District Court New South Wales Medium Neutral Citation: R v Batterham [2012] NSWDC 185 Hearing dates: 14 June 2012 Decision date: 14 June 2012 Before: Berman SC DCJ Decision: Sentenced to imprisonment for an overall term consisting of an effective non-parole period of 3 years and a head sentence of 5 years Catchwords: CRIMINAL LAW - Sentence - aggravated dangerous driving occasioning grievous bodily harm - Fail to stop and render assistance - Heavily intoxicated by both alcohol and drugs - previous convictions for high range PCA - Driving whilst disqualified Category: Sentence Parties: The Crown Timothy James Batterham Representation: Mr T Healey - Offender The Director of Public Prosecutions File Number(s): 2011/286066 SENTENCE 1HIS HONOUR: Anyone who looks at what led up to the terrible events of 21 May 2011 would see that the offender's driving history would make it clear that an offence of this kind was inevitable. The offender appears for sentence today, having pleaded guilty at an early opportunity to an offence of aggravated dangerous driving occasioning grievous bodily harm, the circumstance of aggravation being that his driving ability was very substantially impaired by a combination of drugs and alcohol. 2He is to be sentenced also for failing to stop and assist after an impact. And also on a 166 certificate there appears an offence of driving whilst disqualified. 3The offender has, remarkably, four prior convictions for driving with the prescribed concentration of alcohol in his blood, including three for high range PCA. That he would one day do what he did on 21 May last year is no surprise at all. 4On that day Mr Troy Jordan and Mr Allan Edmonds were driving lawfully along Vincent Street, Cessnock. The offender, Timothy James Batterham was not driving lawfully, he was very heavily intoxicated by both alcohol and drugs. 5The evidence suggests that his blood alcohol reading at the time of the collision I am about to describe would have been between .216 and .286, with the most likely level of .243. On top of that the offender had taken some diazepam. The statement of facts reveals that the levels found in the offender's blood were slightly higher than the usual therapeutic range and indicated very recent use. This was a terrible combination, high levels of alcohol together with diazepam in the blood of a man who appears to have cared little for his obligations to keep within the road rules whilst behind the wheel of a car. In fact he should not have even been there in the first place, he was a disqualified driver. 6There was a witness to what occurred. Mr Dean Walmsley was driving south along Vincent Street, heading in the same direction as the offender. He pulled over to the side of the road to answer his mobile phone, (yet another person who was obeying the road rules in contrast to Mr Batterham). 7He went to open the door of his car. As he did so the offender's vehicle drove past him, so close that it almost took his mirror off. He noticed that the offender did not even have his headlights on. He saw the offender driving all over the road, he drove across the incorrect side of the road onto the gravel area, back onto the incorrect side of the road and kept driving in the incorrect north bound lane. 8Unfortunately for Mr Jordan and Mr Edmonds they were also in that lane, but it was their correct lane, they were heading in the opposite direction to the offender. There was a head-on collision. 9The force of the impact was significant. Mr Edmonds and Mr Jordan were in a Mitsubishi Triton four wheel drive. The force of the impact was such that the front passenger wheel of the Triton was torn off, the vehicle rotated anti clockwise, mounted the kerb, severed a small tree and then rolled over. The vehicle had travelled some twenty eight metres away from the point of collision. 10The witness, Mr Walmsley, and other people who were nearby ran or drove to the scene. They saw the offender get out of his vehicle, they smelt alcohol on him. He merely stared at them before walking away. Eventually he was located. He told lies to the police but was not formally interviewed because of his level of intoxication. 11The driver of the other car, Mr Jordan, did not suffer grievous bodily harm, but Mr Edmonds did. He suffered a rupture of his left hemidiaphragm, fractured his pelvic bone and hip which required external fixation, a fractured left femur that required insertion of a metal rod and four nails, a fractured jaw that required insertion of plates and about thirty screws, a tear in his thoracic aorta which required urgent surgery, a lacerated bowel, and not surprisingly, various more minor cuts and bruises. He underwent urgent surgery. The doctors considered his injuries were life threatening. 12He was in hospital and bedridden for about two months. He required further surgery in July to remove the external fixation of his pelvis. Then physiotherapy commenced until he was discharged from hospital. He required significant assistance with mobility and daily activities after his discharge. 13He has been undergoing physiotherapy. He complained in December, some considerable time after the collision, that his left hip does not always support his weight and it feels like he gets disjointed at times. His balance on his left leg was significantly reduced and his left hip stability was decreased. He complained of pain to his knees and lower back. His legs are now of uneven length. He has been unfit for work of any kind since the collision according to an expert's certificate dated 22 February 2012. That certificate estimated that Mr Edmonds would be unfit for work for another three months. The prognosis with all the injuries was uncertain. A doctor expressed the view that Mr Edmonds will have long term problems with his left, it says joint, but I presume that means left hip joint, at least. He also sees a psychiatrist as a result of psychological issues which have arisen out of this collision. 14So Mr Batterham's behaviour has led to significant consequences for an entirely innocent person. Mr Batterham has indicated quite clearly a continuing attitude of disobedience to the law. There thus needs to be a substantial component of personal deterrence built into the sentences I must impose upon him. General deterrence, of course, is also important. 15It will not surprise anyone to learn that Mr Batterham has a problem with alcohol. He is now 34 years of age and he lives with his partner of approximately six years, together with their eighteen month old daughter and his partner's two children from a previous relationship. The material put before me today suggests that the offender is a good father and has been able to moderate his drinking where he is caring for the children. 16The offender lost his father in a tragic mine accident in 1996. His grandmother, for whom he had provided care, died in 2003. These two losses have greatly affected the offender and no doubt have contributed to the problems that the offender has with alcohol. However not too much can really be made of the unfortunate circumstance that Mr Batterham has a problem with alcohol. To put the matter bluntly the courts really do not care how much he drinks. What they do care about is an offender such as Mr Batterham who drives whilst highly intoxicated. I have got no doubt that magistrates warned Mr Batterham that if he continued to drink and drive he would one day end up injuring or even killing someone. So that has come to pass. 17He is currently unemployed and he is in receipt of a Newstart benefit. He told the author of the pre-sentence report that he does not have to look for work because he is under the care of a medical practitioner. He has worked in the past. . 18Mr Healey told me that both he and his client recognise that a custodial sentence was the inevitable outcome of today's proceedings. That of course is correct. 19Mr Healey also told me that this matter had been not reached on two previous occasions. I regard that as significant. It is a significant matter for a person to come to court knowing that they will not be going home again, knowing that they will be going to gaol, and then to find that because of pressure of work their case is not being dealt with. Unfortunately that does happen from time to time in these courts. It should not have happened twice, once was bad enough. I have taken that matter into account in formulating the appropriate sentence imposed on Mr Batterham. 20Somewhat strangely in cases of this kind there is no evidence of remorse expressed by the offender. I say somewhat strangely because in almost every case of dangerous driving occasioning grievous bodily harm or death the offender does not really intend to harm anyone else and so remorse is commonplace. But the most that Mr Healey could point to was an apology made through his counsel and his pleas of guilty. I do not regard that as any evidence at all of remorse. The offender is not to be punished for not saying he was sorry, but clearly he is not entitled to any leniency on the basis that he has expressed any remorse for the terrible consequences he and he alone has brought about. 21There are a number of offences for which the offender must be sentenced today. They each represent separate aspects of the offender's criminality. It would be therefore inappropriate to impose totally concurrent sentences. The offender should not have been behind the wheel because he was disqualified. He should not have been behind the wheel because he was intoxicated and as a result he caused significant harm. And the offender should not have failed to stop and render assistance after seeing the awful collision that he and he alone was responsible for. Those separate aspects of the offender's criminality must be dealt with by partial accumulation. 22Not without some hesitation I am prepared to make a finding of special circumstances in the offender's favour. My hesitation arises from the failure of the offender to take advantage of leniency that was offered to him in the past. He continues to offend, as is demonstrated by the matters to be dealt with today. But because he has, of more recent times, taken steps to deal with his problems with alcohol and because it will be to the community's advantage if he is able to deal with those problems and the chances of him putting his excessive alcohol consumption behind him are increased if he is supervised upon his relief from custody, I will make a finding of special circumstances in the offender's favour. 23I sentence the offender as follows; 24For the offence of failing to stop and render assistance, he is sentenced to imprisonment for a period of twelve months to date from 14 June 2012. That is today. 25For the offence of driving whilst disqualified, he is sentenced to imprisonment for a fixed term of twelve months to date from 14 September 2012, that is three months hence. He disqualified from driving for one year cumulative to the current period of disqualification. 26Those sentences are fixed terms because of the sentence I will now announce. 27For the offence of aggravated dangerous driving occasioning grievous bodily harm, the offender is sentenced to imprisonment. I set a non parole period of two and a half years with a head sentence of four and a half years to date from 14 December 2012, that is six months hence. He is disqualified from driving on that charge for a period of four years to be accumulated on all other periods of disqualified driving. 28He is thus eligible to be released to parole on 13 June 2015. The overall sentence being one consisting of an effective non parole period of three years with a period of eligibility for parole of two years, making a total sentence of five years. 29I will dismiss the backup charges on the 166 certificate. 30I will remit the High Range PCA to the local court. If necessary it can be dealt with there. ********** 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: 09 October 2012