DPP v Deborah Levy

The relevant law

1. The Director's appeal is an appeal as of right: section 23 Crimes (Appeal and Review) Act 2001. The appeal is to be determined on the material that was before the Local Court: section 26 Crimes (Appeal and Review) Act 2001. The District Court may set aside the sentence, vary the sentence or dismiss the appeal: section 27 Crimes (Appeal and Review) Act 2001.
2. The Court must not dismiss an inadequacy appeal or impose a less severe penalty than is warranted because of any element of double jeopardy: section 68A Crimes (Appeal and Review) Act 2001. In this context the term double jeopardy refers to the distress and anxiety experienced by respondents who are the subject of an inadequacy appeal: R v JW [2010] NSWCCA 49.
3. A sentencing court must approach the imposition of a suspended sentence on the basis that it can be sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. It should also be recognised that the immediate suspension of the sentence deprives the punishment of much of its effectiveness in this regard, because it is a significantly more lenient penalty than any other sentence of imprisonment. The appropriateness of a suspended sentence must be determined on a case-by-case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. The protection of the community can be achieved in an appropriate case by a sentence designed to assist the rehabilitation of the offender, at the expense of deterrence, retribution and denunciation. In that case a suspended sentence may be particularly effective and appropriate: R v Zamagias [2002] NSWCCA 17 at [32].
4. A suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and is most likely to benefit from the exercise of the court's clemency. The purpose of suspending a sentence is "primarily rehabilitative" and a sentence of imprisonment should not be suspended unless there is a reasonable prospect that the suspended sentence will have sufficient deterrent effect or will be likely to bring about the rehabilitation of the offender. The discretion to impose a suspended sentence is not confined by considerations relating to rehabilitation: R v Barlow [2008] NSWCCA 253 at [62]-[63] quoting from Wood v Samuels (1974) 8 SASR 465 at 468, R v Percy [1975] Tas SR 62 and Dinsdale v R (2000) 202 CLR 321.
5. The imposition of a suspended sentence involves two components, namely the imposition of a term of imprisonment and the suspension of it where that is legally and factually justified. In cases where the suspended sentences are completed, without reoffending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law of this statement is giving credence by the terms and structure of the statute. However, in practice it is not always viewed that way by the public, by victims of criminal wrongdoing or even by offenders themselves. This disparity of attitudes illustrates the tensions that exist between the component parts of this sentencing option: the decision to imprison and the decision to suspend: Dinsdale per Kirby at 345-346.

The facts and the material before the Magistrate

1. At about 4.00pm on 31 January 2015 the respondent was driving her Mitsubishi Starwagon (the van) north on Woolooware Road, Woolooware when she turned right into Caronia Avenue and collided with the victim, Mr Glenn Wheeler, who was riding a motor scooter south on Woolooware Road. The respondent cut the corner and the front driver's side of the van collided directly with the victim, causing him to be thrown from the motor scooter and collide heavily with the windscreen of the van before landing on the roadway. The respondent stopped and checked on the victim's welfare. The victim was taken by helicopter to the St George Hospital and underwent surgery for head and internal injuries.
2. The respondent was taken to Sutherland Hospital and treated for minor injuries. A blood sample was taken from the respondent. The respondent's blood sample returned a positive result for cannabis. Dr Judith Perl, pharmacologist, provided an expert report as to the respondent's impairment based on the level of tetrahydrocananabinol (THC) in the respondent's blood. Dr Perl was given a description of the collision and asked to assume that the respondent: 1. refused to be interviewed; 2. was pale, indifferent, irritable, restless, confused in her speech and clumsy; 3. displayed erratic and peculiar behaviour and that she appeared to be hallucinating; 4. told the police that she was Kerry Packer's secretary and that she had spoken to him in the past few days; 5. rambled on various topics; 6. displayed moods that fluctuated between anger and bewilderment; and 7. telephoned Telstra whilst at the police station to discuss mobile phone plans.
3. Dr Perl opined on the basis of her manner of driving, her symptoms after the collision and the blood results that there would have been some impairment of her ability to drive.
4. The Director tendered an expert statement of Dr Mary Langcake dated 3 August 2015. Dr Langcake described the victim's injuries as "near fatal". They included subarachnoid haemorrhages (bleeding in the brain), a fractured eyesocket, a fractured femur and a fractured pelvis. The victim has required multiple surgeries, experienced a number of complications such as haemorrhaging and infections and has been in intensive care for 24 days. He has a brain injury with severe neurological deficit and as at 3 August 2015 remained in the Brain Injury Rehabilitation Unit at Liverpool Hospital. The victim is unlikely to make a full recovery, is unfit for his pre-injury employment and will require a high level of care for the rest of his life.
5. The respondent tendered a report of Dr Andrew Ellis, psychiatrist dated 28 February 2016. Dr Ellis obtained a history that the respondent was 60 years old, single and had no dependents. At the date of the report she was living in a boarding house and had been on the disability support pension for 4 years. At the time of the offence she was homeless and living in the van with 2 large dogs and a cat. Her de facto relationship of 22 years had broken down shortly before the offences. She had driven to Sydney from the north coast after the relationship ended as a result of a conviction for assault and the imposition of an apprehended domestic violence order on her. Dr Ellis found it difficult to obtain a history because of her mood swings.
6. The respondent had a medical history of menopause for 30 years and hormone imbalance for which she had seen an endocrinologist. She suffers from nausea, hot and cold flushes, breathlessness and anxiety as a result of this condition. She told Dr Ellis that her sleep was poor and that she could be awake for up to 6 days at a time.
7. The respondent told Dr Ellis that she had been under significant stress and was suffering financial hardship. She described her partner as abusive. Shortly before the offences she had been told by the police that her partner had died. She had seen a psychiatrist between 1998 and 2002 and had been prescribed sertraline (Zoloft) but she was unaware of any diagnosis. She had a history of drinking heavily, but it was not recent. She had smoked cannabis occasionally for most of her life and still did so. She had only been charged with one offence of assault occasioning actual bodily harm on her partner in 2014. She failed to appear on that charge on a number of occasions. She was ultimately put on a good behaviour bond for 12 months. She told Dr Ellis that her partner was abusive and that she had been a victim of domestic violence throughout their relationship. Her parents were well off but divorced when she was aged 5. The respondent was raised by her mother and uncle in a boarding house. She left school at age 16 and attended TAFE. She did not complete a TAFE course. She had worked casually in hospitality for most of her life. Her longest period of employment was for 4 years at the casino as a croupier.
8. On the morning of the offences she reported to Sutherland Police Station and was informed that her partner had died. She had nowhere to live at that time. She had smoked a joint of cannabis due to poor sleep on the night before. She was worried about her other dogs that were in the care of her partner. She telephoned her partner's son to find out what happened. She was concerned that her partner had been killed by bikies. That conversation turned into an argument. She was emotionally distraught and decided to drive to find her niece.
9. During the consultation with Dr Ellis the respondent was animated and spoke with rambling rapid speech. She had mood swings, moving between cheery, fatuous and irritable. She had a generally persecutory outlook centred on the family who she believed disliked her immensely. She reported the need to associate with famous and artistic people, even if it led to dangerous situations for herself.
10. Dr Ellis could not come to a definitive diagnosis because of the difficulty in taking a history and in the absence of investigations that may provide an organic explanation for her presentation. In Dr Ellis's opinion the respondent presented with a hypomanic mood, with sleeplessness, and irritable and the labile affect, grandiose planning, impulsivity and motor restlessness. Dr Ellis thought that her condition may be as a result of bipolar disorder, organic brain damage or related to a hormonal condition such as a thyroid disorder. She also displayed symptoms consistent with panic and increased anxiety over a long period of time. In the absence of medical tests, Dr Ellis believed that the most likely diagnosis was a chronic mood disorder with depressed and hypomanic phases, such as bipolar II disorder. If her use of cannabis contributed to her hypomanic mood state she could also be diagnosed with substance use disorder. It was also possible that the respondent suffered from a personality disorder, but that would require a longitudinal review. A borderline personality style could be considered as a differential or concurrent diagnosis.
11. Dr Ellis opined that regardless of the underlying cause the respondent was suffering from a hypomanic mood at the time of the collision. It was likely that it impaired her judgement. It was likely that she was stressed by the news of her partner's death, was distraught without any social support and living in marginal circumstances. She was likely to have been sleep deprived because of her hypomanic mood, further impairing her reflexes, impulse control and judgement. The description of her behaviour at the scene was consistent with a hypomanic mood. It was likely that the use of cannabis earlier in the day would have worsened the hypomanic mood.
12. Dr Ellis recommended that the respondent be referred to a psychiatrist to coordinate further investigations, including blood tests and neuroimaging to exclude any organic cause. He recommended revision of her psychiatric medication because the use of the drug sertraline (Zoloft) by itself was likely to worsen a hypomanic mood and she would likely obtain benefit from mood stabilising medications. The psychiatrist would most likely need a history from a family member who had known the respondent for her whole life and access to previous medical records. Dr Ellis recommended that she cease using cannabis.

Objective Seriousness

1. The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No 2) (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15].
2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
3. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No 5) [2009] NSWSC 432 at [61].
4. The objective seriousness of the negligent driving causing grievous bodily harm offence is informed by the consideration of the degree of negligence and the seriousness of the injuries inflicted: Gorladenchearu v R [2011] 34 VR 149 at [20].
5. The victim's injuries were severe. He sustained a brain injury from which he will not fully recover and he will require a high level of care for the rest of his life. The expert statement of Dr Langcake does not provide me with an up to date position of the victim's condition. Notwithstanding that the victim's injuries have had a profound effect on his life, they are not in the worst category of grievous bodily harm for this type of offence when one objectively considers the damage that can be inflicted by a motor vehicle on a person.
6. The degree of negligence is substantial. The respondent had not slept well the night before, she was emotionally distraught, she did not keep a proper lookout, she cut the corner and made no attempt to negotiate the turn properly. The respondent did not see the victim, give way or make sure that there was no oncoming traffic and thereby caused the collision. This was not a matter of monetary inattention or mis-judgement. She was clearly not paying any attention to safely negotiating the right-hand turn.
7. The negligent driving causing grievous bodily harm offence matter should be assessed in high range of objective seriousness of this type of offence.
8. The drive under the influence of a drug offence was in the low range of objective seriousness. There was nothing about the respondent's manner of driving that indicated she was affected by cannabis. The levels of THC detected in the respondent's blood sample were not significant or indicative of impairment.

Deterrence

1. General deterrence is of significance to the offences before the Court. One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will meet with severe punishment.
2. General deterrence may be attributed less weight in cases where the offender suffers from mental condition because such an offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. The authorities do not mandate an entire disregard of general or specific deterrence by the sentencing judge: The extent of the reduction depends on the circumstances of the case: Palijan v R [2010] NSWCCA 142 at [27], R v Scognamiglio (1991) 56 A Crim R 81, R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91.
3. The factors that are relevant to the assessment include the nature and extent of the mental condition suffered, whether the offender acted with knowledge of what they were doing and the gravity of their actions and whether the community requires protection from the offender by reason of the mental condition suffered.
4. In this case, I am satisfied on the balance of probabilities that the respondent suffers from chronic and debilitating mental illness. Dr Ellis' report reveals that the respondent suffers from a number of serious symptoms that significantly affect her everyday functioning. It is to Dr Ellis' credit that he did not try to definitively diagnose the respondent based on a single medico-legal consultation, a poor history and without the benefit of further medical investigations. The history he did obtain and the observations that he made of the respondent were consistent with the observations made by the police immediately after the collision. The description of those observations that Dr Perl was asked to assume, demonstrated that the respondent was experiencing significant psychological symptoms at the time of, or at least immediately after the collision. Her mental state was also affected by her emotional distress stemming from her financial position, her homelessness and finding out that her partner had died. Her decision to drive and her ability to do so were affected by those matters to the extent that I am satisfied on the balance of probabilities that she did so without fully comprehending the gravity of the consequences that could follow. It was in the community's best interests for her not to be driving in that mental state. That concern could be and was addressed by the imposition of an appropriate period of disqualification.
5. The need for specific deterrence is also reduced in this case. The respondent has not driven since the collision and is now living in a boarding house. She has engaged with psychological treatment pursuant to the orders made by the magistrate.

Aggravating factors

1. The offences were committed whilst the respondent was on conditional liberty: section 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. At the time of the offences the respondent was on bail for offences of assault occasioning actual bodily harm and contravening an apprehended domestic violence order. The charges arose from her relationship with her partner. This aggravating factor is established irrespective of the nature of the charge for which an offender is on conditional liberty. However, the weight to be attributed to it must be assessed by reference to the offender's willingness to comply with the orders of the court.

Mitigating factors

1. The respondent does not have any significant record of previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The respondent has held a drivers licence since 1981. In 35 years of driving she has incurred eight relatively minor speeding offences, two disobey traffic light offences and one negligent driving offence in 1998. The respondent does not have any convictions for any major traffic offences.
2. The respondent has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The respondent has presented in the context of this case with a significant and debilitating mental condition. At 60 years of age she has not received any significant treatment for that condition. The mental condition is exacerbated by her hormonal imbalance. I am satisfied on the balance of probabilities that the respondent will benefit greatly from psychiatric treatment by way of monitoring by a psychiatrist and the prescription of appropriate medications. The effect of a sentence imposed by the magistrate has included that she now has stable accommodation, supervision by Community Corrections and that she has engaged with psychiatric treatment.
3. The respondent entered an early plea of guilty: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The plea demonstrates remorse and can be taken into account in imposing a different type of penalty. The respondent should be given the maximum discount available for the plea of guilty in this case, of 25%.

Disposition of the appeal

1. It was accepted by the parties that the magistrate's decision to impose a term of imprisonment of 7 months for the negligent driving causing grievous bodily harm offence, was correct. I agree with the Magistrate's decision that a term of imprisonment of 7 months was appropriate.
2. The Director contended that the magistrate was in error by deciding to suspend the sentence. The Director argued that the magistrate made two specific errors. First, a factual error by finding that the respondent had smoked the cannabis on the night before the collision. Second, a legal error by failing to refer to the relevant authorities relating to the suspension of a term of imprisonment, before proceeding to do so.
3. I am satisfied that the magistrate made the factual error. However, I do not think that it is of much relevance in the determination of the appeal. The fact of impairment due to cannabis was accepted by the respondent. There was nothing about the manner of driving, before the collision that indicated that she was affected by cannabis. For the reasons I have already expressed, I cannot consider the affection by cannabis to be involved in the causation of the collision.
4. I am not satisfied that the magistrate made the legal error. Whilst it is true that the magistrate did not make specific reference to the relevant authorities, she did make orders to provide for the respondent's rehabilitation by imposing conditions on the good behaviour bonds pursuant to sections 9 and 12 Crimes (Sentencing Procedure) Act 1999 for the supervision of the respondent in obtaining and maintaining treatment for her mental condition. In other words, the magistrate gave effect to the principles set out in the authorities without specifically referring to them. To do so does not disclose legal error.
5. Taking into account all of the circumstances of the case, I agree with the magistrate that it was appropriate to suspend the term of imprisonment. That penalty was severe enough to reflect general deterrence in the case and to specifically deter the respondent. Whilst the negligent driving causing grievous bodily harm offence was objectively serious, the protection of the community was best served by the rehabilitation of the offender. There was a strong causal connection between the offences and the respondent's physical and mental conditions. I am satisfied on the balance of probabilities that it is not appropriate to send the respondent to prison for the first time and that she will benefit from the court's clemency.
6. The Director's argument was unclear as to whether the respondent should have received a custodial sentence for the drive under the influence of a drug offence. As a result of the way the charges were laid that offence did not aggravate the negligent driving causing grievous bodily harm offence. The respondent had no previous convictions for any major traffic offence. Where there was no evidence or suggestion that her manner of driving was impaired because she was affected by cannabis the appropriate range of penalties included a fine, a good behaviour bond pursuant to section 9 Crimes (Sentencing Procedure) Act 1999, or a combination of both. By reason of the fact that the respondent had little or no capacity to pay a fine, the imposition of a fine was inappropriate: section 6 Fines Act 1996.
7. Taking into account all of the circumstances, the penalty for the drive under the influence offence imposed by the magistrate was appropriate.
8. The order that I make is that the Director's appeal is dismissed. I confirm the penalty imposed by the magistrate.

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: 25 July 2016