Director of Public Prosecutions v Boomsma

[2017] VCC 1649

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01336

DIRECTOR OF PUBLIC PROSECUTIONS

v

RACHEL BOOMSMA

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2017
DATE OF SENTENCE:	10 November 2017
CASE MAY BE CITED AS:	DPP v Boomsma
MEDIUM NEUTRAL CITATION:	[2017] VCC 1649

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Singh
For the Accused	Mr P. Galbally

HIS HONOUR: 

1Rachel Boomsma, on 8 November 2017 you pleaded guilty to two charges on the indictment no. H10427164.  Charge 1 was dangerous driving causing serious injury to Jarrah Smith.  This charge has a maximum penalty of five years' imprisonment.  Charge 2 was failing to stop after an accident.  This charge has a maximum penalty of ten years' imprisonment.

THE CHRONOLOGY OF THESE PROCEEDINGS

2The offending occurred on 10 August 2016.  The charges against you commenced in the summary jurisdiction. 
On 21 April 2017, police prosecutors uplifted the charges at the Frankston Magistrates' Court to the committal court.

3A filing hearing took place on 2 May 2017.  A committal case conference took place both on 3 June 2017 and 4 July 2017.  On 4 July, the plea was settled and listed for hearing at the County Court on 8 November as a contested plea.  Between 4 July 2017 and 8 November 2017, the basis for the plea was resolved between yourself, your legal representative and the prosecution.

4The prosecution plea opening dated 3 November 2017 was Exhibit A and are the agreed facts for this matter. 

THE CIRCUMSTANCES OF YOUR OFFENDING 

5On the day of the offences, you were a 46 year old woman.  Your victim Jarrah Smith was a 16 year old boy who was walking along the side of Forest Drive in Mount Martha.  Forest Drive in Mount Martha runs in an east-west direction.  It is a two way bitumen carriageway with a single lane travelling in each direction.  It has a broken line between the two lanes.

6On either side of Forest Drive is a gravel shoulder or then to the side of those shoulders is a grassed area.  In the relevant area of Forest Drive it had a slight incline and is bordered by residential property on the south side and the Mount Martha Golf Course on the northern side.  It is an 80 kilometre zone.

7On 10 August 2016, the day of this offending, the weather conditions were fine and visibility was good.  There was no wind or unusual adverse conditions which would contribute to any collision.

8On Wednesday 10 August 2016, at approximately 1pm, Jenny Wegner was teaching her son Johnno to drive.  Johnno was in the driver's seat, Jenny Wegner was in the front passenger seat and her husband was in the rear seat of the car.  Johnno was driving along Forest Drive at approximately
80 kilometres per hour in a westerly direction.

9He drove past Jarrah Smith who was walking in the same direction as the Wegner's car was moving.  Immediately after passing Jarrah Smith, Johnno said to his mother "That was Jarrah".  About 80 metres later, Johnno pulled over the family car on the side of the Forest Drive and telephoned Smith to ask him if he wanted a ride home.

10By this stage, all three of the Wegner's were looking back in the direction of Jarrah Smith.  They saw Jarrah Smith reaching for his mobile phone.

11Immediately after that, a four-wheel-drive registered no. XMJ 213 which was a green Toyota Land Cruiser driven by yourself was seen to head in a diagonal direction to the left towards Jarrah Smith. It then struck him forcefully where Mr Smith was flung into the air and on to the embankment on the side of the road.  This collision was observed by the three Wegners.

12Mrs Wegner immediately dialled 000 requesting an ambulance.  You have then pulled up behind the Wegner's vehicle and stared at Mrs Wegner, expressionless.  You did not say anything.  Mrs Wegner pointed at you and said "You stay there".

13Mrs Wegner then walked to the rear of the Land Cruiser and noted your registration number and told the emergency officers on the phone of that number.  You then started driving forward.  Mrs Wegner yelled out "You're going to hit my car." You have a hearing impediment and may have not heard those words uttered by Mrs Wegner.  However given Mrs Wegner's manner to you,
Ms Boomsma, you must have realised that you had been in an accident. You have panicked and you have driven away without saying anything.

14Mrs Wegner has then run up to Mr Smith who was lying unconscious on the ground.  Mrs Wegner remained in contact with the emergency operators and explained Mr Smith's condition and that he was convulsing.  Soon after, a nurse attended and assisted.  She noted that Mr Smith's breathing was erratic, he was having seizures and not conscious.  A doctor from the golf course came over and also assisted.

15A few minutes later, Mr Smith's mother arrived as did the emergency services.  Thereafter, Jarrah Smith was placed in a helicopter and taken to the Alfred Hospital. 

16The police attended the scene, collected fragments of debris which turned out to be parts from your car.  At about 3 pm that day, your car was located in the Balcombe Grammar School, Mount Martha.  You were sitting in the car and you were asleep.  Police observed damage to the front of the vehicle consistent with items found at the collision scene.  You were then arrested and taken to Mornington Station for interview.

17The blood samples obtained from you and the results of the blood sample was as follows:  for diazepam, you had 0.13 milligram per litre; quetiapine, you had 0.17 milligram per litre and duloxetine, 0.07 milligram per litre.  These results are within therapeutic limits for those prescribed drugs.

18Some of the side effects of diazepam include an increase in reaction time, impairment of perception, vigilance, judgment and concentration, drowsiness, incoordination, instability in standing and walking, slurred speech and problems with remembering events occurring whilst under the effect of diazepam.  These effects cause a reduction in the performance of complex tasks such as required in driving.

19Quetiapine is a sedating tranquiliser and is capable of causing drowsiness and confusion.  The manufacturer prescribing information specifically warns about the driving risk while taking it.  Both drugs, that is diazepam and quetiapine have compounded the effects of fatigue in your case thus rendering you capable of falling asleep whilst you were driving. 

20As a result of the collision, Jarrah Smith received the following injuries:  he had a closed in head injury with left parietal lobe haemorrhage contusion; a sub-arachnoid haemorrhage, post-traumatic amnesia, left superior pubic ramus fracture which is a fracture of his hip and left medial collateral ligament convulsion.  As part of his treatment, Jarrah Smith was placed in an induced coma for 11 days whilst he was in the Alfred Hospital.

21As mentioned, you were arrested on 10 August 2016.  At 10.23 pm, the police sought to interview you.  You exercised your right to make a no comment record of interview. 

22The debris found at the scene was from your car.  Further examination of your car found that there was no reasons attributable to the car as to why there was an accident.  There were no faults with your car.

VICTIM IMPACT STATEMENT

23I now deal with the victim impact statements.  In this proceeding, Mr Jarrah Smith's victim impact statement dated 3 February 2017 was read into the record by the prosecutor.  It is Exhibit D on the plea.  Jarrah Smith is the person you injured as a result of your offending. 

24He set out how he woke up in hospital not knowing who he was or where he was.  He says in the post-traumatic amnesia stage of recovery, he felt suicidal. 
He had to learn how to walk again.  He stated his childhood memories of family holidays to Mexico, Guatemala, Laos, Thailand and New Zealand are all erased.  He spoke of his physical injuries which I have referred to earlier.

25He set out his concern for the impact these injuries will have on his ability to be a tradesman in the future.  Jarrah Smith spoke of the extensive and intensive rehabilitation he has had to go through to get back to “his old self” as he described it.  Jarrah Smith sets out his concern for his own mental health as a result of this traumatic event in his life.  He says he is anxious and has depressive and negative thoughts.  He is upset at what he says is his “brain power” has been weakened due to his head injury. 

26Jarrah Smith's mother, Pia Spreen, read her two victim impact statements dated 13 February 2017 and 8 November 2017 in the record; they were Exhibit B.  Ms Preen spoke of her shock at being informed of her son's accident.  She said her life was catapulted into a surreal, scary, and harrowing scene. 

27When she attended to her son at the roadside, she described the seizures and the non-responsiveness of her son.  She spoke of her despair at Jarrah's condition and his future.  Ms Spreen detailed the stress and emotional rollercoaster Jarrah's hospitalisation and recovery has had on her and the family in general.  She said the heavy dark period that Jarrah suffered was a particularly difficult and challenging time for them.

28She set out the toll and the extent of the rehabilitation treatment that Jarrah has undergone and continuing to perform.  She says her life has changed to one of fitting arrangements around the recovery process for her son Jarrah, including trips to specialists and therapists and keeping up with the Transport Accident Commission paperwork.

29In her updated victim impact statement, Ms Spreen sets out the challenges due to Jarrah's mental issues, Jarrah's resistance to getting help for his mental health problems and this impacts on her.  She said the rehabilitative process has been slow and exhausting.  She describes her son as being angry and of low mood.

30Mr David Smith, Jarrah's father, read his victim impact statement dated
14 February 2017 into the record.  It was Exhibit C on the plea.  He sets out how he was notified of the tragic event by his wife Pia.  He said he broke down in tears and was just numb.  He went straight to the Alfred Hospital and waited for the helicopter.  He was sick from fear that his son would die.  He told his son how much he loved him and that he would have to fight to live. 

31He set out his anxiety about the extent of brain injury to Jarrah.  He described in detail the treatment his son endured in intensive care unit.  Mr Smith set out how his son cannot and does not speak about this event.  He says Jarrah is still recovering from the mental scars and accepts that recovery has a long way to go for Jarrah and the family.

YOUR PERSONAL CIRCUMSTANCES

32I now turn to your personal circumstances.  You are now 48 years old; at the time of the offence you were 46.  When you were three months old, you were adopted by your now parents who you described to Dr Sullivan as adorable.  Your mother was too ill to attend court but your father was here to support you on the day of your plea.

33You have grown up in a loving and supportive family.  You have an older sister who provided a reference to the court in support of you.  Your sister described the difficult times both you and your family had over the time of your diagnosis for bipolar disorder and the episodes that required your hospitalisation. 

34Your sister described you as soft natured and someone who always put other people first.  You have continued to receive support from your sister and family at this difficult time in your life.

35You grew up in Ferntree Gully and attended primary school there. 
You commenced your secondary education at Upwey High School.  By the end of Year 10, you were smoking and moving to using cannabis and skipping school.  It was decided by the family that you should move and live with your grandparents in Benalla and get away from the bad influences of the peers that you had in Ferntree Gully at that time. 

36You completed Year 11 and 12 in Benalla High School and then gained admission to an Applied Science course at the Riverina-Murray Institute of Higher Education in Wagga Wagga.  At that time you were young and as I say the Institute was in Wagga Wagga.  After six months, you returned to your parents in Ferntree Gully.

37In your twenties, you commenced a Bachelor of Marketing course at RMIT. 
You never completed that course as your mother became seriously ill with kidney disease.  You ceased your studies to care for your mother; you never returned to continue that university education. 

38You have worked part time jobs commencing at secondary school age and later as a clerical worker, reception type worker and executive assistant.  You had a consistent full time work record until ceasing employment to be a stay at home mother.  You currently work part-time as a coordinator of a leaflet distribution company.

39In 2002, you were married to your husband John.  You have two children aged 13 and seven.  You and your husband built your family home some six years ago.  Your husband works full-time in a hardware timber business and is required to travel away from home on a regular basis.  Your children are at school in the local area of Mount Martha.

40You have no prior criminal convictions. I was informed by your counsel that three weeks prior to this offending, you were charged with theft from a Reject Shop.  You were subsequently placed on a six month good behaviour bond for that offending in February 2017. 

41You admitted three prior traffic infringement notices.  The first one was in 1990, some 27 years ago, for speeding.  The second one was in 1995, some 22 years ago, for low range 0.05 offending.  And the final one was in 2012 which is five years before this offence for speeding.

42You have in the past suffered from addiction to drugs, alcohol and gambling.  You initially used cannabis before moving to Benalla as a young teenager. 
In your late 20s, you used amphetamines.  You ceased using these drugs by moving away from the drug environment.  Gambling has also been a problem for you.

43In the past four years, your addiction to alcohol has become a problem.  In May 2015, you were admitted to Beleura Private Hospital in a psychiatric ward and then out-patients on a weekly basis thereafter.  On the day of this offending, you contacted your treating psychiatric because you were concerned about relapsing into alcohol abuse.

44Your treating psychiatrist, Dr Robert Kruk, in his report dated 24 June 2017 states "A couple of hours before the accident, Ms Boomsma used diazepam 10mg to alleviate her anxiety.  She visited the clinic earlier that day in a rather distressed state and said that she was on the verge of returning to alcohol as a way of coping with stress and anxiety and requested diazepam to prevent a relapse into drinking."

45On the morning of the offending, you took the 10mg of diazepam to alleviate your anxiety.  You have a long and established psychiatric history.  You were treated by Dr Leadsman, psychiatrist, from age 16 through to his retirement in the early 2000s.  More recently you have been treated by Dr Kruk, a psychiatrist, to the present time.

46Since the age of 25, you have been diagnosed with bipolar effective disorder.  The current treatment for your psychiatric condition was medications in the form of Saphris 20mg, lithium 100mg and Seroquel 100mg. 

47On the day in question you took, as I say, the 10mg of diazepam.  You also received cognitive behavioural therapy from Karen Thornton, a psychologist.  This treatment is in conjunction with Dr Kruk's treatment for you.

48Over the course of your treatment, you have had severe episodes which have required your hospitalisation.  Since this offending, you have been hospitalised again at the Beleura Private Hospital for three weeks and subsequently from there to the Frankston Hospital after an incident of self-harm.  You have also suffered from hearing loss from an early age.  You learnt how to lip read and since this offending you have had hearing aids prescribed and fitted to assist your hearing and awareness of your surroundings.

SENTENCING CONSIDERATIONS

49I turn to sentencing considerations.  The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, and denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. 

50I am also required to balance the interests of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society. 

51I am also required to take into account current sentencing practices in fixing your sentencing.  That enquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and the statistics relating to those sentences.  I have considered the statistics and the current sentencing practices. 

52I am mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.  That includes the listed cases and summaries handed up to me by the prosecutor.

53I have considered the provisions of the Sentencing Act and in particular s.5 (4C) which directs the sentencing court to consider whether a community corrections order can achieve the purpose for which the sentence is to be imposed. I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case. I have had you assessed for a community corrections order.  You have been assessed as being suitable for such an order however that is not the end of the matter.

54You have pleaded guilty to the charges.  Your plea of guilty was indicated at,
I find, an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.

55Your plea allows for the preservation of the court and police resources to deal with other matters.  Your plea vindicated the public confidence in the legal process set up to protect the community.  Your plea also is a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your behalf.

56I accept that your remorse is genuine.  I accept that the statement by your psychologist about your anguish for Mr Smith's family and the empathy and the remorse for how Jarrah Smith is recovering.

57Because of your family structure, I accept you can relate to the impact your offending has on another boy and his family.  I accept Dr Sullivan's opinion that in his assessment, you are remorseful for your offending. 

58I find that you have good prospects of rehabilitation provided that you re-engage with your medical carers and follow their advice about treatment for your diagnosed psychiatric condition.

59I accept you are a person of prior good character.  The three previous traffic infringement notices are spread over a period of 30 years of driving and do not represent a pattern of dangerous or reckless behaviour by you. 

60I also accept a term of imprisonment will represent some hardship for your husband and children.   However, I do not find that such hardship calls for the exercise of mercy by this sentencing court.  Your family is very supportive of you and part of that family structure your husband, parents and sister will maintain the family unit.

61The charge of dangerous driving causing serious injury encompasses a very wide range of conduct which can have tragic or serious consequences for the injured person.  That means that the sentencing dispositions are wide ranging.  Your offending lacks a number of features or markers such as speeding, aggressive driving, illegal drugs or alcohol. 

62The opinion of Dr Sullivan provides a proper basis for the assessment of the gravity of your offending.  He states as follows in his report:

“At the time of the alleged offences, Ms Boomsma reported having taken duloxetine and Quetiapine, both of which she was accustomed to.  In addition, she reports having taken diazepam 10mg.  Diazepam can cause memory impairment, behaviour disturbance and sedation.

In the past when she had taken diazepam, she would have tolerance related to concurrent alcohol use; both alcohol and diazepam act on the same brain receptors.  However, taking 10mg diazepam when she had not taken this recently and was not drinking alcohol would be more likely to have potent effects.  Her behaviour in not comprehending that she had collided with a pedestrian, her peculiar presentation to the witness at the time of the incident, and being found asleep in her car are all consistent with intoxication with diazepam.

At the time of the alleged offence, I consider that her anxiety had resulted in her taking a significant dose of diazepam which detrimentally affected her capacity to drive and her memory of the incident.  Although there is a causal association between her anxiety and taking of diazepam, it was the latter which affected her capacity to think clearly or make calm and rational choices and impaired her judgment”.

63I accept that a level of sedation may be an explanation for your driving on the day of your offending.  When the police located you within a short time after the offence, you were asleep in your car.  Dr Sanjeev Gayah concluded that your ingestion of your prescribed drugs would have compounded the effects of fatigue thus rendering you capable of falling asleep whilst you were driving.

64The combined effect of the prescribed drugs on your driving lessens your moral culpability for this offence nevertheless the medicine packets have warnings on them and you bore the responsibility of ensuring that you were fit and able to drive properly on that day.

65In respect of Charge 2, leaving the scene of the accident, the level of moral culpability is different.  You had been involved in an accident.  You brought your car to a stop. You saw Ms Wegner pointing at you and directed you to stay put.  Whilst you had compromised hearing, it would have been clear to you that you had been in an accident and that something was seriously wrong.

66You elected to drive off and leave your victim's welfare to the care of others.  You had the ability and faculties to drive the vehicle away so you were conscious and your cognitive state was not totally compromised.  You accept that you must have been in an accident and you accept that you panicked and you drove off.

67Mr Carr on your behalf urged the court to accept that the principles numbered 1, 3, 5 and 6 of Verdins case are applicable in sentencing considerations for you.  I accept that your psychiatric condition at the date of sentence may mean that a term of imprisonment will weigh more heavily on you than it would on a person of normal health.

68I also accept there is a serious risk that imprisonment will have a significant adverse effect on your mental health which is a factor tendered to mitigate the appropriate punishment.  I accept that the overall effect of your intoxication with diazepam, as described by Dr Sullivan, due to your psychiatric condition may reduce your moral culpability to some extent; however, it is not extinguished and a level of denunciation is still a relevant sentencing objective in your case. 

69I do not accept that the nature and severity of your symptoms after the accident as observed by Ms Wegner were of such severity to eliminate general deterrence as a sentencing consideration in the exercise of my sentencing discretion. 

70The principles of general deterrence, denunciation and just punishment call for a moderated term of imprisonment.  Taking into account your psychiatric condition, both at the time of the offending and the time of sentence which is today, it is also appropriate to combine that term of imprisonment with a community corrections order designed to enhance your rehabilitation and therapeutic recovery from the offending so that you can re-enter society in a positive manner and be a productive member of the community as you have been up until now.

71Would you stand please?

72On Charge 1, you are convicted and sentenced to serve a community corrections order for a period of two years. 

73The conditions of that community corrections order are treatment and rehabilitation for alcohol, treatment and rehabilitation for mental health, treatment and rehabilitation for a road trauma awareness program and judicial monitoring upon your release from prison.  This community corrections order commences at the expiration of your term of imprisonment.

74On Charge 2, you are convicted and sentenced to a period of nine months' imprisonment. 

75That is a total effective sentence of nine months' imprisonment from today. Pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have sentenced you to three years and three months with a non-parole period of two years imprisonment.

76On Charge 2, I further order that all licences are cancelled and that you are disqualified from driving for a period of four years from 30 November 2016 which is the date your licence was taken from you.

77I make an order in respect to 464ZF of the Crimes Act. That is a forensic sample, Ms Boomsma. The way it is done is they take a swab from inside your mouth and collect a DNA sample. If you do not comply, they have the power to use reasonable force to do so and I will sign that order as well.

78Is there anything else?

79MR SINGH:  Your Honour, I understand my learned instructor emailed your learned associate copies of the orders.  I can hand up hard copies if that assists?

80HIS HONOUR:  Thank you.

81MR SINGH:  As well as that, Your Honour, Your Honour's made reference to the fact that there was a report which found the lady suitable for a CCO. 
We haven’t seen the report.

82HIS HONOUR:  I'm sorry.

83MR SINGH:  No, quite alright.  If we could - at an appropriate if we can get copies?

84HIS HONOUR:  Did you get a copy of it, Mr ‑ ‑ ‑

85MR GALBALLY:  No, no, I haven't seen it, Your Honour.

86HIS HONOUR:  No, no, no, sorry.  I'll just have that shown to you right now. 

87COUNSEL:  Yes, thank you. 

88HIS HONOUR:  You can take a seat Ms Boomsma. 

89MR SINGH:  If I can hand up the hard copies of the 464 ‑ ‑ ‑

90HIS HONOUR:  You can take a seat?  Thanks.  Thank you.

91MR SINGH:  Thank you.   Thank you, Your Honour.

92MR GALBALLY:  Your Honour, if I might raise and just mention this that perhaps after Your Honour leaves the Bench, we can grab a copy from your associate?

93HIS HONOUR:  Yes, absolutely, I'll certainly do that.  Ms Boomsma, I am going to mark your - I am going to mark your order with what they call ‑ ‑ ‑

94MR SINGH:  Custody?

95HIS HONOUR:  ‑ ‑ ‑ sentencing matters that Corrections have to know about and it's to do with your mental state and your diagnosed condition and your need for medications.  So that goes on your record and I am going to hand to the officer here the medical reports relating to your assessment by Dr Sullivan and your treating psychiatrist, Dr Kruk, and the psychologist so that those in case of you now - sorry, that are in charge of you now have the information they need to make sure your treatment is continuous or should be continuous. 

96OFFENDER:  Thank you.

97HIS HONOUR:  Yes.

98MR GALBALLY:  We're grateful for that indication, Your Honour.  Your Honour, could I also seek a further indulgence?  If you could mark that she has hearing aids with her.

99HIS HONOUR:  Yes.

100MR GALBALLY:  And she has to bring some equipment with her that she's brought along today that assists with the cleaning of the hearing aids and the like.

101HIS HONOUR:  Yes, thank you.  Thanks and I will also note that the need for the hearing aids and attendant equipment on that ‑ ‑ ‑

102MR SINGH:  Custody management issues, I think they're called now.

103HIS HONOUR:  Yes, they're - thank you, I was lost for words.  It was custody management issues.  Yes, just - it's a long way away and there's a lot on your mind, Ms Boomsma at the minute, but the judicial monitoring will take place on 7 September next year at 9.30 am.  That mean you'll have to come back here to see me, all right?

104You can hand that to Mr Galbally.  You can attend, Mr Galbally. 

105MR SINGH:  Just to confirm if I may, Your Honour, that I take it Your Honour doesn't require the prosecution to attend that day.

106HIS HONOUR:  No, no.

107MR SINGH:  Thank you.

108MR GALBALLY:  May I leave the Bar table, Your Honour, so I can ‑ ‑ ‑

109HIS HONOUR:  Yes, certainly.  Thank you.  Thank you, you can remove the prisoner.  Thank you.  Thank you for your assistance.

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