Colville v R [2015] NSWCCA 149 | Case summary

Ground 1 - finding as to sleep deprivation exacerbated by secondary effects of drug usage

The collision occurred at about 11.28am on Sunday, 9 December 2012. A statement of agreed facts was tendered on sentencing, from which it can be noted that: at the time of the collision, it was daylight, overcast and the road surface and surrounding areas were dry; Mr Colville was travelling within the speed limit (which was 60km/h) and in a southerly direction along a straight and level road before entering a gradual bend to the east; there was one lane for northbound traffic and one land for southbound traffic; the lanes were separated by a painted double white unbroken line; Mr Chapman was travelling on the same road in a northerly direction also within the speed limit.
It was agreed that Mr Colville's vehicle crossed the double unbroken centre line markings and entered the northbound lane, the front of his vehicle colliding directly with the front of the vehicle driven by Mr Chapman. Witnesses did not see any braking prior to the collision and the only skid marks on the surface of the road were believed to be post impact.
Mr Colville was semi-conscious after the accident happened. There was a dog in the rear seat of his car. When he recovered consciousness, Mr Colville asked a witness "[w]hat did I hit?".
The statement of agreed facts recorded that a witness driving 50 to 60m behind Mr Colville as he crossed a bridge over Fennell Bay (which is about 200m before the gradual bend) described seeing Mr Colville's vehicle drift to the right: it certainly wasn't an erratic motion, but it started to move right towards the middle lines. I could see a line of traffic oncoming traffic heading north and I saw three vehicles move to their left within their lanes to give the station wagon a wide berth … The station wagon was still in his lane but had drifted right over to the centre lines, this happened over maybe a second to a second and a half. Then I saw the station wagon suddenly pull to the right and the front of the vehicle veered onto the wrong side of the road and into incoming traffic ...
Paragraph 17 of the agreed statement of facts stated that: There is no clear explanation for the vehicle driven by the offender crossing on to the incorrect side of the road. An examination of the offender's vehicle discovered no mechanical defects. The surface of the road was in good condition, and dry. The offender was not travelling at a speed considered to be excessive by the other motorists who saw the collision.
The agreed statement of facts also recorded that on 26 May 2013 Mr Colville had provided a typed version of events to investigating police, in which he stated that on the morning of the accident he had driven a friend from Noraville to Speers Point (from about 4.30am to 5.30am) and that the next thing he was aware of was regaining consciousness a couple of times when being treated by ambulance officers at the scene of the collision. Mr Colville also stated that he was aware that various substances were found in his system at the time of the accident and that "the last time I had taken any illicit substance was at least 24 hours beforehand, if not longer".
Annexed to the statement of agreed facts was an expert report from a clinical forensic pharmacologist, Dr Perl. Dr Perl analysed blood samples taken from Mr Colville at 1.35pm and 5.40pm on the day of the incident, as well as a urine sample taken at 5.40pm that day. Dr Perl identified various substances in Mr Colville's blood samples, including methylamphetamine, diazepam and clonazepam. Dr Perl explained that methylamphetamine, generally referred to as "speed" (and in its hydrochloric form as "ice") is an illicit substance with no legitimate therapeutic use; that diazepam and clonazepam both have therapeutic uses but are only meant to be available on prescription and are commonly misused by narcotic or recreational drug users; and that the presence of morphine in the blood could have been administered for pain after the collision but this was not probable given the presence of fentanyl (which is commonly used to treat pain in hospital).
Dr Perl also explained the "biphasic" actions of methylamphetamine: the second phase, following the acute effects caused by the stimulation of the central nervous system, being dominated by "rebound fatigue and sedation". Dr Perl said at p 2 of her report: Following the stimulation phase, as the blood concentration of the stimulant decreases, there may be a reactive drug-induced fatigue stage when driving ability can also be impaired. During this stage the driver may experience drowsiness/sleepiness/fatigue, a slowing of reactions and impairment of perceptions and judgement.
Dr Perl, relevantly, stated at [1] that: Based on my specialised knowledge, and relying upon the above information, I cannot form a firm opinion that at the time of driving, Patrick James COLVILLE was under the influence of the drugs detected to the extent that his driving ability would have been impaired, but I cannot exclude there being some effects of methylamphetamine and clonazepam (and possibly morphine) which may have contributed to the collision.
At [7], referring specifically to methylamphetamine, Dr Perl expressed the opinion that the circumstances of the collision and blood level of methylamphetamine "would suggest some impairment of [Mr Colville's] vigilance and reaction skills which are likely to have contributed to the collision". That opinion was preceded by the qualification that, in the absence of any information related to "the last use of methylamphetamine, regularity of use, absence of symptoms displayed by" Mr Colville, Dr Perl could not provide an opinion "beyond reasonable doubt" that there was impairment due to the methylamphetamine at the time of the incident. (Whether the evidence sustained a conclusion beyond reasonable doubt was not, of course, part of Dr Perl's function as an expert to determine. However, reliance is placed for the applicant on this statement in the report as indicating the matters in respect of which Dr Perl would have required information in order to be able to conclude that the methylamphetamine had impaired Mr Colville's driving ability.)
Other material capable of shedding light on Mr Colville's state of alertness at the time of the offence includes the reference in the Crown's pre-sentence report dated 29 May 2014 to a statement by Mr Colville that he had last used illicit substances a few days prior to the offence and his claim that he had had "limited sleep" due to relocating from the Blue Mountains to the Lake Macquarie area. Mr Colville's statement to the police in May 2013 referred to a 'recent' move to the Central Coast from the Blue Mountains, as did the psychological assessment report tendered by Mr Colville at the sentencing hearing.
That psychological assessment report, dated 23 May 2014, was based on a two hour "semi-structured interview and psychometric testing". Ms Durkin, a clinical and forensic psychologist, recorded among other things Mr Colville's account of his drug and alcohol history. That history included heroin use commencing from the age of 28 as well as use of "speed" and "ice" from that time. Ms Durkin records that Mr Colville indicated that his abuse of stimulants receded as his use of heroin increased. He reported that he had injected up to $1,500 worth of heroin per day for around 10 years but after a period of incarceration in 2010 his heroin use reduced to around $100 to $200 worth of heroin per day and this apparently was the level of his heroin use at around the time of the offence ([30]).
At [38] of her report, Ms Durkin recounted Mr Colville's account of the offence, including the following: Around the time of the offence, Mr Colville advised that he was moving house, relocating to the Central Coast region in order to extricate himself from the drug using culture in the Blue Mountains where he had been residing. On the day of the offence, he said that he was in the process of moving his possessions to a new residence when the collision occurred. He stressed that it was unintentional and he stated that he has no clear recollection of what led to the incident. As such, he was unable to explain why he crossed over the middle of the road, causing a head on collision with the victims' car. Mr Colville denied that speed was a factor in the offence, advised that he was feeling positive in mood about moving and he did not report being under the influence of substances at the time of the collision.
The sentencing judge's conclusion, having regard to all of the evidence concerning the crash, was that Mr Colville was driving his vehicle on the morning of the crash "in a sleep deprived state, with his fatigue exacerbated by the after effects of the drugs he had illegally consumed" (p 7 of the remarks on sentence). Her Honour referred to the statement made by Mr Colville to the police in May 2013 (see [14] above) that he had taken illicit substances "at least 24 hours prior to the crash" and inferred that he was in the second phase of methylamphetamine use and consequently affected by some degree of rebound fatigue. Her Honour went on to say (p 8 of the remarks on sentence): Since the offender had a clear recollection of having had little sleep in the period immediately prior to the crash, it is reasonable on all of the evidence to conclude beyond a reasonable doubt that he was sleep deprived, with his level of fatigue exacerbated by the secondary effects of at least his methylamphetamine usage. Plainly, the offender was on the road on this morning fully cognisant of his level of fatigue. He must have posed a danger to other road users throughout his journey that day, with the risk becoming manifest in the seconds before the crash. and: The manner of driving here is common to both offences and involves the use by the offender of his car when he was sleep deprived and so fatigued as to have been in danger of falling asleep on the road. He was aware of his level of sleep deprivation and doubtless aware that he should not have attempted to undertake the journey he took with such high levels of fatigue.
Elsewhere, her Honour referred to Mr Colville being "in a state of deep fatigue" and being "sleep deprived throughout [the journey]" (p 9 of the remarks on sentence).
Relevantly, her Honour did not accept Mr Colville's submission that his offending conduct was of fleeting duration and the crash the result of momentary inattention, though she acknowledged that the portion of the journey spent driving either towards the centre line or on the incorrect side of it was of short duration (p 9 remarks on sentence).
Her Honour concluded that, although Mr Colville's conduct could not be described as an abandonment of his responsibility to others when using the road as a motor vehicle driver, his moral culpability was grave and much higher than fleeting error or misjudgement (p 10 of the remarks on sentence).
Mr Colville submits it was not open to her Honour on the evidence to conclude beyond reasonable doubt that the cause of the accident was sleep deprivation exacerbated by illicit drug use. Complaint is made both as to the finding of sleep deprivation per se and as to the related finding that it was exacerbated by illicit drug use.
As to the finding of sleep deprivation, it is submitted for Mr Colville that the entirety of the evidence in relation to sleep prior to the accident was the statement in the pre-sentence report that he had had limited sleep due to relocating from the Blue Mountains to the Lake Macquarie area. It is submitted that this evidence could not provide a basis for the conclusion either of deep fatigue or that Mr Colville was aware of his level of sleep deprivation and that he should not have attempted to undertake the journey he took with such high levels of fatigue.
As to the finding that Mr Colville's sleep deprivation was exacerbated by illicit drug use, it is submitted that Dr Perl's report made clear (at [7]) what additional information would be required in order to reach a conclusion as to the level of any impairment referable to the concentration of drugs in Mr Colville's system after the accident (i.e., information as to the last use of methylamphetamine, regularity of use and symptoms, or absence of symptoms, displayed by Mr Colville). To the extent that there was evidence available to the court as to some of those matters, it is submitted that Dr Perl did not indicate in her report how those additional factors would impact upon her opinion as to impairment.
The Crown submits that the findings made by her Honour were well open to her and that this Court is bound by the findings of fact made by the sentencing judge unless they were not open on the evidence or unless error is shown in the sense referred to in House v The King [1936] 40; (1936) 55 CLR 499 at 504 (see Keeley v R [2014] NSWCCA 139 per Johnson J at [76]). Reference is made to McBeth v R [2009] NSWCCA 235, where McCallum J, with whom McClellan CJ at CL and Hidden J agreed, said (at [30]) that the Court's power to substitute its own findings of fact for those of the sentencing judge arises only if the judge mistakes the facts in the sense understood in House v The King; it being necessary to establish there is no evidence to support the finding, or that the evidence is all one way, or that the judge has misdirected himself or herself. The basis on which this Court's power to intervene in relation to findings of fact in this context is to be exercised has been comprehensively analysed by Simpson J (as her Honour then was) in AB v R [2014] NSWCCA 339, with whom Meagher JA and Wilson J agreed.
The inference that Mr Colville was sleep deprived was one that was clearly open on the evidence. He had commenced driving that morning at about 4.30am, having on his own account recently had limited sleep due to his move to the Central Coast. There were no mechanical defects found in the vehicle. The road was in good condition and dry. It was a gradual bend in the road. Mr Colville was not travelling at an excessive speed and, significantly, he was not observed to have applied the brake in the second or second and a half in which the witness observed him to drift right over to the centre line (such that other cars had moved to the far left of their lane to avoid him) and then crossed to the right straight into the path of oncoming traffic. Nor were there skid marks to suggest that he had applied the brakes before the collision. There was no suggestion that Mr Colville had been distracted by anything inside the car (such as by using a mobile phone or turning his head to check on his dog); nor was there evidence to suggest that anything occurred outside the car to distract his attention. There was no suggestion that Mr Colville was afflicted by some condition of automatism or the like.
The available inference (since it is not suggested that Mr Colville was acting deliberately when he crashed into Mr Chapman's vehicle) is that when Mr Colville's car drifted to the centre of the road and then crossed to the right (as the road was curving to the left) he took no action to correct the vehicle's course and to avoid the head-on collision because of fatigue.
As to the impact of recent drug use on Mr Colville's state of alertness, it is accepted that there was methylamphetamine in the blood samples taken at the hospital. Mr Colville's statement to the police placed the last use of "illicit substances" as being "at least" 24 hours prior to the collision (if not longer). His account to Ms Durkin of his drug and alcohol history includes the use of methylamphetamine as well as the use, on a daily basis, of heroin. Whether the methylamphetamine was taken 24 hours before the collision or sometime earlier than that, the fact is that the drug was still in his system at the time of the accident (and for at least six hours after the accident). (The toxicology report also confirmed, by reference to the concentration of diazepam in Mr Colville's blood that he had used diazepam within the previous 24 hours, as well as the probability that the morphine or heroin in his blood was present at the time of the accident.)
As noted earlier, Dr Perl's report explained the secondary effects of methylamphetamine and concluded that the circumstances of the accident and the blood level of methylamphetamine suggested "some" impairment of his vigilance and reaction skills.
The conclusion that Mr Colville's driving ability was impaired to some degree by the effect of the methylamphetamine in his system was one that was open to her Honour having regard not only to the blood analysis but also to the circumstances in which the collision occurred (there being simply no reaction at all, it would seem, by Mr Colville to his car drifting across and then veering to collide head-on with oncoming traffic). True it is that it would not be possible on the basis of Dr Perl's report to determine the extent or level of the impairment of his driving ability due to the presence of methylamphetamine but that does not mean that it was not open to her Honour to be satisfied beyond reasonable doubt that Mr Colville was driving the car in a state of tiredness exacerbated by the secondary effects of methylamphetamine use.
Her Honour did not err as contended by ground 1 of the proposed grounds of appeal.
Although not raised specifically in the grounds of appeal, in his submissions Mr Colville also raises an issue as to procedural fairness in relation to the finding of sleep deprivation. Reference is made to R v Uzaabeaga [2000] NSWCCA 381; (2000) 119 A Crim R 452 in this context. It is submitted that her Honour provided no indication that she intended to sentence Mr Colville upon a higher degree of culpability than that contained in or disclosed by the agreed facts and hence that there was no basis procedurally for her Honour to find sleep deprivation and drug use as a matter of aggravation.
In this regard, Mr Colville refers to the submissions made during the course of the sentence hearing. In particular, he notes that the Crown informed her Honour (30 May 2014, T 5) that: The stark issue is that there is no satisfactory explanation as to why the vehicle driven by the offender went onto the incorrect side of the road and collided in a head on fashion with the vehicle driven by Mr Harold Chapman. …there is a reference in the pre-sentence report to the offender saying that he had had … some little sleep as a result of him moving locations. It is not further set out and it is not explored. There is simply no evidence that the offender fell asleep or that there was any degree of sleep deprivation.
The Crown went on to discuss Dr Perl's report and said: The Crown can't elevate the report of Dr Perl to a position where I can safely submit to your Honour that beyond reasonable doubt the collision is as a result of driving under the influence but I do say to your Honour that in terms of the charge of driving in a manner dangerous and where there's no other satisfactory explanation on the evidence as to why the offender crossed on to the incorrect side of the road, it is a relevant matter for your Honour to consider. … the Crown says that just as an assertion of the offender having lost the opportunity to sleep might be considered, so should the report of Dr Perl (T 6).
The Crown also pointed out to her Honour that there was no evidence that the offender was distracted by answering a mobile telephone or by the dog that was in the vehicle, and that none of the witnesses described the offender bending down or doing anything such as changing the volume on the radio or tending to something that may have fallen to the floor of the car. The Crown emphasised that: It seems to be a case where your Honour needs to sentence simply on the basis that the offender, whilst driving a motor vehicle, allowed the motor vehicle to veer to the centre of the road over a period of a second and a half or so, to a degree that alarmed three oncoming vehicles who took evasive action and the vehicle driven by the offender then seems to have continued on the trajectory into the path of oncoming traffic until suddenly veering to the right shortly prior to impact. … In the Crown's submission your Honour it can't be classified as a case simply of momentary inattention or misjudgement. [T 6- 7]
Having regard to the evidence and submissions made at the sentence hearing, the Crown submits that the degree of sleep deprivation of Mr Colville was a live issue during the sentencing proceedings and there was no procedural unfairness occasioned to Mr Colville since he had the opportunity to make submissions on that issue.
In Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 (at [35] and [37]) Gleeson CJ noted that the real question in determining whether or not a party has been denied an opportunity to be heard is whether there has been actual unfairness, not whether there has been a disappointment because an expectation was not fulfilled or has been disappointed. The Crown submits that in the present case, submissions were made as to moral culpability by reference to the aggravating factors outlined in the guideline judgment of R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252. Those included the degree of sleep deprivation, an issue that Mr Colville's legal representatives addressed in their oral submissions (at T 11.20ff).
The Crown points out that it is open for a sentencing judge not to accept submissions of Counsel and that the existence of agreed facts between the parties does not prevent proper inferences to be drawn outside the statement of facts (referring for the latter submission to Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 606).
In the present case, the agreed statement of facts relevantly said no more than that there was no clear explanation for the vehicle crossing onto the wrong side of the road. However, facts from which an inference that it was due to sleep deprivation exacerbated by drug use (in particular the circumstances of the accident and Mr Colville's blood analysis) were part of the agreed facts and submissions proceeded on the basis that it was for her Honour to determine what findings could properly be made on the basis of the evidence before the Court. Sleep deprivation and the secondary effect of methylamphetamine were matters raised in the material before the Court and Mr Colville had the opportunity to address thereon. No denial of procedural fairness has been demonstrated in this regard.
Ground 1 is not made out.

Ground 2 - rejection of background material in relation to deprived early childhood

As noted above, at the sentence hearing Mr Colville tendered the psychological assessment report of Ms Durkin. It was admitted without objection from the Crown. It therefore was not rejected in the evidentiary sense. Rather, it is clear that her Honour had regard to the report but considered that no great weight should be accorded to the account of Mr Colville's childhood history having regard to Mr Colville's unreliability as a historian and the fact that the veracity of that account could not be tested.
At pp 10-11 in her remarks on sentence, her Honour noted that the offender had described a dysfunctional and violent upbringing with consequent disruption to his education but said that it was impossible to know if any of the history he gave Ms Durkin was accurate or reliable. Her Honour said: Ms Durkin reports that the offender impressed her as a man of low but functional intelligence who was not particularly insightful and who was, in part, a reluctant historian. He was one of three sons born to his parents but he reported an unhappy childhood to Ms Durkin. He asserted to her that he was made a State ward at about the age of eight and placed in some sort of remand facility, despite having not been charged with or sentenced for any crime. The court simply has no way of knowing whether that claim could be correct or not.
Her Honour also referred to Ms Durkin having recorded that Mr Colville had reported to her that his developmental years were punctuated by violence, neglect and an absence of proper education and family support. Her Honour noted that Mr Colville had not given any evidence of his personal antecedents and had called no evidence from any family member who could confirm his untested account of his early life; nor were any government records obtained as the time Mr Colville says he spent in the care of the Minister when a child. Her Honour then said: The court has no means of assessing the veracity of the history the offender provided to Ms Durkin. One matter of which he gave account to Ms Durkin, his now greater respect for the law and the greater care with which he says he drives a motor vehicle, is disproved by the objective evidence of the offender's traffic record. That fact does not suggest the offender is necessarily a truthful or an accurate historian. Accordingly, I am unable to give Ms Durkin's report and opinion any great weight. Specifically, the court cannot accept the offender's submission that his moral culpability for these offences is reduced in the way referred to in Bugmy v R [2013] HCA 37, or that it militates in favour of amelioration of the sentence to be imposed upon him.
Mr Colville submits that her Honour's reasoning followed a misapprehension of the principles espoused in R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 concerning the reliance upon untested histories in areas of controversy. In Qutami, Smart AJ emphasised that great caution would be exercised in respect of the weight, if any, given to statements made by prisoners to experts such as psychiatrists and psychologists where there is no evidence given by the prisoner and that in many cases only very limited weight could be given to such statements ([58]-[59]). More recently, in Keeley v R [2014] NSWCCA 139, Johnson J referred to Qutami when holding that it was correct for the sentencing judge to give very limited weight to unsworn and untested statements made by the offender to the psychiatrist and psychologist (at [78]).
In this regard, Mr Colville points to his criminal record, which was in evidence before her Honour and which showed intervention by the juvenile courts; the statement in the Crown's pre-sentence report that he had ceased his formal education at year eight and had described a sporadic history of employment since that time; and his commencement of the use of cannabis at the age of eight and amphetamines in adolescence. However, the matters to which her Honour referred in the context of her observations as to the untested accounts given by Mr Colville of his early life went to matters not evident on the face of the material going to his juvenile criminal record and early use of drugs. There was nothing, for example, by reference to which her Honour could test the veracity of the account given by Mr Colville of his experience of violence and neglect; nor of his claim to have been made a ward of the State and his experience as such.
Given that Mr Colville's own psychologist referred to him as a reluctant historian, lacking in insight and inconsistent in his explanation at times, and there was an obvious example of Mr Colville's unreliability as a historian by reference to his claim now to have a greater regard for the law, her Honour did not err in concluding that she was unable to know if any of the history he had given to Ms Durkin as to his developmental years was accurate or reliable.
Mr Colville nevertheless maintains that this is another area where he was not accorded procedural fairness. It is submitted that the Crown identified that part of the report dealing with his childhood history as evidence that it would not challenge and hence that if the sentencing judge was going to reject that part of the report, on the basis of it not being supported by evidence, there was a positive obligation on the part of her Honour to raise that issue.
On this aspect of ground 2, Mr Colville points to what was said by the Crown in closing submissions in relation to Ms Durkin's report. At T 7, the Crown said: In terms of the psychological report that's available to your Honour, it is not supported by way of any sworn evidence. There is a personal history some of it pointing towards a childhood and upbringing that certainly would suggest that the offender was significantly disadvantaged. As a general proposition, I don't seek to cavil with that. (my emphasis)
The Crown drew her Honour's attention to particular paragraphs of the report about which it was said that if they were to be given any weight they needed to be supported by sworn evidence ([30], [31], [33], [34], [36], [38], [39] and [40]). In so doing, the Crown seems to have identified these as statements which were directly proximate to the offending conduct. The statements as to his early childhood were not so identified. The Crown notes that Mr Colville's written submissions at the sentence hearing themselves eschewed any causal relationship between the offences and his upbringing (referring to the submissions on sentence at [17]).
Mr Colville submits that the statement made in the sentence hearing that, as a general proposition, the Crown did not seek to cavil with the personal history contained in the report meant that there was no controversy as to the proposition that he was significantly disadvantaged as a child, thus making it incumbent on her Honour, if she proposed to give it little weight because it was untested, to draw this to his attention.
The Crown's response is that the statement extracted above did not mean that there was a complete adoption of the version of events recounted by Mr Colville to Ms Durkin; rather, the Crown had sought to concentrate on those aspects of his history which could be said to be causally connected with his offending per se.
Mr Colville's submission as to a denial of procedural fairness seeks to draw more from the way in which the Crown approached the report in submissions than is warranted. What the Crown indicated, in the extract set out above, was that it conceded that the personal history "pointed to" a childhood and upbringing that "would suggest" there was a significant disadvantage. The Crown made no concession that there was a significantly disadvantaged childhood/upbringing. The position was thus left that it was a matter for her Honour to decide what weight should be put to Mr Colville's unsworn and untested account of his childhood. The caution with which such history is approached has been made clear in the authorities to which I have earlier referred and of which it is not suggested Mr Colville's legal representatives were aware.
Ground 2 is not made out.

Colville v R

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