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.