Director of Public Prosecutions v Matthews
[2023] ACTSC 52
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Matthews (No 2) |
Citation: | [2023] ACTSC 52 |
Hearing Dates: | 28 February; 17 March 2023 |
DecisionDate: | 21 March 2023 |
Before: | McCallum CJ |
Decision: | (1) For the offence of causing grievous bodily harm to Alun Mills by a negligent act contrary to s 25 of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to a term of imprisonment for twenty months commencing on 11 November 2021 and expiring on 10 July 2023. (2) For the offence of causing grievous bodily harm to Alyce Mueck by a negligent act contrary to s 25 of the Crimes Act 1900 (ACT), the offender is convicted and sentenced to a term of imprisonment commencing on 11 February 2022 and expiring on 10 October 2023 and a good behaviour order for a period of 12 months commencing on 11 October 2023 subject to the condition that, should he, during that period, no longer be subject to an order of the ACAT under s 58(2) of the Mental Health Act2015 (ACT), he accept such treatment as may be recommended by his general medical practitioner, Dr Anthony Morris, or any general medical practitioner or specialist acting instead of him, in relation to his diagnosed condition of schizophrenia including recommendations as to appropriate medication. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Act of negligence causing grievous bodily harm – driving at police officers – schizophrenia – mis-prescribed medication – whether moral culpability is reduced by the Verdins principles – where the s 10 threshold has been crossed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 25, 321(2), 323 Crimes (Sentencing) 2005 (ACT) ss 7, 10(2), 35, 49, 53(1)(b) Mental Health Act 2015 (ACT) s 58(2) |
Cases Cited: | Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Hughes v Grieve [2006] ACTSC 92 R v Verdins [2007] VSCA 102; 16 VR 240 |
Parties: | Director of Public Prosecutions Thomas Matthews ( Offender) |
Representation: | Counsel A Williamson ( DPP) J Pappas ( Offender) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Offender) | |
File Numbers: | SCC 281 of 2021 SCC 282 of 2021 |
McCALLUM CJ:
These proceedings raise a difficult sentencing task. On 11 July 2021 the offender, Thomas Matthews, was driving along Lady Denman Drive about to merge right when he suddenly swerved left and ploughed into three uniformed police officers standing on the side of the road. The officers were performing routine traffic duties. They had just pulled another driver over for failing to stop at a stop sign and had issued him with a caution. At the time of the collision, they were standing between the other driver’s car and the police car. Two were very new to the police force, having only recently graduated from police college. The third was an extremely experienced police officer who was mentoring the new recruits. They were discussing appropriate ways of dealing with members of the public such as the driver to whom they had just spoken. It was during that conversation that the offender’s car hit the officers unexpectedly and violently, causing serious physical injuries and ongoing psychological harm.
The offender was at that time on bail for other offences also involving a police officer as a victim. The offender had led an ordinary life until his mental health began to deteriorate a year or so before this series of events. By May 2021, he had become isolated and quite paranoid, believing that ASIO was monitoring his movements, bugging his phone and poisoning his food. His mother, the only person with whom he remained in contact, became so concerned about his mental state that she contacted mental health services to intervene. On 14 May 2021, after attempting unsuccessfully to engage with the offender through the closed door of his unit, mental health workers decided to take emergency action under the Mental Health Act 2015 (ACT). Police were called to assist. As they attempted to force the door open, the offender responded by hitting one of the police officers over the head with a knife and then setting fire to his own unit. As a result of those events, he was arrested and charged with arson and using an offensive weapon to endanger life. He was released on bail the following day. He was subsequently made subject to a treatment order and has been treated with anti-psychotic medication since that time.
In light of those events and other evidence obtained by police, the offender’s act of driving into three police officers less than two months later rather had the appearance of a targeted attack born of religious ideology. Support for that theory, now no longer part of the prosecution case, was found in extracts of a notebook kept by the offender which appeared to list police and other law and security agencies as targets to kill. The offender was initially charged with three counts of attempted murder and one count of culpable driving causing grievous bodily harm with alternative counts of driving a motor vehicle at police.
However, following investigation of both the mechanics of the accident and the offender’s mental state at the time, the prosecution case changed significantly. A report by Adjunct Associate Professor Anderson, who has a PhD in mechanical engineering, revealed that the offender’s car was slowing down before the swerve to the left began and that the offender was braking hard in the instant before he collided with the police officers, suggesting that he did not at first see them and that, once he did, he reacted to avoid the collision.
Separately, a psychiatric report disclosed that he had been diagnosed with schizophrenia following the arson incident and had been prescribed a combination of medication known to cause certain side effects.
The prosecution accepted that this combination of expert evidence was inconsistent with an intention to kill and supportive of the offender’s case that the collision with the three police officers was not deliberate. Accordingly, on 16 November 2022, the prosecution notified the Court of its intention to file a notice declining to proceed with the charges of attempted murder. The Director of Public Prosecutions then filed an ex officio indictment containing two counts of causing grievous bodily harm by a negligent act. The offender pleaded guilty to those two counts and the pleas were accepted by the prosecution on the limited basis that the offender was negligent in driving at a time when he was aware of the deleterious effects of his medication.
It is important to understand that the offender’s liability to be punished today is determined by the indictment to which he has pleaded guilty. As a result of the decisions of the Director of Public Prosecutions to file an ex officio indictment alleging less serious charges and to accept the offender’s pleas of guilty to those charges in full discharge of his criminality, he stands to be sentenced today only for two acts of causing grievous bodily harm by an act of negligence, contrary to s 25 of the Crimes Act 1900 (ACT). The maximum penalty for that offence is five years imprisonment. High Court authority forbids me from sentencing the offender on the basis of any more serious offending that might have been charged but was not: R v De Simoni [1981] HCA 31; 147 CLR 383. It is not open to me to sentence the offender as if he had pleaded guilty to offences of culpable driving causing grievous bodily harm, which carries a maximum of ten years imprisonment, or driving at a police officer, which carries a maximum penalty of 15 years imprisonment. The decision as to what charges to prosecute is made by the Director of Public Prosecutions, not the Court, and I am bound by that decision.
Nature and circumstances of the offence
The facts were put before the Court in the form of a statement of agreed facts tendered by the prosecutor. That document states that, as the offender drove past the car that had been pulled over by the police officers, he turned the steering wheel 250 degrees to the left, causing it to veer off the road at between 45 and 90 degrees from the direction in which it was travelling. The offender then travelled directly at the three police officers and collided with all three. It is an agreed fact that, prior to impact, the offender applied the brakes with maximum force. At the point of impact his car was moving at 18-19 km/h.
The prosecutor also tendered and played in Court CCTV footage from the rear camera of the police car which captured the moment of collision. That footage gave a stark presentation of the force and unexpectedness of the collision.
10. The agreed facts state that, at the time of the collision, the offender was medicated by a combination of prescribed drugs. I will return to consider the effects of that medication.
11. The agreed facts as to the movements of the offender’s car immediately before the accident are supported by the report of Professor Anderson tendered by the offender. Based on a careful review of the CCTV footage, Professor Anderson concluded that the offender’s vehicle was travelling in the right side of the left lane at a speed of about 34 km/h with the right indicator on for about three seconds. Professor Anderson reported that the car was slowing before it suddenly swerved to the left and decelerated further immediately before it struck the three police officers. He said that maximal breaking was applied at that time. Professor Anderson’s conclusions were not contested, and the prosecution accepts on the strength of that report that the offender’s collision with the three officers was unintentional.
12. The offender’s vehicle was otherwise found to be mechanically sound with no defect that might explain the incident. There were no hazards on the road or weather which impaired visibility.
13. The agreed facts record that the offender's car first struck Detective Leading Senior Constable Mills from behind, causing him to ride up onto the vehicle's bonnet, striking the windscreen with his head and back, and then propelling him to the ground in front of the vehicle. One of the younger officers was lifted onto the vehicle's bonnet and thrown to the ground while the other, Constable Alyce Mueck, was thrown to the ground where her right leg became trapped beneath the front left wheel of the offender’s vehicle.
14. Immediately after the collision, the offender got out of his car and was restrained by the driver of the other car that had been pulled over earlier. The other driver then moved the offender’s vehicle backwards to free Constable Mueck’s leg which was still pinned under the front left tyre.
15. Detective Leading Senior Constable Mills sustained an acute compressive fracture to his T12 vertebral body with a 20 per cent loss in anterior vertebral body height. He also suffered an abrasion on his scalp and right palm. He has experienced ongoing back and muscular pain as a result of those injuries.
16. Constable Mueck sustained three separate fracture injuries to her right leg. Photographs of the fractures included in the agreed statement of facts reveal the extent of the fractures. She must have suffered excruciating pain at the time. She underwent a surgical procedure under general anaesthetic for the insertion of a right tibial nail. She will experience permanent scarring and the tibial nail will be permanently visible in medical imaging.
17. The offender was arrested at the scene of the collision. About 40 minutes later, he was assessed by a forensic medical officer who recorded that he appeared coherent and oriented; that he demonstrated insight and capacity for judgment and that he presented as being physically normal. No alcohol was found in his blood.
18. The following day, the offender underwent a mental health assessment at Court during which he stated that he did not “remember much” and that his mental health had been “fine” apart from feeling “sedated” by his medication. He denied any psychosis and appeared cogent to the assessor. There is no record of his making any mention of experiencing blurred vision.
19. The offender was remanded in custody until 17 November 2022, when he pleaded guilty to the reduced charges and was granted bail. By then he had served 495 days on remand including the day on which he was released (1 year, 4 months and 1 week).
Circumstances of the offender
20. The offender is now aged 33 years. He has had a relatively unexceptional background. He grew up in a happy environment with one older sibling and two younger half siblings. His relationships with his family members remain good and supportive.
21. The offender completed Year 12 and went on to complete three semesters of a bachelor’s degree in architecture. He then worked in administration and transport and later completed vocational training in Security Operations. The decline of his mental health from around 2019 precluded the offender from completing his studies or remaining employed. While in custody, he completed two short programs on “Working Together” and “Goal Setting”.
22. The offender converted to Islam some years before these offences and states that he does not consume alcohol or use drugs. This has been corroborated by negative drug tests throughout his arrest and incarceration. He is currently single. He previously had a significant partner. From this relationship he has a 6-year-old child who lives interstate with the offender’s ex-partner. The offender has limited contact with that child and is named in an apprehended violence order following an altercation with the child’s stepfather.
23. On 21 May 2021, a week after the arson incident, the offender was diagnosed with schizophrenia. Since 1 June 2021, he has continually been subject to a psychiatric treatment order.
24. It is now common ground that, at the time of the arson incident, the offender was acutely psychotic. The charges arising from that incident were dealt with by Loukas-Karlsson J, who entered special verdicts of not guilty because of mental impairment pursuant to s 321(2) of the Crimes Act. Pursuant to s 323 of the Act, her Honour made an order requiring the offender to submit to the jurisdiction of the ACT Civil and Administrative Tribunal to allow a mental health order or forensic mental health order to be made under the Mental Health Act 2015 (ACT): R v Matthews [2022] ACTSC 105.
25. Loukas-Karlsson J’s verdicts were largely based on the expert opinion of Associate Professor Carroll at [150]-[153] where he said:
At the time of the [14 May 2021] offences, [the accused] was untreated and was acutely psychotic due to his schizophrenia. As a direct result of his psychotic symptoms, at the time when he used an offensive weapon (knife) and committed arson:
· He was in the grip of a longstanding delusional belief system that he was under persecution from ASIO, reinforced by both auditory and somatic hallucinations;
· He believed that the police were acting at the behest of ASIO;
· He was in a state of intense fear, believing that he was at imminent risk of serious harm – possibly death – from the police;
As a result of the above, in my opinion [the accused] believed that he was morally justified in defending himself with a knife to his apartment, in order to forestall what he considered to be the high likelihood of his being apprehended and seriously harmed (possibly killed) by police. In my opinion, at the relevant time:
· He knew the nature and quality of his conduct.
· He was able to control his conduct.
· He was unable to reason with a moderate degree of sense and composure about whether his conduct as seen by a reasonable person was wrong, as a result of his mental impairment.
I would therefore be supportive of a defence under s 28 of the Criminal Code, but ultimately this is a matter for the court to determine.
26. As already noted, by the time of the current offences, the offender was receiving a combination of medications including a monthly slow-release injection of Paliperidone (the primary anti-psychotic treatment), Lorazepam (a treatment for anxiety) and Temazepam (a treatment for insomnia). He had been taking Temazepam since 5 July 2021 and had last taken it the night before the incident. His most recent injection of Paliperidone at the time of the collision was 22 June 2021.
27. The offender told Associate Professor Carroll that he recalled being troubled by the side effects of Paliperidone. He said it made him “extremely lethargic and drowsy”, that it caused “blurry vision” sometimes and that it affected the quality of his sleep. He said at the time of the collision his vision “went a bit blurry” and he remembered trying to pull his car over to the side of the road. When pressed on that issue by Associate Professor Carroll, the offender said that he had suffered “bouts of blurred vision lasting for up to five seconds or so, on a regular basis, ‘a few times a day’ since starting Paliperidone”. Five seconds is a long time behind the wheel of a moving vehicle. The offender said the day of the accident was the first time he had been afflicted by blurred vision while driving. Significantly, he told Associate Professor Carroll that, because of the problems with his vision due to his medication, he had been trying to minimise his driving.
28. At the proceedings on sentence, counsel for the offender emphasised evidence that the offender’s experience was consistent with the known side effects of the drugs with which he was being treated at the time. The side effects of Paliperidone include sedation, drowsiness, dizziness and blurred vision. The evidence also established that Temazepam is known to affect memory, attention and cognition, impacting driving ability when taken at high levels. An expert report of from a forensic pharmacologist and toxicologist noted that, due to the offender’s recent commencement of Temazepam, he would have not developed a tolerance to those side effects. The report further noted that the combined use of the anti-psychotic medication with Temazepam “can result in severe side effects ranging from hypotension, excessive sedation, delirium to unconsciousness, cardiac arrest and coma” and that the offender may have experienced a loss of consciousness or a memory blackout and troubled vision at the time of the incident. However, no such claim is recorded in the agreed facts.
29. There was also a report from Associate Professor Parekh, a forensic toxicologist, which noted a series of potential impacts the offender’s psychiatric condition could have on driving ability based on medical literature. However, Associate Professor Parekh did not examine the offender. Her report addressed potential impacts.
30. The better evidence is what the offender said he in fact experienced at the time of the collision, which was an episode of blurred vision. The difficulty for the offender is that evidence in his own case clearly establishes that he was aware of that side effect for some time before he made the decision to drive on the day of the collision. As already noted, he told Associate Professor Carroll that he had suffered bouts of blurred vision a few times a day and that he had been minimising his driving for that reason.
31. As to the offender’s mental state at the time of the offending, Associate Professor Carroll found no evidence of substantial impairment. He could find no evidence that the offender’s mental capacity to understand, judge or control his conduct was substantially impaired at the time of the July charges. He found no evidence that the offender’s capacity to reason was substantially impaired at that time and nothing to suggest that the offender lacked the capacity to form the specific intent necessary to carry out the conduct underlying the charges.
The s 10 threshold
32. For any offence punishable by imprisonment, the power to sentence an offender to imprisonment is enlivened only if the Court is satisfied, having considered possible alternatives, that no other penalty is appropriate: s 10(2) of the Crimes (Sentencing) Act 2005 (ACT).
33. Mr Pappas submitted that the threshold for imprisonment is not met in this case for a number of reasons which may be summarised as follows. First, he noted that, at the time of the offending, the offender was “psychiatrically unwell”, having been diagnosed with schizophrenia. Mr Pappas submitted that, although the offender was being treated for that condition, he was in the early stages of that treatment at the time. He noted Associate Professor Carroll’s opinion that the offender would “still have been diagnosable with schizophrenia” at the time of the collision. However, the Professor went on to say “but the symptoms of that condition do not appear to have had any impact on his reasoning or self-control at the relevant time” based on all the information available to him.
34. The second matter relied upon to support the submission that the s 10 threshold is not met was that, at the time of the offending, the offender had been treated with a combination of prescribed medication which had the potential to impair his driving ability. The submissions relied on medical literature which recommends that people who have been started on a course of Paliperidone not drive until they are certain they are not adversely affected by the drug. It was noted that neither the offender nor his mother received such advice. However, as already noted, the offender was aware that he was experiencing symptoms that might impair his ability to drive and was avoiding driving for that reason. In my view, the absence of advice is of little significance in that context.
35. The third matter relied upon was that it was “common ground” that, on the day of the collision, “the offender was affected, at the minimum, by the onset of blurred vision; that he panicked to some extent because he saw a police vehicle; that he pulled his vehicle to the side of the road because he didn’t want to get into trouble and be arrested by police again and that he unintentionally struck police officers with his vehicle as he tried to bring it to a halt.” It was submitted that the concern about being in trouble with police had some foundation in the earlier arson incident which resulted in the offender obtaining a diagnosis and treatment for his deteriorating mental state. For the reason already explained, I am not persuaded that the sudden onset of blurred vision mitigates the offending. On the contrary, that was the very risk the offender had already discerned. His decision to drive knowing of that risk involved a high degree of negligence, in my assessment.
36. As to the offender’s apparent panic when he saw the police vehicle, I do not see that as a factor mitigating the objective seriousness of the offences where the charges are based on negligence at an anterior point in time.
37. Fourthly, the offender relied on the fact that, since the arson incident, he has been the subject of continuous psychiatric treatment orders with the result that his psychiatric illness is now in remission. That is a strong factor in his favour.
38. The prosecutor submitted that the Court should be satisfied that no other penalty than imprisonment is appropriate having regard to the nature of the injuries suffered by the victims, the impact of the offences on them and the degree of departure from the standard of care that a reasonable person would have exhibited.
39. I do not accept the offender’s submission that the case involves a very low level of objective seriousness. As already indicated, I am of the view that the degree of negligence was high. The offender simply should not have been driving at that time, knowing as he plainly did that he was affected by his medication and was liable to suffer a bout of dizziness or blurred vision at any time.
40. The injuries resulting from the offender’s negligent decision to drive that day were serious and have had a devastating impact on the three police officers concerned.
41. Victim impact statements were provided by two of the three officers. The first was from Detective Leading Senior Constable Alun Mills, who had been an officer for over 34 years. His back was injured badly. The screams of his colleague, Constable Mueck, whose leg was trapped under the car are etched into his mind. The collision has caused him lasting physical, psychological and financial injury. He suffers permanent back ache. He had never experienced anxiety for the whole of his lengthy career until after this incident. He is now on long term sick leave for post-traumatic stress disorder, often finding himself triggered by random events or reduced to tears for no apparent reason. He is currently medicated and has been told he will likely be medicated for the rest of his life. He has been told he will never be the same. He is unsure if he will ever be able to return to police work, which was his pride and his passion. He states, “This is not how I wanted to end my policing career”.
42. The other officer who provided a victim impact statement was Constable Melanie Miller. She also gave a chilling description of the memory of hearing Constable Mueck scream while she was pinned under the wheel of the car. It was Constable Miller’s fourth shift in the community as a sworn officer. After being sent flying through the air and landing in the grass, she found herself facing the offender alone while her colleagues lay injured. She realised that, without knowing it, she had drawn her firearm and was pointing it in the direction of the offender screaming at him to get on the ground.
43. Constable Miller learned the next day that she had suffered an undisplaced fracture of the lateral tibial plateau, minor tearing and a strain. She could not bear weight on her leg for about six weeks and had to undergo extensive physiotherapy. As a result of being taken off operational duties, she felt that she slipped behind her fellow recruits and that had a significant impact on her mental health. To her credit, she was able to regain her physical and mental strength and has returned to her duties as a police officer.
44. For reasons that are not explained in the material before me, there is no charge relating to Constable Miller and the prosecutor did not explain in submissions how her statement can properly be taken into account: cf s 49 of the Crimes (Sentencing) Act 2005. The prudent approach is not to rely on that statement for the purposes of sentencing. I nonetheless acknowledge the significant pain and suffering experienced by Constable Miller and her courage in returning to her duties.
45. The victim of the second offence, Constable Mueck, did not provide a victim impact statement. Of course, it does not follow that she has not suffered harm as a result of the collision and I am prohibited from drawing any such inference: s 53(1)(b) of the Crimes (Sentencing) Act. As already indicated, I have no doubt that Constable Mueck would have suffered excruciating pain at the time of the collision. Her rehabilitation from the fractures depicted in the photographs in evidence would have been lengthy and no doubt painful.
46. In all the circumstances, I am satisfied that no sentence other than imprisonment is appropriate.
47. Mr Pappas submitted that, if the s 10 threshold is met, the Court would conclude that the time the offender has already served is adequate to meet the purposes of sentencing having regard to the offender’s very low moral culpability and the consideration that, in light of his mental condition, he is not an appropriate person to be the object of general deterrence.
48. On this issue, the prosecutor agreed. He accepted that Verdins principles are “squarely engaged” and stated that, while the sentence to be imposed is ultimately a matter for the Court, he was not submitting that any further full-time custodial sentence should be imposed.
Application of Verdins
49. The prosecutor’s reference to Verdins principles invokes the well-established proposition that an offender’s mental illness may inform the weight to be given to the various purposes of sentencing: R v Verdins [2007] VSCA 102; 16 VR 240; Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1. A convenient summary of those principles may be found in the decision of Refshauge AJ in R v Massey [2022] ACTSC 3 at [109]:
(a)where the mental illness contributes to the commission of an offence in a material way, but not necessarily the only or primary cause, the offender’s moral culpability may be reduced, and there is not the same call on denunciation and punishment;
(b)the nature and severity of the symptoms and the effect of them on the offender’s capacity may also show that general deterrence should be moderated or eliminated as a sentencing consideration; and
(c)a custodial sentence may weigh more heavily on a mentally ill person, but the danger to the community may require a sentence that will protect the community, increasing the need for general deterrence or specific deterrence.
50. It may be accepted that those principles are “squarely engaged”. The question is, how? I am not persuaded that the offender’s mental illness contributed to the commission of the offences in a material way. Mr Pappas submitted that, although the offender was receiving treatment by the time of the offence, his disordered thinking may not have been in complete remission, so that residual difficulties in processing information and making decisions remained in play. He submitted on that basis that his moral culpability is “very low” when regard is had to his mental state at the time of the incident.
51. The evidence does not support that submission. I have already referred to the evidence of Associate Professor Carroll which establishes that the offender was well aware of the risk of his vision becoming blurred in the days leading up to the collision. He was rational enough to have reasoned that he should minimise his driving on that account. To the extent that his negligence in deciding to drive notwithstanding his rational appreciation of that risk is capable of being informed by any “residual difficulties”, I would assess that to be a consideration of little weight in determining his moral culpability for the negligent act of driving when he knew he was prone to bouts of blurred vision and appreciated he should be minimising his driving.
52. I do accept that any further custodial sentence may weigh more heavily on the offender. I also accept that he is not a danger to the community so long as his medication is properly managed.
The pleas of guilty
53. The offender has served 1 year, 4 months and 1 week attributable to these offences.
54. The prosecutor submitted that the offender is entitled to a reduction of 20 per cent to reflect the utilitarian value of the plea. Mr Pappas submitted that the offender must be taken to have pleaded guilty in effect at the earliest reasonable opportunity but did not otherwise take issue with the reduction suggested by the prosecution.
55. The entitlement to a reduction on sentence if an offender pleads guilty to an offence is governed by s 35 of the Crimes (Sentencing) Act 2005 (ACT). For present purposes, the factors relevant to determining the amount of any reduction in accordance with that section are the timing of the plea, the seriousness of the offences and the effect of the offences on the victims. The consideration of those factors authorises the imposition of a lesser penalty than would otherwise have been imposed, if the offender had not pleaded guilty to the offence. However, s 35(4) prohibits the Court from making any significant reduction for a guilty plea if the Court considers that the prosecution case was overwhelmingly strong.
56. I called upon the parties to address me on that issue. The prosecution tendered a further psychiatric report, not for its contents but to show that the question of mental impairment was in play until the pleas of guilty were accepted. In light of the agreed position of the parties on this issue, I cannot find that the case was overwhelmingly strong. However, I am required to ensure that any lesser penalty imposed on account of the pleas of guilty must not be unreasonably disproportionate to the nature and circumstances of the offence.
Additional considerations
57. The offender has expressed remorse for the offending. In a letter to the Court, he states that he takes “full responsibility for the accident” and the impact on the victims, for which he is profoundly sorry and which distresses him deeply. He also expressed the wish to apologise to the police officers if possible. He stated that, after the accident, he felt “very regretful”.
58. The offender has already spent a substantial period in custody. He was arrested at the scene of the accident on 11 July 2021 and denied bail on the original charges of attempted murder. On 16 November 2022, upon the filing of the fresh indictment, he was granted bail having served 495 days in custody on remand.
59. A letter from ACT Canberra Health Services dated 16 February 2023 confirms that the offender’s mental state is now stable. His general practitioner is of the same view, stating in a letter dated 20 February 2023 that the offender receives strong support from his family, has a good support network in place and is doing “all that he can” to successfully manage his condition.
60. The offender’s mother also provided a letter to the Court. It is clear that she is his stalwart and that, with her support, provided that he continues to accept treatment, he is likely to remain in a stable mental state. There is no evidence to suggest that he poses a danger to the community so long as that remains the case.
61. I accept that, so long as the offender remains compliant with his medication, he has good prospects of rehabilitation. A significant factor in making that finding is the high level of support he receives from his family and especially his mother, whose devotion is manifest.
Purposes of sentencing
62. The only comparable decision in this Court for an offence of causing grievous bodily harm by a negligent act is the case of Hughes v Grieve [2006] ACTSC 92. That was an appeal from the Magistrates Court in which the offender, a taxi driver, drove in pursuit of two men who had left the taxi without paying the fare. One of the men was in the process of climbing over a fence when the taxi collided with the fence and that man’s leg. He sustained a complex fracture of the mid-left foot joints. The taxi driver was charged under s 25 of the Crimes Act. He was sentenced in the Magistrates Court to 12 months imprisonment, but was ordered to serve only 4 months of that sentence upon entering a 3-year good behaviour order. His licence was also suspended for 18 months. The appellant appealed only against the length of the licence suspension. The appeal was dismissed.
63. I do not think that decision is of any great assistance here. The facts are too different. No other comparable cases have been identified.
64. I have already addressed some of the purposes of sentencing stated in s 7 of the Crimes (Sentencing) Act. For the reasons I have explained, while I accept that a custodial sentence will weigh heavily on the offender, some weight must be given to the need for deterrence. I also give some weight to community protection in the imposition of orders calculated to ensure that the offender remains compliant with his medication.
65. In my assessment, however, the prosecutor’s concession that no further period of imprisonment is required in this case pays inadequate regard to the need to denounce the high degree of negligence involved in driving knowing of the risk of being rendered unable to see for up to five seconds and the need to recognise the very substantial harm done to the police officers whose lives have been so dramatically affected by the events of that day. I am of the view that a further term of imprisonment must be imposed.
66. I have given consideration to whether the offender should be permitted to serve any further period of imprisonment by Intensive Correction Order (ICO). The offender has consented to the making of such an Order. The prosecution supported the imposition of an ICO and the conditions recommended, submitting this sentence “would result in the highest degree of community-based supervision available”.
67. The ICO assessment recommended the following conditions: that he maintain engagement with mental health providers and adhere to a medication regime; that he undertakes counselling; that random urinalysis is conducted; that Corrective Service be notified by his health providers if there is any deterioration in his mental health; that he not threaten or intimidate any law or government officer; that he allow his electronic devices to be monitored; and that he not drive.
68. There are concerns however, held by both Corrective Services and the prosecution, regarding the imposition of a curfew. A curfew has already been in place as a bail condition without issue, but the assessment noted that continued “curfews and subsequent compliance checks is likely to exacerbate the negative view of Authority and may escalate [the offender]” given his history. Corrective Services noted visits may not be conducted if deemed unsafe for staff, but proposed his living arrangements could be adequately monitored through his parents and the health services that are heavily involved in his management.
69. In any event, in my view the matters to which I have referred require the imposition of a full-time custodial sentence. But for the plea of guilty, I would have imposed a sentence of imprisonment for two years for each offence with some accumulation to reflect the different harm done to each victim. The degree of accumulation will be modest, reflecting the fact that both offences involved the same conduct on the part of the offender. I consider that the appropriate reduction for the pleas is approximately 15 per cent giving a sentence for each offence of 20 months (rounding down). The starting date of the first sentence will be backdated by 495 days to allow for the time the offender has already spent in custody. The second sentence will be accumulated on the first by three months. I propose to impose a combination sentence for the second offence consisting of the term of imprisonment combined with a 12-month good behaviour order. The aggregate sentence will expire on 10 October 2023.
Sentence
70. Thomas Matthews, please stand:
(1) For the offence of causing grievous bodily harm to Alun Mills by a negligent act contrary to s 25 of the Crimes Act 1900 (ACT), you are convicted and sentenced to a term of imprisonment for twenty months commencing on 11 November 2021 and expiring on 10 July 2023.
(2) For the offence of causing grievous bodily harm to Alyce Mueck by a negligent act contrary to s 25 of the Crimes Act 1900 (ACT), you are convicted and sentenced to a term of imprisonment for twenty months commencing on 11 February 2022 and expiring on 10 October 2023 and a good behaviour order for a period of 12 months commencing on 11 October 2023 subject to the condition that, should he, during that period, no longer be subject to an order of the ACAT under s 58(2) of the Mental Health Act 2015 (ACT), he accept such treatment as may be recommended by his general medical practitioner, Dr Anthony Morris, or any general medical practitioner or specialist acting instead of him, in relation to his diagnosed condition of schizophrenia including recommendations as to appropriate medication.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: 21 March 2023 |
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