R v DURHAM

Legislation Cited: Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999

Cases Cited: Aitken v R [2014] NSWCCA 201
Foaiaulima v R [2020] NSWCCA 270
R v Boney [2008] NSWCCA 313
R v Musumeci unrep NSWCCA 30 October 1997
R v Whyte (2002) 134 A Crim R 53

Category: Sentence

Parties: Rex
Benjamin DURHAM

Representation: Counsel:
Mr P Kerr for the Crown
Mr B Hart for the Offender
Solicitors:
Office of the Director of Public Prosecutions
Hosking & Gosling Legal

File Number(s): 2023/236281

Publication restriction: No

SENTENCE

1. The offender appears for sentence in respect of one charge contrary to s 52A(4) of the Crimes Act, 1900, namely that he:

On 23 July 2023 at Memagong in the State of New South Wales, drove a motor vehicle namely a white Toyota Land Cruiser with registration EWJ-14V which was involved in an impact occasioning grievous bodily harm to Darren McManus and at the time of the impact he was driving the vehicle under the influence of intoxicating liquor and in circumstances of aggravation namely that the prescribed concentration of alcohol was present his blood.

2. The matter proceeded to trial by judge alone. However, there was only one matter in dispute namely that whether the blood alcohol level of the offender at the time of the driving was .150 or above. For reasons given on 1 July 2025 that issue was resolved contrary to the accused.

3. As the matter went to trial there can be no consideration or discount for a plea of guilty. However, given the very efficient and economical manner in which the trial was conducted I am firmly of the opinion that a discount of 20% should be allowed pursuant to s 22A of the Crimes (Sentencing Procedure) Act, 1999. I indicated that that was my preliminary view at the sentence hearing and I did not understand either party to disagree or offer any dissent. Accordingly, I will allow that discount of 20%.

4. The maximum penalty for an offence contrary to s 54A(4) of the Crimes Act is 11 years imprisonment. Parliament has not specified a standard non-parole period in respect of that offence.

FACTS

5. As set out above, there was only one matter in dispute at the trial and accordingly, the facts are easily ascertained. The matter relates to a single vehicle motor vehicle impact that occurred at about 9.25pm on 23 July 2023 at Memagong, which is near the town of Young in southern New South Wales. The vehicle being driven by the offender impacted with a tree on Milly Milly Lane, Burrangong, near Young. The accused had obviously been drinking a considerable quantity of alcohol. Darren McManus was a passenger in the Land Cruiser vehicle being driven by the offender. The vehicle impacted with a tree and as a result of the impact Mr McManus received spinal injuries which I will deal with shortly. What follows is essentially drawn from the agreed facts at the trial.

6. The offender was 32 years old at the time of the impact and he held a valid New South Wales Drivers Licence issued to him on 11 October 2018. Police arrived at the scene at 9.41pm. The offender failed the roadside breath test. The offender told police that he commenced drinking alcohol at about 2pm on 23 July 2023, he had his last drink at 7pm at which time he ate a baked dinner. He could not tell police how many drinks he had consumed. He was arrested and taken to the Young police station.

7. While at the Young police station the offender said he had consumed 5 to 10 drinks of various sizes of port and beer. New South Wales police requested an ambulance to treat the offender in custody at 10.07pm. He was diagnosed and treated for hypoglycaemia at 11:51pm and was transported to the hospital. A blood sample was taken at 12:38pm on 24 July 2023. The offender’s driver’s licence was suspended.

8. In an addendum to my reasons for the finding of guilt at the trial, I indicated a preliminary view that I would sentence on the basis that the blood alcohol reading of the offender at the time of the impact was .164. However, at the sentence hearing the matter proceeded on the basis of relying on the findings of the Crown’s expert Mr Benjamin Ryan, the reading was no less than .174. In my reasons for judgment in the trial I set out:

“Mr Jones concludes that a BAC of 0.174 g/100 ml or above the time of the collision the accused would have been under the influence of alcohol to the extent that is driving ability would have been very substantially impaired.”

9. At the trial the agreed facts were that the victim sustained grievous bodily harm and I was not otherwise informed of the nature of the injuries. At the sentence hearing an expert’s certificate prepared by Dr Rachel McQueen became exhibit B. Dr McQueen is a rehabilitation physician. Relevantly the report sets out at pp. 2-3:

“Darren examines as a C3 ASIA D spinal cord injury. Darren is independently mobile indoors, uses a single crutch outdoors at times, independent with his activities of daily living and denies falls. Darren can prepare a simple meal and hot drink independently. Darren has a predominantly right hemiparesis with associated left hand and left foot paraesthesia. On examination Daryl has impaired right shoulder range with 45° abduction, adduction and 30° of flexion with associated anterior displacement of his shoulder. He can flex his elbow to 90° (2/5 Power). He has spasticity in his right biceps, flexor digitorum superficialis, flexor digitorum profundus, flexor carpi radialis, flexor carpi ulnaris (Modified Ashworth scale (MAS) 2/4) and right quadriceps muscle (MAS 2/4). Darren has reduced right lower power with right hip flexion power 3/5, right hip extension power 4/5 and five beats of ankle clonus.

Pain: Darren reports significant right neck, shoulder and hip pain which he described as 3 – 6/10.

Summary of injuries: Darren was a passenger in a motor vehicle accident whilst fox shooting (23 July 2023) and suffered a C 4/5 unilateral right facet fracture with dislocation. He underwent a C4/C5 ACDF (Dr Jonathan Ball, neurosurgeon Royal North Shore) and was transferred to Prince of Wales Hospital for ongoing rehabilitation. His concurrent injuries included a right C4 vertebral artery occlusion/dissection, bilateral frontal hygromas, initially traumatic brain injury with the initial PTA of 10 days and the subsequent fall from a wheelchair (18 October 2023, requiring ICU admission, PTA of five days). Darren was an inpatient at Prince of Wales spinal unit from 2 August 2023 until 1 December 2023. Darren continues to receive regular weekly outpatient physiotherapy.

10. At paragraph 8 of her Certificate Dr McQueen sets out that “From my experience I am able to say that in terms of prognosis for the future, Darren will continue to have small improvements with his right upper and lower limb function over the next 6 to 12 months. Darren will have lifelong impairments from his accident”.

Assessment

11. In the Guideline judgment of R v Whyte (2002) 134 A Crim R 53 Spigelman CJ (Mason P agreeing with some additional comments, Barr & Bell JJ (as her Honour then was) agreeing and McClellan J (as his Honour then was) agreeing with some additional comments at [216]-[217] set out a list of aggravating factors that had been established by the authorities, namely:

"(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 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.

[217] Further consideration of the authorities would cause me to amend this list by changing (v) to read "erratic or aggressive driving" and adding:

(x) Degree of sleep deprivation.

(xi) Failing to stop.”

12. The injuries sustained by Mr McManus are very serious orthopaedic injuries, some of which are permanent and are of life changing nature. The blood alcohol reading was high, and proceeding on the basis that the reading was no less than .174 that is somewhat but not significantly above the .15 required for the aggravated form of the offence. The driving occurred on an isolated rural road at night. While the fact that the offender and Mr McManus were going hunting is of no consequence so far as the sentence is concerned, I merely observe that given the offender’s level of intoxication the night had every possibility of ending in a disaster of some kind or another. The offender’s blood alcohol concentration was such that his driving ability would have been very substantially impaired.

13. The nature and extent of the injuries have been set out in some detail. Essentially, given the circumstances, it was really only Mr McManus and the offender who were put at risk. The level of intoxication has been dealt with. There is no suggestion of excessive speed, erratic driving, competitive driving or showing off. The length of the journey was limited. There is no suggestion of ignoring of warnings or a police pursuit. Likewise, there is no suggestion of sleep deprivation or failing to stop. Essentially the most serious aspect of this case is the offender’s very considerable level of intoxication, noting the reading and the fact that he had been drinking alcohol for several hours.

14. The driving took place with the accused having his driving ability very substantially impaired at night in an isolated rural location. In all of the circumstances I am of the opinion that the matter is within the mid-range for offences contrary to s 52A(4) of the Crimes Act.

15. On the issue of moral culpability there is a continuum from momentary inattention to serious abandonment of responsibility. The Crown argues that the accused did abandon responsibility. Mr Hart for the offender argued that while the moral culpability was high it was not to the point where the accused had abandoned responsibility.

16. I have set out the various facts and circumstances. The offender’s driving ability was very substantially impaired. He knew he had been drinking alcohol consistently for several hours. The driving was at night, meaning that visibility was restricted. Ultimately, I am persuaded that the offender in this case did abandon responsibility. However, noting what I have said about a continuum the offender is only marginally over the threshold for that finding.

Criminal History

17. The offender was born on 17 July 1991 and accordingly he was 32 at the time of the impact and 34 at the time of sentence. He has no matters recorded against him on his criminal history. The traffic history is limited to matters that were dealt with by way of infringement notice. He has not come under notice for any traffic offence since 2011.

18. Essentially, the offender is to be treated as a person of prior good character. However, the superior courts have observed a number of times that is often serious driving matters that bring people of otherwise good character before the courts.

Subjective Case

19. The offender gave evidence. I observe that the offender was a very impressive witness. The evidence commenced by him offering an apology to the victim. That apology was fulsome and to my observation is completely sincere. The offender said that he was ashamed of his actions and he accepted the nature of life changing injuries occasioned to Mr McManus.

20. The offender has been in custody since the day of the verdict in respect for trial namely 1 July 2025. It is uncontroversial that the offender suffers from type I diabetes. His evidence was, which I accept, that while in custody he has had no control over his medication for his diabetes. He has been in maximum security since being in custody. He has experienced a number of “lockdowns” while in custody. On occasions he has missed his medication because of the lockdown situation. He was able to purchase supplementary food in the “buy ups” but shortly before the sentence hearing three other inmates came into his cell and took his food from the cell.

21. At the sentence hearing the offender was asked by his counsel, “Now you’ve indicated you’ve previously apologised to Darren. Is there anything you want to say to him in court today?” The offender answered, “I’m sorry mate. It shouldn’t have happened. Sorry, Sandy. Sorry, Gary. Sorry, everyone.”

22. In addition to the offender’s evidence Exhibit 2 is a letter of apology from the offender. Some of that repeats the oral apology made in the course of the oral evidence. The offender accepted that because of his actions many people have been hurt and affected. The offender says he is of ashamed of his actions and he feels a sense of dread and guilt knowing he cannot change the outcome of his actions that night and he accepts that he has affected the life of his friend for life.

23. As I observed at the sentence hearing there is simply no doubt that the offender is entitled to a finding that he is remorseful. Indeed rarely have I heard such a complete and fulsome apology from an offender. The finding of remorse is to be given full weight.

24. There are a considerable number of character references contained within Exhibit 1 on sentence. One of those is from the offender’s mother who is a retired police officer. The offender gave evidence that his mother has told him that he is “an idiot, if you ever do it again I’m disowning you.” Another reference is from a Darren Bear who was one of the first responders to the impact. He was his mother’s sergeant at Young. The offender has spoken to Mr Bear and he let the offender know that the accident was “a pretty hard thing to see and go through and everything”.

25. Noting the offender’s age, lack of record and particularly the offence for which he is in custody I find it remarkable that the offender was kept in maximum security. At the conclusion of the sentence hearing Mr Hart for the offender made a successful release application pending the outcome of the sentence proceedings. I took the view that a combination of factors, including but not limited to the offender’s diabetes, was such that exceptional circumstances were made out. Nevertheless, I made it very plain that whilst granting bail the offender was not to take that any indication of what the ultimate outcome of the sentence proceedings might be. I made it plain at the sentence hearing that it was unlikely in the extreme that, given the circumstances of the offending, the sentence would be one that could be served by way of intensive correction order.

26. The evidence of the offender continued that prior to him going into custody he worked at the Riverina Stock Feeds. Further, the evidence was that he expected that he would be able to resume that employment upon release. He has been able to commute to his workplace by either getting lifts with mates or riding a bicycle the five or 6 km to his work. He works a rotating shift. He had a supervisory role at the workplace.

27. Further, the offender gave evidence that he became aware that he had an issue with alcohol and decided to see a counsellor relating to his alcohol abuse. The defence tender bundle, Exhibit 1 on sentence, contains a significant number of pathology reports, only two of which have been positive to alcohol. The first urinalysis was conducted on 25 August 2023 and the last on 22 November 2024 during which time there were no positive results. From 29 November 2024 to 6 June 2025 there were two positive results one 17 January 2025 and one 7 February 2025.

28. Without deprecating the significant number of character references or the content of those references, the fact that the offender has been able to marshal references from such a significant number of people speaks well of the offender. I note that the offender had a significant number of family and friends supporting him at both the trial and the sentence hearing. This augurs well for his long-term rehabilitation. In this regard I also note that the offender has successfully completed the traffic offender’s program and a certificate is within Exhibit 1 on sentence.

29. In particular I note the reference from Mr Nick Hall, the branch manager of Riverina Stock Feeds. The reference speaks very well of the offender’s abilities and work ethic. The offender has progressed well and had a supervisory role within the organisation. The offender has employment available to him on his release.

30. The references speak of the offender’s remorse, his work ethic and community involvement. The references also speak very well of the offender’s positive personal qualities including his significant care for other people.

31. The offender self-referred to Pathways for assistance with his issues relating to alcohol. A letter from Pathways is within Exhibit 1 and indicates that the offender has received counselling and that Pathways will continue to assist and support the offender.

32. In all the circumstances noting his age, lack of record, and efforts he has undertaken so far as alcohol is concerned, employment prospects and family support, I have no hesitation in finding that the offender is unlikely to reoffend and that he has good prospects of rehabilitation.

33. Within Exhibit 1 on sentence is a Sentence Assessment Report. The report sets out that the offender was able to articulate feelings of regret and remorse. He acknowledged that he had consumed a large quantity of alcohol on the day of the impact and further acknowledged that his consumption of that quantity of liquor impeded his judgment and decision making. The offender was assessed at a low risk of re-offending. He is suitable to undertake community service. However, that report also makes clear that if the court orders supervision as part of a non-full time custodial sentence the supervision will be restricted to monitoring and a requirement that he advise of any change of address or circumstances.

34. The offender’s diabetes is a significant part of the subjective case. Exhibit 1 contains a considerable volume of material from Justice Health, a good deal of which is bordering on the illegible. I repeat an observation I made at the sentence hearing that counsel should refrain from handing up volumes of raw medical notes and the like. A summary of the relevant documents has been prepared.

35. However, contained within Exhibit 1 on sentence is a letter dated 11 July 2025 from the solicitors for the offender to the Governor of the Junee Correctional Centre. That letter noted a number of factors including that the offender had no access to insulin for the first one and a half days following his arrival at the centre; he has experienced five hypoglycaemic episodes to the date of the letter; that he is only being tested once per day for blood glucose levels with no ability to self assess; that he is currently housed in maximum security where insulin is administered in the view of other inmates; there are no nursing staff available to administer the testing and insulin after 3pm except in cases of emergency; and the food he is receiving does not adequately support stable blood glucose levels. The solicitors acting for the accused requested a number of measures be implemented to deal with these issues.

36. The letter of response from the Correctional Centre indicated that privacy would be offered to the offender when receiving insulin injections; for the times when Justice Health staff are unavailable to provide medical care and emergency medical care is required correctional staff will contact New South Wales ambulance as required; that the times meals are delivered to inmates are determined by operational routine; Justice Health staff can adjust the offender’s medication based on blood sugar levels, and he was provided with an inmate tablet on 12 July 2025 and able to purchase items from the grocery buy-ups by tablet to ensure that he has sufficient food in his cell to self-manage diabetes.

37. In respect of that last matter, in response I note that the offender gave unchallenged evidence at the sentence hearing the three other inmates on an occasion shortly before the sentence hearing came into the cell and stole the food that was in his cell.

38. As a result of what I raise with counsel at the sentence hearing relating to the Justice Health records, counsel has helpfully provided a summary. I am grateful to counsel for providing this document. In part that reads:

Durham is diagnosed with type I diabetes Mellitus (T1DM) which requires regular assessment of blood glucose levels medication to be administered numerous times daily.

During his period of incarceration, Durham’s T1 DM was managed by the Justice Health and mental health network. Significant concerns have been raised regarding the failure to appropriately manage Durham’s T1 DM during his period of incarceration.

The following data outlines the management of Durham’s T1 DM between 1 July 2025 and 26 September, as contained within a 26 page administration record report tendered as document 20 in tender bundle Exhibit 1. A total of 546 insulin injections were administered to Durham over 88 days between 1 July 2025 and 26 September at an average of 6.2 per day. On a further three days Durham was also administered glucose tablets.

Of note on three recorded occasions medication was withheld from Durham due to inmate lock-in or Corrective Services New South Wales being unable to facilitate administration. On a further three occasions assessment and administration of medication was not conducted due to Durham being absent from the cell and not attending the Justice Health and mental health network location for unknown reasons.

Extensive administration errors, consisting of record of incorrect dosage, incorrect inmate or time/date of medical intervention are present. Additionally, significant inconsistencies exist in the recording of doses administered to Durham, with the amount of medication administered not regularly recorded.

Medications:

a) Insulin Aspart 100 units per/ml injections – 466 injections

b) Insulin Glargine 300 units per/ml injections – 80 injections

c) Glucose 50g tablets – 12 tablets.

39. When the offender went into custody on 1 July 2025, I directed that the warrant be endorsed that the offender was Type I diabetic. Whilst I understand that there are significant pressures on the management and staff of correctional centres and that part of those pressures include many inmates diverse medical and other needs, it would seem that the treatment the offender has received in custody for his type I diabetes has been less than completely ideal. Be that as it may, I also understand that given the pressures to which I have referred, probably no treatment in a correctional centre can never be completely ideal.

40. Clearly the offender will find custody more onerous because of his Type I diabetes.

Submissions

41. At the outset of oral submissions, I indicated that I was prepared to make positive findings in favour of the offender that he was remorseful, that he had good prospects of rehabilitation and that he was unlikely to reoffend. I also indicated that I was prepared to allow a discount of 20% as consideration for the factors set out within s 22A of the Crimes (Sentencing Procedure) Act. I also indicated a preliminary view that I would find that custody was more onerous for the offender given his diabetes. Unsurprisingly, Mr Hart took no issue with those preliminary views.

42. Mr Hart then addressed on the guideline judgement in Whyte v R and put that it was only the level of intoxication that was present as an aggravating feature in this matter. Further counsel put that the reading was under .2 and submitted that although the offender’s moral culpability was high there was no abandonment of responsibility. I have already dealt with this issue earlier in these reasons.

43. In the course of oral submissions Mr Hart referred to the decision of Foaiaulima v R [2020] NSWCCA 270, which was a case dealing with an aggravated robbery offence contrary to s 97 of the Crimes Act. However, I note that Johnson J in that decision observed at [24] that:

“It is now 21 years since R v Henry was decided at 18 years since the decision in R v Whyte. Self-evidently, there have been substantial developments in statutory and common law principles concerning sentencing in New South Wales in that period.”

44. However, in that decision Johnson J went on to say at [29]

“As Bell P (Davies & N Adams J agreeing) observed in Moodie v R [2020] NSWCCA 160 at [24] ‘guideline judgments have statutory force and oblige sentencing judges to take them into account”.

45. I note that the maximum penalty for the matter presently under consideration is 11 years imprisonment, whereas the maximum penalty that applied to the offence of Dangerous Driving Occasioning Grievous Bodily Harm with which the Guideline Judgement in Whyte was concerned is 7 years imprisonment.

46. Mr Hart put in oral and written submissions that although it is conceded on behalf of the offender that the threshold within s 5 of the Crimes (Sentencing Procedure) Act is crossed, in all the circumstances of this case the sentence without “mathematical wrangling” could be 2 years or less and served by way of Intensive Correction Order.

47. The Crown Prosecutor submitted that only a penalty of full-time imprisonment would be appropriate given the offending in this matter. The Crown argued that the offender abandoned responsibility. I have made that finding. I have dealt in some detail with the seriousness of the matter.

48. Further, the Crown submits that there is an issue of general deterrence to be addressed in matters such as the present and refers to the decision of R v Musumeci unrep NSWCCA 30 October 1997 where Hunt CJ at CL (McInerney & Hulme JJ agreeing) said:

“The judge referred to the relevant cases, and he expressed agreement with the principles that, in sentencing for this type of case, general deterrence is of prime importance and the youth of the offender is given less weight as a subjective matter than in other types of cases, and that periodic detention has a strong element of leniency built into it (although he made no reference to its present equivalence to a community service order). Unfortunately, the judge then proceeded largely to disregard those principles by placing an inordinate amount of emphasis upon what he accepted were the respondent's outstanding prospects of rehabilitation in this case.”

49. Hunt CJ at CL went on to say:

“The need for public deterrence will usually outweigh the fact that the particular offender has already learned his or her lesson. Also, retribution remains an important purpose which the sentence must serve. The denunciation flowing from the sentence which was imposed here does not serve that purpose.”

50. Although the decision in Musumeci is now approaching being 30 years old, I am not aware of any decision that has been given that is to the contrary. Although the offender in the matter presently under consideration is not a young offender the general principle relating to the need for general deterrence still applies. I note that RA Hulme J referred to the decision in Aitken v R [2014] NSWCCA 201.

General Remarks

51. In passing sentence I will need to give regard to and given proper effect to s 3A and s 5(1) of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, and (g) to recognise the harm done to the victim of the crime and the community.

52. Section 5(1) of the Sentencing Act provides:

A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

53. In the present matter it is accepted by counsel for the offender that the threshold within s 5(1) of the Act is crossed. Rather, counsel submits that the sentence ought be 2 years or less and served by way of Intensive Correction Order. Ultimately, I have determined that the total sentence is such that the sentence simply cannot be served by way of Intensive Correction Order. Be that as it may there should be a particularly generous finding of special circumstances. Because of his diabetes the offender will find custody more onerous. He will need an extended period of supervision to ensure that he maintains the good work he has commenced for treatment and counselling relating to alcohol abuse. The offender is man in his mid thirties and this is his first time in custody.

54. Further, I express my considerable concern that the offender given his age, lack of record and the nature of the offence was placed into maximum security. I propose to make a recommendation that the offender be classified as quickly as possible and that he serve the non-parole period in a minimum security correctional centre such as Mannus at Tumbarumba.

55. I have determined that the appropriate starting point for the sentence in this matter is 3 years 4 months, or 40 months, from which is deducted the 20% pursuant to s 22A of the Crimes (Sentencing Procedure) Act for facilitating the course of justice. The total sentence is therefore 2 years 8 months, or 32 months.

56. The offender went into custody on 1 July 2025 following the verdict of guilty in the judge alone trial. Bail was granted at the conclusion of the sentence hearing. Accordingly, allowance will need to be made for the 101 days the offender spent in custody. The 101 days equates to 14 weeks and 3 days. The commencement date of the sentence and the non-parole period is therefore 5 August 2025.

Orders and Recommendations:

57. In respect of the offence that the offender

On 23 July 2023 at Memagong in the State of New South Wales, drove a motor vehicle namely a white Toyota Land Cruiser with registration EWJ-14V which was involved in an impact occasioning grievous bodily harm to Darren McManus and at the time of the impact he was driving the vehicle under the influence of intoxicating liquor and in circumstances of aggravation namely that the prescribed concentration of alcohol was present his blood,

the offender is convicted.

58. Consequent upon that conviction the offender is sentenced to a non-parole period of 16 months to commence on 5 August 2025 and which will expire on 4 December 2026. Thereafter there will be a balance of term on parole of 16 months which will date from 5 December 2026 and which will expire on 4 April 2028.

59. The offender is to be released to statutory parole at the expiration of the non-parole period. I recommend in the strongest of terms that the parole be supervised.

60. The sentence indicates a very substantial finding of special circumstances. The non-parole period is 50% of the total sentence. The reasons for the finding of special circumstances are set out earlier in these reasons. I have come to the decision on the ratio between the non-parole period and total sentence being aware of the observations of RS Hulme J in R v Boney [2008] NSWCCA 313 at [48], namely:

“Altering the ratio between the non-parole and balance of term periods of a sentence from that of 3:1 embodied in s44 of the Crimes (Sentencing Procedure) Act as much as to result in a ratio of 50:50 is sufficiently unusual as to inspire examination.”

61. I DIRECT THAT the relevant warrant be endorsed to the effect that the offender is Type 1 diabetic and that he should receive all necessary and appropriate treatment for that condition while he is in custody.

62. I RECOMMEND IN THE STRONGEST OF TERMS that on being taken into custody the offender be classified as soon as possible AND FURTHER THAT the offender serve the sentence in a minimum security correctional centre such as the Mannus Correctional Centre at Tumburumba.

63. The offender is disqualified from driving for the statutory period, however, s 206B of the Road Transport Act, 2013 applies and any suspension should be taken into account.

64. The matters on s166 certificate are dealt with as follows:

(a) Sequence 2, Not Give Particulars to Police, is dealt with pursuant to s10A of the Crimes (Sentencing Procedure) Act 1999; the Offender is convicted but there is no further penalty imposed. (b) Sequence 3, Drive with High Range PCA and Sequence 4, Negligent driving (Occasioning Actual Bodily Harm) are withdrawn and dismissed.

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