Director of Public Prosecutions v Drysdale
[2018] VCC 929
•15 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-02217
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JODIE LOUISE DRYSDALE |
---
JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 March 2018; 25 May 2018 | |
DATE OF SENTENCE: | 15 June 2018 | |
CASE MAY BE CITED AS: | DPP v Drysdale | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 929 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Recklessly causing serious injury – Recklessly causing injury – Fail to wear seatbelt – Plea of guilty.
Legislation cited: Road safety Act 1986; Sentencing Act 1991.
Cases cited: R v Verdins [2007] 16 VR 269.
Sentence:1 years’ imprisonment together with a Community Correction order for 2 years’ with conditions; Fine; 6AAA declaration: 3 years’ imprisonment with a non-parole period of 18 months’ imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S. Ballek | John Cain Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr M. McGrath | Balmer & Associates |
HIS HONOUR:
1 Jodie Louise Drysdale, on 21 March 2018, you came before me to conduct your plea in mitigation in respect of one charge of recklessly causing serious injury and one charge of recklessly causing injury, together with the related summary offence of failing to wear a seatbelt.
2 The maximum penalty for Charge 1 is 15 years' imprisonment, while the maximum penalty for Charge 2 is five years' imprisonment. In respect to the related summary offence, the maximum penalty is ten penalty units. You admitted your criminal record, together with your history of offending against the provisions of the Road Safety Act 1986 and related regulations. You have 23 findings of guilt or prior convictions from ten court appearances. Your offending includes driving in a manner dangerous, offences of violence, dishonesty and property damage.
3 At the time of the incident of offending, you were serving two community correction orders in respect to damaging property, assaults and contravention of a personal safety intervention order. Tendered as Exhibit A on the plea was the summary of prosecution opening.
4 At about 9 o'clock in the morning on Thursday, 18 April 2017, you were a front seat passenger in your mother's Nissan sedan when she was driving at approximately 50 kilometres per hour in a westerly direction along Dava Drive, Mornington. As you proceeded along the road with your mother, you were arguing with her. You were not wearing a seatbelt, related summary offence. As a result of the argument, you became upset, you grabbed the steering wheel and turned it sharply to the right, causing your mother's car to swerve onto the wrong side of the road and directly into the path of an oncoming vehicle, being an Isuzu utility being driven by Mr Nicholas Wilkinson.
5 Mr Wilkinson had been travelling at approximately 60 kilometres per hour in an easterly direction along Dava Drive, Mornington and he did not have time to break nor veer in response to your conduct. The two cars collided head-on. Your mother was trapped in her car and had to be removed by officers of the Country Fire Authority. Your mother was taken to the Alfred Hospital where she was treated for life-threatening injuries. Her injuries included fractures to her neck, ribs, spine, collarbone and both feet, internal bleeding, a laceration of her spleen, a perforated bowel and a collapsed lung. She was placed in an induced coma and spent two weeks in the intensive care unit in Alfred Hospital.
6 After three weeks at the Alfred Hospital, she was transferred to a rehabilitation facility where she underwent three months of rehabilitation treatment before being allowed to go home, Charge 1.
7 Mr Wilkinson was knocked unconscious. He sustained a large gash next to his right eye. A deep gash near the main artery to his neck and a laceration to his right eyelid. His wounds were sutured and he was discharged from hospital after two days. He also suffered damage to a tooth and a head injury which affected his balance for some time.
8 On 2 July 2017, you were interviewed under caution at the Frankston Police Station in respect to the collision. You told police that you did not have a licence and that your mother would drive you to various places. You said you had been having an argument with your mother prior to the collision. You claimed that your mother had accused you of being selfish and not being a good mother. You told police that you were not being a seatbelt because had recently been delivered of a child by way of caesarean section. You said it was, "very likely," that you grabbed the steering wheel, although you could not remember it. You said that you would have done it as you wanted to hurt yourself because your mother hated you. You claimed not really to remember the morning at all.
9 In many respects the circumstances surrounding your offending are unusual. Six days prior to the commission of the incident offences you had been delivered of your son, Phoenix, by way of caesarean section. Your son was in the special care nursery and after being released from hospital, subsequent to his birth, on an almost four hourly basis you attended the hospital to feed him. Your level of fatigue must have been immense. As you did not hold a driver licence, your mother drove you to hospital for the purpose of feeding your son.
10 On the morning of the collision, you and your mother had dropped your older children at school. Your conduct was impulsive and at least in part directed at your own destruction. Prior to the birth of your son, Phoenix, you were prescribed by your general practitioner of 13 years, Dr Curtis, 20 milligrams of Olanzapine per day; Seropax, 30 milligrams; Temazepam, 10 milligrams; and Valium, five milligrams.
11 Prior to the birth of your son, Phoenix, you would consult your family doctor, Dr Curtis, on a weekly basis for the purposes of monitoring your medication and suicidal ideation that you were experiencing at the time.
12 Pursuant to a mental health care plan, you had in the past consulted Dr Margaret Walker, clinical psychologist, on a monthly basis. You were referred to Dr Walker by Dr Curtis.
13 Two reports from Dr Lester Walton, consultant psychiatrist, dated 1 March 2018 and 8 May 2018, were tendered on your behalf. Doctor Walton's initial report was of limited assistance because he had not had access to any independent psychiatric documentation in respect of you. Despite this, after consulting with you, he was left with an impression that you were suffering from a diagnosable bipolar mood disorder on the background of some so-called borderline personality traits.
14 In his subsequent report, Dr Walton was satisfied that you would attract the valid diagnosis of bipolar mood disorder and that there is a parallel borderline personality disorder. Further, Dr Walton was satisfied that your mental state at the time of the offending was, "significantly disturbed." Further, Dr Walton reported, "I was not able to clearly establish whether she may have been in a state of mania versus depression precisely at the time of the offending, But, the pattern seems to have been one of frequent mood swings and whether or not hypomanic or clinically depressed, both have implications in terms of compromising a person's mental functioning, particularly in relation to considering the consequences of their actions and disinhibiting aggressive urges. It is also well recognised that mood disturbance, in particular, range reactions, is part and parcel of borderline personality disorder, further elevating the likelihood of psychiatric factors being relevant."
15 A further aspect of your psychiatric profile is that at the time of the incident offending you were not taking your major tranquilising medication because you were breastfeeding your son, Phoenix, and this may have significantly elevated the intensity of your mood swings. Your failure to take your medication was motivated by your desire to care for your son, rather than non-compliance.
16 You are 34 years of age. You were born in Brisbane, but when you were 16 months' old your mother hitchhiked to Victoria to attend a party in Mornington and took you with her. You remained in the Mornington area with your mother until you were ten years' of age. During this period of time, your mother established a relationship. Subsequently, you lived in Moe and Hill End.
17 At the age of 15 years, you underwent a termination of pregnancy consequent on being raped by five males. It appears that sometime after this event you ran away from home and despite living on the streets you completed both Years 11 and 12 at the Mornington High School.
18 From an early age, you have consistently worked in the hospitality industry, mostly at fast food outlets and have recently obtained work at a fish and chip shop where you have worked in the past. You have four children by three different fathers. Your daughter Bethany is aged 16 and resides with her father, Christian Fowler. Your son's Jesse, aged ten and Zachariah, aged seven, reside with their father, Timor Madcor. Your son Phoenix, who is aged about 14 months' is cared for by his paternal grandfather.
19 You have never met your natural father and since the collision, all of your family have cut ties with you. Tendered as Exhibit 3 on your plea was a bundle of documents that include a reference from Robin Geer in respect of your work between December 2016 and August 2017 at the Mornington Peninsula Community Animal Shelter.
20 In addition, there was a letter from the Stepping Up Consortium, dated 20 March 2018, concerning prospective treatment for you within the community. Further, there was a reference from your friend, Anita Duesterhaus dated 16 March 2018. She wrote in respect to the difficulties that you have experienced with Phoenix's father over the years, the involvement of Child Protection and the state of your exhaustion at the time of the incident offending.
21 In addition, there was a report from your general practitioner, Dr Curtis, together with a history of medications prescribed to you. From this last document it is apparent that reasonably recently, prior to the incident offending, you were of the belief that your children, Jesse and Zachariah, had been interfered with by a neighbour and I was informed by your counsel that it was this belief that caused your most recent appearances at the Magistrates' Court on 27 September 2016 and 8 February 2017, in that you attacked your neighbour, who you believed to have interfered with your children.
22 Finally, as part of Exhibit 3 was the report of Dr Margaret Walker, psychologist, dated 30 September 2016. Doctor Walker wrote as to the severe physical and emotional abuse that you suffered from a young age and that she treated you for three years over 90 sessions, that ceased in late 2013, as Dr Walker was of the opinion at that stage your life had stabilised considerably.
23 I was informed that Dr Walker did not bulk bill for her services and that the expense of paying the gap fee contributed to you ceasing your therapeutic relationship with her.
24 For six months' during the period 2015 and 2016 you consulted psychologist, Barbara Dickson in Mornington and also attended on Positive Psychology Mornington, as part of your community correction orders.
25 Your plea was adjourned from 21 March to 25 May, for the purpose of obtaining a further report from Dr Walton, to which I have already referred. Tendered as Exhibit 6, were your counsel's further written submissions. Importantly they contained in typewritten form a series of progress notes from Peninsula Health that were tendered in handwritten form as Exhibit 7.
26 In part, they support the diagnosis of Dr Walton and, in particular, support the proposition that immediately prior to the incident offences you were subject to frequent mood swings. Since 21 March 2018, you have been involved in a violent incident with Phoenix's father, stabbing him in the arm. I was informed that no charges had been laid in respect of this conduct, however, intervention orders are in place.
27 Department of Health and Human Services, DHHS, have become involved and this explains the present living arrangements in respect of each of your children. It is to be noted, however, that you are in regular contact with each of your children. At the time of the commission of the incident offences, you were suffering from serious psychiatric disorders. I am of the view that your moral culpability is reduced as a result of your illness. Likewise, general and specific deterrence should be sensibly moderated in your case.
28 I note and accept Dr Walton's opinion expressed in each of his reports, that imprisonment carries with it a risk of significant deterioration in your mental state. You pleaded guilty at an early stage and are entitled to the benefits that flow to you from your plea, namely that it is some evidence of your remorse, which I note, you expressed in respect of your mother immediately after the collision.
29 Further, it has utilitarian benefit. Your offending is serious and the consequences in respect of each of your victims was serious and in respect of your own mother profound. As a consequence of your conduct, you have lost all connection with your family, whilst you remain in contact with your children, they are in the care and custody of others.
30 Mr McGrath of counsel who appeared on your behalf submitted that a community correction order met all of the purposes of sentencing appropriate in your case, as your offending was unusual and it was attended by your psychiatric difficulties. Further, he submitted that you had successfully completed the community correction orders imposed on you on 27 September 2016 and 8 February 2017. However, it must be noted that your offending must breach the latter of those two community correction orders.
31 In response to Mr McGrath's submissions, I had you assessed for community correction order and you were found to be suitable. Your offending was a serious example of offending of its kind. You caused serious injuries to your mother, who was supporting you at a difficult time in your life and at the time of your offending. Whilst your mother and you were arguing, she, like Mr Wilkinson, was an innocent victim of your conduct.
32 I take into account your plea of guilty and the time at which it was entered. I have already noted the application of the principles of R v Verdins in your case. As well, I take into account the personal consequences that your offending has had on you, in that you have lost the custody of your children and complete contact with your family.
33 However, to my mind, the conditions recommended by the community corrections officers, and which I accept as appropriate, are therapeutic in nature and to my mind, a period of imprisonment is required. A term of imprisonment is required to reflect the application of the sentencing principles of public denunciation and just punishment, as well as recognising the seriousness of your offending. I must also take into account both general and specific deterrence, although appropriate moderated. Please stand.
34 Doing the best I can, taking into account the circumstances of your offending and your personal circumstances and applying sentencing principles in respect to Charges 1 and 2 on the indictment, I sentence you to an aggregate sentence of 12 months' imprisonment, together with a community correction order for two years' with conditions, being: you undergo treatment and rehabilitation in respect to drug abuse; you undertake treatment and rehabilitation in respect to alcohol abuse; you undertake treatment and rehabilitation in respect to your mental health; you undertake treatment and rehabilitation by way of programs designed to reduce your risk of reoffending; and you be subject to supervision by the secretary of the department.
35 In respect to the related summary offence, you are convicted and fined $75. Are you prepared to enter into the community correction orders? Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to a total effective sentence of three years' imprisonment with a non-parole period of 18 months' imprisonment. You may be seated.
- - -
HIS HONOUR: Are there any ancillary orders?
MS DANIEL: Yes, Your Honour, there is a s.464Z.
HIS HONOUR: What is your attitude to that, Mr McGrath?
MR McGRATH: Apologies, Your Honour, I don't know if I have addressed Your Honour on this before. If I could just take some instructions, Your Honour?
HIS HONOUR: Yes.
MR McGRATH: Thank you. Thank you, Your Honour.
HIS HONOUR: Yes.
MR McGRATH: Your Honour, the application is opposed on the basis that this, whilst it is a very serious offence, it's a driving offence and when taking into account whether or not Your Honour should order a - - -
HIS HONOUR: It's not a driving offence.
MR McGRATH: Well, it's a violent - - -
HIS HONOUR: A motor vehicle was deliberately steered into another motor vehicle.
MR McGRATH: Yes.
HIS HONOUR: The motor vehicle was used as a weapon.
MR McGRATH: Yes.
HIS HONOUR: It is not the same as dangerous driving.
MR McGRATH: Yes, Your Honour, I've mischaracterised that. I shouldn't have put it in such a way. But, in terms of a DNA sample leading to the detection of further offending, a DNA sample would have been irrelevant in the detection of this offending.
HIS HONOUR: What about the prisoner's antecedence?
MR McGRATH: Of course, they are relevant, but she doesn't have a history of burglaries or those sorts of matters. It is opposed on the basis that whilst it is a serious offence it is an unusual set of circumstances.
HIS HONOUR: That's true.
MR McGRATH: Perhaps I can't say anything more than that.
HIS HONOUR: Thank you very much. I propose to grant the order on the basis that the seriousness of the circumstances of the offending warrant the order, the prior convictions of the respondent are such as to warrant the making of the order, and the granting of the order is in the public interest.
MS DANIEL: As Your Honour pleases.
HIS HONOUR: Now, you may remain seated Ms Drysdale. The Crown have made application what is known as a forensic sample, and in this case, it will be a taking of a scraping from the inside of your mouth or what is known as a buccal swab. I have already indicated that I have granted the order and the basis for it. I am obliged to inform you that if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic sample to be conducted. I hand down three copies of the order.
What is going to happen, Ms Drysdale is my associate will now take down to you the community correction order for your signature. Mr McGrath, if you wish to attend upon your client.
MR McGRATH: Yes, thank you, Your Honour. Thank you, Your Honour.
HIS HONOUR: Now, in respect to the issue of comments on the document that commits her to custody, Mr McGrath, I should note it seems to me (1) that the prisoner has been diagnosed as suffering from bipolar disorder, together with borderline personality disorder. That's the first thing. Secondly, in terms of the medication that I outlined in my reasons for decision that dealt with the medication that she had been prescribed reasonably prior to the collision, do those medications still remain operative?
MR McGRATH: My understanding is they are. If I could just seek some further instructions.
HIS HONOUR: Yes, take your time Mr McGrath, please.
MR McGRATH: Thank you, Your Honour. Only Olanzapine, Your Honour, 15 milligrams per day.
HIS HONOUR: All right, I doubt very much whether she would get the other drugs whilst in prison, but different forms of it.
MR McGRATH: Yes.
HIS HONOUR: I'll note that she is prescribed Olanzapine, 15 milligrams per day.
MR McGRATH: Yes, thank you, Your Honour.
HIS HONOUR: Are there any other matters?
MR McGRATH: No, Your Honour.
MS DANIEL: No, Your Honour.
HIS HONOUR: Would you remove the prisoner, please. I'll stand down until the next case is ready.
- - -
0
0
0