Frazer Woods v Akai Akai
[2010] ACTSC 142
FRAZER WOODS v AKAI AKAI
[2010] ACTSC 142 (28 October 2010)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 27 of 2010
Judge: Mathews AJ
Supreme Court of the ACT
Date: 28 October 2010
IN THE SUPREME COURT OF THE )
) No. SCA 27 of 2010
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:FRAZER WOODS
Appellant
AND:AKAI AKAI
Respondent
ORDER
Judge: Mathews AJ
Date: 28 October 2010
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
The sentence handed down by the Magistrate on 12 April 2010 be confirmed.
This is a Crown appeal against the inadequacy of a sentence imposed on the respondent on 12 April 2010. On that date, the learned magistrate convicted the respondent of a charge of negligent driving occasioning death, and sentenced him to 12 months’ imprisonment, fully suspended upon his entering into a good behaviour order for 36 months. His driver’s licence was also disqualified for a period of two years.
On the same day, the learned magistrate convicted the respondent on a charge of driving with the prescribed content of alcohol. He was fined $300 and his licence was disqualified for a period of three months, concurrent with the other period of disqualification. No appeal has been lodged in relation to that second matter.
The grounds of appeal in this case are, first, that the sentence is manifestly inadequate. Second, that her Honour erred in failing to give sufficient weight to general deterrence in relation to the respondent. Thirdly, that her Honour erred in giving too much weight to the extra curial punishment of the respondent. Fourth, her Honour erred in failing to give sufficient weight to the objective seriousness of the crime. Finally, her Honour erred in imposing a fully suspended sentence.
Principally, the appellant’s submission is that the suspended sentence was manifestly inadequate, particularly having regard to the importance of general deterrence in relation to this type of offence.
The offence took place in the early hours of the morning of 19 July 2008. Between about 6.30 am and 7 am that morning, the respondent’s vehicle was travelling west on Lanyon Drive, Hume, in the ACT. The deceased victim was sitting in the front passenger seat of his car. As the car approached the Jerrabomberra Creek bridge, the vehicle left the bitumen, went onto the grass verge and struck the edge of a guard rail. As a result of this impact, the vehicle rotated in a clockwise direction and eventually became airborne and crashed into the western embankment. The respondent sustained serious injuries, which I will describe later. The deceased was trapped in the passenger seat for some time. He was ultimately freed but died 10 days later, on 29 July 2008.
It was accepted that the respondent feel asleep immediately before the accident and it was this which caused the vehicle to leave the road. There was further evidence before the magistrate as to what had happened the night before the accident. Put shortly, although the respondent drank very little before midnight, he apparently drank approximately five or six beers in the hour after midnight. His blood alcohol reading at 8.42 am, after the accident, was still 0.06. He did not go to bed until about 1.45 am and set his alarm for 5.30 am. Accordingly, he had slept for only approximately three and a half or three and three quarter hours.
He and the victim were on the road within 15 or 20 minutes after waking up. It was apparently a frosty morning, so the respondent had put the heater in the car onto high. He told the magistrate that he felt fresh and alert, but the magistrate found that he should have realised that he was in danger of falling asleep, which is precisely what happened.
The magistrate therefore found that the respondent was negligent in that he drove his vehicle in circumstances when the ordinary prudent driver would not have driven or thought it was safe to do so, given his lack of sleep and his alcohol consumption.
I turn now to say something about the circumstances of the respondent. He is a native of the Cook Islands and is now 28 years old, having been born on 11 March 1982. He lives in Sydney with his partner and his six year old daughter from a previous relationship. He is working in the construction industry, and has been doing so for some considerable time. The respondent apparently led a relatively uneventful life until this accident. He had a good employment history and enjoyed his sport and various other social occasions.
The accident has clearly been a defining event in his life. The victim was not only his cousin, by marriage, but his best friend. They apparently were accustomed to doing a great deal together. The respondent suffered serious physical injuries in the accident, which have required extensive treatment, surgical and otherwise. His principal injuries have consisted of fractures and injuries in the spinal region, a fracture in the right temporal skull region and also a significant injury to his chest-wall which was diagnosed as a manubriosternal joint dislocation. This has already required surgery on two occasions and will probably require further surgery.
These injuries have led to permanent and ongoing pain and disability, which have affected the respondent’s working and recreational life ever since. However, the physical sequelae of this accident, serious as they are, have been dwarfed by the psychological and psychiatric consequences to the respondent of this accident. The victim was, as I have said, not only a relative, but his closest friend. The respondent was diagnosed by Dr Egan, a psychologist, as suffering from post-traumatic stress disorder as a result of the accident, with all the serious psychological manifestations of this condition. She described the accident as “life changing”, for the respondent.
Dr Robert Gertler described the respondent’s deteriorating grief reaction following the accident as follows (page 78):
Mr Akai has been unable to come to terms with the sequelae of the motor vehicle accident. He’s become depressed in part because of the losses which he’s sustained in his capacity to function in the workplace and socially, but more importantly, in dealing with the loss of his best friend for whose death he feels responsible.
Mr Akai, in my opinion, suffers from an adjustment disorder with depressed mood. His level of depression is of moderate severity, although at times it has been major and has been associated with suicidal ideation and behaviour. Mr Akai is currently receiving counselling for the adjustment disorder with depressed mood. He’s been prescribed antidepressant medication in the past, but has been unable to tolerate the side-effects.
The counselling which Mr Akai is receiving appears to be of some benefit, however in my opinion, he should be under the care of a psychiatrist and should be taking antidepressant medication. The choice of antidepressant could be determined over several consultations with a psychiatrist.”
That report was dated 26 November 2009.
Essentially, Ms Weston-Scheuber for the appellant contends that an immediate custodial sentence is required in this case, particularly having regard to the importance of general deterrence in relation to this type of offence. The magistrate erred in placing too much emphasis on the respondent’s subjective circumstances; it is submitted, and too little on the objective seriousness of the offence.
A number of authorities were referred to but ultimately each sentencing decision must be determined by reference to the situation in the immediate case. In this respect, unusual cases call for unusual responses and in my view this is indeed a most unusual case, particularly having regard to the extra curial punishment which the respondent has already suffered and which he will continue to suffer, it would seem, indefinitely.
As to deterrence, Mr Forster for the respondent, submitted and I quote, I hope correctly: “This is an offence which you would not wish upon your worst enemy”. In other words, there is a strong element of deterrence inherent in the circumstances of the offence. The objective circumstances of the offence are at most in the middle range of seriousness for the offence.
Given the extraordinary subjective circumstances and particularly the extra curial punishment which the respondent has suffered and continues to suffer, I do not consider that a suspended sentence, as imposed by the magistrate, in this most unusual case, was manifestly inadequately. Accordingly I reject the appeal and confirm the sentence.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Mathews.
Associate:
Date: 10 November 2010
Counsel for the Appellant: Ms K Weston-Scheuber
Solicitor for the Appellant: Director of Public Prosecutions for the ACT
Counsel for the Respondent: Mr Forster
Solicitor for the Respondent: Wilson Phillips as agents for MJ (Joe) McCarthy
Date of hearing: 28 October 2010
Date of judgment: 28 October 2010
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