R v KA

[2021] NSWDC 566

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v KA [2021] NSWDC 566

Hearing dates:

28 June 2021

Date of orders:

12 July 2021

Decision date:

12 July 2021

Jurisdiction:

Criminal

Before:

Noman SC DCJ

Decision:

Aggregate sentence, nominating the following indicative sentences: (a) For causing GBH to MA: 2 years imprisonment; (b) For causing the death of KaA: 2 ½ years imprisonment.

Sentence of 3 years and 3 months imprisonment with a non-parole period of 1 year to date from 27 January 2021. The offender will be eligible for release to parole on 26 January 2022. This is a ratio of 30% and gives effect to a finding of special circumstances.

The minimum disqualification periods apply.

The back-up and related charges are withdrawn.

Catchwords:

SENTENCING - drive manner dangerous causing death – drive manner dangerous causing grievous bodily harm

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

R v Whyte (2002) 55 NSWLR 252

Category:

Sentence

Parties:

Regina (Crown)
KA (Offender)

Representation:

Counsel:
Crown: J. Kelton / B. Queenan
Defence: P. Williams
Solicitors:
Crown: L. Hill
Defence: E. Renard

File Number(s):

2017/327081

Publication restriction:

Non-publication order in relation to both victims and the name of the juvenile son of the offender having Children’s Court proceedings.

Judgment

1. This is a sentence after trial and I am required to determine the facts for sentence that are consistent with the verdicts. I appreciate the different onus that applies dependent on whether it is an aggravating or mitigating factor.

2. The Crown prepared a document containing the proposed facts for sentence: see Ex A. Counsel for the offender took issue only with parts of the content of [15]. There was no challenge to the final sentence. This is of significance as the offender subsequent to the trial advanced that she was avoiding potholes. I dismiss this assertion given that it was belatedly raised and was not the subject of any evidence in the trial. I will disregard the disputed parts of the summary within that paragraph and sentence on the evidence in the trial.

3. I have relied on the agreed facts.

4. On 26 September 2017 the offender, KA, left her parents’ home near Wollongong to drive home to Queensland. She and other members of her family had not been well during their visit. She was travelling with her two sons, RA and BA, her daughter MA, and Corban, a friend of one of her sons. They were suffering from what is likely to have been a bad case of the flu. The evidence in the trial was that the offender had slept during the day before leaving. The Crown included this in the suggested facts for sentence based on the evidence in the trial: see facts at [5]. I note a character reference authored by Tracey Crawford-Green, a family friend, states on this same day, the 25 September 2017 “we all had a family day out and then dinner at KaA and WA’s home”. This account does not reconcile with the offender spending the day sleeping. This conflict was raised with counsel for the offender. A response outlining the offender’s instructions, was received in Chambers post the sentence proceedings as agreed, but then withdrawn: MFI 3. I allowed this email to be withdrawn and do not have regard to the contents. It was sought at the same time to withdraw the reference. This would remove mention of any aspect independent of the offender and contrary to her account as relied upon in the trial. I did not permit this. The evidence was tendered and submissions heard prior to the application. I am unable to definitively determine what the offender did during the day. Her account, and that of her family, contained aspects that were less than satisfactory such as documenting the travel movements during the trip. None advance an opportunity for the offender to have consumed the cannabis she undoubtedly did. Whatever she did, she demonstrated signs of fatigue at least 12 minutes prior to the collision and she was fatigued at the time of the collision. Because the offender had been unwell her parents offered to travel with her to assist with the driving.

5. They left sometime around midnight. The offender’s mother, KaA, drove the offender’s car with RA and MA in the car. The offender’s father, WA drove his car with BA and Corban. The offender indicated in her unsworn account that she was experiencing significant back pain.

6. The offender provided an account in interview of who drove certain distances and where they stopped along the route. She said she did not sleep after they left her parents’ home. Both RA and WA gave evidence also of who drove cars at various times and where they stopped. The evidence is unclear and varied. There was evidence that WA had become tired and the offender then drove this car for a period. The offender indicated she was either driving or awake as a passenger during the trip. The traffic monitoring cameras first detected the offender’s car at 12.51am at Balgownie. The only period that took longer than anticipated was between the sections Taree and Kew where the travel time was almost double. This confirms that there was a stop in this period. Any other stops were not likely to be lengthy.

7. At some point on the journey the offender consumed cannabis. She did not accept recent use in her interview and neither her son nor her father gave evidence of seeing this action. The expert evidence at trial however does not support historical use as explaining the reading. The usage, on the evidence, was at some time during the journey. Professor Christie allowed for a period of up to six hours earlier whereas Dr Perl opined it was consistent with use closer in time to the collision. Although on the evidence it was likely during the stage prior to Kew I am unable to determine this conclusively.

8. From a point near the Oxley Highway Interchange the offender was observed to travel through a roadworks area. This was over 8 hours after leaving home and the offender did not sleep during this period. The observations of her manner of driving were over a period of about 12 minutes. She was described as driving erratically by varying speed although not speeding, to move sideways in her lane and on one occasion to cross the centre line. The traffic was single lane in each direction. Her manner of driving was noted and the driver and occupants discussed avoiding the car. A recording made subsequently by a police officer was played of the condition and appearance of the road on the north bound travel.

9. After the roadworks area the offender traveled along the sole north bound lane on a straight stretch of road. There were cars in front and behind her and oncoming traffic.

10. Observations were made of the offender’s driving by other users. Her manner of driving captured their attention. I accept beyond reasonable doubt that she was varying her speed and swerving in her lane whilst driving along the section of road from the intersection and through road works. She was not speeding.

11. Immediately prior to the collision the offender gradually went out of her lane to the left and drove on the gravel section before she over-corrected to the right and drove directly into oncoming traffic. Her car hit a car traveling in the opposite direction. This impact caused significant injury to Ms Purcell, the elderly occupant. No charge was before the court concerning this harm and the offender cannot be held accountable for sentencing purposes.

12. The collision occurred at about 8.52am. At the time of the collision the offender was driving, RA was in the front passenger seat, KaA was behind the driver and MA behind the passenger. WA was driving ahead of the offender’s car. It is not known how far ahead but he was not aware of the collision until contacted by phone.

13. Consistent with the jury verdict the version advanced by the offender and RA of there being an oncoming car and RA taking hold of the car to move to the left is rejected. On the evidence in the trial, particularly RA’s inability to describe any of the road features prior to the collision, it is likely he was asleep.

14. A truck was travelling behind Ms Purcell. The truck dashcam clearly establishes there was no oncoming car. Cars travelling ahead of the offender traveled north without incident. No other person saw an oncoming car.

15. I determine the offender was fatigued from being unwell, the period of travel and the use of cannabis. I note Professor Christie’s evidence that she would have been at least mildly impaired from the cannabis and this impairment may have influenced response times. She was not paying attention to the road and her manner of driving prior to the collision indicates it was evident for at least a period of about 12 minutes. She departed the roadway and overreacted and she pulled the steering wheel too sharply resulting in the collision with a car travelling south in its lane. There were then further collisions including with a truck travelling in the southerly direction.

16. There were a number of other vehicles on the road. Other road user were placed at risk during the period of fatigue and erratic driving.

17. This was a relatively short period of poor driving but well beyond momentary. There were occasions of drifting in the lane and on occasion over the line marking prior. The offender was fatigued, lost attention and left the roadway. She reacted to leaving the road and entering the gravel by oversteering.

18. Both victims voluntarily entered the car, undoubtedly with an expectation that the offender would endeavour to protect them and drive safely. She failed to meet this expectation. Other road users were placed at risk.

19. As a consequence of the manner of driving and the resultant collisions, KaA died at the scene. Fortunately, any suffering was brief.

20. MA suffered a multitude of serious injuries including a severe traumatic brain injury. There was substantial evidence tendered on sentence addressing MA’s injuries at the time, how she has improved over the subsequent 4 years and her prognosis.

21. MA was airlifted to the John Hunter Hospital for treatment for the injuries sustained in the collision. These were:

1. Severe traumatic brain injury with small subdural and subarachnoid haemorrhages, intraventricular bleeding (bleeding in the layers of tissue surrounding and within the brain), and generalised swelling causing raised pressure in the brain for which a drain was inserted;

2. Left eye injury with a dilated and fixated left pupil caused by damage to and spasm of cranial nerve 3, leading to some loss of sight;

3. Weakness to muscles controlling speech and eating requiring her to learn how to speak and swallow again requiring ongoing therapy;

4. Ruptured bladder requiring surgical repair;

5. Left upper limb hemiplegia (partial paralysis) with ongoing weakness and tremor in the left upper limb, and tremor and weakness in her right upper limb, with ongoing difficulties with day to day tasks such as wiping after toileting;

6. Muscle tightening in the lower left and right limbs requiring braces to be worn and daily medication to relax the muscle tightness;

7. Multiple pelvic fractures requiring external fixation;

8. Right femur fracture requiring surgical repair and internal fixation, rods were inserted into the middle of the bone and stabilised with two TENS screws;

9. Right hip dislocation requiring surgical reduction and surgical repair of the joint capsule;

22. MA was hospitalised from 26 September 2017 until 21 February 2018 including 14 days in the intensive care unit. She requires ongoing therapy for her injuries. She needs management of her extensive scarring resulting from the pelvic and leg surgery. One leg is now 3 centimetres longer than the other which will require orthotics.

23. MA has ongoing difficulties with gait, walking, balance and movement requiring repeated casting of her legs below the knee, intramuscular botulism injections into the calf muscles on both legs to assist with muscle stiffening and tightening, wearing of braces on both legs, and use of a wheelchair and walker outdoors. As her range of motion is more recently decreasing she is expected to need further orthopaedic surgery.

24. In terms of schooling, her school has a mobility plan in place, and MA is not able to attend school unless wearing her leg braces or using a wheelchair. She does not have good compliance with use of the leg braces and as a result misses school. Many therapy appointments are in school hours. Her attendance at school in 2020 was 54%. This has a flow on effect for her learning difficulties as a result of her brain injury.

25. Her severe brain injury will be permanent and have a lifelong impact. Dr Tyack opined the brain injury would be life long, with her thinking skills significantly impacted and MA will require ongoing support through schooling and into adulthood. It is unknown how it will continue to impact on her future development.

26. There are significant continuing medical issues for which she fortunately is well-funded from both NSW and QLD.

27. The injuries are multi-faceted and many are significant. Overall, they combine to reflect a very high level of grievous bodily harm. MA was injured as a six year old. Many of the injuries may lessen in severity with effort, application and assistance but it is not likely all will resolve. She currently requires considerable daily assistance and regular therapy. She continues to receive weekly occupational therapy and physiotherapy. She will live a diminished life with a reduced potential.

28. Kris North, Psychologist, prepared a report addressing MA. She opines MA would most benefit from the support of both parents. She noted how MA has regressed since the offender’s incarceration including stress related bed-wetting. She opined these symptoms could worsen with an extensive continued separation.

29. I accept that the offender has been and will continue to be dedicated to assisting her daughter’s various rehabilitation needs.

30. The offending driving was relatively brief but not momentary. The evidence of signs of fatigue is only from when observations started. Although it is likely there were signs earlier, I cannot act on that assumption. I will only proceed on the period observed and recounted. There were warning signs prior to the final movement to the left and sudden correction to the right. Her manner of driving caught the attention of others and there is no explanation for her failure to respond earlier and cease driving. There was other traffic on the road in both directions and other road users were put at risk of harm. She was travelling on a main highway. She failed to respond to the indicia of fatigue. Additional to fatigue and the impact of illness, her cannabis ingestion impaired her driving.

31. Counsel for the offender submitted the offences were each of mid-range moral culpability. I accept this expresses the range. Each offence relies on conduct informing ‘dangerousness’ of some considerable seriousness.

32. The offender received a broken toe and bruising from the seatbelt. This was an obviously traumatic experience for the offender and her family. Each family member including the offender is left to live with the significant loss of KaA and continuing health implications for MA. The trauma is exacerbated by the offender, as a daughter of one victim and a mother of the other victim, being accountable for this outcome. I accept the offender’s family relationships with both victims, given her responsibility for the significant harm, may operate as extra-curial suffering.

33. The offender pleaded not guilty to two offences arising out of this conduct of driving. There were agreed facts in the trial as to the offender being the driver and the impact causing death and GBH. Although readily provable there was a utilitarian benefit from this acceptance. A jury found her guilty of both. She now appears for sentence on offences of driving in a manner dangerous causing death contrary to s.52A(1)(c) Crimes Act and driving in a manner dangerous causing grievous bodily harm contrary to s.52A(3)(c) Crimes Act.

34. The maximum penalties are 10 years imprisonment and 7 years imprisonment respectively. The maximum penalty operates as a legislative guidepost and represents the seriousness of the offence.

35. The offender chose to defend these matters at trial as was her right. Her account in the police interview was evidently not accepted. I do not use her pleas of not guilty against her. However, they reflect an absence of remorse for her conduct and an absence of acceptance of responsibility. Since verdict there has been no expression of remorse for her offending. I do of course accept that she has a strong measure of moral guilt over being the driver of the car in which her mother died, and her daughter suffered significant harm. There are hearsay expressions and her own letter to the court wherein her ‘remorse’ is stated. The offender wrote to the court, in what she identified in the gaol call, as her ‘big sorry letter to the judge’. In her letter the offender wrote of her deep remorse for the impact caused to her family, the community, herself and to both victims. She expressly referred to the incident being an horrific accident. She noted her cannabis consumption. However, she continues to deny her role in becoming fatigued and pulling the steering wheel and she does not accept she used cannabis on the journey. It was not an accident. She has been held accountable by a jury for criminal conduct. She has not directly or indirectly accepted responsibility for her criminal conduct and not expressed remorse for anything other than the tragic consequence of that criminal conduct.

36. I accept entirely her concern to continue to support her daughter with the multi-disciplinary efforts to improve her physical and mental status.

37. The offender was 47 years of age at the time of offending.

38. The offender has a number of entries on her criminal history and traffic records.

39. In WA in 1992 she was fined for cannabis offences.

40. In Queensland she was sentenced in 2013 for two separate drug related offences. Firstly, she was placed on a bond without conviction for non-cannabis related drug offences committed in August 2009. Secondly, she was convicted for a drug supply offence committed in 2009 and 2010 for which she received a suspended 3 year term. The Remarks on Sentence and facts for this offence were provided. The offender couriered a total of 3 ½ ounces of cocaine over four separate occasions between 18 December 2009 and 18 February 2010. The offender’s long term use of cannabis was referred to as was her abstinence and negative drug tests. The sentencing judge’s observation of the offender’s ‘strength and character to overcome [the] use of cannabis’ proved overly optimistic.

41. She has 10 speeding offences and a negligent driving offence in NSW. The most recent offence was in 2007. In QLD she had three speeding offences with the most recent in 2020, that is, after this offending. The index offending did not entail speeding. The offender has continued to drive after the incident. Her father purchased her a car to assist with MA. There is no evidence she continued to drive impaired by cannabis or fatigue.

42. The offender’s antecedents do not operate to disentitle her to leniency.

43. I am assisted by the Sentencing Assessment Report (“SAR”). The offender advanced an account of the incident. She mentioned swerving to avoid potholes in the roadwork section. No other driver was questioned about potholes and she did not initially mention this to police prior to trial. This account is not a sworn version. On balance I do not accept this account to explain her observed driving. I also do not accept her account that she last used cannabis before she left Queensland. It is contrary to the expert evidence, which I do accept beyond reasonable doubt. The offender said based on her days earlier consumption she did not feel impaired at the time of driving. However, the consumption was not days earlier and the expert evidence supports impairment. The offender admitted to continuing to use cannabis until entering custody. The tendered school records support her being on occasion under the influence.

22. The offender also provided an account in the SAR of seeing an oncoming small truck pull out as if to overtake. This precision was not her initial account but does align with the version of one witness at trial. She told police in 2017 that she saw a white or silver car trying to overtake. It appears she has modified her earlier account to reconcile with evidence at trial. I observe the evidence at trial compellingly showed a car travelling ahead of her. Any vehicle pulling out would have impacted with this car if it occurred in the short period prior to the relevant driving.

23. The offender relies upon a report of Kris North, Forensic Psychologist. Ms North detailed aspects of the offender’s background. She had a stable and pro-social upbringing and continues to have the support of her father. She described difficult life experiences. Her first child died at 3 years of age. This would have been a traumatic experience. Her son BA has OCD and ODD and had caused friction in the home. He was in juvenile custody until recently. She has been the victim of domestic violence from each of her partners including AP, the father of RA and MA. At the time of trial she had commenced another relationship. It is stated that her brother holds her accountable for the death of their mother. She said she feels grief and guilt. She saw a psychiatrist after the incident as a response to the death of her mother and the trauma relating to MA’s injuries. The offender said she was diagnosed with PTSD at this time. Ms North was unable from her dealings to confirm this diagnosis although she accepted it was likely. Absent a formal diagnosis I do not accept the likely diagnosis. It is opined by Ms North that the offender would benefit from trauma counselling. I readily accept that this would be beneficial.

24. I accept that the offender may to some extent self-medicate with cannabis. However, she is a long-term user and this use predates many of her more traumatic life experiences. I do not regard this background, and the linkage to cannabis use, to lessen her moral culpability.

25. She continues to suffer symptoms of depression and anxiety. She continues to be concerned to ensure MA receives the best level of care and support and she considered that she is the best person to provide this role. She conveyed that she is concerned that Mr Pearce was not providing the level of care she had provided.

26. I have had regard to the purposes of sentencing identified in s.3A Crimes (Sentencing Procedure) Act.

27. Although the Crown sought to obtain victim impact statements, none were provided by those eligible to author one. One of the purposes is to recognise the harm done to the victim of the crime and the community. The harm to each victim is an element of each offence. The extent of the injury informs the assessment of the seriousness of the offence of GBH against the maximum penalty.

28. The offender was MA’s principal carer and the person responsible for maintaining MA’s compliance with therapy. All the material reflects her emotional and time commitment and dedication to this task. She had undertaken it whilst MA was in hospital and then for almost three years in the community. The extent of the injuries resulted in there being an ongoing requirement for attendance upon health professionals as well as complying with directions at home.

29. I accept the offender genuinely feels she is best placed to continue this level of care. I accept that MA suffered from the removal of her mother from the household. I accept MA’s commitment to compliance with occupational therapy declined upon her mother entering custody. She is 9 and her mother is no doubt the most important adult in her life. Until verdict her father was apparently less involved. His effort to fill the void is to be commended. It appears he is attending to supporting MA’s significant rehabilitation needs. This has come at a financial cost to him in ceasing work and becoming reliant on Centrelink payments. However, he was not and is unlikely to become the first choice for MA. The extent to which her brain injury impedes her capacity to process the situation is not known. Her young age and the consequent limited maturity and insight is however understood. The separation from her mother must have been devastating. I accept that there is considerable hardship to MA as a consequence of her mother being in custody. This will serve to ameliorate sentence to support a finding of special circumstances.

30. In making these findings I have considered the content of the transcript of the gaol conversations (Exhibit E). There is a component of emotional manipulation exercised by the offender. She did tell her daughter on more than one call to mention that she requires her mother at home. She did advise Mr Pierce to also stress that MA needed her and other details he should endorse or not endorse, that in fact, reflect the content of his signed affidavit. That she sought to orchestrate the content of evidence placed before the court does not detract from the genuineness of her daughter wanting her home or that she was the sole carer and possibly a better carer than Mr Pierce. The school records and health records do reflect that she was engaged in MA’s care and a champion for ensuring MA’s needs were addressed. She was not constant in her care and there were signs of some neglect. That essentially manifests the difficulty of performing the role of carer for a child with considerable disabilities. I accept the civilian assessment of the current care of MA. There is no report from any of the health professionals or the school that MA’s care has been compromised or is in decline. In stating this, I accept that the offender has had almost 4 years of assisting MA and any change would require a period of adjustment.

31. Cintamani Manning, the offender’s friend and the secondary carer for MA, expressed the important and dedicated role performed by the offender in caring for MA. She conveyed the extra burden she faced in assisting in caring for MA in the offender’s absence, and also the impact on the offender’s father.

32. The offender’s prospects of rehabilitation and of not reoffending are positive despite her continued use of cannabis until remand. The offender continued to use cannabis even after the reports were available supporting the role of cannabis on her driving. However, this offending, and the finding of the jury, is likely to provide a salutary experience. In assisting to care for and support MA the offender will have a life-long reminder of her conduct. I accept she is assessed in the SAR as falling in the medium-low risk of reoffending. I have had regard to the sentiments expressed by the offender in her letter to the court. I determine her to fall in the low risk. In so doing I acknowledge her admission in the SAR under ‘attitudes’ to previously driving under the influence of cannabis. It is contemplated and hoped that even though she continued to use cannabis until entering custody after verdict that she would not repeat her error of driving after use. Her long-term cannabis use is an issue that needs addressing. Ms North stated that the offender would benefit from treatment to address her mental health and drug use needs. It follows that personal deterrence assumes some limited significance.

33. General deterrence and denunciation however are important considerations in these types of driving offences, particularly when illicit drugs are involved.

34. I am assisted by the Whyte (2002) 55 NSWLR 252 guideline judgment. This offender is not a young offender. There are two offences, one each of death and grievous bodily harm. The victims are her immediate family. The offender received limited injuries. The offender has a minor criminal history and a traffic record. However, both are relatively limited. The offender has denied legal responsibility and any remorse is not for her offending but for her moral responsibility.

35. Submissions were advanced on behalf of the offender that she could be released on the day of sentence proceedings or soon after. Reliance was placed on the exceptional hardship to the offender’s family from her absence. It was submitted she was integral to MA’s recovery and her absence would adversely impact this recovery.

36. Both offences arose out of the one instance of driving. However, each reflects a different victim and each is serious. I am unable to determine the sentence for one offence would encapsulate the criminality for another offence. Some component of accumulation is required.

37. That this is the offender’s first custodial sentence, that the offender will require assistance with her trauma and mental health issues and more significantly the impact to MA from being separated from the offender will found a finding of special circumstances. There will be a substantial variation to the statutory ratio.

38. The offender is convicted of both offences.

39. The sentence will commence on 27 January 2021, being the date the offender entered custody after verdict.

40. I intend to impose an aggregate sentence. Appreciating the different maximum penalties, I nominate the following indicative sentences:

1. For causing GBH to MA: 2 years imprisonment;

2. For causing the death of KaA: 2 ½ years imprisonment.

63. I impose a sentence of 3 years and 3 months imprisonment with a non-parole period of 1 year to date from 27 January 2021. The offender will be eligible for release to parole on 26 January 2022. This is a ratio of 30% and gives effect to my finding of special circumstances.

64. The minimum disqualification periods apply. This is on the basis that although MA is funded for and utilises taxi transport, upon release it will be to MA’s advantage to have the offender available to drive her to ongoing medical appointments and other commitments.

65. The back-up and related charges are withdrawn.

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Amendments

22 October 2021 - Names changed to reflect non-publication order

Decision last updated: 22 October 2021