Kelley v R

Judgment

1. BELL P: On 26 August 2020, Ms Marlee Rose Kelley (the Applicant) was sentenced to imprisonment for a term of 3 years and 4 months with a non-parole period of 2 years on a charge of aggravated dangerous driving occasioning grievous bodily harm (with a speed in excess of 45 kilometres over the applicable speed limit) pursuant to s 52A(4) of the Crimes Act 1900 (NSW), after having pleaded guilty to that offence on 7 January 2020. The offence occurred shortly after 6pm on 1 October 2018.
2. The Applicant's sentence expires on 13 September 2023, and her non-parole period expires on 13 May 2022. The Applicant's licence has been disqualified for a period of 3 years.
3. Section 52A(4) of the Crimes Act provides: "(4) Aggravated dangerous driving occasioning grievous bodily harm A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years." The maximum penalty for this offence is 11 years' imprisonment.
4. The Applicant was also charged with two further offences which were contained on a s 166 Certificate, pursuant to the Criminal Procedure Act 1986 (NSW), being two counts of common assault contrary to s 61 of the Crimes Act. One offence of common assault occurred immediately before the commencement of the driving which was the subject of the aggravated dangerous driving charge, and the other occurred during the course of that driving. The Applicant pleaded guilty to each count of common assault on 7 January 2020.
5. In relation to each common assault count, the Applicant was sentenced to a Community Corrections Order (with conviction), one for 12 months and one for 2 years, pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW), to commence on 26 August 2020. The maximum penalty for an offence under s 61 of the Crimes Act is 2 years' imprisonment.
6. The Applicant now seeks leave to appeal from the sentence imposed.
7. Before turning to a consideration of the Applicant's grounds of appeal, a brief factual background to the proceedings is required. This is largely drawn from the Statement of Agreed Facts (the Agreed Facts) which was before Bright DCJ (the sentencing judge), and the sentencing judgment.

Background

1. At the time of the offending, the Applicant was 23 years of age. The victim was 35 years of age. The Applicant and the victim had been in a domestic relationship for approximately three months.
2. At about 5.57pm on 1 October 2018, the Applicant's vehicle was being driven by the victim. The Applicant was in the front passenger seat. The victim drove into the McDonald's at Wadalba, and parked the car in a parking bay adjacent to the entrance to McDonald's. The Applicant and the victim both got out of the vehicle and went inside McDonald's. After a short time, the victim walked out and got back in the driver's seat of the vehicle. The Applicant also walked out and got into the passenger side of the vehicle.
3. The Applicant then walked from the passenger side to the driver's side door, and opened the door. A verbal confrontation with the victim then appeared to take place, with the Applicant on two occasions reaching inside the driver's side. After about 20 seconds, the Applicant slammed the driver's door, and then opened it again. The victim got out of the driver's seat and walked to the passenger side of the car. The Applicant got into the driver's seat of the vehicle.
4. After about 2 minutes, the Applicant got out of the driver's seat, and walked around to the passenger door. The victim attempted to climb from the passenger seat into the driver's seat. The Applicant returned to the driver's door, which was open, reached inside and grabbed hold of the victim, pulling her from the car. The victim landed on the ground. The Applicant bent over the victim on the ground, before standing on top of the victim and getting into the driver's seat once again. That conduct constituted the first offence of common assault.
5. The victim was seen to get up off the ground, and sit in the passenger seat of the vehicle. With the Applicant now in the driver's seat of the vehicle, the vehicle reversed out of the parking bay, and left the car park. The vehicle was seen by a witness to drive off at speed.
6. After leaving the McDonald's at Wadalba, the Applicant drove along the Pacific Highway for some distance, before turning into Johns Road. Johns Road then becomes Murrawal Road. As the Applicant drove west along Murrawal Road, she was driving at a speed above the indicated speed limit of 60 kilometres per hour.
7. According to a witness, the Applicant travelled "extremely close" to the rear of her vehicle. The Applicant's driving behaviour at that time caused the witness to pull off the roadway to let the Applicant pass her. The witness stopped her vehicle, and saw the Applicant stop her vehicle in the middle of Murrawal Road. The witness saw the passenger's door open, which turned the interior light on in the Applicant's vehicle. At this stage, the victim attempted to get out of the vehicle, however, the Applicant grabbed the victim, and pulled her back inside the vehicle, where the victim was physically assaulted.
8. The description of this physical assault, constituting the second offence of common assault, was outlined by the witness in Ex H, being an addendum to the Agreed Facts. It described that the Applicant and the victim were fighting, and that the Applicant was punching the victim and the victim was trying to get out of the vehicle. The victim did not have a seatbelt on, and her door was open as she was trying to get out. The Applicant and the victim were screaming at each other. The witness who was observing the incident was unable to say what was being said at that stage. The witness described that the victim was punching the driver back. As the victim tried to get out, the Applicant grabbed the victim, and then drove off down the road at speed.
9. As the Applicant accelerated, the passenger door was still open. The Applicant proceeded along Murrawal Road. The Applicant then made a right-hand turn into Cooranga Street. The Applicant accelerated south along Cooranga Street, causing a resident who was entering her own driveway to accelerate harder into her premises to avoid being struck by the Applicant. The Applicant continued accelerating, with her vehicle travelling well above the posted speed limit of 50 kilometres per hour. The Applicant, while travelling at speed, attempted to negotiate a left-hand bend in the road at the point the roadway changes name from Cooranga Street to Corinda Street.
10. Due to the high speed of the Applicant's vehicle, the Applicant failed to control her vehicle and caused it to leave the roadway, driver's side leading. The Applicant's vehicle was travelling at about 126 kilometres per hour when it entered the left-hand curve preceding the crash. The vehicle travelled a short distance along a grassed nature strip, glancing a small tree before impacting heavily with a larger tree in a frontal-style impact. The impact caused the vehicle to rotate 45 degrees in a clockwise direction.
11. Both the Applicant and the victim were trapped in the vehicle and were extricated by rescue personnel. They were airlifted to hospital.
12. The Applicant's blood alcohol reading was 0.141, a mid-range alcohol reading. During an interview with police on 6 November 2018, when questioned about the collisions and the events leading up to the collision, the Applicant stated "I can't remember. I have no memory of the day".
13. The Applicant suffered multiple fractures and internal injuries. The victim suffered multiple head and facial fractures and internal injuries, and as the sentencing judge outlined at 6, "[a]s a result of the accident, the victim suffered grievous bodily harm". Dr Quoc Hung Diep prepared a report dated 27 November 2018, which became Ex F in the proceedings, in which he outlined the numerous injuries suffered by the victim, including a diffuse axonal injury (brain injury), an acute subarachnoid haemorrhage overlying both cerebral hemispheres, small haemorrhagic contusions in both frontal lobes, facial fractures, a neck fracture, fractures of a bone in the spine, and a number of other lacerations and fractures.
14. The victim spent 11 days in ICU and remained in hospital for approximately one month, before being discharged to the Royal Rehabilitation Hospital at Ryde.
15. The Agreed Facts indicated that the injuries sustained by the victim, including the brain injury, required her to be in a rehabilitation unit for at least three months. The Agreed Facts indicated that the long-term prognosis of the victim was unknown.

The sentencing judgment

1. After setting out a brief summary of the relevant facts, the sentencing judge indicated that in circumstances where the pleas of guilty were entered at the earliest opportunity, a 25% discount on sentence was provided: at 2.
2. The sentencing judge found that the Agreed Facts "disclose very serious objective criminality": at 9. Her Honour noted that the Applicant's course of driving had created very significant danger, not only to the victim, but also to other road users: at 9. Her Honour outlined that the combination of driving whilst intoxicated, and at a speed significantly in excess of the speed limit, demonstrated "significant criminality warranting condign punishment": at 9.
3. Her Honour referred to the need for strong denunciation and general deterrence in sentencing for offences involving dangerous driving occasioning death or grievous bodily harm, there citing R v Manok [2017] NSWCCA 232 at [78]-[79].
4. Her Honour found that there was "no doubt that the offender's conduct had very grave consequences for the victim": at 10.
5. In determining the appropriate sentence, the sentencing judge took into account the Applicant's subjective circumstances, including her limited criminal history and her past psychiatric history. In relation to the latter, the sentencing judge noted that the Applicant had reported to Dr Christopher Bench (Dr Bench) (who provided a report to the Court dated 27 April 2020, which became Ex 1), that as a result of a sexual assault by a stranger when she was approximately 13-14 years of age, the Applicant had had subsequent difficulties with paranoia and anxiety. The Applicant indicated that she had seen a sexual assault counsellor when she was 15 years of age, and was diagnosed with anxiety and depression.
6. In assessing the objective seriousness of the offending, her Honour concluded that the "dangerousness involved in the driving [was] of a very high order": at 23. Her Honour took into account a number of factors (at 23), including: 1. that the manner of driving was dangerous - the Applicant was driving 76 kilometres over the applicable speed limit, with a blood alcohol reading of 0.141, and that the "combination of those two factors result[ed] in the dangerousness involved in the driving as being of a very high order"; 2. the length of the journey - the Applicant drove dangerously for a distance of 4.2 kilometres; 3. the number of people put at risk - the Applicant's manner of driving created a serious risk for a number of other road users, other than the victim, as the roads used were heavily used by traffic, with a number of drivers taking evasive action; and 4. the nature and extent of the injuries sustained by the victim - assessed as falling "towards the upper end of objective seriousness having regard to the full spectrum of injuries that can constitute grievous bodily harm".
7. Her Honour had regard to the guideline judgment of R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (Whyte), and the aggravating factors outlined in that judgment. With respect to the aggravating factors in the present scenario, the sentencing judge found (at 24) that she was: "satisfied that the following were present to the degree identified earlier in my remarks: the nature and extent of the injuries inflicted upon the victim; the degree of speed; the length of the journey; the degree of intoxication; and the erratic driving and the number of people put at risk."
8. The sentencing judge concluded that having considered all of those factors, with respect to the dangerous driving offence, she was "satisfied that the moral culpability of this offender is of a high order and is above the mid-range of offending and that she can properly be described as having abandoned responsibility for her conduct": at 24. With respect to the common assault charges, the sentencing judge regarded each offence as being towards the lower end of objective seriousness, and outlined that she proposed to impose non-custodial sentences for each charge: at 24.
9. Her Honour was further satisfied that the Applicant was "genuinely remorseful" for her conduct, that she had "accepted full responsibility for the offending", and that she had "excellent prospects of rehabilitation" and was unlikely to reoffend: at 24.
10. In formulating the sentence, her Honour outlined that having considered all possible alternatives, no penalty other than imprisonment was appropriate: at 25. The sentencing judge reiterated that she had taken into account the maximum prescribed penalty, the guideline judgment of Whyte, and the Applicant's subjective circumstances: at 25.

Ground of appeal

1. The single ground of appeal relied upon is as follows: "The sentencing judge erred in the assessment of moral culpability in circumstances where: i. Matters relevant only to the assessment of objective serious[ness] were conflated with the guideline's reference to moral culpability and abandonment of responsibility, ii. There was no finding made as to the relevance of the expert evidence of the applicant's drug addiction arising out of Post-Traumatic Stress Disorder as a result of a sexual assault when she was 13-14 years of age; iii. There was no medical evidence as to long-term seriousness or the permanence of the injury to the victim at the time of the hearing; and iv. there was no finding made as to the relevance of extra-curial punishment".

Ground 1(i)

1. As to ground 1(i), Ms Rodger who appeared with Mr Mulligan for the Applicant focussed on the following paragraph of the sentencing judge's remarks (at 24) in aid of a submission that the sentencing judge had conflated objective seriousness and moral culpability: "Having considered all of those factors [various aggravating factors detailed in Whyte], I am satisfied that the moral culpability of this offender is of a high order and is above the mid-range of offending and that she can properly be described as having abandoned responsibility for her conduct."
2. Ms Rodger submitted that by conflating the terminology of objective seriousness with that of moral culpability, the sentencing judge erred by giving no weight to a number of subjective matters that were said to be directly relevant to determining the Applicant's moral culpability. During oral address, Ms Rodger submitted that there had been "no assessment of moral culpability made in relation to the personal circumstances of the offender", because these were not amongst the factors that the sentencing judge indicated she had taken into account before expressing her conclusion regarding moral capability. These factors were the nature and extent of the victim's injuries, the degree of speed, the length of the journey, the degree of intoxication, the erratic nature of the driving and the number of people put at risk.
3. The Crown submitted that it was not necessary for a sentencing judge to state expressly that an offender's background was taken into account if it is apparent from the whole of the judgment that he or she did so: see Cooper v R [2021] NSWCCA 65 at [69]. As was pointed out, the sentencing judge made extensive reference to the Applicant's subjective circumstances, as set out at 12-21 of the sentencing judgment, prior to expressing her views as to moral culpability. Such circumstances included expert evidence as to her PTSD, the significance of her substance use disorders, as well as her evidence as to her substance use commencing in the context of the sexual assault that occurred in her early teens. It was open to her Honour not to regard these matters as reducing the level of the Applicant's moral culpability for the serious offending that occurred.
4. To the extent that in the passage extracted at [34] above, there may have been a degree of conflation between objective seriousness and moral culpability and the reference to "mid-range of offending" should be understood as a reference to "objective seriousness", this was at most a slip in language in the course of delivery of ex tempore reasons and both understandable and excusable in the absence of some serious injustice to the Applicant: cf. Zheng v R; Li v R; Pan v R [2021] NSWCCA 78 at [81]-[83]; Gommesen v R (2012) 62 MVR 196; [2012] NSWCCA 226 at [37]-[38]; Karout v R [2019] NSWCCA 253 at [60]; Dixon v R [2019] NSWCCA 85 at [49]-[50]; and Robertson v Director of Public Prosecutions (NSW) [2017] NSWCA 180 at [18]-[19]. There was no such injustice in the present case.
5. In any event, the concepts of objective seriousness and moral culpability are not unrelated, as the guideline judgment in Whyte at [228] makes clear. So, too, in Filippou v The Queen (2015) 256 CLR 47 at 72; [2015] HCA 29 at [70], French CJ, Bell, Keane and Nettle JJ said: "Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability."
6. Further, the statement in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] (Muldrock) that: "[t]he objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending" does not mean that moral culpability is to be wholly divorced from an assessment of objective seriousness. The two concepts overlap: indeed it has recently been observed by this Court that assessment of an offender's moral culpability for the offending conduct is a feature of the objective seriousness of the conduct which is fundamental to the sentencing process: see Fisher v R [2021] NSWCCA 91 at [70].
7. The sentencing judge in the present case did not fall into a Muldrock error and take personal circumstances into account in assessing the objective seriousness of the offence. Nor did her Honour fail to have regard to the Applicant's subjective circumstances in the exercise of her sentencing discretion, albeit that she may not have regarded those circumstances as reducing the moral culpability of the Applicant.

Ground 1(ii)

1. As to ground 1(ii), the Applicant submitted that, in the context of the Applicant's moral culpability, the sentencing judge made no finding as to the significance of the evidence by Dr Bench that the Applicant's diagnosis of drug and alcohol use disorders had a causal connection to her PTSD, which arose as a result of the sexual assault she suffered at 13-14 years of age. At page 9 of his report, Dr Bench opined that the most significant mental health condition at the time of the offences was the Applicant's alcohol and cannabis use disorders, and noted that: "…the defendant's use of substances including alcohol and cannabis date back to the time of the sexual assault causative of Posttraumatic Stress Disorder. Such is a very common manner for individuals with Posttraumatic Stress Disorder to ablate memories of the trauma. In this context, the Posttraumatic Stress Disorder could be seen as a secondary causative agent with regard to her intoxication causative of the index offences".
2. The Applicant's submission was that the sentencing judge "made no clear finding of fact one way or another as to the interrelationship between the traumatic event, the diagnosis of PTSD and the substance abuse that followed", and that the sentencing judge was "required" to consider the significance of that evidence in assessing moral culpability, which would have resulted in a reduction of her moral culpability, which did not occur. The Applicant's argument on this sub-ground was summarised in written submissions as follows: "[T]he applicant must be considered to have a lesser moral culpability in relation to the s 52A offence than another individual who did not suffer from an alcohol and drug disorder grounded in trauma as a result of a sexual assault suffered as a young child. It matters not that the precipitating event occurred 'many years before'. The impact of the sexual assault upon the applicant was long term and her diagnosis of PTSD, albeit in remission, was the underlying cause or to use the terminology of Dr Bench was the 'secondary causative agent with regard to her intoxication causative of the index offences'." (footnotes omitted).
3. Counsel for the Applicant made reference to the judgment of Hidden J in R v Killen (2005) 152 A Crim R 1; [2005] NSWCCA 17 at [17]-[18] as follows: "In R v Henry (1999) 46 NSWLR 346; 106 A Crim R 149, Wood CJ at CL and Simpson J devoted most of their judgments to the relevance of drug addiction to sentencing. What they wrote is, of course, equally applicable to alcohol addiction. Adapting the words of the Chief Judge to the present case, it could be said that the respondent's addiction 'was not a matter of personal choice but was attributable to' events for which she 'was not primarily responsible': Henry (at 273(ii)). It could also be said that her alcohol abuse began when she was young, when her 'ability to exercise appropriate judgment or choice was incomplete': Henry (at 273(ii)). The observations of Simpson J (at [336]-[348]), with which I respectfully agree, are also apposite. Directly on point, (at [336]) her Honour observed: In this Court, one sometimes sees cases in which drug taking stems from sexual assault or exploitation, sometimes committed when the person who turns to drugs, and who comes before the Court, is very young, and sometimes the precipitating events have occurred many years before. Drug addiction is not always the disease; it is, as often as not, a symptom of social disease."
4. The importance of these remarks is not to be gainsaid but their invocation does not support the Applicant in the present case in view of the very limited material that was before the sentencing judge which could have supported such an argument.
5. Further, as was conceded in the Applicant's written submissions, submissions to this effect of those outlined above were not made before the sentencing judge. The Applicant accepted that she must accordingly overcome the hurdle outlined in Zreika v The Queen (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [82] (Zreika), namely that an appellate court will only have regard to a factor which may operate in mitigation of penalty which was overlooked by defence counsel and the sentencing judge where it may "render a serious injustice" or a "miscarriage of justice" if the offender was not able to correct the error.
6. The Crown submitted that the Applicant did not demonstrate exceptional circumstances of the kind referred to in Zreika, and that she thus should not be allowed to reformulate her plea in this Court. In particular, it was submitted, and I agree, that the summary of the effect of Dr Bench's evidence in the Applicant's submissions was somewhat overstated. For one matter, the PTSD was said to be in partial remission. Secondly, Dr Bench's conclusion, extracted at [41] above, was somewhat tentative, as seen by the inclusion of the phrase "could be seen as…"
7. To the extent that the Applicant complains that no clear finding of fact was made one way or another as to the interrelationship between the traumatic event, the diagnosis of PTSD and the substance abuse that followed, the sentencing judge can scarcely be criticised for this in circumstances where the matter was not the subject of submissions and, even if it had been, Dr Bench's evidence was quite qualified and somewhat tentative, at best extrapolating from what he indicated was "very common".
8. Further, as the Crown pointed out in oral submissions, the sentencing judge was cognisant of the earlier sexual assault and the Applicant's recourse to alcohol and drugs as a form of self-medication. This was the subject of submissions on behalf of the Applicant, and there is no reason to suppose that the experienced sentencing judge did not take these matters into account in her overall consideration of subjective circumstances.
9. I do not consider that the matters raised by this ground throw into question the correctness of the sentencing judge's assessment of moral culpability nor do I consider that the failure to advance this argument before the sentencing judge resulted in "a serious injustice" or a "miscarriage of justice".

Ground 1(iii)

1. As to ground 1(iii), the Applicant submitted that there was no evidence before the Court as to whether the injuries sustained by the victim would be considered permanent from a medical perspective, and that the Agreed Facts before the Court indicated that the long-term prognosis of the victim was unknown. The Applicant thus submitted that in the absence of such medical evidence as to permanent injury, "it cannot have been considered at the 'upper end of objective seriousness having regard to the full spectrum of injuries that can constitute grievous bodily harm'", and that the sentencing judge thus fell into error.
2. I reject this argument. The Agreed Facts clearly indicated the seriousness of the victim's injuries, including a severe traumatic brain injury, requiring her to be in a rehabilitation unit for at least three months, with consequences in relation to visual processing speed, difficulty learning new information, difficulty with divided attention, and an inability to drive a car or to participate in ready for work trials. Medical evidence of a long-term prognosis of permanent injury was not required in the circumstances of the present case to reach a conclusion as to the level of objective seriousness of the offence and the Applicant's moral culpability for it.

Ground 1(iv)

1. As to ground 1(iv), the Applicant submitted that the sentencing judge made no finding "as to whether the fact of the applicant's injuries would be a mitigating factor on sentence". The Applicant submitted that: "Whether by reference to the subjective case, or to extra-curial punishment specifically, the Sentencing Judge gave no indication as to what impact that unchallenged fact had upon the assessment of moral culpability of the applicant. A clear acceptance or rejection of the injuries as a matter relevant to mitigation ought to have been indicated, and the failure to do so constitutes error".
2. The Crown submitted that it was not necessary for the sentencing judge to make specific findings as to the effect of the Applicant's injuries on her moral culpability as a form of extra-curial punishment, in circumstances where her Honour's remarks indicated that she had given consideration to the Applicant's subjective case, which included the fact of her injuries, in the instinctive synthesis exercise that she was required to conduct. I agree with this submission.
3. The sentencing judge recorded the injuries sustained by the Applicant as a result of the offending, being a fractured back, broken ribs, frontal lobe damage and "in her words, a hole in her leg from the brake pedal": at 21. The sentencing judge also expressly referred to the Applicant's traumatic brain injury and that, although she appeared to be recovering according to Dr Browne, she still had significant anxiety, mild attentional difficulties and her sleep was still significantly impaired: at 19.
4. The sentencing judge noted that she had taken into account the oral and written submissions of counsel for the Applicant in reaching her sentencing decision. These submissions included that "some credit may be allowed for [her injuries] by way of extra-curial punishment". There is no reason to suppose that the sentencing judge did not take this matter into account.

Conclusion

1. For the above reasons, I would grant leave to appeal but order that the appeal be dismissed.
2. ROTHMAN J: I agree with Bell P.
3. BELLEW J: I agree with Bell P.

Amendments 23 July 2021 - Amendments made to the coversheet as follows:

Catchwords: "... appeal against conviction ..." has been changed to "appeal against sentence".

Headnote - under "As to issue 2:" in (4), paragraph reference "[X58]" has been changed to "[58]"; and in (5), first sentence, "traumatic evidence" has been changed to "traumatic event". 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: 23 July 2021