R v Fennell (No 2)

[2019] NSWDC 652

District Court

New South Wales

Medium Neutral Citation:	R v Fennell (No 2) [2019] NSWDC 652
Hearing dates:	8 November 2019
Decision date:	11 November 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 3 years. Non parole period of 1 year. For other orders - see [51] to [55].
Catchwords:	SENTENCING - dangerous driving causing death- after trial – defence that pedestrian stepped into car not accepted by jury - moral culpability not low but not high - key factors driving too fast for conditions in high pedestrian area and distraction - general principles in death by dangerous driving cases - application of sentencing principles.   SENTENCING - relevant factors on sentencing – death of pedestrian – impact on deceased’ family - offender a young mother - impact on offender’s family - remorse – good character- psychological harm - general deterrence - custody required - moderation of penalty – special circumstances - good prospects for rehabilitation – referral to Jacaranda House Mothers and Children’s Program.
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 Road Transport Act 2013
Cases Cited:	Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 Dipangkear v R [2010] NSWCCA 156 HJ v R [2014] NSWCCA 21 Hoskins v R [2016] NSWCCA 157 Legge v R [2007] NSWCCA 244 Power v. The Queen (1974) 131 CLR 623 R v Edwards (1996) 90 A Crim R 510 R v Errington (2005) 157 A Crim R 553 R v Fennell [2019] NSWDC 397 R v McKeown [2013] NSWDC 22 R v Musumeci NSWCCA, unreported, 30/10/97 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v SLR (2000) 116 A Crim R 150 R v Smith [2016] NSWCCA 75 R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23 R v Whyte (2002) 55 NSWLR 252 Veen v The Queen No.2 (1988) 164 CLR 465
Texts Cited:	Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families
Category:	Sentence
Parties:	Amelia Rae Fennell (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr J Steward (for the offender) Ms N Keay, Crown Prosecutor, Director of Public Prosecutions   Solicitors: Legal Aid NSW (for the offender)
File Number(s):	2018/00046559

Judgment

Background

1. On 7 September 2017, at Oak Flats, south of Wollongong, there was a collision between a pedestrian, Mrs Jones and a motor vehicle driven by Ms Amelia Fennell. Mrs Jones was 78 years old; Ms Fennell was 23. Just before the collision Mrs Jones had stepped onto the roadway from a pedestrian refuge just south of a roundabout. There was no marked pedestrian crossing but it was a well signposted high pedestrian area. Fennell was driving her car at an estimated speed of 58 KPH as she exited the roundabout; the posted speed limit was 40 KPH. She told police she did not see Ms Jones but felt an impact and immediately noticed her driver’s side mirror was gone. She stopped and rendered immediate assistance. Mrs Jones was unconscious and died in hospital some days later.

2. Fennell was charged with driving in a manner dangerous and occasioning Mrs Jones’ death: s52A (1)(c) Crimes Act 1900 (NSW). She said she was not guilty and on 4 August 2019, at Wollongong District Court a jury was empanelled to try her for that charge. On 8 August 2019, the jury returned a guilty verdict.

3. There was no dispute at trial that there was an impact between the vehicle driven by Fennell and Mrs Jones and that Mrs Jones died as a result of that impact. Two critical issues were identified for the jury to determine:

1. Whether Fennell was driving the vehicle in a manner dangerous to another person or persons. And;

2. Whether Mrs Jones death resulted, not from any dangerous driving by Fennell but because she stepped out into traffic without taking any proper precautions for her own safety, and would have died no matter what Fennell’s manner of driving: R v Fennell [2019] NSWDC 397.

A guilty verdict

4. The jury by its verdict accepted the prosecution proposition and rejected the defence put forward. The verdict was understandable. Fennell had been sick and off work with a leg infection. Although not fully healed she returned that morning to work at a shop in Oak Flats. She had not been there long when, after a dispute with her boss, she left. She drove away with her car’s tyres making a noise in the gravel of the carpark and turned into the main shopping street at Oak Flats; Central Ave, out the front of her shop. That part of the street is a designated high pedestrian area with a speed limit of 40KPH.

5. Fennell travelled through the shopping precinct to a large clear roundabout. The view through the roundabout is unobstructed. As she exited the roundabout she hit Mrs Jones, who had stepped onto the roadway from a pedestrian refuge just south of the roundabout.

6. Expert opinion given at trial established that the speed of the vehicle immediately prior to the impact was 58KPH. In her police interview Fennell said she did not see Mrs Jones but felt the impact whereupon she stopped quickly and only then noticed Mrs Jones body on the roadway. She immediately rendered assistance. She told police she had observed safety protocols while in the roundabout and had accelerated as she left it. She had looked to her left where an Armaguard van was parked illegally but she had not seen, nor was she aware, the pedestrian refuge to her right was there. The crossing was not marked.

7. The prosecution case was her driving was dangerous because of a combination of factors:

1. Going too fast and thus reducing her capacity to stop quickly in an emergency.

2. Going too fast for the conditions when exiting the roundabout, especially as it was a high pedestrian area.

3. Not paying attention as she was distracted by:

1. her anger following the argument with her boss, and

2. looking at the Armaguard van and not at the roadway.

8. They provide a sound basis on which to sentence Fennell. She was upset, distracted, still unwell and not thinking clearly. Instead of exercising the proper care expected of a driver she drove recklessly and dangerously though the roundabout without thought for the consequences. She did so in area clearly marked to alert drivers to the danger posed by pedestrians and at a speed well above what the area and time of day demanded.

9. As a result of these combined factors Mrs Jones lost her life. The pedestrian ramps leading up to the refuge were hard to see and within what one expert described as a “visually cluttered environment.” However, when Mrs Jones stepped from the area of the refuge she had a view of the cars on the roadway to her left and drivers heading toward her would have had an unobstructed view of her. When she stepped from the curb Mrs Jones was entitled to expect that drivers would enter the roundabout at a speed and manner that would allow her to cross safely and for them to stop before any risk of a collision.

10. The jury by its verdict rejected the suggestion Mrs Jones stepped from the curb into Fennell’s car. There was no contributory action by Mrs Jones here. If Fennell had been driving slower and been paying attention she would have been alert to Mrs Jones’ presence and had the opportunity to slow further to avoid a collision. Further, had Fennell been travelling at a speed consistent with the speed limit, Mrs Jones would have had time to safely cross the road or better estimate whether it was safe to do so.

11. Given the time estimates relative to distances at the roundabout and reaction times given by the expert witnesses it seem obvious to me that Fennell’s vehicle entered the roundabout at a speed above the 40 KPH limit. It appears her vehicle took a direct path through the roundabout and did not follow the curve. These facts in combination could have caused Mrs Jones, understandably, to misjudge what was coming towards her. As she stepped onto the roadway she was entitled to expect that cars entering, travelling through and exiting the roundabout would do so at a speed below 40 KPH, and do so safely, by observing the road rules and keeping a lookout for pedestrians; particularly so, as this was a well sign-posted high pedestrian area.

12. When Mrs Jones stepped from the curb Fennell may have been at the entrance to the roundabout – no pedestrian could have expected the car to move so quickly toward them. While in her interview Fennell said she accelerated as she exited the roundabout: Exhibit O - Q & A-202.The jury did not have to accept a proposition by the defence that she entered and travelled through the roundabout safely.

Dangerous Driving - Guidelines

13. Every sentencing exercise involves taking into account the individual for sentence and an assessment of what was done and its consequences. In exercising its sentencing discretion a court takes appropriate guidance from; the maximum penalty; here 10 years imprisonment, the purposes of sentencing set out in s3A Crimes (Sentencing Procedure) Act 1999, and the decisions of other courts, particularly statements of principle from the Court of Criminal Appeal and High Court of Australia. In summary:

1. The taking of a human life by driving a motor vehicle dangerously is 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 a human life.

3. There is a real need for public deterrence; that is by the punishment inflicted others must learn the consequence of failing to respect the safety of others when they get behind the wheel of a motor vehicle.

4. Good character, youth and other subjective matters, relating to any offender, is given less weight as than in other types of cases. The courts must tread warily in showing leniency for good character in such cases.

5. Accordingly, 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. As Hunt CJ CL summed it up in R v Musumeci NSWCCA, unreported, 30/10/97:

“It is never easy to send a youthful person of good character to gaol but, where it is appropriate, it is something which must be done as a deterrent to others. The need for public deterrence will usually outweigh the fact that the particular offender has already learned his or her lesson. Also, retribution remains an important purpose which the sentence must serve:”

14. In R v Whyte (2002) 55 NSWLR 252, the Court of Criminal Appeal recognised the broad discretion given judges at first instances but set out a typical case and a suggested guideline penalty. The examples given were illustrative, not definitive. There are both similarities and differences between them and Fennell’s case.

15. In Whyte, the Chief Justice noted however that;

“A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement.” at [214].

16. The greater the degree a driver abandons their responsibility to others the greater their moral culpability and the more objectively serious the offence. That in turn impacts on the penalty that should be imposed. In Whyte, it was said for the typical case offences, involving s 52A (1) Crimes Act, where the offender’s moral culpability was high, a full-time custodial head sentence of less than three years in the case of death would not generally be appropriate: at [229].A guideline is “not a tramline.” It should not be used to impermissibly confine the exercise of sentencing discretion: Legge v R [2007] NSWCCA 244, at [59]. Nor is the Whyte guideline a “starting point” - it is a reference point: R v Errington (2005) 157 A Crim R 553 at [40]. While every Judge has an individual sentencing discretion, that discretion must be informed by proper principle, and those principles should be applied consistently: R v McKeown [2013] NSWDC 22, at [17]: R v Smith [2016] NSWCCA 75.

17. Here, Fennell was driving above the speed limit. She had not travelled far but most of her journey was in a well signposted pedestrian zone. She was travelling far too fast in the circumstances. She was not focusing on her driving or other road users. Her driving caused the death of another woman. She is a young mother of otherwise good character with no prior convictions. She offered immediate aid to Mrs Jones and has expressed appropriate remorse.

Victim Impact Statements

18. I acknowledge receipt of Victim Impact Statement’s from the late Mrs Jones’ daughter, son and grandchildren: tendered as part of Exhibit A. They speak of a kind gentle woman, who was the mainstay of the family. Some were read to the court. Each recounts the immeasurable pain and loss her violent, tragic and undignified death has caused them all. She will be sorely missed. On the community’s behalf the court extends it sympathy and condolences.

Not Guilty Plea

19. If a person accepts responsibility for their crime and pleads guilty, a sentence can be reduced for a number of reasons; including the utilitarian value of that plea. No one can ever be punished for exercising the important right we all have to put the prosecution to proof but going to trial means they cannot get that utilitarian benefit.

Remorse

20. On realising she had hit Mrs Jones, Fennell ran to her to offer aid. Fennell also wrote a letter to the court: Exhibit 1. While it was not able to be tested it did express appropriate recognition of, and remorse for, the harm caused. It can be accepted. She says she will never stop being sorry but realises this won’t make things OK, given the life that has been lost, taken by her criminal driving that day.

21. She presented to her psychologist as tearful, distressed by her actions not just because of the potential consequences. She has also experienced anxiety, stress and depression at very elevated levels due both to her remorse and concerns about the consequences to herself and her family.

Subjective case

22. A report from Bradley Jones, psychologist, sets out relevant matters relating to Fennell: she is now 25, she has two children, aged 7 and 4 months, she has been estranged from her mother following a complaint she had been sexually abused by a relative when a teenager. Details are set out in the report: exhibit 2.

23. Although she is now close to her father, who remains supportive, Fennell left home at 15 and had a disrupted teenage life. Her previous relationships with men have been marred by their violence or drug use. Her current partner however has been solid and supportive of her and the children. In his letter to the court he spoke of his concerns about his ability to cope with weaning the new baby, caring for a 7 year old with autism and behavioural problems and working a full time job: exhibit 4.

24. Fennell has worked most of her adult life in the hospitality industry. She was employed up until her baby son was born. Her employer speaks highly of her professionalism, courtesy and capacity for hard work: exhibit 4. She has no previous criminal history.

25. Her traffic record is not a good one. She has three speeding matters from 2014 and 2016, the last for speeding at a roundabout, were she admitted she wasn’t paying attention: Exhibit B. She has, while awaiting sentence completed the Traffic Offenders Intervention Programme: exhibit 3.

26. In 2017 while she was not a drinker but she was a daily cannabis user. This cannabis use is reflected in the s166 certificate matter: see [40].

27. Mr Jones details a history of depression and anxiety going back to when Fennell was 14. She has been seeing another psychologist, Dr Lavelle, since October 2017, to help her deal with problems arising from her earlier abuse and the distress and grief arising out of the death of Mrs Jones and the subsequent court proceedings and related stressors.

28. On examination and testing Mr Jones found no evidence of cognitive impairment but noted Fennell suffers Post Traumatic Stress Disorder, arising from being sexually abused as a teenager, and Adjustment Disorder with depressed mood and a mild Cannabis Use Disorder. Some symptoms have yet to resolve but are amenable to treatment. A treatment plan is in place and should continue. Fennell has learned about, and has insight into, dealing with stressors. In general terms Mr Jones says Fennell has a low risk of committing other offences.

29. Dr Lavelle reports on her treatment of Fennell for her Post Traumatic Stress Disorder and very severe levels of anxiety, depression and stress. That treatment has been ongoing, partially funded by Victim Services, given the disclosures of her sexual abuse child as a child: Exhibit 5. That treatment will be interrupted by her going into custody.

Family hardship

30. In September 2017, Fennell was single mother raising a 5 year old child who has autism and behavioural problems. She had her second child in May 2019.

31. The imprisonment of female offenders poses complex issues that often do not have simple solutions. Women are overwhelmingly the sole or primary carers of children. The removal of women from the family can result in a fracturing of the family unit. When a mother is incarcerated there is often a significant disruption in the family and an increased risk the children will end up in the child protection system or potentially in the criminal justice system.

32. Studies done in connection with the Bringing them home Report found that the effects on children of separation from the primary carer can have serious long term consequences on these children’s lives: Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families . Separation of Aboriginal and Torres Strait Islander Children from their Families Separation of children at a young age can result in depression, trust and self-worth issues, and difficulties parenting their own children and unresolved trauma and grief.

33. There is a general principle that hardship to family and dependants is an unavoidable consequence of a custodial sentence and is not a mitigating consideration, unless such hardship is “wholly”, “highly” or “truly” exceptional: R v Edwards (1996) 90 A Crim R 510, Gleeson CJ, at 515: Hoskins v R [2016] NSWCCA 157 at [63]. If circumstances are “highly exceptional” — where it would be inhumane to refuse to do so — hardship to others in sentencing can be taken into account: R v Edwards. Each case will depend on the seriousness of the crime, whether there is a need for deterrence and the nature and degree of the impact of the sentence upon the third persons: Dipangkear v R [2010] NSWCCA 156, at [34].

34. There remains some tension between these sentencing principles as to whether parenting responsibilities and the needs of children can properly be regarded as “highly exceptional,” Generally however, the law is not so heartless as to ignore the impact of a sentence on the mother of a child and a young baby, the effect of separation on her and the degree to which it may impact upon the hardship of her custody: HJ v R [2014] NSWCCA 21, at [76]: R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23; R v SLR (2000) 116 A Crim R 150.

35. Here, while the case presented for Fennell is not so highly exceptional that full time gaol can be avoided it does have a number of significant features that require moderation of the harshness of that penalty by the way the sentence is structured.

36. I am aware Corrective Services NSW has a Mothers and Children’s Program facility at Jacaranda House, where mothers in custody can have their baby with them. Her daughter will not be able to be with her. I will have the file noted that Ms Fennell be immediately assessed for inclusion in that program. Even if suitable there will be an unavoidable period of separation from her new son, even if Fennell is accepted into the Program and her son is restored to her care. The length of time it takes to complete a submission varies depending on the nature and circumstances of the offence and the security classification or any outstanding family or Children’s Court proceedings.

Structure of sentence

37. Here the non-parole period will be the minimum period of imprisonment to be served that I consider that the crime committed and all the purposes of sentencing calls for: Power v. The Queen (1974) 131 CLR 623, at 628; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, at [59]. That non-parole period must bear a proportionate relation to the crime. It must also reflect the requirement that sentences for offences, where a death results from a serious breach of road rules, must by the severity of the punishment imposed signal to all road users the consequences of such a breach. Fennell’s perceived prospects of rehabilitation and the needs of her family, particularly her young children justify a finding of special circumstances: Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at [20]; s 44 Crimes (Sentencing Procedure) Act 1999.

38. In addition, Fennell will need help, on release, in adjusting to normal community life. The impact of custody on any person, let alone a person of otherwise good character who has never been in gaol before, cannot and should not be underestimated. Gaols are harsh and terrible places. Despite what some in the community might think, they are not holiday camps. They deprive a person not just of their liberty but of all real social interaction. Everything in their life is disrupted, including here treatment for a serious psychological condition.

Licence disqualification

39. Fennell must be disqualified from driving. Her driving record is neither the worst nor the best. The disqualification will be stayed while she is in custody but on release adjusting to normal community life, finding work and caring for her children, will be so much harder without the capacity to drive. Not having a licence will impede her rehabilitation but by her actions she has forfeited her right to drive for a lengthy period.

40. Fennell on testing was found to have cannabis in her blood. This is reflective of her regular use of the substance. There was no evidence that cannabis use interfered with her capacity to drive that day or was causally linkable to Ms Jones’ death. There must however be a conviction entered for that offence: s 111(1) (a) Road Transport Act 2013.

Submissions

41. Mr Steward, for the offender and Ms Keay, Crown Prosecutor provided and spoke to their comprehensive written submissions. I hope this judgment does justice to them.

42. Ms Keay submits I would find that the aspects of the offender’s driving which were dangerous are:

1. Driving at a very high speed for the time and place she was driving, and

2. Not maintain a proper lookout.

She accepts that it is unlikely Fennell will ever re-offend but after, reference to the Guidelines, concludes that the seriousness of this offence and the primacy to be accorded to general deterrence in crimes which result in loss of life, that no sentence other than full time imprisonment is appropriate

43. Mr Steward submits that the Crown can only prove beyond reasonable doubt that Fennell was travelling at 58KPH and that this of itself is not dangerous driving and that accordingly her moral culpability falls at the lower end of the range. As I noted above I do not accept this submission. He submits that when this and the offender’s subjective case is taken into account a custodial sentence served by intensive corrections in the community would meet the purposes of sentencing.

Objectives Seriousness

44. Mrs Jones death resulted from a number of examples of poor judgement and poor driving by Fennell. Her moral culpability was not low but neither was it high. Mrs Jones’ death resulted from more than momentary distraction or inattention, for a short and tragic period she drive too fast for the conditions, at least 58 KPH in a 40 high pedestrian zone. This was dangerous; she had abandoned her responsibility as a driver.

Synthesis

45. Sentencing in cases such as this is probably one of the hardest tasks that befall a judicial officer:” R v Smith [2016], at [18] & [19]. In matters such as this Judges are asked to perform an impossible equation. 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. Tragically this is not the first time I have had to say those words. I suspect, unless the driving public understand the consequences to themselves and others and think before they drive, they will not be the last: R v McKeown, at [5].

46. As in that earlier case, and tragically many others, I am required to take account of a number of competing considerations and the purposes of sentencing. Those considerations and purposes overlap and, at times, point in different directions: “None of them can be considered in isolation from the others when determining what an appropriate sentence is in a particular case:" Veen v The Queen No.2 (1988) 164 CLR 465 at 496,

47. While I will take into account and give weight to Fennell’s remorse and the real hardship imprisonment will cause her and her children, recognition must also be given to the impact of her crime on her victim, Mrs Jones, the deceased, and her grieving family. There must be a sentence of full time imprisonment here. The length of the sentence required and the seriousness of the crime committed mean that a sentence served in the community is not possible.

48. An innocent woman out shopping was killed as a result of Fennell's seriously criminal driving. Nothing she does for the rest of her life, nothing I can do to her, can ever bring Mrs Jones back or compensate her family for their loss. That loss was senseless and permanent. Her families' grief is recognised by the Court.

49. Sentencing proceedings last Friday were interrupted before sentence could be pronounced because we ran out of time late in the day. I told Fennell that a custodial sentence would be imposed. She asked that she start serving her sentence immediately. Her sentence will date from 8 November 2019. A detention application was made and not opposed. She went into custody. The matter was stood over until this morning for judgement. She appears today from Silverwater Corrections Centre via video link.

50. I adjourned when I did so that Fennell could be put on the Corrective Services truck and taken straight to gaol from Wollongong Court. Instead I was told this morning that the truck left without her. She spent most of the weekend in the Police cells in discomfort and distress. I will have enquiries made to ensure that that such a situation does not arise again.

Orders

51. In relation to the s 52A(1) (c) Crimes Act offence: You are convicted. Taking into account a finding of special circumstances, I set a non-parole period of 1 year commencing 8 November 2019. You will be released to parole on 7 November 2020. There will be a parole period of 2 years. Total sentence of 3 years which will expire on 7 November 2022.

52. You are disqualified from driving for 3 years.

53. In relation to the s 166 Criminal Procedure Act matter: You are convicted. It is inexpedient to impose any other sentence. I dispose of the proceedings without imposing any other penalty pursuant to s. 10A Crimes (Sentencing Procedure) Act 1999.

54. You are disqualified from driving for 3 months.

55. I direct the Registrar of the District Court request Fennell be assessed for the Corrective Services NSW Mothers and Children’s Program facility at Jacaranda House.

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Decision last updated: 11 November 2019