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District Court 3 March 2023

R v Sams

[2023] NSWDC 113

Traffic & driving
SENTENCING RELEVANT FACTORS ON SENTENCE OBJECTIVE SERIOUSNESS MORAL CULPABILITY LEVEL OF INTOXICATION

Citation: R v Sams [2023] NSWDC 113
Court: District Court of New South Wales
Date: 3 March 2023
Judge: Coleman SC DCJ

Background

The offender drove a vehicle while intoxicated late at night in Tamworth, after consuming alcohol throughout the afternoon and evening without eating. He had argued with his partner at a pub before getting behind the wheel. Police had earlier observed him at the pub with a drink in hand.

While driving along Peel Street, his vehicle crossed the fog line and struck two pedestrians walking along the road. One victim, a 28-year-old woman, suffered grazes to her face and body. The other victim, a 31-year-old man, suffered catastrophic and permanent consequences: severe traumatic brain injury leaving him dependent on full-time care, unable to swallow properly, unable to mobilise independently, and with a guarded long-term prognosis.

After the collision, the offender did not stop. He parked his car nearby, walked back to the scene, and initially denied to police and a bystander that he had been the driver. He was visibly intoxicated when police arrived. He only admitted to driving the vehicle during an electronically recorded interview the following morning.

  • What sentence was appropriate for dangerous driving occasioning grievous bodily harm under s 52A(3)(c) of the Crimes Act 1900 (NSW), including the application of the R v Whyte guideline judgment?
  • How should the offender's level of intoxication, post-offence conduct, and personal circumstances bear on objective seriousness and moral culpability?
  • What weight should be given to the guilty plea, remorse, and other mitigating factors?
  • How should the Form 1 offence (failing to stop and assist after causing grievous bodily harm) affect the primary sentence?
  • What period of licence disqualification was appropriate given the offender had voluntarily surrendered his licence after the offending?

Decision

The court assessed the dangerous driving offence as falling in the mid-to-high range of objective seriousness. Key aggravating features included the degree of intoxication, the severity of Mr Haines's injuries (including the permanent and life-threatening nature of his brain injury), the risk posed to multiple persons, and the offender's failure to stop. The court described the victim's situation in detail, noting his ongoing dependence on full-time care and the threat to his longevity from recurrent respiratory infections.

The court applied the R v Whyte guideline judgment, which provides that where an offender's moral culpability is high, a full-time custodial head sentence of less than two years would not generally be appropriate for dangerous driving occasioning grievous bodily harm. The court found this threshold was engaged, and that a full-time custodial sentence was required.

Mitigating factors were also weighed, including the offender's early guilty plea (attracting a 25% discount), genuine remorse, the absence of a prior criminal history for traffic matters, and the context of a difficult personal background. The court considered the principles in Bugmy v The Queen regarding the relevance of disadvantaged background to moral culpability. These factors reduced the ultimate sentence but did not displace the need for full-time custody.

On the Form 1 offence of failing to stop and assist, the court did not impose a separate sentence but took the matter into account in setting the primary penalty, particularly by giving added weight to specific deterrence and retribution. The voluntary surrender of the offender's licence following the offending was taken into account in setting the disqualification period.

Orders Made

  • For causing bodily harm by misconduct in charge of a motor vehicle (s 53): fixed term of imprisonment of four months, commencing 15 November 2022.
  • For dangerous driving occasioning grievous bodily harm (s 52A(3)(c)), taking into account the Form 1 matter: non-parole period of 14 months, balance of term of seven months (total sentence of one year and nine months after 25% discount; two years and four months before discount), commencing 15 November 2022.
  • Both sentences to be served concurrently.
  • First eligible for parole: 14 January 2024; balance of term expires 14 August 2024.
  • Disqualification from driving: 12 months for each offence (to be extended for the period spent in custody, by operation of s 206A of the Road Transport Act 2013 (NSW)).

Key Takeaways

  • The R v Whyte guideline judgment remains operative in sentencing for dangerous driving occasioning grievous bodily harm under s 52A of the Crimes Act 1900 (NSW), with a full-time custodial sentence of at least two years generally required where moral culpability is high.
  • A combination of significant intoxication, severe and permanent victim injuries, failure to stop, and initial denial to police will push an offence into the mid-to-high range of objective seriousness.
  • Genuine remorse, an early guilty plea, and a difficult personal background can reduce the sentence, but are unlikely to displace the need for full-time custody where objective seriousness and moral culpability are both elevated.
  • Under s 206A of the Road Transport Act 2013 (NSW), a licence disqualification period is extended by the time an offender spends in custody; voluntary surrender of a licence before sentencing may be taken into account when setting the disqualification period under s 206B.
  • A Form 1 offence does not attract a separate sentence but may legitimately increase the weight given to specific deterrence and retribution when the court sentences for the primary offence, consistent with the approach confirmed in Attorney General's Application (No 1 of 2002).

Legislation and Cases Referenced

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

Cases:
- R v Whyte (2002) 55 NSWLR 252 (guideline judgment on dangerous driving)
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 (Form 1 procedure)
- Bugmy v The Queen (2013) 249 CLR 571 (relevance of disadvantaged background to moral culpability)