TRAFFIC LAW - Offences - evidence - impairment from alcohol consumption

Crimes Act 1900 (ACT), s 29(2)

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 35

Road Transport (Alcohol and Drugs) Act 1999 (ACT), s 15AA

Azzopardi v The Queen (2011) 35 VR 43

Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323

Clinch v The Queen (1994) 72 A Crim R 301

Kennewell v Rand [2006] ACTCA 10

Lu v The Queen [2008] NSWCCA 261; (2008) 190 A Crim R 109

Murnin v R (Unreported, New South Wales Court of Criminal Appeal, 16 August 1985)

R v Creighton (Unreported, Australian Capital Territory Supreme Court, Refshauge J, 28 October 2010)

R v Creighton [2011] ACTCA 13

R v Donaldson [1968] 1 NSWR 642

R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125

R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209

R v Kurzynski [2001] ACTSC 90

R v Kutshera [2008] NSWSC 1271; (2008) 51 MVR 485

R v MacIntyre (1988) 38 A Crim R 135

R v Madden (Unreported, Australian Capital Territory Supreme Court, Higgins CJ, 13 June 2008)

R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v Moffatt (Unreported, Australian Capital Territory Supreme Court, Penfold J, 12 June 2008)

R v Monfries (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 18 June 2013)

R v Nachouki (Unreported, Australian Capital Territory Supreme Court, Burns J, 17 September 2013)

R v Palmer (Unreported, ACT Supreme Court, Fox J, 14 June 1974)

R v Paton (Unreported, Australian Capital Territory Supreme Court, Penfold J, 2 December 2013)

R v Slattery (1996) 90 A Crim R 519

R v Thach (2010) 203 A Crim R 510

Steff v The Queen (1997) 96 A Crim R 1 at 5

1. Mark Kalevi Kekalainen be convicted of culpable driving on 16 March 2013 causing the death of Lorna Ann Cummings.

2. Mark Kalevi Kekalainen be sentenced to three years and four months' imprisonment to commence on 29 April 2014.

3. The first nine months of the sentence until 27 January 2014 be served in full time custody.

4. The next twelve months from 28 January 2015 to 27 January 2016 be served by way of periodic detention.

5. The first detention period commence on Friday 13 January 2015, when Mark Kalevi Kekalainen is to report to Symonston Periodic Detention Centre by 7:00 pm.

6. The sentence be suspended on 28 January 2016 for two years.

7. Mark Kalevi Kekalainen be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from 28 January 2016.

8. Mark Kalevi Kekalainen be disqualified from driving for a period of five years from 29 April 204.

1. It is often forgotten that motor vehicles have a lethal potential. It is so common to drive that the community overlooks the fact that tragedy is ever present in the driving of heavy machines, that motor vehicles are, at a significant speed on the road. To add alcohol to that situation increases the risk of tragedy very significantly yet we still see a steady stream of drink driving offences dealt with every weekday in the Magistrates Court in this Territory.

2. Mark Kalevi Kekalainen has pleaded guilty to and now stands to be sentenced for an offence of culpable driving while under the influence of alcohol so as not to have a proper control of a motorcycle on which he was riding and which caused the death of Lorna Ann Cummings. Culpable driving causing death is an offence against s 29(2) of the Crimes Act 1900 (ACT) which renders Mr Kekalainen liable to a maximum penalty of imprisonment for fourteen years.

3. Mr Kekalainen and Ms Cummings had been in a relationship since October 2012, though for personal reasons their relationship had been, as Mr Kekalainen described, "put on hold" for some time. There were, he said, issues that he needed to sort out. They remained close friends, however. Ms Cummings understood but was upset and, on 15 March 2013, Mr Kekalainen went to a local club and drank beer between 5:00 pm and 11:00 pm. He told police, apparently, that he had about five to six schooners of beer but acknowledged before me that he had clearly had more than that. He made a spontaneous decision to telephone Ms Cummings and arranged to collect her and go for a drive which he did. They drove on his motorcycle to the Cotter where they talked for a while and then commenced to drive home. Mr Kekalainen was driving the motorcycle and Ms Cummings was a pillion passenger. As they rode east on the Cotter Road about one hundred metres before the entrance to the Casuarina Sands Reserve, Mr Kekalainen lost control of the motorcycle and skidded into the guardrail on the left-hand side of the road.

4. I had helpful photographs and a diagram of the area of the incident. While the road on which they were travelling turns to the right in quite a steep corner, that was some distance ahead and the road was relatively straight with a slight turn to the right up to the point of impact. Ms Cummings was thrown from the motorcycle and the helmet that she was wearing came off in the impact. It is not clear how that happened. She had ridden as a pillion passenger many times before and there is no evidence to suggest that Mr Kekalainen put her helmet on or even helped her do so. She herself was affected by alcohol consumption. She suffered serious injuries to her head, chest and abdomen. Mr Kekalainen tried to provide her with help and the ambulance was contacted. She was taken to The Canberra Hospital where she died from her injuries.

5. Mr Kekalainen was subjected to a breath alcohol screening test at the site of the crash. It was positive and he was taken to Woden Police Station. He appeared to the police, in whose custody he was, to be suffering from shock. As a result, they took him to The Canberra Hospital where he was treated and also a blood sample was taken under s 15AA of the Road Transport (Alcohol and Drugs) Act 1999 (ACT). It was analysed to show a blood alcohol concentration of 0.152 grams per 100 millilitres of blood. That is at the lower end of a Level 4 reading, nearly thrice the permitted concentration.

6. Calculations provided by a forensic medical practitioner concluded that at the actual time of the collision, the blood alcohol reading for Mr Kekalainen would have been between 0.170 grams per 100 millilitres and 0.189 grams per 100 millilitres. The practitioner concluded that Mr Kekalainen would have suffered a significant adverse effect on his driving skills and would be incapable of being in proper control of the motorcycle. A more detailed analysis was also provided which showed that, at a blood alcohol of 0.07 grams, there would be a significant deficit in Mr Kekalainen's reaction time. Low levels of blood alcohol also adversely affect the ability to follow a path or search for a target in the presence of distracting objects, can affect vigilance and concentration and cause deterioration in the ability to attend to divided attention tasks. Information processing is impaired at levels below 0.08 grams per millilitres. Visual functioning is also sensitive to the effects of alcohol thus causing abnormal eye movements, difficulty in tracking moving objects, delayed recovery from glare, impaired colour dysfunction and tunnel vision. He referred to a comprehensive review which found that it could be:

... asserted scientifically that the faculties required in the operation of a motor vehicle will be impaired at BAC [I assume blood alcohol concentration] of 0.050% or greater.

7. This calculation did not vary between heavy and light drinkers. His conclusion was that for a driver with a blood alcohol concentration that Mr Kekalainen had, the statistical risk of a motor vehicle crash was more than ten times higher than that for a person with a blood alcohol concentration of zero. His opinion was that this was enough to render a person incapable of having proper control of a motor vehicle.

8. Mr Kekalainen told me that he heard that Ms Cummings had died from the injuries she received in the collision from a radio report. He said that he had then immediately made contact with the police. He was interviewed by the police and told them that he had hit loose gravel while riding and lost control before colliding with the guardrail. He told them that the two had ridden together a number of times and he felt comfortable with her as a pillion passenger.

9. Mr Kekalainen is forty-five years old. He grew up in Canberra, the fourth child of a family of six children. Unfortunately, his family had an alcohol problem. His mother and stepfather were heavy drinkers. His siblings became heavy drinkers, leading to volatile family disputes. He has distanced himself from them.

10. Since 2000, he had established close connections with his extended paternal family in Finland with whom he keeps in weekly contact. He has visited them and spent time with them in Finland. He has also been self-employed in the building industry for most of his working life, since he was twenty-one, and feels proud of the projects he has completed and his employment history.

11. I had a reference from a company to which he had been subcontracting and more recently for two years has been employed as a foreman. It described him as "honest and reliable" and that the company would "have no hesitation" in recommending him for a role as foreman in the future, and were the market circumstances suitable, would offer him a position in the future before advertising on the open market.

12. Mr Kekalainen was married, but he and his wife ended the marriage in acrimonious circumstances in 2011. There are two children of the marriage, aged seventeen years old and fifteen years old. He keeps in close contact with both his children. An informal custody arrangement is in place where they reside with him for part of the week, partly because his home is closer to the younger one's school.

13. He makes a significant financial contribution to his children's welfare, including dental, education and living expenses. Mr Kekalainen formed a relationship with a woman in August 2013. It is a positive and supportive relationship.

14. At the time of the breakdown of his marriage, Mr Kekalainen suffered some psychological distress and mood disturbance, for which he sought counselling. He has suffered intrusive thoughts and flashbacks to the collision. He sought counselling but is on a waiting list for treatment.

15. I note that Mr Kekalainen's waiting list is for counselling with Catholic Care and I was advised that a mental health treatment plan had been prepared dated 6 February 2014. Mr Kekalainen will be eligible for ten sessions of counselling. No date was set in the material given to me. His general practitioner recently diagnosed him with severe obstructive sleep apnoea requiring treatment.

16. Mr Kekalainen has used cannabis and finds it helpful to sleep. Given his family's alcohol problems, it is unsurprising that he is drinking significant amounts. He told the author of the helpful Pre-Sentence Report that he also used alcohol to help him to sleep. He felt his consumption was not problematic but an assessment by the author of the Report indicated a hazardous level of use. That is worrying but his lack of insight increases the concern about this.

17. Mr Kekalainen has a criminal history. He has four convictions. He was, in 2009, bound over to keep the peace and breached a good behaviour order but for which no action was taken. Of concern is that in 2009, he was convicted of driving with the prescribed concentration of alcohol at Level 3.

18. I had two character references from people well acquainted with him, both of whom knew that he was facing this serious charge. They described him as "a strong family man", "a loving father" who has "strong work ethics". He has shown great integrity and generosity to those in difficulties and treats his work with a desire for a fair outcome, including a forthright and honest approach to important and problematic issues in the building industry such as variations. Both referred to his remorse and his acute awareness of the pain he has caused to the family of Ms Cummings. They attested to the effect the incident had on Mr Kekalainen, describing it as "changing him as a person". I also received a letter which he had written to Ms Cummings and her family and friends. He apologised for his actions on what he described as his "total lack of thought". He expressed regret to her parents, recognising the pain that he had caused and hoping that it will ease for them. He apologised to Ms Cummings' brother and sister. He also apologised to his own family and friends, acknowledging that he never meant to put anyone through this ordeal.

19. I had Victim Impact Statements from Ms Cummings' mother and father. Mr Kekalainen had read them. As can be imagined, they expressed the pain and grief that a parent losing a child will suffer and which they will continue to experience. One of the most heart-wrenching aspects is that they could not say goodbye to her. Every day they are reminded of her and, of course, that she is no longer there, unable to talk to them, unable to provide them with that daily contribution and interaction that is the mark and blessing of a close family life. Reading them makes it clear that a wonderful life has been taken in this tragic and needless incident.

20. Ms Cummings was a talented musician, learning the violin from the early age of five and becoming recognised by outstanding musicians. She played for the premier Australian Chamber Orchestra until resigning and returning home, where she provided invaluable support to her parents. She loved riding as a motorbike passenger. Her parents desperately miss her. The Court expresses its sincere sympathy to them. Nothing it can do will change the fact of their tragic loss but it can and will recognise that an impressive and talented person has needlessly lost her life.

21. So often this offence is one of great tragedy. The loss of life of a valuable human being is bad enough but often, as in this case, the offender is a person who leads an ordinary sensible law-abiding life. Nevertheless, the offence is a serious one. Indeed, Fox J pointed out R v Palmer (Unreported, ACT Supreme Court, Fox J, 14 June 1974) that it is every bit as antisocial and perhaps more antisocial than a lot of other conduct more commonly recognised as criminal. Hunt CJ at CL, quoting R v MacIntyre (1988) 38 A Crim R 135 at 139, said, in R v Slattery (1996) 90 A Crim R 519 at 523:

It must be said that this class of offence is one which in many, perhaps even in most cases is committed by persons who are not in any sense members of the criminal class or who even have criminal convictions against them and for that reason the courts need to tread warily in showing leniency for good character to avoid giving the impressions that persons of good character may, by their irresponsible actions at the time, take the lives of others and yet receive lenient treatment.

22. Nevertheless, his Honour referred to what Street CJ had said in Murnin v R (Unreported, New South Wales Court of Criminal Appeal, 16 August 1985):

A motor vehicle is a potentially dangerous - indeed lethal - machine. Those who drive motor vehicles on public highways, as do the overwhelming majority of members of our community, must inevitably accept that if they drive those potentially lethal machines dangerously and occasion death or grievous bodily harm, then the criminal law will exact from them a penalty appropriate to the degree of criminality which the whole of the circumstances disclose. The legislature has always placed a premium upon human life and the taking of human life by driving a vehicle dangerously is by virtue of this particular section to be regarded as a crime of some seriousness.

23. These comments remain pertinent, as Fullerton J noted in R v Kutshera [2008] NSWSC 1271; (2008) 51 MVR 485 at 492; [39].

24. In Kennewell v Rand [2006] ACTCA 10 at [42], the Court of Appeal made a similar point when it said:

The courts must make it clear to the public generally that it views conduct of this kind seriously. The courts have a duty to ensure that persons who use the highways are not put at risk by persons who would drive like this appellant.

25. There is, as well as the nature and circumstances of the offence, the loss resulting from the offence, the plea of guilty, the responsibility of Mr Kekalainen for the offence, any demonstrated remorse and his cultural background, character, antecedents and physical and mental condition, to all of which I have referred above. I am required to take into account, under s 33 of the Crimes (Sentencing) Act 2005 (ACT), current sentencing practice. This accords with what the High Court said in Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323 at 331; [38], namely that the necessary information that a court needs to decide what sentence should be passed are the facts to be found, the relevant sentencing principles and comparable sentences.

26. On 24 November 2011, however, the penalty for this offence of culpable driving causing death was increased from a maximum of seven years' imprisonment to the present maximum of fourteen years' imprisonment. There is no doubt that sentencing courts must be mindful of such statutory increase as reminded by the Court of Appeal in Lawrence v The Queen (2007) 1 ACTLR 158 at 161; [9]. Thus, the penalty to be imposed must be greater than those previously likely to be imposed. Indeed, given the substantial increase in the maximum sentence, such sentences are to move "in a sharply upward manner" (R v Slattery at 524). Authorities such as R v Donaldson [1968] 1 NSWR 642 at 644, Steff v The Queen (1997) 96 A Crim R 1 at 5 and R v Thach (2010) 203 A Crim R 510 at 517-8; [22] do not require, however, that the increase be in the same proportion as the maximum has been increased. Apart from other considerations, that would fail to recognise that the severity of a sentence does not increase linearly as explained by Malcolm CJ in Clinch v The Queen (1994) 72 A Crim R 301 at 306, a decision followed in a number of other jurisdictions (see R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at 164; [16]; Lu v The Queen [2008] NSWCCA 261; (2008) 190 A Crim R 109 at 122; [59]; R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125 at 130; [16]; and Azzopardi v The Queen (2011) 35 VR 43 at 61; [62]). This is the approach I shall take.

27. Neither party referred me to the Guideline Judgment of the New South Wales Court of Criminal Appeal in R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209. As Higgins CJ said in R v Kurzynski [2001] ACTSC 90 at [26], the decision

is not directly binding on this court. Nevertheless, the views of the court of five senior and experienced judges of the Supreme Court of New South Wales is of considerable persuasive authority.

28. I respectfully agree. His Honour referred to the then lesser penalty applicable in the Territory and to the fact that the different sentencing regime in New South Wales, both of which must be borne in mind so far as the penalty is concerned; the penalty regime in New South Wales is, however, now that where the prescribed concentration of alcohol is present in the offender's blood, the penalty for the equivalent offence is now the same. This brings the relevance of the Guideline Judgment closer to the situation here. The guideline promulgated was that a non-custodial sentence for the offence other than for cases of momentary inattention or misjudgement should be exceptional and that, even with a plea of guilty, where death has been caused and there has been an aggravating feature of alcohol consumption, the minimum custodial term should not be less than three years.

29. I have also had regard to what the Court of Appeal said in R v Creighton [2011] ACTCA 13. This was a decision delivered at a time when the maximum penalty was seven years' imprisonment. Although dependent upon the lower penalty, I have considered the decisions to which I referred in R v Creighton (Unreported, Australian Capital Territory Supreme Court, Refshauge J, 28 October 2010) and those referred to by Penfold J in R v Moffatt (Unreported, Australian Capital Territory Supreme Court, Penfold J, 12 June 2008). I was also provided with a number of other cases that were said to be helpful. Mr J Lawton, who appeared for Mr Kekalainen, referred to two decisions. The first, R v Nachouki (Unreported, Australian Capital Territory Supreme Court, Burns J, 17 September 2013), involving a charge of culpable driving causing grievous bodily harm, a different offence and so of limited value. There Ms Nachouki was heavily intoxicated when she was driving. The report does not identify the injuries caused to the victim. The sentence imposed was of three years' imprisonment, the first six months to be served by full-time custody but which was served, in fact, in residential drug and alcohol rehabilitation followed by a period of three months' periodic detention with the balance of the term of imprisonment suspended and a three-year good behaviour order was made. In R v Paton (Unreported, Australian Capital Territory Supreme Court, Penfold J, 2 December 2013), the son of the offender was killed in a serious collision. Mr Paton pleaded not guilty and was convicted by a jury. The collision occurred on 5 July 2009, so Mr Paton was subject to the lower earlier penalty regime. Another passenger in the car was injured, suffering grievous bodily harm. Mr Paton had a blood alcohol concentration of 0.281 percent. For the offence of culpable driving causing death, Mr Paton was sentenced to four years and four months' imprisonment.

30. The Crown referred me to Kennewell v Rand and two other decisions. In R v Madden (Unreported, Australian Capital Territory Supreme Court, Higgins CJ, 13 June 2008), the offender pleaded guilty to the offence of culpable driving causing grievous bodily harm. This, and the fact that the penalty regime related to the lower range, made the comparability of this case marginal at best. Mr Madden was shown to have a blood alcohol reading of 0.271 percent. He was sentenced to twelve months' imprisonment to be suspended after six months, with a good behaviour order for two years from the date of his release. In R v Monfries (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 18 June 2013), the offender, who stole a motor vehicle and after colliding with a car, was then involved in a police chase which resulted in Mr Monfries driving through a red light where he killed a pedestrian crossing in conformity with the green light and seriously injured another pedestrian. Mr Monfries was on conditional liberty at the time and had the prescribed concentration of alcohol in his blood as well as having smoked cannabis. For the offence of culpable driving causing death, Mr Monfries was sentenced to imprisonment for ten years and nine months. As Mr Monfries was sentenced for a large number of other offences, the sentences for which were partly accumulated, the non-parole period is not directly relevant.

31. I take into account the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act. As to those factors set out in s 33 of that Act which I must take into account, I note as follows.

32. Mr Kekalainen initially pleaded not guilty but changed his plea on his fourth appearance in the Magistrates Court, when he was committed to this court for sentence. In my view, that was a relatively early plea.

33. Although the evidence of his blood alcohol concentration was clear, the circumstances of the incident and his alternative explanation at the time meant that the Crown case was by no means overwhelming. I have described the nature and circumstances of the offence above. It was a serious offence and a serious example of the offence. Of course, the offence caused the loss of a life which also marks out the serious nature of it. The fact that alcohol was involved is also an aggravating factor.

34. I take into account the grief and loss suffered by Ms Cummings' parents, especially as eloquently and movingly expressed in the victim impact statements.

35. There is no doubt that Mr Kekalainen was responsible for the offence and he has accepted that full responsibility. He presented himself voluntarily to police before they contacted him and participated in an interview in which he made some admissions. It seems to me that this entitles him to some discount under s 35A of the Crimes (Sentencing) Act.

36. I have described Mr Kekalainen's personal circumstances above. These show that he has a relevant prior conviction. They also show that his drinking was a product of his family background. He has, however, been a productive and, for the most part, worthwhile member of the community. In that regard, however, I note what the Court of Appeal said in Kennewell v Rand at [38]:

We do not agree with the appellant's counsel's oral submissions that there is any principle that for offences of this kind the court must give generous and indeed overwhelming weight to matters subjective to the offender. Nor do we agree that there is any principle that in relation to offences of this kind, any outcome will not involve the serving of a period of imprisonment. Both propositions are contrary to the provisions of the Act and the authorities on sentencing.

37. Mr Kekalainen's financial circumstances have been briefly mentioned and though he has no current employment, he has since managed to remain in employment and not rely on the community for his daily support. The sentences I must impose will place his children at some hardship and in my view, I am entitled to give that some weight in sentence which I will do.

38. I take into account Mr Kekalainen's remorse. The fact, too, that he and Ms Cummings had been in a relationship is relevant. That they had temporarily suspended the relationship does not mean that they were not more likely than not to be going to resume it. I so find. To cause the death of someone important to you is a severe punishment in itself though it can only ameliorate any curial punishment to a limited degree.

39. I note that Mr Kekalainen has been found suitable for a community work condition for a good behaviour order and that such work is available. I note also that he has been found suitable to serve a sentence of imprisonment by periodic detention and has signed the required undertaking. Nevertheless, the seriousness of the offence means that no other sentence than a sentence of immediate full-time custody is appropriate.

1. I convict you of the offence of culpable driving on 16 March 2013 causing the death of Lorna Ann Cummings.

2. I sentence you to three years and four months' imprisonment to commence today. Had you not pleaded guilty and provided assistance to the authorities, I would have sentenced you to five years' imprisonment.

3. I direct that the first nine months of the sentence until 27 January 2015 be served in full-time custody.

4. I set the next twelve months, that is from 28 January 2015 to 27 January 2016, as a period of the sentence to be served by periodic detention.

5. I direct that the first detention period commence on Friday 13 January 2015 when you are to report to the Symonston Periodic Detention Centre by 7:00 pm.

6. I suspend the sentence on 28 January 2016 for two years.

7. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of two years from 28 January 2016.

8. I disqualify you from driving for a period of five years from today.

9. I recommend that the treatment for major sleep apnoea be continued while you are in custody.

41. [His honour then spoke directly to Mr Kekalainen]

42. Mr Kekalainen, that is the formal order that I have said. I have assessed the seriousness of this offence, notwithstanding your personal circumstances, to require a sentence of three years and four months' imprisonment reduced from five years' imprisonment because of your plea of guilty and you going to the police and participating in a record of interview. The first nine months must be spent in full-time custody because of the seriousness of the offence. I have reduced that from what I would otherwise have imposed because of your employment prospects and the obligations that you have to your children. That allows me to set a further twelve months' period for periodic detention. I appreciate that periodic detention, which requires weekend custody and the deprivation of liberty, is a challenge for someone in the building industry, but I am confident that, with your background, you will be able to secure employment for that period of time and continue to provide valuable assistance to your family and to be a valuable member of the community. After that, I have suspended the balance of the sentence with a good behaviour order. That principally requires you not to commit any further offences punishable by imprisonment. If you do commit such offences, you will be brought back before me and can be resentenced for the offence which could include a period of imprisonment.

43. I do not regard you as requiring supervision. You have lived for forty-five years and been, apart from some prior convictions, a worthwhile member of the community. This is a tragedy for everyone, not least for you, but of course for Ms Cummings' parents, and you will have to live with that and no doubt that will not stop you from reintegrating in the community in due course. I certainly hope so. I certainly hope that this is a completely one off situation and that the criminal courts will not see you again.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Applicant: ACT Director of Public Prosecutions