District Court New South Wales Medium Neutral Citation: R v Glover [2011] NSWDC 65 Hearing dates: 1 April 2011 Decision date: 12 April 2011 Jurisdiction: Criminal Before: Neilson DCJ Decision: Total sentence of 1 year and 10 months imprisonment, comprising a non-parole period of 11 months and the balance of the sentence Disqualified from driving for 2 years Catchwords: CRIMINAL LAW - Sentence - Aggravated Dangerous Driving Occasioning Grievous Bodily Harm - PCA significantly above threshold - Poor driving record - Life threatening serious injury to child aged 2 years and 6 months Victim was offender's son - Extra Curial Punishment of offender (severe injuries) - Extra Curial Suffering of offender (anguish and remorse for damage done to own child) - Hardship to primary and secondary victims of the crime (son and mother caused by effect of offender's incarceration) - Prosects of rehabilitation (enhanced by lengthy period on parole) Guideline Judgment considered - Not a case falling within the typical case under Crimes Act 1900 section 52A - Clash of competing sentencing principles Legislation Cited: Crimes Act 1900 s 52A(4) Cases Cited: Hughes v R [2008] NSWCCA 48 R v Dhanhoa [2000] NSWCCA 257 R v Dutton [2005] NSWCCA 248 R v Howcher [2004] NSWCCA 179 R v Jurisic (1998) 45 NSWLR 209 R v Koosmen [2004] NSWCCA 359 R v Whyte [2002] NSWCCA 343, 55 NSWLR 252 Rosenthal v R [2008] NSWCCA 149 Category: Sentence Parties: Regina Daniel Glover Representation: Mr C Irani (Crown) Mr B Vasic (Offender) File Number(s): 2010/119208 Judgment 1HIS HONOUR: Daniel Glover stands for sentence as a consequence of adhering to a plea of guilty entered to a charge in the Local Court at the earliest available opportunity. That the plea was entered at the earliest available opportunity is accepted by the Crown. The charge to which the offender pleaded guilty is a very serious charge. 2The charge was that on 6 March 2010 at Appin he did drive a vehicle, namely a white Mitsubishi Magna sedan registered number VMV 775, when it was involved in an impact occasioning grievous bodily harm to Ryder Glover and the time of the impact he was driving a vehicle under the influence of an intoxicating liquor in circumstances of aggravation, namely, that he had in his blood the prescribed concentration of alcohol, a reading of 0.212. 3That is an offence contrary to s 52A(4) of the Crimes Act 1900 and Parliament has prescribed a maximum penalty of eleven years imprisonment. The offence can be shortly described as aggravated dangerous driving occasioning grievous bodily harm. 4At the time of the offence Ryder Nathaniel Glover was two years and six months old. Ryder is the offender's elder child and his only son. Ryder was severely injured. 5I must state at the outset that the present sentencing exercise I have found to be a very difficult one, perhaps the most difficult I have been called upon to carry out in the last five years. 6At about 10.25pm on Saturday 6 March 2010 the offender was driving the white Mitsubishi Magna referred to in the Court Attendance Notice along the Appin Road at Appin in a northerly direction. Appin Road is a major road which travels between Campbelltown and the Southern Highlands and gives access also to Wollongong. At the place where the collision occurred there were two lanes of traffic, each lane being 3.6 metres wide. On the western side of the carriageway there was a shoulder, which was 2.6 metres wide. On the eastern side of the carriageway an overtaking lane was ending just at the driveway to the property known as number 406 Appin Road which was, clearly, on the eastern side of the carriageway. The area in which the collision occurred consists mainly of small residential acreages. At the time of the offence the offender was living at 11 Carbasse Crescent, St Helens Park which was a few kilometres north of the collision scene. There is no evidence before me about the extent of traffic on Appin Road on a Saturday night at approximately 10.30pm. The only inference I can draw was the road would be relatively well used because it is a major road. As the offender was driving north, Ryder was in a child booster seat in the rear passenger side of the vehicle. Before the collision Mr Terry Kemsley, who was travelling north as well as was the offender, slowed his vehicle to "almost idling" in order to make a right hand turn across the double separation lines in order to enter the driveway of his property, number 406. That driveway is situated approximately 300 to 400 metres on the northern side of a crest in the roadway. In other words, for persons travelling in the direction in which the offender was travelling, there was a downhill run and the visibility should have been good. The carriageway at the site of the collision runs basically in a north south direction and is straight. The speed limit governing this length of the carriageway is 80 kilometres per hour. 7It is clear from the physical evidence that as Mr Kemsley was making the right hand turn into his driveway the Magna being driven by the offender was approaching him from behind and was being driven on the incorrect side of the carriageway. There was a skid mark measuring 16.5 metres caused by the driver's side front tyre of the Magna and that was clearly on the incorrect side of the carriageway. The front passenger side of the Magna collided with rear driver's side of the Ford Mondeo being driven by Mr Kemsley. It may well be that the offender drove his vehicle onto the incorrect side of the carriageway in order to avoid running into the back of the Ford Mondeo but at the same time the Ford Mondeo made the right hand turn. 8Senior Constable Grant Holman, a police crash investigator, expressed this view in paragraph 48 of his statement: "Approximately 13.5 metres south of the mailbox of property 406 Appin Road, Mr Glover has failed to keep left of the double separation lines painted on the roadway and has then collided with the driver's side rear of the silver Ford Mondeo which was preparing to turn right into the property 406 Appin Road, Appin." My interpretation of the photographic evidence and Senior Constable Holman's statement has been reduced to a diagram which has been marked for identification 3 and will be left with the papers. Counsel for the offender and the solicitor for the Crown agree that the interpretation that I have placed on that diagram accurately reflects what has occurred. 9After the collision witnesses, who came to the scene, described the offender as being slumped behind the driver's wheel of his vehicle for several minutes. The offender then got out of the car and entered the rear passenger seat and took Ryder out of the car. Ryder was crying. Police and ambulance officers arrived at the scene a short time after that. Police observed that the windscreen of the Magna had shattered with a spider web pattern evident on the driver's side of the windscreen. The offender had a large laceration to his forehead. It is clear to me that the offender's head struck the windscreen causing the large laceration to his forehead. The offender was asked by police at the scene, "What happened?", to which the offender said, "I don't remember." To this day the offender has no recollection of what occurred. He has given evidence and I accept him as a witness of truth and I accept that he has no independent recollection of what occurred on the evening in question. 10The offender was taken to Liverpool Hospital. Ryder was critically injured. He was taken to Campbelltown Hospital and subsequently airlifted to the Children's Hospital at Westmead. 11At 12.07am on the following morning a blood sample was taken from the offender. It was analysed and found to contain 0.212 grams of alcohol in 100 millilitres of blood. That is a high-range PCA. After the police investigated this collision they invited the offender to attend the Liverpool Police Station on 13 May 2010 and the offender voluntarily did that. He was cautioned and in interview told the police that he had no memory, "from a couple of days before the accident until the next day when I woke up in hospital". He was then charged and was refused bail by the police. The offender has been in custody since his arrest on 13 May 2010. He has been in custody now for eleven months. 12There is before me medical evidence relating to the victim, Ryder. There is a statement by Dr Michael Kern, a paediatric neurosurgeon. Ryder came under his care as soon as Ryder was transferred from Campbelltown Hospital to the Westmead Children's Hospital. Dr Kern noted a large vertical full thickness laceration on the forehead extending backwards for about ten centimetres. There was a depression in the skull which was palpable in the base of the wound and brain matter was evident in the wound, that is, it could be seen. A CT scan was performed at 2.07am. I shall not read what it says, other than to say the injuries were extremely serious, life threatening. Following the CT scan an emergency operation was performed. After that operation Ryder was admitted to the intensive care unit. The emergency operation was to deal with the damage to Ryder's brain and skull. He was admitted to the intensive care unit after the operation because of raised intra-cranial pressure as a result of brain swelling secondary to the severe traumatic brain injury. 13Once Ryder was stable enough he was sent for a MRI scan of the spine. The MRI scan of the spine showed damage to the posterior arches of the first cervical and second cervical spinal processes. There were also micro-fractures of the first, second, third and fourth thoracic vertebral bodies. Spinal surgeons in the team of Dr Randolph Gray were consulted and managed the spinal injury of Ryder. He was placed essentially in a brace under general anaesthetic. 14On 16 March 2010 Ryder was stable enough for discharge from the intensive care unit to the neurosurgical ward. Once in the neurosurgical ward the surgery was practiced for the special fitting of a thoracic / cervical / cranial brace to stabilise Ryder's spine and to allow for mobilisation and physiotherapy. It was only after several days in the ward that Ryder regained some ability to speak short sentences. 15The other piece of medical evidence before me concerning Ryder is a report of a meeting of 10 November 2010 of the Paediatric Brain Injury Rehabilitation Unit. That tells me that Ryder spent some weeks in the brace for the cervical and thoracic fractures, but it was removed and as at 10 November 2010 Ryder's spinal injuries were stable. As at 10 November 2010 Ryder was three years and three and a half months old. The report continues thus: "Ryder is otherwise healthy. There are no medical issues. He eats well. His immunisations are up to date and he is not on any medication. In terms of his behaviour at home he is doing okay. He does have some angry episodes but not anything out of the ordinary for a three year old and he is not keen on loud noises which may well be a hearing problem. In terms of his progress at day care, the day care Director, Ms Tania Bora, has filled in a form for us and generally feels that he has not lost any skills since his injury which is great. He has age appropriate motor, pre-academic, attention and behaviour skills and does not appear to be a child who becomes angry, cries easily or has temper tantrums, which is also great. Ryder does appear to fall more than his cousins and I will ask Bronwyn Thomas, who is not here in clinic today, to form a physiotherapy assessment with the family when they return for his hearing test. We talked with Martine Simons about the long term effects of brain injury and the problems that we have doing assessments when the children are very young because they have not yet developed relevant skills. I explained that we will need to follow up Ryder in the longer term to check for emerging behaviour, cognitive or physical issues and make sure we address these pro-actively to ensure that he stays on track with his general development in the first instance and his school career over time. We cannot make any formal comments about the extent of his injury until he is 18 years old at least, as we will need to make some degree of comment on the impact it might have had on future career and this will not become apparent until this late stage. I explained to Natalie [Ryder's mother] that we will need to assess Ryder every three or four years as time goes [on] and we will see him annually in the brain injury clinic." Natalie Suarez, Ryder's mother, told me that the hearing test was not proceeded with as it was not deemed to be necessary and the physiotherapy assessment was good, that is, that no physical problem was detected which might explain frequent falling. At the present time it is thought that Ryder is performing normally and being a typical three and a half year old boy, and as far as Natalie Suarez is concerned, her son has made a relatively good recovery. 16It is necessary for me to have considered those matters at some length because the extent of the grievous bodily harm suffered by the victim is a relevant consideration in assessing the seriousness of the crime committed by the offender. 17Whilst Ryder has done relatively well, in fact one could say excellently, the fact remains that no one will know the long-term sequelae of the injuries he sustained until he reaches maturity, both physical and mental. That cannot occur before Ryder turns eighteen years old. Both Ryder, his mother and the offender will have to live for the next fourteen to fifteen years, waiting to see whether Ryder has been left with any cognitive deficit or any deficit in his social functioning because of damage to one of the frontal lobes of his brain. Only time will tell. 18Ryder was not the only person injured in this accident. According to the statement of Senior Constable Holman, as a result of the collision the driver of the Mondeo, Mr Kemsley, was conveyed to Liverpool hospital suffering bruising down his right side, severe pain down his left side, neck pain and bruising to his forehead. Also as a result of the collision, the front seat passenger in the Mondeo, whom I believe to have been Mr Kemsley's wife, was conveyed to Liverpool hospital with her husband, but no evidence has been put before me of any injuries sustained by the front seat passenger. No medical evidence has been put before me about the injuries sustained by Mr Kemsley, nor is there any victim impact statement from him. Had he been severely injured, I would have expected such evidence to have been put before me. I can only assume that he sustained soft tissue injuries only, from which he made a relatively good recovery. 19Because it is relevant in sentencing, I should also point out that the offender himself sustained serious injuries. He suffered a fracture of his pelvis on the right side which has been referred to, colloquially, as a fracture of his right hip. He fractured four ribs, two on each side of his chest. He also fractured his sternum. He also told me that he fractured his left wrist. However, what bones he fractured he could not identify to me. He was on crutches as a result of his pelvic injury until 15 August 2010. That is, at the time of his arrest on 13 May 2010, he was on crutches and remained on crutches in gaol until 15 August 2010. The offender has been diagnosed with the need to undergo hip replacement in the next ten years. The inference to be drawn from what the offender told me is that he has developed osteo-arthritis of his hip joint as a result of damage to the intra-articular surface between the head of his femur and his pelvis, which will lead to the need for hip replacement. Oddly enough, the offender told me that the excruciating pain he feels in his hip is when he is not weight-bearing and laying in bed, seeking to move around. The offender told me that he discharged himself from Liverpool hospital after four days as an in-patient. He discharged himself so that he could be with his son, Ryder. He attended upon his son daily in hospital until Ryder's discharge. I do not know when that was, whether it was before or after the offender was arrested, but his evidence is of daily attending upon his son until his arrest on 13 May 2010. 20Relevant in a case of this nature is the offender's driving record. It is not good. On 10 September 2000, the offender committed the crime of driving with the low-range prescribed concentration of alcohol. For that offence, he was fined $400 and ordered to pay court costs of $56 and was disqualified from driving for six months from 4 October 2000 to 3 April 2001. There is no evidence that the offender drove during that period of disqualification. However, on 26 February 2010, the RTA decided to suspend the offender's licence because of his failure to pay fines. The suspension commenced on 12 March 2002. Antecedent to that, the offender had been fined $400 for negligent driving, an offence that occurred on 18 May 2001, and he had committed some other minor offences such as not displaying his "P" plates and exceeding the speed limit by not more than 15 kilometres per hour. However, on 3 May 2002, whilst suspended, the offender committed the crime of driving whilst suspended. For that offence, he was disqualified from driving for two years commencing on 5 July 2002. However, on 10 August 2002, he committed the crime of driving whilst disqualified and he obtained a further two-year disqualification period commencing on 5 July 2004 and expiring on 4 July 2006. At the same time, the Local Court made an habitual offender declaration and extended the disqualification period to 5 July 2008. 21Not having learned from his mistakes, the offender again drove on a public street. On 8 June 2003, he drove in a manner dangerous to the public. For that, the Local Court imposed a fine of $250, and there was a further disqualification for two years commencing on 5 July 2008 and expiring on 4 July 2010. At the same time that the offender was driving whilst disqualified and he was also guilty of the offence of driving with the mid-range prescribed concentration of alcohol. For that he was fined $250 and the same disqualification period was imposed. For a third offence at the same time, the Local Court also imposed a six-month suspended sentence. That was for driving a vehicle recklessly or furiously or in a speed or manner dangerous to the public. However, the offender breached his bond and was called up and was sentenced to periodic detention for six months. That periodic detention appears to have been served over a period between 4 May 2004 and 4 July 2005. In addition to the three offences of 8 June 2003, the Local Court also made a further habitual offender declaration and extended the disqualification period to 4 July 2015. However, in the following year, despite that lengthy disqualification period, the offender drove whilst disqualified on 13 March 2004 and received another two-year disqualification period and another five-year habitual offender declaration. Then on 9 July 2007, the offender drove whilst disqualified and incurred another two-year disqualification. By that time, the offender was disqualified from driving until 4 July 2024. Not only is that a bad driving record, but it also displays contempt for the law and, significantly, contains two earlier drink driving offences and it has to be remembered that in the current offence, the offender was driving with a blood alcohol reading of 0.212, a high-range drink driving offence. 22I am required to consider the seriousness of the crime committed by the offender. The injury sustained by Ryder was extremely serious. It was a life threatening and the boy was very lucky to have survived his injuries. The extent of the grievous bodily harm inflicted was great. The offender was driving with a high-range blood alcohol reading. Of course, the offence under s 52A(4) is committed if the blood alcohol reading was 0.15. Here, the blood alcohol reading was 0.212. That is, the offender had in his blood stream the high-range PCA limit plus the low-range PCA limit plus more. The extent to which the offender was intoxicated, the extent to which his intoxication exceeded that required for the commission of the offence, must be seen as an aggravating factor. Not only was grievous bodily harm suffered by Ryder, the offender endangered the life of Mr Kemsley, who was injured, and also his passenger. Because of the inability of the offender to recall the events in the days, let alone hours, before the time of the accident, I do not know, nor does anyone know, where the offender had been or what he had been doing. One does not know whether he had driven merely five kilometres or fifty kilometres. One does not know how many persons may have been exposed to his drunken driving. 23This crime is in the mid-range of seriousness for an offence of aggravated dangerous driving causing grievous bodily harm. The significant aggravating factors are: the extent of the offender's intoxication, the extent of the injuries inflicted upon Ryder, and the risk offered to Mr Kemsley and his passenger and to other users of a major arterial road on the outskirts of the City of Campbelltown at 10.30pm on a Saturday night. 24There are guideline judgments concerning cases arising under s 52A of the Crimes Act 1900. They are R v Jurisic (1998) 45 NSWLR 209 and R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252. The guideline promulgated in Whyte is this: "A frequently recurring case of an offence under s 52A has the following characteristics: (i) Young offender. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury to a single person. (iv) The victim is a stranger. (v) No or limited injury to the driver or the driver's intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value. In such a case, 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". The guideline judgment also lists eleven aggravating features. They are these: (i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of 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 of warnings. (ix) Escaping police pursuit. Those items that are numbered (iii) to (xi) in this last list relate to the moral culpability of the offender. 25For offences against s 52A(1), which concerns the death of a person, and s 52A(3), which concerns grievous bodily harm, 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. The guideline judgment also states that for the aggravated version of each offence under s 52A, an appropriate increment is required. Other factors such as the number of victims will also require an appropriate increment. Here, I am concerned with a case involving grievous bodily harm where there is an aggravated version of the offence, so I must theoretically look at two years plus an increment for the aggravated offence plus an increment, for example, for the injury sustained by Mr Kemsley. One would have, therefore, to consider a range, applying the guideline, of at least three to four years. Here, I already found that this case is in the mid-range of seriousness for an offence contrary to s 52A(4). I accept that the offender's moral culpability is high. 26The problem with the current matter is that this is not a typical case that is dealt with under s 52A. The offender, at the time of this offence, was twenty-seven years old. Relative to persons in my position, he is a young man. However, with reference to the criminal law, he is not. "Young offender" generally means someone between eighteen and twenty-two years old. The offender does not come before this Court as a man of prior good character, with no or limited prior convictions. There is not, in this case, injury to a single person, but injury to at least two persons, although I can only accept a permanent injury to one person, to Ryder. However, here the victim was not a stranger, but the offender's elder child and only son. There clearly was injury to both the driver, that is the offender, which is a substantial injury and injury to his intimate, the victim, his own son. I shall speak later of this but this is a case in which there is genuine remorse and true contrition. There has been a plea of guilty but one would have thought that it does have a limited utilitarian value because the case against the offender is very strong. 27The tragic aspect of this case is the relationship between the offender and the victim, his own son. This offence has devastated the offender. The only thing worse that could have befallen him would have been the death of his son. The psychic harm which the offender has bought upon himself has been a much greater punishment than the eleven months that the offender has spent in custody. Both the offender and Natalie Suarez, Ryder's mother, whom I can refer to as the offender's wife, have both given evidence and it is clear from their evidence that being incarcerated in Long Bay Gaol has not been anywhere near as painful for the offender as the knowledge of what he has done to his son and the guilt which the offender feels for his conduct and the guilt that he must bear for at least a further fifteen years, the anxiety of waiting to see if Ryder suffers from any long term problem as a result of his severe traumatic brain injury. The effect of what the offender has done to his own son has been more salutary than any prison sentence. 28The offender now concedes that his life up until the time of this offence was governed by an addiction to alcohol. He began drinking alcohol at the age of seventeen on weekends. That may have been binge drinking with his mates. By the age of twenty-one he was drinking daily a couple of beers. However over the ensuing years that increased to six or seven beers per day and on weekends he could consume at least one case of stubbies, that is, twenty-four stubbies of beer, which is thirty-six standard drinks. That led the offender to commit the low-range and mid-range PCA offences and the current offence. It also got him into trouble with other aspects of the criminal law, for example, an assault occasioning actual bodily harm on 8 January 2003, another assault occasioning actually bodily harm on 15 November 2003 and assaulting a police officer in the execution of his duty on 6 May 2006. 29The offender was interviewed by Associate Professor Alex Gilandas, a clinical forensic psychologist, on 26 February 2011 at Long Bay Gaol. In his report Professor Gilandas said this: "An analysis of Mr Glover's criminal history beginning at the age of 17 years and for the following ten years, identifies that the ten incidents on record were virtually all associated with alcoholic intoxication. It was obvious that his alcohol dependence impaired his judgment and was the significant contributor to his criminal history." The injury to Ryder has bought the offender to the realisation that he must change his ways, that he must change his life. He has not taken any alcohol since this offence, not any alcohol while he was at liberty between 6 March 2010 and his arrest on 13 May 2010 and has not taken any alcohol or any substitute for alcohol since he has been in gaol. He knows that he must abstain from alcohol. He wants to abstain from alcohol and he knows that there is more to it than just staying on the right side of the law. 30His wife Natalie told me, and I am sure he accepts what she swore on oath, as I accept what she swore on oath, that should the offender return to drinking he will lose not only his wife but also his children. Since this crime Natalie, who was pregnant at the time, gave birth to their daughter Sienna on 22 April 2010. She was born between the date of the offence now in question and the offender's arrest. 31In the current matter I must take into account what the law traditionally refers to as "extra-curial punishment". I must take into account the injuries which the offender himself received in this collision. They can be described as self inflicted but they are severe and are a direct result of the offender's own crime. I must also take into account what the law refers to as "extra-curial suffering", that is, the effect that this crime has brought about on the offender's own psyche, the effect that it has had on his emotional and intellectual life, the pain and suffering that is caused to him by the damage he has done to his own son. 32The line of authority in New South Wales begins with R v Dhanhoa [2000] NSWCCA 257 and continues with R v Howcher [2004] NSWCCA 179; R v Koosmen [2004] NSWCCA 359; R v Dutton [2005] NSWCCA 248; Hughes v R [2008] NSWCCA 48; Rosenthal v R [2008] NSWCCA 149. In R v Howcher , Hulme J said at [16]: "Despite the reference in R v Whyte to the victim being a stranger and the extent of the injury to the driver or persons known to him there is no discussion in that case of the significance of any such event. Nor as a matter of logic does it follow that the fact the victim is not a stranger of itself justify leniency. Rather is it a case that an offender's relationship with the victim may be some indication of extra-curial suffering flowing from the occurrence." At [18] his Honour said: "I can accept that suffering or the psychological impact on an offender of what he has done may properly be taken into account by a sentencing judge. Indeed his Honour said that the Applicant was "entitled to leniency" as a consequence of the anguish that he has experienced because of the death of a friend: R v Marlin (unreported, NSWCCA 10 September 1997)." That was an appeal from my learned colleague Judge Sides QC sitting here at Campbelltown. 33The line of authority did not commence in New South Wales but rather stems from a judgment of the Lord Chief Justice of England. In Hughes , Grove J said commencing at [21]: "I have already noted that the learned sentencing judge found that the applicant was genuinely and deeply remorseful. In R v Boswell [1984] 1 WLR 1047 at 1052, Lord Lane CJ referred to mitigating features which may be present in the commission of an offence against the equivalent of s 52A(1) (causing death by reckless driving contrary to s 1 of the Road Traffic Act 1972) and stated: "Sometimes the effect on the defendant, if he is genuinely remorseful, if he is genuinely shocked. That is sometimes coupled with the final matter which we wish to mention as being a possible mitigating factor, namely where the victim was either a close relative of the defendant or a close friend and the consequent emotional shock was likely to be great." In Jurisic , in reference to s 52A Spigelman CJ observed (at 225): "Legislative development in Australia has been in the same direction as that of England. The considerations which have been taken into account in the development of the English guidelines in this regard, including the list of aggravating and mitigating factors, have also been applied decisions of this Court." Of course, leniency does not derive from the mere fact that the deceased was not a stranger: R v Howcher , but from the consequential quality and depth of the remorse and shock as indicated by Lord Lane." In the next paragraph of his reasons Grove J referred to the matter that was then before the Court of Criminal Appeal and then continued thus at [25]: "Although his Honour referred to the despair and depression that the applicant experienced at the loss of Ms Cook, and the consequent genuineness of his remorse, it is difficult to conclude that this significant element of mitigation, in particular, has been appropriately reflected in the assessments above recounted." It is to be noted that as far as his Honour was concerned, and I note that Chief Judge at Common Law, Justice McClellan and Justice Simpson concurred, extra-curial suffering can be a "significant element" of mitigation. 34Both the offender and his wife gave evidence on 1 April 2011. The gallery was relatively full as it is at the current time with the offender's family, friends and supporters. No one present in Court on that day would have omitted to note that the offender's wife was weeping whilst giving evidence about the nature of the relationship of the offender and Ryder, and at the same time the offender was weeping in the dock. The effect of the damage done by the offender to Ryder has led to profound grief, profound remorse, genuine contrition and resolve for rehabilitation. 35The next matter which I should consider is what might be referred to in one way as "family hardship" but in the present case it is somewhat different. As a general proposition hardship caused to a family or the dependants of an offender by full time imprisonment is only taken into account in extreme or highly exceptional cases where the hardship goes beyond the sort of hardship that inevitably results when the breadwinner in the family is imprisoned. The fact that young children will be left without a carer as a result of the imposition of a gaol term is not normally an exceptional circumstance. However, here it is not merely a question of hardship for the family, it is a question of hardship for the victims. I use that word in the plural advisedly. 36Of course the primary victim of the offence committed by the offender is Ryder. A secondary victim of the offence is Ryder's mother, Natalie Suarez, the offender's wife. At the time she gave evidence she was still on maternity leave following upon the birth of Sienna. She is shortly to return to work. She works for the Commonwealth Bank as a Customer Service Specialist. The offender and Natalie have managed to buy a house, the house at St Helens Park to which I earlier referred. The mortgage is currently $227,000. The repayments on the mortgage are $1,657 per month. Natalie told me of the hardship she has had in paying off the mortgage whilst still on maternity leave, eating up such savings as are available and relying on the assistance of family. When she returns to work it will not be full time but only for two days a week because of the need to care for Ryder and Sienna. She needs the economic assistance of the offender's wages. Without that economic assistance she will find it difficult to pay off the mortgage even though the mortgagee is her own employer. She has been so troubled by her predicament that she has sought psychological assistance. Exhibit 16 is a letter under the hand of Jessie Bui, a psychologist at the Campbelltown Community Mental Health Clinic. Natalie has been attending a programme at the clinic since 3 November 2010, after being referred by her local general practitioner, Dr Barrera, who was at the time greatly concerned about Natalie's health. She has been diagnosed with post-natal depression aggravated by social circumstances. Effexor has been prescribed for Natalie to treat her depression and she has been placed in a programme for people with depression. Those in that programme have regular contact with Natalie on the telephone to ensure that she feels well supported. Ms Bui's report ends up in this fashion: "In my opinion, it would be beneficial for Natalie's health to have the support of her husband to assist her in her recovery. She will, however, need ongoing medical assistance to ensure she sustains a healthy mental state." Not only will the offender's release from custody assist Natalie financially, it will also assist her emotionally and psychologically. 37It is clear from the evidence of the offender and Natalie that the offender has an excellent relationship with his son and that his son has an excellent relationship with the offender. If Natalie cannot repay the mortgage, the house will have to be sold. That will be, in effect, selling Ryder's home, as well as her own and that of the offender. Insofar as I am called upon to exercise leniency or, as Mr Vasic put it, clemency, I am being asked to give leniency to the offender in order to assist both Ryder and Ryder's mother. Furthermore, insofar as part of the diagnosis of Natalie's condition is post-natal depression, it would also be of assistance to the other child of the relationship, Sienna, Ryder's sister. I therefore do take into account in this sentencing exercise the interests of both Ryder and his mother and sister, which call for the exercise of leniency towards the offender, not for the offender's good, but for the good of his wife and children. 38Turning to the offender himself, I already have made reference to his unfortunate alcohol addiction. Professor Gilandas took a history from the offender which the offender averred to on oath as being accurate. Time prevents me from going into the offender's background in great detail. Suffice it to say that Professor Gilandas came to the view that the offender's alcohol problem resulted from his background. He said this: "Mr Glover has had a long-standing anxiety disorder since childhood. This emanated from his emotionally disturbed background and insecurities when his parents divorced when he was 10 years old. His anxiety disorder was exacerbated by bullying at school and he became a chronic worrier with a consequent depressive personality style. In adulthood, Mr Glover developed a habit of 'self-medication' with alcohol to numb his mood disorder and chronic anxiety and worrying. This is the core factor that fuelled his alcohol dependence." In certain circumstances, such a background for the offender's alcohol addiction might be seen to be a mitigating factor, but in the current offence, it is not. The reason why a person was drinking and driving is irrelevant to the charge of drinking and driving and is irrelevant to a charge under s52A. The authorities make that abundantly clear. 39To his credit, the offender has been able to hold down steady, well-remunerated employment despite his alcohol addiction. The offender left school at the end of year 10. He completed an apprenticeship as a heavy vehicle mechanic, but became disillusioned with that trade and became a forklift operator. He has always been employed since leaving school and been in constant employment since completing his apprenticeship. I accept that the offender has a good work ethic. One of the references before me is from the general manager of P & I Printers, Mr Martyn Taylor. He tells me that the offender has been employed at P & I Printers since November 2009 and for a one-year period some time prior to that. Mr Taylor was aware of the charge which the offender was facing to which he has pleaded guilty and for which he now stands for sentence. He went on to tell me this: "Daniel is a positive and reliable member of our warehouse team, who always completes his tasks efficiently and supports the team to get the job done. We will continue to support Daniel by holding his position open for him and we hope that he returns as soon as possible." The reference goes on to raise a slight difficulty which the Court cannot remedy, that is, the need for the offender to operate a fork hoist, but whether the fork hoist is a "motor vehicle" or not, I do not know. In other words, the offender is well regarded by his current employer, who holds a position open to him for him to return to as soon as released from custody. P & I Printers is at Milperra. Both the offender and his wife told me what steps were taken to get the offender to and from work, despite his lack of a driver's licence, a position which will, unfortunately, persist for many years hereafter. 40What are the prospects of rehabilitation? What are the prospects of the offender giving up his alcohol addiction and not returning to crime, to not returning to drinking and driving, not returning to driving whilst disqualified, not threatening the lives of so many on the roads by driving under the influence of alcohol? Professor Gilandas said this in his report: "Mr Glover stated that his responsibility for the life-threatening to his son has been the most traumatic 'wake-up call' possible. He finally realized that alcohol has been responsible for virtually every police-related incident he has had and he had no choice but to accept that he must finally change. His partner is a responsible individual, being a customer service officer in a bank and also a part-time university student (primary school teacher course). In my telephone interview with her, she described how deeply her son's injury had affected Mr Glover and that his tragedy will force him to resolve his alcohol problems. She states that she has visited him in gaol twice per week ever since he entered custody ten months ago and that she knows him better than anyone else during their relationship of 11 years. She emphasised that she would not be waiting for him if she had any doubts about him being able to finally rehabilitate himself." Both the offender and Natalie gave evidence to the same effect. The offender knows he needs support to maintain his resolve. In custody at Long Bay Gaol, the offender has completed the twelve-week SMART course and a ten-week course for managing emotions. He is under the counselling of Mr Andrew House, an alcohol and drug counsellor. 41Exhibit 8 contains two letters from officers of the Department of Corrective Services. That made by Kerry Kirkwood, the Alcohol and Other Drug counsellor at Long Bay Hospital Areas 1 and 2, tells me that Mr Glover completed the SMART programme in December 2002. According to Miss Kirkwood, the offender attended every session and made a serious effort to understand the reasons that underlie his alcohol consumption in order to prevent any further consequences of this behaviour in the future. She continues her letter thus: "Mr Glover was able to relate the course material to his alcohol-related behaviour and gained confidence throughout the twelve weeks to express his concerns and difficulties. Mr Glover demonstrated genuine remorse for the consequences of his current offence and appeared motivated to gain strategies to live in the community with this alcohol-related issue." The same exhibit contains a letter from Mr Andrew House dated 31 March 2011. He confirms that the offender has been attending counselling for alcohol and other drugs. He tells me that the offender has been assessed and accepted for the Maryfields Day Recovery Programme at Narellan Road, Campbelltown and is currently on their waiting list. He confirms that the offender has demonstrated insights into his alcohol issues and that he has expressed willingness to address those issues. 42The offender tells me and I accept that when released from custody, he will attend a course at Maryfields for which he has been deemed suitable. Maryfields is a thirteen-week full-time programme that operates from Tuesday to Friday from 9am to 4pm each day. Material concerning that course is Exhibit 11. That will assist the offender maintaining his resolve once released from custody. It will also provide Natalie Swarez with some training to assist her to help her husband remain abstinent from alcohol. On Fridays, the course at Maryfields is between 9am and 12.30pm. That is what is called the Family Programme which provides information and support for partners and family members over the age of eighteen. That programme is conducted on Fridays between 9am and 12.30pm. Prof Dr Gilandas tells me this: "Ultimate prognosis is statistically unpredictable for alcohol dependence in the individual case and will be determined by the passage of time. As stated previously, the most important factor is strict compliance with an intensive rehabilitation programme. It is encouraging that he has not used alcohol since his son's brain injury on 6 March 2010 following the incident until his arrest on 13 May 2010. He was at liberty to drink, but did not do so.". In an appendix, Prof Gilandas points out that there should be perhaps a referral to Alcoholics Anonymous after the offender has been discharged from custody and that there "should be consistent professional follow-up and complacency must be guarded against." Clearly, there are grounds for a lengthy period of supervision in the community by the Probation and Parole Service to ensure that the offender maintains his resolve to be abstinent from alcohol. 43As I said at the beginning of these reasons for sentence, this is a most difficult sentencing exercise. The difficulty arises from what often occurs in the criminal law: a clash of competing principles. The extra-curial punishment, the extra curial suffering, the leniency called for because of the assistance it will give to the direct and indirect victims of this offence and the personal circumstances of the offender - that is, the excellent prospects of rehabilitation, provided he maintains his resolve to be abstinent from drugs, but in particular the motivation and the guilt that he must feel for the severe injury he brought upon his son, all go in one direction. Another set of principles goes in the opposite direction. S 52A has been recognized as having two critical aspects: firstly, the criminality of the conduct involved and its consequences and secondly, its primary objective of reducing the number of serious motor vehicle accidents. 44The offence of dangerous driving is a public offence where drivers, passengers, pedestrians and their relatives and friends are all involved because a driver, a passenger and a pedestrian can all be the victims of dangerous driving causing grievous bodily harm or death. Every member of the public is entitled to the protection of the law and is entitled to have sentences passed that exact appropriate public punishment. General deterrence is of paramount importance and that has led to the Parliament increasing the penalties for dangerous driving offences. 45I have no doubt that it is not necessary to specifically deter the current offender from committing this crime again. I am sure he never will. However, I have to deter other members of the public who are tempted to drink and drive and in particular, drive in a dangerous manner causing death or grievous bodily harm. I am also acutely aware that in recent times, some learned judges such as Justice Howie have been calling for increased sentences to be passed for crimes against s 52A. A consideration of statistics makes one realize why such calls have been made. For example, the statistics record that eighty-five cases have been dealt with under s 52A(4). Only eighty-percent of all offenders have been sentenced to imprisonment. The median head sentence for both consecutive and non-consecutive cases is thirty months imprisonment. When one considers non-consecutive cases, the median head sentence is thirty months and the median non-parole period is eighteen months. When I factor in a plea of guilty and the present offender's age, I obtain a median head sentence of thirty months and a median non-parole period of twelve months. Such median head sentences must be compared with a head sentence fixed by Parliament of eleven years. 46Looking objectively at the blood alcohol reading, the damage to Ryder and the injury to Mr Kemsley, and bearing in mind the offender's abominable driving record, I would have to consider starting the present sentencing exercise at five years imprisonment. However, there are clearly many other matters to be considered. They are, firstly; the genuine contrition and remorse which this offender has displayed to me and which I accept and which has been obvious to those who have dealt with him, such as Professor Gilandas, the officers of Corrective Services and the offender's wife and friends. Here, I must also consider the extra curial punishment of the injuries that the offender himself sustained and will lead to increasing pain over the years, to be followed by a total hip replacement. I also bear in mind the extra-curial suffering, the anguish and torment which the offender has suffered because of the damage he has done to his own son, his guilt and the ongoing anxiety which will persist until Ryder reaches maturity. That is a more potent penalty than any period of incarceration. I also take into account the leniency which must be exercised to advantage both Ryder and his mother, to stop disadvantage to the victims of this crime. 47There are special circumstances to warrant breaking the statutory nexus between the head sentence and the non-parole period. They are that this is this offender's first experience of full-time custody and part of this was served in onerous circumstances, the offender being on crutches during his initial incarceration. Another relevant circumstances is that attending the Maryfields rehabilitation programme can be seen to be a form of part-time quasi-custody. The final factor I have earlier mentioned: the need for a lengthy period of supervision in the community by the Probation and Parole Service. 48I have come to the view that I should start the sentencing exercise by selecting a theoretical head sentence of two and a half years, or thirty months. I discount that by twenty-five percent for the utilitarian value of the plea of guilty at the earliest available opportunity. Twenty-five percent of 30 is 7.5. I will round that off to 8. That leaves me with a head sentence of twenty-two months imprisonment. I have determined that the appropriate non-parole period is eleven months, such that the offender will be discharged from custody this day. He will be under the supervision and control of the Probation and Parole Service for a period of eleven months, during which I will require him to undergo the Maryfields course as soon as possible. 49There is before me a s 166 certificate which contains three back-up charges, each of which must be dismissed, but which contains two related offences. The first is for driving whilst disqualified which is clearly an offence this offender committed. The second offence is for the crime of not adjusting or fastening a restraint, that is, the child restraint that held Ryder in the child booster seat in the passenger's rear side of the vehicle at the time of the collision. It is clear that Ryder was ejected from the booster seat, but how he came to be ejected is not clear. There is no evidence which could persuade me beyond reasonable doubt that the offender was guilty of that offence and indeed, the position of the child booster seat in the car at the time, the photograph seems to indicate was properly adjusted because, if it had not been, the booster seat would have been thrown across the vehicle as Ryder was, but that does not appear to have happened. The offender is entitled to a finding of not guilty in respect of that offence. I impose and intend to require the offender to enter into a bond pursuant to s 9 for a period of two years in respect of the drive whilst disqualified offence so that his supervision and control by the Probation and Parole Service will in fact not be for eleven months, but for two years. 50Any further reasons for sentence, Mr Irani, required? IRANI: No your Honour. Can you just clarify the commencement date of the-- HIS HONOUR: I have not passed sentence. Any further reasons? Do you require any further reasons, Mr Vasic? VASIC: No your Honour. 51HIS HONOUR: Daniel Glover, on the charge that on 6 March 2010 at Appin, you did drive a vehicle, to wit, white Mitsubishi Magna sedan registered number VMV 775, when it was involved in impact occasioning grievous bodily harm to Ryder Glover and at the time of the impact, you were driving the vehicle under the influence of intoxicating liquor in circumstances of aggravation - namely, that you had in your blood the prescribed concentration of alcohol, reading 0.212, you are convicted. I sentence you to imprisonment. I set a non-parole period of eleven months commencing on 13 May 2010 and expiring on 12 April 2011. I impose a further period of imprisonment of eleven months to commence upon the expiration of the non-parole period and expiring on 12 March 2012. The total sentence is therefore twenty-two months comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are to be released to parole at the expiration of the non-parole period. It is a term of your release to parole that you take up the first opportunity to participate in the Maryfields Day Recovery Centre programme referred to in Exhibit 11 and that you complete that programme to the satisfaction of the Probation and Parole Service. 52The back-up charges, sequence 2, 3 and 4, are dismissed. 53On the charge that on 6 March 2010 at Appin, you did drive a motor vehicle on a road during a period of disqualification, you being a person who was disqualified from holding a driver's licence, you are convicted. Pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, I order you to enter into a good behaviour bond for a period of two years from today. Conditions of the bond are as follows: (1)you are to appear before the Court if called upon to do so at any time; (2)you are to be of good behaviour; (3)you reside at 11 Carbasse Crescent, St Helens Park; (4)you are to advise the Registrar of the Court by pre-paid registered post of any change of residential address; (5)you are to report to the officer in charge of the Probation and Parole Service at Campbelltown within seven days; (6)you are to accept supervision of and obey all reasonable directions of the Probation and Parole Service during the term of the bond, including all reasonable directions of the Probation and Parole Service with regard to alcohol and other drug counselling, rehabilitation and testing. 54On the charge that on 6 March 2010 at Appin you did drive a vehicle - namely, a white Mitsubishi Magna registration VMV 775, on a road, namely, Appin Road, and did fail to ensure that a passenger, namely, Ryder Glover, in the said vehicle, who was over one year old and under sixteen years old and who was not exempt from wearing a seatbelt, was either restrained in a suitable approved child restraint that was properly fastened and adjusted or occupied a seating position fitted with a suitable seatbelt and was wearing the seatbelt properly adjusted and fastened when there was a suitable child restraint or seatbelt available, I find you not guilty. On that charge you are acquitted. 55Mr Glover, the law does not know part of a day, so although your non-parole period you might think expires at midnight tonight, you are entitled to go free now. However, you have to go downstairs to be processed out of the Corrective Services system. VASIC: Your Honour, the disqualification period-- HIS HONOUR: Yes I will do that. You need to be taken down so that they can do the paper work to get you out of the system. It takes about half an hour I think. Yes, about half an hour roughly VASIC: Your Honour, it's two years we've already mentioned in relation to 52A(4). It's also two years for drive whilst disqualified. HIS HONOUR: Well, I'll just do it for three years. VASIC: Your Honour has power to make them both concurrent. 56HIS HONOUR: Daniel Glover, on the principal charge, that is, aggravated dangerous driving occasioning grievous bodily harm, I disqualify you for driving for two years commencing on 5 July 2024 and expiring on 4 July 2026. On the charge of driving whilst disqualified, I disqualify you for a period of two years to be served concurrently with the earlier disqualification period. Right, anything else? 57VASIC: I hope it's not asking too much your Honour, but might your Honour quash the habitual offender declaration that arises when this finishes? HIS HONOUR: Does one flow automatically, does it? VASIC: Yes, three convictions for major - sorry, not major offences - for what is defined as relevant offences within three years, one flows as a matter of law, unless your Honour quashes it. HIS HONOUR: How could I quash something I haven't made? It follows-- VASIC: It's automatic as a matter of law. 58HIS HONOUR: Yes, I quash the habitual offender declaration. Good luck to you, Mr Glover, and look after your son. ********** Amendments 21 November 2012 - Amended title - surname of offender only 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: 21 November 2012