R v Lynn

[2020] NSWDC 390

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Lynn [2020] NSWDC 390

Hearing dates:

20 March 2020

Date of orders:

20 March 2020

Decision date:

20 March 2020

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Sentenced to an aggregate term of 3 years and 2 months imprisonment with a non-parole period of 1 year and 7 months.

Catchwords:

CRIME — Driving offences — Dangerous driving occasioning grievous bodily harm

Legislation Cited:

Crimes Act 1900 (NSW), s 52A

Crimes (Sentencing Procedure) Act 1900 (NSW), s 3A

Cases Cited:

R v Whyte (2002) 55 NSWLR 252

Bullock v The Queen [2016] NSWCCA 131

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Emily Jane Lynn (Offender)

Representation:

Counsel:
Mr R W Hood (Offender)

Solicitors:
Mr T Gabriel (Crown)

File Number(s):

2019/00073450

SENTENCE

1. HIS HONOUR: The offender stands to be sentenced having pleaded guilty to the following three offences:

2. On 20 October 2018 at Bilpin she drove a Toyota Camry motor vehicle in a manner dangerous to another person or persons whereby the vehicle was involved in an impact, as a result of which grievous bodily harm was occasioned to Jai Rowlands-Jones.

3. The second offence is that on the same date and at the same place she drove the same motor vehicle in a manner dangerous to another person or persons whereby the vehicle was involved in an impact, as a result of which grievous bodily harm was occasioned to Mary Lambourne.

4. Both those offences are offences under s 52A(3)(c) of the Crimes Act and have a maximum penalty of seven years imprisonment. There is no applicable standard non-parole period.

5. There is a third offence that on the same date and at the same place she did by certain misconduct, namely failing to drive to the left of a road with a dividing line, cause bodily harm to Noel Crowley, she being in charge of the Camry motor vehicle referred to in the two other charges.

6. That third offence is an offence under s 53 of the Crimes Act and has a maximum penalty of two years imprisonment.

The Facts

7. The facts are agreed. The following is taken from the agreed facts.

8. Early in the evening of 19 October 2018 the offender met up with her friend Jai Rowlands-Jones in Narrabeen. The two socialised and smoked cannabis together before the offender then drove them both in her mother’s white Toyota Camry to a friend’s house in Brookvale around 6.30 to 7pm. Around half an hour after they arrived the offender left the house for an extended period before returning around 12.30am the next morning, on 20 October 2018.

9. Whilst the offender had been away, Jai Rowlands-Jones had invited his friend Lachlan Taylor over to keep him company. When she returned the offender informed Mr Rowlands-Jones and Mr Taylor that they had been invited to go and meet what is referred to as a “rapper” called Tryl in Cowra. The offender, Jai Rowlands-Jones and Lachlan Taylor all had been smoking cannabis that evening. The offender drove Jai Rowlands-Jones and Lachlan Taylor to Cowra in the Toyota Camry, stopping off at Jai Rowlands‑Jones’ home in Frenchs Forest for him to pick up some clothing. The offender had driven for around four hours and it was daylight by the time the three arrived at Cowra. Whilst in Cowra the three picked up the person Tryl and drove to a lookout in Cowra where they all smoked cannabis together. During their time in Cowra the offender smoked a significant amount of cannabis.

10. After a few hours the person Tryl was dropped off and the offender began to drive herself, Jai Rowlands-Jones and Lachlan Taylor back towards Sydney. Just before they left the offender said words to the effect of, “Oh fuck, I’m knackered.” The offender had not slept at all the night of 19 October 2018 going into 20 October 2018.

11. On the drive back to Sydney Jai Rowlands-Jones sat in the back passenger seat and Lachlan Taylor sat in the front passenger seat. Both Jai Rowlands‑Jones and Lachlan Taylor fell asleep. At one point during the morning of 20 October 2018 Brandon Rowlands-Jones, the brother of Jai, spoke to the offender over the phone and the offender told him they would be back in Sydney in about three hours and that she had spent the night with Tryl and had been “smoking cones”. About an hour after that conversation the offender rang Brandon Rowlands-Jones again and told him that she had almost crashed three times already and was tired. Brandon Rowlands-Jones suggested that she either stop driving or play a podcast.

12. At about 1pm the offender was driving east on the Bells Line of Road, Bilpin towards Sydney. There was a single lane of traffic in each direction separated by two painted white lines. The road surface was constructed of hot bitumen and was in a good state of repair. The road was dry and the speed limit was 60 kilometres an hour in that area. Weather conditions were fine, with good visibility.

13. At that time the late Mr Crowley was driving west on the Bells Line of Road towards Orange in his red Holden Cruz, with Ms Mary Lambourne in the front passenger seat. Mr Crowley was driving just below the speed limit. As they neared Bilpin Primary School on the Bells Line of Road, Mr Crowley saw a Kia SUV driven by a Mr McKeown and the offender’s Toyota Camry which was behind that vehicle driving towards them in the opposite direction. When the offender’s vehicle was about 80 to 100 metres in front of Mr Crowley’s vehicle, her vehicle crossed over the double white lines without indicating and drove onto the wrong side of the road into the lane that Mr Crowley’s car was travelling in. Mr McKeown saw the offender’s car and moved his SUV as far over to the side as he could without braking. Seconds later the front of the offender’s Toyota Camry collided with Mr Crowley’s car and Mr Crowley’s car deviated to the left. The windscreen of his vehicle was shattered. The location of the collision was about 220 kilometres away from Cowra.

14. After colliding with Mr Crowley’s vehicle the offender’s Camry then collided with a black Subaru Imprezza that had been travelling behind Mr Crowley’s car. Katie Fitzpatrick had been driving that vehicle with Keegan Hale in the front passenger seat. Ms Fitzpatrick applied the brake as her vehicle impacted with the offender’s vehicle and both vehicles spun. The person Keegan Hale got out of the car and saw the offender screaming as she walked around the Toyota Camry. She was hysterical and screamed, “I’m so sorry, it’s my fault, I fell asleep at the wheel. I’m so sorry. Oh my God.” Later the offender was heard by persons at the scene to say, “I don’t know if I fell asleep. All of a sudden there was a car in front of me and I don’t know if I fell asleep”; over and over again. Another heard her say, “What have I done? I fell asleep only for a moment”, and she was clearly, as one would understand, very upset.

15. Fire services, paramedics and police officers attended the scene. Ms Lambourne was airlifted to Westmead Hospital and Mr Crowley was conveyed to Westmead Hospital via ambulance. Jai Rowlands-Jones was airlifted to Liverpool Hospital. The offender was treated at the scene by paramedics for pelvic pain and neck pain and she denied that she had consumed illicit drugs or consumed alcohol.

16. The injuries sustained by the victims were significant. Mr Crowley sustained the following injuries: a seatbelt bruising across his abdomen, chest wall tenderness, a displaced T12 right pedicle fracture, an L1 to L4 right transverse process fracture, displaced left fifth anterior rib fracture, significant right eighth and ninth posterior rib fractures, grade 1 right kidney laceration which required haemoglobin monitoring but no further intervention. Mr Crowley’s spinal fractures were managed non-operatively with no spinal precautions required. For his right‑sided rib fractures he underwent an open reduction and internal fixation which caused a chest scar.

17. As a result of the collision Ms Lambourne sustained the following injuries:

18. A transverse colon serosal - in other words a large lining - tear and a small bowel laceration; both of those injuries were surgically repaired. There was third lumbar vertebral compression fracture, a left humeral neck fracture and displaced right sixth and seventh rib fractures.

19. As a result of the collision Jai Rowlands-Jones sustained the following:

20. Multiple intra-abdominal injuries including a left retroperitoneal haematoma, an actively bleeding splenic laceration; a torn left rectus abdominis muscle; a small number of haematomas in the mesentery which is an organ that attaches the intestines to the posterior abdominal wall; a left adrenal haematoma; a small left suprarenal gland haematoma; a shattered left kidney; a diaphragm strip off the retroperitoneal being a connection between that part of the body and the thorax; a serosal tear that was 2 centimetres around the splenic flexure; haematomas in the small bowel in the mesentery in four areas and a haematoma over the bowel at the splenic flexure; chest injuries including multiple bilateral rib fractures; a pancreatic contusion with a pancreatic leak with pancreatitis and acute displaced fractures of the right transverse process at the T8 to 10. He underwent treatment which included a laparotomy, a splenectomy, insertion of chest drains and a nephrectomy, being the surgical removal a kidney, being his left. As a result of the splenectomy Jai Rowlands‑Jones is now at a higher risk of infection which can lead to hospital admissions and overwhelming splenectomy infections. He only has, of course, one kidney.

21. There was a record of interview engaged in by the offender. I do not see any need to read the extract that is in the facts from that interview out.

22. There were also some text messages from the offender to Brandon Rowlands which in timing occurred before the collision, which make it abundantly clear, as did the conversation referred to in the facts earlier, that the offender knew that she was very tired and should not have been driving.

23. The roadway where the collision occurred was a straight one and there were no mechanical defects in the vehicle.

24. A blood sample taken from the offender at 4.09pm on 20 October was found to have present morphine and cannabis and Dr Perl, the senior pharmacologist, considered that the offender was under the influence of cannabis to the extent that there would have been impairment of her driving ability and this impairment would have been exacerbated by the effects of fatigue due to a lack of sleep.

25. The father of Jai Rowlands-Jones bravely and movingly today read the victim impact statement of his son, who was only 15 at the time of the offending. The impact upon Jai Rowlands-Jones is life-altering and his life, it goes without saying, will never be the same. No sentence I impose can give that young man back the life he was entitled to enjoy but for the offending.

Assessment of Objective Seriousness

26. I turn then to my assessment of the objective seriousness of the offences. The offender chose to drive knowing that she had not slept, knowing she was overtired and after having smoked cannabis. She continued to drive knowing that she had, prior to the actual collision, almost crashed the vehicle on three occasions. The distance of the journey she had embarked upon was a significant one, between Cowra and Sydney. Her drug use was such that Dr Perl considered she was under the influence of cannabis and that her driving ability was, as a consequence, impaired.

27. Three people were seriously injured as a consequence of the offender’s driving; two of them were strangers to her and one a friend. The injuries to the two victims of the dangerous driving causing grievous bodily harm offences were particularly serious.

28. I have considered the principles discussed in the guideline judgment of R v Whyte (2002) 55 NSWLR 252 in my assessment of the objective seriousness of the dangerous driving causing grievous bodily harm offences. In my opinion, in driving over such a long distance, affected by cannabis and a lack of sleep, knowing that she had almost crashed her vehicle on three earlier occasions and causing significant injury to three persons, the offender had a high level of moral culpability in relation to the offending. She had effectively abandoned responsibility for her conduct as that term is considered in Whyte. I consider that all three offences fall a little above the mid‑range level of objective seriousness.

The Offender’s Subjective Case

29. I turn then to the offender’s subjective case. The offender’s date of birth is 12 February 2000, so she is currently 19 years of age and was 18 as at the time of the offences. The offender is therefore a young adult offender and the principles associated with sentencing a young adult offender have application here. Those principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution when sentencing a young adult offender; see the summary of relevant principles in Bullock v The Queen [2016] NSWCCA 131. However, it has been observed that the usual rule that general deterrence applies with less force to the sentencing of young offenders does not apply to dangerous driving offences because there is a prevalence of these offences among young drivers.

30. The offender has no criminal history which entitles her to leniency in this sentence.

31. Insofar as her traffic record is concerned it is a reasonably good record for a young driver. She obtained her learner’s licence in March 2016 and her P1 licence in April 2017. While on her P1 licence she received a warning for driving in a transit lane infringement and no other infringement. The offender obtained her P2 licence in April 2018. While on that licence she incurred one speeding infringement which was towards the lower end of the range of such infringements and a disobey signs at an intersection. She has been the subject of a police suspension since the commission of these offences.

32. There is before me the following:

33. A report dated 5 March 2020 by Dr Dominic Hill, a general practitioner; a report dated 4 March 2020 by Dr Mosadek Miah, a consultant psychiatrist; a report dated 11 March 2020 from the Sydney Drug Education and Counselling Centre; a sentencing assessment report and affidavit affirmed by the offender. There is also before me a report under the hand of Leanne Cater, a consultant psychologist, dated 15 February 2015. There is also some drug testing documentation.

34. The offender has also completed the Traffic Offenders Program.

35. The offender gave oral evidence before me and was cross‑examined.

36. In terms of her family background, the offender is single, with no dependents and lives with her parents, grandparents, sister and nephew. She is currently unemployed and not in receipt of a government benefit, although she has the offer of employment at the moment. The offender in her affidavit sets out aspects of her background. She details bullying that she experienced at school, essentially as I understand it, because she identified as an Aboriginal person and was brought up in the Jehovah’s Witness faith. The offender details in her affidavit that she turned to drugs when she was 15 years of age. At around that time she deposes that she left her religion and many members of her family no longer speak with her as a consequence. The offender also details aspects of her mental health in her affidavit, which I will discuss a little later. The offender sets out that she has self‑harmed for some six years. The offender deposes that between the ages of 15 and 20 she was molested some five times and raped twice by both friends and strangers and has reported two of the incidents to the police.

37. In terms of her substance use, the facts of the offending alone suggest that the offender has a significant problem with cannabis. The offender details in her affidavit that she turned to drugs from about the age of 15 and that she did so “as a coping mechanism to block out emotions that were so strong” that she did not want to feel them. The offender states that since the offences she has tried to cease her use of cannabis.

38. The health professionals whose reports have been tendered before me touch upon her drug and alcohol use and I will discuss those reports when discussing the evidence concerning her mental health.

39. The report from the Sydney Drug Education and Counselling Centre indicates that the offender first engaged with that centre on 17 December 2018 and has attended 31 drug and alcohol counselling sessions. The offender in that report is described as engaging well in the sessions and has made substantial progress towards changing her drug and alcohol use. As I say, there have been tendered some test results which are consistent with her reduced use of cannabis.

40. In terms of her psychological and psychiatric history, there is a report dated 5 March 2020 from the offender’s general practitioner Dr Hill, who has been her general practitioner since she was 13 years of age. Dr Hill details referrals of the offender from the age of 14 to various mental health practitioners. A psychologist recorded in 2015 concerns for depression and anxiety with panic features and a background of a significant history of trauma in relation to her family environment. It is clear from the material before me that the offender has had significant mental health issues since her early teenage years.

41. Dr Miah records in his report that he has been the offender’s treating psychiatrist since late June 2019, the offender having been referred to him for continuing treatment after a psychiatric admission at Gordon Private Hospital in April last year.

42. In terms of her admission to Gordon Private Hospital Dr Miah records that upon admission the offender was under the care of Dr Deena Bennett through most of April 2019. The discharge summary from the hospital records that the offender was feeling very guilty and distressed about the conduct which gives rise to the charges. She was noted to have been drinking heavily on a daily basis since the offences and to have continued to use cannabis. The discharge summary records that she had self-harmed on two occasions. The offender was diagnosed with the following conditions during her admission: alcohol use disorder, cannabis use disorder, post-traumatic stress disorder, panic disorder and borderline personality disorder and prescribed psychotropic medication upon her discharge. Upon her discharge from hospital the offender has also engaged with a counsellor in relation to ongoing substance use issues.

43. The offender reported to Dr Miah a history of anxiety, depression, cannabis dependence and alcohol use since her mid-teens, around two years prior to her offences. She also reported to the doctor a history of traumatic family events and sexual abuse. Dr Miah referred the offender for what is described as dialectical behavioural therapy, primarily for the purpose of assessment and management of her borderline personality disorder.

44. According to a report from her counsellor that is before me the offender has stopped using prohibited drugs but maintains a high intake of alcohol and that was confirmed when the offender gave evidence before me.    

45. Dr Miah was unable to comment on the offender’s prospects for rehabilitation in relation to her drug and alcohol usage as he was uncertain as to whether her change in behaviour was genuine or whether it was as a result of her imminent sentencing.

46. Generally speaking, the fact that an offence was committed while under the influence of a prohibited drug is not a mitigating factor on sentence. Some mitigation of the sentence is permissible when a person has acquired a drug addiction at an early age due to a traumatic event in their life and has had little opportunity to engage in drug rehabilitation. I have had regard to those principles in formulating the appropriate sentence here.

29. I have had regard to the difficult childhood that the offender experienced, in particular in her school years when formulating sentence, as well as to her mental health.

30. The offender addresses her attitude to the offences in her affidavit. She describes being full of guilt and regret for the offending. The offender in her affidavit acknowledges that there was no excuse for what she did and she acknowledges that her victims will live with the injuries they have received for all of their lives. The offender is also recorded in the sentencing assessment report as having remorse and insight into her offending.

31. The offender in giving evidence before me today exhibited considerable remorse for her offending and the harm she has caused the three victims. I have no doubt that the offender is genuinely remorseful for her offending.

32. The offender was assessed in the sentencing assessment report as having a medium to low risk of reoffending.

Imposition of sentence

51. The offender pleaded guilty in the Local Court and I will allow her a 25% discount off her sentence for the utilitarian value of her plea.

52. The offender in my view has good prospects for rehabilitation provided she can reduce her use of alcohol and abstain from cannabis use. She has no prior criminal record and a supportive family and has already commenced some rehabilitation in relation to her alcohol and drug use; although it is clearly not complete.

53. I am satisfied on the evidence, as I say, the offender has good prospects for rehabilitation and has commenced her rehabilitation; although it is not yet complete. Her prospects for rehabilitation will be assisted if she has a longer period on parole than that provided by the statutory ratio. I also note the mental health of the offender and her age and lack of criminal record in making a finding of special circumstances.

54. I will utilise the aggregate sentencing provisions when imposing sentence. While there was one collision there are three victims of the offences. If I had not used the aggregate sentencing provisions there would have been partial accumulation of the sentences given the number of victims involved.

55. I have had regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender’s conduct, recognising the harm done to the victims and the community and the offender’s rehabilitation.

56. Dangerous driving causing grievous bodily harm is a far too prevalent offence in our community and frequently, as here, committed by very young offenders. Driving on our roads is something that the majority of people in our community engage in. The community looks to the courts to impose sentences which will act as a deterrent to this young woman and other people from driving when they know they are not in a fit and proper state to drive. The consequences of driving when in such a condition can be, as it was here, catastrophic for other road users.

57. Clearly, the only appropriate sentence is one of imprisonment. I have had regard to the guideline contained in Whyte but noting that it is not a starting point or to be applied in a proscriptive way. The maximum penalty has been taken into account as a legislative guidepost.

58. I consider that the starting point before the application of the discount for the plea of guilty for the two dangerous driving causing grievous bodily harm offences to be one of two years and six months imprisonment.

59. I consider that the starting point for the sentence for the offence under s 53 of the Crimes Act to be 12 months imprisonment.

60. I will firstly record the indicative sentences. In determining the indicative sentences and fixing the aggregate sentence I have had regard to all of the objective and subjective factors I referred to earlier.

61. Ms Lynn, the sentences you will hear me first announce are what are called indicative sentences. You will then hear me announce an aggregate sentence, which is the sentence and non-parole period that you will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence I will tell you the date it starts from, the date it ends and the date when you are first eligible for parole. Please stand up.

62. You are convicted of each of the offences to which you pleaded guilty.

63. On the dangerous driving causing grievous bodily harm offence where Mr Rowlands-Jones was the victim, there is an indicative sentence of one year and ten months imprisonment.

64. On the dangerous driving causing grievous bodily harm offence where Ms Lambourne was the victim, there is an indicative sentence of one year and ten months imprisonment.

65. On the cause bodily harm by misconduct offence where Mr Crowley was the victim there is an indicative sentence of nine months’ imprisonment.

66. I impose an aggregate sentence of three years and two months imprisonment and an aggregate non-parole period of one year and seven months imprisonment. The sentence and non‑parole period commence from today, 20 March 2020. The sentence expires on 19 June 2023. The non‑parole period expires on 19 October 2021. The earliest date you are eligible to be released to parole is the date of the expiry of the non‑parole period which is 19 October 2021. Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.

67. I was asked to consider imposing a sentence by way of an intensive correction order. As the aggregate term of imprisonment is greater than three years that sentencing alternative is not available. Even if it had been, the offending was, in my view, too serious not to impose full‑time custody.

68. Having regard to the period of suspension, I impose on each offence an 18 month period of disqualification which is to be fully concurrent.

69. Please have a seat.

70. Three years and two months with a non-parole period of one year and seven months commencing today, I have the sentence expiring on 19 June 2023. The non-parole period expires as I have it on 20 October 2021. Could you just please check that for me. I understand, Mr Crown, you’re withdrawing the matters on the 166 certificate.

71. GABRIEL: Yes, your Honour, the Crown formally seeks to withdraw all of sequences 7, 8, 9 and 10.

72. HIS HONOUR: Those sequences are withdrawn and dismissed.

73. GABRIEL: The Court pleases.

74. HIS HONOUR: Ms Lynn will need to go with the officers.

**********

Amendments

28 July 2020 - Removal of capital letter in case name.

28 July 2020 - Amendment to paragraph [58]. Replaced 'dangerous driving causing death' with 'dangerous driving causing grievous bodily harm'.

30 July 2020 - Case name amended to only reflect offender's last name.

Decision last updated: 30 July 2020