R v Whybrow

[2007] NSWDC 223

CITATION:	R v Whybrow [2007] NSWDC 223
HEARING DATE(S):	24 October 2007
JUDGMENT DATE:	2 November 2007
EX TEMPORE JUDGMENT DATE:	27 October 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nield DCJ
DECISION:	See paragraphs 42 - 46
CATCHWORDS:	Criminal Law - Sentence - Offences of aggravated dangerous driving causing death and grievous bodily harm - Prescribed concentration of alcohol present in the offender's blood - Level of moral culpability
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Jurisic (1998) 45 NSWLR 209 R v Whyte (2002) 55 NSWLR 252 R v Price (2004) NSWCCA 186 R v Thompson (2007) NSWCCA 299
PARTIES:	Crown Jamie Samuel George Whybrow
FILE NUMBER(S):	07/31/1002
COUNSEL:	Mr D. Brack (Crown) Mr P. Nematalla (Offender)
SOLICITORS:	NSW DPP Brazel Moore Lawyers

JUDGMENT

HIS HONOUR:

1 The offender is Jamie Samuel George Whybrow. He was born on 17 October 1985. Accordingly, he was aged twenty years six months when, on 23 April 2006, he was involved in the subject motor vehicle collision and he is aged twenty-two years now.

2 The offender is the third child of his parents’ four children. He has two older and one younger brothers. Both his parents and all his siblings are alive.

3 The offender was raised by his parents until their separation when he was aged twelve years. Thereafter, he was raised by his mother alone until her remarriage and, thereafter, by his mother and stepfather. He has two step siblings as a result of his mother’s remarriage.

4 The offender’s upbringing by both his mother and father until their separation and then by his mother and stepfather was pleasant and uneventful. Although he does not have close contact with his father and his oldest brother, he has close contact with his mother, stepfather and other siblings.

5 The offender completed year 10 at Wyong High School and he obtained the School Certificate. After leaving school, he commenced an apprenticeship as a motor mechanic and obtained a certificate as a motor mechanic.

6 On 17 October 2005 the offender enlisted in the Australian Army. He has completed his basic training and has been placed in the Rifleman Wing of the School of Infantry. He has performed his duties to the required standard. As a result of his imprisonment for the commission of the subject offences, he will be discharged from the Army.

7 The offender is married. He is the stepfather of his wife’s two children, one aged ten aged and the other aged six years, from her earlier marriage. He is the father of his wife’s child aged six months.

8 The offender was in good physical and mental health until the subject motor vehicle collision. However, as a result of the collision, he suffered numerous significant injuries, as detailed in the report of Dr Pollock, Exhibit 2, for some of which he underwent surgical repair. He has made a good but not complete recovery from his injuries.

9 The offender is not a…