David McDougall, 29 years of age, appears for sentence in relation to one offence of dangerous driving occasioning grievous bodily harm, drive manner dangerous (the victim is Toni Chaloner), an offence pursuant to s 52A(3)(c), Crimes Act 1900 (NSW). The maximum prescribed penalty for that offence is 7 years imprisonment. There is no prescribed standard non‑parole period. There is an automatic licence disqualification of 3 years and a minimum disqualification of 12 months.
When dealing with the offender for that offence, the Court is taking into account a further offence on a Form 1 of cause bodily harm by misconduct in charge of a motor vehicle (victim Rachel Stancombe), an offence pursuant to s 53, Crimes Act. The maximum prescribed penalty for that offence is two years' imprisonment.
The offender pleaded guilty on 5 May 2020 at the Wyong Local Court. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%.
The offending occurred on 27 December 2018. The offender was arrested on that same date and granted bail. He subsequently spent 15 days bail refused in August 2019 and has also been bail refused since 21 February 2020. I will say more about the commencement date of the sentence later in my remarks.
[2]
The Agreed Facts
At the time of the offence, the offender was on his P1 provisional licence.
On 27 December 2018, at about 8.30 am, the victim Toni Chaloner, then aged 35 years, was at a mechanic at the Central Coast Motor Group, located in Johnson Road, Tuggerah. She had taken her husband's car into the mechanic and, after speaking with someone at the counter, was waiting outside on a grass verge near the business.
At the same time, the offender was driving a silver Mitsubishi Lancer in a north-easterly direction on Woodbury Park Drive, Tuggerah.
In the front passenger seat was the second victim, Rachel Stancombe, who was the registered owner of the vehicle.
Ms Stancombe was reclined in the front passenger seat, resting, as the offender drove down Woodbury Park Drive and through a roundabout onto Johnson Road.
Johnson Road is a bitumen road with a single lane of travel in each direction and sufficient room for vehicles to park on the kerb. As the offender drove along Johnson Road, about 150 metres away from the intersection with the Pacific Highway his vehicle crossed the double unbroken lines in the middle of the road. The offender's vehicle then mounted the kerb outside Central Coast Motor Group, passing within metres of two women standing on the driveway and forcing them to take evasive action and step out of the path of the vehicle.
The victim, Toni Chaloner, was standing on the footpath near a large advertising sign mounted around the water meter. The front of the offender's vehicle collided with the sign and water meter, knocking over the sign and rupturing the water meter, causing pressurised water to spray into the air. The offender's vehicle then collided with the victim, causing her head and upper body to impact on the windscreen of the vehicle being driven by the offender. The force of the impact then caused the victim to be propelled over a fence to an adjoining car yard, where she struck the ground and front passenger side door of a vehicle.
The offender's vehicle also became airborne and travelled through the adjoining fence. The vehicle damaged the fence, knocking two fence panels out and damaging the panels. The offender's vehicle also collided with the passenger-side doors of another vehicle in the car yard, a silver Holden Barina, overturning the Holden Barina onto its roof. When the victim and the vehicles came to rest, the offender's Mitsubishi vehicle came to rest with the entire front portion of the vehicle resting on top of the overturned Holden Barina. Only the rear passenger side wheel and bumper of the offender's vehicle was still in contact with the ground. All of the vehicles that were hit at the adjoining car yard were unoccupied.
There was an employee of the dealership in the car yard at the time of the collision. He was not hit by any of the vehicles and was uninjured.
In the aftermath of the collision, the victim, Rachel Stancombe, exited the passenger side front door of the vehicle the offender was driving. She was followed by the offender. The offender waited at the scene for emergency services to arrive. Ambulance officers attended the scene and observed that the offender was agitated, fidgety, and rubbing his skin and body with his hands. The offender and the victim Stancombe, were taken by ambulance to hospital. The victim, Toni Chaloner, was intubated and air lifted to John Hunter Hospital in a critical and unstable condition.
When the offender was asked about his drug use, he admitted to using "a couple of days ago". While at the hospital, the offender told police he remembered angling his sun visor down and putting his sunglasses on as he came through the roundabout prior to the collision, but the next thing he remembered was being inside the vehicle in the final resting position in the car yard and his passenger trying to get him out of the vehicle.
The offender provided a sample of blood and was discharged from hospital into the care of police. While the offender was at the police station, he was observed to be pale, restless, and constantly scratching. It was observed that his eyes were watery, appeared glazed, and his pupils were pinpoint. He appeared generally substance affected. He fell asleep easily when not engaged and was snoring heavily when alone, but he was easily awoken and appeared alert when awake.
[3]
Investigation
The vehicle the offender had been driving was subsequently examined and found to have no mechanical faults or defects that would have contributed to the collision. There were no skid marks left by the vehicle on the roadway. An analysis of the CCTV recording of the incident determined the following. Immediately prior to crossing the unbroken lines of the roadway, the offender's vehicle was travelling at a minimum of 57 kilometres per hour. As it crossed the unbroken lines, the offender's vehicle accelerated to 80 kilometres per hour and was travelling at that speed when it hit the gutter and mounted the kerb on the opposite side of the road. The offender's vehicle's brake lights were not activated throughout the incident.
The offender participated in a record of interview with police. He told police the following: originally, the passenger Stancombe, had been driving earlier that morning but when she had become tired he had taken over and driven from the twin service stations on the M1 motorway. He had driven to a bakery and then a public toilet, and then was driving through Tuggerah on the way to Watanobbi. He was familiar with the area. The last memory he had prior to the collision was driving past the wreckers on the right-hand side of Johnson Road. It is noted that the business "Best Price Auto Dismantlers" is immediately adjacent to Central Coast Motor Group.
He had been out with friends the night before. He originally told police he had gone to bed the night before at about 2 am, but after further questioning he agreed he had arrived back at his friend's house at about 4 am. However, he told police he had been sleeping in the car while it was being driven on the way to his friend's house. He appeared to be unable to accurately say how much sleep he had. He and the victim Stancombe had arrived at the twin service stations at about 7 am that morning. The victim Stancombe had driven the vehicle there and he had been dozing in the car whilst she drove.
He told police he had a severe case of sleep apnoea and had a CPAP machine to assist him, but he had not been using it for the previous month as it was his ex-partner's house. He told police he felt rested after stopping for a break, but was unsure whether he fell asleep while driving. He told police he had used two MDMA capsules on Christmas Eve. He had been cleaning his car out and found a bag of MDMA that he thought contained about 0.5 grams. He had consumed that MDMA at the time he found it. He initially told police that this had occurred about 6 pm on Christmas Day, but later indicated that the consumption of MDMA was actually the night prior to the collision.
Investigating police made inquiries into the offender's medical records, which indicated that he had consulted two specialists for sleep apnoea as follows:
1. He had participated in a sleep study with Dr Michael Hayes, a sleep disorder physician, on 8 June 2017, approximately 18 months before the collision, where he was found to have severe obstructive sleep apnoea. Dr Hayes noted that a CPAP is usually indicated for a condition of this severity.
2. Dr Ambrogetti, a consultant physician in the field of sleep medicine, wrote to the offender's general practitioner on 6 February 2018, saying that the offender had mild to moderate sleep apnoea and that he should either have a number of surgeries or use CPAP to manage the condition.
Dr Ambrogetti noted that in correspondence the offender had failed to attend a follow-up appointment on 7 June 2018 and, despite numerous messages being left, the offender had not returned for further treatment.
The blood sample provided by the offender was analysed and found to contain 0.04 milligrams per litre of amphetamine and 0.37 milligrams per litre of methylamphetamine. This is within the toxic range of methylamphetamine. Amphetamine is a metabolite of methylamphetamine and its relative concentration to the methylamphetamine indicates that it was probably present due to the metabolism of the methylamphetamine. The results of the blood sample were reviewed by a pharmacologist, who opined that the offender was under the influence of methylamphetamine at the time of the driving to the extent that there would have been impairment of his driving ability. The pharmacologist opined that it was likely the offender was in the rebound fatigue and sedation phase of methylamphetamine effects.
[4]
Injuries
The passenger in the vehicle being driven by the offender, Rachel Stancombe, suffered a right ankle soft tissue injury, including swelling and bruising. She also suffered pain to her left chest area. She was admitted to hospital for pain management and investigation of her injuries.
The victim Toni Chaloner was intubated at the scene and air lifted to John Hunter Hospital in a critical, unstable condition. At the hospital, the victim was treated for injuries as follows:
1. Multiple blood transfusions were required, both in the ambulance and also whilst in emergency;
2. Emergency surgery was immediately required to stop serious abdominal bleeding caused by multiple liver injuries;
3. A large laceration on the face was sutured;
4. A fracture to the left tibia;
5. A fracture to the left fibula;
6. A comminuted shaft fracture to her right radius and ulna;
7. Meniscal and ligament injuries to her left knee;
8. Treatment for multiple abrasions and lacerations on all four limbs and face; and
9. The insertion of a drain to manage pancreatic injury, causing pancreatic fluid to leak into the abdominal cavity.
The victim remained in ICU in an induced coma for a number of days. She was kept in the induced coma between repeated surgeries for abdominal bleeds. The injuries required four-stage surgical procedures in the hospital. Further surgeries were also required to insert corrective orthopaedics into her fractured limbs and also a surgery to repair the tendon and meniscus of her right knee. Several facial lacerations were required to be repaired in the operating theatre also.
The victim was also found to have a fracture of the L1 vertebrae, but it was a stable fracture and did not require intervention. The victim was discharged from John Hunter Hospital on 31 January 2019 and was transferred to Wyong Hospital at that time for further surgery.
On 20 February 2019, she was discharged from Wyong Hospital and transferred to a rehabilitation facility.
On 11 December 2019, the victim's treating orthopaedic surgeon provided the following updated information about her ongoing injuries and treatment:
1. The victim had required a bone graft to her tibial fracture via masquelet procedure, a procedure used when there are large segment bone defects. That procedure is conducted in multiple steps. The first steps involved debridement, a bone cement spacer being introduced in the bone defect, and the soft tissue being reconstructed. The second step is performed a number of weeks later, wherein the spacer is removed and the defect is filled with bone graft. The victim's bone graft has healed well;
2. The victim's forearm fracture has healed to the point where it does not require further treatment;
3. There was an attempt made to repair the victim's anterior cruciate ligament, however, the surgery has failed. Further surgery was conducted in May 2020;
4. The most severe of the victim's ongoing injuries is the multi‑ligament knee injury, which has the potential to have been a life-threatening injury. Although the victim has retained her limb, she is not expected to ever regain full and normal function in her knee. She will almost certainly be confined to a sedentary job and it is unlikely she will ever return to sporting activity.
In the opinion of the victim's treating orthopaedic surgeon, the victim's injuries are serious and have lifelong implications for her.
As at 15 November 2019, the victim Toni Chaloner was receiving 24‑hour care from Monday to Saturday due to her physical limitations and being unable to care for her children, then aged 14, 5, and 2. From March 2020, carer support was reduced to 55 hours per week. As at August 2020, the victim still required 51 and a half hours of support per week to assist with daily living tasks. The victim Toni Chaloner, has also been consulting with Ms Michelle Irwin, a psychologist, since April 2019.
The victim has undergone extensive physical therapy and multiple surgeries in an attempt to regain her full physical functioning. In the opinion of Ms Irwin, the impact upon the victim's ability to parent her three children has been significant, both on a physical and psychological level, which has been a source of great distress for the victim. There has also been a significant impact on her marriage and her financial situation. She remains unable to work and is reliant upon carers to assist her and her children. Ms Irwin noted the following:
"Toni feels that she has lost independence and has not been able to make important life decisions due to her inability to be independent in her parenting."
The victim continues her therapy with Ms Irwin.
Those Agreed Facts clearly disclose very serious objective criminality in circumstances where not only was this offender driving whilst drug affected and sleep deprived, but also with the knowledge of his sleep apnoea. This demonstrated a complete disregard for the safety of other road users and members of the public.
In R v Manok [2017] NSWCCA 232, Wilson J stated as follows at [78] and [79]:
"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 Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep) per Hunt CJ at CL.
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."
[5]
Assessment of objective seriousness
In assessing the objective seriousness of the offending, I have had regard to the relevant factors identified in the guideline judgment of R v Whyte (2002) 55 NSWLR 252.
Spigelman CJ identified a frequently occurring case of an offence under s 52A as having the following characteristics:
1. A 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; and
7. A plea of guilty of limited utilitarian value.
Spigelman CJ also identified a list of 11 aggravating factors as follows:
1. The extent and nature of the injuries inflicted;
2. The number of people put at risk;
3. The degree of speed;
4. The degree of intoxication or of substance abuse;
5. Erratic driving;
6. Competitive driving or showing off;
7. The length of the journey during which others were exposed to risk;
8. The ignoring of warnings;
9. Escaping police pursuit;
10. The degree of sleep deprivation; and
11. Failing to stop.
Spigelman CJ noted the following at [228]:
"In the above list of aggravating factors, items (iii) to (ix) are frequently recurring elements which directly impinge on the moral culpability of an offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion."
The guideline for offences against s 52A(1) and (3) for the typical case was stated as follows at [229] to [30]:
"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.
In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate."
In R v Whyte, Spigelman CJ continued at [232] to [233]:
"The guideline is, to reiterate, a "guide" or a "check". The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all the factors required to be taken into account by s 21A of the Crimes (Sentencing Procedure) Act.
This guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration."
[6]
Application of the guideline
The offender is distinguishable from the guideline judgment in circumstances where he is not a young offender and he is not of prior good character with no or limited prior convictions. Also, his plea of guilty was at the first available opportunity.
In respect of the aggravating factors identified by Spigelman CJ, the Crown relied upon the following:
1. The extent and nature of the injuries. The Crown submitted that the injuries occasioned to the victim, Toni Chaloner, were significant with lifelong consequences. It was submitted on behalf of the offender that the grievous bodily harm occasioned to the victim was in the upper mid-range of seriousness. Having regard to the extensive injuries sustained and also that the disability is permanent and ongoing, I am satisfied that the nature and extent of the injuries is an aggravating factor.
2. The number of people put at risk and the length of the journey. The offender told police and confirmed during his evidence given during the sentence proceedings, that he had driven from the twin service stations on the M1 motorway before attending a bakery and then driving through Tuggerah. The Crown has estimated that the distance is approximately 16 kilometres. I am satisfied that for this period of time the offender created a very significant risk to other road users and this aggravating factor is established.
3. The degree of speed. As the offender's vehicle crossed the unbroken lines, it accelerated to 80 kilometres per hour in a 50 kilometre per hour zone. It was submitted on behalf of the offender that the degree of speed was not an aggravating factor in circumstances where there was no evidence that the speed was deliberate, but rather it was likely attributable to the offender's failure to control the vehicle. Having regard to the Agreed Facts, I am not satisfied that the degree of speed in excess of the speed limit was deliberate, rather it is likely to be the result of the offender falling asleep and losing control of the vehicle. Accordingly, I do not propose to take this into account as an aggravating factor.
4. The offender was under the influence of prohibited drugs. It was submitted on behalf of the offender that in circumstances where intoxication by drugs was relied upon to establish the dangerousness of the driving, and in the absence of evidence to establish the degree of intoxication, that it should not be relied upon as an aggravating factor. In circumstances where the Agreed Facts do not identify the degree of any impairment of the offender's driving ability because of him being under the influence of methylamphetamine at the time of driving, I am not satisfied that this aggravating factor is established.
5. The degree of sleep deprivation. The offender told police that he had arrived at a friend's house about 4 am the previous evening. During his evidence given in the sentence proceedings, the offender agreed that he was very fatigued at the time he was driving. Having regard to that evidence, I am satisfied that the offender had very little sleep on the evening prior to the incident and that this aggravating feature is established.
In addition to those aggravating factors, I have also taken into account that the offender drove at a time when he was well aware of his sleep apnoea and that he was at significant risk of falling asleep, particularly because of the ingestion of prohibited drugs in combination with sleep deprivation.
Having taken into account all those factors, I am satisfied that the offender's moral culpability is high and that his conduct can properly be described as an abandonment of responsibility. I regard the offending as falling above the guideline judgment of R v Whyte.
[7]
Aggravating factors
The Crown relied upon one aggravating factor pursuant to s 21A, Crimes (Sentencing Procedure) Act 1999 (NSW), namely, that the offender was on conditional liberty at the time. I am satisfied that the offender was on five s 9 bonds at the time he committed the offence and, hence, that this aggravating factor is established.
[8]
Victim impact statement
A victim impact statement was read by the victim Toni Chaloner, during the sentence proceedings. At the time of the sentence proceedings, she had recently had further surgery on her knee on 15 May 2020, requiring a PCL and ACL reconstruction. At the time of the sentence proceedings, she continued to wear a full leg knee brace.
At the outset of her victim impact statement, she stated as follows:
"My life as I know it now is forever changed by an inexcusable act of disregard for human life by a person affected by drugs getting behind the wheel of a vehicle and running me down. The injuries were severe and life threatening. I feel that I am half the person I was previous to this nightmare."
The victim outlined that since sustaining her injuries in December 2018 she has undergone nine surgeries. She described that the anxiety and stress created by this is "unbearable". She also outlined the stress and disruption caused by her lengthy hospital stay, almost four months, and, in particular, the impact upon her very young children, who at the time were 1, 3 and 12 years. Specifically, she described that she had to spend time re‑establishing her relationship with her youngest child, in circumstances where she described that her youngest child would have nothing to do with her after her release from hospital.
She also described that ongoing physical difficulties means that she cannot drive, pick up her own children, and also needs ongoing help with day‑to‑day household tasks. She stated as follows:
"It is unknown if I will ever be back to the way I was pre‑accident. This makes me feel angry as I should not be like this. Before the accident, I could do all the things a mother should do with her children. I can't do this now, which really angers me."
She continues:
"The huge thing for me is the feeling of helplessness at the loss of my independence, my inability to drive, and to independently care for my children. There were times I wished I hadn't survived being run down by this car you were driving. It just may have made things easier for everyone and I wouldn't have to go through all this pain and suffering on a daily basis. Luckily, my family give me the will to keep pushing through."
There is no doubt that the injuries sustained by the victim as a consequence of the offender's conduct will have lifelong consequences. The victim has shown a significant level of resilience so far on her road to her recovery. She is very fortunate indeed to have the ongoing love and support of her family.
[9]
Subjective circumstances
The offender is now 29 years of age.
He has a criminal history commencing in 2011, when he was dealt with for an offence of possess unauthorised prohibited firearm. He was sentenced to 2 years and 3 months imprisonment with a non-parole period of 1 year. At the same time, he was also dealt with for offences of possess loaded firearm, imprisonment for 1 year, stalk or intimidate, intending to cause fear of physical or mental harm, imprisonment for 9 months. In the same year, he was dealt with for a further offence of stalk or intimidate and received a fine and a s 9 bond. That bond was called up in 2013 when a further bond was imposed.
In 2014, he was dealt with for an offence of assault occasioning actual bodily harm in company. He was sentenced to 18 months imprisonment, suspended pursuant to s 12.
In 2015, that suspended sentence was revoked and he was sentenced to 18 months imprisonment. On appeal, that was reduced to 12 months.
In 2014, he was dealt with for a number of traffic offences. In respect of each of those he received fines.
In 2015, he was dealt with for an offence of possess shortened firearm without authority and was sentenced to 18 months imprisonment with a non‑parole period of 12 months. At that same time he was also dealt with for an offence of not keep firearm safely and was sentenced to 12 months imprisonment.
In 2016, he was dealt with for an offence of supply prohibited drug and was sentenced to 9 months imprisonment with a non-parole period of 4 months. At that same time, he was dealt with for two offences of possess prohibited drug. In respect of each of those offences, he received a s 9 bond. Those bonds were called up in 2018 and he received further bonds. Those bonds were also called up in 2020 and he received a term of imprisonment of 6 weeks, which he has served during his current period of remand between 21 February 2020 and 2 April 2020.
In 2019, he was dealt with for offences of larceny, common assault, and drive whilst suspended. In respect of each of those matters he received fines.
In 2020, he was dealt with for an offence of possess prohibited drug and received a 4 month term of imprisonment, which he has also served during his current period of remand between 21 February 2020 and 20 June 2020.
In relation to the offender's traffic history, he was first issued with his learner's licence in January 2009. He was suspended from driving on four occasions between August 2010 and May 2012.
He received fines in March 2014 for traffic infringements. In March 2014, he was disqualified from driving for a period of six months for a further traffic infringement. In March 2015, the offender was convicted for driving whilst disqualified. He received a licence disqualification for a period of 12 months and a s 10A conviction with no other penalty.
In July 2017, the offender was issued with his learner's licence. In August 2017, the offender was issued with his P1 provisional licence. He was suspended on two occasions between October 2017 and December 2018, excluding his suspension for the current offence.
He also received fines for further traffic offences in June 2019. In October 2019, after the date of the commission of this offence, he was convicted for driving whilst suspended and received a three-month licence disqualification as well as a fine. In July 2020, he was convicted of a further offence of drive whilst suspended and dealt with by way of s 10A. He was disqualified from driving for six months.
Having regard to the offender's criminal history, I am satisfied that it disentitles him to any leniency on sentence that would otherwise be available to a person of good character. Further, I am also satisfied that specific deterrence is an important consideration on sentence.
The following material was tendered on behalf of the offender during the sentence proceedings:
1. Exhibit 1 - Report of Anita Duffy, a psychologist dated 1 July 2020;
2. Exhibit 2 - Letter under the hand of the offender, undated;
3. Exhibit 3 - Letter under the hand of Emily Vine dated 31 August 2020;
4. Exhibit 4 - Letter under the hand of Gregory Coulter dated 24 May 2020;
5. Exhibit 5 - Outline of defence submissions; and
6. Exhibit 6 - Certificate of achievement, Crossroads dated 18 June 2020.
The offender also gave evidence during the sentence proceedings, which I will summarise later in my remarks.
The offender's background is outlined in the report of Ms Duffy (Exhibit 1). Ms Duffy assessed the offender by audio visual link on 16 June and 26 June 2020 for a total period of four hours.
The offender was born in Newcastle. He has two older half-brothers. The offender's father left his family when he was a baby, after which time the offender would occasionally see him on weekends until he was 5 years of age. The offender reported that his father was a heroin addict, who shared a house with another heroin user.
When visiting at aged 5, the offender described witnessing a stabbing that took place at that property. The offender reported not seeing his father again until he was 11 years of age. The offender reported that his mother had suffered cancer over a number of years and, despite undergoing a double mastectomy passed away when he was 10 years old. After his mother's death, the offender experienced periods of homelessness and was placed with individuals who were unable to provide him with proper care, including his godfather, mother's foster brother, and paternal grandmother.
At some stage, the offender lived with his father in Darwin for nine months. During this time, the offender's father continued to use heroin as did his father's partner, who was a former sex worker. The offender described being subjected to physical and psychological abuse by his father, including being slammed against a wall. The offender was told repeatedly by his father that he was an unwanted child who should have been aborted.
At around the age of 12, the offender returned to New South Wales and was placed in foster care. He was fostered to a retired police sergeant in Newcastle, who treated him well.
The offender reported staying with his mother's best friend in Newcastle for around 18 months until around the age of 14. He ran away due to her partner's physical abuse. The offender stated he attempted to return to the care of the police sergeant, but found he was too ill to look after him. The offender reported couch surfing for a period of time prior to moving into his half‑brother, Brett's, home in Penrith. He had not seen his half‑brother for many years after his brother had been shot in the head by people who had kidnapped and tortured the offender to find out where his brother was.
The offender described that his brother was a reformed drug user who, despite suffering brain damage, works operating and repairing drainage pumps.
The offender's brother, Glen, is also a reformed a drug user who now lives in Newcastle. The offender has also stayed with him at times.
The offender stayed with his brother, Brett, until he was 16 or 17 years of age.
[10]
Education
The offender attended primary schools in the Newcastle area until after his mother's death. He attended Years 5 and 6 in Darwin before returning to Newcastle to complete Year 6. He attended Newcastle High School during Years 7 and 8 before moving to Penrith. Once there, he attended Nepean High School until Year 11. He reported coming close to expulsion due to bad behaviour. He completed the equivalent of Year 12 through a Certificate of Business at TAFE. The offender reported that he is now enrolled in a Bachelor of Business at the University of Queensland and plans to study an engineering degree in the future.
[11]
Employment
When he was 16 years of age, the offender reported that he was employed as a trainee security technician, installing alarms and CCTV cameras. He reported being fired following an argument with his employer.
Whilst in custody, the offender has worked in the woodshop at Parklea Correctional Centre and attended to packing work at the John Morony Correctional Centre. When the offender breached his parole, he was employed as a sheet metal worker through the Outer Metropolitan Multipurpose Correctional Centre.
The offender was in custody at Bathurst Correctional Centre between 2014 and 2016 and worked in the kitchen as well as engaging in community projects in the Bathurst and Sofala areas.
After being released from custody at that time, the offender and a friend set up a partnership to operate a removalist business, however they experienced some financial difficulties and the partnership was dissolved.
The offender also engaged in some part-time seasonal work with Jetpac Adventures, doing performances on Sydney Harbour and displays for events such as Vivid, Australia Day, and corporate functions. The offender reported that his employer at Jetpac has offered him employment in an administrative capacity upon his release from custody.
[12]
Relationships
The offender is currently in a relationship with Ms Emily Vine. She is his fiancé. They met in 2013 and have been in and on and off relationship since that time.
[13]
Substance use history
The offender reported that he began consuming alcohol as an adolescent and was a heavy drinker until the ages of 21 to 23. He stated he was admitted to hospital for a medically supervised withdrawal from alcohol, which assisted him in controlling his later alcohol intake.
The offender reported smoking cannabis from 15 years of age and using recreational drugs such as speed, MDMA, and Ritalin, which he often consumed with alcohol. He reported using methylamphetamine from 21 years of age, often mixing it with cocaine and MDMA.
He often gambled when affected by stimulant drugs, which developed into a habit, which he claimed provided a welcome distraction from his problems.
The offender ceased drug use whilst incarcerated between 2014 and 2017. However, he reported relapsing in 2018 in order to cope with financial and emotional stress.
Following the breakdown of his relationship with his fiancé in late 2018, the offender reported using methylamphetamine, cocaine, and consuming alcohol in high quantities just prior to the offending.
The offender reported remaining abstinent from drugs and alcohol following the offending until his incarceration in February 2020, when he recommenced the use of methylamphetamine. He stated that he recognises his propensity to relapse when he is anxious or feeling overwhelmed.
[14]
Medical history
The offender suffers from severe obstructive sleep apnoea that was first diagnosed in 2017. He has used a CPAP machine to manage his condition, but this has not been accessible in custody until recently. The offender reported interrupted sleep patterns and a resultant lack of energy and tiredness throughout the day.
He also reported that he suffers from hypertension and his blood sugar levels are being monitored for diabetes. He also has high levels of uric acid and is currently taking medication for gout. The offender also reported suffering from migraines every two to three months and lower back pain caused by a nerve blockage. He stated he is unable to access muscle relaxant medication whilst in custody.
[15]
Mental health history
The offender reported that he was diagnosed with ADHD in Year 2 and was prescribed dexamphetamine, which he took until his mother died. He reported experiencing depression throughout much of his life, beginning with his mother's illness and later death. He has been prescribed the antidepressant Avanza in the past, but says he tries to stay away from these kinds of medications due to their potential addictiveness. He suffered anxiety attacks and self-harmed throughout his early adolescence. The offender reported making three suicide attempts, the last of which required surgery on his wrists, which he had tried to cut.
He developed anxiety attacks, which he reported were exacerbated after leaving gaol and resulted in difficulty being in public places and speaking to people. He saw a psychologist in 2016 and 2017 to assist in the treatment of his anxiety. This treatment helped the offender carry out his work at Jetpac and improved his interactions with clients.
Since committing the offence, the offender described experiencing symptoms consistent with PTSD, including recurrent images of the aftermath of the collision, anxiety, and hypervigilance on the road.
[16]
The offender's circumstances at the time of his arrest
The offender reported that he had been using methamphetamine and MDMA as well as consuming alcohol in the days leading up to the offence. He reported to Ms Duffy that he did not sleep at all for 36 hours between 24 and 26 December and had very little sleep on the night before the collision. He had not been using his CPAP machine since November and was sleepy when he and his passenger drove back from Toronto to the Central Coast. The last memory that the offender reported having was approaching the roundabout and pulling down his sun visor and putting on his sunglasses.
The offender said he was in a trance-like state when he woke up after the collision and has no memory of the victim being hit by the vehicle. He stated that he was in a state of shock when he was informed of what had happened and has since been plagued by the incident.
In the opinion of Ms Duffy, the offender demonstrated insight into the consequences of his offending and reported and that, "He cannot stop thinking about the terrible injuries the victim has suffered and how horrible it is for someone to be hurt so badly."
In the opinion of Ms Duffy, the offender suffers from persistent depressive disorder, anxiety disorder with panic attacks, post-traumatic stress disorder, and moderate stimulant use disorder in sustained remission. In her report, Ms Duffy noted that:
"Negative childhood experiences have created chronic symptoms of anxiety and complex post-traumatic stress disorder with hyperarousal, difficulty in self-soothing, and adaptation to environmental and social and personal challenges in response to life stresses."
Ms Duffy further noted that the offender's "early life experiences with inadequate and violent role models left him ill-equipped to deal with stresses. His recourse to drugs and other addictive behaviours, such as gambling, were distractions from his problems and means of avoiding negative emotions".
In the opinion of Ms Duffy, at the time of the offending, the offender could be said to be sleep deprived and coming down from the stimulant drugs and alcohol he had consumed in the days prior. She also noted that, "It is plausible that he had fallen asleep immediately before losing control of the car."
Ms Duffy recommended that the offender take part in the RUSH and EQUIPS addiction and maintenance programs in custody. She also recommended that the offender would be assisted through the Better Health Outcomes and should receive counselling follow his release from custody. She also recommended that the offender be referred to a GP to help treat his ADHD symptoms. Ms Duffy noted that despite the offender's vulnerability to the effects of institutionalisation he has responded well to psychological treatment in the past and has the potential to benefit significantly from similar treatment in the future. In the opinion of Ms Duffy, the offender's offer of employment and securer living arrangements post release will reduce his likelihood of relapse and recidivism.
[17]
The offender's evidence
The offender confirmed during his evidence that his father was a heroin addict and he was a victim of violence during his childhood. He described his mother as loving and caring. He said during his time living with his foster carer, who was a police officer, he felt, "somewhat normal, stable, and caring." He explained that he left the care of this foster parent because his father demonstrated he could care for him. He stayed with his father for approximately one month. He also confirmed the history given to Ms Duffy of the circumstances in which he lived with his brother, Brett.
He told the Court that in relation to his future plans that he intends to marry his fiancé. He indicated that she will not remain supportive of him should he return to drug use. He also has employment with Sydney Water, organised by his brother, Brett. He can also obtain work with Jetpac Adventures. He said he is now enrolled in a Bachelor of Business. He has also completed a program to be a religious mentor within the gaol and the community.
In relation to the day of the offending, he gave evidence that he began driving the vehicle at the twin service stations on the M1.
He accepted he created a real danger to the public for that period of driving. In relation to how he felt about his offending and what he had done to Ms Chaloner he told the Court, "I can't really compare what she's been through herself, but it has haunted me. It is not an easy thing to deal with."
In relation to his sleep apnoea, he told the Court that he now has access to a CPAP machine in custody. He acknowledged that he was aware of his sleep apnoea before he drove on the day of the offending.
In cross-examination, the offender accepted that he had driven on occasions since the offending whilst his licence was suspended. It was suggested to the offender by the Crown that he was not remorseful about his offending because he continued to drive even though he had been suspended at the time of the offending. The offender did not accept this proposition.
[18]
Other material tendered on behalf of the offender
Exhibit 2 was a letter prepared by the offender. The offender in his letter stated as follows:
"I completely accept my part in the offence on the day. It was a day that has caused me large amounts of sorrow and concern for the victim, Toni Chaloner's, recovery and wellbeing as it hurts my conscience and has affected me. I can't comprehend the pain I've caused. In the aftermath of that day's events, I have constantly struggled with my actions and have found it a harrowing task trying to deal with it all. I pray every day for a speedy recovery and best wishes to Ms Chaloner."
Exhibit 3 is a letter under the hand of Emily Vine. She has known the offender for nine years and has been his fiancé for three years. She outlined that they intend to marry upon the offender's release from custody. She indicated the offender on multiple occasions has expressed his extreme remorse for his offending.
Exhibit 4 was a letter prepared by Gregory Coulter. Mr Coulter is a former employer of the offender. The offender was employed with his company for approximately three years as a Jetpac operator/instructor. His last casual employment was in February 2020. Mr Coulter indicated that his company will continue to support the offender with his employment in the future.
[19]
Submissions on behalf of the parties
The Crown relied upon written submissions supplemented by further oral submissions. Mr Singh-Panwar on behalf of the offender also relied upon written submissions supplemented by further oral submissions. I have taken those submissions into account in determining the appropriate sentence.
[20]
Relevance of the offender's background
It was submitted on behalf of the offender that, having regard to the offender's deprived and disadvantaged childhood and youth, there could be some moderation of the appropriate sentence in accordance with the principles enunciated in R v Bugmy (2013) 249 CLR 571.
The Crown conceded during oral submissions that it would be open to the Court to moderate the otherwise appropriate sentence on this basis. I accept that the offender's childhood background warrants some moderation of the otherwise appropriate sentence.
[21]
Form 1 offence
In sentencing the offender, I have taken into account the Form 1 offence of cause bodily harm by misconduct in charge of a motor vehicle in accordance with the principles enunciated in the Attorney-General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act (1999) No 1 of 2002 (2002) 56 NSWLR 146.
[22]
Remorse
Having regard to the offender's letter to the Court and his evidence during the sentence proceedings, I accept that he is now remorseful for his conduct. It is highly apparent that he displayed little or no acceptance of responsibility for his offending in the months following the events, in circumstances where he continued to drive even though suspended.
[23]
Prospects of rehabilitation
Any view of the offender's prospects of rehabilitation must necessarily be guarded having regard to his previous substance use issues and his lengthy criminal history. It is positive that he has the continuing support of his fiancé and the prospect of employment upon release from custody.
The Court is hopeful that he is able to maintain his current abstinence from drugs once he returns to the community. At this stage, I am unable to find he is unlikely to reoffend.
[24]
Special circumstances
It was submitted on behalf of the offender that special circumstances are established, warranting a variation in the statutory ratio between the non‑parole period and the parole period, having regard to the offender's need for rehabilitation in relation to his substance use issues.
I am satisfied that the offender would benefit from a longer period under supervision on parole to give him a greater chance of remaining drug free. Accordingly, I propose to vary the statutory ratio pursuant to s 44(2), Crimes (Sentencing Procedure) Act.
[25]
Commencement date of the sentence
The offender has been in continuous custody since 21 February 2020. Whilst in custody, he has served a four month sentence between 21 February 2020 and 20 June 2020 and a further six week sentence between 21 February 2020 and 2 April 2020. It is agreed between the parties that the sentence imposed today should be backdated to 21 June 2020 less a further 15 days to take into account his time in custody in August 2019. Accordingly, the commencement date of the sentence is 6 June 2020.
[26]
Disqualification period
It was submitted on behalf of the offender that the Court could reduce the period of disqualification from the automatic period of three years in circumstances where the offender has a desire to re-enter the workforce.
The Crown submitted that the Court should impose the automatic period of disqualification having regard to the level of criminality. Section 206B(2), Road Transport Act 2013 (NSW) provides that a court, when deciding on a period of disqualification, is required to take into account a period of suspension. This offender has been suspended since the day of the offence.
The Crown submitted that the Court would not take into account any period of suspension in circumstances where the offender drove during the suspension period. In my view, in circumstances where the offender was separately dealt with and sentenced for that subsequent driving and received periods of disqualification, I do propose to take the suspension period into account. I propose to impose a disqualification period of 1 year, 10 months and 20 days. That period is calculated by using the automatic disqualification period of three years as a starting point less the period of time between 27 December 2018 and 20 February 2020 less a further 15 days spent in custody for this offence that the offender was suspended from driving.
[27]
Determination
In determining the appropriate sentence, I have had regard to the purposes of sentencing as set out in s 3A, Crimes (Sentencing Procedure) Act.
Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate pursuant to s 5(1), Crimes (Sentencing Procedure) Act. I have had regard to the objective gravity of the offence, the relevant prescribed maximum penalty, the guideline judgment of R v Whyte, and the offender's subjective circumstances.
Mr McDougall, in relation to the offence of dangerous driving occasioning grievous bodily harm, you are convicted.
Taking into account the Form 1 offence, you are sentenced to a non-parole period of 1 year and 10 months to date from 6 June 2020 and expire on 5 April 2022 with a balance of term of 11 months to expire on 5 March 2023. The total term of the sentence is 2 years and 9 months to date from 6 June 2020 and expire on 5 March 2023.
The starting term for that sentence was 3 years and 8 months, which I have discounted by 25% for your plea of guilty.
I direct your release to parole on 5 April 2022.
You are also disqualified from driving for a period of 1 year, 10 months and 20 days.
[28]
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Decision last updated: 24 March 2021