Citation: R v Perry [2011] NSWDC 70
Court: District Court of New South Wales
Date: 24 June 2011
Judge(s): Berman SC DCJ
Background
An eighteen-year-old provisional licence holder drove her parents' car in the early hours of a Tuesday morning in December 2009, having consumed a substantial amount of alcohol throughout the preceding day. Her blood alcohol level at the time of the collision was at least 0.142, well above the zero limit applicable to P-plate drivers, and she had also had very little sleep. The offender was not displaying her P-plates.
Driving along Captain Cook Drive at Kurnell, she appears to have fallen asleep at the wheel. Her vehicle crossed to the wrong side of the road and collided head-on with an oncoming car. The other driver, who was driving entirely lawfully, sustained severe and permanent injuries and was hospitalised for 79 days, much of that time in intensive care with multiple fractures, massive facial injuries, and significant long-term physical and psychological consequences.
The offender was charged with dangerous driving occasioning grievous bodily harm. A Form 1 offence of failing to display P-plates was also taken into account. She pleaded guilty at an early stage. The proceedings before Berman SC DCJ concerned the appropriate sentence.
Legal Issues
- What level of moral culpability attached to the offender's conduct, having regard to her blood alcohol level, sleep deprivation, and her untreated attention deficit disorder (ADD)?
- Whether the victim's expressed forgiveness and desire that the offender not suffer lifelong consequences could bear on the sentence imposed.
- Whether a custodial sentence was required and, if so, whether an Intensive Correction Order (ICO) was appropriate in the circumstances.
Decision
His Honour rejected the offender's suggestion that she may not have realised her blood alcohol level exceeded zero. Given a reading of at least 0.142 and her experience working at a licensed venue (having completed her RSA qualification), the court was satisfied she knew she should not have been driving. That knowledge significantly elevated her moral culpability. The decision to drive was characterised as a deliberate decision to commit a criminal act.
The court acknowledged one mitigating factor of some weight: the offender had ceased taking medication for ADD, and evidence indicated that untreated ADD increases impulsivity and the risk of driving-related offences. His Honour accepted that the offender could not have foreseen the connection between stopping her medication and the offending. Nevertheless, moral culpability was still described as clearly substantial, given the combination of significant intoxication and sleep deprivation.
On the question of the victim's forgiveness, His Honour was unambiguous. Courts have responsibilities extending beyond the immediate parties to an offence. Reducing a sentence because a victim has expressed forgiveness would fail to account for the broader community of potential victims and the purposes of criminal sentencing. Just as courts must disregard calls for disproportionately harsh punishment, they must equally disregard expressions of leniency, however commendable the sentiment.
The court found that a custodial sentence was required, consistent with the Court of Criminal Appeal's guidance in R v Whyte concerning the typical serious dangerous driving case. However, the offender's early plea of guilty and the assessment of her suitability weighed in favour of an Intensive Correction Order rather than full-time imprisonment. His Honour emphasised that the offender came extremely close to a full custodial sentence.
Orders Made
- The offender was sentenced to two years' imprisonment, to be served by way of an Intensive Correction Order commencing 13 July 2011.
- The sentence was subject to mandatory conditions including: good behaviour and no further offences; residence at an approved address; no travel outside New South Wales or Australia without permission; compliance with directions; submission to alcohol and drug testing, surveillance, and monitoring; home visits; participation in required activities; and 32 hours of community service per month.
- The Form 1 offence of failing to display P-plates was taken into account in the sentence.
Key Takeaways
- A court cannot reduce a sentence because a victim has expressed forgiveness or a desire that the offender not suffer lasting consequences. Sentencing serves purposes that extend to the broader community and potential future victims, not only to those directly involved in the particular offence.
- Where a defendant knowingly drives with a blood alcohol level significantly above the applicable limit and while severely sleep-deprived, moral culpability is clearly substantial, even where a mitigating medical factor (such as untreated ADD) is accepted.
- An untreated mental health or neurological condition may partially mitigate moral culpability where the offender could not have foreseen the connection between that condition and the offending conduct, but it does not displace the need for a custodial sentence in a serious dangerous driving case.
- The District Court treated this matter as broadly consistent with the "typical recurring case" described in R v Whyte [2002] NSWCCA 343, while noting that an early guilty plea was a distinguishing feature that weighed in the offender's favour.
- An Intensive Correction Order remains available as the sentencing vehicle for a two-year term in a serious dangerous driving case, but only where an assessment of suitability supports it. His Honour made clear that full-time imprisonment was the alternative that nearly applied.
Legislation and Cases Referenced
Cases:
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
Legislation:
- Crimes (Administration of Sentences) Regulation, clause 175 (mandatory conditions for Intensive Correction Orders)