R v Barton [2016] ACTSC 162

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - culpable driving causing grievous bodily harm - failing to stop when signalled by a police officer - exceeding the speed limit - fail to stop at stop line at a red light - prescribed drug in offender's blood - driving in a dangerous way - repeat offender - sentence of full-time imprisonment imposed

Crimes Act 1900 (ACT), s 29(4)

Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), regs 6, 109(2)

Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 7(1)(b)

Road Transport Alcohol and Drugs Act 1977 (ACT), s 20(1)

Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10, 33(1)(za)

Kennewell v Rand [2006] ACTCA 10

R v Paton [2013] ACTSC, Penfold J, 2 December 2013

R v Nachouki [2013] ACTSC, Burns J, 17 September 2013

R v Monfries [2013] ACTSC, Nield AJ, 18 June 2013

Legal Aid ACT (Offender)

SCC 256 of 2015 ; SCC 257 of 2015

1. On 25 November 2015, the offender pleaded guilty to the following offences:

Count 1 - Culpable driving causing grievous bodily harm in contravention of s 29(4) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 10 years imprisonment.

Count 2 - Failing to stop when signalled by police in contravention of regulation 109(2) of the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT). The maximum penalty for this offence is a fine of $3,000.

Count 3 - Exceeding the speed limit in contravention of r 20 of the Australian Road Rules (by virtue of reg 6 of the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT)). The maximum penalty for this offence is a fine of $3,000.

Count 4 - Failing to stop at the stop line at a red light in contravention of rule 56(1) of the Australian Road Rules (by virtue of reg 6 of the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT)). The maximum penalty for this offence is a fine of $3,000.

Count 5 - Driving with methylamphetamine and cannabis in his blood in contravention of s 20 (1) of the Road Transport Alcohol and Drugs Act 1977 (ACT). The maximum penalty for this offence by a repeat offender is a fine of $3,750, 3 months imprisonment or both.

Count 6 - Driving in a dangerous way in contravention of s 7(1)(b) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT)). The maximum penalty for this offence is a fine of $15,000, 1 year imprisonment or both.

2. The offender is a "repeat offender". In 1991, he was convicted of the offence of driving with a prescribed concentration of alcohol. As he is a repeat offender, for the offence of culpable driving, the automatic disqualification period is 24 months. The automatic disqualification period for dangerous driving is 12 months. The Court may order a longer period.

3. The pleas were entered on the fifth mention in the ACT Magistrate's Court.

4. I record a conviction on each of the above counts.

5. At about 2 pm on Monday, 15 September 2014, the offender was driving a white Toyota Camry sedan on Parkes Way, Acton. He overtook an unmarked police vehicle. He was travelling at a speed of at least 120 km/ph in a 90 km/ph zone. Police signalled the offender to pull over. He did so. However, as police walked towards his vehicle, the offender accelerated away rapidly, turning into Bindubi Street. He failed to stop when signalled by police to do so.

6. Bindubi Street is an asphalt surfaced arterial road providing access between South Canberra and the Belconnen Town Centre to the north. There is one lane travelling in each direction. It is straight but undulating, meaning that forward visibility is limited in some places. It is bordered by thick bushland to the east and grassland to the west. Where Bindubi Street approaches Lyttleton Crescent, the lanes are divided by a raised concrete traffic island and there are lanes for vehicles turning left or right at the intersection.

7. The offender drove in a northerly direction up Bindubi Street. As he was travelling at a fast speed, the police lost sight of him for a period. The offender's vehicle overtook a number of other vehicles. He drove north in an 80 km/ph zone, towards the intersection with Lyttleton Crescent.

8. As the offender's vehicle travelled into the intersection, there was a red light facing him. He crossed the stop line, failing to stop. His vehicle collided with the victim's vehicle which was entering the intersection from Lyttleton Crescent in accordance with a green light.

9. Approaching the intersection, the offender braked and skidded leaving a 12.7 metre tyre skid mark. A reconstruction of the accident established that, at the commencement of the skid mark the vehicle was travelling at 139 km/ph. At the time it collided with the victim's vehicle, the offender's vehicle was travelling at about 130 km/ph. When the accident occurred, the weather was fine and the road was dry. Traffic flow was medium.

10. The victim was conveyed to the Canberra Hospital for treatment. She sustained life-threatening trauma to her head, neck and chest. She also sustained a serious fracture of her left ankle and left lower leg. The left leg injury required surgery and the victim sustained permanent scarring. It is likely that she will have permanent chronic pain in the ankle joint. In her Victim Impact Statement, she states that she knows that "her foot and ankle will never return to being fully functional".

11. The offender sustained serious leg and head injuries for which he was treated at the Canberra Hospital. A blood sample was taken and methylamphetamine of approximately 0.4 mg/litre and THC of approximately 4 ng/mL was detected. Both drugs are prescribed drugs under the Road Transport (Alcohol and Drugs) Act 1977 (ACT).

12. Count 1. The culpable driving involved is easily described as objectively very serious. It involved driving at a very high speed, being under the influence of illicit drugs, ignoring a red light and causing very serious injuries to an entirely innocent motorist. I have already described the grievous bodily harm to the victim.

13. Count 2 relates to the offender failing to stop when asked to do so by the police. This action must be seen against the background of the offender initially pulling over, but then making off at a high speed as the police approached his vehicle.

14. Count 3 concerns speeding. At the time of the collision the offender was travelling at approximately 130 km/ph. He may have been closer to 140 km/ph at an earlier time. The maximum speed limit on the roads he traversed was 80 or 90 km/ph. The speeding was thus well in excess of the limits.

15. Count 4 concerns the offender not stopping at the red light immediately before the collision.

16. Count 5 refers to driving with prescribed drugs in his blood stream. These are the drugs mentioned above.

17. Count 6 relates to the dangerous manner of driving by the offender commencing with his initial speeding, then overtaking the unmarked police car, through to the collision. Almost every element of his driving included driving in a dangerous manner.

18. The offender was born in 1971. At the date of these offences he was 42 years old. In 1991, in the ACT, he was convicted of driving with a prescribed content of alcohol ("PCA") over the limit. He has a prior drink-driving offence in New South Wales, driving with a midrange PCA in 1999.

19. In the 1990s, he was convicted of various street offences.

20. No convictions were recorded between 1999 and 2003, when he was convicted of street offences and an offence of possess a prohibited drug. He was fined $200. In 2004, he was convicted of a further offence of possess a prohibited drug, and received a good behaviour bond that included a condition that he receive psychiatric treatment.

21. No convictions were recorded between 2004 and July 2014, when he was convicted of using an unregistered and uninsured vehicle. He was fined.

22. The Pre-Sentence Report refers to the offender being raised in an environment of domestic abuse and alcoholism. His parents separated when he was 12 years old and he resided with his mother until he was 25. In 2000, his father committed suicide. Currently he is supported by his brother, but otherwise he has little family support. Somewhat inconsistently, the report prepared by a consultant psychiatric includes this passage:

Mr Barton described his childhood as "pretty good, riding bike and playing sports and stuff". He denied experiencing any episodes of trauma, abuse or neglect. He indicated that his academic performance at school was "very average, I was good at English". He denied that he was ever involved in physical altercations at school, or suspended/expelled. He indicated that he completed Year 12 although was frequently truant during his final year of schooling.

23. I brought this inconsistency to the attention of Mr Lawton who told me that the correct position is that as set out in the Pre-Sentence Report.

24. The offender was relatively stable for more than a decade up to 2015, when he became homeless. I understand, however, that he has recently been living with his brother. He has been unemployed for the past five years.

25. The offender has a long history of substance abuse. Through his 20s and 30s, he abused alcohol. This abuse remains a problem. He has also used illicit substances. He was using methylamphetamine and cannabis at the time of the offences and continues to do so, reportedly spending all of his income on drugs. Although the history given to Dr Barker may be incorrect in parts, the doctor concluded:

Mr Barton does not appear to be suffering from a mental illness at the current time, nor is there an indication that he was suffering from a mental illness at the time of the alleged offences.

26. I note that although the purpose of the referral to Dr Barker was to ascertain the consequences, if any, of the offender's head injury, the doctor ultimately stated he was not qualified to give this opinion but he did say the head injury, "does not appear to have precipitated any significant mental illness."

27. I will begin with these observations: First, although there are six counts, they all essentially arise from one set of circumstances. Second, as observed in the Pre-Sentence Report, the offender has a limited capacity to meet any financial burdens. On the negative side, the report assesses the offender as being at "a medium to high risk of reoffending." This level of risk must be addressed by him being disqualified from driving for a substantial period of time.

28. The report states a specific concern that the offender "appears to be self-focused on the outcome for himself rather than victim focused." This observation highlights a lack of contrition for the serious effects of his conduct on the victim.

29. In addition, as a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6 and the purposes of sentencing as stated in s 7. I am also particularly mindful of s 10 which tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate.

30. In relation to s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT), I have had regard to the following authorities: Kennewell v Rand [2006] ACTA 10, R v Paton [2013] ACTSC, Penfold J, 2 December 2013, R v Nachouki [2013] ACTSC, Burns J, 17 September 2013, and R v Monfries [2013] ACTSC, Nield AJ, 18 June 2013.

31. The Pre-Sentence Report, in considering sentencing options, highlights the need for the involvement of Corrective Services in addressing issues of illicit drugs, mental health and criminal attitude.

32. A real issue arises from the offender's lack of desire to rehabilitate himself. The Bail Progress Report dated 30 June 2016 discloses that while the offender has been compliant whilst on bail, he has continued to use illicit drugs and has not contacted any services which might assist him in dealing with his drug use. He said today that he had not contacted rehabilitation services because a telephone was not working. I do not consider that a reasonable excuse. The report states:

Although Mr Barton claimed to be interested in attending a rehabilitation program he failed to contact any services and expressed his intention was to avoid gaol rather than to address his substance use in a meaningful way.

33. This is the same theme that emerges from his attitude to the victim and probably influenced his pleas of guilty. His pleas must still, however, be taken into account.

34. In addition, the report from Court Alcohol and Drug Assessment Service reveals that while the offender attended an initial appointment he could not be assessed at the time because he was apparently unwell and he then failed to attend a second appointment.

35. The Pre-Sentence Report states that a deferred sentence could be of benefit if coordinated with drug rehabilitation, but then notes that the offender "has demonstrated limited motivation to undertake rehabilitation."

36. The report states the offender has been assessed as not suitable for a Community Service Order.

37. The report does state the offender's circumstances are suitable for a Good Behaviour Order including medium to high level intervention by ACT Corrective Services.

38. I am satisfied that there is no appropriate alternative to a term of imprisonment in respect of Count 1, despite Mr Lawton's submissions. The very serious nature of the culpable driving charge makes this the only appropriate option.

39. If possible there should, however, be intervention from the ACT Corrective Services during his incarceration to attempt to address the offender's drug and mental health issues. In addition, Dr Barker raises the likelihood of an increased risk of suicide. This seems to be based on factors applicable to the general prison population rather than specific to the offender. Nevertheless, I will mark him as a prisoner at risk.

40. I think the term of imprisonment on Count 1 should be two years but this should be reduced by 25% to reflect the guilty plea. This reduces the term to 18 months. The non-parole period will expire on 6 April 2017.

41. In respect of Counts 2, 3, 4 and 5, I will fine the offender $500 for each count payable immediately. This approach recognises the offender's incapacity to pay, allowing the non-payment of the fines to be dealt with by imprisonment served concurrently with the sentence for Count 1.

43. Count 1, imprisonment for a period of 18 months. The non-parole period is set at nine months to expire on 6 April 2017. The offender is disqualified from driving for 3 years, 2 months and 8 days commencing on 7 July 2016 and to end on 14 September 2019. This disqualification period reflects a disqualification for a period of five years since the date of the offence.

48. Count 6, imprisonment for a period of six months to be served concurrently with the term set for Count 1.

49. In addition, the prisoner is to be marked as a prisoner at risk and I recommend to ACT Corrective Services that the prisoner's drug and alcohol problems be addressed.

I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Elkaim

Replace "The automatic driving disqualification period is extended to five years commencing on 15 September 2014", with "The offender is disqualified from driving for 3 years, 2 months and 8 days commencing on 7 July 2016 and to end on 14 September 2019. This disqualification period reflects a disqualification for a period of five years since the date of the offence".