Shane Stanton you appear for sentence today in relation to two offences.
Each of those offences is dangerous driving occasioning grievous bodily harm whilst under the influence of a prohibited drug, namely methtylamphetamine.
Each of those offences involves a contravention of s 52A(3)(a) of the Crimes Act 1900 (NSW). The maximum penalty for each offence is 7 years imprisonment. There is no standard non-parole period, although there is a relevant guideline judgment of the Court of Criminal Appeal, R v Whyte [2002] NSWCCA 343.
In addition to the term of imprisonment, there is a minimum period of disqualification of 12 months and an automatic period of 3 years.
The facts surrounding your offending were, in part, contained in a statement of agreed facts - supplemented or qualified by the evidence of a Crown expert, together with your own oral evidence today.
As at May 2018 you were 35 years of age. You were living in south-west Sydney and you were working as a cabinetmaker.
One of your work colleagues was Mr Mitchell Clarke and it was your habit, on your way to work, to pick up Mr Clarke from his home in Campbelltown. The two of you would then drive in your vehicle to your place of employment at Picton. You started work each day relatively early.
On 8 May 2018 you picked up Mr Clarke at about 5.45am. After you picked him up, you drove to your place of employment initially along the Hume Highway and then along Picton Road. After you and Mr Clarke set off for Picton, he fell asleep while you were driving. But at one point he awoke to find that you had veered into the emergency lane on the left hand side. He asked you if you were okay and you responded that you were and he went back to sleep.
As you were travelling along Picton Road at about 6:30am, Ms Cox was travelling in the opposite direction with her sister and a friend.
As your vehicle approached theirs, you veered onto the wrong side of the road. You crossed over double white dividing lines and your vehicle collided with the rear driver's side of the vehicle being driven by Ms Cox. The collision caused her vehicle to spin around to face the opposite direction and finally to come to rest on an embankment.
Your vehicle, however, continued to travel on the wrong side of the road and came to have a head on collision with the vehicle being driven by Ms O'Regan, a 25 year old nurse who was on her way to work.
Fortunately, Ms Cox and her passengers were able to leave their vehicle uninjured. But there the good news ends. You, Ms O'Regan and Mr Clarke were able to get out of your vehicles, but each of you fell to the ground in pain. Emergency services were called and the three of you were taken to Liverpool Hospital.
As a result of your injuries, you were off work for approximately six months. But you have been able to return to your work.
Mr Clarke suffered serious injuries. They are identified in technical terms in para 9 of the agreed statement of facts. They included serious fractures and very substantial damage to his bowel. Quite unhelpfully, the agreed statement of facts do not tell me in clear terms, or indeed at all, whether or not there are long term injuries to Mr Clarke and, if so, what they are - by which I refer to physical injuries.
Whether, and whatever, psychological injuries have been sustained by Mr Clarke are also not identified in the agreed statement of facts. But it is clear enough from the limited material before me that his physical injuries, at the time at least, were very serious.
There is no victim impact statement from Mr Clarke.
Ms O'Regan's injuries were very serious. They are also set out in technical language in the agreed statement of facts. They are referred to graphically in the victim impact statement which she has provided. Amongst other things, Ms O'Regan was in a medically induced coma for two days and her parents and her partner were not sure whether she would live. She was only 25. She has had multiple operations. She has sustained very serious physical injuries including, but not limited to, serious damage to her bowel. She has, as a consequence of that, what is called "Dumping Syndrome" which means she gets diarrhoea shortly after eating, which occurs several times a day. She is physically scarred, which for a young woman has been devastating. Her injuries to her ankle seriously impede her ability to continue her chosen profession as a nurse. And there is more to come. There are at least six surgical operations which she must undergo.
On top of these physical injuries, she has been seriously psychologically damaged.
How did this accident come about?
You told the police on the day after the accident that you may have fallen asleep or blacked out; that you had slept for nine and a half hours the night before; that you were not feeling tired; and that you rarely drink alcohol. Your blood, however, was tested and a very significant quantity of methylamphetamine was found in it.
You gave evidence today in which you adhered to what you told the police. But you went further. You said that you had had only one beer the night before when you were at a friend's house from between 5.30pm and 6:45pm. You sought to explain the presence of the methylamphetamine by denying that you had smoked it and suggesting that you had ingested it by, in effect, passively smoking the methylamphetamine smoke which four others in a small room had been smoking.
The Crown obtained an expert's report from a pharmacologist. It was added to today by a supplementary report. The effect of the report is that the level of methylamphetamine in your blood, that was taken at 10:30 am on the day of the accident, could not possibly have come about by you sitting in a room, even a small room, for an hour to an hour and a half with four other people in that room smoking methylamphetamine. The evidence of that witness was compelling. You called no expert evidence to contradict it. I accept that evidence beyond reasonable doubt.
The fact that I have rejected your evidence means that I also must have some doubt about other aspects of your exculpatory version of events. For example, I do not accept, on the balance of probabilities, that you slept for nine and a half hours the night before. I do not accept, on the balance of probabilities, that you were not feeling tired. In this context, I need only refer to the fact that, quite soon after commencing your journey, Mr Clarke awoke to find that you had veered onto the incorrect side of the road.
I am satisfied beyond reasonable doubt that you were significantly affected by the consumption of methylamphetamine when you drove that vehicle that morning. You have not been frank with the Court as to how much you smoked. But you were clearly well affected by it - as is shown by the first incident in which you veered off into the left hand side of the emergency lane. The camera footage today showed you weaving over the roadway.
If anybody needed any reminder of the nature of your offending he/she only has to look at the highly confronting dash cam video which the Court was obliged to look at today. You have ruined at least one life and she was only 25.
Your conduct constituted a serious abandonment of responsibility as a driver. Your moral culpability is therefore high.
In terms of the objective seriousness of your offending for offences of its type, the dangerous driving charge involving Ms O'Regan is above the midrange. Your offending in relation to your workmate, Mr Clarke, is a midrange offence.
You had an unremarkable childhood.
You left school at year 10 and since that time you have worked hard as a cabinetmaker. You are highly regarded by your current employer and by family friends.
You are currently living with your parents, who are 65 and 67 years of age in the Newcastle area.
You are the sole custodian of your eight year old daughter. The mother of that child does not seem to have much involvement at the moment in her life as a result of intervention by Family and Community Services. Your father is now retired and has no significant physical disabilities. Your mother has some physical disabilities but, as I would understand it, they would not preclude her from looking after your child for the few years that you will not be at home.
You have no prior convictions. The Crown has submitted that the leniency which would ordinarily be extended to a first offender is not fully engaged because of your driving record. But I do not accept that submission. Considering the length of time that you have been driving, the number of hours and kilometres per year that you drive, whilst your record as a driver is not a good one, it certainly does not operate to diminish the leniency which can be given to a first offender, in an appropriate circumstance.
There are no relevant mental health or intellectual disability or physical issues.
Because of the finding that I have made that you did not tell the truth about how that methylamphetamine came to be in your blood, I am not satisfied on the balance of probabilities that you are remorseful for what you have done.
Remorse of course is an important element in assessing an offender's prospects of rehabilitation.
Also it is important for an offender to be truthful about his drug habits. I do not know whether you smoked methylamphetamine before this night so I am unable to form any assessment about how long you have been using ice or anything else.
But considering your age, your commitment to your daughter, your good work record, and your absence of prior convictions, I have concluded that, even though you have not expressed genuine remorse, your prospects for rehabilitation are reasonable.
You entered an early plea of guilty, which ordinarily would have attracted a discount of 25%. But because of the manner in which the sentence hearing was conducted, that is by you asserting that you had not intentionally smoked methylamphetamine but rather you had innocently and unintentionally inhaled it, it was necessary for a contested facts hearing to be conducted and for an expert witness to be required to come and give evidence. There was never any real challenge to that evidence.
I shall, therefore, reduce the discount from 25% to 20%.
The sentence to be imposed on you today must be one that discourages others from doing what you have done. It must be one that discourages you from reoffending. But it must also be one that encourages your rehabilitation.
In each case, no sentence other than a term of imprisonment is appropriate and the contrary was not submitted by your experienced advocate.
I intend imposing an aggregate sentence. It is therefore necessary for me to state the indicative sentences underlying that aggregate sentence.
In relation to sequence one, that is the offence involving Ms O'Regan, except for your plea of guilty, the indicative sentence would have been 4 years 6 months. Because of the discount of 20%, the indicative sentence is 3 years 7 months.
In relation to sequence two, that is the offending involving Mr Clarke, except for your plea of guilty, the indicative sentence would have been 3 years imprisonment. After the discount of 20%, the indicative sentence is 2 years and 4 months.
There must be a degree of accumulation. Even though there was only one accident, there were two very badly injured victims.
I thereby sentence you to an aggregate term of imprisonment of 4 years and 6 months.
I make a finding of special circumstances to slightly vary the ratio of the head sentence to the non-parole period. I do that for three reasons. First, because it is your first term of imprisonment. Secondly, because of the continuing adverse conditions in the custodial setting caused by the corona virus pandemic and the inability of visitors to attend. Thirdly, because your absence from your young child will make this sentence harder for you than others.
I therefore set a non-parole period of 3 years to date from 30 June 2020 and will expire on 29 June 2023.
I fix a balance of 1 year and 6 months to date from 30 June 2023 and which will expire on 29 December 2024.
I order that you be disqualified from driving for a period of 12 months to date from 29 June 2023. I have deliberately imposed the minimum period of disqualification because, assuming you are released to parole on that date, your prospects of rehabilitation will be enhanced by you returning to work as soon as possible and for that purpose you will need your licence.
You will now go with the officers, thank you.
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Decision last updated: 18 August 2020