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[2018] ACTSC 126
General information, not legal advice.
Supreme Court of the ACT
2018-05-09
Mossop J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - culpable driving causing grievous bodily harm - excessive speed while arguing with partner - limited prior criminal history - offender's mental health following accident relevant but in the circumstances offers limited support for reduction of sentence - specific deterrence - general deterrence - partially suspend sentence imposed
Crimes Act 1900 (NSW), s 52A(3)
R v Barton [2016] ACTSC 162
R v Dutton [2005] NSWCCA 248
R v Fanti (Unreported, Supreme Court of the ACT, Penfold J, 8 January 2014)
R v Nachouki (Unreported, Supreme Court of the ACT, Burns J, 17 September 2013)
R v Ogle [2017] ACTSC 189
R v Richardson [2016] ACTSC 133
R v Verdins [2007] VSCA 102; 16 VR 269
R v Whyte [2002] NSWCCA 343; 65 NSWLR 252
R v Woods [2017] ACTSC 17
1. The offender has pleaded guilty to one charge of culpable driving of a motor vehicle causing grievous bodily harm. That is an offence under s 29(4) of the Crimes Act 1900 (ACT). The maximum penalty is imprisonment for a period of 10 years.
2. The offender was first before the Magistrates Court on 27 October 2016. She pleaded not guilty on 24 January 2017. The plea of guilty was entered on the fifth mention of the matter.
3. The proceedings were first before the Supreme Court on 25 May 2017. On that date, I made an order referring the charges for Restorative Justice. The matters were found to be unsuitable for Restorative Justice at this stage. A report to that effect was dated 29 June 2017.
4. The proceedings were then listed for sentence on 8 August 2017. On 27 July 2017, Elkaim J heard an application made by the offender to defer sentencing while she participated in a residential rehabilitation program. His Honour made orders which permitted the offender to be sentenced on 8 August 2017 unless she had entered, or been accepted for entry, into the Mirikai Recovery Centre: see R v Ogle [2017] ACTSC 189.
5. On 8 August 2017 it appeared that she had not, at that point, entered into the rehabilitation program but her bail conditions were varied in contemplation that she would. The sentencing proceedings were then adjourned until 21 September 2017. The proceedings were reallocated to me by an order of the Registrar on 12 September 2017. When the matter was mentioned before Elkaim J on 28 September 2017 there was evidence that the offender was undergoing detoxification prior to admission to a residential rehabilitation facility. However, she discharged herself in the early stages of that program.
6. She was then offered a place at the Salvation Army's Canberra Recovery Services program commencing on 27 November 2017.
7. She entered the Canberra Recovery Services program on 28 November 2017 but was discharged on 22 January 2018. While she was recorded as having made significant progress, she was discharged due to non-compliance. She was able to reapply for entry from 19 February 2018.
8. As at 15 March 2018 she was on the waiting list for the Bridge Rehabilitation Program.
9. The sentencing hearing occurred on 7 May 2018 and I reserved my decision until today, 9 May 2018.
10. The facts were agreed and in summary were as follows. At 6:10pm on 14 October 2015, the offender was driving a Holden Commodore north along Drakeford Drive in Bonython. Her vehicle collided with a vehicle driven by Ms Natalie Pinney at the intersection of Drakeford Drive and Hurtle Avenue. The offender was travelling north on the northbound carriageway and the Pinneys were attempting to cross that carriageway in order to make a right turn and travel south on the southbound carriageway of Drakeford Drive. As Ms Pinney's vehicle crossed the northbound carriageway, the offender's vehicle was travelling towards it at 139km/h. The posted speed limit in the area was 80km/h. The offender braked prior to the point of impact and turned to the left striking the rear driver's door of Ms Pinney's vehicle causing it to perform two full rotations before coming to a rest. Dash cam footage of the accident was tendered and it dramatically demonstrates the force of the collision and the consequential spinning of the Pinneys' vehicle. The speed at which the offender was travelling prior to the incident was derived from that dash cam footage.
11. Had the offender's vehicle been travelling at the posted speed limit the collision would not have occurred. Ms Pinney's vehicle sustained major damage and the vehicle was ultimately written off.
12. Ms Pinney suffered significant permanent injuries. She had multiple rib fractures, multiple fractures to her lumbar vertebrae, a manubrial fracture (which is a fracture of the upper part of the sternum), avulsion (namely forcible detachment) of the right abdominal wall muscle, a laceration to her left eyebrow, soft tissue injuries to the pelvis and significant abrasions, swelling and bruising. She spent 10 days in hospital prior to being discharged. She underwent multiple surgeries relating to her injuries. She also suffered a transverse fracture to one lumbar vertebra. Subsequently, she also suffered a bowel restriction that caused a hole to develop in her bowel, which developed into peritonitis and the bowel became attached to her right ovary. She required surgery to remove her right ovary, fallopian tube and 20cm of bowel. However, the evidence didn't establish beyond reasonable doubt that the peritonitis and loss of her ovary, fallopian tube and section of bowel was the result of the accident.
13. Mr and Ms Pinney's dog, which they had been taking to the vet, was euthanised as a result of injuries sustained during the collision.
14. The consequences of the accident for Ms Pinney's husband, who was in the vehicle, have also been significant. Whilst he is not a victim of the charged offence, he has certainly suffered significant consequences as a result of the injuries to his wife having regard to the medical treatment that she has had to receive, the financial consequences of his wife's condition and the effect upon his mental health.
15. The offender and her passenger did not suffer injuries as a result of the collision.
16. [Redacted for legal reasons] In 2015, the offender was convicted in New South Wales of driving with an illicit drug in her blood. She was also convicted of driving while suspended and common assault in July 2016. Her limited criminal history means that she is entitled to some leniency.
17. The subjective circumstances of the offender are disclosed in a pre-sentence report, Court Alcohol and Drug Assessment Service (CADAS) report and in a psychological report prepared by Dr Danielle Clout.
18. The pre-sentence report describes that Ms Ogle is the youngest of three daughters. She is currently 24 years old. Although she described herself as an angry child who became rebellious in her teenage years, her current relationship with her parents is positive. She lives with her mother and sister. She has had two significant relationships, both of which involved the use of illicit substances and emotional and verbal abuse. One of her former partners is currently incarcerated at the Alexander Maconochie Centre.
19. The offender completed Year 10 at school. The CADAS report says Year 11 but nothing turns on this difference. She has a work history predominantly in the hospitality industry. She has been unemployed since the current offence. I accept the evidence of Dr Clout that she has suffered from post-traumatic stress disorder (PTSD) which has arisen, in part, from the accident. She has also suffered from depression.
20. The offender has smoked methamphetamine since the age of 20. Following the current offence, she smoked $800 worth of methamphetamine daily and sold illicit substances to supplement her own drug use. She denied drug dealing in the last 12 months and claimed no use of illicit substances since December 2017.
21. She has attempted residential rehabilitation on two occasions:
(a) A program in Queensland in September or October 2017. She discharged herself after six days.
(b) In Canberra at the Canberra Recovery Services program from 28 November 2017 until 22 January 2018 where she was exited for failing to obey program rules and being disrespectful to staff.
22. In March 2018 she applied to commence a day program and was due to commence on 8 May 2018. She has also applied to attend residential rehabilitation programs.
23. The offender accepted some responsibility for the offence, but is reported by the author of the pre-sentence report as attempting to minimise her current culpability by apportioning blame to the victim. The author said that she did appear to demonstrate a level of compunction in relation to her offence. Her level of risk of further offending is assessed at medium to high. She is assessed as suitable for a community service work condition.
Court Alcohol and Drug Assessment Service report
24. The CADAS report dated 3 August 2017 in relation to the offender repeats some of the material in the presentence report. The offender admitted that in her previous contact with the CADAS in 2016 she had minimised her substance use. She reported that she had been using crystal methamphetamine almost constantly for the last two years and that she wished to go to rehabilitation in Queensland.
25. A screening test disclosed that she was at high risk for anxiety or depression. She reported that she takes drugs to distract herself from the distress that the motor vehicle accident causes her. She reported that at the time of the offence she was not under the influence of any drugs or alcohol. She reported that her crystal methamphetamine use became near daily since the accident. She scored highly on a severity of dependence scale for amphetamine dependence. She said that she occasionally uses cannabis, methylenedioxymethamphetamine (MDMA) or other "pills". As at the date of the assessment she was a heavy smoker, smoking 50 cigarettes per day.
26. The report concluded that her health appears to have deteriorated in the period since she last attended CADAS. The service strongly encouraged her to participate in alcohol and drug treatment including residential rehabilitation.
27. The offender was assessed by Dr Danielle Clout, a clinical psychologist, on 13 July 2017. Dr Clout prepared a detailed report dated 16 July 2017 as well as a brief addendum more recently.
28. The report contains a detailed history of her upbringing, education and work, relationships and drug and alcohol use. The history disclosed a greater degree of dysfunction at home, recording early exposure to drug use, violence and mental health issues.
29. The report describes a relationship which lasted from the age of 18 until just after the accident when she was 22. By the time of the accident it had become dysfunctional. She reported that at the time of the accident she and her partner were screaming at each other when they hit Ms Pinney's car. She was speeding due to her anger. She has subsequently had a relationship with another person who has spent time in custody and she described it as "volatile and unstable". She described her history of drug use and the increase in drug use following the accident, as well as her desire to enter residential rehabilitation in order to give herself a fresh start.
30. Dr Clout diagnosed her with the following Diagnostic and Statistical Manual of Mental Disorders (DSM) 5 diagnoses:
(a) PTSD,
(b) major depressive disorder,
(c) stimulant use disorder (amphetamine type).
31. The PTSD arose immediately following the accident. Dr Clout expressed the opinion that criteria for the diagnoses of major depressive disorder and stimulant use disorder (amphetamine type) were likely to have been met from early 2015, that is, prior to the offences.
32. She expressed the opinion that the offender is likely to require intensive and long-term psychological treatment, including inpatient treatment to manage withdrawal from her substance use, long-term drug and alcohol treatment and psychological counselling.
33. A measure of general recidivism indicated a score in the clinically significant range due to her low level of environmental resources and a high score on the "dynamic needs index". The latter indicated that many of her risk factors for recidivism were changeable.
34. Dr Clout reported that her motivation to engage in inpatient treatment in Queensland was positive. She reported that the offender expressed strong feelings of guilt and shame in relation to the accident and its consequences.
35. There have only been a relatively small number of sentences for this offence and those sentences do not reveal any consistent pattern or range of sentencing. I was provided with a table and description of cases involving the offence of culpable driving causing grievous bodily harm. I have had particular regard to the decisions in R v Barton [2016] ACTSC 162; R v Richardson [2016] ACTSC 133; R v Woods [2017] ACTSC 17; R v Nachouki (Unreported, Supreme Court of the ACT, Burns J, 17 September 2013); and R v Fanti (Unreported, Supreme Court of the ACT, Penfold J, 8 January 2014).
36. The guideline judgment given by the Court of Criminal Appeal in R v Whyte [2002] NSWCCA 343; 65 NSWLR 252 indicates that for the corresponding offence in New South Wales (Crimes Act 1900 (NSW), s 52A(3)), which carries a maximum penalty of seven years imprisonment, a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement: at [215]. The judgment also establishes that where the offender's moral culpability is high, a full-time custodial head sentence of less than two years would not generally be appropriate: at [229]. This latter statement was based upon a "typical case" involving; a young offender of good character with no or limited prior convictions, permanent injury to a single person, the victim being a stranger, with no or limited injury to the driver or the drivers intimates, genuine remorse and a plea of guilty of limited utility in value: see [204]. It is notable that the present case is consistent with the features of the typical case identified in R v Whyte.
37. Aggravating features identified in that case (at [216]-[217]) were as follows:
38. In the present case, clearly the extent and nature of the injuries inflicted is an aggravating factor. So too is the degree of speed involved in the offending conduct.
39. The offender's mental health and drug conditions have not been shown to be relevant in the R v Verdins [2007] VSCA 102; 16 VR 269 at [32] sense. Although I have accepted that she suffers from PTSD and depression, her conditions are not such as to make a sentence of imprisonment significantly more burdensome for her. Similarly, submissions were made that the PTSD was an impact of the accident upon her that needed to be considered in sentencing. While I take the PTSD into account, it is difficult to disentangle the relationship between the PTSD and the significant methamphetamine use up until the time when the diagnoses were made. The impact of the accident upon the offender's mental health is clearly a relevant matter in mitigation on the same basis as if she had suffered a physical injury, but in the circumstances the mental health of the offender only goes a limited way towards reducing the otherwise appropriate sentence: R v Dutton [2005] NSWCCA 248 at [38].
40. The moral culpability of the offender can be assessed by reference to the nature of the conduct engaged in as well as the consequences that arose from that conduct. In the present case, the culpability arose from the very significant degree by which she was exceeding the permitted speed limit. There was no other feature of her driving that was negligent, and hence culpable (see: Crimes Act, s 29(6)), apart from the speed at which she was driving. It was clearly not a case of momentary inattention. The risk of driving at excessive speed while having a screaming argument with a partner is obvious. The harm caused was clearly severe having regard to the internal injuries suffered by Ms Pinney. The physical effects of the accident and the psychological impacts of those injuries are long-lasting. They have had a significant effect on the lives of Ms Pinney and her husband. It is precisely because of the risks of such severe injuries that speed limits are imposed.
41. I assess the present offending conduct as above the mid range of objective seriousness for this offence.
42. The maximum penalty for this offence is 10 years, which is three years longer than the sentence available in New South Wales.
43. The offending behaviour cannot be directly linked to the offender's drug use.
44. Clearly general deterrence is a very significant factor in sentencing the offender. Specific deterrence is also necessary. It is, in one sense, a lesser consideration having regard to the genuine remorse demonstrated by the offender. However, it is also necessary to deter the offender from unlawful conduct more generally having regard to the risk of relapse into drug use.
45. The offender is entitled to considerable leniency having regard to her youth and limited criminal history.
46. The offender is clearly young and, notwithstanding her history, there is at least a reasonable prospect that if she is rehabilitated in relation to her illicit drug use, she will be able to return to a functional and productive life. She has, during the pendency of her sentencing proceedings, made some efforts at rehabilitation including completing eight weeks of a residential rehabilitation program. Having regard to her poor associations in the past and the failure to complete a residential rehabilitation program, it is clear that there will be significant obstacles in her path and the prospects of rehabilitation can be put no higher than being reasonable.
47. Having regard to the objective seriousness of the offence, I do not consider that any sentence other than a sentence of imprisonment is appropriate. I consider that the appropriate starting point is a sentence of two years imprisonment. I reduce that by approximately 20 per cent on account of the plea of guilty, which reduces the sentence to 19 months and seven days.
48. As to how that sentence is to be served, I do not consider that either an intensive corrections order or a suspended sentence is appropriate. My reason for that conclusion is that the offender has been given the opportunity to arrange a residential rehabilitation for herself and has proved unable to take the opportunity given to her through the delaying of her sentencing. I have taken into account the period of quasi-custody that the offender spent at the Canberra Recovery Services program between November 2017 and January 2018, but that limited period, while giving some hope for future rehabilitation efforts, is not sufficient to put this case of serious offending conduct into a category which can be dealt with without a significant period of full-time detention. I therefore consider that although an intensive corrections order may often be appropriate in cases where close supervision of rehabilitation is necessary, the offender has missed the opportunity to demonstrate a capacity to take the benefit of such an order.
49. So far as a suspended sentence is concerned, I consider that it would not be appropriate to wholly suspend the sentence having regard to the gravity of the offending conduct. The sentence will be suspended after seven months upon the offender entering into a good behaviour order for a period of 12 months during which she will be subject to supervision on parole.
50. Under the Road Transport (General) Act 1999 (ACT), s 62, the offender is automatically disqualified from holding a driver's licence for a period of six months or, if the Court orders a longer period, the longer period. I make no order in relation to this, leaving the automatic period of disqualification in place. I take that approach because of the custodial sentence that I am imposing and the fact that the capacity to drive will be significant for the offender's employment, and hence, her rehabilitation upon release from custody.
I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
R
Ogle