R v Cook

Case •

[2019] NSWDC 667

•

08 November 2019

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Cook [2019] NSWDC 667
Hearing dates: 25 October 2019
Date of orders: 08 November 2019
Decision date: 08 November 2019
Jurisdiction:Criminal
Before: Abadee DCJ
Decision:

See paragraphs 113-116.

Catchwords: CRIMINAL – sentencing – aggravated dangerous driving occasioning death to one victim – aggravated dangerous driving occasioning grievous bodily harm to two victims – combination of drugs impaired capacity to drive – relevance of asserted social anxiety disorder in offender – consideration of principles in R v Whyte – subjective matters – mental health of offender.
Legislation Cited: Crimes Act, 1999
Crimes (Sentencing Procedure) Act 1999
Cases Cited: DPP v De La Rosa [2010] NSWCCA 194
DPP v Neethling [2009] VSCA 116
Kerr v R [2016] NSWCCA 218
R v Khatter [2000] NSWCCA 32
R v Dutton [2015] NSWCCA 248
R v Elkassir [2013] NSWCCA 181
R v Engert (1995) 84 A Crim R
R v Errington (2005) 157 A Crim R 553
R v Errington [1999] NSWCCA 18
R v Henry (1999) 46 NSWLR 346
R v Jurisic (1998) 45 NSWLR 209
R v Manok [2017] NSWCA 232
R v McKeown [2013] NSWDC 22
R v Shashati [2018] NSWCCA 167
R v Smith, Jarad [2016] NSWCCA 75
R v Veatufunga [2007] NSWCCA 54
R v Whyte (2002) 55 NSWLR 252
Reddy v R [2018] NSWCCA 212
SBF v R (2009) 198 A Crim R 219
Whybrow v R [2008] NSWCCA 270
Category:Sentence
Parties: Director of Public Prosecutions
Mr C Cook
Representation:

Counsel:
Mr M Clark (Crown)
Mr R Pontillo SC (Defence)

  Solicitors:
Solicitor for Public Prosecutions
Marsdens Law Group
File Number(s): 2018/315016
Publication restriction: Nil

SENTENCING REMARKS

  1. In the early hours of the morning on 14 October 2018, the offender was the driver of a car. He was a P1 provisional driver. He was driving under the influence of a combination of drugs, colloquially known as Xanax and MDMA, and possibly cannabis as well. He was driving with three passengers in the car. The passengers were all friends of the offender. The offender lost control of the car and it struck a telegraph pole. The rear seat passenger behind the driver was killed. The other passengers suffered serious injuries.

  2. The offender pleaded guilty in the Local Court to 3 offences:

  1. one count of aggravated dangerous driving occasioning death, contrary to s 52A(2) of the Crimes Act. This carries a maximum penalty of imprisonment of 14 years.

  2. two counts of aggravated dangerous driving occasioning grievous bodily harm, contrary to s 52(4) of the Crimes Act. This carries a maximum penalty of imprisonment of 11 years.

  1. Both offences carry automatic driver license disqualification. Initially during the sentencing hearing, no submission was made as to what, if any order should be made about disqualification. Supplementary submissions were received on behalf of the offender. The Crown indicated that it did not wish to be heard on this particular issue.

  2. The circumstances of aggravation which elevated these crimes beyond the offences in s 52A(1) and (3), in relation to each offence is the circumstance that the offender’s ability to drive was very substantially impaired by the fact that he was under the influence of a combination of drugs, Xanax and MDMA.

  3. There is no standard non-parole period for these offences. There is, however, a guideline judgment to which the Crown and the offender’s Senior Counsel made reference, being R v Whyte (2002) 55 NSWLR 252 which more directly affects sentencing for the conventional offences under s 52A, but which also guides the sentencing discretion for the aggravated offences that the offender has pleaded guilty to.

  4. With the guilty pleas, there is no dispute that the offender is entitled to receive a 25% discount on sentence for the offences. Nor is there dispute about most of the facts supporting the offender’s subjective case. The principal areas of dispute concerns the level of objective seriousness of the offending conduct and moral culpability both of which, in turn, are attributable to a dispute as to whether and to what extent the offenders conduct was affected by the circumstances that he took the drugs. The offender contends, and the Crown disputes, in which the offender’s drug dependence upon Xanax (it was not suggested that there was dependence on MDMA) was attributable to what a forensic psychiatrist diagnosed as being the offender’s social anxiety disorder, such that it is argued that the underlying mental disorder contributed to the commission of the crimes.

The Agreed facts

Background

  1. The offender is Cameron Cook, born in 2000. The offender resides at a Blacktown address with his mother about 600 metres away from the collision site.

  2. At the time of the collision, the offender held a P1 provisional drivers licence, which he had obtained on 16 October 2017. As a P1 provisional driver under the age of 25 years, the offender was not allowed to drive with more than one passenger between 11pm and 5am.

  3. The deceased in the matter is Kasey Xuereb, who was 17 years old. The two victims are Taylor Ibrahim, aged 17 and Victoria Patts, aged 15.

  4. At about 3:00am on Sunday 14 October 2018, the deceased and the two victims left Ms Ibrahim’s house at Quakers Hill to meet up with the offender. The offender had parked his car a short distance up the road from Ms Ibrahim’s house near a park. The deceased and the two victims walked to the offender’s car and got inside. While in the car, the offender, the two victims and the deceased took Xanax tablets. Sometime later, the offender drove his car towards Blacktown with the deceased and the two victims in the car (Sequence 6 – Driver under 25 drive with more than one passenger – section 166 certificate).

  5. Ms Ibrahim and Ms Potts have no memory of the collision, or the drive in the lead up to the collision.

  6. The collision site was at the corner of Garden Street and Eggleton Street in a residential area of Blacktown. Garden Street generally runs in a north-south direction, while Eggleton Street generally runs in an east-west direction.

  7. Garden Street has a sign posted speed limit of 50 km/h. At the time of the collision, it was dark and the roadway was set. At the time of the collision, it was raining lightly, however there had been heavy rain earlier in the night.

Offences

  1. At about 5:30am on Sunday 14 October 2018, the offender was driving his 2005 Mazda 6 sedan in a northerly direction along Garden Street, Blacktown. The offender had three passengers in the car; Taylor Ibrahim was sitting in the front passenger seat, Victoria Potts was sitting in the rear passengers’ side seat and Kasey Xuereb was sitting in the rear driver’s side seat.

  2. The offender was travelling above the sign posted speed limit of 50 km/h as he approached the collision site. As he approached the intersection of Garden Street and Anthony Street, the offender failed to negotiate a right-hand bend in the road.

  3. At the intersection, the offender commenced braking, which saw the front passenger side wheel stop rotating and commence sliding. The offender’s car travelled straight, mounting the kerb on the western side of the road, before travelling along the footpath and the grass nature strip between Anthony Street and Eggleton Street for about 20 metres. The car has then travelled directly across Eggleton Street, parallel to Garden Street, before impacting with a large wooden telegraph pole situated on the north western corner of Garden Street.

  4. As a result of the impact, the car sustained significant frontal damage with the bonnet being significantly crumpled and distorted. The impact was directly in the centre of the car and the telegraph pole had intruded into the engine bay pushing it backwards towards the cabin of the car. The front bumper was also detached and was wrapped around the base of the telegraph pole.

  5. At the time of the collision, 16 year old Alex Steward was lying on his bed inside his house on Eggleton Street. Upon hearing the loud impact, Mr Stewart ran outside the house with his mother, Kylie Stewart. Mr Stewart approached the car and saw the offender in the driver’s seat. Mr Stewart observed the offender to be dazed and unsure what was going on. After a short conversation with the offender, Mr Stewart recognised the offender as a person he had previously been to school with.

  6. Mr Stewart briefly went back inside to get a jacket on. When he returned, the offender was out of the car. The offender and Mr Stewart had a conversation. The offender asked, “What happened?” Mr Stewart said, ‘You’ve been in an accident. It’s OK. Keep calm and relax.” The offender said, “Is the car repairable?” Mr Stewart said, “No, it’s a write-off that you can’t get fixed.” The offender asked, ‘How do I get home? What do I do?” Mr Stewart said, “No man. Just stay here. My parents are contacting emergency services.” The offender then said, “Are the police coming and all that?” Mr Stewart said, “Yeah man. You’ve been in a big crash.” The offender said. “Oh, are they going to drug test me, or anything?” Mr Stewart said, “Yeah more than likely.”

  7. While this conversation was occurring, Kylie Stewart was on the phone to Emergency Services requesting assistance.

  8. At 5:37am, Fire and Rescue officers arrived at the scene, including Ross Genders. A short time later, Mr Genders had a conversation with the offender. He asked the offender whether he had been drinking of it he had taken any drugs. The offender said, ‘Yeah I’ve taken some pills I just got them from my mates place up the road.” At this point, the offender said, “Woah, man this is tripping.” Mr Genders made the observation that the offender appeared to be under the influence of drugs and he did not appear to understand the gravity of the situation.

  9. Around 5:40am, paramedics and police arrived at the scene.

  10. A short time later, an ambulance took the offender to Westmead Hospital to be assessed and so a blood sample could be taken. Police accompanied the offender to the hospital.

Kasey Xuereb – Sequence 8 – Aggravated dangerous driving occasion death

  1. The deceased Kasey Xuereb was located in the rear driver’s side of the car. Ms Xuereb was located partially off the rear seat with her legs up against the back of the driver’s seat and her buttocks towards the footwell. At the time of impact, Ms Xuereb was likely not seated correctly, or she had her seatbelt adjusted incorrectly, which caused her seatbelt to tighten around her neck at impact leaving an abrasion across her throat. Ms Xuereb’s multiple injuries likely caused immediate death and once she’d become limp she slid under the seatbelt into the back of the driver’s seat.

Taylor Ibrahim – Sequence 9 – Aggravated dangerous driving occasion GBH

  1. Taylor Ibrahim was located in the front passenger seat of the car. Following Ms Ibrahim’s removal from the car she was taken to the Intensive Care Unit at Westmead Hospital. Ms Ibrahim was intubated for her first three days in hospital.

  2. Ms Ibrahim underwent a number of scans, tests and procedures after arriving at hospital and was found to have the following injuries.

  1. Complex laceration of the left lobe of the liver;

  2. Laceration to the spleen;

  3. L2 vertebral body fracture involving anterior and middle columns;

  4. L2 traverse process fracture;

  5. L1 vertebral fracture;

  6. L1 transverse process fracture;

  7. Fracture to the 5th rib on the left-side that was extensively comminuted and moderately displaced;

  8. Fracture to the 6th rib on the left side that was extensively comminuted and markedly displaced;

  9. Fracture to the 7th rib on the left-side that was not displaced;

  10. Fracture to the 8th rib on the left-side that was not displaced; and

  11. Left-sided pneumothorax (collapsed lung).

  1. As a result of the injury to her L2 vertebrae, Ms Ibrahim had spinal fusion surgery to insert a rod and screws into her spine at L1 to L3.

  2. Ms Ibrahim spent 15 days at Westmead Hospital before being discharged on 29 October 2018.

Victoria Potts – Sequence 10: Aggravated dangerous driving occasion GBH

  1. Victoria Potts was located in the rear passenger side seat of the offender’s car. Once she was removed from the car she was taken to Westmead Children’s Hospital in an ambulance. At the hospital, a CT scan revealed fractures to her skull and to a number of mid-facial bones. Ms Potts required emergency surgery to elevate the depressed comminuted fracture in the right frontal bone and a craniectomy to relieve pressure on the brain.

  2. Ms Potts was found to have the following injuries:

  1. (i)    Extensive and complex mid facial and orbit fractures (type le fort 2);

  2. (ii)    Comminuted fracture to the skull at the floor of the right cranial base; and

  3. (iii)    Subdural haematoma in the right frontal region.

Ms Potts spent 10 days in Westmead Children’s Hospital before being discharged.

Arrest

  1. At about 12:50pm on Monday 15 October, the offender was discharged from Westmead Hospital. Police attended the hospital and the offender was cautioned and placed under arrest. The offender was taken to Parramatta Police Station where he was placed into custody. The offender’s mother was advised of the offender’s arrest and she attended the police station to support the offender.

  2. The offender declined the offer to be interviewed by police.

Intoxication – Very Substantial Impairment

  1. At 6:35am on 14 October 2018, a blood sample was taken from the offender at Westmead Hospital. The results revealed the offender to have the following drugs present in his system.

  1. (i)    0.11 mg/L of alprazolam (Xanax); and

  2. (ii)    0.26 mg/L of 3,4-methylenedioymethamphetamine (MDMA).

  1. On 4 February 2019, Forensic Pharmacologist Dr Judith Perl considered the blood results of the offender and opined that at the time the offender was driving he was under the influence of alprazolam (Xanax), with likely additive effects of MDMA, to the extent that there would have been a very substantial impairment of his driving ability.

  2. Dr Perl stated that the offender’s blood concentration of alprazolam was suggestive of a high dose of it being used. She stated that alprazolam is a central nervous system depressant that can cause drowsiness or confusion, and can impair psychomotor skills required for driving.

  3. Dr Perl further stated that the offender had likely used a moderate dose of MDMA within 6 hours of the collision. She stated that MDMA use is epidemiologically associated with increased traffic accident risk and clinically associated with impairment of psychomotor functions important to driving ability, including accuracy of response, risk-taking, and perception of time and distance.

Objective seriousness

The applicability of R v Whyte

  1. For consideration of the objective seriousness affecting the offences of dangerous driving, it is customary to start with what Spigelman CJ said in R v Whyte (2002) 55 NSWLR 252:

“[204]   A frequently recurring case of an offence under s 52A has the following characteristics:

Young offender;

All good character with no or limited prior convictions;

Death or permanent injury to a single person

The victim is a stranger

No or limited injury to the driver or the driver’s intimates;

Genuine remorse

Plea of guilty of limited utilitarian value.

[216]   I had earlier ... set out a list of aggravating factors which had been established in the authorities as follows:

Extent and nature of the injuries inflicted.

Number of people put at risk.

Degree of speed.

Degree of intoxication or of substance abuse.

Erratic driving.

Competitive driving or showing off.

Length of the journey during which others were exposed to risk.

Ignoring of warnings.

Escaping police pursuit.

[217]   Further consideration of the authorities would cause me to amend this list by changing (v) to read ‘erratic or aggressive driving’ and adding:

Degree of sleep deprivation;

Failing to stop.

[228]   In the above list of aggravating factors, items (iii)-(xi) 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 moral culpability is high. One way of expressing such a 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.

[229]   The guideline for offences against s 52A(1) and (3) for the typical case identified above should be:

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.

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

[231]   In the case of the aggravated version of each offence under section 52A, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment.

[232] 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 the factors required to be taken into account by s 21A of the Crimes (Sentencing Procedure) Act.

  1. Subsequent authorities recognise that the guidelines are not intended to be exhaustive: they are illustrative; not definitive and other circumstances of aggravation other than those identified may be taken into account[1] .

    1. Kerr v R [2016] NSWCCA 218 at [96]

  2. The Crown identified similarities between the circumstances of this case, and the typically recurring circumstances referred to in R v Whyte: here, the offender was 18 years of age; he had no prior convictions; one passenger was killed; the offender was remorseful and, although the offender entered pleas, the Crown case against him was of such strength that they had only limited utilitarian value; there was evidence of the offender’s speeding over the limit and the driver’s impaired ability to drive from having ingested drugs.

  3. There were, however, differences as well: the victims were not strangers, but friends of the offender; the offender did suffer some limited injuries.

  4. In relation to the ‘aggravating factors’ identified in Whyte, it was common ground that:

  • A blood sample taken at 6:35am on 14 October 2018 indicated that the following drugs were present in the offender’s system: 0.11mg/L of alprazolam (Xanax) and 0.26mg/L of 3,4 methylenedixoymethamphetamine (MDMA).

  • The offender’s ability to drive was very substantially impaired by the fact that he was under the influence of both Xanax and MDMA, but there was no quantification of how much.

  • The offender was driving in excess of the appropriate level of speed (50km/h), but by what degree is unknown.

  1. I accept the submission of the offender’s counsel that in the absence of quantification, the circumstance that the offender’s ability to drive was substantially impaired by being under the influence of both drugs cannot be regarded as an ‘aggravating factor’, in the sense of elevating the seriousness of the offences, as this factor is an element of the offences to which he has pleaded guilty.

  2. Other ‘aggravating factors’ identified in Whyte are present here, including:

  • the offending conduct and the consequence of occasioning death to one passenger (Ms Xuereb), extensive injuries to Ms Ibrahim and injuries (of a less serious kind) to Ms Potts (although, again, these constitute elements of the aggravated offences to which the offender has pleaded guilty);

  • those three passengers and any other road users (noting that it was an early time in the morning) were all put at risk.

  1. One contentious issue is the consideration concerning the length of the journey. The Crown submitted that because of uncertainty as to the time he commenced leaving to undertake the journey, this was a neutral consideration. The offender’s Senior Counsel took issue with that submission, and suggested, with reference to Google maps, that I could infer that the distance between Ms Ibrahim’s house in Quakers’ Hill and the place of collision, only 6km away suggested the drive would have taken approximately 10 minutes. I was invited to infer that the offender’s intended destination was his place of residence in Blacktown. In the circumstances, I am prepared to accept that the length of journey was not long.

  1. Having regard also to the time of the collision, I would further accept that the risk of danger to other road users, pedestrians and property damage to other vehicles was less significant than it would have been had it occurred in a busier period of road usage. Nevertheless, the risk remained.

  2. The Crown referred to evidence of one of the Fire and Rescue officers, Mr Ross Genders who arrived at the scene of the accident, who reportedly observed that the offender did not understand the gravity of the situation. The Crown suggested that this was one indication that the offender had abandoned any sense of responsibility and did not manifest concern for the passengers in his vehicle. I do not regard the dazed reaction of the offender after a collision in which he was himself injured quite in that light. I accept that it suggests a lack of appreciation of the gravity of the situation, but that was influenced by the influence of the drugs. I do not infer that the reaction manifested a callous disregard for the passengers: the offender was still likely to be in a state of shock or at least badly affected by the collision. The abandonment of responsibility occurred with the decision to drive in the first place, given the nature of the drugs that had been consumed.

  3. So far, what I have said indicates that there are few separate identifiable (or quantifiable) aggravating considerations which are not already elements of the offences to which the offender has pleaded.

  4. As was apparent in Whyte, the appropriate ‘increments’ of punishment for the subject offences reflect the level of the offender’s moral culpability. It was submitted to me that there are relevantly two ends of the spectrum: ‘momentary inattention or misjudgement’ (the low end) and an ‘abandonment of responsibility’ (the high end); although it is unnecessary to assign cases into one of those categories and it has been recognised that there are shades and gradations of culpability in different instances of the offence along the continuum[2] .

    2. R v Khatter [2000] NSWCCA 32 per Simpson J (in dissent) at [31], followed in R v Errington (2005) 157 A Crim R 553 per Mason P (with whom Grove and Buddin JJ agreed) at [27]

Significance of dependence upon Xanax

  1. In some circumstances, a causal link between a drug addiction and an offence can reduce the seriousness of the offence. That can arise where the addiction reduces the offender’s cognitive faculties and capacity to make reasoned or ordered judgments and reduce his awareness of the likely consequences of his conduct. But the applicability of this reasoning cannot be stretched too far. It cannot be the case that drug addicts who drive dangerously can become a separate class of offender for the purposes of sentencing for this offence.

  2. In R v Henry (1999) 46 NSWLR 346 Spigelman CJ said at [197]-[201], in the (different) context of the offence of armed robbery:

[197]    In my opinion drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary, just as it varies for individuals who are not affected by addiction. There are a number of aspects of the relationship between drug addiction and crime which indicate that moral choices are made.

[198]    First is the original decision to experiment with drugs which, in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so widely known that persons who choose a course of addiction must be treated as choosing its consequences.

[199]    Secondly, the submissions in this Court were in error in identifying the relevant conduct as the craving associated with withdrawal. The material presented to the Court did not suggest that the choice faced by addicts was between this negative feeling and the need for money to allay it. Rather the choice may often be the desire for the positive feeling said to be associated with a drug induced euphoria. The desire to bring about that state of “well-being” is relevantly, a moral choice.

[200]    Thirdly, nothing in either the process of addiction or its neurobiological and physiological basis, leads ineluctably to the commission of crime, let alone the commission of crimes of violence against persons, such as armed robbery. Not all persons who suffer from addiction behave in this way. Those that do so, make a choice.

[201]    Finally, individuals do emerge from addiction. They do so with difficulty and generally need significant amounts of help. The decision to persist with an addiction, rather to seek assistance, is also a choice.

  1. As to the last of these matters, I note that, to his credit, the offender has since the offending events occurred, apparently abstained from drugs. It is not apparent whether he was able to do so with or without therapeutic assistance.

  2. The offender also relies upon the line of authority, including DPP v De La Rosa [2010] NSWCCA 194 at [177], which posits that where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. This also has implications for the centrality of the principles of deterrence and denunciation to be considered later in these remarks.

  3. But it does not follow that because the offender has been diagnosed with a social anxiety disorder, and that such disorder contributed to his drug dependence on Xanax, that his consumption of Xanax shortly before the offensive conduct mitigates the commission of the crime; even if the anxiety disorder may be very relevant to considerations of rehabilitation. Gleeson CJ observed in R v Engert (1995) 84 A Crim R at 71:

“… the question of the relationship if any, between the mental disorder and the commission of the offence goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of a particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system.” (Emphasis added).

  1. Dr Allnut’s diagnosis of an underlying social anxiety disorder was based largely upon the history of events recalled by the offender in 2016 and 2017, being when he was in years 10 and 11 (respectively) at school. It was said that the main symptom of the disorder was a desire to avoid social situations.

  2. As at 13 and 14 October 2018 the offender had finished year 12. I infer that the offender had, at that time either started, or was shortly to start, his Higher School Certificate examinations. He said that it was the stresses of studying for the HSC, and concern about what he might do in the future, that led him to dabble in drugs earlier in the year and he found the consumption of Xanax most congenial to alleviate his stresses. This was not information which, it appears, he imparted to Dr Allnut. The offender did not say that his commencement of taking drugs, and especially, Xanax was attributable to stress experienced by his HSC studies. The history Dr Allnut took from the offender did not contain any reference to the circumstances he directly disclosed to the Court as to how he started to take Xanax.

  3. In the offender’s counsellor, Adrian Barker’s report, reference was made to the offender’s disclosure that he had begun to take Xanax, “like candy”, in the two months prior to the collision, to ‘the point of addiction’; not the six months reported by Dr Allnut.

  4. This evidence undermines Dr Allnut’s linkage between a social anxiety disorder arising in 2016 and 2017, the circumstances in which he commenced the consumption of Xanax and the asserted connection with the offending conduct on 13-14 October 2018.

  5. Since the collision, there are a number of references in the evidence to indicate that the offender had abstained from the drugs. The evidence leads me to also doubt whether the offender did, in fact, have an “addiction”; as distinct from a strong craving.

  6. In the circumstances leading up to the offending conduct which occurred here, according to what he later told Dr Allnut, the offender had already consumed Xanax on the afternoon (midday) and in the evening (8pm) before going to a party which he attended on Saturday night, 13 October. The offender told Dr Allnut that at about 3am, he consumed another 4mg of Xanax and also smoked about two cones of cannabis. The offender was unable to recall when he consumed the MDMA.

  7. Taken in isolation, it is understandable that consumption of Xanax might allay anxiety (even if it was, as the Crown suggested, a non-prescribed form of self-medication). As Dr Perl noted, Xanax can cause drowsiness or confusion and thereby impair the psychomotor skills required for driving. I do not consider that the consumption of Xanax alone, even in large amounts, would explain the offender’s reported observation to Mr Genders after the crash: “Woah, man this is tripping”. The offender said he got the drugs from his “mates up the road”. It is not apparent that he took them to allay any social anxiety.

  8. The offender did not submit that he suffered from any dependence upon MDMA (‘ecstasy’), a drug that is apt to produce a very different effect to Xanax. Nor is there any suggestion that any social anxiety disorder contributed to the offender’s decision to consume MDMA that morning (in a stronger dosage than the Xanax), or, as he had indicated to Dr Allnut, the two cones of cannabis.

  9. I am not persuaded, on the balance of probabilities, that the offender’s consumption of this combination of drugs in the early hours of 14 October 2018 was indirectly attributable to an underlying social anxiety disorder. The more likely explanation was that the combination was consumed to induce in the offender a euphoric social experience even at a very early stage of the morning. That was, to adopt what Spigelman CJ said in R v Henry, the consequence of the offender’s choice.

  10. The offender informed Dr Allnut that one of the girls was in the driver’s seat and suggested that she drive, but the offender indicated he would rather drive; thinking that it was his car and trusting in his abilities more than hers. In view of his consumption of the various drugs, sadly, that was a fateful decision that had catastrophic consequences. It was, in my view, an aggravating circumstance, betokening a lack of responsibility.

  11. The consumption of these drugs also occurred in a circumstance where the offender was on a provisional drivers’ license, a status reflecting his driving inexperience and it is expected, if not universally understood, that drivers of that level are not to allow themselves to drive when intoxicated, whatever be the source of that intoxication, and whatever be the circumstances (whatever be the length of the drive). This was another aggravating circumstance indicative of a lack of responsibility.

  12. Accordingly, the seriousness of the offending conduct is not, in the particular circumstances, lessened by drug dependence on Xanax which, in itself, was said to be attributable to any social anxiety disorder.

Victim Impact statements

  1. By s 21A(2)(g), victim impact statements cannot be taken into account to indicate that ‘substantial’ harm was caused to victims in a way that will aggravate the offence, since the circumstance of substantial harm is already an element of the offence under s 52A(2).

  2. However, issues of fact and degree may arise in case of the offence under s 52A(4) (R v Whyte at [214]). Where injuries are serious, it has been said that the principles of retribution and general deterrence need to be reflected to a considerable degree (R v Dutton [2015] NSWCCA 248 at [34]).

  3. The Court received victim impact statements from the deceased’s mother, Ms Lori Smith, Stuart and Jill Smith (respectively, the grandfather and grandmother of the deceased) as well as to the two surviving passengers, who sustained the serious injuries, Ms Victoria Potts and Ms Taylor Ibrahim. The statements all bespeak an inconsolable sense of grief at the tragic loss of Kasey Xuereb and the enduring physical and emotional scars of the survivors Taylor Ibrahim and Victoria Potts. I do not intend to diminish that expression of grief when reproducing only a small part of the content of the statements below.

  4. Ms Smith said, amongst other things:   

“My daughter was a beautiful, intelligent, funny, kind, imperfectly perfect. And I miss her. Every fibre of my being yearns for her. I am not the same person that I was a year ago. I am depressed, anxious, highly stressed. I hardly sleep, and when I do it’s filled with nightmares. I feel so anxious when my other children aren’t home, and if I know they are being driven around by any other person but myself, I am full of fear. I miss my family. What makes a family are all the little things, and all the little things that left us when Kasey died, leaving a hole in our lives. I see my parents struggle as I grieve, I see their worry for my family. I see them trying to be strong, when in fact, they lost Kasey too. I see the pain in Kasey’s father’s eyes, the one person who can begin to understand how I feel.

I have had to watch helplessly the effect that this has had on my younger children. Savannah, 14 and Boston, 12. Savannah was a happy girl, a good student who is part of the pride class in school. A girl who sang lead when she was 12 in the high school musical. She learnt the piano and would play and sing all the time, while Kasey would listen from the other room. The keyboard is untouched, and she would not try out for this year’s musical. I have had phone calls from the school because of her attitude in class and her grades have dropped. I have picked her up from school early because she is in tears. I have watched her battle anxiety, sometimes depressed, and other times an almost manic energy. She will hardly leave the house. It makes me so sad that she always put on a brave face for me, and will not talk to me. Trying to protect me from being any sadder. That isn’t what she should be doing. It is MY job to protect her.

My son Boston won’t talk about it either. Since the day his oldest sister died, he has slept in my bed. I see him struggling to fall asleep and hear his nightmares. He avoids going out. He has not had any friends over nor has he gone to any friend’s house since. I struggle to get both children to go to school, go out for a family day or even come to shops. How can Shane and I be the parents that they need when we are all broken?”

  1. Jill Smith’s statement (read about by Stuart Smith) included the following:   

“I was there when you were born, watching you come into the world, and I looked after you whenever it was needed in the years of your childhood. I was so proud of you with all your awards and achievements from your school, being a straight A student. Now I will never be able to see you working with your Mum as you planned to, or even walking down the aisle to be married, and I will never hold your child, my great grandchild, in my arms. All my love, Kasey.”

  1. Stuart Smith said:   

“At Glebe I smelled the smells, I saw my granddaughter, I felt my daughter’s pain. My wife, Jill, and I have felt Lori’s grief, pain and irrational guilt ever since. We have tried to support her as best we can. Our grief is real and painful and will always be there, sometimes only in the back of our minds and sometimes as sharp as a razor; but this is nothing compared to my daughter.”

  1. It is also important to refer to the effects on the injured, but surviving passengers. Ms Potts said:         

“Words will never fully explain the hole that was left in my heart that morning. I live with this empty feeling a faded memory of her, knowing I will never be able to see her smile again, it’s a different type of pain and it’s something that will never leave. I have 1 massive scar on the right side of my head the hair won’t grow back in that spot and as a young girl to get my head shaved, it was hard. My hair is one of the things that makes me feel beautiful, the way I style it and wore it and I have parts of my hair still growing back.

I’ve never had surgery before the accident and I wasn’t even conscious for the first surgery, that experience was ripped away from me. I had two surgeries, they had to reopen the stitches of my first surgery to fix the plates on my head because I was at risk of losing my life. I had to get multiple plates in my head to repair my skull and some to repair my eye socket. I have persistent numbness on parts of my scalp that may or may not come back. I had a depression fracture on top of my head, broke my nose, have a small bone fragment floating behind my right eye and my eye socket broke causing blood under my eye, I couldn’t open my eye for days, I couldn’t see I was so scared that didn’t even have an eye anymore. There was bruising all over my face I felt disgusting – my face was so messed up I had to look in the mirror everyday and see yourself in a state like that is so scary, I felt like I was just an object that was collateral damage for someone else’s mistake. I live with constant headaches and have the risk of seizures related to epilepsy because of my head injury.

I have ongoing neurological appointments and MRIs for the headaches. I still have bruising in the brain. I continue to see psychologist at the Westmead Children’s Hospital since the crash.

I am still scared to be in the car, I see every situation of an accident that could happen in front of me. I’ve once thrown my arm over someone and grabbed my seat belt because I was sure we were going to crash because I saw it happen in my mind.

What happened can never be fully summed up in a few words.”

  1. Ms Ibrahim said:   

“My name is Taylor Ibrahim I am 18 years old. The accident changed my life in so many ways, it has affected me physically, emotionally and mentally. I lost my best friend Kasey and that breaks my heart she was a beautiful girl and bubbly girl and I miss her so much and always will. She made me happy, she made me laugh but now I cry because I will never see that beautiful smile again. I cannot come to terms with the fact that Kasey did not get the chance to live her fullest life, she never got to fall in love, get married, have children or even turn 18. I often think about Kasey’s family and how sad they are now.

One year has now just passed since the accident and I still find it hard to cope with everything and all the trauma I have been through. I still have no memory of the accident at all and when I woke up 4 days later in the intensive care unit of Westmead Hospital. I will never forget the sadness in my mum’s eyes as she had to tell me that my beautiful Kasey was gone and my other friend Victoria had been seriously injured in the accident like myself.”

  1. No submission was made, by the Crown or on behalf of the offender, that the victims knew that the driver was under the influence of the drugs but remained willing to travel with him as a mitigating factor. Counsel were correct not to do so. The authorities suggest that even if that fact could be established, it would not mitigate the offender’s conduct[3] .

    3. R v Errington [1999] NSWCCA 18 at [27]-[28]

  2. Further, the narrative of the objective circumstances above indicates, unsurprisingly for an offence of this kind, the offending conduct was not part of any planned or organised activity (s 21A(3) of the Crimes (Sentencing Procedure) Act 1999).

  1. Overall, for these reasons, I consider the s 52A(2) offence to be at the mid-range of seriousness. Similarly the s 52A(4) offences are assessed at the mid-range.

The offender’s subjective case

  1. Most of what follows in this section is referred to in the detailed written submissions of Senior Counsel for the offender, and is not disputed by the Crown.

  2. The offender’s pleas of guilt were accepted by the magistrate at the committal proceedings for the offences and it is accepted by the Crown that a reduction of 25% is made in each of the sentences that would otherwise have been imposed.

  3. The offender is currently aged 19 and was aged 18 at the time of the offending. He came from a family of two and was the elder. His parents remain together and the offender considers that he has come from a loving and supportive familial environment. He finished school (at Year 12 level) and had done some casual jobs at the time of offending. He has a current girlfriend and that relationship is described as stable. The offender is supported by his family and girlfriend.

  4. Notwithstanding this positive description of his family experience, Dr Allnut reported a family history of substance use and depression as well as social anxiety disorder. This, Dr Allnut considered, was indicative of a genetic predisposition in the offender to developing a social anxiety disorder himself.

  5. As indicated earlier in these remarks, Dr Allnut reported that from about the age of 16, he developed a social anxiety disorder. His conduct was characterised by marked anxiety and avoidance of social situations because of a concern that people would be critical and judgemental of him. I have referred to the issue of the causal significance of this to the offending conduct above.

  6. On the scale of moral culpability identified in Whyte, Senior Counsel for the offender did not suggest that, even if the social anxiety disorder contributed in some way to the offences, that it was low. This was plainly not a case of momentary inattention or misjudgement.

  7. Here, there was a high level of moral culpability arising from a conscious decision to drive in circumstances where he assumed responsibility for the safety of 3 passengers whilst being conscious, at least, of his having taken Xanax and cannabis, being drugs that plainly were susceptible to impair his capacity to drive. The consumption of the combination of drugs was designed to produce a euphoric effect for his own gratification. It was highly irresponsible that, at the same time, the offender would decide to drive; not only because of the presence of other passengers but also because of the offender’s rejection of the offer of one of them to drive instead of him. It amounted to an abandonment of responsibility for the passengers he was driving.

  8. Further, even if the consumption of Xanax during the evening might partly be explicable by a dependence stemming from an underlying anxiety disorder, the consumption of the other drugs could not be so readily explained. The offender’s use of MDMA and cannabis, and the resultant effects, contributed to a level of intoxication that was self-induced. It is not a mitigating factor.

  9. The offender himself sustained injuries after the collision. On 18 October 2018, he commenced counselling sessions with Adrian Barker. It is reported that at those early sessions, he had experienced very strong suicidal ideation whilst in police custody. The offender had however, worked through this to conclude that he wanted to make his life meaningful and worthwhile to others. His subsequent dealings with his own family, particularly his mother, and contributions to the community have been positive.

  10. In a statement from the offender himself (Ex 3) as well as statements from a counsellor (Adrian Barker) and a range of family members (his mother), friends and members of the community who know the offender, the offender is genuinely remorseful; although the offender did not give evidence on oath or affirmation. One of his referees stated that after he was charged, his demeanour was one of “absolute dejection and sorrow.” The offender not only knew the deceased, but the other two severely injured passengers. He has reputedly cried “oceans of tears” for the loss and injuries to his friends.

  11. I note, further, that in his written statement, the offender unequivocally accepted responsibility for his actions and acknowledged the injury, loss and damage caused by his actions.

  12. Some character references point to his volunteerism in the community, including club baseball and his involvement at the Easter Show and participation in this year’s State Election. This has been noted as something which has increased since the offending conduct arose and suggests a desire to atone consistent with remorse.

  13. The offender is previously of good character, with no antecedents. There is reference to a minor traffic infringement.

  14. Since the commission of the offences, the offender has not only worked, but has enrolled in TAFE education. When he has not been busy with his activities, it is said that he has used music to promote his rehabilitation. He currently has a supportive girlfriend and it is clear that he enjoys strong community support.

  15. More importantly, with respect to rehabilitation, the offender has received regular counselling from Adrian Barker, which continues. Adrian Barker “wouldn’t hesitate to immediately identify (the offender) as one of the most open and committed individuals in regards to working towards his own personal rehabilitation towards personal growth and in his desire to make the rest of his life a positive contribution to society.”

  16. The evidence, of a partly subjective and partly objective nature (ie the urine analysis) before me suggests that he has since ceased all drugs. That circumstance, along with the others I have indicated in the offender’s subjective case, makes it very unlikely he will re-offend.

  17. It is submitted on the offender’s behalf that the offender has excellent prospects for rehabilitation. The Crown accepts that he has good prospects of being rehabilitated.

  18. Although I have rejected the notion that his culpability should be reduced on account of a drug dependence attributable to a social anxiety disorder, such anxiety disorder is relevant to the offender’s subjective case in the sense that it should be acknowledged that the custodial sentence may bear more heavily upon him; as well as the length of the non-parole period. Dr Allnut says, and I accept, that he will require on-going psychological and psychiatric supervision in the future.

  19. Dr Allnutt says, without contradiction, that given the offender’s age and anxiety disorder, he would be a more vulnerable prisoner and if he is given a custodial sentence, this should be made known to the Corrective Services. I note that he has already been subject to onerous bail conditions since admitted to bail two days after the offences were committed.

Overall assessment

Application of sentencing principles

  1. There is no question that, having regard to the maximum penalty for each offence, the two offences are very serious. The most serious involves a tragic loss of life.

  2. I take into account the general principles in s 3A of the Crimes (Sentencing Procedure) Act.

  3. The sentencing task that befalls me is unenviable since, as Haesler DCJ said in R v McKeown [2013] NSWDC 22 at [5][4] in this type of case:

“No life can ever be equated with a period of imprisonment; no gaol term can return a loved one; and a life should never be measured simply by the punishment meted out to the offender.”

4. Adopted in R v Smith, Jarad [2016] NSWCCA 75 per RA Hulme J at [18]

  1. I have also had regard to the authorities on sentencing for offences of this kind, which tend to indicate the direction in which those general sentencing principles are applied.

  2. Thus in R v Jurisic (1998) 45 NSWLR 209 at 228, the decision which was a forerunner to the guideline judgment in R v Whyte, Spigleman CJ identified as significant the following matters when sentencing for the offence of dangerous driving causing death:

“1.   The legislature has always placed a premium upon human life, and the taking of human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.

2.   The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of human life.

3.   Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases.

4.   The courts must tread warily in showing leniency of the character in such cases.

5.   So far as youthful offenders who are guilty of dangerous driving, therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.”

  1. These observations were said to be readily adapted to the offence of dangerous driving causing grievous bodily harm (Jurisic at 228). They must apply all the more strongly to the aggravated offences of which the offender pleaded to.

  2. The significance of the need for general deterrence for the subject offences was more recently identified by Wilson J in R v Manok [2017] NSWCCA 232 at [79] where it was said that the risk that any driver, I interpolate of any particular age, could commit an offence resulting in the death or severe injury that all drivers must be deterred from driving dangerously by the sentences imposed on those who transgress.

  3. I referred earlier, in these remarks, to the principle that general deterrence may have less weight where it is established that an offender’s mental abnormality contributed to the offence: such abnormality might make the offender an “inappropriate medium” for general deterrence [5] . In the circumstances which faced the offender early in the morning on 14 October 2018, he had his wits sufficiently about him to prefer that he, and not one of his fellow passengers, should drive. Although his capacity to make reasoned judgments was impaired by the combination of drugs he had taken, I have indicated that I am not persuaded that this was due to any underlying social anxiety disorder.

    5. De La Rosa at [177]

  4. For the subject offences, the offender’s youth and strong prospects rehabilitation are not of significant weight. As has been said at the appellate level:

“[147]   It is precisely because of the tendency of young drivers to drive dangerously that general deterrence must be regarded as of great importance, and must be given relatively less weight.

….

[150]   The fact that young men (in particular) may have such perceptions (of being ‘bullet proof’) is a significant reason for general deterrence to be a prominent factor in cases such as these.”[6]

6. SBF v R (2009) 198 A Crim R 219 per Johnson J, citing with approval DPP v Neethling [2009] VSCA 116; approved in R v Elkassir [2013] NSWCCA 181 at [41]-[42]

  1. Leaving aside the importance of general deterrence, the need to protect the community from conduct of this kind is also of greater significance than the consideration of the offender’s rehabilitation.

  2. This being the offenders’ first offence, his good character, his evident remorse and his worthy conduct after the commission of the offences, I am not inclined to place much weight on any need for specific deterrence. Some substantial weight needs to be accorded to society’s denunciation of such conduct and the community’s expectation of stern punishment for these severe offences. I have noted, earlier, the significance of the principle of retribution to a case like this (see paragraph 68, above).

Sentence of imprisonment

  1. It was common ground between Counsel that the threshold in s 5 of the Crimes (Sentencing Procedure) Act is reached such that there is other alternative than full time custodial term of imprisonment. I make that finding.

  2. The three offences constituted a single episode, in a short period and with common features. These circumstances are indicative of a need for concurrency, although the circumstances that there are multiple victims, and that there are two different offences, points to a need for some accumulation. That should not, however, be significant in these circumstances. Ultimately, the importance of the totality principle serves to ensure that the cumulative sentence not exceed the offender’s overall culpability.

  3. The Crown accepts that there are special circumstances exist that suggest that the usual ratio for the non-parole period be altered. Even without that acknowledgment, I would have found special circumstances, whilst acknowledging the importance that the non-parole period must reflect, overall, the objective criminality as well as the principle of general deterrence, because of the offender’s remorse, his youth, the circumstance that he is a first-time offender for offences of this kind, his very strong prospects for rehabilitation, the need to treat his mental condition, the need to re-integrate him back into the community and the reality that this last objective is more likely to be achieved outside the full-time custodial setting.

  4. Senior Counsel for the offender brought to my attention a number of other cases involving comparable features, including, without limitation, R v Smith, Jarad [2016] NSWCCA 75, Whybrow v R [2008] NSWCCA 270 and R v Shashati [2018] NSWCCA 167. Although no case can ever be the same, I have considered those cases, bearing in mind the importance of promoting general consistency in sentencing.

  5. An aggregate sentence is appropriate and I have considered the principle of totality in that regard. The indicative sentences for each offence, factoring in the 25% discount in each case, are:

  1. the s 52A(2) offence: six years and six months.

  2. the first s 52A(4) offence:      five years

  3. the second s 52A(4) offence:   five years

  1. As I noted earlier, disqualification automatically results from these offences. I was referred to the decision of Sully J in R v Veatufunga [2007] NSWCCA 54 at [40], where reference was made to the purpose of this order, being the protection of the public. The Court of Criminal Appeal has recently noted that reductions may be made in order to promote rehabilitation and the offender’s re-integration into society[7] . It was submitted on the offender’s behalf that given the length of the custodial sentence to be imposed, the offender’s prospects of rehabilitation and the unlikelihood of his re-offending, there is scope to reduce the automatic period of 3 years in each case to 18 months and meet that sentencing objective. I agree.

    7. Reddy v R [2018] NSWCCA 212 at [49]

  2. Please stand Mr Cook. You are convicted of:

  1. The one count of aggravated dangerous driving occasioning death; and

  2. The two counts of aggravated dangerous driving occasioning grievous bodily harm.

  1. I sentence you to an aggregate sentence of imprisonment of 7 years commencing 8 November 2019 and expiring on 7 November 2026. I set a non-parole period of 3 years 10 months ending on 7 September 2023. You will be eligible for release on parole on 7 September 2023. I direct that the Corrective Services be informed about your social anxiety disorder, the treatment recommendations of Dr Allnut and the likelihood that you will be a more vulnerable prisoner.

  2. In relation to the s 166 offence, the offender is convicted. I accept the Crown’s submission that the penalty be an order under s 10A of the Crimes (Sentencing Procedure) Act. I make that order.

  3. In respect to all counts, treated concurrently, you are disqualified from holding a driver licence for a period of 18 months from the date of the offender’s release on parole.

**********

Endnotes

Decision last updated: 18 November 2019

Cases Citing This Decision

0

Cases Cited

21

Statutory Material Cited

2

R v Whyte [2002] NSWCCA 343
R v Whyte [2002] NSWCCA 343
Kerr v R [2016] NSWCCA 218