New South Wales District Court CITATION: R v Whybrow [2007] NSWDC 223 HEARING DATE(S): 24 October 2007 JUDGMENT DATE: 2 November 2007 EX TEMPORE JUDGMENT DATE : 27 October 2007 JURISDICTION: Criminal JUDGMENT OF: Nield DCJ DECISION: See paragraphs 42 - 46 CATCHWORDS: Criminal Law - Sentence - Offences of aggravated dangerous driving causing death and grievous bodily harm - Prescribed concentration of alcohol present in the offender's blood - Level of moral culpability LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Jurisic (1998) 45 NSWLR 209 CASES CITED: R v Whyte (2002) 55 NSWLR 252 R v Price (2004) NSWCCA 186 R v Thompson (2007) NSWCCA 299 PARTIES: Crown Jamie Samuel George Whybrow FILE NUMBER(S): 07/31/1002 COUNSEL: Mr D. Brack (Crown) Mr P. Nematalla (Offender) SOLICITORS: NSW DPP Brazel Moore Lawyers JUDGMENT HIS HONOUR: 1 The offender is Jamie Samuel George Whybrow. He was born on 17 October 1985. Accordingly, he was aged twenty years six months when, on 23 April 2006, he was involved in the subject motor vehicle collision and he is aged twenty-two years now. 2 The offender is the third child of his parents' four children. He has two older and one younger brothers. Both his parents and all his siblings are alive. 3 The offender was raised by his parents until their separation when he was aged twelve years. Thereafter, he was raised by his mother alone until her remarriage and, thereafter, by his mother and stepfather. He has two step siblings as a result of his mother's remarriage. 4 The offender's upbringing by both his mother and father until their separation and then by his mother and stepfather was pleasant and uneventful. Although he does not have close contact with his father and his oldest brother, he has close contact with his mother, stepfather and other siblings. 5 The offender completed year 10 at Wyong High School and he obtained the School Certificate. After leaving school, he commenced an apprenticeship as a motor mechanic and obtained a certificate as a motor mechanic. 6 On 17 October 2005 the offender enlisted in the Australian Army. He has completed his basic training and has been placed in the Rifleman Wing of the School of Infantry. He has performed his duties to the required standard. As a result of his imprisonment for the commission of the subject offences, he will be discharged from the Army. 7 The offender is married. He is the stepfather of his wife's two children, one aged ten aged and the other aged six years, from her earlier marriage. He is the father of his wife's child aged six months. 8 The offender was in good physical and mental health until the subject motor vehicle collision. However, as a result of the collision, he suffered numerous significant injuries, as detailed in the report of Dr Pollock, Exhibit 2, for some of which he underwent surgical repair. He has made a good but not complete recovery from his injuries. 9 The offender is not a criminal. He has an unblemished character (see Exhibit AA). He is well liked by people who know him (see Exhibits 4 and 5). He is well regarded by those who supervise him (see Exhibits 1, 3, 6 and 7). 10 The offender was issued with a learner's permit on 10 December 2001 and a driver's licence on 24 October 2004. Before the subject motor vehicle collision he had not committed any driving offence in New South Wales (see Exhibit AB) but he had committed four driving offences in Queensland (see Exhibit AC). The driving offences are minor and pale into insignificance when compared with the subject offences. 11 As I have said already, the collision in which the offender was involved occurred on 23 April 2006. It occurred at about 12.45am on Sparks Road at Warnervale. It caused the deaths of Mr Patrick Thomas and his wife Mrs Ann Thomas and the serious injury to their daughter Ms Kate Thomas, in addition to the significant injuries to the offender. It has changed forever the lives of Ms Thomas (see Exhibit B2) and her siblings Mr Hamish Thomas (see Exhibit U), Mr Lachlan Thomas (see Exhibit V) and Mr Patrick Thomas (see Exhibit W) and, albeit perhaps to a lesser extent, the lives of the extended family of Mr and Mrs Thomas (see Exhibits X, Y and Z) and also the lives of the offender, his wife and their children. 12 The circumstances in which the collision occurred are not in dispute. They are set out in the statement of facts, Exhibit A, the statements of Ms Thomas, Exhibit B1, and the statements of people who came upon the collision (see Exhibits C to G inclusive). The place at which the collision occurred can be seen on the map, Exhibit H, and the photographs, Exhibit K. The extent of the damage to the motor vehicle being driven by Mr Thomas and that being driven by the offender can be seen in the photographs, Exhibit K. The nature and the extent of the injuries suffered by Mr and Mrs Thomas are detailed in the reports Exhibits N and Q respectively. The injuries suffered by Ms Thomas are detailed in the report of the treating doctor, Exhibit R. The police investigation of the collision is outlined in the statements of police, Exhibits L and M. The blood alcohol concentration of the offender at the time of the collision is revealed by Exhibits S and T. 13 What happened was this. During the day and night of Saturday 22 April 2006 the offender had been somewhere, and I do not know where, with someone, and I do not know who, and had consumed a considerable quantity of intoxicating liquor, and I do not know the quantity. At about 11.45 am on Sunday 23 April 2006 he was driving a motor vehicle, Hyundai Accent sedan, registered number TSR-387, in a westerly direction along a sweeping right-hand curve on Sparks Road in Warnervale at an unknown speed. The offender was alone in the vehicle that he was driving. At the same time, Mr Thomas was driving a motor vehicle, Ford Laser sedan, registered number YAK-091, in an easterly direction along the curve of Sparks Road at an unknown speed towards the motor vehicle being driven by the offender. Mr Thomas had his wife on the front passenger's seat and his daughter on the rear seat in the vehicle that he was driving. At a place about 300 metres to the west of the intersection of Sparks Road with Warnervale Road, which is also known as Albert Warner Drive, the vehicle being driven by the offender collided into the vehicle being driven by Mr Thomas. The collision was caused by the offender causing or allowing the vehicle that he was driving to leave the westbound side of Sparks Road and cross over the double unbroken centre lines onto the eastbound side of Sparks Road and into the path of the vehicle being driven by Mr Thomas. Tyre marks, commencing about fifty-eight metres from the rear of the vehicle that the offender was driving, and travelling from the westbound side onto the eastbound side of Sparks Road, suggest that the offender had applied the brakes of the vehicle that he was driving at some place greater than fifty-eight metres from the place of the collision and that the brakes had locked the wheels, leaving the tyre marks on Sparks Road. 14 On 6 June 2006 the offender was charged in Newcastle police station with, inter alia, the following offences: (1) Aggravated dangerous driving causing the death of Mr Thomas; (2) aggravated dangerous driving causing the death of Mrs Thomas; and (3) aggravated dangerous driving causing grievous bodily harm to Ms Thomas. After being charged, he was released on his bail to appear later in a Local Court to answer the charges. 15 In due course, on 8 February 2007 the offender appeared before a magistrate in the Local Court at Wyong to answer the charges. He pleaded not guilty to the charges and he was committed to appear in this Court on a date to be fixed for his trial. 16 Consequently, on 30 April 2007 the offender appeared before Judge Charteris in this Court for arraignment with the charges. On being arraigned, the offender pleaded not guilty to the charges. His trial was fixed for 27 August 2007. 17 However, on 27 July 2007 the offender appeared before me in this Court and he was again arraigned with the charges and he pleaded guilty to them. I stood over the sentencing proceedings to 18 October 2007, later changed to 24 October 2007. 18 Accordingly, on 24 October 2007 the offender appeared before me in this Court for sentence. I received documentary material from the Crown Prosecutor and the offender's counsel and I heard evidence from the offender and his wife and submissions from counsel as to sentence after which I stood over the sentencing of the offender to today. I do not doubt the evidence of the offender or his wife. I do not doubt what she has said in the statement now Exhibit 9 tendered today. 19 I am now to impose sentences upon the offender for the offences to which he has pleaded guilty. 20 Before I continue there are two things I wish to say. Firstly, I extend to the children and family of Mr and Mrs Thomas the Court's condolences for their great loss. Secondly, I wish to explain the process of sentencing an offender. Determination of an appropriate sentence to impose upon an offender for an offence involves the taking into account of, and the balancing of, many factors. The purposes of sentencing is outlined in s 3(A) of the Crimes (Sentencing Procedure) Act in these terms: "The purposes for which a court may impose a sentence on an offender are as follows: (a)To ensure that the offender is adequately punished for the offences; (b) to prevent crime by deterring the offender and other persons from committing similar offences (c) to protect the community from the offender; (d) to promote the rehabilitation of the offender; (e) to make the offender accountable for his or her action; (f) to denounce the conduct of the offender; (g) to recognise the harm done to the victim of the crime and the community". The objective seriousness of an offence must be determined and taken into account. The subjective features of the offender must be determined and taken into account. Any aggravating or mitigating factors as outlined in s 21(A) of the Crimes (Sentencing Procedure) Act must be determined and taken into account. Deterrence, both personal and general, must be taken into account. Some of the factors pull in one direction and others pull in the opposite direction. A balance must be struck between the competing factors. I know that nothing can bring back Mr and Mrs Thomas and that nothing can heal the pain that their children and extended family feel because of their deaths and the anger that they feel towards the offender for causing their deaths. But I hope that they will accept and believe that I have applied the appropriate sentencing principles and that I have endeavoured to strike the correct balance between the competing factors in the sentences that I will impose upon the offender for the offences. 21 The offences of aggravated dangerous driving causing death is one contrary to s 52(A) subs 2 of the Crimes Act, for which the prescribed penalty is imprisonment for a maximum of fourteen years. It is an offence which cannot be dealt with summarily. It is an offence which does not carry a standard non parole period. 22 The offence of aggravated dangerous driving causing grievous bodily harm is one contrary to s 52(A) subs 4 of the Crimes Act, for which the prescribed penalty is imprisonment for a maximum of eleven years when dealt with on indictment, or imprisonment for a maximum of eighteen months if dealt with summarily. It also is an offence which does not carry a standard non parole period. 23 However, the offences of dangerous driving causing death and dangerous driving causing grievous bodily harm are offences to which the guideline judgments of the Court of Criminal Appeal is Jurisic and Whyte apply. The guideline is that, for a typical case involving a typical offender where the offender's moral culpability for the offence is high, a sentence of imprisonment for less than three years in the case of death and less than two years in the case of grievous bodily harm would be inappropriate. It is to be noted that the guideline applies to simple dangerous driving causing death or grievous bodily harm, not aggravated dangerous driving causing death or grievous bodily harm. 24 There cannot be any doubt that the offences committed by the offender are very serious offences. The offender's counsel did not submit that they were not serious offences. 25 The offender's counsel submitted that the offender's moral culpability for the offences was neither high nor low, being rather in the middle between high and low. He submitted that the only aggravating factor was the offender's blood alcohol concentration because there was nothing to show that the offender was driving his vehicle at an excessive or unreasonable speed, or that he was driving his vehicle aggressively or competitively or in a showing off manner, or that he was driving his vehicle when he was deprived of sleep. The Crown Prosecutor did not dispute the offender's counsel's submission. I accept this submission but, as I commented during the sentencing proceedings, I would have liked to have had evidence of where the offender had been, with whom he had been, what quantity of intoxicating liquor he had consumed during the day and night before the collision and over what distance he had driven his vehicle before the collision. 26 There cannot be any doubt that the offender, in deciding to drive his vehicle after having consumed sufficient intoxicating liquor to give him a blood alcohol reading of 0.150g of alcohol in 100ml of blood, abandoned responsibility for his driving of the vehicle. The offender's counsel did not submit that the offender had not abandoned responsibility for his driving of his vehicle. 27 The offender is entitled to a discount in sentence for his guilty pleas. They have saved the time and costs of a trial. They have relieved Ms Thomas of the need to give evidence, something which I suspect would have been painful to her. However, they were not entered at the earliest appropriate opportunity, they were entered after a date was fixed for the trial but before the date fixed for the trial. I consider that the offender is entitled to a discount in sentence of fifteen per cent on account of his guilty pleas. 28 The offender's counsel submitted that the offender, albeit that he does not have any memory of the collision, has accepted responsibility for what he had done and was remorseful for what he had done, with his remorse being shown by his guilty pleas and by what he has said to his supervisor (see Exhibit 3) and the psychologist when interviewed (see Exhibit 8) and me in his evidence. The Crown Prosecutor did not dispute this submission. I accept that the offender is remorseful for what he has done and that his remorse is real and genuine. 29 The offender's counsel submitted that the offender had excellent prospects for rehabilitation because he was beforehand a man of good character, with a relatively good driving record and because he has the ongoing support of his wife and his family and clearly he does have their support. I accept this submission. 30 The offender's counsel submitted that the offender was unlikely to re-offend because of his previous character and his relatively good driving record. I accept this submission. 31 In determining an appropriate sentence to impose upon the offender for each of the offences to which he had pleaded guilty I must recognise the purposes of sentencing, to which I have referred already, and I must take into account such of the aggravating factors referred to in s 21(A) subs 2 of the Crimes (Sentencing Procedure) Act as are present and such are the mitigating factors referred to in subs 3 of that Section as are present and any other relevant factor. 32 As to s 21(A), I consider that the only aggravating factor is that lettered (g) in subs 2 and that the mitigating factors are those lettered (b), (e), (f), (g), (h), (i) and (k) in subs 3. 33 One factor not mentioned in s 21(A) is deterrence. I see personal deterrence to be of less importance in this case than it might be in another case because I consider that the offender is unlikely to re-offend. However, general deterrence is important. It is something that cannot be overlooked or undervalued. People must be made aware, by sentences imposed upon offenders, of not only the folly but also the illegality of driving after having consumed a considerable quantity of intoxicating liquor, such as in the case of this offender sufficient to give him a blood alcohol concentration of the prescribed concentration of 0.150g of alcohol in 100ml of blood. 34 What, then, having regard to what I have said, is an appropriate sentence to impose upon the offender for each offence? 35 The Crown Prosecutor drew my attention to the decision of the Court of Criminal Appeal in Price (2004) NSWCCA 186. I have read this judgment and I have noted what was said by the Court of Criminal appeal. 36 I consider, however, that the decision of the Court of Criminal Appeal in Thompson (2007) NSWCCA 299, which was handed down on 24 October 2007, which was, coincidentally, the day on which I conducted the sentencing proceedings, to be more applicable. The Court of Criminal Appeal dismissed an appeal by the appellant who had been sentenced to imprisonment for an overall period of ten years six months, with a non parole period of seven years and six months and parole period of three years, for two offences of aggravated dangerous driving causing death. 37 I have determined, balancing everything that I have said, but putting aside the discount for the guilty pleas, that the starting point for the offences of aggravated dangerous driving causing death is imprisonment for seven years and the starting point for the offence of aggravated dangerous driving causing grievous bodily harm is imprisonment for four years. I reduce the period of seven years by fifteen per cent, which, for ease of calculation, is one year one month, to five years eleven months, and the period of four years by fifteen per cent, which, again for ease of calculation, is eight months, to three years four months. 38 Absent a special circumstance, a sentence of imprisonment for five years eleven months would be apportioned into a non parole period of four years five months three weeks, and a parole period of one year five months one week, and a sentence of imprisonment for three years four months would be apportioned into a non parole period of two years six months and a parole period of ten months. 39 As to special circumstances, I consider that the offender's age, his previous character, his relatively good driving record, the excellent prospects for his rehabilitation and the likelihood that he will not re-offend are special circumstances which allow me to apportion the sentence into a non parole period of sixty per cent of the period and a parole period of forty per cent of the period. 40 As to whether the sentences should be served concurrently or consecutively or partly concurrently and partly consecutively, I realise that the three offences arise from the one collision which was the result of the one act of dangerous driving by the offender but the offender committed three offences and he must be punished appropriately for those offences. Therefore, I consider that the sentences should be served partly concurrently and partly consecutively. 41 As to totality, I consider that, to properly reflect the offender's total criminality for the three offences, the total sentence should be imprisonment for nine years, with a non parole period of five years four months and a parole period of three years eight months. 42 Accordingly, Jamie Samuel George Whybrow, for each of the three offences to which you have pleaded guilty, you are convicted. I sentence you as follows: (1) For the offence of dangerous driving causing grievous bodily harm to Ms Thomas, imprisonment for three years four months, with a non parole period of two years from 24 October 2007 to 23 October 2009, and a parole period one year four months from 24 October 2009 to 23 February 2011. (2) For the offence of dangerous driving causing the death of Mr Thomas, imprisonment for five years eleven months with a non parole period of three years eight months from 24 June 2009 to 23 February 2013 and a parole period of two years three months from 24 February 2013 to 23 May 2015. (3) For the offence of dangerous driving causing the death of Mrs Thomas, imprisonment for five years eleven months with a none parole period of two years three months, from 24 November 2010 to 23 February 2013, on which date you are to be eligible to be released on parole, and a parole period of three years eight months from 24 February 2013 to 23 October 2016. 43 The earliest date for your release from prison on parole is 23 February 2013. 44 I dismiss the backup charge of negligent driving causing death. 45 I convict you of the related charge of driving with the high range prescribed concentration of alcohol in your blood and sentence you to imprisonment for a fixed period of nine months from 24 October 2007 to 23 July 2008. 46 I disqualify you from holding or obtaining any licence under the relevant Legislation period of six years from today, to and including 1 November 2013. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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