R v Ogle [2017] ACTSC 189

Crimes Act 1900 (ACT) s 29(4)

Crimes (Sentencing) Act 2005 (ACT) ss 6 and 7

1. On 16 May 2017, the offender pleaded guilty to a charge of culpably driving a motor vehicle causing grievous bodily harm, in contravention of s 29(4) of the Crimes Act 1900 (ACT).

2. The maximum penalty for this offence is 10 years imprisonment.

3. The charge arises from a motor vehicle accident on 14 October 2015. The offender's vehicle collided with a vehicle driven by Ms Pinney. Ms Pinney and her husband were taking their dog to the vet.

4. As reflected in the plea to the charge, the accident was caused by the negligence of the offender. Ms Pinney suffered immediate, as well as consequential, injuries. The seriousness of these injuries is appropriately described in the statement of facts, as follows:

She suffered a severe wound to the right side of her abdomen which caused a traumatic hernia, resulting in a large protruding lump on the side of her abdomen. A bowel restriction caused a hole to develop in her bowel, which developed into peritonitis and the bowel became attached to her right ovary. This caused damage to the ovary and both the ovary and Fallopian tube and a section of the bowel wall had to be removed. There was a deep laceration to her left eyelid which was sutured and has left a scar. She also suffered a transverse fracture to one lumbar vertebra.

5. These injuries will affect Ms Pinney for the rest of her life.

6. The offender is due to be sentenced in the Supreme Court on 8 August 2017.

7. On 24 July 2017 the offender lodged an application in proceeding requesting that the sentencing of the offender be deferred until a date after 1 November 2017.

8. The application was opposed by the Crown. The opposition was, however, accompanied by a sensible suggestion as to the way to proceed.

9. The application is supported by an affidavit of Thomas Taylor dated 24 July 2017. In summary, the reasons for the application are as follows:

(a) As part of the preparation for the sentencing hearing, the offender's solicitors arranged for her to undergo a psychological assessment by Dr Danielle Clout, a clinical psychologist.

(b) Dr Clout assessed the offender on 13 July 2017 and produced a report on 16 July 2017. In this report, the offender is said to be suffering from Post Traumatic Stress Disorder (PTSD), a Major Depressive Disorder and Stimulant Use Disorder.

(c) The PTSD is probably a product of the accident. The other two disorders probably pre-dated the accident.

(d) Dr Clout thinks that the offender's current condition is severe and that "she is likely to require intensive and long-term psychological treatment." In addition, the offender requires inpatient treatment to assist her in the withdrawal from her drug addiction and she needs long-term drug and alcohol counselling.

(e) The contemplated treatment, according to Dr Clout, will assist the offender to deal with her disorders and also lessen the chances of re-offending.

(f) Consequent upon Dr Clout's advice, Mr Taylor spoke to representatives of the Mirikai Recovery Centre. This institution provides a residential drug rehabilitation program.

(g) Mr Taylor was advised that the offender is suitable for a program. The program has four components. Firstly, there is a seven day detox period, then a 28 day initial program, then a 10 week life skill program and lastly another 10 week life skill program.

(h) Mr Taylor told the Mirikai Recovery Centre's representative about the upcoming court date. He was informed that the offender would not be admitted to any part of the program as long as she was required to attend court during the course of the program.

(i) Consequently, Mr Taylor thought it appropriate to apply to the court for the sentencing of the offender to be postponed until the completion of the program.

10. The Crown's opposition is derived from the seriousness of the offence, the strong likelihood of a prison sentence and the need for both the victim and the public to see that justice is being done, and not delayed for the benefit of the offender.

11. It is trite to say that justice delayed is justice denied. It is important that the sentencing aims of the applicable legislation are taken into account to ensure the prompt and proper punishment of offenders.

12. It is also true, however, that one of the stated objects of sentencing is to "maximise the opportunity for imposing sentences that are constructively adapted to individual offenders": Crimes (Sentencing) Act 2005 (ACT) s 6(c). One of the purposes of sentencing is also "to promote the rehabilitation of the offender": Crimes (Sentencing) Act 2005 (ACT) s 7(1)(d).

13. I have no doubt that both the victim of the offence and the public at large not only wish to see the offender properly punished for her offence but also, as far as is possible, wish to ensure that she does not re-offend. If a decrease in the prospects of her re-offending is a product of the offender attending the program, then I think the adjournment is justified.

14. The offender may not complete the program. She may not even succeed in the initial seven day detox exercise. For this reason, I think the Crown's suggestion is appropriate, namely that if the offender does not obtain a place in the program, or fails in her attempts to enter the program, sentencing should continue on 8 August 2017.

15. In summary, it is in the overall interests of the sentencing exercise that the application should be granted. However, it must be subject to a degree of monitoring of the offender's progress.

16. Accordingly, the sentence date will remain but if the offender has entered, or is on track to enter the program, the sentence date will be adjourned to allow her to complete the program. In this circumstance, she is not required to attend on 8 August 2017.

(a) The matter is adjourned to 8 August 2017.

(b) The offender will be sentenced on 8 August 2017 unless she has entered or has been accepted for entry to the Mirikai Recovery Centre.

(c) Bail is varied so that the offender is required to attend court on the date she is to be sentenced.

(d) If sentencing does not occur on 8 August 2017, the matter is listed for mention on 8 August 2017 to set a fresh date for sentencing and any appropriate timetable.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.