R v Richardson

R v Richardson - [2022] NSWDC 596 - NSWDC 2021 case summary — Zoe

[19]

The arrival of paramedics and the medical evidence

Paramedics arrived at the collision site from 10.05am. One of the paramedics had a conversation with the offender who provided his name, date of birth and address. The paramedic asked the offender "How fast do you think you were going?" The offender replied, "About 160 kilometres per hour".
The paramedic then asked, "What happened, did you slip on water, hit a pothole?" The offender replied, "I lost control of the car when it slid across the road and hit an embankment and went to the other side".
The paramedic asked the offender "Any drugs and alcohol today?" The offender replied "No" stating that he had last used drugs on the Saturday prior.
The paramedic observed that while in the ambulance the offender "seemed to be all over the place and had a flight of ideas alongside continually asking for water, consuming two or three bottles of water on the way to hospital".
At approximately 10.50am, that is, one hour after the collision, Ms Gottl was extricated from the Golf by paramedics with the assistance of the Fire Brigade. Ms Gottl was taken to Royal North Shore Hospital via ambulance, arriving at 11.35am.
As a result of the collision Ms Gottl sustained the following injuries: 1. A right transverse midshaft femur (thigh bone) fracture (meaning the break was a straight horizontal line going across the femoral shaft), posteriorly displaced (meaning that the two ends of the broken bone were separated from one another). 2. Left midshaft segmental femur fracture (a fracture composed of at least two fracture lines that together isolate a segment of bone), proximal fracture posteriorly displaced. 3. Left comminuted (breakage of the bone into more than two fragments) and depressed (fragment is depressed below the normal surface) talus (ankle bone) fracture with up to 6 millimetre separation of the largest fragments. 4. Minimally displaced comminuted fracture of the left distal fibula with several bony fragments seen within the lateral gutter of the ankle joint. 5. Fractures to S1 and S2 with extension to bilateral sacral ala (both sides of the sacrum which makes up a part of the pelvis), angulation of the S1 vertebral body anteriorly and resulting in severe narrowing of the S1/S2 spinal level. 6. Comminuted minimally displaced intra-articular fractures of the base of the right third and fourth metatarsal and undisplaced fracture though the neck of the fifth metatarsal. 7. Comminuted minimally displaced fracture of the right navicular (bone located in the top inner side of the foot), associated with irregular depression of the articular surface. 8. Comminuted minimally displaced fracture in the right intermediate and lateral cuneiforms (bones in the foot).
Ms Gottl was an inpatient of Royal North Shore Hospital between 4 and 22 May 2020, that is a period of 18 days, at which point Ms Gottl was discharged to Mount Wilga Private Rehabilitation Hospital.
During her time at Royal North Shore Ms Gottl underwent the following procedures: 1. An operative fixation of the bilateral femur fracture between 4 and 5 May 2020. 2. A pelvic fixation with sacroiliac screws 6 May 2020. 3. Left talus open reduction and an internal fixation 13 May 2020.
Ms Gottl stated that she felt "a lot of conflict and guilt", that she cared about the offender, that she felt everyone else hates him for injuring her.
Ms Gottl stated further that she did not remember the accident at all, remembering only events prior to the collision and the ambulance afterwards.
Ms Gottl stated that she was not sure why the offender had been speeding and denied that the offender had used drugs or been drinking.

[20]

Police attendance at the scene and the investigation

At approximately 10am on 4 May 2020 Senior Constable Stephen Slee attended the collision site. Senior Constable Slee asked the offender "Were you the driver of this vehicle?" The offender replied "Yes". The offender was administered a breath test with a negative result for alcohol.
During this time he was abusive to police, calling them "gronks" and "fuckwits" through administration of a breath test.
Senior Constable Slee saw that the offender had eyelids that were "drooping and covering his pupils". His eyes were also described as "glazed and were in continual rapid movement from side to side". It appeared he was unable to focus on any one thing while being spoken to. He was unable or refused to follow directions and was observed to be calm for a short period following which he would become unable to stand still and pace up and down in an agitated state and then be in a calmer state. Senior Constable Slee formed the opinion that the offender was under the influence of a drug other than alcohol.
Senior Constable Slee placed the offender under arrest at 11am for the purpose of a blood and urine test. At 11.40am the offender was taken to Gosford Hospital for that purpose. At approximately 11.40am leading Senior Constable Kristy Foster attended the scene, together with other police.
At the time of their arrival it was daylight and the weather was fine. Visibility was good with no obstructions to drivers travelling south towards the collision scene and the roadway surface was dry with no evidence of recent rainfall or any potholes, obstruction ruts, oil or contaminants on the road which may have contributed to the collision.
The findings of leading Senior Constable Foster based upon the collision evidence and dashcam footage obtained was as follows: 1. The Golf while travelling southbound along the M1 Motorway approximately 3.3 kilometres from the collision scene was travelling in excess of the speed limit as it swerved across three lanes of traffic. 2. The Golf approached a sweeping right hand bend in the roadway where the vehicle left lane one and entered the shoulder of the roadway at which point there is evidence of increasing steering input to the right with the nearside tyres of the vehicle creating a tyre scuff with a darker outer edge. The offender has initiated a harsh steering input to the right causing the weight of the vehicle to shift to the outer nearside tyre edge producing the documented tyre scuff marks. 3. The tyre scuff marks continued towards the concrete gutters edge where the tyre marks become a skid mark. A second skid mark commences in close proximity. These marks are consistent with a vehicle under harsh braking. 4. The nearside of the Golf travelled off the gutter's edge producing the scrape marks documented and the vehicle then continued towards the rock wall before the front nearside of the vehicle impacted heavily with the rock wall. Blue coloured paint transfer can be seen on the rock wall. 5. The nearside of the Golf continued to make contact with the rock wall at various points causing significant damage to the steering of the vehicle and the vehicle to rotate in a clockwise direction across lanes one to three. 6. The Golf came to rest on the western shoulder of roadway minus its engine, two front wheels and various other steering components.
Attached to the Agreed Facts is Annexure 3 which is a photograph of the collision damage caused to the vehicle. That does indicate the very extensive damage to the front of the vehicle.

[25]

Consideration of the guideline judgment of R v Whyte [2002] NSWCCA 343

In determining the appropriate sentence I have taken into account the guideline judgment of R v Whyte. In R v Whyte Spigelman CJ identified the following characteristics of offences under s 52A at [204] as follows: "A frequently recurring case of an offence under s 52A has the following characteristics. (i) Young offender. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury to a single person. (iv) The victim is a stranger. (v) No or limited injury to the driver or the driver's intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value."
Spigelman CJ also identified a list of 11 aggravating factors at [216] as follows: (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... (x) Degree of sleep deprivation. (xi) Failing to stop".
Spigelman CJ stated as follows at [228]: "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".
The guideline for offences against s 52A(1) and (3) for the typical case, as identified was stated as follows at [229]-[230]: "…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. In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate."
Spigelman CJ acknowledged at [231] that: "In the case of the aggravated version of each offence under s 52A, an appropriate increment to reflect the higher maximum prescribed penalty, and what will generally be a higher level of moral culpability, is required."
In relation to this offender and the application of guideline, he is a young offender of good character, there was injury to a single person, there was limited injury to the offender himself and there was genuine remorse. His plea was at the first available opportunity.
I am satisfied that the following Whyte aggravating factors are present. Firstly, the number of people put at risk was significant given that the driving occurred on a motorway. Secondly, there was also erratic driving associated with high speed. Thirdly, the length of the journey is an aggravating factor in circumstances where the offender drove under the influence of drugs when his ability to drive was very significantly impaired for a very significant distance. In relation to the degree of speed and the degree of intoxication, each of those matters is in fact relied upon as statutory aggravating factors for the aggravated offence.
Having regard to the presence of a number of aggravating factors as identified in the guideline judgment of R v Whyte, I am satisfied that the offender's moral culpability is of a very high order.

[28]

Subjective circumstances

The offender is now 20 years of age. As I indicated he was 18 years and 11 months old at the time of the offending.
He has no previous criminal history. The absence of a criminal history means that he is entitled to some leniency on sentence. His traffic history has four previous speeding offences. In my view the presence of a traffic history means that specific deterrence is an important consideration on sentence. In relation to his criminal history, I note that he has subsequently been charged with an offence of supply prohibited drug and deal with proceeds of crime. In respect of each of those offences he received a Community Correction Order.
The offender gave evidence during the sentence proceedings.
The following material was tendered on his behalf: Exhibit 1 a report of Megan Godbee forensic psychologist dated 26 November 2021. Ms Godbee also gave evidence during the sentence proceedings. Exhibit 2 a report of Hoang Diep dated 8 December 2021 in relation to counselling that the offender had completed between July and December 2021. Exhibit 3 a letter from Luca Andolfo dated 30 November 2021 in relation to the offender's current employment. Exhibit 4 a letter from Dr Melvyn Polon consultant paediatrician dated 14 October 2014. Exhibit 5 defence written submissions.
The offender's background is outlined in the report of Ms Godbee (Exhibit 1) and also in the Sentencing Assessment Report (Exhibit A) together with his evidence.
Ms Godbee assessed the offender on 19 November 2021 via AVL and telephone for a period of one hour and 20 minutes. The offender reported to Ms Godbee that he grew up in Fairfield and is the second of four children born to his parents. He identifies as an Aboriginal man belonging to the Dunghutti people. His father worked as a carpenter and his mother worked as a nurse. He reported having a close and supportive relationship with his parents. As a teenager the offender reported experiencing periods of grief following the deaths of his aunt, uncle and great grandmother. His mother was also diagnosed with breast cancer and his older sister began using ice.
The offender reported that he struggled at school and was diagnosed with ADHD though he never received medical or psychological intervention. He reported difficulties with concentration and had a teacher's aide in primary school.
I note the report of Dr Polon (Exhibit 4) relates to treatment received when the offender was in Year 7 at school. In high school he stated that he was suspended on several occasions and often got into fights with his peers. He completed his Year 10 Certificate and decided to leave school to begin carpentry with his father.
He reported that he left home at 16 years of age to live with his father's best friend and pursue his goal of becoming a professional wakeboarder. He reported that he was part way through his carpentry qualifications when COVID 19 reduced his work opportunities. Since being released on bail the offender has been working in scaffolding and I note more recently he has commenced employment in the events hire business. To Ms Godbee he expressed a desire to return to carpentry in the future.
The offender reported being in a relationship with his current girlfriend, the victim of the offence, since he was 16 years of age. He said they have lived together since he was 17 years of age and described their relationship as positive and stable.

[38]

The relevance of the offender's mental health

The relevant principles in relation to the relevance of a person's mental health on sentence are set out in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 where McClellan CJ summarised at [177] the position and principles in relation to an offender suffering from a mental health diagnosis as follows: "Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry at [28]. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]."
His Honour stressed at [178]: "…that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence".
Having regard to the evidence of Ms Godbee, I am satisfied that the offender suffers from symptoms of adult ADHD which would have had some contribution to his impulsivity at the time of the offending. I am satisfied that this reduces, to a limited extent, his moral culpability. Accordingly, I propose to moderate the otherwise appropriate sentence.

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