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District Court 3 May 2018

R v Luke COUSLEY

[2018] NSWDC 112

DrugsTraffic & drivingPublic order & justice offences
CRIMINAL SENTENCING

Citation: R v Luke Cousley [2018] NSWDC 112
Court: District Court of New South Wales
Date: 3 May 2018
Judge: Judge Gordon Lerve

Background

The offender was driving a Toyota Hilux utility through a suburban area of Wagga Wagga on 15 March 2017 when he fled from police, accelerating rapidly away when an officer approached his window. He drove at high speed through residential streets, travelling between 71 and 83 km/h in a 50 km/h zone, before running a give-way sign and colliding with a Commodore sedan in a T-bone impact at the intersection of Bruce Street and Raye Street.

The Commodore carried four occupants: the driver, her pregnant sister, and two young children. A two-year-old boy sustained severe injuries, including a grade 4 splenic laceration and a lung contusion. He required intubation, ventilation, resuscitation, a blood transfusion, and was airlifted to the Children's Hospital in Sydney, where he remained for seven days. No evidence of ongoing injury was before the court at the time of sentencing.

After the collision, the offender fled the scene on foot without checking on any of the occupants. He was later found hiding at the side of a garden shed several streets away, and told police he had been a passenger. Blood analysis confirmed the presence of methylamphetamine, amphetamine, THC acid, and a negligible amount of alcohol. A pharmacologist's report confirmed the offender's driving was impaired by methylamphetamine.

  • What was the appropriate sentence for dangerous driving occasioning grievous bodily harm under s 52A(3)(c) of the Crimes Act 1900, where the driving involved excessive speed, drug impairment, and flight from police?
  • What was the appropriate sentence for failing to stop and assist after a vehicle impact causing grievous bodily harm under s 52AB(2) of the Crimes Act 1900?
  • Whether the "fail to stop" offence under s 52AB(2) encompasses a driver who abandons the vehicle at the scene and flees on foot, rather than driving away from the collision.
  • How should the four charges be structured and accumulated to reflect the overall criminality, while applying the totality principle?

Decision

Judge Lerve found the dangerous driving offence to be a serious example of the charge. The relevant aggravating features included: the offender was driving while disqualified, was impaired by methylamphetamine, was fleeing police at the time of the impact, was travelling well over the speed limit, failed to give way, and caused serious injury to a young child. The court found the drug impairment to be a particularly significant factor in assessing moral culpability.

On the fail-to-stop charge, the court addressed whether the offence applied where a driver abandoned the vehicle and fled on foot rather than driving away. The court held that s 52AB(2) does encompass flight on foot: the statutory obligation is to remain at the scene and render assistance, and a driver who runs from the scene on foot is no less in breach of that obligation than one who drives away. The offender left without checking for injuries, offering any assistance, or identifying himself.

The court applied a 25% discount to the sentences for the utilitarian value of the early guilty pleas. Mitigating factors included the offender's age, his troubled background, and his history of drug dependency. The court applied the principles in Bugmy v The Queen regarding the relevance of disadvantage and deprived background to moral culpability, though those matters did not displace the need for a meaningful custodial sentence given the gravity of the offending.

The court structured the sentences to partially accumulate, producing a total effective sentence of 3 years and 3 months with 2 years and 2 months to be served in actual custody. The charge of not complying with a direction to stop was resolved by way of conviction with no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Not Comply with Direction to Stop (s 169A(7) Road Transport Act 2013): Conviction recorded; no further penalty imposed (s 10A Crimes (Sentencing Procedure) Act 1999).
  • Drive While Disqualified (s 54(1)(a) Road Transport Act 2013): Fixed term of 6 months imprisonment commencing 16 May 2017, expiring 15 November 2017; disqualified for 2 years.
  • Fail to Stop and Assist After Vehicle Impact Causing Grievous Bodily Harm (s 52AB(2) Crimes Act 1900): Fixed term of 12 months imprisonment commencing 16 May 2017, expiring 15 May 2018; disqualified for 3 years.
  • Dangerous Driving Occasioning Grievous Bodily Harm (s 52A(3) Crimes Act 1900): Non-parole period of 1 year and 8 months commencing 16 November 2017, expiring 15 July 2019; parole period of 13 months commencing 16 July 2019, expiring 15 August 2020; disqualified for 3 years.
  • Total effective sentence: 3 years and 3 months, with 2 years and 2 months in actual custody.
  • All disqualification periods to run concurrently.
  • Parole recommended at expiration of non-parole period.

Key Takeaways

  • The District Court held that the offence of failing to stop and assist after a vehicle impact under s 52AB(2) of the Crimes Act 1900 is not limited to driving away from the scene: a driver who abandons the vehicle and flees on foot is equally captured by the provision.
  • Fleeing police immediately prior to a collision is a significant aggravating feature in dangerous driving sentencing, as it directly informs the manner and context of the driving.
  • Drug impairment by methylamphetamine, confirmed by pharmacological evidence, was treated as a serious aggravator going to moral culpability, even where the precise extent of impairment was not fully quantified.
  • Under the Bugmy principle, a sentencing court may take an offender's background of disadvantage and deprivation into account in assessing moral culpability, though such factors do not necessarily reduce a sentence substantially where the offending is objectively serious.
  • A 25% discount for the utilitarian value of guilty pleas applies in the District Court where pleas are entered at an appropriately early stage, consistent with the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(3)(c), 52AB(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), ss 54(1), 169A(7)

Cases
- Bugmy v The Queen [2013] HCA 37
- Aitken v R [2014] NSWCCA 201
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Jidah v R (2014) 246 A Crim R 368
- Kennedy v R [2010] NSWCCA 260
- Shumack [2008] NSWCCA 311
- Stanyard v R [2013] NSWCCA 134
- Tuala [2015] NSWCCA 8
- WW v R [2012] NSWCCA 165
- R v Whyte (2002) 134 A Crim R 53
- Wright v R (1997) 93 A Crim R 48
- Yuksel v R [2010] NSWCCA 65