Croker v The Queen

[2020] NSWDC 759

District Court

New South Wales

Medium Neutral Citation:

Croker v R [2020] NSWDC 759

Hearing dates:

03 November 2020

Date of orders:

03 November 2020

Decision date:

03 November 2020

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

(1) Allow the appeal.

(2) Confirm the conviction.

(3) Confirm the Community Correction Order and fine imposed by the Local Court.

(4) Vary the disqualification period to 12 months to date from today.

Catchwords:

APPEALS — Jurisdiction of appellate court — District Court

APPEALS — Nature of appeal — Functions of appellate court

APPEALS — Right of appeal — Scope of right

SENTENCING — Aggravating factors — Substantial harm, injury, loss or damage — Victim impact statement

SENTENCING — Appeal against sentence — Powers of court

SENTENCING — Appeal against sentence — Role of appellate court

TRAFFIC LAW AND TRANSPORT — Traffic law — Licensing of drivers — Disqualification

TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Negligent driving occasioning grievous bodily harm

Legislation Cited:

Crimes Act 1900

Crimes Appeal and Review Act 2001

Crimes (Sentencing Procedure) Act 1999

Road Transport Act 2013

Category:

Principal judgment

Parties:

Jennifer Croker (Appellant)
Regina (Crown)

Representation:

Rosa Sharma (Crown)
Matthew Johnston SC (senior counsel for the Appellant)

Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2020/00068513

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

08 September 2020

Before:

Kennedy LCM

File Number(s):

2020/00068513

REVISED EX TEMPORE JudgEment

Introduction

1. Jennifer Croker pleaded guilty in the Local Court in the Downing Centre to an offence of negligent driving causing grievous bodily harm contrary to s 117(1)(B) Road Transport Act 2013.

2. The maximum penalty specified for this offence is imprisonment for nine months with a fine represented by 20 penalty units and an automatic period of disqualification of three years that can be reduced to 12 months in the exercise of the Court’s discretion if there is merit in that course.

3. The magistrate convicted the appellant, ordered a Community Correction Order for a period of two years to date from 8 September 2020, imposed a fine of $1,500, and reduced disqualification from the automatic period to two years to date from 8 September 2020.

4. An appeal was lodged on 8 September 2020, within 28 days of the conviction which occurred on 12 August 2020. As a consequence, pursuant to s 63 Crimes Appeal and Review Act 2001, a stay operated.

5. The matter was allocated to my Court this morning for determination.

The Evidence

6. The Crown provided a bundle of material, which has been marked exhibit A. It includes a victim impact statement provided by the victim to the magistrate which has been supplemented with a further document that the victim read in Court today.

The Legislation

7. The provision creating this offence was introduced by parliament to operate from July 2013. Before then amongst the offences that were created to control the users of motor vehicles in New South Wales there was an offence of negligent driving which carried as I recall it a maximum penalty represented only by a fine regardless of whether injury resulted. The next level of criminality where injury was occasioned was provided in the Crimes Act 1900 for offences of dangerous driving causing grievous bodily harm and when appropriate, the offence of manslaughter.

8. There were and continue to be offences within the Road Transport Act 2013 of dangerous driving, reckless driving or driving furiously, which involve a disregard of obligations by drivers at a higher level than the lesser offence of mere negligent driving. I use the term “mere negligent driving” not to diminish the significance of such an offence but to demonstrate the comparison or contrast to be drawn between the levels of criminality that are implied in the various offences on the spectrum provided by the legislation.

9. From July 2013 parliament provided offences of negligent driving but with consequential elements of grievous bodily harm or death. Thus, someone who drives negligently and occasions grievous bodily harm, such as in this case, is exposed to a maximum penalty that includes imprisonment as well as a fine and a significant period of disqualification. In such a case the assessment of objective gravity of the offending that the Court must consider includes not only the manner of driving but also the consequences of the driving when it is found to be negligent. The more profound those sequelae from driving demonstrating a want of care on the part of the person in charge of the motor vehicle, the more serious the offence.

The Submissions

10. In this case I am urged by the Crown to take the view that what the magistrate did was appropriate to the circumstances that were before the Court and now before this Court, even with the supplemental material that has been provided.

11. On behalf of the appellant it is argued the objective seriousness of the offence should be seen to be below mid-range, perhaps toward the lower end of the scale of objective seriousness, which when synthesised with the compelling subjective case presented on behalf of the appellant would lead the Court to take the course of imposing a conditional release order without conviction, thereby to avoid the impact of disqualification, and because of the burden for the appellant otherwise, particularly with regard to the care she provides her mother.

12. It is upon these premises that I am now called upon to consider the matter before me which will require some careful analysis.

The Offence

13. The appellant I note is a person of good character, and I shall make further reference to the evidence in support of that when I come to deal with the case presented on her behalf. She is now 36 years of age and has no antecedent criminal offences. There have been three traffic breaches in her past, one of which I am told resulted in a caution, the other attracted penalty notices upon which she paid fines. The offences according to the fact sheet were speeding at less than 15 kilometres over the limit, driving contrary to a stop sign and speeding at less than 20 kilometres per hour over the limit.

14. The offence occurred in the following circumstances.

15. Around 7.33pm on Monday 16 September 2019 the appellant was driving her Toyota Yaris in Margaret Street, Sydney. The collision occurred at the intersection of that street with Clarence Street. Clarence Street runs north-south, Margaret Street east-west, and to the west of the intersection Margaret Street declines significantly for motorists travelling west, and inclines correspondingly for motorists travelling east.

16. The intersection is controlled by traffic lights. The appellant drove west in Margaret Street towards Clarence Street and stopped at the traffic lights. As was pointed out, the intersection is marked with a solid white line where the appellant was required to stop to comply with the traffic light facing her. Further on, by a few metres, there is a pedestrian crossing with broken lines. She came to the intersection; she stopped at the solid white line. The traffic light for westbound traffic showed green save that there was a red arrow preventing her from making a right turn.

17. It was dark as indicated in the CCTV that was played to me here today. There was reference to pedestrians, two of them, crossing on the eastern side in Clarence Street across Margaret Street in front of the point where the appellant came to stop. They apparently were crossing illegally and against the traffic lights, not an uncommon practice in the Sydney CBD.

18. As they passed her vehicle the red arrow extinguished and she was then able to move forward and make a right-hand turn subject to her obligation to ensure that there was no oncoming traffic with which she might collide in her manoeuvre.

19. Contemporaneously, the victim was riding east in Margaret Street, up the incline and across the intersection on a motorcycle. She continued across the intersection at the same time as the appellant continued her right-hand turn, which I accept was at a low speed, and the front of her vehicle collided with the offside of the motorcycle and the motorcyclist with the consequences of injuries to the motorcyclist, to which I shall come shortly.

20. The recording of the event on the closed-circuit television shows the appellant to drive off from her stationary position in the execution of the right turn, and that she slowed as she did so and as the motorcycle was approaching. There is no evidence of this next point but in so controlling the vehicle it gives rise to the risk that motorists coming in the opposite direction could be allowed the perception that they had been seen and that the driver in the position of the appellant was meeting their obligation, which was to stop and allow the other vehicle to pass before they continued their turn.

21. It cannot be known whether that was in the mind of the victim, because she has according to the material provided in the Crown bundle no memory of the impact, which is hardly surprising in light of the extensive injuries that she suffered, but it remains that the manoeuvre of the appellant’s vehicle included her commencement from the stationary position, her slowing, and then an increase ever so slightly in her speed to the point of impact.

22. The impact caused the victim to be knocked from the motorcycle; she landed about six metres away. Witnesses called emergency services. Police arrived; they observed injury to the victim’s knee. She was taken to St Vincent’s Hospital. The appellant remained at the scene. A form of demand was administered by the police and she told them that she did not see the motorcycle before turning as there is a blind hill. She said she saw the motorcycle at the very last second before impact.

23. Police were unable to speak with the victim because of the extent of her injuries and incapacitation, but on 26 September 2019 they attended upon her at the St Vincent’s Hospital and obtained her version of the events. She said she remembered messaging her wife as she left work but does not remember anything from immediately prior to impacting with the vehicle. She listed her injuries which included a shattered kneecap, compound fracture of her right leg, 50% of the bones in her right foot were broken. There were several rib fractures, a punctured lung, three fractured vertebrae and a bleed on the brain with post-traumatic stress.

The Victim Impact Statement

24. A victim impact statement was provided for the Magistrate’s Court; it is of some length. I have read it throughout and noted a couple of compelling representations from it. The victim considered herself to be healthy, fit and active prior to this collision. She attended a gymnasium frequently when not working. She trained in group classes and trained alone. She ran and hiked both alone and with her partner. All of that is now denied to her.

25. I note that she is in Court today in a wheelchair. I note that when she read her victim impact statement prepared for this Court she exhibited difficulties with the pronunciation of a number of words that she read to me, consistent with the sequelae otherwise described in this material. Her statement describes her employment and career path and the impact the injuries have had upon the opportunities that she once enjoyed.

26. She has written of the collision and included that the driver did not give way, was distracted, and that it is her belief from what she saw, and her memories surrounding the crash, that the appellant was on her phone up to the point when the collision occurred. There is no evidence of that to allow a finding in any such terms.

27. I have no difficulty accepting that the victim has a memory in those terms and sincerely believes those propositions to be the fact, but I cannot proceed upon that belief in the absence of evidence to establish that the appellant was so behaving.

28. She describes her injuries as catastrophic, which is an apt description. She writes of her brain bleed, her punctured lung, her eight broken ribs, her fractured vertebrae in four places, extensive injuries to her right leg, her kneecap that was smashed and pushed into her thigh with so much tissue damage that it was represented to her, she said by paramedics, that she might lose her leg.

29. She had multiple open compound fractures to her tibia and fibula. 80% of the bones in her foot were broken. There is reference to photographs of her leg taken in the emergency department afterward of the injury sites and her leg straightened. They have not been included in my bundle.

30. She thought she was going to die. She writes of the intense pain that she suffered. She writes of the strong relationship she has with her partner and her gratitude for it.

31. Reconstructive surgery was required and fixation with plates and screws and a metal rod in her right leg. There was a graft to the knee with tissue taken from her left leg; this included skin, muscle and blood vessels and nerves transferred from the left leg to the right. This has had a cosmetic effect upon both of her legs. The operation was of some 13 hours overall.

32. Within two weeks of that procedure she required the surgery on her foot so that the bones there could be set to allow healing without impact from that process upon the reconstruction of her knee.

33. The brain bleed has left her with residual compromise. She has difficulty getting words out, reflected in her reading of the victim impact statement before me today. Her memory has been damaged. She has concern that this is how she will be for the rest of her life.

34. She has had continuing speech therapy. She has limited patience with children to whom she previously had access, born to her friends. She feels fear and anxiety when children behave as children do, usually in a noisy manner. She has limited social interaction now because of the difficulty that it presents to her.

35. She now feels that she does not have a filter to regulate her speech and behaviour and is the victim of uncontrollable impulses. She has an inability to regulate her body temperature. She and her partner planned to have a child, hoping for that blessing at the same time as her twin sister, but that is now lost to her. She is taking an array of medication. She continues to suffer with the sequelae of this collision.

36. She began life with body image issues and at 17 underwent a facial reconstruction to address that. This was apparently successful, because it gave her confidence and good self-perception. As a result of what has happened to her in this collision that has dissipated. She now suffers with low self-esteem, a lack of confidence, body image issues, depression, anxiety and post-traumatic stress.

37. There has been a financial impact upon her as a consequence of the collision, including loss of opportunity to earn income and difficulty in servicing her everyday financial needs, including mortgage repayments on their home. She describes the array of medication that she was taking for depression, slow release morphine for pain relief and other medication for nerve pain, an anti‑inflammatory, medication to assist her with toileting and medication to assist her with the development of acid in her stomach as a consequence of the other medication she is taking. At the time of the first statement she was injecting herself daily to protect from thrombosis or clots. She suffers post-traumatic stress attacks when in public. She wakes up screaming almost every night. Her limitations prevented her from travelling and thus when her mother passed she could not attend her mother’s funeral because she could not fly home to do so. She has not had access to her family because she could not continue to fly once or twice a year to spend time with them as a consequence of her injuries and financial distress.

38. She has a measure of anxiety about her relationship. She feels her partner is more her carer than her wife. She describes in greater detail the loss of financial circumstances and I need not rehearse that.

39. There is also reference to her perception the appellant did not attend to her immediately after the impact. Once again I accept that to be her perception but there is not sufficient material before me to take the view that the appellant did not do what the law requires of her, to stop and render assistance after such an event as this.

40. The victim writes of the effect of the appeal proceedings in her second victim impact statement. She found the strength to be able to write a further document expressing her current circumstances and it is in this document where she referred to the appellant as, “without so much as getting out of her car”.

41. It is difficult for the victims of offences, at whatever level, and their families, when the criminal justice process must be allowed to take its course. I accept that these further proceedings will have their impact upon the victim and cause her distress but that is not a matter that I can bring into account in determination of this appeal. The law by way of parliament provides for these proceedings to allow a Court at the next level from the Magistrates’ Court to consider the decision made by the magistrate to determine whether it is appropriate in all of the circumstances as they pertain at the time of the appeal. The appellant is doing no more than exercising the rights that she and all members of the community have when the subject of a criminal prosecution in our Courts.

42. The victim implores that I read the original impact statement, which I have done, to have an understanding of the catastrophic damage, as she described it, that she has suffered. In the document prepared later on in the progress toward her rehabilitation she records that she will never walk unaided again, there are still numerous surgeries that she must face, she cannot work; she has not been able to travel to be with her family. She has anxiety with the fear of what might have been the consequence had no members of the public come to assist her. She acknowledges the expression of regret and remorse given by the appellant’s lawyers in the Local Court and notes that she has received no direct apology from the appellant which not only causes her pain from her failure to be sensitive to the appellant’s needs.

43. Regarding this, the material tendered in the appellant’s case today includes a record of a communication by a police officer directing the appellant not to make contact with the victim. This is not an unusual request or advice from a police officer in the circumstances of any criminal prosecution or investigation. There is always the risk of other consequences notwithstanding what might be heart-felt regret and remorse that the appellant might wish to pass onto the victim because of the impact of the offence upon the victim and her family. It is wise counsel in my view for a police officer to advise an offender not to communicate with a victim against the risk of further difficulties thereby created.

44. I would ask the victim to accept that the appellant has, through her representatives and in compliance with what the police officer advised her, done all that she could to express her sorrow at having been responsible for what she suffered.

45. There is reference to the original “not guilty” plea which was changed to “guilty” not long before the original hearing, presumably it is said to have a lighter sentence. I do not bring that to account. The implication suggested is that the appellant has to some extent manipulated these processes. Anybody charged with a criminal offence is entitled to have the opportunity to consider whether the prosecution, represented by the police or the Crown, is in a position to prove an allegation that they bring against that person. It is their right. It is the right of all as members of our democracy. A plea of guilty that is entered must be given appropriate consideration in accordance with s 22 Crimes (Sentencing Procedure) Act 1999 with regard to the extent to which it reflects contrition and remorse and provides utility in the criminal justice process.

24. I accept that the victim, as she has written, has suffered an increase in her suffering as a consequence of the ongoing proceedings but it is not a matter that I can bring to account in the determination of this appeal.

25. This said, the relevant legislation provides an opportunity for a victim to present their statement describing what the impact of an offence has been upon them, and in some instances upon their family. This has two benefits. It gives the victim the opportunity to confront the perpetrator with the consequences of the misconduct that caused the injury, loss or damage. At the same time it gives the Court the opportunity to have a measure of insight into the magnitude of the injury, loss and damage suffered by the victim. It is appropriate to take into account the impact upon the victim of the offence when assessing the questions that must be answered in this exercise.

26. The victim impact statement however does not aggravate what is the true measure of the offender’s culpability in the misconduct upon which she engaged. It does not serve to aggravate or increase the punishment that is appropriate and proportionate to the assessment of the misconduct by the Court.

27. Such statements do provide a compelling reminder of what follows for victims who have suffered through the misuse of a motor vehicle. I drive each day. I have been a judge for the last 15 years and before that I appeared in various prosecutions in various capacities at the bar table, representing both the Crown and those charged with such offences. It is never lost upon me that motor vehicles mismanaged become quite lethal on the street and can have profound consequences when they are managed negligently, or driven dangerously at the more serious level of misconduct for which the legislation provides.

28. It is most often the case that people appearing in these Courts in appeals from magistrates, and before the magistrates at first instance, present certificates showing that they participated in a traffic offenders’ program, and that they represent to the Court that they have acquired insight into the impact of misconduct behind the wheel upon those who suffer injury and how easy it is to cause harm by ignoring the rules and regulations that govern the driving of a motor vehicle. Regrettably the Courts see those certificates after the event in which a person has been injured or an offence, perhaps not resulting in injury has been committed. This might reflect the inadequacy of the means whereby people are able to acquire a licence and then be qualified to drive a motor vehicle on our roads.

The Assessment of the Appellant’s Conduct

51. I had the opportunity to view the closed-circuit television. I have watched it three times in Court to see how the circumstances unfolded. I have already described what I saw. The material that was tendered before the magistrate included a report headed “vehicle speed calculation report”. By viewing the images the author of the document identified two points between which the motorcycle travelled and identified the time the motorcycle took to traverse that distance, and ultimately came to the view that motorcycle between the point when it entered the intersection and the point of impact was travelling at 41 to 44 kilometres per hour.

52. The report also raised the proposition that the motorcycle was possibly travelling at a faster speed when it approached the intersection, but slowed in relation to the presence of the appellant’s vehicle, and wrote at page 9:

“The author considered the likelihood that the motorcyclist entered the intersection at a higher speed and then the rider braked before impact. The angle at which the CCTV camera pointed at the intersection did not enable the author to see the motorcyclist’s brake light to determine (as I see) if the motorcycle rider braked before the impact. The recording did show that the car started to turn at, or just after the point, at which the motorcycle entered the intersection.

Normal driver reaction time is between 0.75 and 1.5 seconds. Given the short time and distance the rider had to react, it is unlikely that the rider had time to react and significantly reduce their speed before the impact. The range of 41 to 44 kilometres per hour is, in the author’s opinion, a fair reflection of the motorcycle’s speed”.

53. The sentence “the recording did show that the car started to turn at, or just after the point, at which the motorcycle entered the intersection", is noted. It is a significant observation in my view in light of the observations I made of the vehicle as it made its turn, and that the front of the Toyota struck the offside of the motorcycle, which is entirely consistent with what must be the case, that the appellant did not see the motorcycle before she embarked upon and continued her turn notwithstanding that she slowed momentarily.

54. The incline that the cyclist negotiated was a factor I will accept but it was a matter that enhanced the need for the appellant to ensure by keeping a proper lookout that there was no oncoming traffic at the time she manoeuvred her motor vehicle.

The Appellant

55. As I said, the appellant is a person of good character, which is beyond question. It is also the fact that in many instances it is people of good character who face Court for traffic offences.

56. The material before the magistrate included a letter from the appellant written on 7 September 2020, acknowledging her status in the legal profession, and her instructions to her representatives to enter a plea of guilty. She describes her working day prior to the collision. She was dealing with a case that carried with it a significant measure of difficulty and stress.

57. She was driving to partake in her sport at a recreation centre and was intending to drive directly from there to visit her mother in hospital. Her mother, to whom I shall come, has a significant number of challenges in her later life requiring the intervention of various disciplines within the medical profession.

58. She took the course taken this evening because of road works on George Street no doubt connected with the light rail development. She writes:

“As I waited to turn at the intersection of Margaret and Clarence Street I observed a ‘no right turn’ sign relating to the direction in which I had intended to drive. I read the exclusion times and satisfied myself that I was allowed to turn before I proceeded. I observed that there was no incoming traffic. I observed that Clarence Street was a one-way street with multiple lanes, so I needed to select the lane into which to turn. I believe the second or part-second in which the motorcyclist had reached the crest of the hill was a second or part-second in which my eyes focused primarily on the direction in which I was turning. I wish that in that moment my eyes had been focused on the direction of the motorcyclist directly. I saw the motorcyclist immediately before the collision and braked.”

59. She writes of the impact of the collision upon her and her practice.

60. Her brother provided a letter in support of the appellant. He is a full-time employee in the work he performs and relies heavily upon the appellant to care for their mother. He writes of the appellant having opened her own law firm to provide flexibility so that she could be there to attend to her mother’s needs. He writes of her being very much the caretaker in their family and of the sequelae for her from this collision.

61. There is a report from Equilibrium Psychology written on 3 September 2020. The author has been providing care for the appellant since 30 January 2018, which is a year and eight months before she returned to see the psychologist and the date of the offence. She has seen the appellant 11 times since then. There has been a significant psychological reaction to the collision as well as expressions of regret and guilt regarding the victim. This is not in the nature of a psychological assessment; it simply records attendances upon the psychologist and then adds her perception of the appellant as an inherently caring, responsible and conscientious person, who is kind and compassionate towards others.

62. The magistrate also had a reference from a company secretary and solicitor for an ASX 100 listed company. She attended university with the appellant and corroborates the representations regarding the care that the appellant provides for her mother and the support she gave the author of this document in her own period of loss. The document speaks of her qualities reflecting her otherwise good character.

63. There is a further reference from a solicitor who has known the appellant since 2008 when she was a work colleague of another person. She is said to have adopted the qualities of that other person with whom she was working along with this writer. Again, she stepped in to assist this third person when he suffered heart disease requiring a transplant. This is further support for her excellent character.

64. There is a document from a high school teacher presently studying in the ACT towards her PHD. She has known the appellant since pre-school, some 32 years. She again writes of her qualities and characteristics which is the common thread in all of that material.

65. Today material tendered includes a document provided by the appellant’s mother. She has had, as I noted earlier, her challenges in these later years of life. They are profound consequence of aging. She ambulates with the assistance of walking aids. She is limited in the distance she can walk. She has multiple issues with her spine, joints and skeletal structure.

66. She has had major orthopaedic surgery on her spine and both knees, both hips and one of her feet. There were seven occasions when she underwent surgery between 2011 and 2019. She was diagnosed with breast cancer in 2014 requiring two further episodes of surgery and infusion chemotherapy. She is in need of two or three more surgical procedures for her right foot reconstruction and her shoulder replacement. Her mobility has progressively decreased and she is challenged with the need to attend upon medical appointments which have increased over time, and thus the more flexible working arrangements that the appellant has engaged.

67. She provides a greater description of the surgeries she has undertaken. She has not driven since May 2019. She has no confidence in doing so and her daughter drives her to appointments and to activities and on trips away. She has attempted to recommence driving since September 2020 but has not gone further than the local shops and is not confident in doing so beyond that limited scope.

68. She finds getting in and out of cars difficult, regardless of whoever the driver might be, but this she says carries a source of embarrassment in the presence of people other than her children and therefore she does not utilise taxis. She describes her upcoming surgeries and her support structure is discussed.

69. Her husband passed in 1999. Her sister, because of her own deterioration, is not able to assist. She had two brothers-in-law, both of whom have since passed. She has a sister-in-law, who lives in Dee Why with her own mobility issues and she has her two children, but without grandchildren.

70. There is material from an orthopaedic surgeon written on September 26, 2018, upon review of the appellant’s mother who attended with her granddaughter; I do not quite understand that relationship in light of what is written elsewhere. There is reference to her struggling from her mobility and the rupture of her tibial posterior tendon on the right foot with a flat foot deformity and the need for realignment through appropriate procedures.

71. Another orthopaedic surgeon wrote on 23 January 2020 to describe the review conducted that day, after fixation of a distal femoral fracture at the North Shore Private Hospital in August 2019, shortly after a left total hip replacement. She is said to be slowly improving. She has - it says “lot” I think that should be “lost” - a degree of confidence and balance, still requires two sticks but has very little pain. She was walking essentially unaided, a little unsteadily, but effectively to get on and off the bed by herself. X-rays show a progressive union of her femoral shaft fracture with a hip replacement. She was given advice to gradually improve her strength and confidence by being active.

72. An orthopaedic surgeon specialising in shoulder surgery provided a report for the appellant regarding the appellant’s mother written on 5 September 2019 describing major cuff tearing with some of it fresh with a new small amount in the supraspinatus but much of it of chronic or long term with the humeral head risen up. Cortisone injections were the short-term therapy with some exercises, but if pain remains and the range actually improves, arthroscopic surgery is suggested to trim, tidy and clean up the joint.

73. There is a further document from the psychologist to whom I earlier referred, who continues to treat the appellant since 8 September 2020.

74. There is a report from a physiotherapist attending upon the appellant’s mother who wrote of the need for her to mobilise on one crutch and upon two when outside of her home. She continues with limited shoulder movement and weakness which prevents her from lifting or carrying. She has right foot deformity which contributes to her unbalanced gait. The current treatment is directed to her right shoulder but her pathology has worsened. There is recommendation for hydrotherapy treatment with a pessimistic view about what might be achieved without surgery to her foot and shoulders.

75. There is a reference from a member of the legislative counsel speaking of the appellant whom he has known for some 10 years. Again, her qualities and characteristics are described in the most positive terms.

76. There is a document containing the recommendation by the police officer to the appellant not to communicate with the victim directly; then there is a transcript of the proceedings in the Local Court including representations made to the Court by the person who appeared on behalf of the appellant which includes the following:

“She does wish to indicate that she’s read the victim impact statement. She certainly acknowledges the trauma and hurt that the victim’s gone through, both to herself and those around her, and she wishes to publically apologise to the victim today. Certainly, she did make some enquiries in the hours and the days afterwards with the police, spoke to the officer-in-charge who is here today. She did want to send flowers and make contact with the victim, but she was advised by both the police and myself not to make contact at the time.

So the apology that she gives today is a combination of that concern, regret and sorrow that she’s felt for that past year, and just asked to read out sentences from her letter to the Court where she says that ‘the impact this accident has had on the motorcyclist and her family has caused me the most distress. It is that impact that occupies my mind and I wish that I could undo it. If I was able to change one single second of my life, I, without hesitation, would choose that second to change. There is no second in my life that I regret more, nor is there a second that has had greater impact”.

77. I should add to the material that I have rehearsed in the Crown case that there is a document from Timothy Fairbairn from Access Brain Injury Services speaking of the consequences of the severe traumatic brain injury and post‑traumatic amnesia that the victim suffered. There is a list of the items provided for her in an intensive home and community based rehabilitation program.

The Magistrate’s Decision

78. The magistrate came to the view that the limitation in s 5 Crimes (Sentencing Procedure) Act 1999 applied and that in all of the circumstances the option of a custodial sentence was not required in this case. I infer that to be the outcome without the benefit of the transcript of the magistrate’s reasons from the orders that were in due course made.

Consideration

79. The purposes of imposing a sentence after an offence are articulated in s 3A, (Sentencing Procedure) Act 1999. These provide a succinct checklist of matters that have evolved over time through the development of the common law. The purposes for which a Court may impose a sentence on an offender, and by the term “sentence” I mean penalty on an offender, are:

1. To ensure that the offender is adequately punished for the offence;

2. To prevent crime by deterring the offender and other persons by committing similar offences;

3. To protect the community from the offender;

4. To promote the rehabilitation of the offender;

5. To make the offender accountable for her actions;

6. To denounce the conduct of the offender; and

7. To recognise the harm done to the victim of the offence and the community.

80. There must be consequences for the offence which the offender has admitted by her plea of guilty. Negligent driving is without more on the lower end of the scale for offences of this type of conduct but within it one needs to consider the circumstances in which the offence occurred to assess where it should be placed on the scale of objective seriousness for that offence. Without more, this offence would be towards the lower end of the scale. I accept that the negligence upon which the appellant embarked was momentary in circumstances where it was early in the night or in the late evening when it was dark or darkening. She was confronted with an intersection with pedestrians, who as seems to be their wont in this city, were ignoring the obligation to observe the traffic control signs. Thus as she wrote, and as I quoted, she was focussed upon the direction in which she was turning without keeping a proper lookout to ensure that there was no traffic coming in the opposite direction.

81. I observed the collision and the approach of a motorcycle toward the point of impact. I do not have the benefit of any assessment of the rate at which those images were captured to assess precisely the speed, and as I read the report, I do not think the author who provided the opinion had that either, but it appears that the recording has captured events as they have unfolded in or near to real time.

82. It could not be said that that motorcycle was travelling at excessive speed and although it is a dark-coloured vehicle and it appears that the victim was dressed in dark clothing, the vehicle did have its lights illuminated and at the speed it was travelling and the distance it traversed if the appellant was keeping a proper lookout she should have seen it coming toward her. That she did not has attracted the prosecution and the consequent assessment of guilt reflected in her plea of guilty in the Local Court.

83. As I noted though the legislation was amended in 2013 to enhance the scope of penalties where there are consequences of such an extent that injury suffered amounted to grievous bodily harm. I do not take into account the extent of the injuries in aggravation of the offending, that is to say as an aggravating factor in the application of s 21A(2)(g) Crimes(Sentencing Procedure) Act 1999 but I am required to consider the extent of the injury and the sequelae to assess the extent of the grievous bodily harm suffered that must be brought to account in the assessment of objective gravity. When I do that the objective gravity, looking only at the objective circumstances of the offending, moves the offence up the scale toward mid-range. This assessment must be made within the context of the provision creating the offence.

84. This finding must be synthesised with the subjective case that has been presented, so that the extent to which the offender must be adequately punished is informed and assessed with regard to her prior good character, the fact that she has no antecedent criminal offences, has a modest driving record, and is so highly regarded in the community.

80. General deterrence must be given appropriate weight. To the extent that the Courts are able to do so they must make clear to people who wish to drive that they have obligations to minimise the risk to themselves and to other road users. The significance of general deterrence must not be understated.

81. Specific deterrence, that is, the requirement to provide an outcome that deters the appellant, is not so significant in this case. I accept that this collision, and what has followed, has had a profound impact upon her. She has faced the ignominy of the Court proceedings. I note that in the material tendered includes reference to newspaper publications, which has no doubt caused her a measure of embarrassment within her professional community, and no doubt a level of anxiety not only for her, but also for her family.

82. I do not see that there is need to attribute significant weight to the protection of the community from the appellant. I do not see that significant weight needs to be given to the aspect of rehabilitation of the appellant, but she must be made accountable for her actions on this night, the Court must denounce her conduct, and importantly it must recognise the harm done to the victim, which is profound.

Decision

88. Bringing all of those considerations to bear, applying them to the material presented to me, I am of the view that a conviction was appropriate in this case. The consequence of a conviction in this case is of course the disqualification period to be identified in addition to the other orders, including the fine that the magistrate ordered.

89. I am not satisfied that it is too severe in the circumstances of this case to have a conviction recorded, nor for the appellant to be subject to the Community Corrections Order subject only to standard conditions. Nor do I find it excessive to require the appellant to pay a fine $1,500.

90. The disqualification period though is a matter that is causing me concern. On one view it might be thought that the appellant’s mother, notwithstanding that she might feel a sense of embarrassment if required to enter with some difficulty taxis, should just bear that load as difficult as she might find it. However her challenges are profound and upon the material I have been provided she has limited opportunity to call upon others to assist her for the ongoing management of her various conditions and her need for further surgery.

91. I propose to interfere with the disqualification period and reduce it to one of 12 months. I believe that in combination with the other orders that reflects appropriately the punishment that the appellant should suffer upon the synthesis of the objective and subjective material that has been presented to me.

Orders

92. Accordingly, my orders are that the appeal is allowed. I confirm the conviction, I confirm the Community Correction Order in the terms specified by the magistrate, and I confirm the fine. I vary the disqualification period from two years to one of 12 months, the minimum period that I have available to me.

93. I need to know how the stay that was put in place, is that operative in respect of the disqualification period?

94. SHARMA: Yes, it does, your Honour. So the disqualification needs to date from today and I would also ask that the appellant hand in her driver’s licence to be placed on the Court file and that be done now.

95. HIS HONOUR: I make orders accordingly.

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Decision last updated: 17 December 2020