R v Crane

Facts

Late on 18 January 2022, the offender departed Mudgee for Sydney on the Great Western Highway. He was driving a Toyota Echo. The deceased Bonnie Berrell was in the front passenger seat. During the sentencing hearing, persons attending in the interests of the deceased Ms Berrell, invited the Court to call her by her first name Bonnie. Out of recognition of their suffering and in courtesy for them, I propose to refer to the deceased by her first name Bonnie from this point. Bonnie and the deceased had been acquaintances for some time but friends for only about two months. They were not partners or close friends.
At Wentworth Falls, as the vehicle driven by the offender approached a gentle right-hand bend in the road, the vehicle continued straight and the front-end collided with a concrete safety barrier on the north east corner of Adele Avenue. The relevant section of the Great Western Highway was of sign posted speed limit 60 km/h. Data downloaded from the vehicle revealed that it was travelling at 114 km/h within five seconds of the collision and at 112 km/h at the time the brakes were activated, approximately two seconds before impact. During those two seconds the vehicle decelerated sharply to the point of impact.
Whilst at the collision, at around 1:25am on 19 January 2022, being approximately two hours after departure of the offender and Bonnie from Mudgee, traffic on the Great Western Highway was light but that main road was not vacant. Shortly after the collision, Mr Hayward and Mr Dore, travelling in the in a westerly (opposite) direction came upon the Toyota Echo smashed into the concrete barrier. They reported to 000 and remained on scene until Police attended at 1:30am.
It was raining lightly, streetlights were functioning and visibility was good. The parties agree that driving conditions did not contribute to the collision, nor did driving conditions make the excessive speed more hazardous save that the risks involved with driving at such excessive speed were increased, it being night time.
Obviously, the Toyota was badly damaged. The front of the car was badly crushed. The passenger door was jammed closed. Airbags had deployed. On speaking to the offender, Police noticed that his eyes were heavy, and he appeared to be affected by drugs. They observed him to be disorientated, drowsy and barely maintaining consciousness. About 7 metres from the Toyota, police located a sharps box containing used syringes and empty small clear resealable plastic bags. On searching the Toyota vehicle police located a pack of syringes, plastic spoon, and small empty resealable bags.
Police observed Bonnie to be in a state of distress, drowsy and she would not open her eyes. She was lapsing in and out of consciousness. When asked about any injuries, Bonnie responded that she needed to get out of the vehicle and banged her hand on the window.
The offender was concerned about Bonnie and asked paramedics about her condition. He was cooperative with paramedics. He denied loss of consciousness or blackout but was unable to explain the events leading to the collision.
Fire and Rescue as well as Ambulance paramedics attended and provided assistance. Following removal of the front passenger door and initial examination of Bonnie whilst in the Toyota vehicle, she was provided immediate transportation with pelvic binding and C-spine collar. Paramedics assessed her tenderness and marked distension of abdomen as indicating significant internal injuries. On route to Nepean Hospital, due to her injuries, Bonnie became agitated and aggressive, attempting to punch and spit on paramedics. She dislodged her cannula. She went into cardiac arrest. Bonnie was triaged at Nepean Hospital at 2:54am and was pronounced life extinct at 3:55am. On removal of her clothing at Nepean Hospital, a quantity of drugs, needles and syringes were located in her bra.
Following autopsy on 25 January 2022, it was determined that multiple injuries caused Bonnie's death. Major injuries suffered by her included: rib fractures, lung contusions, pneumothorax and haemopericardium, possible splenic and liver lacerations, haemoperitoneum, extensive dehiscence of the left lower anterior abdominal wall with extraperitoneal herniation of bowel, multiple lumbar transverse process fractures and a fractured left talar bone (ankle). Toxicological examination of Bonnie's blood post-mortem showed methylamphetamine in a high, potentially toxic to lethal level and amphetamine in a non-toxic level. Cannabinoids were also detected.
The offender was also conveyed to Nepean Hospital. Analysis of his blood sample revealed amphetamine 0.07 mg/L; methylamphetamine 0.77 mg/L and morphine (free) 0.008 mg/L. The presence of amphetamine was as a result of the metabolism of methylamphetamine in the offender's liver and indicates repeated use of methylamphetamine in the day or days prior to the collision. A pharmacologist/pharmacist of the Impaired Driving Research Unit, on 16 May 2022, certified that at the time of driving the offender was under the influence of methylamphetamine to the extent that his ability to drive was significantly impaired and that "the offender's blood level of methylamphetamine is well into the reported toxic range and potentially fatal range, and is highly suggestive of recent use of the drug most likely within 12 hours of the blood sample". Further, that the observations of the offender made after the collision are "consistent with the repeated use of methylamphetamine, as expected during a 'run' and the signs shown shortly after the collision indicate there to have been onset of significant rebound sedation due to methylamphetamine withdrawal".
Following police investigation, it was determined that mechanical defect, roadway condition and environment (weather and light) were eliminated as contributing factors to the collision. The sole cause of the collision was the offender's driving. When police attended the offender at Nepean Hospital on 24 January 2022, he was forthcoming both as to his remorseful acknowledgement of his responsibility for the death of Bonnie and as to his intoxication during the following conversation: Offender: "Will I be charged with killing like passenger?" Senior Constable Rugendyke: "I'm not sure. My job is to get all the evidence and make a determination. I'll look for mechanical issues with the car, phone usage, your blood will be tested." Offender: "My blood will be dirty." Police: "so, you said your blood will be dirty?" Offender: "there's a high chance it will be."
On 10 February 2022, the offender was arrested at the time of his release from Lithgow Hospital. He was conveyed to Lithgow Police Station where he was entered into custody. The offender advised that he did not wish to participate in an electronically recorded interview but agreed to comply with his obligations under Rule 287 of the Road Rules 2014 (NSW) and confirmed that he was the driver of the Toyota Motor Vehicle when it was involved in the collision. The offender has remained in custody since his arrest.
As a result of injuries received in the collision, the offender underwent three surgeries in treatment for fractures to both legs and an injury to one of his wrists. When taken into police custody on 10 February 2022, he was restricted to a wheelchair due to his injuries. I recognise that the offender will have suffered greater hardship during incarceration than for another prisoner as his injuries were treated and healed.
From the Sentencing Assessment Report ("SAR") dated 2 August 2023, I note particularly the following:

The offender lives alone in a Wentworth Housing Unit in Lithgow.
The offender is supported by his mother and stepfather with whom he maintains regular telephone contact.
The offender maintained regular employment until lastly employed as a coalminer in 2015.
The offender is in receipt of the New Start Allowance.
The offender's offending shows an escalation in seriousness when compared with his earlier offending.
The offender recognises that drug use and mental health are risk factors in his offending behaviours.
(As the parties agree) The offender acknowledged responsibility for the incident and the death of Bonnie (his comment that she grabbed the steering wheel is agreed not to mean that she contributed to the collision).
The offender acknowledged that his drug intake impaired his judgement resulting in him not recognising his driving was at a dangerous speed and that his decision to drive whilst intoxicated contributed to the loss of Bonnie's life.
The offender has a history of drug use since the age of 22 years and was using approximately half a gram of ice daily leading up to the offence.
Drug dealing funded his drug use.
On the night leading to the offence, he increased his intake and injected between two and three points of ice.
The offender used ice to self-medicate and was not compliant with his mental health medication.
The offender is responsive to the impact of his offending including displaying insight and concern for trauma suffered by Bonnie's family due to the loss of her life as well as recognising the impact of his offending on his own family.
The offender has been diagnosed with schizophrenia, post-traumatic stress disorder ("PTSD") and attention deficit hyperactivity disorder ("ADHD").
One month prior to the offence the offender engaged with his mental health team regarding his concerns around his mental health. He reported experiencing auditory hallucinations through the television and radio.
The offender acknowledged his need to comply with his mental health medication regime and his need to do so in order to remain stable in the community.
Whilst in prison, through Justice Health he is receiving a depot injection and oral medication to treat his schizophrenia and PTSD.
The offender is willing and able to undertake intervention if directed to do so by Community Corrections and willing and able to complete community service work.
The offender's performance had been unsatisfactory at times during earlier periods of supervision in the community by Community Corrections when subject to various orders including Community Corrections Orders, a s 9 Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) Act Good Behaviour Bond and Community Service Work.
When compliant with the treatment regime for his mental health, the offender was "able to engage with Community Corrections satisfactorily".

The Defence tendered past medical records (Exhibit 1) evidencing the offender's mental health and illicit drug affected lifestyle. Whilst that is not contested by the Crown, the documents provide some substance in context as follows:

On 28 March 2019, on examination at Lithgow Hospital Emergency, he was found to be mentally disordered, agitated, restless with paranoid thoughts of "doctors" (GP) are working with the police to stop me getting help". He was assessed as suffering a drug induced psychosis and admitted as an Involuntary Inpatient to the Nepean Mental Health Centre, Nepean Hospital.
On 12 January 2021, the offender's mother contacted his treating psychiatrist, Associate Professor Gurr because he was showing disturbed behaviour consistent with his abusing ice again and he had left the family home after more than one year of abstinence from drugs. On 21 January 2021, Police and Ambulance attended the offender in the Aldi car park, Lithgow, he having texted his father that he was going to hang himself and following a previous suicide attempt. Lithgow Police caused him to be conveyed to Lithgow Hospital to be dealt with under the Mental Health Act 2007 (NSW), rather than in accordance with law. At hospital (Nepean Mental Health Unit) on 22 January 2021, it was recorded that his suicidal ideation included him having actually made a noose. He was assessed as "mentally disordered" for the purposes of the Mental Health Act 2007.
The offender's mental health is further informed in relation to the subject offending in the Report of Ms Leesa Morris, forensic psychologist, dated 31 July 2023. A combined reading of the Report of Associate Professor Gurr, consultant psychiatrist, dated 12 January 2021 and of Ms Morris' Report informs of the following: 1. As a child the offender was treated for his ADHD with stimulants and when that treatment stopped he found the drug ice relaxed him. He attended Associate Professor Gurr in October 2021 requesting a restart of stimulant medication. 2. The offender had remained abstinent from abuse of drugs for more than one year up to 12 January 2021, "doing very well" with no symptoms or signs of schizophrenia, when it was decided to agree to his request to slowly reduce his injection medications following which reduction, he suddenly became psychotic again and returned to his pattern of abuse of the drug ice. 3. Ms Morris, consistently with the assessment by the author of the SAR, observed the offender to be insightful and with a good understanding of the path that led him to his offending. 4. Taking his history and his diagnoses of post-traumatic stress disorder and attention deficit hyperactivity disorder into account, Ms Morris assessed him to be a Moderate Risk of reoffending. 5. The offender described his upbringing as "OK, a bit rough", because he did not get along with his stepfather who was violent toward him but not to his siblings. 6. The offender left home at 17 years of age. 7. The offender only met his biological father when he was a teenager and learned that he had been diagnosed with ADHD, dyslexia and alcoholism. 8. The offender was educated to year 10 achieving "D" grades and recalled his attention and behavioural issues in primary school and his particular difficulty with mathematics. 9. The offender reported "… participating in 'a lot' of risk-taking activities including 'driving around and drinking', as well as leaving home without notice on 'one or two occasions' when he 'went to Nan's house' following arguments. He received suspensions for fighting" during his school years. 10. The offender was in a significant relationship with a partner between the ages of 22 and 33 years. 11. From that long-term union he has a daughter who is now 9 years of age. 12. It was on the "nasty" breakdown of that long-term relationship that he recommenced using drugs. 13. The offender speaks to his daughter every Saturday whilst he is incarcerated. 14. Prior to being incarcerated the offender saw his daughter during school holidays when he would go and stay at his mother's house. 15. The offender commenced using alcohol at 12 years of age and regularly consuming it by 16 years of age including binge drinking until he was 30 years of age, marijuana from age 16 years and began swapping alcohol for drugs "because of hangovers" at around 21 years of age. He used "ecstasy and speed mostly" but because of availability transitioned to ice (crystal methamphetamine) from between 32 to 33 years of age after the birth of his daughter. 16. The offender has abstained from crystal methamphetamine use for more than one period of a year and after attending a four week drug and alcohol rehabilitation program in 2019 and 2020 had abstained, "only [returning] back on drugs for 12 months" prior to the subject offending. [Note: this is the January 2021 event described in the clinical notes and the report of his treating psychiatrist, Associate Professor Gurr (above)]. 17. The offender informed Ms Morris that the subject motor vehicle accident had been a "big curveball" and that "I don't think I'll do drugs ever again". 18. The offender informed Ms Morris that he had completed the "Connect" program while on remand and has enrolled in the "Addictions" program. 19. The offender's father is a Wiradjuri man but the defendant informed Ms Morris "I don't identify" and denied any interest in taking part in cultural activities whilst incarcerated. 20. The offender informed Ms Morris that his future plans, when released, include "sitting on a beach with my daughter, having a swim."

It is not contested that the offender suffers ongoing pain and disability consequent of the injuries he suffered in the motor vehicle accident and which injuries may diminish his future opportunities for manual employment.
For the purposes of sentencing, that the offender has on three occasions previously driven with prescribed concentration of alcohol in excess of lawful level and on two occasions driven whilst disqualified as well as offences typically drug-related including possessing a knife in a public place and entering a dwelling house with intent to steal as well as drug possession offences. The subject offending is noticeably not his first offence of excessive speeding above the posted road limit; the record shows his participation in a lifestyle of driving whilst intoxicated, habitual intoxication (conceded) and a disregard for the law. That he was repeatedly dealt with by way of bonds, Community Corrections Orders and one Periodic Detention Order, in my view, disentitles him to leniency of sentencing in relation to the subject serious offending.
That the s 5 CSP Act threshold has been crossed and that no alternative sentence to full-time imprisonment is appropriate, is conceded by the offender.

Submissions

To a large extent, the parties were in agreement as to the objective and subjective considerations in the synthesis of sentencing. They acknowledged that the guideline judgment of R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 has application. Further, that whereas in Whyte, the offending was under s 52A Crimes Act, the subject offending under s 52A(2) includes the element of aggravation of drive at a speed at or in excess of 45km/h above the speed limit, for which the statutory goalpost of maximum sentence is the more serious 14 years as opposed to 10 years. In addition, the parties agree that the offender's significant impairment due to methylamphetamine intoxication at the extremely high level of toxic and potentially fatal range, is a significantly aggravating circumstance to be taken into account in accordance with that guideline judgement. The following considerations were common ground or not contested:

Whilst the offender drove in a high state of intoxication over two hours and over a substantial distance, there is no evidence of deliberate, reckless manner of driving other than, and the evidence of excessive speed is, during approximately five seconds before impact.
The road was quiet but it was a main regional arterial highway and approaching motorists were not far off.
The offender was not young.
The offender's antecedent record shows him not to be a person of good character.
The offender's antecedent record shows a history of like offences including multiple breaches of the speed limit, prior excessive speed offences and prior driving whilst intoxicated offences.
That the offence occurred whilst the offender was subject to a Community Corrections Order and that he was driving whilst license suspended, are aggravating factors of the offending.

I accept that the commonly put above observations are accurate on my consideration of the evidence. Those points were put, to efficiently present the Court with the case for consideration under the guideline judgement R v Whyte.
That the offender was 39 years of age is not the frequently recurring factor of a young offender, observed in Whyte. That he was more mature is an aggravating factor. Whilst general deterrence may be less prominent in the sentencing synthesis for him than it might be for a youthful offender because young men perceive themselves as "bullet-proof" (SBF v R [2009] NSWCCA 231 at [151]); nevertheless, general deterrence is a dominant factor on sentence, particularly because of the importance of deterring those who might choose to drive long distances at night at speed on a highway whilst substantially intoxicated. In that sense, the offender's maturity of 39 years provided him with greater experience of life to more appreciate the risk he was taking than would the experience of a youthful offender.
That he was not of good character and his antecedent history is littered with convictions associated with driving without regard for the rules of the road and with illicit use of drugs, again is an aggravating factor.
Bonnie was not a stranger, but a friend; however, particularly given his acknowledged remorse from the time of the collision, including expressing to ambulance officers his concern for her welfare; that she was not a stranger as is the frequently occurring fact recognised in R v Whyte, in my view, weighs heavily on the offender and is not an aggravating factor.
That the offender suffered significant injuries, again not one of the frequently recurring factors observed in R v Whyte, is a mitigating factor in the sense that the offender suffered a form of extra curial punishment from his own wrong. He suffered fractures to his pelvis, foot, left leg, left ankle and left hand and after 22 days in hospital, was taken into custody in a wheelchair. Defence counsel submitted, without opposition from counsel for the Crown, but in the absence of medical evidence supporting the claim, that the offender continues to experience ongoing discomfort whilst incarcerated. Whilst generally accepting the Defence submission, I reject the argument in Defence Written Submission at [4.4] (MFI 2) that the offender's current admission to Long Bay Prison Hospital is related to an injury resulting from the collision. Given his mental health history, that would appear to be a most unlikely proposition and there is no evidence to the contrary. During oral submissions, this latter point concerning admission to the Long Bay Prison Hospital, did not appear to be pressed: T 17. 40.
That the offender was immediately deeply and genuinely remorseful, being a frequently recurring fact observed in R v Whyte, is not contested in this case. A mitigating factor is that the genuineness of the remorse was immediately expressed by his requests of the ambulance officers whilst he himself was very seriously injured. His acceptance of responsibility is not contested. That he told the author of the SAR that Bonnie grabbed the wheel, is not described in evidence as if he was attributing any blame to her - as Defence counsel submitted, the offender did not make that statement with an expression of her contribution to loss of control of the vehicle. The offender's acceptance of responsibility was shown in his cooperation with police by informing them that his blood sample, taken at hospital, would be "dirty". Ms Morris, psychologist, reported the offender's remorse. Crown properly conceded that the offender's early plea of guilty indicated his remorse and I would add that it was in keeping with his acceptance of responsibility and remorse from the time of the collision. His plea of guilty was of limited utilitarian value. A plea of guilty is a frequently recurring factor in such cases observed in R v Whyte.
Again, applying the R v Whyte inexhaustive list of considerations and whilst his excessive speed was an inherent element of the offence to which he pleaded guilty; the offender's intoxication is an aggravating factor. Police observed his eyes to be "heavy". Expert pharmacological evidence is that he was "significantly impaired" by a blood level of methylamphetamine at a "toxic range and potentially fatal range" and that what Police observed of him soon after the collision was the "onset of significant rebound sedation due to methylamphetamine withdrawal". The Defence presses that there is no specific evidence, including expert evidence, of the level of contribution by effect of his driving with that intoxication, but concedes that his driving was substantially affected. In my opinion, that evidence, beyond reasonable doubt, infers that his driving was substantially, in a high level, affected. In my opinion, that inference is consistent with his having hit the concrete barrier in a situation of only a gentle right hand bend, in the absence of environmental or mechanical contributing factors and his being unable to recall the course of his driving leading up to the collision. Intoxication was a significantly aggravating factor. That said, and again returning to the frequently recurring facts observed in R v Whyte which should be identified as aggravating features, I acknowledge that there is no evidence of erratic or aggressive driving, competitive driving or showing off, escaping police pursuit, sleep deprivation or failing to stop; however, as I have already stated, the offender had driven for approximately two hours whilst so intoxicated and that is an aggravating factor.
The Defence conceded the point of law appropriately stated as follows in Crown Written Submission (MFI 1) at [9]: "It was noted in Whyte that for offences under s52A(1) … for the "typical" case identified, where the moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) … would not generally be appropriate; [229]. In the case of the aggravated version of each offence (as is the case in this matter), an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required; [231]."
I note the statutory goalpost for offending under s 52A(1) is a maximum term of imprisonment of 10 years; whereas, for the subject offence under s 52A(2) the maximum penalty is imprisonment for 14 years. The just quoted passage from Crown submissions applies such that the statutory goalposts signal the significantly greater seriousness of the aggravated dangerous driving occasioning death offence, presently under consideration, from the offence of dangerous driving occasioning death, under s 52A(1).
Given the aggravating factors identified in these reasons, I agree with and find appropriate the Defence concession of the correctness of the Crown's submission that the objective seriousness of the offending was above the mid-range. Of greatest aggravating effect are that the offending occurred whilst the offender was subject to a recognisance, and that he was so highly intoxicated. The offender's antecedent criminal and driving history disentitles him to a leniency which might have mitigated the sentence of a "typical" offender as identified in R v Whyte (that being a person of good character). Further, his extreme level of intoxication with which, despite his experience of life, he chose to drive a long journey on a major highway; resulted in him suffering a sedative affect during which he reached a speed of 54km/h above the posted speed limit and lost control of the vehicle without contribution of anything but his choice to drive intoxicated to a point of a toxic and potentially fatal range.
Subjective considerations include that the offender was raised in a rough family environment within which he was exposed to physical violence at the hand of his stepfather, he left school following year 10 and suffered from ADHD from an early age. The law recognises that such deprivations during childhood and adolescence are of continuing effect in regard to decision-making. Compounding on top of that are his diagnoses of schizophrenia, PTSD and ADHD. In her summary, Ms Morris, forensic psychologist, reported on 31 July 2023 those circumstances. She separately observed the diagnoses of schizophrenia made in about 2018 to 2019. Her summary was: [1.1] "Mr Crane presents as an insightful man who has a good understanding of the path that led him to his current circumstances. He has pre-existing untreated psychological conditions of complex Posttraumatic Stress Disorder and Attention Deficit/Hyperactivity Disorder. The behaviours associated with the latter were met with physical abuse, leading to the former, which was added to by the motor vehicle accident. Largely as a result of his unaddressed psychological and substance use issues, Mr Crane is considered to be at a Moderate risk of reoffending."
Whilst his mental health did not inform the offending in that it was not a contributing cause to the offending; indirectly and as recognised by the Crown during submissions, the association between schizophrenia and methylamphetamine addiction is well-known. This is a life hardship, again, to some extent mitigating his subjective moral culpability for the offending.
Ms Morris reported that the offender continues to experience intrusive memories and distressing dreams both about the crash and nightmares about being in trouble as a child. It will be remembered that he experienced a rough upbringing with his violent stepfather of which Ms Morris explained as attention which his siblings did not receive. In her opinion, his ADHD behaviours, which got him into trouble at school and so on, were met with that physical abuse. To some extent, the circumstances of this offence have worsened his PTSD symptoms, requiring him to be medicated against those ruminations and thereby, with ongoing symptoms of his physical injuries, he experiences what Defence counsel called extra curial punishment. In January 2021, his treating psychiatrist, Associate Professor Gurr, reported that there had been a "close association between his diagnosis of schizophrenia and his abuse of the drug ice": Exhibit 1. I consider this a special circumstance of significance but not of great mitigating affect in the sentencing process.
I do consider the offender's ongoing schizophrenia, in combination with those mental health ailments, conditions which will result in him suffering greater hardship than a normal prisoner during incarceration. The Defence offered this submission, and the Crown acknowledged it. The offender is entitled to some mitigation of sentence on account of that special circumstance.
The offender's prospects for rehabilitation was a contested issue. The author of the SAR assessed his risk of reoffending at Medium-High. As I have quoted above, Ms Morris assessed it as Moderate. The Crown points to the offender's history of involvement with drugs and disobedience of the law, including breach of recognisances and put that his prospects of rehabilitation should be assessed as poor. The Defence submits that his antecedent offences were generally not of serious offending; that until approximately 2015 he had held down solid employment and on release would enjoy prospects of employment subject to the effects of his ongoing injuries; and that he has an incentive to live a law-abiding lifestyle under appropriate treatment for his abuse of drugs and for his mental health issues, being his want to participate in the life of his young daughter.
That the offender's daughter remains in regular contact with him after more than one and a half years' incarceration, gives strong objective support for his incentive to be a father to her on release. In an early part of these reasons I referred to the objective evidence of clinical notes contained within Exhibit 1 which confirmed that in order to then attempt to manage his mental health and live abstinent from abuse of illicit drugs, in January 2021, he had been living with his mother and attending appropriate care for his mental health under the guidance of Associate Professor Gurr, by which direction of life he had achieved more than one year abstinence from abusing drugs. It was an attempt at reduction in his medication which caused him to lapse into drug use, self-medicating for his ADHD and schizophrenia, and to be an involuntary admission in the Lithgow Hospital Mental Health Unit at that time. Consistent with that history, the offender informed Ms Morris that he had achieved "one-year breaks from crystal methamphetamine use 'here and there'", he attended a four-week drug and alcohol rehabilitation program between 2019 and 2020 and that he had only "been back on drugs for 12 months" prior to the motor vehicle collision the subject of this offending. He further informed her that he had not used illicit substances since the offending: Exhibit 1, particularly the Report of Associate Professor Gurr, dated 12 January 2021 and report of Ms Morris at [8.4]. Since being taken into custody, the offender has completed the "Connect" program while on remand and has enrolled for the "Addictions" program.
In my opinion, the offender's history shows his making significant life choices including moving in to live with his mother and complying with appropriate treatment for his mental health and drug use which indicates a long-term held motivation to change his lifestyle from the drug abusing and mental health complicated circumstances which led to the subject offending and which lifestyle is reflected in his antecedent criminal history. This is his first experience with full-time incarceration. Particularly given that background and his genuine remorse for and appreciation of the tragedy of the loss of life of Bonnie, his statement to Ms Morris that the motor vehicle accident had been a "big curveball" and that he did not think that he would ever do drugs again, was a reasonable and honestly stated position of intention for the future. He has said that he intends to live in the Lithgow area, close to his mother and with access to his daughter on release. I accept that the incentive of being an active father for her motivates him to rehabilitate himself. That the experience of this offending and the consequent incarceration has been a "curveball" is reflected in his taking the early opportunity of rehabilitative courses. In my opinion, the offender being 39 years of age but having held down a reasonable history of gainful employment until eight years ago, is supportive of him having had the experience and being able to appreciate the benefits of a gainful lifestyle. I say this whilst observing that he wasted that opportunity in the past as shown in his antecedent record. In my opinion, his prospects of rehabilitation should be assessed as good whilst significantly guarded. By this I mean that I accept that he is motivated to and will want to rehabilitate but that his history has been expertly assessed by the author of the SAR and by Ms Morris to indicate at least a moderate if not a high risk of recidivism.
On balance, in my view, appropriate sentencing requires mitigation on account of reduced subjective moral culpability consequent of the deprivations of his childhood, and the extra hardship which he is likely to experience whilst incarcerated compared to that of another prisoner. In my view, the exercise of the synthesis of appropriate sentencing, justifies adjustment of the non-parole/parole ratio to afford the offender the opportunity of reintegration into the community by way of compliance with a appropriate Mental Health Plan, abstinence from use of illicit substances and in the interests of the community, to afford him the opportunity of rehabilitation.
Pursuant to s 3A CSP Act, for this serious offending, there must be adequate punishment and, I repeat, a sentence which will deter not just the offender from future offending but other persons from committing dangerous driving offences and in particular driving whilst intoxicated. In these ways, the sentence and specifically the non-parole period must be sufficient to protect the community from the offender. The parole period should promote his opportunity for rehabilitation. His sentence should not just denounce his offending conduct but to make him accountable for his offending which caused the death of Bonnie. Offending of this type requires a sentence which recognises the harm done not just the loss of life but harm done to Bonnie's family and to the community.
In addition to the statutory goalposts, I have considered sentences in other cases and the Judicial Commission of NSW, Judicial Information Research System Statistics ("JIRS Statistics"), mindful of the need for comity of sentencing and as yardsticks of sentencing patterns for this type of offending. Naturally, individual sentencing is required, and every case is different as to its facts. Whereas the JIRS Statistics helpfully provided by the Crown are for aggregate sentencing, I have utilised the statistics for the subject of offending under s 52A(2) only and for cases in which pleas of guilty were in play. Arithmetically, 50% of offenders were sentenced to a term of between 3 years and 4 years, 6 months and approximately 50% to imprisonment of between 5 and 8 years. In Norouzi v R [2020] NSWCCA 237 (Payne JA, Walton and Fullerton JJ), the offender received a discount of 20% on plea (in this case it is 25%) having caused death by exceeding the posted speed limit by driving at 141km/h 2.5 seconds before impact and 117km/h 0.5 seconds before impact. His Blood Alcohol Concentration was 0.0666 and cannabis was also detected. He was 32 years of age. He was not entitled to leniency on account of his antecedent criminal record including the offence of knowingly drive in a menacing manner as well as speeding and drug-related offences. He suffered significant depression and anxiety and became suicidal after the offence. He was extremely remorseful. The offending was assessed to be above mid-range. He was sentenced to 6 years and 4 months imprisonment with a non-parole period of 4 years and 6 months and was disqualified from driving for 5 years on release. In R v Meakin [2019] NSWSC 1555 (Hidden AJ), following a discount of 12.5% for a late plea, the offender who had killed a pedestrian whilst driving with a Blood Alcohol Concentration of 0.15 and was not exceeding the speed limit but who had failed to take avoiding action when the pedestrian stepped onto the road and then did not stop to render assistance, was sentenced to 7 years imprisonment with a non-parole period of 4 years as well as a disqualification period of 13 months on release. He was 45 years of age and had drunk 16 schooners of beer before driving. In R v Polutele [2020] NSWDC 33 (Harris DCJ), following a 25% discount for early plea, the offender was sentenced to 3 years and 3 months imprisonment with a non-parole period of 1 year and 10 months and disqualification on release of 3 years. When driving at 108km/h in a marked 60km/h zone he hit and killed a 19-year-old cyclist at 9:20pm. There was no involvement of intoxication. The offending was assessed at below the mid-range. The offender was 26 years of age, with a relatively good prior driving record but at the time of the offending was on a bond for a road rage offence. He was genuinely remorseful, of good character and suffered anxiety and depression at a level requiring medication. In R v Munro [2019] NSWDC 743 (Hatzistergos DCJ), following a 25% discount for early plea, the offender was sentenced to 3 years imprisonment with a non-parole period of 1 year and 4 months and disqualified from driving on release for 3 years. When driving at not less than 152km/h in a 100km/h speed zone, his vehicle became airborne before colliding with a tree and his ex-partner, the mother of his children, was killed. There was a background of an Apprehended Violence Order against the offender protecting his ex-partner. His blood test was positive for 0.14mg/L of methylamphetamine and 0.02mg/L of amphetamine. His Honour considered that his ex-partner's death was a form of extra curial punishment which reduced the need for general and specific deterrence. He was assessed as of a low risk of reoffending and special circumstances were found.
In my opinion, the appropriate sentence for the subject offending, after allowing a 25% discount for early plea, is full-time imprisonment of 6 years and 6 months. It is appropriate to set a non-parole period of 4 years and 6 months. The commencement date is to be backdated 1 year, 6 months and 6 days (552 days) to the date of his arrest on 10 February 2022. In determining that commencement date, I reject the Defence argument that the commencement of sentence be backdated to the time of offending on 19 January 2022 on account of his being hospitalised between that date and his arrest. There was no evidence of any restraint or detention in that period. He was a voluntary patient in hospital. He was not guarded by Police, as would have been the case had he been placed under arrest whilst in hospital. Accordingly, his time spent in hospital was no different to as it would ordinarily be consequent of him receiving his injuries as he did.

At a glance

Court

Decision date

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (7)

Cited By (1)