Local Court New South Wales Medium Neutral Citation: Police v Elliot [2022] NSWLC 23 Hearing dates: 22 November 2022 Date of orders: 22 November 2022 Decision date: 12 December 2022 Jurisdiction: Criminal Before: Stewart LCM Decision: Imprisonment 3 years NPP 20 months Disqualification from driving 5 years Catchwords: Aggregate sentence – dangerous driving under the influence of a drug occasioning grievous bodily harm – cause bodily harm by misconduct of motor vehicle – record amounting to common law aggravation – conditional liberty for drive under the influence of drugs – steps towards rehabilitation – promote rehabilitation of offender - general deterrence – specific deterrence – protection of community – denunciation – make offender accountable for actions - objective seriousness – guideline judgment – abandonment of responsibility – high moral culpability – consideration of ICO – attitude of victim Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s. 3A, 5, 21A, 22, 53A, 66 Crimes Act 1900 (NSW) s.52A(3), 53 Road Transport Act 2013 (NSW) s. 4, 9(2A), 9(5), 54(3)(a), 111, 112(1)(a), 205 Drug Misuse and Trafficking Act 1985 (NSW) s. 10 Cases Cited: Director of Public Prosecutions (NSW) v Kirby [2017] NSWSC 1754 Gonzalez v R [2006] NSWCCA 4 Greaves v R [2020] NSWCCA 140 Jibran v The Queen [2020] NSWCCA 86 Karout v R [2019] NSWCCA 253 Mbele v The Queen [2021] NSWCCA 182 Meis v R [2022] NSWCCA 118 Park v The Queen [2021] HCA 37 R v Borkowski [2009] NSWCCA 102 R v Errington [2005] NSWCCA 348; 157 A Crim R 553 R v Fangaloka [2019] NSWCCA 173 R v Gardiner [2004] NSWCCA 365 R v Khatter [2000] NSWCCA 32 R v Palu [2002] NSWCCA 381 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Whyte [2002] NSWCCA 343 The Queen v Baden-Clay [2016] HCA 35 Veen v The Queen (No 2) [1988] HCA 14 Category: Sentence Parties: NSW Police Force (Prosecution) Craig Elliott (Defendant) Representation: Sergeant Wiblin (Police Prosecutor) Solicitor: V Hampel (Defendant) File Number(s): 2022/124121; 22/131407; 21/39030; 20/278573 Publication restriction: NIL REMARKS ON SENTENCE The Charges and the Pleas 1. The offender Craig Elliot pleaded guilty to Dangerous Driving Occasioning Grievous Bodily Harm Under the Influence of a Drug contrary to section 52A(3)(a) Crimes Act 1900 (NSW) and Cause Bodily Harm by Misconduct in charge of a Motor Vehicle contrary to section 53 Crimes Act: H87715504. 2. Further, he pleaded guilty to 2 counts of Possess Prohibited Drug contrary to section 10(1) Drug Misuse and Trafficking Act 1985 (NSW): H89736982. 3. The guilty pleas were entered on 6 October 2022 at the earliest opportunity. I allow a discount of 25% off the penalty that might otherwise be imposed for the utilitarian value of each plea: see R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and the judgment of Howie J in R v Borkowski [2009] NSWCCA 102 at [32]. Maximum Penalties 1. The offence of dangerous driving occasioning grievous bodily harm under the influence of a drug is punishable by a maximum penalty of 7 years imprisonment. 2. The offence of causing bodily harm by misconduct whilst driving a motor vehicle carries a maximum penalty of 2 years imprisonment. 3. The maximum penalty for possession of a prohibited drug is 2 years imprisonment and/or fines of up to $5500. 4. In Greaves v R [2020] NSWCCA 140 at [66], Cavanagh J. with Hoeben CJ at CL and Hamill J. agreeing, said: "66 … the sentencing principles applicable to the process of sentencing remain the same in the Local and District courts. … the magistrate was required to assess the appropriate sentence having regard to the prescribed maximum penalty for each offence rather than any jurisdictional limit. The jurisdictional limit only becomes relevant if the assessment leads to a sentence greater than the limit." (footnotes omitted) 1. The principle in Greaves is clear. The Local Court in sentencing an offender is no different to the way in which the District Court should sentence an offender, subject to the jurisdictional limit if the sentence that should be imposed for an individual offence exceeds that limit. 2. In Park v The Queen [2021] HCA 37 at [19], the Court said: "19 Contrary to the appellant's submission, a jurisdictional limit is not a matter required to be taken into account "[i]n determining the appropriate sentence for an offence" in accordance with s 21A. A jurisdictional limit relates to the sentencing court, not to the task of identifying and synthesising the relevant factors that are weighed to determine the appropriate sentence. To the contrary, the maximum penalty for an offence is a matter that is almost always required to be taken into account to determine the appropriate sentence, including where the maximum penalty exceeds a relevant jurisdictional limit.[17] 17 R v Doan (2000) 50 NSWLR 115 at 123 [35]; Markarian v The Queen (2005) 228 CLR 357 at 372 [30]-[31]; R v Duncan (2007) 172 A Crim R 111 at 117 [20] per Nettle JA, Chernov and Vincent JJA agreeing." Agreed Facts H87715504: Dangerous Driving Occasioning GBH under influence of a drug, and Driver by Misconduct Cause Bodily Harm: 1. About 11:45pm on Friday, 29 April 2022, the offender was driving a white Kia southbound on Gannons Road, Woolooware, and turned a left turn onto the Kingsway. He drove a further 200 to 250 metres before colliding with the rear of a parked Toyota utility. The collision caused the Kia to travel beneath the rear tray of the Toyota utility, with the tray stopping short of entering the cabin of the offender's vehicle, and pushed both vehicles forward approximately 10 to 15 metres with the Toyota utility then colliding with another vehicle being an MG SUV. 2. Isabella Wenke was a front seat passenger in the offender's vehicle, and Darcy Rotherick a rear seat passenger behind the driver. All occupants of the offender's vehicle managed to get out of the car. 3. Rotherick and Wenke suffered serious injuries and were conveyed to St George Hospital by emergency services. Rotherick underwent immediate surgery for life-threatening internal injuries. Wenke suffered fractured ribs and lower vertebrae fractures. 4. The offender was subject to a breath test which was negative, however subsequently failed a sobriety test and was arrested and conveyed to Sutherland Hospital for the purpose of blood and urine testing. 5. On 6 May 2022 the offender took part in an electronically recorded interview with investigators and admitted consuming drugs in the hours leading up to the collision. He admitted having 2 to 3 points of ice (methyl amphetamine), 2.5 to 3 mills of GBH (gamma hydroxybutyrate) and one Xanax (containing alprazolam). He told police the drugs were consumed at a friend's place in Crows Nest. The facts indicate that the drug consumption appears to have affected the offender's ability to recollect the drive from Crows Nest to Woolooware. The offender's driver licence was suspended on the day. H89736982: Possess Prohibited Drug (2 counts) 1. Upon the offender being conveyed to Sutherland Hospital after the motor vehicle collision on 29 April 2022, he was subject to mandatory urine testing. Upon lowering his underpants, a small white bottle labelled Xanax fell into the toilet. Two tablets were later tested and found to contain diazepam. The offender admitted that a few other tablets found within that bottle were Xanax. Criminal Record 1. The offender was placed on a good behaviour bond without conviction for possess prohibited drug in 2014. 2. In 2015 he was fined $400 for possession of a prohibited drug. In April 2021, the offender was fined for the offence of goods in custody. 3. On 26 June 2020, the offender committed the offence of drive vehicle with illicit drug in oral fluid and received a traffic infringement notice. I note that the offence contrary to section 111 of the Road Transport Act is a major offence is defined in section 4 of that Act. 4. In August 2020 he was again fined for possession of a prohibited drug 5. In April 2021, the offender was fined for the offence of Goods in Custody 6. On 5 October 2021 the offender appeared before the court for drive a vehicle under the influence of a drug being a second or subsequent offence, and was placed on a two-year conditional release order without conviction from 5 October 2021 until 4 October 2023. On the same date, he was given a bare conviction pursuant to section 10A Crimes (Sentencing Procedure) Act 1999 (NSW) for possess prohibited drug. 7. He was also placed on a conditional release order without conviction for a period of 18 months for the offence of drive motor vehicle whilst suspended, incorrectly recorded and incorrectly dealt with as a first offence. 8. The record indicates that on 16 October 2021, the offender committed an offence of goods in custody. There is no record of the conditional release order imposed on 5 October 2021 been called up when the offender was sentenced for that offence. Conditional Liberty 1. The offences for which the offender is to be sentenced occurred whilst he was on conditional liberty, ie. for driving under the influence of a drug being a second or subsequent offence and driving whilst suspended which was also a second or subsequent offence, though at the time only prosecuted as a first offence. 2. The commission of further offences whilst on conditional liberty is a statutory aggravating factor pursuant to section 21A(2)(j) Crimes (Sentencing Procedure) Act. Conditional Liberty Offences Called Up 1. As the offender is to be resentenced for the offences of drive vehicle under the influence of drugs and drive whilst cancelled, it is necessary to examine the facts in each of those matters. H76000549: Drive Vehicle Under Influence of Drugs (second or subsequent offence) 1. About 2:20am on Tuesday, 7 July 2020, the offender was driving a white Ford Focus on Carlingford Road, Pennant Hills. Approaching the intersection of Pennant Hills Road, he attempted to make a right-hand turn. Pennant Hills Road is a five lane main road with a speed limit of 60 km/h. 2. Whilst attempting the turn, the vehicle collided with a traffic light completely destroying the traffic light. The offender decamped on foot prior to emergency services attending. 3. Police attended and found the traffic light pole partially underneath the offender's vehicle on the footpath, with both airbags from the driver and passenger side deployed and the front bonnet crumpled. 4. At 3am, the offender returned to the scene and nominated himself as the driver at the time of the collision. A breath test returned a negative result. The offender failed a sobriety test. Police observed his skin to be pale, he was unable to keep his head held up without support, his eyes dilated and glassy and his speech was slow, slurred and difficult to understand. 5. The offender was taken to Ryde Hospital for mandatory blood and urine testing as police suspected he was driving whilst under the influence of a prohibited drug. 6. The sample taken was subsequently analysed and found to be positive to amphetamine, methyl amphetamine, and 4-hydroxybutanoic acid. A pharmacologist provided an opinion that at the time of driving, the offender was under the influence of the acute and withdrawal effects of methyl amphetamine commonly known as ice. H308565696: Drive Whilst Suspended (second or subsequent offence) 1. About 9.35am on Wednesday, 3 February 2021, police observed a black sedan which they stopped for the purpose of a random breath test on the driver, Craig Elliott. 2. When asked to produce a driver licence, the offender said; "I don't have one on me." The offender's licence was suspended at the time due to the drug-related suspension for the drive illicit drug matter commencing 22 December 2020 until 21 March 2021. 3. Under caution, the offender admitted knowing that his licence was suspended. Sentencing Assessment Report 1. A sentencing assessment report prepared for the purpose of sentencing indicates that the offender resides temporarily with his parents and partner, describing his relationship with them as positive and supportive. He is employed full-time as an electrician and has held that employment for approximately five months. 2. The offender acknowledged that he should not have driven at the time and takes full responsibility for his actions. 3. He told the report writer that he started commencing drug use on a weekly basis at the age of approximately 17 which escalated to daily ice use at the age of 20. The offender has been abstinent since the date of his arrest. 4. The offender demonstrated insight into the impact of his offending and was remorseful, acknowledging the significant negative impact, trauma and injuries incurred to the victims. He is willing to undertake community service work and intervention. Plea in Mitigation 1. Submissions made on behalf of the offender include the fact that he has previously undertaken the traffic offender program in relation to prior offending. He has now taken part in the Smart Recovery program, as well as drug urinalysis with no drugs detected. 2. The offender was supported at court by his mother, father and partner, with references provided by them as well. His partner is Ms Wenke, the victim of the Cause Bodily Harm by Misconduct of a Motor Vehicle matter. I am told that she forgives the offender. She is pregnant to Mr Elliott. 3. The court was asked to place the defendant on an intensive correction order, conceding that the threshold pursuant to section 5 of the Crimes (Sentencing Procedure) Act had been crossed. 4. It was acknowledged that the offender was on conditional liberty at the time. It was submitted that the offender had never been supervised in the community and that he was unlikely to reoffend. 5. Further, it was submitted that the offender was working and had excellent prospects of rehabilitation. General Remarks 1. There is a guideline judgment in relation to dangerous driving occasioning grievous bodily harm: R v Whyte [2002] NSWCCA 343. 2. In that decision, Spigelman CJ said at [232] – [233]: "232 The guideline is, to reiterate, a "guide" or a "check". The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s21A of the Crimes (Sentencing Procedure) Act. 233 This guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration. For the reasons I have given above, when discussing the proportionality cases, particularly Dodd, this approach reflects the principle of proportionality as discussed in those cases. No submission was made to this Court that the new s21A of the Crimes (Sentencing Procedure) Act inserted by the 2002 Act, affects this line of authority." 1. The Court identified features of a typical case of an offence under section 52A Crimes Act: (note that the numbers below is as it appears in the judgment) (i) Young offender. (ii) Of good character with no or limited prior convictions. i. Death or permanent injury to a single person. ii. The victim is a stranger. iii. No or limited injury to the driver or the driver's intimates. iv. Genuine remorse. vii. Plea of guilty of limited utilitarian value. 1. So far as those characteristics are frequently seen in this type of offending, the case involving the offender is not a 'typical' case. 2. There is no definition of 'young offender', however I note Mr Elliot is 27 and obtained his driver licence 10 years ago in May 2012. In TG v R [2010] NSWCCA 28 at [33], Howie J. said: …."If a young male is old enough to be licensed to drive a motor vehicle, he is assumed to be mature enough to comply with its conditions and the traffic rules." In that case, TG was aged 17, not 27. 3. The offender is not of prior good character. He has a limited number of prior convictions. However, he has previously committed two major traffic offences within 2 years prior to the commission of the matters for which he is to be sentenced – both involving illicit drugs – one being drive illicit drug in oral fluid, and the other drive under the influence of a drug. Although not convictions, the offender's traffic record also includes, in addition to the major offences, 8 prior speeding matters, 4 offences of using a mobile phone when not entitled to do so, and other matters. The offender has a very poor driving record. 4. The victim of the grievous bodily harm offence, and for that matter the victim of the bodily harm by misconduct offence are not strangers to the offender. 5. The only factor truly in common with the offender's case and a 'typical' case is the offender's genuine remorse. 6. In the guideline judgement (Whyte, supra at [216] - [217]) a number of aggravating factors were identified: "(i) Extent and nature of the injuries inflicted. (ii) Number of people at risk. (iii) Degree of speed. (iv) Degree of intoxication or substance abuse. (v) Erratic or aggressive driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring the warnings. (ix) Escaping police pursuit. (x) Degree of sleep deprivation. (xi) Failing to stop." 1. In Gonzalez v R [2006] NSWCCA 4 at [13], Howie J. observed: "13 There is a high degree of moral culpability displayed where there is present to a material degree one or more of the aggravating factors numbered (iii) to (ix) set out in Whyte." 1. The aggravating factors in common with those identified in Whyte are (i), (ii), (iv), and (vii). Mr Rotherick suffered life threatening internal injuries. Unhelpfully, the prosecution has failed to identify more precisely the nature of those injuries. Equally as unhelpfully, the prosecution has failed to provide any information concerning any lasting effect, of those injuries, if any, upon both Mr Rotherick and Ms Wenke. 2. The number of people put at risk include the offender, his two passengers and other road users over the distance the vehicle was driven. In this case, the Court can take judicial notice that Crows Nest is a Sydney suburb located between St. Leonards and North Sydney and is comfortably at least 30 km in distance from the crash site. 3. No pharmacological report was tendered by the prosecution, unlike in the previous Drive Under the Influence count. The Court therefore has no additional information as to the extent of the offender's impairment other than the observations of police in the agreed facts. 4. Whilst there is no direct evidence of speed, the facts disclose that the offender's vehicle by virtue of the process of collision wedged underneath the tray of the utility that it collided with, moving both vehicles forward 10 to 15 metres upon where the utility collided with a further vehicle. The tray did not enter the cabin of the offender's car. 5. In R v Errington [2005] NSWCCA 348; 157 A Crim R 553 it was noted that those aggravating factors were not meant to act as a checklist but as a guide. Accordingly, they remain illustrative not definitive. 6. In R v Khatter [2000] NSWCCA 32 per Simpson J at [31]: "31 … Offences under S 52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different incidences of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability. …" 1. In R v Gardiner [2004] NSWCCA 365 at [41], per Smart AJ (with Spigelman CJ and Grove J in agreement): "41 In determining the degree of moral culpability, regard is had to all the circumstances. On occasions it is the combination of a number of circumstances which leads to the conclusion that there is a high degree of moral culpability. It is erroneous to take a restrictive view of the circumstances that can lead to the conclusion that there is a high degree of moral culpability." 1. I find the objective seriousness of the dangerous driving under the influence of a drug occasioning grievous bodily harm to be well into the mid-range. The injuries to the victim required immediate surgery for life threatening internal injuries. The offender had ingested a cocktail of drugs including methyl amphetamine, gamma hydroxybutyrate and alprazolam. He had driven a distance of not less than 30 km putting himself, his passengers and other road users potentially at risk. The collision with a parked vehicle was with sufficient force to drive the front of the offender's vehicle under the tray of the parked vehicle, and such that both vehicles travelled 10 to 15 m where the utility collided with another parked vehicle. Cause Bodily Harm by Misconduct 1. In relation to the Cause Bodily Harm by Misconduct matter, the legislation refers to 'any bodily harm'. It can be inferred that the range of bodily harm is necessarily broad, to take into account minor examples of bodily harm through to more serious examples. 2. The injuries to Ms Wenke involved fractured ribs and lower vertebrae fractures. The lack of detail in the police facts sheet does not allow the Court to be informed properly of the full extent of the injuries – eg. how many ribs, how many vertebrae; how serious or debilitating those injuries were or what treatment was required. 3. There is no information at all in the police facts about whether or not the injuries to either Mr Rotherick or Ms Wenke is permanent or ongoing, or that they have completely recovered. 4. In the absence of any attempt by the prosecution to put such important information before the court, I will deal with the matter on the bare facts as presented. I find that the injuries are in the mid-range of bodily harm. 5. The 'misconduct' element of the offence is also open to a broad factual range. No definition is provided in the legislation, nor was I able to find any binding authority on point. Some dictionary definitions suggest meanings that include 'unacceptable or improper behaviour', 'mismanagement', 'neglect of duties'. 6. Examples can easily be contemplated involving misconduct of a motor vehicle which do not involve the intentional ingestion of drugs and subsequent loss of control of a motor vehicle. That is a matter of aggravation in the present case. 7. The objective seriousness of the cause bodily harm by misconduct sits well into the mid-range. 8. I note that the victim of the Cause Bodily Harm by Misconduct is the partner of the victim. The fact that she forgives the victim and supports him is not a matter that is allowed to interfere with a proper exercise of the sentencing discretion. I accept however that support for the offender can be taken into account in considering prospects of rehabilitation. 9. In R v Palu [2002] NSWCCA 381 at [37], Howie J. said, with Levine and Hidden JJ. agreeing said: "37 The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen (NSWCCA, unreported, 19 December 1994). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution …. Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim." Drive Under the Influence 1. For the previous Drive Under the Influence charge, the offender received what might be viewed as remarkable and significant leniency. I say that because the offending conduct represented an escalation from the earlier matter of Drive Illicit Drug as it also involved added the element of driving under the influence which imports the notion of potential risk. It involved a collision with traffic lights leaving the vehicle partially covering the felled traffic light pole. His physical affectation by drugs was profound. The pharmacologist's opinion was that at the time of driving the offender was under the influence of 'the acute and withdrawal effects of methyl-amphetamine." 2. Driving Under the Influence of Alcohol or a Drug is a prevalent offence and one that either potentially or actually puts other members of the community, passengers and road users at risk. Courts have an obligation to protect the community in such circumstances and consider imposing a sentence that might deter others from committing such an offence. 3. In Director of Public Prosecutions (NSW) v Kirby [2017] NSWSC 1754, Hulme J. said at [17]: "17 The Director was correct to submit that an offence under s 112(1)(a) of the Road Transport Act requires that the prosecution prove that the defendant drove a motor vehicle, and that, at the time of driving, the defendant was under the influence of alcohol or any other drug. It is not an element of the offence that the consumption of alcohol affected the defendant's driving." 1. Where the consumption of drugs has affected the defendant's driving, the offending must be more serious. It can reasonably be inferred that this the case for Mr Elliot: see The Queen v Baden-Clay [2016] HCA 35 at [46] – [47]. Drive Whilst Suspended 1. In relation to the Drive Suspended matter, the offender told police that he knew that his licence was suspended. 2. I am of the opinion that the objective seriousness of that matter sits in the low range. There were no aggravating factors associated with his driving on that occasion. Possess Prohibited Drug matters 1. The nominal penalties imposed over the past 8 years on the offender for Possess Prohibited Drug have not deterred him from committing further identical offending. 2. The quantity of each drug is less than the small quantity. The objective seriousness sits in the lower range. Moral Culpability 1. The offender was not only on conditional liberty at the time of this offending, but specifically on conditional liberty for driving offences including driving under the influence of illicit drug. To borrow the words of Johnson J. in Jibran v The Queen [2020] NSWCCA 86 at [202]: "202 The applicant had prior non-custodial sentencing options extended to him and he had not made full use of the indulgences he had received through those sentencing measures." 1. In Whyte (supra) the following observations were made regarding sentence at [214]: "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." And further at [221]: "221 ... 'The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence.'" And further at [229]: "229 The guideline for offences against s52A(1) and s52A(3) for the typical case identified above should be: '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.'" 1. The offender's moral culpability is high. His case is not 'typical' within the factors identified in Whyte (supra). He was on conditional liberty. This is a case of abandonment of responsibility and not one of misjudgment or momentary attention. He was aware at least from being fined and subsequently suspended from driving for driving with an illicit drug in his oral sample, and later being prosecuted in court for the offence of drive under the influence of drugs, that it was criminally wrong to drive a motor vehicle in such circumstances. 2. Notwithstanding that, he drove from Crows Nest to Woolooware having ingested a cocktail of drugs with passengers in the car with genuine risk to them and other road users. 3. The offenders prior record and traffic history disentitles him to any leniency, however not in the sense contemplated by section 21A(2)(d) Crimes (Sentencing Procedure) Act, which relates to prior convictions. Mr Elliot does not have a conviction for Drive Illicit Drug – he received a traffic infringement notice. Similarly, he does not have a conviction for Drive Under the Influence of an Illicit Drug. 4. The offence of Drive Under the Influence was initially charged as a first offence. It only becomes a second offence upon conviction. Presumably, it still needs to be considered by the sentencing court as a second or subsequent offence, given the obligation to consider the maximum penalty when considering the serious of the offending. l have set out section 9(2A), to highlight this curious aspect of the legislation. Section 9(2A) Second or subsequent offence where previous offence dealt with by way of penalty notice If a person is convicted of an offence against this Act (the "new offence" ), that offence is a "second or subsequent offence" if-- (a) within the period of 5 years immediately before being convicted of the new offence, the person committed an alcohol or other drug related driving offence (the "previous offence" ), and (b) that previous offence-- (i) was against the same provision as, or was an equivalent offence to, the new offence, and (ii) was dealt with by way of penalty notice, and (c) the occasion when the new offence occurred was different from the occasion when the previous offence occurred. 1. In Meis v R [2022] NSWCCA 118 at [40] – [42], the Court examined whether there was an obligation to take into account a significant previous conviction pursuant to section 21A(2)(d) Crimes (Sentencing Procedure) Act. The court said: "40 If it is accepted that the previous conviction was significant and therefore the sentencing judge was obliged, under s 21A(2)(d), to take it into account, a real question concerning the manner in which it was to be taken into account arises. That is because, as mentioned above, it could not be taken into account in a way that was inconsistent with common law principles. 41 The relevant principles were stated authoritatively by Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 ("Veen (No 2)") in the following way: 'The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.' 42 Accordingly, before the applicant's previous conviction could properly be taken into account as an aggravating factor, it was necessary that the sentencing judge consider: • whether the present offending was an uncharacteristic aberration; • whether the applicant manifested in the commission of these offences a continuing attitude of disobedience of the law; and • whether the applicant's previous offence illuminates his moral culpability in relation to the current offending or shows a dangerous propensity, or a need to impose "condign punishment" by way of specific and general deterrence." 1. In the case now under consideration, I make the following findings beyond reasonable doubt, notwithstanding his lack of convictions for major traffic offences despite the offences being proved. The offender's present offending was not an uncharacteristic aberration. The offender manifested a continuing attitude of disobedience to the law. His previous offence illuminates his moral culpability in relation to the current offending. It is also likely that his offending shows a dangerous propensity, or a need to impose condign punishment by way of specific and general deterrence. 2. The current offending represents an increasing and escalating level of offending over a period of time that has now resulted in life threatening injuries to one of his passengers, and bodily harm to another. He has been dealt with by courts on 4 prior occasions for possession of a prohibited drug. He committed the offence of Drive with Illicit drug in Oral Sample which carried a maximum penalty of a monetary fine; followed by Drive Under the Influence of a Drug which carries in the offender's case 2 years imprisonment as a maximum penalty; and now faces sentence for Dangerous Driving Under the Influence of a Drug Occasioning Grievous Bodily Harm, as well as Cause Bodily Harm by Misconduct whilst in charge of a motor vehicle. 3. Although section 21A(2)(d) Crimes (Sentencing Procedure) Act has no part to play, the common law principles in Veen No.2 emphasise the need for specific and general deterrence to protect the community. 4. For the purpose of resentencing on the matter, the relevant purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act include denunciation of the offending conduct, specific deterrence, general deterrence, protection of the community, making the offender accountable for his actions taking into account the need to promote his rehabilitation and ensuring that is adequately punished for the offence. Sections 3A and 5 Crimes (Sentencing Procedure) Act 1. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community. 1. All of the purposes of sentencing are relevant to the sentences to be imposed concerning the driving matters, including the Drive Under the Influence of Drugs matter. 2. A licence to drive a motor vehicle is a privilege and not a right. It carries with it significant obligations, including the observance of, and adherence to, road rules. There is a further responsibility to other road users, and passengers who have placed their trust in the hands of the driver and who have no control over the movement of the vehicle in which they travel. 3. I take into account the subjective factors of the offender. He is reportedly abstinent, in a relationship, has employment and the support of his partner and his parents. He has taken some positive steps in recent times towards his rehabilitation. 4. Notwithstanding that, I am unable at this time to find that the offender is unlikely to reoffend. I find that he has reasonable prospects of rehabilitation, though I remain guarded due to his history of drug use, his history of committing major driving offences involving drug use, and his recent reported abstention. Much will depend on his ability to cease illicit drug use. 5. In R v Fangaloka [2019] NSWCCA 173 at [64], Basten JA. said: "64 … there is no doubt that a sentencing court must have regard to the personal circumstances of the offender, but they should not divert the court from imposing adequate punishment, having regard to the objective gravity of the offence.[40] 40 See also R v Dodd (1991) 57 A Crim R 349 at 354; R v Rushby [1977] 1 NSWLR 594; R v Carroll [2008] NSWCCA 218 at [20]-[21]." 1. Section 5 of the Crimes (Sentencing Procedure) Act provides that a court should not impose a sentence of imprisonment unless having considered all possible alternatives, no other sentence is appropriate. 2. I am satisfied that the offences of Dangerous Driving Occasioning Grievous Bodily Harm Under the Influence of a Drug; Cause Bodily Harm by Misconduct in charge of a Motor Vehicle and the earlier Drive Under the Influence of a Drug matter cross the section 5 threshold and that only a period of imprisonment is appropriate. Aggregate sentence 1. I will deal with the offender by way of an aggregate sentence pursuant to section 53A Crimes (Sentencing Procedure) Act. I have applied discount of 25% to each offence and taken into account the aggravating and mitigating factors, the purposes of sentencing and relevant case law. H No./Seq Offence Indicative Sentence H87715504/1 Dangerous Driving Under the Influence of Drugs Occasioning Grievous Bodily Harm 2 years (starting point 3 years) H87715504/2 Cause Bodily Harm by Misconduct of Motor Vehicle 12 months H76000549/1 Drive Under the Influence of Drugs (2+ offence) 12 months 1. The sentence is 3 years. Consideration of Intensive Correction Order 1. I am asked to deal with the offender by way of a community based option by placing him on an Intensive Correction Order. 2. I have considered already section 3A as required pursuant to section 66(3) Crimes (Sentencing Procedure) Act, and will refer to further case law shortly. 3. In relation to section 66(1) of the Act, I am not of the opinion that the community is protected by the imposition of an ICO. The risk of reoffending remains genuine. 4. In relation to section 66(2) of the Act, I am of the opinion that a sentence of full time custody is more likely to deal with the offender's risk of re-offending. 5. In R v Fangaloka (supra) at [67], Basten JA said: "67 … No doubt there will be cases in which a person otherwise likely to serve fulltime custody will obtain an ICO, because general deterrence is largely disregarded in favour of a possible reduction in the risk of reoffending by the particular offender, if not sent to gaol. On the other hand, there will remain cases in which the significant element of leniency contained in an ICO is inconsistent with the imposition of an adequate penalty, so that an ICO is an unacceptable form of punishment." 1. In Karout v R [2019] NSWCCA 253 at [94], Fullerton J. said: "94 The fact that his Honour made positive findings as to the applicant's good prospects of rehabilitation and that he was unlikely to reoffend, findings which might, in addition to a finding of special circumstances, have supported the exercise of the power in s 66 for the making of an ICO, did not dictate that an ICO was the appropriate sentencing outcome. Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant's offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play." 1. The sentence will by way of full-time custody. Special Circumstances 1. I make a finding of special circumstances noting it is the offender's first time in custody; taking into account his drug addiction issues which appear to be in early remission; the impact of Covid-19 on prison population in the form of decreased visitations and increased lockdowns, and reduced work opportunity: see Mbele v The Queen [2021] NSWCCA 182 at [97], [98] and [104]. ORDERS 1. The offender Craig Elliott is convicted on all counts. 2. The previous orders of conditional liberty for Drive Suspended and Drive Under the Influence of a Drug are revoked. 3. The offender is sentenced to an aggregate sentence of 3 years from 12 December 2022 to 11 December 2025 with a non-parole period of 20 months. 4. The non-parole period is to date from 12 December 2022 and will expire on 11 August 2024. 5. The balance of term on parole will commence on 12 August 2024 and will expire on 11 December 2025. 6. The non-parole period is 55.5% of the total sentence which indicates a finding of special circumstances, the reasons for which have been set out earlier in these remarks. 7. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release. 8. For the Drive Whilst Suspended matter, and for the 2 counts of Possess Prohibited Drug, the offender is convicted pursuant to section 10A Crimes (Sentencing Procedure) Act, reflecting the principle of totality. 9. The offender is disqualified from driving a motor vehicle for the automatic period of 5 years pursuant to section 205(3) and (4) Road Transport Act. ********** 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: 13 June 2023