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District Court 15 August 2008

R v CHARTERS

[2008] NSWDC 258

Assault & violenceTraffic & driving
CRIMINAL LAW SENTENCE SIGNIFICANT INJURIES

Citation: R v Charters [2008] NSWDC 258
Court: District Court of New South Wales
Date: 15 August 2008
Judge(s): Berman SC DCJ

Background

On the night of 2 March 2007, the offender went out to celebrate a friend's birthday, consuming alcohol and a single ecstasy tablet. The following evening, he was still under the influence of ecstasy when he drove his car along Alfords Point Road at Menai with two friends as passengers.

The offender failed to negotiate a slight left-hand bend, crossed onto the wrong side of the road, and remained there until his vehicle collided head-on with a car driven by a woman identified as Mrs Hamilton. The collision generated considerable force. Photographs of the vehicles afterwards made it remarkable that no one died.

All three people in the path of the offender's conduct suffered serious injuries. Mrs Hamilton sustained multiple fractures, a subarachnoid haemorrhage (bleeding around the brain), and other significant trauma. Her life was permanently altered. Both passengers in the offender's vehicle also suffered grievous bodily harm requiring surgery.

  • What was the appropriate sentence for three counts of dangerous driving occasioning grievous bodily harm, where the offender drove while under the influence of ecstasy?
  • What weight should be given to the offender's youth, good character, guilty pleas, and remorse?
  • What weight, if any, should be given to the primary victim's expressed wish that the offender not receive full-time custody?
  • Whether the sentence should be served by way of full-time imprisonment or periodic detention.

Decision

Berman SC DCJ imposed an effective sentence of two and a half years imprisonment with a non-parole period of 18 months. The court noted the close factual parallel with the guideline judgment in R v Jurisic (1998), where an offender under the influence of cocaine similarly crossed to the wrong side of the road and caused head-on collisions resulting in three counts of grievous bodily harm. A key distinction was that the present offender was younger and had no prior traffic offences.

The court acknowledged significant mitigating factors: an early guilty plea (attracting a 25 per cent sentence reduction), youth, no prior criminal convictions, strong employment history, good character references, demonstrated remorse, and the acceptance of apologies by two of the three victims. The court also noted that the offender's regular use of illegal drugs qualified his otherwise good character, since that same conduct ultimately caused serious harm to three people.

On the question of Mrs Hamilton's wish that the offender not receive full-time custody, the court acknowledged her remarkable generosity but held that a sentencing court cannot act on a victim's desire for leniency any more than it can act on a desire for revenge. General deterrence required consideration of potential future victims, not only those who had been able to forgive. The safety of all road users, and the need to deter others from driving while drug-impaired, demanded a sentence of full-time imprisonment.

Periodic detention was rejected as inadequate. The court reasoned that after one-third of a periodic detention sentence is served, the overnight custody component falls away and the sentence effectively resembles a community service order. Such a sentence would not reflect the objective gravity of the offending or serve general deterrence adequately.

Orders Made

  • Count relating to Mrs Hamilton: imprisonment with a non-parole period of 1 year and a head sentence of 2 years, commencing 3 January 2009.
  • Counts relating to Mr Darwin and Mr Jones: imprisonment with a non-parole period of 1 year and a head sentence of 2 years, commencing 3 July 2008.
  • Effective aggregate sentence: non-parole period of 18 months, head sentence of 2 years and 6 months.
  • Eligible for release to parole on 2 January 2010.
  • Back-up charges on the section 166 Certificate dismissed.

Key Takeaways

  • The District Court confirmed that a victim's expressed wish for leniency, however admirable, is not a factor a sentencing court can act upon, because general deterrence must account for the protection of potential future victims, not only those directly harmed.
  • Driving while under the influence of a prohibited drug such as ecstasy, resulting in a head-on collision and serious injuries to multiple people, falls within the range of offending that ordinarily attracts full-time imprisonment, guided by the Jurisic guideline judgment.
  • Periodic detention was found to be an inadequate response to objectively serious dangerous driving offences, particularly where the sentence's custodial component progressively diminishes over time.
  • Genuine remorse, early guilty pleas, youth, good employment record, and positive character references operated as significant mitigating factors, producing a 25 per cent discount from the sentence that would otherwise have been imposed.
  • Regular unlawful drug use, even absent prior criminal convictions, was treated as a qualification on an otherwise positive character assessment, because it formed a direct causal link to the offending conduct.

Legislation and Cases Referenced

Cases:
- R v Jurisic (1998) 45 NSWLR 209 (New South Wales Court of Criminal Appeal guideline judgment on dangerous driving occasioning death or grievous bodily harm)
- R v Whyte (2002) 55 NSWLR 252 (Court of Criminal Appeal reconsideration of Jurisic)

Legislation:
- No specific legislative provisions were cited by name in the text provided. The charges relate to the offence of dangerous driving occasioning grievous bodily harm under the Crimes Act 1900 (NSW).