Citation: R v Mark Reay [2018] NSWDC 386
Court: District Court of New South Wales
Date: 20 June 2018
Judge: Neilson DCJ
Background
The offender, a 36-year-old man, pleaded guilty to aggravated dangerous driving occasioning grievous bodily harm under s 52A(4) of the Crimes Act 1900. The offence occurred on 16 March 2017 at Mount Ku-ring-gai. The offender's front-seat passenger, his close personal friend of approximately 30 years, was seriously injured in the collision.
On the day of the offence, the offender had consumed alcohol the previous night before going to bed at 4 am, then consumed further alcohol before and during a journey he undertook after waking at 11 am. He was driving south along the Old Pacific Highway when he turned right at a signalised intersection into the path of an oncoming vehicle travelling on a green light. The impact caused the offender's vehicle to rotate and come to rest on the western shoulder of the highway. The passenger was trapped in the vehicle and had to be extricated before being airlifted to hospital with significant pelvic injuries.
When breath-tested approximately 90 minutes after the collision, the offender recorded a blood alcohol concentration of 0.216. This was well above the 0.15 threshold that constitutes the circumstance of aggravation under s 52A(7)(a). The offender also had prior convictions for prescribed concentration of alcohol (PCA) offences. Three back-up charges were dismissed by consent, and the offender asked the court to take into account one Form 1 matter involving possession of drug-use equipment found in his vehicle.
Legal Issues
- What sentence was appropriate for aggravated dangerous driving occasioning grievous bodily harm, having regard to the objective seriousness of the offence?
- What weight should be given to the offender's subjective circumstances, including his lack of prior imprisonment, guilty plea, and alcohol dependency?
- Whether special circumstances existed to justify a departure from the statutory ratio between the non-parole period and the balance of the sentence.
- What period of driving disqualification was appropriate?
Decision
Neilson DCJ assessed the objective seriousness of the offence as significant. The blood alcohol reading of 0.216 substantially exceeded the high-range threshold. A witness observed the offender tailgating vehicles at speed before the collision, and the offender then made an unsafe right-hand turn across oncoming traffic at a green-light intersection. The presence of a passenger, who was also a close friend, was an aggravating feature of the circumstances.
The victim suffered serious pelvic injuries requiring airlift hospitalisation, but had made a good recovery by the time of sentencing with only intermittent, low-level ongoing symptoms. The court acknowledged this as a relatively favourable outcome compared to cases involving permanent or severe lasting injury, and took it into account in calibrating the sentence.
On the offender's subjective case, the court accepted that the offender had no prior imprisonment, had entered an early guilty plea (attracting a 25% utilitarian discount), expressed genuine remorse, and was assessed as having prospects for rehabilitation. His alcohol dependency was identified as the central driver of his offending, and the court noted the offender's prior PCA convictions demonstrated a persistent pattern of drinking and driving. A pre-sentence report recommended the Sober Driver Program and cognitive behavioural therapy during any supervised parole period.
The court found special circumstances, noting the offender's lack of prior imprisonment and the importance of a structured period of supervised parole to support rehabilitation. This justified extending the parole period beyond the standard statutory ratio.
Orders Made
- Convicted of aggravated dangerous driving occasioning grievous bodily harm (s 52A(4), Crimes Act 1900)
- Sentenced to imprisonment with a non-parole period of 1 year and 3 months, commencing 20 June 2018 and expiring 19 September 2019
- Balance of sentence of 1 year, expiring 19 September 2020
- Total head sentence: 2 years and 3 months
- Special circumstances found
- Form 1 matter (possession of drug-use equipment) taken into account
- Back-up offences (sequences 2, 3 and 5) dismissed by consent
- Driving disqualification for 3 years
Key Takeaways
- A blood alcohol reading of 0.216 at the time of dangerous driving, combined with observed erratic driving prior to the collision and prior PCA convictions, placed the offending at the more serious end of the sentencing range for s 52A(4) of the Crimes Act 1900.
- The District Court treated the presence of a passenger as an aggravating circumstance, particularly where the offender was aware he was carrying another person when he chose to drive with a very high blood alcohol concentration.
- Where a victim has made a good recovery with only minor ongoing symptoms, the sentencing court may treat that outcome as a moderating factor on the sentence, while still recognising the seriousness of the offence.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were established on the basis of the offender's lack of prior imprisonment and the need for supervised community support to address entrenched alcohol dependency following release.
- Under s 52A(4) of the Crimes Act 1900, the circumstance of aggravation relevant to blood alcohol concentration is a reading at or above 0.15, which corresponds to the high-range prescribed concentration of alcohol threshold, and carries a maximum penalty of 11 years imprisonment.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 52A(3), (4), (7)(a), (9)
- Drug Misuse and Trafficking Act 1985 (NSW), s 11(1)
Cases:
- R v Kyle [2014] NSWCCA 300
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 452