R v Stanyard

[2012] NSWDC 106

District Court

New South Wales

Medium Neutral Citation:

R v Stanyard [2012] NSWDC 106

Hearing dates:

31 May 2012

Decision date:

31 May 2012

Before:

Berman SC DCJ

Decision:

Convicted. Sentenced to an overall sentence consisting of a non-parole period of three and a half years and a head sentence of five and a half years.

The offender is disqualified from driving for 4 years.

Catchwords:

CRIMINAL LAW - Sentence after trial - Dangerous driving occasioning grievous bodily harm - Catastrophic injuries caused - Deliberate showing off

Cases Cited:

R v Jurisic (1998) 45 NSWLR 209
R v Whyte [2002] NSWCCA343; (2002) 55 NSWLR 252

Category:

Sentence

Parties:

The Crown
Christopher James Stanyard

Representation:

Mr C Everson - The Crown
MR K Dailly - The offender
Director of Public Prosecutions
Mainstone Lawyers - The offender

File Number(s):

2009/62492

SENTENCE

1. HIS HONOUR: On 25 May 2012 I convicted Mr Stanyard of two offences of dangerous driving occasioning grievous bodily harm. I delivered a judgment on that day which set out in some detail the circumstances of the collision which led to two young girls suffering serious injury, one catastrophically so.

1. I need not repeat what I said on that occasion beyond noting that I am satisfied beyond reasonable doubt that the offender deliberately drove his small Suzuki four wheel drive vehicle over a sand dune at a speed which caused it to become airborne. As it fell forward down the steep face of the sand dune it rotated until when it hit the sand at the bottom it rolled forward onto its roof.

1. As a result of that Ms Free suffered two broken arms. Ms Crawford was rendered a tetraplegic. Her mother read a victim impact statement to the Court today. The statement itself was tendered. It is easy to imagine the consequences of being unable to move from the neck down, but Ms Crawford's victim impact statement was an eloquent explanation of how her life had changed as a result of the offender's misconduct on 7 February 2009. No one would seriously challenge the suggestion that the injuries suffered to Ms Crawford, are in the worst category of grievous bodily harm.

1. She cannot even scratch herself when she feels any itch. She cannot give herself a drink. She cannot feed herself, brush her teeth or brush her hair. For obvious reasons she did not go into the indignities of daily personal care, but they too are easy to imagine. Her life has changed irrevocably as a result of what the offender did.

1. When she ultimately thinks about the sentence that I will impose upon the offender, she is entitled to respond by saying that that sentence is, as far as she is concerned, lenient, after all she might think she has been given a life sentence and in one sense that is true. But it is important to remember that I sentence Mr Stanyard according to the law. The maximum penalty for each of these offences is seven years imprisonment and that is reserved for offending in the worst category. Although, as I have said, the harm that Ms Crawford suffered is in the worst category of grievous bodily harm, it does not follow that the offence itself is in the worst category of offending, thereby deserving the maximum penalty of imprisonment appropriate to that offence.

1. I also sentence in accordance with authority, particularly the two guideline judgments issued by the Court of Criminal Appeal, R v Jurisic (1998) 45 NSWLR 209 and R v Whyte [2002] NSWCCA343; (2002) 55 NSWLR 252. It is to be noted that the very first guideline judgment issued by the Court of Criminal Appeal was for the offence of dangerous driving occasioning grievous bodily harm. That guideline judgment followed a series of, usually successful, Crown appeals which indicated that sentencing judges were not treating seriously enough offences of this type. The Court of Criminal Appeal in Jurisic and Whyte corrected what it held to be was an inappropriate sentencing regime. I will have something to say about the guideline judgments in a little while.

1. The offender is now twentyseven years of age, he was twentyfour at the time of his offending. He appears to have been a productive member of society. Evidence was tendered and he gave evidence himself of having been in full-time employment until I revoked his bail last Friday.

1. He has many family and friends in support of him today and he had support throughout the trial as well. His former partner, to whom he has a fouryear-old son, and his current partner, to whom he has a daughter a mere sixteen weeks of age, are present in Court today.

1. It is expected that his partner will have to give up her accommodation as a result of the offender being unable to assist in paying rent as he serves the inevitable full-time custodial sentence that I must impose upon him.

1. In common with almost every offender who has committed an offence of this type he expressed his remorse today. Of course he was correct when he said nothing was meant to come out like this. He did not intend to harm anyone. He certainly did not intend Ms Crawford to suffer the terrible injuries that she suffered, but that is almost universal in cases of this kind. Had he intended harm of course he would have been facing much more serious charges. And so when I think about the effect of the offender's expressed remorse, which I accept, it has to be remembered that in almost every other case of dangerous driving occasioning grievous bodily harm similar sentiments are expressed by the offender.

1. The offender did not plead guilty. Of course he is not to be punished for that but he does not receive a discount for the utilitarian benefit which a plea of guilty would have brought. The absence of a plea of guilty is also relevant when I consider the guideline sentences postulated in Jurisic and Whyte as I will shortly demonstrate.

1. The offender has a criminal history of not much moment, but also a traffic history. For someone still relatively young he has accumulated a significant number of offences. True it is as Mr Dailly pointed out, none of them are major offences but they are offences of some regularity. Even if I accept what Mr Stanyard said about two of the offences on his traffic history which show offences after 7 February 2009, the awful experience of that day has not persuaded Mr Stanyard to drive in a way which does not involve breaches of the road rules, and before that day as the Crown points out he has lost his licence on two occasions. Most people go through their driving history never losing their licences on a single occasion. The offender's traffic history does him no credit at all.

1. He is a young man and was of course younger at the time of this offending. In one sense the offence represents the foolishness of youth, the exuberance of young people and their failure to appreciate the consequence of what they are doing.

1. When I look at the offence in objective terms, even though the offender was travelling at a speed well in excess of a safe speed, I do not consider that objectively this offence is of the same gravity of other offending which involves high speed travel along the roadway. I will explain why.

1. A person who travels at a grossly excessive speed along a roadway must know from their experience of life and information they receive from various sources, that the chances of a collision involving serious injury or death are high. But no such information is widely known as to the consequences of driving over a sand dune at high speed. Perhaps if someone stopped to think about it, they might realise what might occur. But this sort of offence, as I have said, is committed in a way in which there is no calm reflection about the dangers which a particular course of driving carries.

1. For those reasons I do not regard this offending in the same category as those who travel at grossly excessive speed along the highway thus causing their cars to become airborne over a slight bump in the road.

1. I said that I would return to the guideline judgment cases. The typically recurring case is of a young offender with good character with limited or no prior convictions. The offender here was young but he did not have limited prior convictions insofar as that term relates to driving offences.

1. There were two people who suffered grievous bodily harm as opposed to the death or permanent injury to a single person postulated in the typically recurring case. Both Ms Free and Ms Crawford were effectively strangers to the offender and Mr Stanyard suffered limited injuries himself. He has expressed genuine remorse and as I mentioned earlier did not enter a plea of guilty, the typically recurring case being postulated on a plea of guilty of limited utilitarian value.

1. A number of aggravating factors were also suggested for consideration relating to the moral culpability of the offender.

1. I have mentioned repeatedly because of its importance in the sentencing decision the terrible injuries suffered by Ms Crawford. Mr Dailly concedes that it is an aggravating circumstance that more than one person was put at risk with Mr Stanyard driving over that dune with two girls in the back of his vehicle.

1. Mr Dailly also accepts, consistent with my earlier finding that the offender was showing off. This, I am satisfied beyond reasonable doubt, was not intended by Mr Stanyard to be a repeat of the cautious driving and descent observed by one witness earlier that day.

1. Mr Stanyard's passenger who got out of the car with Ms Free's camera intending to take a photo, was clearly intending and understood that Mr Stanyard would do something worth photographing. That is one of a number of circumstances which have led me to find beyond reasonable doubt that it was Mr Stanyard's intention that his vehicle become airborne, not in the manner that one might see in a Hollywood movie, but clearly in a manner which would have all four wheels leaving the surface of the sand. I am satisfied that Mr Stanyard was showing off and that that has led directly to Ms Free and Ms Crawford suffering grievous bodily harm.

1. Mr Dailly also accepts that Mr Stanyard ignored warnings. There were concerns expressed in the vehicle as to what was about to happen. He ignored those concerns. He ignored the fears of the more sensible people in the vehicle that day with terrible consequences.

1. It is conceded that there should be some partial accumulation to reflect the circumstance that more than one person suffered grievous bodily harm.

1. Sentencing in this type of case is always quite difficult because on the one hand we have enormous consequences for Ms Crawford and on the other hand we have an offender who in no way intended those awful consequences. I have to sentence the offender based on the results and also based on his moral culpability, but a person's moral culpability can still be high, even when they do not intend what occurred. This is such a case.

1. I sentence the offender as follows: For the offence involving Ms Free the offender is sentenced to imprisonment. I set a non-parole period of one year and a head sentence of two years to date from 25 May 2012.

1. For the offence involving Ms Crawford the offender is sentenced to imprisonment. I set a nonparole period of two and a half years and a head sentence of four and a half years to date from 25 May 2013.

1. The offender's non-parole period will expire on 24 November 2015 on which day he is eligible to be released to parole. The overall sentence consists of a nonparole period of three and a half years and a head sentence of five and a half years. The offender is disqualified from driving for four years from 25 May 2012.

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Decision last updated: 30 July 2012