Lawson v R

Court of Criminal Appeal (NSW)|2018-08-06|Before: Gleeson JA, Walton J, Fagan J

Judgment

THE COURT: This is an application for leave to appeal against severity of sentence. On 13 February 2017 the applicant was sentenced by his Honour Judge Buscombe in the District Court at Gosford for two offences which arose from his dangerous driving of a station wagon on the Pacific Motorway between Wyong and Morisset on 10 November 2014. The applicant pleaded guilty to both charges. He was 20 years old at the date of commission of the offences and 22 years old when he appeared for sentence. Following the events giving rise to the charges the applicant was diagnosed as suffering from paranoid schizophrenia, with onset from shortly before those events. He entered his plea of guilty in the District Court on the morning when the proceedings were listed for determination of his fitness to plead. The sentencing judge allowed a discount of 25% for the pleas of guilty.
Count 1 was that the applicant drove in a manner dangerous to other persons whereby an impact with another vehicle occurred and caused grievous bodily harm to Ms Kristyn Rourke. This was charged under s 52A(4) of the Crimes Act 1900 (NSW), being an offence involving aggravation by reason that the speed of the applicant's vehicle exceeded the relevant speed limit by greater than 45 km/h: see s 52A(7)(b). The maximum penalty for this offence was 11 years imprisonment. His Honour specified an indicative sentence of 3 years and 6 months.
Count 2 was that the applicant failed to stop and give assistance after his vehicle had been involved the impact with Ms Rourke's vehicle, and when he ought to have known that grievous bodily harm had been occasioned to her. This charge was laid under s 52AB(2) of the Crimes Act. The maximum penalty is 7 years and his Honour indicated a sentence of 18 months.
His Honour imposed an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years and 6 months. The applicant had been on bail until the day sentence was passed and his aggregate term commenced then. He was also charged with a summary offence of driving whilst there was present in his blood delta-9 THC (the active constituent of cannabis). This was dealt with by his Honour at the same time, by the recording of a conviction under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Facts of the offences

The applicant's dangerous driving occurred shortly before 7:00 am on Monday, 10 November 2014 in full daylight. He was driving north on a section of the Pacific Motorway for which the applicable speed limit is 110 km/h. The northbound roadway comprised two traffic lanes, with a breakdown lane to the left (or West) of Lane 1. To the right (or East) of Lane 2 there was a wide grassed median strip separating the northbound roadway from the southbound.
Slightly to the north of the Wyong exit at approximately 6:45 am the applicant used Lane 2 to overtake at high speed a truck which was travelling in Lane 1. The applicant then crossed from Lane 2 through Lane 1 into the breakdown lane and continued north at speeds which other drivers estimated at between 170 km/h and 200 km/h. He used the breakdown lane to overtake other vehicles on the inside. Other drivers observed that his speed was such as to cause their vehicles to shake as the applicant's station wagon passed. It was observed to move between lanes without indicating or slowing down. Several other drivers were sufficiently concerned to call the Triple 0 emergency number to report the applicant's high-speed and dangerous driving.
At approximately 6:48 am Ms Rourke was the driver and sole occupant of a Toyota Hilux utility travelling north in Lane 1. She was approaching the Stockton Creek Bridge, within the speed limit. At this point Ms Rourke merged from Lane 1 into Lane 2. The breakdown lane in which the applicant was driving ended a little to the south of the Bridge. At high speed he moved out of the breakdown lane, across Lane 1 and into Lane 2. Upon seeing his rapid approach from behind Ms Rourke attempted to change back into Lane 1 to avoid him. However the applicant followed, apparently intending to overtake her on the inside but instead colliding at high speed with the rear of the Hilux, approximately on the dividing line between the two lanes.
The collision caused the Hilux to leave the ground, flip several times, impact with the safety railing on the right (or East) side of the northbound lanes and roll down a steep embankment, coming to rest on the southern bank of Stockton Creek. The applicant's station wagon rotated clockwise following the impact, collided with the safety railing on the left (or West) side of the northbound lanes, then collided with the railing of the Bridge and came to rest across Lane 1.
The applicant got out of his vehicle, retrieved a skateboard from inside it and used this to flee the scene in a northerly direction. Another motorist who had stopped at the scene of the crash pursued him and brought him back. He was restrained near the crash site until police arrived. He sustained only minor injuries. He behaved in an erratic fashion at the roadside near where the crash had occurred. When later interviewed at hospital he was observed to be giggling whilst giving his version of what occurred. He said, "It worked, pushing it out of the way, it got rid of the car".
Later that afternoon when interviewed at the police station, the applicant asserted that his vehicle speed had been 120 km/h and he denied changing lanes at high speed. He said the Hilux had changed lanes in front of him. He also said he was not taking any medication and that he had not in the past had any mental illness.
Ms Rourke was trapped in her vehicle for approximately one hour. After being freed she was flown to the John Hunter Hospital by rescue helicopter. There she was placed in an induced coma. She required a massive blood transfusion. Ms Rourke's left arm had suffered severe de-gloving and multiple fractures, to the point of near complete traumatic amputation. Her right face and scalp had sustained de-gloving and laceration. There was a major laceration from the lower neck to the top of the head which severed her right ear and exposed her skull. She had major fractures of the C1 and C2 vertebrae and traumatic brain injury.
Ms Rourke's left arm was saved by emergency surgery. She spent 29 days in intensive care. After discharge from intensive care Ms Rourke was an inpatient of the Hunter Brain Injury Service for another four months during which she was required to wear a thoracic brace and neck brace. She has required ongoing neurological treatment to address her brain injury and extensive physiotherapy for her left arm and hand. During the two years following her discharge from hospital Ms Rourke has undergone extensive rehabilitation and multiple operations. The operations have included surgery on the tendons of her left lower arm in an attempt to restore function. She has had scar revision and facial and dental reconstruction. By the date of the sentence proceedings, two years and three months after the collision, she had not been able to return to her pre-accident employment as a senior property manager in real estate.
As a result of the brain injury Ms Rourke has suffered significant loss of memory of events of the 10 years preceding the collision, loss of short-term memory, speech difficulty, impairment of eyesight and some diminution of cognitive function. The latter causes her to become confused and indecisive and to lack confidence. Her ability to care for herself in daily living has been compromised. Ms Rourke has had to adjust many aspects of self-care in order to cope. She requires carer support for three hours on each of four days per week. Ms Rourke was 39 years old at the date of the collision. Her victim impact statement and medical reports describe courageous and determined efforts to live with the life-changing damage which was inflicted upon her by the applicant's dangerous driving.

The applicant's mental illness

According to a psychiatric report of Dr Leila Kavanagh which was before his Honour, the applicant reported first having felt "paranoid" in October or November 2014. He said that at that time and for 12 months before he had been smoking "up to three cones per day" of cannabis. He committed an assault occasioning actual bodily harm on 21 October 2014. A charge for that offence was laid after commission of the offences concerned in this appeal. In his explanation to Dr Kavanagh of the October 2014 assault, the applicant described having thought, for a week prior, that he had heard his sister screaming. He had believed that the work colleague whom he assaulted "had my sister".
The applicant presented at Wyong Hospital within days after the collision. He was assessed with respect to his mental health but not prescribed medication at that time. He was subsequently admitted for a week in December 2014 and was then put on antipsychotic medication. He had two further fairly short admissions during December 2014 and January 2015. On 31 January 2015 he was brought to the hospital by police after he had perpetrated another assault. He was then admitted as an involuntary patient under the Mental Health Act 2007 (NSW).
Dr Lienert, a consultant psychiatrist with the Central Coast Local Health District, at about this time examined the applicant and observed his manner to be irritable, threatening and aggressive. Dr Lienert diagnosed a severe psychotic episode in the context of polysubstance abuse. He said this episode had affected the applicant as at October and November 2014 and continued into early 2015. The doctor was not of the opinion that the offending was due to a purely drug-induced psychosis because the psychosis persisted for a number of months in hospital where he was an involuntary patient with no access to illicit drugs.
The involuntary admission from 31 January 2015 continued through April 2015. At the end of that month Dr Kavanagh assessed the applicant as requiring further treatment for schizophrenia as an involuntary patient. She considered that he "posed a moderate to high level of concern for further episodes of violent behaviour in the short to medium term". He had expressed homicidal and suicidal ideas both before and after admission. During this period in hospital he exhibited verbal aggression, making threats to staff. Dr Kavanagh found that he lacked insight into his mental illness, which made treatment difficult. He also had a capacity to mask his symptoms, that is, to act in a manner which gave the appearance of mental normality.
Dr Lienert has seen the applicant repeatedly as an outpatient since his discharge from hospital in mid-2015. He has observed relapse of the applicant's symptoms when medication has been reduced, even in the absence of illicit drug use. When the doctor saw him in November 2016 he considered the applicant's paranoid schizophrenia was in remission but he was subject to relapse if he reverted to the use of illicit drugs as he had done from time to time over the preceding 18 months. As at November 2016 Dr Lienert considered it was necessary to keep the applicant on a Community Treatment Order with "assertive follow-up".
His Honour accepted the above evidence. He also took into account a letter the applicant had written to explain his conduct in relation to the offence which his Honour regarded as being "consistent with him not being mentally well that time". This included the statement with respect to his driving: … but I keep going [ie driving] because I was so scared, I don't know where I was going but I just want to see the sunshine …
His Honour drew this conclusion as to his mental state: Here the medical evidence satisfies me on the balance of probabilities that at the time of the offences the offender was mentally unwell and was suffering from paranoid schizophrenia, that as part of his symptoms he was suffering from paranoid delusions and persecutory delusions. The evidence before me also satisfies me that at some time prior to the offences he had consumed the drug cannabis which may have exacerbated his mental health condition. There is nothing in the facts though to suggest that the level of cannabis would have affected his driving ability … . There is nothing before me to suggest that at the time he engaged in using cannabis he knew that he had a mental illness that would be exacerbated by the use of cannabis.
With respect to the causative effect of the applicant's mental health condition, his Honour concluded as follows: I am satisfied on the balance of probabilities that his mental health condition contributed to the cause of the collision in a material way. His driving to some degree was caused by his delusional state. I consider that in those circumstances it reduces his moral culpability for his offending to some degree. I also consider that his mental health condition means this is not an appropriate case in which to reflect fully the factor of general deterrence in sentencing.

Subjective sentencing considerations

Subjective circumstances of the applicant which his Honour regarded as relevant to sentence were his limited record of traffic offences and the assault which had occurred shortly before the subject offences. His Honour considered that his "limited record entitles him to some leniency". There appears to have been nothing else remarkable in his background or personal circumstances. One of the psychiatric reports recorded what his Honour regarded as a "qualified statement of remorse" but with respect to this his Honour made allowance for the absence of a more compelling expression on the subject because "his recollection of the collision is no doubt affected by the fact he was mentally unwell at that time".
The sentencing judge found that the applicant had reasonable prospects of rehabilitation, depending upon him continuing to take psychiatric medication and refraining from the use of illicit drugs. Special circumstances were found based upon the applicant's "relatively young age, his mental health condition and his need for extended supervision when released into the community".

The sequence of topics in the remarks on sentence

In his remarks on sentence the learned judge related the applicant's dangerous high speed driving and lane changing, the manner in which the collision caused Ms Rourke's vehicle to leave the roadway and the details of her injuries. His Honour then expressed this view (at 7 of the remarks): In my opinion, given the high level of danger associated with the offender's driving and the catastrophic injuries suffered by the victim, the level of objective seriousness of the dangerous driving offence is well above the mid-range.
His Honour then summarised the applicant's personal circumstances which, so far as they were relevant to sentencing, were unremarkable and occupied only one paragraph of the remarks (at 8). This was followed by a review of the applicant's psychiatric history. His Honour cited Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (at 12 of the remarks) and accurately summarised the principles from that case concerning the relevance of an offender's mental health in sentencing.
His Honour applied those principles (at 13 of the remarks): I am satisfied on the balance of probabilities that his mental health condition contributed to the cause of the collision in a material way. His driving to some degree was caused by his delusional state. I consider that in the circumstances it reduces his moral culpability for his offending to some degree. I also consider that his mental health condition means this is not an appropriate case in which to reflect fully the factor of general deterrence in sentencing [and that] … he may well find that his time in custody is more arduous than for others who do not suffer from such a condition.
On the next page of the remarks his Honour cited R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343. He then drew together all factors bearing upon moral culpability and objective seriousness of the offence, in these terms: In terms of the aggravating factors [as referred to in R v Whyte] I have essentially discussed those when assessing the objective seriousness of the offending. The nature of the injuries was catastrophic and life-changing. The number of people put at risk was significant. The degree of speed was very high. There was erratic driving and the driving went on for a considerable distance and the offender failed to stop, although that is of course the subject of a separate charge. In terms of the guideline judgment, the factors I have identified indicate that the offender abandoned responsibility for his own conduct. In terms of the guideline judgment, those factors may well indicate that the moral culpability of the offender would be high. In light of my finding however, that he was suffering from paranoid schizophrenia at the time and that materially contributed to the offending, as I expressed earlier, I am of the opinion that his moral culpability is reduced from what is otherwise would be.
His Honour continued (at 15 of the remarks) in these terms: Despite my findings in relation to the significance of his mental illness to this sentencing I am of the opinion that objectively the offending is so serious that a sentence of full-time custody must be imposed. … While I do not consider that general deterrence needs to be fully reflected in this sentence, it must to some degree be reflected in it. The prevalence and nature of the offence means that general deterrence still has some role to play here.

Consideration of ground 1

As to the first part of ground 1, his Honour did "take into account the applicant's reduced moral culpability resulting from the causative link between his mental condition and the offending". The passages quoted at [27] and [28] above are explicit as to this and could not be clearer. The gravamen of the applicant's complaint, as developed in submissions, is that his Honour's finding of reduced moral culpability by reason of the causative effect of his mental illness: … arose in the context of the sentencing judge's consideration of the applicant's subjective features, and his Honour did not take the causal connection between the applicant's mental condition and the commission of the dangerous driving offence into account when considering the objective seriousness of the offence.
This submission involves unreasonably construing his Honour's remarks for error, by giving undue weight to (a) the sequence in which relevant sentencing considerations were dealt with and (b) the use of individual words without regard to the substance of the overall reasoning.
In sentencing for offences against s 52A(3) and (4) of the Crimes Act, absent any evidence of mental illness, moral culpability will be assessed largely by reference to the objective facts of the driving. For example, an offender who drives under the effects of drugs or alcohol and/or at excessive speed will be assessed at a higher level of moral culpability than one who causes grievous bodily harm only through momentary inattention or misjudgment. Viewed in this light, and confining consideration to cases which do not involve causative mental illness, offences against s 52A(3) and (4) may vary in their degree of moral culpability over a very wide range.
Moral culpability is an important consideration in sentencing for any offence but the degree of it may be almost self-evident in many crimes, for example causing grievous bodily harm by the use of an inherently dangerous weapon such as a knife, charged under s 33 or s 35 of the Crimes Act. No doubt because of the wide range of negligence or recklessness which may result in commission of an offence against any of the subsections of s 52A, Spigelman CJ said in R v Whyte (at [205]): [I]n determining the appropriateness of full-time custody and the length thereof, the sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence.
Where an offender suffers from a mental illness, the principles to be applied in sentencing are as summarised by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa at [177], in these terms (citations omitted): 1 Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. 2 It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. 3 It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. 4 It may reduce or eliminate the significance of specific deterrence. 5 Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.
It is settled that if the first of these principles is engaged, the reduction in moral culpability is taken into account as part of the evaluation of objective gravity of the offending. In Biddle v R [2017] NSWCCA 128 Hoeben CJ at CL (Rothman and Price JJ agreeing) said (at [68]): [I]t is clear that this Court has followed the approach that an offender's mental condition, which must impact upon moral culpability, is a matter to be properly taken into account when assessing the objective seriousness of an offence.
In support of this Hoeben CJ at CL referred to four earlier decisions of this Court dating from 2012, 2014 and 2015, for which it is not necessary to repeat the citations here. The position stated by the Chief Judge was reiterated in Yun v R [2017] NSWCCA 317 at [47] (Latham and Bellew JJ).
Where the circumstances of a case attract principles 3, 4 and/or 5 from the summary given in Director of Public Prosecutions (Cth) v De La Rosa, those consequences of the offender's mental illness would properly be regarded as relevant to his or her subjective case. That is, the principles would bear upon the personal attributes of the offender rather than upon the objective gravity of the offending conduct.
On a fair reading of the remarks, the evaluation of the objective seriousness of the offence as "well above the mid-range" in the passage quoted at [25] above is his Honour's starting point, or interim conclusion, based solely upon the applicant's manner of driving and the injuries inflicted on Ms Rourke. This is evidently not his Honour's final word on objective seriousness. It precedes the discussion of the psychiatric evidence, the conclusion on reduction of moral culpability by reason of schizophrenia (see [27] above) and the synthesis of all factors bearing upon objective seriousness in the closing passages of the remarks (quoted at [28] and [29]).
No doubt the applicant would not even have argued this ground if the impugned passage (quoted at [25] above) had included additional qualifying words as follows: "the level of objective seriousness of the dangerous driving offence, based upon the manner of driving and its consequences and before consideration of mental illness, is well above the mid-range". But that is in any event the sense of the passage. The sense is clear from the context: prior to the impugned passage only the manner of driving and its consequences are referred to, thereafter the causative effect of mental illness is taken into account in reduction of moral culpability and, finally, a full statement of all factors bearing upon objective seriousness, including reduced moral culpability, is given in the passages quoted at [28] and [29].
Ground 1 is rejected.

Ground 2: manifestly excessive sentence

The question under ground 2 is whether the aggregate sentence imposed was unreasonable or plainly unjust: see House v The King (1936) 55 CLR 499; Hughes v R [2018] NSWCCA 2 at [86]. Analysis of this is significantly dependent upon whether his Honour's indicative sentence of 3 years and 6 months for the offence against s 52A(3) was excessive, taking into account all circumstances of the offending and of the offender, the maximum of 11 years and the guidance as to sentencing under s 52A outlined in R v Whyte, especially at [215]-[234].
His Honour was well justified in his assessment, as we understand it, that but for reduction of moral culpability on account of mental illness the objective seriousness of the applicant's s 52A(3) offence would have been "well above the mid-range". The applicant's driving was extremely dangerous over a sustained period, he endangered numerous road users before his collision with Ms Rourke's vehicle and the injuries inflicted upon her were shocking, both in their immediate effect and because of the ongoing suffering and disability they have caused.
If the applicant's moral culpability was not reduced by mental illness a sentence of considerably longer than 3 years and 6 months would have been called for. The indicative sentence clearly made substantial allowance for the causative effect of the schizophrenia. Similarly, for the offence of failing to stop contrary to s 52AB(2) the indicative sentence of 1 year and 6 months (against a maximum of 7 years) necessarily reflected, in all the circumstances of this case, significant allowance for reduced moral culpability. In accordance with authority his Honour did not isolate or quantify the extent of the mitigation of penalty which he attributed to the mental illness: R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436 at [61]-[69].
Contrary to the applicant's submissions we do not accept that as a result of his moral culpability being reduced for mental illness it must necessarily be characterised as "low-level moral culpability" when applying the guideline judgment in R v Whyte at [230]. Under s 3A of the Crimes (Sentencing Procedure) Act the purposes of general deterrence (par (b)), making the applicant accountable for his or her actions (par (e)) and denouncing his conduct (par (f)) are of reduced significance because of the mental illness: see R v Pearson [2004] NSWCCA 129 at [43] and [47].
However the applicant did not plead the mental health defence and cannot be treated on sentence as if he was "not … responsible, according to law, for his … action" under s 38(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW). The statutory purposes of protecting the community (par (c)) and recognising the harm done to the victim of the crime and the community (par (g)) remain relevant. Specific deterrence also remains of some significance in view of the medical evidence that the applicant's condition is worsened with use of illicit drugs and that since the offence he has at times relapsed into drug misuse and neglected his prescribed medication.
In the absence of excessiveness in the indicative sentences, the aggregate likewise cannot be said to be manifestly excessive. The notional accumulation of 6 months in the aggregate was within the scope of his Honour's sentencing discretion. His Honour found special circumstances and fixed a non-parole period of only 65% of the head sentence.
Ground 2 is rejected.

Orders

The orders of the Court will be: 1. Leave to appeal is granted. 2. The appeal is dismissed.

Amendments 16 June 2021 - Correction to typographical error on cover sheet 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: 16 June 2021

Mental Health (Forensic Provisions) Act 1990(NSW)

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