TAYLOR v REGINA

R v Dutton [2005] NSWCCA 248 R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Israil [2002] NSWCCA 225 R v Jiminez [1999] NSWCCA 7 CASES CITED: R v Jurisic (1998) 45 NSWLR 209 R v Lauritsen (2000) 114 A Crim R 333 R v Letteri, NSWCCA, 18 March 1992, unreported R v Pearson [2004] NSWCCA 129 R v Tsiaras [1996] 1 VR 398 R v Whyte (2002) 55 NSWLR 252

PARTIES: Jeffrey Thomas Taylor (Appl) The Crown

COUNSEL: G I O Rowling (Crown) C Smith (Appl)

SOLICITORS: Solicitor for Public Prosecutions (Crown) Legal Aid Commission of NSW (Appl)

IN THE COURT OF CRIMINAL APPEAL 2005/2356

McCLELLAN CJ at CL HOWIE J LATHAM J

FRIDAY, 3 FEBRUARY 2006 TAYLOR, Jeffrey Thomas v REGINA Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to a charge of dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(a) of the Crimes Act 1900. The maximum penalty for the offence is seven years imprisonment. The applicant was sentenced to a term of imprisonment of two years with a non-parole period of twelve months. He was disqualified from driving for twelve months. 2 A statement of agreed facts was tendered before the sentencing judge, which indicates that at about 7.15 pm on Tuesday 3 June, 2003, Scott Jefferay was driving a red Daihatsu Charade, and had just turned right from Harwood Street onto Currajong Road in Parkes and was going south. 3 The applicant was driving a Nissan Patrol wagon towing a trailer and was also travelling south on the Peak Hill Road. 4 At a point approximately 30 metres south of the intersection of Webb Street with Currajong Road the applicant's vehicle collided with the rear of Mr Jefferay's vehicle. Following impact with Mr Jefferay's vehicle the applicant's vehicle continued to push Mr Jefferay's vehicle until it hit a telegraph pole. 5 The applicant's vehicle continued south along Currajong Road for a distance of two further houses before the applicant got out and entered his residence at 2 Currajong Road. The applicant stayed at this address only a matter of minutes before walking back outside, scuffling with a neighbour and then walking away from the area. 6 The victim was assisted from his vehicle by witnesses and onlookers. He was treated by ambulance personnel at the scene and then conveyed to the Parkes District Hospital where he was treated by medical staff. He was later transferred to Orange Base Hospital for further treatment of his injuries. 7 The Police were unable to locate the applicant on the night of the collision. However, they received several witness statements indicating the applicant as being the driver of motor vehicle TYE 424 at the time it collided with the victim's vehicle. 8 The following morning, the police began to make enquires as to the whereabouts of the applicant. They were informed that the applicant would be attending the Parkes police station about 7.45 am that morning. 9 As it happened the applicant attended the Parkes police station with his mother and stepfather where the applicant admitted being the driver of vehicle TYE 424 at the time of the collision with the victim's vehicle. The applicant was cautioned and placed into custody. 10 A short time later the applicant and his stepfather accompanied police to the scene of the accident where a discussion occurred. 11 After returning to the police station the applicant took part in an ERISP. The applicant once again freely admitted being the driver of vehicle TYE 424 at the time of colliding with the victim's vehicle. He further admitted that he had consumed one stubby of Tooheys New Beer immediately prior to the accident and had also smoked a couple of cones of marijuana. 12 The applicant stated that he had been suffering from sleep deprivation in the three days leading up to the accident as a result of a break up of the marital home. His wife had informed him that she had been unfaithful and had formed a relationship with another man. As a result of the stress this news had placed on the applicant he had been unable to sleep and was discussing his problems with friends when he consumed the beer and marijuana. 13 The sentencing judge was provided with a victim impact statement. It indicated that Mr Jefferay suffered complex facial fractures involving the right orbit maxilla of the jaw, fractures of the right wrist and ankle, a malocclusion due to jaw injuries, visual difficulties due to displacement to the eye, extraction of his right nasal airway, mild to moderate hearing loss. The injuries have been addressed by repeated surgical interventions causing pain and distress. 14 Mr Jefferay continues to experience chronic pain. He has been classified as having a moderately severe traumatic brain injury leading to poor concentration, lethargy, fatigue, memory disturbance and slow cognitive processing. He continues to experience recurrent episodes of reduced consciousness. This has resulted in a medical direction that he is not to drive. He suffers feelings of frustration. He apparently has major depressive symptoms and a general deterioration in his functioning has been noted. He feels particular distress regarding the loss of his projected employment path, loss of financial independence, reliance on family members for accommodation, restricted social interactions and reduced likelihood of future employment due to his current injuries and ongoing difficulties. Many of his injuries are permanent. 15 The sentencing judge found the offence to be serious. He observed that the applicant collided with the rear of the victim's vehicle, which had been proceeding in a normal manner and continued to push the vehicle over a considerable distance. The evidence indicated that distance to be of the order of a hundred metres, the progress of the victim's vehicle stopping when it was pushed into a telegraph pole and virtually demolished. Photographs of the vehicle which were tendered at the hearing are consistent with the description of the vehicle having been effectively destroyed. 16 As I have previously indicated, the applicant admitted to the police that he had consumed one beer and smoked a couple of cones of marijuana although before the sentencing judge he said he only smoked one cone. He also gave evidence of sleep deprivation in the days leading up to the accident. The sentencing judge had regard to these matters. His Honour also concluded that the offence was out of character for the applicant but noted that he left the scene of the accident and did not report to the police until the following morning. 17 His Honour found that the applicant knew at the time that he was tired due to his inability to sleep on the preceding nights. Of considerable significance is his Honour's observation that "he knew the effect the beer had had upon him and he knew that he was affected by the marijuana, yet he elected to drive, albeit for a short distance, with catastrophic consequences for Mr Jeffrey." (sic) 18 His Honour had regard to the report of Mr Jaimie Cox, a consultant psychologist. In Mr Cox's opinion it was probable that the applicant's psychological functioning was impaired, both prior to and at the time of the accident, as a result of unexpected and traumatic family that which had occurred. His Honour accepted that the applicant was in a state of emotional turmoil, resulting from the death of a friend, but more relevantly that he had just been informed by his wife of the breakdown of his marriage and that she was leaving him for another man. 19 His Honour summarised these matters in this way: "I take into account the report of a Mr Jamie Cox, a consultant psychologist and in his opinion it was probable that the accused's psychological functioning was impaired, both prior to and at the time of the accident, as a result of unexpected and traumatic family events that occurred immediately prior to the accident. I accept the evidence that he was in a state of emotional turmoil, resulting from the death of a friend, but more relevantly that he had just been informed by his wife of the breakdown of his marriage and that she was leaving him for another man. On the one hand that is a matter which may well arouse sympathy, as does his emotional state and may be a reason or explanation for his impaired functioning. But nevertheless, on his own admission, he was aware of the state that he was in and the effect upon him of sleep deprivation and the effect of beer and marijuana, yet he elected to drive nevertheless. I do not think that that explanation of his condition can detract from the objective seriousness of his driving in these circumstances and in my view this is not a case of a low level of moral culpability." 20 His Honour formed the conclusion that the applicant is unlikely to re-offend. He accepted that he is a decent, hardworking person devoted to his children and that, apart from this offence, he is a responsible person. His Honour accepted that the applicant is deeply remorseful for what has happened and has attempted to make reparation. 21 His Honour also noted the applicant's plea of guilty and assessed that plea as deserving of a reduction in sentence of twenty percent. The applicant has two previous convictions for minor negligent driving offences although, having regard to his history of driving long distances in the country and being a frequent road user, his Honour concluded that this was relatively good record. 22 The sentencing judge also had regard to the report of the Probation and Parole Service that was favourable to the applicant. His Honour was also conscious of the fact that a period of imprisonment would cause hardship to the applicant's family and would place his business in jeopardy. 23 Notwithstanding these favourable subjective matters his Honour concluded that the offence was serious and there was a need to impose a sentence that adequately reflected the objective of general deterrence. He found that the applicant should not have been driving in the condition in which he was in and the matter, being not one of momentary inattention, justified a custodial sentence. His Honour found that the moral culpability of the applicant was high.

The grounds of appeal 24 In the appeal, counsel for the applicant raises three grounds as follows:

1. The sentencing judge failed to have regard to the applicant's mental condition. 2. The sentencing judge erred in finding that the moral culpability of the applicant was high. 3. The sentence is manifestly excessive.

Ground One - applicant's mental condition 25 The applicant submits that although the sentencing judge had regard to the evidence of Mr Jaimie Cox, a consultant psychologist, his Honour, when identifying relevant mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999, failed to refer to s 21A(3)(j) which provides that "the applicant was not fully aware of the consequences of his or her actions because of the applicant's age, or any disability." 26 It is submitted that as a consequence the sentencing judge failed to take into account the mental condition of the applicant. In particular, reference is made to the finding, which the sentencing judge made, that Mr Cox had reported that "it was probable that the accused's psychological functioning was impaired, both prior to and at the time of the accident, as a result of unexpected and traumatic family events that occurred immediately prior to the accident." It is submitted that this is a finding of a relevant disability within the meaning of the statute. 27 The applicant refers to the decision of this Court in R v Hemsley [2004] NSWCCA 228 where the relevance of mental illness was discussed. It may have the consequence where the illness contributes to the commission of the offence in a material way that the applicant's moral culpability may be reduced diminishing the need for denunciation: see R v Jiminez [1999] NSWCCA 7 at [23]; R v Tsiaras [1996] 1 VR 398 at 400; R v Lauritsen (2000) 114 A Crim R 333 at [51]; R v Israel [2002] NSWCCA 225 at [23]; R v Pearson [2004] NSWCCA 129 at [43]. 28 The fact that an offence has been committed by someone suffering from a mental illness may also diminish the need for a sentence which reflects a maximum component for general deterrence; see R v Engert (1995) 84 A Crim R 67 at 71; R v Letteri, NSWCCA, 18 March 1992, unreported. 29 The findings which the sentencing judge made with respect to the mental state of the applicant at the time of the accident are not entirely clear. His Honour apparently accepted Mr Cox's opinion that the accused's psychological functioning was impaired, which would constitute a relevant disability but the contribution that this made to the accident is not articulated. It may be that it affected the applicant's judgment as to whether he was in a fit state to drive or it may have directly contributed to his capacity to control the motor vehicle and respond to an emergency. His Honour refers both to the applicant's "emotional turmoil" and "impaired functioning" but does not explain how this may have contributed to the accident. I apprehend this may be in large part due to the manner in which Mr Cox expressed his opinion, which was in the following terms: "In considering the chain of events just prior to the accident, several factors are consistent with behavioural changes manifested as a result of a psychological disorder and/or severe insomnia: Impaired judgment - Driving late at night on country roads after consuming alcohol. Difficulty concentrating - The nature of the accident implies momentary inattention to the road. Impaired memory - The individual's recall of the events following the accident is impaired. This fact, and the individual's behaviour immediately following the accident are also consistent with shock and a possible period(s) of unconsciousness immediately following the impact. Mr Taylor's recent psycho-social history, together with the symptom profile and the nature of the motor vehicle accident are consistent with a model in which his psychological functioning played a significant role in precipitating the motor vehicle accident. Conclusions and recommendations As a result of clinical information gathered it is probable that Mr Taylor's psychological functioning was impaired, both prior to and at the time of the motor vehicle accident, as a result of unexpected and traumatic family events that occurred immediately prior to the accident. Considering the cognitive changes that are known to occur as a result of psychological events such as depression and anxiety, it is likely that these changes would substantially increase any individual's chances of being involved in a motor vehicle accident." 30 Whatever be the contribution which the applicant's psychological state made to the accident I am satisfied his Honour erred by failing to have regard to it as a mitigating factor. However, even if it had been considered, having regard to the finding that the applicant, on his own admission, was aware of the state he was in and the effect upon him of sleep deprivation, together with the effect of beer and marijuana, but nevertheless elected to drive, his impaired psychological state could not play a significant part in determining the ultimate sentence. 31 Accordingly, although his Honour should have found that the applicant was suffering a relevant disability, which affected his judgment, to my mind the evidence did not require any significant reduction in the extent to which the sentence was required to mark out the seriousness of the offence and deter others from acting in a similar manner.

Ground Two 32 The applicant submits that the sentencing judge erred when he found that the applicant's moral culpability was high. It is submitted that by reason of the applicant's personal circumstances, which led to his sleep deprivation the effect of which was accentuated by the ingestion of alcohol and marijuana, the moral culpability of the applicant should have been assessed as low. It is submitted that this was an exceptional case. 33 I do not accept this submission. There will be many people in the community who, everyday, will be affected by personal circumstances that may be distressing. This may lead to the person being deprived of sleep or suffering some other health consequences. However, this cannot excuse nor justify a person acting irresponsibly and ingesting alcohol or drugs and then driving a motor vehicle. The consequences of people with a diminished capacity to control their actions driving a motor vehicle are apparent almost every day. Drowsiness for whatever reason is a common cause of accidents. Those accidents can be, and often are, catastrophic, as the suffering of Mr Jefferay makes plain in the present case. The community is entitled to expect that persons who are facing stressful situations will nevertheless use appropriate care by ensuring that, if they are contemplating driving a motor vehicle, their capacity to control the motor vehicle is not impaired. In the present case the sentencing judge found that the applicant was aware of the effect of alcohol and drugs upon his capacity to drive. In these circumstances, the only responsible course was for the applicant to refrain from driving until the effect of the alcohol and marijuana had diminished and he was able to safely control the vehicle. 34 In these circumstances his Honour was correct in finding that the applicant's moral culpability for the offence was high.

Ground Three - manifestly excessive 35 The applicant's submission that the sentence imposed was manifestly excessive is based upon the proposition that the applicant's moral culpability was low and this was an exceptional subjective case having regard to his personal circumstances. 36 The elements of the submission that the personal circumstances were exceptional include the following:

a. There were extensive admissions; particularly the fact that the applicant's affectation by marijuana was only known to the police because of the applicant's admission;

c. Prior good character and the unlikelihood of re-offending.

d. That the offences were committed in a discrete period after significant events in the applicant's life.

e. As at the time of sentence the applicant enjoyed the continued support of his family and, in particular, the applicant and his wife had reconciled;

f. The applicant was employed and earning money to support his family; and

g. A degree of hardship to others; in particular his wife and his four children. 37 Although all these matters were important, I am nevertheless satisfied that the sentence which his Honour imposed was appropriate. I have already indicated in relation to ground two, that, in my view, the applicant's moral culpability was appropriately determined to be high, which had the consequence that, notwithstanding his personal circumstances, a custodial sentence was appropriate. The sentence which his Honour imposed was in the circumstances within the appropriate range and is consistent with the guidelines provided by this Court in R v Whyte (2002) 55 NSWLR 252 (see also R v Jurisic (1998) 45 NSWLR 209). 38 In my opinion this ground of appeal fails.

Further matters 39 There is a further reason why this appeal must fail. When considering the factors provided by s 21A his Honour said, inter alia, that the "injury emotional damage caused by the offence was substantial." However, his Honour found that to be part and parcel of the offence and determined that the applicant should not be punished twice for these two matters. 40 To my mind this finding was not correct. As the Chief Justice made plain in Whyte an aggravating feature of this offence is the extent and nature of the injuries inflicted by the offenders. Howie J pointed out in R v Dutton [2005] NSWCCA 248 that the extent of the victim's injuries cannot be ignored when considering what the appropriate sentence should be [28]. In the present case, the injuries that the applicant inflicted upon Mr Jefferay were very significant leaving him with seriously diminished prospects in life, permanent disabilities including a loss of financial independence and chronic pain. After giving appropriate consideration to these matters I am completely satisfied that no lesser sentence than that which was imposed by his Honour was justified in law.

Conclusion 41 Although I would grant leave to appeal the appeal should be dismissed. 42 HOWIE J: I agree with McClellan CJ at CL. 43 LATHAM J: I agree with McClellan CJ at CL

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