R v Luke COUSLEY

District Court of NSW|2018-03-21

Judgment

Luke Cousley was committed for sentence from the Wagga Wagga Local court on 25 October 2017 in respect of two offences, namely one count of what is commonly or shortly known as Dangerous Driving Occasioning Grievous Bodily Harm contrary to s 52A(3)(c) of the Crimes Act, 1900 and one count of what is commonly or shortly known as fail to Stop and Assist after Vehicle Impact occasioning Grievous Bodily Harm, contrary to s 52AB(2) of the Crimes Act. The maximum penalty for both offences is 7 years imprisonment. There is no standard non-parole period specified in respect of either offence.
The pleas of guilty were adhered to in the District Court at Wagga Wagga on 21 March 2018 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty. In addition to the two principal counts the offender pleaded guilty to two charges attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986, namely a charge of Not Comply with Direction to Stop/Move Light Vehicle contrary to s 169A(7) of the Road Transport Act, 2013 and one count of Drive While Disqualified contrary to s 54(1) of the Road Transport Act.
In dealing with those matters attaching to the Certificate pursuant to s 166 of the Criminal Procedure Act this court has the same jurisdiction as the Local Court. I indicated at the sentence hearing that I proposed to deal with the charge of Not Comply with Direction pursuant to s 10A of the Crimes (Sentencing Procedure) Act, 1999 and the charge of Drive While Disqualified by a wholly concurrent fixed term of imprisonment. I did not understand either advocate to dissent from that proposed course and accordingly that is the manner in which those matters will be dealt.

Assessment

In a matter involving the offence of Dangerous Driving Occasioning Grievous Bodily Harm essentially two matters inform the seriousness of the matter, namely the extent of the dangerous nature of the driving that led to the impact and the extent of the grievous bodily harm.
The extent of the grievous bodily harm sustained by Isa Nasir are set out in the facts but it involved the young child being intubated, ventilated and resuscitated and the requirement for two intravenous lines and a blood transfusion. The injuries included a grade 4 splenic laceration and left pulmonary contusion. He was in hospital for a total of seven days. It was inferred from the facts but made clear at the sentence hearing that there are no ongoing effects or sequelae.
In the Guideline judgment of R v Whyte (2002) 134 A Crim R 53, Spigelman CJ (Mason P agreeing with some additional comments, Barr & Bell JJ (as her Honour then was) agreeing and McClellan J (as his Honour then was) agreeing with some additional comments) at [216]-[217] set out a list of aggravating factors that had been established by the authorities, namely: "(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."
There are a significant number of these factors present in the matter presently under consideration. The offender accelerated harshly away from police when he was pulled over. Although not escaping a police pursuit, he was nevertheless attempting to get away from the police. A number of people were put at risk, in particular the occupants of the vehicle in which the victim was situated. Ms Scoot had to take evasive action shortly before the impact. Bourke Street is a major thoroughfare of the city of Wagga Wagga. The driving of the offender can in my view correctly be described as erratic. He was driving well in excess of the speed limit before commencing to brake and still travelling in excess of the speed limit, although only just, at the time of impact. The offender was affected by methylamphetamine to the point where his driving would have been impaired.
The driving took place through a number of residential streets and went for some distance, which is unspecified. The court in determining sentence is entitled to look at the entire course of the driving - see for e.g. Aitken v R [2014] NSWCCA 201.
The Crown Prosecutor submitted that the court would also find that the offender ignored warnings in that the facts reflect that a neighbour called out, "maniac". Even if this could amount to a warning there is nothing within the facts that would enable me to find that the offender heard that word being said. I am not prepared to find beyond reasonable doubt that the offender ignored warnings.
At the sentence hearing some time was taken over the issue of the factor of failing to stop, given in particular the charge of Fail to Stop and Give Assistance. The Crown Prosecutor addressed extensively on the decision of the Court of Criminal Appeal in Shumack [2008] NSWCCA 311 and in particular the judgment of Price J at [32] and [33].
In the matter presently under consideration the offender fled the accident on foot. It is incontrovertible that he failed to give assistance, but it is not the case that he continued driving away from the scene of the impact. It is tolerably plain from the recitation of the facts in Shumack that the offender in that case did actually keep driving after the impact in that Price J in reciting the facts at [13] said, "…At a point approximately three to four houses down the road she noticed the vehicle's brake lights go on for a few seconds and then the car sped off…"
It occurred to me in the course of preparing these remarks that I should ensure that section 52AB(2) of the Crimes Act contemplated also the offending driver leaving the scene on foot as opposed to driving away as was the case in Shumack. This matter was raised with the parties and to the credit of both parties both provided material very promptly including the second reading speeches. The Hon John Della Bosca, Special Minister of State in giving the Second Reading Speech on 18 October 2005 said inter alia: "The actions of these drivers in fleeing may thwart police in their ability to identify the drivers and collect necessary evidence. The presence of drivers at the scene ensures that the investigation is at no disadvantage".
A little earlier the Minister said: "As a result there will be no incidental advantage accruing to a driver who flees and knows or ought reasonably have known that death or grievous bodily harm was occasioned by the impact".
Therefore, it is plain enough that the criminality that section 52AB of the Crimes Act seeks to address is the offending driver fleeing the scene of an impact where grievous bodily harm is occasioned and the offending driver knows or ought reasonably to have known that fact.
Accordingly, I am prepared to factor into the assessment of the criminality of the charge of Dangerous Driving Occasioning Grievous Bodily Harm the fact that the offender did not stop or fled the scene. However, if the offender's fleeing the scene is taken into account in this fashion extreme care will need to be taken with the charge contrary to s 52AB(2) of the Crimes Act to ensure that there is no double counting.
Spigelman CJ in Whyte at [228] said: "In the above list of aggravating factors, items (iii)-(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion."
Be that as it may, the moral culpability of the offender is very high in this matter. Given the totality of the driving I am satisfied beyond reasonable doubt that the offender abandoned responsibility. Another manner of expressing the conclusion in this matter is a finding that the criminality is above mid-range. On this aspect, because of the driving the matter is not slightly above mid-range and because of the nature of the grievous bodily harm, the matter is not significantly above mid-range.
The Crown Prosecutor referred the court to Stanyard v R [2013] NSWCCA 134 on the issue of the moral culpability of the offender being high. I have already made that finding. With respect, that decision does not appear to advance the matter in any way.
There is of course the charge of Fail to Stop and Assist After Vehicle Impact Causing Grievous Bodily Harm. Price J in Shumack said at [33]-[34]: "It is the failure to stop and give assistance in circumstances which the driver knows, or ought reasonably to know that the vehicle has been involved in an impact occasioning death or grievous bodily harm that is the gravamen of this offence. The gravamen of the criminal behaviour in the two offences is not the same. This is not a case where the applicant has suffered double punishment for a single act…"
The failure to stop has already been taken into account in assessing the seriousness of the criminality in the offence contrary to s 52A(3)(c) of the Crimes Act. In order to avoid double counting the sentence imposed for the offence contrary to s 52AB will essentially reflect the offender's failure to assist. Appropriate consideration will also need to be given to the principle of totality.
So far as the criminality of the offence contrary to s 52AB is concerned, the offender fled on foot and was apprehended not far from the scene soon after the impact. Apart from initially saying that he was the passenger, thereby denying he was the driver, no further acts were done by the offender in order to assist him to escape liability. Realistically the offender could have only notified the emergency services had he remained at the scene. The criminality of the offence contrary to s 52AB of the Crimes Act is below mid-range but not significantly so.

Criminal History

The offender was born on 20 March 1992; accordingly he is now 26 years of age and was almost 25 at the time of the offence. He has matters recorded against him in the Children's Court for Resist or Hinder Police, Intimidation, Affray and Destroy or Damage Property. He has matters recorded against him in the Local Court for Assault Police, Assault Occasioning Actual Bodily Harm, serious driving offences including driving in a manner dangerous to the public, drive with the mid-range prescribed concentration of alcohol and drive while disqualified. There are further convictions for assault, resist police, take and drive conveyance, intimidation and contravene domestic violence order.
In June 2016 the offender was sentenced to imprisonment in the District Court for an Aggravated Break Enter and Commit Serious Indictable Offence and was on parole for that matter at the time of the commission of the offences for which he now appears for sentence. The commission of offences while subject to conditional liberty is a matter of statutory aggravation pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.
The offender has a record that does not entitle him to any particular leniency.
Parole was revoked with the balance of parole to date from 15 March 2017 to 6 December 2017. At the sentence hearing Mr Rofe for the offender submitted (see written submissions MFI 1 on sentence) that the appropriate starting date for the sentence for the matters presently before this court is 16 May 2017. The Crown Prosecutor indicated that he did not oppose that as the appropriate commencement date.

Victim Impact Statement

The Court has a victim impact statement from the mother of the victim in this matter. That statement speaks of the ongoing difficulties being experienced by the child's parents with behavioural issues relating to Isa. There is not the slightest reason to doubt what is contained within that victim impact statement. However, given the decision of the Court of Criminal Appeal in Tuala [2015] NSWCCA 8 in the absence of any further or updated medical material or psychological material in respect of the victim the court is unable to find the harm beyond what has already been found on the issue of grievous bodily harm. However the effect on the victim is taken into account in considering s. 3A(g) of the Crimes (Sentencing Procedure) Act.

Subjective Case

The subjective case for the offender consisted of evidence from the offender, a psychological report prepared by Anne Lucas of Duffy Robilliard and letters of support from the offender father and grandmother.
The offender gave evidence that he had a good childhood, was raised by his father and grandmother and has had nothing to do with his mother. He has a close relationship with his father. He began using substances when introduced to them by friends when he was about 16 years of age. He has engaged in self-harm a number of times including cutting his arms during his teenage years. He has attempted suicide twice. The first such attempt was when his grandfather died and the second attempt in 2012 when he took an overdose of Seroquil tablets. He went on to say that he did not initially seek help but has since found that the medication "Zyprexa" works better than Seroquil.
The evidence continued that in the time leading up to the offences his parole was going well. However, there was an incident with his ex-partner and his son where his son called him "Luke" and his ex-partner's new partner "dad" which caused him upset. He had stopped taking his medication as he had "given up".
He said that he commenced using "ice" or methamphetamine at the age of 18 years and was using daily. He used this substance on the day of the offending. He is now abstinent of opiates and amphetamines including ice.
So far as the offending is concerned the offender gave evidence that he did not intend to hurt anyone. When he was pulled over by the police he said that he "could not go back to gaol" and took off. He remembers slamming on the brakes and seeing a car on the road, but the next thing he remembers is the police dog biting him.
The offender went on the say that he was remorseful for everything, that every day he thinks of the little boy and says to himself "what if that had been my little boy". This evidence went unchallenged. The evidence of the offender in this regard seemed genuine enough to me. Further, the offender told the author of the psychological report (Exhibit 1 on sentence) that he feels stressed out when he thinks of the potential consequences and sick for the hurt he caused. I am prepared to find on balance that the offender is remorseful.
The evidence continued that he has an A2 classification and there is a wait of 5 to 6 months to see a nurse. He plans to stay on his medication. Upon his eventual release he would like to obtain employment in bricklaying or welding. He proposes to live with his grandmother on his release. He also expressed a willingness to comply with a mental health care plan.
The Crown Prosecutor cross-examined the offender, much of which was directed towards the offender ceasing to take his medication.
Despite the offender giving evidence to the effect that he had a good childhood, the psychological report, exhibit 1 on sentence sets out at paragraphs 2 to 6 inclusive that his mother had substance abuse issues and that there was a lot of alcohol in his father's home. He witnessed his father being stabbed. I did not understand that any submission was made to the effect that the principles enunciated in Bugmy v The Queen [2013] HCA 37 and Kennedy v R [2010] NSWCCA 260 are enlivened.
The report notes - see paragraph 11 - that the offender has a young child to which there is limited access, which causes the offender distress. This is consistent with the evidence he gave at the sentence hearing. The offender reported to the author of the report that he commenced using cannabis when he was in Year 8 at school and Ecstasy in social settings in Years 9 and 10. He commenced using methamphetamine intravenously at 20. The suicide attempts of which the offender gave evidence are also noted in the report.
The offender was assessed as having full scale IQ of 78, which as I read the report places the offender in the borderline-low average range of performance. The author of the report recommends that that offender access vocational training.
The author of the report opines that the offender provided a history and presented with symptoms consistent with the diagnosable mental disorder of Bipolar disorder. It was not submitted on behalf of the offender that there is a causal connection between any mental health issue and the offending. The author of the report also opined that the offender had some areas of cognitive deficit. Abstinence from substances and supervision is recommended.
The offender is still a young man. He has mental health and substance abuse issues. This indicates a need for an extended period of supervision upon release. These matters go to justify a finding of special circumstances. I understood the Crown to submit that the Crown did not oppose such a finding.
The letters from the offender's grandmother and father speak of the offender appear to refer to the offender having ADHD. There is nothing within Exhibit 1 to support that, however at paragraph 36 the author of the report says: "Discrepancy analysis suggested that his ability to sustain attention, concentrate and exert mental control were better developed than his verbal reasoning abilities. This may suggest some impairment in his ability to take in information (attention) or express information efficiently possibly relating to a specific learning deficit".
The letter signed jointly by the offender's father and grandmother says that the offender was "violently attacked by police dogs…legs needing 35 staples". There is no medical evidence to support this, nor was there evidence from the offender at the sentence hearing. Further, there was no submission made on the behalf of the offender so far as extra-curial punishment is concerned. In these circumstances the assertions of the offender's family carry no weight.

Competing submissions

Mr Rofe helpfully reduced the bulk of his submissions to writing, which became MFI 1 on sentence. He submitted, and the Crown took no issue with that submission, that the sentence imposed in respect of this matter should commence on 16 May 2017. Considerable time is taken within MFI 1 on the issue of revocation of parole and totality. For more abundant caution I accept even without the concession by the Crown that 16 May 2017 would have been the appropriate commencement date of the sentence.
The contents of MFI 1 also address the issue of accumulation. Mr Rofe submits in effect that the sentences in respect of both matters should be wholly concurrent. The Crown submits that there should be some partial accumulation. I note the various authorities cited by Mr Rofe on pp 4 and 5 of MFI 1. Howie J in Cahyadi v R, (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] said: "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
The two offences on which the court is passing sentence occurred during the one single episode, however one follows the other. I agree with the Crown that there should be some degree of accumulation to reflect the difference in the criminality, namely one offence address the dangerous driving occasioning grievous bodily harm and the other addresses the offender fleeing and failing to offer assistance. However, in all of the circumstances the extent of the partial accumulation will not be in any way significant. This however, is one of the many complicating factors to this sentencing exercise. Had wholly concurrent sentences been imposed the ultimate effective sentence would have been no different. The issue of partial accumulation also justifies a finding of special circumstances.
Part of the material to which Mr Rofe referred the court, when assistance was requested in respect of the charge contrary to s 52AB(2) of the Crimes Act, was the decision of the Court of Criminal Appeal in Jidah v R (2014) 246 A Crim R 368. It is plain enough that the whole of the criminality for each offence for which the offender appears for sentence is captured in the other (see for e.g. Jidah at [46] and [56]). However, the Crown has persuaded the court that failure to stop should be taken into account in respect of the charge of Dangerous Driving Occasioning Grievous Bodily Harm. It is for the reason of avoiding double punishment that I have attempted to take great care in making plain that in these circumstances the sentence in respect of the charge of Fail to Stop and Assist must address the failure to assist rather than the failure to stop.
Mr Rofe makes various submissions in MFI 1 on the objective seriousness of the offending. I have spent some considerable time on the assessment of the criminality in this matter. I note at para [12] of MFI 1 that the "offender does not submit that this was a case of momentary inattention or misjudgement". This matter is some very considerable distance from such a case. Mr Rofe concedes the matter is at "least mid-range level". I have found that it is above that.
The matters to which Mr Rofe refers in respect of the subjective case have been dealt with when dealing with the offender's subjective case. I found that the offender was remorseful. I have indicated that there should be a finding of special circumstances and the reasons for that finding.
The Crown submitted that the moral culpability of the offender was of a high order. My findings are consistent with that submission. I have already dealt with the Crown's submissions on partial accumulation and the inclusion of a failure to stop as one of the factors in the Dangerous Driving Occasioning Grievous Bodily Harm charge.
The Crown also submitted that the Court should take into account that the offender deliberately stopped taking his medication. The submission continued, at least as I understood the submission, that the offender well knew of the adverse effects if he ceased taking his medication and accordingly that is a matter that the court can take into account on sentence. The Crown relied on the authorities of Wright v R (1997) 93 A Crim R 48 and Yuksel v R [2010] NSWCCA 65.
Hunt CJ at CL (as his Honour then was) in Wright said at p. 52: "…But , even taking the history at its face value, two things become clear. First, although the respondent may have been encouraged by the voices which he heard to commit the armed robbery, he knew very well what he was doing and that what he was doing was gravely wrong. Second, the respondent quite deliberately had left home and his pills behind him and had either deliberately or recklessly become intoxicated by drugs thereby bringing on the psychotic state which the doctors had diagnosed. He had been addicted to drugs from some years. …The judge was in my view, in error in treating the psychotic state and intoxication at the time of the offence as a matter which did go to mitigation".
The intoxication of the offender in the matter presently under consideration, far from being a matter of mitigation is one of the matters that goes to make his moral culpability high. Further, as I understood the offender's evidence, him stopping his medication was out of a feeling of helplessness rather than the situation in Wright. Whilst it is not a matter of mitigation, I am not prepared to take the offender's ceasing to take his medication into account as a matter of aggravation.
Likewise, I do not regard the decision of Yuksel of any real assistance in this matter. The situation was in that matter that the offender knew of his condition and had declined to get assistance for it. The learned sentencing judge at first instance had found that the psychiatric evidence was not wholly favourable to the offender (see [8]-[9]).
I remind myself that I have not hitherto in these remarks addressed the issues of whether the offender is unlikely to reoffend and the issues of rehabilitation. Given the record of the offender, and given that these offences were committed whilst on parole, I am not prepared to find on balance that there are good prospects of rehabilitation nor am I for those same reasons prepared to find that he is unlikely to reoffend or that there are good prospects of rehabilitation.

General Remarks

Clearly enough general deterrence must have some work to do in this sentencing exercise. Mr Rofe admits as much in MFI 1. See also for e.g. the decision of WW v R [2012] NSWCCA 165 at [65] and [69]. That decision related to a juvenile offender, but the principles relating to general deterrence with young offenders it seems to me have a more general application.
I note that at [229] in Whyte Spigelman CJ said: "The guideline for offences against s 52A(1) and (3) for the typical case identified above should be: Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm would not generally be appropriate".
Hoeben CJ at CL (Johnson & Button JJ agreeing) in WW v R said at [76]: "…The Court made no reference to the upper limits of such a sentence but endeavoured to indicate a lower limit for a typical case below which a sentence would not generally be appropriate…"
Clearly, the guideline is precisely that. It is not prescriptive and should not be treated as such.
The court in passing sentence will need to give proper effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
Section 5 provides in effect that a court should not impose a sentence of imprisonment unless, having considered all possible alternatives, comes to the conclusion that no other sentence is appropriate. In this matter noting the Guideline Judgment of Whyte, the nature of the offending and the findings made as to the moral culpability of the offender no other sentence other than one of imprisonment is appropriate. I did not understand that any contrary submission was made on the part of the offender.
I propose to impose a fixed term in respect of the charge of Fail to Stop and Assist after Impact Causing Grievous Bodily Harm, which in other circumstances would be the non-parole period. In respect of the charge of Dangerous Driving Occasioning Grievous Bodily Harm, in all of the circumstances I am of the opinion that the appropriate starting point is between 3.5 and 4 years from which is to be deducted the 25% discount for the utilitarian value of the plea of guilty, which after some minor mathematical rounding down results in a total sentence of 2 years and 9 months.
I have no note or memory of either party addressing on the issue of disqualification. Noting the nature of the driving involved and the fact that the offender was disqualified I do not perceive any particular reason not to impose the automatic period of disqualification.

Orders

The offender is convicted of the matters of: 1. Dangerous Driving Occasioning Grievous Bodily Harm contrary to s 52A(3) of the Crimes Act; and 2. Fail to Stop and Assist after a Vehicle Impact Causing Grievous Bodily Harm contrary to s 52AB(2) of the Crimes Act; and 3. Not Comply with Direction to Stop contrary to s 169A(7) of the Road Transport Act, 2013 and Drive While Disqualified contrary to s 54(1)(a) of the Road Transport Act, 2013 both of which attach to a Certificate pursuant to s 166 of the Criminal Procedure Act.
In respect of the charge of Not Comply with Direction to Stop contrary to s 169A(7) of the Road Transport Act the matter is dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act and a conviction is recorded and no further penalty is imposed.
In respect of the charge of Drive While Disqualified the offender is sentenced to a fixed term of 6 months imprisonment to commence on 16 May 2017 and which expired on 15 November 2017. The offender is disqualified for 2 years.
In respect of the charge of Fail to Stop and Assist After Vehicle Impact Causing Grievous Bodily Harm the offender is sentenced to a fixed term of imprisonment of 12 months from 16 May 2017 and which will expire on 15 May 2018. The offender is disqualified for a period of three years.
In respect of the charge of Dangerous Driving Occasioning Grievous Bodily Harm the offender is sentenced to a non-parole period of 1 year 8 months to commence on 16 November 2017 and which will expire on 15 July 2019. Thereafter there is a period on parole of 13 months to commence on 16 July 2019 and which will expire on 15 August 2020. The offender will be eligible for release to parole at the expiration of the non parole period.
The total effective sentence is therefore 3 years and 3 months with 2 years and 2 months in actual custody. The period in actual custody is two-thirds of the total effective sentence. The ratio between the non-parole period and the total sentence in respect of the charge of Dangerous Driving Occasioning Grievous Bodily Harm is lower than would otherwise be justified because of the issue of partial accumulation.
In respect of the charge of Dangerous Driving Occasioning Grievous Bodily Harm the offender is disqualified for 3 years. It is the court's intention that all periods of disqualification be concurrent.
The offender will be eligible for parole at the expiration of the non-parole period and I recommend that release.

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At a glance

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Judgment (10 paragraphs)

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Cases Cited (9)