DPP v Emma-Lee SIMPSON

R -v- Doan (2000) 50 NSWLR 115 R -v- Thomson and Houlten (2000) 49 NSWLR 383 R -v- Borkowski [2009] NSWCCA R -v- Whyte 55 NSWLR 252 R -v- AEM (2002) NSWCCA 58 CASES CITED: R -v- Errington (1999) NSWCCA 18 Gonzalez -v- R [2006] NSWCCA 4 R -v- Jurisic (1998) 45 NSWLR 209 R -v- Zamagias [2002] NSWCCA 17 R -v- Smith (1997) 95 A Crim R 373 R -v- Dutton [2005] NSWCCA 248 R -v- Taylor [2000] NSWCCA 442

The offender is charged with 2 offences brought under Section 52A and 53 of the Crimes Act 1900. The more serious offence is charged pursuant to Section 52A (3) (c) of the Act. The maximum penalty for this offence is 7 years imprisonment when tried on indictment. In the Local Court, the maximum penalty is 18 months imprisonment. In determining the objective seriousness of an offence such at this the principles in R -v- Doan (2000) 50 NSWLR 115 establish that it is the legislated maximum that is applicable not the jurisdictional limitation.

The maximum penalty within the Local Court upon conviction for an offence contrary to Section 53 of the Crimes Act 1900 is the same as the maximum penalty when dealt with on indictment - imprisonment for 2 years. This seeming contradiction when exercising the jurisdiction of the Local Court between a maximum summary penalty of 18 months for an offence carrying a 7-year penalty and an offence carrying a maximum penalty of 2 years is perhaps only explicable as an historical anomaly. The relationship of the Guideline Judgment regarding sentencing for the offence under Section 52A (3) (c) suggests there may be a potential contradiction in the range of sentence available for this offence. It is something I will return to later in these remarks.

Each offence was committed on the evening of 8th February 2009. Proceedings were not commenced before the Court until 11th June 2009. Initially the Director of Public Prosecutions elected to proceed on indictment. Consequently, a brief of evidence was prepared for service on the offender. Notification of that election was given to the Court on 27th August 2009.

On 17th December 2009, the Court was informed that the Director had withdrawn the election. On this date, the offender entered a plea of guilty to the charge under Section 52A (3) (c). The DPP informed the Court the charge brought pursuant to Section 53 is to be dealt with on a Form 1. The Facts

The Crown tendered a lengthy statement of agreed facts together with a series of photographs of the accident scene. They are attached to the Court Record. The facts establish that on the evening of 8th February 2009 the offender drove a Subaru Liberty motor vehicle East on Pennant Hills Road at Normanhurst. Pennant Hills Road is a major arterial road in North Western Sydney. The applicable speed limit is 70 kilometres per hour.

The offender was at the time, the holder of a Provisional Driver's License. In accordance with the requirements of her license, red coloured "P" plates were attached to her vehicle. She had two passengers. A female passenger [the victim in the matter placed on the Form 1] was seated in the front passenger seat. The second victim, a 14-year-old boy was seated in the back.

The accused brought her vehicle to a stop in lane 1 at a red traffic light. Another vehicle bearing "P" plates came to a stop in lane 3. This vehicle had three male occupants. It is clear from the facts that words passed between the two vehicles. The offender concedes there was an agreement between the two drivers to race when the lights turned green. When the lights turned green both vehicles accelerated away from the intersection in a race to see whose vehicle was faster. The offender took the lead as the vehicles traveled along Pennant Hills Road.

The offender continued at speed, merging into the centre lane proximate to the area of a cross street known as Stuart Avenue. This intersection is on a crest of Pennant Hills road. At this point the road begins to curve to the left. The crest obscured vision of the road ahead. After traversing the crest the offender, still at speed, commenced to travel down hill, moving to the right into lane 3. Ahead of her, traffic had banked up at an intersection controlled by traffic lights. 9. An advisory speed sign of 55 kilometres per hour relative to a curve in the road was present and visible.

Although an everyday likelihood to any right thinking motorist it is clear from the facts that coming upon slow moving traffic such that it might impede her progress or represent emergent danger was not within the offender's contemplation. She attempted to take evasive action by swerving. According to the front seat passenger and a number of independent witnesses the offender's vehicle was, at this time, travelling at approximately 100 kilometres per hour.

Not surprisingly given the nature of the curve and the relevance to it of the advisory speed sign, the offender's manouvre was unsuccessful. She lost control of the vehicle. The vehicle began to rotate whilst travelling sideways towards the western kerb. The offside wheels collided with the kerb. The vehicle lost contact with the road and commenced rolling onto its roof. It continued sideways and with considerable force, collided with a double brick wall causing significant demolition to a 12-metre span. The vehicle rebounded from the wall, rotating on its roof and came to rest on the grass shoulder of the verge. Photographs showing the physical consequences to the motor vehicle and the fence are attached to the agreed statement of facts.

Despite the fact there were two injured persons in the vehicle the offender exited the vehicle and left the scene. Shortly thereafter, the police arrived.

The front passenger suffered injuries to her left hand and lacerations to her left arm. They do not appear to have been serious. The rear passenger suffered significant injuries described as serious brain injuries and a fractured skull. He was transported to Westmead Children's Hospital and underwent immediate surgery to relieve the pressure on his brain.

A document from the Rehabilitation Department of the Children's Hospital sets out in general terms the nature of the injury to the victim and his progress some 8 months after the incident. The injury to the victim's brain functioning capacity is substantial. He has suffered permanent brain damage affecting his educational and developmental capacities and his quality of life. The concession implicit in the plea that the injury sustained in the accident constitutes grievous bodily harm is well founded.

The following day the offender attended Merrylands Police Station in the company of her mother. Following the provision of legal advice, she participated in a record of interview. Her explanation for the event leading up to the accident was, up to a point, candid. The offender admitted to an attitude whereby Provisional License holders test their vehicles against each other by "see(ing) who gets to the speed limit the quickest and that you know who's (sic) car is fastest." As the prevailing speed limit was 70 kilometres per hour and the accepted facts place the offender's vehicle as travelling at approximately 100 kph clearly the offender's behaviour passed well beyond the limit described in her explanation. The plea

The offender entered a plea of guilty to the charges before the court on 17th December 2009. Whilst it was not a plea at the first available opportunity, it was in the circumstances an early plea. In accordance with the provisions of Section 22 of the Act and having regard to the Guideline Judgment in R -v- Thomson and Houlten (2000) 49 NSWLR 383 and the recent decision of R -v- Borkowski [2009] NSWCCA I find there is a utilitarian value in the plea and identify the discount for the timing of the plea at 20%

The aggravating factors in the commission of the offence are dealt with later in these remarks in relation to the Guideline Judgment of R -v- Whyte 55 NSWLR 252 and related decisions.

The mitigating factors are to some extent also described in Whyte at 4 as "A typical Case" - a Young Offender, of good character with limited prior convictions providing evidence of genuine remorse and entering a plea of guilty.

The Offender is a 23 year old woman of Aboriginal background. She is the single mother of a six-year-old son. A "Psychosocial report" tendered by defence counsel asserts she has had a dysfunctional upbringing. Her father left the family unit before she was born and she has had little contact with him since. Her mother is someone who has suffered from ongoing medical and mental health problems together with drug and alcohol issues. The offender describes the conduct of her mother as leaving her emotionally neglected. This report accords generally with the Pre Sentence Report from Probation and Parole.

According to the offender the conduct of her mother's partners from time to time led to her departing the family home at a young age. She became pregnant at 15. After the birth she resided with the family of the father of the child. Since leaving that environment she has had a further two relationships. Neither were either enduring or fulfilling.

Both the Pre Sentence Report and the psychosocial report indicate that since the accident the offender has been abusing alcohol and become heavily reliant on marijuana, a prohibited drug. The report notes two attempts at self-harm and the ongoing involvement with medical and psychological services. At the time of writing the report there appeared to be a guardedly optimistic prognosis. To her great credit, through all of her travails she has continued to be the primary care giver to her son. The Guideline Judgment

The Guideline Judgment of R -v- Whyte [2002] NSWCCA343 identifies a set of considerations relevant to sentencing offenders found guilty of offences under Section 52A. 23. At [216] the Court set out a list of aggravating factors the existence or absence of which would increase or ameliorate the level of moral culpability on the part of the offender. Those factors are as follows: (i) Extent and nature of injuries inflicted (ii) Number of people put at risk (iii) Degree of speed (iv) Degree of intoxication or substance abuse (v) Erratic or aggressive driving (vi) Competitive driving or showing off (vii) Length of the journey during which others were exposed to risk (viii) Ignoring of warnings (ix) Escaping police pursuit (x) Degree of sleep deprivation (xi) Failing to stop.

The Chief Justice went on to say at [218] "Paragraph (1) and Par (ii) focus on the occurrence whereas pars (iii)-(ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described then it can be said to be present to a material degree for the purposes of determining an appropriate sentence.

What then is the level of moral culpability applicable to this offender? Both the Crown and counsel for the offender acknowledge that the objective seriousness of the offender's driving is very serious. In the context of the indicia set out at paragraph [216] of Whyte the nature and extent of the injuries to the young boy fall within factor (i). The court is mindful that care needs to be taken to avoid an element of double counting. Grievous bodily harm is an element of the offence.

The injury to the 15-year old back seat passenger was, and remains serious. As already noted he has permanent brain damage. This impacts on his learning capabilities and functional ability. He will need ongoing counseling and continued assistance in rehabilitation. Whilst it can be inferred, the victim had learning and behavioural difficulties before the accident the inevitable conclusion must be reached that they have been exacerbated or at the very least rendered more problematic since.

In terms of factor (ii) there were at the time two passengers in the motor vehicle. As the offence involving the second victim has been placed on a Form 1 it will be necessary to increase the penalty for the major offence to reflect the overall criminality. The weight to be accorded to this offence within the sentencing exercise will however be considerably less than if it had been dealt with separately R -v- AEM (2002) NSWCCA 58.

It is clear from the facts that there were also a number of other vehicles present in about the location where the vehicle lost control (see R -v- Errington (1999) NSWCCA 18 at [22]). In the context of factor (iii) the speed was manifestly excessive both for the prevailing speed limit and the advisory speed sign at the curve where the offender lost control. Factor (vi) also has direct application. The offender candidly admits engaging in a street race with another P plated motor vehicle. She seeks to limit the extent of that race by stating that such a race only lasts until one vehicle attains the speed limit and is ahead of the other.

With the greatest respect to the offender, the manner in which she drove her vehicle to speeds estimated by one of the passengers and other witnesses approximating 100 kph makes the statement of limited intent in competitive driving unbelievable. The prevailing speed limit was 70 kilometres per hour. At the point where she lost control the advisory speed sign relative to the curve was 55 kph. If the basis for the initiation of the course of driving by the offender is to be accepted, what is the explanation for continuing to accelerate to a speed approximating 100 kph? The limitation she seeks to place on this behaviour is in my view self serving and unpersuasive.

There is nothing in the facts that establish the length of travel undertaken by the offender. Reference to a street directory confirms the distance to be relatively short. In such circumstances paragraph (vii) is of limited application.

Assistance in assessing the level of moral culpability can be drawn from the observations of Howie J. in Gonzalez -v- R [2006] NSWCCA 4 at [13]: " There is a high degree of moral culpability displayed where there is present to a material degree 1 or more of the aggravating factors numbered (iii) to (ix) set out in Whyte ."

Factors identified as falling within (iii) and (vi) establish that the offender abandoned responsibility for her own conduct. In my view there is a high degree of moral culpability attaching to her conduct.

Objectively the seriousness of the offender's conduct lies within the upper range of the middle category of offence. The observations of the court in Whyte on the issue of the approach to sentence in these circumstances are well known.

At [214] the court said: "A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment."

At [221]: "The period of three or two years, once the threshold of abandoning responsibility has been reached is a starting point. The presence of additional aggravating factors or their increased intensity will determine the actual sentence." And finally at [229]: "The guideline for offences against S.52A (1) and (3) for the typical case identified above should be:

"Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate."

In R -v- Jurisic (1998) 45 NSWLR 209 at [231] the Court said: "The period of three or two years once the threshold of abandoning responsibility has been reached is a starting point. The presence of additional aggravating factors or their increased intensity will determine the actual sentence"

In line with the factual context in this matter and taking into account the observations of Howie J. in Gonzalez I am unable to come to any other conclusion than that a sentence of imprisonment is warranted and that such sentence cannot adequately reflect the guiding principles set out in Whyte.

For reasons best known to itself, despite the guideline, the DPP elected to bring this matter to finality within the Local Court rather than the District Court of New South Wales. It is not the function of this court to query that decision. I recognize it to be the exercise of prosecutorial discretion. It is however appropriate to note the apparent contradiction between the starting point set out in the Guideline and the jurisdictional limit of 18 months imprisonment in this jurisdiction. The Sentence

Counsel for the offender acknowledged the objective seriousness of the offender's conduct against the background of the Guideline Judgment. He identified a need for ongoing counseling and assistance in rehabilitative programmes relevant to alcohol and drug abuse. I agree with that observation. Irrespective of the sentence imposed by this Court those needs clearly remain. The offender does not need a court to tell her that she has personal responsibility to deal with these issues. Involvement in the abuse of alcohol and illicit drugs is both naïve and of concern when it comes to assessing the twin prospects of re-offending and rehabilitation.

The offender's solicitor argued that the objective seriousness of the offender's conduct places it towards the middle range of categories of offending and whilst need for general deterrence was paramount the Court should not exclude from its consideration the alternatives to full time imprisonment by periodic detention or a suspended sentence.

The legal representative for the DPP identified aggravating factors relative to R -v- Whyte and relied on observations set out in paragraph [229] of the Guideline Judgment as providing clear direction as to the ultimate decision. The offender's legal representative expressed the view that the judgment is a guideline only and not a substitute for sentencing discretion. Whilst I agree with the final proposition the Guideline is couched in such a manner that the offender would need to satisfy the Court that there was something exceptional in her background that warranted a lesser sentence. The wording of the Guideline is one that is strongly suggestive to be one of general application in terms of a starting point once the Court is satisfied that an abandonment of responsibility is established. A sentencing court cannot ignore the guideline in a way that produces a sentence that is inconsistent with its tenor.

Mindful as I am that a sentence of imprisonment is an option of last resort the purposes of sentencing set out in section 3A of the Act clearly point the court towards denunciation, general and particular deterrence as paramount objectives on sentence. The sentence needs to be one that makes the offender accountable for her actions, reflects the gravity of her conduct and acknowledges the impact of it on the victim(s). A sentence other than one of imprisonment would fail to acknowledge the principles set out in the Guideline Judgment.

The objective seriousness of the conduct is towards the upper end of the middle range category of seriousness. If the Court were imposing a sentence on that basis and with the full range of the legislative penalty available it would be difficult to conclude, bearing in mind the need to reflect the Form 1 matter within the outcome that a sentence of less than 2 years properly reflected the foregoing factors and acknowledged the persuasive effect of the Guideline. Such a sentence is not available before this Court.

Despite the jurisdictional limit it is still necessary for the Court to identify the appropriate penalty. This is consistent with the principles set out in Doan's case. In my view, taking into account the objective seriousness of the offence, particularly the observations by Howie J in Gonzalez and the principles set out in the Guideline Judgment an appropriate sentence for the objective seriousness of the conduct is a sentence of 2 years and 6 months. Applying the identified discount of 20% the resulting sentence would be a sentence of 2 years. This is beyond the jurisdictional limit of the Local Court

Despite the inability to do so there remains a need to appropriately reflect the criminality of the offending. Consequently, I intend to impose the maximum penalty available in the Local Court. In so doing I note that achieving consistency in sentencing where a Guideline Judgment has an influence on the ultimate sentence cannot always be done without considering the relativity of sentences available in the Local Court to a Guideline Judgment.

The offender is convicted and sentenced to imprisonment for a period of eighteen months.

Having determined the appropriate sentence consistent with the approach set out in R -v- Zamagias [2002] NSWCCA 17 I have turned my mind to the manner in which the sentence is to be served.

There is no doubt that as the single mother to a 9 year old child there will be a degree of hardship to a 3rd person brought about by the offender's conduct and the resulting sentence.

Hardship to 3rd parties is an almost inevitable consequence of the imposition of a custodial sentence. It is only taken into account where the hardship goes beyond the sort of hardship that results when the breadwinner is imprisoned. The fact that a young child will be left without a carer is not normally an exceptional circumstance. Sentencing Bench Book 18-380 p.9253

Youth of the offender remains an issue of importance in sentencing for most offences but less so in matters of this type. The prevalence of this type of driving among young people is significant. The consequences impose a burden on the whole of society. Courts have a duty to seek to deter this type of behaviour R -v- Smith (1997) 95 A Crim R 373. As the court said in SBF -v- R at [151]: "Inexperience and immaturity in persons aged 17 years of age and over cannot operate as mitigating factors where the offender commits grave driving offences with fatal consequences" Fortunately in this matter no one died but the consequences remain serious.

No matter how understanding a Court may be in relation to the result of imposing a term of imprisonment on a young single mother sentencing is an exercise conducted on behalf of the community not on behalf of an offender. Ultimately, the purpose of sentencing is the protection of the community. Denunciation and general deterrence are of manifest importance. Where the injury is serious, as in this case then retribution is to be reflected to a considerable level in the sentence imposed R -v- Dutton [2005] NSWCCA 248 at [34].

Despite the subjective factors, the approach by the offender towards rehabilitation is less than convincing. Further, this is not a matter in which suspending a sentence of imprisonment is otherwise appropriate. Where general deterrence is the principal consideration then as the Court said in R -v- Taylor [2000] NSWCCA 442 a suspended sentence "provides very little, if anything, by way of general deterrence." The prevalence of this type of behaviour, particularly amongst young drivers of motor vehicles is such that there can be no argument that the Court has an obligation to the community to deter future offending of this type. The stakes are too high.

Acts of self-indulgent driving are unacceptably dangerous. Too many people die, are rendered incapacitated or injured as a result of drivers abandoning the responsibilities and obligations that are a concomitant of holding a license to drive. Such license is to be exercised in furtherance of public safety not in defiance of it. This offender showed scant regard for those obligations with little regard for her passengers or others within the immediate area. Despite her personal circumstances to be mercifully weak by reason of an over emphasis on compassion is to send a poor message to others who may otherwise be deterred from driving in this fashion, with potentially fatal results.

Having come to the conclusion that a sentence of imprisonment is appropriate I have turned my mind to whether special circumstances exist such that there should be a variation in the statutory relationship between the head sentence and the non-parole period. Given the offender's youth, the lack of prior history involving incarceration and what is clearly a need to address ongoing issues with alcohol and drug abuse there are persuasive grounds to find that special circumstances exist under Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 to vary the statutory relationship. Despite the argument that the offender, by being dealt with in this jurisdiction has already received a significant benefit on the sentence that may perhaps have been appropriate but is not available there is a need to foster rehabilitation within the community. To achieve this objective it is appropriate to vary the statutory relationship. 52. The offender is convicted and sentenced to imprisonment for a period of 18 months. I specify a non-parole period of 9 months after which she may be released on parole for the remaining period of 9 months subject to the supervision and direction of the Probation and Parole Service. It is a condition of her release that she participate in such programmes directed towards drug and alcohol rehabilitation and driver education programmes considered appropriate.

53. As a consequence of conviction the offender is disqualified from holding or obtaining any license to drive a motor vehicle for a period of 3 years commencing forthwith.

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