1. The defendant is sentenced to 24 months imprisonment, reduced from 30 months in recognition of his guilty plea.

2. The sentence is to be served by way of 6 months full-time imprisonment, with the remaining 18 months suspended upon entry into a Good Behaviour Order with conditions.

3. The defendant is disqualified from holding or obtaining a driving licence for 12 months.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Culpable Driving - imprisonment - intensive corrections order - general deterrence - rehabilitation of youthful offenders - utility of guilty plea - COVID-19 pandemic

Crimes Act 1900 (ACT)

Road Transport (General) Act 1999 (ACT)

Bugmy v R [2013] HCA 37; 249 CLR 571

Chenhall v R [2021] VSCA 175

Chifuntwe v Gardiner [2012] ACTSC 136

R v Castles [2018] ACTSC 358

R v Curtis [2013] ACTSC 291

R v Higgins [2020] ACTSC 299

R v Fountain [2018] ACTSC 329

R v Fanti (Unreported, Supreme Court of the ACT, Penfold J, 8 January 2014)

R v Judge [2021] ACTSC 118

R v Mills [1998] 4 VR 235

R v Ogle (No 2) [2018] ACTSC 126

R v Richardson [2016] ACTSC 133

R v Woods [2017] ACTSC 17

R v Whyte [2002] NSWCCA 343; 65 NSWLR 252

D Swan (Office of the Director of Public Prosecutions)

1. The defendant is charged with one count of culpable driving causing grievous bodily harm contrary to s 29(4) of the Crimes Act 1900 (ACT). On conviction, the offence carries a maximum penalty of 10 years imprisonment. An automatic driver licence disqualification period applies for this offence pursuant to s 62(1) of the Road Transport (General) Act 1999 (ACT). For a first-time offender that period is six months, or longer if so ordered by the court.

2. The offence occurred on 9 May 2020 and the defendant pleaded guilty on the second mention before the Court on 2 February 2021.

3. The defendant consented to the jurisdiction of this Court pursuant to s 375 of the Crimes Act 1900 (ACT); consequently the maximum period of imprisonment which may be imposed is five years.

4. In addition to submissions on sentence, I have considered the following materials:

(b) a record of interview conducted between the defendant and police on 17 July 2020;

(c) the defendant's criminal history as it stood at 10 December 2020;

(d) victim impact statements of Mr Eli Cole, his mother Ms Kelly Bantoft and his father Mr Michael Cole;

(e) medical reports from Dr Virginia French, Staff Specialist in Clinical Forensic Medicine, dated 25 November 2020 and 8 September 2021;

(f) reports in respect to the defendant's psychological state prepared by Dr Danielle Clout, dated 9 April 2021 and 5 May 2021;

(g) letters from the defendant's treating psychologist, Dr Leesa Morris, dated 7 May 2021 and 3 September 2021;

(h) character references prepared by Ms Linda Rodriguez, the defendant's aunt, and Ms Amanda Bourne, the defendant's godmother, dated 5 May 2021 and 12 May 2021 respectively;

(i) correspondence evidencing the defendant's employment status:

(i) a letter from Mr Christos Konstantis, Director of City Steel Fixing, dated 7 September 2021;

(ii) an email from Mr Michael Stefanovic, Director of Canberra Labour Hire, dated 9 September 2021;

(iii) an email from Ms Sharon Capello, Waterland Proprietary Limited, dated 7 September 2021;

(iv) an email from Ms Cecilia Knights, 4site.team, dated 7 September 2021; and

(v) a letter from Mr Brandon Matepi, TKM Steel Pty Ltd, which is undated.

(j) evidence of attendance at one Smart Recovery Australia meeting on 8 September 2021, in the form of an email from Mr Tim Wade;

(k) an Intensive Correction Order Assessment Report, prepared by Mr Fabi Kandamparambil and dated 13 May 2021; and

(l) a report from Restorative Justice, prepared by Mr Philip Moore and dated 14 May 2021.

5. As at 9 May 2020, the defendant was a 19-year-old provisional licence holder. After a day spent with friends playing soccer, he agreed to have a few drinks. He owned a Ford Falcon XR6 turbo which he had bought about a month before. He travelled in this car with an unnamed friend to the suburb of Harrison to visit another young person, Mr Eli Cole, whom he had not met before. They 'hung out' and ate pizza together. The defendant drank four bottles of Carlton beer. He wanted to go and see his girlfriend and Mr Cole wanted to go for a drive with him. They drove to McKellar where the defendant's girlfriend, Ms Alicia Knight, lived. The plan was then to take Mr Cole home at about midnight. The defendant asked Ms Knight to drive. She agreed, but then the defendant changed his mind and made the fateful decision to drive.

6. In a subsequent interview with police on 17 July 2020, the defendant denied he had been driving over the speed limit or erratically. He said that it started to rain lightly and that road was very slippery. He described that his vehicle would 'just pop out a little bit' but that it would regain traction with acceleration.

7. He was intending to drive back to Gungahlin along William Slim Drive but took the wrong turn onto Baldwin Drive. The agreed statement of facts described that he was driving west on Baldwin Drive, which would have been back toward William Slim Drive.

8. He saw something furry run out in front of his vehicle; he was not sure what it was. He swerved to avoid it and then tried to correct the swerve. The vehicle left the road and hit a guardrail which was on the southern side of the road. The vehicle rolled and stopped upside down.

9. The defendant blacked out briefly and when he came to all was dark and he was hanging upside down; he held himself up by the steering wheel. The defendant was removed from the vehicle by the ambulance officers who had attended the scene, after they had cut his seatbelt. Ms Knight was able to get herself out of the vehicle. Mr Cole was in a bad way.

10. All three were transported to the Canberra Hospital. The defendant underwent blood testing at the hospital. Ethyl alcohol was detected at a concentration of 0.112 grams per 100 millilitres of his blood. Methamphetamine was also detected in his blood at 0.21 grams per litre. Dr Vanita Parekh, Senior Staff Specialist and Unit Director at the Clinical Forensic Medical Service, reported on 16 July 2020. She opined that the defendant 'was under the influence of alcohol and methamphetamine to such an extent as to be incapable of being improper control of the vehicle'.

11. The information upon which the prosecution proceeded failed to specify the nature of the culpability alleged, as required by s 29(8) of the Crimes Act 1900 (ACT). The defendant has taken no issue with that. I am satisfied that the facts and the opinion of Dr Parekh support a finding of culpability pursuant to s 29(6)(b) of the Crimes Act 1900 (ACT), in that the defendant did in fact drive the vehicle 'while under the influence of alcohol, or a drug, to such an extent as to be incapable of having proper control of the vehicle'.

12. In his police interview, the defendant stated he asked Ms Knight to drive because he had been drinking and knew he should not have been driving. In the same interview, the defendant denied having consumed methamphetamine prior to the accident or indeed ever before. He could not explain how was present in his blood. Nonetheless, he does not challenge the facts put before the Court by the prosecution.

13. The defendant suffered a broken sternum and a small laceration to his scalp. Ms Knight suffered a concussion, but self-discharged from the hospital within a few hours.

14. Mr Cole's injuries were far more serious. The full extent of them is detailed in the two reports of Dr Virginia French, Staff Specialist in Clinical Forensic Medicine. He suffered an unsalvageable right lower leg, a displaced fracture of his right femur, a lacerated liver, a lacerated right ear, a right thumb metacarpal fracture which required the insertion of pins, widespread bruising and abrasions, a brain injury from a fatty embolism caused by the broken femur, and post-traumatic amnesia. His breathing was restored through tracheostomy. He spent 24 days in the Intensive Care Unit and weeks in a coma. This was followed by months at a rehabilitation hospital in Sydney.

15. Mr Cole continues to be severely impacted by the injuries he suffered, including a traumatic brain injury, and complications flowing from those injuries. His experience has had a significant psychological impact on him, at times requiring admission to the Adult Mental Health Unit of the Canberra Hospital. He now lives in modified accommodation which is able to accommodate wheelchair. He will require lifelong care.

16. It is difficult to overstate the impact of the crash on Mr Cole and his family. Apart from the obvious physical difficulties that the injuries have created, with all the consequent demands this has placed upon his family, there have been psychological, social and economic impacts upon each of his immediate family members. His mother has become his full-time carer. His father lost his employment as a result of trying to be available to assist his son and also the psychological impact of dealing with the consequences of the crash. Mr and Mrs Cole's marriage has been so impacted that they have separated. Each is facing an uphill battle to regain psychological health. I note that there are other family members who have no doubt been impacted but from whom the Court has not heard directly.

17. I was particularly impressed with the degree of optimism which was maintained by Mr Cole and his parents, despite the enormous challenges they have faced and are yet to face. Mr Cole was keen to ensure that the world knew that the crash and sequelae would not define him.

18. There is a scale of criminal responsibility in respect to driving offences. At the bottom end is simple negligent driving which involves temporary inadvertence or inattentiveness. The mid-range is reflected in the offence of dangerous driving. Both of those offences and the variations of them arise under the road transport legislation.

19. The offence of culpable driving is found in Part II of the Crimes Act 1900 (ACT), the part which deals with 'offences against the person'. The placement of the offence in the Crimes Act 1900 (ACT), along with the maximum penalty, reflect the serious nature of this offence compared to other offences involving the use of a motor vehicle. Penalties for this type of offending were increased by the Legislature in 2011 to reflect the seriousness with which such conduct is viewed.

20. Particular considerations in assessing the objective seriousness of the offence were highlighted by Mossop J in R v Ogle (No 2) [2018] ACTSC 126 ('Ogle'). His Honour adopted the approach of the New South Wales Court of Criminal Appeal in its guideline judgment of R v Whyte [2002] NSWCCA 343 ('Whyte'). I note that that decision is not binding in this jurisdiction and that it relates to an offence which, although corresponding, carries a lower maximum penalty. Nonetheless, the aggravating features identified are a useful starting point for consideration of culpability.

21. In this case the defendant had consumed an illicit substance. He consumed alcohol to the point where he recognised before he drove that he should not be driving. He was a provisional licence holder; a person whose level of experience on the road was still limited. It is not an element of the offence, but I note that as a provisional licence holder the defendant was subject to a zero alcohol limit as a condition of that licence.

22. He was conveying two passengers at the time, for whose safety he was responsible. Given the time of night and the location it is unlikely that they would have been many other vehicles on the road. However, it was raining and he was conscious that the road was slippery. He was not driving at excessive speed nor in any obviously erratic manner; there was no competition or showing off in the driving, there was no warning about his driving behaviour nor were the police involved in a pursuit.

23. The defendant travelled from the suburb of Harrison to McKellar and then from McKellar to the suburb of Kaleen, although it was his intention to return to Harrison. This is a significant distance across a number of suburbs and would have required negotiation of both minor and major suburban roads at night.

24. The single most aggravating factor is the extent of injuries suffered by Mr Cole.

25. In Ogle, Mossop J adopted the characterisation of a 'typical case' posited in Whyte, namely 'a young offender of good character with no or limited prior convictions, permanent injury to a single person, the victim being a stranger, with no or limited injury to the driver or drivers' intimates, genuine remorse and a plea of guilty of limited utility in value'.[1]

26. This case bears many similar hallmarks. The defendant had a limited criminal history, was 19 years old at the time of the offence, and he had two rather than a single passenger, only one of whom was seriously hurt.

27. As noted previously, the defendant was 19 at the time of this offence and is now 21 years of age. He is single and has no dependent children.

28. He is the only child of his parents' union. He was exposed to alcohol abuse and domestic violence in his early years. His parents separated when he was four but resumed their relationship after two years, ultimately separating again about three years ago. The defendant is supported by both parents and is currently residing with his father in Queanbeyan, although he has said he is able to relocate to the Australian Capital Territory if necessary to comply with any court orders. His current employer is prepared to provide accommodation to him if he does so relocate.

29. The defendant has worked in various capacities in the construction industry, as evidenced by the letters before the Court. He is currently employed by TKM Steel Pty Ltd as a steel fixer. He is earning approximately $1,000 a week and is without any significant debt.

30. He is well regarded by family friends who have known him for a lengthy period. Ms Bourne, his godmother, attests to his personal qualities including kindness, the care he provides to his mother and the remorse he has displayed to her. Ms Linda Rodriguez, his aunt, also attests to the high level of support that the defendant provides to his mother. She notes his remorse and his efforts to redirect his life.

31. The defendant has a limited criminal history in the form of two counts of possessing a drug of dependence and one count of attempting to escape custody, for which he was fined and placed upon a Good Behaviour Order in 2018 and 2019. He has been assessed as being at a low risk of further offending.

32. He commenced using alcohol and cannabis in his teenage years, but not at such a young age as to be thought devoid of choice. Whilst his use has been assessed at being at a 'risky level' and it has been suggested that he may benefit from a brief intervention and counselling, his substance abuse is not at a high level of concern. He has used methylenedioxymethamphetamine and cocaine in the past but neither for a considerable period of time.

33. The Court has been provided with two reports from Dr Danielle Clout, Psychologist. Dr Clout noted at page 9, paragraph 32 of her report of 5 May 2021 that the defendant 'reported experiencing low to moderate levels of emotional and physical neglect, moderate to severe levels of physical abuse, and severe to extremely severe levels of emotional abuse'. Dr Clout went on to note at paragraph 40 of the same report:

Although [he] was unable to elaborate on his mental health at the time of the offending, the combination of significant stress in multiple interpersonal relationships, unresolved experiences of developmental trauma, and the presence of significant alcohol and gambling problems are likely to have had a negative impact on aspects of his mental capacity, including his judgement, decision-making, insight, and emotional and behavioural regulation. As he presents with a history of impulsivity, poor decision-making, and limited consequential thinking, it is likely that alcohol use at the time of the offence further exacerbated impairments in his mental capacity.

34. Dr Clout noted the defendant's difficulties with verbal comprehension and expression. She concluded that the defendant does not suffer from any cognitive deficit nor intellectual disability, although he has some weakness in reasoning and attention. She noted the negative impact that the incident had on his mental health which caused him to become suicidal at one point; she diagnosed Post-Traumatic Stress Disorder following that incident with transient depressive symptoms.

35. Dr Clout observed that the defendant may have difficulty with verbal expression and the degree of avoidance of his own internal experiences and emotions, reflected in alcohol abuse and gambling behaviour at the time of the incident. She noted that there was no indication that he was particularly vulnerable if required to serve a sentence of full-time imprisonment. She did note, however, that because of the role he plays in caring for his parents, imprisonment would be stressful for him.

36. Dr Clout opined at page 11, paragraph 42 of her report of 5 May 2021:

It is important to note the recency of many of the positive changes in [the defendant's] circumstances and behaviours, suggesting that ongoing clinical interventions and specialist substance and gambling depends interventions are still needed to reduce the risk of relapse and assist him to maintain a low risk of general reoffending.

37. This opinion is supported to some extent by that of Ms Leesa Morris, psychologist, who assisted the defendant through a number of sessions. In her letter dated 3 September 2021 she opined:

At present, I do not believe that psychological intervention would be of significant assistance to [the defendant]. Focus on substance use through Directions ACT, employment and building prosocial routines and relationships is more likely to assist [the defendant] in maintaining a positive lifestyle.

38. The defendant has also been assessed as suitable for, and is willing to engage in, an Intensive Corrections Order.

39. The Court must have regard to the requirements of the Crimes (Sentencing) Act 2005 (ACT), in particular the purposes of sentencing detailed at s 7, relevant considerations at s 33, irrelevant considerations at s 34 and any appropriate reduction of sentence having regard to ss 35 and 36.

40. In offences involving motor vehicles, general deterrence will always be a significant consideration. The concepts of general deterrence and protection of the community are inherently intertwined in matters of this type. Denunciation and recognition of the harm done to the victims is an important sentencing consideration. Specific deterrence is less of a consideration in this matter, in my assessment, given the significant impact that the offence had on this defendant and the remorse he has demonstrated. Rehabilitation is an important consideration, particularly as effective rehabilitation is often the best way of achieving the protection of the community.

41. Balancing rehabilitation with other sentencing considerations is somewhat complicated in this matter. That is particularly so having regard to the defendant's youth. As Refshauge J observed in R v Curtis [2013] ACTSC 291 at [20-22]:

My attention was drawn to the principles set out by Batt JA with whom Phillips CJ and Charles JA agreed in R v Mills [1998] 4 VR 235. Those principles require that for youthful offenders rehabilitation is usually more important than general deterrence, especially when retributive punishment may in fact lead to further offending.

42. However in Chifuntwe v Gardiner [2012] ACTSC 136, an appeal from this court, Refshauge ACJ, as he then was, made the following observations at [93-96]:

In Kennewell v Rand (citation omitted), the Court dealt with the offence of culpable driving causing grievous bodily harm committed by a young man, 19 years old at the time of the offences. He co-operated with police and entered a plea at the first opportunity, evidence, the Court found, of contrition and remorse. The offender had certain illnesses and disorders which, the learned Sentencing Magistrate held in that case, did not significantly moderate the role of general deterrence on the sentence. The offender had no prior convictions. While the manner of his driving was egregious, it was not in the context of a police pursuit.

The Court of Appeal held (at [41]), that in the case of offences of this kind, general deterrence was important, notwithstanding the youth of the offender (R v Slattery (1996) 90 A Crim R 519) and notwithstanding his mental disorders (R v Leach (2003) 85 SASR 139). The Court added (at [42]), that "[t]he courts must make it clear to the public generally that it views conduct of this kind seriously. The courts have a duty to ensure that persons who use the highways are not put at risk by persons who would drive like this appellant.

43. I am acutely conscious of the defendant's immaturity, both by virtue of his age and the likely impact of his difficult upbringing on his development and judgement. Nonetheless general deterrence must play an important part in sentencing this offence.

44. Having regard to s 33(1)(w) of the Crimes (Sentencing) Act 2005 (ACT), I note that the defendant articulated his remorse in a statement made during the sentencing hearing. He instructed his lawyers not to challenge any aspect of the prosecution case presented during the proceedings including a victim impact statement which had not been provided for consideration in advance. His plea of guilty was entered early in proceedings. He was forthcoming with police in each conversation he engaged in with them, including the first when he had not been afforded his legal rights. He requested that the matter be referred for restorative justice. He complied with the conditions of his bail without fault. I am persuaded that his remorse is deep and genuine.

45. Having regard to s 36 of the Crimes (Sentencing) Act 2005 (ACT), the defendant's willingness to make admissions to police even in the absence of having been afforded his rights is of some significance, in considering any assistance to law enforcement authorities. This is, however, balanced by the strong prosecution case; the evidence at the scene and the objective evidence of the presence of alcohol and methamphetamine in the defendant's blood.

46. The defendant submitted that his guilty plea should be given greater weight having regard to the current COVID-19 public health emergency. I was referred to both New South Wales and Victorian authorities as to how this should be considered, in particular the decision in Chenhall v R [2021] VSCA 175. That decision recognised the utilitarian benefit of an early plea in helping to reduce the trial backlog and providing an incentive to others to plead guilty in a justice system under great pressure.[2] The Australian Capital Territory has been fortunate to date in not being placed in the same situation experienced in Victoria and indeed New South Wales as a result of the public health emergency. I therefore reject that submission.

47. Pursuant to s 33(1)(m) of the Crimes (Sentencing) Act 2005 (ACT), I am required to consider the cultural background, character, antecedents, age, and physical and mental condition of the offender. I have had regard to his youth and criminal history above. There are no significant physical health considerations. The defendant does not submit that his moral culpability is reduced as a result of any psychological or psychiatric disorder.

48. I am invited, however, to apply the principle recognising the impact of profound deprivation of an offender and that such impact does not diminish over time, detailed in Bugmy v R [2013] HCA 37; 249 CLR 571. Whilst I accept that the defendant has been impacted by his difficult childhood and that this is relevant in assessing his level of maturity, I am not satisfied that his experience would be one characterised as 'profound social deprivation'. Nonetheless, I am satisfied that his life experience may have contributed to his intellectual and emotional immaturity and impulsivity and that these contributed to his offending conduct.

49. I pay particular regard to s 33(1)(e) of the Crimes (Sentencing) Act 2005 (ACT), that is the effect of the offence on the victims and their families. As detailed above, the impact of this offending on Mr Cole and his family is profound and permanent.

50. In considering how to approach the sentence in this matter I have had regard to comparable offending and in particular those decisions which were brought to my attention by the prosecution in written submissions: R v Judge [2021] ACTSC 118, R v Castles [2018] ACTSC 358, R v Woods [2017] ACTSC 17; R v Richardson [2016] ACTSC 133; R v Fanti (Unreported, Supreme Court of the ACT, Penfold J, 8 January 2014); R v Higgins [2020] ACTSC 299, R v Fountain [2018] ACTSC 329, and R v Ogle (No 2) [2018] ACTSC 126. I note that each of these decisions postdates amendments to the legislation in 2011 and are properly considered in determining current sentencing practice.

51. A consideration of these decisions and the comments adopted from Whyte by Mossop J in Ogle, lead to the inexorable conclusion that for offending of this type, particularly where so objectively serious, the s 10 threshold of imprisonment as a last resort is one which is clearly crossed.

52. I have had regard to whether a sentence of imprisonment served in the community, in the form of an Intensive Corrections Order, is appropriate. Whilst there is potential benefit from such a sentence in terms of rehabilitation, I am not satisfied that the lenience inherent in such a sentence properly reflects either the need for general deterrence nor recognition of the harm caused.

53. The appropriate sentence is one of 24 months imprisonment, reduced from 30 in recognition of the guilty plea.

54. This sentence will be served by way of six months full-time imprisonment, suspended for the remaining 18 months upon entry into a Good Behaviour Order for a period of three years. This order will carry conditions of probation under the supervision of the Director-General of Corrective Services, a requirement to comply with all reasonable directions of the Director-General, to provide samples of breath blood or urine for drug and alcohol testing as directed, and to undergo assessment counselling and programs as directed.

55. The offender is be disqualified from holding or obtaining a driving licence for 12 months.

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the reasons for sentence of Her Honour Chief Magistrate Walker.

[1] R v Whyte [2002] NSWCCA 343 [204]; R v Ogle (No 2) [2018] ACTSC 126, 6 [36].

[2] Chenhall v R [2021] VSCA 175 [35].