Sentenced to three years and eight months' imprisonment. Disqualified from holding or obtaining a driver licence for six years.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - culpable driving causing death and grievous bodily harm - where driver intoxicated by alcohol - sentence of full-time imprisonment imposed

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 35A

R v Wolter (No 3) [2015] ACTSC 321

R v Kekalainen [2014] ACTSC 132

R v Creighton (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 28 October 2010)

SCC 49 of 2015; SCC 50 of 2015

1. In the early hours of Saturday, 1 February 2014, a vehicle that was being driven by the offender veered off the road and collided with a tree, killing Mr Glenn Dunster, a passenger, and injuring two other passengers, Ms Dannielle Benning and Mr Gardner.

2. Following a trial, the jury returned verdicts of guilty to charges that on 1 February 2014, at Canberra, the offender caused the death of Mr Dunster and caused grievous bodily harm to Ms Benning by the culpable driving of a vehicle, i.e. while driving under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle.

3. For the offence of culpable driving causing death, the maximum available penalty is 14 years' imprisonment. For the offence of culpable driving causing grievous bodily harm, the maximum available penalty is 10 years' imprisonment. The Court may impose a driving disqualification period. The maximum available penalties were significantly increased in 2011.

4. The Court acknowledges the profound losses suffered by Mr Dunster's parents, siblings, family and friends and by Ms Benning, both in her personal capacity and in her capacity as a close friend of Mr Dunster.

5. In this regard it is worth repeating the words of his Honour Refshauge J in R v Creighton (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 28 October 2010) 10 (Creighton):

I appreciate that no sentence I can impose will resolve the tragedy that the [family] of [the deceased victim is] experiencing and the trauma suffered by [the surviving victim and her family]. The sentences I impose should not, in any way, be seen as reflecting on the value of the [life] of [the deceased victim]. It would be wrong to attempt any such equation for our law simply does not allow that to be made even were it possible. I have to judge [the offender] not merely according to the awfulness of the tragic results of his actions but in accordance with the law and the principles of sentence which I must apply.

6. On the evening of 31 January 2014, the offender, the victims and several friends, including Mr Gardner, attended the Lighthouse Pub in Belconnen. Ms Benning drove the group there in her car. The journey took about 15 minutes. In the course of the evening, the designated driver became unwell and returned home.

7. Over the period of six hours that they spent at the hotel, the offender and the victims consumed a large quantity of alcohol.

8. At about 1.30 am on Saturday, 1 February, the group left the hotel. Although there were taxis at the hotel, the offender drove the group away from the hotel in Ms Benning's car. Ms Benning was seated in the front passenger seat. Mr Gardner and Mr Dunster were seated on the rear seat.

9. Soon after the vehicle left the hotel, the offender misjudged the distance of the vehicle from a kerb and the vehicle clipped the gutter.

10. At about 1.35 am, about three minutes after the vehicle left the hotel, the offender was driving north along William Slim Drive, approaching the intersection with Dumas Street, McKellar. At that point the road runs north/south and has an 80 kph speed limit. There is a single lane running in each direction and a left turn lane into Dumas Street. Driving conditions were good, but the street lighting was not operating.

11. The offender was driving at approximately 65 kph in the middle of the correct lane when he lost control of the vehicle and it yawed, or slipped sideways, to the left. The vehicle travelled about 20 metres in about 2.2 seconds before it impacted with a tree on the grass verge. The front airbags deployed.

12. The expert witnesses disagreed about whether there had been driver intervention (braking or steering) before the point of impact. This difference was irrelevant as a reaction time of about 1.5 seconds could be anticipated for any driver, meaning that any reaction that did or could have occurred would have been inadequate to meaningfully affect the passage of the vehicle.

13. After the impact, the offender called 000. A couple stopped their vehicle and assisted.

14. Mr Dunster lost consciousness and died at the scene of the accident. Ms Benning suffered a very serious injury. The offender suffered a fractured ankle.

15. At the time of the accident, the offender's blood alcohol level was at least 0.207%. At that level, an average person could not properly control a motor vehicle because of a variety of factors including diminished vigilance, information processing, concentration, vision and motor coordination. As the offender was somewhat habituated to alcohol, his gross motor skills may not have been affected until his blood alcohol reading had reached a reasonably high level; but there is no doubt that at a blood alcohol reading of 0.207 the offender's gross motor skills would have been affected and his high level cognitive skills would have been seriously compromised.

16. Due to a head injury and/or emotional trauma neither Ms Benning nor Mr Gardner had any recollection of the accident. At the trial, the offender gave evidence that the vehicle went into a yaw because Ms Benning suddenly and unexpectedly grabbed the steering wheel and pulled it to the left. The jury rejected that possibility.

17. During the sentencing proceedings there was a debate about whether the accused told Mrs Dunster on the day of her son's funeral that "everyone had told him to stop" at the time that the vehicle had hit the gutter. I do not disbelieve Mrs Dunster. However, Mr Dunster did not recall the statement and two other family members present at the time when the statement was allegedly made did not give evidence that the offender had made the statement. Consequently, I am not satisfied beyond reasonable doubt that the statement was made.

18. The offences were each of very significant objective seriousness.

19. The victims and Mr Gardner were passengers, persons to whom the offender owed a specific duty of care.

20. The journey was not long, but it was not inconsiderable. Up to the point of impact, the vehicle had travelled for about three minutes and the total length of the anticipated journey must have been approximately 15 minutes because that is the approximate time that it took Ms Benning to drive to the venue.

21. There was no evidence of the number of other road users, if any, in the vicinity at the time of the accident.

22. Aggravating features such as speeding, showing off, erratic driving or escaping police pursuit were not present.

23. The Court received victim impact statements. These were read by the victims or, in the case of Ms Benning, by the officer in charge of the case.

24. After the accident, Ms Benning was conveyed to Canberra Hospital by ambulance and placed in an induced coma overnight. She suffered a punctured and collapsed lung, which would have been life threatening had it not been treated promptly. She also suffered a fractured ankle, gravel injuries to her shoulder and an eye injury. She was unable to work for seven weeks and then returned to light duties. For part of that period her mother took time off work in order to care for Ms Benning.

25. Ms Benning's car was written off as a result of the accident. She had taken a loan to purchase the vehicle and she still owed $9,400 at the time of the accident. Her parents assisted her to buy a new car as her injuries made it difficult for her to travel by public transport. She is still repaying the new car.

26. Because of ongoing pain in her ankles, Ms Benning's capacity to undertake physical exercise remains limited. She continues to experience pain in her ankles, wears orthotics, cannot wear high heeled shoes and cannot undertake significant exercise, including walking or running. Raised scarring to her shoulder causes embarrassment. She has seen an eye specialist. A piece of glass remains embedded in her eyelid and cannot be removed.

27. Ms Benning continues to suffer anxiety attacks, insomnia and depression. She often becomes emotional concerning the death of her best friend, Mr Dunster. She was prescribed medication for psychological problems, but she ceased taking it for a variety of reasons. She remains depressed, tired and unmotivated.

28. Mr Dunster was the youngest of the Dunster's four children and was part of a very close family. He had commenced a roofing business and had just obtained a builder's licence. His future was promising. Mr Dunster Snr enjoyed fixing cars and motorbikes with his son and Mr Dunster undertook much of the household maintenance for his parents. Mr Dunster was popular and had many friends who could rely upon him in troubled times. He had a relationship and was looking forward to starting a family.

29. Mr Dunster Snr remains shattered by the death of his son. He remains depressed and continues to suffer from poor sleep. Mr Dunster Snr made a victim impact statement about the severe impact of the loss suffered by the Dunster family. One of the difficulties that Mrs and Mr Dunster Snr experienced was that they were left to sort out their son's business, to issue invoices and to pay accounts. This not only took considerable time but, more importantly, involved a great deal of heartache and was a poignant reminder of their loss.

30. Mrs Dunster had felt a premonition that she might lose one of her children. It was a tragedy that this premonition materialised. She remains depressed and vulnerable, and she often dwells on the loss of her son. She fears other losses. She attempts to keep herself occupied with work and her grandchildren but feels that she is merely "going through the motions".

31. Ms Cole is Mr Dunster's sister. She had to ring her parents and other family members to advise them of her brother's death. She has struggled emotionally. Her depression has put a strain on her marriage and her ability to give the best care to her children. She has now separated from her husband. She has lost her former capacity to concentrate fully and to succeed with her work. Ms Cole was referred to a psychologist for depression and relationship issues. She has lost confidence and self-esteem. She feels unmotivated, lost and angry. She is sad because her children have lost Mr Dunster as an uncle and as a strong role model.

32. The offence occurred when the offender was 23 years old, a relatively young offender. The offender is now 25 years old.

33. He has a prior conviction for an alcohol related assault occasioning actual bodily harm. That offence occurred on 10 October 2010. For that offence, the Magistrates Court imposed a two-year good behaviour order including a condition relating to anger management and alcohol and drug treatment. The offender also has a conviction for driving with alcohol in his blood. That offence occurred on 18 December 2010. As a result, he was disqualified from driving for 12 months and fined. In the period from 2010 to the commission of this offence, no offences were recorded, and the offender has not reoffended since the commission of this offence.

34. The offender is the youngest of three children. He has a good relationship with all family members and he currently lives with his parents. He has had several relationships and has been in his current relationship since the end of 2015. As a child, the offender suffered from an ear condition and underwent three lengthy surgical procedures over a total period of about 10 years. He has a slight hearing loss in one ear and will require treatment throughout his life.

35. In primary school, the offender received assistance with academic work. In secondary school, he was placed in a special needs class. At school, he was active in sport. After completing Year 12 in 2008, he worked as a trades assistant, driver, painter and concreter. He now works as a concreter. He has commenced a Certificate IV course in Building and Construction at CIT.

36. After the accident, the offender immediately and voluntarily sought treatment. On 5 February 2014, he was referred for treatment of reactive grief and depression under a GP Mental Health Care Plan. Since then, Dr Barry, a clinical psychologist, has administered 20 sessions of cognitive behavioural therapy supplemented with trauma processing strategies.

37. The offender has consistently expressed what Dr Barry described as strong feelings of guilt and remorse. On questioning by the Crown Prosecutor, Dr Barry clarified that the offender's feelings of guilt and remorse relate to the decision to drink and drive and the death and injuries that resulted from the accident.

38. I accept that the offender is remorseful in this sense. He is remorseful for the risk at which he placed his friends, albeit he has not accepted that, as the jury found, it was his actions that were the sole cause of the collision with the tree.

39. The offender continues to ruminate on the consequences of the accident and the impact of the accident on his friends and their families. He reports moderate levels of depressive symptomatology and stress, and high levels of anxiety. He also reports sleep disturbance and loss of energy. Dr Barry considers that the offender currently satisfies DSM-5 criteria for a major depressive episode of moderate severity.

40. The offender expressed to Dr Barry a desire to apologise, but also said that he had received legal advice that he should not speak to prospective witnesses.

41. The offender has a relatively longstanding substance abuse problem. He began drinking alcohol when he was in Year 10. By 2013 he was drinking a six-pack of beer every day. Since the accident, he has reduced his drinking, but he still consumes three to four drinks on two or three occasions a week, and approximately once a fortnight he drinks more than six drinks in a session. This may represent a significant reduction in drinking but it still exceeds an acceptable level, particularly given the offender's history of alcohol-related offending.

42. In February 2014 the offender sought assistance from Directions ACT regarding substance use. Subsequently, he attended one counselling session and eight SMART Recovery groups with Directions ACT. Inferentially, it is as a result of this engagement that he has somewhat reduced his dependence on alcohol. He remains somewhat ambivalent about further reducing substance use. However, he is more insightful about the consequences of drinking.

43. Dr Barry says, and I firmly agree, that the offender still has a way to go in terms of gaining insight into the unacceptable level of his alcohol use. I am very concerned that all three offending episodes have been closely related to alcohol consumption.

44. Dr Barry said that, based on statistics, the offender is at medium-to-high risk of reoffending, but that that assessment should be moderated having regard to the offender's engagement with treatment, high level of remorse and stated determination not to reoffend. I agree with that assessment.

45. Dr Barry expressed the view that, given the offender's persistent low mood and limited coping strategies, a period of full-time imprisonment is likely to have a negative impact upon him and increase the risk of his depression worsening. I accept that assessment but, in my view, it should not have a significant impact on the nature of the sentence that I will impose or the length of that sentence. Offenders often suffer from depression or other mental health issues which may be negatively impacted by imprisonment. It is only in relatively special cases that such considerations should significantly impact on sentencing. The Court assumes that appropriate treatment is available to offenders who are imprisoned.

46. The offender tendered character references attesting to his deep remorse and regret, honesty, helpful and caring nature, strong work ethic and positive attitude in the workplace. He is highly regarded by his employer who says that he has made a valuable contribution to the employer's small company.

47. In sentencing the offender I am required to consider the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), including the requirement to impose adequate punishment. General deterrence is a prominent sentencing purpose, particularly because this offence occurred in the context of drink-driving. Excessive drinking was a critical feature of the offending episode. Denunciation is also an important sentencing purpose, as is recognition of the harm to the victims and their families, although I am aware that the high level of harm to the victims is an element of the offences and should not count twice.

48. Attention was drawn to s 35A of the Sentencing Act and to the fact that the offender provided assistance by way of extensive admissions. The offender, by his admissions, confined the issue at trial to whether it was his driving that caused the accident or whether there was a reasonable possibility that the accident was caused by Ms Benning suddenly and unexpectedly grabbing the steering wheel and yanking it to the left. The fact that the offender narrowed the issue in this way is a matter to be taken into account by way of providing some amelioration to the sentence that might otherwise be imposed. However, it will not make a substantial difference to the sentence imposed. I do not propose to attribute a percentage to this factor and it is not a requirement that I do so.

49. Section 33 considerations must be taken into account where relevant, and I believe I have referred to all relevant matters.

50. The Crown helpfully provided a table of cases that, to a greater or lesser extent, provided a relevant comparison. Of course, no case is ever the same as any other case. Some attention was devoted to the decisions of R v Wolter (No 3) [2015] ACTSC 321; R v Kekalainen [2014] ACTSC 132 and Creighton, noting that the sentences imposed in Creighton were imposed under the old sentencing regime rather than the current sentencing regime.

51. Counsel for the offender conceded that no sentence other than imprisonment was appropriate. He submitted that, given the length of the appropriate sentence, I should consider obtaining a report about the availability of an Intensive Correction Order. However, although the overall sentence will fall within a range where such an order could be made, in my view the extent of the harm that was caused to the victims and the need to address relevant sentencing purposes, particularly adequate punishment and general deterrence, mean that, in this case, the only appropriate sentence is one of full-time imprisonment.

52. For the offence of culpable driving causing grievous bodily harm to Ms Benning, the offender is sentenced to 18 months' imprisonment from 27 April 2016 to 26 October 2017.

53. For the offence of culpable driving causing the death of Mr Dunster, the offender is sentenced to three years' imprisonment from 27 December 2016 to 26 December 2019.

54. That is a total period of three years and eight months' imprisonment.

55. I impose a nonparole period of one year and 10 months from 27 April 2016 to 26 February 2018.

56. The offender is disqualified from holding or obtaining a driver license for six years, from 30 March 2016 to 29 March 2022.

I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.