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District Court 15 October 2020

R v McDougall

[2020] NSWDC 880

Assault & violenceTraffic & driving

Citation: R v McDougall [2020] NSWDC 880
Court: District Court of New South Wales
Date: 15 October 2020
Judge(s): Bright DCJ

Background

The offender, a 29-year-old P1 provisional licence holder, was sentenced for dangerous driving occasioning grievous bodily harm following a serious collision in Tuggerah on 27 December 2018. While driving through a suburban area, his vehicle crossed double unbroken lines, mounted a kerb, and struck a woman standing on a footpath outside a motor group business. The impact propelled her over a fence into an adjoining car yard, where she sustained critical injuries and required intubation before being airlifted to John Hunter Hospital.

A second victim, the front-seat passenger, was also injured in the collision. That offence was taken into account on a Form 1 (a procedural mechanism allowing additional offences to be considered in setting the overall sentence without recording a separate conviction). Investigation confirmed no mechanical defect in the vehicle. CCTV analysis showed the offender's vehicle travelling at a minimum of 57 km/h before crossing lane markings, accelerating to 80 km/h by the time it mounted the kerb, with brake lights never activated.

The offender had a documented history of severe obstructive sleep apnoea, had not been using his prescribed CPAP machine for approximately a month, had consumed MDMA on the night before the collision, had slept only a few hours, and exhibited signs of substance impairment when examined by ambulance officers and police. He told police he had no memory of the collision itself. He pleaded guilty at Wyong Local Court on 5 May 2020.

  • What was the appropriate sentence for dangerous driving occasioning grievous bodily harm under s 52A(3)(c) of the Crimes Act 1900 (NSW), given the objective seriousness of the offending?
  • How should the sentencing court weigh aggravating factors, including breach of conditional liberty and the vulnerability of the victim?
  • How should mitigating factors, including the guilty plea, remorse, and the offender's personal circumstances, affect the sentence?
  • What discount applied for the timing of the guilty plea?
  • What period of licence disqualification was appropriate, and how should a prior suspension period be credited?

Decision

Bright DCJ assessed the offending as falling in the mid-range of objective seriousness for this offence. The combination of factors present on the day, including acute sleep deprivation, known but untreated severe sleep apnoea, and recent MDMA use, collectively contributed to a dangerous state of impairment. The court noted that while no single factor alone may have been determinative, the offender drove despite being aware of all these risks.

The court identified aggravating features under the Crimes (Sentencing Procedure) Act 1999 (NSW), including that the offender was on conditional liberty at the time of the offence. Mitigating factors included the guilty plea, demonstrated remorse, a relatively limited prior criminal history in the context of the specific offence, and the offender's difficult personal background, which the court considered in accordance with R v Bugmy. The court applied a 25% discount for the guilty plea, reflecting the timing at the Local Court stage rather than a last-minute plea.

On licence disqualification, the Crown submitted the automatic three-year period should apply given the level of criminality, and argued the court should not credit any suspension period because the offender had driven while suspended. The court disagreed on this last point. Because the offender had already been separately sentenced for that subsequent driving, including receiving disqualification periods at that time, the court found it appropriate to credit the suspension period. The disqualification period was calculated by deducting the time between the date of the offence and 20 February 2020, and a further 15 days in custody, from the three-year automatic period.

Orders Made

  • Convicted of dangerous driving occasioning grievous bodily harm (s 52A(3)(c), Crimes Act 1900)
  • Form 1 offence (cause bodily harm by misconduct in charge of a motor vehicle, s 53, Crimes Act) taken into account
  • Non-parole period of 1 year and 10 months, commencing 6 June 2020, expiring 5 April 2022
  • Balance of term of 11 months, expiring 5 March 2023
  • Total term of 2 years and 9 months (pre-discount starting term of 3 years and 8 months, reduced by 25%)
  • Release to parole directed on 5 April 2022
  • Licence disqualification of 1 year, 10 months and 20 days

Key Takeaways

  • The District Court treated the combination of untreated sleep apnoea, acute sleep deprivation, and recent illicit drug use as collectively elevating the objective seriousness of dangerous driving, even where the precise cause of the loss of control could not be definitively isolated.
  • A guilty plea entered at the Local Court stage attracted a 25% discount, reflecting the sentencing court's assessment of the timing as genuine and reasonably early.
  • Under s 206B(2) of the Road Transport Act 2013 (NSW), a court calculating a disqualification period must take into account any prior suspension period. Here, despite the offender having driven while suspended, the court credited the suspension period because separate proceedings had already addressed that conduct.
  • In applying R v Bugmy, the court acknowledged that an offender's background and personal disadvantage remain relevant to the sentencing exercise even for serious driving offences, without diminishing the weight given to general deterrence.
  • Sufficient objective seriousness existed to make imprisonment the only appropriate penalty, consistent with the guideline judgment in R v Whyte and the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(3)(c), 53
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1)
- Road Transport Act 2013 (NSW), s 206B(2)

Cases
- Attorney-General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act (1999) No 1 of 2002 (2002) 56 NSWLR 146
- R v Bugmy (2013) 249 CLR 571
- R v Manok [2017] NSWCCA 232
- R v Whyte (2002) 55 NSWLR 252