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District Court 18 November 2009

R v Stuart John INNES

[2009] NSWDC 345

Assault & violenceTraffic & driving
CRIMINAL LAW SENTENCING

Citation: R v Stuart John Innes [2009] NSWDC 345
Court: District Court of New South Wales
Date: 18 November 2009
Judge(s): Norrish QC DCJ

Background

The offender pleaded guilty to two counts of aggravated dangerous driving occasioning grievous bodily harm, contrary to section 52A(4) of the Crimes Act 1900, each carrying a maximum penalty of eleven years imprisonment. Both offences arose from the same incident on 6 December 2008 at Woolgoolga, when the offender drove a Toyota Hilux utility while under the influence of alcohol and was involved in a collision that caused grievous bodily harm to two people: a male victim and a female school counsellor.

A blood sample taken after 1am on 7 December 2008 recorded a blood alcohol concentration of 0.233 grams per 100 millilitres, placing the offender in the high-range prescribed concentration category. The offender was himself seriously injured in the collision and was hospitalised, which is why police were unable to charge him until March 2009 when Court Attendance Notices were issued.

The male victim gave evidence at the sentencing hearing about his current circumstances. The female victim had been due to commence part-time work as a school counsellor in 2009 but was unable to do so because of injuries sustained in the accident, and subsequently retired.

  • What was the appropriate total sentence for two counts of aggravated dangerous driving occasioning grievous bodily harm, having regard to the objective seriousness of the offences and the offender's subjective circumstances?
  • Whether a 25% discount for the guilty pleas was appropriate, and whether the pleas were entered at the first reasonable opportunity.
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
  • Whether concurrent or partly accumulated sentences should be imposed, given that both offences arose from the same criminal act.
  • What was the appropriate commencement date for the period of licence disqualification, given that the formal suspension was delayed by the offender's hospitalisation?

Decision

The court imposed a total effective sentence of three years and nine months imprisonment across the two counts, with a finding of special circumstances on each count. The first count (grievous bodily harm to the female victim) attracted a sentence of three years, comprising a non-parole period of one year and eleven months commencing 18 November 2009, and a balance of one year and one month. The second count (grievous bodily harm to the male victim) attracted a sentence of three years, commencing nine months into the first sentence, with a non-parole period of one year and two months and a balance of one year and ten months.

A 25% discount was applied to the otherwise appropriate sentence to reflect the utilitarian value of the guilty pleas. The court accepted that the offender had pleaded guilty at the first reasonable opportunity after the full brief had been served upon him, consistent with the guideline judgment in Thomson and Houlton.

Special circumstances were found on both counts. The court identified the extended supervision period as necessary to assist the offender's reintegration into community life, and to support ongoing alcohol counselling, given the nature of the offending. The partial accumulation of the sentences was itself treated as a further basis for the special circumstances finding on the second count.

On the question of licence disqualification, the court imposed a four-year disqualification period on each count. The court determined that the disqualification should run from 6 December 2008, the date of the offence, rather than from March 2009 when the formal suspension was issued. The court reasoned that the delayed suspension was a direct consequence of the offender's hospitalisation and was not attributable to any fault of the offender or the prosecution. The offender had not driven since the date of the accident.

Orders Made

  • Count 1 (grievous bodily harm to female victim): Convicted. Sentenced to three years imprisonment, comprising a non-parole period of one year and eleven months commencing 18 November 2009, expiring 17 October 2011, with a balance of one year and one month expiring 17 November 2012. Eligible for parole on 17 October 2011.
  • Count 2 (grievous bodily harm to male victim): Convicted. Sentenced to three years imprisonment, comprising a non-parole period of one year and two months commencing 18 August 2010, expiring 17 October 2011, with a balance of one year and ten months expiring 17 August 2013. Eligible for parole on 17 October 2011.
  • Special circumstances found in respect of each count.
  • Licence disqualification of four years imposed on each count, commencing 6 December 2008 and expiring 5 December 2012.
  • Backup charges on the section 166 certificate dismissed pursuant to section 167 of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • A blood alcohol concentration of 0.233 grams per 100 millilitres, combined with injuries to two separate victims arising from the same driving act, placed this offending at a significant level of objective seriousness warranting a total sentence approaching four years.
  • Where guilty pleas are entered at the first reasonable opportunity following service of the full brief, a 25% discount remains available even where the prosecution of the matter is not straightforward, consistent with the Thomson and Houlton guideline.
  • Special circumstances can be found based on the combination of partial sentence accumulation and the offender's need for an extended supervision period to address alcohol issues and facilitate reintegration.
  • The District Court treated the commencement date of a licence disqualification as appropriately running from the date of the offence, not the date of formal police suspension, where the delay in suspension was caused solely by the offender's hospitalisation and the offender had not driven in the intervening period.
  • Partial accumulation of sentences for multiple victims arising from a single episode of criminal conduct reflects the principle that separate harm was occasioned to each victim, while also giving effect to the totality principle.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 166, 167

Cases:
- 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