Ashley Laidler v Michael Christopher Spong (a.k.a Donlan)
[2021] ACTMC 18
•17 December 2021
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ashley Laidler v Michael Christopher Spong (a.k.a Donlan) |
Citation: | [2021] ACTMC 18 |
Hearing Dates: | 16 December 2021 |
DecisionDate: | 17 December 2021 |
Before: | Magistrate Stewart |
Decision: | See paragraphs [47] to [51] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Culpable Driving Causing Grievous Bodily Harm – imprisonment – suitability of intensive corrections order or suspended sentence order – s 7 considerations - rehabilitation of youthful offenders |
Legislation Cited: | Crimes Act 1900 (ACT) Crimes Sentencing Act 2005 (ACT) Road Transport (General) Act 1999 (ACT) Road Transport (Vehicle Registration) Act 1999 (ACT) Motor Accident Injuries Act 2019 (ACT) |
Cases Cited: | Murray v IA [2020] ACTSC 288 R v Forrest(No 3) [2017] ACTSC 168 R v Fountain [2018] ACTSC 329 R v Higgins [2020] ACTSC 299 R v Judge [2021] ACTSC 118 R v Koosman [2004] NSWCCA 539 R v Ogle (No 2) [2018] ACTSC 126 R v Singh [2017] ACTCA 17 R v Toumo’ua [2017] ACTCA 9 R v Verdins [2007] VSCA 102 R v Whyte [2002] NSWCCA 343; 65 NSWLR 252 Slaviero v Nabytowiccz-Cannizzaro [2021] ACTMC 11 |
Parties: | Ashley Laidler (Informant) Michael Christopher Spong (a.k.a Donlan) (Offender) |
Representation: | Counsel Mr K Ginges (Offender) |
| Solicitors Ms M Smith (Office of the Director of Public Prosecutions) Hugo Law Group (Offender) | |
Charge numbers: | CAN 4755/2021, CAN 4756 /2021 and CAN 5093/2021 |
MAGISTRATE STEWART:
Introduction
The offender is charged with one count of culpable driving causing grievous bodily harm contrary to s29(4) of the Crimes Act 1900 (ACT). On conviction, the offence carries a maximum penalty of 10 years imprisonment. Because the offender has consented to the jurisdiction of this Court the maximum sentencing jurisdiction is five years imprisonment pursuant to s375 of the Crimes Act 1900 (ACT).
An automatic driver licence disqualification period applies for this offence pursuant to s62(1) of the Road Transport (General) Act1999 (ACT). For a first-time offender that disqualification period is six months, or longer if so ordered by the court.
The offender is also charged with one count of use unregistered vehicle contrary to s18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT) and one count of Use Uninsured Vehicle contrary to s289(1) of the Motor Accident Injuries Act 2019 (ACT). Those offences are punishable by fine only and carry a maximum penalty of 20 and 50 penalty units (being $3200 and $8000) respectively.
The offences occurred on 17 February 2021 and the offender pleaded guilty on the second mention before the Court on 01 October 2021.
In addition to the oral submissions made yesterday by counsel, the oral evidence of the offender and the victim impact statement of Harrison Royal read out by the Crown prosecutor, I have considered the following:
(a)Prosecution bundle comprising the pre-sentence report dated 14 December 2021, Restorative Justice report dated 09 December 2021, 7 photographs of the collision scene, expert medical report of Dr French dated 19 August 2021 and a hard copy of the victim impact statement of Harrison Royal dated 02 November 2021;
(b)Offender’s written sentencing submissions;
(c)Defence tender bundle comprising letter from the offender’s mother dated 09 December 2021, a letter from the offender himself dated 15 December 2021, two letters from Dr Rodney Blanch dated 02 September 2021 and 26 November 2021, two appointment confirmations with the offender’s psychologist, a defensive driving course completion certificate dated 10 July 2021 and the purchase receipt for the destroyed vehicle;
(d)Psychological Assessment of Dr Clout dated 27 November 2021;
(e)Australian Federal Police (AFP) statement of facts; and
(f)The prior good character of the offender, demonstrated by the absence of a criminal history.
Factual Circumstances
The AFP statement of facts discloses that at about 12.55pm on 17 February 2021 the offender was driving his Toyota Corolla in a westerly direction on Belconnen Way at Aranda. The victim, Harrison Royal was seated in the front passenger seat. They were returning from lunch and heading back to the Canberra Institute of Technology where they were both studying.
Traffic was light for the time of day, the road was dry and the weather was fine and clear. The posted speed limit was 80 km/hr.
The offender sped up well beyond 80 km/hr – the victim saw the speedometer reach 160 km/hr and the offender himself admitted travelling at between 160 and 180 km/hr in his interview with police that day. AFP experts would later calculate that the car was travelling at approximately 152 km/hr when the offender eventually lost control.
The offender passed another car at speed described by another driver as “like a missile”. That driver was left angry and scared at the sheer speed of the offender’s car.
The offender came upon another vehicle ahead of him in the same lane and took evasive action by moving his car out of the third lane towards the southern side of Belconnen Way. Apparently this was well beyond the handling capabilities of the vehicle and it rotated 180 degrees and commenced travelling rearwards off the southern side of the road.
The car hit a timber fence and destroyed a section of it. The victim’s door area impacted with a tree and the car overturned onto its roof and collided with a road sign prior coming to rest.
Significant structural damage was caused to the car’s passenger side area where the victim was. He was badly injured and it took about 90 minutes for rescue authorities to extricate him from the wreck.
The offender received a broken nose.
The victim suffered a C1 spine fracture, a right occipital condyle skull fracture, a diastis of the right occipito-mastoid suture, a left orbital wall fracture, frontal lobe brain bruising and intracranial haemorrhage, a large subdural haematoma, a scalp haematoma, a left manubrial fracture with associated haematoma, a left femoral midshaft displaced fracture, a right femoral displaced fracture, right knee ligamentous fracture, splenic haemorrhage, right ear hypotympanum, scalp laceration, left neck laceration, facial haematoma, left eye orbital bruising, left chest bruising, left flank and abdominal bruising, a bruise to his left wrist, facial abrasions and abrasions to his right lower leg.
Surgical intervention was required and the victim suffered further insult from a combination of his injuries and surgery – haemorrhagic shock, acute trauma coagulopathy, double vision, impaired power and sensation in his right leg, low potassium and low magnesium. The first two of those insults were life threatening. He was hospitalised for 10 days and suffered a long and lonely recovery through a COVID lockdown period.
The victim impact statement told a significant story of physical and psychological harm, loss, fear, sadness, residual pain, discomfort and the embarrassment of a possibly permanent limp. It is a story that young drivers should be able to read and serves as a stark reminder of the destructive power held in a driver’s right foot.
Despite all of that Mr Royal is not bitter and has not sought that the offender be punished in any particular way. Through his statement he has chosen to lead by example with balanced language, maturity and mercy and the Court thanks him for it. Mr Royal’s victim impact statement has been given the fullest of consideration by me.
Subjective Circumstances
The offender is of good character and is not known to the Court. He was born in 2002, was 18 at the time of the offending and is now just 19 years old. He is amongst the most junior cohort of offenders that this Court can sentence. Nonetheless, he is an adult and is to be sentenced as one – albeit a very young one who was little more than a youth when he offended.
The pre-sentence report and report of Dr Clout paint a picture of a troubled young man who was raised by his mother, and in good part, by his grandparents. He resides with his mother, her new partner and two young siblings, including a baby. He helps out at home with his siblings and has developed a strong bond with the elder of the two.
He has not known his biological father since the age of four but is aware that he was an abusive man and the family violence he and his mother endured has left an enduring effect upon him.
The offender is single and has had one previous serious relationship. He completed year 12 and has demonstrated a genuine work ethic, returning to the retail industry after finding an apprenticeship in the construction industry was not for him.
He has a small circle of close friends and plays video games and spends time on his phone when not working or helping at home. His use of alcohol is so minimal as to be irrelevant and he has no history of illicit drug use.
The offender gave short evidence about his mental health yesterday. He is taller than average, quite slightly built and he gave me the impression of possessing a gentle and subdued personality. I agree with his counsel’s assessment (and also Dr Clout’s) that he would not tolerate or endure the rigour of the custodial environment with any great success.
Mental ill-health has been an issue for the offender for some years. Dr Clout noted symptoms consistent with Major Depressive Disorder in the months leading up to the offending and thereafter. Those symptoms were substantiated by reference to treating general practitioner and psychologist records from late 2020. The reality of the offending has contributed to those symptoms.
It is clear that the offender has a poor self-image, self-blames for a variety of matters including the offending and most importantly accepts full responsibility for his offending. This must be balanced against the very high level of moral culpability present in his offending,[1] but his deep and genuine remorse will be given full weight.
The offending has added a diagnosis of post-traumatic stress to the offender’s woes. He is also likely to be suffering from an adult presentation of ADHD.
Despite there being no evidence about a link between his illness and impulsivity I was asked to draw such a link by drawing upon the great well of judicial notice. I decline the invitation to do so.
The offender requires ongoing and intensive psychological treatment for his continuing metal health and traumatic childhood experiences.
His mental ill-health does satisfy the criteria to enliven the Verdins principles in a limited sense.[2] I accept Dr Clout’s opinion that a custodial sentence will have a greater effect on him than a person in normal health (meaning mental health here) and it would also likely have a further significant adverse effect on his mental health. I take that into account.
All of the offender’s mental health is of significant relevance to the s33 considerations that I must consider.[3]
Finally, it is important to note that the offender has attempted to take part in restorative justice with the victim. That process was not successful and it has not been disputed that the offender was a willing participant.
I have formed the view that the community does not require protection from the offender,[4] but that he does require punishment, to be held accountable and that this sentence should denounce his conduct, that his offending should be met with a sentence that serves as a deterrent to other drivers, and that his continued rehabilitation is to be promoted by this sentence. The harm that he has done to Mr Royal must be recognised.
It is clear and it is accepted that a sentence of imprisonment is called for and is also inevitable in the circumstances. Nothing less would suffice. The prosecution advocates for a sentence that includes a portion of actual imprisonment – the defence advocates for a sentence spent entirely in the community. Thus, the nub of this decision is how long that sentence must be and how it is to be served.
Objective Seriousness
As her Honour, my learned sister, Chief Magistrate Walker pointed out in Slaviero v Nabytowiccz-Cannizzaro [2021] ACTMC 11, the maximum penalty of 10 years imprisonment (5 years in this Court) and the fact that the section for this charge is in Part II of the Crimes Act which is headed ‘Crimes Against the Person’ are salutary reminders of just how serious this offence is in the whole scheme of the criminal calendar.
His Honour Mossop J adopted part of the decision of R v Whyte [2002] NSWCCA 343 (‘Whyte’) in his decision in R v Ogle (No 2) [2018] ACTSC 126 (‘Ogle’). Whyte is a guideline judgment that set out the aggravating features for the equivalent New South Wales (NSW) offence which carries a maximum penalty of seven years. I have made my own observations following each feature where relevant:
(i)The extent and nature of injuries suffered – relatively extreme as outlined above (see paragraphs [14]-[16]);
(ii)Number of people put at risk – a number of other road users in the light traffic of the day;
(iii)Degree of speed – extraordinarily high being somewhere between 72 to 100 km/hr over the 80 km/hr posted speed limit;
(iv)Degree of intoxication or substance abuse – not relevant here;
(v)Erratic driving – relevant to the sudden avoidance measure taken;
(vi)Competitive driving or showing off – it was accepted that there was an element of showing off to the victim;
(vii)The length of the journey that other drivers were exposed to risk – many hundreds of metres with the offending only stopped by the collision; [5]
(viii)Ignorance of warnings – the mere presence of other vehicles should have served as a warning;
(ix)Escaping police or pursuit – not relevant here;
(x)Degree of sleep deprivation – not relevant here; and
(xi)Failing to stop – not relevant here.
As in Ogle, the degree of speed and the extent and nature of the injuries caused loom as the most significant aggravating features. In my view the absence of the common aggravating feature of intoxication is also highly relevant.
The fact of presence of many of the Whyte aggravating features points to the objective seriousness of the matter as being high. To comply with several decisions of the Supreme Court I decline to attempt to ‘pitch’ or attempt to unhelpfully define where the objective seriousness lies in a continuum of least worst to worst.[6] I think that it is enough for me to opine that it is somewhere around the median level.
As I noted during submissions it is offending that might be categorised as foolish and immature. It was also devastatingly culpable.
Considerations
I have repeated the s7 considerations relevant to the sentence above. Considerable weight must be given to the offender’s very young age, the absence of any criminal history and the absence of further aggravation by intoxication or illicit drug use.
The offender recognises his mental health issues and has well and truly commenced down the path of rehabilitation in the sense of dealing with those issues. He will require lengthy ongoing assistance to deal with them. Given his age, my view is that rehabilitation is a paramount consideration in this sentence.
The offender submits through Counsel that he has matured significantly during the progress of this matter. He is almost acutely contrite.
The submission of Counsel on a broad sentence range of one to two years imprisonment is well placed and reflected in a general sense by the cases provided. I have not found any features to instinctively put the matter outside either end of that broad range. I am politely reminded by Mossop J in Murray v IA that sentences are not binding precedent,[7] however they are a useful guide or yardstick at times.
A sentence of imprisonment served outside the community would have a punitive effect and send a message to the community that attempts to dissuade other drivers from a similar display of culpable driving. It would be very harsh and also have the effect of a reversal of rehabilitation for this particular offender and, I think, is not the only way that this matter can be dealt with.
The objective seriousness is greater than R v Fountain both in the manner of driving and the harm caused. [8] A wholly suspended sentence would not adequately reflect the gravity of the offending and would probably do little to promote the intensive rehabilitation required by the offender in his circumstances.
I do not think that a partially suspended sentence is the only way that this matter can be sentenced either – although I accept that many of the authorities point that way in a popular sense – see for example Ogle, Nabytowiccz-Cannizzaro and R v Judge.[9]
Ultimately I have concluded that all of the relevant s7 criteria are satisfied by a sentence served by intensive corrections order. No less is satisfactory and no more is called for. It should be pointed out that although R v Higgins was tendered and arrives at loosely the same outcome, [10] I have not found the facts of that matter to be a particularly useful comparison in determining how this particular matter should be resolved.
Sentence
Convictions are recorded on each of the three charges.
The appropriate sentence for CC21/4755, the culpable driving charge, is one of 20 months reduced to 15 months on account of the guilty plea.
The sentence is to be served by way of Intensive Corrections Order (ICO).
I impose a disqualification of 6 months.
Fines of $685 and $917, totalling $1602, are imposed and are to be paid within 6 months for the associated offences of CC21/4756 Use Unregistered Vehicle and CC21/5093 Use Uninsured Vehicle.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Stewart Associate: Maddison Higgs Date: 17 December 2021 |
[1] R v Koosman [2004] NSWCCA 359 at [32].
[2] R v Verdins [2007] VSCA 102 at [32].
[3] S 33(m) Crimes (Sentencing) Act 2005 (ACT).
[4] S 7 Crimes (Sentencing) Act 2005 (ACT).
[5] And, no doubt, passengers of the offending vehicle as well.
[6] R v Toumo’ua [2017] ACTCA 9 at [24]; R v Forrest (No. 3) [2017] ACTSC 168 at [41]; R v Singh [2017] ACTCA 17 at [35].
[7] [2020] ACTSC 288 at [29].
[8] [2018] ACTSC 329.
[9] [2021] ACTSC 118.
[10] [2020] ACTSC 299.
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