The offender is the second of four children who grew up on a dairy farm near the Paterson area. Whilst completing his schooling, he worked on his father's farms until a severe drought forced him to seek work elsewhere. He worked as a plant operator including operating heavy machinery. He joined the police force in 1969 and remained there for 31 years rising to the position of an inspector. After retiring from that position, he turned a hobby of motor cycle touring into a business before selling that business and proceeding to make silicon ear plugs for shooters and swimmers. [58]
The offender was married in 1969 and had two adult children the eldest of which Mr Troy Grant gave evidence in the proceedings. Mr Troy Grant himself was a former police officer and has also served as a former NSW Police Minister. The offender also had one other child who was deceased shortly after birth. In March 2008, the offender's relationship ended and 18 months later the offender was divorced. Sometime later he entered another relationship and lived together on his partner's 100 acre property at Paterson. The offender stated that he worked on the property attending to cattle and crops. He also worked driving his partner's trucks as part of her trucking business. The business and property were eventually sold and each decided to go separate ways although they remain good friends. [59]
Eventually the offender left Paterson and moved to Rutherford living alone. [60]
[2]
Assistance
Both parties accepted that the offender despite pleading not guilty rendered significant assistance that saved the Court time in the trial.
That agreement allowed the Crown brief to be tendered, a limited number of witnesses called all of whom were all expert witnesses. Further the Court was advised that a single issue to be determined was that of whether the driving was voluntary. It was acknowledged that that the co-operation saved significant resources compared to if the matter was fully contested.
The Defence argued that there is a thin margin if there was to be one made between the utilitarian value on the guideline offender and what reduction in penalty there is to be afforded pursuant to s 22A of the 1999 Act.
I accept that on sentence the offender is entitled to have his assistance taken fully into account pursuant to s 22A of the 1999 Act by the imposition of a lesser penalty than the Court would otherwise impose.
[3]
Prior Record and Good Character
The offender has provided references from Ken Bradshaw and Garry Alan Clements who are both previous Presidents of the Rotary Club of Paterson. The references both speak highly of the offender's involvement in the Club active in fundraising, community work and a youth service. The offender himself was inducted in 2011 and elected President in 2016. The references describe him as a valued and active member helping those in need. The offender himself described valuable activities he was involved in the Rotary Club at Paterson, earlier during 1972-74 where he was a member of the Apex Club at Moree and from late 1974 to 1980 when he was stationed at Kootingal. [61]
It is accepted that the Accused was of prior good character and this is a matter that should be taken into account.
In matters of this kind, good character generally carries less weight. As was stated in R v McIntyre (1988) 38 A Crim R 135 at 139, the Courts need to be wary in showing leniency for good character to avoid giving the impression that such persons may by their irresponsible actions take the lives of others and yet received a lenient sentence. Even so, it cannot be overlooked that the offender has lived now into his 70s, highly regarded in the community with an otherwise unblemished record. I take that both his prior good character and lack of antecedents into account as a mitigating factors pursuant to s 21A(3)(e) and (f) of the 1999 Act.
[4]
Remorse
According to the Sentence Assessment Report (SAR), the offender maintained that he had little recollection of the offences and had no intention to drive having pre-arranged accommodation for the night.
It is further reported that he appears to have accepted sole culpability for his offending and has voiced shame and regret for his offending behaviour and demonstrated insight into the negative consequences as such. The SAR records that he has communicated sound insight into the serious and negative impact of his behaviour. He verbalised his intention to apologise to the victim's family however he had been advised against this by his solicitor.
Expressions of remorse have been conveyed to Mr Bradshaw and Mr Clements. Mr Troy Grant in evidence before this Court stated that following the offender's arrest:
He was extraordinarily solemn. He expressed self‑loathing. He offered to trade his life if he could, for the life that he took. He was confused and didn't understand or reconcile what had happened but at no time tried to avoid accountability, just he was trying to understand how it happened after such a long history of staying and camping at that premises for that function. He's, with the lack of memory he's, he's frustrated that he couldn't remember and obviously he was visibly withdrawn and just we had to watch him, like give constant observation of him just to keep check of his welfare.
Mr Troy Grant stated in the time that followed:
without doubt, he wanted to take responsibility, wanted the matter dealt with but under medical advice, given his lack of memory, he was advised to try and understand ..(not transcribable).. pursue that and from where he said to us he tried to, wanted to understand obviously for himself but also for the Greenfields as to why he drove. The Court has found in the judgment why and he and I and the family accept that. We're all devastated. He expressed strongly his desire for a judge only trial, for all the evidence to be handed up so people didn't have to give evidence, particularly Mrs Greenfield go through that difficult trauma, turmoil and additional ordeal to what they've already had to go through, and wanted it over. He wrote a letter to my sister and myself, a goodbye letter where he took full responsibility for it despite not having any memory and gave us instructions for his wishes in that letter. So his remorse has been consistent, self-loathing constantly and part of our management of him over this period of time, two years of which he's not in control of that timeframe, it's a case of we've just tried to keep him active. He's considered suicide (as said) and has been admitted to professional care during that time. So obviously family has stepped up to provide as much supervision and support as humanly possible for the matter to be resolved and for him to account for what he's done which is happening now.
Mr Troy Grant was not cross-examined on this evidence.
The offender himself has in a letter to the Court stated:
Although I have no memory of the accident, words cannot express the sorrow and sadness I feel for Tony's family because of my actions. He was a wonderful man, husband, and father. Taking a man's life has left me with the deepest regret and guilt that will live with me forever as I am totally responsible for what has happened. During my career I have dealt with much death and tragedy including fatal accidents and understand the deep trauma they cause. Knowing I'm responsible for such grief causes me ongoing self-loathing and thoughts of self-harm for which I sought admittance to a mental health facility to help me manage these thoughts. [62]
Whilst the offender did not give evidence before me, I watched him carefully whilst the VIS were read. In doing that, his head was bowed and appeared truly reflective and saddened by the loss he has brought about.
Dr Olav Neilssen in his report of 22 January 2022 reports that the offender expressed his shame and guilt which led him to become severely depressed. He documents that the offender's depression led him to seriously contemplate suicide and in fact made an unsuccessful suicide attempt. [63] There is a report from Maitland Hospital dated 29 April 2021 which indicates that the offender was admitted as an involuntary patient and found to have suicidal ideation, at high risk for completion of suicide with a clear plan. [64] The clinical notes records that he was having a worsening mood due to chronic health concerns and worries about becoming a burden on his children. Such notes are needless to say abbreviated.
Mr Frank de Mortel (psychologist) in his report dated 7 February 2022 recorded that the offender approached the matter with sombre and reflective affect. He stated that the offender regrets the loss of human life and is deeply sorry about the events of that evening. [65]
Despite some initial hesitation in written submission, the Crown ultimately accepted that the offender is genuinely remorseful. [66]
In all the circumstances, I am satisfied that remorse pursuant to s 21A(3)(i) of the 1999 Act has been established. Beyond that there is what might be described as an aspect of self-punishment.
Of course, remorse and self-punishment do not balance high moral culpability. [67]
[5]
Health
The offender is aged 72.
According to the report of Dr Olav Nielssen, the offender suffers from sleep apnoea, arthritis, gout, blood pressure and symptoms of enlarged prostate. He also had a retinal condition that needs regular treatment from an ophthalmologist. Dr Nielssen recorded a history of operations for dupuytren's contracture and shoulder operations as well as treatment in hospital for several falls.
According to the SAR, the offender was conscious of his diminishing mental health in the early 1970's however believed he would be terminated from his employment should he have spoken up. The report records that he was diagnosed with severe PTSD in 2000 resulting in an inpatient admission and ongoing treatment. There was however no contact with mental health specialists between the consultation with the psychiatrist and the offences in 2019. He is currently prescribed medications that include anti-depressants. He has been engaged with a psychologist for approximately 12 months and the treatment is to continue for at least 18 further months.
Mr Troy Grant gave evidence that the offender's difficulties with PTSD started very early on in his career as a police officer when he (Mr Troy Grant) was living at home with him. He stated that whilst his father was stationed at Moree he came across a lot of fatalities on the road. He also lost a daughter at birth who he had to bury. He assisted the government medical officer perform autopsies and this was the same mortuary that his daughter was in.
Mr Troy Grant recalled that when he was aged 7, the offender detected four escapees from Emu Plains prison who were in custody for murder and other violent offences and they jumped him and he was kidnapped and tortured and suffered significant physical and mental health issues at the time. Mr Troy Grant described that as a consequence the offender had a broken back, they chewed his ear and played Russian roulette with him and threatened to kill him at various stages through the ordeal which led and culminated in a high speed chase and an incident near Armidale. He stated that the Offender's knees and back have been a problem affecting his ability to care for himself.
Mr Troy Grant described that the offender was receiving psychological therapy from a local practice following his admission to the Maitland Hospital and he has found this helpful. He does however get into periods of being alone which the family seeks to minimise as much as possible.
Apart from his physical and mental ailments Mr Troy Grant gave evidence of the offender obtaining regular injections into his eyes at Newcastle Eye Hospital to dilute floaters in his eyes and to maintain his eyesight.
So far as cognitive functioning is concerned, Mr Troy Grant described this as fluctuating. He stated that he could focus and appear cognitively functioning but he also drifts into absentmindedness, bewilderment and repeats himself.
Mr Troy Grant described the offender's hygiene and health required monitoring as his mobility has significantly deteriorated in the last two years.
Nonetheless, in cross examination, Mr Troy Grant conceded the offender had in the main returned to living by himself. He stated that he assists the offender with his bank accounts and checks in and his two sisters assist him with other functions in particular transport and day to day living requirements. [68] He described the offender as "in part" living independently by himself in Maitland. [69]
[6]
Alcohol Use
The offender informed Dr Neilssen that he started drinking alcohol as a teenager and reported some episode of intoxication in early adult life but not after turning thirty. He stated that he mainly drank at home and usually would fall asleep in the recliner after several drinks. He stated that he did not think he had a problem as he did not drink during the day although he acknowledged that sometimes he would drink too much.
Mr Troy Grant told Dr Neilssen that he had been concerned about his father's alcohol use as he observed a tendency to "guzzle" rather that sip red wine and that when his father stayed with him he was drinking surreptitiously, and also that he seemed to have a low tolerance to the effects of alcohol.
In evidence, Mr Troy Grant stated that the offender started to drink a lot more heavily, when he was seven to a point where he became problematic for his family. He described that the family became very dysfunctional because of the offender's drinking. He stated that his father wasn't someone that drank necessarily regularly but when he drank he guzzled the drink and drank fast and became intoxicated easily and the alcohol brought out bravado and an arrogance in him which didn't help on the home front. Ultimately, this led to the divorce in the offender's first relationship. A few years later, the offender entered a new relationship living on his partner's farm and travelling extensively. Whilst the offender was described as better engaged he was said to get solemn and revert back to PTSD and depression that he'd suffered for decades. Ultimately, the second relationship came to an end in 2015 in circumstances earlier described.
Mr Troy Grant stated that following his separation, the Offender started living by himself and there was a deterioration in his health. At that stage, the offender became isolated and he felt that his mental state and drinking became problematic. He was described as returning to his behaviour from the past. Beyond that his personal hygiene and welfare deteriorated. He became more and more absent minded and his flexibility and mobility deteriorated due to his old injuries.
The offender's own letter to the Court broadly supported Mr Troy Grant's evidence.
The offender also stated that he has not had a drink since and never will. [70]
The report from Frank Van de Mortel (psychologist) noted a history that the Offender had reported of alcohol consumption originating during his time with the police force. It noted that the offender reported abstinence from when this matter was before the court and that he has no evidence to contradict his reports. [71]
Mr Troy Grant also gave evidence that he did some spot checking unbeknown to the offender and there is no evidence that he could find that the offender has consumed alcohol since the accident.
Dr O'Neill gave evidence at trial that the offender improved considerably following a more recent neuropsychology report prepared by Dr Allanson which was attributed to an absence of alcohol and improved mood. [72]
Mr Troy Grant's evidence is also supported by the offender's own application to police to be classified as "hurt on duty" dated 26 April 2000. [73] On 29 June 2000, Dr Leonard Lambert described the offender as having a quite severe PTSD which he firmly believed was due to his police service. Symptoms included flashbacks, severe depression, insomnia, poor concentration, irritability and hyper-vigilance. [74] On 24 August 2000 Dr Lambert recommended medical retirement. [75] The diagnosis of PTSD and its cause was supported by Dr Doran Samuell who was qualified to review the offender on behalf of the NSW Police and reported on 18 October 2000.
Dr Pek Ang (Consultant Psychiatrist) reported on the offender on 4 November 2020 stating the offender had been admitted to St John of God Hospital where he was an inpatient in the PTSD programme for veterans and police officers. He recorded that the offender worked intensively with psychologists, incorporating exposure therapy. He was put on Lovan and Epilium and following discharge remained on the same medication for 18 years with no specialist follow up. He noted that although partially stable the offender continued to self-medicate with alcohol. Dr Ang diagnosed chronic PTSD and alcohol abuse in early remission.
The Defence submission more from the perspective of moral culpability than objective seriousness was that it was to be borne in mind that this was not a case of a young offender abusing alcohol but rather a man with life experience that damaged him which led him to drinking and the morality of drinking is interrelated with the decision that he made to drive in this quite abhorrent set of circumstances. [76] To that extent, the case was said to be differentiated from the typical offender in Whyte. [77]
The Crown submitted that the offender's problematic drinking preceded his police service. It drew attention to the period of time that had elapsed during which the offender could have had his PTSD addressed other than through self-medication with alcohol as well as the need for the Court to consider s 21A (5AA) of the 1999 Act.
It is beyond doubt that the offender suffers from long standing depression and PTSD. He appears to have had little by way of specialist treatment following his discharge from St John of God Hospital until seeing Dr Pak. Whilst using medication he also self-medicated with alcohol.
Dr Nielssen describes that that the offender's need for future treatment as requiring long term treatment with medication and counselling. He states that the trajectory of his brain impairment depends to some extent on ongoing abstinence from alcohol and his overall physical health which is reflected in the health of his brain in particular his brain vasculature. [78]
The intoxicating effects of alcohol cannot be taken into account as a matter of mitigation on sentence (section 21A (5AA) of the 1999 Act). However, I adopt the statements of Button J in Moiler v R [2021] NSWCCA 73 (Basten JA and Davies agreeing) where in a case involving the ingestion of prohibited drugs His Honour stated at [61]:
In similar vein, whilst it is true that abuse of prohibited drugs played a role in the commission of the offence, and that abuse of such substances is not a mitigating feature on sentence except in unusual circumstances, care needs to be taken not to permit that statutory prohibition to lead to insufficient weight being given to a closely related mental illness, especially when that illness and the abuse of prohibited drugs are so tightly bound up with each other.
It follows that whilst I would not view the circumstances of resort to alcohol as reducing moral culpability it is appropriate that regard be had to the offender's PTSD and depression amongst his other health ailments along with his significant service to the community with the police. Moreover, there is a correlation between alcohol use and these conditions which arise from the offender's stresses of life generally. These include not only police service, but also loneliness particularly following the breakdown of his second relationship.
Overall, the evidence supports that the offender is generally in poor physical and mental health.
[7]
Impact of Incarceration
Mr Troy Grant gave evidence that the offender's likely incarceration would do nothing in regard to maintaining the offender's health. He stated that he thought he could deteriorate significantly. He understood Justice Health's capability and capacity which he stated gives him some fear and reservations as he did not consider they could provide the help that he needs for his complex nature and ailments and medical conditions.
Dr Nielssen records that the effect of incarceration would be to exacerbate the Offender's chronic depressive illness especially given his former occupation and community standing. He noted that the offender would also find the experience of imprisonment to be more onerous than most other prisoners because of the restrictions associated with serving a sentence in strict protective custody which is usually the fate of high profile prisoners with a background in the criminal justice system. Dr Nielssen acknowledged that medication for depression and other conditions the offender has are available in prison. However, expert review particularly by specialists such as ophthalmologists and, regular psychological support are not as readily available as in the community.
Whilst age and health are not a licence for offending they are both factors making any incarceration more onerous: cf R v Holyoak (1995) 82 A Crim R 502 at 507 and R v Mclean (2001) 121 A Crim R 484 at [44]. In sentencing, it is necessary to ensure a balance between the criminality of the conduct and the any damage to health or shortening of life: cf R v Sopher (1993) 70 A Crim R 570 at 573.
Ultimately, the Crown conceded and I accept by reason of the offender's age, health, previous occupation as a police officer and his family relationship are factors making any incarceration more onerous. [79]
[8]
COVID-19
The evidence in relation to COVID-19 in custody is that all new inmates are quarantined for a 10 day period with one other person. If they develop cold or flu like symptoms they are immediately isolated, assessed and tested if needed. I accept that the circumstances are such that the present COVID-19 pandemic is making incarceration more onerous generally particularly in terms of visitation and need for physical distancing. How long this situation will last cannot be known. Once COVID-19 has entered the correctional system, early parole may be available pursuant to section 276 of the Crimes (Administration of Sentences) Act 1999 (NSW).
I accept that in this offender's case the need to manage the risk of avoiding COVID-19 will mean any imprisonment will become more burdensome and I bear this in mind as well.
[9]
Likelihood of Reoffending and Prospects of Rehabilitation
The offender has the support of his children and sisters who I accept are all prosocial. He has ceased driving and voiced a willingness to address the factors relating to his offending being to remain abstinent from alcohol and comply with his mental health regime.
The offender has also advised his willingness to undertake the Sober Driving Program and expressed a willingness to attend multiple programmes to "teach others" about his mistakes.
The SAR reports the offender as being at Tier-2 and low risk of re-offending.
Mr Troy Grant also stated that without alcohol and vehicles and greater awareness from the family of the offender's cognitive status he did not believe he would re-offend. [80]
I accept that this is so and further find that the offender has excellent prospects of rehabilitation and a low risk of re-offending.
[10]
SENTENCE
In considering the purposes of sentencing [81] for Count 1, regard is to be had to the comments of Wilson J in R v Manok: [82]
78. In sentencing for offences of dangerous driving occasioning death or grievous bodily harm, the need for strong denunciation and general deterrence has always been recognised as very important. Indeed, the primacy of general deterrence is such that, ordinarily, it outweighs the remorse or rehabilitation of an offender: R v Paul Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep) per Hunt CJ at CL.
79. That is because of the prevalence of the activity of driving, and the terrible consequences that can flow from a failure by a driver in the management of a motor vehicle. Almost every adult in our community drives; any driver can commit an offence of dangerous driving, manifesting in death or severe injury. It is important that all drivers be deterred from driving dangerously by the sentences imposed on those who transgress.
In R v Whyte [83] Spigelman CJ referred to a frequently recurring case for an offence under s 52A of the 1900 Act having the following characteristics:
1. young offender
2. of good character with no or limited prior convictions
3. death or permanent injury to a single person
4. the victim is a stranger
5. no or limited injury to the driver or the driver's intimates
6. genuine remorse
7. plea of guilty of limited utilitarian value.
In this case, the offender was not a young offender and there was no plea of guilty. Youth is ordinarily a matter of mitigation. The fact that the offender is not young however is not an adverse distinction to be made particularly in circumstances where the offender has had good character and an unblemished criminal record over such a lengthy period. Whilst the laws as to driving would have been well known to him they were up until this moment always respected. Whilst there was no guilty plea there was a notable level of assistance that needs to be acknowledged. I accept that in the context of assessment of the seriousness of Count 1 there was death to a single person who was not well known to the offender, where the offender was also not injured. Yet even so, I am satisfied that the death of the deceased has had a significant impact on the offender. Remorse as I have indicated has been demonstrated.
I have earlier referred to the aggravating factors and my finding is that the offending conduct in Count 1 involved high moral culpability.
In R v Whyte [84] Spigelman CJ stated:
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.
His Honour added:
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. [85]
In sentencing the offender on all counts, I am mindful of the statutory guideposts of maximum penalties and the guideline judgment in R v Whyte. As was emphasised in R v Whyte itself however the guideline was "a check" or "sounding board" or "guide" but not a rule or presumption. [86]
The sentence needs to provide for denunciation and general deterrence whilst acknowledging the offender's cognitive impairment. The offender needs to be made accountable and adequately punished. I accept that the offender has been specifically deterred to a large extent and the evidence is such that he is at a low risk of re-offending and has excellent prospects of rehabilitation. No submission was advanced that the community has a need to be protected from the offender and in light of the Crown's acceptance as to the risk of reoffending. I am satisfied that such a need does not arise.
I acknowledge the enormous sense of grievance that each of the victims have no doubt endured. This is understandable. However this cannot be allowed to interfere with the proper exercise of the sentencing discretion any more than expressions of sympathy in the offender's favour. [87] The sentence that the offender receives cannot restore what the deceased's family and the community have lost. Having said that, the harm in Count 1 needs to be recognised in the sentence. I also bear in mind the substantial harm to Mrs Nerida Greenfield who witnessed the event resulting in "substantial harm" within the terms of s 21A(2)(g) of the 1999 Act (as earlier referred to).
I have reviewed a number of cases that were submitted involving intoxication.
R v Minna [2013] NSWDC 104 was a case involving one charge of dangerous driving causing death. It involved a car driven by an offender described as a young tourist from Italy with 4 other passengers. The deceased was sitting in the back and was the only one with no seatbelt. Each of the persons in the car had attended licensed premises in Mildura where alcohol was consumed. Thereafter they were to travel a distance of 80km to in Robinvale. At a location about one kilometre from Euston the driver lost control of his vehicle swerving to avoid a collision with a kangaroo, became airborne and the deceased was ejected and landed on the freeway suffering fatal injuries. The offender pleaded guilty. Testing revealed at the time a reading of 0.137g/100ml of blood. The identified aggravating factors were the number of people put at risk, the degree of intoxication and the length of the journey during which other were exposed to risk. An abandonment of responsibility was found. There was a powerful subjective case that included a plea of guilty. The deceased was known to the offender and there was a significant degree of extra curial punishment found. After allowing for a plea discount of 25% the offender was sentenced to 9 months imprisonment with a balance of term of one year and 6 months.
R v Casey [2015] NSWCCA 142 involved the offender and deceased drinking at the hotel and a club with his friend the victim. After leaving the club at 8.30pm they were driven to the offender's house by his fiancée. They subsequently decided to travel by motor cycle to West Wallsend a distance of about 10km to share drinks with a mutual friend. The bike was not roadworthy and the offender was not licensed to drive it. Neither wore a helmet and the bike had no headlight. The deceased travelled as a pillion passenger on a rainy night. Not far from where the journey commenced the offender collided with a parked car causing both to be ejected. The deceased was unable to be revived and the offender suffered a fracture to the left side of his pelvis along with minor abrasions. A blood sample taken from him revealed a reading of 0.124g per 100 ml of blood. The offender fell within the parameters of a "typical case" described in Whyte and the aggravating feature was intoxication. There was a strong subjective case and a plea of guilty.
The sentencing judge found very high moral culpability and an abandonment of responsibility. The offender was sentenced to an overall sentence of 3 years and 6 months with a non-parole period of 2 years and 7 months. The Court of Criminal Appeal dismissed the appeal.
In R v Raymond [2019] NSWDC 579 the offender was charged with one count under s 52A(1)(c) and one under s 52AB(1) of the 1900 Act. There was also a related offence for low range PCA. The case involved an offender who attended a party where she consumed alcoholic beverages. At some point she left the party only to return at 11.10pm driving with two passengers. As the offender travelled along the highway she collided with a pedestrian who was walking with his brother along the roadway. The pedestrian succumbed from what were described as horrific injuries. The offender drove a further 300 meters down the road before stopping at the driveway of the premises that she was travelling to tell the partygoers that she had hit someone. The breath analysis revealed a reading of .057 g per 210 litres of breath. The dangerous driving causing death charge was found to be at the top of the low range and the failing to stop charge was found in the low range. The subjective case was again strong. Allowing a plea discount of 25% the offender was sentenced to two years imprisonment to be served by way of intensive correction in the community. In respect of the failing to stop and low range PCA he was sentenced in each case to a community corrections order of 3 years.
Each of the case has to be considered on their own facts. R v Raymond involved a lower objective seriousness than is to be found in the instant case. R v Mina involved only one aggravating factor and no other evidence of aberrant driving prior to the kangaroo collision. All the cases involved persons known to the offender and pleas of guilty.
The sentencing statistics for the offence the subject of Count 1 compiled by the NSW Judicial Commission show between 24 September 2018 and 31 March 2021 sentences comprise imprisonment 63.2%, intensive corrections order 32.9% and community corrections orders 3.9%. Terms of imprisonment for the same period range from 2 years to 6 years including 31.3% receiving 30 months, 29.3% receiving 30 months and 12.5% receiving 42 months. As the Crown pointed out during submissions the range of sentences is reflective of the wide range of circumstances in which the offence can be committed. [88]
I have previously assessed the objective seriousness of Counts 2 and 3. In sentencing on Count 2 however I note the comments of Basten JA in Hoskins v R [2020] NSWCA 18:
[15] In determining an appropriate sentence for the offence of failing to stop, care must be taken to ensure that the sentence is not of the same order as the sentence which would have been imposed for causing the death, despite the identical maximum penalties. A maximum penalty is only one indicator of the seriousness with which the legislature views particular offending; too heavy a focus on that factor, without reference to broader considerations of equal treatment according to a scale of departures from moral responsibility, is apt to lead to anomalous results.
In this case, both parties accepted that considering all other alternatives no penalty other than imprisonment is appropriate. In setting the term, I propose to proceed by way of aggregate sentence [89]
The indicative terms of imprisonment I propose are:
1. Count 1: 3 years and 3 months
2. Count 2: 11 months
3. Count 3: 5 months.
As acknowledged there is some overlap in the features of offending in the three counts. It is important not to "double count the punishment." The three offences are plainly interlinked as part of one continuous period of offending.
Failure to stop in Count 2 can aggravate the offence in Count 1. With respect to Count 3 conduct in the immediate aftermath can reflect the seriousness of the offending in Count 1 if directly related to the offending. The Defence in this context accepted that the Offender's driving from the time he was aware of the police pursuit is relevant (peripherally) to an assessment of the seriousness of an offence in Count 1 as earlier described.
Accepting this to be the case, a degree of concurrency and accumulation is called for in the context of an overall proportionate sentence which acknowledges the criminality involved.
I would therefore impose an aggregate sentence of 3 years and 10 months imprisonment. The length of this sentence is such that it is not open for it to be served by way of intensive correction in the community. [90]
The Crown accepted that the case was one where there was a basis for finding special circumstances. This will be the Offender's first custodial sentence. By reason of that fact, the fact that imprisonment will weigh more heavily upon him for the reasons indicated (previous occupation as a police officer, family relationship, his age and health), excellent prospects of rehabilitation and low likelihood of reoffending, I am satisfied that it is an appropriate case for me to find special circumstances and to vary the statutory ratio. [91]
The offender should be credited with 1 day in custody, such that the sentence should commence on 3 March 2021. [92]
[11]
ORDERS
The offender is convicted.
The offender is sentenced to an aggregate term of imprisonment of 3 years and 10 months comprising:
1. a non-parole period of 1 year and 11 months from 3 March 2022 to 2 February 2024; and thereafter
2. an additional term of 1 year and 11 months from 3 February 2024 to 2 January 2026 during which he shall be eligible to be released to parole.
The offender's earliest release date will be 2 February 2024.
In relation to the matter on the s166 certificate, I enter a conviction and impose no penalty pursuant to s 10A of the 1999 Act.
I recommend that Justice Health carry out a full assessment of the offender's health needs in custody and recommend to the Commissioner for Corrective Service that placement be at a facility where those health needs are able to be provided for.
In respect of Counts 1, 2 and the Section 166 matter in each case the offender is disqualified from driving for the statutory period of 3 years pursuant to s 205(2)(d) of the 2013 Act , after accounting for the period of his suspension following his arrest.
[12]
Endnotes
R v Grant [2021] NSWDC 643 (footnoted hereafter as "J').
J at [15].
Continuous positive airway pressure.
J at [22]-[23].
J at [21].
J at [21]-[24].
J at [26].
J at [26]-[29].
J at [26].
J at [27].
J at [50].
J at [30].
J at [30].
J at [32] and [51].
J at [32].
J at [32].
J at [33].
J at [34].
J at [34].
J at [35].
J at [37].
J at [38].
J at [43].
J at [46].
Exhibit A on sentence.
Exhibit 1 on sentence.
Exhibit A
Crown Written submissions at [55] and Defence written submissions at [41]-[42].
Whyte at [216]-[217].
Crown written submissions at [30(c)] and Defence written submissions at [29].
Defence written submissions at [15] and T 17.17 (sentence).
SBF v R [2009] NSWCCA 231 at [128]-[129].
Crown written submissions at [30(e)]. See Exhibit D, tab 17.
J at [46].
J at [128]-[129] and Defence written submissions at [14].
J at [130].
Defence written submissions at [32].
Defence written submissions at [18].
Crown written submissions at [30(f)].
Defence written submissions at [20] and T 18.35-.41 (sentence).
Exhibit 3 at p15 (trial).
T17.46-.50 (sentence).
T 112.8-31 (trial).
T 153.36-154.12 (trial).
Exhibit E (1) at [25] (trial)
T 77.33-.35 9 (trial)
T 80.38-.54 (trial)
Defence written submissions at [13].
defence written submissions at [29].
See [148]-[149].
J at [50]. See also exhibit D at tab 29 photos 19-26 and 32-34 (trial).
J at [35] and [55].
J at [30].
Exhibit D tab 20 Statement of LSC Sally-Anne Piccles dated 14 January 2021 at [26] and Exhibit D, tab 29 photos 60-70 (trial).
Exhibit E(1) at [21-[25] (trial).
Exhibit D at tab 24 Q & A 79-84 (trial).
Exhibit D at tab 24 at Q79 (trial).
Exhibit 1 (8) at p57.
Exhibit 1 (10) at p71.
Exhibit 1 (10) at p72.
Exhibit 1(10) at p69 (sentence).
Exhibit 1 p72 (sentence).
Exhibit 1 p64 (sentence).
Exhibit 1 p50 (sentence).
Exhibit 1, p74 (sentence).
T 33.16-.18 (sentence).
R v Koosmen [2004] NSWCCA 359 at [32].
T 12.41-.46 (sentence).
T14.49-15-.9 (sentence).
Exhibit 1, p72.
Exhibit 1, p74.
J at [108].
Exhibit 1(1) (sentence).
Exhibit 1(2) (sentence).
Exhibit 1(4) (sentence).
T23.42-24.5 (sentence).
T 24.17-.18 (sentence).
Exhibit 1(8) (sentence).
T 41.11-42.15 (sentence).
T10.40-.47 (sentence).
1999 Act, s 3A.
[2017] NSWCCA 232.
(2002) 55 NSWLR 252 at [204].
(2002) 55.NSWLR 252 at [214].
at [229].
at [113].
R v Palu (2002) 134 A Crim R 174 at [37].
T 30.44-.48 (sentence).
1999 Act s 53A.
1999 Act s 69(2).
1999 Act s 44.
1999 Act s 24.
[13]
Amendments
07 March 2022 - coversheet - corrected representation and dates of orders and decision.
10 March 2022 - Typographical errors
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Decision last updated: 10 March 2022
Mrs Nerida Greenfield the wife of the deceased has provided the Court with a VIS.
She describes the deceased as a scientist who specialised in blood transfusion which he had been working in the field for over 40 years. They both worked as scientists throughout their lives together. Ms Greenfield stated that they were both looking forward to the time they could spend more time doing things together that they enjoyed.
Mrs Greenfield describes that her children were shattered firstly because their father was killed and secondly because she was so close to suffering the same fate. The shock was described as staying with them for months and they were unable to work. Both experienced depression and anxiety and are still receiving ongoing assistance from a psychologist. The children were described as having a close relationship with their father which continued into adulthood. Mrs Greenfield also states that she and the deceased became grandparents 12 months before the events in question. However, the grandchild will only know their grandfather through photos and stories.
Ms Greenfield stated that she and the deceased were DIY (do it yourself) buddies and over the years worked on many projects together. When the deceased was killed, they were in the middle of building a new home which they planned for their retirement and they made many other plans for gardening and DIY projects which they will not be able to join in fulfilling.
The sight of the deceased as being killed in front of her led Ms Greenfield to shock for months and she felt that her brain could not process what she had seen. Mrs Greenfield could see the injuries that the deceased had and was with him after he was declared. After 34 years of marriage she remembers feeling part of her body missing. She describes being diagnosed with Post Traumatic Stress Disorder (PTSD) and receiving psychological support. For months afterwards she could not sleep and when she did she was constantly waking up having panic attacks. The sight of the deceased's body, the smell of the grass beside the road and the sound and the feel of it all came back to her every day. Mrs Greenfield states that she does not think she will ever enjoy a simple walk again and is apprehensive when cars are coming from behind or the front.
Mrs Greenfield also talked about the process of the trial emphasising that her husband did not know the offender.
Mrs Greenfield described the death as having taken so much from so many and all she has is a video clip of the last seconds of her husband's life which will be etched in her brain for the rest of her life. She cannot believe what has occurred and states that she looks behind her and he's gone and the car just flies away and drives around the corner.
The medical assessor of the Personal Injury Commission describes the history of Mrs Greenfield in the following terms:
Ms Greenfield said that she was reliving the accident repeatedly. She said it was "like a video" where she re-experienced the "wind tunnel air rush" and seeing "Tony flying through the air," and the car driving off. She experienced nightmares most nights and often work (sic) up with panic attacks during the night. She was tired and had difficulty sleeping. She said that she was in a state of shock for four months and cannot recall much of what she did during that time. Her mood was low and she experienced excessive guilt. She felt like she could not go out anymore. She described feeling exhausted, as though her batteries were depleted. She became more socially withdrawn and lost interest in various activities. She complained of a "mental fog," and difficulty concentrating. She said that she felt like she was getting Alzheimer's disease. Her appetite was reduced, and she lost four kilograms of weight. She had difficulty experiencing pleasure and lost interest in completing the renovation on their house which was half built when Tony died. She became anxious, avoidant, and hypervigilant about walking alongside roads as a pedestrian because she feared being hit by vehicle. She said that she felt terrified and would sometimes jump over fences or over safety barriers to get away from the road. She preferred to drive her dog to the park, so she did not look along the road to get there. She became overly cautious whilst driving and experienced flashbacks whilst driving. She did not any suicidal thoughts (sic).
Ms Greenfield saw her GP and was referred to a psychologist, Melanie Foster, in December 2019. She initially saw her fortnightly and now sees her monthly. She continued to take the antidepressant, fluoxetine 15 milligrams, at the same dose as prior to the accident. She did not see a psychiatrist.
Her anxiety was exacerbated by the crash investigation which involved giving statements to the police and visiting the scene of the accident with investigators.
Degree of Intoxication
Secondly, even though the charge is under s 52A(1)(c) of the 1900 Act, it was accepted as being open to have regard to the fact that the offender was affected by alcohol. [31] In this respect, I am mindful of the principles in the R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 and the need to ensure that relevant findings do not cross the line into findings which take into account circumstances of aggravation in s 52A(2) of the 1900 Act or which would have warranted a conviction for another more serious offence. [32]
The Crown submitted that it was an aggravating factor that the offender was well affected by alcohol as demonstrated in the body worn video recorded by SC Nicholas Backhouse at the police station. [33]
The Crown relied on the offender's blood alcohol concentration (BAC) taken at Maitland Hospital at 1.33 am which was 0.194g/100 ml. [34] Dr Perl opined that on this reading if the offender's last drink was at 11pm, and had substantial food then his BAC at the time of the collision would have been not less than 0.155g/100ml. If the last drink would have been just prior to the collision then the BAC would have been not less than 0.139 g/100 ml.
The Defence drew attention to the result based on the breath analysis conducted at 12.53am where Dr Perl assessed concentration at the time of the collision to be not less than 0.087g/210L if drinking ceased just prior to the collision and highly unlikely for the BAC to be less than 0.108g/100ml. [35]
Dr Perl stated that on either form of analysis the BAC would have been in the absorption phase and the peak BAC being after the collision and the impairment of driving skills would have been greater. [36]
At the trial, the blood analysis was described as the "gold standard" as breath analysis only reflects the blood concentration and the blood/breath ratio in any individual is unknown and the ratio used in Australia is favourable to the subject.
It is however unnecessary to resolve the differences between the two forms of analysis.
The Defence accepted that the description of the offender's driving and the immediate aftermath of the collision suggests that, at the time of the collision, the offender was affected by alcohol and his control of the vehicle was impaired. The Defence however argued that the level of intoxication was not such as to significantly aggravate the offending (beyond s 52A(1)(a) or(c) of the 1900 Act) and the moral culpability was less than the typical offender envisaged by the guideline judgment in Whyte. [37] However, as the Defence elsewhere in submissions conceded, the offender was significantly affected by alcohol when he decided to drive [38] and I accept that this was so.
Failure to Stop
The offender did not stop at the scene being a matter relevant to the assessment of the moral culpability at the time of impact. cf Shumack v R [2008] NSWCCA 311 at [32]-[33]. The details are discussed below in respect of Count 2.
Decision to Drive
The Crown argued that a significant aggravating factor was that when the offender started his journey he was well intoxicated, being a fact known to him and evidenced by what he said to DSC Bereza when stopped as referred to at [9]. The Crown submitted that this was a significant aggravating feature that discloses the offender made a conscious choice to drive when he was as he says "pissed." [39]
The Defence argued that the offender's decision to drive occurred in circumstances where he was significantly affected by alcohol and was probably clouded as a consequence of his mild cognitive impairment. Reliance was placed on the view of A/Professor Rosenfeld who it was said stated that it's probable that the decision to drive was without particular consideration and it was a muddled process of thinking, without serious consideration as to consequences, but not just because of the intoxicated state that he was in, but because he was also not functioning as he used to as a younger man. [40]
That confused thinking was described as consistent with the forgetful approach to a number of domestic tasks that had become more apparent in recent years to the Offender's family's observations. The Defence drew attention to Dr Jeanette Stewart (neuropsychologist) reporting that the offender has:
several vascular risk factors and his current profile would be consistent with vascular cognitive impairment, or Mild Neurocognitive Disorder (DSM-5), particularly with an emphasis on executive dysfunction with a competing or further influence being a degree of alcohol related brain impairment." [41]
It was submitted that the decision to drive was crystalized in the period shortly before 11pm when he got into his car. [42]
In this context, the Defence drew attention to what fell from Wood CJ at CL (with whom Bell and Studdert JJ agreed) in R v Dunlop [2001] NSWCCA 435 which favourably referenced Simpson J's remarks in R v Khatter [2000] NSWCCA 32 at [31].
In short, the Defence argued that the offender should be sentenced on the basis that during the evening in question that he was consuming alcohol, he did not anticipate driving and he likely intended staying the night. His ultimate decision to drive was materially impacted by his state of intoxication and in all likelihood by his cognitive impairment. Accordingly, the decision to drive was in these circumstances said not to be vested with the usual heinousness of a person who deliberately set out to consume alcohol knowing that they will drive and then doing so.
In my judgment at trial, I noted that the Defence did not submit that there was vascular brain disease. I otherwise discussed the evidence in relation to cognitive impairment at [105]-[109].
Count 2 Failing to Stop
The Crown submitted that the matter was objectively serious as:
1. The matter involved the death of a pedestrian;
2. the offender ought to have been aware of the impact and that is evidence by the damage to the offender's vehicle;
3. the offender was intoxicated;
4. the driving was erratic;
5. the offender left the scene and continued to drive in an erratic manner; and
6. no attempt to stop and render assistance.
The Crown submitted that the offender must have known that his vehicle was involved in a collision but not that he struck a pedestrian. In this respect, the Crown drew attention to the significant damage to the offender's vehicle and the offender's driving post the impact. It was argued that claiming to have no memory of the impact when speaking with police at the time of his arrest subsequently does not mean that he was not aware of the collision at the time. Lack of memory it said could be explained by alcohol consumption. The Crown accepted that to find actual knowledge that he knew the impact caused a death required proof beyond reasonable doubt. The Crown accepted that this could not be established although proof of a collision could.
The Defence accepted that the offender ought reasonably to have known that he had been involved in a collision and therefore should have stopped to provide assistance. It submitted that the evidence does not allow a conclusion that the offender knew that he had hit the deceased and he had been fatally injured. It accepted that the assessment of what the offender ought to have known relates to his sober self and his state of intoxication was such that he was probably not aware of the exact nature of the collision if he was aware of the collision at all.
The evidence from SC Joliffe is that there was no evidence of braking prior to the collision. The evidence of emergency braking was on the raised concrete median strip but not on the route following the collision. [51] In the bodycam recording and in his record of interview the offender stated that he did not know that he had a collision. [52] Ms Belsham's observation of the offender's vehicle was first made 100 to 200 metres past the Flat Road intersection. Following this, she described that the offender's vehicle overtook her travelling on the incorrect side. It was as the offender's vehicle came back on the correct side that Ms Belsham saw the front left panel damage and the blown front driver's side wheel. [53] In the circumstances, it is likely that the tyre blew not in the collision with the deceased but following the collision with the median strip.
However, the left side of the offender's vehicle is noted to have sustained damage to the bull bar headlights; panel and the bottom corner of the windscreen on the near side. [54]
Mrs Greenfield was also recorded as reporting that her symptoms persist but improved with treatment. She no longer experienced nightmares and her sleep has normalised. She still experiences flashbacks, is anxious and hypervigilant whilst walking near roads and driving. Her concentration remains impaired and she no longer reads books like she used to before the accident. Her energy levels are improving and she describes becoming more productive. She continues to try to avoid situations which remind her of the accident because of the fear of triggering flashbacks and anxiety. The report found that Ms Greenfield's symptoms meet the DSM-5 criteria for a diagnosis of PTSD. [27]
A report was prepared by Melanie Foerster (psychologist). It noted that Mrs Greenfield was presenting with symptoms of PTSD, such as recurrent, involuntary, and intrusive memories of the accident, recurring distressing dreams of the accident and marked psychological reactions when thinking or talking about the accident. It noted that Mrs Greenfield reported difficulty sleeping especially the first few months after the accident and feeling hypervigilant and anxious when walking on the side of streets. Overall, Mrs Greenfield was found not to meet the full criteria of PTSD but did meet the full criteria for an Adjustment Disorder with mixed anxiety and depressed mood.
Ms Foerster recorded that Mrs Greenfield experienced auditory and haptic flashbacks for the first six months after the accident. She could hear the noise of the offender's car driving off and she could feel the grass her husband was lying on. She could also experience recurring flashbacks of how the body felt in her arms after he had passed away. These were flashbacks that were described as disturbing but not overwhelming. Mrs Greenfield was recorded as describing her sleep at its worst shortly before her husband's memorial service waking up having panic attacks and difficulty calming down. She was prescribed Diazepam as anti-depressants. In the first few months, she could only tolerate a very few people around her such as her family and very close friends. Sleep remained a problem for almost a year after the accident and she described that her mood was quite unstable for months after the accident ranging from feeling deeply sad and depressed to irritability and anger. She felt very anxious and hypervigilant however her anxiety has decreased. Ms Foerster describes the treatment as focussing on equipping Mrs Greenfield with skills that she could use when she feels overwhelmed with anxiety and despair. The sessions provided Mrs Greenfield with an opportunity to talk about her loss to try and make sense of it and used sessions to start processing the traumatic incident and to help her with daily challenges such as dealing with the press or giving a statement to the police. Mr Foerster noted that more therapy would be required to help her process the trauma and grief.
Ms Bronwen Greenfield provided a statement describing her father as the first man that she ever loved and that he was her number one supporter. The victim described the impact that it had upon her stating:
What baffles me still is that despite being interviewed by police on multiple occasions after you hit my Dad, despite you being told the DNA was on your car, once you'd sobered up, you still could not admit to anyone what had happened because all you were thinking about was yourself. Did you know the next day, when I learnt of what happened, I immediately travelled up to Newcastle hospital to see my Dad? I was told no-one had handed themselves in. No-one knew who had hit him. I wasn't even able to see my Dad after he died because he was being held for forensic evidence. I waited days, and when I finally got to see my dad, I felt a type of pain that can only be described as unbearable. I saw my father dead, on a table, covered in sheets to hide the horrific injuries and bruising he had suffered from the impact. He had stitches all the way up his neck. They removed his brain for forensic studies. When I held his hand, he was so cold. That moment did not leave my head for a number of months. I could not stop comparing how cold and lifeless he was that day, to the last warm hug he gave me only a week earlier.
Ms Bronwen Greenfield states that she had countless hopes and dreams that involved her father including sharing her wedding day. Hopes and dreams also extended to others in her family and friends. Ms Bronwen Greenfield acknowledges that everybody makes mistakes and any decent human being would enable any others who have been impacted to move on by acknowledging the truth and admitting to any wrongdoing. However, in the time since the death of her father she felt that the offender dragged her family through the mud with the intention of only benefiting himself.
Regrettably the impacts that both victims describe are all too familiar to this Court in cases of this kind. No one however should be desensitised to them. Both statements are powerful accounts of the consequences that have befallen on the deceased's family. It remains important for all of us be reminded of them.
Both parties accepted relevant to Count 1 that the psychological impact of Ms Nerida Greenfield witnessing the event and the tragic loss of the deceased has resulted in "substantial harm" within the terms of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the 1999 Act) and can, as such, be taken into account on sentence. [28] cf R v Taula [2015] NSWCCA 8. I accept that this is so.
In his report, Dr Neilssen stated:
Mr Grant was unable to explain his decision to drive home from the party after making arrangements to stay the night and having no apparent reason to leave earlier than planned. The state of mind that led to the decision was presumably confused thinking arising from rapidly blood alcohol level on the background of mild impairment in cognitive function. Mr Grant has documented impairment in areas of executive function in both his performance of neurological and neurophysiological testing and the description of a decline in his social performance. That impairment is supported by the finding of the MRI scan showing atrophy of the frontal lobes of the brain and the SPECT scan showing reduced activity in relevant areas of the brain. Any underlying impairment in cognitive function including impairment in executive or problem solving and decision making ability would be exacerbated by the disinhibiting effect of alcohol.
At trial, after noting the neuropsychology results of Dr Stewart, Dr David Rosen accepted that proximate to the collision the offender had a range of mild cognitive impairments but did not think they met the threshold for formal diagnosis of mild cognitive impairment. In evidence however, Dr Rosen was of the view that alcohol exacerbated the cognitive difficulties that the offender had such that it was affecting him at the time of driving. [43]
Dr O'Neill found that the offender did have a degree of pre-existing cognitive impairment but also noted that the offender had improved considerably following a more recent neuropsychology report prepared by Dr Allanson which he attributed to an absence of alcohol and improved mood.
There is also evidence given at trial by A/Professor Tully Rosenfeld that additional factors such as alcohol superimposed on the underlying brain impairment can manifest itself in "confusion, dementia and all sorts of things." He described this as a susceptibility to an acute exacerbation of symptoms. [44]
It can be accepted that the decision to drive in fact crystallised proximate to when the offender commenced his journey. There was no evidence to indicate that at the point where the question of overnight sleeping arrangements was raised, the offender gave any indication that he was proposing to drive. To the contrary, he indicated that he was going to the toilet and then to his car to get his sleep machine.
The evidence as to cognitive impairment is at its highest "mild." It did not stop the offender living independently, driving, or as it turns out conversing on the night in question. Moreover, he attended the party in question knowing that he would be drinking, knowing that he should not drive as well as bringing with him items consistent with an intention of staying overnight. The fact that he did not do so was as I have found, the product of an evaluation. That was plainly flawed. The offender's answers on the bodycam interview recognise as much. In this context, his cognitive impairment whilst relevant by itself does little to explain what occurred when compared to the impact of his consumption of alcohol. Dr Perl in her report stated that alcohol intoxication can result in inattention and risk taking behaviour partly due to an increase in self-confidence and a false perception of ability. [45] In evidence, she described the alcohol impairment as "very substantial given the concentration." [46] When asked specifically about the impact of alcohol on the central nervous system of one with cognitive impairment she stated :
Well, obviously, the alcohol would produce impairment of its own, so if there's an underlying condition then you would expect that the alcohol is going to be a factor in further impairing that individual [47]
I accept that evidence in relation to moral culpability is not to be narrowly confined cf R v Shashati [2018] NSWCCA 167.
In Khatter (supra) the Court considered which amongst other features a case which involved two men drinking alcohol where it was not the usual practice of either man to do so. The victim was pouring the drinks at the offender's own home. The offender had at that time no intention of subsequently driving. The deceased later prevailed upon the offender to drive, notwithstanding his recognition of his intoxicated condition, and his protests to the victim. After stopping to enable the victim to make a call on a public telephone they intended to travel to visit a friend of the victim. During the drive, the victim became tearful. The offender reached out with his left hand to offer physical comfort, while attempting to maintain control of the vehicle with his right. It was during this interlude that he missed the bend and collided with the median strip before proceeding on a path that led to the victim's death. The offender drove at a speed twenty to thirty kilometres in excess of the speed limit, at a time when his blood alcohol concentration was between 0.09 and 0.105gms per 100ml.
He was sentenced at first instance to 2 years imprisonment by way of periodic detention. The Crown appeal was allowed and he was resentenced to 3 months imprisonment after taking into account time already served.
Simpson J proposed to dismiss the Crown appeal stating at [19]:
I do not accept the Crown's contention that the fact of the blood alcohol level means that this was a case in which the respondent had abandoned responsibility for his behaviour. These courts deal with human beings, with all their human weaknesses, and while the courts cannot condone any act of driving whilst there is present in the blood more than the prescribed concentration of alcohol, it is not necessary to characterise every instance of the offence as an abandonment of personal responsibility. Offences under s 52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability. This was the approach taken by the Chief Justice in R v Howland [1999] NSWCCA 10; 104 A Crim R 273. The circumstances in which the respondent came to be driving after consuming alcohol should not be overlooked. He did not anticipate driving when he was drinking, and he initially resisted the request to drive, recognising that he should not do so. These were very unusual circumstances and very relevant to a proper evaluation of his moral culpability.
Sully J (Carruthers AJ agreeing) in allowing the appeal referred to her Honour's observations stating:
6 I respectfully agree with these observations. I accept that it would not be fair to say of the present respondent that his particular moral culpability was to be assessed in terms of a simple and comprehensive abandonment of his relevant personal responsibility. I do think, however, that there is no escaping the simple fact that the respondent, on his own version of the relevant events, deliberately drove a motor vehicle on a public street when he realised that he was, by reason of the effects of alcohol previously ingested, in no fit state to do so. That entails, in my opinion, a real degree of moral culpability in the respondent.
In R v Dunlop (supra) the offender had consumed alcohol and was awake until approximately 3.00-3:30am. He was described as being `drunk but not blind drunk'. He had previously made arrangements for his motor vehicle to be left at the home of a friend which ensured that he would not be driving after he finished drinking. After sleeping for 5 to 6 hours he awoke and had a brief meal. Sometime prior to 9.20am he was driven to pick up his vehicle from his friend's home. After a short stay, he drove to work. In the course of doing so, there was a downhill gradient and a slight left curve and his vehicle drifted into the northbound lane and after both vehicles swerved in a bid to avoid each other a collision occurred. The driver of the other vehicle was injured and an 11 year old passenger was killed. The agreed facts recorded that it was probable that the offender fell asleep causing his vehicle to drift. At the time of the collision, it is estimated that the alcohol level would have been not less than 0.126g/100ml of blood. Abandonment of responsibility prior to the collision was expressly disavowed in the agreed facts.
The offender was sentenced on one count of dangerous driving causing death and one count of dangerous driving causing grievous bodily harm to sentences of 3 years imprisonment with 12 months non-parole to be served concurrently by periodic detention.
In allowing the Crown appeal, periodic detention was held not to be properly available however in the exercise of discretion only the non-parole period was increased to 2 years. Wood CJ at CL (Studdert and Bell JJ agreeing) acknowledged the observations of Simpson J in R v Khatter. His Honour nevertheless held at [36]:
While taking the wheel of his vehicle did not involve a deliberate and reckless decision to drive while intoxicated, and therefore did not amount to a conscious or irresponsible abandonment of responsibility, his moral culpability remained high in driving with a significant blood alcohol range. The fact that he had earlier taken steps not to drive while drinking did not materially detract from or qualify that circumstance. (emphasis added)
Whilst I acknowledge the force of R v Khatter, the facts in that case were dissimilar. Unlike the position in that case, in the instant case, there was no encouragement to either consume alcohol or pressure to drive. To the contrary, the offender was appraised shortly before his departure of arrangements for him to be accommodated on the property. Similarly to R v Dunlop, the fact that he had earlier taken steps to avoid driving whilst drinking did not materially detract from or qualify the circumstances of him driving with a significant blood alcohol range. Nonetheless, I accept that the matter is not to be equated with the circumstance of one who had made no alternative arrangements at all and determined to drink and drive from the outset.
Dr Judith Perl gave evidence that alcohol use decreased perception and the ability to process information from peripheral vision field. She stated that vigilance is the level of alertness given to tasks and this has been found to be impaired at BACs around 0.03g/100ml. Also, alcohol intoxication can result in inattention and risk taking behaviour partly due to an increase in self-confidence and a false perception of ability. [55] Whether this would involve not being able to perceive the impact of the collision was not explored in evidence.
The offending conduct that is the subject of Count 2 requires that the offender "knew or ought reasonably to have known that the vehicle had been involved in an impact occasioning the death of another person."
In all the circumstances, I cannot be satisfied beyond reasonable doubt that the offender knew of the nature of any impact occasioning the death of the deceased. However, but for the alcohol, I am satisfied that the offender ought reasonably to have known that his vehicle had been involved in an impact causing the death of the victim and further failed to stop and provide assistance.
Both parties accepted that the Accused is to be sentenced on this basis.
I accept the Defence submission that the seriousness of this offence is to be viewed as less in circumstances where the offender ought to have known as opposed to having actual knowledge of the victim's death cf Adam v R [2014] NSWCCA 265 at [35]-[36].
I am also mindful that the purpose of the offence is not only to stop and provide assistance but also to deter people from impeding a police investigation, by fleeing cf Pullen v R [2018] NSWCCA 264 at [49].
The purpose of providing assistance extends to where a person is deceased cf WW v R [2012] NSWCCA 165 at [85].
In this instance whilst the investigation was impeded, it was not in any way compromised.
In all the circumstances, I would find this offence as being below mid-range.