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District Court 22 April 2024

R v Forster

[2024] NSWDC 212

Traffic & drivingPublic order & justice offences

Citation: R v Forster [2024] NSWDC 212
Court: District Court of New South Wales
Date: 22 April 2024
Judge: Haesler SC DCJ

Background

In April 2023, a worker leaving the BlueScope Steel facility in Wollongong was struck by a van driven by the offender, who failed to stop at an intersection. The collision was severe. Due to a faulty seatbelt, the victim was thrown through the driver's side window and landed unconscious on the road. He suffered a flail chest (multiple rib fractures destabilising the chest wall), lung injuries, further fractures, and lacerations requiring stitching. He was airlifted to hospital and, according to the judgment, is fortunate to have survived.

The offender's blood alcohol reading was 0.144 grams per 2.1 litres of breath, nearly three times the legal limit. Dashcam footage showed erratic driving in the moments before impact. After the collision, the offender did not stop to render assistance. He fled the scene and contacted someone to collect him, and was arrested shortly after police began searching.

The offender appeared for sentencing on three charges: dangerous driving occasioning grievous bodily harm, mid-range prescribed concentration of alcohol (PCA) driving, and failing to stop and assist after an accident. He had a prior criminal record and was on parole at the time of the offences.

  • What was the appropriate aggregate sentence across the three offences, applying the Whyte guideline judgment?
  • How should the objective seriousness of the dangerous driving offence be assessed, given the multiple aggravating circumstances?
  • What weight should be given to the offender's subjective circumstances, including his history of childhood sexual abuse, alcohol dependence, mental health, and genuine remorse?
  • How should the breach of parole be treated as an aggravating factor?
  • Whether special circumstances justified a longer than usual parole period relative to the non-parole period.

Decision

Haesler SC DCJ assessed the dangerous driving offence as a particularly serious example of its type. The combination of factors, including heavy intoxication, inattention, erratic pre-collision driving, time of day, and a high-speed collision, placed the offending above what the Whyte guideline describes as a typical case. The judge emphasised that where alcohol is involved in dangerous driving, general deterrence must be adequately reflected in the sentence.

The offence of failing to stop and assist was treated as a separate matter and sentenced independently, with care taken to avoid double-counting against the primary dangerous driving charge. His Honour noted that while other bystanders promptly assisted the victim, reducing the risk of further harm, the offender's flight from the scene remained a serious standalone offence warranting a custodial term.

On the subjective side, the court accepted a significant personal history. The offender had suffered childhood sexual abuse, had long-standing alcohol and drug dependence, and had a documented history of alcohol-related blackouts. Before these offences, he had been performing well on parole, holding employment and managing prior gambling and substance issues. His letter to the court, in which he apologised without making excuses, was accepted as reflecting genuine remorse. His guilty plea was given weight in mitigation. The court found his alcohol use could not mitigate his culpability but could assist in understanding the conduct and addressing the risk of reoffending.

The judge found special circumstances existed, given the offender's significant rehabilitative needs on release, and adjusted the ratio of non-parole period to head sentence accordingly. His Honour noted that the length of sentence should not extinguish the offender's prospects on release, while still reflecting the gravity of the harm caused.

Orders Made

  • Sequence 5 (Dangerous Driving Occasioning Grievous Bodily Harm): 3 years' imprisonment; licence disqualification of 2 years.
  • Sequence 1 (Mid-range PCA driving): 4 months' imprisonment; licence disqualification of 12 months (subsequently amended by Chambers Order on 10 May 2024 to a mandatory interlock order of 24 months under s 43 of the Crimes (Sentencing Procedure) Act 1999).
  • Sequence 6 (Fail to stop and assist): 1 year and 1 month imprisonment; mandatory minimum licence disqualification of 12 months imposed by Chambers Order on 7 June 2024.
  • Aggregate sentence: 3 years and 9 months' imprisonment.
  • Non-parole period: 2 years and 3 months, commencing 20 April 2023.
  • Parole eligibility: 19 July 2025.
  • Parole period: 1 year and 6 months, from 20 July 2025 to 19 January 2027.
  • Release to parole is not automatic; the offender must appear before the Parole Board.

Key Takeaways

  • The District Court confirmed that where dangerous driving involves multiple objective aggravating features, including heavy intoxication, erratic driving, and serious injury, the offending may exceed the "typical case" described in the Whyte guideline, warranting a sentence above the benchmark range.
  • Fleeing the scene after a collision constitutes a distinct criminal offence under s 52A(B)(2) of the Crimes Act 1900 and must be sentenced separately, without double-counting the flight as an aggravating element of the primary dangerous driving charge.
  • Alcohol intoxication does not operate as a mitigating factor in dangerous driving cases. The court may take it into account only to understand the offending and assess prospects of rehabilitation.
  • A prior record and breach of parole are established aggravating factors, but the court weighed these against evidence that the offender had made genuine progress before the offences, supporting a finding of real, though fragile, rehabilitative potential.
  • Special circumstances warranting an extended parole period relative to the non-parole period can be established where an offender has significant rehabilitative needs, provided the overall sentence still reflects the objective gravity of the conduct and the harm to the victim.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(3)(c), 52A(B)(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 42A, 43
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), s 110(4)(A)

Cases
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 (guideline judgment for dangerous driving offences)
- Hoskins v R [2020] NSWCCA 18 (failure to stop and assist; relevance of third-party intervention)
- R v Douglas (1998) 29 MVR 316 (multiple objective factors and aggravation without increased maximum penalty)