The Offence
6 In the early hours of the morning of 23 November 2001, the applicant drove an unregistered and uninsured Ford Falcon vehicle bearing cancelled New South Wales registration plates along Wellington Road, South Granville. The vehicle's registration had expired on 1 October 2001. The applicant did not hold a motor driver's licence, his licence having been cancelled on 19 September 1998.
7 The applicant drove up behind another car, causing the other driver to move into the left part of the lane. The applicant then overtook that other car by driving over double unbroken separation lines onto the incorrect side of the road. The applicant then swerved back onto the correct side of the road at high speed, his car fishtailed, he lost control and swerved back onto the incorrect side of the road, then off the road and into a tree.
8 There were two passengers in the applicant's car. The applicant and his passengers were trapped in the car until released by rescue service. The front nearside passenger, Mr Tiu Kalolo, aged 37 years, required surgical intervention for fractures occasioned to his left forearm and left leg.
9 The applicant was conveyed to Westmead Hospital where a blood alcohol sample was obtained. That sample was analysed and returned a blood alcohol concentration of 0.281 grammes of alcohol in 100 millilitres of blood. To constitute a circumstance of aggravation for the purposes of s 52A of the Crimes Act 1900, the prescribed concentration of alcohol means a concentration of 0.15 grammes or more of alcohol in 100 millilitres of blood: section 52A(9). Accordingly, the applicant's blood alcohol concentration was approaching double the level required to constitute a circumstance of aggravation.
10 It was not until 15 May 2002 that the applicant was arrested and conveyed to the Merrylands Police Station, where he participated in an electronically recorded interview. Given the issues raised in the present application, it is appropriate to refer to some of the responses provided by the applicant to police during that interview. He said that he had just had a couple of glasses of beer to drink prior to the accident (Q&A 29, 29, 64, 100). He considered that he was in a fit state to drive (Q&A 105). He said that he had owned the car for a few months (Q&A 140) and that he had paid $50 for it (Q&A 127). He said that he called his car "The Devil Car" because it had a "mind of its own", "for some reason it would want to spin out", it would "decide to turn right or the back-end would decide to slide" (Q&A 165-171). He said that he did not have the car checked out but had a look all around it himself, because he was a mechanic, although not a qualified one (Q&A 172-175). He was aware that he did not have a current driver's licence at the time of the accident (Q&A 109-113). He said that he thought that the car was registered at the time (Q&A 116). He said that he was aware that he had incorrect number plates on the car (Q&A 117). He said that he had been driving slowly on or under the speed limit prior to the accident (Q&A 78-80, 85, 89). He said that there were no other cars on the road and he did not overtake any other car (Q&A 147-149). He stated that he thought the accident was caused by the ball joint on the front of the car breaking (Q&A 16, 151-154, 160-162, 178).