R v Higgins [2020] ACTSC 299

Parties: The Queen (Crown) Timothy Higgins (Offender)

Representation: Counsel P Dixon (Crown) K Ginges (Offender)

Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) File Number/s: SCC 347 of 2019 and SCC 346 of 2019

ROBINSON AJ:

Factual Background

1. At about 1:50am on 18 April 2019, Timothy William Higgins, the offender, was driving a white Hyundai Getz sedan westbound on Bowen Drive, Barton, ACT. The offender had just left a residence in Fyshwick and was travelling to the Belconnen area. There were three passengers in the car:

(a) Paola Sia, aged 18, was seated in the front passenger seat;

(b) Dimitri Velanis, aged 20, was seated in the rear left passenger seat; and

(c) EB, aged 19, was seated in the rear right passenger seat.

2. The offender was aged 21. He was driving on a provisional licence which he had held for two years or so.

3. The offender drove westbound along Bowen Drive and under Kings Avenue Bridge, towards King Edward Terrace. Bowen Drive is a multi-lane arterial road comprising two lanes westbound and one lane eastbound. The roadway is made of sealed asphalt. The lanes are divided by broken line markings and white reflective cats eye markers. The edge of the roadway is marked by a solid white line, painted traffic islands and yellow reflective cats eye markers. The opposing lanes of traffic are separated by a traffic island. The traffic island has a low vegetative and mulch ground cover. The roadway sweeps to the left in a moderate curve, the road has a positive longitudinal gradient, and a positive superelevation from the right lane falling towards the left lane. The speed limit is 50 km/h. There are sign posts on the left and right-hand sides of the roadway to the east of Kings Avenue Bridge.

4. The offender drove the vehicle westbound. The car was travelling in the inside lane. As the offender began to negotiate the left-hand curve, the car drifted right towards the outside lane. At this stage the car was travelling at 115 km/h.

5. The offender applied the brakes. The rear passenger side wheel of the vehicle locked up. The car skidded 25.5 metres, mounted the centre median strip, and continued to slide 20.8 metres across the vegetation and mulch surface. The vehicle exited the centre median strip, travelled across the eastbound lane, mounted a sloped concrete traffic barrier and became airborne. The vehicle clipped a metal pedestrian fence and continued airborne over an adjacent pedestrian underpass. The car struck concrete panelling affixed to a concrete wall on the western side of the pedestrian underpass, shearing the top off three concrete panels. The car rolled and came to rest on its passenger side on a grass area adjacent to the National Gallery of Australia carpark. The vehicle was airborne for a total distance of 28.4 metres.

6. EB and Ms Sia were able to get themselves out of the car. Mr Velanis and the offender remained trapped inside. Mr Velanis was unconscious. ACT Fire and Rescue and ACT Ambulance Service attended the scene. Members of that Service removed the roof of the car in order to extricate Mr Velanis and the offender. A photograph of the car in that state was taken by a member of the press and became Exhibit 3 on the sentence hearing.

7. Ms Sia, Mr Velanis, EB and the offender were transported to the Canberra Hospital. Each of the four occupants suffered severe injuries to which I will return.

8. A sample of the offender’s blood was taken at 3.59 am, the analysis of which revealed that it contained the chemical Delta-9-tetrahydrocannabinol (TCH) at a level of 8 nanograms per millilitre. No alcohol was detected.

9. The relevance to the sentencing proceeding of the above THC finding is solely to the transferred charge of drive with prescribed drug in oral fluid (see below) and not to the three counts of culpable driving (see below). It is common ground that the THC had no effect upon the manner of driving the vehicle on that night.

10. The Hyundai Getz sedan was six days out of registration on the day in question when driven by the offender. This led to the further transferred charge below of using an unregistered vehicle. There is no suggestion that the vehicle was suffering any mechanical defect at the time of driving.

11. Besides the identification of the speed at the point where the offender lost control of the vehicle as 115 km/h, the Agreed Statement of Facts contains one paragraph which relates to the circumstances of the driving. It is:

17 On Friday, 26 April 2019 Police attended The Canberra Hospital and undertook a recorded audio statement with [EB]. [EB] said the offender was driving the vehicle at the time of the collision, that the offender was driving “really fast”, and that he had told him to slow down.

12. That paragraph contains what EB told investigating police and is not direct evidence of the fact.

13. It is necessary to determine the circumstances surrounding the driving of the vehicle for an objective evaluation of the conduct involved in culpable driving offences.

14. The parties were not agreed on the issue as to the circumstances of the driving other than the speed of the car at the point of loss of control. After argument, I gave a direction under s 4(2) of the Evidence Act 2011 (ACT) that that Act would apply to the resolution of the factual question on the sentencing hearing as to the manner of the driving.

Pleas of guilty

15. The offender has pleaded guilty to the following offences:

(a) Culpable driving causing grievous bodily harm (Ms Sia);

(b) Culpable driving causing grievous bodily harm (Mr Velanis);

(c) Culpable driving causing grievous bodily harm (EB);

(d) Drive with prescribed drug in oral fluid (transferred offence); and

(e) Use unregistered motor vehicle (transferred offence).

16. The maximum penalty for culpable driving causing grievous bodily harm contrary to s 29(4) of the Crimes Act 1900 (ACT) is 10 years imprisonment and a period of disqualification pursuant to s 62 of the Road Transport (General) Act 1999 (ACT).

17. The two transferred offences attract monetary penalties and periods of disqualification. See Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [30]-[31] as to the significance of the maximum penalties.

18. These pleas were entered in the Magistrates Court and will attract a discount under s35 of the Crimes (Sentencing) Act 2005 (ACT).

19. The offender has not spent time in custody in relation to the charges.

Findings in relation to the circumstances of the driving

20. The offender left the premises at Fyshwick and drove approximately 3.3 km which would have taken approximately four minutes. At the time he lost control of the car he was travelling at 115 km/h in a 50 km/h zone. Why the offender drove at that speed is unexplained from the Agreed Statement of Facts. In evidence at the sentencing hearing, the offender said he had no recollection of the accident. The last thing he could remember was a conversation prior to leaving the house at Fyshwick.

21. In a victim impact statement, Paola Sia wrote that as they were leaving the house at Fyshwick, EB stole a fire extinguisher from the unit and set it off in the car. This statement had potential relevance to the manner in which the car was driven that night. It may have thrown light on the driving as resulting from the consequences of a prank joined in by the participants on that evening. It also may have thrown light on the driving as resulting from the impairment of driving skills associated either with the functioning of the central nervous system or the impairment of vision or control. The parties took up the second alternative in the course of their submissions. The offender tendered pharmacological evidence on the issue as to the effects of monoammonium phosphate and sodium bicarbonate.

22. In his evidence in chief, EB said that he had no knowledge as to the presence of a fire extinguisher in the car on the night in question. In cross examination he was pressed on this issue. It was suggested to him that he had set off the fire extinguisher in the car as a “bit of a lark.” He denied any such suggestion. EB was asked whether he knew of any explanation for a fire extinguisher found near the site of the incident. He replied that a security guard of the nearby building may have brought it to the scene in anticipation of the motor vehicle catching fire.

23. On this issue, I cannot attach much weight to EB’s evidence. From the rest of the evidence before me, EB had had a large amount to drink. His recollection of other events of the day was not accurate. I formed the view that he had reconstructed a large part of what must have happened to him from information coming to his attention after the incident.

24. Mr Velanis did not give evidence before me. From other evidence, it appears that Mr Velanis also had a lot to drink on that night.

25. Mr Yeates gave evidence. He has been employed by ACT Fire and Rescue for 16 years and prior to this service spent 4 years with the Defence Force. On the night in question he attended the scene of the incident in his professional capacity. He was shown a photograph of the incident which depicted the vehicle on its side with its roof having been cut off and also depicted a separate gathering, a few metres away, of what appeared to be parts of the car and its contents. The gathering appears to include the car’s windscreen and roof and also a fire extinguisher. Mr Yeates was able to exclude the fire extinguisher having been brought to the scene by Fire and Rescue. Other inquiries excluded other sources from which the fire extinguisher may have come. The fire extinguisher was disposed of when the site was cleaned up. Its forensic potential was not realised at that time. The disappearance of a fire extinguisher from a residence in Fyshwick was not investigated by police as they had no address at which to make enquiries. In final addresses, I took up the provenance of the fire extinguisher. The transcript encapsulates the gist of the arguments:

HIS HONOUR: Now, I've assembled some facts on one side of the ledger; is there some other facts on the other side of the ledger that I should be putting against that finding? MR DIXON: That's the evidence. We can't say whose it is; it wasn't the police, it wasn't the fire brigade, it wasn't the ambulance, it wasn't from the National Gallery. And you've got the evidence of Ms Sia that one was taken - - - HIS HONOUR: Ms Sia. And also, we don't usually find fire extinguishers in that position. MR DIXON: In the garden. HIS HONOUR: In a garden. MR DIXON: Next to Lake Burley Griffin. HIS HONOUR: And next to a bridge…

26. As is referred to above, Ms Sia gave evidence of the events of 17 and 18 April 2019. Tim, Dimi, Dan and some other skater boys were at a skate park in Belconnen around 2pm on 17 April 2019. Alcohol was consumed at the park and Ms Sia had her last drink at about 4pm. She said that this was about the same time as the offender had also had his last drink. They left the skate park at about 9:30pm. A friend by the name of Fransisco also left in the car driven by the offender. On the way to Francisco’s residence they stopped at Braddon to get some McDonalds. Whilst at Braddon, Dan and Dimi purchased a 500 mL bottle of whiskey. The offender then drove the group to Fyshwick. Ms Sia, Francisco and the offender talked for some three hours on a balcony. Dan and Dimi drank whiskey. Ms Sia observed “Dimi just was very slurry and groggy and Dan had pretty much passed out”. At 1.30am people were getting tired and Ms Sia told the offender that they should leave and then they woke Dan up and said goodbye to Francisco.

27. Ms Sia’s evidence then continued:

What happened as you were leaving the apartment?---Well, Dimi was kind of like - he was a bit stumbling and Dan stole the fire extinguisher. Now, when you say Dan stole the fire extinguisher, what happened? Can you tell the court what you saw or heard or - - -?---I saw - - -how you come to that conclusion?---I saw Dan taking the fire extinguisher from outside of Francisco's apartment. I told him to put it back but he wouldn't. Did he say or do anything when you said that?---No, he just ignored me. And when you say 'outside of Francisco's apartment', was it within the building or outside the building?---Within the building. So outside his door in a corridor or somewhere, was it?---Yes, yes. Did you go down to - sorry, I withdraw that. Did you continue to walk to the car?---Yes, we did. What did Dan do with the fire extinguisher?---Well, after we reached the car, I put Dimi inside of the car - - - So where was Dimi seated?---Behind the front passenger seat. This is a three-door car?---Two-door. HIS HONOUR: Two doors and one hatchback, I think, one hatch. MR GINGES: A two-door hatchback. HIS HONOUR: Is that right?---Yes. MR GINGES: Yes, I see. So in order to put Dimi in behind the passenger seat, how does that happen?---Well, I have to get my passenger seat folded at the front. And what happened when Dimi went into the back seat?---I just clicked him in, put his seatbelt on, and then I tried to hop in the car. What happened after you went to hop in the car?---Tim let Dan in but Dan let the fire extinguisher off in the car. Was Dan fully in the car? Do you know where he was when he let the fire extinguisher off?-- -He was in the driver's seat trying to get in and he let it off there. What do you mean he 'let it off'?---He triggered - he pulled the trigger of the fire extinguisher. What happened when that occurred?---Well, some white powder flew into the car and filled the car up and - yes.

28. I interpolate here to record that in the photographs of the interior of the car taken after the roof had been cut off, there appears to be a white coloured substance on the floor of the vehicle which could be powder from a fire extinguisher. This white coloured substance is behind the front seats and in front of the rear seats. It is not possible for me to determine, from the photographs alone, whether the white coloured substance is powder and whether, if it is powder, it comes from the fire extinguisher.

29. Ms Sia’s evidence continued:

How did it affect you?---My eyes, and I felt a bit hazy and I couldn't breathe instantaneously, so I rushed out of the car and so did Tim. What about Dimi and Dan?---Dimi had already been passed out, so he just stayed in the car and Dan - I don't know where Dan went. He probably ran away as well. So Dimi was passed out in the back of the car?---Yes. So behind the passenger seat, back left seat?---Yes. What did you do after you left the car?---I was trying to get my breathing back, and from the corner of my eye I can see Tim spitting on the ground trying to get his breath back as well. And we stayed outside of the car for about two to three minutes, maybe even five. Did you see where Dimi was at this time?---He was still in the back left passenger seat. And did you see where Daniel was?---No. What happened after that two to three or possibly five minutes?---I could see that the fumes from the fire extinguisher had dispersed, and so we all hopped into the car because we all just wanted to go home. And do you remember seeing Daniel hop in the car? Yes. And do you remember seeing Tim hop in the car? Yes. And what happened after everyone hopped in the car? Well we just drove to go home. Was anything said or done by anybody about the fire extinguisher being let off at that point? No. And how was it in the car in terms of whether you can smell anything or whether it had any effect on you personally when you were driving off? Well you could still smell it so I had my window down to keep on trying to clear the fumes. And do you know whether any other windows were down? I'm not too sure. So you had your window down? Yes.

30. On the topic of the offender’s driving, Ms Sia said:

You drove off, or Tim drove off, how would you describe Tim's driving as you left Francisco's street or apartment? I would say he was driving steadily. Slowly? Steadily. Sorry, steadily? Yes. Okay, did you have any occasion, any reason, to tell him to slow down? No. Did you tell him to slow down? No. Did you hear anybody else tell him to slow down? No. Did Dimi to your recollection did he wake up from his state of that you'd left him in the car while you were driving? No. Did Daniel say or do anything while you were driving as far as you recall? Did he say or do anything? Yes? Well I could hear him murmuring from the back but I feel like he was just trying to make plans because he wanted to keep on going out and not go home. What do you mean he wanted to go out? Well he was trying to make plans to stay out so he wanted - - - What do you mean by that, was he talking to someone? I don't know, I feel like he was talking to us but I was ignoring him because I was so tired but I feel like he still wanted to go to the skate park or go out to the club or something. And as you drove along do you remember what the road looks like? Yes. Do you have a recollection, a clear recollection of being in the car when all this is happening? Yes. As you were driving along do you recall the collision? Yes. Do you recall anything before the collision? Yes. What do you recall? Well I remember being on the two lane big road on Kings Avenue and I thought it was - that Tim was driving fine and then … Are you familiar with that area? Yes. You are familiar with that area? Yes, I've been there a couple of times but not a lot. Okay, so you were driving along the two lane road towards the bridge? Yes. I cut you off, what happened? Well, all the lights just - there were no lights at that point and I couldn't see the turn towards the bridge and pretty much the car kept on going straight and it went over the island and I can remember getting launched into the air. Do you remember the accelerating or getting faster before then? No. No. Do you have any recollection of the car going very, very fast? No, not very, very fast. Do you have a recollection of the car going fast? No. … Can you remember anything at all about Tim's driving that might have contributed to the accident, from your recollection? Well just him being tired in general, yes, we'd done a lot that day so - and he was skating a lot so I feel like he was very tired.

31. In cross examination, Ms Sia said that the time between the fire extinguisher being discharged and leaving the premises by car was two to three minutes and maybe even five minutes. Ms Sia confirmed to the cross examiner that the offender was “fine” driving the car and that he was able to steer it straight and turn corners and stop at intersections if he needed to do so. There was nothing that caused her concern between the time when they left Francisco’s premises and the time of the accident. She was not worried about the offender’s driving. The offender was driving the car properly and to her recollection the offender was not driving too fast. Ms Sia thought that the offender was driving at the speed of 80 to 90. Her evidence was that the offender drove at a constant speed and it was not a matter of accelerating the car at any particular time.

32. The cross examiner suggested to Ms Sia, that being the offender’s partner and having provided him with all the support for the last 18 months that she would help him to avoid being sent to prison. She agreed that she would do as much as she could but that she would not lie.

33. The cross examiner also drew to Ms Sia’s attention the fact that she had told a lie to investigating police at Canberra Hospital about seven hours after the incident. She told the police when asked what had happened “Well, it’s a bit of a blur because I was pretty intoxicated.” Ms Sia explained that she gave that answer, which she agreed was false, because she did not want to speak to the police at that time. She had just woken up from surgery and wanted the police to go away. The cross examiner did not suggest to Ms Sia that she had lied in any other respect to the police in that interview. I accept her explanation that she wished to avoid speaking to the police at that time and that it did not indicate an unwillingness to tell the truth.

34. I found Ms Sia a reliable witness as to the factual situation at the skate park and the night in question and generally accept her narrative of the events. I do not accept her opinion evidence as to the speed the vehicle was travelling at the time when the offender lost control. Nor do I accept her opinion evidence that there was no occasion for her to tell the offender to slow down.

35. The Agreed Statement of Facts is inconsistent with Ms Sia’s speed estimate. Her lack of driving experience puts her at a disadvantage in judging speed. Ms Sia’s loving relationship with the offender still continued, and I was not confident that she would not be inclined, as was suggested, to minimise the moral culpability of the offender even if this was unconsciously.

36. I accept Ms Sia’s evidence that, on other occasions when the offender has been driving a car in which she has been a passenger, the offender has driven in a responsible manner. The offender’s mother also gave evidence that her son was a careful driver. On this issue, the offender, in his evidence, regarded himself as a “safe” driver and a person who followed the rules and speed limits. The Crown conceded that the offender was not “recorded”.

37. In final address, counsel for the offender made submissions about a number of matters which may have had a causative effect upon the manner of the driving. A number of the submissions were bare theoretical possibilities, some were said to be inferences arising from the evidence but, in my view, not inferences arising to the level of probability where a finding was open upon them. Nor is it open to me to “find that on the balance of probabilities that there [is] a constellation of circumstances which reduce the culpability” of the driving by, apparently, adding together all the possibilities.

38. My findings as to the driving in question are:

(a) The vehicle was travelling at 115 km/h at the time the offender sought to apply the brakes.

(b) The evidence does not support a finding that the vehicle was rapidly accelerating.

(c) It cannot be said that this is a case of simple momentary inattention or misjudgement.

(d) The evidence does not support a finding that the offender was warned that he was driving in an inappropriate manner.

(e) The evidence does not support the proposition that the offender mistakenly put his foot on the wrong pedal and accelerated the vehicle prior to applying the brakes.

(f) The fire extinguisher was discharged in the vehicle prior to the commencement of the journey. After a period of time, a matter of minutes, the effects of the discharge of the fire extinguisher were such that the vehicle could be driven in a safe manner.

(g) The evidence does not support a finding that the offender was under the effects of the discharge of the fire extinguisher powder when driving the vehicle at the time that he lost control of the vehicle.

(h) The evidence does not support a finding that anxiety or depression caused the offender to drive the vehicle in the manner in which he did on that night.

(i) The speed at which the offender drove in the conditions reflects the neglect of his responsibility to drive safely, a responsibility he owed to other road users and, in particular, to the passengers in his car. I do not find that the offender consciously abandoned his responsibility to his passengers and other road users.

(j) There is no evidence that the offender was skylarking or intending to show off. There is evidence, which I accept, that on other occasions the offender drove appropriately to the conditions.

(k) Probably, the offender, through inexperience or misjudgement, drove far too fast at what was, unbeknown to him, a critical point in the roadway and on a route with which he was insufficiently familiar. He realised the danger very belatedly. Once the danger became clear to him, he was unable to control the vehicle.

39. The findings in the paragraph above do not give a full and complete explanation for the occurrence and the nature of the driving on the night. The evidence was incomplete in that respect.

40. The onuses of proof can be taken from Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [64] where the majority said:

But, as was established in R v Olbrich, a sentencing judge may not take facts into account in a way that is adverse to an offender unless those facts have been established beyond reasonable doubt and, contrastingly, the offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour. Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known... Injuries to the passengers

41. What follows in respect of the three passengers is largely taken from the Agreed Statement of Facts.

Paola Sia

42. When she arrived at hospital, Ms Sia was triaged as a category 2 patient. Patients who are triaged as a category 2 have an immediately life-threatening condition, potentially require important time-critical treatment (meaning that clinical outcome may depend on treatment commencing within a few minutes of the patient’s arrival to the emergency department) or require relief of very severe pain within 10 minutes.

43. Following assessment at the Canberra Hospital, Ms Sia was found to have the following injuries:

(a) Left sided lung contusion,

(b) Left sided 5th rib fracture

(c) Mesenteric tear with approximately 300mls volume haemoperitoneum,

(d) Retroperitoneal haemorrhage in the right upper quadrant of the abdomen,

(e) Tenderness over the right abdomen, suprapubic and epigastric region,

(f) T9 spinous process avulsion fracture,

(g) T10 and T11 spinous process fracture,

(h) Minimally displaced T12 body fracture,

(i) Tenderness over the mid thoracic spine,

(j) Mid-shaft right sided ulnar fracture,

(k) Tenderness over the right sided mid-ulna,

(l) Left lateral wrist bruise,

(m) Right lateral thigh bruise,

(n) Left sided periorbital bruising,

(o) Left sided subconjunctival haemorrhage,

(p) Peri-orbital abrasions.

44. Ms Sia underwent investigations and treatment throughout her admission to hospital the most significant of which were:

Ms Sia sustained clinically significant abdominal injuries and required Category 2 emergency surgery. On the 18th April 2019 Ms Sia underwent a ‘diagnostic laparoscopy converted to limited trauma laparotomy, exploration and repair of small mesenteric tear’ under general anaesthetic. On the 26th April 2019 Ms Sia underwent an ‘open reduction and internal fixation of the right ulnar’ under general anaesthetic.

45. Ms Sia was discharged from hospital on 29 April 2019. Ms Sia gave evidence before me at the sentencing hearing saying “I’ve recovered quite well, like my injuries have been pretty much healed”.

Dimitri Velanis

46. On his presentation to hospital, Mr Velanis was also triaged as a category 2 patient.

47. Following assessment Mr Velanis was found to have the following injuries:

(a) Bilateral pneumothoraces,

(b) Bilateral pulmonary contusions,

(c) Right sided rib fractures;

(i) Buckle fracture of right sided 4th rib laterally,

(ii) Minimally displaced fractures of the right sided 5th, 6th, 7th, 8th, 9th and 10th ribs

(d) Left inferior frontal lobe intra-axial (cerebral) haemorrhage,

(e) Left superior orbital blow-in fracture with surrounding oedema/swelling and mild mass effect on the superior rectus muscle,

(f) Left eye proptosis/ swelling,

(g) Bilateral periorbital bruising (Raccoon eyes),

(h) Right scalp contusion,

(i) Facial swelling.

48. Mr Velanis also underwent assessments, investigations and treatment throughout his admission to hospital the most significant of which were:

(a) An admission to the intensive care unit which included a period where Mr Velanis was placed in an induced coma between 18 and 19 April 2019.

(b) On 18 April 2019 Mr Velanis underwent a ‘serratus anterior plane block [invasive therapeutic technique that provides regional anaesthesia to the ribs on the side of injection]’.

49. Mr Velanis was discharged home from hospital on 26 April 2019.

EB

50. EB was triaged as a category 1. Patients who are triaged as a category 1 have an immediately life-threatening condition and require immediate and simultaneous assessment and treatment by the emergency department staff.

51. Following assessment EB was found to have the following significant injuries: (a) Near-complete forearm amputation;

(b) Minimally displaced sternal fracture; and

(c) Complex facial fractures.

52. EB also underwent investigations and treatment throughout his admission to hospital.

(a) Admission to the intensive care unit at the Canberra Hospital. This admission included multiple discrete episodes (with a total duration of 10 days) where he was placed in an induced coma.

(b) EB suffered clinically significant injuries to his right forearm and required category 2 emergency surgery on 18 April 2019 to preserve his limb.

53. In total EB required 10 operations under general anaesthetic to repair the damage to his right arm. He required a skin grafts from both his legs. He was left with permanent scarring from the skin graft sites.

54. EB was in hospital from 18 April 2019 to 23 May 2019. He developed complications from post-operative infections and the result of his stay in hospital.

55. EB wrote a victim impact statement and, at his request, it was read to the Court by the Crown Prosecutor. It set out the painful emotions which had come into his life as a result of the collision. It detailed the period of his hospitalisation and its effect on him. It recorded his loss of independence and consequent social isolation and loss of connection to his friends. His rehabilitation was physically and mentally difficult. There was a never-ending loop of appointments and the disappointment in not being able to pursue a full-time job in carpentry and the fact that his arm, not being fully functional, will restrict his career options. The consequence of his injuries restricts his sporting and recreational activities including his love of skateboarding. EB gave moving evidence about his own reaction to his appearance and also to his situation in his changed life. Understandably, his mental health has undergone marked deterioration.

56. In this judgment, I cannot fully convey the suffering set out in the victim impact statement. However, a further insight can be gained as to that suffering from merely contemplating the effect on EB of the magnitude of the injuries and treatment described above.

57. There was cross examination of EB before me to suggest that his evidence may have been tailored in the light of a pending civil case brought by him for compensation in respect of his injuries. If it is of any consolation to EB, on the evidence given before me, despite the intoxicated larrikinism with the fire extinguisher, no action or omission by EB himself was the cause of his injuries.

Case Law

58. I have had regard to the NSW guideline judgment in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 as containing relevant considerations to an objective evaluation of the conduct involved in culpable driving. At pars [216]-[217] Spiegelman CJ in that case said:

216 I had earlier (at 231B–C) set out a list of aggravating factors which had been established in the authorities as follows: “(i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit.” 217 Further consideration of the authorities would cause me to amend this list by changing (v) to read “erratic or aggressive driving” and adding: (x) Degree of sleep deprivation. (xi) Failing to stop.

59. I regard the first three considerations set out above as central to an evaluation of the objective seriousness of the principal offences. Severe injuries were suffered by each of the three passengers. Fortunately, two of those three passengers have recovered from those injuries. One of those passengers has not recovered and will have lifelong disabilities resulting from the incident. Of course, other users of the road could have been injured by the driving but fortunately were not. The speed at which the vehicle was driven at the time in question was 115 km/h in a 50 km/h zone. Why the offender was driving at that speed at that time has not been adequately explained. It is only possible to negate some possible explanations for that speed. It is not possible to say that the objective seriousness, and in particular the count in which lifelong disabilities were inflicted, is anything less than on the higher end of mid-range.

Offender’s Case on sentence

60. In his evidence at the sentencing hearing, the offender accepted that his driving at 115km/h that night was not influenced by anyone else and that the responsibility for the motor vehicle accident was purely his. The offender said that there was no outside influence involved, it was his driving that caused the accident.

61. This evidence needs to be evaluated against the fact that the offender had no recollection of the driving in the course of which the motor vehicle accident occurred. The figure of 115 km/h was, apparently, the agreed result of calculations by experts on both sides. However, the evidence is directly relevant to remorse and contrition and the taking of responsibility for the incident. I did not detect any insincerity in the offender’s evidence in taking that full responsibility. The offender was not cross examined to suggest that he did have a recollection of the driving in question. The offender’s active participation in a restorative justice conference is also relevant to the question of remorse and contrition.

62. The offender is one of three children. He stated to ACT Corrective Services that he had a positive upbringing and was close to his mother during his childhood. His father, apparently, treated him harshly on occasions. He had difficult times and a strained relationship with his father. The offender completed year 12 and then worked in a childcare centre for a period of four years prior to the incident. He has completed 12 months of an Arts degree at the Australian National University. These studies are presently deferred. At the age of 17, the offender first consumed alcohol and experimented with cannabis and MDMA. The offender told ACT Corrective Services that he experienced periods of low mood and possibly depression throughout his teenage years due to conflict within his family.

63. The incident in which the offender was involved led to the suffering by him of both physical and mental injuries. The progress of each affected the other. It is sufficient to set out the relevant features of each in turn without resort to their interplay.

64. Dr Clout, clinical psychologist, first treated the offender after the incident. That was on 4 November 2019. Dr Clout found that the offender had suffered from an initial onset of depressive symptomology at approximately 17 years of age. From the history given to her and psychometric testing, she considered that the offender met the DSM-5 diagnostic criteria for Persistent Depressive Disorder. Due to its chronicity and severity she recommended to the offender that he consider pharmacological treatment for these symptoms, however, the offender identified his preference was for psychological treatment.

65. That treatment is still ongoing. Two matters are directly relevant for present purposes. The first is that progress in treatment of these symptoms will be inhibited in a custodial environment and that his current symptoms are likely to impair his ability to cope with the challenges and limitations of the custodial environment. The second is that there is no direct link between the symptoms and the occurrence of the incident.

66. I received evidence from both the offender and his mother which proved the history given to Dr Clout. I accept Dr Clout’s diagnosis. Dr Clout was not cross examined.

67. In 2020 the offender has twice voluntarily admitted himself to South Coast Private Hospital for assessment and treatment including drug and alcohol assessment and treatment in the course of participating in a Post-Traumatic Stress Disorder Program. In the discharge summary, he is described as a model patient. There were no difficulties with his management or behaviour.

68. The offender gave evidence as to effects of the car accident upon him. He gave evidence that prior to the incident he was active and keen on rock climbing and skateboarding. He gave details of “six surgeries” to his legs and the progression from wheelchair, for eight months, to a walking frame, then crutches and now a cane. Further surgery is planned. He currently sees a physiotherapist every two weeks, but physiotherapy is undertaken by him every day.

69. The offender’s last use of marijuana was prior to the incident. I regard this and his voluntary admission to the South Coast Private Hospital as evidencing that the offender has a proper insight into his own difficulties and a demonstrated motivation to take steps in his own interest. I rate his prospects of rehabilitation as good.

70. I received character references and other evidence which spoke both of the offender’s emotional and physical suffering as well as his regret for his actions on that day and his remorse in respect to the people injured in the accident. The offender has been active and has otherwise played a positive role in the community. Apart from this incident, the offender is of good character. I take into account this evidence and also the offender’s age.

71. The offender relied upon a report by Dr Collins, consultant forensic pathologist, to document the physical consequences of the collision.

72. Dr Collins reported the following injuries and abnormalities:

(a) Pneumomediastinum (air bubbles within tissues between lungs and in the neck)

(b) Left medial tibial plateau fracture (c) Comminuted fracture of left fibula

(d) Left medial malleolus fracture

(e) Fracture of left talus

(f) Multiple rupture of ligaments in right and left knee joints

73. These injuries resulted in multiple operative procedures attended by complications post operatively.

74. Dr Collins said as a consequence of the extensive and severe blunt force trauma to the offenders’ left lower leg and ankle, a left tibial shaft compartment syndrome developed. In this condition, there is increased pressure in the muscle compartments of the calf which, if not relieved, will result in insufficient blood supply to the muscles and surrounding tissues. The affected anatomical area may undergo necrosis which could then result in limb amputation or even death, due to overwhelming septicaemia. The treatment of this condition required several operations. The offender is now getting to the position where he can walk unaided from bedroom to bathroom although this is considerably limited due to severe pain in the ankle region. This is associated with a prominent limp consequent upon marked ankle stiffness (50% limitation of all ankle movements).

75. Dr Collins is of the view that the offender will suffer from lifelong deformity of the left ankle joint with its associated limitation of movement. His opinion is that there may be some improvement with extensive long-term physiotherapy. He was not cross examined.

Disposition

76. I find that there is no other penalty than a term of imprisonment that is appropriate to the circumstances of the offending.

77. The structure of my sentences is that the two culpable driving offences concerning Mr Valenis and Ms Sia will carry concurrent terms of imprisonment of a starting point of 16 months. The offence concerning EB will carry a term of imprisonment of 2 years and 6 months as the starting point. In each case, I propose to allow a discount of 25% in connection with the pleas taken together with contrition and remorse.

78. Having regard to the totality of the criminality, I have also come to the view that an aggregate effective sentence of imprisonment of 34 months and 15 days should be imposed upon the offender. There will be partial concurrence to arrive at this term of imprisonment. It is obviously possible to achieve this result by alternative routes. (See Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [62]-[64]). The term imposed by me has regard to what I assess as the totality of the criminality involved.

79. I keep firmly in mind, in cases of culpable or dangerous driving, the need for public deterrence and I recognise that the courts have generally not regarded youth as a factor diminishing the need for general deterrence. In this case, specific deterrence is of lesser importance owing to genuine remorse and contrition shown by the offender.

80. In order to arrive at my sentences I have taken into account the objective seriousness of the offences, the age of the offender, his prospects of rehabilitation and an unlikelihood of reoffending, his good character, his psychological disorder and his motivation in this regard as well as its impact in a custodial environment. I also have regard to his acceptance of responsibility for the offending. A further matter which I take into account and which plays a part both as to the sentence of imprisonment and also how that sentence is to be served, is non-curial punishment.

81. I propose to deal with the transfer charges having regard to the financial resources available to the offender.

Non-Curial Punishment

82. In Daetz v The Queen [2003] NSWCCA 216 at [62], James J, with whom Tobias JA and Hulme J agreed, said:

62 I have concluded from this examination of the authorities cited to the Court and especially Allpass, Clampitt-Wotten and Cooney that, while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.

83. There has been disagreement as to the outer reach of the principle in terms of the detriment or loss being taken into account. Not every causal connection is sufficient. For example, the Court in Silvano v The Queen [2008] NSWCCA 118 at [29]-[36] rejected a submission based upon the offender suffering injuries on remand in prison after being arrested for the offending.

84. There is, however, explicit authority to support the proposition that injuries occurring to the offender in the course of driving and independently of his or her volition are able to be taken into account by a sentencing court. This is to be contrasted with deliberately self-inflicted injury. See, for example, [19]-[25] of Whybrow v The Queen [2008] NSWCCA 270.

85. In Munda v State of Western Australia [2013] HCA 38; 249 CLR 600 the majority made some observations at [61]-[63] concerning traditional punishment that are relevant to the principle involved in non-curial punishment. The majority said-

61 There is something to be said for the view that the circumstance that the appellant is willing to submit to traditional punishment, and is anxious that this should happen, is not a consideration material to the fixing of a proper sentence. Punishment for crime is meted out by the state: offenders do not have a choice as to the mode of their punishment. 62 The possibility that the appellant may, at some time in the future, face corporal punishment by way of payback was taken into account in his favour by the sentencing judge. The respondent accepted that that possibility is a factor relevant to sentencing. The Court of Appeal did not take a different view; and the respondent did not argue that this Court should take a different view. 63 In these circumstances, this case does not afford an occasion to express a concluded view on the question whether the prospect of such punishment is a consideration relevant to the imposition of a proper sentence, given that the courts should not condone the commission of an offence or the pursuit of vendettas, which are an affront and a challenge to the due administration of justice. It is sufficient to say that the appellant did not suffer any injustice by reason of the circumstance that the prospect of payback was given only limited weight in his favour by the courts below. (Citations omitted)

86. A number of matters may be noted from the observations above. First, the majority does not set out a concluded view. Second, the possibility of future punishment is distinct from detriment or loss being concomitant with the offending. Third, no choice is involved in the circumstances of this case. Fourth, the detriment or loss does not flow from the commission of an offence or the pursuit of a vendetta. Fifth, true it is that the “punishment” is not meted out by the authority of the state, but if account is not taken of it, then it may lead to the perception of double punishment or excessive punishment.

87. I propose to take account of the physical and psychological injuries which I have detailed above which the offender has suffered in the course of offending. I also propose to take account of the fact that due to these injuries, any time in custody would be more difficult and would not easily accommodate the offender’s physical recovery from his injuries and future operative procedures.

How the sentence is to be served

88. The Crown in his submissions put that only a period of immediate imprisonment would mark the seriousness of the offending and that although it is necessary to have regard to rehabilitation, full-time imprisonment was necessary in order to satisfy the sentencing principle of general deterrence. The Crown drew my attention to the fact that the offender “comes from and is part of a class of people that are all too often involved in these types of car accidents [that is young people].”

89. Counsel for the offender, on the other hand, submits that it is open to me to impose a sentence that does not require full-time imprisonment and that, on the facts of the case, I should do so. Counsel for the offender submitted that it would be open to me to impose a sentence of imprisonment upon the offender and then to order that the sentence be served by way of an Intensive Correction Order.

90. The conclusion to which I have already come requires a consideration s11(3) of the Crimes (Sentencing) Act 2005 (ACT).

91. That section applies where a sentence of more than two years but less than four years is to be imposed upon the offender.

92. The section is in these terms:

(3) The court may make an intensive correction order if the sentence of imprisonment is for more than 2 years but not more than 4 years, but only if the court considers it is appropriate to do so, having regard to— (a) the level of harm to the victim and the community caused by the offence; and

(b) whether the offender poses a risk to 1 or more people or the community; and

(c) the offender's culpability for the offence having regard to all the circumstances.

93. Part 3.2 of the Crimes (Sentencing) Act deals with sentences of imprisonment. The structure of that Part is that: (a) By s10 the Part applies when a court makes a decision that no other sentence than imprisonment is appropriate.

(b) By s10(3) any sentence of imprisonment must be served by full-time detention at a correctional centre unless the court otherwise orders.

(c) By s11 the court may order that a sentence of imprisonment may be served by intensive correction in the community. This discretion contained in this section is further divided into two strands. One strand involves a general discretion for sentences of imprisonment which are for not more than two years. Another strand applies to sentences of imprisonment for more than two years but not more than four years. The later discretion is circumscribed by a need to have specific regard to the three criteria set out in s11(3) to which I will return.

(d) By s12 the court may make an order suspending all or part of the sentence of imprisonment and make a good behaviour order for the period during which the sentence is suspended or for any longer period that the court considers appropriate. An order suspending a sentence of imprisonment applies to any length of sentence.

(e) By s12A the court, in respect of eligible offenders undertaking a drug and alcohol treatment regime and who have been sentenced to imprisonment for a period of at least one year but not more than four years, may make an order fully suspending a sentence of imprisonment.

94. As a matter of history, intensive correction orders replaced periodic detection in the ACT in 2016. The Explanatory Statement to the Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 is instructive. In part it states:

Sentencing in criminal matters is an area of law and practice which is constantly evolving and the new intensive correction order has been created to ensure that the ACT’s sentencing framework is modern and responsive. The new sentence, to be called an ‘intensive correction order’ is formulated by the Bill’s provisions to be a stand-alone way of serving a sentence of imprisonment. As such, it will sit just below a sentence of full-time imprisonment in the sentencing framework. It is intended as a sentence of ‘last resort’ for offenders before full-time imprisonment. The sentence can fulfil more than one of the purposes of sentencing in circumstances where community safety and other sentencing considerations do not require the sentence to be served by way of full-time imprisonment. The intensive correction order is designed to be punitive while still allowing the courts to incorporate elements of rehabilitation. It will allow offenders to remain in employment and maintain their community ties which are important to reduce the risk of future offending. It is flexible enough to allow the courts to tailor the order to suit the circumstances of the offence and the offender but still sufficiently structured to ensure every order places appropriate demands on an offender. The intensive correction order is supported by clear and robust consequences in the event an offender does not adhere to the requirements of the order. If a new offence is committed during the term of the order, a court is required to activate the remaining term of imprisonment either in full or in part unless it is not in the interests of justice to do so. If one or more of the other conditions of the order are breached then the Sentence Administration Board is authorised to conduct a hearing of the matter. The Sentence Administration Board is provided with a power to act quickly and innovatively, by imposing a short period of full-time imprisonment as well as other more traditional consequences, such as cancellation. … The formulation of the new sentence has also been underpinned by research, both academic and at Directorate level. The Justice and Community Safety Directorate of the ACT Government commissioned a literature review of ‘intensive supervision orders’ in overseas jurisdictions. The review was undertaken by the University of Canberra and provided a comprehensive explanation of each of the overseas orders considered and examined a variety of evaluation methods for their efficacy. The Justice and Community Safety Directorate undertook two research projects. The first was a desk-based review of ‘intensive correction orders’ in Victoria, New South Wales and Queensland in order to identify the features of the orders in those three jurisdictions to inform discussion and identify possible applicability in the ACT. The second project was to visit policy and corrections officers in the same three jurisdictions to provide a deeper understanding of both the policy rationale behind the orders and the elements of those orders.

95. Factors (a) and (c) of s 11(3) set out at [92] above, could be thought to be dealt with, or substantially dealt with, in s33 of the Crimes (Sentencing) Act.

96. Section 33(1)(e) directs a court in deciding how the offender should be sentenced to consider “any injury, loss or damage resulting from the offence.” Section 33(1)((i) and (v) direct a court to consider “the degree of responsibility of the offender for the commission of the offence” and “the reason or reasons why the offender committed the offence.” Section 33(1) does not specifically address the future conduct of the offender in terms of risk to persons in the community although no one would suggest it is not a relevant factor in all cases.

97. In contrast to s12A, no crimes are ineligible for consideration under s11. Section 12A, on the other hand, removes a crime of serious violence and a sexual offence from its ambit. Leaving aside the question of alcohol or drug dependency and its consequent treatment, the court’s consideration in making a drug and alcohol treatment order under s12A can be paraphrased in these terms:

(a) [If] the court is satisfied on the balance of probabilities that the order is appropriate, taking into account-

(i) the relevant sentencing considerations applying to the offender; and

(ii) any information given to the court relating to the concerns of a victim about the victim’s safety or welfare

98. Both s11 and s12A apply to a sentence of imprisonment of up to four years but no longer. This appears as a legislative yardstick to mark the outer limit of a crime the legislature believes could be the subject of leniency in the form of the two regimes. Beyond this point, a crime is too serious to warrant anything other than full-time imprisonment. (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [30]).

99. A number of eclectic matters may be noted. First, as in other jurisdictions, the quantum and structure of a sentence requires a sequential process of reasoning. Second, there is a lack of explicit guidance from the text of the Act as to whether a sentence served by intensive correction in the community is necessarily or should be seen as a lesser punishment in a hierarchy, as is sometimes perceived by onlookers and by the courts. The Explanatory Statement above contains some guidance, if extrinsic materials are to be relied upon. Third, culpability is not a defined term and is not reproduced in s33(1). Nor does the word appear in s7 dealing with the purposes of a sentence. Fourth, any term of imprisonment imposed upon an offender of four years duration will necessarily carry with it a high degree, of what would be thought to be, culpability. Fifth, the same reasoning would apply to “the level of harm to the victim and the community caused by the offence”. A term of four years imprisonment will, at least in most cases, have embedded in it, a high degree of harm.

100. My conclusion from the above is that, at least for the circumstances pertaining to this case, the offender is not outside the boundaries of the discretion to be considered for an intensive correction order by reason of his culpability and the harm that he has caused to three victims.

101. Accordingly, I give consideration to the three factors in s11(3) in determining the exercise of my discretion whether to impose an intensive correction order. The overarching discretion must be informed by the purposes for which a court may impose a sentence on an offender. These are set out in section 7 of the Act. They are:

(a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;

(b) to prevent crime by deterring the offender and other people from committing the same or similar offences;

(c) to protect the community from the offender;

(d) to promote the rehabilitation of the offender;

(e) to make the offender accountable for his or her actions;

(f) to denounce the conduct of the offender;

(g) to recognise the harm done to the victim of the crime and the community.

The level of harm to the victim and the community caused by the offence

102. I have set out my findings as to the level of harm caused to the three victims by reason of the offences above. I take into account, in particular, that one victim has suffered very substantial permanent harm.

Whether the offender poses a risk to one or more people or the community.

103. I do not believe the offender poses a significant risk to other people or the community.

Culpability for the offence having regard to all the circumstances

104. I have set out my findings of the circumstances of the offence above. I take the concept of culpability as a broad description of blame worthy behaviour. Whilst I fully appreciate that in the offence under consideration, the question of whether the offender intended to cause harm, is not an element of the offence, I think it has relevance to culpability. Here there was no intention to cause the consequences of the harm and no conscious abandonment of the offender’s responsibility to others.

Orders

105. As in many like cases, the purposes for which a sentence may be imposed conflict and the imposition of any sentence will never fully accommodate each purpose to its full extent.

106. Here, I find that an intensive correction order will address the offender’s risk of reoffending. The fixing of a sentence of imprisonment of more than three years will, itself, address, at least in part, the need for denunciation, accountability and the recognition of the harm done to the victims. In this case there is a low risk posed to the community from the offender. There is a need to prevent crime by deterring other people from committing the same similar offences. I do not believe that the offender himself will embark upon a course of conduct bringing harm to others. There are very good reasons why full-time imprisonment should be avoided in respect of this particular offender if that were possible having regard to the need that any offender be adequately punished in a way that is just and appropriate.

107. I have taken account of the mandatory considerations set out in s11(3) above and in the exercise of my discretion, I conclude that the sentence of imprisonment should be ordered to be served by way of an intensive correction order.

108. I make the following orders:

(a) For the offence of culpable driving causing grievous bodily harm to Ms Sia, the offender is sentenced to 12 months’ imprisonment (reduced from 16 months) to commence on 6 November 2020 and end on 5 November 2021.

(b) For the offence of culpable driving causing grievous bodily harm to Mr Valanis, the offender is sentenced to 12 months’ imprisonment (reduced from 16 months) to commence on 6 November 2020 and end on 5 November 2021.

(c) For the offence of culpable driving causing grievous bodily harm to EB, the offender is sentenced to 22 months’ and 15 days (reduced from 2 years and 6 months) to commence on 6 November 2021 and end on 20 September 2023.

(d) The offences concerning Mr Valenis and Ms Sia be served concurrently. Those sentences shall commence on 6 November 2020.

(e) The total period of imprisonment is 34 months and 15 days commencing on 6 November 2020 and ending on 20 September 2023.

(f) The sentence of imprisonment is to be served in the community by way of an Intensive Correction Order. The offender is to accept the supervision of ACT Corrective Services and comply with the core conditions specified in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT). It is an additional condition that the offender:

(i) Engage with a mental health service provider as directed by ACT Corrective Services

(g) The offender is disqualified from holding or obtaining a driver licence for a period of 24 months commencing on 6 November 2020.

(h) For the offence of drive with prescribed drug in oral fluid (transferred offence) I impose a fine of $200.

(i) For the offence of use unregistered motor vehicle (transferred offence) I impose a fine of $400.

(j) The fines are to be paid within 6 months of 6 November 2020. I certify that the preceding one hundred and eight [108] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson.

Associate:

Date: 6 November 2020