R v Beattie

[2024] NSWDC 583

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Beattie [2024] NSWDC 583

Hearing dates:

21 June 2024

Date of orders:

30 August 2024

Decision date:

30 August 2024

Jurisdiction:

Criminal

Before:

D Barrow SC DCJ

Decision:

See [73] - [75]

Catchwords:

CRIME - SENTENCE - fail to stop and assist after a vehicle impact causing grievous bodily harm, s 52AB(2) of the Crimes Act 1900 - aggravated dangerous driving occasioning grievous bodily harm, s 52A(4) of the Crimes Act 1900­­

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1990

Category:

Sentence

Parties:

The Crown
The offender (Mr Beattie)

Representation:

The Crown:
Mr S Lipent, Counsel

The offender:
Ms L Robeau, Solicitor

File Number(s):

2022/00219232

JUDGMENT

1. Mr Beattie pleaded guilty in the Local Court to two serious offences committed on 26 July 2022.

2. The first offence was failing to stop and assist after a vehicle impact causing grievous bodily harm, contrary to s 52AB(2) of the Crimes Act 1900. The maximum penalty of this offence is 7 years imprisonment. There is an automatic disqualification period of 3 years and a minimum disqualification of 12 months.

3. The second offence was an offence of aggravated dangerous driving occasioning grievous bodily harm, contrary to s 52A(4) of the Crimes Act 1900. The maximum penalty is 11 years imprisonment. There is also an automatic disqualification of 3 years and a minimum disqualification of 12 months.

4. The offender also asks the Court to take into account a number of related offences on a Form 1. All but two of these offences are fine and demerit point matters with the exception of the offence of drive recklessly or furiously or speed in a manner dangerous (first offence) where there is a maximum penalty of 9 months imprisonment, and the offence of not stopping vehicle when directed to do so, again the maximum penalty in that matter is 12 months imprisonment.

5. With regard to Form 1 matters, additional punishment is not imposed as a separate penalty for the additional offences. The offences are dealt with by increasing the penalty for the principal offence. Any additional punishment for the principal offence may reflect a greater need for personal deterrence and/or greater requirement for retribution with regard to the principal offence, see Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1990 No 1 of 2002 (2002) 56 NSWLR 146. I note the Crown’s submission that these matters are only of marginal significance to the question of an appropriate sentence.

6. The offender pleaded guilty in the Local Court and is entitled to a 25% discount for the utilitarian value of his plea. During the sentence hearing, the Court received material on sentence including a Crown bundle that included agreed facts, and the offender’s criminal record, custodial record and traffic record. The Court received a sentencing assessment report and two sets of agreed facts in relation to other matters.

7. The first agreed facts were for a set of offences that occurred on the day before this incident involving the theft of two vehicles, including the vehicle that the offender was driving on 26 July 2022.

8. The second set of agreed facts detailed offending that occurred some months earlier on 6 February 2022 and involved the offender driving while his licence was suspended, being in possession of implements to enter a conveyance, having been previously convicted of the same offence, and of altering amount of illicit drug in oral fluid when required to submit to an oral fluid test.

9. The footage of the offender’s interview with police was played and the Court has received a victim impact statement.

10. It is clear from the victim impact statement that, unsurprisingly given the nature of these offences, they had a devastating impact on the victim’s physical and mental health and have caused long term suffering that has not yet abated. Towards the end of the statement the victim says:

“This accident has completely uprooted my entire life and I fear the reality is that I will never be the same person as I was prior to the accident again. I want my voice to be heard of the unfairness of this situation and how I have been subjected to so much pain and trauma as a result of this accident”.

11. On the offender’s behalf the Court received a report from a psychologist Mr Gaius Gorham dated 3 April 2024, a number of certificates that relate to programs that the offender has carried out in custody: a Remand Addiction course, a certificate regarding literacy, a certificate of completion of Dialectical Behaviour and Resilience program and a certificate of attendance of 3 of 10 Connect Sessions in the John Morony Correctional Centre. There was also a report from Doctor Bala a consultant psychiatrist dated 13 December 2023. That report was prepared not for these proceedings but for civil proceedings that the offender is bringing, as I understand, as a consequence of serious child sexual assault committed upon him when he was a very young boy. There is also a letter of claim that relates to those civil proceedings.

Facts

12. The agreed facts are set out in the Crown bundle, and without repeating them in their entirety, they are as follows.

13. At around 7.40am on 26 July 2022 the offender was driving a black SUV that was stolen by him on the previous evening. The roads around the area he was driving in Brookvale were wet and there was moderate traffic. He came to the attention of the police because he made a right hand turn in the path of their police car. It was a prohibited turn and the police activated their warning lights. They were going to make a traffic stop when he accelerated away. There was a very short pursuit.

14. He sped through an intersection on the wrong side of the road and crossed a double white line prior to that. He continued to speed away. These matters resulted in offences that are on the Form 1. Due to the offender’s dangerous driving and speed, the pursuit was discontinued in the interest of public safety. The offender then executed a right turn on the corner of Pine Road and Pittwater Road and travelled south on the main thoroughfare. He executed a right hand turn onto Pittwater Road by crossing onto the wrong side of the road. He moved around a stationary car waiting at a red traffic light, crossing double white lines, and moving into the intersection against a red light.

15. The site of the collision was approximately 500 metres from where the police patrol car last sighted his vehicle. The agreed facts say the vehicle was travelling at 70 kilometres an hour, so it would have taken approximately 30 seconds to drive that distance not allowing for the time at the traffic lights controlling the corner of Pine Road and Pittwater Road. The patrol car heard a broadcast by VKG that a collision had occurred at the corner of Pittwater and Windborne Road at 7.45am. The VKG records record a triple-0 call being made at 7.44.11am that morning, reporting the crash.

16. After the offender turned right on Pittwater Road, he approached the intersection of Windborne Road, which was controlled by traffic lights. The victim was driving a green 1998 Mazda 121. They were the only occupant. It was a very small vehicle. The victim was stationary in lane 2 of two westbound lanes facing the red traffic control light. The traffic control light turned green for the vehicles travelling east and west upon Windborne Road. After being stationary for a minute at the red light, the victim proceeded to enter the intersection lawfully and safely.

17. The offender by contrast was travelling in lane 1 of 3 on Pittwater Road and entered the intersection at speed, six seconds after the light turned red. He collided heavily with the driver’s side door of the Mazda. The footage of the collision was played on the last occasion and it is quite horrifying to see it. As a result of the impact, the Mazda was redirected towards the footpath where a second impact occurred with a street sign, causing the Mazda to come to a stop.

18. The BMW was at a 90 degree angle in relation to the Mazda, a “T-bone”. The force of the impact was such that the Mazda was pushed a distance of 4 or 5 metres. The collision caused the cars to come to standstill. Drivers exited other vehicles to help. The road surface was wet, there were no visual obstructions and the traffic lights were working properly. The vehicle the offender was driving suffered no mechanical defect; the tyres were legal. The victim’s car had no relevant defects.

19. The offender immediately got out of the driver’s seat of the BMW and ran east along Windborne Road. After a few metres he quickly turned and came back to his car, collected an unknown object and then ran away. He was chased by civilians, apprehended 370 metres away and held there until police came. At no time did he offer any assistance to the victim.

20. The victim was taken to hospital by an ambulance. They were in shock. A CT scan revealed multiple fractures to their right pelvis with an extra peritoneal haematoma. They were initially managed with traction that underwent surgery for a broken pelvis. Screws were inserted and they suffered post-accident anxiety and insomnia, things that are referred to in their victim impact statement.

21. The offender was arrested and taken to Manly Police Station. His breath test was negative but he failed a sobriety assessment. A sample of his blood and urine were taken at Northern Beaches Hospital. Multiple civilians and the police noted that the offender had behaved in an erratic spasmodic way with sudden spurts of speed and strength, fluctuating with sudden apparent fatigue. He was incoherent, sweating heavily and one civilian noted he had “never seen anyone with eyes like that”.

22. Police noted his eyes were dilated. He complained that he was sick and that his body ached. He told police he was withdrawing from heroin. While he was in the company of the police he vomited into a bag. The offender was cautioned, and as was his right, declined to participate in an interview. At the time of the offence he held a learner’s licence, but the vehicle he drove did not bear learner’s plates, nor was he accompanied, as required by the road rules. This is a matter on the Form 1.

23. The samples of the offender were tested by a forensic pharmacologist, who opined that his ability to drive at the time of the collision was substantially impaired by methamphetamine. His blood test revealed that he had multiple substances in his blood including morphine and diazepam, although they were at low levels. The pharmacologist noted the level of methamphetamine in the offender’s blood was “toxic and potentially fatal” and highly consistent with recent use.

Objective seriousness

24. Turning to the objective seriousness of the aggravated dangerous driving offence.

25. The offence occurred in the context of the offender continuing to avoid the police, consistent with his earlier conduct, although there was no pursuit on foot at the time this accident or this event occurred.

26. The driving took place on a Tuesday morning, at a busy time of day on a major road when he was substantially intoxicated by methamphetamine. He was driving a car he had stolen the day before.

27. The red light that he ran had been red for 6 seconds. His conduct was a total abandonment of responsibility of the safety of other people. The likelihood of a serious accident was very high and was realised.

28. The injuries that the victim suffered comfortably meet the description of grievous bodily harm. The multiple fractures of her pelvis, the need for surgery that required screws and the resulting mental health issues. They do not aggravate the offence; they simply highlight how serious the consequences were.

29. In terms of the spectrum of injury that the term “grievous bodily harm” can encompass, it can go as far as rendering a person into a vegetative state. I accept that the injuries sustained here do not approach anything like the upper limits of that range but that is really a matter of luck. It cannot be said that it was luck on part of the victim but it was luck on the part of the offender.

30. The offending is plainly very serious. In applying the factors identified in R v Whyte [2002] NSWCCA 343 (Whyte), the Court identifies none that are very helpful for the offender. He is not a young offender; he is not a person of good character or someone with a limited prior record. It is clear that the victim here suffered significant injury. Although it is unclear how permanent the injury is, it is obviously very significant. The victim and the offender were strangers and the offender was not injured.

31. In dealing with these criteria, the question of remorse is a difficult one. In this case, the offender’s plea of guilty being qualified by the strength of the prosecution case is no longer regarded as a reason to reduce the discount a guilty plea’s utilitarian value.

32. Applying the analysis in Whyte, the offence is aggravated by reason of the number of people who were at risk. It is not aggravated by the fact that the offender was intoxicated because this is an element of the offence. It is however very significant when considering the objective seriousness of the matter.

33. The amount of time that the offender spent driving on this occasion was limited. There was earlier erratic and dangerous driving, including escaping the police earlier, ignoring police warning lights and the limited pursuit that was undertaken. In the guideline judgment none of the matters that I have touched upon apply. In those matters the Court said that a fulltime term of imprisonment of under two years was generally not appropriate and that were there aggravating factors, this would require an appropriate increase. There are an abundance of aggravating factors here.    

34. Objectively the offending is significantly worse than a typical case. When considering the objective gravity or seriousness of the offending, the quality of the driving is a serious example of an offence contrary to s 52A Crimes Act 1900.

35. The other matter, his failure to assist the victim, is captured in the video footage that the Court watched on the last occasion.

36. Fortunately, there were numerous people at the scene. I note that one of the purposes of this provision is to try and protect the victims of accidents such that if they are abandoned by the road, the person responsible is liable to further punishment. The Crown recognised this is not a consideration in this case. His flight from the scene was disgraceful, but it did not make matters worse for the victim. I can accept that his flight was a consequence of panic and a consequence of him being intoxicated by a prohibited drug but the conduct does him no credit.

37. In terms of where that offence falls in the scale of offending, it is towards the lower end. His actions did not increase the harm to the victim and he was apprehended and restrained very soon afterwards.

38. The offender was subject to conditional liberty at the time of the offending as he was on bail for the matters occurring on 6 February 2022. This is an aggravating feature of the matter. It does not increase the objective seriousness of the offences but it is an element on sentence.

39. The offender’s criminal history does not help him. It is quite extensive. It commenced in 2011 with a sentence for a supply prohibited drug offence. In 2016 he was sentenced to imprisonment for break, enter and steal. In 2017 he was again sentenced for supplying prohibited drugs. In 2019 he was sentenced for break, enter and steal. In 2020 he was sentenced for aggravated break/enter with intent with related matters. In 2021 he was sentenced for possession of house break-in implements. After his arrest for the 2021 matter he was dealt with by the Local Court for the other matters I have already referred to. The Court sentenced him to serve 3 years imprisonment, with a non-parole period of 15 months.

40. That sentence commenced from 17 July 2023 and I will come back to this because it is relevant to issues of totality and the backdate.

Subjective factors

41. Turning to the subjective factors on sentence.

42. Mr Gorham assessed the offender via video link at the John Moroney Correctional Centre on 12 March 2024 and 14 March 2024. Mr Gorham spent several hours with him and was provided with the fact sheets in relation to the different matters, his criminal history, certificates from John Morony and the courses he had been engaged in.

43. Mr Beattie was born in Manly; he has family in New Zealand. He lived in Australia until he was about 8 years old and then he moved to New Zealand. He returned to Australia with his father when he was 13 years old.

44. During the interview Mr Beattie denied considering the consequences of his actions because of illicit drug use. In the report, he acknowledged the harm he caused to the victim, he accepted responsibility for his actions and expressed regret. It is noted that he was taking methamphetamine at the time and that he had a regular drug habit.

45. When Mr Gorham assessed the offender, he had been in custody for about 20 months. He was keeping busy, attending various self-improvement and addiction programs and doing regular physical exercise. He had not incurred any institutional violations and denied the use of illicit substances in custody.

46. He described his childhood as okay and denied being neglected, however he reported the sexual abuse at school, which I referred to earlier. He said he had never reported it and did not want to disclose the details.

47. It has affected him in several ways. It made him more isolated, quiet and affected his ability to trust. It made him feel afraid and sad; he lost interest at school and started using illicit drugs was a coping strategy to suppress unwanted thoughts and feelings.

48. He completed 9 years of school in Australia and in New Zealand. He was a below average student and always struggled at school.

49. Before his arrest he was living with family and friends. He was mostly independent in his daily living although managing finances and household budgets were challenging. He is not married. He is not currently in a relationship, but he has two children who are still aged 8 and 10 at the time of this report. His closest relationships were with his mother and his brothers.

50. He told the psychologist he used cannabis from the age of 11. He used methamphetamine from the age of 15 and said he used it regularly from about the age of 18. He used heroin from about the age of 24.

51. He drank alcohol but had stopped when he was about 18. He was currently on the Buprenorphine program and had been receiving monthly injections for the last 8 months, which were helpful. He said that most of his offending was drug related, that he participated in rehabilitation programs in custody but often relapsed upon returning to the community.

52. When speaking about his mental health, he said he had a long history of depression associated with the sexual abuse.

53. He reported this had caused ongoing sadness and he was willing to talk to a suitable professional, a psychologist or psychiatrist, to help improve his mental wellbeing. He had an assessment in relation to this recently and there is a reference to a report from Doctor Bala. He said that he had been diagnosed with post-traumatic stress disorder, persistence depressive disorder and substance abuse disorder in remission.

54. The psychologist administered various tests and found that although he does not have an intellectual disability, he has limited intellectual resources.

55. He considered his ongoing risk of further offending similarly to the author of the sentencing assessment report. He thought that the offender’s risk of reoffending was moderate to high.

56. He considered that there were a number of things that needed to happen for Mr Beattie to not reoffend in the future. He needs to participate in individual counselling, to help him understand the cause and effect of his negative childhood behaviours. He needs to participate in counselling to help understand the causes of his criminal behaviour and to promote and reinforce his understanding of the negative effects of criminal behaviour.

41. He needs to participate in ongoing substance abuse treatment programs both in custody and upon release. He needs to participate in counselling to address the negative effects of peer pressure and to investigate and address the causes of his anger and adapt alternative coping measures. There are all powerful reasons why a finding of special circumstances is appropriate in this case combined with his intellectual limitations.

42. The report goes on to note that his history of illicit drug use from a young age likely impacted on the normal development of his brain, particularly the frontal cortex which continues to develop until around the age of 25 and is responsible for high level thinking skills including reasoning, planning, inhibition and decision-making. His history of sexual abuse as a child has also had an impact on his cognitive and intellectual development, as it caused him to disengage from school and learning.

43. He noted that the primary factor driving Mr Beattie’s criminal behaviour is illicit drug use and that the acute effects of illicit drug use, in this case methamphetamine, would have reduced his already limited higher level thinking skills. This would have limited his ability to consider the consequences of his actions, make reasonable decisions and inhibit himself from acting on impulsive and anti-social thoughts and urges.

44. Mr Gorham concluded by saying:

“It is strongly recommended that Mr Beattie be reviewed whilst incarcerated particularly for his current symptoms of depression and stress associated with sexual abuse to help manage them and improve his mental wellbeing. It is also recommended that once he is back in the community, he be referred through his GP for a psychiatric review of his current diagnosis and management/therapy for the underlying sexual abuse history that is a driving force behind his illicit drug use.”

61. A report was also tendered in relation to the childhood sexual abuse from a forensic psychiatrist, Doctor Bala. Given the content of the report, I am prepared to accept on the balance of probabilities that is what has happened.

62. The certificates that I have referred to were tendered to demonstrate that the offender is engaged in custody, that he is making an effort to address some of the issues that have plagued his life to this point.

63. The psychologist noted that some of the consequences of what happened to him as a child have flowed through an inability to cope with school, the development of mental health disorders and consequential development of dependence on prohibited drugs. As was submitted on his behalf, I accept that his earlier life experiences amount to child deprivation as described in Bugmy v R [2013] 249 CLR 571.

64. The offender entered custody for the first time on 4 October 2012 when he was only 21. He has spent more than 8 years in custody since that time. Between 9 July 2014 and 11 November 2016 he has not been out of custody for more than seven continuous months. Since 11 November 2016 he has been in the community for six brief periods totalling only 1 year and 10 months. He is very likely institutionalized. He reported that he is comfortable in prison and it is apparent that his behaviour in prison is good. These matters also contribute to the conclusion that special circumstances exist.

65. In keeping with the conclusion in Bugmy, his childhood abuse may be connected with his mental health disorders and his consequential drug abuse and addiction are forms of self-medication. Recognising that he committed criminal offences often to fund his drug habit, I am prepared to find that his moral culpability is reduced, but only to a limited extent, because of the deliberateness of his conduct.

66. On the question of remorse, s 21A(3)(i) Crimes (Sentencing Procedure) Act1999 requires a finding that an offender has accepted responsibility for his actions and acknowledged the injury caused by them. There are competing inferences to be drawn. The sentencing assessment report raises questions about remorse where at [79] of the bundle he effectively blamed the police for what happened. This sits in contrast to the report of Mr Gorham at [3] that I have referred to, where it was reported he acknowledged the harm he caused, accepting responsibility and expressing regret.

67. I accept that he has some limitations given the psychometric testing, but in the absence of sworn evidence I am left uncertain as to his remorse.

68. When it comes to prospects of rehabilitation and the likelihood of further offending, the expert evidence seems to be that he has a medium to high risk of reoffending. Both Mr Gorham and the author of the sentencing assessment report come to that conclusion. It is one I accept. His prospects in both respects are uncertain at best.

69. The Crown submitted that the threshold is crossed. Whilst in writing it was submitted that the matter could have been dealt with by way of Intensive Correction Order, ultimately the parties accepted that the threshold was crossed and no sentence other than a sentence of fulltime imprisonment was appropriate.

70. A major complication in that process is the sentence that was imposed in the Local Court, a sentence of 3 years imprisonment with a non-parole period of 15 months for the previously mentioned offences. He is serving that non-parole period until 16 October 2024.

71. Some of the matters dealt with in the Local Court were committed on the day before these matters, others earlier on 6 February 2024. He has been in custody since 26 July 2022. The period between 26 July 2022 and 16 July 2023 is solely referable to these matters, effectively the first 12 months. The parties invited the Court to have regard to totality to avoid the Local Court matters running concurrently to these and to avoid the total sentence being of crushing length.

72. One option would be to commence his sentence on 26 July 2022 but, to deal with the matter in the way that I have just referred, would likely involve artificially extending the sentence to ensure that the other sentences are not served entirely concurrently, and I do not consider that an permissible approach. The alternative approach, the one that I intend to take, is to take into account the period of effectively 12 months from 26 July 2022 to 16 July 2023 plus take into account the sentence currently being served and allow 6 months of that time to be solely referable to the Local Court offences. On my calculations that would involve a backdate of 18 months to 28 February 2023 for the sentence in this matter.

73. I impose an aggregate sentence. The indicative sentence for the first offence, failing to stop and assist after a vehicle impact causing grievous bodily harm is 24 months reduced by 25% to 18 months. With regard to the second offence, aggravated dangerous driving occasioning grievous bodily harm in addition to the Form 1 matters, the indicative sentence is 6 years imprisonment reduced by 25% to 4 years 6 months.

74. I impose an aggregate sentence of 5 years imprisonment. I make a finding of special circumstances on the basis of the offender’s limited intelligence, his difficult childhood, and his need for long term intervention.

75. I impose a non-parole period of 3 years and 4 months from 28 February 2023, with an earliest release to parole of 27 June 2026. He is subject to a disqualification period of 2 years.

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Amendments

11 December 2024 - Catchwords edited

Decision last updated: 11 December 2024