Citation: R v Awac [2020] NSWDC 41
Court: District Court of New South Wales
Date: 7 February 2020
Judge: Bennett SC DCJ
Background
In the early hours of 25 March 2018, the offender drove a Honda Civic along Bungaribee Road, Blacktown, while disqualified from driving. He was travelling at excessive speed with four passengers in the vehicle. The car became airborne at an intersection, crossed a median strip, and came to rest against a retaining wall on the wrong side of the road, catching fire.
All four passengers sustained injuries as a result of the crash. The offender left the scene without stopping to assist any of them. He was arrested that day and was also found to have failed to provide particulars to police about the collision.
The offender was committed to the District Court for sentence on four indictable offences and appeared before the court to be sentenced on two related summary offences as well. He had pleaded guilty in the Local Court and maintained those pleas throughout the District Court proceedings.
Legal Issues
- The appropriate sentences for two counts of dangerous driving occasioning grievous bodily harm (s 52A(3)(c) Crimes Act 1900) and two counts of causing bodily harm by misconduct (s 53 Crimes Act 1900)
- The treatment of a Form 1 offence (failure to give particulars to police after a crash, contrary to r 287(1) Road Rules 2014) and its impact on the principal sentence
- The appropriate sentences for the summary offences of driving whilst disqualified and failing to stop and assist after occasioning grievous bodily harm
- Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the head sentence
- The applicable disqualification periods across multiple offences
Decision
Bennett SC DCJ imposed an aggregate sentence, reflecting the totality of the offending across all matters. The offender received a 25 per cent discount on each indicative sentence for the utility of his early guilty pleas, which were entered in the Local Court and maintained throughout. The judge also weighed contrition, remorse, and the offender's personal circumstances, including his youth, in arriving at the final sentences.
The Form 1 offence (failure to give particulars to police) was taken into account on the principal dangerous driving charge. Consistent with the approach endorsed in the Attorney-General's guideline judgment, the judge noted that while the Form 1 procedure spared the offender separate punishment, it warranted a modest increase to the sentence that would otherwise have been imposed. The impact was described as marginal, though the court noted it served the interests of personal deterrence and community accountability.
The judge found special circumstances justifying a departure from the standard non-parole period ratio, given the offender's youth and the need for adequate supervision on release. The court expressed the intention that disqualification periods would run from the date of release rather than from sentencing, so that the offender would not face an extended period off the road on top of his imprisonment.
The summary offence of failing to stop and assist after occasioning grievous bodily harm attracted a separate sentence, with automatic disqualification applied. The court noted the offender's youth and the employment and rehabilitation opportunities that incarceration and disqualification would limit, and intended the disqualification periods to operate concurrently.
Orders Made
- Aggregate sentence of imprisonment with a non-parole period of 2 years and 6 months commencing 6 February 2020, and a head sentence of 4 years
- Eligibility for release to parole on 5 August 2022
- Special circumstances found, justifying the non-parole period set
- Disqualification periods of 2 years imposed for each of the dangerous driving causing grievous bodily harm offences (sequences 1 and 5), the causing bodily harm by misconduct offences (sequences 3 and 14), and the failure to stop and assist offence (sequence 6)
- Minimum disqualification period of 6 months for the driving whilst disqualified offence (sequence 4)
- All disqualification periods to run concurrently, with commencement dates to be calculated by Transport NSW (formerly Roads and Maritime Services)
- Exhibits placed on file
Key Takeaways
- A Form 1 offence taken into account at sentencing does not result in separate punishment, but under the guideline established in the Attorney-General's application [2002] NSWCCA 518, it must produce some increase, even if marginal, to the principal sentence, with weight given to personal deterrence and the full scope of the offender's misconduct.
- An early guilty plea entered in the Local Court and maintained in the District Court attracted a 25 per cent discount on each indicative sentence, applied individually before the aggregate sentence was constructed.
- Special circumstances can be found where an offender's youth and rehabilitation prospects justify a greater than usual gap between the non-parole period and the head sentence.
- Where multiple driving offences attract mandatory disqualification periods, the District Court may impose concurrent disqualification terms, with the practical commencement date determined by the relevant roads authority rather than fixed by the court itself.
- The sentencing court took into account that disqualification periods would effectively run from the date of release from custody, meaning the offender faced an additional two years off the road after serving his sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 52A(3)(c), 53
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 166, 287(1)
- Evidence Act 1995 (NSW)
- Road Rules 2014 (NSW), r 287(1)
Cases
- Attorney-General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518
- The Queen v White [2002] NSWCCA 343