R v O'Dea

IN THE COURT OF CRIMINAL APPEAL 60747/00

DUNFORD J CARRUTHERS AJ

Friday, 22 MARCH 2002 R v Leasa Narelle O'DEA Judgment 1 Dunford J: This is an application for an extension of time, and subject to that application, an application for leave to appeal against the sentence imposed on the Applicant by her Honour Judge Karpin in the District Court at Parramatta on 27 July 2000, following the Applicant's pleas of guilty to three counts of driving under the influence of intoxicating liquor and drugs causing death contrary to s 52A(1)(a) of the Crimes Act 1900 which carries a maximum penalty of imprisonment for 10 years. Her Honour sentenced the Applicant to concurrent terms of imprisonment for 6 years with non-parole periods of 3 years, 5 months to date from 28 June 2000, the day in which she went into custody in relation to these matters.

2 The offences occurred on 1 August 1999 and the three victims were all passengers in the car driven by the Applicant. The facts as found by her Honour, which are not disputed, included that the Applicant was at the time of sentencing a 29 year old woman with two sons aged 8 and 6 respectively, the product of her 12 year relationship with the late Richard Fletcher who committed suicide in March 1999. Following his death the Applicant began to drink heavily and she formed a friendship with one John Howard. On the evening of 31 July 1999, she and Ms Peta Heffernan, who was living in the house with her at the time, shared a marijuana joint, after which they set off in the Applicant's motor vehicle from their home at Ermington to join Mr Howard and three of his male friends at an establishment called the 'Sharks Bar' at Blacktown, the arrangement being that they would stay overnight in the Blacktown area and return the following day. The Applicant has never held a driver's licence, she held a learner's permit in 1996 but had not renewed it. Notwithstanding this she continued to drive her late partner's motor vehicle and after his death had it registered in her name.

3 At the Sharks Bar the Applicant and Ms Heffernan joined the men and spent the evening drinking, dancing and apparently enjoying themselves. The Applicant was drinking bourbon and coke throughout the evening. At about 12.50 am on the morning of 1 August the group left the Sharks Bar and went to the Applicant's car. A number of people were already in the vehicle, namely Ms Heffernan, Mr Wilson, Mr Kingy and Mr McTaish. The Applicant told Mr Howard that she thought they were going to stay in the area at a motel, but he suggested she was looking for an argument and told her to get into the car, getting into the rear seat of the car himself, thus leaving only the driver's seat available. It was her car, she had the keys and accordingly she got into the vehicle and drove off with Ms Heffernan sitting next to her and the four males in the back, although there were only seatbelts for three of them.

4 The Applicant does not have a good recollection of what followed, but based partly on what she did recall, and partly on evidence from other persons, her Honour was satisfied that Ms Heffernan was happy, excited, affected by alcohol and was, in effect, skylarking. At one point she was kneeling up on the front passenger seat facing the back. The Applicant told her to sit down. She was of course not wearing a seatbelt.

5 After leaving Blacktown the Applicant's vehicle was observed driving on the Cumberland Highway at Northmead by a Mrs Pontin who saw Ms Heffernan leaning out of the vehicle and waving her arms around. The Applicant's vehicle was overtaken by Mrs Pontin's vehicle at about 70 km per hour but immediately thereafter the Applicant's vehicle pulled in behind Mrs Pontin's vehicle and effectively began tailgating her vehicle at a time when both vehicles were travelling at about 70 km per hour. Subsequently the Applicant's vehicle moved alongside Mrs Pontin's vehicle. She wisely pulled over to the left and the Applicant's vehicle accelerated quickly away.

6 After that a number of other witnesses saw the Applicant's vehicle travelling very fast on the Great Western Highway shortly before the accident. As the vehicle approached the intersection of Hawkesbury Road the Applicant apparently applied her brakes heavily causing the vehicle to skid with the wheels locked. She lost control of the vehicle which continued at a substantial speed, skidding out of control before it collided with a gutter, after which it continued to slide at high speed until it struck a wooden power pole at its centre pillar. Thereupon Ms Heffernan's body was ejected through the front windscreen, the car continued to travel and a second body was ejected from the vehicle before it finally came to a stop. Ms Heffernan, Mr Howard (the two persons ejected) and Mr Kingy (who remained inside) were all killed as a result of the accident. A blood sample was taken from the Applicant after she was admitted to hospital and disclosed a reading of .133 milligrams of alcohol per 100 milligrams of blood, together with delta-9-THC0.023 milligrams per litre, and delta-9-THC0.082 milligrams per litre, that is cannabis, and less than 0.02 milligrams per litre of methylamphetamine, commonly known as ecstasy.

7 The opinion of Dr Perl, which her Honour accepted, was that at the time of driving the Applicant was under the influence of both alcohol and cannabis, which significantly impaired her driving ability, and although the level of methylamphetamine was low, it is possible that it could have also caused some impairment by way of fatigue.

8 I should say in fairness to the Applicant, that although she quite voluntarily and deliberately drank the alcohol and took the cannabis, there was no evidence that she voluntarily ingested the methylamphetamine, and it appears quite likely that her drink was spiked in some way.

9 Her Honour noted that the Applicant was then aged 29, one of three children, that both her parents were dead and she had no contact with her siblings. She had two sons then aged 8 and 6, from her relationship with Mr Fletcher and they had been placed with Mr Fletcher's mother in anticipation of the Applicant being sentenced to full time custody.

10 Her Honour noted the other relevant subjective features, including that the Pre-Sentence Report and references spoke highly of her dedication to her children and her friends. Her Honour went on: "This is a case in which the prisoner abandoned responsibility for her own conduct when she got into the driver's seat at a time when she was affected by both alcohol and drugs. I accept that she had not intended to drive home that night, however she had driven to the bar in her own car of which she had retained the keys. She allowed herself to be put in a position of driving simply because she perceived the possibility of confrontation if she declined to do so. She made no attempt to avoid driving."

11 Her Honour noted the Applicant's pleas of guilty at the earliest opportunity and that there was ample evidence both of her remorse and of her general good character, and also of her specific character as a loving mother and caring friend. Because the deaths all arose out of one accident, her Honour made the sentences concurrent, and found special circumstances to assist in the Applicant's reintegration into the community and restoration of family life following her release without the assistance of her deceased defacto.

12 The Applicant relies on a number of grounds in support of the appeal. Firstly, it is sought to rely on fresh evidence to the effect that the Applicant was pregnant at the time of sentencing and this matter was not disclosed to the sentencing judge. According to her affidavit, which we accept in this regard, the Applicant only became aware of her pregnancy after the sentencing hearing on 28 June 2000 and before actually being sentenced on 28 July 2000.

13 She also asserts that she endeavoured to bring this fact to the attention of her legal representative prior to the date of sentence but was unable to speak with him and did not see him until she was brought into Court to be sentenced, when she told him of her pregnancy but he told her that it was too late to raise the matter.

14 The admission of fresh evidence in sentence appeals will only be allowed in very limited circumstances: R v Goodwin (1990) 51 A Crim R 328; see also R v Fordham (unreported - CCA - 2 December 1997), and R v Swindale (unreported - CCA - 22 July 1998). We were also referred to R v Abbott (1985) 17 A Crim R 355 where this Court said that fresh evidence would be received on an appeal where it was shown that the Applicant was incompetently represented at the sentencing proceedings, and that such incompetence had brought about a miscarriage of justice.

15 Without necessarily rejecting the Applicant's evidence of what occurred between her and her legal representative on the morning the sentence was passed, I would not be prepared to make an express finding of professional incompetence against the legal representative without him having the opportunity to be heard, but in any event the Crown accepts the rest of her affidavit, and concedes that she was in fact pregnant at the time of sentencing, but submits that it would not have made any difference to the sentence.

16 The Applicant relies on what was said by Matthews J, with whom the other members of the Court agreed in R v Ihm and ors (unreported - CCA - 9 January 1993), another case where fresh material was put before the Court relating to the pregnancy of one of the Applicants which, although not known at the time of sentence, was received by the Court, and the Court accepted that if the sentencing judge had been aware of it he would have treated it as a significant mitigating factor. However, what the Court did in that case was to leave the head sentence unchanged but reduce the minimum term of 9 months to 5 months, the effect of which was that the child could be born after the Applicant had been released on parole. That is not the case here as the child has already been born, and as pointed out by Carruthers AJ, with whom Hulme J agreed, in R v Clarke [2000] NSWCCA 150 at [24], the provision for mothers having children with them whilst in custody are now much more favourable than existed at the time that Ihm was decided, and the fact that a child will for some time be with its mother in custody, whilst a matter which attracts sympathy, does not affect the principles of law to be applied to the sentencing of the offender.

17 It was submitted that imprisonment during pregnancy and giving birth whilst in custody must bear more heavily upon the Applicant than in the case of another prisoner, and that it would have been proper for her Honour to make some allowance if she had been aware of the pregnancy. However, there is no evidence that there is any greater burden on a female prisoner who is pregnant than there is on any other prisoner, or on any other woman who is pregnant in the community, and I therefore am not satisfied that the fact of pregnancy at the time of sentencing is a matter that would or could have affected the sentence if it had been known to her Honour at the time.

18 The next ground of appeal is that the learned sentencing judge erred in failing to give proper consideration to the hardship to others following the Applicant's incarceration, and in this regard she relied in particular on the hardship allegedly being suffered by the two children, aged 8 and 6 at the time of sentence.

19 There is an affidavit filed by the Crown by Madeline Lloyd, affirmed 20 March 2002, which states that in addition to the Applicant and her latest baby being in the Mother and Children's Program, her two other young sons come to their mother at weekends and school holidays.

20 The general rule is that hardship to members of an offender's family is generally irrelevant and can only be taken into account in mitigation of sentence in highly exceptional circumstances: R v Edwards (1996) 90 A Crim R 510. The care of young children is not normally an exceptional circumstance: R v White [1999] NSWCCA 60 at [18], and see generally R v Day (1998) 100 A Crim R 275 and R v Byrne (1998) 104 A Crim R at 456.

21 Hardship to the offender's children was taken into account in R v Tiki (unreported - CCA - 24 August 1994) and in R v Niga (unreported - CCA - April 1994), but in those cases the children were much younger than the Applicant's two sons who are being cared for generally by their grandmother in the present case, and I would not regard their situation as exceptional, or as being relevant to the appropriate sentence to be imposed on the Applicant.

22 That leaves the baby recently born to the Applicant in custody. She is presently being cared for by the Applicant and facilities are available within the Corrective Services Department for this to be done. There is no evidence that she will be disadvantaged to an exceptional degree by remaining with her mother, or that she cannot remain with her mother. Likewise, I would not regard the position of the new baby as exceptional.

23 Next it was submitted that the learned sentencing judge erred in failing to properly assess the culpability of the Applicant. In this regard reference was made to the fact that the Applicant did not anticipate driving at the time of drinking and there was a significant degree of what counsel described as 'coercion' by Mr Howard involved in the Applicant's decision to drive, particularly in view of the fact that she had had previous experience of him being violent; and it was submitted that the Applicant had not abandoned responsibility for her actions. In my view there is no substance in this submission. Her Honour expressly referred to the fact that the Applicant had not intended to drive home, and that it was at the urging of Mr Howard that she did so. And she also made specific reference to the fact that she had previously experienced violence from him. But that does not, in my opinion, mean that the Applicant did not abandon responsibility for her actions.

24 Her Honour had regard in particular to the various criteria set out in R v Jurisic (1998) 101 A Crim R 259; 45 NSWLR 209, and I am satisfied, as was the sentencing judge, that these factors showed a particularly gross abandonment of responsibility. Not only were three people killed, but another two passengers were at risk, apart from other road users who may have been in the vicinity. The Applicant drove at an excessive speed, was grossly intoxicated and affected by cannabis at the time, she had driven a lengthy distance and there was some evidence of erratic driving. Moreover, she had never held a full driver's licence, and did not even hold a learner's permit at the time. Notwithstanding this, the Applicant had prior convictions for negligent driving and exceeding the speed limit by more than 15 kilometres per hour.

25 In addition to all that, after she commenced driving, the passenger Peta Heffernan was skylarking around, not sitting on the seat but kneeling on it, facing into the back, and a person or persons in the backseat were interfering with the Applicant by prodding her with the radio aerial, and someone was pulling her hair. Ms Heffernan was apparently not wearing a seatbelt, a practice which she commonly adopted, and which was known to the Applicant, and at least one of the persons in the backseat must also have not been wearing a seatbelt as there were insufficient seatbelts for them all.

26 In these circumstances, not only was it an abandonment of responsibility to commence driving, but it was a gross abandonment of responsibility to continue driving the vehicle in those circumstances. If the other persons were not prepared to cease their activities, it was incumbent on the Applicant to pull over to the side of the road and stop. And I say that, notwithstanding the fact that quite obviously she should never have been driving in the first place.

27 It was also submitted that the sentencing judge erred in failing to take into account the level of 'self punishment' in the Applicant's case, and we were referred to R v Dhanhoa [2000] NSWCCA 257, but that was a very different case to the present, as there the Applicant had left his employment because he found he was not coping as a result of the psychological impact of the accident and he had suffered a post-traumatic stress disorder with ongoing depression affecting his social relationships and physical health. These were matters which were supported by psychiatric and psychological evidence, and what the Court held was that the sentencing judge was not in error in taking into account the psychiatric evidence in regard to deciding on the minimum term. This case is very different, in that whilst there was ample evidence before her Honour that this Applicant was genuinely sorry and remorseful for the deaths of these people for which she accepted responsibility, which was all very proper, and whilst she had been considerably distressed by it and had needed and undertaken counselling in respect of it, there was nothing like the psychiatric disorder diagnosed in the case of Mr Dhanhoa. Moreover, the regret, remorse, contrition and acceptance of responsibility on the part of the Applicant were all taken into account by her Honour.

28 The final ground of appeal is that the sentence was manifestly excessive. This was, in my view, a particularly bad case, and having regard to the principles enunciated in Jurisic called for a significant sentence, I can detect no identifiable error in her Honour's reasoning. As Hunt J said in R v Musumeci (unreported - CCA - 30 October 1997), cited with approval in R v Jurisic at 45 NSWLR 228: "1. The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.

2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life. …

4. The courts must tread warily in showing leniency for good character in such cases."

29 For these reasons I would grant leave to make application for leave to appeal out of time. I would grant leave to appeal but dismiss the appeal and confirm the sentence. 30 CARRUTHERS AJ: I agree. 31 DUNFORD J: The order will be as I have indicated.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.