called-up and the Local Court at Waverley increased the number of hours to be served in community service to 60. On 6 October 2004 he was charged with an offence against the Commonwealth of dishonestly obtaining a financial advantage. For that he was placed on a recognizance to be of good behaviour for a period of two years. On 18 December 2009 he was charged with a number of offences of destroying or damaging property and resisting a police officer in the execution of his duty as well as using offensive language in or near a public place. For those offences he was given seven fines each of $100.

39. On 14 October 2002 he had been charged with driving a vehicle recklessly, furiously, or at a speed or in a manner dangerous to the public. For that offence the Local Court at Dubbo fined the offender $800 and disqualified him from driving for 12 months. An appeal to this Court sitting at Dubbo was dismissed. On 12 July 2009 the offender committed the offence of driving with a mid-range prescribed concentration of alcohol. For that offence he was fined $750 by the Downing Centre Local Court and disqualified from driving for six months. He was again charged with a PCA offence on 29 August 2011. On this occasion the offence was a high range offence. For that offence he appeared before the Local Court at Hornsby on 10 November 2011. He was fined $1,500 and disqualified from driving for three years, but the disqualification period could be reduced to one year if the offender agreed to participate in the Alcohol Interlock Scheme for a period of four years. The offender participated in the Alcohol Interlock Program. The offender obtained an unrestricted licence again after the four year Alcohol Interlock Program on 11 November 2016. This offence occurred on 16 March 2017, some four months later.

40. The alcohol habit or addiction clearly was interfering with his ability to drive safely. There were two earlier PCA convictions, one for a mid-range offence and one for a high range offence, but the offender clearly did not learn much at all from the penalties imposed upon him for those offences. The offender admitted that he had described the Alcohol Interlock Program as the “most ridiculous system in the world”. He admitted that on a handful of occasions when he had blown into the Alcohol Interlock device he had been prevented from driving and had to wait an hour or more before he could again attempt to drive. The Alcohol Interlock PCA level is 0.02. The offender has recently completed a Traffic Offenders Rehabilitation Program. That was completed on 19 May 2018.

41. As I have already indicated the offender was sent by his solicitors to see Mr Gorrell the psychologist, who recommended to the offender that he should have psychological treatment for his alcohol problem and he referred the offender to a psychologist Mr Max Cornwell at Boronia Park. The offender completed a session with Mr Cornwell on 12 June. The offender has now seen Mr Cornwell twice and there are planned to be 10 further sessions of counselling, one in each of 10 future weeks.

42. The offender has now entered into a new relationship. In his letter to the Court the offender told me this:

“I also have a very happy relationship with my partner who I met just four months ago and she helps me deal with my tendency to sometimes drink too much. I feel like my life has meaning now. I have truly come out of this a reformed person and have learnt a lot about myself.”

It is significantly in the offender’s best interests that he now have a meaningful relationship with a young lady who is supportive of him. That will give him some comfort in the future.

43. It appears that the offender, who has difficulty socially on occasions, has poured much of his energy into his work. The offender’s mother wrote a reference dated 14 June 2018, in which she said this:

“Mark had some difficulty socialising generally with his peers. I would say that then and now he does not completely mesh with general society. I recognise that he can be anxious and self-conscious in public places. However in chosen company, sharing mutual interests he’s extremely focused, conversant, humorous and great company. He likes to be appreciated for the intelligent, good person that he is. If he should feel unappreciated or insulted, frustration can show.

On the work front [,] Mark’s history is very good. He has always been employed dedicating himself to the work at hand. He prides himself on doing things very well and taking the time to help colleagues. He enjoys the challenges of his recent job of two years as a programmer for Optus and has formed great relationships there.

What started as some drinks to ease social anxiety slowly grew into a mood altering, big, big, regular habit. I strongly feel that if he gave up or drastically minimised his alcohol intake, as well as adding some physical exercise and even some meditation to the equation, the result would be a more stable, rational human being.”

There is also a reference from the offender’s grandmother in which she confirms that the offender is very good at the job he does in the workforce and that he likes job very much.

44. A reference from a long term acquaintance, a man he met when working for the computer company in Dubbo, says this:

“In my opinion Mark is a computer programming genius, which for most of his life he has struggled to implement this into his life and career. Mark has also had big dreams on what he should be doing with his unique skillset and believes that he could be contributing so much more to the world than he has. In my opinion as with others with such a mind there can be occasions of substance abuse.”

This gentleman Mr Stephen Barber also comments on the offender’s current relationship. In his reference he said this:

“After being single for nearly approximately 10 years Mark has also met his current girlfriend Louise who he adores and constantly talks about. Mark talks about being aware of his issues (being alcohol) and is generally excited by the help he is getting by different doctors and programs.”

Clearly the reference to the help being given by different doctors and programs is very recent help which appears to have been triggered off by the imminence of the offender’s sentencing hearing. However, I accept that the offender’s current relationship has contributed to greater insight, greater drive and determination on the offender’s part.

Consideration

45. A troubling thing about the current matter is that I find it difficult to accept that the offender has real insight into the effect that alcohol has had on him and the part it played in the crime which he committed on 16 March 2017. Leaving that issue to one side, it appears that this offender has a new fulltime job which is shortly to take up, a new and promising and comforting relationship and determination not to drink and drive by not driving rather than not drinking, and a positive part to play in our community. On the other hand the offender’s moral culpability for his offence is high, the countervailing factor being that, fortunately for both Luke and for the offender, Luke’s injuries left him with no ongoing sequelae of any moment.

45. The offender’s mother and grandmother both believe that the imposition of a fulltime custodial sentence would be of no assistance to the offender. His mother says that the imposition of a fulltime custodial sentence would be “counterproductive, disastrous outcome”. His grandmother describes a fulltime custodial sentence as being a “hindrance” for the offender.

46. I can accept those views. However, I am required to sentence the offender according to law. The purposes of sentencing are multiple. They are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. The purposes for which a Court may impose a sentence on an offender are firstly, to ensure that the offender is adequately punished for the offence; secondly, to prevent crime by deterring the offender and other persons from committing similar offences. Thirdly, to protect the community from the offender. Fourthly, to promote the rehabilitation of the offender; fifthly, to make the offender accountable for his or her actions; sixthly, to denounce the conduct of the offender and seventhly, to recognise the harm done to the victim of the crime and to the community.

47. The offender is seeking, albeit somewhat belatedly, to rehabilitate himself. I accept that promoting rehabilitation is a stated purpose of sentencing. I can also accept that the imposition of a fulltime custodial sentence may interfere with such rehabilitation. However, all the other purposes of sentencing point in the opposite direction. The guideline judgment of the Court of Criminal Appeal by which I am bound points in exactly the opposite direction.

48. The offender by his solicitor asks me not to impose a fulltime custodial sentence but a custodial sentence to be served by way of intensive correction in the community. However, for me to impose such a penalty I would need to determine that the appropriate custodial sentence was two years or less. I have come, I am afraid, to an opposite view. Bearing in mind the offender’s culpability being high and bearing in mind the maximum penalty for the offence, bearing in mind the offender can ask for no leniency because of prior good conduct as far as drinking and driving are concerned, I have come to the view that the appropriate starting point in this sentencing hearing is a sentence of imprisonment of three years. That must be discounted by 25% because of the utilitarian value of the plea of guilty. That is accepted by the Crown. If my mathematics be correct that reduces the head sentence to two years and three months imprisonment. The only remaining issue is the length of the non-parole period.

49. In my view there are special circumstances to warrant the breaking of the statutory nexus between the head sentence and the non-parole period. The non-parole period should be three-quarters of the head sentence. Here the offender has not previously served any custodial sentence. His initial experience of custody will not be pleasant. He will find it frightening, confronting and, after a while, completely boring. I have pointed what the offender’s mother said about the offender’s ability to interact socially and point out that he will have little reason to interact very much with others in the Corrective Services community, because he will have very little, if anything, in common with almost all of those who are currently serving a sentence of fulltime imprisonment. He will find his experience of incarceration harsh. He is an intelligent man: many of those with whom he will be incarcerated are not.

50. I have already referred to the fact that the offender has set in train efforts to rehabilitate himself, in particular the counselling which he has commenced with Mr Cornwell. Necessarily incarceration will interact that rehabilitation. However when he is released to parole he should have as much assistance as possible from Community Corrections to carry on anything he learns from courses etcetera in the custodial system to deal with his alcohol addiction problems and perhaps he may reach the view that he be better served not by giving up driving but by giving up drinking.

51. I have come to the view that the appropriate non-parole period should be one year and three months and the offender will then be entitled to be on parole for a period of one year during which will have the assistance of Community Corrections to assist him to rehabilitate himself again.

52. According to the pre-sentence report the offender is likely to benefit from a period of supervision by Community Corrections. The Community Corrections recommend that he complete the Sober Driver Program as a priority and also that he should undertake intervention during supervision by way of cognitive behaviour therapy based education or development exercises to address impulsivity, managing cravings and self-awareness. In other words to assist him dealing with his alcohol problem.

53. Mark Reay on the charge that on 16 March 2017 at Mount Ku-ring-gai you did drive a vehicle, namely a blue coloured Mitsubishi Lancer registered number AR-38NK when it was involved in an impact occasioning grievous bodily harm to Luke Towner and at the time of the impact you were driving the vehicle under the influence of intoxicating liquor in circumstance of aggravation, namely that you had in your blood the prescribed alcohol concentration of 0.216 you are convicted. I sentence you to imprisonment. I set a non-parole period of one year and three months, commencing on 20 June 2018 and expiring on 19 September 2019. I impose a further period of imprisonment of one year to commence upon the expiration of the non-parole period and expiring on 19 September 2020. The total sentence is therefore two years and three months, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. In passing that sentence I have taken into account the matter on the Form 1.

54. The back-up offences being sequence 2, sequence 3 and sequence 5 are all dismissed by consent.

55. At the request of the Crown the offender is disqualified from driving for a period of three years.

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Decision last updated: 13 December 2018