R v PARR

District Court of NSW|2019-07-18|Before: Hulme J

REMARKS ON SENTENCE

I commence these remarks on sentence with the observation that this matter is a tragedy on so many levels. The life of a young person in the prime of her life has been lost. Her family are left grieving her loss. They are understandably devastated by that loss. Another young person has suffered grievous and permanent injuries. The offender is a young man with a partner and young children who as a result of his offending must go to prison for a considerable period of time. I observe that this tragedy could have been so easily avoided by a decision by the offender either not to drink or not to drive.
The offender adhered to pleas of guilty previously entered in the Local Court at the sentence hearing at Wagga Wagga District Court on 18 July 2019 namely: 1. That (he) on 12 August 2017 at Ungarie in the State of New South Wales did drive a vehicle, (namely) white Toyota Hilux dual cab utility registration BFR22K (New South Wales) when it was involved in an impact occasioning the death of Sarah Lloyd and at the time of impact the said Nicholas Parr was driving the vehicle under the influence of alcohol, contrary to s 52A(1)(a) of the Crimes Act, 1900; and further 2. That (he) on 12 August 2017 at Ungarie in the State of New South Wales did drive a vehicle, (namely) white Toyota Hilux dual cab utility registration BFR22K (New South Wales) when it was involved in an impact occasioning grievous bodily harm to Shawn Spencer and at the time impact the said Nicholas Parr was driving the vehicle under the influence of intoxicating liquor, contrary to s 52A(3)(a) of the Crimes Act.
As the pleas were entered in the Local Court and adhered to in this court the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.

Facts

The facts are before the court by way of a set of agreed facts. I observe from the outset that this is a most serious matter.
The offender was 23 years of age at the time of offending. On the evening of 11 August 2017 the offender, the deceased, Jesse Meriton and Shawn Spencer were at the offender's home in Forest Hill, a community approximately 10 kilometres to the east of Wagga Wagga. They were preparing to go pig hunting in the Lake Cargelligo area, some 270 kilometres from Wagga Wagga.
Ms Lloyd was the partner of Jesse Meriton. Meriton in the past frequently went hunting with the offender however he went on these trips less frequently after forming a relationship with Ms Lloyd. On the occasions that he did go with the offender Ms Lloyd also went.
All four left the offender's home at about 6pm on 11 August 2017 with the offender driving his white Toyota dual cab Hilux utility. Some alcohol was purchased at a shop at Forest Hill. All but the offender had some alcohol. The offender had a stubby of beer at the next stop which was at Junee. They took another break at Temora and purchased some food at McDonald's that Mr Meriton and Ms Lloyd consumed. A further break was taken at Barmedman where Mr Spencer obtained three stubbies one of which was then consumed by the offender, one by himself and the other by Mr Meriton.
A further break was taken at West Wyalong and on that occasion the six dogs that were in the cage on the back of the utility were allowed a short run around. Before leaving West Wyalong the offender went to a drive-through bottle shop where Mr Spencer purchased a carton of Great Northern stubbies. The offender and Mr Spencer each had a stubby from that carton.
The group then went to the property, arriving at about 10.30pm. On arrival they commenced hunting with Mr Meriton operating the spotlight. About five pigs were caught. The group consumed alcohol during the hunting with the offender consuming an unknown quantity of mid-strength beer while hunting. The hunting finished at about 2am when the dogs were put back in the cage.
The offender occupied the driver's seat and commenced to drive home. Mr Spencer sat in the front passenger's seat with Mr Meriton sitting in the back behind Mr Spencer and Ms Lloyd sitting next to Mr Meriton. When the offender reached Lake Cargelligo Mr Meriton offered to drive but the offender said that he was all right and he continued to drive. Somewhere between Lake Cargelligo and Ungarie Mr Meriton again offered to drive and again the offender said that he was all right. The distance between Lake Cargelligo and Ungarie is approximately 75 kilometres. Mr Meriton recalls the offender and Mr Spencer sharing a bottle of Captain Morgan (pre-mixed rum) while driving along. The offender gave evidence at the sentence hearing, which I accept, that this related to one 375ml bottle as they set off on the journey and although they were driving along this was still on the property where the hunting took place.
Very soon after 5am the offender's vehicle was travelling in a south-easterly direction along Lake Road, Ungarie about 1 km from the Ungarie township. As the offender approached a left hand sweeping bend the offender's vehicle veered onto the incorrect side of the roadway. The offender attempted to negotiate the bend as the offside tyres travelled on to the gravel verge on the southern side of the bend. The vehicle commenced to yaw in an anticlockwise direction with the offside tyres on the gravel verge and the nearside tyres on the road. The vehicle continued to rotate in an anticlockwise direction on the gravel verge and grass embankment until the vehicle was travelling the sideways. The vehicle left the roadway and rolled a number of times before coming to rest on its wheels approximately 5 metres from the roadway and 20 metres from the level crossing.
The force of the impact caused the death of Sarah Lloyd.
Shawn Spencer was ejected from the vehicle and was located about 20 metres from the vehicle in scrub.
The impact also caused the cage containing the dogs to break away from the utility, one of the dogs dying as a result of the impact.
Mr Meriton using Ms Lloyd's phone contacted 000. The offender checked on Mr Spencer but did not move him because he did not know what injuries had been sustained. Police and ambulance arrived about 45 minutes later. The offender collapsed about 5 metres from the utility.
Mr Spencer was taken initially to West Wyalong Hospital from where he was transferred to Canberra Hospital and later to Liverpool Hospital. Mr Spencer suffered the following:

Bleeding on the brain;
Bruising and laceration over the scalp;
Multiple bilateral (meaning both sides) rib fractures;
Fracture of the left clavicle (collar bone);
Collapsed right lung;
Bruising over the liver and spleen;
Pelvic fracture with a fracture of the L5 vertebrae;
Bleeding into the abdomen and bleeding into the right pelvic muscle.

Mr Spencer underwent emergency surgery to monitor the pressure on his brain and further surgery to relieve the pressure on his brain. A chest tube was inserted on 12 August 2017 and removed on 18 August 2017. A tracheostomy (breathing) tube was inserted on 27 August 2017 and removed on 22 September 2017. A feeding (nasogastric) tube was also inserted. He also underwent surgery to repair tears to his spleen and liver. He was administered multiple transfusions of blood products. The pelvic fracture and L5 vertebrae fracture were managed conservatively. The laceration to the scalp was repaired.
On 12 October 2017 Mr Spencer was transferred to the Brain Injury Unit at Liverpool Hospital for multi-disciplinary rehabilitation. He had suffered an extremely severe traumatic brain injury including 165 days of post-traumatic amnesia (confusion and disorientation) and significant cognitive impairments including poor short term memory, reduced attention, impulsivity, poor insight, poor problem solving skills, reduced information processing speed and reduced ability to regulate emotions. He was discharged to the Transitional Living Unit, Albury for further rehabilitation to improve his community living skills before returning home with care support.
The ongoing issues and difficulties suffered by Mr Spencer are clearly set out in the report from "Rehab 101", at tab of the Crown tender bundle, exhibit A on sentence. Although he has made substantial progress he still requires assistance and therapy. He still has issues with balance. He has a goal of returning to his pre-injury workplace with modified duties in the middle of August 2019. He still displays what is described as "challenging behaviour".
The offender and Mr Meriton were taken to West Wyalong Hospital from where the offender was transported by helicopter to Orange Base Hospital. The offender suffered a pneumothorax (collapsed lung) to his right lung, three left rib fractures, right kidney lacerations, superficial abrasions and a laceration to his left knee which was sutured and a contusion to his left forehead. He was discharged from Orange Base Hospital on 18 August 2017.
A blood sample was taken from the offender at 8am on 12 August 2017, which is approximately three hours after the impact. A blood alcohol reading of 0.118g/100ml of blood was revealed. Dr Judith Perl, forensic pharmacologist opines that the lower limit at the time of impact would have been 0.147g/100ml of blood. Further, the offender was driving under the influence of alcohol at the time of the impact. The facts earlier recite that there is no evidence that road or weather conditions, mechanical defect, speed or another vehicle, animal or object contributed to the impact.

Assessment

Ms Mendes on behalf of the offender put in submissions that the matter falls short of abandonment of responsibility. I also understood Ms Mendes to submit that there was a continuum between momentary inattention at one end of the scale and abandonment of responsibility on the other and given that this matter did not reach the level of abandonment of responsibility.
The Crown submitted that, given the reading, the extent of the blood alcohol reading, the number of persons in the vehicle and the length of the journey that the conduct of the offender was such that the court would find beyond reasonable doubt that there was an abandonment of responsibility.
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.
Ms Lloyd died as a result of the impact. The extent and nature of the injuries sustained by Mr Spencer are very substantial indeed, noting the extent and nature of the injuries including a fractured vertebrae and traumatic brain injury. Extensive medical treatment was necessary and I am satisfied beyond reasonable doubt that Mr Spencer sustained injuries of a permanent nature and further that he suffers permanent ongoing difficulties as a result of the injuries. I have dealt with the issue of ongoing sequelae noting the contents of the report from "Rehab 101" when dealing with the facts.
The offender had three people and himself in the vehicle. Given the time of day and the location where the driving took place one could expect the other traffic to be light. It is unlikely that there would have been other traffic while the driving was within the property on which they were hunting. Speed, competitive driving, escaping a police pursuit, erratic or aggressive driving and failing to stop are not factors. The matter would be more serious if they were, not less serious because they are not present. However, the length of the journey was considerable as was the extent of the intoxication. I observe that the reading of .147, which was the lower end of the range given by Dr Perl, is very close indeed to the lower limit of the aggravated form of the offence.
The offender consumed alcohol at Junee, Barmedman and West Wyalong and drank steadily it would seem while they were hunting and was drinking initially while driving along on the property after setting off. It is not surprising that the offender's blood alcohol reading was as it was. Noting that the impact occurred at 5am on 12 August 2017 it would have been dark and it would have remained dark for some time. Given the remote location there is always the possibility of wildlife suddenly appearing on the roadway.
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."
Given the constant drinking of alcohol, the decision to drive a very considerable distance, the fact that a good portion of the journey would have been in the dark, the blood alcohol reading and the drinking in the vehicle while driving at the initial stage of the journey I am satisfied beyond reasonable doubt that the offender did abandon responsibility and that his moral culpability is very high.
Another means of expressing an assessment of the criminality in this matter is that both offences are above the mid-range of seriousness and above that mid-range more than just slightly. I am of the opinion that because of the factors set out at paragraph [32] this matter is more serious than the "typical" matter contemplated by the Guideline Judgment.

Victim Impact Statement

At tab 10 of the Crown tender bundle Exhibit A on sentence is a victim impact statement from Tracey Lloyd, the mother of the late Sarah Lloyd which was read to the Court by a family friend. I repeat an observation I made at the sentence hearing namely that the victim impact statement is the most powerful I have heard.
The victim impact statement speaks eloquently of the effects of the tragedy of the death of Ms Lloyd on her family. One can only hope that the offender was listening carefully to that poignant statement as it was read to the court. Many tears have been shed for the late Ms Lloyd and many more are yet to be shed. For what it is worth the court extends its deepest sympathies to the family of Ms Lloyd for their loss.
However, on the issue of the victim impact statement I note the effect of the decision in R v Tuala [2015] NSWCCA 8.

Criminal History

The offender was born on 6 May 1994 and accordingly was 23 years of age at the time of offending and is now 25 years of age. He has nothing recorded on his criminal history and one minor traffic infringement recorded on his traffic record. He is entitled to be dealt with on the basis that he is a person of prior good character.

General Deterrence

At the sentence hearing the Crown's representative submitted on a number of occasions the need for general deterrence. Undoubtedly there is a very real need for general deterrence to be a significant factor in this sentencing exercise. It is no exaggeration to say that this matter is indeed a tragedy on so many levels. One young life is lost. A number of lives including the offender have been substantially and adversely affected. Young people should understand that if they drink and drive and they are involved in an impact where the death or grievous bodily injury is occasioned condign punishment will flow.
Hoeben CJ at CL in giving the judgment of the Court in WW v R [2012] NSWCCA 165 said at [65]: The applicant accepted that when sentencing for driving offences, because of the tendency of young drivers to drive dangerously and thus the greater prevalence of driving offences committed by young persons, general deterrence might be regarded as a "prominent factor". He submitted, however, that his Honour erred in this case when he said that he regarded general deterrence as "a dominant factor". The applicant submitted that "prominent" was not the same as "dominant" and that his Honour erred in substantially subordinating considerations relating to his youth to the concept of general deterrence. The applicant submitted that his youth and the need to foster rehabilitation had to be given appropriate weight. In this case his Honour's finding was that the applicant had "good prospects of rehabilitation".
His Honour went on to say at [69]: "The distinction sought to be made by the applicant between the words "dominant" and "prominent" is a matter of semantics, rather than principle. Whichever word is used, the effect of what his Honour did is clear, i.e. that in relation to this offence because of the prevalence of young offenders, general deterrence is to be regarded as more important than the need for rehabilitation. In R v Scott [1999] NSWCCA 233 Levine J (with whom Smart AJ agreed) referred to the importance of general deterrence in the following terms: "[17] His Honour paid particular regard to the consideration which is of paramount importance in a case in respect of this offence, namely general deterrence. Offences under section 52A are public offences. Everyone has some idea of what they are about. Everyone is involved as a driver, passenger or pedestrian with what goes on on the highways and streets of this State. It is a very public crime. The public are entitled to have sentences imposed that make it perfectly clear that conduct of this kind in an environment in which so many of the public are involved in their daily affairs, will be appropriately punished."
In TG v Regina [2010] NSWCCA 28 Howie J, with whom McClellan CJ at CL and Harrison J agreed, observed to similar effect: "[33] Thirdly, evidence from a psychiatrist as to the immaturity of young males of the age of the applicant was irrelevant. If a young male is old enough to be licensed to drive a motor vehicle, he is to be assumed to be mature enough to comply with its conditions and the traffic rules. In SBF v R [2009] NSWCCA 231; 53 MVR 438 at 151 Johnson J stated: '[151] Ms Francis referred in submissions to the Applicant "having little appreciation of his own mortality" (T5.35, 22 June 2009). The Applicant's counsel in the District Court had submitted that "it is also a fact of life that people at this tender age tend to - their brains tend to not allow them to deal with the responsibility that they sometimes demand so vocally". In a similar vein, the sentencing Judge in the Victorian County Court in Neethling at [51] had observed that the offender "like many young men ... saw [himself] as 'bullet proof'." The fact that young men (in particular) may have such perceptions is a significant reason for general deterrence to be a prominent factor in cases such as these. Inexperience and immaturity, in persons aged 17 years and over, cannot operate as mitigating factors where the offender commits grave driving offences, with fatal consequences, as exemplified by Neethling and this case.' The reference to "Neethling" was a reference DPP v Neethling [2009] VSCA 116; (2009) 52 MVR 422."
The Court in WW v R and TG v R was of course dealing with juvenile offenders. However it seems that the statement of principle repeated above have a more general application. In matters such as the present the issue of rehabilitation is subordinate to the issue of general deterrence.
In that same vein, the Crown at the sentence hearing referred the court to the decision of R v Elkassir [2013] NSWCCA 181 where RA Hulme J (Emmett JA, RS Hulme AJ agreeing, Emmett JA with additional comments) said at [46]: "…The importance of general deterrence in driving offences of the present type stems from the different bases as I have noted above. But the practical effect is the same: the need for rehabilitation of the offender is diminished by the need to protect society".
Hulme J in Aitken v R [2014] NSWCCA 201 at [32] said: This was a case involving obvious tragedy for the family and loved ones of the deceased. It also involved tragedy for the applicant himself. But it is important not to let that impinge unduly upon the proper assessment of a sentence which, in accordance with principle, must involve a significant element of general deterrence notwithstanding the age of the offender. The judge had the unenviable task of sentencing the applicant to what had to be a significant term of imprisonment. In R v Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep), Hunt CJ at CL observed that: "It is never easy to send a youthful person of good character to gaol but, where it is appropriate, it is something which must be done as a deterrent to others. The need for public deterrence will usually outweigh the fact that the particular offender has already learned his or her lesson. Also, retribution remains an important purpose which the sentence must serve."
Yet again a court has the "unenviable task" of sending a young man of prior good character to a significant term of imprisonment. I will deal with the offender's evidence shortly however I observe that I am left in no doubt listening to and observing the offender during the sentence hearing that he has certainly learned his lesson.

Subjective case

It needs to be immediately observed that the offender has a powerful subjective case. The offender gave evidence. There is a bundle of documents relied upon by the offender which collectively exhibit 1 on sentence. Within that bundle is an affidavit of the offender's partner. She was not required for cross-examination. There is a report from Ms Sarah Brann, Forensic Psychologist of Lennings Seidler Collins Psychology Service, a report from Mr John Sheppard treating psychologist of Wagga Wagga and a series of testimonial references.
I will go firstly to the offender's evidence. He is now 25 and was living with his partner and his two sons with his partner's parents at Collingullie a small village about 20 kilometres west of Wagga Wagga on the Sturt Highway. He had his partner and a significant number of other family members supporting him in court at the sentence hearing. The move to Collingullie was to prepare the boys for the transition given that the offender was aware that he would be going into custody. He understood he would be going into custody at the conclusion of the sentence hearing. His partner works full time and he has her support. He hopes that support will continue for the period of time that he is in custody.
The offender has never been to custody nor is he acquainted with anyone who has been to custody. He has heard of people with whom he went to school going to prison but he does not mix with them. It was obvious that the thought of going into custody was weighing very heavily on the offender at the sentence hearing.
The offender heard the victim impact statement being read to the court. He said that he listened. He said that he was "gutted" for his actions, it should never have happened, it was a stupid decision (to drive) and it is something that he will have to live with for the rest of his life. He prepared a written statement (MFI 1 on sentence) to read for fear of not being able to properly express himself. That reads: "…I'm so sorry to everyone that I have hurt especially to Sarah's family, to Shawn and Jesse and their families and everyone effected (sic). I wish that I could go back to that night I would never have made that reckless decision to drink and drive. Not a day goes by that I don't think about and regret my decisions, I know that I will never truly understand the impact of my actions and there is nothing that I can say that will make this better. I will forever regret my actions I am so sorry".
The offender went on to say that now he feels numb about it and not a day goes by that he does not think about it and regret it. He has kept in contact with Shawn Spencer and took him fishing at Christmas time. A little later in his evidence he said that the decision to drive was the "stupidest decision of my life". Later still in his evidence when asked why make the decision to drive home he said, "just stupidity" and that he was "just not thinking".
It is beyond doubt that the offender is deeply remorseful and contrite. It was not only the content of what the offender said but his demeanour at the time. He was clearly affected by the situation. The offender is most certainly entitled to a finding that he is remorseful.
When asked about the day on which the offending occurred he said that his friends arrived at about 6pm, which was normal when they went hunting. Initially it was a usual hunting trip in that they headed out and hunted for a period of time. They finished hunting about 2am and a decision was made to return to Wagga Wagga instead of staying on the property and resting in the vehicle which they often did.
He went on to say that he was honest with the psychologist but corrected a couple of matters at paragraphs 17 and 29 of the report. He said that the alcohol intake during a hunt varied. A "normal hunt" started at about 10(pm), they would hunt until they had had enough and then sleep in the ute and then hunt again before returning home. The person who owned the ute they took would normally drive.
He was primary school captain. He obtained full time work as an apprentice plasterer after leaving school and is now a foreman plasterer. He is financially responsible for his children. He has never been in trouble with the police. There is a debt of $15,000 relating to the utility involved in the impact. He does not know if his partner will be there for him on his eventual release from custody.
His partner arranged for him to see the treating psychologist Mr John Sheppard. But for his partner organising that, it would never have happened. Mr Sheppard has provided a short report. That report sets out that the offender is very remorseful. The focus of treatment was directed towards ongoing symptoms of post-traumatic stress which started to resolve over time. The symptoms of depression and anxiety became for "impacting" as he faced the reality of what had happened and that cognitive behaviour therapy was used to treat negative symptoms. Mr Sheppard opines that the offender's mental health is reasonably stable but if incarcerated he will need to be reviewed by the Medical section of the gaol. This was one of the reasons I directed that the reports of Ms Brann and Mr Sheppard be annexed to the warrant that accompanied the offender to custody at the conclusion of the sentence hearing.
It was plain from the evidence that the offender was certainly of the opinion that he has benefited from the treatment by Mr Sheppard. He also gave evidence that he feels that he would benefit from such assistance when he is released. The offender also said that he realises that it will be difficult to find work upon release and he accepted the need to work with Community Corrections upon release. These issues, including the need for ongoing support, justify a reasonably generous finding of special circumstances, which issue I will address later in these reasons.
Under cross-examination the offender admitted perhaps reluctantly that he may have had a problem with alcohol. He also admitted to continuing to go hunting with friends and drinking while hunting. I note that at paragraph 17 of her report Ms Brann indicates that the offender would benefit from increasing insight into links between his thinking and behaviour.
Further, under cross-examination the offender said that there was no agreement or conversations between the group of them about camping after the hunt despite the fact that he started drinking at about 6.30pm on the way to the hunt. He admitted to drinking during the hunt. The offender said he stopped drinking when the decision to drive back to Wagga Wagga was made.
The offender was challenged in cross-examination about him continuing to drink after the impact. It seems that he continued to drink regularly.
The Crown then took the offender to paragraph 18 of the facts where it is set out that, "Mr Meriton recalls Mr Spencer and the offender sharing a bottle of Captain Morgan's at about this time". The offender said under cross-examination that this was a 375 ml bottle of pre-mixed rum and that it was consumed while they were driving on the property. Clearly the offender did not stop drinking when the decision to return to Wagga Wagga was made but continued drinking at least at the initial stage of the journey.
The offender was then asked about the offer of Mr Meriton to drive. The offender said that whoever owned the ute that they took hunting generally drove. In re-examination the offender said that Mr Meriton had also been drinking. There is nothing in the material before me that would indicate Mr Meriton's level of intoxication.
I now turn to the affidavit of Tara Jones, the offender's partner. She explains that the offender has a close relationship with his father but they do not discuss their feelings. She and the two children have substantial family support from her mother but she is concerned about the disruption to her mother's life because of her and the children living with her. She suffers from post-traumatic stress as a result of events in her childhood. The offender is a good father and they will have difficulty coping without the offender when he goes into custody. She is concerned the effect that prison may have on the offender.
Ms Jones goes into some detail about the day of the impact and her going to Orange and seeing the offender. She speaks of the offender expressing remorse and having "nothing but complete regret and felt tremendous guilt". This adds to the reasons for the finding that the offender is remorseful. Later she sets out the effect the impact and the aftermath of had on the offender. He is more distant and does not socialise as much. Further Ms Jones says that she has been on hunting trips with the offender when no alcohol was consumed.
Ms Jones then says that the offender hopes to return to work as a plasterer upon release and that she wishes to be a paramedic. The offender's parents, siblings and Ms Jones have all reassured the offender that they will be there to assist the offender throughout his sentence and they will be there on his release. The support that the offender clearly has from his family and partner will assist in his long term rehabilitation.
I now turn to the psychological reports. Ms Brannn's report deals with the personal background of the offender, which has already been dealt with. It seems that the offender has always had an interest in pig hunting. By the age of 21 or 22 his intake on some of those trips increased, but the alcohol was usually consumed after the hunt had taken place. Ms Brann opines that the offender would benefit from psychoeducation to increase his insight into issues relating to alcohol. The offender has participated in and completed a traffic offender's programme.
On the day of the offence it was expected that they would be staying overnight on the property where the hunt had taken place. It was agreed they would go back because the deceased had a sporting commitment. He felt a sense of responsibility as the group had travelled in his ute. He maintained that he ceased drinking at about the time he prepared the animals (the hunting dogs) but did not raise concerns about his ability to drive. Remorse was expressed to the author of the report. The offender is concerned about the financial impact on his family when he is in custody. He is of average intelligence.
The offender reported to Ms Brann that since the offending he experienced deterioration in his mental health. His partner confirmed with Ms Brann dramatic changes in his mental health functioning. This was one of the reasons that I directed a copy of Ms Brann's report be annexed to the warrant that accompanied the offender to custody at the conclusion of the sentence hearing. The offender reported as being socially withdrawn and tending to stay home since the offending. Although he had experienced suicidal thoughts he denied posing any current risk of self-harm. He continues to experience high levels of mood-disordered symptoms. Ms Brann opines (p 11) that the offender is suffering from Post-Traumatic Stress Disorder (PTSD).
Ms Brann opines (pp 13-14) that the offender's criminogenic treatment needs are in developing assertive communication, problem-solving skills, resisting influence of peers and building insight into his alcohol consumption as problematic. He would also benefit from trauma focused intervention and developing skills and managing his mental health symptoms.
The offender is 25, he is of prior good character and this is his first time in custody. He will clearly need an extended period of supervision to address the issues identified by Ms Brann. He will also need assistance with reintegration into the community after what will be a lengthy period of time in custody. These factors in combination justify a finding of special circumstances.
Mr John Sheppard, Psychologist of Wagga Wagga, has been treating the offender and has provided a short report. It appeared to Mr Sheppard that the offender was traumatised and it was clear that that he felt extremely guilty and was very remorseful. Mr Sheppard has engaged in cognitive behaviour therapy approaches to treat the negative symptoms. Mr Sheppard opined that the offender's mental health was reasonably stable but if incarcerated he will need to be reviewed by the medical section at the gaol. That report was also annexed to warrant that went with the offender to custody.
Included in the defence tender bundle is the Discharge Summary from when the offender was discharged from hospital. The injuries sustained by the offender have been set out in detail in the facts. As I understood the submissions by Ms Mendes for the offender it was put that with the injuries, taken with the guilt associated with the death of Ms Lloyd and the grievous bodily harm to Mr Spencer, the court should make some consideration in the instinctive synthesis process of determining the appropriate sentence for extra curial punishment. Again, as I understood the submissions, the Crown opposed any finding of extra-curial punishment, noting that there no lasting injuries and the injuries were not significant. The Crown referred the court to the decisions of Spark v R [2012] NSWCCA 140 and R v Wright (2013) 229 A Crim R 245; [2013] NSWCCA 82. I have read and considered paragraphs [54]-[57] of the judgment of Fullerton J in Spark paragraphs [60]-[62] of the judgment of Price J in Wright.
The Court of Criminal Appeal reviewed a number of authorities relating to extra-curial punishment in Whybrow v R [2008] NSWCCA 270 at [21]-[25], which coincidentally was a case involving death by dangerous driving. One such authority was R v Daetz (2003) 139 A Crim R 398; [2003] NSWCCA 216 where James J said at [62]: "…the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on the circumstances of the case".
I am of the opinion that the matters raised by Ms Mendes in combination amount to extra-curial punishment. However any consideration for that will be very minimal indeed.
There are a number of testimonial references before the court that speak well of the offender both in the work place and as a family man. They also speak of the deep remorse felt by the offender in respect of the offending. I have already observed that the offender enjoys very considerable family support, which will assist in his long term rehabilitation.
Given the offender's age, lack of prior record and the obvious effect that this matter has had on the offender, I am satisfied on balance that the offender is unlikely to re-offend.
Ms Mendes submitted in reply (although the words are mine not counsel's) that the court would also find on balance that the offender has good prospects of rehabilitation given the factors referred to in the paragraph immediately above and the family support that the offender enjoys. Added to this is the fact that he has a trade and to date has displayed a good work ethic. I observe that the offender will need to address the issue of his consumption of alcohol. However in all of the circumstances I am prepared to find on balance that the offender has good prospects of rehabilitation.
A number of submissions by counsel have already been dealt with. It was acknowledged and appropriately so that the victim impact statement was very powerful. Ms Mendes realistically conceded that a substantial custodial sentence would be imposed on the offender. The role of general deterrence was also acknowledged.
Submissions were made as to the objective seriousness of the offending. I have already dealt with those submissions and have extensively set out the circumstances of the offending. The submissions included the degree of intoxication and the length of the journey.
The strong subjective case was emphasised, in particular the fact the offender was young, fully employed, was a foreman plasterer, was the sole financial provider for his partner and two young children and he was in a stable domestic relationship. The remorse was emphasised. Aspects of the psychological reports were also emphasised in the course of submissions. I accept the diagnosis of the reports and in particular that the offender has a major depressive disorder - see paragraphs 40 and 42 of Ms Brann's report.
Ms Mendes went on to submit that the offender should be given some consideration for delay, noting that it is almost two years since the offending and that it took over seven months from the offending to the first appearance before the Local Court. Latham J (Hidden & Adamson JJ agreeing) reviewed a number of authorities relating to the issue of delay in R v Donald [2013] NSWCCA 238 at [28]-[57].
Latham J went said at [49] of that decision: "There is nothing in this Court's consideration of the issue of delay in Fahda, Khoury, Blanco, Barker & Gibson, TJ v R [2009] NSWCCA 99, Tourni v R [2010] NSWCCA 317 or Giourtalis v R [2013] NSWCCA 216 that departs from the summary set out above in Scook, with the exception of the last factor (a mitigated penalty as a mark of disapproval of tardy prosecutorial conduct) in Buss JA's judgment. I am not aware of any authority in this State that has endorsed such an approach to the sentencing of an offender, where the absence of a satisfactory explanation for the delay leads to the conclusion that the prosecution has been 'dilatory or neglectful'. Overwhelmingly, the focus is on the consequences of the delay to the offender, no matter what the explanation for it.'
It is notorious that in matters such as the present considerable time is taken to obtain the various experts reports such as the report from Dr Perl. The offender was committed for sentence on 3 December 2018 having been charged with the matters initially on 7 February 2018. There were two adjournments of proceedings in the District Court. There is no evidence of any adverse effect of the delay on the offender. In any event the delay could not be said to be dilatory or neglectful. I am not prepared to extend any consideration for the issue of the delay to the offender.
Finally Ms Mendes submitted that the court would reduce the period of actual disqualification but order that the offender participate in the interlock scheme. A document relating to the interlock scheme was marked MFI 2 in the sentence proceedings and remains with the papers. I also note s 206A of the Road Transport Act, 2013 which has the effect of any disqualification period commencing only on the offender's release from custody. Noting the issues of rehabilitation and the offender's employment and need for a licence I will reduce the period of disqualification from the automatic period. However, because of the issue of the offender's alcohol consumption it is appropriate also to order that he participate in the interlock scheme.
The Crown conceded the 25% discount for the plea and the finding of remorse. The Crown submitted however that the court would be guarded finding that there were good prospects of rehabilitation given the issues concerning the offender's continued consumption of alcohol. I have already dealt with this issue. I have also addressed other submissions by the Crown earlier in these reasons.
Further, the Crown submitted that I would find beyond reasonable doubt that the offender showed a disregard for public safety giving rise to the statutory factor of aggravation pursuant to s 21A(2)(i) of the Crimes (Sentencing Procedure) Act, 1999. This submission was based on the length of the journey, the remote location and the blood alcohol reading. As I observed at the sentence hearing those matters are factored into the assessment of the objective seriousness of the matter. It seems to me that to also find the factor of statutory aggravation as urged by the Crown would be to fall into the error of double counting.
The Crown submitted as I have found that there was an abandonment of responsibility by the offender. The need for general deterrence was appropriately emphasised by the Crown. I have already dealt extensively with that issue.
It was put by the Crown that some of the offender's evidence was contradictory to the agreed facts. If there was such a contradiction the offender is sentenced in accordance with the agreed facts - see Khanwaiz v R [2012] NSWCCA 168 per Beech-Jones J at [96].

General Remarks

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.
I 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 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties, the blood alcohol reading, the death of Ms Lloyd and the grievous bodily harm suffered by Mr Spencer, the need for general deterrence and the circumstances of the offending no other sentence than a substantial sentence of imprisonment is appropriate. No contrary submission was made.
The Court of Criminal Appeal has observed a number of times that reference to previous cases is of limited utility. I note however the observation of Hulme J in Aitken v R [2014] NSWCCA 201 at [33] that the "result represents a severe outcome for the applicant". In that matter the driving was much worse than the matter presently under consideration but the blood alcohol level was substantially less. The offender in Aitken also had a very strong subjective case.
There are two offences arising out of the one impact, one involving the death and the other involving grievous bodily harm. I indicated at the sentence hearing I was minded to impose an aggregate sentence. I did not understand either party to take issue with that. I observe that if separate sentences were imposed there would need to be very meaningful but partial accumulation to recognise the two different victims. This issue was also the subject of a submission by the Crown at the sentence hearing.
As I am proposing to impose an aggregate sentence it will be necessary to indicate the sentences that would be imposed if separate sentences were imposed. In respect of the count involving the death of Ms Lloyd I am of the opinion that the appropriate starting point would be one of 5 years imprisonment from which is deducted the 25% discount for the utilitarian value of the plea resulting in a total sentence of 3 years 9 months. In respect of the count involving grievous bodily harm to Mr Spencer I am of the opinion that the appropriate starting point would be 3 years 6 months from which is deducted the 25% for the utilitarian value of the plea resulting in a total sentence with some minor rounding down in favour of the offender of 2 years 6 months. These reasons have been reduced to writing and will be provided to the parties on the pronouncement of sentence.

Formal Orders

I invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence.
The offender is sentenced to an aggregate sentence of 5 years and 3 months with a non-parole period of 3 years 6 months. The non-parole period will commence on 19 July 2019 and will expire on 18 January 2023. The balance of term on parole of 1 year 9 months will commence on 19 January 2023 and expire on 18 October 2025.
The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
The non-parole period represents two-thirds of the total sentence which indicates a finding of special circumstances the reasons for which have been enunciated earlier within these reasons.
In respect of each matter the offender is disqualified for a period of 2 years after which he is to participate in the Interlock Scheme for a period of 3 years. The disqualifications are concurrent with each other.

Recommendation

I recommend in the strongest of terms to the Department of Corrective Services that the offender be classified as soon as practicable and if possible the offender serves his sentence in a minimum security institution such as the Manus Correctional Centre at Tumbarumba.

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. Decision last updated: 05 September 2019

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Judgment (11 paragraphs)

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Cases Cited (23)