R v West

Objective Criminality

1. I then turn to an overall assessment of the objective criminality for these offences. On the basis of these factual findings and the material in relation to the victims, I must assess the objective criminality of all four offences, dealing first with that which far and away the least serious, that is, the offence involving Mr Bisa. Nonetheless, it seems to me that the objective seriousness of that s 53 offence is relatively high. The misconduct, namely driving whilst under the influence of drugs is relatively serious. The bodily harm suffered by Mr Bisa was more than just minimal, and it may be that there is some ongoing impact. Normally, however, it would be dealt with in the Local Court. Looking at the statistics published by the Judicial Commission for sentences under this section in the Local Court, it appears that only about half of the offences dealt with in that court for this offence are dealt with by way of periods of imprisonment, either full time or otherwise. Nonetheless, in my view, this is a relatively serious example of a s 53 offence, and it does cross the threshold and calls for a period of imprisonment.
2. For the three aggravated dangerous driving causing grievous bodily harm offences, I have regard to the decision of the Court of Criminal Appeal in R v Whyte (2002) 55 NSWLR 252 ("Whyte"), which operates as a sentencing guideline for offences of dangerous driving causing either death or grievous bodily harm, albeit that is not including the additional circumstance of aggravation. The Court of Criminal Appeal in that case promulgated a guideline for sentences. In such cases, namely what were referred to as a typical case where the evidence indicated that the offender had abandoned his or her moral responsibility as a driver, sentences should usually be periods of full-time custody. Where there is grievous bodily harm, that should not normally be less than two years and where there is death, not normally below 3 years, again by way of full-time imprisonment.
3. No doubt these may appear to the outside observer to be relatively low periods of imprisonment, especially where the dangerous driving has caused the death of another person or has led to catastrophic injuries such as permanent brain damage, quadriplegia, paraplegia, and the like. It is not unknown when sentences for such offences are announced that victims or friends and relatives of victims ask rhetorically, what is a life worth? However, it is important that it be noted and recognised that there is a very real distinction between these offences contrary to s 52A and offences of violence such as murder, manslaughter, or the myriad of other offences of serious violence, and the distinction is the absence of intent on the part of the offender.
4. The criminal law has always recognised the importance of proving criminal intent on the part of offenders and maximum penalties for offences where victims are killed or seriously injured differ significantly depending on the seriousness of the criminal intent. Thus, intentionally committing an offence with the intent to murder or to inflict grievous bodily harm significantly increases the maximum penalty for relevant offences for many such offences, giving rise to maximum penalties of 25 years with standard non-parole period of 7 years for some. Equally, as the seriousness of the intention decreases, so does the penalty decrease as a maximum penalty.
5. Offences contrary to s 52A do not require proof that the offender intended to cause any collision, but just that the offender intended to drive and did so in certain circumstances which are defined as dangerous, including as here because of the influence of drugs. This distinction in relation to lack of intention informs the maximum penalties, the guideline sentences, and the range of sentences actually imposed for these offences.
6. In this particular case, I accept that the offender's moral culpability is high and that when she decided to drive her car that day, she clearly abandoned her responsibility as a driver. She did so in the following ways: 1. She used the drug ice both the night before and on the morning that she drove. That is, the very morning that she drove, she had injected ice. 2. She had driven for quite some distance, including from Batemans Bay to Canberra and then back again, a considerable distance exposing other road users to the risk of serious injury. 3. Her moral culpability is increased by the fact that she was only driving at all because she was going to court to face a charge of driving in the ACT with drugs in her blood. 4. She was alerted to the fact that her driving ability was impaired when she veered on to the wrong side of the road. She remembers doing that, and whether she put that down to being sleepy or being under influence of drugs, she should have recognised the risk, pulled over, and waited until it was safe to drive. 5. She was subject to three s 9 bonds, at the time, imposed at the Queanbeyan Local Court on 23 July 2018 for offences of breach AVO, drive motor vehicle without the consent of the owner, and not disclosing details of driver. These bonds were for periods up to 2 years from July 2018. 6. She had a criminal record and traffic record, but particularly relevantly, a traffic record commencing, it would appear, in 2003, not long after she first received her P2 provisional licence. That traffic record includes drive manner dangerous, some speeding matters, and significantly for the matters before me, on 30 June 2015, she was convicted of the offence of driving with an illicit drug present in her oral fluid.
7. There are other entries in her criminal record, dealt with ultimately on appeal by way of suspended sentences in August 2016. From the conditions imposed, it seems clear that even at that stage she was identified as having issues with drug and alcohol use, or at least drug use, she had mental issues, and there is a reference to an attempt to have her continuing compliance with a mental health treatment plan. She was thus a person with some prior history and understanding of the link between drug use and criminal offending, and drug use and criminal offending as a driver in particular.
8. Her decision to drive on 19 December in these circumstances, having used ice that morning, amounts to a clear abandonment of her responsibility as a driver. As such, no other penalty apart from full-time imprisonment would be appropriate, and the contrary is not argued on her behalf.
9. The offences overall are aggravated generally by the fact that she was subject to the s 9 bonds to which I have already referred.
10. Further, as I have set out, the injuries were significant and there were three people seriously injured, and one other person injured. This is an aggravating factor but cannot be double counted by increasing the overall criminality when assessing the appropriate penalty. Also, there will be a partial accumulation to take into account separate victims and thus a further reason to avoid double counting this particular issue. There were, however, a number of people put at risk over the course of her driving, as evidenced at the very least by the fact that she veered onto the wrong side of the road on another occasion before this collision.
11. The only relevant mitigating factor as I see it, is that she has pleaded guilty to these offences at the earliest opportunity. She is entitled to have that taken into account to reflect the utilitarian value of the plea. It is a significant utilitarian value, avoiding the need for any of these victims to come to court, unless they chose to, to give evidence to prove her guilt, the need to avoid the expert Dr Pearl from coming to court to give evidence to prove the aggravating feature, that is that the impact on her of the drugs amounted to a very substantial impairment. In those circumstances the sentences should be discounted by 25% to take into account the utilitarian value of the plea in accordance with the dicta of the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383, and others.
12. Comparing this then to the typical case referred to in the Whyte decision, this is a more serious case. First, it is the aggravated version of the offence. Further she is not a young offender, she is now 40. She has no prior good character with no or limited convictions. So, the sentence of two years, being the lowest sentence that would otherwise be applicable is a starting point only for these offences for those reasons.

The Offenders Subjective Case

1. I then turn to the general subjective circumstances surrounding the offender. She has been in custody bail refused since 19 December 2017, thus the sentences will commence on that date. She has a criminal history to which I have referred and the traffic history. She has been subject to various forms of supervision since 2014 but has not responded well and has always breached by way of re-offence.
2. In a more recent psychiatric report provided by Justice Health her general background is canvassed in greater detail than in the Sentencing Assessment report. I accept that before this offence she was renting a unit in a hotel for about two months. She was single but has three children from two past relationships. Her older two children are in their early 20's and live independently. She also has a 12-year-old daughter who lives with the offender's mother.
3. She has not worked since 2012 because of some chronic back condition and has been in receipt of disability support pension. She has a history of drug use. She was a significant user of cannabis for a period of time. She started experimenting with the drug at the age of 15 and then began to use it regularly from the age of 18. She smoked then for the next 11 years using about a quarter of an ounce a day. She then stopped and switched to methamphetamine use. It would appear she started using methamphetamines either at the age of 29, which is what she told Dr Elliott, or perhaps at 35 which is apparently what she told Community Corrections.
4. In any event she started to use these more serious drugs at a time in her life when her children and mother left her, and she was left isolated and alone. She began injecting amphetamines initially on a weekly basis but escalated in the context of her younger daughter moving in with her grandmother and some issues involving domestic violence.
5. She had stopped using amphetamines for a period of time before these offences, probably for about 18 months, up until about two weeks before her arrest. This occurred in circumstances where she relapsed because her mother and daughter went away on holidays, and she was not invited to join them. This in fact is the history she gave Dr Elliott. She said she felt excluded and in response maladaptively relapsed into methamphetamine use. In the two weeks before her arrest she was injecting about half a gram of methamphetamines daily. These drugs are stimulants and I accept that this had a significantly adverse impact on her ability to sleep and on her ability to reason.
6. A curious aspect of her presentation is what appeared in the Sentence Assessment Report initially tendered. There is a reference to records revealing that she had a significant history of mental illness and had experienced multiple admissions to mental health facilities since 2015 and has attempted self-harm on several occasions. She self-reported that she had been diagnosed as suffering bipolar and schizophrenia and there is no doubt that she was, at the time taken into custody, being medicated with antidepressant and antipsychotic medications, which is still the case. It would appear, however, that her medication regime was not necessarily being overseen by Justice Health and it is hard to imagine how this could have been the case, but it does appear to have been the circumstances.
7. The most recent report from Dr Elliott from Justice Health indicates again a report that she had been admitted to a psychiatric unit on three separate occasions, two in 2015 and another occasion in June 2017. She reported that she had been suffering from psychosis. She denied having been followed up by community mental health services, but that is somewhat inconsistent with a condition imposed by this court on a suspended sentence that a mental health treatment program be followed as a condition of her release.
8. I accept that she connected the impact of her methamphetamine use to what she described as psychosis, but presumably sufficiently for a doctor to have treated her on the basis that she suffered from psychosis and to have treated her with medication for that purpose. She suffers additionally from a medical condition, namely degenerative disc disease, which I accept from the medical record accessed by Dr Elliott confirms she has advanced degenerative disc disease.
9. In the most recent report from Dr Elliott, I accept that whatever might have been the basis of assertions in the Sentence Assessment Report about her psychiatric health, in fact she does not suffer from a mental illness either bipolar or any form of schizophrenia or some other form of psychosis. I accept Dr Elliot's opinion that in fact she has methamphetamine use disorder but is not a mentally ill person in the way that that would qualify for treatment or admission to a mental health facility. I accept that she would benefit from drug and alcohol rehabilitation and more generalist psychological counselling to assist her to develop strategies to manage her anger. On the face of it, there appears to be no reason why she is taking antipsychotic medication at the very least and her medication regime needs to be reviewed and monitored.
10. She has indicated that when her present term ends, she intends to return to live with her mother on the south coast of New South Wales, but Community Corrections was not able to contact her mother and in the past there have been some issues in relation to that.
11. I do accept that she is genuinely remorseful and contrite for having committed this offence. I accept this to be the case and specifically reject the submission made on behalf of the Crown when the matter was before the Court in August 2018 that her remorse and contrition would be regarded as coming late and not being genuine. She did in fact write a letter to the court which was presented in August, and I accept that the sentiments expressed in that letter are genuine. In particular she said the following: "Not a day goes by that I don't think about what happened and if I would have made different choices and not done it, it all would have been avoided. If I could take your pain and suffering away I would. I honestly just hope you all heal well and make a full recovery."
12. She further said: "If I had that day over again, I'd never drive."
13. As I have said the Crown submitted that this would not be accepted as a genuine expression of contrition and remorse, mainly as I understand it, because it came late. It seems to me that that submission overlooks another significant piece of evidence, namely that almost immediately after she went into custody, she tried to commit suicide by hanging herself. No doubt the reasons for that were complicated and perhaps multifarious, but significantly I accept that the main reason for it is because of the guilt and shame that she felt for having committed this offence and for causing the pain and suffering that she has.
14. It seems to me that in those circumstances it is impossible to construe the letter that she has written to the court as being latter-day remorse and contrition and I accept that her contrition and remorse is genuine.
15. She has indicated that she is willing to undertake long term rehabilitation and an intensive drug program whilst in custody and presumably when she is released to deal with her longstanding drug addiction. She has undertaken some courses and has a certificate which she has tendered. She has also undertaken a business services training package through TAFE whilst in custody and has also engaged with services and program staff at the Mary Wade Correctional Centre to participate in the remand addictions program. As at April this year, she had attended 18 sessions and contributed to all of them in a beneficial way.
16. As I understand it, she has not incurred any misdemeanours and has not come to notice other than positively since being in custody. That all assists also to assessing her prospects of rehabilitation. Her prospects are reasonable, but of course depend on her remaining free of the use of illegal drugs. She would benefit from a longer than normal period of supervision in the community to ensure that she does not relapse again.
17. This is her first time in gaol and that and the need for a longer than normal period of supervision in the community are two bases on which I find special circumstances in this case.

The Sentences

1. I then turn to determine the appropriate sentences to be imposed here. I have been referred to a number of cases by way of comparison. The Crown in particular argues similarity between this case and the decision of R v Kaliti [2001] NSWCCA 268. I am also, on behalf of the offender, referred to the decision of the New South Wales Court of Criminal Appeal in the R v Kopack [2005] NSWCCA 83.
2. It seems to me that for each of the aggravated dangerous driving causing grievous bodily harm cases, on the basis of the objective seriousness, taking into account the subjective circumstances of the offender, bearing in mind the guideline judgment in Whyte and looking at the comparative cases and having consulted the statistics published for these cases, that the starting point for each is about 4 years. That should be reduced to 3 years to represent the 25% discount.
3. For the s 53 offence involving Mr Bisa, the starting point is 12 months reduced to 9 months to represent the discount which, in my view, should be by way of a fixed term, completely accumulated on the other offences. Whilst it is a separate victim, it is by far and away the least serious of any of the four offences and were it to be sentenced separately, may not require fulltime custody in any event, even if the s 5 threshold is reached. In those circumstances and bearing in mind the practical realities of this matter, whilst it is a fixed term, it ought to be served concurrently with the other offences.
4. If each of the sentences was accumulated on each other, that would give rise to a sentence of 9 years and 9 months. That is excessive in the circumstances. The total criminality, in my view, should give rise to an overall term of 5 years and with an overall non-parole period of 3 years, to take into account the special circumstances. I propose to give effect to that by fixing an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 for the aggravated dangerous driving causing grievous bodily harm offences, with a concurrent fixed term for the s 53A offence of 9 months.

Formal Sentence Orders

1. For those reasons, I make the following formal orders: 1. The offender is convicted in relation to each offence. 2. For each of sequences 4, 5 and 6: Sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 of 5 years, commencing 19 December 2017 and expiring 18 December 2022, with an aggregate non-parole period of 3 years, commencing 19 December 2017 and expiring 18 December 2020, with parole thereafter of 2 years, commencing 19 December 2020 and expiring 18 December 2022. 1. The indicative sentence Sequence 4: 3 years Sequence 5: 3 years Sequence 6: 3 years 1. For sequence 7: Sentenced to a fixed term of imprisonment of 9 months, commencing 19 December 2017 and expiring 18 September 2018. 2. RE: 166 certificate offences (sequences 1, 2, 3, 8, 9 and 10): Back up offences are withdrawn and dismissed. 3. For each offence, she is disqualified from holding or obtaining a licence in New South Wales for a period of 3 years, to commence on the date she is released on parole, each concurrent with the other.

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