R v Guy [2018] ACTSC 270

Sentenced to two years and three months' imprisonment, with a non-parole period of 13 months and two weeks.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - culpable driving causing grievous bodily harm - drive motor vehicle without consent - objective seriousness of the offences - sentencing purposes - general deterrence - specific deterrence - separate charges treated as aggravating features to the principal offence

Crimes Act 1900 (ACT) s 29(4)

Crimes (Sentencing) Act 2005 (ACT) ss 7, 35

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

Road Transport (Driver Licensing) Act 1999 (ACT) s 32(1)(a)

Road Transport (Road Rules) Regulation 2017 (ACT) s 56(1)(a)

Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 5C

Supreme Court Act 1933 (ACT) s 68E

Chifuntwe v Gardiner [2012] ACTSC 136

Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80

R v Barton [2016] ACTSC 162; 77 MVR 97

R v Richardson [2016] ACTSC 133

Legal Aid ACT (Offender)

SCC 208 of 2018; SCC 209 of 2018

1. The offender is to be sentenced for two offences that occurred on 20 May 2018:

(a) Culpable driving by negligence (driving at an excessive speed) causing grievous bodily harm to Ms Richards. This is an offence against s 29(4) of the Crimes Act 1900 (ACT) which carries a maximum penalty of 10 years' imprisonment and a minimum disqualification period of 24 months.

(b) Drive a motor vehicle without consent. This is an offence against s 318(2) of the Criminal Code 2002 (ACT) which carries a maximum penalty of five years' imprisonment and/or fine.

2. The following charges relating to the same incident were transferred under s 68E of the Supreme Court Act 1933 (ACT):

(a) As a repeat offender, drive a motor vehicle and fail to comply as soon as practicable with a police officer's signal to stop. This is an offence against s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) which carries a maximum penalty of three years' imprisonment and/or a fine and 12 months' disqualification.

(b) As a repeat offender, drive while disqualified. This is an offence against s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) which carries a maximum penalty of one year's imprisonment and/or a fine and 24 months' disqualification.

(c) As a repeat offender, drive with a prescribed drug in his blood. This is an offence against s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) which carries a maximum penalty of three months' imprisonment and/or a fine and an automatic disqualification period of 24 months.

(d) Fail to stop before the stop line at a red light. This is an offence against s 56(1)(a) of the Road Transport (Road Rules) Regulation 2017 (ACT) which carries a maximum penalty of 20 penalty units.

3. The offender has been in custody since his arrest on 20 May 2018.

4. On his second and third appearances before the Magistrates Court (14 and 28 June 2018), the offender entered pleas of guilty to most charges. The culpable driving charge was laid after the other charges. On 9 August 2018, the offender pleaded guilty to that charge and he was committed to the Supreme Court for sentence. The prosecutor accepted that all pleas were entered early.

5. Pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), I propose to discount the sentences that I would otherwise have imposed by 25 per cent to recognise the significant utilitarian value of the pleas.

6. Between 15 and 16 May 2018, a blue Mazda 121 vehicle was taken from a carport in Narrabundah, ACT.

7. At about 10:00 PM on 20 May 2018, police observed the vehicle travelling east on Hindmarsh Drive, Philip, above the speed limit of 60 km/h. As the police vehicle approached within 20 m of the vehicle, police activated emergency lights and sirens and flashed the high beam lights of their vehicle, indicating that the blue Mazda vehicle should stop.

8. The offender was driving the Mazda. On seeing the police, he panicked. He did not stop the vehicle, but continued along Hindmarsh Drive at an increased speed of not less than 100 km/h in an 80 km/h zone. When the Mazda approached the intersection of Hindmarsh Drive with Yamba Drive, police deactivated their lights and signals and pulled over to the side of the road. The Mazda continued, turned left at Yamba Drive and proceeded north. The offender's then partner, Ms Richards, was in the front passenger seat.

9. The offender drove the Mazda through a red light at the intersection of Yamba Drive and Kitchener Street. The Mazda collided with a Subaru Forrester that had been proceeding through the intersection in accordance with a green light. After colliding with the Forrester, the Mazda hit a nearby pole at a speed of approximately 90 to 100 km/h.

10. The police who had attempted to stop the offender travelled north along Yamba Drive. They arrived at the site of the collision.

11. The offender was conveyed to Canberra Hospital, where methylamphetamine was detected in his blood. The quantity is unknown. The offender had a fractured ankle and an injury to the ligaments of a knee joint that required surgery.

12. At the time of the incident, the offender was a disqualified driver. He had held a provisional licence, which expired on 9 May 2017. On 7 February 2018, he was disqualified by Special Magistrate Hunter from holding or obtaining a driver's licence for a period of two years.

13. Ms Richards did not provide a victim impact statement. Consequently, the Court has significant information about the immediate injuries caused by the accident but limited information about the medium to long-term consequences for Ms Richards.

14. At the scene, Ms Richards received active resuscitation. She was conveyed by ambulance to Canberra Hospital with life threatening injuries and massive blood loss. Resuscitation continued at the Hospital. She received a one gram transfusion of tranexamic acid, a four unit blood transfusion and a four unit transfusion of fresh frozen plasma to treat major blood loss. She was diagnosed with the following injuries:

(a) Grade 5 (very serious and extensive) liver laceration causing blood loss;

(b) Grade 4 (serious and extensive) kidney injury;

(c) Spinal fractures at T6 and L1;

(d) Fractures of the second to ninth ribs with some displacement;

(e) Moderate to large right pleural effusion of the lungs.

15. The victim remained in the Intensive Care Unit for two days and was then moved to a ward. When she was discharged from hospital, she was suffering from moderate to severe pain and was given medication for the pain. She was told to avoid strenuous activity for three months.

16. Associate Professor Parekh reported that the victim may experience ongoing pain, reduced mobility in the spine, increased risk of arthritis in the spine, increased risk of renal failure due to the kidney injury (the risk is also associated with her condition of type I diabetes), and psychological sequelae.

Objective seriousness of the culpable driving offence

17. The objective seriousness of the offence is to be determined by considering the manner and circumstances of the offender's driving conduct and the seriousness of the impact on the victim.

18. The grievous bodily harm suffered by Ms Richards was serious grievous bodily harm. She survived only because she received prompt medical attention. Her injuries were very serious, albeit that the medium to long-term impact upon her is not known. However, the evidence establishes that there will be some long-term physical impacts. Having regard to the horrific nature of the accident and her physical injuries, I infer that Ms Richards will suffer psychological consequences, at least in the short to medium term.

19. The victim was a passenger - a person to whom the offender owed a specific duty of care.

20. The offence involved driving that was dangerous in several respects (driving at speed and driving through a red light). The offender had consumed methylamphetamine, but there is no evidence of the quantity in question or that the drug actually affected his driving performance. Although the offence was not immediately linked to a police pursuit, it occurred shortly after police had indicated that the offender should pull over.

21. The total length of the actual or intended driving is not known. The period covered by the statement of facts was, I infer, a period of several minutes only.

22. There was no evidence of the number of other road users in the vicinity. In the absence of such information and given the time of day, I assume that there was not a significant number of other road users in the vicinity.

23. Significantly, as stated below, at the time of the offence the offender was on conditional liberty for a similar offence and had recently been released from custody after serving sentences for driving matters. He was disqualified from driving.

24. The statement of facts does not elaborate on the circumstances in which the offender was driving a vehicle that had been taken without the consent of the owner. I was informed that the offender had borrowed the vehicle from a friend, knowing that it may have been taken without the consent of the owner. The irresponsible manner in which the vehicle was driven will be taken into account in the sentences imposed for other offences. However, in relation to the offence of driving a vehicle taken without consent I take into account the fact that the vehicle must have been seriously damaged in the collision. As noted below, the offender had a history of offences of dishonesty, albeit offences of a relatively minor nature.

25. The offence of failing to stop as directed by the police was a serious matter.

26. The offence of driving while disqualified was a very serious matter, although the associated manner of driving will be taken into account in relation to the principal offence of culpable driving. As noted below, the offender had a very poor history for unlicensed driving.

27. The offender's significant criminal history deprives him of leniency to which he may otherwise have been entitled.

28. The offender has a criminal history for offences of dishonesty. In 2013, he committed an offence of damaging property and received a 12-month good behaviour order. In 2016, he committed an offence of unlawfully possessing stolen property and was fined $150.00. In 2017, he committed offences of theft, damage property and unlawful possession of stolen property and, in each case, he was fined $150.00. More importantly, in August 2017, he committed an offence of riding or driving a motor vehicle without consent. For that offence, he was sentenced to 6 months' imprisonment from September 2017 to March 2018. For a related offence of unlawfully possessing stolen property, he received a one-month sentence to be served concurrently.

29. He has a minor criminal history for drug matters. In 2016, he committed an offence of possessing a prohibited substance other than cannabis for which he was fined $300.00. Later in 2016, he committed an offence of driving with a prescribed drug in his oral fluid or blood and was fined $300.00.

30. From 2 February 2017 to 1 June 2017, the offender served a period of four months' imprisonment for failing to appear after a bail undertaking.

31. The offender has a very poor driving record. In 2016, he committed an offence of driving while his licence was suspended. Later in 2016, he committed a second offence of driving while his licence was suspended. Still later in 2016, he committed a further offence of driving while his licence was suspended. In April 2017, a two-month sentence was suspended on a 12-month good behaviour order in relation to each matter. For a related offence of exceeding the speed limit, he was fined $300.00.

32. A fourth offence of driving while his licence was suspended, also committed in 2016, was dealt with separately. In February 2018, Special Magistrate Hunter imposed a fine for that offence. At the same time, her Honour dealt with the offence of riding or driving a motor vehicle without consent (referred to above) and other driving matters that occurred in August 2017. The other matters were failing to stop a motor vehicle for police (sentenced to three months' imprisonment), drive while disqualified (two offences, for one he was fined and for the other he was sentenced to three months' imprisonment) and dangerous driving (for which a three-year good behaviour order was imposed with a supervision condition). As a result of the sentencing exercise, the offender was incarcerated from 15 September 2017 to 14 April 2018.

33. Approximately one month before the current offences on 20 May 2018, the offender was released after serving sentences for driving matters. As at 20 May 2018, he was on conditional liberty, being the good behaviour order that Special Magistrate Hunter had imposed in February 2018 for an offence of dangerous driving. A 12-month good behaviour order imposed in April 2017 had only just expired. The offender was subject to a 24-month disqualification period imposed by Special Magistrate Hunter on 7 February 2018.

34. The commission of the current offences shows that the offender's dangerous driving conduct has continued and escalated in seriousness.

35. The offender was 22 years old at the date of the offences. He is now 23 years old.

36. The offender's biological parents separated when he was young. He was raised by his mother and stepfather, with whom he reported good relationships. He has a sister, with whom he also enjoys a good relationship.

37. He has a five-year-old daughter from a previous relationship with whom he maintained contact when he was in the community. Since being remanded in custody, he has not seen his daughter.

38. At the time of the offences, the offender was residing partly with his parents and partly with a friend.

39. After leaving school at the end of Year 10, the offender commenced an apprenticeship but did not complete it. Thereafter he worked in a number of unskilled positions. For the last two years he has been unemployed because of drug use and because of the period spent in custody. He aspires to undertake a mechanic apprenticeship and possibly work for his stepfather.

40. In October 2017, the offender received substantial physical injuries when he was crushed between two cars. Recently, he received a modest settlement from a compensation claim.

41. From 14 to 18 years of age, the offender was a heavy user of cannabis. At 17 years of age, he began to use methamphetamine. He abused that substance heavily until he was 20 years of age. He told the author of the pre-sentence report that, at the time of the offences, his use of methamphetamine was sporadic but said that he had used it on the day of the offences. His substance abuse problem was assessed as moderate.

42. The offender is motivated to address substance dependency. He has applied for three residential rehabilitation programs. Upon his release, he wishes to go directly from the Alexander McConachie Centre to a residential rehabilitation centre.

43. The offender experiences symptoms of anxiety and depression which warrant further investigation.

44. The offender accepts responsibility for his actions, although he does not seem to fully appreciate the impact of his conduct, probably because of his immaturity.

45. The offender was assessed as at medium to high risk of re-offending. His primary criminogenic risks are substance dependency, unemployment, and mental health issues.

46. The proper approach to sentencing for offences of culpable driving was discussed in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80.

47. I was taken to several comparable cases. In R v Barton [2016] ACTSC 162; 77 MVR 97, Elkaim J dealt with a similar factual scenario (similar offender driving conduct and victim impact). However, the offender was 42 years old and he had a more favourable criminal history than that of this offender. The offender was sentenced to 18 months' imprisonment (discounted from two years' imprisonment).

48. Chifuntwe v Gardiner [2012] ACTSC 136 involved a somewhat similar factual scenario. However, the offender was only 19 years old and did not have a criminal history of driving offences. It was an appeal from the Magistrates Court. Refshauge J dismissed the appeal against a sentence of 17 months' imprisonment (discounted from 20 months' imprisonment).

49. In R v Richardson [2016] ACTSC 133, the victim suffered injuries of similar seriousness. The circumstances of the driving were different and arguably less objectively serious than those in the present case. The offender's criminal history was significantly less serious than that of the present offender. For the relevant offence, I imposed a sentence of 18 months' imprisonment (no discount was applicable).

50. The sentencing purposes that are to be considered are set out in s 7 of the Sentencing Act. In relation to the offence of culpable driving, general deterrence is a prominent sentencing purpose, because of the prevalence of dangerous driving and its potential to impact the community. Having regard to the offender's criminal history, specific deterrence is also an important sentencing consideration. The sentencing purposes of accountability and denunciation are relevant. The impact on the victim has been discussed above; it is integral to an assessment of the objective seriousness of the offence of culpable driving.

51. Because the offender has a significant prior history in relation to driving matters, dishonesty matters and drug matters, specific deterrence is a relevant sentencing purpose for all offences.

52. I am satisfied that the need to impose a sentence of adequate severity means that, in relation to the principal offences, no sentence other than full-time imprisonment is appropriate.

53. Having regard to the offender's youth and current commitment to drug rehabilitation, I propose to impose a relatively low non-parole period to allow for rehabilitation.

54. Perhaps unfortunately, matters that may be treated as aggravating features of an offence of culpable driving (failing to stop for the police, driving through a red light, driving while disqualified) were the subject of separate charges rather than additional charges. This creates difficulties for the sentencing exercise. Both parties agreed that such matters could be taken into account as features aggravating the objective seriousness of the culpable driving offence, provided the separate sentences imposed for those matters did not increase the overall sentence. While I have some disquiet about that approach, I will do so in the absence of there being any obvious alternative.

55. Consequently, the sentences that I impose are as follows:

(a) Failure to comply as soon as practicable with a police officer's signal to stop: six months' imprisonment (reduced from eight months), from 20 May 2018 to 19 November 2018.

(b) Drive a motor vehicle taken without consent: nine months' imprisonment (reduced from 12 months), from 20 July 2018 to 19 April 2019.

(c) Culpable driving by negligence causing grievous bodily harm: 22 months' imprisonment (reduced from two and a half years), from 20 October 2018 to 19 August 2020.

(d) Drive while disqualified: six months' imprisonment (reduced from nine months), from 20 October 2018 to 19 April 2019.

(e) Drive with prescribed drug in blood: 1 month imprisonment from 20 May 2018 to 19 June 2018.

56. The total sentence is two years and three months' imprisonment from 20 May 2018 to 19 August 2020. I fix a non-parole period of 13 months and two weeks - that is, 50 per cent of the total sentence, from 20 May 2018 to 2 July 2019.

57. For the offence of fail to stop before stop line at a red light, the offender is fined $500.00. I allow no time to pay.

58. I impose the following periods of disqualification:

(a) For culpable driving by negligence causing grievous bodily harm: three years.

(b) For failure to comply as soon as practicable with a police officer's signal to stop: 12 months.

(c) For drive while disqualified: two years.

(d) For drive with prescribed drug in blood: 12 months.

59. The periods of disqualification are to be served concurrently. In each case, they will date from today, being 14 September 2018.

I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.