R v Coffee, Bradley [2010] NSWDC 261

New South Wales District Court

CITATION: R v Coffee, Bradley [2010] NSWDC 261

JUDGMENT DATE: 7 May 2010

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

Convicted. DECISION: Sentence to a non-parole period of 9 months to date from the 7th May 2010 and expiring on the 6th February 2011. Balance of term of 9 months to expire on the 6th November 2011. Offender disqualified for a period of 18 months to date from the 2nd February 2009 and expiring on the 6th May 2011.

CATCHWORDS: Criminal Law - Sentence - Drive manner dangerous whilst having high range PCA - blood alcohol reading 0.204 - phone call from ex-partner - offender angry - left party to purchase cigarettes - accompanied by passenger - burnout through roundabout - excessive speed - loses control of car through extended corner - degloving injury to left elbow, thumb and index finger - middle finger amputated - high level of moral culpability - aged 24 - problematic childhood - father of two young children - tensions in second relationship - brother in custody - breach of s.9 bond - some rationalising of offending conduct - contrition expressed - clouded rehabilitation prospects

CASES CITED: R v Whyte [2002] NSWCCA 343

PARTIES: Regina Bradley Stephen Coffee

FILE NUMBER(S): 2009/00044082

COUNSEL: Crown: K White Defence: K Robinson

JUDGMENT 1. No one doubts driving at speed is dangerous. Those involved in motor vehicle speeding sports are very conscious of the risks driving at speed poses, that is why their cars are specifically modified to protect the driver and to some extent the vehicle in the event of an impact. That is why they usually all go in the same direction. That is why helmets and protective clothing are worn. That is why tyres are adjusted for the weather. And that is why none of them sit behind the wheel of a car with alcohol in their blood system. Anyone who wants to drive at speed without taking proper precautions is not welcomed in the motor vehicle speeding sports. Trained and experienced speed car drivers would rightly regard such drivers as rogues and a menace. 2. Bradley Stephen Coffee has no appropriate modifications to his vehicle, was not wearing protective clothing, had with him a passenger wearing neither helmet nor protective clothing. He chose to sit behind the wheel of his vehicle whilst having a blood alcohol reading of 0.204 grams of alcohol per 100 millilitres of blood, and chose to drive at speeds on the streets of Dubbo. His vehicle was involved in an impact, the result of which grievous bodily harm was occasioned to his passenger. 3. Today he is to be held accountable for his criminal conduct. As sentencing judge it falls to me to determine a number of competing tensions in this matter. Those tensions arise because I have to determine the appropriate sentence for this offence as it was in the community of Dubbo, harming Mr Sommerville in a permanent way for the rest of his life, in an offence committed by this now 24 year old, I think 23 perhaps at the time of the offence. That can only be done by determining what is called the objective seriousness of this offence. Before that can be done, I must assess the facts, make findings of fact in respect of both the offence and the offender. 4. To some extent my fact finding task has been circumscribed in that the parties have tendered an agreed statement of facts and a number of photographs. I should indicate that I am not a party to those agreed facts but I can only find the facts on the material before the court, and if the facts as I find them to be do not reflect the real situation that occurred, it must be remembered I can only find the facts on the material I have. Those facts are expressed in this way. Facts 5. Over the course of the afternoon and evening of Sunday 1 February 2009 the offender was drinking alcohol. He told police he had three stubbies of Tooheys Extra Dry at a pub in Wellington. With his friends he returned to Dubbo, buying a carton of beer before going to his house in Elizabeth Street, West Dubbo. The offender told police he argued with his ex-partner, Zoe, over the telephone. He then started drinking beer with his friends as they sat around the backyard. 6. At about 7.30pm the complainant, Rohan Sommerville, arrived at his home. Sommerville had been friends with the Coffee family for a number of years and was good friends in particular with this offender's younger brother. Sommerville started drinking beer, he had about two or three beers at the house. The offender thought he, the offender, drank about four beers while sitting around outside. He told police that during this period of time he was still on and off the phone with his ex-partner which made him upset. 7. He told police that at about 10pm he jumped into his car, which was parked around the back of the house. He claimed Sommerville got into the car to talk to him. At some point, perhaps after twenty minutes or so, he decided to go for a drive to clear his head and to obtain a packet of cigarettes. The offender said Sommerville insisted, over his objection, that he would come with him to make sure he was all right. 8. Sommerville told police that at about 10pm the offender wanted to go for a drive to get a packet of cigarettes, he hopped into the front passenger seat and went with him. The offender drove from his house in Elizabeth Street, West Dubbo to a service station on the corner of Cobra and Fitzroy Streets in Dubbo South where he bought the packet of cigarettes. The offender returned to the car and drove down Fitzroy Street in the general direction of east Dubbo. He turned right into Wingewarra Street. As he did so, he put his foot down on the accelerator causing the back of the car slightly to drift to the side. He continued along Wingewarra Street and travelled onto an adjoining street, Birch Avenue. A vehicle driven by Alison Burns was travelling along Birch Avenue at this time. 9. Ms Burns was carrying her adult daughter, Leslie Coleman, and her seven year old grandchild as passengers. A hundred metres or so before the roundabout at the intersection of Wheeler's Lane and Birch, Ms Coleman heard the sound of a loud engine approaching from behind. She told police that as her mother slowed for the roundabout, the vehicle driven by the offender drove past them in the outside lane; it should be noted that there are dual lanes on approach to that intersection. Ms Coleman noted her mother had to swerve the vehicle to the right to avoid a collision. Ms Coleman saw the car travelling at a speed in excess of the fifty kilometre per hour speed restriction. 10. The offender's claim was that the speed he was travelling was no more than sixty kilometres an hour because of a bend in the road, the body roll of the vehicle and because the tyres on his car were "not that good". The offender described seeing a car which he passed on the inside lane, saying "they moved over for me". 11. Ms Coleman saw the offender drive through the roundabout, swerving between and occupying both lanes. The vehicle appeared to loose control as it left the roundabout hitting the end of the traffic island, spinning around about three times before coming to a stop across the road. Ms Burns drove out around the car but the offender pulled back out in front of her and drove off. Ms Coleman rang the police. 12. The offender claimed he did a controlled drifted burnout throughout the roundabout. The offender turned off Birch Avenue into Windsor Parade travelling at speed. Smoke was coming from the rear tyres of the car and it fishtailed as it went around the corner and up the road. It sped off. 13. Ms Coleman and Ms Burns lost sight of the car. The offender told police he drove off after doing a controlled drifted burnout through the roundabout, turning into Windsor Parade whilst doing about one hundred kilometres per hour, losing control and skidding over a traffic island in the middle of the road, before continuing on. 14. Mr Sommerville told police he began to worry and braced himself. Sommerville could not recall if he said anything to the offender. 15. The offender told police he sped off down Windsor Parade at about one hundred kilometres an hour before losing control in some bends going up and over a traffic island and on to the incorrect side of the road, before coming to a stop. As they travelled along Windsor Parade some distance behind, Ms Coleman again caught sight of the car as its rear tail lights went up and over the traffic island in the middle of the road. 16. Windsor Parade runs generally north to south before a large sweeping bend and then running east to west. The prevailing speed limit is fifty kilometres per hour. A person travelling in a southerly direction from the intersection of Birch Avenue would travel through a slight left hand and then a right hand curve prior to a large sweeping left hand bend, and then continuing in an easterly direction. A single lane of traffic is provided for both directions of traffic. The lanes are separated by a raised median strip with a concrete edge and a dirt centre. Trees grow at regular intervals along the centre of the median strip, and to these agreed facts I would add that there appears to be a bicycle lane on the sidewalk side of each of the traffic lanes. 17. At about this time, that is 10.45 to 10.50, Michelle Payne was in the lounge room of her home at 77 Windsor Parade. She heard a loud crashing noise and went to her front door where lights were shining in her eyes. She saw the offender's car in mid air, it looked as though it was rolling in the air before landing across the road and facing her house. She called Triple-0 and went outside to render assistance. Sommerville extracted himself from the car. He had blood running down his face having been hit in the head with a tyre jack when the car rolled. He felt severe pain coming from his left elbow and hand. He looked to his hand and saw his middle finger had been mangled; it looked like a peeled banana. A number of passers-by had stopped, including Ms Coleman and Ms Burns. The offender, who also got out of the car, refused offers of assistance. He was throwing his hands around in the air saying, "Fuck off, I don't need help." 8. Police arrived at the scene about 11pm. The offender was standing on a median strip in the middle of the road. Police asked if he was the driver of the car and he replied, "Yeah, so fucking what?" He did not comply with police request to sit down for treatment by ambulance officers, started to swear and became aggressive. He was unsteady on his feet and smelt of alcohol. Both he and Sommerville were taken to Dubbo base hospital. Police spoke to him again; he was still uncooperative saying, "Fucking let me fucking go." A sample of his blood was taken for analysis. As I have already indicated, his blood alcohol content was 0.204 grams of alcohol per 100 millilitres of blood. 19. Crime scene investigators examined the collision site and vehicle in the early morning and afternoon of 2 February 2009. From evidence on the roadway and damage to the vehicle, the investigator was of opinion that the car had been driven in a southerly direction in Windsor Parade from Birch Avenue, the offender failed to negotiate a sweeping left hand bend and collided with the cement gutter of the median strip in the centre of the road. It travelled along the median strip, breaking off a small tree in the centre of the island. It appears to me from my examination of the photographs to have collided with some part of a safety fence, or a wooden safety fence or guard rail. The car travelled over the island onto the incorrect side of the road before mounting the gutter on the far edge of the road and colliding with that timber railing. The offender came off the gutter, re-entered the roadway still on the incorrect side, rolled at least once before coming to rest on its wheels across on the incorrect side of the road. 20. A series of photographs numbered 1 to 17 taken on the morning of the collision and photographs 24, 25, 27, 30, 34, 39, 45, 46, 48, 53, 57, 58 and 67 taken later that afternoon, along with their captions form part of the statement of facts. Injuries 21. The offender told police he received stitches to a cut on his left hand, a broken left rib and swollen left leg as a result of the collision. He lost consciousness before alighting from the vehicle after impact. 22. Sommerville sustained an eighteen centimetre by eight centimetre degloving injury to his left elbow which went down to the bone joint. His left middle finger which had been mangled required amputation. He also sustained degloving injuries to his left index finger and thumb. He received twelve sutures for a scalp laceration. He underwent surgical operations over the course of a ten day hospital stay where his finger was amputated, skin grafts were taken from his thigh and applied to the elbow and left hand. He was unfit to resume complete normal work duties until the end of April 2009 and documented to police in May 2009 he had difficulties with dexterity due to the loss of his finger. For the first month after the collision he was unable to bath or dress himself. Today he cannot fully extend his left elbow. The series of photographs marked 1 to 9 showing his injuries after treatment form part of the statement of facts; they are marked B. 23. On 20 May 2009 police attended the offender's home and issued him with a form of demand in relation to the collision. He provided information, as noted above. He said he had seven Tooheys Extra Dry stubbies over the course of the evening. That may well be right, but it has to be added to the alcohol he had earlier consumed that day. He was ultimately served with a court attendance notice in relation to this offence. Objective Seriousness 24. From the facts as he finds them to be, a sentencing judge is required to assess what is called the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in this driving case with criminality of offences in other driving cases of a similar kind. It is in that way that the objective seriousness of the criminality of this offence is evaluated. That objective criminality has the most important part to play in the determination of the sentence. 25. So I turn now to assess the objective criminality of this offence. The roads of the State are for the most part owned by one of three levels of government, that is, the Federal government, the State government or municipal government. There is no inherent right to drive upon the roads. They are not the private property of any individual driver only those accorded the privilege of a driver's licence are entitled to drive upon the roads. 26. Licences are only issued to those who by submitting themselves to tests of their driving skills and their knowledge of the road rules agree to be bound by the rules of the road so that the safety of others who use the roads is assured. Passengers in motor vehicles are properly described as other users of the road. In addition to the road rules the criminal law has also been harnessed to punish those who as a consequence of their driving, when it reaches a criminal standard, cause a vehicle collision or impact as a result of which really serious injury is caused to another person. Driving will reach a criminal standard when the manner of that driving by the offender demonstrates such a serious breach of the proper conduct or management of a vehicle as to be in reality potentially dangerous to another person or persons. 27. Actual damage does not have to be occasioned to a person for driving to hit the standard of criminality. Your driving had hit that standard when Ms Coleman rang the police to say, something probably to the effect that "there's a maniac on the road", because it was dangerous to others at that point in time. That danger was consummated into reality when you lost control of your car because of the way you were driving. The criminality of this offence has to be evaluated against that background. Many offenders have difficulty understanding that this offence is a criminal offence, as distinct to a driving offence because they did not intend harm to the victim. 28. From a victim's point of view, of course, he, in this case, did nothing towards the offender that caused this injury to him. It is true the criminal law does have a role to play where offenders with malice do violence to others. But it is also true that the criminal law has a role to play where drivers, through their criminal conduct in the way in which they drive do violence to others, and that is this case. The unlawful conduct of this offender and his driving in a speed and manner dangerous to the public, was criminal because it was an offence against public safety. In this case it resulted in serious violence to the body of a friend of his brother's and probably a friend of his. The criteria by which criminality may be assessed includes, firstly, the seriousness of the breach of proper management or control of the vehicle, and that breach is determined by these things, in this case: + Failure to keep a proper lookout. + Failing to observe traffic control signs, signals, such as speed limits and warning signs. + Failing to remain on the correct side of the road. + Not being in a fit or proper state to drive, for example, in this case affected by alcohol and anger. + Absence of or failure to use proper skills.