Woodbridge v R [2010] NSWCCA 185 | Case summary

Woodbridge v R [2010] NSWCCA 185 | Case summary | Zoe

[13]

(ii) Aggravated dangerous driving occasioning grievous bodily harm - imprisonment for a fixed term of 2 years commencing on 27 November 2009. 5 In R v Borkowski (2009) 195 A Crim R 1 at [55] - [56], Howie J pointed out that there is a rational, logical and cohesive hierarchy of offences concerned with the infliction of death or serious injury by the use of a motor vehicle. Manslaughter by gross criminal negligence is at the top of the list. Included within offences of a lower degree of seriousness are those provided for by s 52A of the Crimes Act 1900 (NSW). In summary the offences under that section and the penalties provided are:- 1. Occasioning the death of another person while driving under the influence of intoxicating liquor or a drug or at a speed or manner dangerous to another - imprisonment for 10 years - s 52A(1); 2. If the offence referred to in paragraph 1 is committed in circumstances of aggravation the maximum penalty is imprisonment for 14 years - s 52A(2); 4. Occasioning bodily harm to another person while driving under the influence of intoxicating liquor or a drug or at a speed or manner dangerous to another - imprisonment for 7 years - s 52A(3); and 5. If the offence referred to in paragraph 3 is committed in circumstances of aggravation the maximum penalty is imprisonment for 11 years - s 52A(4). 6 Circumstances of aggravation are defined to mean that at the time of the impact occasioning death or grievous bodily harm:- (a) the prescribed concentration of alcohol was present in the accused's breath or blood, or (b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or (c) the accused was driving the vehicle to escape pursuit by a police officer, or (d) the accused's ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination). 7 Clearly these circumstances may vary in degree and in some situations there may be more than one circumstance operative. 8 In this case the first charge against the Appellant was the manslaughter of Evette Haddad who died at the scene. The second, and alternative, charge was that Appellant by driving the vehicle caused the death of Evette Haddad in circumstances of aggravation namely the prescribed concentration of alcohol being present in the Appellant's blood. The third charge was of occasioning grievous bodily harm to Maher Haddad in the same circumstance of aggravation. The Appellant was convicted of the first and third charges. 9 The prescribed concentration of alcohol was 0.15 grams per 100 millilitres of blood - see s 52A(9). When a sample of blood was taken from the Appellant after the accident it contained a blood alcohol concentration of 0.269. The evidence in the case accepted by his Honour was that at the time of the collision the Appellant's blood alcohol concentration would not have been less than 0.277 grams per 100 millilitres, that the Appellant's driving ability would have been grossly impaired, and that in the words of the relevant witness, Dr Perl:- There would not be a single aspect of the driving functions that I have tested that wouldn't be very significantly impaired in terms of measurable significant impact and that a blood alcohol level of .250 would increase the risk of a crash by nearly 154 times. 10 Dr Perl gave evidence that for a 65 kilogram female to achieve a blood alcohol level of .269 over a 4 hour period would take almost 13 standard drinks. There was no evidence in the Appeal papers as to the Appellant's weight - though no doubt the jury would have seen her - and it may be that the Appellant's alcohol ingestion occurred over a slightly longer period than 4 hours. However, as the evidence was allowed to be given, it may be inferred that it gave some reasonable indication of the Appellant's drinking. 11 Given the degree of publicity there has been over decades now as to the impact of alcohol on driving and the publicity as to the legal limit being 0.05 and that it takes but a few drinks to reach this level, it is impossible to characterise the Appellant's conduct in driving after consuming the quantity of alcohol she did in any terms of moderation. It amounted to extreme negligence and gross irresponsibility a characterisation made even more appropriate given that, prior to her accident, the Appellant drove a distance of some 9.1 kilometres, through 18 traffic lights and past a number of shopping precincts and schools. 12 Clearly relevant also to the criminality of an offence of causing grievous bodily harm under s 52A is the degree of injury inflicted - SBF v R [2009] NSWCCA 231 at [86]. As to this his Honour remarked:- Mr Haddad suffered multiple serious fractures and internal injuries. He suffered a stroke from a carotid artery injury. He was a patient at Royal North Shore Hospital for about a month before being transferred to the brain injury unit at Westmead Hospital. By reason of problems arising from the accident, he had problems swallowing and then for some months he had a tube inserted until a catheter was inserted into his stomach, which was used to feed him. He remains incontinent of urine and faeces by reason of his stroke. He manages to get about in a wheelchair, but has not ability to move the wheelchair itself and is entirely dependant on nursing home staff. He is unable to live at home even with assistance. 13 I am not conscious of any evidence as to the age of Mr or Mrs Haddad. However a victim impact statement of one of their children dated November 2008 asserts that they had migrated to Australia 34 years before to start a new life, had married a year later, and had their first child at about that time and another child 3 years later. It is a reasonable inference that at the time of the accident they were aged between about 52 and 72. One may thus infer that Mr Haddad is likely to have a number of years during which to suffer his injuries and incapacities. 14 Of course there were subjective factors which his Honour had to take into account. His Honour recounted that the Appellant's marriage became troubled - the Appellant's evidence was that this first occurred in about 2001 - that she suffered a great deal at the hands of her former husband and that she became dependent on alcohol largely in consequence. In the first part of this decade she suffered depression, made a number of suicide attempts and had, and continued to have, psychiatric and psychological treatment. For some time prior to the accident, her former husband had custody of their son while the Appellant had custody of her daughter. Effectively the 2 children have been estranged from their non-custodial parent. 15 Walmsley DCJ accepted that the Appellant received a phone call from her ex-husband on the morning of the accident accusing her unjustly of having been responsible for slashing the tyres of the cars of his girl-friend and himself and later a similar call from her son. The calls upset the Appellant - the evidence would indicate greatly - and she began to drink as a result. His Honour also found that the Appellant was also under financial pressures and was unhappy about her employer requiring her to travel to New Zealand the next day. His Honour was satisfied that at the time of the offences the Appellant was suffering from depression. 16 It would seem that the Appellant had been hospitalised on at least 2 occasions pursuant to the Mental Health Act. According to Dr Allnutt, there seem to have been a number of other admissions also inspired by the Appellant's mental state and/or alcohol abuse. She was seen by numerous medical professionals in the years between 2001 and 2007. 17 Her traffic record was excellent for some 25 years until 2001. In the next 2½ years she committed a number of speeding offences and in November 2005 she was convicted of driving with a high-range prescribed quantity of alcohol. Otherwise, the Appellant had no criminal record. 18 His Honour accepted an opinion of Dr Olaf Nielssen that by the time of sentence the Appellant's depression and alcohol abuse disorder were in remission and found that her prospects of rehabilitation were very good. 19 Judged by the terms of s 52A, and but for the Appellant's personal circumstances and stressors that led to her drinking and driving immediately prior to her accident, it is difficult to see why the gravity of her conduct and the extent of the grievous bodily harm inflicted on Mr Haddad should not lead to a sentence well into the top half of the 11 years maximum provided by the legislature for the aggravated form of the offence. By any criterion, what she did was high, indeed very high, on the scale of objective seriousness. 20 Of course account must also be taken of the Appellant's subjective circumstances, including those that influenced the commission of the offence, her relatively good past record and those matters that bore on her future. While I am of the view that her mental condition for some years prior to and at the time does significantly ameliorate her criminality, I remain of the view that her offence required a penalty well above that which was imposed. Her mental condition did not prevent her holding down a job and the head sentence that notionally would correspond with the fixed term imposed is only about one-quarter of the 11 years statutory maximum - and this for an offence which involved, as I have described it, extreme negligence and gross irresponsibility on the part of the Appellant and devastating injuries to her victim. 21 In the circumstance of the case, and with respect to Davies J's view, I regard the matter as so clear that I do not find it necessary to attempt any significant review of the authorities dealing with offences under s 52A(4). It is sufficient to say that I am conscious of the Judicial Commission statistics and that the sentence that I regard as proper is at the top end of them. The statistics show that of 59 offenders sentenced for offences under the sub-section, the highest sentence (imposed on 1 offender) was of 6 years, and the median and by far the most common sentence was of 30 months. The highest non-parole period was of 3 years and the median non-parole period was 18 months, imposed on 19 offenders. 22 Because of the disparate circumstances that can constitute the offence of manslaughter - c.f. R v Forbes (2005) 160 A Crim R 1 at [133] - [134]; R v Blacklidge (unreported, NSWCCA, 12 December 1995) - a judgment as to what was an appropriate sentence is not so easily made. Nevertheless, as was said in the last-mentioned case:- … the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. 23 However there are some statements that assist. I have referred to what Howie J said R v Borkowski [2009] NSWCCA 102. Furthermore, as the difference in maximum penalty indicates - that for manslaughter being 25 years - manslaughter is a "markedly" - see R v Cameron [2005] NSWCCA 359 at [28] - or "much" - see R v Cramp [1999] NSWCCA 324 at [108] - more serious offence than either of the dangerous driving causing death offences. 24 Sentences imposed in earlier cases also provide some guidance in the case of both offences. The Appellant in R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198 was found guilty of one count of manslaughter. The deceased was 16 and a learner driver whom the Appellant had encouraged to drink and drive his car because he was too drunk to drive. His encouragement extended to her driving approximately 35 kilometres over a 3 hour period interrupted by stops to drink more alcohol and at speeds of up to 150 kph. In the car were 2 younger brothers of the deceased who, a number of times urged the deceased to slow down. Ultimately the deceased lost control of the car. She was killed instantly and the Appellant received severe head injuries. The blood alcohol concentration of the deceased was 0.167 and of the Appellant some 5 hours after the collision, 0.103. Expert evidence estimated his range at the time of the collision to have been between 0.13 and 0.178. 25 This Court dismissed an appeal against a sentence that included a non-parole period of 7 years and an additional term of 2 years and 4 months. Barr J, with whom Sully and Ireland JJ agreed, said that the case was of such a serious nature as to be seen as falling into the worst category of cases of its kind and that the sentence imposed was not manifestly excessive. 26 In R v Do [2000] NSWCCA 459 the Respondent to a Crown appeal had been found guilty of 2 counts of manslaughter. He had driven his fully laden truck with a gross weight of 21 tonnes along Mona Vale Road. When he reached the top of a hill near where there was a sign that read, "Truck must use low gear", the vehicle was seen to accelerate very quickly reaching what Beazley JA described as a "terrifyingly high speed". Thereafter, he tried unsuccessfully to put the truck into gear and control it. However, at the bottom of the hill the vehicle mounted the apron of a roundabout, collided with a car killing the driver and then a house killing an occupant.

[14]

27 Beazley JA, with whom Wood CJ at CL and O'Keefe J agreed, said that the evidence did not establish deliberate acceleration on the part of the Respondent and that it was apparent that the basis upon which he had been sentenced was "that there had been a criminally negligent act at some point, probably at the commencement of the downgrade, involving an 'initial abandonment of responsibility'". The Respondent was a hard working family man whose subjective factors were referred to as "substantial". He was sentenced on each charge to concurrent terms of imprisonment of 4 years comprising a minimum term of 3 years with an additional term of 1 year. In dismissing the appeal, Beazley JA observed that the sentences imposed were not manifestly inadequate although "at the very bottom of the range". The Crown had not sought to challenge the concurrency of the sentences. 28 In R v Ryan (2003) 39 MVR 395 this Court reduced to a head sentence of 6 years including a non-parole period of 4 years, a sentence of 7 years and 6 months including a non-parole period of 5 years for one count of aggravated dangerous driving causing death. An offence of knowingly failing to stop and give assistance was taken into account and a 25% discount had been allowed for the offender's plea. The principal offence carried a maximum penalty of 14 years imprisonment. The circumstances of the offence were that in a 60 kph area the offender had been driving at in excess of 135 kph and, after a braking skid that extended for something of the order of 64 metres, ran into the rear of another vehicle stopped at traffic lights, forcing that vehicle into an intersection. He had been observed for some 3 kilometres prior to the collision travelling at speeds estimated at between 90 and 140 kph. The offender had a significant record for driving offences but was otherwise of good character and Grove J, with whom Ipp JA and Shaw J agreed, held that the original sentencing judge had erred in his approach to this.

[16]

Decision Sentence Significant factors Woodward 8/5 y after 20% plea discount BAC 0.216 Offender's appeal dismissed (2002) 33 MVR 536 Cousins 8/6 y after 20% plea discount 130 kph avoiding police. Successful Crown appeal (2002) 36 MVR 262 Appalling record Rayner [2002] NSWCCA 309 6/4 y plus 4y FT (concurrent) BAC 0.27 - 0.294 Pleaded guilty Offender's appeal dismissed Summary of prior cases Sen [1999] NSWCCA 199 7/5¼ y (x 2) concurrent BAC 0.219 Offender's appeal allowed - (2 judge bench) Early guilty plea BAC 0.16 Kalanj (1997) 98 A Crim R 505 5/2½ y Early guilty plea Successful Crown appeal - Before Jurisic and Whyte Long-standing alcohol problem & bad record BAC 0.12 - 0.135 Black (CCA, 23 July 1998) 5/3 y Late plea Successful Crown appeal - Before Jurisic and Whyte 110 kph in 60 kph area, ignored red light McKinney (1999) 29 MVR 355 3/1½ BAC 0.166 - 0.282 Pleaded guilty Successful Crown appeal Credit given for PD served Reeves (1999) 29 MVR 451 5/2½ y BAC 0.166 - 0.174 Pleaded guilty Before Jurisic - CCA (2 judge bench) dismissed appeal Tragic life, warned not to drink as on medication Tadman (2001) 34 MVR 54 5y 3m /2y 8m after 25% discount Erratic driving was a warning - Drug affected - Strong subjective case CCA reduced from 7/4 BAC 0.172 Vukic (2003) 38 MVR 475 7/4 y after 20-25% plea discount Excessive speed CCA (2 judge bench) reduced from 8/5 Summary of prior cases

[17]

30 In R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70, the Respondent pleaded guilty to 3 counts of manslaughter and one count of aggravated driving in a manner dangerous causing grievous bodily harm. Although never licensed, the Respondent had been permitted to drive a powerful 5 litre V8 car in which were 4 passengers including the car's owner. The Respondent drove into a 50 kph area in Parkes at speeds considerably in excess of 100 kph and despite requests by his passengers to slow down. He lost control and ultimately smashed into a telegraph pole splitting the vehicle in two and resulting in the death of 3 passengers and injury to the front seat passenger. 31 The Respondent had prior convictions the details of which are not disclosed in the report and was on a 2 years good behaviour bond at the time of the offences, a circumstance that was regarded as a matter of aggravation. When a blood sample was subsequently taken in hospital, the Respondent's blood alcohol content was 0.114. Expert opinion was that at the time of collision it was higher. By the time of sentence he was regarded as genuinely contrite and remorseful. He had been attacked and rendered unconscious in prison and was on protection. 32 On each count of manslaughter the Respondent was originally sentenced to imprisonment for 6 years with a non-parole period of 2 years. There was partial accumulation of the sentences with the overall period in custody being 4 years with an additional 4 years sentence. In a Crown appeal, this Court held that the sentences were manifestly inadequate and re-sentenced the offender on each count of manslaughter to imprisonment for a non-parole period of 4 years and a balance term of 3 years, accumulating those sentences to result in an effective sentence of a non-parole period of 6 years and a balance term of 3 years. The sentence imposed on the grievous bodily harm charge was made concurrent. 33 Grove J, with whom Hislop J agreed, observed that the Respondent's conduct must be regarded as being of a high order of culpability, and said that the sentence on each manslaughter count imposed by this Court was arrived at after reducing a notional sentence of 9 years that took account of objective and subjective factors by 2 years for the offender's plea and that in re-sentencing the usual restraint in Crown appeals was being applied. McClellan CJ at CL who also agreed with Grove J, observed that those sentences were the minimum that could be imposed and, but for the fact that the proceedings were a Crown appeal and the offender had to be sentenced at the lowest end of the available range, a significantly greater sentence may have been appropriate.

[18]

34 In Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1, the Respondent to a Crown appeal had pleaded guilty to 2 counts of manslaughter. He had been engaged in racing 2 other vehicles along the Great Western Highway at a speed of about 120 kph in a 60 kph speed zone. The Respondent had a blood alcohol reading of 0.031 at the time a blood sample was taken in hospital but the expert Dr Perl thought that his blood alcohol level at the time of the collision was likely to have been 0.063. The blood also revealed the presence of the residue of cannabis, and Dr Perl was of the opinion that there would have been some impairment of driving skill from intoxication both by alcohol and drugs. The vehicle he was driving struck a vehicle that was making a right hand turn out of the highway into a side street, killing the driver and passenger in that vehicle. After a discount of 25% for his pleas, the Respondent was sentenced on each count to imprisonment for a fixed term of 4 years on one count and for 7 years including a non-parole period of 4 years on the second. The sentences were partially accumulated such that the effective total term was of 6 years non-parole with an additional term of 3 years. 35 The Respondent was 37 and had a criminal record that was regarded as disentitling him to the leniency that a first offender might have received. Although the appeal was dismissed on grounds of parity with a co-offender against whom no Crown appeal had been brought, Howie J, with whom McClellan CJ at CL and Simpson J agreed, said that the sentences were manifestly inadequate and that, had the Court interfered, and notwithstanding the principle of double jeopardy, the very least sentence that could have been imposed was one of 12 years with a non-parole period of 9 years. (It is not entirely clear but it seems to me probable that Howie J was talking of an effective total sentence for the 2 offences.) His Honour also remarked (probably with the concurrence of the other members of the bench), that had he been sitting at first instance he would have imposed more. His Honour also observed that the fact that the racing in which the Respondent was engaged involved 3 vehicles, the potential dangerousness to the public was increased well beyond the criminality considered in R v Cameron. 36 The final cases to which I will specifically refer are R v Jurisic (1998) 45 NSWLR 209 at 231 and R v Whyte (2002) 55 NSWLR 252 at [228, 229] in which the Chief Justice sought to provide a guideline as to the sentences to be imposed for offences of dangerous driving causing death or grievous bodily harm. With the concurrence of the other members of the Court, his Honour observed in the latter case:- The guideline for offences against s 52A(1) and (3) for the typical case identified above should be:

[20]

Paragraph (i) and par (ii) focus on the occurrence, whereas pars (iii)-(ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence. 39 The offences against s 52A(1) and (3) to which the Chief Justice referred were, of course, the un-aggravated forms of the offences - see R v Whyte at [231]. It might be noted also that in R v McKinney (1999) 29 MVR 351 at 357, the Chief Justice observed that "the basic reasoning in Jurisic reflects a long line of prior authority in this Court indicating the need for a sharp upward movement in sentencing for this offence". 40 Substantially affected as they were by considerations of double jeopardy, there is nothing to be gained by reflecting on the sentences imposed in R v Jurisic and R v Whyte. 41 The Judicial Commission statistics for manslaughter do not distinguish between manslaughter by criminal negligence and other types of manslaughter and accordingly nothing is to be gained by referring to them. Those for offences under s 52A(2) of aggravated dangerous driving causing death show that of 44 cases involving non-consecutive terms, the highest head sentence was of 8 years (imposed on 2 offenders), the median head sentence was 5 years and the most common head sentence, imposed on 13 offenders, was 6 years. The highest fixed term or non-parole period was of 5 years (imposed on 1 offender), the median sentence was between 30 and 36 months, 19 of the offenders having sentences of one or other of these periods. 42 Returning to the cases mentioned, the offending in R v Cramp where a sentence of 9 years and 4 months including a non-parole period of 7 years was imposed was substantially worse than the Appellant's. In R v Cameron, if the discount for the pleas were added back, the notional sentence for each offence was 9 years including a non-parole period of slightly above 5 years. Being the result of a Crown appeal at a time when principles of "double jeopardy" applied, they were at or below the bottom of what was considered an appropriate range. I regard Cameron's offending also as worse than the Appellant's. 43 The offending in R v Borkowski was again substantially worse than the Appellant's. While, as I have said, the suggested sentence of 12 years including a non-parole period of 9 years seems to me to relate to 2 charges, it was also after a 25% discount for the offender's pleas. 44 On one view the decision in R v Do where concurrent sentences of 4 years including non-parole periods of 3 years were imposed seems out of kilter with these other decisions. However in context the reference to "a criminally negligent act at some point, probably at the commencement of the downgrade, involving an 'initial abandonment of responsibility'" suggests that the offender's fault may have been merely not putting/leaving his truck into gear as soon as he should have, i.e. before it gained substantial speed. The report gives no detail of the operation of the truck's gear box but the Court can take judicial knowledge of the fact that it is not difficult to put many vehicles into gear while they are at some speed. While the full facts are not available, R v Do is thus explicable upon the basis that the criminality involved was of a much lesser degree than that exhibited in any of the other manslaughter offences to which I have referred. Absent some such explanation, I would regard the decision as wrong. 45 In R v Ryan, if the discount for the plea were added back, the notional sentence for an offence of aggravated dangerous driving causing death (another offence being taken into account) was 8 years including a non-parole period of 5 years and 3 months. Ryan's offending - albeit sustained speeding rather than sustained drunken driving - was in significant respects comparable to the Appellant's. 46 In its terms, and even if notionally increased to reflect that the aggravated form of the offence of dangerous driving causing death carries a maximum penalty of 14 years imprisonment compared with the 10 years provided for the form of the offence then under consideration, the guideline of a head sentence of at least 3 years indicated in R v Jurisic and R v Whyte provides limited support for the Crown contention that the sentence of 5 years including a non-parole period of 3 years imposed on the Appellant is manifestly inadequate. However, it must be recognised that in that case the Chief Justice was concerned to indicate what should be minimum sentences, not what they should normally be. Furthermore, it was expressly recognised that the degree to which the enumerated matters bearing on moral culpability was present was calculated to increase the extent of an offender's criminality. Of course the offence here under consideration is manslaughter. 47 This last observation must also be borne in mind when the Judicial Commission statistics for the offences under s 52A(2) are considered. The degree of alcohol and driving would tend to place the Appellant's offence high on the scale of offences that could be committed under s 52A(2), and thus those statistics at least suggest that the sentence imposed on the Appellant for her manslaughter offence was low. So do most of the cases referred to by Grove J in R v Ryan and tabulated above. 48 Clearly the sentence imposed on the Appellant for manslaughter should not have been as great as those imposed or reflected in R v Cramp, R v Cameron and R v Borkowski. However, as the length of sentences increases, the severity increases at a greater rate - see Einfield v R [2010] NSWCCA 87 at [185]; R v Amurao [2005] NSWCCA 32 at [65]. Once it is recognised that when allowance is made for plea discounts, the sentences in those cases were almost double or more the length of that imposed on the Appellant for manslaughter, those cases argue strongly for the conclusion that both the head sentence and the non-parole period imposed on the Appellant for manslaughter should have been greater than they were. In a comparison of the Appellant's sentence with that imposed in R v Ryan for an offence under s 52A(2), the Appellant's conviction for manslaughter argues strongly that her sentence should have been higher, albeit recognition must also be afforded to her subjective factors which were not present or matched in the earlier case. 49 Turning then to the purposes of criminal punishment - see Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 and the Crimes (Sentencing Procedure) Act 1999 s 3A - I accept that in light of subsequent events, deterrence of the Appellant, her rehabilitation and protection of the community do not argue for any higher penalty than has been imposed. However as Hunt CJ at CL said in R v Musumeci (unreported, NSWCCA, 30 October 1997) at [15] where the facts, though different, raised similar considerations:- … sentencing in this type of case presents a particularly difficult task. They are almost always sad cases for everyone involved. It is never easy to send a youthful person of good character to gaol but, where it is appropriate, it is something which must be done as a deterrent to others. The need for public deterrence will usually outweigh the fact that the particular offender has already learned his or her lesson. Also, retribution remains an important purpose which the sentence must serve. 50 In the last mentioned connection, it was said in R v Crump (unreported, NSWCCA 30 May 1994) and R v Gordon (1994) 71 A Crim R 459 that:- Retribution, or the taking of vengeance for the injury which was done by the prisoner, is also an important aspect of sentencing: Regina v Goodrich (1952) 70 WN 42 at 43; Regina v Cuthbert (1967) 86 WN (Pt 1) 272 at 274; Regina v Rushby (at 598). Not only must the community be satisfied that the offender is given his just desserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done. 51 While the law has long ago repudiated the concept of "an eye for an eye and a tooth for a tooth" and victims and their relatives are not in the best position to determine appropriate punishments for criminal offences, there seems to me to be a substantial disproportion between both of the sentences imposed on the Appellant and the crimes for which they were imposed. To take by way of example the sentence imposed for occasioning grievous bodily harm on Mr Haddad. The Appellant has more than half finished her sentence for that offence. Mr Haddad remains wheelchair bound, unable to control his bladder and bowel, and dependent on others for the rest of his life. 52 I acknowledge that in the above remarks, I have not attempted a comprehensive review of all cases in the area of driving manslaughter or of aggravated dangerous driving causing death. The number is too great. I have however considered all of the cases which were brought to the Court's attention and to a sufficient number of other cases to be satisfied that I can make an informed judgment on the issues in the Crown appeal. 53 Walmsley DCJ made a finding of special circumstances that has not been challenged. In my view the Crown appeal against both sentences should be allowed, the sentences imposed by Walmsley DCJ quashed and the Appellant re-sentenced as follows:- (i) For the offence of manslaughter - imprisonment for 7 years including a non-parole period of 4 years, both such periods commencing on 27 November 2011; and

[22]

54 DAVIES J: The Appellant was indicted on a charge of manslaughter in respect of the death of Evette Haddad, and in the alternative that she drove a motor vehicle whilst under the influence of intoxicating liquor where her vehicle was involved in an impact which occasioned the death of Evette Haddad in circumstances of aggravation being that the prescribed concentration of alcohol was present in her blood. She was further indicted that whilst under the influence of intoxicating liquor she drove a motor vehicle where the vehicle was involved in an impact which occasioned grievous bodily harm to Maher Haddad in circumstances of aggravation being that the prescribed concentration of alcohol was present in her blood. 55 She pleaded not guilty to all charges. After a trial before Judge Walmsley SC and a jury she was found guilty on Counts 1 and 3 being the charges of manslaughter and aggravated dangerous driving occasioning grievous bodily harm. 56 On 3 December 2009 she was sentenced by Judge Walmsley as follows: Count 3: Imprisonment for a fixed term of two years commencing 27 November 2009 and expiring 26 November 2011. Count 1: Imprisonment comprising a non-parole period of three years commencing 27 November 2010 and expiring 26 November 2013, with a parole period of two years expiring 26 November 2015. In addition, she was disqualified from driving for six years from 18 July 2007. 57 The Appellant appeals against her conviction on the ground that the trial Judge erred in refusing to leave the issue of sane automatism to the jury. 58 The Crown seeks leave to appeal on basis that the sentences were manifestly inadequate. The circumstances of the accident 59 The most useful summary of the facts appears in the Remarks on Sentence of the trial judge: [2] At about 2.25pm on Wednesday 18 July 2007 the offender was driving a Holden Commodore sedan in a southerly direction in the vicinity of the seventy kilometres per hour speed limit. Pennant Hills Road at that point is a six lane road with three lanes in each direction. The offender was driving in the lane closest to the oncoming traffic. There was a steel pool type fence mounted on the median strip to prevent pedestrians from crossing the road.

[35]

The contentions at the trial 60 The Defence case was that the act of driving the motor vehicle by the Appellant was not a willed or voluntary act. The Appellant sought to put the lack of voluntariness on the basis of sane automatism. This was said to have arisen from a dissociative state being suffered by the Appellant. Counsel for the Appellant at the trial said expressly that no defence of mental illness was being put forward. The Crown's case was that the Appellant's acts were voluntary but, if they were not, they were involuntary by reason of insane automatism. 61 The principal difference between Dr Allnutt, the psychiatrist called by the Crown, and Professor Quadrio, the psychiatrist called by the Appellant, was that Dr Allnut believed that the Appellant was not in a dissociative state before she consumed the alcohol. He believed that she retained the capacity to act in a voluntary manner at the time the offence occurred. Professor Quadrio was of the view that the telephone call from her ex-husband that morning caused the Appellant to go into a dissociative state which rendered her behaviour after that time involuntary behaviour, including the excessive consumption of alcohol. 62 The other difference between the psychiatrists (and the significant one for the Appeal) was that Dr Allnut said that if the Appellant was acting involuntarily when she drove the car he believed that that involuntary behaviour came from insane automatism whereas Professor Quadrio thought it came from sane automatism. It is accepted that those terms are legal and not psychiatric terms, but the Doctors expressed those opinions on the basis of their understanding of those legal terms. 63 Having heard the evidence of the psychiatrists, the Crown asked that his Honour not permit the issue of sane automatism to be left to the jury. After hearing argument his Honour said that he had reached the view that he should not allow sane automatism to go to the jury and he would give his reasons at a later time in the trial.

[42]

[8] She gave this evidence at T 449 to 452: "Q. As I understand your evidence before lunch you disagreed with Dr Allnutt when he expresses the opinion that, firstly, it isn't one of automatism, but if it is, that the circumstances that would be accepted would indicate a state of insane automatism, that is opinion? A. Yes. Q. You disagree with that? A. Yes, my understanding is we are looking at a psychological blow triggering the events. Q. So under those circumstances wouldn't you accept that it is a case of insane automatism? A. I accept everything you said and I think it is an extraordinarily complicated issue. And it is complicated in a psychiatric and in a legal sense. That is, when we look at what we accept as a mental disorder we get into murky territory about mental illness versus mental disorder. And generally conditions like disassociation and PTSD and personality disorder are not what is understood when we talk about conditions that are called insane. They are mental disorders as defined by the DSM. It is very murky area both in psychiatry and I think possibly of the law. We generally think about insane meaning the psychotic disturbances, like schizophrenia and manic depressive disorder and bipolar disorder. And generally the non-psychotic illnesses are not generally regarded as the insane disturbances of the mind. I think it is a very, very murky area of both disciplines. Q. You say that it is a murky area, a complex area, but in your diagnosis and in your report you talk about things that you [? say] would take it out of the situation of sane automatism, don't you? A. Well, as I said, I think it as (sic) very difficult area because time and again courts will not accept non-psychotic illnesses as diseases of the mind. And I think even in psychiatry generally when we think about a disease of the mind, when we think about conditions that are insane conditions, we think about the psychotic disorders. Q. But if you don't just talk about that, but if you talk about this natural infirmity, this question of a person suffering from an internal vulnerability, that would not be sane automatism, would it? A. Well, if we want to say that any mental disorder as defined psychiatrically as a mental disorder becomes a disease of the mind then it becomes insane, yes. But I don't think that is generally what courts recognise or what psychiatrists recognise. But technically you are right. It is classified as a mental disorder according to DSM. Q. So if it is classified as a mental disorder according to DSM and if the accused is suffering from a mental disorder, and if the accused has a recurrence of this situation, and as I understand from your report in your opinion she remains highly vulnerable to further depressive episodes, correct? A. Yes, I think that she is highly vulnerable, yes. Q. She continues to react when exposed to triggers that remind her of her ex-husband? A. Yes. Q. And when ever there is any contact of any form between them? A. Yes. Q. So there is a recurrence of this situation? A. Yes. Q. And thirdly, there is a potential for harm or risk on the part of the accused as a result going into these dissociative states you talk about? A. Yes. Q. So on the basis of all those things, would you accept that it is [? a] situation of insane automatism, not sane automatism? A. I am only repeating what I have said, which is that it is a difficult area and that if we accept any psychiatric disorder as constituting a disease of the mind then we open the door to bed wetting being a disease of the mind really as a psychiatric diagnosis."

[53]

Legal principles 65 In The Queen v Radford (1985) 42 SASR 266 at 276 King CJ explained the difference between sane automatism and insane automatism as follows: The significant distinction is between the reaction of an unsound mind to its own delusions or to external stimuli on the one hand and the reaction of a sound mind to external stimuli, including stress producing factors, on the other hand. 66 This statement was said by Hunt J in R v Youssef (1990) 50 A Crim R 1 at 5 to be the clearest statement of the distinction. King CJ's discussion of the distinction was approved in The Queen v Falconer (1990) 171 CLR 30 at 41-42, 48-49, 60, 76 and 85. 67 In Falconer Gaudron J said (at 85): In general terms, a recurring state which involves some abnormality will indicate a mind that is diseased or infirm, but the fundamental distinction is necessarily between those mental states which, although resulting in abnormal behaviour, are or may be experienced by normal persons (as, for example and relevant to the issue of involuntariness, a state of mind resulting from a blow to the head) and those which are never experienced by or encountered in normal persons. … And in Radford , King C.J. (75) distinguished between "an underlying pathological infirmity of the mind, ... which can be properly termed mental illness" and "the reaction of a healthy mind to extraordinary external stimuli". 68 As Deane and Dawson JJ make clear in Falconer in the passage the trial judge set out at para [14] of his judgment, there may be cases in which the evidence allows alternative contentions, that an accused's acts were involuntary either by reason of mental disease or natural mental infirmity on the one hand, or by reason of the operation of a defence upon a normal mind. 69 In Youssef Hunt J also dealt with the question of onus in adducing evidence in relation to automatism. He said (at 3-5): That legal onus upon the Crown does not mean, however, that the Crown must bring evidence to meet every such "defence" which could possibly arise in relation to the offence charged. In every case, the accused bears an evidentiary onus to point to or to produce evidence (or material in an unsworn statement) from which it could be inferred that - as I would prefer to put it - there is at least a reasonable possibility that, for example, the act of the accused was accidental, or that it was provoked or done in self-defence:

[55]

Only evidence properly characterised as demonstrating sane automatism is relevant to the issue of voluntariness. The cases say that, if the evidence demonstrates that the automatism is referable exclusively to a disease of the mind (that is, insane automatism), it is relevant only to the defence of mental illness. If the evidence is capable of demonstrating either form of automatism, then it must be left to the jury for them to decide whether' (upon the evidence which they accept) the automatism was sane or insane in nature and to consider accordingly in relation to whichever issue it thereby becomes relevant. 70 The issue of the evidential threshold to justify leaving the matter to the jury was dealt with in R v Clarke (1995) 78 A Crim R 226. In a useful comment on that decision the Court of Appeal in Victoria in R v Boyle [2009] VSCA 289 said: [44] Clarke establishes that, although an accused need do no more than point to evidence, or other material, from which it can be said that there is a reasonable possibility that someone other than himself committed the offence in question, it is not appropriate to invite a jury to engage in 'fanciful supposition'. The Crown must exclude any reasonable (or rational) hypothesis consistent with innocence before the guilt of the accused can be established. Importantly, however, it is not required to exclude any hypothesis that is 'not reasonably to be inferred from the facts proved'. 71 The Court of Appeal then discussed what had been said in Youssef by Hunt J, saying this: [47] … Hunt J, with whom Wood and Finlay JJ agreed, noted the Crown's obligation to exclude any reasonable possibility that the act of the accused was accidental. His Honour said: The Crown must therefore remove any reasonable possibility that the act of the accused was accidental ( Woolmington v DPP [1935] AC 462 at 482), or that it was involuntary as a result of a state of automatism (Bratty v A-G (Northern Ireland) [1963] AC 386 at 407 and 414-5, Ryan v R (1966) 121 CLR 205 at 215-6), or as a result of duress R v Gill (1963) 47 Cr App R 166 at 171-172, R v Lawrence [1980] 1 NSWLR 122 at 131 The Crown must also remove any reasonable doubt raised by the accused's intoxication in determining whether the accused had formed the state of mind required for the offence charged R v O'Connor (1980) 146 CLR 64 at 71 and 88 and 118, Coleman v R (1990) 19 NSWLR 467 at 486, as well as any reasonable possibility that the act of the accused was provoked Moffa v R (1977) 138 CLR 601 at 607 and 612 and 628, or done in self-defence Zecevic v DPP (1987) 162 CLR 645 at 654 657 and 681 and 686. That legal onus upon the Crown does not mean, however, that the Crown must bring evidence to meet every such "defence" which could possibly arise in relation to the offence charged In every case, the accused bears an evidentiary onus to point to or to produce evidence (or material in an unsworn statement) from which it could be inferred that - as I would prefer to put it - there is at least a reasonable possibility that, for example, the act of the accused was accidental, or that it was provoked or done in self-defence cf Purkess v Crittenden (1965) 114 CLR 164 at 168 and 171. The authorities make it clear that such a reasonable possibility must be shown by admissible evidence. Some English authorities put the evidentiary onus as high as requiring an inference to be available that the act of the accused was in fact accidental or provoked or done in self- defence or so on: see, for example, Mancini v DPP (1942) AC 1 at 12 (also at 8), R v Lobell [1957] 1 QB 547 at 551; Bratty v A-G (Northern Ireland), 405-6 and 413; and the tentative view of Devlin 3 in Hill v Baxter [1958] 1 QB 277 at 284-25, which was adopted by Gresson P in R v Cottle [1958] NZLR 999 at 1014 (cf Cleary J at 1033). Others, and most Australian authority, are (in my respectful view) more in accordance with principle and logic, when they say that there must be evidence from which it could be inferred that there is the reasonable possibility that the act of the accused was of such a nature. It was in that second sense, I believe, that Lord Morris intended the following passage in Bratty v A-G (Northern Ireland), 416: Before an explanation of any conduct is worthy of consideration such explanation must be warranted by the established facts or be supported by some evidence that has been given by some witness. 72 The Court of Appeal then said this: [49] We doubt whether it is strictly correct, as a matter of law, to speak of an "evidential burden" resting upon an accused in relation to a matter such as voluntariness, though the matter is perhaps semantic. It might be more accurate to say that voluntariness is an element of the offence that must be proved in every case, and that there is no onus of any kind resting upon an accused in relation to that element.

[57]

Dr Quadrio 74 Dr Quadrio's evidence was to the effect that the state of automatism she diagnosed was a product of the Appellant having an internal high vulnerability in the form of mental disorder and a psychological blow in the form of one or two phone call from the Appellant's ex-husband. The mental disorders that Dr Quadrio thought the Plaintiff suffered from included a major depressive disorder, a dissociative disorder, a post-traumatic stress disorder and a Cluster B personality disorder. The latter has a number of closely related sub-categories and Dr Quadrio seems to have thought that in the Plaintiff's case the borderline personality category was strongest. 75 On the basis of the information she was given, Dr Quadrio was of the view that these disorders had manifested themselves over a significant period prior to the day of the motor vehicle collision, and that the Appellant required expert treatment to deal with her dissociative disorder, such treatment including medication and psychotherapy. 76 Dr Quadrio regarded the Appellant's relationship and feelings about her ex-husband as far beyond ordinary stress, and described them as traumas rather than stressors. However, this was "because she manifests post-traumatic stress disorder symptoms in response to problems relating to her ex-husband". 77 Dr Quadrio was of the view that non-insane (i.e. sane) automatism is generally regarded as the automatism that is caused by a psychological blow and that the Appellant suffered that in the form of one or both of the phone calls from her husband. She was of the view that insane automatism was where it all has to come from inside a person's mind. The Appellant had sane automatism because there was an external trigger. Later there were the following questions and answers:- Q. But you accept though that the accused doesn't have a healthy mind and that the trigger we are talking about is not an extraordinary stimuli, but rather one that affects her mental disorder? A. It is a particular trigger in that she has a traumatic reaction to it. But I agree, I don't think she's a well adjusted person.

[60]

80 Dr Allnutt's explanation of insane automatism was that it involved an internal vulnerability, or mental disorder or mental condition, in other words "some sort of condition or a disease of the mind". Absent that internal vulnerability, the automatism would be sane automatism. 81 The Appellant drew attention to a passage in Dr Allnutt's evidence to suggest that Dr Allnutt did not rule out sane automatism but said only that the behaviour was "more consistent with an insane rather than a sane automatism". When one has regard to the full context in which these remarks appear it is apparent that the doctor changed what he intended to say in mid-sentence, probably because he realised that the decision on the issue was one for the Court and not for an expert to make. A diagnosis of sane automatism was not consistent with what were said to be the Appellant's symptoms and Dr Allnutt's understanding of sane automatism. As will appear, it is certainly not consistent with those symptoms and what sane automatism is at law. 82 The passage in which the quoted words of Dr Allnutt appear includes the following: A. … What distinguishes what is sane or insane automatism, as I mentioned, one of the factors that distinguishes an insane automatism from a sane automatism is this concept of an internal vulnerability or a mental disorder. But there are a number of other factors that courts apply to distinguishing this. The other factor is whether or not that behaviour is going to, 1, occur again. Because if they have got an internal vulnerability to it there is a risk that it could happen again. And the other factor that they sometimes have to look at is whether there is a risk of harm or violence if it happens again. Now, in my view if the Court concludes that the defendant was disassociated and acting involuntarily then I think that the Court should conclude in my view, or put it this way, my view would be, I can't tell the Court that they should conclude, but my view would be this is more consistent with an insane rather than a sane automatism. Q. Why? A. Because the basis on which - because the evidence, if the Court accepts that there was a disassociation, then the Court would have to accept that she has a dissociative disorder. Because the Court would probably base that on the evidence that has been provided that this occurred on numerous occasions as observed by other people, she goes into trancelike states and she disappears and she seems to be odd. So you would have accept that it is a disorder and not a once off thing and that had internal vulnerability. So one reason why you would have to accept that she has an internal vulnerability is because it happens frequently, or has happened on more than one occasion.

[62]

Did the Appellant have a "disease of the mind"? 84 Dr Quadrio's understanding of the difference between sane and insane automatism was wrong as the passage I have set out earlier (para 14) from Radford makes clear. In other words, it is not the presence of external stimuli that makes the difference as Dr Quadrio thought. It is whether the mind is sound or unsound. 85 However, that error on the part of Dr Quadrio is not the determining factor. For she also went on to say that the Appellant's condition did not amount to insanity, in other words, that her mind was not unsound. There are 2 problems with that evidence. 86 First, the issue of whether the Appellant's condition was or was not within the legal concept of mental illness was not one for Dr Quadrio to determine. "The definition of what constitutes a mental disease or natural mental infirmity is a matter of law" - per Deane and Dawson JJ in The Queen v Falconer (1990) 171 CLR 30 at 60. The other members of the Court made similar observations - see at 49, 74, 84. 87 Secondly, Dr Quadrio's opinion of what was and was not insanity, at least so far as this area of the law is concerned was wrong. The traditional exposition of the law of insanity is contained in remarks of Lord Tindal in M'Naghten's case (1843) 10 Cl & Fin 200; 8 ER 718 at 722, 723. It was: "… to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong." 88 In the circumstances of this case it is sufficient to confine attention to the topic of "disease of the mind". The meaning and operation of that expression has been the subject of subsequent exposition. It is sufficient for present purposes to refer to but a few of the instances where this has occurred. In summing up in R v Porter (1933) 55 CLR 182 where the issue of insanity arose for consideration, Dixon J, as he then was, directed the jury (at 188): The next thing which I wish to emphasise is that (the accused's) state of mind must have been one of disease, disorder or disturbance. Mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control, and impulsiveness, are quite different things from what I have attempted to describe as a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long standing…." 89 This approach to the reference to "disease" was echoed in a paper his Honour delivered and which is reproduced as "A Legacy of Hadfield, M'Naghten and Maclean" in (1957) 31 ALJ 255. At 260, his Honour observed:

[63]

"The common law, in most things, brought principle to the solution of the difficulties which facts present. The principle upon which a man who, while he is incapacitated through defect of reason from understanding the nature of his act, does what otherwise would amount to a crime is held by the common law to be guilty of no offence does not seem in itself to suffer from rigidity or complication. It appears simply to be that he should be absolved if his overt acts arise from causes which are independent of his own will, arise from no culpability on his part and, therefore, import no responsibility for his conduct. The reason why it is required that the defect of reason should be "from disease of the mind in the classic phrase used by Sir Nicholas Tindal, seems to me no more than to exclude drunkenness, conditions of intense passion and other transient states attributable either to the fault or to the nature of man. In the advice delivered by Sir Nicholas Tindal no doubt the words "disease of the mind" were chosen because it was considered that they had the widest possible meaning. He would hardly have supposed it possible that the expression would be treated as one containing words of the law to be weighed like diamonds. I have taken it to include, as well as all forms of physical or material change or deterioration, every recognisable disorder or derangement of the understanding whether or not its nature, in our present state of knowledge, is capable of explanation or determination." 90 The topic was also the subject of remark in R v Radford in a passage quoted at length by Mason CJ, Brennan and McHugh JJ in Falconer at 52. It is convenient to quote from this last mentioned case: "In his judgment in Radford , King CJ stated in summary form the effect of the authorities. In our respectful opinion, his Honour's judgment substantially states the common law and we quote the passage at length: "if a jury is called upon to decide whether a state of automatism is due to disease of the mind, upon conflicting evidence or conflicting interpretations of the evidence, it must be told what the law understands by that phrase and it should be told that in language which a jury of laymen is likely to grasp. The expression "disease of the mind" is synonymous, in my opinion, with 'mental illness'. In his charge to the jury in R v Porter (87) Dixon J used the expression 'disease disorder or disturbance'. But the words 'disorder' and 'disturbance' must take their colour from the word 'disease' and refer to disorder and disturbance of the mental faculties which can be characterised as mental illness. In one sense automatism must always involve some disorder or disturbance of the mental faculties, but I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as disease of the mind as that expression is used in the M'Naghten rules. As Lord Denning pointed in Bratty v Attorney-General (Northern Ireland) (85), the major mental diseases or psychoses such as schizophrenia are clearly diseases of the mind. Moreover, physical diseases, such as psychomotor epilepsy, ( Bratty v Attorney-General (Northern Ireland) and arteriosclerosis ( Reg. V Kemp) , when they affect the soundness of the mental faculties should be regarded as diseases of the mind. Lord Denning considered that any 'mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind': Bratty's Case (85). Disease of the mind is to be distinguished from 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self control, and impulsiveness': R v Porter (87). The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called 'effect of reason' in the M'Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly terms mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli. In my opinion the notion of 'disease of the mind' should be explained to the jury in some such terms."

[64]

One may cavil at the description of a mere physical condition such as arteriosclerosis, albeit one which produces a "mental illness", as itself a disease of the mind. But the dichotomy between mental illness and a healthy mind is correctly drawn. However, we would think it necessary that a temporary mental disorder or disturbance must not be prone to recur if it is to avoid classification as a disease of the mind. That is because a malfunction of the mind which is prone to recur reveals an underlying pathological infirmity. Subject to that qualification, the law is as stated by King CJ ion the passage cited." 91 At 60 of the report, Deane and Dawson JJ also endorsed the passage quoted from R v Radford. Other passages from that case were endorsed by Toohey and Gaudron JJ without any criticism of any aspect of the decision. 92 These passages make it clear that the expression "disease of the mind" is not to be narrowly construed and is not restricted to the psychotic disturbances of which Dr Quadrio spoke. The expression encompasses a temporary mental disorder or disturbance prone to recur. The dichotomy is not between a mind affected by psychotic disturbances and a mind affected by less serious ailments but between those minds which are healthy and those suffering from an underlying pathological infirmity. 93 Once that is recognized, the basis that both doctors identified as the cause of any automatism from which the Appellant suffered, viz. a dissociative disorder that had recurred on a number of occasions (and which was capable of leading to the extensive period of automatism of which Dr Quadrio spoke) seems to lead inevitably to the conclusion that the Appellant had a disease of the mind. Her mind was unsound, rather than sound and any automatism was insane rather than sane. 94 Support for that conclusion is to be found in passages which I have quoted - Dixon J's references to disorder, disturbance and derangement and his contrast of those states with things such as excitability, passion, and lack of self-control and the references to proneness to recur in the last paragraph quoted from Falconer. This last mentioned feature was also referred to in the passage from Gaudron J's judgment set out earlier (para 16). 95 While Dr Quadrio may have characterised the phone calls the Appellant received from her ex-husband on the morning of the accident as traumas, they were in fact no different in character or degree from calls to which many separated spouses are subjected. They were not so extraordinary as to suggest that a mind that reacted to them, in the way the Appellant's mind did, may have been healthy. (The Appellant's account of the calls was one from her ex-husband, "You fucking cunt bitch, why has your partner come round and slashed my tyres" and "just some more abusive words"; one from their son, "Mum, why did Larry come around and slash Joanna's and Dad's car tyres?"; and later in the morning a second call from her ex-husband, "I hope you're satisfied, you fucking bitch. You've cost me $1,300.") 96 In summary, the ground advanced in support of a claim of automatism, was that the Appellant had had for some time a dissociative disorder. That necessarily meant that any automatism was insane and not sane automatism. Hence Walmsley DCJ was correct in withdrawing the issue of sane automatism from the jury and the appeal against conviction must be dismissed.

[66]

Remarks on sentence 99 His Honour, having set out the facts that I have detailed earlier in this judgment, discussed the relative penalties for manslaughter and the s 52A(4) offence. His Honour then considered the significant authorities in the area including R v Jurisic (1998) 45 NSWLR 209, R v Whyte (2002) 55 NSWLR 252 and R v Borkowski [2009] NSWCCA 102. He noted that motor vehicle manslaughter involved a higher degree of negligence than the offence of aggravated dangerous driving causing death, and that it is the facts of the particular killing that demonstrate the seriousness of the offending. 100 His Honour found that the gross criminal negligence was driving with the blood alcohol concentration of at least 0.277 such that the Appellant's ability to control the vehicle was grossly impaired. He noted the matters which had relevance to the objective seriousness of the manslaughter offence as being that it was 2.25pm on a busy Wednesday afternoon with a number of people on the road, the fact that the offender travelled over a distance of 9.1 kilometres through eighteen traffic lights, past a number of shopping precincts and schools, and was grossly intoxicated. These features, his Honour said, elevated the objective seriousness of both matters. His Honour said he was satisfied there had been an abandonment of responsibility by the Respondent. 101 His Honour referred to the Respondent's record which was confined to driving matters but involved the serious offence of driving with a high range PCA on 12 November 2005 where she was she was fined $1,000 and disqualified from driving for 12 months. His Honour noted that her driving record had been very good until the first few years of this century, and that the significant matters only occurred from 2005 onwards which was at least in large part due to changes in her personal life from about 2000. His Honour said that he treated her record as one which permitted less leniency rather than as an aggravating factor. 102 His Honour then dealt with the subjective matters and drew attention in particular to the problems which developed in her marriage. He accepted that the result of those problems was that she came to have a dependence on alcohol. She also suffered depression and made a number of suicide attempts, and had ongoing psychiatric and psychological treatment. 103 He noted that the pressures on her at the time of the offences were not only pressures involving her ex-husband and son but also work pressures. His Honour accepted that she was depressed at the time of the events. Nevertheless, he found, as a result of evidence from her treating psychiatrist Dr Nielssen, that her prospects of rehabilitation were very good, and he considered it unlikely that she would re-offend. 104 His Honour, having earlier noted that both Jurisic and Whyte had determined that a custodial sentence of less than 3 years where a death had been caused and 2 years where serious bodily injury had been caused, was exceptional where s 52A(4) offences were charged, and having noted what had been said in Borkowski that manslaughter stood at the pinnacle of the structures of motor vehicle offences, went on to consider a number of cases that involved motor vehicle manslaughter including R v Do [2000] NSWCCA 459, R v Cramp [1999] NSWCCA 324 and R v Cameron [2005] NSWCCA 359. 105 His Honour found special circumstances, and to that end he sentenced her to a non-parole period of 3 years with a head sentence of 5 years in relation to the manslaughter count. The special circumstances were found on the basis that it would be her first time in custody and, because his Honour accumulated the fixed term of imprisonment of 2 years for the dangerous driving offence, she would be in custody for a total of 4 years and that would take her out of the workforce for a long time.

[75]

(4) The sentences are manifestly inadequate 123 Apart from the submissions made in relation to Grounds 2 and 3 which are here taken into account, the Crown points to the following factors as indicating that the sentences were manifestly inadequate: The maximum penalties for the offences are 25 years and 11 years respectively. The respondent's criminal and driving history are such as not to afford her the leniency which might otherwise have been afforded. The respondent was sentenced following trial and is therefore not entitled to any discount pleas would have engendered. There was no evidence of remorse. The report of Dr Nielssen (exhibit 2) at page 2 notes that the respondent "remains convinced that her alcohol consumption and subsequent actions were not under voluntary control." Already built into the Whyte judgment is that the offender is young, is remorseful and has entered a plea of guilty approximating ten percent. See R v Nguyen [2008] NSW CCA 113 at [39]. 124 His Honour made reference to the facts in Cameron, Borkowski, Do and Cramp. His Honour evidently regarded Cramp and Borkowski as being amongst the worst cases of the type, but held that the present case was not in that category. 125 In Borkowski the Respondent was engaged in racing 2 other vehicles along the Great Western Highway at a speed of about 120kph in a 60kph speed zone. The Respondent had a blood alcohol reading of 0.031 at the time a blood sample was taken in hospital but the expert Dr Perl thought that his blood alcohol level at the time of the collision was likely to have been 0.063. The blood also revealed the presence of the residue of cannabis, and Dr Perl was of the opinion that there would have been some impairment of driving skill from intoxication both by alcohol and drugs. The vehicle he was driving struck a vehicle that was making a right hand turn out of the highway into a side street, killing the driver and passenger in that vehicle. 126 The Respondent pleaded guilty to two charges of manslaughter on arraignment in the Penrith District Court. He was sentenced to a total sentence of 6 years non-parole with an additional sentence of 3 years. 127 Howie J (with whom McClellan CJ at CL and Simpson J agreed) thought that the sentences were manifestly inadequate but the Crown appeal was dismissed for reasons of parity with the co-offender where no Crown appeal had been brought. Howie J thought that, but for the parity principle, the very least sentence that could have been imposed was a total sentence of 12 years with a non-parole period of 9 years. 128 In R v Cramp the Appellant was found guilty of manslaughter. The deceased was a learner driver. The Appellant encouraged her to drive his car because he was too drunk to drive it. The deceased was aged 16 years and she had also drunk alcohol to the Appellant's knowledge. They drove in the car with the deceased's 2 younger brothers. She drove the car to a speed of 150 kph at the urging of the Appellant. In the midst of the driving they stopped at a tavern and both the Appellant and the deceased consumed more alcohol. They bought a case of beer and some red wine. The deceased continued to drive at high speeds at the Appellant's urging. On 3 occasions they stopped and each drank more beer. The driving took place over a 3 hour period and the car travelled approximately 35 kilometres. The younger brothers urged the deceased to slow down on a number of occasions.

[76]

129 Ultimately the deceased lost control of the car. She was killed instantly and the Appellant received severe head injuries. The blood alcohol concentration of the deceased was 0.167. The blood alcohol concentration of the Appellant was 0.103 some 5 hours after the collision. Expert evidence thought his range at the time of the collision would have been between 0.13 and 0.178. 130 The Trial Judge sentenced the Appellant to a non-parole period of 7 years with an additional term of 2 years and 4 months. The Appellant appealed against the sentence on the basis that it was excessive. 131 Barr J, with whom Sully and Ireland JJ agreed, said that the case was of such a serious nature as to be seen as falling into the worst category of cases of its kind. They said the sentence imposed was not manifestly excessive. 132 In Jurisic the Respondent pleaded guilty to 3 charges of dangerous driving occasioning grievous bodily harm. He was driving his vehicle north along the Warringah Freeway at Naremburn when his vehicle left the northbound roadway, mounted the nature strip and crossed 2 lanes of the southbound side and collided with the front and driver's side of a vehicle travelling south. The driver, his wife and 3 children who were all passengers were quite severely injured in the accident. 133 The Respondent himself was injured and when a blood sample was taken from him at Royal North Shore Hospital it was found to contain less than 0.05 mg of cocaine per litre of blood. Dr Perl gave evidence that the Respondent would most likely been under the influence of cocaine at the time of the accident to the extent that his driving ability would have been impaired. 134 The Respondent had suffered a mild head injury at the age of 14 which caused some form of brain damage and resulted in later behavioural and personality changes. He had a poor driving record including a dangerous driving charge where he was disqualified from driving for 3 years and another offence of driving whilst disqualified where he was sentenced to 100 hours community service. 135 The Trial Judge sentenced him in relation to the charge concerning the driver of the other vehicle to imprisonment for 18 months with a minimum term of 9 months to be served by home detention and an additional term of 9 months also to be served by way of home detention. In relation to the other 2 offences he was placed on a 2 year good behaviour bond. 136 Sully J, who gave the principal judgment of a 5 bench Court said that the sentence imposed was manifestly inadequate. He said that the appropriate sentence was a 2 year period apportioned equally between a minimum and additional term to be served by full time custody. He said absent the very special subjective features he would have thought that an aggregate sentence of 4-4½ years with a minimum term of 2½ years would not have been appellably severe. 137 Spigelman CJ said that he did not agree that a sentence of 4 - 4½ years would have been appropriate but agreed with the sentence proposed by Sully J. The other members of the Court agreed with the sentence proposed but BM James J and Adams J appeared to have preferred Spigelman CJ's reasoning for allowing the appeal, although nothing specific was said about Spigelman CJ's view of a sentence of 4-4½ years. 138 In R v Do the Respondent drove his fully laden truck with a gross weight of 21 tonnes along Mona Vale Road. When he reached the top of a hill on the road he was seen to accelerate away very quickly reaching in what Beazley JA described as a "terrifyingly high speed". Thereafter, he tried to put the truck into gear and control it. However, at the bottom of the hill the truck mounted the concrete apron of a roundabout, crossed to the other side of the road, then swung back to the correct side of the road, mounted a bank and, having left the ground, when it hit the ground again collided with a car killing the driver. The truck then continued through a barrier and brick wall and crashed into a brick veneer house killing a young occupant in that house. 139 The jury found the Respondent guilty on each of the two charges of manslaughter implicitly finding that he was guilty of gross criminal negligence. The trial judge held that that necessarily connoted a finding of an initial abandonment of responsibility. 140 The Respondent was sentenced on each charge to imprisonment for 4 years comprising a minimum term of 3 years with an additional term of 1 year. His Honour ordered that the sentences be served concurrently. He was not affected by drugs or alcohol at the time of the accident. 141 The Crown appealed on the basis that the sentences were manifestly inadequate. 142 Beazley JA, with whom Wood CJ at CL and O'Keefe J agreed, first made reference to what had been said by the Chief Justice in Jurisic. She said that in the case before the Court the level of seriousness was greater than was the case in Jurisic. However, although the sentences were at the very bottom of the range, they were not manifestly inadequate. 143 In Cameron, the Respondent was charged with 3 counts of manslaughter and one count of aggravated driving in a manner dangerous causing grievous bodily harm. The Respondent had never had a driving licence but was permitted by the owner of a powerful 5 litre V8 car to drive it at the Respondent's request. There were 4 other persons in the car including the car's owner.

[77]

144 The Respondent's blood alcohol content at the time a blood sample was subsequently taken in hospital was 0.114. Expert opinion was that at the time of collision it was higher. 145 The Respondent drove into the town area in Parkes into a 50 kph speed limit zone at speeds in excess of 100 kph. He lost control and ultimately smashed into a telegraph pole splitting the vehicle in two. The rear section of the vehicle caught fire. Two of the back seat passengers were ejected from the car, one dying immediately and one dying two days later. The other back seat passenger was incinerated in the vehicle. The front seat passenger suffered only a comminuted fracture of the right distal radius. 146 The Respondent had prior convictions and was on a 2 year good behaviour bond at the time of the offences. On each count of manslaughter the Respondent was sentenced to imprisonment for six years with a non-parole period of 2 years. There was partial accumulation of the sentences with the overall period in custody being 4 years with an additional 4 years sentence. The Crown appealed on the basis of manifest inadequacy. 147 Grove J, with whom McClellan CJ at CL and Hislop J agreed, determined that the Respondent's conduct must be regarded as being of a high order of culpability. 148 Grove J made reference to manslaughter being a more serious offence than an offence charged under s 52A, and made reference to R v Ryan (2003) 39 MVR 395 where this Court imposed a 4 year non-parole period with an additional 2 year period in a manslaughter by driving case where there was a single victim. 149 Grove J held that the sentences were manifestly inadequate. He assessed the appropriate sentence for each count of manslaughter as consisting of a non-parole period of 4 years and a balance term of 3 years. When the sentences were partially accumulated the overall sentence was a minimum custody period of 6 years and a balance term of 3 years. 150 When measured against these decisions, although the Trial Judge can be said to have exercised a measure of leniency in the sentence, it is in my opinion not able to be categorised as manifestly inadequate. Although the Trial Judge's finding of abandonment of responsibility meant that there was a high degree of moral culpability and a high level of objective seriousness, the case was not in the worst category of cases of its type. Whilst it is true that the Respondent drove the car for more than 9 kilometres in the circumstances the Trial Judge described, there was no evidence of dangerous driving in itself until the time of the accident. There is no suggestion that she exceeded the speed limit at any time nor offended any other road rules. 151 That is not to diminish the grave seriousness of driving for that distance and in those circumstances with a blood alcohol concentration of 0.277. Apart from the offence of driving with a high range PCA some 18 months before the present offences, her driving record, whilst not unblemished, was probably no worse than many other drivers on the road, and those infringements had taken place quite a number of years before the present offences. The Respondent was otherwise of good character and some weight had to be given, as his Honour undoubtedly did, to her emotional and psychiatric problems including even the trigger for the commission of these offences. 152 It cannot be said that an overall sentence of 4 years non-parole with an additional 2 years does not represent a deterrent on both a personal and general level. His Honour found that she had not had alcohol for more than 2 years, that her prospects of rehabilitation were very good, and it was unlikely that she would re-offend in a similar fashion. There is nothing to suggest that those findings were not justified from the evidence. The particular personality and psychiatric problems suffered by the Respondent make this case of less significance from a point of view of general deterrence. In that regard, it is to be contrasted with the offenders in Borkowski, Cameron and Cramp. When the sentences imposed in the present case are seen alongside the sentences ultimately held to be appropriate in those 3 cases, it can be seen that the present sentences are not either outside the range of appropriate sentences nor disproportionately lenient. 153 The sentences imposed by his Honour were, as I have said, towards the bottom of the range in all the circumstances. However, they do not, when the subjective factors are considered and a comparison is made with the other decisions, amount to manifestly inadequate sentences.

Woodbridge v R

At a glance

Court

Decision date

Before

Source

Judgment (79 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (41)

Cited By (17)