R v Coffee, Bradley

JUDGMENT

No one doubts driving at speed is dangerous. Those involved in motor vehicle speeding sports are very conscious of the risks driving at speed poses, that is why their cars are specifically modified to protect the driver and to some extent the vehicle in the event of an impact. That is why they usually all go in the same direction. That is why helmets and protective clothing are worn. That is why tyres are adjusted for the weather. And that is why none of them sit behind the wheel of a car with alcohol in their blood system. Anyone who wants to drive at speed without taking proper precautions is not welcomed in the motor vehicle speeding sports. Trained and experienced speed car drivers would rightly regard such drivers as rogues and a menace.
Bradley Stephen Coffee has no appropriate modifications to his vehicle, was not wearing protective clothing, had with him a passenger wearing neither helmet nor protective clothing. He chose to sit behind the wheel of his vehicle whilst having a blood alcohol reading of 0.204 grams of alcohol per 100 millilitres of blood, and chose to drive at speeds on the streets of Dubbo. His vehicle was involved in an impact, the result of which grievous bodily harm was occasioned to his passenger.
Today he is to be held accountable for his criminal conduct. As sentencing judge it falls to me to determine a number of competing tensions in this matter. Those tensions arise because I have to determine the appropriate sentence for this offence as it was in the community of Dubbo, harming Mr Sommerville in a permanent way for the rest of his life, in an offence committed by this now 24 year old, I think 23 perhaps at the time of the offence. That can only be done by determining what is called the objective seriousness of this offence. Before that can be done, I must assess the facts, make findings of fact in respect of both the offence and the offender.
To some extent my fact finding task has been circumscribed in that the parties have tendered an agreed statement of facts and a number of photographs. I should indicate that I am not a party to those agreed facts but I can only find the facts on the material before the court, and if the facts as I find them to be do not reflect the real situation that occurred, it must be remembered I can only find the facts on the material I have. Those facts are expressed in this way. Facts
Over the course of the afternoon and evening of Sunday 1 February 2009 the offender was drinking alcohol. He told police he had three stubbies of Tooheys Extra Dry at a pub in Wellington. With his friends he returned to Dubbo, buying a carton of beer before going to his house in Elizabeth Street, West Dubbo. The offender told police he argued with his ex-partner, Zoe, over the telephone. He then started drinking beer with his friends as they sat around the backyard.
At about 7.30pm the complainant, Rohan Sommerville, arrived at his home. Sommerville had been friends with the Coffee family for a number of years and was good friends in particular with this offender's younger brother. Sommerville started drinking beer, he had about two or three beers at the house. The offender thought he, the offender, drank about four beers while sitting around outside. He told police that during this period of time he was still on and off the phone with his ex-partner which made him upset.
He told police that at about 10pm he jumped into his car, which was parked around the back of the house. He claimed Sommerville got into the car to talk to him. At some point, perhaps after twenty minutes or so, he decided to go for a drive to clear his head and to obtain a packet of cigarettes. The offender said Sommerville insisted, over his objection, that he would come with him to make sure he was all right.
Sommerville told police that at about 10pm the offender wanted to go for a drive to get a packet of cigarettes, he hopped into the front passenger seat and went with him. The offender drove from his house in Elizabeth Street, West Dubbo to a service station on the corner of Cobra and Fitzroy Streets in Dubbo South where he bought the packet of cigarettes. The offender returned to the car and drove down Fitzroy Street in the general direction of east Dubbo. He turned right into Wingewarra Street. As he did so, he put his foot down on the accelerator causing the back of the car slightly to drift to the side. He continued along Wingewarra Street and travelled onto an adjoining street, Birch Avenue. A vehicle driven by Alison Burns was travelling along Birch Avenue at this time.
Ms Burns was carrying her adult daughter, Leslie Coleman, and her seven year old grandchild as passengers. A hundred metres or so before the roundabout at the intersection of Wheeler's Lane and Birch, Ms Coleman heard the sound of a loud engine approaching from behind. She told police that as her mother slowed for the roundabout, the vehicle driven by the offender drove past them in the outside lane; it should be noted that there are dual lanes on approach to that intersection. Ms Coleman noted her mother had to swerve the vehicle to the right to avoid a collision. Ms Coleman saw the car travelling at a speed in excess of the fifty kilometre per hour speed restriction.
The offender's claim was that the speed he was travelling was no more than sixty kilometres an hour because of a bend in the road, the body roll of the vehicle and because the tyres on his car were "not that good". The offender described seeing a car which he passed on the inside lane, saying "they moved over for me".
Ms Coleman saw the offender drive through the roundabout, swerving between and occupying both lanes. The vehicle appeared to loose control as it left the roundabout hitting the end of the traffic island, spinning around about three times before coming to a stop across the road. Ms Burns drove out around the car but the offender pulled back out in front of her and drove off. Ms Coleman rang the police.
The offender claimed he did a controlled drifted burnout throughout the roundabout. The offender turned off Birch Avenue into Windsor Parade travelling at speed. Smoke was coming from the rear tyres of the car and it fishtailed as it went around the corner and up the road. It sped off.
Ms Coleman and Ms Burns lost sight of the car. The offender told police he drove off after doing a controlled drifted burnout through the roundabout, turning into Windsor Parade whilst doing about one hundred kilometres per hour, losing control and skidding over a traffic island in the middle of the road, before continuing on.
Mr Sommerville told police he began to worry and braced himself. Sommerville could not recall if he said anything to the offender.
The offender told police he sped off down Windsor Parade at about one hundred kilometres an hour before losing control in some bends going up and over a traffic island and on to the incorrect side of the road, before coming to a stop. As they travelled along Windsor Parade some distance behind, Ms Coleman again caught sight of the car as its rear tail lights went up and over the traffic island in the middle of the road.
Windsor Parade runs generally north to south before a large sweeping bend and then running east to west. The prevailing speed limit is fifty kilometres per hour. A person travelling in a southerly direction from the intersection of Birch Avenue would travel through a slight left hand and then a right hand curve prior to a large sweeping left hand bend, and then continuing in an easterly direction. A single lane of traffic is provided for both directions of traffic. The lanes are separated by a raised median strip with a concrete edge and a dirt centre. Trees grow at regular intervals along the centre of the median strip, and to these agreed facts I would add that there appears to be a bicycle lane on the sidewalk side of each of the traffic lanes.
At about this time, that is 10.45 to 10.50, Michelle Payne was in the lounge room of her home at 77 Windsor Parade. She heard a loud crashing noise and went to her front door where lights were shining in her eyes. She saw the offender's car in mid air, it looked as though it was rolling in the air before landing across the road and facing her house. She called Triple-0 and went outside to render assistance. Sommerville extracted himself from the car. He had blood running down his face having been hit in the head with a tyre jack when the car rolled. He felt severe pain coming from his left elbow and hand. He looked to his hand and saw his middle finger had been mangled; it looked like a peeled banana. A number of passers-by had stopped, including Ms Coleman and Ms Burns. The offender, who also got out of the car, refused offers of assistance. He was throwing his hands around in the air saying, "Fuck off, I don't need help."
Police arrived at the scene about 11pm. The offender was standing on a median strip in the middle of the road. Police asked if he was the driver of the car and he replied, "Yeah, so fucking what?" He did not comply with police request to sit down for treatment by ambulance officers, started to swear and became aggressive. He was unsteady on his feet and smelt of alcohol. Both he and Sommerville were taken to Dubbo base hospital. Police spoke to him again; he was still uncooperative saying, "Fucking let me fucking go." A sample of his blood was taken for analysis. As I have already indicated, his blood alcohol content was 0.204 grams of alcohol per 100 millilitres of blood.
Crime scene investigators examined the collision site and vehicle in the early morning and afternoon of 2 February 2009. From evidence on the roadway and damage to the vehicle, the investigator was of opinion that the car had been driven in a southerly direction in Windsor Parade from Birch Avenue, the offender failed to negotiate a sweeping left hand bend and collided with the cement gutter of the median strip in the centre of the road. It travelled along the median strip, breaking off a small tree in the centre of the island. It appears to me from my examination of the photographs to have collided with some part of a safety fence, or a wooden safety fence or guard rail. The car travelled over the island onto the incorrect side of the road before mounting the gutter on the far edge of the road and colliding with that timber railing. The offender came off the gutter, re-entered the roadway still on the incorrect side, rolled at least once before coming to rest on its wheels across on the incorrect side of the road.
A series of photographs numbered 1 to 17 taken on the morning of the collision and photographs 24, 25, 27, 30, 34, 39, 45, 46, 48, 53, 57, 58 and 67 taken later that afternoon, along with their captions form part of the statement of facts. Injuries
The offender told police he received stitches to a cut on his left hand, a broken left rib and swollen left leg as a result of the collision. He lost consciousness before alighting from the vehicle after impact.
Sommerville sustained an eighteen centimetre by eight centimetre degloving injury to his left elbow which went down to the bone joint. His left middle finger which had been mangled required amputation. He also sustained degloving injuries to his left index finger and thumb. He received twelve sutures for a scalp laceration. He underwent surgical operations over the course of a ten day hospital stay where his finger was amputated, skin grafts were taken from his thigh and applied to the elbow and left hand. He was unfit to resume complete normal work duties until the end of April 2009 and documented to police in May 2009 he had difficulties with dexterity due to the loss of his finger. For the first month after the collision he was unable to bath or dress himself. Today he cannot fully extend his left elbow. The series of photographs marked 1 to 9 showing his injuries after treatment form part of the statement of facts; they are marked B.
On 20 May 2009 police attended the offender's home and issued him with a form of demand in relation to the collision. He provided information, as noted above. He said he had seven Tooheys Extra Dry stubbies over the course of the evening. That may well be right, but it has to be added to the alcohol he had earlier consumed that day. He was ultimately served with a court attendance notice in relation to this offence. Objective Seriousness
From the facts as he finds them to be, a sentencing judge is required to assess what is called the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in this driving case with criminality of offences in other driving cases of a similar kind. It is in that way that the objective seriousness of the criminality of this offence is evaluated. That objective criminality has the most important part to play in the determination of the sentence.
So I turn now to assess the objective criminality of this offence. The roads of the State are for the most part owned by one of three levels of government, that is, the Federal government, the State government or municipal government. There is no inherent right to drive upon the roads. They are not the private property of any individual driver only those accorded the privilege of a driver's licence are entitled to drive upon the roads.
Licences are only issued to those who by submitting themselves to tests of their driving skills and their knowledge of the road rules agree to be bound by the rules of the road so that the safety of others who use the roads is assured. Passengers in motor vehicles are properly described as other users of the road. In addition to the road rules the criminal law has also been harnessed to punish those who as a consequence of their driving, when it reaches a criminal standard, cause a vehicle collision or impact as a result of which really serious injury is caused to another person. Driving will reach a criminal standard when the manner of that driving by the offender demonstrates such a serious breach of the proper conduct or management of a vehicle as to be in reality potentially dangerous to another person or persons.
Actual damage does not have to be occasioned to a person for driving to hit the standard of criminality. Your driving had hit that standard when Ms Coleman rang the police to say, something probably to the effect that "there's a maniac on the road", because it was dangerous to others at that point in time. That danger was consummated into reality when you lost control of your car because of the way you were driving. The criminality of this offence has to be evaluated against that background. Many offenders have difficulty understanding that this offence is a criminal offence, as distinct to a driving offence because they did not intend harm to the victim.
From a victim's point of view, of course, he, in this case, did nothing towards the offender that caused this injury to him. It is true the criminal law does have a role to play where offenders with malice do violence to others. But it is also true that the criminal law has a role to play where drivers, through their criminal conduct in the way in which they drive do violence to others, and that is this case. The unlawful conduct of this offender and his driving in a speed and manner dangerous to the public, was criminal because it was an offence against public safety. In this case it resulted in serious violence to the body of a friend of his brother's and probably a friend of his. The criteria by which criminality may be assessed includes, firstly, the seriousness of the breach of proper management or control of the vehicle, and that breach is determined by these things, in this case:
- Failure to keep a proper lookout.
- Failing to observe traffic control signs, signals, such as speed limits and warning signs.
- Failing to remain on the correct side of the road.
- Not being in a fit or proper state to drive, for example, in this case affected by alcohol and anger.
- Absence of or failure to use proper skills.

As I say the submission made that it was merely a lack of momentary attention was well and truly ill-founded. His course of driving on a public street was so sustained and patently dangerous that an objective observer rang police to seek their intervention before he had the final impact. This was hardly momentary inattention. This driving could hardly be described as low on the moral culpability scale. The defence submission to that effect is emphatically rejected.
The known number of persons put at risk by Coffee's driving include the occupants of Ms Burns' car and his own. Photographs 48, 53 and 57 show graphically that Coffee's vehicle was looming through the timber guide rail towards a light pole as it travelled across the kerb on to the wrong side of the road. There was potential for a head on collision. His good fortune was no traffic was coming the other way, it was not a decision he could have avoided to go across that traffic stream. Nor was any bicycle traffic coming in the opposite direction. Thus in terms of real and potential danger to users of the road the threat was palpable. The length of journey to which others were exposed to danger is best measured in minutes rather than moments. On his admission the tyres on his vehicle were not in top order.
Both parties agree, serious as the injuries were, and permanent as their consequences will be, they did not reach that horrific level so frequently incurred in motor vehicle accidents. They do however contribute to the criminality. It should be understood I do not regard them as trivial. Mr Sommerville has been left with life-permanent disabilities. His thumb is disfigured, I have no doubt that his grip is inferior and will remain inferior as a consequence of the loss of his middle finger. His arm, elbow and hand are all disfigured. He was hospitalised. All of this happened to a man who out of concern for the offender, chose to stay with him to support him during his blue period. Whilst the level of injury is serious, it is more modest than it is in other cases. The level of moral culpability in the manner of driving is high. Imprisonment is a sentence of last resort, it is a sentence that should be used when the severest form of punishment known to the law is required, I regret to say that this is such a case. Subjective Facts- Family, Relationships and Background
Bradley Coffee lives with his parents. He is a twenty-four year old single man and father of two children. He experienced a difficult birth after his mother had been in labour for twenty-three and a half hours. He was born blue with the cord wrapped around his neck. His family life he describes as positive, a proposition I am not entirely comfortable with although I have no evidence to the contrary. He complains of bullying at school on account of his red hair. He concedes he was pretty wild growing up. He describes his father as alcoholic. He was sexually abused before he was ten.
Saskia Cowles-Low, a clinical psychologist retained by the defence noted diagnostic criteria taken by him pointed towards the absence of a full history being given by the offender. Since seventeen he has had two different significant relationships, one with the mother of his two children - she, it is said, suffers from anxiety - the other, with a woman whose parents disapproved of him - she, it is said, suffers from bipolar disorder. In respect of both relationships there were tensions including domestic violence issues. His first partner at some point and for some reason stopped him having access to his children which has been a significant stressor for him.
He has a brother, a younger brother, as I understand who was in custody at the time of the offence and is now on parole, that too, that is the brother's custody, was a stressor for him. Skills, Education and Employment
He attended primary schools in Dubbo and Delroy High School but left school before completing Year 10. He has weaknesses in reading and writing. His school reports describe him as inconsistent, easily distracted and lacking application. On the other hand his application in sport appears more dedicated. His target shooting was at a competitive level, winning competitions in Lightning Ridge, Dubbo and Newcastle. He was into bike riding and skate boarding at competitive level, that is skate boarding at a competitive level as I understand it.
He also had a reasonable work history, working for Hydrodata which apparently builds weather stations for cotton growers and later for Dubbo RSL for eighteen months. At the time of the hearing and I assume up to the present he was working at Tom Skinner's dairy farm. General Health
During his first year of life he was prone to middle ear infections, having I think some thirteen during that period. Aged seventeen whilst playing "Tarzan" he hit a tree with such force that he sustained three fractures to his skull. He was submerged in water for what is said to have been four to five minutes, retrieved, hospitalised at Westmead. I have no medical report but the account given to the clinical psychologist records brain swelling, neck brace, collapsed lung and life support and very likely permanent traumatic brain damage. Clearly this was a serious bodily traumatic event with the sequelae a matter of speculation. He sustained a broken ankle eighteen months ago requiring a plate and six screws. Again what, if any, sequelae arose from that is unexplored in the evidence. Mental Health Issues
There are reports of his losing cognitive speed "zoning out" having "psychotic episodes" and being 8/10 as opposed to 10/10 before the brain injury, but the psychological testing does not entirely support those claims, although I do note that the psychologist thought further specialist assistance in terms of assessing the neurological damage, if any, to the brain.
Significantly, and also importantly, there are also reports of suicidal ideation, again not supported by depression levels, which are classified as mild levels of depression symptoms. Nonetheless a watchful eye should be kept upon him, he is in the appropriate age bracket, he is a risk taker and there is a possibility that he has not been completely open, or fulsome, with the clinical psychologist and he will be in an environment that he will not be comfortable in. Drugs and Alcohol Issues
He smoked marijuana from the age of seventeen to nineteen, he says he stopped this when working at Hydrodata. The smoking of marijuana would very much be what is called contra-indicated, or again any advice he could possibly get because it undermines mental health and we are already suspicious of traumatic mental health issues having arisen. He admits significant alcohol abuse and the testing is consistent with "significant binge drinking". I note on the occasion of the impact his conduct was consistent with prolonged session of drinking being interrupted by his proposed journey for some smokes. I assume he was returning to continue with the drinking. His testing shows significant alcohol abuse indicative of hazardous levels of consumption and harmful effects of alcohol. Character and Criminal History
In Cowles-Low's psychiatric report the following personality assessment appears and it seems to me that it is one I am prepared to accept: "The configuration of the clinical scale suggests a person who has a history of acting out behaviours, most notably in relation to alcohol abuse. It suggests impulsivity and drinking problems leading to severe impairment in his ability to maintain social role expectations. He is described as impulsive and thrill-seeking with volatile and short-lived interpersonal relationships. He is described as having a marked need for stimulation and excitement. It was noted that there are problems associated with elevated and variable mood including inflated self-esteem, expansiveness or grandiosity. He was described as overly sensitive in relating to others and is being quick to believe he is being treated inequitably. Bradley also reported periodic and transient thoughts of self harm". Against this profile he has been able to maintain steady employment. He does present through the material that I have read as a person very self focussed and very conscious of issues stressing him, issues such as his former partners and loss of access to his children. His grandfather speaks of him as being a 'good-hearted and reliable lad' who has had his 'ups and downs' in life.
This offender first appeared before the Dubbo Local Court in late February 2007 charged with assault occasion actual bodily harm for which he was given a twelve months s 9 bond. That bond was broken when he re-offended in January 2009 with a possess prohibited drug charge. For that offence he was given a second s 9 bond.
This driving offence occurred after he had been charged with possessing drugs and at a time when he was still on that first good behaviour bond given to him on 27 February 2008. This offence was the second breach of that bond. He had held a driver's licence since April 2006. His driving record between its issue and today is not a happy one. In 2008 there were three offences, using a mobile phone, failing to give way which suggests an earlier collision and failing to display P-plates. In fairness I should note that I have looked at the photograph carefully and P-plates were displayed on the night of the offence.
In January 2009, because of the loss of demerit points there was a suspension of the licence order made to take effect on 5 February 2009, that is four days after the impact. That suspension was intended to last until 4 May 2009. This offence occurred after the offender had received notice of the suspension. The suspension was not in effect, I have noted that, but the notice of its coming into effect had been served. His commission of this offence therefore is aggravated by the commission of it whilst he was on a bond and by his contumelious disregard of the driving laws after he knew his driving had not been satisfactory in 2008 and he had known he was facing suspension for accumulated breaches of the motor traffic regulations to commence four days after this incident. His Attitude To The Offence
This offender's grandfather speaks of him showing remorse, Probation and Parole report notes that he does not dispute the police facts; he accepts his acts were reckless and dangerous. There is no expression of contrition, nor is there anything said to Probation and Parole suggesting any empathy for, or sympathy with Somerville as a consequence of the injuries occasioned by the impact. His account to Cowles-Low seems to be about rationalising his driving because he was upset with his former partner, needing cigarettes, the victim insisted on staying in the car, he was feeling angry on the way home, his brother should not have been in gaol and he was thinking about that.
Motor vehicles in this State are driven by millions of people, many of whom have problems, issues, worries and anxieties, nonetheless they do not drive fifty kilometres above the speed limit. They do not do burn outs with their tyres. He is not accepting responsibility for his behaviour but rationalising it so that others can share his blame.
He described what happened as an accident. The impact was not an accident, it was an event that occurred as a consequence of criminal conduct which resulted in the vehicle being driven in a manner and speed which was beyond his skill to handle. An accident is a regrettable hap-chance. This was not any hap-chance. It was calculated behaviour which resulted in an impact because of his inability to control a car in the circumstances that he, and only he, had created. Bradley Coffee has not yet accepted that proposition. Nor given his own self-focus, does he appear to have any room of recognising, or having compassion for, the man he has caused life-long damage to. Rehabilitation Prospects
I regard his rehabilitation prospects as clouded. By that I mean that I cannot say with any confidence that he will not re-offend in some way or shape again. He has strong family support, he has a good work ethic, both of those are positive rehabilitation indicators, but he has poor insight into his offending conduct, he is a risk taker and his recent history shows that he is not coping well with lawful conduct.
His plea was entered before the Magistrate and I intend, on that account, to give him a twenty-five per cent discount to the sentence I would otherwise would have set.
This is an offence that requires both personal and general deterrence as an element of the sentencing, but most importantly it requires punishment. My understanding is that there have been no days in custody thus the sentence imposed will have to commence from today. But for the plea of guilty I would have set an overall sentence of two years' imprisonment for this driving and impact and injury caused. I discount that figure by twenty-five per cent making an overall sentence of eighteen months.
Would you stand up please. Bradley Stephen Coffee I convict you of the offence of what is called aggravated driving, namely that between 10.45pm and 11pm you drove a motor vehicle, registration number ZKG 558 in a manner dangerous to another person whereby your vehicle was involved in an impact as a result of which grievous bodily harm was occasioned to Rohan Sommerville and where you were driving with a prescribed concentration of alcohol present in your blood. For that offence you are sentenced to a non-parole period of nine months to commence from today and to expire on 6 February 2011.
I find special circumstances, your youth, the first time in custody and, in my view, the importance of you getting back to the community as soon as is reasonably possible, are all factors so that you can do your rehabilitation in a community rather than in the artificial environment of the gaol.
I order your release to parole on 6 February 2011 and I require you to be supervised by Probation and Parole for the parole period. I disqualify you from all driving for a period of eighteen months - as your licence been suspended for all this period, to commence from 2 February 2009 and to expire on 6th May 2011. So you have already served that disqualification period. I assume you have not been driving.

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Cases Cited (1)

Cited By (1)