R v Morrow

[2009] NSWDC 78

CITATION:	R v Morrow [2009] NSWDC 78
HEARING DATE(S):	14 April 2009
JUDGMENT DATE:	14 April 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Murrell SC DCJ
CATCHWORDS:	CRIMINAL LAW - sentence - offences against the person - driving offences - aggravated dangerous driving causing death - prescribed content of alcohol - application of guideline judgments to case of aggravated dangerous driving
LEGISLATION CITED:	Crimes Act 1900 (NSW) ss 52A(2), 52AA Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A
CASES CITED:	R v Jurisic (1998) 45 NSWLR 209 R v Whyte (2002) 55 NSWLR 252 R v Veatufunga (2007) NSWCCA 54 Whybrow v R (2008) NSWCCA 270
PARTIES:	Regina Carmen Lee MORROW
FILE NUMBER(S):	2008/00017560
COUNSEL:	Mr Carr of Counsel for the Crown Mr Little of Counsel for the Defendant.

1 The offender pleaded guilty to two offences of aggravated dangerous driving occasioning death. Each is an offence contrary to s 52A(2) of the Crimes Act 1900. Each carries a maximum available penalty of 14 years imprisonment. No standard non-parole period applies.

2 In each case, the circumstance of aggravation is that there was present in the offender’s blood the prescribed concentration of alcohol, ie 0.15 grams in 100 millilitres of blood. The alcohol concentration in the offender’s blood when it was tested some time after the accident was 0.161.

3 The victims were Cheryl and Peter Lowe, husband and wife.

4 The offender pleaded guilty on 5 November 2008. At that time, she requested the revocation of bail. She has been in custody since 5 November 2008. It is appropriate that the sentences date from then.

5 While the immediate circumstances of the offences are known, the preceding events are unclear. The immediate facts are that, at about 11.45pm on Friday, 1 February 2008, the offender was driving her vehicle south on Cessnock Road towards Gilliston Heights. The road was wet from recent rainfall. The deceased were travelling north on Cessnock Road. There was an unbroken, double line separating north and southbound lanes. The speed limit was 60 kilometres per hour. About 110 metres south of the New England Highway, the offender was negotiating a slight right hand bend. Her visibility was clear. Her vehicle crossed the double unbroken lines onto the wrong side of the road, where it collided head on with the vehicle in which the deceased were travelling. The collision occurred well into the northbound lane, not close to the centre line.

6 The deceased were trapped in their vehicle. They sustained critical injuries from which they died at the scene. The offender was trapped in her vehicle. She was taken to the John Hunter Hospital, where she was found to be suffering from a fractured right patella and fractured right ankle. At 1.30am, that is about one and three-quarter hours after the accident, her blood sample was taken, revealing the reading of 0.161 grams per 100 millilitres of blood.

7 A forensic scientist from the Police Force states that a concentration of 0.161 would result in some impairment of driving skills, particularly in an emergency situation. In the vast majority of individuals, there would also be impairment to general driving ability.

8 When spoken to by police, the offender said that she did not recall anything of the night. There is material in a psychiatric report tendered by the offender. That material is not necessarily accepted by the Crown and I therefore do not place much weight upon it. However, I note that the offender told Dr Allnutt that, against a background of being upset at seeing her ex partner, she was drinking in Maitland. It was raining heavily. She remembers falling asleep in the back of her car, waking and thinking that it was almost morning, although it was still dark, and then driving off in the vehicle. I do not rely upon those assertions. I refer to them because they are, at least, consistent with the statement of facts tendered by the Crown.

9 There is no evidence as to the hotel at which the offender was drinking, although it was a Maitland hotel. There is no evidence as to her ultimate destination. Consequently, there is no evidence as to the length of the trip upon which she had embarked when the collision occurred.

10 The Court has been provided with a number of victim impact statements. They tell of the tragic and enduring consequences of the offences for the near relatives of the deceased. In particular, I make reference to the only son of the deceased, who lost his parents only 500 metres from their home in Maitland. On the day in question, they had just acquired a new horse float. They were very interested in trotters, in the harness industry, and they trained trotters. They were very happy at the acquisition of the new horse float. They had spent the day with family members. Mrs Lowe’s sister and her family had visited that day. At the conclusion of an apparently happy day, with everything before them, they lost their lives. There are also victim impact statements from other relatives of the deceased, from Mr Lowe’s elderly mother, from sisters of each of the deceased, stating that the deceased were hardworking people with everything to look forward to. The Court acknowledges the loss to the immediate family, particularly the only son of the deceased.

11 There is a good deal of material before the Court in relation to the offender. She was 40 years old at the date of the accident and is now 41. She has no prior criminal record. There are a couple of speeding matters, nothing of any great moment. In 1995 there was an offence of driving with the prescribed concentration of alcohol in Queensland but, as the offender’s legal representative has pointed out, that was many years prior to the current offence. She is a person with no significant prior criminal record. She is a person of excellent character. As a sole parent, she is an excellent mother to her son, now 12 years of age. She has been a caring and loving person towards friends and family.

12 The offender left school in Year 8. She has a good work history, mainly in the hospitality industry. There were a number of significant issues in her upbringing to do with abuse, but I need not go into those matters. What is more significant is that for a period of some years leading up to a matter of months before the offence, the offender had been involved in a destructive and abusive relationship with an amphetamine addict, whose behaviour was demanding and controlling. She left him about three months before the offence, but he continued to harass and intimidate her.

13 Although, as far as her immediate family and friends were concerned, she was not someone who abused alcohol or drugs (her immediate family was very opposed to the abuse of such substances) in fact, in the course of the destructive relationship with her former partner, the offender had turned to alcohol and, at times, to amphetamines. At times, she had consumed alcohol to the point of blackout. She told Dr Allnutt that she saw her former partner on the evening in question. It was after that, that she used a great deal of alcohol before having what turned out to be a relatively short sleep, and then driving.

14 It is clear that the destructive relationship drained the offender of many resources, not only personal resources, but also financial resources. There is reference to the fact that she lost her house and a great deal of money in the course of the relationship.

15 In sentencing the offender, the Court is required to have regard to what have been referred to as guideline judgments, they being the decisions in R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252. Those cases identified what has been referred to as a typical case under s 52A(1) and (3), ie non-aggravated dangerous driving, and to features which might aggravate such an offence. The typical factors and aggravating features are relevant to an assessment of the objective seriousness of the subject offences, although it seems to me that they are generally more designed to determine the objective seriousness of non-aggravated dangerous driving occasioning death or grievous bodily harm.

16 When one looks at the circumstances of aggravation set out in s 52A(7), each of those matters is a matter that almost inherently involves an abandonment of responsibility. Therefore, the approach that has often found favour in determining where, on the continuum of moral culpability between momentary inattention and abandonment of responsibility, a particular case lies, is of less use when assessing the objective seriousness of an aggravated dangerous driving offence, as opposed to a non-aggravated dangerous driving offence.

17 In any event, I am called upon to assess the objective seriousness of this offence and in doing so I have regard to the features of a typical case and the aggravating features referred to in Jurisic and Whyte, to the extent that they may be relevant to the circumstances of the present offence.

18 The Crown submits that there is a high degree of moral culpability associated with this offence and that it is therefore an offence of high level objective seriousness.

19 While the offence is a very serious offence, as attested to by the maximum available penalty in each case of 14 years, I do not agree that, compared to other cases of aggravated dangerous driving, there is a very high level of objective seriousness associated with these offences. Any offence of aggravated dangerous driving is an offence of grave seriousness.

20 In this case the aggravating feature, that is that the alcohol level exceeded 0.15, is established by reference to the presumption contained in s 52AA(3), but the level by which 0.15 was exceeded was not great. Second, while one may harbour many suspicions as to the length of the journey upon which the offender had embarked when the accident occurred, the evidence establishes no more than that she had travelled a relatively short distance. On the limited evidence available, it would seem that she had travelled at least a kilometre, maybe a couple of kilometres. The total length of the intended journey is unclear. There is no evidence of bad driving prior to the circumstances surrounding the collision and there is no evidence of a prolonged period of bad driving, probably only because the offender had just got in the car I might add. Nevertheless, there is no evidence of a prolonged period of bad driving leading up to the collision. As to the number of other road users who were put in danger, there is evidence from persons in two other vehicles. At 11.45pm on a Friday night, one would infer that there was some traffic on the road but again, in the absence of evidence, I would not infer that there was a moderate to high level of traffic activity on the road at the time of the accident. While other members of the public were put in danger, there is no evidence that there was a large number of such persons.

21 One of the factors said to be present in a typical case is a plea of guilty of limited utilitarian value. I take that to mean a plea of guilty of limited utilitarian value in the sense that there is a strong Crown case. In this case, there was a strong Crown case because the Crown was entitled to rely upon s 52AA. By the same token, the plea of guilty was of some utilitarian value because, as the offender’s legal representative pointed out, there is not much difference between a reading of 0.15 and a reading of 0.16 and the circumstances preceding the collision, that is the events of the minute or hours prior to the collision, are not known. Consequently, the pleas of guilty were of some value.

22 Any offence of this nature is a very serious matter, as reflected in the maximum available penalty. Compared to other offences of this type, the objective seriousness of this matter is not as high as can be the case, given the fact that there is no aggravating feature that would fall at the upper end of the range, such as evidence of poor driving over a significant distance. In saying that, I do not in any way intend to minimise the seriousness of either matter.

23 I am required to consider the relevant aggravating and mitigating features under s 21A of the Crimes (Sentencing Procedure) Act. There is no particularly relevant feature under s 21A(2). As to the mitigating features under s 21A(3), the fact that the offender was a person of good character, is unlikely to re-offend and has excellent prospects of rehabilitation are factors that apply in many, if not the vast majority, of cases of this type and are matters to which, in this type of matter, less relevance generally attaches.

24 Remorse is commonly present in the case of offenders who commit this type of offence. I do accept the submission of Mr Little for the offender, that her remorse is of a higher degree than one commonly sees, in that she was so remorseful that she asked for bail to be revoked so that she could commence serving her sentence when she entered the plea of guilty on 5 November 2008. Before the Court, she presents as someone who is still extremely disturbed by her own conduct. That is also the impression that I gleaned from the evidence called before the Court. I accept that, not only is she remorseful within the meaning of s 21A(3)(i), but she has a very high level of remorse.

25 This case has not been advanced as a case of hardship, and the offender’s 12-year-old son is being adequately cared for by relatives. However, in setting the overall sentence and the non-parole period, I do take into account the fact that he is a teenage boy.

26 I have referred to the plea of guilty.

27 The Court must have regard to the sentencing purposes in s 3A. The purpose of general deterrence looms very large in relation to matters of this type, particularly where the aggravating feature is the blood alcohol reading. It is for the very purpose of avoiding this outcome that the legislature has introduced a range of provisions designed to severely punish persons who drive with alcohol in their blood to the extent that it may affect the manner of their driving. General deterrence is a very important sentencing objective. In addition, accountability, denunciation and recognition of harm to the victims and their families are the primary sentencing purposes. There is no chance at all that the offender will re-offend, so considerations of rehabilitation and the like are not significant when it comes to sentencing.

28 I have considered the JIRS statistics. I have also considered the table of cases to which Mr Little has referred me. The Crown has addressed some of those cases and has pointed out important differences between some of the cases and the matters before the Court. Two recent decisions of the Court of Criminal Appeal that do provide some help are the decisions of R v Veatufunga (2007) NSWCCA 54, a Crown appeal, and Whybrow v R (2008) NSWCCA 270, a defence appeal.

29 Although the offences occurred simultaneously, is appropriate that the Court impose partially accumulated sentences. That is essential to recognise that the offender’s conduct resulted in the death of not one person, but two.

30 You are convicted of each of these matters. In relation to the offence involving Mrs Lowe, you are sentenced to a non parole period of three years. The sentence will commence from 5 November 2008. You will be eligible for release to parole on 4 November 2011. The balance of term is a period of one year. The sentence will expire on 4 November 2012.

31 In relation to the offence involving Mr Lowe, I accumulate the sentence by a factor of 12 months. You are sentenced to a two year non parole period from 5 November 2009 to 4 November 2011 and a balance of term of two years. That sentence will expire on 4 November 2013. The earliest date on which the offender is eligible for release to parole is 4 November 2011. The effective sentence is five years with a three year non parole period. The special circumstance is that this is the offender’s first sentence of imprisonment.

32 The matters on the s 166 certificate on the Crown application are withdrawn and dismissed.

33 The offender is disqualified from holding or obtaining a licence until 4 May 2013.