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District Court 4 March 2022

R v Grant (No 2)

[2022] NSWDC 46

HomicideDrugsTraffic & driving
CRIMINAL LAW DRIVING OFFENCES DANGEROUS DRIVING OCCASIONING DEATH F AILING TO STOP AND ASSIST POLICE PURSUIT INTOXICATION

Citation: R v Grant (No 2) [2022] NSWDC 46
Court: District Court of New South Wales
Date: 4 March 2022
Judge: Hatzistergos DCJ

Background

Following a six-day judge-alone trial, the offender was convicted of three offences arising from events on the night of 30 November 2019. He had been drinking at a Christmas party in Bolwarra Heights and, despite arrangements having been made for him to sleep over, drove away from the function. While driving, his vehicle crossed a separation line and struck a pedestrian, Tony Greenfield, who was walking along the road with his wife. Mr Greenfield died as a result of the collision.

After the impact, the offender did not stop. He continued driving erratically, with a damaged vehicle and blown tyres, through several streets before being pursued by police. He refused to stop when officers approached his vehicle at traffic lights, pulling his door shut and driving away slowly. He was eventually removed from the vehicle with police assistance and returned a breath test reading of 0.194g/210L at the roadside, later confirmed by a blood alcohol reading of not less than 0.194g/100ml.

The offender's defence at trial had been automatism in the form of sleepwalking (somnambulism), but the court rejected that defence and found all charges proven beyond reasonable doubt. A further charge of mid-range prescribed concentration of alcohol (PCA) was dealt with on a section 166 certificate based on the same evidence. The sentencing hearing took place on 11 February 2022, with judgment delivered on 4 March 2022.

  • What was the appropriate objective seriousness of each offence, particularly the dangerous driving occasioning death charge, assessed against the framework in R v Whyte (2002) 55 NSWLR 252?
  • How should the offender's intoxication be treated in the sentencing exercise, including its interaction with his mild cognitive impairment and deteriorating mental health?
  • What weight should be given to mitigating factors, including prior good character, absence of criminal history, remorse, poor physical and mental health, and the offender's prospects of rehabilitation?
  • How should the impacts of COVID-19 on conditions of imprisonment be taken into account?
  • What aggregate sentence and non-parole period were appropriate across the four offences?

Decision

Hatzistergos DCJ assessed the dangerous driving occasioning death offence (Count 1) as carrying a high degree of moral culpability. The aggravating factors identified in R v Whyte were considered: the offender drove while heavily intoxicated, drove erratically before and after the collision, and was seen swerving on both sides of the road. Although the court acknowledged that the offender's mild cognitive impairment and mental health deterioration had contributed to his resorting to alcohol, intoxication was not treated as a mitigating factor on sentence. It remained a circumstance aggravating the objective seriousness of the driving.

The failing to stop and assist offence (Count 2) was assessed as falling below the mid-range of seriousness. The police pursuit offence (Count 3) was also assessed as below the mid-range and towards the lower range, reflecting the relatively low speed of the pursuit and its short duration. The mid-range PCA offence was dealt with by way of conviction with no other penalty imposed under section 10A of the Crimes (Sentencing Procedure) Act 1999.

On the mitigating side, the court accepted that the offender had no prior criminal convictions, was of prior good character, and had demonstrated genuine remorse. He was found to have excellent prospects of rehabilitation and a low risk of reoffending. The court also accepted that his physical and mental health was poor. While intoxication was not treated as mitigating, the court considered the offender's deteriorating mental health in the context of why he had turned to alcohol. The court further took into account the additional hardship of imprisonment in the context of COVID-19 management in correctional centres.

Victim impact statements from the deceased's wife were before the court, and the judgment recorded the substantial harm caused to her and the deceased's family. The court made a recommendation that Justice Health carry out a full assessment of the offender's health needs and that he be placed at a facility able to meet those needs.

Orders Made

  • The offender was convicted on all counts.
  • An aggregate sentence of imprisonment of 3 years and 10 months was imposed, comprising:
  • A non-parole period of 1 year and 11 months, from 3 March 2022 to 2 February 2024.
  • An additional term of 1 year and 11 months, from 3 February 2024 to 2 January 2026, during which the offender is eligible for parole.
  • The offender's earliest release date was set at 2 February 2024.
  • In relation to the mid-range PCA matter (section 166 certificate): a conviction was entered and no further penalty imposed (section 10A).
  • For Counts 1, 2, and the section 166 matter: the offender was disqualified from driving for the statutory period of 3 years under section 205(2)(d) of the Road Transport Act 2013, accounting for the suspension period following arrest.
  • A recommendation was made to Justice Health to conduct a full health assessment and to the Commissioner for Corrective Services that the offender be placed at a facility capable of meeting his health needs.

Key Takeaways

  • The District Court applied the R v Whyte framework to assess moral culpability for dangerous driving occasioning death, identifying multiple aggravating factors, including high intoxication and sustained erratic driving, that placed the offence at a high level of objective seriousness.
  • Intoxication was not available as a mitigating factor on sentence, even where the offender's mental health decline had contributed to his alcohol use. The court distinguished between the cause of the drinking and the legal treatment of intoxication at the time of the offence.
  • A mild cognitive impairment, combined with significant alcohol consumption, was considered relevant to the court's understanding of why the offender made the decision to drive, without reducing the objective gravity of that decision.
  • Excellent prospects of rehabilitation, genuine remorse, prior good character, and the absence of any criminal history were accepted as significant mitigating factors, contributing to the sentencing outcome.
  • Conditions of imprisonment under COVID-19 protocols were treated as a relevant sentencing consideration, consistent with the court's broader approach to the hardship likely to be experienced in custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A, 52AB, 51B
- Crimes (Administration of Sentences) Act 1999 (NSW), s 276
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), ss 110, 205D

Cases
- R v Whyte (2002) 55 NSWLR 252 (the primary framework for assessing moral culpability in dangerous driving)
- Markarian v R (2005) 228 CLR 357
- Muldrock v R (2011) 244 CLR 120
- R v De Simoni (1981) 147 CLR 383
- R v Manok [2017] NSWCCA 232
- Adam v R [2014] NSWCCA 265
- Hoskins v R [2020] NSWCA 18
- Pullen v R [2018] NSWCCA 264
- R v Casey [2015] NSWCCA 142
- R v Taula [2015] NSWCCA 8
- R v Shashati [2018] NSWCCA 167
- WW v R [2012] NSWCCA 165
- Shumack v R [2008] NSWCCA 311
- R v Grant [2021] NSWDC 643 (the trial judgment in this matter)