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District Court 25 November 2021

R v Singh

[2021] NSWDC 759

Assault & violenceTraffic & driving
CRIME DRIVING OFFENCES CIRCUMSTANCES OF AGGRAVATION UNDER THE INFLUENCE OF ALCOHOL

Citation: R v Singh [2021] NSWDC 759
Court: District Court of NSW (Queanbeyan)
Date: 25 November 2021
Judge(s): Bright DCJ

Background

The offender, a 37-year-old Indian-born Australian resident, appeared for sentencing on one count of aggravated dangerous driving occasioning grievous bodily harm under s 52A(4) of the Crimes Act 1900 (NSW). The aggravating circumstance was that he was under the influence of alcohol at the time. A further offence of causing bodily harm by misconduct in charge of a motor vehicle was taken into account on a Form 1 (a procedural mechanism by which related charges are acknowledged at sentencing without a separate conviction being recorded).

On 7 September 2020, the offender drove erratically through residential streets in Jerrabomberra while heavily intoxicated, with a blood alcohol reading of 0.272 grams per 210 litres of breath. After a course of dangerous driving through several cul-de-sacs, he drove directly at two victims standing in their driveway, striking both and causing the vehicle to collide with the front of their residence. He was arrested at the scene.

The two victims, a father and son, were hospitalised. The son, Michael Shilling, sustained serious leg injuries requiring multiple surgeries. The father, Ross Shilling, suffered crush injuries but did not sustain long-term damage.

Legal Issues

  • What sentence was appropriate for aggravated dangerous driving occasioning grievous bodily harm, applying the guideline judgment in R v Whyte?
  • What was the objective seriousness of the offending?
  • Did the offender's mental health reduce his moral culpability?
  • Was an Intensive Correction Order available, given the total sentence length?
  • Were special circumstances established, warranting a variation of the statutory ratio between the non-parole period and the balance of term?

Decision

Objective seriousness: The court assessed the objective gravity of the offending as just below the middle of the range for this offence (at [25]). Relevant factors included the very high blood alcohol concentration of 0.272 grams per 210 litres of breath, the course of erratic driving through populated residential streets, the deliberate acceleration towards the victims while making a rude gesture with both middle fingers extended, and the serious injuries caused (at [8]-[13], [24]-[25]). The court described the conduct as reflecting a high level of criminality amounting to an abandonment of responsibility (at [32]).

Victims' injuries: Michael Shilling suffered grievous bodily harm, including a six-centimetre thigh wound with significant bruising, requiring multiple hospital admissions and surgeries, with a lasting large scar anticipated (at [17]-[19]). Ross Shilling was pinned between the vehicle and the brick structure of the house. He suffered crush injuries but cleared without long-term damage (at [20]-[21]).

Mental health and moral culpability: The court accepted that the offender was suffering from persistent depressive disorder at the time of the offending, and that his deteriorating mental health provided context for his alcohol consumption (at [74]). However, the court was not satisfied that his mental health materially reduced his moral culpability for the offending (at [75]). The court did accept that a custodial sentence would be more onerous for him given his mental health issues, and moderated the sentence accordingly (at [75]).

Sentencing outcome and the Intensive Correction Order question: The court found that no penalty other than imprisonment was appropriate (at [82]). Starting from a term of three years and six months, a 25 percent discount for the guilty plea reduced the total term to two years and seven months (at [84]). Because this exceeded two years, an Intensive Correction Order was not available under s 68(1) of the Crime (Sentencing Procedure) Act 1999 (NSW), as clarified in Abel v The Queen (at [84]). The court found special circumstances warranting a variation of the statutory ratio between the non-parole period and the balance of term, because it was the offender's first time in custody and a longer parole period would assist him in addressing his mental health and alcohol use (at [85]-[86]).

Orders Made

  • Term of imprisonment of 2 years and 7 months with a non-parole period of 1 year and 4 months, commencing 25 November 2021 and expiring 24 June 2024, with release to parole on 24 March 2023.
  • Licence disqualification for the minimum period of 12 months, taking into account the immediate licence suspension already imposed.
  • Interlock driver's licence for a period of three years pursuant to s 214(2) of the Road Transport Act 2013 (NSW).

Key Takeaways

  • The District Court confirmed that where a total sentence exceeds two years, an Intensive Correction Order is not available under s 68(1) of the Crime (Sentencing Procedure) Act 1999 (NSW), and this applies even where the offender has no prior custodial history (at [84]).

  • A diagnosis of persistent depressive disorder did not, on these facts, reduce the offender's moral culpability for aggravated dangerous driving. The court distinguished between mental health providing context for the offending and mental health materially contributing to the commission of the offence (at [74]-[75]).

  • Deliberate conduct in the course of dangerous driving, including accelerating directly at known victims while making an intentional gesture towards them, is a significant factor going to objective seriousness, even where the offender later reports no memory of the incident (at [9]-[10], [24]-[25]).

  • Special circumstances warranting a reduced non-parole period were established where the offender was a first-time custodial prisoner with identified mental health issues and problematic alcohol use, since a longer parole period could address the underlying conditions and reduce reoffending risk (at [85]-[86]).

  • Under the R v Whyte guideline framework, the degree of intoxication in an aggravated dangerous driving matter under s 52A(4) of the Crimes Act 1900 (NSW) operates as a statutory aggravating factor, and a course of erratic driving placing multiple members of the public at risk is weighed in assessing objective seriousness, even where the ultimate injuries are confined to a single victim (at [31]-[32]).

Legislation and Cases Referenced

Legislation
- Crime (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Road Transport Act 2013 (NSW)

Cases
- Abel v The Queen [2020] NSWCCA 82
- Attorney-General's Application under s 37, Crime (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v De Simoni [1981] HCA 31
- R v Manok [2017] NSWCCA 232
- R v Whyte [2002] NSWCCA 343