Regina v Nastassia Grady

[2009] NSWDC 202

CITATION:	Regina v Nastassia Grady [2009] NSWDC 202
JUDGMENT DATE:	1 May 2009
JURISDICTION:	200819105
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Non-parole period of 6 months. Balance of term of 10 months
CATCHWORDS:	CRIMINAL LAW - sentence - dangerous driving causing gervious bodily harm - plea of guilty at earliest opportunity - blood alcohol content 0.145 - passenger removing seatbelt does not mitigate the objective seriousness of the accident - no relevant aggravating factors - importance of general deterrence - guideline judgment - non full time custodial not appropriate
LEGISLATION CITED:	Crimes Act 1900 s 52A Crimes (Sentencing Procedure) Act 1999 s 3, s 12, s 50 Road Transport (General) Act 2005 s 188
CASES CITED:	Regina v Dutton [2005] NSWCCA 248 R v Jurisic (1998) 45 NSWLR 209 R v Whyte (2002) 55 NSWLR 252
PARTIES:	Regina Nastassia Grady
FILE NUMBER(S):	200819105
SOLICITORS:	Director of Public Prosecutions Benetatos White

JUDGMENT

1. The crime of dangerous driving causing someone grievous bodily harm is set out in s 52A of the Crimes Act 1900. It carries a maximum sentence of seven years imprisonment. Judges who sentence people for this offence have been provided by the New South Wales Court of Criminal Appeal with assistance. That assistance is in the form of a guideline judgment which has been delivered by the Court of Criminal Appeal. After the original guideline judgment in Jurisic (1998) 45 NSWLR 209 the Court of Criminal Appeal amended it in Whyte (2002) 55 NSWLR 252.

2. The reason I refer to the guideline judgment at this stage is that the Chief Justice, in referring to the kinds of cases which represent a typical example of this crime, listed a number of factors. Included amongst those factors are that offenders are typically young and without any or limited prior criminal convictions. Typically also they plead guilty and are genuinely remorseful for what has happened. Despite those typical features the Court of Criminal Appeal set a guideline relevantly for the kind of offence which Ms Grady has committed of a fulltime custodial sentence of no less than two years. Often judges can give significant weight in sentencing offenders to their youth, their good character, their remorse and a plea of guilty. Those factors do still carry weight but they are already taken into account in the Court of Criminal Appeal’s guideline judgment.

3. I need to say something about what happened in this case which caused Ms Grady to be charged with this crime. She was having drinks at a friend’s place on Saturday 16 February 2008. The friend’s place was in Katoomba. She was there from about 1 in the afternoon until about 7.30 when they decided to go out. They were going what I am satisfied is a short distance from place in Katoomba into town. Ms Grady was driving with her two friends as passengers. She was going along Victoria Street in Katoomba. Victoria Street is a narrow street and has several crests.

4. As she was driving she turned to talk to one of the other passengers. As she did this her car went on to the wrong side of the road. It went on to the wrong side of the road at a very dangerous time because there was a car coming the other way and reaching the crest of the hill at about the same time. The other car was being driven by a man and his wife. When the other driver saw Ms Grady’s car coming he found, because of the narrowness of the road and trees next to the road, that he could not do anything to avoid the collision. The two cars had a head-on collision.

5. A number of other facts are important to note following the accident. The first and most significant is that when Ms Grady was assessed for her blood alcohol content the reading was 0.145 grams of alcohol in a hundred millilitres of blood. The second is that one of her passengers - a good friend of hers called Amanda Burgess - was seriously injured. As it happened she had unfortunately removed her seatbelt to get something from the floor shortly before the accident. She fractured her mandible. She had to go into hospital at some stage after the accident. She was found to have two fractured vertebrae in her back and these caused damage to the nerves supplying her right arm. That meant that she had to stop work. In fact she had to undergo surgery about six months after the accident on the nerves in her shoulder. By 19 January this year a doctor reported that she had some return of function in her biceps but had no shoulder abduction although she did have some shoulder control.

6. There is no evidence to say that the injuries were permanent but they were obviously serious injuries. Ms Summerfield who appeared for the Prosecutor submitted that they were in the middle of the range of injuries for grievous bodily harm but at the lower end. Mr Benetatos who appears for Ms Grady agreed with that assessment and in my opinion both of them are correct in assessing the injury in that way. Ms Burgess has only recently been able to return to work where she is on some restricted duties.

7. The road was dry at the time of the accident and it was dusk and there was little traffic. Ms Grady was charged with this offence by a Court Attendance Notice. She pleaded guilty at what Ms Summerfield agreed was the earliest available opportunity and in due course I will take that into account. 8. In his helpful submissions Mr Benetatos highlighted a number of features of the accident which he argued I should take into account so far as assessing how serious the accident was. Although acknowledging that it was not a case of momentary inattention he argued that there was an issue or an aspect of momentary inattention about the accident. He said the momentary inattention could be described as the primary cause.

9. Whilst acknowledging that there is an aspect of momentary inattention, in my opinion it is not momentary inattention of the kind that reduces the blameworthiness of a driver. This is so in this case because Ms Grady’s driving and attention were obviously affected by the level of alcohol in her blood.
10. Another argument that Mr Benetatos put forward concerned the fact that the victim of the accident had removed her seatbelt. He argued that if she had not removed her seatbelt then the level of her injuries may not have reached grievous bodily harm. He argued that the driver did not have any particular control over the fact that her passenger had removed the seatbelt.

11. I was quite attracted to that argument until I read the Court of Criminal Appeal’s judgement in Regina v Dutton [2005] NSWCCA 248, a case where a passenger had her arm out of the window when the offending driver hit another car resulting in the passenger losing her hand. Howie J with whom Studdert and Kirby JJ agreed said the following at [35]:

“ Contrary to submissions made on behalf of the respondent, the fact that the victim had her arm out of the window was not a matter of any relevance, whether the respondent was aware of the fact or not. It is not appropriate to have regard to the conduct of the victim as mitigating the respondent's criminal behaviour in putting members of the public, including her passenger, at risk.”

I therefore do not regard the fact that the passenger did not have a seatbelt as mitigating the objective seriousness of the accident in this case.

12. Mr Benetatos realistically acknowledged an important aspect of this case which is this; the level of intoxication as I said was measured at 0.145. Parliament has created in addition to this offence an offence called aggravated dangerous driving occasioning grievous bodily harm. If a person is convicted of an aggravated offence they are liable to eleven years imprisonment instead of seven. One of the ways in which a person can commit an aggravated version of the same offence is to drive whilst they have a blood alcohol reading of at least 0.15. This means that the level of intoxication which Ms Grady had when she was driving was almost at the highest that it could be before this offence became a more aggravated one. In other words I regard her level of intoxication as being very high.

13. Mr Benetatos correctly pointed out that there were absent from the circumstances of this accident a number of the aggravating features which are referred to in the guideline judgment. There was no issue of speed, there was no aggressive driving, there was one erratic manoeuvre but that was the result of the alcohol affected inattention. There was no competitive driving, it was a relatively short journey and there were no instances of ignoring warnings, escaping police, sleep deprivation or failure to stop. However so far as Ms Grady’s moral culpability - moral blameworthiness - is concerned, as I said her intoxication level was very high.

14. Two other aspects of the accident which are relevant in assessing how serious it is are these. The first is - what I have already referred to - that the injuries sustained by Amanda Burgess were serious injuries. They were in the middle of the range for grievous bodily harm, although at the lower end. The other factor is that in driving in the circumstances that she did Ms Grady exposed at least four people to risk. In fact I find that, because the traffic was light, the number of people exposed to risk was four. They comprised her two passengers one of whom was injured and the two occupants of the other car. I might add that the photographs which are part of exhibit A demonstrates just how serious the accident was in that the other car’s front bonnet area was substantially damaged.

15. Ms Summerfield pointed out that there were no aggravating factors relevant to be taken under account under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. Mr Benetatos referred to a number of mitigating factors contained in subs 3 of that section. In doing so he referred to evidence which his client and his client’s father had given because he, with respect sensibly, called them both to give evidence.

16. Ms Grady has undertaken a driver education program which she has completed and regards it as very effective. She acknowledged that she became quite distraught looking at some of the photographs and realised that she could have died in the accident or killed somebody else. She accepts that it was her own fault and happened whilst she was driving when she should not have. She acknowledged that her drinking and inattention brought about the accident. She said she knew that she should not have been driving. She said she felt terrible about what happened and acknowledged that she could have killed her best friend. She understood the injuries which her friend has sustained and the impact it has had on her life and her lifestyle.

17. Mr Steven Grady, Ms Grady’s father, gave evidence about his daughter’s drinking habits being quite unhealthy before this accident in the sense that she drank regularly to excess but he said that the effect of the accident and Ms Grady becoming a mother - which she did in December last year - seem to have brought about a significant change and she has turned herself around. He described her as a different girl; her drinking habits for example have changed substantially for the better. Thus Mr Benetatos argues that the mitigating factors which can be taken into account include an unlikelihood that his client will re-offend - and I make that finding - and her good prospects of rehabilitation. I also find that in her favour because of the course which she did and her change in her drinking habits.

18. Mr Benetatos acknowledges that the appropriate penalty would be a term of imprisonment, however he argues that there is scope for that term to be suspended under s 12 of the Crimes (Sentencing Procedure) Act or for orders to be made for the sentence to be served by way of periodic detention or home detention. Ms Summerfield argues that the case is one which warrants a period of fulltime custody. She says that fulltime custody is appropriate because of the level of moral culpability. She acknowledges that Ms Grady could be referred for assessment for a home detention order.

19. The statistics produced by the Judicial Commission disclose that just under fifty per cent of offenders receive fulltime custodial sentences and other offenders receive a range of penalties mostly to do with imprisonment being served in one form or another.

20. I need to take into account in sentencing anyone, as all judges do, the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act. One of the important aspects of sentencing for these crimes typically committed by young offenders without a criminal record who plead guilty is deterrence. The purpose is described by Parliament as preventing crime “by deterring the offender and other persons from committing similar offences”. I need also take into account promoting Ms Grady’s rehabilitation and making her accountable for her actions as well as recognising the harm done to the victim. The Court of Criminal Appeal has emphasised the importance, in cases such as this, of judges imposing sentences which will deter other young offenders from committing similar crimes.

21. I should add - because I should record that I have not overlooked it - that the fact that Ms Grady has been a mother since December last year has some weight in assessing her personal circumstances but carries little or no weight so far as mitigating the sentence is concerned. The Court of Criminal Appeal has made it clear that a usual and unfortunate consequence of people committing crimes is the impact which those crimes will have on other members of their family.

22. Another fact which I note is that at the time of committing this crime Ms Grady had been confronting some personal difficulties within the family including her grandfather’s death and her own father’s illness.

23. Because of the seriousness of the crime and taking into account the guideline judgment I consider no other alternative than imprisonment is appropriate. I have given consideration to whether such a term of imprisonment which is likely to be two years or less should be suspended or served by way of periodic detention or home detention order. I do not regard a suspended sentence as appropriate at all and I note a number of prosecution appeals to the Court of Criminal Appeal have indicated that, in cases not unlike this, a suspended sentence is entirely inappropriate. I do not regard a Period Detention Order as appropriate because of the degree of lenience which is attached to it.

24. I have given anxious consideration to whether I should order Ms Grady to be assessed for a home detention order. I have reluctantly come to the conclusion that that is not an appropriate option either. The reason for that is that Ms Grady’s case is unfortunately typical of many of the kinds of crimes committed by young drivers in her circumstances. The case falls very much within the parameters of the kind of offending behaviour which the Court of Criminal Appeal had in mind in fixing a guideline judgment. In other words, as I said earlier the facts that she is now only twenty without prior convictions and is obviously remorseful and has pleaded guilty carry less weight than they might otherwise as a result of the guideline judgment.

25. Another reason that I regard a home detention order as not appropriate is the level of intoxication with which Ms Grady was driving. As I said it fell just short of the level at which she would have been charged with a more serious version of the offence. In other words she was driving with a level of alcohol at almost the highest it could be for this crime. In those circumstances I do not regard it as appropriate that a home detention order which carries with it a significant degree of leniency should be imposed.

26. The guideline judgement suggests that a sentence of no less than two years is appropriate. The guideline judgment says that it is appropriate where an offender’s moral culpability is high. I regard Ms Grady’s moral culpability as high as a result of the one factor of her level of intoxication. Because of the absence of other factors which may have made it even higher I propose to lessen the guideline sentence of two years by six months to eighteen months.

27. The guideline takes into account a plea of guilty of limited utilitarian value. However Ms Grady is entitled to the maximum discount of twenty-five per cent because of her plea of guilty at the earliest opportunity. The guideline already has factored into it a discount but not as much as twenty-five per cent, I therefore propose to reduce the sentence by two months to take into account her plea of guilty so that the sentence will be sixteen months imprisonment.

28. Mr Benetatos argues and Ms Summerfield acknowledges that there are special circumstances which justify me in altering the normal ratio between a nonparole period and the balance of parole. Normally for a case where a sentence is sixteen months the offender would serve twelve months as a nonparole period and four months on parole. The special circumstance which I give particular weight to is that this will be Ms Grady’s first time in custody. I also take into account the fact that she is very young and I take into account, as a special circumstance in adjusting the ratio, the fact that she has a young daughter. I therefore propose to fix a nonparole period of six months with a balance of the term being ten months. Now would you stand up Ms Grady.

29. Ms Grady I set a nonparole period of six months to date from today, the balance of the term will be ten months. The nonparole period of six months will be from today 1 May 2009 and conclude on 30 November 2009. The balance of the term will be ten months from 1 December 2009 and conclude on 30 September 2010. I under s 50 of the Crimes (Sentencing Procedure) Act 1999 I make an order directing your release on parole on 30 November 2009.

HIS HONOUR: All right have a seat Ms Grady. Now a number of things first: just whether I have got - I am talking to Mr Benetatos and Ms Bryan - whether I have got the figures right. I think I might not have, I think it should be to 30 October ‘09, am I right? Yes it should be from 1 May to 30 October.

BENETATOS: Yes your Honour I think that is right.

HIS HONOUR: So it should be 1 November to probably 31 August, is that right?

BENETATOS: Yes.

HIS HONOUR: Now just both check that so it seems that the non-parole period 1 May ‘09 to 30 October ‘09 and balance - 31 October yes thank you.

BRYAN: Yes.

BENETATOS: Yes.

HIS HONOUR: 31 October ’09 and balance of ten months from 1 November ’09 to 31 August ’10, do you both agree with that?

BRYAN: Yes.

BENETATOS: Yes your Honour.

HIS HONOUR: Now I have not yet ordered any conditions of parole, I do not know whether either of you are suggesting that there be any conditions of parole, your client has done the course--

BENETATOS: Mm.

HIS HONOUR: --she is changing her drinking habits, are there any - yes Ms Summerfield or you have a word to the - where there is any conditions you might recommend either of you.

SUMMERFIELD: Perhaps your Honour to be prudent if there would be supervision--

HIS HONOUR: By the Probation and Parole Service or the--

SUMMERFIELD: By the Probation and Parole Service.

HIS HONOUR: Yes.

SUMMERFIELD: To address any alcohol issue--

HIS HONOUR: Yes I was wondering that.

SUMMERFIELD: --at that particular time and perhaps the supervision can be ceased if it is assessed that the issue is no longer an ongoing issue.

HIS HONOUR: All right good. Mr Benetatos?

BENETATOS: No objection to that I do not--

HIS HONOUR: No, any other suggestions?

BENETATOS: Nothing else I can think of thank you your Honour.

HIS HONOUR: Okay. So I will just change the direction I gave.

30. The non-parole period which is set is six months from 1 May 2009 to 31 October 2009. The balance of the term is ten months from 1 November 2009 to 31 August 2010. Under s 50 of the Crimes (Sentencing Procedure) Act 1999 I make an order directing Ms Grady’s release on parole on 31 October 2009. The conditions of parole are that she be supervised by the New South Wales Probation and Parole Service. For this purpose she should report within fourteen days of her release to the Probation and Parole Office at - is there one at Katoomba?

BENETATOS: At Katoomba your Honour.

HIS HONOUR: At Katoomba, she should accept their supervision including reasonable recommendations and directions with regard to any support which they suggest concerning alcohol issues if the Probation and Parole Service regard that as appropriate.

HIS HONOUR: Now in a moment I will explain the sentence to you Ms Grady but are there any other matters that I need to attend to Ms Summerfield?

SUMMERFIELD: In relation to disqualification your Honour.

HIS HONOUR: What about it yes.

SUMMERFIELD: The Crown would be seeking that a three year disqualification period which is the automatic disqualification for this offence.

HIS HONOUR: Is that the automatic? What is the - is it in the section? Fifty-two. It might be I do not need to make an order.

BRYAN: It is 188.

HIS HONOUR: It might be automatic. Do I need to make an order?

BRYAN: It is 188 (2)(d) of the Roads and Traffic(as said) (General) Act.

HIS HONOUR: Volume?

SUMMERFIELD: Yes it that is volume 2 your Honour.

HIS HONOUR: Which volume 2?

SUMMERFIELD: It is Road Traffic(as said) (General) Act s 188.

HIS HONOUR: Yes.

SUMMERFIELD: Indicates three years automatic or longer but not less than twelve months. That is s 188 subs (2)(d).

HIS HONOUR: Thank you.

SUMMERFIELD: I am sorry - yes subs (2)(d).

HIS HONOUR: Yes no previous offence. I do not need to make an order but I will explain that to Ms Grady, it is automatic. All right anything else?

BENETATOS: Your Honour I just note in relation that her licence was suspended from the day of the accident and I would ask that the period of disqualification be backdated to that date.

HIS HONOUR: I am happy to do that yes.

BENETATOS: Thank you.

HIS HONOUR: Anything else?

BENETATOS: No Your Honour.

SUMMERFIELD: No your Honour.

31. Ms Grady I have reluctantly - but I think I had - to sentenced you to gaol. You have got sixteen months which is reduced because of your plea of guilty and I have significantly adjusted the nonparole period. Normally it would be twelve months but I have brought that down to six months. So you have got to go into gaol for six months from today and you will be released on 31 October this year. Then you have got the balance you are still under sentence for the following ten months but you are on parole. Do you understand that?

OFFENDER: (No verbal reply)

32. And I have said that two weeks after you are released you have to go to the Probation and Parole Office in Katoomba and accept any recommendations that they have. Obviously from your evidence and from your dad’s evidence there was an alcohol issue. It sounds as though you are dealing with that but I am just suggesting you go along and see them in case they have got some suggestions. If they think that there is not an issue then that is fine.

33. The first date on which you are eligible for release is 31 October 2009.

34. I will make an order, which I do now, that the automatic disqualification period of three years from holding your driver licence is to date from 16 February 2008.

SUMMERFIELD: It was the 29 March 2008 that the licence was suspended from your Honour.

HIS HONOUR: Was it?

SUMMERFIELD: She was not charged.

HIS HONOUR: Yes I see.

BENETATOS: My apologies your Honour.

HIS HONOUR: Yes from 29 March ’08?

SUMMERFIELD: Yes your Honour.

35. The licence disqualification period will commence on 29 March 2008, do you understand that?

OFFENDER: (No verbal reply)

HIS HONOUR: Okay all right.

ADJOURNED

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