R v Perry [2014] ACTSC 99

5. The first ten months of the sentence, that is from 2 May 2014 to 1 March 2015, be served by periodic detention.

6. The first detention period commence on 9 May 2014, when she must present herself to the Symonston Periodic Detention Centre by 7:00 pm.

7. The balance of the sentence be suspended on 2 March 2015.

8. Candice Anne Perry sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from 2 May 2014 with a probation condition that she be under the supervision of the Director-General or her delegate for a period of two years or such lesser period as the person delegated to supervise her considers appropriate and that she obey all reasonable directions of that person, especially as to counselling and treatment for mental health issues.

9. A copy of the Report of Dr Stephen Allnutt dated 29 April 2014 be forwarded to ACT Corrective Services to assist in the management of Candice Anne Perry's probation.

1. On 16 June 2012, Candice Perry deliberately drove her car off Belconnen Way and collided with Jason Burgess and Daniel Burgess causing them serious injuries as a result. She was charged with a number of offences and on 21 October 2013 pleaded guilty to a count of causing grievous bodily harm to Jason Burgess by an unlawful or negligent act or omission and to a count of causing grievous bodily harm to Daniel Burgess by an unlawful or negligent act or omission.

2. The offence of causing grievous bodily harm by an unlawful or negligent act or omission is an offence against s 25 of the Crimes Act 1900 (ACT) and renders Ms Perry liable to a maximum penalty of imprisonment for five years.

3. The events leading to the offence started on the evening of 15 June 2012 when Ms Perry and the two victims, Jason Burgess and Daniel Burgess, who are brothers, were at a club at Jamison. Ms Perry had known Daniel Burgess for approximately eight years but met his brother for the first time that night.

4. Earlier, in mid 2010, Ms Perry had lost custody of her son and this had caused her considerable anxiety and depression. She said that, in the time leading up to the offences, her sleep was poor and she was feeling depressed. She also experienced panic attacks.

5. Ms Perry told Dr Stephen Allnutt, a Consultant Forensic Psychiatrist who provided a helpful court report, that she found Jason Burgess to be arrogant and rude and that he made comments that upset her although his brother apologised on his behalf. That his brother apologised is an indication of the inappropriateness of the comments that he was making.

6. At some time in the evening, the topic of Ms Perry's son was brought up and Jason Burgess told her that she deserved to lose her son which, no doubt, added to her feeling of upset and hostility towards him. Besides being inappropriate, the comments obviously, to use the phrase of counsel, "hit a very raw nerve".

7. At about 10:30 pm, they all left the club and walked to Jason Burgess' unit because, at that stage, he seemed to be being really nice to her. In the unit, however, she started to feel uncomfortable and stated that she was subject to an unwelcome sexual advance by another person who was there. She said she wanted to go home and Jason Burgess said he would walk her home. They walked to her mother's house where her car was parked and she then drove Jason Burgess back to his unit. There was, she said, discussion about Daniel Burgess renting a room in her house and so she decided to drive both brothers back to her home so that Daniel Burgess could see the room.

8. When they arrived at her home, Jason Burgess brought up the issue of her son again. At some stage, she also took a Xanax tablet. She then told them that they had to go and she decided to drive them home. Arguments continued in the car and Jason Burgess again made reference to her son saying, "No wonder you lost your son". She then stopped the car along Belconnen Way and told the brothers to get out of the car. They did so and started walking up a nearby embankment. Jason Burgess turned and yelled towards the car, "No wonder you don't have custody of your son when you act like this" and then turned round and kept walking.

9. Ms Perry then drove the car off the road and at Jason and Daniel Burgess. Jason Burgess was struck first, causing him to mount the bonnet and was then flung from the car. Daniel Burgess put his hands out before being struck by the car on his left arm and fell backwards.

10. The car continued forward, hit a tree and stopped. Daniel Burgess could hear his brother screaming and ran to the driver's side door, shouting at Ms Perry, "Don't reverse, please, my brother's under the car" but Ms Perry reversed though apparently not hitting Jason Burgess again and hit another tree. She then drove home.

11. The ambulance were called both brothers were taken to hospital.

12. Jason Burgess sustained concussion with a loss of consciousness, an anterior dislocation of the right knee, a right popliteal arterial thrombus and an avulsion fracture of the right tibial plateau, complete disruption of the anterior and posterior cruciate ligaments of the right knee, lateral and medial miniscule tears of the right knee, complex disruption of the lateral collateral ligament of the right knee and popliteus muscle injury.

13. In hospital, he underwent a closed reduction and external fixation of his right knee and an intraoperative angiogram of the right leg and popliteal artery thrombectomy. There were, of course, multiple investigations. He did suffer some post-operative complications and required outpatient reviews.

14. The injuries to his knee risk long-term complications including arthritis and the possibility for a knee joint replacement in the future. He also suffers permanent scarring and reduced mobility which will limit sporting and recreational activities due to potential knee instability. It was suggested that there will be prolonged physiotherapy intervention and some psychological sequelae.

15. Daniel Burgess sustained a comminuted and intra-articular left distal radial fracture. He underwent a closed reduction of the left radial fracture conducted under sedation in the Emergency Department and an open reduction and internal fixation of the radial fracture. He was also subject to multiple investigations. The long term effect of the injuries on him include scarring tears to his left forearm and permanent internal fixation of the left radius, an increased risk of pain and reduced mobility in his left wrist due to arthritis which may require joint replacement or other surgery in the future, a prolonged convalescence and psychological sequelae.

16. Ms Perry is an only child. She is now thirty-two years old. Her parents separated when she was aged three and she resided with her mother. They, however, had a difficult relationship. Ms Perry says, however, that her relationship with her mother has reportedly improved in recent years.

17. At age fifteen, Ms Perry moved interstate and, briefly and unsuccessfully, lived with her father but soon returned to the ACT. At this time, however, she began a volatile lifestyle which included illicit drug use and other risky behaviours which led to her residing in refuges from time to time.

18. She achieved Year 9 at school with no learning problems and was an average student. She had no difficulty making or maintaining friends and got on well with teachers although she was bullied at one stage, resulting in reduced grades. Ms Perry left the ACT schooling system at age fifteen and, although later making attempts to complete Year 10 and a vocational certificate course, she was not successful in returning to the education system.

19. When she was nineteen, Ms Perry began a relationship which resulted in a son being born. At the time, she ceased using illicit drugs but later returned to drug use and mutual drug use damaged her relationship with her son's father and they ultimately separated eight years later. She then parented her child alone.

20. She says that, at around 2010, she experienced intrusions in her home from another woman which led to her deciding that she had to leave her home. As a result, she and her son lived with her mother for a while and then in refuges while waiting for housing but she said that, in this vulnerable position, her son's father took advantage of the situation to obtain custody of his son from her, which he achieved, as I have noted above, in mid 2010. Initially, she visited him, but these visits were later terminated by Child Protection Services. I do not have the details of the circumstances of this. She is hoping to resume supervised access to her son. The situation has, understandably, caused her considerable distress.

21. Ms Perry has had several brief employment positions in hospitality and retail in supermarkets but has not been employed since 2011. She claims a Centrelink New Start Allowance but has experienced financial hardship from time to time. She has few assets but no major debts.

22. Ms Perry first used cannabis at age fourteen and speed at age seventeen in an experimental way. At age eighteen, she started using heroin and became addicted. She continued to use heroin until she fell pregnant when she stopped using and entered a methadone programme. As I have noted above, she relapsed into heroin use while continuing to take methadone, except for a period between January 2011 and March 2012. She remains on the methadone programme. I understand she does not presently use heroin.

23. Ms Perry first drank alcohol at a young age and experienced a period of significant alcohol abuse after she lost custody of her son.

24. She has not had any counselling or residential rehabilitation for her drug and alcohol use apart from a brief counselling engagement during 2010.

25. As I have noted above, Ms Perry suffers significantly from anxiety and depression. She reported a family history of Mood Disorder and Bipolar Affective Disorder. She also experienced a breakdown when she awoke unable to feel the left side of her body. This resulted in her being hospitalised for a week.

26. Dr Stephen Allnutt expressed the opinion that Ms Perry

... manifests a constellation of anxiety and depressive symptoms ... associated with this, she has intermittent panic attacks which form part of her depressive disorder, likely consistent with a persistent depressive disorder that had its onset in about 2010 when she was separated from her son, causing her significant psychological distress; she has mild agoraphobia and social phobia.

27. Dr Allnutt suggested that she manifests a number of borderline personality traits and that her function is mildly to moderately impaired secondary to her anxiety and depressive symptoms.

28. Ms Perry told the author of the helpful Pre-Sentence Report that she did not plan the offence. She did not significantly dispute the statement of facts although there was a suggestion in the account given to Dr Allnutt that she had not intended to use her car to injure the Burgess brothers. She accepted in her oral evidence to me that she did deliberately drive at them, as stated in the Statement of Facts, but says she was provoked by the comment of Jason Burgess.

29. She agreed that later the same day, she had sent some texts to Daniel Burgess in which she expressed the view that Jason Burgess "deserved what happened because of what [Jason] did". She said that she was still angry at the time and did not realise what injuries she had actually caused. She told the author of the Pre-Sentence Report that her own misuse of unprescribed medication on the evening resulted in her behaviour being explosive and panicky as a response to the unfolding events. She felt that her wellbeing was at risk. The author of the Pre-Sentence Report suggested that she appeared to minimise the gravity of the offence and the injuries to the victims, focussing instead on her own feelings and perceptions. Her regret was largely due to the impact on her own hopes for the future. In her evidence to me, however, she showed some insight into the injuries she caused, though she said that she had seen Jason Burgess since the incident and he appeared to her to have recovered well from them.

30. The author of the Pre-Sentence Report noted her continuing pre-occupation with the loss of custody of her son which is unsurprising, but, to her credit, she persists with pharmacotherapy and other medication to maintain stability and her outlook.

31. Ms Perry has a relatively short criminal history. Of the six offences of which she has been found guilty, three are traffic offences, though two were offences of drink-driving, both committed on the one day. She has, however, committed two offences of common assault, though the most recent was committed in 2009, some four and a half years ago.

32. She is presently under the care of her general practitioner and has been prescribed Valium for her mental issues. She has been referred to a psychologist. Ms Perry said to me in her evidence that the referral to the psychologists by her General Practitioner had not proved successful or appropriate.

33. Dr Allnutt expressed the opinion that the current treatment for her psychological condition was insufficient to manage it and recommended that she be referred to a psychiatrist. She agreed to seek psychiatric help as recommended by Dr Allnutt.

34. The author of the Pre-Sentence Report expressed the view that Ms Perry, on the evening, "appears to have acted impulsively and erratically" and suggested that she would benefit from engaging with family, women's or health services to assist her address the significant personal issues which are of primary importance to her. She is assessed at a moderate to high risk of re-offending.

35. I had a Victim Impact Statement from Jason Burgess. I did not have a Victim Impact Statement from Daniel Burgess.

36. Jason Burgess described the consequences of the events of that night as "life changing", leaving him with a permanent disability in his right leg. He described the immediate pain and his subsequent surgery. He was an in-patient at hospital for three weeks and spent the next six weeks in bed or a wheelchair. He said he became depressed and suicidal. He sought help from ACT Mental Health. He also underwent further surgery and a rehabilitation program. He said that the disabilities have prevented him from carrying out parental responsibilities for the son for whom he has shared custody and that he experiences ongoing pain when undertaking many tasks. He has had to give up sports he enjoys and has not performed as a musician since the incident. He has suffered financial loss as he has been unable to return to his career in landscape construction, though that will be likely to be addressed in the proceedings he is able to take to recover compensation. It did, however, lead to him having to sell his home and he says he is now in debt. The impaired mobility in his right leg will be permanent.

37. He did not, however, acknowledge the inappropriateness of his provocative remarks although they did not, of course, justify Ms Perry's response to them.

38. While the maximum penalty set by the legislature shows that this offence is not one of the more serious of the criminal offences, it is still a serious offence. Indeed, offences which result in personal injury must always be so. The damage, including death, that can be caused by use of a motor vehicle is bad enough when it has not been deliberately caused, but to use a motor vehicle as a weapon in the way that Ms Perry did must be regarded as a serious offence.

39. The injuries caused by the incident are also relevant in assessing the seriousness of the offence. I have described them above and they do confirm the objective seriousness of the offence.

40. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) and have regard to the matters which I must consider under that Act.

41. I take into account Ms Perry's plea of guilty. It was not made at the earliest time, indeed, it was a late plea; it justifies a modest discount on the sentence that I must impose. While the more serious charges on the indictment were discontinued by the Crown, the alternative charges to which she pleaded guilty on the morning of the trial had been included in the indictment as originally presented.

42. I take account of the objective seriousness of the offences as I have described them. They do require a sentence that includes a significant element of general deterrence and denunciation of the behaviour. There is also a need for some specific deterrence because Ms Perry must realise that while the court can express sympathy for the personal distress that the loss of access to and custody of her son has caused, it is imperative that she takes steps, such as those recommended by Dr Allnutt, to address her mental health in order that she can function effectively in the community without such behaviour. She cannot risk similar responses as this in the future.

43. I take into account Ms Perry's subjective circumstances as I have described them. While they do evoke sympathy, this cannot overwhelm the seriousness of the offences, but they do leave some room for leniency.

44. As required by s 33(1)(q) of the Crimes (Sentencing) Act, I take into account that Ms Perry was provoked into committing the offences. She was understandably very sensitive to the issue of the loss of custody and access to her son and the comments of Jason Burgess, throughout the evening and particularly just before the incident could, at the very best, be described as insensitive, uncalled for and rude. They did not justify the response, of course, but did explain it contextually.

45. I accept that Ms Perry has some remorse. The pain of the taunts to her clearly have clouded her perception of what she has done, but her plea of guilty and her expressions to me showed more than mere self-pity and a realisation of the likelihood of conviction. I accept that, as the Crown submitted, it is somewhat limited remorse, but she did show acknowledgement that what she did was wrong.

46. The incident is now nearly two years old and Ms Perry has not apparently come to the notice of police since then.

47. It was submitted that she had not been proactive in seeking out a medical response to her problems; I do not accept that. She is medicated and was referred to psychologists on whom she attended. That the medication is, now that a specialist has considered her position, not regarded as sufficient cannot be held against her. That the referrals were not successful is, also, not something to be held against her. Dr Allnutt's report is dated 29 April 2014. It cannot be expected that his recommendations would have been implemented prior to sentencing.

48. Ms Perry has been assessed as suitable for a community service work condition to a good behaviour order and work is available for her. She has also been assessed as suitable for periodic detention and has signed the required undertaking.

49. The Crown acknowledged that the two offences arose out of the one incident and that substantial concurrency was appropriate. In my view, the sentence I must impose can properly be wholly concurrent. See Kennewell v Rand [2006] ACTCA 10 at [48]- [55].

1. I convict you of causing grievous bodily harm to Jason Burgess by an unlawful or negligent act or omission on 16 June 2012.

2. I sentence you to two years' imprisonment to commence today. Had you not pleaded guilty, I would have sentenced you to two years and three months' imprisonment.

3. I convict you of causing grievous bodily harm to Daniel Burgess by an unlawful or negligent act or omission on 16 June 2012.

4. I sentence you to twenty-two months' imprisonment to commence today, that is to be wholly concurrent on the first sentence. Had you not pleaded guilty, I would have sentenced you to two years' imprisonment.

5. I set the first ten months of the sentence, that is from today, to 1 March 2015 to be served by periodic detention. I direct that the first detention period commence on 9 May 2014 when you must present yourself to the Symonston Periodic Detention Centre by 7:00 pm.

6. I suspend the balance of the sentence on 2 March 2015.

7. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from today with a probation condition that you be under the supervision of the Director-General or her delegate for a period of two years or such lesser period as the person delegated to supervise you considers appropriate and that you obey all reasonable directions of that person, especially as to counselling and treatment for mental health issues.

8. I direct that a copy of the Report of Dr Stephen Allnutt dated 29 April 2014 be forwarded to ACT Corrective Services to assist in the management of your probation.

51. [His Honour then spoke directly to Ms Perry]

52. Ms Perry, that is the formal order that I have made and I must now explain that to you. I have regarded these offences as very serious although I have recognised the reason why you committed them but that reason does not justify them. They were bad offences and they deserve punishment, but in the circumstances, I have decided that I do not require you to serve any time in full-time custody but you will have to spend ten months of weekend detention between now and March 2015. After that, the sentence is suspended and there is a good behaviour order which starts today and that good behaviour order requires you to be under supervision of the Director-General or her delegate for a period of two years or such lesser period as that person considers appropriate. That means that if you commit any further offences that are punishable by imprisonment, you can be brought back before me and I can resentence you, including sending you to gaol. That also means that if you do not obey the directions of the person delegated to supervise you, that is a breach of the order and you can be brought back and I can punish you for that, including sending you to gaol.

53. So far as periodic detention is concerned, it sounds easy but you must recall that you must attend every weekend. If you attend late, if you attend under the influence of drugs or alcohol, then you can be sent away. If you are sent away or if you do not turn up at all, then the period is added at the end and there is an extra period, so do not miss out on any period. But if you miss two periods, either by being sent away or by not turning up, then the periodic detention is automatically cancelled and the balance of the periodic detention sentence is served in full-time custody. So it is a big impost on you.

54. I have also recommended that you obey any directions as to counselling and treatment for mental health and that includes probably seeing a psychiatrist, the other things about women's and family health and so on that have been referred to. I hope that this is a lesson to you. This is a very serious offence and in the circumstances, I think that the punishment of periodic detention is appropriate but they are onerous conditions and if you continue to commit offences like this and do not learn some skills to manage the situation with your son, which may not happily be resolved in the short term or even at all, then you are going to get into really serious problems and that would be difficult.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the defendant: Craig Lynch & Associates