The Application of Section 10 to Avoid the Consequences of Disqualification
I note from the reference of Stephen Blake, that without a licence, the offender may need to withdraw from the Masters program until her licence is re-instated.
Reliance was placed on a decision of Gillmore v R [2016] NSWDC 401.Where a driver who negligently caused grievous bodily harm to a motorcycle rider was given the benefit of section 10 on appeal.
I have carefully read the decision, but I do not find it helpful to this matter. There is no reference at all to any case law. I could find no specific reference to objective seriousness, general deterrence, denunciation, impact of the crime on the victim or protection of the community. Significant weight is given to the offender's subjective case.
In Valentine v Eid (1992) 27 NSWLR 615 at 622D, Grove J said:
"………I conclude that the doctrine of stare decisis does not apply as between two inferior courts, the District Court and the Local Court, even though the former stands higher in curial gradation".
I decline to follow the decision of Gillmore.
In R v Denis Ernest Fing NSWCCA (unreported 4 October 1994), Dunford J. with Ireland and Grove JJ. Agreeing said:
"It is not proper to dismiss the matter without a conviction merely to avoid some other legislative provision which is otherwise applicable."
See also Griffith v Hutchinson & Anor (unreported NSWSC 1 February 1991) per McInerney J:
"The means adopted by the second defendant (Magistrate) were intended, in my view, to circumvent the clear provisions of the statute, and, in particular, to circumvent the mandatory period of disqualification. This, in my opinion, was not open for him to do."
A decision that is closely linked by facts and argument to have a negligent driving occasioning grievous bodily harm matter dealt with on appeal by way of non- conviction is Babineau v The Queen [2016] NSWDC 354. Henson DCJ meticulously analysed the purposes of sentencing and gave cogent reasons as to why it was not appropriate, firstly, to deal with that matter pursuant to section 10, and, secondly, as to why it was not appropriate to invoke section 10 to avoid the consequence of disqualification, citing Fing (supra).
The appellant in that case executed a turn across the direction of travel of a motor cyclist that resulted in a collision with significant physical ramifications to the victim.
The defendant was 73, had no prior convictions, was remorseful, participated in a traffic offender program, had good prospects of rehabilitation and was a person of good character - noting as I have the limitations of good character in the circumstances. Their driving history was poor.
The applicant in that matter was a Minister of a church and claimed a potential loss of capacity to conduct pastoral care. She lived in an isolated rural location and relied upon her licence to rehearse and play in an orchestra, to do odd jobs, work with disadvantaged elderly folk. Public transport was non-existent. She regularly visited her daughter to provide emotional support, noting her daughter had a significant mental health disorder.
The appeal was dismissed.
As to the issue of isolation without public transport, his Honour said at [30]:
"Absent anything more, the appellant's appeal on this point alone would in the view of this Court, fail. To do otherwise would be to place one section of the community in a position of preference to others. Deterring the commission of offences which involve a threat to the public safety would effectively be undermined where one section of the broader community is dealt with in an extremely lenient manner simply to maintain the use of a licence while others were not."
In Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303, commonly known as the guideline judgment for high range drink driving, the Court said:
"128 This means that there will almost invariably be hardship, or at least inconvenience, caused to the offender deprived of his or her licence for such a lengthy period as Parliament has prescribed. This is particularly so in country areas and other places where public transport is rare or non-existent. Of course licence disqualification can have a severe impact upon the ability of a person to obtain or maintain employment. But the focus is here upon a criminal offence that Parliament considers to be one of the most serious summary offences.
143 Clearly the subjective features of the offender are relevant to a determination of the penalty for any offence, and high range PCA is no exception. But general sentencing principles require that the penalty reflect the object seriousness of the offence and that too much allowance cannot be given to subjective features particularly where deterrence and denunciation are important factors in sentencing.
145 It has already been acknowledged that the disqualification of a person from driving may have a very significant impact upon the offender's ability to obtain or retain employment or may interfere with the offender's capacity to function in the community. Of course the impact will differ from person to person and from locality to locality within the State. However, if a conviction is warranted because of the seriousness of the offence, the court can rarely refuse to take that course simply because of its impact upon the offender's licence."
It would be inappropriate and improper to deal with this matter by way of non-conviction to avoid the consequences of disqualification.
[2]
Sentencing Options upon Conviction
I will deal with the matter by way of a fine and Community Correction Order. Although the lack of need for specific deterrence and a finding that the offender is unlikely to re-offend reduces the need for a good behaviour component, the need for general deterrence is not adequately given effect by a fine only. There is no need for supervision. The sentencing option of community service work is not available due to the offender living interstate. But for that fact, it would have been an appropriate component of this sentence.
Disqualification is a consequence of a conviction being recorded. There is ample reason to reduce the disqualification period from the automatic period of 3 years to the minimum of 12 months.
[3]
ORDERS
The offender Taylah Blake is convicted.
The offender is fined the sum of $1,000 and placed on a Community Correction Order without supervision for a period of 2 years.
The disqualification period is 12 months from 9 May 2023 to 8 May 2024.
I warn the offender against driving during the disqualification period. I understand that the disqualification in NSW also has effect in Victoria.
[4]
Amendments
30 August 2024 - Amended coversheet fields.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 30 August 2024
The maximum penalty for the offence is nine months imprisonment and/ or a fine of up to 20 penalty units. Upon conviction, there is an automatic disqualification of three years which may be reduced to not less than 12 months if it is considered by the court appropriate to do so.
I am required to assess the appropriate sentence having regard to the prescribed maximum penalty for the offence: see Park v Queen [2021] HCA 37 at [19]; Greaves v R [2020] NSWCCA 140 at [66] and Markarian v The Queen (2005) 79 ALJR 1048 at [31].
Plea in Mitigation
Mr Pasterfield presented a strong subjective case aimed squarely at having no conviction recorded so as to avoid a consequential disqualification.
The plea in mitigation acknowledged the serious injuries occasioned to Mr Shimess as a result of Ms Blake's negligence.
In support of that plea, the following documents were tendered:
1. A certificate of completion from a traffic offenders rehabilitation program
2. A letter from the defendant's father, Stephen Blake
3. A letter from Gabrielle Howard
4. Judicial Commission statistics for that offence
5. The decision of the District Court, Gillmore v R [2016] NSWDC 401
The reference of Mr Blake, the defendant's father, expresses appropriate concern for the harm that was caused to the victim. He asserts, and it is not doubted, that the offence is out of character. Ms Blake was school captain in year 12, a successful student athlete and is said to have contributed positively to her community, including a number of roles with organisations such as Headspace and Lifeline. She has worked as a disability support worker, well-being officer and behavioural therapist.
Mr Blake indicates that at the time of the accident, his daughter was living in Sydney working as a behavioural therapist and was unfamiliar with the area in which she was driving. He states that the loss of driver's licence for his daughter would have enormous ramifications on her economic and academic life as she requires a car to transport clients and travel to client's homes. He asserts that without a licence, his daughter will no longer be able to continue to work as a disability support worker. Further, he notes the requirement of 1000 unpaid placement hours as a provisional psychologist. This is in order for his daughter, Ms Blake, to complete her Masters degree which requires placements at various regional centres in Victoria where there is limited public transport. He acknowledges that his daughter would not be able to complete a mandatory placement without a licence. Consequently, he informed the court that Ms Blake is considering the need to withdraw from the program until her licence is reinstated.
He also refers to his daughter's role in assisting her grandmother to care for Ms Blake's cousin who is 14 years old. This includes regular transport to sporting commitments and school. It is suggested that the loss of Ms Blake's licence would have a ripple effect into the lives of her extended family such as her 14-year-old cousin and grandmother. He refers to his daughter's remorse and the shame she feels for her actions.
Ms Howard has known Ms. Blake for a period of 12 years. This includes a number of years where they worked as rowing coordinators for a college rowing program, where they were occasionally required to transport 10 metre rowing trailers to various regattas across Victoria and Sydney. Ms Howard also refers to Ms Blake's remorse.
Emphasis was placed on the importance of Ms Blake's licence not being disqualified due to the likely effect of such a disqualification, as set out in her father's reference.
Grievous Bodily Harm
Grievous bodily harm is not defined in the Road Transport Act 2013. In the definition section (section 4) of the Crimes Act 1900 (NSW), 'grievous bodily harm' is not defined. Rather, there is reference to what is 'included' by that phrase. Although the inclusion refers to serious disfigurement, the prosecution has not provided any information in that regard.
A detailed discussion on the meaning of grievous bodily harm is found in the recent decision of ST v R [2022] NSWCCA 169 at [42] - [70]. It remains the case that for the injury to be 'grievous' it must be a "really serious one": Haoui v R [2008] NSWCCA 209 at [169] per Johnson J.
Grievous bodily harm can take many forms. It may involve an injury that involves the knocking out of front teeth: ST v R (supra) at [70] due to disfigurement; or a significant fracture of a finger requiring complex surgery; or a fracture of the mandible requiring surgery: Haoui v R (supra); or an acquired brain injury, paraplegia and quadriplegia. These are just some examples.
There can be no doubt that a really serious injury to Mr Shemiss' pelvis required surgical intervention that involved the insertion and fixing of plates, screws and what police describe as 'nuts'. It is indicated that the victim will require ongoing physiotherapy and rehabilitation for his injuries.
The prosecution has not tendered any medical reports, or any details of any prognosis, duration of hospital stay, ongoing pain, emotional harm, time off work or future implications such as any degree of temporary or permanent incapacity or ability to undertake employment.
The failure to tender such material restricts the Court's ability to give proper weight to an important purpose of sentencing set out in section 3A(g) of the Crimes (Sentencing Procedure) Act 1999: "to recognise the harm done to the victim of the crime and the community".
Further, section 21A(2)(g) of that Act allows the Court to consider "the injury, emotional harm and loss or damage caused by an offence."
The role of the Court is not to be interventionist and call for such important information. However, the problem appears to be systemic and is by no means limited to this case. It impacts upon the proper administration of justice.
Given the broad range of injuries capable of constituting grievous bodily harm, I find that Mr Shemiss' injuries are neither at the top nor at the bottom of that range. They sit somewhere in the middle.
Negligence of Offender
Ms Blake said that she looked for oncoming traffic before turning. However, she clearly failed to see the approaching motorcycle despite the low speed of her car and the motorcycle, as well as the dry conditions and clear weather.
The submission made on behalf of the offender that prior to the collision she was following a delivery truck that "had to swerve around an illegally parked car causing her to lose sight of the road momentarily before she made the right-hand turn", is not consistent with the police facts or the version given to police on the day of the collision. Mr Pasterfield today tendered a copy of that version. That version states: "I was driving down Hatfield Street towards Coogarah Street. There was a white van in front of me travelling in the same direction. I slowed down I think 20 kmh (sic) to turn into Coogarah Street. I looked for oncoming traffic before I turned in. I started to turn in and a motorbike collided with my car. My air bags went off and some people on the street called an ambulance."
There is no mention in her version of the truck swerving around an illegally parked car. In the absence of proof of an asserted fact, on the balance of probabilities, it is open to the Court to deal with the matter on the basis of the defendant's version and the agreed facts: see Khanwaiz v R [2012] NSWCCA 143 at [96].
The suggestion of the truck swerving and losing sight of the road momentarily before she made the right-hand turn is one that does not assist her case. It is certainly not exculpatory and would adversely impact upon the finding of moral culpability if I were to accept it. If Ms Blake lost sight of the road momentarily before she made the right-hand turn, the right turn manoeuvre should not have been attempted until she was totally satisfied that it was both safe and appropriate to do so.
It is difficult to comprehend how Ms Blake failed to see the approaching motorcycle if she was keeping a proper lookout, as the law required her to do. The incident occurred in daylight hours in good weather. Her father's assertion that she was unfamiliar with the area may well be factually correct. However, such unfamiliarity calls for greater vigilance and awareness when driving.
I am satisfied that Ms Blake failed to keep a proper lookout, and her negligence at the relevant time fell far short of what ought to be expected of a reasonable and prudent driver.
Good Character
Ms Blake is a person of prior good character. However, prior good character is given less weight in circumstances where general deterrence is important, the offence is serious, and the offence is one often committed by persons of otherwise good character: see R v Kennedy [2000] NSWCCA 527 at [21].
Sentencing Statistics
Judicial Commission sentencing statistics were tendered as part of the defence tender bundle.
In relation to sentencing statistics, the following was said in McGonigle v R [2020] NSWCCA 84 at [123]:
"[123] ………………… As counsel for the Applicant acknowledged, there is limited information provided in the statistical data with respect to objective seriousness, the subjective circumstances of offenders, the presence or absence of aggravating and mitigating factors, prospects of rehabilitation or remorse for the offending".
In Skocic v R [2014] NSWCCA 225, Bellew J (Macfarlan JA and Fullerton J agreeing) summarised the common law regarding the use of sentencing statistics, at [19]. Some of the salient points in that paragraph include:
"The presentation of sentences passed in the form of numerical tables and graphs is of limited use. This is because reference to the lengths of sentences passed says nothing about why the sentences were fixed as they were: Hili v Jones; Jones v R [2010] HCA 45 at [48].
This Court has emphasised the need to adopt a careful approach when asked to have regard to statistics: R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J, Beazley JA (as her Honour then was) and Johnson J. agreeing. A similarly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another…".
The statistics tendered reveal the limited utility of sentencing statistics referred to in Hili (above). The use of parameters relevant to this offender (e.g., age, nil priors, plea of guilty) show that there were only 42 offences during the 4-year period October 2018 to September 2022. By removing the 'age' parameter, there are 445 offences revealed.
I subsequently raised with the parties that by removing all parameters, there are 749 offences within that time frame. It is disturbing that at least 749 people have suffered grievous bodily harm from the actions of negligent drivers in that 4-year period, which equates to more than 15 people really seriously injured per month.
Statistics show that with the parameters applicable to Ms Blake, 23.8% of offenders are dealt with by way of non-conviction. Removing the age parameter, the figure rises to 30.4%. Overall, the figure is 24%. Put another way, 76% of all offenders are convicted for this type of offending.
The first is by way of considering the legislative provision of section 10 of the Crimes (Sentencing Procedure) Act 1999. A Court may dismiss a charge or discharge the person conditionally by way of a Conditional Release Order: see s10(1)(a) and (b) and 9(1)(a) of the Act.
To deal with this matter by way of a Conditional Release Order, I would have to be satisfied that it is inexpedient to inflict any punishment other than nominal punishment, and expedient to discharge the defendant.
Section 10(3) of the Act requires the Court have regard to the following factors in deciding whether to make such an Order:
(a) the person's character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider.
Ms Blake is 28 years old. There are no issues regarding her health and mental condition. I have already indicated that her good character is to be given less weight.
The offence is not trivial and carries a potential penalty of imprisonment. However, factors (a) to (d) are disjunctive: see R v Paris [2001] NSWCCA 83 at [42] per Simpson J. (as she then was).
There are no extenuating circumstances in which the offence was committed.
In relation to section 10(3)(d), I take into account all that has been said on Ms Blake's behalf and the content of the subjective material tendered for her.
The offender is clearly a high achieving intelligent woman intending to commence a Masters degree. From June 2023, she is meant to commence 1,000 hours of unpaid work placement as part of her study requirements. Some of these hours are in a town that is a one-hour drive from Ballarat, with some further duties in other regional locations. Public transport is limited to 5 trains a day between her home and the regional town. A loss of licence would curtail her current work as a disability support worker. It is further suggested that a loss of licence may impact upon third parties: see Stephen Blake reference.
I will deal with the issue of hardship to third parties firstly. Although referring to imprisonment, the remarks in R v Hopley [2008] NSWCCA 105 on hardship to third parties are apposite. At [39], Johnson J. (Beazley JA, McCallum J. agreeing) said:
"The fact of imprisonment almost inevitably leads to hardship, sometimes very serious hardship to third parties. Justice will not have been seen to be administered even-handedly if exceptions are made (on this account) in cases which are not truly, wholly or highly exceptional: R v Edwards at 516; R v Day at 277; R v Gip; R v Ly at 179 [29]."
It was further submitted that it would be appropriate to deal with the matter without recording a conviction and by way of a two-year conditional release order.
It was submitted that prior to the collision "Ms Blake was following a delivery truck that had to swerve around an illegally parked car causing her to lose sight of the road momentarily before she made the right hand turn." I shall deal with that submission shortly.
The perceived or potential hardships arising to third parties if Ms Blake were to be disqualified are not "truly, wholly or highly exceptional."
There is a long line of authority in relation to the potential of strong subjective considerations resulting in inadequate weight being given to sentencing principles.
In R v Fangaloka [2019] NSWCCA 173 at [64], Basten JA affirmed a long-held principle when his Honour said:
[64] "……..there is no doubt that a sentencing court must have regard to the personal circumstances of the offender; but they should not divert the court from imposing adequate punishment, having regard to the objective gravity of the offence" [citing R v Carroll; Carroll v The Queen (2010) 77 NSWLR 45; [2010] NSWCCA 55 at [62] (Allsop P and Johnson J; Spigelman CJ, Kirby and Howie JJ agreeing)].
See also for example McGonigle v R [2020] NSWCCA 84 at [122], Dodd (1991) 57 A Crim R 349 at 354.
In R v Mauger [2012] NSWCCA 51 at [19], Harrison J. said:
"Where the offence that is committed is an objectively serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope of the operation of Section 10 decreases. The section must operate in the context of the general principles that the penalty imposed for any offence should reflect the objective seriousness of that offence."
Dealing with the matter by non-conviction pursuant to section 9(1)(b) Crimes (Sentencing Procedure) Act 1999 would fail to adequately reflect the objective gravity of the offence. Such an outcome would fail to give the proper weight to the sentencing purposes of general deterrence, denunciation, protection of the community, and the impact of the crime on the victim.
Having considered the legislative requirements, I am not of the opinion that it is appropriate to deal with the offending by way of a section 9(1)(b) dismissal.