R v Weldon

District Court of NSW|2024-03-22

Solicitors: Office of The Director of Public Prosecutions (Crown) O'Brien Winter Partners (Offender) File Number(s): 2022/172083

JUDGMENT

The offender is before the court for two offences.
The first of those offences is an offence under s 52A(3)(c) of the Crimes Act, the offence of dangerous driving occasioning grievous bodily harm. The second offence is that under s 52AB(2) of the Crimes Act, the offence of failing to stop and assist in circumstances of causing grievous bodily harm.
Each offence attracts a maximum period in custody of 7 years and there are no standard non-parole periods for either offence. There is an automatic licence disqualification period of three years and a minimum disqualification period of 12 months for each offence.
The offender pleaded guilty on 5 July 2023. As a result of that early guilty plea, he is entitled to a discount of 25 per cent on the sentence I would otherwise have imposed.

Factual dispute

A court may not take facts into account in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. The offender bears the burden of proving on the balance of probabilities matters which are submitted in his favour or her favour. In some cases, it is not possible to ascertain everything that is relevant, especially where an offender chooses not to offer any evidence on the plea. Some disputed issues of fact cannot be resolved one way or the other.
I heard evidence today from Mr Tony Hiriaki who was with the offender during the afternoon that he had been at the Denman Hotel drinking with friends on 11 June 2022. He had been a member of the offender's party, seeing him on and off over the course of that afternoon, sometimes seeing him drinking and sometimes seeing him playing pool.
Importantly though for the matters before the court, his evidence was that he saw the offender at about 6.30am to 7.00am on the morning of 12 June 2022, that is, the morning after the incidents which are before the court. He gave evidence that he saw the offender sitting on the end of a bed at the home they were staying at near Denman. They discussed the incident briefly, but Mr Hiriaki's evidence was that the offender was largely silent. Mr Hiriaki's evidence was that he raised the need for the offender to immediately attend the police station about the incident. He said to him words to the effect of, "If you don't fucking go, I'm going to throw you down the stairs and fucking drag you there." Further, that he told the offender to take some identification to the police station. Mr Hiriaki's evidence was that he went to the police station with the offender in a car driven by a third person.
The Denman Police Station at that time was unmanned. Mr Hiriaki stated that he spoke to an officer at another station via intercom system and told them that they were at the Denman Station in connection with an incident that had happened around Rosemont Drive the night before. Mr Hiriaki's evidence was that he needed to say this to the officer because the offender was unable or unwilling to articulate a reason and was, in his words, mumbling. He stated they waited at Denman Police Station and eventually three police cars from Muswellbrook Police Station attended. His evidence was that he stood next to the offender while the offender spoke to the police, but he then later moved away and stood elsewhere.
That is a brief summary of the evidence that Mr Hiriaki has given.
Mr Weldon gave evidence this morning. He also gave evidence when the matter was first before the court. I will start by referring to the evidence he gave on 22 March 2024. This is at page 7 of the transcript, commencing at line 26, where he was asked this by his counsel, Ms Evers: Q. The following day did you attend the police station voluntarily? A. I did, yes. Q. To your knowledge, had anyone advised the police who had in fact been the driver? A. Not to my knowledge, no. Q. Why did you attend the police? A. Because it was the right thing to do, to present myself and own up to my actions. Q. How did you feel about what you'd done by leaving the scene? A. I was ashamed of myself, disgusted by what I'd done, absolutely mortified.
During cross-examination, he was asked this question at transcript page 14, commencing at line 45: Q. When you got back to where you were staying that evening, why didn't you contact the police there and then? A. I was terrified and I think - I knew what I done was absolutely horrific and by leaving I knew that I made it worse. Q. The next day you present to police and you were charged? A. Yes, correct. I don't think I was charged the following day, no. Q. Certainly the following day you bring to the authorities' attention that you were the driver involved in that collision? A. Correct.
Mr Weldon's evidence today was that, having spoken to his friend, Mr Power, upon him returning home after the incident, that it was made clear to him that he had no choice but to go to police and confess his involvement. His evidence today was that he had spoken to Mr Hiriaki and that he had no choice but to speak to police and intended to do so, but at the time that Mr Hiriaki spoke to him, early that morning, he had simply not acted upon that desire.
Mr Weldon's evidence was that at the time of the conversation with Mr Hiriaki his memory was hazy and that he felt a mix of emotions, including emotions of shame and guilt. His evidence was that while he spoke to Mr Hiriaki his decision to go to the police was not one that was made because he had spoken to Mr Hiriaki, but rather one that he had decided to do himself. In fact, in his recollection, while he had spoken to Mr Hiriaki, it was simply about the mechanism of how one goes about turning yourself in to police. His evidence was that Mr Hiriaki suggested that he do so in Maroubra in Sydney, where they lived, rather than in Denman.
The offender's evidence was that he attended the police station at Denman voluntarily and that he did so because he was ashamed, disgusted and mortified with his conduct.
Having heard the further evidence today, my conclusion is that both versions of Mr Weldon and Mr Hiriaki can sit together to a large degree. I accept Mr Weldon's evidence that he was in shock, that his memory was hazy, but that he knew what he had to do. However, the fact that his memory of these events was hazy, in his own words, does make me query how good his memory is of the events that he described in his evidence.
The reality is that at the time he had the conversation with Mr Hiriaki he had not gone to police. However, that is very different from not intending to do so. It is not surprising that upon learning of the incident and seeing the offender sitting on the bed that Mr Hiriaki confronted him about why he had not already gone to the police station.
I accept that Mr Hiriaki is telling the truth that he said something to the offender in order to get him motivated to go and speak to police there and then and not waiting any further. Given Mr Weldon's state of mind at the time, in my view, he has simply forgotten that Mr Hiriaki was the person who urged him to attend at that point in time. I accept that it was this action by Mr Hiriaki that got the offender moving. However, I also accept the evidence of the offender that Mr Hiriaki suggested going to police at Maroubra. In my view, this makes sense, as it was where they both lived and there was no reason why the offender would have that specific memory unless it was true. It does not assist him or detract from his evidence in any way. Mr Weldon's evidence on this point has the ring of truth. It also has the ring of truth that the offender spoke to Mr Hiriaki for advice, being that he was older and, unlike the offender, more likely to know Australian police procedure.
Ultimately, they went to Denman Police station. Once at Denman, there are different versions of who spoke to police and explained the situation. In this instance, I accept the offender spoke to police without prompting from Mr Hiriaki. I am not making that finding because I believe Mr Hiriaki is making things up; far from it. I found him to be an honest witness and there is no reason for him to lie. However, while being honest, I do not accept he was entirely accurate. I say this because of the body worn video that was tendered before the court.
The body worn video demonstrates that when they arrive at Denman, Mr Hiriaki and a friend were standing some distance away. It did not show him near the offender, contrary to the evidence that he gave in court. Instead, he was about 20 metres away. The impression Mr Hiriaki gave in his evidence was that not only did he effectively drag the offender to Denman, but that he then had to stand next to him while the offender spoke to police and made his confession. That recollection of events is inconsistent with the body worn video.
The body worn video demonstrates Mr Weldon standing by himself, talking to the two officers. The offender's demeanour appeared to be co-operative: he answered police questions and agreed to participate in the record of interview that was recorded at Muswellbrook sometime later that day. I did not see the presence of three police cars.
On that basis, my finding is that offender needed Mr Hiriaki to insist that he spoke to police immediately but, once committed to that course, he made full admissions regarding his involvement in the incident.

Facts

The offender was born on 19 June 1993, making him almost 29 years of age at the time this incident occurred. The victim was 20 years of age at that time. The offender, the victim and a mutual friend and others were visiting the Hunter Valley from Sydney over the weekend of 11 June 2022. The three men and their other friends attended at the Denman Hotel. Between 4.23pm and 8.37pm the offender was recorded on the hotel's closed-circuit television drinking what is described in the facts as eight and a half schooners, which I assume was beer. The facts are silent as to whether the offender was continuing to drink alcohol after 8.37pm, but the facts reveal that he remained at the hotel after that time, as an incident which is not described occurred later in the evening, but it resulted in the hotel staff asking him to leave. This occurred sometime between 10:00pm and 11:00pm.
The offender, the victim and their friend left the hotel and went to the carpark with the victim going to the driver's side door of the offender's Mitsubishi Colt motor vehicle. The offender said to him, "It's my car, give me the keys or I'll slap ya". The victim handed over the car keys to the offender. The offender got into the driver's seat. Their friend sat in the passenger's seat and both the offender and the friend fastened their seat belts. The victim did not.
The offender began driving the vehicle towards the farmhouse that they were staying at for the weekend. He was initially driving at what is described as a normal speed. However, he took a wrong turn and began to drive more recklessly, driving at about 75 kilometres per hour, which at the time was about 25 kilometres above the recommended speed limit for that portion of the road.
As he was driving, the offender approached a right-hand bend near a railway crossing. The car drifted to the left. It then left the roadway and drove into a ditch, at which point the offender lost control. The car hit three guide posts and a small warning sign, before mounting a raised bitumen section of the road, colliding with the front left side of a railway signal post. The car became airborne and collided with a small wire fence, landing upside down with such force that its front grille was torn off and the left front wheel ripped away.
The vehicle stopped 35 metres away from the end point of the skid mark from which it had left on the road. The victim was found about 30 metres from the car. These are the facts relevant to count 1.
A nearby resident heard the sound of the collision and called triple-0. As to the offender's friend, he got out of the car with just a cut to his nose; the offender was apparently uninjured. As fire and rescue services were arriving at the scene, the offender fled and returned to where they had been staying. His decision to leave the scene before police attended is count 2.
The victim was airlifted from the scene and taken to Royal North Shore Hospital. He suffered and continues to suffer a large number of injuries resulting from this incident. The most significant injuries was to his spinal cord, leading to his permanent paraplegia. The victim had a displaced shattered fractured right collar bone and fractures to his neck and back. He suffered a bilateral pulmonary contusion to his left and right ears, fractures to his sternum, a fracture to his clavicle and other lacerations. The victim is now paralysed from the chest down and requires ongoing 24-hour care. I appreciate that not all the injuries are relied upon to support the grievous bodily harm element of the offence. I have, however, listed the full extent of the injuries to illustrate they are varied and significant. Grievous bodily harm encapsulates a wide range of injuries, based on both seriousness and permanency. The injuries are significant.
As the offender was not on the scene at the time the emergency services arrived, his blood alcohol reading was not detected. Subsequent expert evidence estimates the offender's blood alcohol reading at the time of the incident would have been in the range of 0.148 grams per 100 mils and 200 grams per 100 mils, with the most likely blood alcohol calculation placing him around 0.174 grams, which would place him in the high range for PCA offences. The victim's blood alcohol reading was also taken and that was at 0.139 grams of alcohol in 100 mil of blood. That is in the mid-range for PCA offences.
The offender ultimately presented to Muswellbrook Police Station the following day and participated in an electronically recorded interview, where he admitted being the driver of the car and having been at the Denman Hotel for five hours before the incident. He admitted to drinking alcohol but told police he did not feel drunk. He also admitted leaving the scene of the collision before police arrived. I have also considered the fact that I have found that it was Mr Hiriaki who insisted that he speak to police that morning, but that, once committed to the course of doing so, he spoke to police willingly and co-operated and made admissions regarding his involvement in both count 1 and count 2.

Sentencing principles applicable to offence

There are certain sentencing principles applicable to an offence of this nature. In the case of R v Whyte (2002) 55 NSWLR 252 ('Whyte'), there is a guideline judgment for offences of dangerous driving under s 52A of the Crimes Act. There is no dispute as to its application in this case. In the judgment, the court said, at [204]: "A frequently recurring case of an offence under s 52A has 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 drive's intimates. 6. Genuine remorse. 7. A plea of guilty of limited utilitarian value."
Where the offence is of the character described above, his Honour former Chief Justice, Spigelman CJ, with whom the other members of the court agreed, said, at [214]: "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."
The Chief Justice also said, in reference to the "typical case" described above, at [229]: "Where the offender's moral culpability is high, a fulltime custodial head sentence of less than three years in a case of death and two years in the case of grievous bodily harm would not generally be appropriate."
The reference to "moral culpability" in these passages is now regraded as part of the objective seriousness of the offence. A number of factors were identified in Whyte which aggravate the objective seriousness of an offence. These are set out at [216] to [217] of the judgment, being: 1. The nature and extent 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 or aggressive driving. 6. Competitive driving or showing off. 7. Length of the journey during which others were exposed to the risk. 8. Ignoring warnings. 9. Escaping police pursuit. 10. Failing to stop.
The factors in the guideline judgment are not a checklist but merely describe a typical case. They do not circumscribe this Court's sentencing discretion. Further, the sentence noted in the guideline judgment is not a starting point nor is it prescriptive, but merely a guide post or reference for me as the sentencing judge.

Objective seriousness

The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. Applying the considerations of Whyte, I make the following observations and findings: 1. The offender was 29 years old, which I do not regard as making him a young offender. 2. The offender is a person of good character with no previous driving offences or other criminal offences. 3. The offending caused permanent injury to a single person who was known to the offender. 4. There were no injuries to the offender. 5. I accept that he has shown genuine remorse. 6. He has entered an early guilty plea, which entitles him to a discount of 25 per cent on his sentence.
With respect to the aggravating features referred to in Whyte, I note the following: 1. The injuries to the victim in this matter were life changing. 2. Three peoples' lives in the car were put at risk but no members of the public were put at risk. 3. The speed was 50 per cent higher than the speed limit at that time on that road, but at 75 kilometres per hour it would not be considered excessive. 4. There was a significant degree of intoxication, over three times the legal limit. 5. The length of the journey appears to be relatively short. 6. There was a failure to stop and render assistance but this is a discrete offence for which the offender has been prosecuted, so I am not going to take it into account as an aggravating consideration for count 1.
I have taken each of those matters into account in assessing the objective seriousness. Clearly one of the most significant aggravating features in this matter is the terrible lifechanging injuries sustained to the victim. Another critical consideration is the offender's blood alcohol reading.
With respect to the second offence, being the offender's failure to assist, the offender was clearly aware of the incident and his evidence was that he knew that there had been some injury sustained to his friend, although he did not know the extent of it. His evidence in court was that he believed he may have actually killed the victim and that he panicked and that he recognised running from the scene was something that he should not have done.
His conduct made it impossible for police to obtain a blood alcohol reading for him at the time and in the short term the police did not know who was responsible. His evidence demonstrated an awareness that by fleeing the scene he not only avoided arrest but avoided police taking a breath test and an accurate blood alcohol reading. However, I do note he did not leave the scene until he was aware that emergency services were on their way and that the other passenger in the car was remaining on the scene. Those facts mitigate his conduct.
It was submitted on his behalf by his counsel Ms Evers, that for reasons I will shortly detail, his moral culpability should be reduced but it does not reduce the objective criminality of his conduct. I place on the record that it is not required of me to actually place on a spectrum from less serious to most serious where this matter falls on a range of objective seriousness.

Aggravating features

I have considered s 21A subs 2 of the Crimes (Sentencing Procedure) Act and the aggravating features set out therein. The Crown does not press any of those features apply in this case, given that the considerations that may normally apply under that section have already been picked up in the guideline judgment to the degree they are relevant.

Subjective material

I will now deal with the subjective material which has been placed before the Court. Exhibit A includes several items relied upon by Mr Weldon. That includes a letter from a psychologist, Maria Leontios dated 29 March 2024. There is a pre-sentence psychological assessment report by Ms Paige Cornell dated 28 August 2023. There is an apology letter by Mr Weldon. There is a letter to the Court by Mr Zane Biddell, who is the victim. There are a series of character references including from Marion Glover, Katie Parry, Cian Lynch, Jane Watson and Reece Williams. There is also a letter from the Maroubra Medical Centre and a letter from Mr John Keogh.
There was also a series of other documents provided to the Court which forms part of exhibit C, tendered today. They are a further letter from Mr Keogh, a letter from Jane Watson, another report from the psychologist, a letter from Ellie Hannoun, and a letter from a person at Alcoholics Anonymous.
I have also taken into account the Sentencing Assessment Report that was provided to the Court which was written on 20 March 2024 as well as a report by Dr Christopher Lennings which was tendered on the offender's behalf on the last occasion as exhibit 4.
The offender also gave evidence in court. He expressed his remorse for his conduct on the night and described his actions in fleeing the scene, as being a combination of fear and cowardice in the context of him fleeing from the scene.
He described the devastating effect that this incident has had on the victim. He spoke of his recognition of the fact that he had a significant problem with alcohol and had taken steps to deal with it, including abstaining from drinking, attending Alcoholics Anonymous meetings and also a psychologist. His decision to stop drinking alcohol started in December 2023. He began seeking treatment with a psychologist on 10 February 2024 and attended his second Alcoholics Anonymous meeting at the time this matter was first before the Court.
All of this positive conduct appeared 18 months after the offence and shortly before the matter was listed for a hearing on 22 March 2024. I indicated some cynicism about this to the parties when the matter was before the Court. However, I note that the offender has continued this treatment, as demonstrated by exhibit C. He continues to attend Alcoholics Anonymous meetings and now has a role of responsibility with that organisation in his local area. He has also continued to see his psychologist who he has now seen her 22 occasions. He is to be congratulated for this commitment to his rehabilitation.
The offender gave evidence that he was employed and a further letter was placed before the Court which forms part of exhibit C which states that he has recently been promoted and is now in the role of being a site supervisor, managing eight staff members.
Mr Weldon, in my view, gave powerful and truthful evidence. He recognised the seriousness of his conduct and did not seek to downplay it. He recognises the lifelong and tragic outcome that he has inflicted on his friend, the victim in this matter. I accept the expressions of remorse for the victim and his expression of remorse in committing these offences.

Report from Ms Paige Cornell, Psychologist

The offender also called evidence from his friend John Power who is his flatmate. Mr Power spoke of the offender struggling with alcohol for some time prior to this incident occurring and to the offender frequently drinking too much alcohol. He spoke of the offender feeling suicidal after the event and that he too had noticed the offender had taken steps to improve his life, including abstaining from alcohol.
The report from Ms Paige Cornell, psychologist, is important. It sets out some of the background of the offender. He was born in Ireland and was an only child. His parents separated when he was young and his mother re-partnered a few years later. The offender's stepfather lived with them for a short time but they also later separated.
The offender noted that his birth father struggled with problematic alcohol use which resulted in him being unpredictable and inconsistent in his conduct. His father often unexpectedly arrived at the house and would verbally abuse his mother. The offender reported feeling scared of his father and stood up to him at around the age of 14 in order to protect his mother. The offender and his father had minimal contact until his father died in 2018. The offender recalled blaming himself for his father's behaviour.
The offender spoke highly of his mother and had a close bond with her. He reported that they were financially disadvantaged and lived in social housing. He said to the psychologist that his mother would work two to three jobs at a time and that she would be out of home for long periods and that that led him to be particularly self-sufficient and also caring for his stepsister. Except for his father, the offender did not describe a family history of substance abuse, criminal behaviour or mental health difficulties.
He completed high school and continued to college and studied construction management for a year. He found that the transition from his earlier education which had been taught in Irish to being taught in English in the post-school education somewhat difficult. He did not complete that course but instead undertook a course in sports management. He started working full-time at around the age of 19 or 20.
He moved to Australia for a fresh start. The offender reported that he is now settled in Australia and plans to stay here. He reported his employment had been terminated a few times in Australia due to poor work performance and nonattendance, associated with his problematic alcohol use.
The offender stated that he first drank alcohol at 14 and would drink every few weeks with friends. At around the age of 17 he would binge drink "a fair bit", although he perceived it was in accordance with cultural norms. At around the age of 25 when his father died, his frequency of alcohol use increased to daily. He reported drinking around 13 standard drinks per weekday which increased on the weekend. When his father died in 2018, he reported drinking persistently throughout the weekends. The offender identified that he was using alcohol to manage his emotional state. The offender reported he intended to reduce his alcohol when he moved to Australia but, rather than being able to reduce it, he in fact drank more. He reported drinking approximately ten standard drinks per day on weekdays and up to 30 drinks per day on weekends.
The offender explained that the two people he was with on 11 June 2022, the victim and their friend, were friends he had made at a pub in Sydney during late 2021. The psychologist's report stated: "Mr Weldon explained that he would not typically drive after drinking alcohol, though he felt he had no option in this case due to a lack of other transport options in the area."
It is worth remembering here that the offender had insisted on driving in circumstances where the victim had indicated he could drive.
The offender acknowledged that his use of alcohol was problematic. He reported he would often not attend work due to being affected by alcohol. His friends would complain that he was hard to deal with when he was intoxicated, and he believes himself that he was a nuisance and tended to say stupid things and become more impulsive. He told the psychologist, Ms Cornell, that he was offered assistance by his mother and friends to address his alcohol use, but he refused these offers.
The offender reported ceasing alcohol use approximately seven weeks prior to being interviewed by Ms Cornell. He apparently had one lapse the week before the interview which he claims provided further motivation for him to remain abstinent. The offender described himself to the psychologist as a shy person and that he typically used alcohol to make friends and to be a different version of himself. He stated that he feels terrible that he was responsible for the harm that he caused to the victim. In the psychologist's opinion, he demonstrated significant remorse and a comprehensive understanding of the significant and life-altering impacts the victim will experience and has experienced as a result of this tragic scenario. He stated that he is now trying to do his best by taking responsibility and owning up to his actions.
The offender reported symptoms associated with anxiety, depression and post-traumatic stress disorder, in the view of the psychologist. He noted his mental health deteriorating after the death of his father and even further deteriorating after the death of a friend in Ireland. Prior to moving to Australia, he reported that his friends and family would often, in his words, "walk on eggshells" around him and were constantly checking up on him. He found this difficult to manage. After moving to Australia, he was able to avoid his negative emotions, as his peers were unaware of his history.
He reported witnessing a fatal car crash in his early twenties. He also reported experiencing some post-traumatic stress type symptoms that was further exacerbated following this incident. The offender reported drinking more frequently and heavily following the incident. His psychological wellbeing has, apparently, deteriorated significantly, in the opinion of the psychologist. This impacted his functioning and interpersonal relationships, concentration and performance at work and further impacting the quality of his sleep. He reported experiencing psychosomatic symptoms such as chest pains, likening the experience to a heart attack. He also reported experiencing increased anxiety and hypervigilance in social situations. He further reports experiencing distressing dreams associated with the incident, as well as intrusive memories of the event, resulting in him feeling as though the incident were reoccurring.
Ms Cornell concluded that the offender meets the criteria for a Major Depressive Disorder and Alcohol Use Disorder from approximately 2018, including at the time this incident occurred. Ms Cornell stated that because of his poor coping with these depressive symptoms, the offender developed a problematic pattern of alcohol use, ultimately leading to an untreated alcohol use disorder. She refers to the offender demonstrating a deterioration in his functioning over years prior to the offences due to poor coping with the loss of his father and also the major depressive disorder which he had at the time. She found that he has struggled to regulate and manage these feelings, resulting in the avoidance of those feelings by the use of his alcohol.
Ms Cornell found these conditions led to the offender's decision to drive under the influence, driving recklessly and to flee the scene of the incident. She said this happened in the context of disinhibition associated with alcohol intoxication and impulsive decision-making without consideration for the consequences of his actions. Ms Cornell states that his actions also need to be understood in the context of experiences of bullying, social difficulties and a history of engaging in behaviours motivated by the desire to be accepted by his peers. The operation of his offending is by way of poor decision-making, wanting to be perceived positively by his peers, alcohol intoxication and a lack of consequential reasoning.
These factors, in the opinion of Ms Cornell, are superimposed on a greater functioning issue associated with poor mental health status. It is her opinion that the offences occurred because of an alcohol use disorder in the context of unresolved grief and a major depressive disorder. She concluded that his mental health condition would deteriorate significantly if he was admitted into custody due to the separation from his supports and exposure to harsh custodial conditions. She stated that the offender has a history of suicidal ideation which is likely to be exacerbated in custody.
Ms Cornell also concluded that the offender will profit from treatment and benefit from understanding his symptoms and the development of effective coping strategies. She noted that he has good family support and generally engages in prosocial lifestyle and that he was motivated to engage in treatment. I will return to those conclusions shortly.
With respect to the report from the psychologist Maria Leontios, Ms Leontios began seeing the offender in order to address his anxiety, depression and grief. In her view he was committed to continuing the counselling and this has been demonstrated by the fact that he has continued to see her up to date. He has now seen Ms Leontios 22 times.
The Court was also provided with a report from psychologist Dr Lennings dated 26 March 2024. This report addressed the issue of delay between the offence and the offender taking steps to actually stop drinking permanently, engaging with Alcoholics Anonymous and a psychologist. Dr Lennings report states that people with substance abuse issues often take a significant amount of time before seeking treatment and that some people in fact never do. He concluded that the offender's delay in seeking treatment was neither unusual nor unexpected.
I accept that evidence, but it also seems to the Court that the biggest motivator in the offender deciding to deal with his alcohol abuse problem was not the fact that his drink driving had rendered his friend a paraplegic but rather his impending sentence date.
The letters placed before the Court demonstrate that the offender is someone who has struggled with alcohol in the past but who is now taking responsibility for his problem. It seems obvious that the offender's problematic drinking was well known to his family and friends. I note that the authors of the psychological reports were not called to court for cross-examination and that there was no submission made that I should reject their findings.
The Court also had before it the Sentencing Assessment Report dated 20 March 2024. It described the offender as someone who is a low risk of reoffending and as someone who is suitable for community service work of up to 21 hours a month.
I regard the offender's subjective case and mental health issues as supporting the amelioration of sentence and lessening moral culpability.

Mitigating factors

With respect to the mitigating factors set out at s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, I accept that he is a person who has good prospects of rehabilitation, particularly if he continues to abstain from alcohol. He is remorseful. I have considered the fact that he has pleaded guilty. Of some significance, given the nature of the charges, he has no prior criminal history, nor any road traffic offences.
I note that in accordance with s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999, in determining the appropriate sentence for an offence, self-induced intoxication of an offender at the time of the offence is not to be considered as a mitigating factor.

Mental illness

An offender's mental illness may be relevant on sentence. Where there is a causal connection established, mental illness may affect both the assessment of moral culpability and objective seriousness. The nature of the impairment, the nature of the circumstances of the offence and the degree of the connection must all be considered. I have taken the offender's mental health into account as part of his strong subjective case and to better understand why it was that he found himself to be an alcohol abuser.
I accept that it would make a custodial sentence harsher, but I do not find that it reduces the importance of specific or general deterrence. Specific deterrence remains of high importance because the offender must understand the connection between his alcohol abuse and the incident. I also do not find that it reduced general deterrence. Sentences such as the one I am about to impose are important reminders to the community at large that drink driving is a crime and it would make no sense for a sentence to be mitigated because the offender suffers from depression which he has self-medicated through alcohol, the very thing that has caused the incident to occur.
The offender's moral culpability includes consideration of his personal circumstances, including circumstances which may affect his capacity to reason, appreciate the wrongfulness of his actions or control his conduct. Ms Cornell's report makes it clear that the offender was out drinking with two friends who collectively made the decision not only to drive in the offender's car to the hotel but to then drive it back to the house while intoxicated, believing, as the offender told Ms Cornell, that they had little option to do, given the limited transport in the area. The offender arrived at the hotel at 4.30pm. He had drunk at least eight schooners, potentially more, and was asked to leave the pub for some unspecified reason at about a time when he had a blood alcohol concentration of approximately 0.174.
There are occasions where matters personal to an offender may impact on the assessment of objective gravity of the offence, but those occasions require more than a simple or indirect causal connection between the relevant subjective feature of the case and the offending. The argument put by the offender here is that he had a deprived childhood, major depression and alcohol dependence which led to the offending. Whilst I accept this had an impact on his moral culpability, I am unable to accept that it reduces the objective seriousness of his criminality. The offence at s 52A(3)(a) of the Crimes Act is a consequence-driven offence with no mental element. I do not accept that the decision to drink and drive was a reflection of childhood deprivation or any mental health issues. To accept such a proposition in circumstances where the offence has been made more objectively serious because of his high level of intoxication would be inconsistent, in my view, with the decision of Whyte.

Rehabilitation

Rehabilitation is a central issue in this matter. The offender must remain ready to engage with treatment. Based on his conduct since December 2023, his attendance at Alcoholics Anonymous meetings and with the psychologist Ms Leontios, he has, in my view, good prospects of rehabilitation. The evidence before the Court demonstrates that once he put his mind to it, he has been able to deal with the alcohol abuse issues and I note that he has continued to attend those meetings up to date.
I have also taken into account the various comparable cases and JIRS statistics provided to the Court by Ms Evers. I have considered them, but I note the sample sizes are particularly small and, as the parties accepted, statistics are a blunt tool as they say nothing about the objective criminality or the subjective features of the particular offender. I do note though, that the JIRS sentencing statistics indicate that for all offenders who committed offences under s 52A(3)(c), that is the dangerous driving occasioning grievous bodily harm, of the 49 cases recorded since September 2018, 2% of those cases received community correction orders, 43% received intensive correction orders and 55% full-time custody. The figure for people receiving an intensive correction order is higher when those people with no prior record. The figure rises to 53%, but the sample is only 17.
I have also had consideration to the 12 comparable cases referred to the Court, by Ms Evers, but I will not set them out in detail.

Totality

When there is more than one offence, questions of accumulation and concurrency and the question of totality must be given effect. In the exercise of totality, I take into consideration the degree of connection between the offending, both in time and type, but I am very conscious that there are two discrete offences here and both require discrete punishment.

Victim Impact Statement

I have also taken into account the victim impact statement that was provided in this case by the victim. The victim impact statement and the accompanying photos were powerful evidence before the Court. The letter from Mr Biddell set out the ongoing devastation this incident has brought to him. To his credit, he ends his letter with the statement that he does not have any ill feelings towards anyone stemming from this incident. I note that the fact that Mr Biddell bears no grudge towards the offender is not relevant to the determination of sentence. The victim impact statement is a matter I have taken into account via s 3A(g) of the Crimes (Sentencing Procedure) Act.

Determination

I am conscious of the statement in Whyte that a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of someone who has demonstrated momentary inattention or misjudgement. Although Ms Evers submitted that the offender's conduct could fall into that category, I do not accept that submission. This conduct was more than momentary inattention or misjudgement.
Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate pursuant to s 5(1) of the Crimes (Sentencing Procedure) Act. Ms Evers, also accepted that the s 5 threshold had been crossed.
Ms Evers submitted that the rehabilitation of the offender is critical and that having now commenced the process of trying to live without drinking and abusing alcohol, a disruption of the regime of rehabilitation he has commenced via the combination of Alcoholics Anonymous meetings and sessions with his psychologist would occur if I was to impose a full-time custodial sentence. Ms Evers' submission was that, having commenced the path of rehabilitation, a full-time custodial sentence would risk throwing that good work away.
There is clearly a tension between the considerations in s 3A of the Crimes (Sentencing Procedure) Act between rehabilitation and general deterrence. Both are of critical importance in this matter. The offender has had the benefit of an extra period between the first sentencing hearing and today, and he continues to participate in his rehabilitation, and he has continued to do so, which is to his significant credit.
I have considered s 66(1) of the Crimes (Sentencing Procedure) Act and given paramount consideration to the question of community safety. When considering community safety, the Court must assess whether the making of an order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending, as per s 66(2). The sentencing court is to assess the possible impacts of an ICO or full-time imprisonment on the offender's risk of re-offending, to look forward to the future possible impacts of an ICO or full-time imprisonment. I adopt the forward-looking approach referred to with respect to community safety referring to in the joint judgment of the High Court in Stanley v Director of Public Prosecutions [2023] HCA and the assessment of community safety as the paramount consideration, together with the subordinate considerations in s 66(3) of the Crimes (Sentencing Procedure) Act.
Given the particular issues I have outlined regarding the offender's alcohol abuse and the steps he has already taken to address them in the community, I accept Ms Evers' submission that serving the sentence by way of full-time detention is unlikely to address his risk of re-offending and will in fact interrupt that rehabilitation he has undertaken. In my view, community safety will be enhanced by having the offender in the community, working and sober. I am satisfied that the risk of the offender reoffending in a manner such as this may affect community safety, community safety will be improved by his rehabilitation being completed.
In my view, community safety would be better reduced by the imposition of an intensive correction order rather than full-time imprisonment because he is now seeking treatment for his alcohol abuse. He has good prospects of rehabilitation and he is unlikely to be before the Court again. Critically, he is employed, and he has prosocial relationships. All of those matters are of the utmost importance to the Court. However, I do intend to place conditions on the offender which are designed to ensure his ongoing rehabilitation and the protection of the community.
One of the orders I am going to impose is a curfew. I am going to do this for two reasons. Firstly, because the curfew will limit to some degree the offender's ability to attend licensed premises for long hours and be tempted to drink any alcohol. Secondly, because I want it to act as a reminder for as long as it is in force that, but for the fact that he has begun seeking help for his alcohol abuse and for the persuasive advocacy of Ms Evers on this point, he would have been serving a period of time actually in gaol.
The indicative sentences I would impose are as follows: 1. For the offence of dangerous driving occasioning grievous bodily harm, a period of two years and eight months imprisonment, discounted by 25% for the plea of guilty, leaving a total term of two years. 2. With respect to count 2, the offence of failing to stop and assist after vehicle impact occasioning grievous bodily harm, I nominate a sentence of 12 months, discounted by 25% for the plea of guilty, leaving a total term of nine months. 3. I intend to impose an aggregate sentence of two years and four months. I will order that the sentence be served by way of an intensive correction order with a series of conditions attached to it.

ORDERS

I make the following orders: 1. The offender is convicted of each of the two offences before the Court. 2. With respect to the disqualification period for driving, you are disqualified from driving for a period of 18 months for each offence. 3. There being no other appropriate penalty, you are sentenced to an aggregate term of imprisonment for a period of 2 years and 4 months pursuant to s 53A of the Crimes (Sentencing Procedure) Act. 4. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act, the sentence imposed upon you is to be served by way of an intensive correction order. The sentence will commence today, 19 July 2024, and end on 18 November 2026. 5. You must attend the Sydney City Community Corrections office within seven days. 6. The standard conditions of this order will apply: 1. You must not commit any offence. 2. You must submit to supervision and guidance of the Community Corrections service for as long as that service deems necessary or desirable but not exceeding the period of the term of this order I have placed upon you. You are to obey all reasonable directions of that service, including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis whilst under its supervision and guidance. 1. The following additional conditions will apply: 1. There is a curfew which will apply between the hours of 9pm and 5am each day for a period of 6 months, commencing today, expiring 18 January 2025. You must be at your home during those hours except on evenings where you are attending Alcoholics Anonymous meetings. 2. You are to perform community service for 200 hours. 3. You are to abstain from alcohol. 4. You are to abstain from any prohibited or restricted drugs or substances except for medication lawfully prescribed to you by a registered medical practitioner. 5. You are to continue your counselling services with Ms Leontios (or an alternative psychologist) for as long as those psychologists deem it necessary and at a frequency determined by them for either the term this order is in place or for as long as they consider necessary. Mr Weldon, let me make this very clear to you. If you fail to comply with any of the terms of this order, further sanctions may be imposed upon you by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, they may include more stringent conditions or it may include the revocation of this order. If this order is revoked, you may be required to serve all or some of this term of custody in gaol.

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: 30 July 2024

At a glance

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Judgment (18 paragraphs)

Parties

Cases Cited (2)

Cited By (1)