Citation: Police v Christopher James Turner [2011] NSWLC 27
Court: Local Court of New South Wales
Date: 18 August 2011
Judge: Magistrate P.S. Dare SC
Background
A 19-year-old P1 provisional licence holder pleaded guilty to driving in a manner dangerous to the public causing grievous bodily harm, and to a special range prescribed concentration of alcohol (PCA) offence. The charges arose from a single-vehicle crash on Lachlan Valley Way near Boorowa at approximately 7:55am on 4 July 2010, during heavy fog that reduced visibility to around 100 metres.
The offender had spent the previous evening drinking at a local hotel and then at a Canberra nightclub, consuming an estimated 6 to 7 mid-strength beers and around 5 Vodka Cruisers. He drove home with his front-seat passenger asleep beside him, having stopped once for approximately 30 minutes to rest. Three independent witnesses observed the vehicle weaving and crossing the centre line before it left the roadway and struck a large gum tree on the passenger side.
The front-seat passenger, Joseph Banks, suffered severe and complex injuries including compound fractures, dislocations, arterial damage, and post-operative infections requiring multiple surgeries, skin grafts, and extended hospitalisation. The prognosis included likely permanent disability to his arm.
Legal Issues
- Whether the combination of sleep deprivation and alcohol could be treated as an aggravating factor under s 52A(3) of the Crimes Act 1900 without breaching the De Simoni principle (which prevents a court from sentencing an offender on the basis of facts that would establish a more serious offence of which they were not convicted)
- The appropriate weight to give the offender's youth and good character against the objective gravity of the offence
- Whether a custodial sentence was warranted for a first offender aged 19 with no prior criminal history
- The applicable periods of licence disqualification for each charge
Decision
Magistrate Dare found that treating the combination of sleep deprivation and alcohol as an aggravating circumstance under s 52A(3) did not breach the De Simoni principles. The section expressly contemplates the presence of multiple concurrent factors that together elevate the moral culpability of the driving conduct. Applying those factors jointly was consistent with the terms of the provision, not a means of punishing the offender for a more serious uncharged offence.
The Magistrate assessed the objective gravity of the offence as high. The offender had knowingly continued driving when fatigued, had consumed alcohol in breach of his zero-limit provisional licence conditions, was observed weaving by three witnesses, and drove in conditions of reduced visibility. The Magistrate characterised this as a serious abandonment of responsibility for a fellow passenger who had trusted him.
On the question of youth and character, the Magistrate acknowledged the offender's age, completed schooling, stable employment, and absence of prior criminal convictions as genuine mitigating matters. However, those factors were held insufficient to displace the need for a custodial sentence, given the seriousness of the offending, the gravity of the victim's injuries, and the need for general deterrence in dangerous driving cases. Special circumstances were found to exist, primarily on the basis of the offender's age, his first time in custody, and the need for extended post-release supervision.
Orders Made
Charge 1: Drive manner dangerous causing grievous bodily harm (s 52A(3)(c), Crimes Act 1900)
- Convicted and sentenced to a term of imprisonment with a non-parole period (specific figures not reproduced in the text provided)
- Special circumstances found; parole recommended at expiry of non-parole period, subject to supervision by Probation and Parole Service
- Licence disqualification: 18 months from 18 August 2011
- Offender directed to surrender licence immediately
Charge 2: Special range PCA as a P1 provisional licence holder (s 9(1)(a), Road Transport (Safety and Traffic Management) Act 1999)
- Convicted and fined $500 plus $81 court costs
- Licence disqualification: 6 months from 18 August 2011
Additional direction: The Magistrate recommended to the Department of Corrective Services that the offender be classified to serve his sentence at Manus Correctional Centre, Tumbarumba, or a similar institution, and directed the Registrar to endorse the Warrant of Commitment accordingly.
Key Takeaways
- Sentencing a young offender with no prior criminal record to imprisonment is not precluded where the objective gravity of the offence and the need for general deterrence are sufficiently significant, as this decision illustrates in the context of dangerous driving causing serious injury.
- Under s 52A(3) of the Crimes Act 1900, a court may treat the combination of sleep deprivation and alcohol as a compound aggravating circumstance without breaching the De Simoni principle, provided this does not amount to punishing the offender for a more serious uncharged offence.
- A P1 provisional licence holder who drives with any measurable blood alcohol concentration commits a separate offence under the Road Transport (Safety and Traffic Management) Act 1999, attracting an automatic disqualification period independent of any dangerous driving charge.
- The moral culpability of a driver who knowingly continues to drive while fatigued, under reduced-visibility conditions, in breach of licence conditions, and after consuming alcohol is treated as substantially elevated, particularly where a passenger is injured.
- Special circumstances permitting a longer parole period relative to the non-parole period may be found where the offender is young, is entering custody for the first time, and requires structured supervision on release.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 52A(3)(c), s 52A(5)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 50, 51
- Road Transport (General) Act 2005 (NSW), ss 3, 188(2)(d), 189
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 9(1)(a)
Cases
- Blundell v R [2008] NSWCCA 92
- Cheung v The Queen (2001) 209 CLR 1
- Duffy v R; Mangan v R [2009] NSWCCA 304
- Gonzalez v R [2006] NSWCCA 4
- Markham v R [2007] NSWCCA 295
- Mill v The Queen (1988) 166 CLR 59
- O'Neill v R [1979] 2 NSWLR 582
- R v Berg [2004] NSWCCA 300
- R v Borkowski [2009] NSWCCA 102
- R v Dodd (1991) 57 A Crim R 349
- R v Douglas (1998) 29 MVR 316
- R v Dutton [2005] NSWCCA 248
- R v El-Hayek (2004) 144 A Crim R 90
- R v Errington (2005) 157 A Crim R 553
- R v H (1980) 3 A Crim R 53
- R v Jurisic (1998) 45 NSWLR 209
- R v King (2004) 150 A Crim R 409
- R v MA (2004) 145 A Crim R 434
- R v Musumeci (Unreported, NSWCCA, 30 October 1997)
- R v Olbrich (1999) 199 CLR 270