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District Court 14 December 2015

R v Beard

[2015] NSWDC 399

Assault & violenceTraffic & driving
CRIMINAL

Citation: R v Beard [2015] NSWDC 399
Court: District Court of New South Wales
Date: 14 December 2015
Judge: Judge S Norrish QC

Background

The offender pleaded guilty in the Local Court to two offences committed on 12 January 2015 in Crown Street, Surry Hills. He was driving a Holden Rodeo in a 40 km/h zone when he accelerated harshly, caused the vehicle to fishtail, crossed a double unbroken centre line, and struck a motorcycle ridden by the victim, who was lawfully travelling in the southbound lane. The collision caused grievous bodily harm to the motorcyclist.

After the impact, the offender momentarily stopped, then accelerated away without rendering assistance. He continued to drive at speed, ran a red light, and collided with a parked vehicle before being stopped by police. When apprehended, he was unsteady, verbally abusive, and showed signs of impairment. A forensic blood sample later returned a positive reading for cannabis, and expert evidence indicated his driving ability was likely impaired at the time of the collision.

The offender was committed to the District Court for sentence on both offences, with seven additional matters placed on a Form 1 (a procedural mechanism allowing related charges to be taken into account in sentencing without separate convictions). Those Form 1 matters included offensive behaviour, resisting police, two refusals to submit to breath testing and analysis, driving under the influence, and two failures to provide driver particulars following collisions.

  • What sentences were appropriate for the principal offence of driving in a manner dangerous causing grievous bodily harm, and the related offence of failing to stop and render assistance?
  • How should the seven Form 1 matters be weighed in sentencing for the principal offence?
  • What weight should be given to the early guilty plea, in circumstances where the offender showed a lack of remorse?
  • Whether the victim's vulnerability as a motorcyclist was a relevant aggravating factor in sentencing.

Decision

Judge Norrish sentenced the offender for both the principal offence and the related failure-to-stop offence, taking the seven Form 1 matters into account in fixing the sentence for the principal charge. The court treated the dangerous driving offence as the more serious of the two committal matters, consistent with the approach taken in leading cases including R v Jurisic and R v Whyte, which established sentencing guidelines for dangerous driving causing death or grievous bodily harm.

The court acknowledged the early guilty plea as a mitigating factor, which ordinarily attracts a discount in sentence. However, the offender's conduct after the crash, including his refusal to engage with police, his recorded telephone conversations with his mother from custody, and his overall behaviour, bore on the question of remorse and rehabilitation. The court found the offender showed a lack of genuine remorse, which limited the weight given to factors that might otherwise have reduced the sentence more substantially.

The vulnerability of the victim as a motorcyclist was treated as an aggravating circumstance. The court also factored in the offender's behaviour while under the influence of cannabis, his failure to stop after causing serious injury, and the nature of the driving itself, including crossing a double centre line in a busy urban area during peak hour.

The Form 1 matters, although not resulting in separate convictions, appropriately increased the sentence for the principal offence, reflecting the full criminality of the offender's conduct on the day.

Orders Made

• Total sentence of three years and six months with a non-parole period of one year and ten months
• Disqualified from holding a motor vehicle driver's licence for a period of four years from 12 January 2014
• Charge on sequence 9 (negligent driving causing grievous bodily harm) withdrawn and dismissed

Key Takeaways

  • The District Court confirmed that an early guilty plea remains a mitigating factor at sentence, but its weight can be reduced where the offender demonstrates a lack of genuine remorse.
  • A motorcyclist struck in a dangerous driving incident was treated as a vulnerable victim for sentencing purposes, constituting an aggravating factor under the Crimes (Sentencing Procedure) Act 1999.
  • Form 1 matters, though not attracting separate convictions, are taken into account in fixing the sentence for the principal offence and can materially increase that sentence where they reflect related criminality.
  • Under s 52A(3)(c) of the Crimes Act 1900 and s 52AB(2), both driving in a manner dangerous causing grievous bodily harm and failing to stop and render assistance after such an impact carry maximum penalties of seven years' imprisonment, with no standard non-parole period applying to either.
  • Driving under the influence of cannabis in a busy urban zone, combined with post-impact flight and sustained non-cooperation with police, were treated collectively as serious aggravating features in fixing the overall sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(3)(c), 52AB(2), 58
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Road Transport Act 2013 (NSW)

Cases:
- Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343