NSWNSWDC

R v Burrell

[2022] NSWDC 719

District Court of NSW|2022-12-02|Before: Mr J, Mr P

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At a glance

Source facts

Court

District Court of NSW

Decision date

2022-12-02

Before

Mr J, Mr P

Source

Original judgment source is linked above.

Judgment (35 paragraphs)

[1]

sentence

HER HONOUR: Tamika Burrell, 25 years of age, appears before Gosford District Court for sentence in relation to one offence of dangerous driving, drive manner dangerous occasioning grievous bodily harm, an offence pursuant to s 52A(3)(c), Crimes Act. The maximum prescribed penalty for that offence is seven years' imprisonment. There is no standard non-parole period. There is an automatic licence disqualification of three years and a minimum disqualification of 12 months.
The victim is Jeanie May Mallett, who was a passenger in the offender's vehicle. The offending occurred on 2 May 2021.The offender is also being sentenced in relation to one offence on a s 166 certificate of drive vehicle with illicit drug present, an offence pursuant to s 111(1)(a), Road Transport Act. The maximum prescribed penalty for that offence is 20 penalty units. There is an automatic licence disqualification of six months and a minimum of three months.
The offender pleaded guilty on 21 June 2022 at the Wyong Local Court. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%. The offender has spent no time in custody in relation to the offending.

[2]

THE CROWN MATERIAL ON SENTENCE

The Crown tendered the following material on sentence.
Exhibit A, a Notice of Committal, charge certificate; s 166 certificate; Agreed Facts; criminal history, showing a nil record; a s 257 Road Transport Act certificate; a report of Dr Thomas Rosenthal (occupational physician) 22 June 2022; and a victim impact statement dated 19 October 2022.

[3]

THE AGREED FACTS

At the time of the offending, the offender was 23 years of age and lived in Killarney Vale. The victim, Jeanie May Mallett, was 29 years of age and was living in Berkeley Vale. She was friends with the offender.
On the afternoon of Sunday, 2 May 2021, the offender drove the victim in her vehicle, a black Hyundai Coupe, from the victim's home to Caves Beach for the victim to participate in a photo shoot. The offender waited until the photo shoot was finished so she could drive the victim home.
When the victim returned to the vehicle she noted that the offender was in a "cranky mood" which she attributed to the offender not being able to utilise her mobile phone due to reception issues in the Caves Beach area. In the context of the offender's mood, the victim offered to drive home, but the offender said, "No." The victim surmised, "I think she just wanted to get home to get it done."
During the course of the trip home, the victim reported that the offender was driving "with her mood" so more rigid and, like, fast-paced than normal, rather than, you know, like your Sunday drivers." The victim reported that the offender was speeding and overtaking other vehicles, and that every time there was a car in front of her vehicle she would "kind of nudge her way closer to the car in front but then kind of fall back and then, like, creep up again, and then, like, fall back, trying, like, to push people".
The victim also reported that whilst driving south on the Central Coast Highway, and after the road changed into Wilfred Barrett Drive south of the roundabout at the intersection with Main Road at Noraville, a number of drivers on the road were "brake checking" each other by slowing down in front of the vehicle in front of them. This included a creamy white four‑wheel drive. The victim reported that at the roundabout the offender "kind of shot in front of a few cars that were, like, the ones that were trying to brake check each other".
The offender reported that instead of allowing her to pass at the merge lane at the intersection, the driver of the white utility "pulled straight in front of me". There was a considerable number of cars travelling south on Wilfred Barrett Drive as the offender and the victim passed the intersection with Main Road shortly after 6pm. It was then dark and the weather was clear. There was a map attached to the Agreed Facts showing the route driven by the offender.

[10]

ASHLEIGH SHORT

Ashley Short was driving south along Wilfred Barrett Drive. She had one car in front of her and about 15 behind. As she was driving over the crest of the hill, Ms Short could see the offender's vehicle travelling down the wrong side of the road in her rear vision mirror, approximately 500 metres behind. She could also see the headlights of the oncoming vehicle but did not immediately feel concerned, given how far behind the offender's vehicle was. Suddenly, the offender drove past her at speed. The offender's vehicle appeared to increase in speed as it approached the oncoming vehicle before the collision occurred, approximately 40 metres in front of Ms Short.
Around 6.10pm, then 16‑year‑old Abby Lenton was driving her parents' Toyota Prado vehicle north on Wilfred Barret Drive when the offender's vehicle, travelling on the wrong side of the road, collided with her. Ms Lenton held a learner's permit. At the time of the collision she was being instructed by her father, Mr Andrew Lenton. Ms Lenton reported that she was travelling at approximately 70 kilometres an hour. She recalls that the collision occurred soon after she saw the offender's vehicle coming over the crest of the hill in front of her.
Attached to the Agreed Facts is an aerial photograph that shows the location of the collision on Wilfred Barrett Drive. Measurements indicate that the distance between the point on the roadway where the double unbroken lines commenced and the point of the collision was approximately 600 metres. The unbroken lines commenced on the roadway after the offender began overtaking Mr Davis' and other vehicles.
The victim reported that as soon as the offender started overtaking "it was like, okay, let's see how many we can get in front of" and then "it was like the one car that was just like, no, she was adamant she would get in front of this car, but it just never eventuated. Another car popped up in front of us and then that was - I don't remember anything after that."
Significant damage was sustained to both motor vehicles. The air bags were deployed in Ms Lenton's vehicle and neither occupant was badly injured, although Ms Lenton, who was clearly distressed following the incident, was transported to hospital as a precaution. The Agreed Facts include photographs showing the extensive damage to the vehicles.
The victim suffered serious injuries as a consequence of the collision to her spine, internal organs, breaks to other bones, as well as multiple external lacerations. She was transported via helicopter to John Hunter Hospital for urgent treatment of the following injuries: 1. a liver laceration, grade 3. 2. ischemic left colon; which I understand is an inadequate flow of blood to the colon. 3. C2 hangman's fracture and T4 fracture. 4. facial scalp and ear lacerations. 5. eighth rib fracture.
The immediate treatment required for those injuries was: 1. a left hemicolectomy, which I understand is surgical removal of half of the colon, and anastomosis for ischemic left colon, which I understand is an artificial connection between two normally separate parts of the intestine. 2. spinal fusion surgery for the C2 spinal fracture. 3. conservative management for the rib fracture. 4. facial lacerations closed in surgery.
The victim was an inpatient at hospital for 11 days.
The offender was also seriously injured and was transported to John Hunter Hospital via ambulance for inpatient treatment. The injuries suffered by the offender were: 1. minimally displaced right lateral compression fractures to the superior and inferior rami. 2. minimally displaced right L2 - L5 transverse process fractures. 3. minimally displaced left L1 - L2 transverse process fractures. 4. moderately displaced fractures to the right sacral ala in zones 1 and 2. and 5. right shoulder soft tissue injuries.
The offender was an inpatient at John Hunter Hospital for three days and the treatment recommended was that she not bear weight for six weeks and that she continue to use crutches intermittently for five months.

[12]

THE FACTS IN RELATION TO THE OFFENCE OF DRIVE VEHICLE WITH ILLICIT DRUG PRESENT

Whilst receiving treatment at the scene prior to being transported to hospital, the offender told paramedics that she had had marijuana earlier in the day.
On 6 August 2021, tests were conducted on a blood sample taken from the offender on the day of the collision. Those tests confirmed the presence of cannabis in the offender's blood at the time of the collision.
Upon detailed consideration of the blood analysis and the circumstances of the collision, a forensic pharmacologist, Benjamin Ryan, was unable to form a firm opinion beyond reasonable doubt that at the time of the driving that evening the offender was under the influence of cannabis to the extent that there would have been appreciable impairment of her driving ability.
Those facts clearly disclose very serious objective criminality. The offender, with no regard for other road users, or the victim, who was her passenger, drove on the wrong side of the road of a distance of at least 600 metres when there were unbroken centre lines. It is truly remarkable that no one was killed.
The conduct was highly irresponsible and reprehensible. Both general and specific deterrence are important considerations on sentence.
In R v Manok [2017] NSWCCA 232, Wilson J stated at follows at [78]-[79]: "In sentencing for offences of dangerous driving occasioning death or grievous bodily harm, the need for strong denunciation and general deterrence has always been recognised as very important. Indeed, the primacy of general deterrence is such that, ordinarily, it outweighs the remorse or rehabilitation of an offender: R v Paul Musumeci (NSWCCA, 30 October 1997, Unrep) per Hunt CJ at CL. That is because of the prevalence of the activity of driving, and the terrible consequences that can flow from a failure by a driver in the management of a motor vehicle. Almost every adult in our community drives; a driver can commit an offence of dangerous driving, manifesting in death or severe injury. It is important that all drivers be deterred from driving dangerously by the sentences imposed on those who transgress."

[14]

THE GUIDELINE JUDGMENT OF R V WHITE

In determining the appropriate sentence I have taken into account the guideline judgment of R v White [2002] 55 NSWLR 252. In White, Spigelman CJ at [252] identified a frequently recurring case of an offence under s 52A as having the following characteristics: "(1) young offender; (2) of good character with no or limited prior convictions; (3) death or permanent injury to a single person; (4) the victim is a stranger; (5) no or limited injury to the driver or the driver's intimates; (6) genuine remorse; and (7) a plea of guilty of limited utilitarian value."
Spigelman CJ also identified a list of 11 aggravating factors as follows at [253]: (1) the Extent and nature of the injuries inflicted; (2) Number of people put at risk; (3) Degree of speed; (4) Degree of intoxication or of substance abuse; (5) erratic or aggressive driving; (6) competitive driving or showing off; (7) Length of the journey during which others were exposed to risk; (8) ignoring of warnings; (9) escaping police pursuit; (10) Degree of sleep deprivation; (11) failing to stop.
Spigelman CJ at [228] stated as follows: "In the above list of aggravating factors, items (iii) to (ix) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion."
The guideline for offences against s 52A for the typical case was stated as follows, at [229] - [230]: "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 the case of a low level of moral culpability, a lower sentence will of course be appropriate."
In R v White, Spigelman CJ continued at [232] - [233]: "The guideline is, to reiterate, a "guide" or a "check". The sentence imposed in a particular case will be determined by the exercise of a broad discretion, taking into account all of the factors required to be taken into account by section 21A, Crimes (Sentencing Procedure) Act. This guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration."
In relation to the application of the guideline to this offender, she is relatively young, being 23 years old as at the date of the offending. She has no criminal history. There is permanent injury to a single person who was known to the offender. The offender also sustained injuries that required hospitalisation. The offender's remorse will be given limited weight for the reasons given later in my remarks, and there was an early plea of guilty.
In relation to the aggravating factors identified in the guideline, I am satisfied the following are present: the extent and nature of the injuries, there were a number of people put at risk given the course of driving and erratic driving, relying upon the observations of witnesses in the lead up to the collision.
Whilst a number of the witnesses referred to the offender driving at speed, the court is not able to identify the precise speed at which the offender drove her car. Other than to rely on those observations, I do not rely upon it as an aggravating factor. I am satisfied that the conduct of the offender demonstrates a high level of moral culpability and can properly be described as an abandonment of responsibility to other road users.

[15]

AGGRAVATING FACTORS

The Crown submitted that one aggravating factor was present, namely, that the injury and emotional harm caused by the offence was substantial. In order for this aggravating factor to be established, the court must be satisfied that the injury and emotional harm is beyond that which would ordinarily be expected to result from offending of this kind.
The Crown relied upon the report of Dr Thomas Rosenthal, an occupational physician. Dr Rosenthal assessed the victim by telehealth on 17 June 2022. He had reviewed relevant medical reports for the purpose of his assessment. He outlined the victim's current symptoms as follows: "She has ongoing abdominal pain. She walks with a limp due to abdominal pain. Her neck is extremely stiff and lacks any significant movement. She said her left shoulder clicks. She can only walk about 500 metres. She can drive but has 360 degree cameras in her vehicle when she drives. She denied any radicular symptoms in her arms or legs, but she did state that her left arm goes numb second daily, the whole arm goes numb and lasts for 3+ hours. Sitting is also restricted as her upper back gets painful."
Dr Rosenthal noted that the victim had not worked since the collision and had stopped all her physical activities. Dr Rosenthal was of the opinion that the victim was totally unfit for work in her current state, her previous work being as a hairdresser and a model. In relation to daily activities, he stated as follows: "Domestic tasks are significantly impacted by her current injuries. Her activities of daily living are described under Social History. She is not able to perform the majority of her activities of daily living as described and does require occasional assistance from her partner with personal care activities. She could do small amounts of basic meal preparation or a bit of light dusting and occasional tidying for short periods on occasions. In terms of future incapacity, it is too early to assess, but she is likely to be partially incapacitated for at least the next 2 - 5 years."
He was of the opinion the victim's prognosis remains extremely guarded. He stated as follows: "It is just over 12 months since a very significant motor vehicle accident which resulted in life‑threatening injuries. It is unlikely that she will be medically stabilised for at least another 12 months, following which a further assessment should occur."
Having regard to the multiple injuries sustained by the victim and the permanent and ongoing nature of the physical disabilities caused by the offending, I am satisfied that the aggravating factor is established.

[16]

VICTIM IMPACT STATEMENT

The victim provided a victim impact statement that was read by her mother. The victim was with her mother in court when it was read and subsequently gave evidence. She is now 29 years of age. She described that the offending has changed her life, to the extent that she no longer recognises herself. She explained that previously she was a very social, happy, outgoing person, who had a career in hairdressing and modelling. She stated as follows: "The above is a distant memory now. I have multiple life‑threatening injuries. I had a broken neck, which now has titanium rods, plates and screws, with no movement. I suffer from 'bolt' pain, which can on most days render me bedridden. I live in painkillers just to bear the pain."
She also described that she has multiple scars on her head where hair no longer grows. She has a 30 centimetre scar down the middle of her stomach and a 26 centimetre scar that wraps around her waist and hip. She walks with a limp, often needing a walking stick, and that seven‑tenths of her colon was removed and she takes medication to go to the toilet. She has liver dysfunction as a consequence of a laceration. This resulted in her skin being yellow and her liver has not yet completely regenerated. Her stomach and oblique muscles were "ripped from the bone" and were reattaching using "screws, plates and mesh". Her left leg was crushed and "screws holding muscles in place make the nerve pain unbearable, especially when it is cold". Her lower spine C7/T5 is still broken, with surgery required. She has also been advised she has a trauma hernia that needs to be surgically removed. She can no longer work, and said: "I feel worthless and a burden on my family, who rally around me."
Her physical incapacity means she cannot pick up her son or physically interact with him. She cannot undertake sporting activities that she previously engaged in and enjoyed, including surfing, motorbike riding and skateboarding. She has also been told she cannot have any further children. She also described that she suffers from post-traumatic stress disorder, depression and anxiety. She explained: "I absolutely trust no one and am triggered by the sound of helicopters, screeching brakes and loud noises."
She described herself as "broken as a person" who is "trying to live with the shell of me that's left". She concludes as follows: "My life will never be the same, it was removed from me thru no fault of my own without so much as a sorry."
It is clear to the Court that for the victim the consequences of the offending have been far‑reaching, devastating and continue to this day. Every aspect of her life has been impacted. I have no doubt that it would have been very distressing for the victim to have to prepare her victim impact statement and reflect upon the changes to her life. One of the purposes of sentencing is to recognise the harm done to the victim - see s 3A(g), Crimes (Sentencing Procedure) Act.

[23]

THE OFFENDER'S PSYCHIATRIC HISTORY

The offender reported witnessing her father suffer a fatal heart attack seven years ago when she was 17 years of age. She said that she later discovered her father had a rare heart disease and there was little she could have done to help him. However, she "can't let it go" and feels that she should have done more to help him at the time.
She reported experiencing feelings of depression, guilt and grief after her father's death and subsequently attended a counsellor, whom she described as "wonderful until she threatened to put me in a psychiatric ward" because the offender was self‑harming. She was assessed at a hospital and released because she "put on a good front".
She reported being diagnosed with ADHD, OCD, and reported symptoms consistent with post‑traumatic stress disorder following her father's death. She experienced para‑suicidal behaviour and has self‑harmed and suffered panic attacks in the past.
She said she had been in a relationship with the victim for two and a half years. The relationship had ended prior to the offending and they remained on friendly terms. She reported to Ms Duffy that she had feelings of depression after commencing a relationship with the victim, whom she described as manipulative and demanding towards her. She was subsequently referred to a psychologist, who has treated her for the past three to four years. She said she was being treated for post-traumatic stress disorder, anxiety, attachment issues, and her psychologist had encouraged her to examine her relationship with the victim.
She said after the offending she "shut down" and "felt like a burden". She would not talk to anyone and engaged in self‑punishing behaviour for "not saving dad and injuring her friend". She subsequently resumed counselling. She currently attends that counselling on a weekly basis.
She reported heightened arousal, anxiety and suicidal thoughts since the offending and believes she will not be able to cope if incarcerated. Her GP has subsequently prescribed the offender with medication to treat her major depressive disorder, OCD and panic disorder and to help her sleep. Her GP has also referred her to see a psychologist at Central Coast Counselling who specialises in grief counselling and treating depression and anxiety under a mental health care plan (See Exhibit 3).

[27]

THE OPINION OF MS DUFFY

The offender completed an intelligence assessment. She scored in the 16th percentile range, placing her in the low to average range for intelligence. Ms Duffy stated as follows: "Ms Burrell's general level of intelligence is consistent with her reported education level and level of paid employment. She does not display intellectual deficits that call into question her ability to solve problems and make judgements."
The offender completed an adult ADHD assessment. Ms Duffy was of the opinion that her responses strongly support a diagnosis of adult ADHD and recommended the offender undergo further assessment. The offender completed a post‑traumatic stress disorder symptom assessment and scored 64 out of 80, indicating a positive diagnosis of post‑traumatic stress disorder. She reported her father's death, the two car accidents, the victim's injuries and the current charges as traumatic events.
She also completed a questionnaire to measure her physical and psychological health. She scored in the high range for physical health, including back pain, stomach pain, headaches, chest pains, breathlessness, heart palpitations and nausea, which Ms Duffy indicated often related to psychological arousal. She scored in the severe range for depression and generalised anxiety.
Ms Duffy is of the opinion that the offender suffers from generalised anxiety disorder, post‑traumatic stress disorder, being persistent complex bereavement disorder, and mixed type ADHD, which was a provisional diagnosis.
Ms Duffy is of the opinion that the separation of the offender's parents, the subsequent absence of her father and their reunion, followed by his sudden death, affected her psychological development and functioning and led to the development of a number of maladaptive self‑appraisals, recurrent dreams and distressing thoughts and feelings.
Ms Duffy stated that the offender's: "...preoccupation with her deceased father and the circumstances of his death, intense sorry and emotional pain and her tattoos in memoriam are symptomatic of Persistent Complex Bereavement Disorder".
Ms Duffy stated that the offender: "...remains very fragile emotionally and troubled by guilt, particularly since the motor accident which has caused her friend Genes' injuries. She has endorsed symptoms of the intrusive avoidant negative emotions and hyperarousal cluster of PTSD, which were exacerbated by the accident."
Ms Duffy further stated that the offender: "...displays characteristics of borderline personality disorder in her fear of rejection, difficulty in controlling negative evaluations and self‑harming behaviours when distressed."
Ms Duffy is of the opinion that a custodial sentence would exacerbate the offender's anxiety and post‑traumatic stress disorder symptoms and that the offender would require supervision and support from a psychologist and other mental health practitioners to help her cope with custody as well as the effects of separation from her family.
Ms Duffy recommended the following treatment plan, should the offender remain in the community: 1. To continue counselling to develop better skills in self‑management and address issues in relation to fears of separation from her family and vulnerability to the influence of others. 2. A referral to a specialist health practitioner to perform diagnostic assessment for ADHD and treatment in the form of pharmacotherapy, CBT and coaching. 3. To undertake treatment for post‑traumatic stress disorder, grief and bereavement by engaging with a psychologist expert in this area from Central Coast Counselling under a mental health care plan. 4. To attend drug counselling in relation to cannabis at the Drug and Alcohol Services Central Coast Local Health District. 5. Be supervised by Community Corrections to coordinate the treatment plan and oversee compliance and progress.
In relation to the offender's risk of reoffending, Ms Duffy stated as follows: "Ms Burrell's risk factors are mainly centred on her vulnerability to manipulation, anxiety, depression and self‑blame, as well as possible diagnosis of ADHD, which could reduce capacity for reasoned judgement and decision-making. If these factors are comprehensively treated, the likelihood of reoffending in this manner would be substantially reduced."

R v Burrell - [2022] NSWDC 719 - NSWDC 2022 case summary — Zoe