Hayes v The Queen
[2010] VSCA 170
•1 July 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| DONA MICHELLE HAYES | S APCR 2007 0844 |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN and BONGIORNO JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 1 July 2010 | |
| DATE OF JUDGMENT | 1 July 2010 | |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 170 | 1st Revision 25 January 2011 |
| JUDGMENTS APPEALED FROM | R v Hayes (Unreported, County Court of Victoria, Judge Williams, 11 October 2007) and R v Hayes & Jorgensen (Unreported, County Court of Victoria, Judge Williams, 22 January 2008) | |
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CRIMINAL LAW – Sentence – Culpable driving and armed robbery – Fresh evidence – Evidence of complications resulting from a condition existing at the date of sentence – Appellant re-sentenced – Using methylamphetamine – Sentence of three months’ imprisonment manifestly excessive.
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Appearances: | Counsel | Solicitors |
| For the Appellant | Mr C Carr | Victoria Legal Aid (Melbourne) |
For the Crown | Mr C J Ryan, SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
These reasons are to be read in conjunction with the reasons in the matter of Jorgensen v The Queen.[1]
[1][2010] VSCA 171.
The appellant was arraigned in the Supreme Court and pleaded guilty to a presentment containing one count of culpable driving. The appellant also pleaded guilty to three summary offences: using methylamphetamine; driving whilst her licence was suspended; and driving an unroadworthy vehicle. After a plea, on 11 October 2007 the appellant was sentenced to be imprisoned for a term of five and a half years on the count of culpable driving and for a term of three months on each of the charges of using amphetamine and driving while her licence was suspended. On the charge of driving an unroadworthy vehicle, the appellant was convicted and discharged. The sentences on the summary offences were ordered to be served cumulatively on the sentence on the count of culpable driving. The total effective sentence was six years' imprisonment. The sentencing judge ordered the appellant to serve four years' imprisonment before she was to be eligible for parole.
In the middle of the day on a Sunday in April, the appellant was driving south west on Monbulk Road. There was a passenger in the front seat and the appellant's daughter was in a rear seat. Shortly before the accident giving rise to the offence, the appellant received a phone call. The appellant's passenger said that the appellant appeared to be agitated by the phone call and drove more aggressively thereafter. In addition, the appellant had a shouting match or argument with her daughter. It appears that the combination of circumstances I have described led to the appellant increasing the speed of her car until it reached a speed of approximately 110 kph in a 70 kph zone.
Entering a gentle right hand bend, the appellant's car left the bitumen and slid in gravel, which caused the appellant to over-correct, resulting in a loss of control. The appellant's car crossed on to the opposite of the road and there was a head-on collision with another car. The driver of the other car was killed.
It was alleged in the presentment that the driving was culpable because it was negligent and performed under the influence of drugs. The sentencing judge said:
I have concluded that despite your admission by your plea that you had some methylamphetamine in your system at the time of the offence, there is inadequate evidence before me to allow me to conclude beyond reasonable doubt that you were aware that it was still in your system or that it was affecting or likely to affect your driving capacity. In other words, I have to treat you as a person with no belief that you were under the influence of that drug, or indeed any other drug or substance.
The appellant is some 39 years old. She had 23 prior convictions from four court appearances including convictions for offences of dishonesty, drug offences and speeding. According to reports by two psychologists which were tendered in the course of the plea, the appellant's family had an extensive history of mental disturbance. The appellant's father was an alcoholic and suffered from bipolar disorder. Both the appellant's mother and grandmother have been diagnosed with depression.
At the age of 14 years the appellant was raped by three men. As a consequence the appellant developed pelvic inflammatory disease and ultimately endometriosis, a very painful condition. The appellant also suffered from irritable bowel syndrome as well as Sherman's disease and Ehlers-Danlos syndrome, resulting in chronic joint pain.
The appellant was educated to Year 10 and worked at a personal care attendant at a hospital until her second pregnancy. The appellant has not worked since. The appellant has two young children; a boy and a girl. The father is Benjamin Jorgensen. The children were placed in foster care. The appellant and the father of her children have separated. In addition, the appellant has a 15 year old daughter from an earlier relationship. The daughter was living with the appellant's mother when the appellant was sentenced.
The appellant's relationship with Jorgensen was stormy. The appellant was frequently assaulted. Jorgensen used marijuana and heroin and often drank to excess. The appellant also used marijuana and heroin, but, she maintained, only while the relationship lasted. One of the psychologists diagnosed the appellant as suffering from a chronic depressive disorder with a superimposed post traumatic stress disorder. He described her as, 'emotionally fragile, psychologically scarred and immature'.
Some three months after the appellant was sentenced on the count of culpable driving and the summary offences, she was sentenced to a term of four years' imprisonment when she pleaded guilty to a presentment containing one count of armed robbery. The robbery was carried out by the appellant and Jorgensen. The appellant was sentenced to be imprisoned for a term of four years. Two years of the sentence was ordered to be served cumulatively upon the sentence imposed on 11 October 2007. The total effective sentence was one of eight years' imprisonment. The sentencing judge fixed a new single non-parole period of five and a half years to commence on 22 January 2008.
In the course of the armed robbery, Jorgensen accidentally discharged a shot gun. The pellets struck the appellant in the buttocks. The judge who sentenced the appellant on the count of armed robbery said:
You were in hospital for four weeks and you are it seems obviously still affected and using a crutch. You have been left as I say with significant symptoms and pain from that injury.
The appellant has been granted leave to appeal against the sentences by a single judge of this Court. The appeal was originally based upon evidence of a dramatic deterioration in the appellant's health as a result of the shot gun wound, a deterioration which post dates the second sentence. At the hearing of the appeal, counsel for the appellant sought to add the following grounds:
(a)The sentence imposed on the charge of using a drug of dependence and the order for total cumulation of that sentence upon the sentence on the count of culpable driving are manifestly excessive.
(b)That the learned sentencing judge erred in cumulating the whole of the sentence imposed on the charge of using a drug of dependence upon the sentence on the count of culpable driving.
The shot gun pellets fractured the appellant's femur. The fracture was treated by inserting a metal rod into the femur. The appellant developed an abscess in her thigh. According to a report by an orthopaedic surgeon dated 10 May 2010, the appellant was experiencing ongoing pain in her upper thigh. She was required to use crutches. The surgeon noted that the infection in the appellant's thigh was treated with vacuum dressing and antibiotics and also by the insertion of an antibiotic loaded bone cement. According to the surgeon, if the appellant remained in the condition she was in when he examined her, she would be required to use crutches permanently and would experience pain throughout her life. There were signs of early osteoarthritis of her hip. The surgeon recommended total hip replacement, surgery which he described as complex and requiring prolonged periods of hospitalisation. A report from an infectious diseases physician at St Vincent's Hospital dated 19 May 2010 referred to the difficulties associated with infection of the appellant's wound which caused chronic and delayed reconstructive surgery. An affidavit by the appellant sworn on 2 June 2010 details the extensive treatment which she has a received as a consequence of the wound and the pain and stress which she has experienced as a consequence.
In my opinion, the evidence should be admitted. The evidence related to events which occurred after the sentence and it shows the true significance of facts which were in existence at the time of sentence.[2]
[2]See The Queen v Rostrom 1996 2 VR 97. See also The Queen v WEF 1998 2 VR 385.
Further, I am of the opinion that the injury has significantly increased the pain, distress and incapacity experienced by the appellant. That result of the robbery has and will affect her life in prison. There has also been a significant deterioration in the appellant's mental condition. A psychologist, Mr Joblin, reports that he expects a continued deterioration in the appellant's psychological state if her
physical health does not improve. Accordingly, in my view, a different sentence should now be passed.
The appellant participated in the planning of the armed robbery. She contributed the information that it was likely that there was a significant amount of money at the Cuckoo Restaurant and that it was an easy target. She was fully aware of what was intended. Her counsel at the plea agreed that she was equally culpable with Jorgensen.
As to the additional grounds of appeal, the sentence in my opinion on the summary charge of using a drug of dependence was beyond the range available to the sentencing judge. Considered as it should be, separately from the offence of culpable driving, it did not warrant the imposition of a sentence of imprisonment.
As to re-sentencing, I am of the opinion that the individual sentences imposed by his Honour are appropriate, save that I would set aside the sentence of imprisonment on the charge of using methylamphetamine and order that the appellant be convicted and discharged. In the light of the appellant's state of health, however, I would cumulate 15 months of the sentence on armed robbery on the sentences imposed on the counts of culpable driving and driving while the appellant’s licence was suspended. The total effective sentence will become one of seven years' imprisonment and I would fix a new non-parole period of four and a half years' imprisonment to commence on 22 January 2008.
BONGIORNO JA:
I agree.
BUCHANAN JA:
1. The appeal is allowed.
2. The sentences passed below are set aside.
3.In lieu thereof, on Presentment No 187829496, the appellant is sentenced to be imprisoned for a term of five years and six months on count 1 and to a term of three months on the summary charge of driving while the appellant’s licence was suspended. On the summary charge of using a drug of dependence, the appellant is convicted and discharged. The sentence on the summary charge is to be served cumulatively upon the sentence on count 1. The sentence passed below on the summary charge of driving an unroadworthy vehicle is confirmed.
4.On Presentment No C0705710, the appellant is sentenced to be imprisoned for a term of four years.
5.Fifteen months of the sentence on Presentment No C0705710 are to be cumulated on the sentence on Presentment No 187829496. The total effective sentence is seven years’ imprisonment. It is directed that the appellant serve a term of four years and six months’ imprisonment before the appellant is to be eligible for parole.
6.The order made below for the taking of a forensic sample is confirmed.
7.It is declared that a period of 1186 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.
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