Citation: R v West [2019] NSWDC 967
Court: District Court of New South Wales
Date: 27 May 2019
Judge(s): Tupman DCJ
Background
A 39-year-old woman drove her Toyota Celica along the Kings Highway near Braidwood on 19 December 2017, having injected methylamphetamine both the night before and on the morning of the drive. She had earlier that day attended the ACT Magistrates' Court for a mention of a separate drug-driving charge, and was returning home to Bateman's Bay when the collision occurred.
About 10 kilometres west of Braidwood, the offender drifted onto the wrong side of the road, corrected, then veered across again and struck a Mercedes four-wheel drive head-on. The collision caused the Mercedes to spin and collide with a Toyota Camry travelling in the same direction. Four people across those two vehicles were injured, three of them seriously.
The offender pleaded guilty in the Local Court to three charges of aggravated dangerous driving causing grievous bodily harm and one charge of causing bodily harm by misconduct. The matter was committed to the District Court for sentencing.
Legal Issues
- What sentence was appropriate for three charges of aggravated dangerous driving causing grievous bodily harm under s 52A(4) of the Crimes Act 1900 (NSW), each carrying a maximum of 11 years imprisonment?
- What sentence was appropriate for one charge of causing bodily harm by misconduct under s 53 of the Crimes Act 1900 (NSW), carrying a maximum of 2 years imprisonment?
- Did the extent of the victims' injuries amount to a separate circumstance of aggravation under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
- What weight should be given to the offender's plea of guilty, her remorse, her mental health and drug history, and her prospects of rehabilitation?
- Did special circumstances exist warranting a departure from the standard ratio of non-parole period to total sentence?
Decision
Objective seriousness and moral culpability
The court found the offender's moral culpability was high. She chose to drive having used methylamphetamine intravenously both the night before and on the morning of the offences, and she had a prior history demonstrating awareness of the link between drug use and driving offences (at [42]-[44]). Dr Judith Perl's opinion, accepted by the court, was that her lack of vigilance and inattention resulted from the influence of the drugs, amounting to a very significant impairment (at [9]). The court found this case more serious than the "typical" case described in the guideline judgment of R v Whyte, because the offences were the aggravated version of the charge, the offender was not a youthful offender, and she did not have good character with limited prior convictions (at [48]).
Victim impact and s 21A aggravation
The three victims of the dangerous driving charges suffered serious and ongoing injuries. Mrs Silvana Bisa, who was assessed as presenting to hospital with life-threatening injuries, sustained a broken femur, a right elbow fracture, and a completely severed tibialis tendon, with ongoing reduced grip strength and functional limitations (at [10]-[15]). Ms Christina Dougherty, aged about 30 at the time, suffered a segmented femur fracture, rib fractures, and a laceration to the duodenum requiring surgery, and by March 2019 had a 1.5-centimetre limb length discrepancy and continued using crutches (at [17]-[23]). Thomas Campagna, 13 years old, required resuscitation, life support, and a colostomy for approximately six months following a perforated bowel, and continues to experience disability from adhesions affecting intestinal function (at [28]-[32]). Despite the severity of these injuries, the court found they did not constitute a separate circumstance of aggravation under s 21A, as they did not reach the level of catastrophic outcomes such as loss of limbs, loss of eyesight, or paraplegia (at [36]).
Mitigating factors and subjective circumstances
The only relevant mitigating factor was the guilty plea at the earliest opportunity, warranting a 25% discount in accordance with R v Thomson; R v Houlton (at [47]). The court rejected the Crown's submission that the offender's remorse was not genuine or came late. It noted that she had attempted suicide shortly after entering custody, accepting this was primarily driven by guilt and shame for the harm she had caused (at [59]-[62]). The court accepted her prospects of rehabilitation were reasonable, but contingent on remaining drug-free, and noted her engagement with rehabilitation programs and the remand addictions program while in custody (at [63]-[64]).
Special circumstances and sentence structure
The court found special circumstances existed based on two factors: this was the offender's first period of full-time imprisonment, and a longer than normal period of community supervision was needed to guard against relapse into drug use (at [65]). A starting point of approximately four years for each aggravated dangerous driving charge was reduced to three years after the 25% plea discount (at [67]). Full accumulation of the three charges would have produced a total of nine years and nine months, which the court found excessive. An aggregate sentence of five years with a non-parole period of three years was imposed for the three dangerous driving charges under s 53A of the Crimes (Sentencing Procedure) Act 1999. The s 53 offence attracted a fixed term of nine months, ordered to be served concurrently (at [68]-[69]).
Orders Made
- The offender is convicted of all four offences.
- Sequences 4, 5 and 6 (aggravated dangerous driving causing grievous bodily harm): aggregate sentence of 5 years imprisonment, commencing 19 December 2017, with an aggregate non-parole period of 3 years, followed by 2 years on parole.
- Sequence 7 (causing bodily harm by misconduct): fixed term of 9 months imprisonment, commencing 19 December 2017, served concurrently.
- Back-up offences (sequences 1, 2, 3, 8, 9 and 10) withdrawn and dismissed.
- The offender is disqualified from holding or obtaining a driver's licence in New South Wales for 3 years, commencing on the date of release on parole, with all disqualification periods concurrent.
Key Takeaways
-
Under the R v Whyte guideline, sentences for aggravated dangerous driving causing grievous bodily harm should ordinarily involve full-time custody, with the guideline two-year minimum acting only as a starting point where, as here, the offence is the aggravated version and the offender lacks good character (at [38], [48]).
-
The District Court confirmed that while victim injuries must inform the assessment of objective criminality, they do not automatically constitute a separate s 21A aggravating circumstance. To cross that threshold, injuries must reach the level of catastrophic harm such as loss of limbs, permanent blindness, paraplegia, or quadriplegia (at [36]).
-
A 25% discount for a plea of guilty entered at the earliest opportunity remained available and significant even in a serious multi-victim dangerous driving case, with the court noting its utilitarian value in sparing victims from giving evidence (at [47]).
-
Genuine remorse is not undermined simply because it is expressed in a letter tendered at sentencing; the court looked to the whole of the available evidence, including the offender's conduct immediately after entering custody, in assessing authenticity (at [59]-[62]).
-
Special circumstances justifying a greater proportion of the sentence on parole can be established where the offender is a first-time prisoner and where a prolonged period of community supervision is needed to manage the risk of relapse into drug use that directly contributed to the offending (at [65]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 52A(4), 53;
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 21A, 53A.
Cases
- R v Kopack [2005] NSWCCA 83.
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Whyte (2002) 55 NSWLR 252, R v Kaliti [2001] NSWCCA 268.