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District Court 29 January 2021

The Queen v Angel

[2021] NSWDC 4

Assault & violenceTraffic & driving
CRIME SENTENCE DANGEROUS DRIVING OCCASIONING GBH TWO COUNTS OTHER CHARGES ON FORM 1

Citation: The Queen v Angel [2021] NSWDC 4
Court: District Court of New South Wales
Date: 29 January 2021
Judge(s): Wilson SC DCJ

Background

The offender, a 19-year-old P2 provisional licence holder, drove a vehicle carrying four passengers on 10 March 2019 in the Wyong area of New South Wales. He drove erratically, swerving between lanes and taking corners at excessive speed before losing control of the vehicle on Hansens Road. The car rolled three times after the offender pulled the handbrake while travelling at approximately 68 km/h in a 60 km/h zone.

The consequences were devastating. One rear passenger, who was not wearing a seatbelt, suffered a cervical fracture-dislocation and became an incomplete quadriplegic, requiring surgery and ongoing nursing care. Two other passengers sustained serious injuries including multiple fractures, pelvic injuries, and ligament tears. A fourth passenger suffered a neck fracture.

The offender was charged with two counts of dangerous driving occasioning grievous bodily harm under section 52A(3)(c) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of seven years imprisonment. Additional charges of causing bodily harm by misconduct and driving with an illicit drug present in blood were dealt with on a Form 1 and as a related offence respectively.

  • What was the appropriate sentence for two counts of dangerous driving occasioning grievous bodily harm, having regard to the severity of the injuries, the offender's youth, and his subjective circumstances?
  • What weight should be given to the Form 1 charges (causing bodily harm by misconduct and driving with illicit drug present) in fixing the sentence for the principal offences?
  • Whether full-time custody was required, or whether an Intensive Corrections Order (ICO) was the appropriate disposition given the offender's age, prospects of rehabilitation, and the sentencing principles applicable to young offenders.
  • What disqualification periods applied under the Road Transport Act 2013 (NSW)?

Decision

Wilson SC DCJ acknowledged at the outset that no sentence could adequately reflect the catastrophic harm suffered by the victims, particularly the young man left as an incomplete quadriplegic. The judge noted the maximum penalty of seven years for each charge served as a guidepost indicating the seriousness Parliament attached to this class of offending.

The court considered the objective seriousness of the conduct, which included speeding, lane swerving, pulling the handbrake at speed, and driving in a manner that witnesses described as reckless. Aggravating factors included the offender being on conditional liberty at the time (he was subject to two section 10 bonds for drug possession) and the serious harm caused. Mitigating factors included his youth (19 at the time of offending), his prospects of rehabilitation, his early guilty plea, and his remorse.

Having weighed these considerations, the court determined that a full-time custodial sentence was not required and that an ICO was appropriate. The judge imposed a two-year ICO on sequence 1, with sequence 2 to be served concurrently. The Form 1 charges were taken into account by increasing the weight given to personal deterrence and retribution in the principal sentence.

For the drug driving offence, a fine of $1,000 and a six-month disqualification were imposed.

Orders Made

  • Sequence 1 (dangerous driving occasioning GBH): Intensive Corrections Order for a period of two years.
  • Sequence 2 (dangerous driving occasioning GBH): Concurrent ICO.
  • ICO conditions include:
  • No further offending.
  • Supervision by a community corrections officer.
  • Home detention at a specified Wyong address for 18 months (expiring 28 July 2022).
  • Electronic monitoring (anklet) for the duration of the home detention condition.
  • 750 hours of community service work (the maximum permitted).
  • Participation in rehabilitation or treatment programs as directed.
  • Abstention from drugs for the duration of the ICO.
  • Completion of a safer drivers course as directed by Community Corrections.
  • Disqualification from driving for three years under section 205 of the Road Transport Act 2013 (NSW).
  • Drug driving offence (Form 1 related charge): fine of $1,000 and six-month driving disqualification.

Key Takeaways

  • The District Court confirmed that Form 1 charges are taken into account in sentencing the principal offence by giving greater weight to personal deterrence and the community's entitlement to retribution, consistent with the approach in Re Attorney General's Application (No 1 of 2002) (2002) 56 NSWLR 146.
  • Maximum penalties for dangerous driving occasioning grievous bodily harm function as sentencing guideposts, representing the seriousness Parliament attaches to the worst cases of such conduct rather than fixing a mandatory outcome.
  • An ICO with home detention, electronic monitoring, and maximum community service hours can be the appropriate disposition even for serious driving offences involving catastrophic injury, where an offender's youth and rehabilitation prospects are significant factors.
  • Conditional liberty at the time of offending (including section 10 bonds) constitutes a statutory aggravating factor under section 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The court emphasised that the legal constraints of sentencing principle may produce outcomes that victims and their families regard as inadequate, and directly acknowledged this tension in its remarks.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A, 53, 53A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 73B
- Road Transport Act 2013 (NSW), ss 111, 205

Cases
- Re Attorney General's Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146
- R v Jurisic [1998] NSWSC 423
- R v Whyte [2002] NSWCCA 343
- R v Berg [2004] NSWCCA 300
- R v Takai [2004] NSWCCA 392
- R v Way (2004) 60 NSWLR 168
- Harrigan v R [2005] NSWCCA 449
- R v Tzanis [2005] NSWCCA 275
- Kelly v The Queen [2007] NSWCCA 357
- Rosenthal v R [2008] NSWCCA 149
- Black v R [2010] NSWCCA 321
- R v AB [2011] NSWCCA 229
- R v Buckley [2012] NSWCCA 85
- Primmer v R [2015] NSWCCA 155
- R v Price [2016] NSWCCA 50
- R v Kerr [2016] NSWCCA 218
- R v Mansweto [2018] NSWCCA 232
- R v Pullen [2018] NSWCCA 264
- R v Fangaloka [2019] NSWCCA 173
- R v Errington [1999] NSWCCA 18