Citation: R v Premdas - Rogers [2016] NSWDC 338
Court: District Court of New South Wales
Date: 9 December 2016
Judge: Berman SC DCJ
Background
The offender, a 53-year-old house husband with no prior traffic offences, consumed a significant amount of wine at home before his wife arrived with a high-performance sports car she was considering purchasing. Despite being significantly intoxicated and entirely unfamiliar with the vehicle, he took the wheel with his wife in the passenger seat and their son in the rear seat.
He drove out onto a residential street in Sydney's north with a 50 km/h speed limit and accelerated aggressively along Bobbin Head Road. Witnesses observed the car travelling at high speed through a residential area during the beginning of school holidays, with children present. The car eventually swerved across lanes, narrowly missed a child on a bicycle, and collided with a concrete culvert and a telegraph pole.
The offender's wife suffered the amputation of two fingers on her left hand. Their son sustained a fractured clavicle. The offender himself was hospitalised for two weeks. The offender appeared for sentencing on three charges: dangerous driving occasioning grievous bodily harm, causing bodily harm by misconduct while in charge of a vehicle, and mid-range prescribed concentration of alcohol (PCA) driving.
Legal Issues
- What sentence length was appropriate given the seriousness of the offending, including speed, intoxication, and the deliberate nature of the driving?
- Whether the offender's unfamiliarity with the vehicle reduced his moral culpability for the manner of driving.
- Whether the hardship to the offender's family constituted "exceptional hardship" sufficient to justify a non-custodial disposition.
- Whether the sentence for the dangerous driving offence should be moderated to avoid double-counting the intoxication already reflected in the separate drink-driving charge.
Decision
His Honour described this as among the most difficult sentencing exercises, given the powerful and competing considerations pulling in opposite directions. The offending was serious: the offender was intoxicated with a blood alcohol level of 0.104, drove at an estimated 95 km/h in a 50 km/h zone, and did so deliberately in a residential area. His Honour accepted that unfamiliarity with the vehicle may have contributed to the loss of control, but rejected any suggestion that it explained the high speed. The offender had placed himself in a position where a crash was, in the court's words, "probably inevitable."
The court found the offender had entirely abandoned his responsibilities as a driver. Speed, intoxication, an unfamiliar high-performance vehicle, deliberate exploitation of the car's capabilities, and a suburban residential setting all combined to produce a high level of moral culpability. This was not a case of momentary inattention or a misjudgement of low culpability. A sentence of imprisonment was unavoidable.
The sole basis on which the court departed from a full-time custodial sentence was the exceptional hardship that incarceration would cause the offender's family. The offender had expressed suicidal ideation, and his wife had previously lost her first husband to suicide. His Honour found the distress that imprisonment would visit upon the family was genuinely exceptional, and that this factor alone was sufficient to consider a non-custodial method of serving the sentence. The court was explicit that this concession related entirely to the family's circumstances, not to any quality of the offender himself.
The court determined the appropriate sentence for the most serious offence was likely two years or less, and adjourned for assessment of the offender's suitability to serve his sentence by way of an Intensive Corrections Order. On the drink-driving charge, the court declined to impose significant additional punishment to avoid double-counting the intoxication already factored into the dangerous driving sentence.
Orders Made
- The matter was adjourned to a date to be determined.
- The offender was ordered to be assessed for suitability to serve his sentence by way of an Intensive Corrections Order.
Key Takeaways
- A sentence of imprisonment was held to be unavoidable where an offender drove at near-peak speeds for the non-aggravated form of dangerous driving occasioning grievous bodily harm while intoxicated in a residential area, having deliberately chosen to test a vehicle's performance.
- Unfamiliarity with a vehicle does not reduce an offender's culpability for deliberately choosing to drive at dangerous speeds; it may be relevant only to the mechanics of how control was lost.
- Exceptional hardship to third parties, in this case a family with a specific and documented vulnerability to the consequences of the offender's incarceration, can constitute a legitimate basis for moderating an otherwise inevitable full-time custodial sentence.
- The District Court applied the principle against double-counting by declining to impose significant additional punishment for the mid-range PCA offence, given that intoxication had already been factored into the sentence for the principal offence.
- Where multiple offences arise from the same incident and share a common aggravating feature, sentencing courts must take care not to punish the same conduct twice across related charges.
Legislation and Cases Referenced
Cases:
- R v Whyte [2002] NSWCCA 343
Legislation:
No specific legislation was cited in the judgment text. The offences discussed correspond to provisions under the Crimes Act 1900 (NSW) (dangerous driving occasioning grievous bodily harm; causing bodily harm by misconduct in charge of a vehicle) and the Road Transport Act 2013 (NSW) (mid-range prescribed concentration of alcohol).