R v Burrell

[2022] NSWDC 719

District Court

New South Wales

Medium Neutral Citation:

R v Burrell [2022] NSWDC 719

Decision date:

02 December 2022

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

I sentence you to a non-parole period of one year to date from today to December 2022 and expire on 1 December 2023. There will be a balance of term on parole of one year and three months, to expire on 1 March 2025. The total term of the sentence is two years and three months. I direct your release to parole on 1 December 2023, being the expiry of the non-parole period.

The licence disqualification will be for one year, nine months and seven days. The starting term was three years, less the time already served, between 9 September 21 and 2 December 22, on disqualification.

In relation to the offence of drive with illicit drug present pursuant to s 10A, Crimes (Sentencing Procedure) Act, you are convicted with no further penalty. You are disqualified from driving in relation to that offence for the automatic period of six months.

Catchwords:

SENTENCING — Non-parole period

Legislation Cited:

CrimesAct1900 No 40

Crimes (Sentencing Procedure) Act1999 No 92

Road Transport Act 2013 No 18

Cases Cited:

Apulu v R [2022] NSWCCA 244

DPP Commonwealth v De La Rosa [2010] NSWCCA 194

RvWhite [2002] 55 NSWLR 252

Category:

Sentence

Parties:

Rex (Crown)
Tamika Burrell (Offender)

Representation:

Counsel:
Mr J Macmillan (Crown)
Mr P Stitz (Offender)

File Number(s):

2021/00260273

sentence

1. HER HONOUR: Tamika Burrell, 25 years of age, appears before Gosford District Court for sentence in relation to one offence of dangerous driving, drive manner dangerous occasioning grievous bodily harm, an offence pursuant to s 52A(3)(c), Crimes Act. The maximum prescribed penalty for that offence is seven years’ imprisonment. There is no standard non-parole period. There is an automatic licence disqualification of three years and a minimum disqualification of 12 months.

2. The victim is Jeanie May Mallett, who was a passenger in the offender’s vehicle. The offending occurred on 2 May 2021.The offender is also being sentenced in relation to one offence on a s 166 certificate of drive vehicle with illicit drug present, an offence pursuant to s 111(1)(a), Road Transport Act. The maximum prescribed penalty for that offence is 20 penalty units. There is an automatic licence disqualification of six months and a minimum of three months.

3. The offender pleaded guilty on 21 June 2022 at the Wyong Local Court. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%. The offender has spent no time in custody in relation to the offending.

THE CROWN MATERIAL ON SENTENCE

4. The Crown tendered the following material on sentence.

5. Exhibit A, a Notice of Committal, charge certificate; s 166 certificate; Agreed Facts; criminal history, showing a nil record; a s 257 Road Transport Act certificate; a report of Dr Thomas Rosenthal (occupational physician) 22 June 2022; and a victim impact statement dated 19 October 2022.

THE AGREED FACTS

6. At the time of the offending, the offender was 23 years of age and lived in Killarney Vale. The victim, Jeanie May Mallett, was 29 years of age and was living in Berkeley Vale. She was friends with the offender.

7. On the afternoon of Sunday, 2 May 2021, the offender drove the victim in her vehicle, a black Hyundai Coupe, from the victim’s home to Caves Beach for the victim to participate in a photo shoot. The offender waited until the photo shoot was finished so she could drive the victim home.

8. When the victim returned to the vehicle she noted that the offender was in a “cranky mood” which she attributed to the offender not being able to utilise her mobile phone due to reception issues in the Caves Beach area. In the context of the offender’s mood, the victim offered to drive home, but the offender said, “No.” The victim surmised, “I think she just wanted to get home to get it done.”

9. During the course of the trip home, the victim reported that the offender was driving “with her mood” so more rigid and, like, fast-paced than normal, rather than, you know, like your Sunday drivers.” The victim reported that the offender was speeding and overtaking other vehicles, and that every time there was a car in front of her vehicle she would “kind of nudge her way closer to the car in front but then kind of fall back and then, like, creep up again, and then, like, fall back, trying, like, to push people”.

10. The victim also reported that whilst driving south on the Central Coast Highway, and after the road changed into Wilfred Barrett Drive south of the roundabout at the intersection with Main Road at Noraville, a number of drivers on the road were “brake checking” each other by slowing down in front of the vehicle in front of them. This included a creamy white four‑wheel drive. The victim reported that at the roundabout the offender “kind of shot in front of a few cars that were, like, the ones that were trying to brake check each other”.

11. The offender reported that instead of allowing her to pass at the merge lane at the intersection, the driver of the white utility “pulled straight in front of me”. There was a considerable number of cars travelling south on Wilfred Barrett Drive as the offender and the victim passed the intersection with Main Road shortly after 6pm. It was then dark and the weather was clear. There was a map attached to the Agreed Facts showing the route driven by the offender.

THE FACTS IN RELATION TO THE OFFENCE OF DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM

LUKE DAVIS

12. Witness Luke Davis was driving his white Ford Falcon utility south on Wilfred Barrett Drive beyond the intersection with Main Road when the offender drove up close behind him, just before the speed limit changes from 60 to 80 kilometres an hour.

13. Mr Davis reported that he touched his brakes “just for a second, just to like, just, light kind of thing”. The offender backed away for a short while before speeding up to overtake Mr Davis. There were broken lines marked on the road at that point permitting this manoeuvre. Mr Davis saw the offender overtake a “ton of cars” travelling on the wrong side of the road over a hill, including where there were double unbroken line markings prohibiting overtaking. Mr Davis reported that he sped up in accordance with the change in speed limit to around 75 kilometres an hour, until he started to catch up with the next vehicle in front of him, leaving a car and a half, or 5 or 6 metres, between his and the next vehicle.

14. Despite having this and multiple other opportunities to return to the correct side of the road, he reported that the offender “just floored it and just kept going”, passing five to ten cars in front of him. As a result of reading Facebook entries relating to the crash that were critical of his driving, Mr Davis later contacted police and provided a statement.

ANDREW BENNETT

15. Witness Andrew Bennet was also travelling south on Wilfred Barrett Drive, approximately four cars behind the offender, whose vehicle he saw “tailgating a tray back Ute”. As the speed limit changed to 80 kilometres an hour, Mr Bennett reported that the offender moved to the other side of the road to overtake the utility. Both vehicles then “floored it and increased their speed”, travelling side by side for about 15 seconds, until the utility approached the traffic in front of it and slowed down, leaving about 10 car spaces between it and the flow of traffic. Mr Bennett stated:

“I thought the Hyundai would have pulled in then, because it had plenty of space to pull back in, but it kept driving without slowing down.”

16. Mr Bennett observed the offender’s car continued to drive on the wrong side of the road as it went over a hill.

17. Similarly, the victim observed as follows: “the person that we were trying to overtake put their foot down and kind of started going forward.” The victim stated that the two cars were next to each other for a while and that she “was kind of looking at them, like, can you please just slow down or you can put your foot down more, like, something, so that one of us can move”.

ANTHONY TRINDER

18. Witness Anthony Trinder was a passenger in an Uber vehicle being driven south along Wilfred Barrett Drive by Leslie Graham. Mr Trinder reported that as the vehicle he was in travelled over the crest of a hill, there were approximately eight cars in front of them, he saw the offender’s car “flying past us, travelling south on the wrong side of the road”. He also saw the headlights of a vehicle travelling north on the road and that the offender “did not appear to be coming back onto the correct lane” before it collided with the oncoming vehicle.

19. Mr Graham provided a similar account of the collision, stating that the offender’s vehicle was “roaring”.

DAVID DENHAM

20. Witness David Denham was also travelling south along the road at this time. He was in a stream of traffic with approximately four cars in front of him and eight cars behind.

21. At the front of this stream there was a four‑wheel drive vehicle that Mr Denham reported was travelling well below the 80 kilometre per hour speed limit. He also reported that the cars behind the four‑wheel drive were driving safely and keeping a safe gap between them. Mr Denham was waiting for a chance to overtake the slower vehicles in front of him, however, there were unbroken lines.

22. As he drove around a right-hand bend and before a “blind crest”, the offender’s vehicle went “flying past” travelling at speed. Mr Denham did not notice that the four‑wheel drive at the head of the stream of traffic changed its behaviour in any way as the offender approached it from behind on the other side of the road. He also saw headlights of the oncoming vehicle as the offender continued to drive down the wrong side of the road without braking, only attempting to move back to the left lane when it was too late to avoid the collision.

HOLY HARRIS

23. Holly Harris was also driving south in the stream of traffic. Her friend, Tyler Smith, was in her vehicle with her. There were about three cars in front of Ms Harris’s and continuous white lines separating the two lanes. Ms Harris saw the offender’s vehicle in her rear vision mirror, driving at speed on the wrong side of the road.

24. As the offender passed her, she slowed down to allow a space between her and the car in front, so that the offender could return to the correct side of the road. The offender continued to drive down the wrong side of the road. Both Ms Harris and Ms Smith also saw the lights of the oncoming vehicle and saw the offender’s vehicle collide with it.

ASHLEIGH SHORT

25. Ashley Short was driving south along Wilfred Barrett Drive. She had one car in front of her and about 15 behind. As she was driving over the crest of the hill, Ms Short could see the offender’s vehicle travelling down the wrong side of the road in her rear vision mirror, approximately 500 metres behind. She could also see the headlights of the oncoming vehicle but did not immediately feel concerned, given how far behind the offender’s vehicle was. Suddenly, the offender drove past her at speed. The offender’s vehicle appeared to increase in speed as it approached the oncoming vehicle before the collision occurred, approximately 40 metres in front of Ms Short.

26. Around 6.10pm, then 16‑year‑old Abby Lenton was driving her parents’ Toyota Prado vehicle north on Wilfred Barret Drive when the offender’s vehicle, travelling on the wrong side of the road, collided with her. Ms Lenton held a learner’s permit. At the time of the collision she was being instructed by her father, Mr Andrew Lenton. Ms Lenton reported that she was travelling at approximately 70 kilometres an hour. She recalls that the collision occurred soon after she saw the offender’s vehicle coming over the crest of the hill in front of her.

27. Attached to the Agreed Facts is an aerial photograph that shows the location of the collision on Wilfred Barrett Drive. Measurements indicate that the distance between the point on the roadway where the double unbroken lines commenced and the point of the collision was approximately 600 metres. The unbroken lines commenced on the roadway after the offender began overtaking Mr Davis’ and other vehicles.

28. The victim reported that as soon as the offender started overtaking “it was like, okay, let’s see how many we can get in front of” and then “it was like the one car that was just like, no, she was adamant she would get in front of this car, but it just never eventuated. Another car popped up in front of us and then that was - I don’t remember anything after that.”

29. Significant damage was sustained to both motor vehicles. The air bags were deployed in Ms Lenton’s vehicle and neither occupant was badly injured, although Ms Lenton, who was clearly distressed following the incident, was transported to hospital as a precaution. The Agreed Facts include photographs showing the extensive damage to the vehicles.

30. The victim suffered serious injuries as a consequence of the collision to her spine, internal organs, breaks to other bones, as well as multiple external lacerations. She was transported via helicopter to John Hunter Hospital for urgent treatment of the following injuries:

1. a liver laceration, grade 3.

2. ischemic left colon; which I understand is an inadequate flow of blood to the colon.

3. C2 hangman’s fracture and T4 fracture.

4. facial scalp and ear lacerations.

5. eighth rib fracture.

31. The immediate treatment required for those injuries was:

1. a left hemicolectomy, which I understand is surgical removal of half of the colon, and anastomosis for ischemic left colon, which I understand is an artificial connection between two normally separate parts of the intestine.

2. spinal fusion surgery for the C2 spinal fracture.

3. conservative management for the rib fracture.

4. facial lacerations closed in surgery.

32. The victim was an inpatient at hospital for 11 days.

33. The offender was also seriously injured and was transported to John Hunter Hospital via ambulance for inpatient treatment. The injuries suffered by the offender were:

1. minimally displaced right lateral compression fractures to the superior and inferior rami.

2. minimally displaced right L2 - L5 transverse process fractures.

3. minimally displaced left L1 - L2 transverse process fractures.

4. moderately displaced fractures to the right sacral ala in zones 1 and 2. and

5. right shoulder soft tissue injuries.

34. The offender was an inpatient at John Hunter Hospital for three days and the treatment recommended was that she not bear weight for six weeks and that she continue to use crutches intermittently for five months.

AFTER THE COLLISION

35. After the collision, Mr Andrew Lenton walked over to the offender’s vehicle on the other side of the road and noticed that there was no one in the driver’s seat. The offender, who was assisting the victim, identified herself as the driver.

36. Witness, Andrew Bennett, who was one of those assisting, observed this interaction. He reported that upon Mr Lenton calling the offender an “idiot” she responded, “I am so sorry. I know I did wrong. I’m not in a good place right now.”

37. Ashley Short also stopped at the scene to offer assistance. Upon asking the offender if she was injured, the offender said to Ms Short, “I am so sorry. Have I killed my friend? It was so dumb.”

38. A mechanical examination of the offender’s vehicle later confirmed that there was no mechanical or component failures which may have contributed to the collision. Neither were the weather, nor the roadway surfaces identified as causal factors in the collision.

THE FACTS IN RELATION TO THE OFFENCE OF DRIVE VEHICLE WITH ILLICIT DRUG PRESENT

39. Whilst receiving treatment at the scene prior to being transported to hospital, the offender told paramedics that she had had marijuana earlier in the day.

40. On 6 August 2021, tests were conducted on a blood sample taken from the offender on the day of the collision. Those tests confirmed the presence of cannabis in the offender’s blood at the time of the collision.

41. Upon detailed consideration of the blood analysis and the circumstances of the collision, a forensic pharmacologist, Benjamin Ryan, was unable to form a firm opinion beyond reasonable doubt that at the time of the driving that evening the offender was under the influence of cannabis to the extent that there would have been appreciable impairment of her driving ability.

42. Those facts clearly disclose very serious objective criminality. The offender, with no regard for other road users, or the victim, who was her passenger, drove on the wrong side of the road of a distance of at least 600 metres when there were unbroken centre lines. It is truly remarkable that no one was killed.

43. The conduct was highly irresponsible and reprehensible. Both general and specific deterrence are important considerations on sentence.

44. In R v Manok [2017] NSWCCA 232, Wilson J stated at follows at [78]-[79]:

“In sentencing for offences of dangerous driving occasioning death or grievous bodily harm, the need for strong denunciation and general deterrence has always been recognised as very important. Indeed, the primacy of general deterrence is such that, ordinarily, it outweighs the remorse or rehabilitation of an offender: R v Paul Musumeci (NSWCCA, 30 October 1997, Unrep) per Hunt CJ at CL.

That is because of the prevalence of the activity of driving, and the terrible consequences that can flow from a failure by a driver in the management of a motor vehicle. Almost every adult in our community drives; a driver can commit an offence of dangerous driving, manifesting in death or severe injury. It is important that all drivers be deterred from driving dangerously by the sentences imposed on those who transgress.”

AN ASSESSMENT OF THE OBJECTIVE SERIOUSNESS

45. In assessing the objective seriousness of the offence of dangerous driving occasioning grievous bodily harm, I have taken into account the following factors:

1. The manner of driving that was dangerous. Here, the offender overtook over double lines and remained on the incorrect side of the road for at least 600 metres, notwithstanding that there was ample opportunity for her to return to the correct side of the road.

2. There were multiple drivers put at risk by the offender’s driving, given their close proximity to the offender at the time of the offending.

3. The nature and extent of the grievous bodily harm occasioned to the victim was of a high order and was life-threatening.

46. The harm included serious injuries to her spine, internal organs, liver and colon, bone fractures and multiple head lacerations. The victim underwent spinal fusion surgery, colon surgery and surgery to close facial lacerations. The victim remained in hospital for 11 days. As at June 2022, the victim has ongoing abdominal pain, her neck is stiff and lacks any significant movement, her left shoulder clicks and she periodically experiences numbness in her whole arm. Sitting is restricted, as her upper back becomes painful, and she has scarring on the neck and abdominal regions.

47. Having regard to those factors, I assess the objective seriousness of the offending as above the middle of the range.

THE GUIDELINE JUDGMENT OF R V WHITE

48. In determining the appropriate sentence I have taken into account the guideline judgment of R v White [2002] 55 NSWLR 252. In White, Spigelman CJ at [252] identified a frequently recurring case of an offence under s 52A as having the following characteristics: “(1) young offender; (2) of good character with no or limited prior convictions; (3) death or permanent injury to a single person; (4) the victim is a stranger; (5) no or limited injury to the driver or the driver’s intimates; (6) genuine remorse; and (7) a plea of guilty of limited utilitarian value.”

49. Spigelman CJ also identified a list of 11 aggravating factors as follows at [253]: (1) the Extent and nature of the injuries inflicted; (2) Number of people put at risk; (3) Degree of speed; (4) Degree of intoxication or of substance abuse; (5) erratic or aggressive driving; (6) competitive driving or showing off; (7) Length of the journey during which others were exposed to risk; (8) ignoring of warnings; (9) escaping police pursuit; (10) Degree of sleep deprivation; (11) failing to stop.

48. Spigelman CJ at [228] stated as follows:

“In the above list of aggravating factors, items (iii) to (ix) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion.”

51. The guideline for offences against s 52A for the typical case was stated as follows, at [229] – [230]:

“Where the offender’s moral culpability is high, a full‑time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.

In the case of a low level of moral culpability, a lower sentence will of course be appropriate.”

52. In R v White, Spigelman CJ continued at [232] – [233]:

“The guideline is, to reiterate, a “guide” or a “check”. The sentence imposed in a particular case will be determined by the exercise of a broad discretion, taking into account all of the factors required to be taken into account by section 21A, Crimes (Sentencing Procedure) Act.

This guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration.”

53. In relation to the application of the guideline to this offender, she is relatively young, being 23 years old as at the date of the offending. She has no criminal history. There is permanent injury to a single person who was known to the offender. The offender also sustained injuries that required hospitalisation. The offender’s remorse will be given limited weight for the reasons given later in my remarks, and there was an early plea of guilty.

54. In relation to the aggravating factors identified in the guideline, I am satisfied the following are present: the extent and nature of the injuries, there were a number of people put at risk given the course of driving and erratic driving, relying upon the observations of witnesses in the lead up to the collision.

55. Whilst a number of the witnesses referred to the offender driving at speed, the court is not able to identify the precise speed at which the offender drove her car. Other than to rely on those observations, I do not rely upon it as an aggravating factor. I am satisfied that the conduct of the offender demonstrates a high level of moral culpability and can properly be described as an abandonment of responsibility to other road users.

AGGRAVATING FACTORS

56. The Crown submitted that one aggravating factor was present, namely, that the injury and emotional harm caused by the offence was substantial. In order for this aggravating factor to be established, the court must be satisfied that the injury and emotional harm is beyond that which would ordinarily be expected to result from offending of this kind.

57. The Crown relied upon the report of Dr Thomas Rosenthal, an occupational physician. Dr Rosenthal assessed the victim by telehealth on 17 June 2022. He had reviewed relevant medical reports for the purpose of his assessment. He outlined the victim’s current symptoms as follows:

“She has ongoing abdominal pain.

She walks with a limp due to abdominal pain. Her neck is extremely stiff and lacks any significant movement. She said her left shoulder clicks.

She can only walk about 500 metres. She can drive but has 360 degree cameras in her vehicle when she drives. She denied any radicular symptoms in her arms or legs, but she did state that her left arm goes numb second daily, the whole arm goes numb and lasts for 3+ hours. Sitting is also restricted as her upper back gets painful.”

58. Dr Rosenthal noted that the victim had not worked since the collision and had stopped all her physical activities. Dr Rosenthal was of the opinion that the victim was totally unfit for work in her current state, her previous work being as a hairdresser and a model. In relation to daily activities, he stated as follows:

“Domestic tasks are significantly impacted by her current injuries. Her activities of daily living are described under Social History. She is not able to perform the majority of her activities of daily living as described and does require occasional assistance from her partner with personal care activities. She could do small amounts of basic meal preparation or a bit of light dusting and occasional tidying for short periods on occasions. In terms of future incapacity, it is too early to assess, but she is likely to be partially incapacitated for at least the next 2 - 5 years.”

59. He was of the opinion the victim’s prognosis remains extremely guarded. He stated as follows:

“It is just over 12 months since a very significant motor vehicle accident which resulted in life‑threatening injuries. It is unlikely that she will be medically stabilised for at least another 12 months, following which a further assessment should occur.”

60. Having regard to the multiple injuries sustained by the victim and the permanent and ongoing nature of the physical disabilities caused by the offending, I am satisfied that the aggravating factor is established.

VICTIM IMPACT STATEMENT

61. The victim provided a victim impact statement that was read by her mother. The victim was with her mother in court when it was read and subsequently gave evidence. She is now 29 years of age. She described that the offending has changed her life, to the extent that she no longer recognises herself. She explained that previously she was a very social, happy, outgoing person, who had a career in hairdressing and modelling. She stated as follows:

“The above is a distant memory now. I have multiple life‑threatening injuries. I had a broken neck, which now has titanium rods, plates and screws, with no movement. I suffer from ‘bolt’ pain, which can on most days render me bedridden. I live in painkillers just to bear the pain.”

62. She also described that she has multiple scars on her head where hair no longer grows. She has a 30 centimetre scar down the middle of her stomach and a 26 centimetre scar that wraps around her waist and hip. She walks with a limp, often needing a walking stick, and that seven‑tenths of her colon was removed and she takes medication to go to the toilet. She has liver dysfunction as a consequence of a laceration. This resulted in her skin being yellow and her liver has not yet completely regenerated. Her stomach and oblique muscles were “ripped from the bone” and were reattaching using “screws, plates and mesh”. Her left leg was crushed and “screws holding muscles in place make the nerve pain unbearable, especially when it is cold”. Her lower spine C7/T5 is still broken, with surgery required. She has also been advised she has a trauma hernia that needs to be surgically removed. She can no longer work, and said:

“I feel worthless and a burden on my family, who rally around me.”

63. Her physical incapacity means she cannot pick up her son or physically interact with him. She cannot undertake sporting activities that she previously engaged in and enjoyed, including surfing, motorbike riding and skateboarding. She has also been told she cannot have any further children. She also described that she suffers from post-traumatic stress disorder, depression and anxiety. She explained:

“I absolutely trust no one and am triggered by the sound of helicopters, screeching brakes and loud noises.”

64. She described herself as “broken as a person” who is “trying to live with the shell of me that’s left”. She concludes as follows:

“My life will never be the same, it was removed from me thru no fault of my own without so much as a sorry.”

65. It is clear to the Court that for the victim the consequences of the offending have been far‑reaching, devastating and continue to this day. Every aspect of her life has been impacted. I have no doubt that it would have been very distressing for the victim to have to prepare her victim impact statement and reflect upon the changes to her life. One of the purposes of sentencing is to recognise the harm done to the victim - see s 3A(g), Crimes (Sentencing Procedure) Act.

THE EVIDENCE OF THE VICTIM

66. The victim gave evidence during the sentence proceedings. She told the court that the offender came to visit her whilst she was still in hospital. She had just come out of a coma. She was asked whether the offender had ever apologised to her for causing her injuries. She said, “No.” She said that she had stayed with the offender overnight when she visited her in Queensland. Again, the victim gave evidence that at no stage did the offender apologise to her for her injuries.

67. In cross-examination it was suggested to the victim that whilst she was in hospital, the offender had expressed her sorrow for what had happened to her. The victim said, “No, she apologised for the car accident.” It was also suggested that in cross-examination that whilst the victim and the offender were staying together in Queensland, that the offender expressed her sorrow for what had happened to the victim. The victim said, “I can only remember her apologising for the accident.”

68. Exhibit 5 was tendered on behalf of the offender, showing the victim and the offender together in Queensland. The photo shows the victim wearing a neck brace, which she gave evidence that she had worn for three to four months at that stage.

THE EVIDENCE OF JANET BARSING

69. The victim’s mother, Janet Barsing, gave evidence. She said she was present when the offender visited the victim whilst she was in the intensive care unit. She was asked whether the offender apologised for the injuries sustained by the victim. She said, “No. She said she was sorry she had the car accident.”

THE OFFENDER’S SUBJECTIVE CIRCUMSTANCES

70. The offender is now 25 years of age.

71. She has no previous criminal history. In such circumstances, she is entitled to leniency on sentence. The offender has a traffic history. At the time of the offence she was on a good behaviour licence after a demerit point suspension had been imposed on 7 July 2020.

72. The following material was tendered on behalf of the offender during the sentence proceedings:

Exhibit 1, report of Anita Duffy, psychologist, 12 October 2022.

Exhibit 2, letter under the hand of Dr Tom Ford of 12 October 2021. Exhibit 3, GP mental health care plan documentation, 23 August 21. Exhibit 4, defence written submissions.

Exhibit 5, the photograph taken in Queensland.

73. Louise Hitchcock, the offender’s mother, gave evidence during the sentence proceedings. The offender did not give evidence.

74. The offender’s background is outlined in the report of Ms Duffy. Ms Duffy assessed the offender on 27 September 2022 in her office for a period of three and a half hour.

THE OFFENDER’S BACKGROUND

75. The offender was born in Gosford. She has two biological sisters aged 27 and 31 and a half‑brother aged 18 from her father’s partner. She reported her mother works in disability aged care and that they have a close bond. She reported that her father left the family to commence a relationship with another woman when she was six years of age. She said she maintained a close relationship with her father after the separation.

76. She said his new partner was a drug user who “got dad into drugs”, mainly speed, and there was a period of two to three years where she did not see her father. She said her father separated from that partner and resumed a relationship with her mother and moved back into the family home. Her father tragically passed away seven years ago from a cardiac arrest. The offender was 17 years old at the time.

THE OFFENDER’S EDUCATION AND EMPLOYMENT

77. The offender reported that she struggled at school. She said she could read, however, experienced difficulty concentrating. She was assessed for ADHD but was “on the cut‑off point” and not positively diagnosed. In high school she reported she had difficulty keeping up with classes. In Year 8 she befriended an anti‑social peer group with whom she frequently truanted and smoked cigarettes and cannabis.

78. She completed Year 10 at Alesco Senior College, where she benefitted from smaller classes and obtained her school certificate. She reported she intended to study Year 11, however, left school due to lack of funding. After leaving school, she obtained RSA and RCG certificates and commenced employment in the hotel industry. She was trained in a management role at the Diggers Club in The Entrance.

THE OFFENDER’S MEDICAL HISTORY

79. The offender suffered back and hip injuries as a consequence of the offending and was in John Hunter Hospital for a week. She was discharged due to mental health reasons because she was unable to cope with being away from her mother. She also reported being the passenger in another car accident on 9 August 2022 where the driver, her ex-partner, veered off the road and hit a telegraph pole.

80. She was suffering a dislocated right shoulder, sprained ankle, burst left eardrum and whiplash. She reported being diagnosed with myocarditis, a heart condition, three or four years ago, after she started experiencing chest pain. Dr Tom Ford, cardiologist, has been treating her for this condition with medication (see Exhibit 2).

THE OFFENDER’S PSYCHIATRIC HISTORY

81. The offender reported witnessing her father suffer a fatal heart attack seven years ago when she was 17 years of age. She said that she later discovered her father had a rare heart disease and there was little she could have done to help him. However, she “can’t let it go” and feels that she should have done more to help him at the time.

82. She reported experiencing feelings of depression, guilt and grief after her father’s death and subsequently attended a counsellor, whom she described as “wonderful until she threatened to put me in a psychiatric ward” because the offender was self‑harming. She was assessed at a hospital and released because she “put on a good front”.

83. She reported being diagnosed with ADHD, OCD, and reported symptoms consistent with post‑traumatic stress disorder following her father’s death. She experienced para‑suicidal behaviour and has self‑harmed and suffered panic attacks in the past.

84. She said she had been in a relationship with the victim for two and a half years. The relationship had ended prior to the offending and they remained on friendly terms. She reported to Ms Duffy that she had feelings of depression after commencing a relationship with the victim, whom she described as manipulative and demanding towards her. She was subsequently referred to a psychologist, who has treated her for the past three to four years. She said she was being treated for post-traumatic stress disorder, anxiety, attachment issues, and her psychologist had encouraged her to examine her relationship with the victim.

85. She said after the offending she “shut down” and “felt like a burden”. She would not talk to anyone and engaged in self‑punishing behaviour for “not saving dad and injuring her friend”. She subsequently resumed counselling. She currently attends that counselling on a weekly basis.

86. She reported heightened arousal, anxiety and suicidal thoughts since the offending and believes she will not be able to cope if incarcerated. Her GP has subsequently prescribed the offender with medication to treat her major depressive disorder, OCD and panic disorder and to help her sleep. Her GP has also referred her to see a psychologist at Central Coast Counselling who specialises in grief counselling and treating depression and anxiety under a mental health care plan (See Exhibit 3).

SUBSTANCE USE HISTORY

87. The offender reported that she commenced drinking alcohol in her teens, however, reduced consumption on the advice of her cardiologist after she was diagnosed with a heart condition. She commenced socially smoking cannabis in high school, however, her use increased after her father’s death and she began self‑medicating as she felt it helped manage her anxiety and depression. However, she reached the stage where it did not help and she then commenced using cocaine on a social basis while “clubbing with” the victim.

88. The offender reported she was abstinent from drug use for six weeks after the offending, however, resumed using cannabis to reduce her anxiety and negative emotions about harming the victim. She acknowledged that she is dependent on cannabis. She expressed she wishes to live without drugs and learn to manage her anxiety more effectively.

89. She reported she is motivated to continue treatment with a psychologist for post‑traumatic stress disorder, anxiety and depression and underlying insecure attachment issues.

THE OFFENDER’S CIRCUMSTANCES AT THE TIME OF THE OFFENDING

90. She reported that the victim and herself had a mutually dependent relationship, despite ending their romantic relationship, and she felt obliged to drive the victim to her photo shoot on the day of the offending. She said she had “always been there for Jeanie”, and knowing what injuries the victim had suffered was “killing” her.

HER ATTITUDE TO THE OFFENDING

91. The offender told Ms Duffy that she had visited the victim daily as soon as she could get out of bed after her own injuries and had “felt so horrible” after the offending. In the opinion of Ms Duffy, the offender had expressed her regret over her injuries.

THE OPINION OF MS DUFFY

92. The offender completed an intelligence assessment. She scored in the 16th percentile range, placing her in the low to average range for intelligence. Ms Duffy stated as follows:

“Ms Burrell’s general level of intelligence is consistent with her reported education level and level of paid employment. She does not display intellectual deficits that call into question her ability to solve problems and make judgements.”

93. The offender completed an adult ADHD assessment. Ms Duffy was of the opinion that her responses strongly support a diagnosis of adult ADHD and recommended the offender undergo further assessment. The offender completed a post‑traumatic stress disorder symptom assessment and scored 64 out of 80, indicating a positive diagnosis of post‑traumatic stress disorder. She reported her father’s death, the two car accidents, the victim’s injuries and the current charges as traumatic events.

94. She also completed a questionnaire to measure her physical and psychological health. She scored in the high range for physical health, including back pain, stomach pain, headaches, chest pains, breathlessness, heart palpitations and nausea, which Ms Duffy indicated often related to psychological arousal. She scored in the severe range for depression and generalised anxiety.

95. Ms Duffy is of the opinion that the offender suffers from generalised anxiety disorder, post‑traumatic stress disorder, being persistent complex bereavement disorder, and mixed type ADHD, which was a provisional diagnosis.

96. Ms Duffy is of the opinion that the separation of the offender’s parents, the subsequent absence of her father and their reunion, followed by his sudden death, affected her psychological development and functioning and led to the development of a number of maladaptive self‑appraisals, recurrent dreams and distressing thoughts and feelings.

97. Ms Duffy stated that the offender’s:

“...preoccupation with her deceased father and the circumstances of his death, intense sorry and emotional pain and her tattoos in memoriam are symptomatic of Persistent Complex Bereavement Disorder”.

98. Ms Duffy stated that the offender:

“...remains very fragile emotionally and troubled by guilt, particularly since the motor accident which has caused her friend Genes’ injuries. She has endorsed symptoms of the intrusive avoidant negative emotions and hyperarousal cluster of PTSD, which were exacerbated by the accident.”

99. Ms Duffy further stated that the offender:

“...displays characteristics of borderline personality disorder in her fear of rejection, difficulty in controlling negative evaluations and self‑harming behaviours when distressed.”

100. Ms Duffy is of the opinion that a custodial sentence would exacerbate the offender’s anxiety and post‑traumatic stress disorder symptoms and that the offender would require supervision and support from a psychologist and other mental health practitioners to help her cope with custody as well as the effects of separation from her family.

101. Ms Duffy recommended the following treatment plan, should the offender remain in the community:

1. To continue counselling to develop better skills in self‑management and address issues in relation to fears of separation from her family and vulnerability to the influence of others.

2. A referral to a specialist health practitioner to perform diagnostic assessment for ADHD and treatment in the form of pharmacotherapy, CBT and coaching.

3. To undertake treatment for post‑traumatic stress disorder, grief and bereavement by engaging with a psychologist expert in this area from Central Coast Counselling under a mental health care plan.

4. To attend drug counselling in relation to cannabis at the Drug and Alcohol Services Central Coast Local Health District.

5. Be supervised by Community Corrections to coordinate the treatment plan and oversee compliance and progress.

102. In relation to the offender’s risk of reoffending, Ms Duffy stated as follows:

“Ms Burrell’s risk factors are mainly centred on her vulnerability to manipulation, anxiety, depression and self‑blame, as well as possible diagnosis of ADHD, which could reduce capacity for reasoned judgement and decision-making. If these factors are comprehensively treated, the likelihood of reoffending in this manner would be substantially reduced.”

OTHER EVIDENCE ON BEHALF OF THE OFFENDER

103. The offender’s mother, Louise Hitchcock, gave evidence. She said that whilst the offender was in hospital she kept asking about the victim’s welfare. At some stage she went to see the victim whilst she was in hospital. She did not hear what was said between the offender and the victim. Once the victim was released from hospital, she went and saw the victim when the victim was in Queensland.

104. She said the offender had said she is sorry for making that “split decision” to overtake. She said the offender has a tattoo saying, “I’m sorry,” on her wrist, which is for the victim. She told the court the offender lives with her. Nine months after the offending she returned to work at the Digger’s Club at The Entrance. She does waitressing and bartending working. Whilst the position is casual, she does full‑time hours. Her work has recently ceased as a result of another motor vehicle accident.

THE SUBMISSIONS OF THE PARTIES

105. The Crown relied upon written submissions supplemented by further oral submissions. The Crown identified the factual matters relevant for the purpose of a consideration of the objective seriousness of the offending and also the guideline judgment of R v White.

106. Ultimately, the Crown submitted that the offender’s moral culpability is very high and that the court would be falling into appellable error if a full‑time custodial sentence was not imposed.

107. Mr Stitz of Counsel, on behalf of the offender, also relied on written submissions supplemented by further oral submissions. It was conceded on behalf of the offender that a custodial sentence was appropriate. However, it was submitted that, having regard to the offender’s psychological fragility and the injuries caused to the offender as a consequence of the offending, it could be served by way of an Intensive Corrections Order with a home detention condition and other appropriate conditions in relation to ongoing treatment and abstinence from drugs.

REMORSE

108. The Crown submitted that there is no evidence before the court that the offender is sorry for the harm she has caused to the victim, as distinct from being sorry for the accident. It was submitted on behalf of the offender that there was an apology, albeit it may not be in the form or manner that is acceptable to the victim. I have no doubt that the offender is remorseful for having caused the collision.

109. In order for the court to take into account remorse as a matter in mitigation, the Court must be satisfied that the offender has provided evidence that she has accepted full responsibility for her actions, and in addition, that she has acknowledged any injury caused by her actions (see s 21A(3)(i), Crimes (Sentencing Procedure) Act). Whilst I accept that she has accepted full responsibility for her actions, having regard to the available evidence, I am not satisfied that she has acknowledged the injuries caused by her actions. In such circumstances I propose to take into account remorse on this limited basis.

110. I note the following observations by Wilson J in Apulu v R [2022] NSWCCA 244 at [142]:

“Whilst to ‘provide’ evidence of remorse pursuant to s 21A(3)(i) of the Crimes (Sentencing Procedure) Act does not require an offender to give evidence, as observed in Butters v R [2010] NSWCCA 1 at [17], the weight to be afforded to untested claims made to others may be small. Where there is no evidence from the offender a sentencing Court is entitled to be cautious about accepting his or her hearsay statements of remorse to others. It is one thing for an offender to take an oath or affirmation to tell the truth, give evidence of remorse in open Court, perhaps in the presence of any victim of the crime, and submit to cross‑examination; it is quite another to simply tell a (generally) sympathetic or accepting listener that one is remorseful and rely upon the report of that untested assertion to claim a reduction on sentence.”

PROSPECTS OF REHABILITATION

111. I am satisfied the offender has good prospects of rehabilitation, having regard to the absence of any other criminal convictions; her willingness to engage in treatment to assist with her rehabilitation, she is well‑supported by her mother and she has prospects of employment.

112. While she has a traffic history, which is relevant to the likelihood of further offending, I am satisfied she is unlikely to reoffend in circumstances where I expect her experience of the current court proceedings will act as a significant deterrent.

THE RELEVANCE OF THE OFFENDER’S MENTAL HEALTH

113. Having regard to the evidence of Ms Duffy, I am satisfied that the offender suffers from generalised anxiety disorder, post‑traumatic stress disorder, persistent complex bereavement disorder and mixed type ADHD as a provisional diagnosis.

114. Whilst it has not been submitted on behalf of the offender that there is any causal link between the offender’s mental health issues and the offending, Ms Duffy was concerned in relation to the offender’s capacity to cope within custody. I am satisfied that custody would be more onerous for the offender and I have taken that matter into account in determining the appropriate sentence (see generally DPP Commonwealth v De La Rosa [2010] NSWCCA 194 at [177]).

THE DETERMINATION

115. I am first required to determine the length of the sentence before considering whether an Intensive Corrections Order is appropriate. In determining the appropriate sentence, I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act.

116. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate pursuant to s 5(1), Crimes (Sentencing Procedure) Act. I have had regard to the relevant prescribed maximum penalty, the objective gravity of the offence, the offender’s subjective circumstances and the guideline judgment of White. I have also taken into account the offender’s plea of guilty. I am satisfied that the appropriate starting term for the sentence is three years’ imprisonment, discounted by 25% for the plea of guilty, leaving a total term of two years and three months. I intend to impose a non‑custodial sentence for the offence of drive with illicit drug present on the 166 certificate.

117. In circumstances where the sentence exceeds two years, an Intensive Corrections Order is not available. Even if an Intensive Corrections Order had been available, I consider that it would not have been an appropriate sentence in the circumstances (see section 66, Crimes (Sentencing Procedure) Act).

118. Whilst I accept that the offender’s risk of reoffending would be better addressed by serving an Intensive Correction Order, I regard the other purposes of sentencing, particularly the need to denounce the conduct, to ensure the offender is adequately punished, to make the offender accountable for her actions and to deter this offender and others in the community from committing similar offences, all warrant a full‑time custodial sentence.

SPECIAL CIRCUMSTANCES

119. I am satisfied that special circumstances are established, warranting a variation in the ratio between the non-parole period and the parole period, in circumstances where the offender will be assisted by a longer period in the community under supervision when released from custody to address her mental health issues and drug issues, I propose to vary the ratio between the non-parole period and the parole period pursuant to s 44(2), Crimes (Sentencing Procedure) Act.

120. Ms Burrell, in relation to the offence of dangerous driving occasioning grievous bodily harm, you are convicted.

121. I sentence you to a non-parole period of one year to date from today to December 2022 and expire on 1 December 2023. There will be a balance of term on parole of one year and three months, to expire on 1 March 2025. The total term of the sentence is two years and three months. I direct your release to parole on 1 December 2023, being the expiry of the non-parole period.

122. The licence disqualification will be for one year, nine months and seven days. The starting term was three years, less the time already served, between 9 September 21 and 2 December 22, on disqualification.

123. In relation to the offence of drive with illicit drug present pursuant to s 10A, Crimes (Sentencing Procedure) Act, you are convicted with no further penalty. You are disqualified from driving in relation to that offence for the automatic period of six months.

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Decision last updated: 10 March 2023