R v Stuart John Innes

[2009] NSWDC 345

CITATION:	R v Stuart John INNES [2009] NSWDC 345
HEARING DATE(S):	16/11/09, 17/11/09, 18/11/09
JUDGMENT DATE:	18 November 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	H38411587 - 002 Convicted: Sentenced to a term of imprisonment - non parole period being 1 year and 11 months to commence 18/11/09 and to expire 17/10/2011. The balance of the sentence being 1 year and 1 month to expire 17/11/2012. Total sentence of imprisonment is 3 years. Eligible for release to parole on 17/10/11. H38411587 - 001 Convicted: Sentenced to a term of imprisonment - non parole period being 1 year and 2 months to commence 18/08/2010 and to expire 17/10/2011. The balance of the sentence being 1 year and 10 months to expire 17/08/2013. Total sentence of imprisonment is 3 years. Eligible for release to parole on 17/10/2011. In respect of each matter - Disqualification period of driver’s licence of 4 years to commence 06/12/08 and expire on 05/12/2012. I find special circumstances. s166 backup charges – H38411587 – 003, 4, 5 & 6. withdrawn, dismissed.
CATCHWORDS:	CRIMINAL LAW - sentencing - aggravated dangerous driving occasioning grievous bodily harm - driving whilst under the influence of intoxicating liquor
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Thomson and Houlton v R (2000) 49 NSWLR 383 R v Wong (2001) 207 CLR 584 R v Whyte [2002] NSWCCA 343 R v Jurisic 45 NSWLR 209 R v Henry (1999) 46 NSWLR 346 Veen (No 2) v The Queen (1988) 164 CLR 365 R v Carruthers [2008] NSWCCA 59 Brooks v R [2009] NSWCCA 265 R v Daetz [2003] NSWCCA 216 R v Allpass[1993] 72 ACrimR 561 R v XX [2009] NSWCCA 115
PARTIES:	Regina Stuart John Innes
FILE NUMBER(S):	2009/66889001
COUNSEL:	Mr Carty - offender
SOLICITORS:	Mr P Woods - Director of Public Prosecutions

SENTENCE

1 HIS HONOUR: Stuart John Innes appears today for sentence in relation to two offences to which he pleaded guilty at the Local Court and in this Court. The offences are each contrary to s 52A(4) Crimes Act (1900) and they each carry a maximum penalty of eleven years imprisonment. There is no standard non-parole period in relation to those offences. Each offence was committed at the same time and arose out of the same course of conduct.

2 The offences respectively allege that the prisoner, on 6 December 2008 at Woolgoolga, drove a motor vehicle, to wit a Toyota Hilux four-wheel drive utility, registered number XJX 337, when it was involved in an impact occasioning grievous bodily harm to John McGuire and at the time of the impact, he was driving the vehicle under the influence of intoxicating liquor, in circumstances of aggravation, to wit, he had in his blood the high range prescribed concentration of alcohol. The reading was in fact 0.233 grams of alcohol, per hundred millilitres of blood, when a blood sample was taken from the prisoner sometime after 1am on the morning of 7 December 2008.

3 The second offence alleges the same particulars and is expressed in the same terms but alleges against the prisoner that his impact occasioned grievous bodily harm to Susan Kinder.

4 As I said, the prisoner pleaded guilty to those offences at the Local Court and continued his pleas of guilty in relation to those matters at this court. Having regard to the submissions of the parties and my assessment of the matter and, given the history of the matter, as kindly provided to me by the learned Crown Prosecutor, I propose to provide the prisoner with a discount of twenty-five per cent upon the otherwise appropriate sentence, in accordance with the guideline judgement, of the Court of Criminal Appeal in Thomson and Houlton (2000) 49 NSWLR 383, to recognise the utilitarian value of the pleas of guilty. The prosecution of the matter was not without some complication and I accept that the offender pleaded guilty at the first reasonable opportunity after the full brief had been served upon him.

5 The evidence in the case comprises the Crown bundle, including a statement of facts, criminal history and traffic history of the offender, a plan of the collision site, various photographs showing the state of the vehicles after the collision and the intersection in daylight and a medical report in relation to the treatment of Mr McGuire. In addition, I have evidence from Mr McGuire, as to his current circumstances, which was given yesterday. This was not sought to cause Mr McGuire any inconvenience, more than that has been caused already, but in light of the ambiguity of the statement of facts, there was concern to ensure that I had an up-to-date picture.

6 In relation to Ms Kinder, I have been provided with information from the bar table as to her current circumstances.

7 I will just pause for a moment. Mr Crown, in the absence of Mr Carty a little while ago when I was adjourning for morning tea, you provided me with some information which I now remember that you were going to provide in the presence of the prisoner and Mr Carty. Could you again tell me what you told me before?

8 WOODS: I confirm that Ms Kinder, by way of occupation, was a school counsellor. Since I spoke to you earlier your Honour, I have in fact received a copy of that report from QBE and I read from the relevant section. “She had nominally retired last year but had arranged and been appointed to a position where in 2009 she was to work two and a half days at six hours per day”. Because she couldn’t commence this, as a result of the accident, her position was filled by someone else and she has not worked in 2009 since the accident. She now considers herself retired”.

9 HIS HONOUR: You understood that information.

10 CARTY: Yes.

11 HIS HONOUR: There is no difficulty with the information I have been provided Mr Carty?

12 CARTY: No

13 HIS HONOUR: Sorry to have interrupted my remarks but it occurred to me as I was speaking that I had been given information in your absence that I had asked the Crown to confirm in your presence and the presence of the client.

14 In addition to that evidence, I have evidence in the defence case, which is not only concerned with the subjective circumstances of the prisoner but also is material to an assessment of the objective facts and the consequences for the prisoner of his involvement in this collision and particularly, I have evidence from the prisoner himself, the prisoner’s wife, Mrs Melinda Innes, and I have medical reports and references touching upon a range of matters which are, of course, relevant to the assessment of the objective facts. Much of the material, of course, is concerned with the subjective circumstances of the prisoner.

15 Having regard to the totality of the material, the facts, as I find them, are as follows:

16 The prisoner, prior to 6 December 2008, had been involved working on a property or properties in respect of harvesting Russian garlic, which he was involved in producing, and assisting associates with their harvest and with some construction work in relation to a shed. I am prepared to accept, over the month or so before the collision, the prisoner had been working on a daily basis for lengthy hours and on the day of the collision, had concluded work sometime earlier in the afternoon, having finished both the harvesting of garlic and the work required in the shed. In other words, the prisoner was about to have something of a break from his continuous labours. The prisoner went home, showered and had something to eat. As I understood his evidence, although I do not have a transcript of it, he had a short sleep but was invited by his wife to attend a birthday party for a friend of hers at a place called The Amble Inn.

17 The prisoner, at the time of the commission of the offences, lived at a rural community, as I understand it, called Upper Corindi. There was evidence from the offender that his property was approximately twelve to fourteen kilometres from the Amble Inn, which is situated to Corindi Beach. Corindi Beach, I am informed variously, is somewhere between six to eight or perhaps a bit further, kilometres from the site of the accident, or at least the Woolgoolga township. The prisoner was reluctant to attend this birthday party. His wife left of her own accord, in her own vehicle and he, after some disputation with her about attending this party, decided to attend. He went to the hotel, I accept, in the expectation that he would catch the courtesy bus home with his wife. Their practice was, when they attended the Amble Inn, that one car would be taken, the courtesy bus would be taken back to their home and the next day they would return to pick up the car parked at the hotel with the other family vehicle.

18 The prisoner, on attending the hotel, obviously consumed a considerable amount of alcohol. The prisoner has given evidence that he has no memory of the circumstances of him leaving the hotel. His wife has given evidence that she lost him, so to speak, and travelled by herself to a friend’s place and had no knowledge of the circumstances of him leaving the hotel. But what is clear from the evidence, is that at a time his wife was leaving the hotel or perhaps even beforehand, the prisoner, for reasons that are not fully explained, got in his motor vehicle, whilst heavily affected by alcohol, and proceeded to drive in a southerly direction upon the Pacific Highway from Corindi Beach. I have not been favoured with precise maps or Google extracts and the like, to assist me in working out the distances involved, but as I understand the evidence, the turnoff to the prisoner’s residence is approximately two or three kilometres from the hotel. It is to the south of the hotel, as I understood the evidence.

19 The prisoner, on the evidence available to me, clearly drove either away from or past the turnoff to his residence, and then drove a further, and again the evidence is a little rubbery, five, six, seven or eight kilometres to where the accident occurred. I have no explanation from the prisoner as to why he would be driving away from his home. But certainly the evidence establishes that he had driven on what I can best estimate to be at least eight kilometres by the time of the impact.

20 The prisoner has no memory of events for a number of possible reasons. One possible reason is that he has retrograde amnesia as a consequence of the collision. He has given evidence that in fact not only does he not remember some hours leading up to the collision but he has no memory of the collision or its immediate aftermath. He has given evidence that the first time that he was actually conscious was as he was being transferred from Coffs Harbour Hospital to the John Hunter Hospital at Newcastle, where he was treated. I will deal with those aspects of the matter, that is his treatment, later.

21 I cannot determine whether I should accept the prisoner’s evidence of the absence of memory of the circumstances of the collision. His claim of a lack of memory is, of course, impenetrable. There is evidence that in fact he was conscious at the scene of the accident and in fact the evidence of a particular witness, who attended to assist, was put to the prisoner. The facts revealed that the prisoner was able to release himself from his vehicle and treated by ambulance officers. Of course, the prisoner calling out for help and getting himself out of the motor vehicle, may not be inconsistent with an absence of memory by reason of the impact of the collision. Certainly, his consumption of alcohol may have also contributed to his lack of memory. However, I cannot speculate about matters about which there is no evidence beyond noting the prisoner’s claim of an absence of memory. It was suggested that the objective facts are consistent with the prisoner falling asleep at the wheel, prior to the collision. This is a possibility too, but no direct evidence from the prisoner or any other eye witness assists me in this regard.

22 The objective physical evidence shows, however, that the prisoner was travelling in a generally southerly direction, as I said. The bitumen roadway was damp in patches, at the scene of the accident, from recent showers and the sky was overcast. The speed limit was sixty kilometres per hour. The prisoner continued towards the intersection of Clarence Street and Pacific Highway, Woolgoolga, as one of the victims, John McGuire, was travelling in a generally northerly direction in lane 2 of the two lanes of the Pacific Highway, after having turned right at the roundabout at the intersection of Clarence Street and that intersection is shown both in the photographic material and in a plan that forms part of the brief.

23 Mr McGuire was a man just going about his work, driving a taxi in the late hours, providing a service to the community. He was travelling only at about thirty kilometres per hour, after having turned right at the roundabout. Looking at the character of the vehicle he was driving, in the circumstances, there is no reason to doubt that. There were two passengers within in the rear section of the van, being Susan Kinder and Jennifer Charnook.

24 On approaching the intersection of Clarence Street, there is a moderate left hand bend for traffic travelling in a southerly direction, as the prisoner was travelling. The prisoner’s motor vehicle crossed the double, unbroken, separation lines as he approached the intersection. The prisoner and his vehicle continued within lane 2 of the northbound traffic lanes until a point approximately forty-three metres north of the intersection of Clarence Street. The prisoner, according to the physical evidence, braked heavily, his wheels skidded upon the bitumen road, wholly within lane 2 of the northbound lanes.

25 Mr McGuire would appear to have had little notice of the oncoming vehicle. He saw the headlights of the prisoner’s vehicle coming straight for him. The front portion of the prisoner’s vehicle then impacted with the front portion of the vehicle driven by the victim. The impact occurred wholly within lane 2 of the northbound lanes, approximately thirty-eight metres north of the intersection of Clarence Street. This impact drove Mr McGuire’s vehicle back ten metres and it came to rest on its right hand side. The impact was very significant indeed, as the photographs show the state of the vehicles at rest.

26 Mr McGuire’s vehicle ended up facing in an easterly direction. The prisoner’s car commenced to rotate in a clockwise direction after the impact and entered upon the raised concrete traffic island, which separated the north and southbound lanes of the Pacific Highway at that point. It then rolled onto its roof and came to rest approximately eleven metres south of the impact point, facing in a westerly direction. The victim, Mr McGuire, and the victim, Ms Kinder, were trapped in the vehicle and had to be rescued after a considerable time whilst trapped. As I said, the prisoner released himself and was taken to Coffs Harbour for treatment.

27 Mr McGuire, dealing with his injuries, suffered a number of injuries. He suffered a dislocated left hip, a bilateral Lisfranc injury to his feet, multiple bilateral comminuted feet fractures, a transverse process fracture to L2 to L4, a degloving injury to the right ankle, fractured left fibula and tibia, two fractured ribs, a fractured left acetabulum, which is a bone or part of the hip bone arrangement, or the pelvis bone arrangement, and a degloving injury to the right hand. Obviously he had to receive emergency surgery and has in fact had seven surgical procedures and continues to receive treatment for his injuries. His evidence before me, which is unchallenged, is that at the current time, he walks, clearly, with a limp. He requires rehabilitation three days a week and receives two hours rehabilitation, an hour in the gym and an hour in the pool, he wears orthopaedic shoes, one leg is now half an inch shorter than the other. He has numbness of the right foot and he has lost the arch of that foot. Clearly, even with some improvements, he will continue to suffer physical discomfiture and disability into the future. He continues to be unfit for work and will be unfit for work for six to twelve months. He has pain on his left hand side. He has swelling and difficulties with bloody circulation in his leg. Clearly, he suffered very serious injuries.

28 The victim, Susan Kinder, was transported to Coffs Harbour Hospital, where she was treated for a fracture to the C2 section of her spine. This injury was first diagnosed as life threatening but has obviously not led to her demise. Although she continues to have continuing disabilities, to which I will refer. She sustained a fractured right wrist, fractures to several bones of the left hand, a fractured right patella and several abrasions and intrusions to the liver and the right plural affusion. In February 2009, it was said that she would have a restricted degree of neck movement. At that stage her left hand was weak and did not grip. Her right knee was painful and unstable and she has a permanent scar across her chest from the seatbelt injury.

29 I am informed, in the context of information obtained for the purposes of proceedings under the Motor Accidents Compensation provisions, that she has permanent restriction of the neck and there has been a fusing of the spine. She has restricted movement of the left wrist and the right knee, although her recovery, it is pleasing to report, has been considerably better, or more speedy, than was initially thought. I am informed today, and it is accepted, that she had nominally retired at the time of the accident but had sought further employment but because of her injuries, has been unable to take up the temporary or casual employment that was offered to her and now is retired. Of course, the vicissitudes of employment and such matters are relevant, of course, as they reflect upon the seriousness of the injuries, but there may be other matters that can affect a person’s capacity to work. Certainly, Mr McGuire’s capacity to work has been severely disrupted.

30 The second passenger in the mini-taxi suffered injuries too and there are no charges in relation to that, but this is relevant to an assessment of the matter in a general sense, although I would not impose, obviously, any separate penalty in relation to that matter. The fact that another person was injured is part of the factual matrix that I must consider.

31 Ms Charnook suffered several lacerations and abrasions but it would seem she was extremely lucky not to suffer more serious injuries, in light of the fate of her friend, Ms Kinder, who apparently was in the same area of the vehicle. As the particulars in the charge reveal, the offender was blood tested at 1.10am and he had a positive result of 0.233 grams of alcohol for 100 millilitres of blood.

32 Section 52A(9) defines ‘prescribed concentration of alcohol’ to mean a concentration of 0.15 or more alcohol in 100 millilitres of blood.

33 The offender suffered significant injuries too, as a result of the collision. The offender’s injuries have been the subject of evidence by him and he has spoken of the continuing disabilities that he suffers. I accept his evidence, so far as he describes his disabilities. I have a report from the Hunter New England Area Health Service which shows that his principal injuries were a dislocated right hip, a right sciatic nerve injury, a fractured right acetabulum, as I said earlier, a bone in the pelvis hip area. He had a large number of rib fractures. He had bilateral pulmonary contusions and plural effusions. He had a left, small pneumothorax, he had abrasions and other injures to his lung. He was admitted to intensive care at Coffs Harbour Hospital and then a day later was transferred to Newcastle. He was there the subject of various surgical interventions and the like. It may well be, I just mention in passing, that one of the reasons for his absence of memory could be explained by medical interventions on his arrival at the hospital and the effect upon him of anaesthetic and the like. He remained in hospital, on his evidence in this Court, until the end of December. He was thought to require further hospitalisation but he was anxious to return home. His family, living north of Woolgoolga, found it difficult to travel to Newcastle and I accept that his family were deeply concerned about his condition. I have read the report that he has tendered and I have noted both the procedures that were undertaken on 8 December and 11 December. Particularly, I note the medications that he was under and the medication that he takes at the moment. He continues to have a limp and his physical injuries cause him difficulties, such as having to sit while showering. He cannot reach his feet without considerable difficulty, if at all, and requires assistance to dress, at least to put on his socks, to tie up shoes and the like. He too suffered substantial or significant injuries and continues to suffer disabilities. His prognosis is not entirely clear but I accept that he will have these disabilities and restrictions upon his capacity to look after himself into the future and particularly, over the period of time that he is in custody.

34 The prisoner was born on 14 August 1961. He was thus, at the time of the commission of the offence, forty-seven, he is now forty-eight. He does not have a lengthy criminal history. He has appearances at Dorrigo Petty Sessions and Wyong Petty Sessions for drug usage and supply offences relating to Indian Hemp. He has some convictions at Wyong Local Court in 1988 for assaulting police and resisting arrest, malicious damage and offensive conduct and the like. I do not have the facts of those matters but they do have the hallmarks, and the terms, of offences committed whilst affected by alcohol. Most significantly, he has convictions for driving with a prescribed concentration of alcohol on three prior occasions.

35 On 4 November 1985 at the Gosford Local Court, he was convicted of a midrange PCA, fined $400 and disqualified for six months.

36 On 20 December 1993 at the Coffs Harbour Local Court, he was convicted of high range PCA, fined a modest amount and disqualified for fourteen months. That conviction was followed by a possess prohibited drug offence, a matter for which he was modestly fined.

37 He was on 27 March 2002, again convicted of drive with midrange PCA, fined $600 and disqualified for six months.

38 On a later date, 26 July 2002, he was convicted of common assault, charged apparently at the same time as the drive with midrange PCA offence and placed on a good behaviour bond for a period of six months.

39 I will return to the significance of those offences, in the context of matters arising under s 21A and the guideline judgment shortly. However, there is one pertinent matter in relating to the evidence of the prisoner that needs to be noted from the material available to me.

40 It was sought in the course of the evidence of the prisoner, to endeavour to represent the prisoner’s drink driving offences, at least the more recent ones, the one at Coffs Harbour and the one at Bellingen, as arising out of unusual circumstances, not reflecting ‘characteristic’, if I can use that expression, behaviour on the part of the prisoner. I note, obviously from the outset, that I cannot find that the prisoner is a regular drink driver. I can only act upon the fact of the convictions and not speculate about other aspects of his conduct that are unproven. But in relation to the offence at Bellingen, the prisoner explained that he was living in the Upper Thora area (at the base of the Dorrigo escarpment) and that in fact he was driving his motor vehicle in a right-of-way or a road that was only used by local residents. This road is known as the Die Happy Track. He told me it only gave access to two properties and the prisoner was, in affect, driving to get some alcohol or to visit a friend and the police just ‘happened’ to be there. I cannot conclude the prisoner’s evidence was untruthful, but his evidence, in my view, does not represent, in any way, the facts of the matter.

41 The facts of the matter were and the conviction for common assault on 26 July 2002, in my view, further confirms, as a fact, that the police were not there, just by chance or by accident. The police were there to investigate a claim made by the prisoner’s family that he had acted violently or in a threatening manner. I am prepared to, for the purposes of sentencing in this matter, see the matter, without diminishing its seriousness, as some form of domestic incident but one obviously precipitated by the prisoner’s intoxicated state. For the moment I put aside the threat he made to his family which may have been a throwaway line said in anger affected by alcohol. But what is clear is that the police were actually in attendance to arrest the offender in relation to the claimed domestic misbehaviour and the police came across the offender whilst looking for him at 11.37pm. His explanation as to why he was driving I do not accept. He was arrested by the police when he was found on the Die Happy Track and he was breathalysed and his reading was 0.11 grams of alcohol in 100 millilitres of blood. Whilst, of course, rejecting his account in relation to this drink driving matter may not mean the rejection of all of his evidence, it does cause me to approach with some considerable circumspection his explanation for his other offending. His explanation, as I understood it, for the other offending, was that someone threw a garbage can at the windscreen of his car in the course of some dispute at a hotel and, as I understood the evidence, he was driving the car to escape the threat that the other person presented to him. The prisoner gave evidence that he had rung the police to seek assistance in relation to the matter and hence, he was detected drinking and driving, having driven away from the scene. Of course, it is another example of the prisoner having difficulty controlling himself whilst affected by alcohol, on one view of it. I have no information to confirm what the prisoner has told me about those circumstances. The reality is that the prisoner has three prior PCA matters, which demonstrate the prisoner’s inability, it would seem, in recent times at least, to learn from the lessons of the past, in relation to drinking and driving.

42 In my view, the prior PCA matters are the most significant matters on his record. The other convictions I note but they are of little moment, given the way they were dealt with at the Local Court.

43 In fairness to the prisoner, when I review his licence history, whilst there are a large number of traffic infringements from the time that he was first provided with a licence back in 1978, including traffic infringements for negligent driving, not displaying P plates, not giving appropriate signals, speeding and the like, in fact since 1992, there have been no further traffic infringements, apart, of course, from the criminal offences that involve drinking and driving. It would seem, given his history and particularly bearing in mind modern methods of detection, at least in his normal conduct in relation to vehicles, when he is not drinking and driving, the prisoner has reflected from the record greater responsibility than he did in the past.

44 With regard to his subjective circumstances, having regard to the contents of the Probation and Parole Service report and the evidence of the prisoner and his wife, I note the prisoner has three children, the youngest is now seventeen, the other two children are in their early twenties. His youngest child is at school. He has been married for over twenty odd years and, as I said, his wife gave evidence. Whilst noting the circumstances of the domestic disputation, I accept the prisoner has been a good provider for his family and with the occasional hiccup, has generally been a supportive and caring husband. The evidence reveals the prisoner has been in employment, throughout his adult life and up until this collision in December 2008, has either worked in the building industry or worked in the agricultural pursuits that he and his wife are now concerned with, particularly growing garlic. He had been a carpenter for twenty-six years and has trade qualifications. He had lived in the Central Coast up until about 1987/88, as his criminal history confirms, and has lived on the North Coast since that time. Working initially as a subcontracting carpenter. He moved to the Corindi/Mulloway Beach area approximately six years ago from the back of Bellingen, or the Upper Thora area, and he has moved onto his current property, as I understood the evidence, over the last couple of years, having rented premises whilst his current home was built.

45 The prisoner has produced evidence, which I accept, that apart from being industrious in his employment and in his other pursuits, he has performed community services. For example, providing assistance to an organisation called Life Without Barriers, an organisation that cares for wards of the state. He has allowed that organisation to take boys from Life Without Barriers on life skill camps to his property. He has been using or utilising part of his property as a site where boys from this organisation and other types of organisations of a similar character, where those persons can visit, to learn various skills. He has constructed a mess hall with a cleared area for tents around the mess hall and a BMX track as part of the facilities provided to these boys and he is to be commended for that contribution to the welfare of others.

46 The prisoner has said that in recent years he has taken more responsibility for his alcohol, in terms of drinking and driving. He denied that he was a regular drinker and driver. In fact, he would seem to suggest that he only drank and drove when he was detected so doing. As I said, I cannot find against that.

47 He has provided evidence that, to the licensee of The Amble Inn, he has been a responsible and mature patron. The licensee has said, in the reference she has provided, that over the last couple of years, within her knowledge, the prisoner has always utilised the courtesy bus when attending functions, leaving his car in the parking lot. She says the current offence is “out of character” and she also says the prisoner has not frequented the establishment since affectively after the accident of which he gave evidence.

48 His injuries, of course, have had a significant effect upon his life, in the sense that he has been unable to work, or had difficulty working. His wife has had to return to working with part-time agricultural work in fruit picking and the like. She has confirmed the condition of the prisoner, whilst in hospital, and the limitations upon his mobility, as a result of his injuries, since being out of hospital. He was on crutches for six months after the accident and he continues, as I said, to exhibit servility. She said, as he did, that he is on pain killers. He takes, as I understand it, Oxycontin three times a day and he, at the current time, still suffers a great deal of pain with difficulties in sitting and the like and in the context of the injuries he suffered, noting some similarity between the injuries of himself and Mr McGuire and noting that what Mr McGuire has said about his continuing pain and the like, I have no doubt that what I have been told about his physical disabilities is accurate.

49 I have other references from other persons that have known the prisoner over recent years. He is regarded by others as reliable and honest in their dealings with him and I have no doubt that the prisoner, even allowing for all the matters in his criminal history, through what he has shown through employment and the like, is a reliable, generally honest person. It is quite clear, however, that the prisoner has a great deal of difficulty with alcohol and has had so for many years.

50 I note, to his credit, the prisoner, since released from hospital, sought assistance from the North Coast Area Health Service. The drug and alcohol counsellor, who has provided a report, noted, as of 14 October 2009, that the prisoner first contacted the service on 14 January 2009, that is, it would seem, just a few weeks after being released from hospital. His initial attendance was on 2 February 2009 and he has reported, at least, on a monthly basis, right up until October 2009. He was concerned about his alcohol use, as much as he should have been, and he has indicated to the counsellor, as in his evidence to me, that he has made positive changes in his alcohol intake, considerably reducing it.

51 The counsellor said that he had shown “very good insight into the problematic role that his alcohol intake had in this incident”, as well as the negative role that it had played in his life in the past. He expressed remorse and regret for his contribution to the accident. He had attended counselling and had maintained changes to his alcohol use, had engaged well in counselling, was prompt with appointments and had developed strategies to cope with stress and other matters. This evidence, showing the prisoner’s voluntary willingness to undertake counselling and the like, I have taken into account, both generally and specifically in relation to the utility of an extended period of parole supervision, which I have foreshadowed, will occur from the orders I have foreshadowed to the prisoner in my earlier remarks.

52 The Probation and Parole Service has prepared a report. It is relatively brief. It sets out details as to his background, which I have already dealt with in much greater detail and details as to his current physical circumstances. He admitted heavy drinking in the past.

53 He grew up in an ‘average’ family and was raised, as he says himself, well by his family. He has no real disadvantages in life. He has had, however, problematic attitudes to alcohol and his own insight reveals a link between alcohol consumption and “his criminal activity” over twenty-four years.

54 He is suitable to a ‘low to medium level’ of intervention by the Service. Particularly, he would require an individualised case plan, which would include strategies to address alcohol dependence, drink driving, amongst other matters. I have taken that report into account.

55 The prisoner has expressed regret, contrition and the like, through the Probation and Parole Service. He expressed that regret and contrition and recognition of the harm that he had caused in his evidence in this Court. I note, in his favour, that when Mr McGuire gave evidence, through his counsel, he sought to offer his apologies to Mr McGuire, which apology Mr McGuire, very graciously and magnanimously accepted, although no doubt receiving it without notice. That is very much to Mr McGuire’s credit, whilst Mr McGuire’s acceptance to the apology, of course, makes no difference to any penalty I impose. I am prepared to accept, notwithstanding some suggestion in cross-examination that the prisoner could have made a more active inquiry about the welfare of his victims, that the prisoner is genuinely contrite and regretful and has taken responsibility for his actions and realises the seriousness of his conduct, although it would not take a very responsible, intelligent person, to appreciate the seriousness of the conduct with which I am concerned.

56 I have had very detailed and helpful submissions from Mr Carty and the learned counsel for the Crown. In relation to those submissions, I have dealt with a number of matters and we will deal with the number of matters raised in my remarks. I do not propose to go over them in detail.

57 It might be fair to say, firstly, in relation to Mr Carty’s submissions, that his essential submission is, by reference to the authorities and the circumstances of this case, that it would be within my legitimate sentencing discretion to impose a term of imprisonment which he knows and I think the prisoner knows is inevitable, but that could be served by way of periodic detention. As I have foreshadowed, by what I have said directly to Mr Innes, I am against that essential submission, for a range of reasons. Firstly, the totality of the criminality is greater than the maximum period permissible for the imposition of a term of periodic detention. The emphasis in this matter upon general and personal deterrence precludes extending the leniency inherent in an order for periodic detention.

58 It is clear in the context of the guideline judgment of Whyte and other judgments, to which I have been referred and a number of other cases that I need not refer to, that a term of full-time custody, in a case such as this, given the seriousness of the injuries, the blood alcohol reading and the prisoner’s criminal history, must be imposed even allowing for all matters that are favourable to the prisoner.

59 In relation to the learned Crown’s submissions, his submission, as were Mr Carty’s submissions, focused upon the guideline judgment and comparisons that might be made with a couple of the cases to which I will refer in a moment. I have taken all the matters that he has referred me to and I have also noted the very thorough way in which the learned Crown, as with Mr Carty, went through the principles from the guideline judgment, dealt with issues such as extra-curial punishment, the relevance of the criminal convictions, the terms of s 3A and s 21A Crimes (Sentencing Procedure) Act, as well as matters relating to special circumstances and the options that are realistically available in a case such as this.

60 If I may turn to Whyte just for the moment. R v Whyte [2002] NSWCCA 343 is a guideline judgment of the Court of Criminal Appeal, dealing with the offence of driving in a dangerous manner, occasioning death or grievous bodily harm, pursuant to s 52A Crimes Act 1900. I need not dwell upon Whyte’s context. It is a case that follows upon the guideline judgment of Jurisic from 1998 but required the Court to readdress the guideline judgment in Jurisic for what I understood to be two essential reasons. Firstly, the consequences of the High Court decision Wong (2001) 207 CLR 584, concerning a guideline judgment in relation to Commonwealth sentencing, and also to deal with a very vexed question as to what “abandonment of responsibility” meant, as well as consideration of a range of authority where there were competing views as to whether there were black and white concepts in “abandonment of responsibility” or areas of grey.

61 The guideline judgment in Whyte, by its grafting onto Jurisic, notes, a “typical case” will have various recurring features, including a young offender of good character with death or permanent injury to a single person, the victim being a stranger, no or limited injury to the driver or the driver’s intimates, genuine remorse and a plea of guilty of limited utilitarian value. It should be pointed out, of course, that Jurisic and Henry, the first two guideline judgments, predated the guideline judgment, in relation to the utilitarian benefit of the plea of guilty in Thomson and Houlton.

62 Briefly, dealing with the so-called typical case reflected in the guideline, of course this offender is a mature offender, which is not to his credit, of course, because he would be expected to have greater responsibility than someone with less experience. He is not a person with limited prior convictions and has three significant convictions. Other features are present of a typical case, permanent injury, victims that are strangers. Here there is the feature which I take into account being the significant injuries to the prisoner. There is genuine remorse here and there is a plea of guilty of greater than limited utilitarian value. I note that the learned Chief Justice in Whyte, reiterated what he had said in Jurisic, that guidelines are intended to be indicative only. They are not intended to be applied to every case as if they were rules binding on sentencing judges. Guidelines present a relevant indicator, such as trial judges have always regarded, statutory maximum penalties as an indicator.

In Henry , the Chief Justice dealing with this aspect said:

“Nevertheless, where a guideline is not to be applied by a trial judge, this Court would expect that the reasons for that decision to be articulated so that the public interest and the perception of consistency in sentencing decisions can be served and this Court can be properly informed in the exercise of its appellate jurisdiction”.

63 In relation to Whyte, of course, this was a Crown appeal. The respondent had been arraigned on a charge containing one count of aggravated dangerous driving, causing grievous bodily harm, which is the case here. He had pleaded “not guilty” but changed his plea to “guilty” and he was sentenced to imprisonment for a term of two years and three months, with a non-parole period of twelve months. Ultimately, the Court determined that the sentence was not adequate but determined that in the exercise of its discretion it would not intervene but gave the lengthy and detailed analysis of the appropriate application of a guideline for this type of offence, in the course of that judgment.

64 The first leg of the Jurisic guideline, which remains essentially unchanged from Whyte, is that a non-custodial sentence for an offence under s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgement. Of course, it should be pointed out that what their Honours are referring to is, of course, an offence, other than an offence without the pleaded circumstance of aggravation, such as here. The Court reiterated the aggravating factors, established from previous authorities, including extent and nature of the injuries inflicted, the number of people put at risk, degree of speed, degree of intoxication, erratic driving, competitive driving, was showing off, length of journey during which others were exposed to risk, ignoring of warnings and escaping police pursuit. Here it can be said that the injuries inflicted upon the two pleaded victims were very serious. I have already outlined them and I have already pointed out that those victims will continue to suffer the consequences of the prisoner’s misconduct into the future, perhaps throughout their lives. As to the number of people put at risk, clearly the prisoner put at risk the three people in the cab. But even though it was the late hour, bearing in mind the Pacific Highway is a very busy road at all hours of the day and given the distance over which the prisoner travelled, the prisoner must have put other people at risk, a number of which I cannot estimate beyond noting, as I say, the very late hour.

65 I have no evidence as to the degree of speed of the prisoner. The prisoner cannot assist me and the physical evidence does not assist me. However, the prisoner was heavily intoxicated, there can be no doubt of that from the reading. I also conclude that the prisoner’s driving was erratic.

66 In fairness, Mr Carty, who again, very skilfully represented this client’s interests, seemed to, in his submissions, without being disrespectful to them, suggest that if the prisoner fell asleep this might be a matter that might leave one to conclude that there was no element of erratic driving in this. One of the difficulties with that submission is that the prisoner, whether he lost control or deliberately drove on the wrong side of the road, by reason of his intoxication, was driving the motor vehicle. It must be said that for someone to drive over double unbroken lines and then travel wholly within the oncoming laneway or a public highway for a distance of some metres before collision, braking at the last minute and causing such an impact as to drive the other car or vehicle, back ten metres, was driving erratically. The prisoner’s plea involves an admission of driving at the point of impact and whether he lost control, whether he fell asleep, whether he drove this way simply because he was so affected by alcohol, in the absence of any evidence one way or the other, it seems to me matters neither here nor there. He was driving the motor vehicle and the conduct of the vehicle clearly was erratic. I cannot find there was any competitive driving or showing off. I note, of course, the length of journey during which others were exposed to risk. It was a matter of some kilometres, on a very busy highway and, of course, one does not know how far the prisoner intended to drive. There is no evidence of ignoring of warnings, there were no passengers in his car and he certainly was not escaping a police pursuit.

67 The way in which the matter unfolded. Mr Carty suggested that such were the presence of particular features identified by the Chief Justice and the absence of others, the objective seriousness of the offence could be seen at a lower level than the worst case. I do not conclude that this is the worst case. Clearly, it is possible to conjure up worse cases than this within the rubric of the charge, although I point out in Veen (No 2) v The Queen, the High Court said that one could always conjure up a worse case than the one at bar, even if the one at bar was within the category of worst cases. Be that as it may, when one has regard to the guideline and particularly what the Chief Justice said at [229], that where the offender’s moral culpability is high, custodial sentences of particular lengths would not generally be appropriate, this is a case where one could conclude without any concern of being contradicted, one would have thought, that the offender’s moral culpability was high, in fact very high, taking into account all the features that I found.

68 I note the Chief Justice said of the various matters set out at [216] that the extent and nature of the injuries inflicted and the number of people put at risk focuses on the occurrence, whereas the other matters refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility, as his Honour said, in Jurisic. His Honour came to reconsider the use of the word of abandonment of responsibility, as is evidenced by what is contained in para 229. I note also that the learned Chief Justice went on to say, after rephrasing the guideline, that in the case of the aggravated version of each offence under s 52A, an appropriate increment to reflect the higher maximum penalty and what will generally be a higher level of moral culpability is required, such as the case here. Other factors, such as the number of victims, will also require an appropriate increment, he said. He reiterated that the guideline was a guide or a ‘check’.

69 A sentence imposed in a particular case depends on the circumstances of the case, s 21A Crimes (Sentencing Procedure) Act, and the like, and he pointed out the guideline focuses its attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration.

70 Their Honours turned to the circumstances of the offence in Whyte and they have been drawn to my attention as providing some indication of an appropriate sentence in this case. There are some similarities between Mr Whyte’s circumstances and this prisoner’s circumstances, in relation to the objective features, although I note in that case only one person was injured. The blood alcohol reading was in the range of the prisoner’s blood alcohol reading. The judgment in Whyte also noted that the respondent’s record did not entitle him to any leniency. Mr Whyte’s record revealed, as I understand the evidence, some differences from the position of this prisoner.

71 I was taken to two other authorities, by Mr Carty, particularly for comparative purposes, R v Carruthers [2008] NSWCCA 59 and the case of Brooks v R [2009] NSWCCA 265. The latter judgment I brought to the parties’ attention but the Crown already was aware of it. To deal with Carruthers, the submission, as I understood from Mr Carty, was that having regard to the features of that case, the blood alcohol reading, the injuries suffered by the victim and the like, some guidance might be provided by the length of the sentence imposed. Perhaps there was subtly a submission there that periodic detention may still be appropriate in this particular case. Of course in Carruthers, firstly, there was only one victim. Whilst the victim’s injury was catastrophic for his career and whilst the blood alcohol reading of the prisoner was somewhat higher than this prisoner’s, the totality of the criminality did not match that of this prisoner, given the number of victims with which I am concerned.

72 In any event, the Court, in that Crown appeal, noting double jeopardy principles, determined that the sentencing judge was quite wrong to impose a period of periodic detention, having regard to all the circumstances of the matter, some of which are different from this prisoner that I am concerned with now. It confirmed that the term of imprisonment, with some technical adjustment, should be served by full-time custody. As to the length of the sentence, the Court noted the submission the sentence was in fact manifestly inadequate but the Court determined it was unnecessary to determine that submission and ultimately, whilst I note the judgment, it does not provide much assistance in light of the Court of Criminal Appeal’s finding and noting second jeopardy principles.

73 Likewise, the facts in Brooks was said to draw some comparison with this case. I have had regard to it. There are always distinctions between different offenders and different offences, hence, we do not have a code of Hammurabi in our sentencing system, nor grid sentencing. I have noted what Mr Carty has put and noted what the Crown has put about the matter, both in relation to Brooks and, of course, Carruthers and the distinctions that may be drawn between the respective facts.

74 I note in relation to Brooks that he injured his passengers and also that he had a lower reading. He had very significant injuries, perhaps more serious than this prisoner. I note at the time of sentencing the impact and the consequences for Mr Brooks from his injuries in custody.

75 The most significant thing, taking into account all that was said in the decision of Brooks, that arises from that judgment is the treatment of the injuries suffered by a particular offender. In a case such as this, as I mentioned, Mr Brookes suffered very serious injuries. There was a complaint made on appeal, which was dismissed, that the judge had failed to refer to “extra curial punishment”. In fact, the judge had referred on a number of occasions to the injuries of the prisoner and it was found, by the Court, that he had taken them into account in a proper way or she had taken them into account in a proper way. In any event, no error was disclosed, ultimately, in the decision reached by the judge.

76 The relevant principles, taking into account the injuries of the prisoner and his current state of health, are there. Whilst it is the function of the Courts to punish those who have committed crimes, a sentencing court, in determining what sentence it should impose, can properly take into account that the offender has already suffered some serious loss of detriment, as a result of having committed the offence. This I note. The Court referred to a number of authorities.

77 Two of those authorities, Daetz [2003] 139 ACrimR 398 and Allpass [1993] 72 ACrimR 561, were concerned with extra curial punishment, not of the self doing of the prisoner but on the part of third parties. My memory of Daetz is that Mr Daetz was struck by the father of an outraged victim and suffered some injury to his face or something along those lines. My memory of Allpass is somewhat better. Allpass was a war veteran who had indecently assaulted a child. When it became known within his community, his house was subject to vandalisation and he was subjected to various forms of harassment, which were characterised as extra curial punishment. I point out that whilst I accept the prisoner has suffered some form of extra curial punishment, it is a punishment he has imposed upon himself. It is not a punishment that has been imposed on him by third parties, which was entirely uncalled for. I note also that Justice Hall pointed out in Brooks that while the health of the offender is relevant to the type and length of sentence imposed, generally speaking, it will only be a mitigating factor when there is evidence to show that there is a serious risk that imprisonment will be a greater burden on an offender, by reason of ill health, or where there is a serious risk that imprisonment will have a grave adverse affect on the offender’s health, citing one aged case, Smith, a South Australian case.

78 The Crown cited the case, if I remember rightly, of Bailey, which I had some peripheral involvement with. These were cases dealing with the sudden realisation that a number of prisoners, convicted of serious offences, were in fact suffering from HIV Aids.

79 Here, I note that the prisoner’s injuries place him at some disadvantage in prison and he will have restrictions upon his movement and his ability to look after himself. I will endeavour to make recommendations about his treatment that might at least assist him in some respect. Although I accept whatever I say and whatever the Prison Health Service does, he will have a greater burden, upon himself, by reasons of his physical disabilities, whilst in custody. However, there is no evidence before me that the imprisonment will risk his health. There is no evidence before me, nor has evidence been sought to be adduced, that there are no facilities in the gaol to look after his medical needs, as opposed to the physical needs. But I accept, as a matter of commonsense, noting the injuries that he has, the affect upon him whilst in custody and it will make his time in custody more onerous and this is a matter, amongst others, I have taken into account in fixing the non-parole period.

80 Hall J went on to point out (at [23]) in Brooks, that the observations set out in [22] were because the Court is required to take into account all material facts and is required to ensure the punishment the offender receives is appropriate and not excessive. How much weight a sentencing judge should give extra curial punishment depends, of course, on all the circumstances of the case. It was noted what had been put by the applicant, in relation to the matter of Wybrow, which was in fact a man who drove a vehicle whilst intoxicated, causing death and serious injury to other road users. I note what Justice Hall said about that at [24] and I have also noted his Honour’s brief treatment of the appeal, as I said, which was dismissed. I have taken all those matters into account, in the way I have explained.

81 With regard to general legislative provisions that I need to take into account, clearly s 3A Crimes (Sentencing Procedure) Act 1999 must be taken into account and crimes of this character put a special emphasis, as the guideline judgment makes clear, upon general and personal deterrence. There are also other aspects, denunciation of the conduct of the prisoner, making him accountable and seeing that he is adequately punished. But there is also the need to promote his rehabilitation and I do point out, notwithstanding his irresponsibility on this night and his irresponsibility in the past, I do not conclude, nor could I suggest, the prisoner is a worthless person of any measure. The prisoner has made a contribution to his community and to his family. But for his weakness with alcohol, he could generally claim to be a man of good character, given his industry and the contribution that he has made, as I have outlined. But, of course, as I said, one cannot ignore the need for general and personal deterrence, in matters such as this including also consideration of the need to promote his rehabilitation.

82 With regard to s 21A, I have taken into account the general terms of s 21A(1). Ultimately, the Crown, when asked as to whether there were any particular aggravating factors available under s 21A(2), took me to two matters, in essence. The fact that the offender had a record of previous convictions (s 21A(2)(d)) and possibly (m) of the same subsection which states, “The offence involved multiple victims or a series of criminal acts”.

83 To deal with the first matter. Yes, he has a record of previous convictions. It is a matter that does not entitle him to any special leniency. I have had regard to some discussion of the meaning of this provision in decisions of the Court of Criminal Appeal and I have determined, even though he has convictions, on three prior occasions for drinking driving, over a period of some twenty odd years, that I ought not find this as an aggravating factor, as required under s 21A. It is a fine line, I appreciate that, on balance. I believe it is a matter best treated in the way I have expressed it.

84 S 21A (2)(m) is a strangely worded provision. It has to be read literally, I would think, and it refers to “the offence”. That is, as with all sentencing exercises, in accordance with Pearce v The Queen, one is required to impose an appropriate sentence for each offence, consider the totality of the criminality and then determine appropriate accumulation and concurrency, as the case may be. I am dealing with two separate offences. They each involve single victims. The fact that there are multiple victims from the totality of the criminality, in my view, is met not by the aggravating factor in s 21A(2)(m), but met by addressing the matter through Pearce principles and partially accumulating one sentence upon another. As for a ‘series of criminal acts’, here the facts are that each offence is a separate criminal act but it is part of the one course of conduct. So ultimately, although it was not strenuously pressed by the Crown, I cannot find s 21A(2)(m) as an aggravating factor.

85 The aggravating factors, in this matter, are essentially not to be found in s 21A(2) but in the facts of the cases I have outlined and the elements, as pleaded by the prosecution.

86 With regard to mitigating factors, I come to the following conclusions. Firstly, the offences were not part of planned or organised criminal activity. The offender has good prospects of rehabilitation, in my view exhibited by his attempt to seek counselling in relation to his alcohol. He also has the background of industry and the like and the family support, which I have noted. I accept, as a mitigating factor, that the prisoner has shown remorse, by providing evidence that he has accepted responsibility for his actions and has acknowledged the injury and loss to Mr McGuire and Ms Kinder. Their compensation is a matter for other courts. The prisoner acted foolishly, he acted without regard to their rights, when he acted as he did. He did know them, of course, and he did not deliberately set out to hurt them. But it was, one would have thought, a very highly likely consequence that he would cause harm to others because of his inability to control his motor vehicle. I should pause to point out that some reference was made to the fact that working hard may have contributed to him falling asleep at the wheel. That, in my view, cannot explain the prisoner driving the way he did. Clearly, it is the consumption of alcohol which was the contributing factor to his situation. This is not a sleep deprivation case.

87 Another mitigating factor is the fact that the prisoner pleaded guilty. This is provided by s 22 of the Act, but also I note it is a matter for which he receives a discount, so I must be careful not to double dip.

88 In relation to the matter, I have determined there should be a partial accumulation of sentences. I believe the accumulation should be to the extent of nine months to reflect the totality of the criminality. There have been a number of recent decisions by the Court of Criminal Appeal and one particularly, I believe of Justice Howie’s, where reference is made to the fact that even in a driving case, where the one course of conduct is responsible for various criminal acts, that does not necessarily require concurrent sentences. In fact the totality of the criminality will be reflected by reference to the number of people that are injured in the appropriate case and this is such a case. There is also, I might point out, the recent decision of Justice Hall, dealing with multiple drug offences, in R v XX, [2009] NSWCCA 115.

89 Finally, in relation to the fixing of the non parole period, I have determined that there are special circumstances. One special circumstance is the fact of a partial accumulation. However, in accordance with s 44 Crimes (Sentencing Procedure) Act and the case law relevant to that Act, which I need not go through at this time, I have determined that “special circumstances” here include a need for an extended period of supervision to help the prisoner to adjust to community living on his release. I note, of course, the prisoner has never been in gaol before and he will require assistance to adjust. There are considerations of his health, which are relevant not only to the circumstances of his custody, but matters that will require attention on his release to custody. There is also the need, in my view, notwithstanding his experience and the lessons he has learnt from this experience, for the prisoner to continue to have intensive alcohol counselling and that will be best provided for him, ultimately, in the community. He may need assistance in relation to employment and training programs, given the affect upon his family farm, by his absence, and also given his physical condition. This may prevent him from going back into the building industry and the like. Ultimately, there should, by reference to the affective non-parole period, be a substantial adjustment and I have determined that the non-parole period will be slightly more than fifty percent of the total sentence.

90 As I foreshadowed to the prisoner earlier, the total sentence, ultimately, is three years, nine months, to date from today. There will, of course, have to be, in relation to each offence, a disqualification and a substantial disqualification is required here. This is not an additional punishment but it reflects upon the opportunities the prisoner has been given in the past by his disqualifications for drink driving matters. It seems to me that a disqualification of no less than four years, in all the circumstances, is appropriate. This will, of course, itself create further burdens for the prisoner, both in terms of employment opportunity and given the remoteness of his property, from public transport and the like but this is another consequence of his own conduct. Thus, hopefully having taken into account all the relevant matters that have been put and having already told the prisoner, in advance, the orders to be made, I make the following orders.

91 In relation to the count involving the infliction of grievous bodily harm upon his Ms Kinder, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of one year, eleven months. That will commence on 18 November 2009 and expire on 17 October 2011. That will be the earliest at which you will be eligible for release to parole. In relation to that sentence, I fix a balance of sentence of one year, one month. I have made a finding of special circumstances, to provide you, in relation to that sentence, an extended period of supervision to assist you with your adjustment to community living and also to provide you with an extended period of supervision, to assist you in relation to alcohol counselling and direction and guidance in relation to employment and training.

92 In relation to the offence committed against Mr McGuire, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of one year and two months. That will commence from 18 August 2010, that is nine months into the then current sentence. That non-parole period will expire on 17 October 2011. In relation to that sentence, I fix a balance of sentence of one year, ten months. That sentence will expire on 17 November 2012. I have made a finding of special circumstances in relation to that matter to reflect the special circumstance of partial accumulation and the other special circumstances that I have identified a moment ago and in my judgment.

93 In relation to each offence, you are disqualified from holding a motor vehicle driver’s licence for four years, from 6 December 2008, Mr Crown?

94 WOODS: Your Honour, I think on his criminal record the disqualification dated from 13 March 2009.

95 HIS HONOUR: Why was that?

96 WOODS: That was when he was charged with the matters your Honour.

97 HIS HONOUR: The reality is he didn’t drive.

98 WOODS: That was because he was in hospital your Honour.

99 HIS HONOUR: Yes, I know that, that is when the official suspension started but he has not driven since the accident, I accept on the evidence, would that be right Mr Crown?

100 WOODS: I’d accept he hasn’t driven your Honour. I’d still respectively submit the appropriate date is the date from which he was suspended by the police.

101 HIS HONOUR: I think, quite frankly Mr Crown, the appropriate date is the date of the offence because the fact that he was suspended in March, to my mind, is merely the technical result of him not being amenable to being charged at that particular date. If the police could have charged him on the day of the accident, I am sure, given the objective circumstances of the accident, they would have charged him.

102 WOODS: It’s a matter for your Honour.

103 HIS HONOUR: I think, in fairness Mr Crown, he has not driven since 6 December. He was suspended in March after his release from hospital. I think I should make it from 6 December.

104 So the period of disqualification of four years in each matter will commence on 6 December 2008 and that will expire on 5 December 2012. In backdating the sentence, I have taken into account these facts. The offender was suspended, when Court Attendance Notices were served upon him but in relation to that matter, he had been in hospital, in intensive care, for a number of days after the accident, not released from hospital till the end of December and I note his evidence, that he has not driven since the accident and nor would he have been capable of driving, as I would have understood the evidence, up until the time of the suspension. So effectively, in my view, the commencement date should be the date that the accident occurred. Anything else Mr Crown?

105 WOODS: Just in relation to the balance of term for the count relating to Mr McGuire, that’s one year and ten months. Your Honour said it would date from 18 October.

106 HIS HONOUR: You do not date a balance from any date, you just give it an expiry date.

107 WOODS: Shouldn’t that be 17 November 2012 your Honour?

108 HIS HONOUR: Did I not say that? The non-parole period is one year, two months, to date from 18 August 2010, which coincides with the non-parole period for the other offence. The balance of sentence is 17 November 2012, it is a period of three years.

109 CARTY: That’s for the cumulative matter, yes.

110 HIS HONOUR: For both of them, one is partially accumulative on the other by nine months. My apologise, I am sorry. You are absolutely right, I apologise. The balance of sentence should be 17 August 2013.

111 CARTY: That is the three years and nine months from today, it takes us to that day.

112 HIS HONOUR: My apologies, I got fixated on three years and I made a mistake. The balance of sentence will expire on 17 August 2013.

113 In relation to the prisoner, I make the following recommendations. Firstly, that he be permitted to take what medication he has in his possession with him to custody. I recommend that he be taken forthwith to a medical facility, to be appropriately assessed as to his medical needs in the immediate future whilst in custody. Mr Carty, do you have suggestions in relation to that aspect of the matter, we raised this issue of whether he went to Grafton or Kempsey or Long Bay Gaol or whatever?

114 CARTY: As I understand it, he will go to Grafton, which is the closest gaol.

115 HIS HONOUR: That is what he will do immediately but what will happen after that, have you got any idea, I do not know anything about local conditions?

116 CARTY: I’m sorry your Honour, I don’t have an idea but we’ll make some inquiries about that.

117 HIS HONOUR: Anyway, I have made a recommendation, I cannot direct Corrective Services to do anything. I would trust that he be taken to an appropriate medical facility to be appropriately assessed. Is there a hospital at Grafton Gaol?

118 SPEAKER: Next to the gaol is the hospital.

119 HIS HONOUR: Right, thank you. Thank you Mr Crown and Mr Carty.

LUNCHEON ADJOURNMENT

120 HIS HONOUR: The matter of Innes.

121 WOODS: There are backup charges on a 166 certificate, I withdraw them.

122 HIS HONOUR: That was not raised, so you want them dismissed, I assume.

123 WOODS: Yes your Honour.

124 HIS HONOUR: The backup charges in the matter of Stuart John Innes on the s 166 certificate are dismissed, pursuant to the terms of s 167 of the Crimes (Sentencing Procedure) Act. The other matter I just wanted to raise very quickly, this can go on the record in relation to the Innes sentence. At the conclusion of the sentence proceedings, I raised the question with the learned Crown Prosecutor and Mr Carty as to the commencement date of the period of disqualification. The learned Crown Prosecutor drew to my attention that Mr Innes was in fact not suspended until March, when either Court Attendance Notices were issued or he was formally charged in relation to the current offences. The Crown properly submitted that I should commence the disqualification from the commencement date of the suspension. I have considered the matter since it arose because it was not a matter addressed at all in the submissions. Reflecting upon what I ordered on the last occasion, I do not propose to alter the order that I made but I note this additional issue that I think is relevant to 6 December, being the appropriate commencement date or at the very latest 7 December.

125 If Mr Innes had not been seriously injured but had been breathalysed at the scene, he would have been arrested and charged within a very short period of time, subject to interview and the like, with at least ‘high range prescribed concentration of alcohol’. The suspension of him at the issue of the Court Attendance Notices was in fact delayed, as I have pointed out earlier, by his hospitalisation. This is not a question of providing Mr Innes with any particular benefit or not. The reality is the facts establish that the commencement date of the suspension follows upon his injuries and upon the obvious fact that the police could not subject him to any breath analysis test at the site, or back at the police station. Thus, in the circumstances, I am satisfied that although the suspension did commence in March, that was for reasons beyond the control of the prosecution and the prisoner and, although, perhaps, officially, he may have been suspended from the early hours of 7 December, 6 December is an appropriate commencement date.

oOo