R v Grgeta - [2004] SADC 108

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GRGETA
Reasons for Sentence of His Honour Judge Lunn
17 August 2004
CRIMINAL LAW
Sentencing - causing bodily harm by dangerous driving - collision when driving on wrong side of road in the hills after episodes of other dangerous driving - brain injury suffered by victim - defendant also suffered brain injury himself in previous accident - held he had driven with knowledge of the dangerousness and wrongfulness of his acts - 38 year old invalid pensioner - sentence of imprisonment for 27 months with a non parole period of 6 months unsuspended - driving licence cancelled until further order.

R v GRGETA
[2004] SADC 108
REASONS FOR SENTENCE

On 24 May 2004 David Peter Grgeta pleaded guilty in this Court to causing bodily harm by dangerous driving contrary to s19A(3) of the Criminal Law Consolidation Act 1935.
On 4 June 2002 Grgeta was living in a caravan park at Woodcroft. Elisa Clarke also lived in that caravan park. Grgeta had romantic feelings for her which were not reciprocated. He wanted to impress her. Grgeta owned and drove a Ford Falcon sedan car.
On the morning of Tuesday, 4 June 2002 Grgeta drove his Falcon to Mount Barker towing a trailer on which was a Commodore car belonging to Ms Clarke. She and others were passengers in his car. Grgeta engaged in some erratic driving on this journey such that one of the other passengers in his car requested to return to Woodcroft with Ms Clarke in her Commodore after it had been repaired instead of travelling again with Grgeta.
During that day Grgeta consumed two 440ml cans of Woodstock bourbon and cola and took some medication, but he did not eat anything.
At about 7pm that day Ms Clarke commenced to drive her Commodore from Mount Barker back to Woodcroft. Grgeta followed her driving his Falcon. Shortly out of Mount Barker Grgeta continuously accelerated up close behind Clarke’s car and then backed off indicating he wanted to “drag”. Sometimes he got to within 2 metres of the rear of the Commodore. At one point Ms Clarke accelerated to about 90kph in a 60kph speed zone and Grgeta also similarly accelerated behind her. On several occasions Grgeta pulled out on to his incorrect side of the road, and sometimes over barrier lines, close to the rear of the Commodore, but did not attempt to pass it. Shortly prior to reaching Clarendon Grgeta crossed double white barrier lines onto his incorrect side of the road and did overtake the Commodore and other vehicles ahead of her close to an approaching S-bend. This was a dangerous manoeuvre by Grgeta.
Shortly past Clarendon Ms Clarke passed Grgeta’s Falcon parked on the side of the road with its headlights on. As soon as she passed him he pulled back onto the road and again commenced to follow her. Ms Clarke turned into Piggott Range Road which is a windy, narrow, unlit country road. She was travelling between 75 and 80kph which was within the speed limit. The traffic volume in the area was low. Shortly before the junction of Easton Road, and while approaching a crest, Ms Clarke saw Grgeta pull out onto his incorrect side of the road and remain there. As Ms Clarke went over the crest she approached a right hand bend. A Nissan Pulsar car driven by the victim was coming in the opposite direction around that bend. It passed her and shortly afterwards it collided head on at considerable speed with Grgeta’s car which had just come over the crest still on its wrong side of the road. There is no suggestion Grgeta took any evasive action before the collision. He was travelling at a substantial speed but within the speed limit. The accident was a culmination of a protracted period of continual dangerous driving on that road by Grgeta. Grgeta has not given any credible account of the circumstances of the accident.
Immediately after the accident traces of cannabis were found in Grgeta’s blood, but they could not be quantified. They could have been present for up to three days. Also present was a toxic concentration of Alprazolam, which is an anti-depressant medication which could cause impaired alertness and drowsiness. Grgeta had been prescribed therapeutic doses of Alprazolam, and it would seem he took more than the prescribed dosage on that day.
The victim was a 25 year old schoolteacher who was not at fault in the accident. As a result of the collision she received a “Shearing” injury to her brain, lacerations to her left knee, a sprained left ankle, two black eyes, a facial cut requiring seven stitches and nerve damage to her left eye. She was in hospital for three nights and was not allowed to drive for three months. She was away from work until 12 October 2002. As a result of her brain injury her speech became slurred and her right side fine motor skills were impaired. She was restricted in many physical activities using her right hand. There has been improvement with treatment, but it is unclear whether she will ever completely return to normal. She suffers embarrassment and periodic depression as a result and has diminished self confidence. The accident has had major adverse consequences for her.
The victim’s mother has also suffered psychological trauma and continuing anxiety. She fears for her daughter when she is out driving. She has consulted a counsellor.
Grgeta is now 38 years of age. His long term defacto relationship, from which there is one child now aged four, irretrievably broke down in 2002. He now lives on his own and is on an invalid pension. He has always had an immature fascination with cars.
Grgeta has convictions for minor offences, but nothing of relevance. There have been other matters which apparently have been dealt with by expiation notices or in a diversion Court. Since 1990 he has lost demerit points for speeding on nine occasions including three in the year before this accident. In 1994 and 1995 he had been involved in three road accidents, although they were not necessarily his fault.
In January 1999 Grgeta himself had suffered brain damage when a motor bike which he was riding hit a tree. As a result he has frontal lobe syndrome. This renders him less inhibited in his behaviour than the average person and lacking in judgment, although it did not mean that his behaviour at the time of the accident was beyond his control. The preponderance of psychiatric and psychological opinions was that he was mentally fit to stand trial and did not have a mental incompetence defence to the charge. Prior to this offence his disabilities were not regarded as sufficiently serious to require the removal of his driving licence. On testing in 2003 by a psychologist, Mr Balfour, he exhibited evidence of moderate impairment and his most significant cognitive deficits were for speed of information processing, attention and utilising error feedback when learning a new task. Mr Balfour reported Grgeta’s behavioural impulsivity as being in the moderate range of severity, but he did not consider him to be so severely impaired that he was unable to control his conduct. Since his 1999 accident he has had a poor memory and has been generally depressed and often tearful. He has not been able to obtain employment, although he had a reasonable employment record before that accident. His long term defacto relationship broke down in March 2002 with episodes of violence and this also distressed him. He has been estranged from his parents and sister and has few friends. Very recently he has had the first contact with his parents for some years. Since the 1999 accident he has been under continuous psychiatric care from Dr Tompkins. He has regularly used cannabis and has tried other drugs. He is the subject of an order under the Guardianship and Administration Act 1993 and his finances are controlled by Public Trustee. I have had regard to the contents of the reports of the psychiatrists Dr Branson, Dr Raeside and Dr Tompkins and the psychological report from Mr Balfour. There is also a helpful report from a social worker from “Brain Injuries Options Co-ordination”.
Grgeta now lives a fairly reclusive existence in a rented home. He is visited a few times a week by social workers who organise his life for him. He has suffered extreme anxiety about this case and has unsuccessfully attempted suicide.
Grgeta is of low average intelligence. He does not suffer from a severe personality disorder, but he does possess some of its traits. He is not psychotic. He is on medication for depression and anxiety which is not wholly effective.
The offence is a serious one in that it followed on from a substantial episode of deliberately irresponsible and dangerous driving and because of its major adverse consequences for the victim. The maximum penalty is imprisonment for ten years.
Grgeta has had considerable difficulties in coming to terms with his commission of, and guilt for, the offence. He apparently now has some realistic understanding of his guilt and the effect of the offence on the victim, but it is unclear to what extent he is remorseful.
I accept that on the earlier reports of Dr Tompkins it was proper to raise and explore issues concerning Grgeta’s fitness to stand trial and his mental competence to commit the offence. Once further reports showed he was mentally competent he thereafter entered a plea of guilty. Accordingly, I give him a discount on his sentence on the basis of his plea of guilty being entered at the earliest reasonable opportunity.
The principal, but not the only, consideration in fixing the sentence is general deterrence in that the law must make it clear to motorists that they are not to engage in deliberate escapades of dangerous driving which present major risks to other road users: R v Johnston (1985) 38 SASR 582; Ween v R (1992) 164 LSJS 476. However, this factor of general deterrence need not necessarily be given great weight where an offender’s mental processes were disordered. The Court has to determine the capacity of the offender to appreciate the gravity and significance of his criminal conduct, but, if it is found that the offender has acted with knowledge of what he did and with knowledge of the gravity of his criminal conduct, the importance of general deterrence in his sentencing will not be greatly affected: R v Leach (2003) 85 SASR 139 at 141-2; R v Wiskich (2000) 207 LSJS 431 at 457-8. Here the reports of Dr Branson the psychiatrist, and Mr Balfour, the psychologist, show that Grgeta did have a fair understanding of the nature and quality of his actions leading up to the accident and their wrongfulness and dangerousness. He probably acted more impulsively than a normal person because of the effects of his own brain injury, but he was capable of controlling his conduct. Thus the sentence can, and should, contain a substantial element of general deterrence. People such as Grgeta must be given a strong message by the law that if they abuse their privilege of driving motor vehicles on roads by indulging in wanton dangerous driving out of bravado or the like, they must expect to suffer severe consequences. The Courts must be careful not to give an impression to persons who can understand the dangerousness and wrongfulness of such conduct that they can hide behind their disabilities to avoid imprisonment.
A substantial prison sentence is warranted for this offence. After making some allowance for Grgeta’s unfortunate personal circumstances a sentence of imprisonment for 27 months is imposed. But for his plea of guilty that would have been a sentence of 3 years imprisonment.
The major issue here is whether by virtue of his personal circumstances there is sufficient good reason to suspend the sentence. I accept that because of his mental disabilities Grgeta will experience substantial hardship in serving a sentence of imprisonment. Since his own accident he has been unable to live successfully in any close community with other persons. However, this is a serious offence with the aggravating features I have mentioned above. I do not consider that the element of general deterrence can be properly satisfied unless Grgeta is required to serve some significant time in prison. His counsel suggested that an order for home detention for 12 months under a suspended sentence pursuant to s38(2c) of the Criminal Law (Sentencing) Act 1988 would be a sufficient deterrent punishment in the circumstances, but I do not agree. I find there is no sufficient good reason to suspend the sentence.
Grgeta’s personal circumstances, and particularly his mental problems, do justify the extension of some significant leniency to him in fixing a substantially lesser than usual non parole period. That is fixed at 6 months. Both the sentence and the non parole period are to run from today.
In addition, Grgeta’s driving licence, and his right to obtain a licence, will be suspended until further order. If, and when, he can demonstrate to the Court that he can drive responsibly, he can apply for it to be restored to him.