Regina v REEVES [1999] NSWCCA 269 | Case summary

1 NEWMAN J: This is an application for leave to appeal from a sentence imposed upon the applicant by his Honour Judge Taylor at Penrith District Court on 13 February 1998. Before his Honour the applicant had pleaded guilty to a number of charges arising from a fatal motor accident which took place on 26 April 1997 at Blaxland. 2 She was charged on indictment with three counts. The first count was a charge of aggravated dangerous driving occasioning death contrary to s 52A(2) of the Crimes Act 1900. The Act prescribed at the time the maximum penalty of fourteen years imprisonment for that offence. 3 She was also charged with two further counts under s 52A(4) of the Crimes Act, namely aggravated dangerous driving occasioning grievous bodily harm. The maximum penalty prescribed by the Crimes Act for that offence is eleven years imprisonment. 4 In the event his Honour, dealing with the matter on the basis of totality, imposed a minimum term of two years and six months and an additional term of two years and six months. That was in relation to the most serious charge of aggravated dangerous driving occasioning death. 5 He fixed terms of eighteen months and twelve months in respect of the second and third counts and, dealing as he was with the matter on the basis of totality, effectively fixed those terms for counts 2 and 3 to be served concurrently. He also disqualified the applicant from driving for a period of three years. 6 There were three counts on the indictment, because there were three victims of the accident. The victim of the first count, aggravated dangerous driving causing death, was a seventeen-year-old girl, Alicia Snaith. 7 The two persons involved in the second and third counts were a girl called Mia Christiansen, who was a fellow pedestrian with Alicia Snaith when the incident occurred. The third victim was a Mr Ricky Randell, who was a passenger in the applicant's car. 8 Alicia Snaith, of course, was killed in the accident. Mia Christiansen suffered very serious injuries involving an open fracture of the right tibia and she received appropriate but extensive surgical treatment and has been diagnosed as suffering at least mild post traumatic stress disorder for the rest of her life. 9 Ricky Randell suffered a fracture of the right ankle and thumb. He was apparently the least injured of the three victims of the accident. 10 The applicant had been drinking during the course of the day - 25 April, Anzac Day - at the Lapstone Hotel. In evidence before his Honour she said that she had been at that hotel from midday until 5pm, had then left the hotel, had gone to her uncle's house, at which she had a small meal, and then returned to the hotel, but before returning to the hotel she had taken medication. I shall return to the question of medication later in these reasons. 11 In any event, she returned to the hotel and continued to drink but, in evidence before his Honour, she stated that she felt she was just having a social drink with fellow peers and was pacing herself. She said that she was taking it easy because "I had the car with me and I knew that I couldn't drink an excess amount or too much because of the medication that I was taking." 12 The accident happened about 12.30am. It involved her car leaving the road and colliding with two pedestrians on the southern side of the road, the two pedestrians, of course, being Miss Snaith and Miss Christiansen. 13 She herself, I must say, suffered injuries in the accident. Blood samples were taken from her at the Nepean Hospital. Those blood samples were taken, of course, some little time after the accident. They did return a blood alcohol reading in excess of .15. 14 The reports of two expert witnesses, Doctors Perl and Starmer, were before the learned sentencing judge. 15 There was some disputation between the two but in fact - and indeed reference is made to this disputation and his Honour's finding upon it by senior counsel for the applicant - that disputation involved an analysis by Doctor Starmer which gave rise to a reading at the relevant time of .166 while Doctor Perl had her reading something in excess of .2 and her lowest estimate is .174. 16 In the circumstances of this case as far as any blood alcohol reading is concerned, whether it be .166 or .174, it makes little difference to any question of criminal responsibility in the case - .166 is a very high reading. 17 Doctor Starmer, in his report which was before his Honour, dealt in detail with the effect of alcohol on medication being taken by a person. The applicant was taking medication because, unfortunately, she suffers from a psychiatric condition which is now described as being a bipolar syndrome, which used to be described as manic depression. She had been prescribed initially lithium salts which is a standard medication for that condition and, following an episode some weeks before, namely on the night of 22/23 March, of a sexual assault, she had been prescribed an anti-depressant on 23 April 1997. That anti-depressant is known by its trade name of Zoloft. Zoloft is a drug which in fact has the technical name of Sertraline hydrochloride. 18 As far as lithium and alcohol are concerned, Doctor Starmer made this observation: "Although lithium has generally been found to antagonise the effects of alcohol, the interaction of lithium and alcohol on the co-ordinative ability of drivers was considered to be potentially dangerous." 19 As far as Zoloft is concerned, which Doctor Starmer describes as a drug which has only recently become available, he observed: "It is possible that she might have experienced an adverse effect from a combination of her medication with alcohol and/or from a disturbance of her lithium level and factors such might have contributed to the collision." 20 But the fact - and his Honour referred to this fact in his remarks on sentence - is that the applicant knew she should not mix alcohol with the ingestion of the psychiatric drugs she was taking. Indeed, the passage I have read from Doctor Starmer's report relating to the combination of lithium salts and alcohol underscores that problem. 21 The reason why I have dwelt upon that particular aspect of the case is as a consequence of a submission made and underscored today by senior counsel for the applicant. It related to the mental state of the applicant at the time. Quite properly senior counsel adverted to the statement made in the court relating to the effect of a mental condition upon a person who is charged with a criminal offence. 22 Here we have a situation where tragically the applicant suffers from a psychiatric malady which has caused her many problems in the past. 23 However, the fact is that she was aware that she should not have mixed alcohol with the medication she was taking. Whether or not the combination of the medication and alcohol caused her to drive as she did as against the situation of the higher reading in terms of the blood alcohol which had caused the accident, in any event is a problem on which this Court cannot comment but where it is a matter of importance is as far as criminal responsibility is concerned. The applicant knew that she should not mix alcohol and her medication. She knew that she should not be drinking alcohol at any great level when driving in any event, as I would understand her evidence. All of this goes, in my view, to the question of criminal responsibility. 24 The question of sexual assault on the evening of 22/23 March 1997 was, in fact, before his Honour, albeit in truncated form, in the proceedings report which his Honour had available to him and, indeed, it would be hardly surprising that an event of such a traumatic nature would not have an effect of a most unfortunate kind upon a person that is suffering, as I have said the applicant is, from an underlying psychiatric condition in any event. 25 It was yet another tragedy in a life which regrettably has been one of tragedy and, indeed, his Honour, in his remarks on sentence, dealt extensively with the problems which the applicant had had during the course of her life. 26 In my view, his Honour dealt with those problems in a most sympathetic way. His Honour concluded, as far as the drinking factor was concerned, though with the quantity of alcohol the offender must have consumed the court is not satisfied that she was unaware that she was too intoxicated to drive. 27 Accordingly, we have a case where we have not only the loss of a life which, in my view, his Honour quite properly adverted to when he said: "The essential feature of this case is that the offender is responsible for the death of a young person and she is responsible for causing very serious injury, in particular to Miss Christiansen." 28 In other words, this is a very serious case when viewed in terms of totality. Having taken all those factors into account, his Honour imposed the sentence I have referred to. 29 Despite the criticisms made by counsel for the applicant, I am of the view that the submission made that his Honour's remarks on sentence were superficial is not one with which I agree. In my view his Honour made a careful review of the law as it then stood. I say "the law as it then stood" because the case was decided before this Court delivered its judgment in R v Jurisic, (1998) 45 NSWLR 209. 30 In that judgment the court, through the judgment of Spigelman CJ, set out guidelines relating to the very offence with which we are dealing today. In the upshot, as far as the more serious crime - that is, aggravated driving, drink driving occasioning death - is concerned, the Chief Justice and the other judges who comprised the Court of Criminal Appeal in that case held that a minimum of three years would be the guideline and in relation to the dangerous driving occasioning grievous bodily harm, two years. They are minimum standards. The court was careful in Jurisic to point out that aggravating features must be taken into account, with the consequence that sentences of a greater length than those to which I have already made reference would be appropriate. 31 The court set out a number of features which were considered by it to be aggravating, taking up, as they did, a line taken in England. Here, amongst the aggravating features, if I could so describe them, may be of such an extent and nature of the injuries inflicted, the number of people put at risk, the degree of intoxication or substance abuse, ignoring of warnings. 32 I have thus far not mentioned the fact that the applicant's sister had deposed that she had told her on the very night that she knew not to drink and take pills. Of course, the applicant herself, in a passage of evidence before his Honour, to which I have referred, agreed with that. 33 What I am saying is we do have here a number of aggravating features in both cases, but in particular in relation to the more serious charge I am of the view, taking into account those features, his Honour in setting a total sentence of five years could not be said to have fallen into error. I say that having taken into account references which have been made to other cases relating to the section. 34 His Honour, in dealing with the structure of the sentence, found special circumstances, as indeed it was open to him so to do, and he divided the sentence exactly between the minimum and additional terms. 35 Accordingly, I am of the view that no error has been demonstrated in the remarks on sentence by his Honour and accordingly, this being a matter of importance, while I would grant leave to the applicant to pursue her appeal, I would dismiss the appeal. 36 BELL J: I agree. 37 NEWMAN J: The orders of the court will be as I have proposed.

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Regina v REEVES

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