R v Laidlaw [2022] ACTSC 215

Mitchell Laidlaw stands to be sentenced for two driving offences. The first is an offence of culpable driving causing death, contrary to s 29 of the Crimes Act 1900 (ACT), which carries a maximum penalty of imprisonment for 14 years. The second is a charge that has been transferred from the Magistrates Court, an offence of driving with an illicit drug (methamphetamine) in his oral fluid, contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). For the latter, the offender is a repeat offender and therefore faces a longer period of disqualification than for a first time offender.

The offender pleaded guilty to the drug driving charge in the Magistrates Court and the offence of culpable driving was committed to this Court for trial. However, shortly before the date fixed for trial, he pleaded guilty to that second offence. The plea must be classified as a late plea, but there was a measure of cooperation with the prosecutorial process prior to the entry of the plea and I am satisfied that the full discount of 10% should be allowed.

The offence of culpable driving causing death is always one of great tragedy; particularly where, as here, the culpability of the driver, while reflecting a serious departure from the standard required of persons driving on public roads, is acknowledged to entail only momentary inattention or misjudgement. Mr Laidlaw was not engaging in street racing or a course of recklessness. He was not seeking to escape from police, he was not ignoring warnings, he did not expose a substantial portion of the public to danger for any extended period. He was speeding by about 10 km/h over the speed limit of 70 km/h and misjudged the circumstances ahead of him.

The victim, Susan Salthouse, was a much-loved, admired and accomplished member of the community. She was a powerful leader and advocate for disability rights, having herself become disabled about 28 years earlier when she fell from a horse and was left paraplegic. She lived alone but was fiercely independent. She had a driver's licence and owned a car. She also used a wheelchair-accessible motorcycle and that is what she was riding on the day of the accident. That vehicle operated by securing her wheelchair to a motorcycle, which had three wheels, and then being secured to the motorcycle using a seatbelt across her lap.

On the afternoon of the accident, 20 July 2020, Ms Salthouse was riding along Commonwealth Avenue after having lunch with a friend. That road is a straight piece of road with three lanes for motor vehicles and a designated bicycle lane. The line of sight across the Commonwealth Bridge is clear and there are no obstructions for approximately 450 metres approaching the bridge. Mr Laidlaw was also travelling on Commonwealth Avenue in the same direction as Ms Salthouse. He was driving a black Nissan Navara utility. There were no defects with his vehicle, which was examined after the accident.

Ms Salthouse had just passed the intersection of Albert Street and Commonwealth Avenue when she was struck from behind by Mr Laidlaw. He was then travelling at approximately 80 km/h at the time of impact. As I have said, the speed limit was 70 km/h. It is an agreed fact that he did not brake or take evasive action prior to the collision, although his vehicle was seen to decelerate quickly immediately after the collision.

The force of the collision caused Ms Salthouse to pitch backwards and she struck her head against the bonnet of Mr Laidlaw's vehicle, which propelled her motorcycle forward. Her vehicle travelled across the three southbound lanes of Commonwealth Avenue over an approximate distance of 170 metres until it struck the centre median strip.

The police who first attended at the scene spoke to Ms Salthouse and observed that she was disoriented. She had evidently suffered multiple injuries. Police also spoke to the offender and he, at that point, returned a positive result for a roadside drug test. The deceased was taken to hospital but died overnight. She suffered multiple injuries including multiple rib fractures, a high thoracic spinal fracture, pelvic fracturing, internal haemorrhaging, and bilateral collapsed lungs. A forensic pathologist, Professor Duflou, concluded that the cause of her death was multiple injuries sustained during the motor vehicle collision. The offender, upon being notified of the death, is described as having been devastated.

A crash investigation by the AFP Major Collision team reached the following conclusions: (a) that Ms Salthouse’s vehicle was travelling at approximately 42 km/h immediately prior to the collision; (b) that the offender’s vehicle was in good mechanical order; (c) Ms Salthouse’s was not, having a broken brake cable; (d) there was no evidence or suggestion that the offender was using his mobile phone at the time; and (e) allowing for a standard reaction time of 2.5 seconds from when a driver sees a hazard until when they react, the offender had sufficient time and distance to brake and avoid the collision on the basis that he had seen the deceased’s vehicle ahead of him at the time and place he stated to police.

The offender participated in a record of interview during which he stated that he had recalled noticing the motorcycle as he passed the bus stop on Commonwealth Avenue which is about 162 metres from where the collision took place. He accepted that the weather conditions were good at the time and that he had an unobstructed view of the road ahead. He also accepted that there were no other vehicles between himself and the deceased’s vehicle immediately prior to the collision.

As he approached closer to the deceased’s vehicle, he realised it was travelling much slower than his. He perceived it to be appearing to slow to a stop. He activated his brakes and changed gears but was unable to avoid the collision.

He admitted that he had consumed methamphetamine at a party a few nights before the accident. He told police that he did not feel affected by the drug at the time he consumed it or at the time of the collision and the latter impression is confirmed by police who described him as being lucid and communicating clearly at the time of their conversation with him after the accident.

The basis on which the offender is responsible for the offence of culpable driving is that he negligently failed to keep a proper watch of the road and surrounding vehicles and to apply his brakes in accordance with traffic conditions. His excessive speed contributed to his negligence. The Crown accepts that this is a case of momentary inattention or misjudgement.

As already recorded, the Crown does not suggest that the offender was impaired by, or under the influence of, methamphetamine at the time of the collision. The offender at the time of the offence had no prior convictions for criminal offences. He had prior traffic convictions including one prior conviction for drug driving in 2015.

Victim impact statements were read to the Court from Ms Salthouse’s sister, daughter and stepchildren. Those statements reveal, in painful detail, the devastating impact of a fatal motor vehicle accident on the friends and family of the victim. While every human life has its own value, the death of Ms Salthouse has clearly left a gaping hole in the lives of her loved ones and the broader community.

Her sister spoke of the gap that is left in her life following Ms Salthouse’s death. She said her absence leaves an irreplaceable gap, leaving her unable now to share family worries, joys and minor triumphs and to seek advice when she needs it. She said that she felt deeply saddened and angry to be deprived of the future the sisters would have shared as they aged together.

Ms Salthouse’s daughter spoke of the way in which she has been haunted by memories of the events of the evening of the accident. Without descending to the personal detail of her grief, it is plain that it has been profound. She stated that her mother was not done making the world a better place and that this offence has robbed Canberra and Australia of a fierce advocate for women and people with disabilities. She said that Ms Salthouse had spent decades building the momentum she had and was making changes. Her specialised knowledge about disability advocacy was all in her head and she fears that much of that has been lost by the death of the deceased.

The deceased’s stepdaughters spoke with one voice of the loss they have experienced from the death of their stepmother. One described the deceased as being full of life from the moment they met to the moment she died. She described the deceased as having a motto, “life is fun we are on an adventure”, and that she was used to putting two words together, “strong women”, which shaped the stepdaughter’s opinion of herself and other women, and what women are capable of.

The other stepdaughter described her as a much-loved member of the community who is thought about every day. She said hardly a day goes by when the family does not hear about some award or honour being bestowed on the deceased, which she said means the family does not choose when they grieve because they are constantly reminded of the things she achieved.

Finally, the deceased’s stepson spoke of his distress as to the details of the time of the offence. I wish particularly to record what he said in the conclusion of his victim impact statement which entailed an open-minded clarity of thinking and graciousness about this offence. He said: “Sue’s death was a tragedy, not just for my family, but also for Sue’s friends, colleagues, the disability community, and the many future leaders Sue was mentoring. Mr Laidlaw, I know that your role in Sue’s death has also been a tragedy for you and your family. I thank you for pleading guilty, it has spared me and my family the impact that a trial would have had on us, I am grateful for this decision. Lastly, Mr Laidlaw, I want you to know that I bear you no ill will.”

That statement plainly reflects the same goodness and kindness that Ms Salthouse displayed throughout her life.

It is necessary for the Court to undertake an assessment of the objective seriousness of the offence. The Crown’s submissions recited a number of authorities as to whether or not the Court is required to specify the objective seriousness or to say where it falls on a spectrum. It is beyond dispute that a sentencing judge is required to make some assessment of objective seriousness. That assessment lies at the heart of the sentencing exercise. Whether the conclusion is expressed by the use of adjectives or as a point on a line is perhaps a matter of individual preference, but the assessment must be made and, for transparency, recorded in some way.

Here, the Crown submits, and I agree, that the objective seriousness of the offence falls towards the lower end of the range, it being common ground that the offender’s culpability is based on momentary inattention. The parties noted that the guideline judgment of the New South Wales Court of Criminal Appeal in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 is of some assistance in making that assessment: Monfries v R [2014] ACTCA 46; 245 A Crim R 80. It should be born in mind that a guideline judgment in New South Wales has the status of a mandatory consideration by force of and in the manner explained in ss 21A(4) and 42A of the Crimes (Sentencing Procedure) Act 1999 (NSW). There is no statutory equivalent in the Australian Capital Territory. In Monfries, the Court of Appeal nonetheless accepted that, while not binding in this jurisdiction, the decisions in Whyte and the earlier guideline judgment of R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209 identify factors of aggravation and mitigation that may also be relevant to courts in this jurisdiction in the assessment of objective seriousness: at [89] (Murrell CJ); [126]–[131] (Burns J); [199] (Ross J). Murrell CJ was in dissent as to the result in Monfries but the Court was unanimous as to the approach to the New South Wales guideline judgments.

The judgment in Whyte sets out a list of usual attributes of this kind of offence and, separately, a list of potential aggravating factors. The present case has many of the usual attributes: the offender was relatively young and a person of good character with limited prior convictions, the victim was a stranger to him, he has shown genuine remorse and he has entered a plea of guilty.

In the guideline judgment it is assumed that the plea of guilty is of limited utilitarian value. However, having regard to the victim impact statement to which I have referred, the plea here must be regarded to have considerable utilitarian value in having spared the family the ordeal of a trial: cf Monfries at [56].

It was common ground that the present case involves only one of the aggravating features identified in the guideline judgment, namely, the fact that the offender was travelling at speed. As already noted, it was also accepted that the accident was the result of momentary inattention or misjudgement. It is to be compared with cases at the other end of the scale involving factors such as street-racing or fleeing from police.

The proceedings on sentence have had an unusual path. The proceedings first came before me on 30 March 2022. At that point the Crown, accepting that the case was one of momentary inattention or misjudgement, submitted that, while no penalty other than imprisonment was appropriate, the central issue was the way in which that sentence should be served. The offender accepted that no penalty other than imprisonment was appropriate and I agree. It is plain in this case that the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) is passed.

However, the Crown accepted, consistent with the guideline judgment in Whyte and a number of comparable decisions summarised in a schedule to the written submissions, that it would be open to the Court within the proper exercise of the sentencing discretion to order that any sentence of imprisonment be served in the community.

The Crown suggested that the decision in R v Barnett [2016] NSWDC 302 is of particular relevance here. That was a case involving a truck driver who was momentarily inattentive when he looked across the water and took his eyes off the road as he drove along a freeway musing on what a lovely day it was. The result was a fatal collision with a car that was stopped on the freeway. He was sentenced to a term of imprisonment for two years but was ordered to serve that sentence by way of Intensive Correction Order (ICO).

On the strength of those submissions, I referred the offender for assessment for an ICO, as required by s 78 of the Crimes (Sentencing) Act. Unfortunately, in response to that first referral, the offender did not attend any of three appointments scheduled for him. It transpired that the letters fixing those appointments were sent to an old address which, as noted by the Crown when the matter was next in Court, meant that the offender had breached his bail by not informing authorities of the change of address. When the matter came back before me on 27 May 2022, I nonetheless formed the view that, notwithstanding the offender's failure to present for assessment, the Court would be better informed if an assessment was provided. Over the objection of the Crown, I ordered another assessment report.

The report provided to the Court in due course was mixed. It included the following information. First, the offender did engage with Corrective Services for the purposes of the preparation of the report but sporadically so. The report stated that he had been dishonest with Corrective Services on multiple occasions. The report spoke to the offender's very supportive upbringing and his positive relationships with his family and partner. There is ample support for that aspect of the report in character references provided by the offender's parents, grandmother and partner, which speak in glowing terms of him as a positive person, a lovely family member and a caring parent. The pre-sentence report also spoke of the offender's good employment history.

Separately, however, the report identified that there had been greater drug use than had previously been admitted by the offender. The agreed facts included a statement that the offender has used methamphetamine once, coincidentally only days before the present offence. That was implausible and it turned out to be a lie. Pressed by Corrective Services, the offender admitted that he had used drugs when he was younger and had started again about three years before the offence.

The report identified two occasions when Corrective Services required the offender to undergo a urinalysis. On each occasion, he tested positive for methamphetamine and amphetamine. It is within the knowledge of the Court that amphetamine is a metabolite of methamphetamine, so those results do not indicate the consumption of both drugs. They do, however, suggest the consumption of methamphetamine on more than one occasion. The dates on which those positive tests were obtained were 23 June 2022 and 8 July 2022.

On the earlier date, 23 June 2022, the offender attended for a rescheduled appointment that he had missed with Corrective Services on 22 June 2022 when he said he had a toothache. He told the author of the report at that time that he could not drive because the number plates on his partner's vehicle had been stolen. Then, on 23 June 2022, he attended and evidently drove: he was pulled over by police later that day and ultimately charged with a number of offences including drug driving. On 9 July 2022, he was charged with further driving offences and it was then that the offender was remanded in custody.

Returning to the pre-sentence report, the offender's explanation for returning to the use of drugs was initially to cope with the stress of employment, then financial strains. It is clear enough that, most recently, he has spiralled into increased drug use. The report recorded that this was due to the unknowns connected with the current charges. The irony, of course, is that that method of coping has exacerbated the threat for the offender of those unknowns.

The report confirmed that the offender was absolutely devastated by the consequences of the offence. I accept that to be the case, particularly having regard to the other material before me from the offender's family. It is clear enough that he has inflicted a great measure of self-punishment, feeling devastated and intensely grieved by the consequences of the offence. During the proceedings on sentence, he expressed a willingness to engage in Restorative Justice in order to express his devastation to Ms Salthouse's family. He has, this afternoon, confirmed that willingness to me and I have made the relevant referral.

The pre-sentence report assessed the offender's risk of reoffending to be medium-high. Probably a significant factor in that assessment was the dishonesty he displayed to the authors of the report which triggered doubts as to his likely engagement in rehabilitation. For that reason, he was assessed to be not suitable for a community service work condition because he was characterised as having a major problem with a controlled drug. The report recorded that, despite that finding, he would be able to complete a period of community service work if ordered.

As submitted on behalf of the offender, the subsequent offences do not alter the objective seriousness of the offence. I must be mindful of the fact that I am still dealing with the offender for an offence at the lower end of the range of objective seriousness. However, the subsequent offences are relevant to his prospects of rehabilitation, the need for specific deterrence and my assessment of his risk of reoffending.

The proceedings came back before me on 15 July 2022. Unsurprisingly, in light of the further charges, the Crown that day resiled from its concession that it would be open to the Court to order a community-based sentence. At the time that position was articulated, the offender was in custody on remand in relation to the fresh charges. I adjourned the proceedings for those matters to be dealt with in the Magistrates Court. Acknowledging the force of the Crown’s submissions, I also revoked bail that day.

The new charges were dealt with on 18 July 2022. The Magistrate imposed a period of imprisonment which, when backdated, meant that the offender was eligible for release that day. However, he remained in custody on the present matter. Her Honour also imposed a period of licence disqualification for the second offence of drug driving of 15 months. The offender has accordingly been in custody for these matters alone since the finalisation of the Magistrates Court matters on 18 July 2022.

The offender submits and I accept that entering custody for the first time would be a life-changing experience. In the present case, it is one he has experienced in very onerous conditions due to the restrictions resulting from the COVID-19 pandemic. An illustration of that is the disruption to these proceedings caused by shutdowns in the gaol, including the fact that the offender was due to be sentenced on 9 August 2022 but could not be brought to Court that day because the gaol was in lockdown. It was submitted, on his behalf, that this experience has been most salutary and amply meets the object of specific deterrence (that is, deterring him from committing any further offence).

The offender noted that the assessment of Corrective Services that the offender is suitable for a high level of intervention means that any supervision would include strategies to address illicit substance abuse, financial difficulties and unemployment. I accept that community-based supervision is most likely, in the long-term, to address the offender’s risk of reoffending.

The offender submitted that I could impose an ICO notwithstanding the negative assessment of Corrective Services. Whilst I accept that I have power to do so, I am not inclined to take that course. I do not think the conditions of an ICO would be aptly directed to the offender’s criminogenic needs. In my assessment, the primary focus of his rehabilitation over the next period must give him an opportunity to focus on drug rehabilitation and restoring his financial position.

As to whether there should be a component of full-time imprisonment, the offender submitted that, to the extent that a short, sharp stint might provide an incentive for him not to reoffend, he has already had that lesson. I accept that the lesson has been salutary. In my view, however, any term of less than three months may be regarded as derisory and would not reflect adequate weight to the purposes of sentencing of deterrence, denouncing the offending conduct and recognising the harm done to the victim.

As submitted by the offender, the important focus of the present sentencing exercise is to balance the object of promoting the offender’s rehabilitation with those objects. In saying so, I must acknowledge that, despite the detection of methamphetamine in his saliva (in an unspecified concentration), it is common ground that the offence was not contributed to by the influence of drugs. However, the offender’s apparent spiral into dysfunction as a result of his increasing drug use is a concern as it is a risk factor for reoffending.

The offender submitted that the public was protected from any further harm because his licence is disqualified for what is now known to be a period of at least 15 months. However, his prior offences and the most recent offences reveal that he has not always taken a disqualification or suspension as seriously as he ought. The offender must understand, as he evidently has not before, the importance of not driving particularly whilst suspended and more particularly if he has been consuming drugs that have an effect on him.

I propose, in addition to the period of disqualification of 15 months imposed by the Magistrate, to extend the period of disqualification to a period of two years from the date of his release from custody. I note in that context that, for the offence of culpable driving, the statutory disqualification period is 12 months or such longer time as the Court orders: s 62(1) of the Road Transport (General) Act 1999 (ACT). For the offence of drug driving, which was a repeat offence, pursuant to s 34(2) of the Road Transport (Alcohol and Drugs) Act, there is an automatic disqualification for five years. However, I have a discretion to reduce that period and I think I should in this case, in the interests of encouraging rehabilitation. In my assessment, the two periods of disqualification should be concurrent. I have a discretion in that respect not to make them cumulative, as otherwise assumed by the application of s 62(3) of the Road Transport (General) Act.

I have regard to the evidence, which I accept, that any period of imprisonment of the offender will impose significant hardship on his partner and their three daughters. That is a factor to which I am entitled to have regard, whether or not it is established to be exceptional. I also have regard to the fact that the offender has shown significant remorse and has agreed to engage in Restorative Justice if that is sought by the victims.

In all the circumstances, accepting that the only appropriate sentence is a term of imprisonment, the appropriate starting point, in my assessment, before the discount for the plea, is a period of imprisonment for two and a half years. Applying the discount of 10% gives a period of two years and three months.

In my view, the sentence should be fixed to commence on 9 July 2022. I am mindful of the fact that the offender was in custody for the other offences from that date and did not start to be on remand only in relation to these matters until 18 July 2022. However, it seems unlikely that he would have been arrested and refused bail on the other matters alone. In all the circumstances, I consider it appropriate to backdate the sentence to 9 July 2022.

The sentence I propose is that the offender serve a period of three months of the two year and three-month term of imprisonment and that the sentence then be suspended upon his entering into a good behaviour order for a period of two years after that. The effect is that he will be released from custody on the 8 October 2022, and thereafter will be subject to a two year good behaviour order coinciding with the two year period of licence disqualification.

The orders are as follows: (1) For the offence of drug driving, the offender is convicted and there will be a licence disqualification for a period of 24 months from 8 October 2022. (2) For the offence of culpable driving causing death, I impose a sentence of a term of imprisonment for two years and three months commencing on 9 July 2022. (3) I direct that that sentence be suspended after he has served three months, that is, on 8 October 2022, upon his giving an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for the balance of the term of two years until 8 October 2024. The conditions of the good behaviour order are: (a) the core conditions in s 86 of the Crimes (Sentencing Administration) Act; (b) a probation condition for such period as deemed necessary by ACT Corrective Services. I direct in respect of that condition that he is to comply with any reasonable direction of that service as to drug rehabilitation, financial counselling and submission to urinalysis; (c) that the offender use his best endeavours to participate in Restorative Justice in accordance with the requests of the convenor at Restorative Justice, to which entity I have made a referral; (d) he is to present himself at the front door of his premises in response to any reasonable request to undertake a urinalysis or other drug testing by an officer of the Australian Federal Police between 8.00 am and 8.00 pm; (e) he is within 48 hours of his release on 8 October 2022 to report to ACT Corrective Services at Level 1, 249 London Circuit. (4) In respect of the culpable driving offence, there is also to be a period of licence disqualification for the term of the good behaviour order. I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: