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District Court 3 July 2020

R v Sharp

[2020] NSWDC 345

DrugsTraffic & driving
SENTENCING DANGEROUS DRIVING CAUSING DEATH VICTIM IMPACT STATEMENT DISPUTE OVER FACTS DRIVING WHILST IMPAIRED ON A LPRAZOLAM EXCEPTIONAL CIRCUMSTANCES

Citation: R v Sharp [2020] NSWDC 345
Court: District Court of New South Wales
Date: 3 July 2020
Judge: Judge Weinstein SC

Background

The offender, Christopher William Sharp, appeared before the District Court for sentencing on one count of dangerous driving occasioning death and two counts of dangerous driving occasioning grievous bodily harm, all contrary to the Crimes Act 1900. The offences arose from a head-on collision on Matron Porter Drive near Milton on 11 January 2018.

At around 3:49 pm, the offender failed to negotiate a sweeping left-hand bend, crossed into the oncoming lane, and struck a vehicle carrying a family of three travelling to a beach swimming carnival. The collision killed the front-seat passenger, Tamara Mobarrez, at the scene. Her husband, the driver, suffered multiple serious fractures and internal injuries. Their five-year-old son sustained a severe degloving injury to his face requiring surgical fixation.

Blood and urine samples taken after the crash revealed multiple substances in the offender's system, including MDMA, oxycodone, cannabis, diazepam and its metabolites, and alprazolam. Expert pharmacological evidence established that, at the time of driving, the offender was impaired by alprazolam, a prescribed benzodiazepine.

  • Whether the agreed facts, including the nature and extent of the offender's drug impairment, were properly established for sentencing purposes
  • How to assess the objective seriousness of the three offences
  • What weight to give the offender's mental health, personal circumstances, and early guilty plea in mitigation
  • Whether the offender's extraordinary personal circumstances, including caring for a child with profound cerebral palsy and his wife's significant mental health needs, constituted exceptional circumstances justifying a departure from the standard sentencing approach
  • Whether, and to what extent, it was appropriate to depart from the statutory non-parole period ratio of 75 per cent

Decision

Judge Weinstein sentenced the offender on the basis that he had driven while impaired by alprazolam and had failed to keep his vehicle in lane on a clearly marked two-lane road in dry, fine conditions. The court accepted that the impairment by alprazolam was the operative cause of the dangerous driving, and that crossing into the oncoming lane in those circumstances represented a serious departure from the standard of a competent driver.

The court found that the objective seriousness of the offences was significant, given that a person died, two others suffered grievous bodily harm, and the impairment was caused by a combination of prescribed and illicit substances. A 25 per cent discount was applied to each indicative sentence to reflect the offender's early guilty plea.

The court placed considerable weight on the offender's extraordinary personal circumstances in mitigation. His daughter has profound cerebral palsy and requires intensive, ongoing care. His wife, who shares primary responsibility for that care, has serious mental health conditions. Expert evidence from a forensic psychiatrist addressed both the offender's own mental health and his wife's capacity to manage alone during any period of custody. The court treated these circumstances as exceptional, warranting a merciful approach to the structure of the sentence.

Having found that a full-time custodial sentence remained the only appropriate penalty, the court nonetheless departed significantly from the standard non-parole period ratio. Rather than applying the usual 75 per cent ratio, the court reduced the non-parole period to 30 per cent of the aggregate term, reflecting the rehabilitation prospects of the offender and, critically, the needs of his wife and child during his absence.

Orders Made

  • Convicted of dangerous driving occasioning death (s 52A(1)(c), Crimes Act 1900)
  • Convicted of two counts of dangerous driving occasioning grievous bodily harm (s 52A(3)(c), Crimes Act 1900)
  • Aggregate sentence of 4 years imprisonment, commencing 3 July 2020 and expiring 2 July 2024
  • Non-parole period of 1 year and 2 months, with eligibility for release on parole on 2 September 2021
  • Disqualification from driving for 12 months, commencing upon release to parole

Key Takeaways

  • A sentencing court may depart significantly from the statutory non-parole period ratio where the offender's personal circumstances, assessed in totality, constitute genuine exceptional circumstances warranting mercy. Here, the ratio was reduced from 75 per cent to 30 per cent.
  • Impairment by a prescribed benzodiazepine (alprazolam) is sufficient to ground the "impaired by a drug" limb of dangerous driving offences under s 52A of the Crimes Act 1900, even where the drug was lawfully prescribed.
  • The presence of multiple substances, including illicit drugs, in the offender's system remained a relevant aggravating feature of objective seriousness, even where only one substance was identified as the operative cause of impairment.
  • Where an offender is the primary carer, or co-carer, for a family member with profound disability, and where the remaining carer has independently established mental health vulnerabilities, those circumstances may carry exceptional weight in the non-parole period calculation without displacing the need for a full-time custodial sentence.
  • The District Court confirmed that the sentencing framework must reflect the seriousness of road safety departures, particularly where a death results, even when a court exercises significant mercy in structuring the non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b)

Cases:
- DPP v De La Rosa [2010] NSWCCA 194
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120
- R v Byrne (1998) 104 A Crim R 456
- R v Carruthers (2008) 182 A Crim R 481
- R v Edwards (1996) 90 A Crim R 510
- R v Errington (2005) 157 A Crim R 553; [1999] NSWCCA 18
- R v Fangaloka [2019] NSWCCA 173
- R v Grbin [2004] NSWCCA 220
- R v Hopkins [2004] NSWCCA 105
- R v Manok [2017] NSWCCA 232
- R v Maslen (1995) 79 A Crim R 199
- R v McKeown [2013] NSWDC 22
- R v Musumeci (unreported, NSWCCA, 30 October 1997)
- R v Sadebath (1992) 16 MVR 138
- R v Smith [2016] NSWCCA 75
- R v Whyte (2002) 55 NSWLR 252
- R v X [2004] NSWCCA 93