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District Court 25 June 2014

R v Primmer

[2014] NSWDC 370

Assault & violenceTraffic & driving

Citation: R v Primmer [2014] NSWDC 370
Court: District Court of New South Wales
Date: 25 June 2014
Judge: Conlon DCJ

Background

The offender, a 19-year-old man, appeared for sentencing after pleading guilty to dangerous driving occasioning grievous bodily harm under section 52A(3)(c) of the Crimes Act, which carries a maximum penalty of seven years imprisonment. On the evening of 6 December 2013, he was driving an unregistered, uninsured Ford Falcon in Unanderra with two passengers, including a 14-year-old girl in the front seat.

The offender drove through a stop sign intersection at between 82.2 and 95.1 kilometres per hour in a 50 kilometre per hour zone, with his engine revving and tyres screeching. He lost control of the vehicle, which struck a power pole. The 14-year-old passenger was trapped, unresponsive, and airlifted to hospital with critical injuries. The offender had never held a licence, was subject to a three-year disqualification, and had been placed on a good behaviour bond only 10 days earlier for, among other things, a police pursuit offence. He fled the scene on foot before being persuaded to stay.

The victim sustained severe traumatic brain injury along with multiple other serious injuries. She required intensive neurosurgical and medical management, and the treating physician confirmed that her brain damage is irreversible, permanently affecting her motor function, cognition, memory and behaviour.

Legal Issues

  • Whether a full-time custodial sentence was warranted having regard to the objective seriousness of the offence
  • The weight to be given to multiple aggravating factors, including drug impairment, speed, prior offending, and the catastrophic harm caused
  • Whether the offender's intellectual disability and the suggestion of passenger distraction reduced his moral culpability
  • Whether special circumstances justified varying the standard non-parole/additional term ratio
  • The appropriate discount for an early guilty plea

Decision

Issue 1: Moral culpability

The court found the offender's moral culpability to be high (at [15]). The driving was characterised as aggressive and showing off, evidenced by loud engine revving, screeching tyres, and a speed nearly double the limit (at [14]). Blood and urine analysis confirmed the presence of amphetamine, methamphetamine and cannabis in the offender's system, and a clinical forensic pharmacologist opined that these would have impaired his driving ability (at [7]-[8]). The court added that the offender was on a section 9 good behaviour bond for related offending imposed just 10 days before the collision (at [14]).

Issue 2: Rejection of mitigating explanation

The offender's counsel appear to have raised the possibility that passenger distraction contributed to the dangerous driving. The court rejected this entirely, finding the nature of the driving, as witnessed independently, was plainly inconsistent with distraction as a cause (at [30]). The court also drew on the offender's conduct during the prior police pursuit in September 2013, where he demonstrated a clear ability to observe and respond to his surroundings while driving aggressively (at [30]).

Issue 3: Intellectual disability and general deterrence

A psychologist's report noted mild to moderate intellectual impairment. The court accepted this was a genuine feature of the offender's background but declined to accept that intellectual functioning contributed materially to the commission of the offence (at [29]). The court also rejected a submission that intellectual disability made the offender an inappropriate vehicle for general deterrence, holding that courts must send a consistent message about the consequences of drug-affected, aggressive driving that results in serious injury or death (at [37]).

Issue 4: Custodial sentence, special circumstances, and discount

The court was satisfied that the objective seriousness of the offence made imprisonment the only appropriate penalty (at [35]). It found special circumstances existed because this was the offender's first period of custody and his intellectual disability would make imprisonment particularly difficult, warranting a variation of the statutory non-parole to additional term ratio (at [36]). The court applied a 25 percent discount for the early guilty plea, reflecting both utilitarian benefit to the justice system and contrition (at [34]). The court accepted the offender's remorse as genuine and assessed his prospects of rehabilitation as reasonable (at [34]).

Orders Made

  • Non-parole period of two years and six months, commencing 6 December 2013 and expiring 5 June 2016
  • Additional term of 12 months, expiring 5 June 2017
  • Section 9 bonds for the prior Local Court matters (larceny, never been licensed, police pursuit) were revoked; fixed terms of imprisonment imposed for those matters, also commencing 6 December 2013 (six months for larceny; 12 months each for the remaining offences)
  • Licence disqualification of 10 years

Key Takeaways

  • A finding of high moral culpability is supported where multiple aggravating factors coincide: drug impairment, excessive speed, showing-off driving, driving while unlicensed and disqualified, breach of an existing good behaviour bond, and a prior history of similar dangerous conduct (at [14]-[15]).

  • The District Court confirmed that general deterrence remains a significant sentencing consideration for drug-affected, aggressive driving causing serious injury, even where the offender has some level of intellectual impairment (at [37]).

  • Under the approach drawn from R v Errington and R v Khatter, aggravating factors identified in the Whyte guideline judgment operate as illustrative guides to moral culpability, not a definitive checklist (at [13]).

  • Special circumstances justifying a variation of the statutory non-parole ratio can be established by the combination of a first period of custody and an intellectual disability that makes imprisonment meaningfully more burdensome (at [36]).

  • An early guilty plea attracted a 25 percent discount, reflecting both its utilitarian benefit to the justice system and its role as evidence of contrition (at [34]).

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- R v Errington [2005] 157 ACrimR 553; R v Khatter [2000] NSWCCA 32