Published by Geoff Harrison | 18 August 2023
The duties of a driver involved in a car accident are set out in r287 of the Road Rules 2014 and s52AB Crimes Act 1900 and s146 of the Road Transport Act 2013, where a person is killed or injured.
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ROAD RULES 2014 - REG 287 Duties of a driver involved in a crash
Duties of a driver involved in a crash
(1) A driver involved in a crash must comply with this rule.
Maximum penalty--20 penalty units.
Note 1 :
"Crash" is defined in the Dictionary.
Note 2 : The law of this jurisdiction also requires a driver involved in a crash to stop and give assistance to anyone who is injured.
(2) The driver must stop at the scene of the crash and give the driver's required particulars, within the required time and, if practicable, at the scene of the crash, to--
(a) any other driver (or that driver's representative) involved in the crash, and
(b) any other person involved in the crash who is injured, or the person's representative, and
(c) the owner of any property (including any vehicle) damaged in the crash (or the owner's representative), unless, in the case of damage to a vehicle, the particulars are given to the driver of the vehicle (or the driver's representative).
(3) The driver must also give the driver's required particulars, within the required time, to a police officer if--
(a) anyone is killed or injured in the crash, or
(b) the driver does not, for any reason, give the driver's required particulars to each person mentioned in subrule (2), or
(c) the required particulars for any other driver involved in the crash are not given to the driver, or
(d) a vehicle involved in the crash is towed or carried away by another vehicle (except if another law of this jurisdiction provides that the crash is not required to be reported), or
(e) the police officer asks for any of the required particulars.
Note 1 :
"Police officer" is defined in the Dictionary.
Note 2 : Subrule (3)(e) is not uniform with the corresponding paragraph in rule 287 of the Australian Road Rules . However, the corresponding paragraph in the Australian Road Rules allows the required particulars to be given if another law of this jurisdiction requires a particular crash to be reported to a police officer. Different rules may apply in other Australian jurisdictions.
(4) For this rule--
"required particulars" , for a driver involved in a crash, means--
(a) the driver's name and address, and
(b) the name and address of the owner of the driver's vehicle, and
(c) the vehicle's registration number (if any), and
(d) any other information necessary to identify the vehicle,
and, for subrule (3), includes an explanation of the circumstances of the crash.
Note 1 :
"Driver's vehicle" is defined in the Dictionary.
Note 2 : This definition is not uniform with the corresponding definition in rule 287 of the Australian Road Rules . However, the corresponding definition in the Australian Road Rules allows the additional information to be provided to a police officer for the purposes of subrule (3) if another law of this jurisdiction requires the information to be given. Different definitions may apply in other Australian jurisdictions.
"required time" , for a driver involved in a crash, means as soon as possible but, except in exceptional circumstances, within 24 hours after the crash.
ROAD TRANSPORT ACT 2013 - SECT 146
Offence of failing to stop and assist after impact causing injury
(cf STM Act, s 70)
(1) A person is guilty of an offence if--
(a) a vehicle or horse being driven or ridden by the person on a road is involved in an impact occasioning the death of, or injury to, another person, and
(b) the person knows, or ought reasonably to know, that the vehicle or horse has been involved in an impact occasioning injury to another person, and
(c) the person fails to stop and give any assistance that may be necessary and that it is in the person's power to give.
Maximum penalty--30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).
(2) For the purposes of this section, the circumstances in which a vehicle is involved in
"an impact occasioning the death of, or injury to, a person" include if the death or injury is occasioned through any of the following--
(a) the vehicle overturning or leaving a road while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise),
(b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise),
(c) an impact between the person and the vehicle,
(d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact,
(e) an impact with anything on, or attached to, the vehicle,
(f) an impact with anything that is in motion through falling from the vehicle,
(g) the person falling from the vehicle, or being thrown or ejected from the vehicle, while being conveyed in or on the vehicle (whether as a passenger or otherwise),
(h) an impact between any object (including the ground) and the person, as a consequence of the person (or any part of the person) being or protruding outside the vehicle, while the person is being conveyed in or on the vehicle (whether as a passenger or otherwise).
(3) For the purposes of this section, a vehicle is also involved in
"an impact occasioning the death of, or injury to, a person" if--
(a) the death or injury is occasioned through the vehicle causing an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave a road, and
(b) the prosecution proves that the vehicle caused the impact.
(4) In this section--
"object" includes an animal, building, structure, earthwork, embankment, gutter, stormwater channel, drain, bridge, culvert, median strip, post or tree.
Note : Similar obligations are imposed on a person by section 52AB of the Crimes Act 1900 in relation to impacts causing death or grievous bodily harm.
CRIMES ACT 1900 - SECT 52AB Offence of failing to stop and assist after vehicle impact causing death or grievous bodily harm
CRIMES ACT 1900 - SECT 52AB
Offence of failing to stop and assist after vehicle impact causing death or grievous bodily harm
(1) A person is guilty of an offence if--
(a) a vehicle being driven by the person is involved in an impact occasioning the death of another person, and
(b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and
(c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give.
Maximum penalty--imprisonment for 10 years.
(2) A person is guilty of an offence if--
(a) a vehicle being driven by the person is involved in an impact occasioning grievous bodily harm to another person, and
(b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and
(c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give.
Maximum penalty--imprisonment for 7 years.
(3) The provisions of section 52A (5) and (6) (which prescribe circumstances in which a vehicle is taken to be involved in an impact) apply for the purposes of this section in the same way as they apply for the purposes of section 52A.
(4) In this section,
"vehicle" has the same meaning as it has in section 52A.
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R v Chris Lentini [2020] NSWDC 132 (22 April 2020)
District Court
New South Wales
Case Name:
R v Chris Lentini
Medium Neutral Citation:
[2020] NSWDC 132
Hearing Date(s):
12 March 2020; 1 April 2020; 22 April 2020
Date of Orders:
22 April 2020
Decision Date:
22 April 2020
Jurisdiction:
Criminal
Before:
Wilson SC DCJ
Decision:
Full time custodial sentence; compensatory orders. At [70] – [80]
Catchwords:
CRIME – sentence – vehicle collision – grievous bodily harm – failing to stop to give assistance – negligent driving and other offences – no remorse – no special circumstances
Legislation Cited:
Crimes Act 1900 NSW s52AB
Crimes (Sentencing Procedure) Act 1999 NSW s3A
Road Rules 2014 NSW s287
Road Transport Act 2013 NSW ss54, 146 & 117
Victims Rights and Support Act 2013 NSW s97
Cases Cited:
R v Pullen [2018] NSWCCA 264
Hoskins v R [2020] NSWCCA 18
Texts Cited:
None
Category:
Sentence
Parties:
Regina (Crown)
Christopher Lentini (Offender)
Representation:
Solicitors:
Ms H NG (ODPP)
Ms V Barnsley (GTC Lawyers)
File Number(s):
2019/00033832
Publication Restriction:
None
JUDGMENT
1. Chris Lentini was born on 28 May 1987 and will soon be 33 years of age.
2. He appears before the Court today in relation to a primary offence, together with 2 related offences and 2 back-up offences, the latter to be withdrawn upon conviction.
3. All offences arise out of the same charge number (870882341) and relate to a specific event which occurred on 29 January 2019. By reference to the charge certificate (Exhibit A, Tab C), the following are the charges:
(a) Count 1 – contravention of s52AB of the Crimes Act 1900 NSW, arising from the fact that on 29 January 2019 the Offender was involved in a motor vehicle accident, causing grievous bodily harm to Calvin Pullen (Mr Pullen), and at the time the Offender ought to have reasonably known that the impact had occasioned grievous bodily harm or death, and subsequently did fail to stop and give necessary assistance. This charge carries a maximum period of imprisonment of 7 years, together with an automatic disqualification of 3 years;
(b) Count 2 – this was a contravention of s146(1) of the Road Transport Act 2013 NSW, which is a backup charge to the same effect as Count 1, namely failing to stop and assist after impact causing injury. This charge will be dismissed upon conviction;
(c) Count 3 – this relates to contravention of s54(1)(a) of the Road Transport Act, in that on the date specified, the Offender drove a motor vehicle on a road during a period of disqualification. This is a related offence for which the Offender is to be convicted and sentenced;
(d) Count 4 – this is a contravention of s117(1)(b) of the Road Transport Act in that the Offender did negligently drive a motor vehicle upon a road occasioning grievous bodily harm. This offence carries a maximum penalty of 9 months imprisonment or 20 penalty units ($2,200) together with an automatic license disqualification of 3 years. This is a related charge for which the Offender will be convicted and sentenced;
(e) Count 5 – in contravention of s287(1) of the Road Rules 2014 NSW, in that on the date stated the Offender did fail to give his required particulars within the required time to Mr Pullen, a person involved in a crash. This is a backup charge to be dismissed upon conviction.
4. The maximum penalties referred to above represent the Parliament’s assessment of the seriousness of the offending. Stopping after an accident and providing assistance is a necessary and important feature of social interaction on roads. It is plain by the maximum penalty of 7 years imprisonment for Count 1 that Parliament, and the community, regard this as a serious offence.
5. As stated, the offending took place on 29 January 2019. The Offender was arrested on 31 January 2019 and has remained in custody since that date. On 27 August 2019 he was committed for trial from the Central Local Court. He later pleaded guilty in this Court on 20 December 2019.
6. At the time of the offending, Mr Lentini was on parole in respect of a charge (H ending 991) for supplying a prohibited drug on an ongoing basis. He served the balance of parole in respect of that charge from 31 January 2019 to 15 June 2019 (4 months and 16 days). Thereafter, he served a further fixed term of imprisonment for driving a motor vehicle whilst disqualified 2nd plus offence. That imprisonment was from 15 June 2019 to 14 October 2019.
7. Since 14 October 2019, the Offender has been in custody solely due to the present charges, awaiting trial and upon pleading guilty, sentence.
STATEMENT OF AGREED FACTS
8. In the course of the sentence hearing, the Offender took issue with a number of the facts which had previously been agreed between his legal representative and the Crown. I was assured by his legal representative that the agreement was reached after instructions were obtained. Nevertheless, given the evidence of the Offender, it has become necessary for the Court to determine a fact in dispute which principally related to the contents of paragraph 13 of the Statement of Agreed Facts (Exhibit A, tab E). Putting paragraph 13 to one side, the Agreed Facts are as follows.
Agreed facts
9. Mr Pullen was born on 12 June 1998 and was 20 years of age when the incident occurred.
10. The Offender was the holder of New South Wales “C” class learner’s licence. He had been disqualified from driving between the period 16 October 2013 and 15 October 2021.
11. At about 5:33pm on 29 January 2019, the Offender and his friend Brianna Van-Beers were inside a blue Mitsubishi hatchback car carrying the registration ending with the letters “RU”. The car was rented under the name of Ms Van-Beers.
12. At the time, the weather was fine and sunny, the traffic was light, and the roadway was in a dry condition. Southcreek Road has a single lane in each direction, with the opposing traffic separated by a single broken white painted line.
13. The Offender was sitting in the driver’s seat of the vehicle and Ms Van-Beers was in the front passenger seat. The car was parked next to the kerb on Southcreek Road approximately 40 metres east of an intersection with Inman Road. The Offender had been waiting for a friend who was working in the vicinity. The Offender’s friend came by the Offender’s car to give him some money before leaving.
14. Mr Pullen was riding a black Honda motorcycle CBR500 bearing a registration number ending “64”. Mr Pullen had passed the intersection of Inman Road and was travelling east along Southcreek Road.
15. At about 5.35pm the Offender drove his Mitsubishi car away from the kerbside gutter. The Offender failed to adequately assess his surroundings before merging, and did not give way to Mr Pullen’s motorcycle as he merged right into the driving lane. The Offender’s vehicle collided with Mr Pullen’s motorcycle causing Mr Pullen to be ejected from his seat and for the motorcycle to be thrown towards the opposite westbound driving lane. The impact resulted in extensive damage to the driver’s side of the Offender’s vehicle, consisting of buckling, indentation and scrape marks along the entire panel of the door.
16. Mr Pullen was unable to regain control of his motorcycle and collided heavily with a white Toyota Camry, which was travelling in the opposite direction in the westbound lane. The initial and resulting collisions were recorded by dash cam footage from the white Toyota Camry.
17. At this point in the Statement of Agreed Facts are 4 photographs taken from the dash cam footage of the white Toyota Camry depicting the sequence of events just described.
18. Mr Pullen received serious injuries amounting to grievous bodily harm. Mr Pullen was conveyed to Royal North Shore Hospital where he underwent surgery. He sustained the following injuries:
(a) a grade 3b multi ligament knee injury requiring reconstructive surgery after discharge (Mr Pullen underwent 4 operations including a skin graft);
(b) a grade 2 splenic laceration (spleen laceration);
(c) suspected segment 2 intrahepatic hematoma (traumatic lesions to the liver);
(d) moderate volume haemoperitoneum (moderate internal bleeding);
(e) fracture to his right rib;
(f) closed fracture of the acromion of the scapula (shoulder fracture);
(g) closed fracture of the thoracic vertebra and lumbar vertebra (spinal fractures);
(h) a small left-sided pneumothorax (collapsed lung);
(i) multiple grazes and friction burns over his legs;
(j) obvious deformity to his left shin (open deep to the bone);
(k) a deep laceration to his left ankle and right shin.
19. After the collision, Mr Lentini continued to drive past the white Toyota Camry and turn right into the National Storage carpark area located at 93-99 Southcreek Road. Mr Lentini parked the Mitsubishi in the carpark, removed his seatbelt and exited the driver’s seat. He then left the vehicle and returned to the collision scene.
20. CCTV cameras located at the National Storage premises captured the Offender walking back to the scene of the collision on 2 separate occasions. He was seen to be on his mobile telephone. The Offender’s friend, who was present earlier, walked up to the Offender’s car and had a conversation with the Offender.
21. The Offender abandoned his vehicle and left his friend, Ms Van-Beers, at the National Storage carpark. He left the scene without assisting the injured victim and made no attempts to contact police or emergency services in relation to reporting or providing information about the collision.
22. At about 5:37pm the CCTV footage captured Mr Lentini walking away from the carpark and the collision scene without waiting to speak with police. About a minute later, Mr Lentini is seen to walk down the drive to the location 93-99 Southcreek Road and hide behind a white campervan in a carpark at that location.
23. On Thursday 31 January 2019, Mr Lentini was arrested and conveyed to Manly police station where he participated in an electronically recorded interview. He told police that a male unknown to him had driven the car and walked away from the scene after pulling into the driveway of the National Storage Complex. The Offender stated that he was on the phone with “000” when he was depicted speaking on his mobile phone at the National Storage premises. Call records, however, confirm that no attempts were made by the Offender to call any emergency services.
Facts in dispute
24. The Statement of Agreed Facts contains the following in paragraphs 13 and 14:
"13. Van-Beers told police that the Offender had exited the vehicle and returned to the collision scene: “I know he walked up there, cause he looked at the person as well, got on his phone and then everybody came across and then he walked back and then his friend said something about being on bail or parole, I can’t remember the word and then he goes ‘I’m going, you were the driver. Deal with it.’”
14. Continued: The Offender said to Van-Beers ‘you’ve come to the scene, you were the driver.’ He rummaged around the side door of the car to grab his belongings and fled the scene.”
25. This sentence hearing came before me in the context of a busy list on 12 March 2020 when I was sitting both as Civil List Judge and also assisting in crime. As I had not had the chance to familiarise myself with all of the facts prior to commencing the Sentence Hearing, I took the opportunity to ask the Offender a number of questions after he was called by his legal representative to give evidence. In the course of seeking to clarify the evidence, the following exchange occurred:
"Q. In fact, didn’t you tell somebody who was travelling with you in your vehicle that - was it a woman?
A. Yeah.
Q. That she was the driver?
A. No I didn’t do that. No."
26. I then raised with the legal representative of the Offender this discrepancy between the sworn evidence of the Offender and the Statement of Agreed Facts. I was told that although the document had not been signed by the Offender, it had been signed on his behalf.
27. On further questioning, the Offender denied that he told Ms Van-Beers that she was the driver.
28. In the course of discussion between the bench and bar, it became apparent that the Statement of Agreed Facts were negotiated between the Parties prior to the plea being entered in December 2019.
29. Ms Barnsley, appearing for the Offender, confirmed that she negotiated the Agreed Facts on behalf of her client based upon instructions.
30. The conflict then arose between the Offender and his solicitor. The Offender asserting that he never provided those instructions and his solicitor asserting the contrary.
31. The hearing was adjourned until 2pm to permit Ms Barnsley to confer with her client. At 2pm the Court was informed by Ms Barnsley that her client adhered to his evidence to the effect that he denied speaking with Ms Van-Beers after the accident. After further discussion between the bench and the bar, the matter was adjourned for a disputed facts hearing on 1 April 2020 at 2pm.
32. On 1 April 2020, Ms Van-Beers was called by the Crown to give evidence.
33. The effect of the evidence of Ms Van-Beers was to establish the facts disputed contained in paragraphs 13 and 14 of the Statement of Agreed Facts. Her evidence was corroborated by an interview that she participated in with the police on 30 January 2019 (MFI 2). It was also supported by the fact that Ms Barnsley assured the Court that the contents of paragraphs 13 and 14 had been agreed upon instructions.
34. Ms Van-Beers presented as a truthful and reliable witness. In cross-examination she was unshaken. I have no difficulty in accepting the evidence of Ms Van-Beers over the evidence of Mr Lentini. This approach to the evidence is further supported by the fact, again, that I was assured by Ms Barnsley that the Statement of Agreed Facts was agreed to upon instructions.
35. Accordingly, in relation to the facts disputed, I will proceed to sentence on the basis that the contents of paragraphs 13 and 14 of the Statement of Agreed Facts are true and accurate.
36. I have been provided with a number of photographs of the vehicle driven by Mr Lentini which clearly depicted the damage done to the driver’s side of that vehicle. It is plain that the collision was one of some force, causing extended indentation into the side of that vehicle and the displacement of the rear view mirror.
37. I have also reviewed a photograph of the white Toyota Camry, again showing extensive damage to the front of the vehicle and to its passenger side.
38. I have a photograph of the Honda motorcycle ridden by Mr Pullen, although it is difficult to discern damage. It appears to be covered in dirt and/or dust, which may have resulted from the vehicle travelling upon the roadway after the initial impact. It is not necessary for that matter to be determined.
39. The Offender has a relatively lengthy criminal record, mostly for drug offences, but also including driving offences. Attached to these Remarks is a table (Annexure A) which sets out the Offender’s criminal history.
40. As is apparent from Annexure A, there are some 15 driving-related charges, including multiple convictions for driving whilst disqualified.
41. Also included in the Crown bundle (Exhibit A, Tab H) is the Offender’s Traffic Record Report. I do not intend to set it out in any detail, except to note that on 27 June 2014 he was declared a Habitual Offender.
42. The documents produced by Corrective Services indicate 8 infringements in the period 11 August 2011 – 23 August 2017.
43. At the Sentence Hearing on 12 March 2020, Mr Pullen read out a Victim Impact Statement dated 2 March 2020. A copy of the statement is included in the Crown Bundle (Exhibit A, Tab J). Having already referred to the injuries, above, I do not intend to set out the Victim Impact Statement in any great detail, save to confirm that I have had regard to it to ensure that the sentence to be imposed upon the Offender provides recognition of the harm done to Mr Pullen. It is also apparent that the effects upon him have gone far beyond the physical injuries which he suffered.
44. Further insight into the Offender is provided by the Breach of Parole Report (Exhibit A, Tab K). The Offender was released on parole on 10 August 2018, subject to conditions. The first condition was the he must not commit any offence. That condition was breached by reason of the offending, the subject of this sentence.
45. Another condition was that he must report to a Community Corrections officer at the times and places directed by the officer. It is apparent from the Breach Report that he failed to attend 2 appointments with the Community Corrections officers without excuse. He was directed to commence counselling by 20 January 2019 to address his drug use. On 23 January 2019 the Offender attended a scheduled appointment with Community Corrections and disclosed that he had not followed up on counselling because “he didn’t want to”. He also disclosed continued use of methylamphetamine during this appointment.
46. His criminogenic factors were identified as being drug use, namely methylamphetamine, and his antisocial peer associates. His attitude towards supervision on parole was assessed as being poor, and it was noted that he demonstrated poor insight into his offending behaviour and a disregard for his parole order.
47. Even if one were to be considered, his conduct whilst on parole would question the viability of any community-based sentence.
48. A Sentencing Assessment Report dated 26 February 2020 was created by Alexandra Faith of Bathurst Community Corrections. This was in preparation for the first date before the Court for sentencing on 12 March 2020. The Offender himself attributed his antisocial behaviour to his ongoing substance abuse issues and negative peer associations.
49. In what appears to be an extraordinary statement entirely unsupported by any evidence, the following appears under the heading ‘Attitudes’ on page 2 of the report:
"Mr Lentini attributed partial blame to the victim, and stated that the motorbike was speeding immediately prior to the commission of the current offences."
50. As a further example of Mr Lentini’s antisocial behaviour, the following also appears under the heading ‘Attitudes’:
"Despite the acknowledging and awareness of his licence disqualifications, Mr Lentini reported that he regularly operated a motor vehicle prior to the commission of the current offence."
51. Further, in a statement that can only be considered untruthful and an attempt to minimise his culpability, the following appears in the report:
"While Mr Lentini argued that he rendered assistance to the victim, he conceded that he left the scene due to the perceived repercussion to his current parole order."
52. At no stage did the Offender render assistance to Mr Pullen.
53. Under the heading ‘Insight Into Impact Of Offending’, amongst one other matter, the Offender demonstrated self-concern for financial compensation that he could be required to pay in relation to the commission of the current offences. In this regard, I note that after the matter was first raised by the Court with the Crown, the question of compensation to Mr Pullen was explored and the Offender has consented to an order under the Victims Rights and Support Act 2013 NSW.
54. He was assessed as a medium risk of reoffending.
55. The only other evidence in the Sentence Hearing was a letter from Wendy Lentini, dated 10 March 2020. Mrs Lentini is the mother of the Offender. Mrs Lentini provided some detail as to her son’s upbringing, which generally was unremarkable. He completed school and worked in various forms of employment. A glaring omission from her letter is any reference to her son’s drug dependence, which seems to be the driving force behind his offending. She also failed to refer to his criminal history, which is extensive and in respect of which one would expect she would have had acknowledged. I find the letter from Mrs Lentini generally unconvincing, save for the fact that it is plain that the Offender came from a stable, supportive family.
56. In addresses, there was substantial consensus between the Parties as to what findings the Court ought to make in terms of statutory aggravating and/or mitigating factors, as well as other matters.
57. The following matters were agreed, permitting me, without controversy, to make findings as follows:
(a) the offending was aggravated by the fact that the Offender had a record of previous convictions;
(b) the offending was further aggravated by the fact that it occurred whilst the Offender was on conditional liberty, that is parole;
(c) the evidence does not demonstrate remorse, certainly in the statutory sense, and I decline to make a finding of mitigation in that regard. I note that ultimately, Ms Barnsley, for the Offender, did not make a submission against a finding of no remorse;
(d) the Offending is mitigated by the fact that the Offender pleaded guilty, albeit in the District Court. That would ordinarily entitle him to a discount of 10%. Given the fact that a disputed facts hearing was necessitated, seemingly because of the Offender’s change of instructions, I find that a reduction in sentence of 5% is appropriate. I reject Ms Barnsley’s submission that the usual discount of 10% should not be reduced;
(e) in relation to the offending generally, it was agreed and I find that the objective gravity fell at about the mid-range. That finding applies in respect of Count 1 (although I note that the Crown originally submitted on this count that it was the upper end of mid-range), together with the two related offences, Counts 3 and 4;
(f) the Offender is not entitled to a finding of good character or any leniency which might flow from that finding;
(g) the s5 threshold is crossed and no sentence other than full time imprisonment is warranted in the circumstances.
58. There was a dispute between the parties as to a number of matters including commencement date, risk of reoffending, and the prospects of rehabilitation. It was submitted on behalf of the Offender that the risk of reoffending would be minimised by the fact that he and his family intend to move to the Hunter Valley. It was suggested that by doing so he would be in a position to engage in positive rehabilitation.
59. The Crown submitted that the Offender had failed to demonstrate any interest in rehabilitation in the past, and that he would not therefore benefit from any additional time on parole.
60. Having regard to the Offender’s conduct when on parole in 2018-19, and in particular, his refusal to participate in rehabilitation because he “didn’t want to”, I share the Crown’s concern regarding the risk of reoffending and the prospects of rehabilitation. I find the risk of reoffending to be medium, in accordance with the Sentencing Assessment Report. I find the prospects of successful rehabilitation to be extremely guarded.
61. I do not consider that the Offender requires any additional time on parole in order to facilitate rehabilitation, considering his refusal to do so on the prior occasion.
62. On behalf of the Offender, Ms Barnsley sought a finding of special circumstances. In view of the finding I have made concerning the prospects of rehabilitation and the risk of reoffending, there is no evidentiary basis upon which the Court should exercise its discretion favourably so as to find special circumstances and reduce the non-parole period. Accordingly, I decline to find special circumstances.
63. It was submitted on behalf of the Offender that an aggregate sentence would be appropriate given the fact that the 3 charges for sentence arose out of the same facts. I accept that submission.
64. In sentencing the Offender I am mindful of the purposes for sentencing set out in s3A of the Crimes (Sentencing Procedure) Act 1999 NSW. In coming to the sentence to be imposed, I am satisfied as to the following:
(a) that the sentence is adequate punishment for the offences;
(b) that the sentence will deter both the Offender and others from committing similar offences;
(c) that the sentence will protect the community from the Offender;
(d) that the Offender will be made accountable for his actions;
(e) that via the sentence, the conduct of the Offender will be denounced;
(f) that the sentence provides recognition of the harm done to the victim of the crime and the community.
65. Given my views concerning the prospects of rehabilitation of the Offender, there is no sentence which would accommodate that purpose for sentencing. In my opinion, the need for general deterrence, denunciation and recognition of the harm done to the victim are paramount purposes for sentencing in this particular case.
66. In the Crown’s initial written submissions (MFI 1), guidance was provided regarding applicable principles in relation to offences of this type. For example, reference was made to the decision of R v Pullen [2018] NSWCCA 264, where Harrison J stated:
“The purpose of the offences under s52AB is twofold. First, it emphasises the need for drivers involved in serious motor vehicle accidents to stop and provide assistance to anyone who is injured by at least contacting emergency services. Secondly, it seeks to deter people from impeding a police investigation into an accident.”
67. His Honour then went on to refer to the Second Reading Speech in 2005 when the offence was first introduced, at which time the Attorney-General expressed sentiments consistent with Harrison J’s comments.
68. In sentencing the Offender, I am mindful of the comments made by Basten JA in Hoskins v R [2020] NSWCCA 18. In that case, his Honour cautioned against the distinction to be drawn between dangerous driving occasioning grievous bodily harm (s52A(3)) and the current offence of failing to stop and assist after vehicle impact causing grievous bodily harm (s52AB(2)). The latter being a “lesser offence” [16].
69. Prior to imposing an aggregate sentence, it is necessary to provide indicative sentences in relation to the 3 matters for sentence. The sentences for each offence, if separate sentences had been imposed instead of an aggregate sentence are, in my view, consistent with sentences in like cases. I provide the following indicative sentences:
(a) For Count 1, being fail to stop and assist after vehicle impact causing grievous bodily harm, in breach of s52AB(2) of the Crimes Act, a sentence of 1 year 10 months and 24 days. This term has been reduced by a discount of 5% for the guilty plea;
(b) For Count 3, being driving a motor vehicle during a disqualification period (second or subsequent offence), a sentence of 5 months and 21 days. This term has been reduced by a discount of 5% for the guilty plea;
(c) For Count 4, being negligent driving occasioning grievous bodily harm (first offence), a sentence of 5 months and 21 days. This term has been reduced by a discount of 5% for the guilty plea.
70. Mr Lentini, you are convicted of the following offences:
(a) the offence of failing to stop and assist after a vehicle impact, causing grievous bodily harm, in breach of s52AB of the Crimes Act 1900 NSW;
(b) you are further convicted of the offence of driving while disqualified (second or subsequent offence) in breach of s54(1)(a) of the Road Transport Act 2013 NSW;
(c) you are further convicted of the offence of negligent driving occasioning grievous bodily harm, in breach of s117(1)(b) of the Road Transport Act 2013 NSW.
71. In respect of those convictions, I impose an aggregate non-parole period of 1 year 7 months and 14 days, with a head sentence of 26 months.
72. As to the commencement date, I have backdated it to 1 month after you commenced the fixed term of imprisonment for driving a motor vehicle whilst disqualified, that is, 15 July 2019. This has been adjusted to allow for totality and concurrency.
73. Accordingly, the aggregate non-parole period will expire on 28 February 2021 and the head sentence will expire on 14 September 2021.
74. Further, in respect of Count 1, you are disqualified from driving for a period of 3 years, to commence from the end of your current period of disqualification, 15 October 2021.
75. In respect of Count 3, you are disqualified from driving for a period of 12 months, to commence 15 October 2021.
76. In respect of Count 4, you are disqualified from driving for a period of 3 years, to commence 15 October 2021.
77. You will not be eligible to obtain a driver’s licence until 16 October 2024.
78. In respect of the 2 back-up offences (sequence 2, failing to stop and assist after impact causing injury), that charge is withdrawn and dismissed. In respect of sequence 5, not give particulars to injured person, that charge is also withdrawn and dismissed.
79. Finally, I make orders in accordance with the Short Minute of Order, signed on behalf of the parties, providing as follows:
“That, pursuant to s97(1) of the Victims Rights and Support Act 2013, the sum of $7,025.64 be paid out of the property of Chris Lentini to Calvin Pullen by way of compensation for loss sustained through the offence for which the Offender has been convicted.”
80. In making that order, I find that:
(a) Mr Pullen is an aggrieved person within the meaning of s97(1)(a); and
(b) the compensation represents the loss sustained by reason of the offence committed by the Offender, in accordance with s97.
ANNEXURE A
DATE
OFFENCE
14 October 2010
Licence expired 2 years or more before – first offence
16 October 2010
Licence expired 2 years or more before – second offence
6 November 2010
Drive with middle range PCA
6 November 2010
Licence expired 2 years or before – first offence
1 January 2011
Drive while disqualified from holding a licence
4 January 2011
Larceny (value greater than $2000 less than $5000)
13 January 2011
Possess prohibited drug
13 January 2011
Destroy or damage property
12 February – 3 March 2011
Supply a prohibited drug on an ongoing basis
14 March – 15 March 2011
Supply a prohibited drug greater than the indictable quantity (not cannabis) (Taken into account on a Form 1)
24 March 2011
Supply a prohibited drug greater than the indictable quantity (not cannabis)
1 November 2011
Drive with low range PCA
30 January 2013
Entering enclosed lands without lawful excuse
19 March 2013
Negligent driving (not occasioning death/GBH) (3 charges)
10 May 2013
Licence expired 2 years or more before – first offence
31 May 2013
Possess prohibited drug
31 May 2013
Possess, attempt to obtain anabolic or androgenic steroidal agent
5 June 2013
Never licensed person driving a motor vehicle on a road, first offence
19 June 2013
Not give particulars to other drive
19 June 2013
Never licensed person drive vehicle on road – first offence
10 January 2014
Custody of a knife in a public place – first offence
21 February 2014
Drive motor vehicle during disqualification period – first offence (Sentenced to a s9 bond which was subsequently breached)
22 April 2014
Possess prohibited drug
30 April 2014
Goods suspected stolen in or on premises (motor vehicle)
30 April 2014
Goods suspected stolen in/on premises (motor vehicle) (2 counts)
20 July 2014
Possess prohibited drug
17 February 2015 – 20 February 2015
Supply a prohibited drug (taken into account on a Form 1)
20 February – 19 March 2015
Supply prohibited drug on an ongoing basis
8 February 2018
Custody of a knife in a public place – subsequent offence
8 February 2018
Negligent driving (no death of grievous bodily harm)
8 February 2018
Drive motor vehicle during disqualification period – second plus offence
25 January 2019
Drive motor vehicle during disqualification period – second plus offence (the sentence in respect of this conviction was appealed and the commencement date was set back).
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