The Queen v Kurzynski [2001] ACTSC 90

5. Nor was this the first or only occasion that the offender had driven whilst grossly affected by alcohol.

6. Between 1968 and 1986 he was convicted on five occasions of so driving. Where measured his blood alcohol levels were in the high range.

7. Even after the tragic events of June 1999, he has again offended by driving with the prescribed concentration of alcohol, again at a grossly high level.

8. Enough has been said, given these circumstances, to place this matter into the more serious category of culpable driving. Indeed, I can think of few more serious examples of such an offence, though the possibility has to be acknowledged.

9. The objective circumstances of this offence call for a strongly punitive response both to condemn the offence and to deter persons affected by alcohol or other drugs from attempting to drive a motor vehicle.

10. The subjective circumstances of the offender do excite some sympathy.

11. He has been an alcoholic since age 15. He is now 50. He was abstinent, with the help of Alcoholics Anonymous, for over 11 years up until 1998. He relapsed only shortly before the current offence.

12. The offender also suffers from a number of psychiatric disorders.

13. According to Dr Robert Tym, a psychiatrist who treated the offender following the offence the subject of these proceedings, the offender suffers from a Recurrent Major Depression.

14. Up until 1986, the offender's life had been a disastrous and unhappy one. He had five drink driving convictions, drunkenness charges, even being committed in 1979 as an "inebriate" under the now defunct Inebriates Act 1900 (NSW). Several relationships, including two marriages, failed. The offender acknowledged that his alcohol abuse caused this. There are three children of the two marriages.

15. During his period of sobriety the offender was in gainful employment in the Civil Engineering industry. He has operated his own business as a Tree Surgeon.

16. His relapse in May 1999 he attributes to complacency, working long hours and stress, partly as a result of relationship difficulties (not this time alcohol related). Dr Tym considers that, leading up to the relapse, the offender had developed a major depressive illness.

17. Needless to say, the offender's depression was deepened by his relapse into alcohol abuse. It had got to the stage where, shortly before the tragic collision with the removal truck, the offender had been seeking a firearm to kill himself. He had failed to obtain one but had begun to contemplate driving into a tree to kill himself.

18. I should emphasise that the collision with the removal truck was not the result of any deliberate action on the part of the offender to injure himself or, indeed, anyone else. It was, simply, the result of his extreme inebriation.

19. The accident itself, including the realization of the terrible consequences of it, has further tormented and traumatised the offender. He now suffers from a Post Traumatic Stress Disorder as well as the previous depressive illness. There have been other traumatic events as well which I will not further detail.

20. Both Dr Tym and Dr Knox, another psychiatrist who has recently examined the offender, agree that there will need to be long term therapy to reach a stage where the offender can function properly in the community.

21. He will need, apart from long-term counselling, anti-depressant medication for the rest of his life. Above all, he must remain abstinent from alcohol. His depressive illness carries with it a real risk of self-harm.

22. There is no doubt that the death of Mr Sullivan was unintended. It is true that the decision of the offender to drive a vehicle on the 25 June 1999 was clouded by alcohol and his depressive illness. However, it is not a matter of mitigation for this offence, the essence of which is the creation of an unacceptable risk to the safety of other persons.

23. I accept that the offender, despite his inconsistent behaviour in driving again whilst intoxicated at least once since this offence, is truly remorseful. He is tormented by the consequences of his actions.

24. So also, I imagine, is the family of the unfortunate Mr Sullivan. However, neither they nor Mr Sullivan bear any responsibility for this tragedy. It was solely the fault of the offender.

25. I note that, in New South Wales, the Court of Criminal Appeal, in R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209, gave what is described as a "guideline judgment" in respect of culpable driving. In considering that judgment regard must be to the different maximum penalties in New South Wales compared with those available in the Australian Capital Territory for culpable driving causing death. The maximum penalty in this Territory is 7 years imprisonment (s 29(2) Crimes Act 1900). In "circumstances of aggravation" (s 52A(2) Crimes Act 1900 (NSW)) the maximum penalty in New South Wales is 14 years imprisonment. Those "circumstances" include driving whilst intoxicated as was here the case (s 52A(7)(a)). In the absence of circumstances of aggravation the maximum penalty in New South Wales is 10 years imprisonment. A lesser regime of penalties (7 years and 11 years respectively) applies to culpable driving where grievous bodily harm results. Thus, the applicable maximum penalty in New South Wales is, effectively, twice that available in this Territory.

26. Further, a "guideline judgment" of the New South Wales Court of Criminal Appeal, is not directly binding on this Court. Nevertheless, the views of a Court of five senior and experienced judges of the Supreme Court of New South Wales is of considerable persuasive authority.

27. A further point of difference that must be borne in mind is the different sentencing regime applicable in New South Wales by virtue of the Crimes (Sentencing Procedure) Act 1999 (NSW).

28. The judgments in R v Jurisic (supra) sought to highlight the objective seriousness of an offence such as the present.

29. The end result is that, even if an offender has no previous convictions, pleads guilty and is genuinely remorseful, a custodial sentence will ordinarily be appropriate.

30. In a case such as the present, though a plea of guilty has been tendered and genuine remorse is present, there is a previous record of drink driving. The offence has resulted from similar offending behaviour. It follows, in my view, that such a sentence is inevitable in this case.

31. In R v Jurisic (supra) Spigelman CJ considered that, in the context of the NSW Crimes Act, a case such as the present should attract a sentence of 5 years or more. The degree of aggravation, the extent to which the offender has behaved recklessly rather than by reason of a momentary lapse or mis-judgment will determine the appropriate response. His Honour stated:

(231) "With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional."

32. In R v Jurisic (supra) the occasioning of grievous bodily harm to a number of persons had been caused by the offender driving both dangerously and whilst significantly intoxicated. Though he had a poor traffic record there were compelling personal factors. Nevertheless, Sully J, with whom on this point the other members of the Court agreed, considered that, though it was a Crown appeal, a sentence of 4 years, including a fixed term of 2 years, was appropriate. But for the element of "double jeopardy" a sentence of 4 years to 4½ years with a fixed term of 2½ years would have been appropriate.

33. In the present case, allowing for the lesser scale of penalties for this offence under the laws applicable in this Territory, it, nevertheless, seems to me that no head sentence less than 5 years reflects the objective seriousness of this offence, even having regard to the plea of guilty and the remorse of the offender. The aggravating factors, including the further drink driving offence in April this year, far outweigh the mitigating factors including the offender's state of health and of mind.

34. The question of the non-parole period presents more difficulty. One life has already been lost as a result of this offender's alcoholism. It is important that no more lives be damaged or lost as a result thereof. That includes not only road users who could be placed at risk in the future if, after his release, the offender continues to drink and drive. There must be not only deterrence of this offender, but also the opportunity for treatment so that his life be not lost either to drink or otherwise.

35. It is clear that the offender has a present resolve to rehabilitate himself, in part to atone for the grievous wrong he has done. I will allow so far as I can for that.

36. I appreciate that no sentence I can impose will adequately console the relatives of the late Mr Sullivan. The sentence I impose should not in any way be seen as reflecting upon the value of Mr Sullivan's life. It would be wrong to attempt any such equation. I have to judge this offender, not merely according to the awfulness of the outcome, because otherwise the penalty would be no different than for murder, but on the extent of his fault and by reference to the law which penalises him.

* On the single count of culpable driving causing death you are convicted and sentenced to 5 years imprisonment.

* That sentence will be deemed to have commenced on the 7th day of March 2001 to give credit for the time spent in custody or confinement.

* I fix a period of 18 months from that date as the non-parole period.

* I recommend that you be treated as a prisoner at risk and that your medical records be drawn to the attention of prison authorities with a view to ensuring appropriate treatment.

* I further recommend that the Parole Board grant parole only upon condition that a period of residential rehabilitation with Mancare or a like program be undertaken upon release. I would expect such a program to be of approximately 12 months duration.

* I further order, pursuant to s 62 of the Road Transport (General) Act 1999 that the period for which you are to be disqualified from holding or obtaining a driver licence be 10 years from today.

I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice

Solicitor for the Crown: ACT Director of Public Prosecutions