[2018] ACTSC 358

Sentenced to 21 months' imprisonment from 12 December 2018, suspended from 11 June 2019, subject to a good behaviour order. For the associated conditions, see [53].

Disqualified from holding or obtaining a driver's license for three years.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - culpable driving causing grievous bodily harm - when offender under the influence of alcohol - sentencing purposes - adequate punishment - general deterrence - accountability - denunciation - recognition of harm - whether full-time imprisonment would cause the offender hardship

Crimes Act 1900 (ACT) s 29(4)

Crimes (Sentencing) Act 2005 (ACT) ss 33, 36

Cranfield v The Queen [2018] ACTCA 3

R v Barton [2016] ACTSC 162

R v Guy [2018] ACTSC 270

R v Ogle (No 2) [2018] ACTSC 126

R v Richardson [2016] ACTSC 133

R v Whyte [2002] NSWCCA 343; 65 NSWLR 252

R v Woods [2017] ACTSC 17

1. On 12 September 2018, the offender pleaded guilty to the offence that, on 16 August 2016, he caused grievous bodily harm to Dermot Walsh by the culpable driving of a motor vehicle (driving while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle).

2. This is an offence against s 29(4) of the Crimes Act 1900 (ACT). It carries a maximum penalty of 10 years' imprisonment and an automatic driver disqualification period of six months.

3. Two associated matters were transferred to the Supreme Court: driving with the prescribed concentration of alcohol in the driver's blood (level 3, repeat offender, which carries an automatic driver disqualification period of five years); and failing to keep to the left. These matters are to be discontinued.

4. On 3 May 2017, the offender was charged with the transferred offences. On 20 October 2017, which was his next appearance in the Magistrates Court, he was charged with culpable driving and entered a plea of not guilty to all charges. He was committed to the Supreme Court for trial. After several mentions and after service of the substantive brief of evidence, but before the matter was allocated criminal case conferencing and trial dates, the offender entered a plea of guilty. The plea was not entered early but nevertheless had significant utilitarian value. The appropriate discount for the plea is at least 15 per cent: Cranfield v The Queen [2018] ACTCA 3 at [37].

5. At about 10:00 AM on Tuesday, 16 August 2016, the offender began to consume alcohol. He was stressed because his former wife had declined the amount that he had offered by way of child support. He decided to go for a ride on his new Ducati Diavel "to blow off steam". After the accident, he told a witness that he had "gone riding with a death wish" and had "wanted to die". More recently, the offender told a psychologist that he had taken his eyes off the road "for a second to look at the river".

6. At about 1:53 PM, the offender was riding west on Cotter Road. Just before the Cotter Pumping Station, the road takes a gentle left-hand bend and heads downhill. As the offender rounded the left-hand bend, his vehicle drifted over the centre-line, well into the oncoming traffic lane, and impacted with the victim's motor cycle.

7. The victim was riding his Yamaha motorcycle east on Cotter Road. As he was driving along a straight stretch of road next to the Pumping Station, he saw the offender's motorcycle coming towards him. He tried to take evasive action, but there was inadequate time to do so before the offender's motorcycle collided head on with his motorcycle in the middle of the victim's traffic lane.

8. A witness was driving immediately behind the victim's motorcycle. He saw the offender's motorcycle wobble and it appeared to be out of control as it headed towards the wrong side of the road and collided with the victim's motorcycle. The witness stopped his vehicle and attended to the offender, who was seriously injured. He then attended to the victim. An ambulance was summoned.

9. The victim was admitted to the Canberra Hospital. He suffered an extensive Grade IV spleen laceration with active haemorrhaging, which caused the victim's blood pressure to drop dramatically. He suffered comminuted displaced fractures to his left clavicle (collarbone), left scapula (shoulder blade) and left radius (forearm), and other less serious injuries (bruising and abrasions). He underwent a life preserving procedure of splenic artery embolisation to stop the active bleeding in his spleen. Under general anaesthetic, the fracture to his left forearm was fixed by the insertion of plates and screws. He was hospitalised for eight days.

10. Three weeks later, the victim presented to the hospital with complications from his injuries, which were treated before he was discharged. He also complained of an inability to flex his left thumb, which was the product of anterior interosseus nerve palsy (paralysis). The connection between this injury and the accident is not entirely clear and, in any event, it is a relatively minor matter compared to the other injuries.

11. It is likely that the victim will experience permanent scarring to his left arm, chronic pain, and reduced mobility of the injured joints. There is an increased risk of arthritis in the joints affected by the collision. While it is hoped that the plate and screws in the left arm will remain permanently, it is possible that the victim may need further surgery to his left arm.

12. The offender suffered multiple left leg fractures, a floating knee injury (fractured femoral plate), foot fractures and a segmental defect in his femur.

13. When police spoke to the offender at the Canberra Hospital, he admitted that he had been the rider of the motorcycle involved in the collision. Analysis of a blood sample revealed an alcohol concentration of 0.137 grams per 100 mL of blood. An expert estimated that, at the time of the collision, the offender's blood alcohol level was between 0.152 and 0.168 grams per 100 mL of blood. The offender's motor coordination, vigilance and concentration would have been impaired, as would his ability to multitask. The influence of alcohol would have made him incapable of being in proper control of his motorcycle.

14. In assessing objective seriousness, the Court must have regard to the relevant considerations in s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) as well as other relevant matters.

15. For offences of this type, there are two general aspects to objective seriousness.

16. The first aspect is the degree of culpability of the offender's conduct. In this case, there was a high level of culpability. The offender deliberately rode his motorcycle while heavily intoxicated. There was no excuse for doing so. The offender "wanted to die" but apparently gave no consideration to the risk of fatality that he posed to others. By driving from his home at Duffy to the area of the collision, the offender must have put numerous road users at risk. On the other hand, the distance was relatively short (but not insubstantial) and the area where the collision occurred is ordinarily a low traffic area.

17. As a result of the influence of alcohol, the offender was unable to properly control his vehicle when undertaking the relatively simple manoeuvre of negotiating a gentle left-hand bend in broad daylight. This was not a case of "momentary inattention", but nor was it the result of deliberate driving in a dangerous manner at the collision location. The defence concedes that a high level of moral culpability attaches to the offender's conduct in that there was a significant level of alcohol in the offender's blood at the time of the accident, albeit that the level was not as high as is sometimes seen in cases of this type.

18. The second aspect is the nature and extent of the victim's injuries amounting to grievous bodily harm. By definition, all grievous bodily harm is really serious injury. In this case, the victim sustained a life-threatening injury requiring immediate treatment as well as multiple fractures. I infer that there was significant pain and suffering in the immediate aftermath of the accident and in connection with the surgery that was rundertaken. A period of rehabilitation was required.

19. The victim suffers ongoing pain and disability, and there is an increased risk of arthritis. Although the Court has not been furnished with a victim impact statement, I infer that the victim suffered emotional and psychological injury; psychological sequelae are inevitably associated with any serious motor vehicle accident.

20. Despite these serious consequences for the victim, I accept that, within the range of injuries that constitute grievous bodily harm, the injuries were not of the most serious type (such as paraplegia or serious brain injury).

21. Overall, this offence was of moderate objective seriousness.

22. The offender was 49 years' old at the date of the offence and he is now 51 years' old.

23. The offender has never been sentenced to full-time imprisonment. However, nor does his criminal history entitle him to leniency. In 2016, he received heavy fines for making a false entry and importing prohibited imports. In 2014, the ACT Magistrates Court imposed 12 month good behaviour orders for offences of common assault and assault occasioning actual bodily harm. The offender's response to supervision was deemed satisfactory. In 2007, the NSW Local Court imposed a good behaviour order and a fine for associated offences of driving with the mid-range prescribed concentration of alcohol and exceeding the speed limit by more than 30 km/h. For offences of drink-driving in 2003 and 2004, the ACT Magistrates Court fined the offender and disqualified him from driving. Twenty years ago, the offender committed other offences but these are so remote in time as to be irrelevant.

24. The offender is remorseful. He told at least one member of the AFP that he was upset that he had injured the victim and was concerned for the victim's well-being. The forensic psychologist who furnished a report stated that the offender feels guilty and shameful, albeit towards himself rather than feeling particular concern for the victim.

25. The offender reported that he was in a stable and supportive relationship with a partner of five years. He maintains contact with the two children of his marriage, currently aged 16 and 19, and he provides child support to them. The offender's marriage finished in late 2013, which was a very traumatic event for the offender.

26. The offender had a difficult childhood in a dysfunctional, military-style household where he experienced violence at the hands of his father. He described his relationship with his father as "traumatic". The offender's mother suffered from bipolar disorder. Both parents abused alcohol. Fortunately, the offender has always had a close relationship with his sister, who resides interstate.

27. The offender had behavioural difficulties through school, but was a reasonably good student and completed Year 12. Thereafter, he worked primarily in IT sales. On about three occasions, the offender ceased working for extended periods due to mental health problems. He has not worked since December 2013, which was when he separated from his wife. Since the 2016 collision, his source of income has been income protection insurance.

28. The offender has a history of alcohol and substance abuse. From 12 years of age until his marriage breakdown in late 2013, he used alcohol to a remarkably high level. According to his counsel, he consumed up to 30 to 40 standard drinks a day. Following his marriage breakdown - particularly during periods when he was not taking his medication - the offender continued to drink in excess.

29. The author of the pre-sentence report stated that the offender had advised that he consumed up to 12 drinks a day, which prima facie seemed to conflict with other information that he had significantly reduced his alcohol intake. However, I was advised that, in fact, a reduction to perhaps 10 or 12 drinks a day represented a 75 per cent decrease in the previous level of consumption. Nevertheless, it is obvious that consumption of alcohol at that level - and probably for the offender at any level - is indicative of a continuing serious alcohol dependency. It is clear that the offence and most of the offender's ongoing problems are largely attributable to his abuse of alcohol.

30. From his late teens until 2013, the offender was also a heavy cocaine user. At times his level of abuse was considerable. He reported that since 2013, he has not used illicit substances. In 2014, the offender sought some help for substance abuse through Directions ACT.

31. The offender continues to experience very significant physical problems as a result of the collision. His mobility remains limited. For an extended period he required the use of a wheelchair. More recently, he has begun to use a walker and crutches to move about. However, because of the injuries to his leg, his capacity to walk is limited. His muscles are severely deconditioned and he experiences fatigue when walking. He needs to undertake physiotherapy and wean himself from a walking frame to a walking stick. According to his treating orthopaedic specialist, it is possible that, eventually, he will be able to ambulate without walking aids. However, this is far from certain.

32. In addition, as a result of the accident the offender is at risk of bone marrow infection and that risk requires antibiotics on an ongoing basis. He has undertaken a number of surgical procedures and may require further surgery, possibly in the form of a total knee replacement.

33. A problem that is unrelated to the accident is that the offender suffers from sleep apnoea and requires a Continuous Positive Airway Pressure (CPAP) machine while sleeping. The offender is also obese; this condition is, no doubt, related to his sleep apnoea and excessive consumption of alcohol, as well as the fact that his mobility is severely limited.

34. The offender described a reclusive lifestyle involving a lot of television viewing and the substantial consumption of alcohol. He rarely leaves his home, avoiding treatment and appointments for his injuries. The offender stays at home because he feels anxious, ashamed of his appearance and generally physically vulnerable. He experiences frequent suicidal thoughts. However, he does maintain some relationships.

35. In his mid-20s, the offender was first diagnosed with depression. After his marriage broke down in December 2013, he was diagnosed with bipolar disorder and admitted as an inpatient. Currently, his diagnoses are bipolar disorder, alcohol use disorder (severe but in sustained remission) and stimulant use disorder (to cocaine, and severe but in sustained remission).

36. Although the offender is committed to a treatment regime, his mental health is not stable and he is vulnerable to mood swings and associated suicidality, particularly when stressed. The offender says that, if he takes his medication regularly, he is not motivated to self-medicate with alcohol or illicit drugs.

37. The author of the pre-sentence report stated that the offender is at a low to medium risk of future general re-offending, and that his main criminogenic risk factor is excessive alcohol consumption. A forensic psychologist reported that he is at a low risk of recidivism, while also noting the risks associated with alcohol consumption.

38. To prevent further disasters in his life, the offender has made changes to his lifestyle and medication compliance. As mentioned, compliance with the medication regime has reduced his impulsivity and mood fluctuations.

Would full-time imprisonment cause particular hardship?

39. An issue arises under s 33(1)(r) of the Sentencing Act: whether the imposition of a particular penalty would be likely to cause particular hardship to the offender.

40. The particular penalty that is virtually inevitable given the objective seriousness of this matter, is the penalty of full-time imprisonment. Particular hardship arises from a combination of factors.

41. Several years ago the offender was a witness in a trial for murder, which resulted in a conviction and a sentence of life imprisonment for the perpetrator, who is now housed in the Alexander Maconochie Centre. For personal safety reasons, the offender must serve full-time imprisonment in protective custody, segregated from many categories of other prisoners, not just the person against whom he gave evidence. This personal safety concern is exacerbated by the fact that the offender is physically disabled and in no position to resist any violence.

42. The particular penalty of full-time imprisonment will be onerous for the offender because he will need to serve the sentence in segregation and will not have access to the usual resources or opportunities to socialise with others.

43. Both counsel agreed that these circumstances do not enliven s 36 of the Sentencing Act, because, while in its terms it is expressed very broadly, the provision is intended to apply only to post-offence assistance. Nevertheless, as stated above, the assistance that the offender provided pre - offence should be taken into account under s 33(1)(r) of the Sentencing Act.

44. The maximum penalty of 10 years' imprisonment is a critical sentencing parameter.

45. For offences of this type, general deterrence is a very important sentencing consideration. For this particular offence, the primary sentencing purposes are the imposition of adequate punishment, general deterrence, accountability, denunciation and recognition of harm caused to the victim of the offence.

46. The Crown accepts that the purposes of specific deterrence and protecting the community from the offender are of lower significance in this particular case, given that the offender suffered significant injuries himself, such that one would not expect a repetition of an offence of this type or the commission of any serious offence.

47. The Court was referred to a number of cases that were somewhat comparable to the present, although all display significant differences.

48. ACT sentencing courts have had regard to the NSW guideline judgment in R v Whyte [2002] NSWCCA 343; 65 NSWLR 252, where the Court of Criminal Appeal indicated at [215] that, for the corresponding offence in NSW (carrying a maximum penalty of seven years' imprisonment) a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in a case of "momentary inattention": see, eg, R v Ogle (No 2) [2018] ACTSC 126 at [36] (Mossop J).

49. Other cases to which I have had regard are R v Barton [2016] ACTSC 162, R v Guy [2018] ACTSC 270, R v Woods [2017] ACTSC 17, and R v Richardson [2016] ACTSC 133.

50. The sentences imposed by this Court for offences of this type do not demonstrate a clear pattern. However, at least in relation to the matters to which I have just referred, the starting point for sentencing has generally been in the range of 18 months to two and a half years' imprisonment. Most of the cases have involved victim impact of a broadly comparable nature to that in the present case. The culpability of the relevant conduct has varied. A number of the cases have involved much younger offenders, in respect of whom rehabilitation would ordinarily be a more prominent sentencing purpose than it would for an older offender.

51. The offender is convicted and sentenced. The sentence starting point is 27 months' imprisonment. I deduct six months - a little more than 15 per cent - to arrive at a sentence of 21 months' imprisonment from 12 December 2018 to 11 September 2020.

52. Despite the hardship that the offender will experience because of the way in which he will have to serve the sentence, the seriousness of the offence means that he must serve some time in full-time detention. However, the sentence of imprisonment will be suspended after six months, from 11 June 2019.

53. I make an associated good behaviour order for the remaining 15 months of the sentence. The good behaviour order is subject to the following additional conditions:

(a) The offender is to report to Community Corrections within two working days of release;

(b) The offender is to submit to Community Corrections' supervision for as long as they deem necessary, including taking all steps that they recommend for the purpose of addressing his alcohol addiction.

54. I take into account the offender's physical disabilities which mean that he may require a driver's licence for medical reasons. I also take into account the gravity of the offence, the fact that it was caused by alcohol consumption, and that the offender continues to consume alcohol at a high level. In the interests of protecting the community, it is necessary that a significant period of disqualification be imposed. The offender is disqualified from holding or obtaining a driver's licence for a period of three years.

55. In light of the offender's circumstances, I direct that the warrant be noted that:

(a) The offender is a prisoner at risk who requires segregation upon admission;

(b) The offender requires a CPAP machine and antibiotics

56. I further direct that a copy of Dr Duan's letter accompany the warrant.

I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.