R v Tobin

District Court of NSW|2019-03-08|Before: Mr P

Introduction

Scott Andrew Tobin appears before me and has pleaded guilty to one count of dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(a) of the Crimes Act where the maximum penalty is seven years imprisonment. There is no standard non-parole period.
He has also pleaded guilty to fail to stop and assist after impact causing grievous bodily harm contrary to s 52AB(2) of the Crimes Act, the maximum penalty seven years imprisonment. There is no standard non-parole period.
The statutory maximum periods are a yardstick for a sentencing judge. A judge should steer by them but not aim for them.

FACTS

There is an agreed facts document in this case which reads as follows: "COLLISION (1) The victim in this matter is Michael James Robert Bruce born 9 May 1986. (2) On the afternoon of Sunday 9 July 2017, Bruce drove his motor cycle, Harley Davidson registration GUN 55 from the Penrith area of Kellyville and then returned. He travelled with a group of friends who also rode motor cycles. (3) At about 3.20pm, the group drove at the speed limit of 60 kilometres per hour in a westerly direction in a single file along Coreen Avenue at Penrith. At the head of the group was Vince Matuloivic. He was followed by Gavin Milan, Glen Ricketts and Christopher Tsardakidis. Bruce was at the rear of the group. (4) At the same time, the offender drove white Toyota Hilux utility registration CL-92-KR in an easterly direction along Coreen Avenue, Penrith. Joshua King was seated in the front passenger seat. The vehicle had a large amount of concreting equipment strapped in the rear cargo tray. The vehicle is registered to the offender. (5) As the offender drove his vehicle along a straight section of road, when about 150 metres from Tsardakidis, he drove his vehicle towards the westbound lane. He crossed double, unbroken dividing lines between the eastbound and westbound lanes. Tsardakidis was required to turn his motor cycle onto the shoulder at the side of the westbound lane to avoid colliding with the offender's utility. Ricketts, following Tsardakidis, was also required to turn to the shoulder to avoid the utility. (6) The offender continued to drive across the westbound lane and shoulder. Bruce attempted to avoid collision by turning into the shoulder of the road. The front driver's side of the offender's utility collided with the right side of Bruce's motor cycle. The impact caused the controls on the right side handle bar of Bruce's motor cycle to be stripped from the handle bar. (7) The utility impacted heavily with Bruce. He was thrown about five metres from his motor cycle. He fell onto the grass shoulder at the side of the road against the cyclone fence of the property on Coreen Avenue. (8) Bruce's motor cycle came to rest across the kerb between the paved shoulder and the grass at the side of the road. (9) The offender's utility mounted the kerb on the side of the westbound lane of the road, continued about 34 metres across a grassed area and collided with the cyclone fence and gate of the property on Coreen Avenue. (10) The offender exited the utility and walked in a south-easterly direction away from the collision scene. King exited the utility and remained near the vehicle. (11) A number of witnesses who observed the collision stopped to render assistance to Bruce and contacted emergency services. (12) Witnesses observed the offender leaving the scene and were able to give attending police a description of him. THE OFFENDER (13) Police located the offender walking along a side street about 200 metres from the location of the collision. The offender was unsteady on his feet and glassy-eyed. He appeared to be intoxicated. A blood alcohol breath test was administered with a negative result. (14) Police cautioned the offender and conducted an electronically recorded interview with him at the side of the road. (15) The offender told police that he was at his cousin's house nearby when he heard the collision. He said he knew the occupants of the vehicle as he engages them to work for him on occasions. He said that he had received a message from one of them known as "Chop" to say the vehicle had crashed. (16) The offender was arrested and conveyed to Nepean Hospital where blood and urine were taken. (17) The offender was then conveyed to Penrith Police Station where a formal demand for the details of the driver of the vehicle was made. He said that he was the driver. JOSHUA KING (18) Joshua King participated in an electronically recorded interview with the police. He said that he was looking at his phone before the collision. Police requested that he disclose the name of the driver of the utility. He told police that he knew the driver as Tobin. He had known him for a few years but did not know his first name. (19) He said that he had been a passenger in the offender's vehicle for ten to twenty minutes before the collision. The offender had driven during this time. During the journey, the offender stopped at a house and they both exited the vehicle and knocked on the door. No one responded and they continued the journey. King could not provide details of the location of the house. (20) King was observed to have suffered a mark and grazing on the left side of his neck and shoulder from impact with a seat belt during the collision. THE ROADWAY (21) The relevant part of Coreen Avenue is a straight level section of road with one lane in each direction divided by unbroken white painted lines. On the side of each lane, there is a painted fog line, a sealed bitumen shoulder and concrete kerb and guttering. The speed limit is 60 kilometres per hour. (22) At the time of the collision, there were a number of other vehicles travelling on Coreen Avenue, traffic was light to moderate, it was daylight and the weather was fine and dry. Visibility in the area was good. EXAMINATION OF VEHICLE AND SCENE (23) There were no scuff or skid marks made by the utility's tyres immediately before the point of collision indicating that the offender did not break harshly or make a sudden change of direction to attempt to avoid collision. (24) Police examined the utility at the scene. It contained documents in the name of the offender. (25) The offender's vehicle had no mechanical defects which contributed to the collision. INJURY TO VICTIM (26) The victim was treated at the scene and then conveyed to Westmead Hospital. As a result of the collision, he had suffered a near complete amputation of his right leg at the level of his knee, an open book pelvic fracture, perineal and groin wounds, an open fracture of his right wrist, urethral injury and a tear of the anterior wall of his anal canal. (27) The victim also suffered an extensive fracture through the base of his skull and a fracture to his right zygomatic arch. He suffered minor bleeding in his brain. (28) The victim underwent a large number of surgical operations. His right leg was amputated above the knee. He had an open reduction and internal fixation of his pelvic fractures. Surgery to repair his wrist injury and a laparotomy and formation of an end-colostomy and stoma. (29) As a result of the collision, the victim suffered ongoing disability, the loss of his lower right leg, the near complete loss of the use of his right arm, urine leakage and the disruption of his anal sphincter mechanism. (30) The victim has subsequently required a number of medical and surgical procedures in relation to infection of his injuries. OFFENDER'S BLOOD AND URINE ANALYSIS (31) The offender's blood and urine samples were analysed. Dr Judith Pearl examined the results of the analysis and it is her opinion that at the time of the collision, the offender was under the influence of the combined effects of cocaine, MDMA, Clonazepam, Lorazepam and Phentermine primarily by central nervous system depression to the extent that there would have been significant impairment of his driving ability. (32) The level of cocaine and its metabolite benzoylecgonine suggests that the offender used cocaine within 12 hours of the blood sample but not within three to four hours of the sample. At the time of the collision, the offender was affected by rebound sedation due to withdrawal effects of the cocaine. (33) The level of MDMA in the offender's blood was above the reported toxic range. The offender had consumed an amount more than the usual dose, most likely within a few hours of the collision. MDMA use causes impairment of psychomotor functions important to driving ability including accuracy of response, risk-taking, perception of time and distance. It also causes excitability, anxiety, perceptual changes, thought disorder and heightened sensory awareness. (34) Clonazepam is a benzodiazepine drug. It is available on prescription under the brand name Rivotrial and is recommended for use in epilepsy. The level in the offender's blood sample was within the therapeutic range in a psychoactive active concentration. The drug has central nervous system depressive effects which impair driving related skills. (35) Lorazepam is a benzodiapine type prescription drug and is used in the treatment of anxiety and sometimes in association with depression. The level within the offender's blood sample was within the therapeutic range in a psychoactive concentration. The drug has central nervous system depressive effects such as drowsiness and confusion and can impair psychomotor skills required for safe driving for up to ten hours after a therapeutic dose. (36) Phentermine is an anorectic agent used in the short term treatment of obesity under medical supervision. The phentermine concentration in the offender's blood sample was above the therapeutic range suggesting he had used an excessive dose. The drug causes nervousness, tremor, confusion and possible hallucinations. OFFENDER'S LICENCE (37) At the time of the collision, the offender's licence, New South Wales Provisional P2 licence 15573718 was endorsed as "suspended" by Roads and Maritime Services from 4 April 2017 as a result of an extended demerit points loss suspension. The offender had been informed by police of the suspension on 21 April 2017."

PURPOSE OF SENTENCING s 52A(3)

The legislature has placed a premium upon the protection of road users and the causing of grievous bodily harm by dangerous driving. The need for general deterrence tends to outweigh considerations of remorse or rehabilitation. In R v Manok [2017] NSWCCA 232, Wilson J said at [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 it ordinarily outweighs the remorse or rehabilitation of an offender". [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".

S 52AB(2) FAIL TO STOP AND ASSIST

The purpose of the offence under s 52AB is two-fold. First, it emphasises the need for drivers involved in serious motor vehicle accidents to stop and provide assistance to anyone who was injured by at least contacting Emergency Services.
Secondly, it seeks to deter people from impeding a police investigation into an accident. If a driver in a serious motor vehicle accident flees, it may hinder police in their ability to collect the necessary evidence to discover the cause of the accident and to determine who is at fault as well as, if necessary, to lay charges against the driver or to issue fines.

OBJECTIVE SERIOUSNESS

The Crown submits that the offence falls within the mid-range of objective seriousness and relies upon what was said in R v Pullen [2018] NSWCCA 264 in that the accused fled the scene and at the time the accused fled the scene, he must have had actual knowledge that the victim had suffered significant injuries as a result of the collision which the Crown submits would have been evident from a heavy collision between the offender's vehicle and a motor cycle.
The Crown also submits that the offender was under the influence of drugs and alcohol at the time of the collision and his flight would have frustrated attempts by police to test his blood alcohol concentration in a timely manner, had he not been apprehended by police 200 metres away.
In Pullen at [47] it was stated that the seriousness of the offending would be greater in circumstances where a person knows that the victim has suffered grievous bodily harm or death. The Crown submits that the present case is such an example and submits that the present case may be distinguished from that of Pullen in circumstances where it may be expected that a heavy collision between a vehicle and a motor cycle will inevitably occasion grievous bodily harm to the motor cycle rider.
Although the offender gave a false account to the police in that he was at his cousin's house nearby when he heard the collision, I am not satisfied beyond reasonable doubt that the offender knew at the time of the offence, or before speaking to the police 200 metres from the location, that his driving had caused grievous bodily harm to the victim.
For this offence, the need for general deterrence and denunciation is of considerable importance. This is because failing to stop and assist in the event of a serious collision may result in unnecessary loss of life or the prolonging of suffering in circumstances where treatment for any injury sustained may be readily available.
In these circumstances severe punishments are warranted to deter drivers from fleeing from the event of a serious collision. This was a serious collision. I assess that the offence falls below the mid-range of objective seriousness.
The offence although committed after the collision represents a different facet of the offender's criminality. Failing to stop after a collision is an aggravating feature which I have taken into account in assessing the objective criminality of the s 52A offence.

AGGRAVATING FEATURES AND MORAL CULPABILITY

I have considered the guideline judgment of The Queen v Whyte [2002] 55 NSWLR 252. The guideline is not intended to be prescriptive. It represents a useful statement of principle to assist judges to ensure consistency of sentencing with respect to particular kinds of offences. Guidelines are, however, more significant in relation to offences such as dangerous driving which tends to produce inconsistent sentencing outcomes. A guideline judgment is not a tramline.

TYPICAL CHARACTERISTICS

Spigelman CJ at [204] identified the following characteristics of an offence under s 52A:

(i) Young offender.

The offender was aged 28 at the time of the offence.

(ii) Of good character with no or limited prior convictions.

The offender has a limited criminal history. He has an appalling driving history for someone of his age. His licence status has never progressed past that of P2. The offender's learner licence was issued on 2 January 2006. His history of traffic offences commenced with fine default suspension of his learner's licence on 17 July 2007 and continued with multiple offences being committed until the date of the collision on 9 July 2017. Included in that lengthy history are five drive whilst suspended and a drive whilst disqualified. The offender has failed to realise that the holding of a licence is a privilege and not a right. His driving history disentitles him to any leniency on sentence that would ordinarily be available to a first time offender. It shows a persistent and entrenched disregard for road rules.

(iii) Death or permanent injury to a single person.

There has been significant permanent injury occasioned to the victim.

(iv) The victim is a stranger.

The offender and the victim were unknown to each other.

(v) No or limited injury to the driver.

The offender did not suffer any injuries as a result of the collision.

(vi) Genuine remorse.

The offender has given sworn evidence before me and has indicated genuine remorse and contrition for his actions. He reported to Mr Sheehan, a forensic psychologist, that he expressed awareness of the full impact of his actions and did not seek to minimise the consequences. He said: "I've ruined his life, his whole family and their way of life all because of what I've done. I could've killed him. I think about it every day. I feel terrible. It's changed me. It's snapped me out of how reckless I was. I address my problems now, be more responsible, my decisions affect other people."
There were expressions of remorse and contrition also contained in the sentence assessment report dated 1 March 2009. I accept that those expressions of remorse and contrition are genuine.

(vii) Plea of guilty of limited utilitarian value.

The offender entered a plea of guilty in the Local Court and the Crown concedes quite rightly that the appropriate discount is one of 25%. Parliament has made clear in the maximum penalties for the offence conduct which causes death or grievous bodily harm even in the absence of any intention to cause such injury is to be regarded as a serious crime. In Whyte, Spigelman CJ set out at [216] a list of 11 aggravating factors which had been established in the authorities, and I will turn to them shortly.

THE NIGHT BEFORE

The offender had been out the night before the offences. He drank heavily and consumed a range of substances as indicated by his blood including cocaine, MDMA (which causes impairment of psychomotor functions important to driving ability), Clonazepam (central nervous system depressive effects which impair driving related skills), Lorazepam (central nervous system depressive effects and psychomotor skill effects which impair driving related skills), Phentermine and a large quantity of alcohol.
He returned home at 10.00pm where he took non-prescribed medications to assist him to get to sleep. He slept through the night and woke up feeling groggy. He said that in the afternoon he drove his vehicle to obtain some scaffolding material to prepare for the following day's work. He acknowledged that his licence was suspended, but told the psychologist that he thought it was reinstated at the time. There is no objective evidence to support such a statement from the offender.
The offender was driving whilst his licence was suspended and he was driving under the influence of the combined effects of drugs I have listed to the extent that there would have been significant impairment of his driving ability.

(i) Extent and nature of the injuries inflicted.

As set out in the agreed facts the victim suffered extensive injuries as a result of the collision. He underwent a large number of surgical operations following the collision and has subsequently required medical and surgical procedures in relation to infection of his injuries. Ongoing disability suffered by the victim is significant and include loss of his lower right leg, near complete loss of his right arm, urine leakage and disruption of his anal sphincter mechanism. He went for a Sunday motorcycle ride with a group of friends. A joyous moment turned into a nightmare and the victim now has substantial permanent injuries causing a serious adverse effect upon him.

(ii) Number of people at risk.

The victim was in a group of five, two of whom were placed at such risk that they had to take evasive action before the offender collided with the victim.

(iii) Degree of speed.

There is no evidence to suggest the offender was exceeding the speed.

(iv) Degree of intoxication or of substance abuse.

I have already set out under the heading 'The Night Before' the degree of substance abuse of the offender.

(v) Erratic or aggressive driving.

The offender's vehicle crossed to the incorrect side of a straight stretch of road over unbroken lines about 150 metres from the first rider in the group and remained on the incorrect side of the road and the first two riders of the group took evasive action until the collision. It is a serious matter for the driving of a vehicle onto the incorrect side of the road in the face of oncoming traffic. There can be no greater nightmare than for a driver to be faced with a vehicle coming onto the incorrect side of the road.

(vi) Competitive driving or showing off.

There is no evidence of that having occurred.

(vii) Length of journey during which others were exposed to risk.

The offender's vehicle crossed to the incorrect side of a straight stretch of road over unbroken lines when about 150 metres from the first rider of the group and remained on the incorrect side of the road whilst the first two riders of the group took evasive action until the collision with the victim. The offender's vehicle came to rest about 34 metres from the collision after continuing across a grassed area and colliding with the cyclone fence and gate of a property.

(x) Degree of sleep deprivation.

There is no evidence before me that these factors were relevant.

(xi) Failing to stop.

The offender's vehicle collided heavily with the victim's motorcycle and came to rest about 34 metres from the collision after continuing across a grassed area and colliding with the cycle fence and gate of a property. The offender exited the vehicle and walked away from the scene. He was located by police about 200 metres away and he was observed to be unsteady on his feet and glassy-eyed. He has also been charged with failing to stop and assist after impact causing grievous bodily harm.
In the above list of aggravating factors items iii to xi are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence.
The question a sentencer must ask is whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his conduct.
In my view to drive on the incorrect side of the roadway the offender has abandoned his responsibility and has done so by reason of that conduct.
The substance abuse undertaken by the offender made it dangerous for him to drive. He disregarded the rights of other road users. This was not a case of a momentary inattention or misjudgement. He should not have been behind the wheel. In taking into account items iii to xi I have formed the view that the offender abandoned responsibility for his conduct and his moral culpability for the offence was high. It was objectively serious.

SUBJECTIVE CIRCUMSTANCES

Mr Tobin was born and raised in Western Sydney. He described an unpleasant and traumatic experience of childhood. He described his father as a controlling and violent alcoholic who engaged in frequent domestic violence and emotional abuse. He reported that the police were called on numerous occasions to take his father away in response to domestic violence incidents. He reported being an unhappy and anxious child who entertained suicidal thoughts and he had an ambivalent relationship with his mother. He moved from the family home as soon as he was financially able to do at the age of 17 years. He attended St Patrick's High School in Blacktown, completing his Year 10 Certificate, age 16 years and he immediately commenced an apprenticeship as a bricklayer and achieved his full trade qualification in five years. He worked as a subcontractor until the age of 25 years after which he established his own company. The business has operated successfully since that time.
During his adult years he has tended to associate with peers who would encourage drug taking on weekends. His social and recreational activities have revolved around sports, gym and rugby league, and partying on Saturday nights as a release for pent-up tension. He reported having largely withdrawn from social activities since being charged with the current matters. His current partner is of four years, and they have a son together now aged two years. Mr Tobin's drug use and moodiness was a source of tension in the relationship prompting Mr Tobin's partner to encourage him to engage in a psychologist only months prior to the current offence.
He developed a pattern of going out one day per week traditionally on Saturday night and using MDMA and alcohol in increasing quantities. His tolerance increased and he introduced other stimulants such as cocaine in his weekend release. He started using off script benzodiazepines and adding psychotic medications to calm himself and achieve sleep after a night out. He ceased using substances immediately after his arrest for the current matters and reports to maintain abstinence with the exception of a single episode lapse in late 2017. He self-referred to the Hills Clinic at Kellyville where he engaged with a psychiatrist, Dr Wankhede, from 7 August 2017, who prescribed a range of medications. He maintained fortnightly contact for several months and then moving to monthly as his condition stabilised. He has been diagnosed as having a Polysubstance Use Disorder.
He told Mr Sheehan that he awoke immediately after the accident when his car collided with a pole. He said that he was confused and in shock. He said that he was unaware that he had hit the victim in this matter until sometime later when he was in the police cells.

PROSPECTS OF REHABILITATION

The sentencing assessment report has assessed the offender at a medium/low risk of reoffending. I view his prospect of rehabilitation with caution, although I do note that urine/drug analysis records ranging from 14 September 2018 to 1 February 2019 return negative readings for illicit substances. He has a supportive partner and a circle of friends and is currently attending sessions with a psychologist and has had assistance from a psychiatrist.

STATISTICS

Forty-five cases dealt with between January 2008 and June 2018 in relation to s 52A(3)(a). 71% received immediate terms of imprisonment. The most occurring sentence of imprisonment was 30 months. The most occurring non-parole period was 12 months. I am satisfied that the threshold in s 5 of the Crimes (Sentencing Procedure) Act has been crossed.

SPECIAL CIRCUMSTANCES

I find special circumstances for the following reasons: 1. The age of the offender at the time of the offence. 2. This will be the offender's first custodial sentence. 3. There are considerations of rehabilitation.
I am of the view that the offending requires an immediate term of imprisonment.

THE SENTENCE

I will impose an aggregate sentence. The sentences I will impose have already been discounted by 25%. There will be some degree of accumulation of count 2 upon count 1.

The aggregate sentence is three years.
The indicative sentence on count 1 is two and a half years (30 months).
The indicative sentence on count 2 is one and a half years (18 months).
I set a non-parole period of 12 months.

The sentence will commence today and the offender will eligible for parole on 7 March 2020 and the head sentence will expire on 7 March 2022.
I disqualify the offender from holding a licence for 12 months.

S 166 CERTIFICATE

In relation to the drive whilst suspended the maximum penalty for that offence is six months imprisonment. I impose six months imprisonment, and I make that concurrent with the other sentences of imprisonment that I have imposed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2019

At a glance

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Judgment (31 paragraphs)

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Cases Cited (2)