Police v Christopher James TURNER

Salient Facts 6A set of Facts the content of which is the subject of agreement between the parties has been tendered and I proceed to deal with the case on that basis. This document is admitted on Sentence and marked Exhibit 1. That done, I set out my own briefer summary. 7About 7.55am on Sunday 4 July 2010, Police, Ambulance and Fire Brigade responded to a report of a motor vehicle accident with a person trapped inside. Upon arrival, Police saw a vehicle in a table drain on the western side of Lachlan Valley Way and facing in the incorrect direction. The Offender was spoken to at the scene and advised that he was the driver of the vehicle. 8Emergency Service personnel commenced medical treatment of the front seat passenger, Joseph Banks who was trapped and pinned inside. It was apparent that the front passenger side of the vehicle bore the brunt of the collision. 9While Mr Banks was being treated and removed from the vehicle, the Offender was subject to a roadside breath test, returning a positive result. He told Police he had fallen asleep at the wheel. He was arrested and taken to Boorowa Police Station where a breath analysis showed a reading of 0.040 grammes of alcohol. The Offender is the holder of a New South Wales P1 provisional licence that has a restriction of zero blood alcohol whilst driving a motor vehicle. 10At the time of the impact, the weather was described as inclement with a heavy fog restricting visibility to about 100 metres in most areas along Lachlan Valley Way. At the scene, Police identified tyre marks from the Offender's vehicle leaving the roadway and heading alongside a large gum tree resulting in an impact with the passenger's side front door. This is the type of impact called for in section 52A(5)(b) of the Crimes Act 1900 . 11The Offender was taken to Young Police Station. He declined the services of a legal practitioner although his father did attend as a support person. He took part in a recorded interview. In summary, the Offender said he drove from Boorowa for a football game in Canberra. He returned to Boorowa, going to the Top Pub about 7.00pm and drinking beer with Joseph Banks and Ben Corkhill. He said he remained at the hotel until just prior to closing time of midnight. He estimates he had something in the order of 6 to 7 middies of XXXX Gold during his stay. 12Having left the hotel, the three young men drove to Canberra to attend "Mooseheads Nite Club". Ben Corkhill drove the Offender's vehicle to Canberra while the Offender slept in the car. The Offender said he drank about 5 Vodka Cruisers at Mooseheads. 13The Offender said he had a sleep in his car before commencing the drive back to Boorowa. Corkhill was dropped off at his home along the way. The Offender was driving and Banks was asleep. 14The Offender said he parked his vehicle on the Lachlan Valley Way and slept for about 30 minutes as he felt drowsy. He said he travelled about 20 minutes from the rest point when he believes he fell asleep. He woke up after the vehicle collided with the tree. He said he was driving in reduced visibility and it is agreed between the parties he was driving under the posted speed limit of 100 kilometres per hour. The Offender said he was "pushing it" as he just wanted to get home to bed. After the recorded interview the Offender was released. 15As it turned out, there were 3 witnesses to the collision. Jyl Thompson was travelling behind the Offender prior to the collision and said the Offender's vehicle was weaving over the road and crossed the centre white line and then back to the left. Thompson thought of overtaking but felt the conditions were too dangerous. A passenger in Thompson's car, Paul Mutton, was concerned the Offender's vehicle would cross the centre line into the path of an incoming vehicle. The third witness, Robert Clark, was travelling in a vehicle following that driven by Thompson. He said he could see the Offender's vehicle weaving and crossing the centre line. 16The injuries to Joseph Banks are described as being a compound spiral fracture to the mid shaft of the humerus of the left forearm. The left ankle was dislocated with a fracture at the base of the 5 th metacarpal. The left elbow was dislocated. Banks underwent surgery to affix external fixtures to his left forearm. Two screws were internally fixed to repair a fracture to the head and neck of the talus in the left ankle. 17Internal fixtures were also applied to the left ankle. A right common femoral artery puncture was closed. Banks suffered numerous post-operative infections and his elbow and forearm were grafted under a flap of his stomach to assist in fighting the infection. He also underwent numerous skin grafts. Photographs tendered to the Court when the pleas were entered provide a graphic illustration. 18As to further effects to Mr Banks, he had several returns to Canberra Hospital for further treatment for infections. He has lost movement and strength in his arm and it is likely he will have some form of permanent disability - although the full nature and extent is not known at this time. 19The Offender has no previous criminal history. He obtained his Learner Licence in May 2008 and a Provisional Licence (P1) in May 2009. In 2009 he received infringement notices for Negligent Driving and Not Keep Left, attracting demerit points and a Roads and Traffic Authority suspension. An appeal against that suspension was dismissed at Queanbeyan Local Court. A traffic infringement for Exceed Speed led to a further demerit suspension in 2010. The Offender was born in 1992 and is presently aged 19 years.

Pre-Sentence Report 20A Pre-Sentence Report courtesy of ACT Corrective Services notes the Offender was raised in Boorowa, the younger of two children. His parents divorced when he was 16 years and his childhood was for the most part unremarkable. Since leaving the family home aged 17 years, the Offender said he has lived in 'group shared accommodation' in Canberra. He completed Year 12 and has commenced a mechanic's apprenticeship. The Offender is described as a good worker and his employer foresees future employment for him. He earns approximately $750 per fortnight. 21The Offender reported first consuming alcohol at age 16 years. He drinks socially most weekends. He said he regularly binge drinks consuming on average 12 x 375ml bottles of full-strength beer at a sitting. He does not believe he has an issue with alcohol. The Offender is quite well physically and mentally, however, he is currently suffering from stress resulting from the motor vehicle accident and his current legal matters. He said he did not think of the potential consequences at the time but, in hindsight, regards his actions as stupid and wrong. He added that the accident has had a significant impact on his life both financially and with the loss of a number of friends who blame him for the injuries to the victim. 22When asked about the victim, the Offender showed some insight stating the victim suffered potential 'life time effects' with the possibility of suffering permanent damage to his arm. He said he visited the victim in hospital and has apologised to him and his family. 23The Offender is suitable for a low level of intervention by the Service in such areas as drink driving, binge drinking and trauma issues from grief from injuries to the victim. He is suitable for a Community Service Order and has completed the necessary paper work. The Offender is said to be aware the Court may impose a custodial sentence.

Matters of General Principle 24It is necessary for the Court to decide the relevant facts because everything else flows from that. The High Court said in R v Olbrich (1999) 199 CLR 270 at 274: "The process by which a court arrives at the sentence to be imposed on an offender has just as much significance for the offender as the process by which guilt or innocence is determined. Unless the legislature has limited the sentencing discretion, a judge passing sentence on an offender must decide not only what type of penalty will be exacted but also how large that penalty should be. Those decisions will be very much affected by the factual basis from which the judge proceeds. In particular, the judge's conclusions about what the offender did and about the history and other personal circumstances of the offender will be very important." 25Findings of fact about matters such as motive or the degree of an offender's involvement have a significant effect on the assessment of an offender's moral culpability. There are many cases involving either a plea of guilty, or a conviction following a plea of not guilty, where the task of assessing an offender's culpability is more difficult than that of determining his or her guilt: Cheung v The Queen (2001) 209 CLR 1 per Gleeson CJ, Gummow and Hayne JJ at [8]. 26Each factual matter found at sentence need not fit into the extremes of aggravating and mitigating factors. In Weininger v The Queen (2003) 212 CLR 629 at [22], the High Court said: "Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of, and concerning, human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple." 27A plea of guilty admits those matters which are the essence of the charge. It does not admit the non-essential ingredients an offence: O'Neill v R [1979] 2 NSWLR 582 at 588; Duffy v R; Mangan v R [2009] NSWCCA 304 at [21]. 28The offence of culpable driving was repealed in 1994 and replaced with various 'dangerous driving' offences under section 52A Crimes Act 1900 . In 1998, as a result of what the court described as "a pattern of inadequacy" of sentences, a guideline was promulgated: R v Jurisic (1998) 45 NSWLR 209 at 229-230. The guideline was subsequently reformulated in R v Whyte (2002) 55 NSWLR 252. 29The guideline judgment in R v Whyte (supra) provides for a typical case as follows: A frequently recurring case of an offence under s 52A has the following characteristics: (i) young offender (ii) of good character with no or limited prior convictions (iii) death or permanent injury to a single person (iv) the victim is a stranger (v) no or limited injury to the driver or the driver's intimates (vi) genuine remorse (vii) plea of guilty of limited utilitarian value. aGuideline with respect to custodial sentences "A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment.": at [214]. bAggravating factors (i) extent and nature of the injuries inflicted (ii) number of people put at risk (iii) degree of speed (iv) degree of intoxication or of substance abuse (v) erratic or aggressive driving (vi) competitive driving or showing off (vii) length of the journey during which others were exposed to risk (viii) ignoring of warnings (ix) escaping police pursuit (x) degree of sleep deprivation (xi) failing to stop. Items (iii) to (xi) relate to the moral culpability of an offender. cGuideline with respect to length of custodial sentences For offences against s 52A(1) and (3) for the typical case: "Where the offender's moral culpability is high, a full-time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate": at [229]. 30Spigelman CJ said at [228]: "In the above list of aggravating factors, items (iii)-(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion." 31In R v Jurisic (supra), Spigelman CJ at CL at 228 quoted the following passage from the judgment of Hunt CJ at CL in R v Musumeci (Unrep., 30/10/97, NSWCCA) describing it as being in many respects a guideline judgment relating to the approach to be taken in sentencing for offences under s 52A Crimes Act 1900 : " This court has held that a number of considerations which had to be taken into account when sentencing for culpable driving must also be taken into account when sentencing for this new offence of dangerous driving ": (My emphasis)

1. The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.
2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life.
3. Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases.
4. The courts must tread warily in showing leniency for good character in such cases.
5. So far as youthful offenders of good character who are guilty of dangerous driving, therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.
6. Periodic detention has a strong element of leniency built into it and, as presently administered, it is usually no more punitive than a community service order.
7. The statement made by this court in relation to the previous offence of culpable driving - that it cannot be said that a full-time custodial sentence is required in every case - continues to apply in relation to the new offence of dangerous driving. As that offence is committed even though the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence (although that does not mean that a non-custodial sentence is ordinarily appropriate in such a case), but the case in which a sentence other than one involving full-time custody is appropriate must be rarer for this new offence." 32Spigelman CJ added that although these observations were made in the context of dangerous driving causing death, the comments can be readily adapted to the cognate offence of dangerous driving causing grievous bodily harm - such as the present case: R v Jurisic (supra) at 228. 33I make the following findings of fact -

• The Offender was:
  • suffering from sleep deprivation during his driving;
  • feeling drowsy to the point he had to pull over and rest;
  • "pushing" himself to get home to bed;
  • observed driving in an erratic manner leading up to collision;
  • falling asleep at the wheel resulting in collision.
• Given an estimate of a blood alcohol reading of between 0.04 and 0.07 at the time of the collision and Doctor Perl's opinion that the Offender's ability to drive was impaired, he was under the influence of intoxicating liquor but at the lower end of the scale of intoxication.
• The Offender was sufficiently affected by fatigue and residual effects of alcohol that the driving was objectively dangerous to the extent the Offender posed a significant risk to the public. 34I note straightaway that there is a combination of factors going to make up the factual findings, that is, manner of driving, sleep deprivation and the presence of alcohol. While the guideline has been described as a "check" and an "indicator", in R v Berg [2004] NSWCCA 300, Howie J (with whom Spigelman CJ and Wood CJ at CL agreed) said at [21] that the factors in the list set out in Whyte as indicative of a typical case do not operate as a checklist with the presence or absence of characteristics having some mathematical relationship with the sentence to be imposed. They merely describe the typical case and were not intended to circumscribe the sentencing judge's discretion. 35It is not an error to take into account other circumstances of aggravation different from the circumstances supporting the charge. The offence of dangerous driving causing grievous bodily harm under section 52A (3) has three variations: (1) driving under the influence, (2) driving at a speed dangerous, and (3) driving in a manner dangerous, and each variation carries the same penalty. 36The De Simoni principle can have no application in a case where the so-called matters of aggravation are merely variations of the same offence and do not render the offender to a greater penalty: R v Douglas (1998) 29 MVR 316.

Moral culpability and abandonment of responsibility. 37The guideline indicates that an assessment of the offender's moral culpability is relevant to determining whether a custodial sentence should be imposed, as well as to determining the appropriate length of the sentence: R v Whyte at [ 214 ] and [ 229 ]. It is the "central inquiry with regard to the objective circumstances of the particular offence": R v Errington (2005) 157 A Crim R 553 at [ 26 ]. Although a full-time custodial sentence may be inevitable where it is determined that the offender has abandoned responsibility, it does not follow that where the offender has not abandoned responsibility that a full-time custodial sentence can be avoided: R v Dutton [2005] NSWCCA 248 at [ 29 ]. 38The expressions "abandonment of responsibility", "low level of culpability" and "the offender's moral culpability is high", employed in the guideline judgment, are useful but necessarily flexible and "it was not intended that they become terms of art in this branch of sentencing law": Markham v R [2007] NSWCCA 295 per Hidden J at [ 25 ]. According to Rosenthal v R [2008] NSWCCA 149 at [16], abandonment of responsibility: "... is directed to the objective gravity of the offence. It is concerned, where relevant, with the extent to which the driver was affected by alcohol or a drug and, generally, with the course of driving and the danger posed by it in its attendant circumstances". 39As Howie J said in Gonzalez v R [2006] NSWCCA 4 at [ 13 ]: "There is a high degree of moral culpability displayed where there is present to a material degree one or more of the aggravating factors numbered (iii) to (ix) set out in Whyte . However, there may be other factors that reflect on the degree of moral culpability involved in a particular case and the factors identified in Whyte can vary in intensity: R v Tzanis (2005) 44 MVR 160 at [25]. The list of factors is illustrative only and not definitive: Errington (supra) at [36]." 40I appreciate that the question of whether an Offender has abandoned responsibility for their conduct, " ... involves an element of judgment on which sentencing judges could reasonably differ": see Whyte (supra) at [220]. But the facts when taken together make it difficult, in my view, to argue against a finding that the threshold of abandoning responsibility has been reached by the Offender - given the speed at which the vehicle was driven in the conditions (albeit within the applicable limit) for the prevailing foggy conditions; the observed erratic driving leading up to the collision; the acknowledgement of sleep deprivation and the need to hurry home to get to bed; the further acknowledgement of sleep deprivation in pulling over for a short rest period; the length of the journey undertaken; the consequent placing at risk of other users of the roadway (including those not only there but those who could reasonably be expected to be there); the presence of alcohol in his blood; and, of course, the actual grievous bodily harm caused to the victim. It is certainly not the worst of cases but I would place it on the middle range of the scale of offending, 41This was not a case of momentary inattention of misjudgement. The Offender's conduct on this night was both wicked and reprehensible. It is a miracle people (including himself) were not killed. It occurs to me that Ben Corkhill is thankful on a daily basis that he was dropped off at home before the collision. He is the only fortunate one in all of this. 42The Offender gave evidence in the sentencing proceedings. It was not something he was in any way obliged to do. I formed a favourable impression of him. I do not propose to rehearse his evidence in any detail. I accept his candid admission that he knew he should not have been driving on this night. I accept his expressions of remorse and contrition, particularly insofar as his conduct impacted upon the condition of Mr Banks. He has apologised to Mr Banks and the parents and I accept he was and is genuine in this regard. I appreciate the effect of any disqualification of licence upon his job prospects. He says he has learnt a salutary lesson out of all this. 43Mr Thorley of Counsel presented a detailed outline of his submissions and proceeded to address them. He referred to the authority of R v Townsend [2010] NSWCCA 336 - a Crown appeal relating to a charge of dangerous driving causing death. He urged upon the Court not to impose a full-time custodial penalty and took me to the alternatives. He submitted the Court must take into account the youth and good character of the Offender. I have read the character testimonials tendered on the Offender's behalf and all speak well of him. That is a proper submission to make, and, of course, I will do so. However, the common law is that, while generally speaking, deterrence is given less weight in cases involving young offenders and there is a greater emphasis on rehabilitation, this is often not the case for dangerous driving offences. 44The usual rule that general deterrence applies with less force to the sentencing of young offenders does not apply to dangerous driving offences because there is a prevalence of these offences among young drivers, and the Courts have a duty to seek to deter this behaviour: see R v Smith (1997) 95 A Crim R 373. The courts have acknowledged that it is a difficult thing to send a young person of good character to gaol, but where appropriate, it must be done as a deterrent to others: R v Slattery (1996) 90 A Crim R 519 at 523. As Howie J noted in TG v R [2010] NSWCCA 28, if a young male is old enough to be licensed to drive a motor vehicle, he is to be assumed to be mature enough to comply with its conditions and the traffic rules. 45I was also asked to take into account an aspect of extra-curial suffering. The Offender has been shunned by several former acquaintances who blame him for the parlous state of the victim's condition post-collision. The authorities recognise that this has its place in the sentencing equation. In R v Dutton (supra) it was noted that the impact of the crime upon the Offender's mental health where the victim has not died may also be a matter in mitigation on the same basis as if a physical injury had been suffered: In that case it was also relevant that the victim was the Offender's friend and the Offender had given assistance and support following the accident. Mr Thorley asks the Court to take into account the broken sleep patterns still being suffered by the Offender and his emotional state manifesting itself into bouts of physical sickness 46Mr Thorley also submitted that the Offender's moral culpability was relatively low and that any punishment should reflect the lower range of punishment available. From what I have earlier said, it should be apparent that I do not share Mr Thorley's view. 47The Court expresses its appreciation to Mr Thorley for his comprehensive submissions. He said all that could possibly be said for the Offender. I would not want it thought, given the comparative brevity of my summary of his submissions, that I have not given them full weight.

Penalties 48I turn now, and perhaps not before time, to the penalties the Court is to impose. The applicable sentencing principles are found in sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999: see R v MA (2004) 145 A Crim R 434; R v King (2004) 150 A Crim R 409 per McColl JA . I am also required to consider the mandatory requirements of section 21A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied, having considered all possible alternatives that no penalty other than imprisonment is appropriate. In arriving at that conclusion I have regard to the nature of the offences committed, the objective seriousness of the criminality involved, the need for general and specific deterrence and the subjective circumstances of the offender. 49Taken together, along with a proper consideration of decisions of binding authority, I am of the view that this is not an appropriate case for sentences designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. It follows from what I have just said that it is not appropriate for the sentences to be suspended: R v Zamagias [2002] NSWCCA 17; Blundell v R [2008] NSWCCA 92 per Simpson J. 50I allow the full discount of 25% for the utilitarian value of the pleas in accordance with the principles in R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Borkowski [2009] NSWCCA 102 . See also section 22(1), Crimes (Sentencing Procedure) Act 1999. 51For the charge of Dangerous Driving causing Grievous Bodily Harm the Offender is convicted and sentenced to an original term of 2 years. After applying a discount of 25% the term of the actual sentence is 1 year and 6 months with a non-parole period of 6 months commencing on 18 August 2011 and expiring on 17 February 2012. There is a balance of 1 year commencing on 18 February 2012 and expiring on 17 February 2013. 52I find "special circumstances". The finding of special circumstances is a discretionary finding of fact (see R v El-Hayek (2004) 144 A Crim R 90 at [103]) and, even if special circumstances are found, the court is not obliged to vary the statutory ratio. The non-parole period must reflect the criminality involved in the offence, including its objective gravity and the need for general deterrence: see R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at 718. I will allow special circumstances principally on the basis of the Offender's age, this is his first time in custody and the need for extended supervision on release. 53Pursuant to section 50 of the Crimes (Sentencing Procedure) Act 1999, I recommend the release of the Offender to parole, if otherwise appropriate, at the end of the non-parole period. Pursuant to section 51, I direct as a condition of parole that the Offender be subject to supervision by the Probation and Parole Service for such period as that Service deems necessary and undertake any program or treatment recommended by the Service. Any failure to comply with this direction may be regarded as a breach of parole. 54As a separate order, the Offender is disqualified from holding any drivers or riders licence for a period of 18 months to date from 18 August 2011. The Offender must surrender his current drivers and/or riders licence immediately if it is in his present possession: see section 189, Road Transport (General) Act 2005 . If the Offender fails to surrender his licence to the Court or surrender it to the Roads and Traffic Authority as soon as possible after being convicted, he may be liable to prosecution and a potential maximum penalty of a fine of $2,200. 55For the charge of Special Range PCA, the Offender is convicted and fined $500 plus $81 court costs. As a separate order the Offender is disqualified from holding any drivers or riders licence for a period of 6 months to date from 18 August 2011. 56I am fully aware that I have just sentenced a 19 year old with no prior criminal history to a period of imprisonment for an act of criminally dangerous driving. I take the unusual step of recommending to the Department of Corrective Services that the Offender be classified as soon as possible after his reception into custody so as to permit him to serve his sentence at the Manus Correctional Centre, Tumbarumba, or a similar institution if at all possible. I direct the Registrar of the Local Court to endorse the Warrant of Commitment accordingly. I further direct that a copy of these Remarks on Sentence be attached to the Warrant of Commitment for the information of the Department of Corrective Services. Magistrate P.S. Dare SC Young Local Court 18 August 2011 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: 29 August 2011