R v Judge [2021] ACTSC 118 | Case summary | Zoe

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R v Judge [2021] ACTSC 118 | Case summary | Zoe

The facts relating to the offending are agreed and are, in summary, as follows.
On Saturday, 7 December 2019 the offender was driving a black Holden Commodore ute. He was travelling down Flemington Road towards Mitchell. There was a passenger seated beside the offender in the front passenger seat. The other passenger, the identified victim, who was the owner of the vehicle, was lying unrestrained in the rear tray of the ute. Both passengers were friends of the offender.
The relevant portion of Flemington Road is an arterial road with two lanes in each direction which has a speed limit of 60km per hour. Each set of two lanes is divided by a centre median strip. A concrete surface with rail lines that form part of the Canberra metro light rail is located on the western side of Flemington Road.
As the offender drove north along Flemington Road from the second lane, the ute mounted the centre median with the right-side tyres of the vehicle creating a furrow in the woodchips on the median strip.
The offender then lost control of the ute. It rotated anti-clockwise across both northbound lanes of Flemington Road before colliding heavily with the gutter on the western side of the road, crossing the light rail line and colliding with a large power pole. It rotated clockwise before coming to a stop resting against a metal railing.
The offender sustained serious injuries from the incident including a fractured right femur and a fractured pelvis. He was initially trapped in the vehicle. The front seat passenger was not seriously injured and was able to extricate himself from the vehicle. Both men were taken to the Canberra Hospital.
The victim was ejected from the tray of the ute as a result of the collision and landed in a nearby water reservoir. He sustained life-threatening injuries that included complex traumatic cervical spinal fractures and a spinal cord injury. The victim was initially taken to the Canberra Hospital where active resuscitation was required to preserve his life. Less than a day later he was transferred by air to the Royal North Shore Hospital in Sydney for specialist spinal treatment where he spent 20 days. He was then transferred to the Prince of Wales Hospital where he spent 99 days in the spinal injuries unit before being transferred back to Canberra and spending 20 days at the University of Canberra Rehabilitation Hospital. In total, the victim spent 139 days in hospital because of the incident.
The lead up to the incident was captured on CCTV. It is an agreed fact that the footage appears to show the offender travelling above the speed limit for the road. However, that agreed fact and the footage is not sufficient to establish beyond reasonable doubt that he was exceeding the speed limit or driving at a speed which was excessive in the circumstances.
Approximately one and a half hours after the incident, a compulsory blood sample was obtained from the offender at the hospital pursuant to s 15AA of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). Analysis of that sample revealed that the offender had a blood alcohol level of .186 grams per 100 millilitres of blood and also detected the presence of N,alpha-Dimethyl-3,4-(Methylenedioxy)phenylethylamine (MDMA). It is the presence of the MDMA that gives rise to the charge of contravening s 20 (1) of the Road Transport (Alcohol and Drugs) Act.
The injuries suffered by the victim are described in detail in the report of Dr Jane Van Diemen. They include complex and unstable cervical spine fractures and associated spinal cord injury, laceration and bruising to the scalp, broken ribs and associated damage to the lung tissue, a displaced fracture of the collarbone, a blunt trauma injury to his spleen and abrasions to his face and nose. He developed multiple complications from these injuries including a collapsed lung, lower limb muscle spasms and neurogenic bladder overactivity. He will suffer permanent and long lasting consequences of his injuries including neurological impairment, spasticity and spasms as a result of his spinal cord injury, scarring from surgeries, ongoing pain and psychological consequences.

In R v Ogle (No 2) [2018] ACTSC 126 I referred to the relatively small number of sentences for the offence of culpable driving causing grievous bodily harm and the fact that they did not reveal “any consistent pattern or range of sentencing”. I then referred to the decision of the New South Wales Court of Criminal Appeal in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 (Whyte) as follows:
The guideline judgment given by the Court of Criminal Appeal in R v Whyte [2002] NSWCCA 343; 65 NSWLR 252 indicates that for the corresponding offence in New South Wales (Crimes Act 1900 (NSW), s 52A(3)), which carries a maximum penalty of seven years imprisonment, a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement: at [215]. The judgment also establishes that where the offender’s moral culpability is high, a full-time custodial head sentence of less than two years would not generally be appropriate: at [229]. This latter statement was based upon a “typical case” involving; a young offender of good character with no or limited prior convictions, permanent injury to a single person, the victim being a stranger, with no or limited injury to the driver or the drivers intimates, genuine remorse and a plea of guilty of limited [utilitarian] value: see [204]. It is notable that the present case is consistent with the features of the typical case identified in R v Whyte. 37. Aggravating features identified in that case (at [216]-[217]) were 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. x. Degree of sleep deprivation. xi. Failing to stop.
The present case is distinguishable from the typical case discussed in Whyte because the offender himself suffered significant injuries. So far as the aggravating features identified in Whyte are concerned the extent and nature of the injuries inflicted are very grave. There were two people apart from the offender himself that were obviously put at risk. Driving with that level of intoxication presented a clear risk to other road users, however, traffic was light in the evidence does not establish any particular risk to other persons on or near the road. The offender was substantially intoxicated by alcohol having a blood alcohol reading of .186 g per hundred millilitres of blood. The agreed facts and the CCTV do not establish beyond reasonable doubt that the offender was speeding. The evidence as to the length of the journey indicates that it was not short, being from Braddon with the intended destination of Gungahlin. The factors in Whyte do not specifically incorporate the significant aggravating feature found here, namely that the victim was travelling unsecured in the back of the ute — a matter which is so obviously dangerous that it substantially increases his moral culpability for the offending and hence is a significant aggravating factor. Overall, I would assess the offending as being at the upper end of the mid-range of objective seriousness.

The offender’s subjective circumstances are set out in a pre-sentence report dated 20 May 2021.
The offender is 28 years old. He was born and raised in the ACT by his mother and grandmother. He reports supportive relationships with both his mother and his father, who he met at 13 years old.
The offender left the formal education system after completing year 10. He is currently employed in the construction industry and has been steadily employed in that industry for the last seven years.
He is currently in a long-term relationship but has no children.
He has some history of alcohol abuse following the breakdown of a long-term relationship in 2018. He acknowledged that he was intoxicated at the time of the offending. His alcohol consumption increased shortly after the offending as a result of low mood and boredom.
He has some history of use of cannabis, MDMA and cocaine. He reported that he had last used illicit substances on the day the offences took place. He has participated in six alcohol and drug counselling sessions with a counsellor at Catholic Care.
The offender reported that his mental health is currently stable. He has previously experienced periods of low mood, including in 2018 after his relationship breakdown and after the current offences took place. He attributed his low mood after the offences to feelings of remorse, being incapacitated from his own injuries and being unable to work or maintain his regular lifestyle.
The offender recognised that he had made a poor decision which led to the offending and expressed remorse for his actions. He did not attempt to minimise his actions or the seriousness of the offence.
The author of the report assessed the offender as being at “medium low” risk of general re-offending. He was assessed as suitable for a community service work condition and suitable for an Intensive Correction Order (ICO).
The offender’s oral evidence at the sentencing hearing elaborated upon some aspects of detail relating to the offending. It indicated that the decision to drive occurred in an unfortunate context where he had not intended to drive and alternative transport was available. It was a consequence of muddled thinking by an intoxicated person. It is very clear that he regrets his decision for a variety of reasons.
He also elaborated upon the consequences of the accident for himself which included six or seven weeks in hospital and that it took four or five months before he was able to walk properly following the accident and the operations required to address his injuries.
Three character references were tendered attesting to the offender’s good character. The reference from his current partner attests to the ongoing remorse felt by the offender for the impacts of his offending on his friend and to his hard work and family orientation. She described him as a “kind, hard working and honest man”, an assessment which I accept. A letter from Catholic Care describes the counselling sessions which continued up until November 2020.

The significant features of the offending are the involvement of alcohol, the gravity of the injuries and the fact that the offender himself was injured during the accident. While the offender does have some criminal history he appears to be leading a productive life, in employment with a supportive relationship.
The significant sentencing considerations in a case like this are general deterrence, denunciation of the conduct and recognition of harm done to the victim. Given the offender’s limited criminal history and relatively low risk of reoffending, rehabilitation is a less significant sentencing consideration. Given his own injuries in the accident and his subjective circumstances, specific deterrence is not a significant sentencing factor.
I was referred to a number of cases involving culpable driving causing grievous bodily harm: R v Castles [2018] ACTSC 358; 87 MVR 187; R v Woods [2017] ACTSC 17; R v Richardson [2016] ACTSC 133; R v Fanti (Unreported, Supreme Court of the ACT, Penfold J, 8 January 2014); R v Higgins [2020] ACTSC 299; 94 MVR 367 (Higgins); R v Fountain [2018] ACTSC 329; 87 MVR 72 and R v Ogle (No 2) [2018] ACTSC 126 and R v Barton [2016] ACTSC 162; 77 MVR 47. I have taken these sentences into account. Particular reliance was placed by counsel for the offender on the decision in Higgins to deal with a matter by way of an ICO. In that regard, I was also referred to the decision in The Queen v Angel [2021] NSWDC 4 (Angel) and the decision referred to in that case of R v Pullen [2018] NSWCCA 264.
It is my view that, consistent with the submissions of the parties, it is a case in which on the charge of culpable driving causing grievous bodily harm, the only appropriate sentence is a custodial one.
The appropriate starting point is a sentence of 26 months’ imprisonment reduced to 21 months on account of the plea of guilty.
The point of disagreement between the parties was as to whether or not the sentence should involve a period of full-time detention. Counsel for the offender submitted based upon Higgins and Angel that the matter could appropriately be disposed of by way of an ICO. Counsel for the Crown submitted that only a period of full-time detention would adequately reflect the purposes of sentencing in this case.
The personal circumstances of the offender demonstrate the lack of social utility in a sentence involving full-time detention. He has a full-time job, a long-term relationship and a very limited criminal history. The community does not need protection from him.
On the other hand, service of the sentence by way of intensive correction would involve little different to the imposition of a conditional good behaviour order. There are no particular circumstances of the offender which would appropriately be addressed during the course of an ICO. While that does not preclude the making of such an order it must be taken into account in assessing whether a disposition by way of an ICO would adequately reflect the need for general deterrence and recognition of harm done to the victim. I do not accept the submission made on behalf of the offender that his past difficulties with alcohol would alter this assessment. The evidence was that his alcohol use was currently minimal. His alcohol use in the past is not such as to demonstrate a need for long-term rehabilitation.
The essential issue is whether or not in the circumstances of this case, the sentencing goals of general deterrence and recognition of the harm done to the victim would be adequately reflected in a sentence that did not involve a period of full-time detention. Counsel for the Crown submitted that it would not. She identified this as “a regrettable conclusion”. I too have reached the same regrettable conclusion. In my view, a sentence not involving a period of full-time detention, even if combined with the maximum permissible community service obligation, will not adequately recognise the moral culpability of the offender, the gravity of the harm done to the victim and the need for general deterrence for such obviously dangerous conduct.
The sentence will be suspended after the offender has served five months’ full-time detention. The automatic period of disqualification under s 62 of the Road Transport (General) Act is six months and I will make no order increasing that period. Given the automatic nature of the disqualification it is not necessary to make any order relating to disqualification.
On the count of driving with a prescribed drug in his blood, the offender will be fined $500. I will make an order under s 34 of the Road Transport (Alcohol and Drugs) Act reducing the default time of disqualification of five years down to the minimum permissible disqualification of 12 months.
Pursuant to s 69 of the Road Transport (General) Act, I will order that these periods of disqualification will be concurrent. The reason that I do so is that the principal punishment for this offending will be the period of imprisonment. Having regard to that component of the sentence, it would be in my view counter-productive to impede the offender’s capacity to return to full-time employment by imposing other than the minimum possible period of disqualification from driving.