R v Premdas - Rogers

[2016] NSWDC 338

District Court

New South Wales

Medium Neutral Citation:	R v Premdas - Rogers [2016] NSWDC 338
Hearing dates:	1 December 2016,
Date of orders:	09 December 2016
Decision date:	09 December 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is referred for assessment at to his suitability by way of an Intensive Corrections Order
Catchwords:	CRIMINAL LAW – Sentence – Drive a motor vehicle at a speed dangerous to other persons and cause grievous bodily harm - Causing bodily harm by misconduct while in charge of a vehicle – Driving with a mid-range PCA in blood – Unfamiliarity with vehicle – Abandoned responsibility as a driver – Exceptional hardship to others
Cases Cited:	R v Whyte [2002] NSWCCA 343
Category:	Sentence
Parties:	The Crown Stephen Paul Premdas-Rogers
Representation:	Counsel: Mr D Randle - Offender   Solicitors: Director of Public Prosecutions Armstrong Legal - Offender
File Number(s):	2015/81416

Judgment

1. While most sentencing decisions have a level of difficulty, some are harder than others. Perhaps the most difficult decisions in sentencing concern matters where there are powerful features of an offence, and an offender, pulling in opposite directions. This is such a case.

2. On top of that, in this case 2 people whom the offender has harmed through his criminal behaviour will undoubtedly be further harmed in the event that he is incarcerated. What the judge has to do is balance these competing considerations and come up with the most appropriate sentence, even if that sentence, in many respects, pleases no-one.

3. The offender is a house husband. One day when his wife was at work and he was home alone he had some wine to drink at lunch time. Then when he was preparing dinner he had some more wine. His wife arrived home around 6.00 pm. She was driving a high performance sports car which she had borrowed from a work colleague who was hoping to sell it to her. She was not too impressed with the car but wanted a second opinion from her husband. Despite the fact that he was significantly intoxicated and despite the fact that he was quite unfamiliar with the mode of operation of this car, he got behind the wheel, with his wife in the passenger seat, and his son in the rear seat, and went hooning down the road until what was probably inevitable happened. He lost control of the car. It crashed into a telegraph pole and the 3 occupants of the car were injured, his wife significantly so.

4. He now faces sentence for 3 offences: firstly driving a motor vehicle at a speed dangerous to other persons and causing grievous bodily harm; causing bodily harm by misconduct while in charge of a vehicle; and driving with the mid- range PCA in his blood. The maximum penalties are 7 years, 12 months and 9 months imprisonment respectively.

5. It was not too far between the offender’s home, from where the test drive began, and where the collision occurred. He first drove the car out of his driveway and travelled towards a roundabout a few hundred metres away. As he went around the roundabout onto Bobbin Head Road in Sydney’s north he suddenly accelerated. A number of residents saw the car travelling at high speed. This was in a residential area with a speed limit of 50 kph. It was the beginning of school holidays and there were a number of children about at the time.

6. The offender travelled at speed along Bobbin Head Road negotiating a number of curves along the way. He drove the car a significant distance in this manner until eventually he lost control, swerving from the correct side of the road to the incorrect side of the road and back again, fortunately missing a child on a bicycle, before the car eventually collided with a concrete culvert and then the telegraph pole I mentioned earlier.

7. The offender’s son crawled from the car and was tended to by local residents. The offender also crawled from the car and was treated at the scene. He had a conversation with a paramedic which, although he does not remember it, accepts that this is what he said,

“I was at home cooking dinner and drinking several glasses of wine, my wife arrived with a car to test drive and I got in the car to show her what it could do. I remember it fishtailing and next minute the rear stepped out and we hit the pole at high speed”.

The offender was of course himself injured. He remained in hospital for 2 weeks before being discharged.

8. The most significantly injured person was his wife. She suffered the amputation of the index and middle fingers of her left hand. She underwent surgery in the days after the collision and after being released from hospital.

9. The speed of the car is estimated to have been just under 95 kilometres an hour at the point where the offender first lost control. Significantly, that is at the very top of the speed range for the offence of dangerous driving occasioning grievous bodily harm, any higher and the offender would have committed the aggravated form of the offence exposing him of course to a higher maximum penalty.

10. The offender blames his unfamiliarity with the operation of the motor vehicle for losing control. I am prepared to accept that this may have made a contribution to the collision but I am certainly not prepared to accept that the offender’s unfamiliarity with the vehicle caused him to travel at high speed down Bobbin Head Road. Perhaps, just perhaps, his unfamiliarity with the vehicle, combined of course with his intoxication, caused him to lose control but the offender deliberately put himself in the position where he was liable to lose control because of the high speed at which he had been travelling beforehand.

11. I accept that it is very much against his character to have driven in such a dangerous manner. Remarkably, although he is now 53 years old and has held a licence in both New South Wales and the United Kingdom for many years, he has not incurred a single traffic offence. Further he does not have an interest in cars - he is apparently not the sort of person who would ordinarily get behind the wheel of a high performance sports car and see “what it could do”, but these were not ordinary circumstances. The offender was drunk with a blood alcohol level of .104. That is probably of itself enough to explain why the offender would drive in a way which was designed to exploit the capabilities of the high performance sports car or, as he told the paramedic at the scene to show his wife “what it could do”. The offender’s crimes were significant indeed.

12. There is no doubt that the offender had abandoned his responsibility as a driver: He had had a significant amount of alcohol; he travelled at high speed (although an element of the offence his speed was at the top of the limit for the non-aggravated form of the offence); he was driving an unfamiliar high performance sports car; he deliberately drove in a non-normal manner designed to test the car’s capabilities; and he drove in that way in what he knew to be a residential suburban area.

13. It is important to consider further the nature of the injuries suffered by his wife. She works as an endodontist. She was unable to work for 5 months following the collision then went back to part time work, but has been working full time from March 2015. Fortunately indeed, it appears that her career has not suffered now that it has resumed. Although in her work she is required to hold tools in both hands, her dominant right hand is more important and she has been able to adapt well to using the 2 fingers remaining on her left hand. I asked her whether she was embarrassed by the look of her left hand and she told me she wasn’t. She has made a remarkable recovery.

14. Their son, the victim in the offence of causing bodily harm by misconduct while in charge of a vehicle, suffered a fractured clavicle which was managed conservatively and he was released hospital the day after the collision. There is no evidence that he has suffered any ongoing problems at all.

15. I turn now to speak more about the circumstances of the offender himself. He is at presently significantly depressed. The evidence suggests that this is a response to 2 significant events in his life, namely the consequences for him and his family of his offending and secondly, although not in time or even importance, him having been diagnosed with chronic lymphocytic leukaemia. He is under the care of a haematologist who provided a report for the Court. That report suggests, as best anyone can determine, that it is likely that the offender will survive for more than 10 years. But that outlook can change at any time. It is not at all surprising that the offender, at 53 years of age, would be significantly affected by that prognosis.

16. The offender has taken those 2 major events very much to heart, so much so that he has expressed thoughts of suicide. The evidence suggests an increased risk of the offender taking his own life in the event he is jailed. Any family member hearing another family member express thoughts of suicide would be understandably highly concerned, but there is a particular poignancy in the case of the offender and his family. The offender’s wife lost her first husband, and the offender’s step-children lost their father, to suicide. It is of course an understatement to say that they are concerned that they might lose another husband or father in the same way. I am satisfied that the enormous distress which would be occasioned to the offender’s wife and children through him being incarcerated is such that the hardship that they would experience is exceptional and I can take it into account in determining the sentence to impose upon the offender.

17. In a real sense it has to be acknowledged that having been the victims harmed by his serious criminal behaviour, they would also be harmed by him being sentenced to prison for those crimes.

18. Of course the offender is remorseful. Unlike those who cause grievous bodily harm to a stranger he is reminded on a daily basis of the harm he has caused to his wife. Consistent with that remorse he offered to plead at an early stage to the offence of aggravated dangerous driving causing grievous bodily harm although the Crown did not accept that offer until 2 days after the trial was due to commence. In those circumstances the sentence will be 25% less than it would otherwise have been.

19. Mr Randle did not submit that the offender’s depression was causative of his offending. That was a concession appropriately made. The significant depression from which the offender suffered as a result of his diagnosis may explain his decision to drink but it does not explain his decision to drive let alone the manner in which he drove. The offender’s moral culpability is not significantly affected by his reaction to his diagnosis.

20. The offender’s moral culpability is high. He shouldn’t have been behind the wheel of any car that evening let alone a high performance sports car with which he was not familiar. He was too drunk to drive and should have known that. Somewhat remarkably (but I accept it nevertheless) the offender’s evidence was that he had no idea as to the blood alcohol level which a driver must be under before legally getting behind the wheel of a car. But when he and his wife went out and he was the designated driver he would have either no drinks or a single glass of wine. He well knew therefore the importance of not drinking a significant amount if he was going to drive and, the corollary of that, the importance of not driving if he had had a significant amount to drink.

21. He says that he had only 2 glasses of wine while preparing dinner on the night of his offence and that he did not feel that affected by the alcohol to the extent that he was unable to drive. I have significant difficulty in accepting both of those propositions, indeed I reject them. The one objective thing we know is the offender’s blood alcohol level was .104. It is difficult to see how even 2 large glasses of white wine could get him to that level and it is even more difficult to see how the offender could claim that he did not think that he was affected by alcohol. Certainly he was not so drunk that it was obvious to his wife, but I am going to sentence the offender on the basis that he had more to drink than he has been telling us and that he well knew that he was affected by that alcohol when he got behind the wheel, even if he did not know that it was illegal for him to drive with that much alcohol in his system.

22. As I have noted the offender, having harmed 2 people, relies on the fact that they will be further harmed if he is sent to gaol as a reason that he should not be sentenced to full time imprisonment. I should say something more about this. Often times victims of offending are able to forgive the offender and on occasions even express a desire for leniency. However the law is, for understandable reasons, that such forgiveness is irrelevant to the sentencing process. Just as calls by victims for harsh sentences are to be ignored so are calls by victims for lenient sentences to be ignored. The Court has a wider responsibility than simply reflecting a victim’s wishes. In cases such as the present, courts need to impose sentences which deter others from acting in this dangerously criminal way. Thus, although I accept the awful position that the offender’s wife and children are in, that is only one of a large number of considerations which will determine the sentencing outcome in this case.

23. It is as well to remember some of the history concerning sentencing for offences of this type. The very first guideline judgment issued in New South Wales was for an offence of dangerous driving occasioning grievous bodily harm, one of the offences for which the offender must be sentenced. That guideline judgment came about as a response to a series of Crown appeals, usually successful, where sentencing judges at first instance imposed sentences which failed to reflect the seriousness of the offence and the harm it was capable of causing.

24. Let me turn then to the frequently recurring case postulated in the revised guideline judgment of R v Whyte [2002] NSWCCA 343. This was not a young offender but he was previously of good character. As far as this offence is concerned, there was permanent injury to a single person, the injury to the young boy being covered by separate offence. The victim was not a stranger to him and, as I have already mentioned he is reminded of what he has done to his wife on a daily basis. Although the offender was in hospital for some time there is no evidence of any ongoing consequences to him from the injuries he suffered. Consistent with the relationship between the offender and his victims he suffers genuine remorse and as I have noted earlier his plea of guilty was of more than limited use and utilitarian value.

25. As Mr Randle conceded this was not a case of momentary inattention or misjudgement. Further for the reasons I have identified this is not a case where the offender had a low level of moral culpability. Mr Randle concedes that a sentence of imprisonment must be imposed. I agree with that concession.

26. I turn then to decide the length of the sentence of imprisonment to impose upon the offender. For the most serious offence, dangerous driving occasioning grievous bodily harm I am satisfied that it is likely to be 2 years or less. For the other offences it must necessarily be so.

27. That brings me to the question as to how that sentence should be served. There is but a single circumstance which is of sufficient importance to persuade me that a full time custodial sentence may not necessarily be required. That is the consequences for the offender’s family of him being incarcerated. That is the only reason that the offender may not go to gaol.

28. I am going to say things even more bluntly. Had it not been the case that the offender’s wife’s first husband had committed suicide I would have imposed a full time custodial sentence today. I mentioned earlier that the consequences for the offender’s family of him being incarcerated do not prevent me from imposing a sentence which does not reflect their wishes.  That remains the case but it does not mean that I am not going to take their terrible position into account. When I do that I am prepared to moderate the sentence I would otherwise have imposed upon the offender. I repeat, this is not because of anything to do with the offender, but is everything to do with his family.

29. I will not formulate the actual sentences for the offences beyond noting that given that I have taken into account the offender’s intoxication in determining the sentence for the dangerous driving occasioning grievous bodily harm offence it would be quite wrong for me to double count by imposing significant additional punishment for his drink driving offence.

30. I am satisfied that if suitable the offender to be entitled to serve his custodial sentence by means of an Intensive Corrections Order. I therefore adjourn this matter until a date to be determined and order that he be assessed as to his suitability to serve his sentence by means of an Intensive Corrections Order

**********

Decision last updated: 09 December 2016