R v Sams

[2023] NSWDC 113

District Court

New South Wales

Medium Neutral Citation:

R v Sams [2023] NSWDC 113

Hearing dates:

24 February 2023

Decision date:

03 March 2023

Jurisdiction:

Criminal

Before:

Coleman SC DCJ

Decision:

Full time custodial sentence. For orders, see [89].

Catchwords:

SENTENCING – Relevant factors on sentence – Dangerous driving occasioning grievous bodily harm – Objective seriousness – Moral culpability – Level of intoxication

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Road Transport Act 2013 (NSW)

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146

Bugmy v The Queen (2013) 249 CLR 571

R v Whyte (2002) 55 NSWLR 252

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Daniel Sams (Offender)

Representation:

Counsel:
Mr J Stanhope (Crown)
Mr S Bouveng (Offender)

Solicitor:
ODPP (Crown)
Michel & White Lawyers (Offender)

File Number(s):

2022/00006550

JUDGMENT

1. The offender, Daniel Sams, is to be sentenced today for the following two offences to which he has pleaded guilty:

1. The first offence is of causing bodily harm by misconduct in charge of a motor vehicle, contrary to s 53 of the Crimes Act 1900 (NSW) (‘Crimes Act’), being sequence 2. This offence carries a maximum penalty of two years imprisonment with no standard non-parole period.

2. The second offence is of dangerous driving occasioning grievous bodily harm, an offence under s 52A(3)(c) of the Crimes Act, being sequence 7. The maximum penalty for this offence is seven years imprisonment and there is no standard non-parole period for this offence.

2. In relation to the s 52A(3)(c) offence, the offender asks that one matter be taken into account on a Form 1, namely the offence of failing to stop and assist a vehicle after impact causing grievous bodily harm, contrary to s 52AB(2) of the Crimes Act, being sequence 3. The maximum penalty for that offence is seven years imprisonment.

3. The offender pleaded guilty to the offences at the earliest opportunity and is thus entitled to a 25% discount on any sentence imposed to reflect the utilitarian value of the plea.

Facts

4. There are agreed facts for the sentence. I will refer to the relevant factual matters, but I have had regard to the whole of the agreed facts.

5. On the afternoon of 8 January 2022, the offender mowed his lawn before consuming one mid-strength Great Northern beer. He then attended a friend’s residence where he consumed two more mid-strength Great Northern beers, before attending the Kootingal Pub. At the pub he consumed three bourbons and Cokes, mixed at the bar. Whilst at the pub, police attended and he was observed by Senior Constable Gill with a drink in his hand. The offender had not consumed any food on 8 January 2022.

6. At some point the offender’s partner attended the pub, following which she and the offender had an argument. At approximately 11pm, the offender entered the driver’s seat of a white Toyota Echo sedan, New South Wales registration plate DB-62-TG, which was registered to his partner. The offender was the only person in the car.

7. The offender left Kootingal Pub and drove back toward Tamworth, travelling alone Porcupine Lane, Daruka Road and Johnston Street, from which he then turned right into Peel Street, travelling north toward the suburb of Oxley Vale. At this time, the offender estimates he was travelling at around 50 to 60 kilometres per hour.

8. The victims in this matter are Johnathon Haines, aged 31 years, and Brydie Smith, aged 28 years. At approximately 11.30pm, Smith and Haines were walking in a northerly direction along Peel Street, Tamworth. Smith was walking in the gutter and sometimes on the footpath. Haines was walking between the gutter and the fog line on the road, pushing his bike on his left side.

9. The collision between the two victims and the vehicle the offender was driving occurred approximately 100 metres south of the Yarmouth Parade intersection. The speed limit for that section of the road is 60 kilometres per hour. At the time of the collision the roadway was dry, the weather was clear and warm, and there was street lighting on the western side of the road. There were not many other cars on the roadway.

10. Whilst approximately 100 metres south of Yarmouth Parade, the offender’s vehicle travelled onto the incorrect side of the fog line and the front passenger side of the vehicle collided with Mr Haines, causing him to heavily impact the vehicle bonnet and windscreen before being dragged a number of metres and landing in the gutter. His bike was dragged by the vehicle and landed 18 metres away, significantly damaged.

11. The collision also impacted Ms Smith, causing her injuries. She remembers seeing something white and then being woken up by a lady. She noticed blood on her hands and that she was in pain, and she saw Mr Haines gasping for air.

12. Following the collision, the offender did not stop and he drove to Alexandra Street, where he parked his car. He then walked back to the collision site and spoke to a witness, Mr Aldridge, who was assisting and giving first aid to Mr Haines. At the time, the offender was holding a stubby holder with a can in it. Mr Aldridge thought the offender may have been affected by alcohol. The offender asked Mr Aldridge if he could give the offender a lift into town, which Mr Aldridge refused.

13. At the time police arrived on the scene, they observed Mr Haines lying face down on the road with a large laceration to his head. They observed Ms Smith hysterically crying and covered in blood with abrasions to her face and her arms.

14. After being identified as a person of interest, the offender was approached by police, cautioned and had a conversation with them which was captured on body worn video, during which he repeatedly denied being the driver of the vehicle and saying he was in the back seat. Police observations led them to conclude that he was intoxicated. He was at times slurring his speech, was unsteady on his feet and smelt like liquor.

15. He was placed under arrest and conveyed to Tamworth Base Hospital for blood and urine samples to be obtained. He was then taken to Tamworth Police Station and handed into custody. The offender was spoken to by the custody manager who observed him to be well affected by alcohol. The offender’s breath smelt strongly of alcohol, he was unsteady on his feet, his eyes were glazed, and he appeared to be unable to focus his vision. His speech was slurred and he was speaking incoherently.

16. Due to what police perceived to be his level of intoxication, he was put into a time out. Once he was deemed no longer intoxicated by the custody manager the next morning at 9am, he participated in an electronically recorded interview in which he admitted to driving the vehicle. He stated he had seen the pushbike. He thought he may have just clipped the bike. He went and parked the car and then walked back to the accident site. He said he could not see anything, so he continued walking past where the accident occurred and almost reached the shop. He then heard emergency sirens, and so returned to the site.

17. As a result of the collision, Ms Smith suffered grazes to her face and the left side of her body and knee. Mr Haines has been diagnosed with severe traumatic brain injury. He remains an in-patient at the Royal Rehabilitation Brain Injury Unit at the Royal Rehabilitation Hospital in Ryde. His stay has been characterised by poor levels of alertness and interaction - inconsistently verbalising or showing some interaction. Mr Haines has recurrent respiratory aspiration related infections due to poor swallow and poor salivary control.

18. Mr Haines requires intragastric tube feeding and remains dependent in all self-care and hygiene. He is not able to mobilise, other than in a wheelchair motorised by another person. Transfers for toileting or from bed to chair require the use of a hoist and two carers.

19. His treating doctor, Dr King, opines that the outlook for Mr Haines’ functional recovery is guarded, with Mr Haines likely to have a similar level of function and be dependent upon self-care for the foreseeable future. He said the current respiratory infections and poor airway protection due to the brain injury are a threat to Mr Haines’ longevity.

The R v Whyte Guideline Judgment

20. In R v Whyte (2002) 55 NSWLR 252, there is a guideline judgment for offences of dangerous driving under s 52A of the Crimes Act. There is no dispute as to its application in this case. In the judgment, the Court said (at [204]):

“A frequently recurring case of an offence under s 52A has the following characteristics:

(i) Young offender.

(ii) Of good character with no or limited prior convictions.

(iii) Death or permanent injury to a single person.

(iv) The victim is a stranger.

(v) No or limited injury to the driver or the driver’s intimates.

(vi) Genuine remorse.

(vii) Plea of guilty of limited utilitarian value.”

21. Where the offence is of the character described above, Spigelman CJ, with whom the other members of the Court agreed, said (at [214]):

“A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment.”

22. The Chief Justice further stated that in relation to offences against s 52A(1) and (3), in the “typical case” (at [229]):

“Where the offender’s moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.”

23. A number of factors were identified by the Chief Justice which aggravate the objective seriousness of an offence under s 53A (at [216]-[217]), being,

1. The nature and extent 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. Length of the journey during which others were exposed to risk.

8. Ignoring of warnings.

9. Escaping police pursuit.

10. Failing to stop.

24. Counsel for the offender accepts that the Whyte guideline applies to the offending as follows:

1. The offender is 38 years old.

2. He has prior convictions.

3. The offending caused permanent injury to a single person.

4. The victim was a stranger and is a stranger.

5. There was no or limited injuries to the offender.

6. He has shown genuine remorse.

7. He has entered an early guilty plea.

25. In terms of aggravating factors identified by the Chief Justice, counsel for the offender submits that the following may be relevant to his conduct:

1. Factor 1: the extent and nature of the injuries inflicted, being significant grievous bodily harm. The Crown submits, and the offender accepts, that the injuries caused to Mr Haines are at least towards the top end of the range for grievous bodily harm.

2. Factor 2: the number of people put at risk was two pedestrians. The Crown also submitted that, whilst the potential risks were not realised until the collision, other road users were put at risk by the offender on his drive from the Kootingal Hotel to Tamworth and I will refer to this issue further.

3. Factor 7: the length of the journey, being 19 kilometres from Kootingal to Oxley Vale and I will also refer to this issue further.

4. Factor 10: failing to stop.

26. The Crown submitted an additional aggravating factor was present in the offender’s conduct, being the degree of intoxication or of substance abuse. The Crown submits that the Court should find that there was some impairment of the offender’s ability to drive, although the level of intoxication and degree of impairment was unable to be determined, and I will deal with this matter in more detail.

27. I should note that the factors in the guideline judgment are not a checklist, but merely are to describe a typical case. They do not circumscribe my sentencing discretion. Further, the sentence noted in the guideline judgment is not a starting point or prescriptive, but merely a guidepost or reference for me as the sentencing judge.

Objective Seriousness

Dangerous Driving Offence

28. In terms of objective seriousness for the dangerous driving offence, I agree with the Crown’s submissions that the assessment of the objective seriousness of the offender’s conduct involves a consideration of the background to the incident and a number of issues which are not straightforward.

29. I am conscious that if I am to make any findings adverse to the offender, I must be satisfied beyond reasonable doubt of the facts which support that finding.

30. The most difficult aspect of the matter involves the Court making an assessment of the impact, if any, of the offender’s consumption of alcohol prior to the events the subject of the charges. The Crown submits that there should be some finding he was affected by alcohol at the time of the collision. The offender’s counsel submits that no finding can be made that he was affected by alcohol such that his driving was impaired so that this would be an aggravating factor.

31. As can be seen from the agreed facts, it is clear that the offender did consume alcohol but not food on the afternoon and into the night of 8 January. The agreed facts disclose that he consumed three mid-strength beers and three bourbon and Cokes. However, there was no timeframe specified over which he consumed those drinks. I do not know if he consumed any other drinks.

32. The facts note that Senior Constable Gill observed him with a drink in his hand at the pub, but I do not know if that was one of the bourbons that the facts refer to.

33. The facts also state that after the collision the offender walked back to the site and spoke to Bryce Aldridge. At that time, the offender was holding a stubby holder with a can in it, although it is not stated whether this was an alcoholic drink. Mr Aldridge thought that the offender may have been affected by alcohol.

34. The collision was at approximately 11.30pm. The offender was arrested at some time later that night or early the next morning. It is unclear exactly when he was arrested. There is some suggestion in the materials it was about 12.05am on the 9^th, but I cannot find that as a fact.

35. The agreed facts also state that the offender told the police that some time that day, it is not stated when, he bought a carton of Great Northern beers at the Liquorland on White Street and took a six pack of those beers to his friend’s place. I infer this was before he went to the pub when he had two Great Northern beers at his friend’s house.

36. The agreed facts state that when the offender was arrested, he was observed to be intoxicated. As I said, he was taken to the Tamworth Base Hospital for blood and urine samples to be obtained. He was then taken to the Tamworth Police Station and it was considered that he was, at that time, intoxicated. He was, therefore, put in a time out for observation until the morning, when he was then interviewed.

37. At the interview, as I have said, he admitted taking the alcohol that I have described above. Amongst other things, after the collision, he called his partner and said, “I think I’ve messed up”.

38. The Crown submits that all of the matters that I have referred to relating to the consumption of alcohol by the offender prior to the collision allow a finding that he was impaired by alcohol. The Crown accepts, however, that there is no evidence as to the offender’s tolerance of alcohol or the effect of the consumption of alcohol on that day had on his driving ability.

39. As I have observed, before I can make a finding that the consumption of alcohol, of itself, was such that it affected and impaired the driving of the offender at the time of the collision such that it is an aggravating factor which would increase his moral culpability, I must be satisfied of that matter beyond reasonable doubt.

40. The matters that I have referred to are not sufficient for me to make such a finding. I have no doubt that the offender was affected by alcohol to some extent when he was driving, but I cannot find beyond reasonable doubt, however, that at the time he collided with the victims his driving of the vehicle was impaired by the consumption of alcohol alone.

41. I have taken into account the agreed facts that at the time he was arrested and taken to the Tamworth Police Station he was observed to be intoxicated. However, that was some time after the accident and there is evidence that he may have been drinking after the collision and before his arrest, when he was observed at the site with a stubby holder with a can in it. Whilst I cannot find that the can contained alcohol, it is possible it did. It is also possible he had other drinks from the carton of beers he had purchased.

42. The absence of a finding that he was affected by alcohol so as to impair his driving ability at the time of the accident does not mean that alcohol had no role to play. It is accepted by the offender that the dangerous nature of the driving engaged in by him at the time of the collision was that he got into the car in a highly charged emotional state after the fight with his partner at the pub at Kootingal.

43. This is consistent with what he told the psychologist, Dr Sidhu, who reported that the offender had told her that after the fight with his partner he was so frustrated that he “just got into the car and drove off”. He said that he was unable to think clearly, due largely to his emotional state, and his decision making, consequential thinking skills and judgment skills were impaired as a result.

44. He told the psychologist that although he had been drinking, he was not drunk and not driving at speed and thus believes his emotional state was the biggest factor in his offending.

45. The concession by counsel for the offender with respect to the nature of the dangerous driving has two consequences. First, it means that, as the Crown submits, having had alcohol and being at least affected to some extent by that alcohol then getting into the car being so emotionally charged after the fight with his girlfriend and choosing to drive in that state is a matter that, in my opinion, increases his moral culpability.

46. As will be described when I deal with the subjective matters, he has had a history of difficulty managing his emotional problems and with the consumption of alcohol. He should have known that he should not have gotten into the car, having had some alcohol and being in the highly charged emotional state he was.

47. I accept the Crown’s submission in this regard that whether his driving was impaired by reason of alcohol or the level of his emotional state or both does not really matter. The fact is that he chose to drive in this state with the resultant disastrous consequences.

48. The second consequence is that he put others at risk when he was driving in this state. He drove, as I said, from Kootingal towards Oxley Vale, a distance of some 19 kilometres. This put others travelling on the road and around the roadways at that time at risk and, thankfully, not many persons were on the road at the time.

49. As counsel for the offender accepted, an important part of assessing the objective gravity of an offence of this type is, in effect, a result-based consideration of the level of the injuries. I have already noted that the level of the injury to the victim, Mr Haines, of this offence is at the very high end of grievous bodily harm.

50. I should also note that one of the matters considered relevant in the guideline judgment is whether the offender failed to stop. Because I am to take this matter into account on the Form 1 for the dangerous driving offence, being the sequence 3 offence of failing to stop and assist after the vehicle impact causing grievous bodily harm, I will not take the failure to stop and render assistance into account as an aggravating factor within the meaning of the guideline judgment. However, it will be relevant in the sentencing synthesis in accordance with the principles of sentencing, having regard to the Form 1 matters. That is, whilst he will not be sentenced for that offence, it will increase the penalty for the dangerous driving offence.

28. In relation to the Form 1 matter, the circumstances of the offending are, in my opinion, serious. The offender left the accident scene, engaged with others who went to assist and even asked one of them for a lift into town. He then left the area again until he was apprehended by the police. At that time, he gave false information to the police, including that he was not the driver. Even the next morning, when he was interviewed by police at Tamworth Police Station, he said that he thought he may have just clipped the bike. I do not accept that was a truthful statement.

29. He must have understood from the damage to his vehicle and from his observations when he returned to the scene before he was arrested that there had been a significant accident and serious injuries caused to the victims.

30. In all of the circumstances, it appears to me that the dangerous driving causing grievous bodily harm offence is a serious example of an offence of this type. I do not find, however, that any aggravating factors noted in the guideline judgment are present so as to warrant a finding that there has been an abandonment of responsibility by the offender in his driving. Nor can I find that the accident was only a result of momentary inattention. The offender’s conduct which I have outlined and his moral culpability in this case fall somewhere in between those two extremes.

Cause Bodily Harm by Misconduct Offence

54. In terms of the cause bodily harm by misconduct offence, I accept that the circumstances of this offence were significantly less serious than the dangerous driving offence. Whilst I do not mean, in any way, to downplay the injuries caused to Ms Smith, objectively they were superficial compared to the traumatic, permanent injuries caused to Mr Haines.

Aggravating/Mitigating Factors

55. As to aggravating and mitigating factors, the defence submits that there are no applicable aggravating factors as found in s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSPA’). The Crown did not submit otherwise.

56. The defence submits the following mitigating factors apply:

1. The offence was not part of a planned or organised criminal activity: s 21A(3)(b), CSPA. I accept that this might be so, but I would not regard it as being of much significance by way of mitigation.

2. The offender pleaded guilty to the offence: s 21A(3)(k), CSPA; and

3. He has shown remorse: s 21A(3)(i), CSPA.

57. The Crown accepts the offender’s early plea of guilty and expressions of remorse are relevant to the sentencing exercise, however submitted that they are also characteristics of the typical case identified in Whyte and, therefore, factored into the guideline sentence.

58. I observe that the offender does have a record of previous offences, although, for the most part, they involve offending not related to the current type of offences. There are some driving matters, most notably a mid-range PCA offence in 2020, for which the offender received a conditional release order without conviction.

59. Whilst I do not regard his record as a matter of aggravation or of significant concern, the PCA offence is reflective perhaps of a developing pattern, evidenced by these offences, of poor decision-making by the offender prior to him getting behind the wheel of a motor vehicle.

Subjective Features

60. In terms of subjective circumstances of the offender, I have been provided with a psychological report of 15 November 2022, prepared by Dr Sidhu. I will not detail all of the matters in that report but list the salient subjective matters relevant to my considerations.

61. The offender is currently 38 years of age. He reported to Dr Sidhu that he was exposed to domestic violence between his mother and stepfather and expressed that he did not always feel safe in his home. He stated that his mother and stepfather both abused drugs and alcohol and stayed up for days on end. This impacted the level of care they were able to provide, and he described feeling unprioritized. He reported that neither his mother nor stepfather worked, and the household relied on welfare support.

62. Due to the lack of structure and difficult family dynamic, the offender moved in with his maternal aunt at the age of 12, with whom he was also residing immediately prior to his current period of incarceration. He reported that this was a positive experience and that she was loving and attentive, but that he returned to the care of his mother at the age of 15. He then spent a period of time going back and forth between the care of his mother and his aunt.

63. Dr Sidhu opined that the offender’s “disrupted childhood resulted in a deprivation of healthy coping skills, particularly in relation to his emotional regulation and his interpersonal effectiveness”.

64. In regard to drug and alcohol use, the offender reported to Dr Sidhu that around the age of 30, he began utilising alcohol to cope with the sudden loss of his infant daughter and to numb his emotional pain. He described drinking in a binging manner, often exceeding 15 drinks at a time. He stated that he was currently abstinent, owing to the conditions of his bail, but also to the recognition that alcohol had historically led to poor decision-making, including violence with his partner and the events the subject of the charges. He also reported that he had been engaging with a drug and alcohol counsellor.

65. Mr Sams also provided a history of recreational amphetamine use from the age of 17, which escalated around the age of 26. However, he states he has not used amphetamines since 2013 and denied the use of other drugs.

66. In regard to the offending conduct currently before the Court, Dr Sidhu reported that the offender expressed genuine remorse regarding the decisions he made that night. He acknowledged the long-term impact of Mr Haines’ injuries, including the impact on his family, and stated that he is devastated to have caused such hurt and pain.

67. Dr Sidhu did not find that the offender meets the criteria for a recognised psychiatric illness. However, she noted that his offending occurred in the context of poor coping skills and reliance on alcohol to manage stressors. She recommends the offender be referred to an EQUIPS Addiction Program and psychological intervention to improve emotional regulation without reliance on alcohol.

68. In terms of protective factors available to the offender, Dr Sidhu referred to professional mental health treatment, his motivation to recommence employment and the support of his family.

69. It was not submitted by the offender’s counsel that there was anything in the report which would justify a finding of a causal link of any mental or psychological condition suffered by the offender to the offending conduct so as to reduce his moral culpability. It was submitted that the circumstances outlined by the psychologist support a finding, albeit perhaps more limited than other circumstances, that the offender suffered a deprived background so as to engage the principles enunciated by the High Court in Bugmy v The Queen (2013) 249 CLR 571, which would reduce his moral culpability.

70. Counsel for the offender also submitted that the matters raised by Dr Sidhu support a finding of special circumstances.

Moral Culpability

71. As to moral culpability, the matters that I have highlighted above relevant to the factors in the guideline judgment and to the objective circumstances of the offending and its gravity indicate that the moral culpability of the offender is aggravated by the matters I have raised with respect to the dangerous driving offence and impacted by his psychological state at the time he drove and the distance he travelled, putting others at risk. His moral culpability is otherwise not mitigated in any significant degree.

72. Whilst there is some support for a Bugmy-type finding, I do not think the material before me enables a finding that the circumstances of the offender’s upbringing were such that it could be said that his moral culpability should be reduced, such that the principles of specific and general deterrence could not remain significant in the sentencing exercise that I have to undertake.

Special Circumstances

73. As I have noted, counsel for the offender submitted that the Court should find the following factors give rise to a finding of special circumstances for the purposes of varying the statutory ratio in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW):

1. It is the offender’s first time in custody;

2. The need for close supervision upon release to assist the offender with managing his anxiety, alcohol rehabilitation and dialectical behaviour therapy; and

3. The harshness of conditions in gaol in 2022, owing to the COVID-19 pandemic.

74. I accept there should be a finding of special circumstances in this case for those reasons. In particular, it is clear from Dr Sidhu’s report that the offender may need some assistance with treatment for his inability to control his emotional responses, anxiety and his alcohol consumption. A longer time under supervision and on parole will assist him in obtaining the treatment, rather than it being undertaken in custody.

Sentencing Principles

75. I have had regard to the sentencing principles in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). In particular, in this case specific and general deterrence are of importance. Offences of this type are properly regarded as being most serious. Driving on our roads is a privilege and those who exercise that privilege must be aware that if they choose to drive, or because of some impairment do drive, in a manner that is dangerous to others, with resulting injury to those others, they will receive condign punishment.

76. No sentence I impose can undo what happened on the night of the collision or adequately reflect the terrible harm caused to Mr Haines. He remains, as I have said, most likely permanently impaired to a significant degree, relying on others to assist him in the most basic of human activities. I am, however, conscious of the purposes of the sentencing in making the offender accountable for his actions and to recognise the harm done by way of offending to the victim and the community.

77. I have had read to me today a victim impact statement from the mother of Mr Haines. I acknowledge the trauma that has been caused to Mr Haines and his family and the ongoing impact that the consequences of the offending will have on them.

78. I must also have regard to the principles of rehabilitation. The psychologist material indicates, as I observed, that the offender has expressed significant and genuine remorse for his actions. I regard his prospects of rehabilitation as good. I do not have any reasons to think that he is at a high risk of reoffending.

79. I have also had regard to the comparable sentences from the authorities provided to me by the parties. I have also been provided with sentencing statistics by each party for these types of offences. I am conscious of the limitations as to the use of those comparators. I accept that such decisions are important in being guideposts, so there is consistency in sentencing. However, they are not prescriptive and cannot account for the factual and subjective differences from case to case.

80. The offender has been in custody for this offending since he was bail refused on 16 November 2022. He has spent an additional day in custody when he was arrested. As such, as I have said, the sentence will be backdated to commence on 15 November 2022.

81. I must also have regard to the principles of totality. I am sentencing the offender for two offences committed at the same time and arising out of the same facts and circumstances.

82. The circumstances of the offending, as I have referred to above, and the subjective matters I have stated lead me to the conclusion that, with respect to the dangerous driving offence, the s 5 threshold has been crossed and no other sentence other than one of full-time imprisonment is appropriate.

83. With respect to the misconduct while driving cause bodily harm offence, counsel for the offender submitted that the s 5 threshold had not been crossed. He submitted that ordinarily, if this was a standalone offence, it would have been dealt with summarily and a community-based order perhaps imposed.

84. Although I think it is borderline, I do think the circumstances I have recounted mean that the s 5 threshold has been crossed for this offence. Whilst the injuries to Ms Smith were not significant, the circumstances of the offender driving and causing those injuries was serious and require appropriate punishment and to signal specific and general deterrence.

85. I will, however, impose a sentence of imprisonment which is to be served wholly concurrently with the sentence for the dangerous driving offence.

86. With respect to the matter on the Form 1, I have had regard to this matter in setting the penalty for the dangerous driving offence, noting that this would impact on the sentence for that count by way of considerations of specific deterrence for the primary offence and retribution for that offence. These two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. I am not, however, imposing a sentence on the offender for the Form 1 offence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146, per Spigelman CJ.

87. I will also be disqualifying the offender from driving. I note that since the offending he has handed in his licence and not driven at all. Whilst the handing in of his licence had no legal effect, he has, in reality, spent 12 months off the road already, and I will take this into account in setting the period of disqualification: see s 206B, Road Transport Act 2013 (NSW).

88. The automatic period of disqualification is 3 years and the minimum period is 12 months. I note that the period of disqualification will commence on the date of conviction, although, as he is to receive a sentence of full-time imprisonment, the period of disqualification will be extended for the time he is in custody: s 206A, Road Transport Act 2013 (NSW).

Sentence

89. Mr Sams, for the offences for which you have pleaded guilty, you are convicted.

1. For the offence of cause bodily harm by misconduct in charge of motor vehicle, I sentence you to a fixed term of imprisonment of four months.

2. For the offence of dangerous driving occasioning grievous bodily harm, and taking into account the matter on the Form 1, I sentence you to a non-parole period of 14 months. I set a balance of term of seven months. This reflects the total sentence of one year and nine months after the 25% discount and a sentence of two years and four months before the discount.

3. The sentences will each commence on 15 November 2022. The first date you will be eligible for release to parole will be 14 January 2024 and the balance of term expires on 14 August 2024.

4. Each of the sentences is to be served concurrently.

5. I disqualify you from driving for a period of 12 months for each offence.

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Decision last updated: 24 April 2023