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District Court 14 June 2012

R v Batterham

[2012] NSWDC 185

Traffic & drivingPublic order & justice offences
CRIMINAL LAW SENTENCE FAIL TO STOP AND RENDER ASSISTANCE PREVIOUS CONVICTIONS FOR HIGH RANGE PCA DRIVING WHILST DISQUALIFIED

Citation: R v Batterham [2012] NSWDC 185
Court: District Court of New South Wales
Date: 14 June 2012
Judge: Berman SC DCJ

Background

The offender, a 34-year-old man with four prior convictions for driving with the prescribed concentration of alcohol (including three for high range PCA), appeared for sentencing following early guilty pleas to multiple offences arising from a collision on 21 May 2011 in Cessnock. At the time of the collision, the offender was both disqualified from driving and heavily intoxicated, with an estimated blood alcohol concentration of between .216 and .286 (most likely .243), combined with recently consumed diazepam at levels above the usual therapeutic range.

The offender drove on the wrong side of the road without headlights, colliding head-on with a vehicle travelling lawfully in the opposite direction. The force of the impact tore the front wheel from the other vehicle, which then rotated, mounted a kerb, severed a tree, and rolled over, coming to rest approximately 28 metres from the point of collision. After getting out of his vehicle and being observed by bystanders who could smell alcohol on him, the offender walked away from the scene.

One passenger in the struck vehicle, Mr Edmonds, suffered catastrophic injuries including a ruptured diaphragm, fractured pelvis and hip, fractured femur, fractured jaw, a tear in his thoracic aorta requiring urgent surgery, and a lacerated bowel. He was hospitalised for approximately two months, required further surgery, and remained unfit for work at the time of sentencing. He also developed psychological difficulties requiring psychiatric treatment.

  • What head sentence and non-parole period were appropriate for aggravated dangerous driving occasioning grievous bodily harm, given the severity of the offending and the offender's criminal history?
  • Whether partial accumulation of sentences across multiple separate offences was warranted.
  • Whether special circumstances existed to justify a longer-than-standard parole period relative to the non-parole period.
  • What weight, if any, should be given to the absence of expressed remorse, and to the guilty plea entered at an early stage.
  • What significance attached to the fact that the matter had twice previously been listed but not reached.

Decision

Berman SC DCJ found that a substantial custodial sentence was inevitable and that significant personal and general deterrence were required. The offender's driving history, including three prior high range PCA convictions, demonstrated a persistent disregard for road rules and for the safety of others. The court found that repeated prior appearances before courts had not deterred the offender, and that magistrates had doubtless warned him that continued drink-driving would one day injure or kill someone.

The court treated the three offences as representing distinct aspects of the offender's criminality: driving while disqualified (he should not have been on the road at all), driving dangerously while intoxicated (causing serious harm), and failing to stop and render assistance after the collision. Because each offence was legally and morally separate, wholly concurrent sentences were rejected in favour of partial accumulation.

On special circumstances, the judge expressed hesitation, noting the offender's persistent reoffending despite prior leniency. However, the court ultimately made the finding because the offender had taken some recent steps to address his alcohol problem, and because supervised release was considered more likely to benefit the community than a longer unbroken period in custody without parole supervision.

The court gave no weight to the expression of apology made through counsel, finding it did not constitute evidence of genuine remorse. The early guilty plea was recognised, but produced no leniency beyond what it would ordinarily attract. The court did treat as a meaningful mitigating factor the fact that the matter had twice been listed but not reached, noting the significant burden this places on an offender who knows they will be imprisoned.

Orders Made

  • Failing to stop and render assistance: Fixed term of 12 months imprisonment, commencing 14 June 2012.
  • Driving whilst disqualified: Fixed term of 12 months imprisonment, commencing 14 September 2012; disqualified from driving for one year cumulative to the existing disqualification.
  • Aggravated dangerous driving occasioning grievous bodily harm: Non-parole period of 2 years and 6 months, head sentence of 4 years and 6 months, commencing 14 December 2012; disqualified from driving for 4 years cumulative on all other disqualification periods.
  • Overall effective non-parole period of 3 years; total head sentence of 5 years; earliest eligible parole date 13 June 2015.
  • Backup charges on the s 166 certificate dismissed.
  • High range PCA charge remitted to the Local Court.

Key Takeaways

  • Where an offender's criminal history reveals persistent drink-driving despite prior court intervention, sentencing courts will place considerable weight on personal deterrence alongside general deterrence.
  • Partial accumulation of sentences is appropriate where multiple offences arising from the same incident each represent a legally and morally distinct aspect of the offender's criminality.
  • A finding of special circumstances can be made even where an offender has repeatedly failed to respond to prior leniency, if there is credible evidence of recent efforts to address underlying issues and a community benefit in supervised release.
  • An apology conveyed through counsel, without more, does not constitute evidence of remorse and attracts no sentencing leniency on that basis.
  • The District Court treated the twice-repeated experience of a case being listed but not reached as a genuine mitigating factor, reflecting the particular burden on an offender who attends court knowing they will be imprisoned.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): offence of aggravated dangerous driving occasioning grievous bodily harm; offence of failing to stop and render assistance after impact
- Road Transport legislation (NSW): driving whilst disqualified; prescribed concentration of alcohol offences

Cases cited: No cases were cited in the judgment.