The Queen v Angel

The Facts

1. At the time of the accident on 10 March 2019, the Offender held a P2 provisional drivers licence.
2. At all relevant times the Offender was friends with Presley Misak, born 9 February 1999.
3. During the afternoon of 10 March 2019 Mr Misak was at home at Watanobbi drinking with Jayden Jackson (born 28 January 2000) and Callum Dolbel (born 27 November 1999). Sometime after 3:00pm Jayden's brother Alaxzanda Jackson (born 5 December 1996) joined the three men at Mr Misak's home. I shall refer to the Jackson brothers by their first names. No disrespect is intended.
4. Mr Misak had arranged for the Offender to give the 4 men a lift to the Florida Beach Bar at Terrigal. Between 5 and 5:30pm the Offender arrived and the men got into his car. Alaxzanda was in the front passenger seat, Mr Misak was seated behind him, Jayden was in the rear middle seat and Mr Dolbel was seated behind the Offender.
5. The Offender drove from Watanobbi, through Wyong, before stopping at a BWS store. Jayden got out of the vehicle and purchased a 4-pack of Wild Turkey, which is a beverage containing bourbon whiskey. He did not put his seatbelt on when he returned to the vehicle. At some point during the journey Mr Dolbel took his seatbelt off to remove his shirt.
6. The Offender then drove on to Tuggerah and then towards Mingara. That is where the dangerous driving commenced. The Offender started driving in excess of a safe speed, taking corners without braking and swerving between lanes. The Offender then stopped the car very quickly and began revving its engine. Jayden told the Offender that what he was doing was unnecessary and to stop being an idiot. The Offender asserts that he did not hear this being said by Jayden.
7. The Offender's vehicle was observed by a professional truck driver on Wyong Road swerving through traffic. The vehicle was observed to go through a roundabout at an excessive speed.
8. The vehicle proceeded down Hansens Road at about 68 km/h. The speed limit was 60 km/h. The Offender was laughing and started swerving from left to right. The tyres went onto the grass and the Offender pulled the car back onto the road. The Offender lost control of the vehicle and swerved to the right. He pulled the handbrake up and the car rolled 3 times.
9. Simon Totnjian, a resident of Hansens Road, heard the car screeching and the ABS activate. He observed the car impact with a tree stump on the side of the road and a body fall out of the car onto the road surface.
10. Residents came out and called emergency services. The Offender was heard saying "I've killed my mates, I've killed my mates".
11. Alaxzanda got out of the car and found his brother Jayden lying on the road. He could not see Mr Dolbel or Mr Misak. Alaxzanda lay down on the road next to Jayden.
12. Paramedics arrived and found the car engine was still running. The car was turned off and paramedics then assessed the passengers. Mr Dolbel was found under the car from the waist down, but was not trapped. Mr Misak was lying in a ditch near the road.
13. Jayden and Mr Dolbel were transported to hospital by ambulance.
14. The paramedics determined that the Offender had no apparent injuries. He told the paramedics that he had been driving when he was distracted by the passengers. He said that he turned around to tell them to be quiet and that he lost control of the vehicle.
15. Jayden suffered the following injuries: 1. C6/7 fracture/dislocation; 2. 3 column fracture dislocations at the level of C7 with a shear & fracture of the anterior superior C7 vertebral body, requiring surgical fixation; 3. right knee dislocation, requiring reconstruction; and 4. the development of right knee septic arthritis at a later stage.
16. Jayden is an incomplete quadriplegic. As at 6 April 2019, Jayden had undergone one surgical operation to his neck and 6 to his right knee. As at 6 May 2019, Jayden was residing at the Royal Rehabilitation Centre at Ryde. He was reliant upon a wheelchair, had a neurogenic bladder and required full nursing assistance, including for bowel care.
17. Mr Dolbel suffered the following injuries: 1. multiple fractures to his jaw; 2. a right sacroiliac joint disruption affecting his pelvis; 3. multiple pelvic fractures; 4. a fracture to the right femoral shaft; and 5. a compression fracture to the L5 vertebra.
18. Mr Dolbel underwent surgery to insert a nail into his leg.
19. Mr Misak suffered the following injuries: 1. a right clavicular fracture; 2. a fracture to the left ring finger; and 3. a tear to his anterior cruciate ligament.
20. He underwent a reconstruction of his anterior cruciate ligament requiring a graft, which was taken from his hamstring.
21. Alaxzanda suffered the following injuries: 1. an undisplaced superior end plate fracture at C7; and 2. a tear to his right ear lobe.
22. The police investigation of the scene of the accident discovered tyre marks which commenced on the gravel shoulder, traversed the grass nature strip before returning to the roadway. These tyre marks were located 70 m from the final resting place of the vehicle. Tyre marks on the road started 25 m from the vehicle and continued to the edge of the road. Scrape marks were observed on the road 3 metres from the final resting place of the vehicle.
23. The vehicle was mechanically examined, and there were no faults or defects identified as contributing factors.
24. On 12 April 2019, the Offender was interviewed by the police during which time he admitted driving the vehicle on the day the accident. He told the police that the radio was on and everyone in the car was talking. He said that he was talking to the passengers and was not concentrating properly. He told police that he gone out two nights earlier and had consumed cocaine.
25. A sample of blood taken from the Offender at 9:15pm on the night of the crash identified the following: 1. <0.01 mg/L of MDA; 2. 0.07mg/L of MDMA; and 3. 0.27g benzoylecgonine, a chemical created by the metabolism of cocaine.
26. Dr Perl, an expert pharmacologist, considered the blood test results and was unable to conclude beyond a reasonable doubt that, at the time of driving, the Offender was under the influence of the drugs detected in his blood to an extent that there would have been impairment of his driving ability.
27. Those are the facts agreed between the parties.
28. In addition to the Agreed Facts, the Crown tendered a map showing the journey taken over an estimated distance of 20 km. The relevant section of that journey, from Mingara to Hansens Road at Tumbi Umbi, was said to be a distance of 2.6 km.

Additional Evidence RE Impact on Victims

1. In addition to the material contained in the Agreed Facts, medical evidence was tendered in relation Jayden, Alaxzanda and Mr Dolbel (Exhibit B).
2. In relation to Jayden, the additional evidence disclosed the following: 1. he was admitted to Royal North Shore Hospital on 10 March 2019 (the day of the accident) and discharged on 6 May 2019; 2. the Hospital Discharge Summary included the following information; 1. he sustained a C6/7 fracture dislocation with spinal cord injury and a right knee dislocation; 2. he was intubated at the scene for respiratory failure; 3. his admission to hospital was complicated by septic arthritis of the right knee; and 4. following discharge, he required follow-up consultations with the neurosurgery and orthopaedic teams; 1. he was resident at the Royal rehabilitation Centre at Ryde for the period 6 May to 5 September 2019. On 19 June 2019 he was transferred back to the Royal North Shore Hospital for treatments of fevers, rigors, temporal headaches, photophobia and neck stiffness. A trial of self-catheterisation commenced on 8 August 2019; 2. after discharge from the Royal Rehabilitation Centre he attended a number of outpatient clinics and sought treatment from a number of other specialists; and 3. included in Exhibit B is a letter from his general practitioner dated 26 August 2020 confirming that Jayden is an incomplete quadriplegic, following a severely dislocated spinal cord injury. He is wheelchair-bound. The injury affects both his upper and lower limbs. He has no power in either the left or right hands and no movements at all in his legs. The GP referred to the fact that the injuries have affected his mental health.
3. The summary of records in relation to Mr Dolbel demonstrated the following: 1. he was an inpatient at the John Hunter Hospital from 10 March until 23 March 2019; 2. emergency surgery was performed; 3. he was transferred to the intensive care unit, primarily as a result of respiratory distress; 4. he was regularly taking Endone to manage pain; 5. it was necessary to puree food for consumption until soft foods could be introduced from 18 March 2019; 6. on 23 March 2019 he was transferred to Gosford Hospital before being discharged home in April; and 7. he has attended a number of outpatient clinics at the John Hunter Hospital.
4. Additional evidence in relation to Alaxzanda revealed the following: 1. on 22 July 2019 he consulted Dr Pothala, psychiatrist of the Berkeley Vale Private Hospital. At that time he was taking a number of medications to treat his mental health. He reported a slight improvement in his mood and anxiety but, according to the psychiatrist, he continues to battle with both. He suffers night terrors and wakes up in sweats. The psychiatrist devised a plan which included continuing to take medication and review in a few weeks' time; 2. Alaxzanda has been seeing Michael Binnie, chiropractor. During presentation on 4 August 2020 he complained of lower cervical and upper thoracic pain. On clinical examination there were significant signs of pelvic instability secondary to a sacroiliac injury. Weekly treatment was recommended; and 3. the family GP provided a report dated 26 August 2020, in which he identified an injury to the C7, for which he was then still suffering severe spinal pain and was unable to do any sort of work for more than 30 minutes due to pain. The GP expressed the opinion that this condition could last his entire life. The GP also referred to post-traumatic stress disorder, the symptoms of which she described as chronic.
5. The best illustration of how the accident has affected the lives of Jayden and Alaxzanda is in their respective victim impact statements, forming part of Exhibit A. Both statements are detailed and considered. Any attempt by me to summarise them in the course of these remarks would do an injustice to what was said by these victims when they read out the statements in Court. It is indisputable that both brothers suffered significant injuries. To describe the injuries suffered by Jayden as catastrophic again risks understating the very significant, lifelong effects of the injuries he suffered.

Medical Records For Mr Angel

1. Exhibit 1 comprised discharge documents in relation to the Offender.
2. On 10 March 2019 he was admitted to Gosford Hospital after being involved in an accident the previous day. He provided a history that he turned around to talk to passengers in the back when he lost control of the vehicle. He self-extricated and, on arrival at hospital, denied any obvious injuries. Assessments undertaken at the hospital revealed a minor head injury; he was kept overnight for observation. He was seen by the mental health team, given the severity of the injuries suffered by his friends. He was discharged into the care of his mother, with whom he was to live for emotional support for the next couple of days. The discharge letter refers to the Offender as being a high risk of developing long term mental health sequelae from the accident.
3. It would appear that the Offender came under the care of the Child and Adolescent Mental Health Clinic at Central Coast Community Health. A discharge document suggests a community admission on 11 March 2019 and discharge on 13 June 2019. He was diagnosed with Post-Traumatic Stress Disorder. The discharge letter confirmed that the Offender was seen for a head injury and suicidal ideation. Mr Angel reported anxiety and depression. Upon discharge from the clinic the Offender reported an improvement in his mood and functioning and denied any current suicidal ideation. He has been referred for private psychological treatment.

Oral Evidence

1. Victim impact statements were read out in Court by Jayden and Alaxzanda Jackson.
2. Evidence was given by the Offender. He was extremely upset and emotional whilst giving evidence. He agreed that he told an attending police officer at the scene of the accident that "I'll take full responsibility, I did veer off the road".
3. He was extremely remorseful. He said that he thought about killing himself on more than one occasion, even sitting down to write a suicide note.
4. He left school at the end of year 10 and commenced an apprenticeship in sheet-metal fabrication and engineering. His parents own a sheet-metal business. He worked full-time in that business after leaving school. At the time of the accident he was living on his own, but then moved back into the family home with his parents. Since the accident he has attempted living on his own, but was unable to do so, and now lives again with his parents.
5. He gave evidence about the counselling he has had since the accident, consistent with the observations made above about the documentary evidence in support of same.
6. He has maintained close friendships with Mr Dolbel and Mr Misak, both of whom have supported him since the accident.
7. In cross-examination, the Offender agreed that the accident may have occurred as a result of him showing off whilst driving.
8. When asked whether he felt sorry for what he did, Mr Angel said that he was and would swap places with the victims if he could.
9. In the course of giving evidence the Offender referred to an incident that occurred at a Leagues club when both he and Alaxzanda were present. A dispute arose during the hearing as to what, in fact, occurred at the club. Both the Offender and Alaxzanda gave evidence about the matter. Their accounts were conflicting. In my opinion, evidence as to that topic has no material bearing upon this sentence exercise, and no further reference will be made to that evidence.
10. Mr Dolbel was called to give evidence in behalf of the Offender. As at the time of the accident, they had known each other for 12 years. Mr Dolbel had travelled as a passenger in vehicles driven by Mr Angel on many occasions, and considered him to be a safe driver.
11. He was then cross-examined about the injuries he suffered in the accident. He said that he was affected by those injuries for a period of 6 to 8 months and has made a full recovery, describing his body as probably the strongest it has ever been, and probably the healthiest he has ever been.
12. Mr Misak was also called on behalf of Mr Angel, whom he referred to as his best mate. They had known each other for 8 or 9 years. He often travelled as a passenger in a vehicle driven by the Offender. He said he had never noticed Mr Angel breaking any road rules or driving erratically. Mr Misak described Mr Angel as a good, safe and responsible driver.
13. He was also cross-examined about the injuries he sustained in the accident. He said that it took about 8 months to recover.

R v Whyte [2002] NSWCCA 343

1. Both parties referred to the decision of Whyte in their written and oral submissions. Before considering those submissions, I set out below a summary of what the Court stated.
2. The Court considered a typical case under s52A to have 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 driver's intimates; 6. genuine remorse; and 7. plea of guilty of limited utilitarian value.
3. The Court identified the following aggravating factors. The factors at (iii) to (xi) were said to relate to the moral culpability of the Offender: 1. extent and nature of the injuries inflicted; 2. number of people put at risk; 3. degree of speed; 4. 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 risk; 8. ignoring of warnings; 9. escaping police pursuit; 10. degree of sleep deprivation; and 11. failing to stop.
4. Further, the Court (at [214]) provided the following guideline with respect to custodial sentences: 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 misjudgement.
5. As to the length of any custodial sentence, the Court said: Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.
6. Before moving on from Whyte, and at risk of stating the obvious, I observe that the judgment was handed down on 20 August 2002, before Intensive Corrections Orders were available, and well before the 2018 amendments.

Submissions for the Offender

1. Written submissions were handed up on behalf of the Offender (MFI 2). It was submitted that the early guilty plea entitles the Offender to a 25% discount on sentence. I accept that submission.
2. It was then submitted that the Offender accepted responsibility and was remorseful. I accept that submission.
3. Counsel for the Offender conceded the section 5 threshold was crossed. I adopt that submission.
4. The next submission advanced on behalf of the Offender has proved the most controversial issue on sentence. It was submitted that a partially cumulative head sentence of 3 years was within range, and that an ICO with conditions would be an appropriate alternative to full-time custody. One of the conditions proposed by counsel for the Offender was home detention. Ultimately, it was submitted that home detention for 3 years would be appropriate. Whilst I made it clear to counsel for the Offender that I did not wish to send his client to prison, in keeping with the principle that imprisonment should be used as a sanction of last resort (R v Way (2004) 60 NSWLR 168 at [115]), it would be inappropriate and contrary to law for me to commence with determining that an ICO with conditions was appropriate and to structure a sentence backwards from that proposition. Instead, if I determined that an aggregate sentence of 3 years or less is appropriate, then consideration would be given to an ICO.
5. Reference was then made to the guideline judgement of R v Whyte. In respect of the Whyte factors relied upon by the Crown in its written submissions, it was submitted for the Offender that: 1. the injuries occasioned to Jayden in particular were severe; 2. the degree of speed was not sufficient to make it an aggravating factor; 3. whilst it was accepted that the Offender drove erratically, it was not accepted that his behaviour amounted to an abandonment of responsibility; 4. whilst the intended journey was about 25 km, the relevant portion of that journey was relatively short; 5. the Offender asserts that he did not hear the warning from Jayden; 6. other than the occupants of the vehicle, there is no evidence of other people being put at risk, although, I consider that this is a matter which may be inferred given that the dangerous driving occurred on a public road during daylight hours. It was later conceded by counsel for the Offender that others were exposed to risk; 7. the Offender was not intoxicated; and 8. the Whyte factors of aggravation at (vi), (ix), (x) and (xi) have no application.
6. I reject the submission that (vi) has no application as it is plain from the evidence that the Offender was showing off. In relation to (vii) the relevant portion of the journey appears to have been about 2.6 km. Finally in relation to (viii), I am satisfied that a warning was given by Jayden and that the Offender either did not hear what was said or chose to ignore it.
7. Otherwise, I agree that there is no evidence suggestive of highly excessive speed, intoxication or substance abuse, competitive driving, escaping police, sleep deprivation or failing to stop.
8. The Offender accepted that the only statutory aggravating factor present was the fact that he was the subject of conditional liberty at the time of the offending (s21A(2) CSP Act).
9. In respect of objective seriousness, it was submitted for the Offender that it fell at the mid-range. There was no attempt to distinguish between the charge sequences in relation to objective gravity. It was further submitted that the Offender's moral culpability "falls short of high and this is not a case of abandonment of responsibility".
10. In respect to that last point, counsel for the Offender acknowledged the submission by the Crown that the degree of moral culpability was so high as to amount to an abandonment of responsibility. In reply, it was submitted that "whilst the moral culpability is well and truly above momentary inattention, it falls short of abandonment of responsibility, that is, it falls at the middle of the range".
11. Finally, it was again submitted on behalf of the Offender that an ICO would be the most appropriate outcome in order to promote rehabilitation of the Offender.
12. There were no written submissions as to the other purposes for sentencing under section 3A of the CSP Act, some of which are highly pertinent to this sentencing exercise, including general deterrence, adequacy of sentence, denunciation and recognition of the harm caused to the victims.
13. When the matter was next before me it was to address the Crown's unsolicited submissions as to whether an ICO was within range (MFI 3). As observed elsewhere in these remarks, that was not the appropriate question to be asked or addressed by way of submissions as a threshold issue. The first question was whether the section 5 threshold had been crossed. I have found that it was, and that no sentence other than one of imprisonment is appropriate. The second question is to determine the length of the sentence. Only then can it be determined whether an ICO is even available as a sentence outcome.
14. In the course of a further brief mention on 14 September 2020 a Sentencing Assessment Report (SAR) considering the suitability of the Offender for home detention was requested, and the matter adjourned to 19 November 2020 for the parties to address as to the ultimate sentence and findings in the SAR.
15. On 19 November 2020 counsel for the Offender again addressed the question of an ICO. It was submitted that a sentence of imprisonment of 3 years would adequately reflect the purposes for sentencing under section 3A. It was submitted that a home detention condition and a community service condition could attach to an ICO, causing it to be more onerous than one without such conditions. Both counsel for the Offender and the Crown addressed some of the "comparable" cases referred to in the Crown submissions.
16. On that occasion the matter was listed on 2 December 2020, at which time it was my intention to sentence the Offender and provide remarks on sentence.
17. Following the mention on 19 November the Crown was to research and inform the Offender's legal representatives and the Court as to the maximum time available for a home detention condition. This issue arose by reason of parliament repealing the sections of the Act which previously provided a limit upon such terms. By email dated 19 November 2020 the Crown provided that information. Unfortunately, the Crown also again engaged in addressing as to the question of whether an ICO was less onerous than prison. That caused counsel for the Offender to request that the matter be relisted for further addresses, in the event that the Court intended to make any findings adverse the Offender based upon the further submissions from the Crown.
18. On 1 December 2020 by email, Mr O'Sullivan, counsel for the Offender referred to an additional 13 authorities, some of which reference was made by JusticeLink case numbers only.
19. When the matter came before me on 2 December 2020, for further addresses at the request of counsel for the Offender, the debate between the parties as to whether an ICO would be an appropriate sentence outcome continued. Again, submissions as to that matter were at that time hypothetical, as no determination had been made as to the length of the sentence and whether an ICO was available at all. I attempted to direct the attention of the parties to the question of whether a sentence of 3 years or less was appropriate, in all of the circumstances.
20. On 2 December 2020 the matter was stood over for remarks on sentence to 29 January 2021 with the direction the no further submissions would be entertained, without leave.

Submissions for the Crown

1. The Crown submissions were marked for identification (MFI 1).
2. The Crown commenced by identifying the factors referred to in Whyte as being frequently occurring characteristics of offences under section 52A. They are set out above.
3. Many of those factors exist here, save for the fact that the victims were not strangers to the Offender, that is, his friends or "intimates" suffered injury and the plea of guilt in the present case was at an early stage.
4. I acknowledge, as submitted for the Crown, that the Whyte factors do not provide a checklist, but are merely a commentary upon prevailing circumstances for offences of this type.
5. The Crown referred to the Whyte aggravating factors, also set out above.
6. The assessment of moral culpability involves a consideration of all the factors relating to the conduct of the driver, including those referenced in Whyte by the sentencing Judge. There are degrees of moral culpability, extending from momentary inattention through to intentional and reckless abandonment. Submissions that the moral culpability was greater than inattention but less than abandonment are unhelpful, as the degree of culpability covered by that range is vast.
7. The Crown submitted that the conduct of the Offender amounted to an abandonment of responsibility and that his moral culpability was high, given the presence of the aggravating factors referred to in the Crown submissions. His deliberate, aggressive and erratic driving immediately prior to the accident were submitted as being particularly relevant.
8. The Crown submitted that the Offender's youth and prior relative good character are to be given little weight in the sentencing exercise. They are, however, considerations to be added to the mix in determining the appropriate sentence outcome, guided by the purposes for sentencing in section 3A.
9. I have read the Crown's written submissions in their entirety. I do not intend to recite them in these remarks. To the extent relevant, the principles enunciated in the judgments referred to will be adopted in the determination of this sentence.
10. As mentioned above, the Crown lodged supplementary written submissions dealing with the question of whether an ICO was within range (MFI 3). In those submissions, the Crown drew attention to an additional 6 cases in support of its submission that a sentence period of 3 years or less would be inconsistent with sentencing trends, and therefore render an ICO unavailable for the Offender.
11. By reason of the number of authorities to which the parties have referred, I have found it necessary to engage in an assessment of each of the authorities and analyse the nature of the driving which was dangerous in order to assess the moral culpability of the offenders and also the injuries suffered by the victims of the driving which, together with the first matter, substantially informs the question of objective seriousness. The need for consistency in sentencing in respect of this offence is a matter that has been made clear by the Court of Criminal Appeal in numerous cases.

Moral Culpability

1. This might be considered by reference to the aggravating factors referred to in Whyte. Adopting the same paragraph references, I note the following factors are relevant to the present case: 1. the injuries to the victims ranged from serious to catastrophic, with Mr Dolbel and Mr Misak both making excellent recoveries; 2. 4 people were at direct risk of injury; 3. there was no evidence of highly excessive speed; 4. the Offender was not intoxicated; 5. his driving was erratic; 6. he was showing off; 7. the relevant length of the journey was 2.6 kilometres; 8. a warning was given but either not heard or ignored by the Offender; 9. it was not a police pursuit; 10. there was no sleep deprivation; and 11. there was no relevant failure to stop.
2. Further, I have had regard to the nature of the driving, which involved dangerously driving over a distance of about 2.6km which included speeding, taking corners without braking, swerving between lanes, stopping very quickly, revving the car, swerving through traffic, swerving from left to right, causing the vehicle to leave the roadway, losing control of the vehicle, causing the vehicle to run out of control, swerving to the right, pulling the handbrake up and causing the vehicle to roll 3 times (together, those factors I shall refer to as the nature of the dangerous driving).
3. Taking into account the aggravating features referred to in Whyte which are present here, and the nature of the dangerous driving, I assess the Offender's moral culpability as high.

Findings

1. The only statutory aggravating factor present is that the Offender was the subject of conditional liberty at the time of the offending.
2. I decline to find that the offence was committed without regard for public safety as an aggravating factor as this is, by inference at least, an element of the offence.
3. I decline to find that the Offender's limited criminal history is an aggravating factor, or otherwise denies him leniency.
4. As grievous bodily harm is an element of the 2 principal offences I decline to find substantial injury as an aggravating factor.
5. I find that the following mitigating factors, pursuant to section 21A(3) of the CSP Act, have been made out: 1. the offence was not part of a planned or organised criminal activity; 2. the Offender does not have any significant record of previous convictions, and none at all like the matters charged; 3. the Offender was a person of good character. He was a hard-working person who positively contributed to the community; 4. the Offender is unlikely to reoffend; 5. the Offender has good prospects of rehabilitation, by reason of his young age and the devastating impact that this offending has had upon him; 6. the Offender has shown remorse, in that he has accepted responsibility for his actions and acknowledged the injury loss and damage caused by his actions; and 7. the Offender pleaded guilty at an early stage.
6. In respect of each sequence relevant to the sentence, I assess the objective gravity as follows: 1. for sequence 1, being dangerous driving occasioning grievous bodily harm to Jayden Jackson, I assess the objective seriousness as well above mid-range, for the following reasons: 1. the catastrophic nature of the injuries suffered by the victim; 2. the nature of the dangerous driving (as described above); and 3. failing to stop driving dangerously upon being told to do so by Jayden Jackson. I include this finding, notwithstanding the fact that the Offender claims not to have heard the statement being made; 1. for sequence 2, being dangerous driving occasioning grievous bodily harm to Callum Dolbel, I find the objective seriousness to be at the mid-range having regard to the following considerations: 1. the fact that although Mr Dolbel suffered a number of serious injuries including fractures to a number of parts of his body, he, on his evidence was, only affected by the injuries through a period of between 6 and 8 months and that he now considers himself to be the strongest and healthiest he has ever been. Given that the relevant part of the definition of grievous bodily harm is the "permanent or serious disfiguring of the person", the absence of ongoing injury has been taken into account in determining the objective seriousness; 2. the nature of the dangerous driving; and 3. the fact that the Offender did not heed the direction of Jayden. 1. for sequence 4, being cause bodily harm by misconduct, and relating to Presley Misak, I find the objective seriousness of the offending to full just below the mid-range, for the following reasons: 1. although the injuries suffered by the victim included a right clavicular fracture, a fracture of the left ring finger and a torn ACL, he made a good recovery. In cross examination, he told the Court that it probably took 8 months for his leg to fully recover. I note that "bodily harm" is to be given its ordinary meaning and includes any injury which interferes with the health or of the victim, and need not be permanent but must be more than merely transient and trifling; 2. the nature of the dangerous driving (as described above); and 3. the fact that the Offender did not heed the direction of Jayden. 1. in respect of sequence 5, being cause bodily harm by misconduct, to Alaxzanda Jackson, I find the objective seriousness of the offending to be at the mid-range, having regard to the following factors: 1. although "bodily harm" need not be permanent, it is apparent from the evidence including the victim impact statement (part of Exhibit A) and the medical records (Exhibit B) that the victim continues to suffer from the effects of the injuries sustained in the accident. I note that the GP, in August 2020, expressed the opinion that the injury and disability caused by the fracture at C7 could last his whole life. It is equally apparent that the victim continues and most likely will continue to suffer the adverse psychiatric effects of the accident; 2. the nature of the dangerous driving (as described above); and 3. the fact that the Offender did not heed the direction of Jayden. 1. in respect of sequence 10, being the charge of driving a vehicle with an illicit drug present in his blood, a related offence, I find that the objective seriousness of the offending falls at the mid-range.
7. Next, I find that I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate (s5 CSP Act).
8. I find special circumstances based on the Offender's age, absence of any significant criminal record, the fact that this would be the first period of imprisonment, his mental health state and need for rehabilitation. I would reduce the ratio of non-parole to parole to 50%.
9. I find that the Offender's moral culpability is high.

Table 1 - Analysis Of Dangerous Driving Cases

1. Attached to and forming part of these Remarks is a table which analyses appellate decisions to which the parties referred, commencing with Jurisic (in 1998) and ending with Thornton (in 2020). Just 3 of the decisions post-date the 2018 reforms. Although forming part of my Remarks, I do not propose to read out the contents of Table 1.
2. No two cases are truly comparable. Differences exist in moral culpability, objective seriousness and the subjective case of the offender. The purpose of Table 1 is to demonstrate that the sentence which I intend to impose is not materially different to sentences imposed (or indicative terms provided) in other matters of dangerous driving occasioning grievous bodily harm, having regard to the 3 variables to which I have just referred.
3. I have also considered the JIRS sentencing statistics. For the period before the 2018 reforms the results show that in cases of guilty plea (101 cases), 58.4% of offenders went to prison and just 14.9% received an ICO. Other sentence outcomes included a s9 bond (1%), a Suspended Sentence (17.8%), Periodic Detention (5.9%) and Home Detention (2%). The average period of imprisonment for the 59 cases with that result was between 24 and 30 months. The average term of an ICO was about 21 months. The JIRS statistics demonstrate that since the 2018 reforms cases in which a period of imprisonment was directed to be served by ICO has increased from 14.9% to 44.4% and that the term of imprisonment (in custody or by way of ICO) has not changed significantly.
4. Since the sentencing reforms came into effect on 24 September 2018, of the 18 cases of guilty plea recorded, 55.6% (10 cases) resulted in a custodial sentence and 44.4% (8 cases) were dealt with by way of an ICO. The average prison term, after discount, was somewhere between 24 and 30 months. The average term of an ICO was about 18 months.

Determining the Sentence

1. There are 4 victims of the Offender's conduct. The criminality involved cannot be reflected in wholly concurrent sentences. There must be some degree of accumulation as between sequences 1 and 2. Further, the injuries suffered by the victims on the Form 1 must be reflected by an increase in the sentence for sequence 1. At the same time, there should be a degree of concurrency as between sequences 1 and 2, to reflect the fact that the offences arose out of a single course of conduct.
2. I intend to impose an aggregate sentence for sequences 1 and 2, pursuant to s53A of the CSP Act. Before doing so I am required, by reason of 53A(2)(b), to indicate the sentences I would have imposed were it not for the fact that the sentences are to be aggregated.
3. For sequence 1, with sequences 4 and 5 attaching, I provide an indicative term of 3 years. After a discount of 25% for the early guilty plea, that is 2 years 3 months.
4. For sequence 2, I provide an indicative term of 1 year 8 months, which after the 25% discount is a term 1 year 3 months.
5. Allowing some concurrency, and having regard to the principles of totality, I impose an aggregate sentence of 3 years' imprisonment.

Should a Direction be Made that the Sentence be Served by way of Intensive Corrections Order (ICO)?

1. The question then arises as to how the sentence of imprisonment ought to be served. Given that the aggregate sentence is 3 years imprisonment, an ICO is available (s68(2)). These are also offences for which an ICO may be made (s67).
2. In R v Fangaloka [2019] NSWCCA 173, Basten JA (with Johnson and Price JJ agreeing) observed at [65] and [66]: The better view is that the legislature has, appropriately, acted upon the available evidence by requiring the court to have regard to a specific consideration, namely the likelihood of a particular form of order addressing the offender's risk of reoffending. That obligation, imposed by s 66(2), is not stated to be in derogation of the more general purposes of sentencing outlined in s 3A, nor in derogation of other relevant matters: s 66(3). Nor does the legislation limit the consideration of community safety to a means more likely to address the risk of reoffending; it merely identifies that as a mandatory element for consideration. There is no doubt that community safety can operate in different ways in different circumstances. It is conventionally accepted that a purpose of punishment, including by way of imprisonment, is to deter the offender from further offending; it is also accepted that removal of an offender from the community for a period may have a protective function. The purpose of s 66, on this approach, is merely to ensure that the court does not assume that fulltime detention is more likely to address a risk of reoffending than a community-based program of supervised activity. Consistently with that view, s 66 does not seek to address potentially conflicting demands of community safety in the short term, as opposed to the longer term, and the risk that leniency will be abused. In short, there is nothing in s 66 which favours an ICO over imprisonment by way of fulltime custody. Further, while s 66 expressly referred to s 3A, it did so, not by identifying it as a set of "subordinate" considerations, but as mandatory considerations. It would be wrong for a court to treat every consideration other than the means of addressing the risk of reoffending as a subordinate consideration.
3. More recently in Wany v DPP [2020] NSWCA 318, McCallum JA set out at [18]-[21] the 3 step approach to be adopted by sentencing judges before making an ICO direction: 1. first, a determination must be made as to whether the s5 threshold is met; 2. secondly, the appropriate term of imprisonment must be determined without having regard to the manner in which it is to be served; and 3. thirdly, where the issue is raised, whether to make a direction under s7 that the sentence is to be served by way of an ICO.
4. What remains to be considered here is the third step. The question is whether a direction ought to be made under s7 that the term of imprisonment be served by way of an ICO in the community. The Crown submits that such a direction, even with strict conditions attaching, would render the sentence manifestly inadequate.
5. I am mindful of the terms of section 66 of the CSP Act. I acknowledge that community safety is the paramount consideration when deciding whether to make an Intensive Corrections Order. Having regard to the Offender's very limited criminal history, the remorse he has displayed in relation to this offending and my findings concerning rehabilitation and risk of offending, I find that he does not present any risk to community safety.
6. In considering the question raised by section 66(2), I find that the Offender's risk of reoffending, to the extent there be any, is far more likely to be addressed by him serving the sentence under an ICO rather than by way of full-time detention. The fact that I consider that there is little or no risk of re-offending does not, in my view, make an ICO unavailable. Once the question of community safety has been answered favourably for the Offender, it leaves the s3A purposes for sentencing, any relevant common law principles and any other matters considered relevant as the factors to be considered.
7. The common law also recognises that mercy has a place in sentencing. In several decisions, including Kelly v The Queen [2007] NSWCCA 357 at [30], the Court of Criminal Appeal endorsed the following observation of Napier CJ in the South Australian Supreme Court in the matter of Webb v O'Sullivan [1952] SASR 65, at [66]: Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.
8. That is not to say, however, that considerations of mercy should undermine the application of the general principles and purposes for sentencing.
9. By reference to s3A, it is necessary for the sentence to be adequate punishment for the offending. Importantly, in cases such as this, it is also essential that the sentence will deter others from committing the same or similar offences. Further, the Offender must be held accountable for his actions and his conduct must be firmly denounced by this Court. Finally, but no means least, the sentence must recognise the considerable harm caused to the victims of the crime, especially to Jayden who, by reason of his injuries, will suffer the devastating effects of the Offender's conduct for the remainder of his life.
10. Whilst an ICO involves substantial punishment, I acknowledge that generally it is a more lenient sentence than full time custodial imprisonment. This does not mean that an ICO ought not be made in cases of dangerous driving. The question is whether any inherent leniency renders the sentence inadequate.
11. Returning to common law sentencing principles, a custodial sentence is recognised as the sentence of last resort. As was observed in Way, supra, this consideration is recognised in that the CSP Act provides for non-custodial sentences in particular circumstances. The 'ultimate objective' is one of imposing a sentence that is just and appropriate, having regard to all of the circumstances, and so as to give effect to the purposes in s3A (see Way at [21]). That is, just to the Offender and appropriate having regard to all of the circumstances of the offending, including the harm caused to others.
12. In considering the difficult question of whether an ICO is appropriate, I note the Government's rationale for the introduction of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017, which led to the changes to the CSP Act in 2018: to "achieve a tough and smart justice system" (see Second Reading Speech 11 October 2017). At that time the Attorney-General stated: The bill will replace the current community-based sentences with a new range of community sentencing options. First, we are strengthening the intensive corrections order. It will be available for offenders sentenced to up to two years imprisonment and will require all offenders to submit to supervision. As well as mandatory supervision, the intensive correctional order will have a range of additional conditions to help courts ensure that offenders address their offending behaviour and are held accountable. Courts will be required to impose at least one of these additional conditions and may impose further conditions where necessary to support the safe and effective management of the offender in the community. With the new intensive correction order, offenders who would otherwise be unsuitable or unable to work will be able to access intensive supervision as an alternative to a short prison sentence.
13. In the context of offending of this type, the suitability of an ICO was considered by the Court of Criminal Appeal in R v Pullen [2018] NSWCCA 264. At [66] Harrison J (with whom Johnson and Schmidt JJ agreed) stated: The statement in R v Pogson; R v Lapham; R v Martin that ICOs involve substantial punishment was to a significant extent premised on the existence of onerous mandatory conditions which imposed significant restrictions upon an offender's liberty ... That remains the case with the new scheme as persons subject to an ICO are required to comply with multiple mandatory obligations which are attached to the standard conditions ... There are also additional obligations which are prescribed by regulation which attach to the additional conditions that may be imposed under s 73A(2) ... The degree of punishment involved in an ICO, and therefore its appropriateness in a particular case, must now be assessed having regard to the number and nature of conditions imposed. In some cases, as a result of the significant number of obligations prescribed by the regulations, an ICO will be more onerous than it was under the previous scheme.
14. Further, at [89] Harrison J stated: The result of these amendments is that in cases where an offender's prospects of rehabilitation are high and where their risk of reoffending will be better managed in the community, an ICO may be available, even if it may not have been under the old scheme. The new scheme makes community safety the paramount consideration. In some cases, this will be best achieved through incarceration. That will no doubt be the case where a person presents a serious risk to the community. In other cases, however, community protection may be best served by ensuring that an offender avoids gaol. As the second reading speech makes plain, evidence shows that supervision within the community is more effective at facilitating medium and long term behavioural change, particularly when it is combined with stable employment and treatment programs.
15. And at [93] Harrison J further stated: I accept that the imposition of an ICO in this case represents some degree of leniency. However, as I intend to impose a number of conditions in addition to the mandatory conditions, I am satisfied that the imposition of an ICO in this case still incorporates a substantial degree of punishment, having regard as well to the significant increase in the length of the ICO. This is particularly so when one has regard to the obligations which are prescribed by the regulations and which attach to those conditions. I accept that the emphasis on general and specific deterrence and denunciation in offences of this kind as well as the guideline in R v Whyte are factors that militate against the imposition of an ICO. However, in this case, these considerations should be considered in light of the paramount consideration of community safety introduced by the new s 66.
16. The Court imposed an ICO for 3 years, with additional conditions of community service work, a rehabilitation condition and an abstention condition.
17. My reference to Pullen should not be understood as a misunderstanding as to the law relating to ICO's, as exposed by the Court in Fangaloka. The relevance of Pullen is that it considered the use of an ICO in offending of the same type under consideration in this case.
18. The intention of the 2018 amendments was to permit the Court to direct that an ICO be served for a longer period for multiple offences and be subject to mandatory and additional conditions. The effect was to elevate the degree of punishment imposed on an offender by an ICO. This has the effect of reducing any leniency otherwise attaching to an ICO.
19. The conditions attaching to the ICO I would make would be even more onerous that those imposed in Pullen. They include imposing a home detention condition for half of the sentence. That is, for 18 months. I would also impose conditions of electronic monitoring, community service work, rehabilitation, counselling, abstention and completing a safe driving course.
20. During the course of the sentence hearing evidence was given by Joshua Edwards, a Community Corrections Officer (2/12/20, T14-20). He described the onerous effects of home detention and the way in which the detention was monitored and enforced. That included electronic monitoring via an anklet, unannounced house visits, urinalysis, the need for any departure from the terms of the home detention to be approved in advance and sending breach reports to the State Parole Authority.
21. The question then is whether an ICO with the conditions I have indicated is adequate punishment for this offending, having regard to the Offender's moral culpability, the objective seriousness of the offending and his subjective case. After considering the cases referred to in Table 1, parliament's intention in making ICO's more onerous, and the remarks by the CCA in Pullen, I have concluded that a direction under s7 ought to be made. I consider that the conditions which I intend to impose will provide substantial and appropriate punishment. I am satisfied that the sentence proposed will also achieve the purpose of denouncing conduct of this Offender and deterring others from like offending.

Conviction

1. Mr Angel please stand.
2. You are convicted of the offences to which you have pleaded guilty namely: 1. dangerous driving occasioning grievous bodily harm in breach of section 52A(3)(c) of the Crimes Act 1900; 2. a further charge of dangerous driving occasioning grievous bodily harm in breach of the same section of the Crimes Act 1900; and 3. driving a motor vehicle with an illicit drug present in your blood in breach of section 111(1)(a) of the Road Transport Act 2013.
3. You are sentenced for the dangerous driving convictions to a term of imprisonment for 3 years. I direct that the sentence be served by way of an Intensive Corrections Order, commencing today 29 January 2021 and expiring 28 January 2024. The Intensive Corrections Order is subject to the following conditions: 1. I impose the standard conditions set out in section 73(2) of the CSP Act, namely: 1. the Offender must not commit any offence; and 2. the Offender must submit to supervision by a community corrections officer; 1. I impose the following additional conditions: 1. a home detention condition, requiring the Offender to remain in his home at 30 Panonia Road, Wyong NSW 2259, unless he has the approval of a Community Corrections Officer to leave the home. This condition will run for a period of 18 months, commencing today and expiring 28 July 2022; 2. an electronic monitoring condition, requiring the Offender to wear an anklet for the duration of the home detention condition; 3. a community service work condition, requiring the offender to perform 750 hours of community service work, being the maximum number of hours permitted; 4. a rehabilitation or treatment condition, requiring the Offender to participate in any program or receive any treatment recommended by a Community Corrections Officer; and 5. an abstention condition, requiring the offender to abstain from drugs for the duration of the Intensive Corrections Order. 1. I impose a further condition, pursuant to s73B, that the Offender successfully complete a safer drivers course, as directed by Community Corrections;
4. The Offender is disqualified from driving for a period of 3 years, pursuant to s205 of the Road Transport Act 2013 (NSW).
5. I direct the Offender to attend the Registry of this Court to sign the Intensive Corrections Order, and thereafter to attend Wyong Community Corrections by 4pm Friday 29 January 2021, in order to give effect to these orders, including being fitted with an electronic anklet.
6. In respect of the conviction for driving with an illicit drug present, you are sentenced to a fine of $1000 and a disqualification from driving for a period of 6 months.
7. Mr Angel, if you fail to comply with the conditions of the Intensive Corrections Order, sanctions may be imposed which may include a formal warning, imposing more stringent conditions or the revocation of this order. If the order is revoked then you may be required to serve all or some of the period of this sentence in full-time custody.

Attachment: Table 1 - Analysis of Dangerous Driving Cases I certify that the previous 143 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC. Associate James Bailey

Table 1 - Dangerous Driving Cases R v Angel Analysis of Dangerous Driving Cases Table 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: 29 January 2021