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District Court 1 May 2009

Regina v Nastassia Grady

[2009] NSWDC 202

Assault & violenceTraffic & driving
CRIMINAL LAW SENTENCE PLEA OF GUILTY AT EARLIEST OPPORTUNITY BLOOD ALCOHOL CONTENT 0.145 NO RELEVANT AGGRAVATING FACTORS IMPORTANCE OF GENERAL DETERRENCE

Citation: Regina v Nastassia Grady [2009] NSWDC 202
Court: District Court of New South Wales
Date: 1 May 2009
Judge(s): Cogswell SC DCJ

Background

The offender pleaded guilty to dangerous driving causing grievous bodily harm under s 52A of the Crimes Act 1900, following a head-on collision in Katoomba on 16 February 2008. She had been drinking from the early afternoon and drove a short distance into town with two friends as passengers. While driving along a narrow, crested street, she turned to speak to a passenger, causing her vehicle to cross onto the wrong side of the road and collide head-on with an oncoming car.

The offender's blood alcohol concentration (BAC) was measured at 0.145 grams per 100 millilitres of blood. One of her passengers, a close friend, had removed her seatbelt shortly before the collision and sustained serious injuries: a fractured jaw, two fractured vertebrae, and nerve damage to her right arm requiring surgery and causing prolonged absence from work. The offender pleaded guilty at the earliest available opportunity.

The sentencing proceedings addressed what weight should be given to various factors raised in mitigation, and whether a non-custodial sentence was available given the Court of Criminal Appeal's guideline judgment for this class of offence.

  • Whether the passenger's removal of her seatbelt mitigated the objective seriousness of the offending
  • Whether the driving could be characterised as involving "momentary inattention" in any meaningful mitigatory sense
  • Whether a non-custodial sentence was appropriate given the guideline judgment in R v Jurisic as amended in R v Whyte
  • How the offender's near-threshold BAC (0.145, just below the 0.15 aggravated offence threshold) should be weighed at sentencing

Decision

Cogswell SC DCJ held that the passenger's decision to remove her seatbelt did not mitigate the objective seriousness of the offence. Relying on the Court of Criminal Appeal's reasoning in Regina v Dutton [2005] NSWCCA 248, the court found it inappropriate to treat a victim's own conduct as reducing the offender's criminal culpability for placing others at risk. The reasoning applied whether or not the offender was aware of the passenger's conduct.

The court accepted that the driving involved an element of inattention but rejected the characterisation of this as mitigatory "momentary inattention." Because the offender's attention and driving were plainly impaired by alcohol, the inattention could not be treated as reducing her moral blameworthiness in the way that phrase ordinarily implies.

The BAC of 0.145 was treated as a significant aggravating feature, the court noting that the offence would have become the more serious "aggravated" version had the reading reached 0.15. While a number of factors typically associated with increased objective seriousness were absent (such as speed, aggressive driving, or competitive behaviour), the level of intoxication was found to be very high and central to the assessment of culpability.

The guideline judgment established that full-time custody of no less than two years is the starting point for this class of offence. Although the court gave considerable weight to the early guilty plea, genuine remorse, the offender's youth, and good character, it noted that the guideline already accounts for those typically present features. A non-custodial sentence was found not to be appropriate, and a sentence of 16 months' imprisonment was imposed, reduced from the guideline minimum to reflect the plea of guilty.

Orders Made

  • Imprisonment for 16 months, with a non-parole period of 6 months commencing 1 May 2009 (eligible for release 31 October 2009)
  • Balance of term of 10 months to be served on parole
  • Automatic licence disqualification of three years, backdated to commence 29 March 2008
  • Upon release, the offender directed to report to the Probation and Parole Office in Katoomba within two weeks

Key Takeaways

  • The District Court confirmed, applying Regina v Dutton, that a victim's own conduct (in this case, removing a seatbelt) does not mitigate the objective seriousness of dangerous driving causing grievous bodily harm, regardless of whether the offender was aware of that conduct.
  • A BAC of 0.145 was treated as near the statutory threshold for the aggravated offence (0.15), and the court weighed it heavily in assessing moral culpability, even in the absence of other aggravating factors such as speed or aggressive driving.
  • Under the Jurisic and Whyte guideline judgments, the starting point for this offence is full-time custody of no less than two years; personal mitigating features such as youth, remorse, good character, and an early guilty plea are already built into that baseline and do not, of themselves, displace the custodial threshold.
  • Where driving impaired by alcohol causes inattention, that inattention cannot be characterised as the type of "momentary inattention" that reduces a driver's blameworthiness.
  • Sufficient grounds existed to reduce the sentence below the guideline minimum to 16 months on account of the early guilty plea, but the nature of the offence precluded any non-custodial disposition.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 12, 50
- Road Transport (General) Act 2005 (NSW), s 188

Cases:
- R v Jurisic (1998) 45 NSWLR 209 (Court of Criminal Appeal guideline judgment)
- R v Whyte (2002) 55 NSWLR 252 (amended guideline judgment)
- Regina v Dutton [2005] NSWCCA 248