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District Court 8 March 2019

R v Tobin

[2019] NSWDC 100

DrugsTraffic & driving

Citation: R v Tobin [2019] NSWDC 100
Court: District Court of New South Wales
Date: 8 March 2019
Judge: Grant DCJ

Background

The offender pleaded guilty to two offences arising from a collision on Coreen Avenue, Penrith, on 9 July 2017. He was driving a Toyota Hilux utility in an easterly direction when he crossed double unbroken centre lines into oncoming traffic, forcing several motorcyclists to swerve onto the shoulder. He struck the rear motorcyclist, causing catastrophic injuries, then drove onto a grassed area before exiting the vehicle and walking away from the scene.

The victim suffered a near-complete amputation of his right leg at the knee, an open pelvic fracture, a skull base fracture, a fractured right wrist, urethral injury, and other serious wounds. His right leg was ultimately amputated above the knee, and he was left with ongoing disability including near-total loss of function in his right arm and significant bowel and urinary complications.

Toxicology evidence established that at the time of the collision, the offender had cocaine, MDMA (at above the reported toxic range), and three prescription or controlled drugs in his system. An expert concluded that the combination caused significant impairment of his driving ability through central nervous system depression. The breath alcohol test returned a negative result, meaning the impairment arose entirely from illicit and pharmaceutical substances.

  • What aggregate sentence was appropriate for dangerous driving occasioning grievous bodily harm (s 52A(3)(a), Crimes Act 1900) and failing to stop and assist after impact causing grievous bodily harm (s 52AB(2), Crimes Act 1900)?
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 justifying a non-parole period that departs from the standard one-third ratio.
  • Whether the custodial threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 was crossed.

Decision

Grant DCJ imposed an aggregate sentence of three years imprisonment, with a non-parole period of 12 months. The indicative sentences were 30 months for the dangerous driving count and 18 months for the fail-to-stop count, with the second count partially accumulated on the first. Each sentence was discounted by 25 per cent to reflect the guilty pleas.

The sentencing judge found special circumstances, noting the offender's age at the time of the offence, that this was his first custodial sentence, and that genuine rehabilitation considerations applied. These factors justified reducing the non-parole period below the otherwise standard one-third proportion of the head sentence. Statistical data showed that 71 per cent of offenders sentenced under s 52A(3)(a) between 2008 and 2018 received immediate imprisonment, with the most common sentence being 30 months and the most common non-parole period being 12 months, placing the aggregate sentence broadly in line with sentencing patterns.

The offender had a significant illicit drug history and was assessed as a medium-to-low risk of reoffending. His Honour expressed measured optimism about rehabilitation, noting drug screens from September 2018 to February 2019 returned negative results, and that the offender was receiving psychological and psychiatric support. However, the court was careful to characterise those prospects with caution given the history of polysubstance use.

The offender was also sentenced on a drive-while-suspended matter, for which the maximum penalty was six months imprisonment. That sentence of six months was made concurrent with the aggregate sentence.

Orders Made

  • Aggregate sentence of three years imprisonment commencing 8 March 2019.
  • Indicative sentence of 30 months on count 1 (dangerous driving occasioning grievous bodily harm).
  • Indicative sentence of 18 months on count 2 (fail to stop and assist after impact causing grievous bodily harm), partially accumulated on count 1.
  • Non-parole period of 12 months; eligible for parole on 7 March 2020.
  • Head sentence to expire on 7 March 2022.
  • Disqualification from holding a driver's licence for 12 months.
  • Six months imprisonment for driving whilst suspended, concurrent with the aggregate sentence.

Key Takeaways

  • An offender who drives while significantly impaired by a combination of illicit substances and then flees the scene faces accumulation of sentences across the two distinct offences, reflecting the separate culpability involved in each.
  • Special circumstances justifying a reduced non-parole period can be established by the combination of an offender's age, a first custodial sentence, and genuine rehabilitation prospects, even where the offending was serious.
  • Sentencing statistics are a relevant but non-determinative reference point: the District Court noted the modal sentence and non-parole period drawn from a decade of comparable prosecutions under s 52A(3)(a).
  • The statutory maximum penalty functions as a yardstick for calibrating the seriousness of an offence; it is not a target sentence.
  • Toxicological evidence of multi-drug impairment, including substances at above-toxic blood concentrations, formed a central aggravating feature of the dangerous driving charge, notwithstanding a negative breath alcohol test.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(3)(a), 52AB(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 166

Cases
- R v Manok [2017] NSWCCA 232
- R v Pullen [2018] NSWCCA 264
- The Queen v Whyte (2002) 55 NSWLR 252