R v Primmer

[2014] NSWDC 370

District Court

New South Wales

Medium Neutral Citation:	R v Primmer [2014] NSWDC 370
Date of orders:	25 June 2014
Decision date:	25 June 2014
Jurisdiction:	Criminal
Before:	Conlon DCJ
Decision:	Sentenced to a non‑parole period of two years and six months which will date from 6 December 2013 and expire on 5 June 2016. Sentenced to an additional term of 12 months which will expire on 5 June 2017. Disqualified from driving for 10 years.
Catchwords:	Dangerous Driving Occasioning Grievous Bodily Harm
Cases Cited:	R v Errington [2005] 157 ACrimR 553; R v Khatter [2000] NSWCCA 32
Category:	Sentence
Parties:	Regina (Crown) Shaun Primmer (Offender)
Representation:	Counsel:     Solicitors:
File Number(s):	2013/368556

Judgment

1. The offender Sean Primmer appears for sentence following his plea of guilty to a charge of dangerous driving occasioning grievous bodily harm contrary to S52A(3)(c) of the Crimes Act carrying a maximum penalty of seven years imprisonment.

2. The Crown bundle of documents (exhibit A) contains a statement of Agreed facts and they are as follows. That at about 8.30pm on 6 December 2013 the offender was the driver of a Ford Falcon sedan. Accompanying him in the front passenger seat was 14 year old Mia Owens. A further person, Timothy Lukian, occupied the rear passenger seat behind the driver.

3. The offender drove his car generally in a southerly direction on Graham Street, Unanderra. It has one traffic lane in each direction, the speed limit for the area is 50 kilometres an hour. A witness, Steven Page, heard the engine of a car revving loudly as it travelled down Graham Street, then he saw the Ford Falcon driving with its tyres screeching turn right into Waples Road. That intersection is posted with a stop sign. As the car made the turn the witness Page observed the car accelerating further and veered onto the wrong side of the road. Whilst attempting to make this turn the offender lost control of the car. The car began rotating in a clockwise direction before leaving the roadway. At this point the car has gone up onto the kerb and collided heavily with a wooden power pole outside number 24 Waples Road.

4. The offender and Lukian were able to free themselves from the car. Mr Page was first to attend the scene and to provide assistance. He saw the offender get out of the car and heard him say, “I’ve got to go, I’ve got no licence”. Mr Page told the offender to stay where he was as Mr Page tried to assist the victim. Ms Owens was trapped in the car, she was unresponsive and suffering from critical injuries. She was later released by rescue personnel and airlifted to the Westmead Hospital for emergency treatment.

5. The victim is currently being treated by Dr Heather Burnett at the Children’s Hospital, Westmead. Dr Burnett stated that Ms Owens sustained multiple serious injuries including severe traumatic brain injury, a left hemiplegia (arm and leg weakness and stiffness), a pelvic fracture and contusions of her lungs, spleen, pancreas and left kidney. She required medical and neurosurgical management in the paediatric intensive care unit which included; (1) intubation and ventilation, (2) medical management of increased intracranial pressure, (3) management of abnormal muscle tone with medication, splinting and botulin toxin injections, (4) acute and chronic pain management, (5) medical management for behavioural disturbance, (6) gastrostomy placement for management of feeding difficulty, (7) intensive rehabilitation which included physiotherapy, occupational therapy, speech pathology and social work support as an inpatient.

6. Since the date of the admission it is said that Ms Owens’ condition has improved, however she remains significantly impaired with regard to her motor function, cognition and continues to experience significant behavioural disturbance and chronic pain. As a result of this severe brain injury the victim has irreversible brain damage that will continue to affect her motor function, cognition, memory and behaviour on a permanent basis. She will require long term rehabilitation in a supported living arrangement due to her injuries. She remains an inpatient in the hospital to this day.

7. The offender and Lukian suffered minor injuries. A breath test of the offender at the scene returned a negative reading. However blood and urine samples were taken from the offender after the collision and they returned positive results for amphetamine, methamphetamine, delta‑9‑tetrahydrocannabinol (which is cannabis) and delta-9 THC acid.

8. Upon a review of the matter Dr Pearl, clinical forensic pharmacologist, was of the opinion that as a result of those drugs being in his system there would have been some impairment of the offender’s driving ability under the influence of those drugs.

9. An analysis was undertaken of the crash site by Senior Constable Jimmy. His observations of the various markings on the road appear at paras 9 and 10 of the agreed facts. That officer was of the opinion that the appearance and orientation of the striations within the scuff marks that he observed, confirmed that no breaking or acceleration had been applied during the car’s loss of control. An analysis of speed determined that at the time the car began to lose control it was travelling between 82.2 kilometres an hour and 95.1 kilometres an hour. The car was examined, there was no mechanical defect or failure found within the vehicle that may have contributed to the cause of the collision.

10. The offender has never held a licence and he has been disqualified from obtaining a licence for three years after being sentenced in the Wollongong Local Court on 26 November 2013 for being unlicensed following a police pursuit. The car was also unregistered and uninsured at the time of the collision.

MORAL CULPABILITY

11. The guideline judgment of Whyte indicated that an assessment of an offender’s moral culpability is relevant to determining whether a custodial sentence should be imposed as well as imposing the appropriate length of sentence. In R v Errington [2005] 157 ACrimR 553 Mason P stated at paras 26 and 27:

“The central inquiry with regard to the objective circumstances of the particular offences is identification of the degree of moral culpability involved, this being ‘a critical component of the objective circumstances of the offence’... The jurisprudence in this field recognises “abandonment of responsibility” as one method of describing a high degree of moral culpability. This does not however endorse a brightline sub-category. There is a wide spectrum of behaviour indicative of differing levels of moral culpability, indeed differing degrees of abandonment. It is not required that cases be assigned to one or other of two pigeon holes marked respectively ‘momentary inattention or misjudgment’ and ‘abandoned responsibility’.”

12. In R v Khatter [2000] NSWCCA 32, Simpson J stated at para 31:

“Offences under S 52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability.”

13. There of course are a number of aggravating factors which are referred to in the guideline judgment of Whyte that relate to moral culpability. However, as was commented in Errington’s case they were not meant to act as a checklist but as a guide; that is, they remain illustrative, not definitive.

14. In the present case I am satisfied that the facts reveal aggressive/showing off driving as evidenced by the engine revving, screeching tyres and speed causing the offender to lose control and wrap his vehicle around a telegraph pole in a suburban residential street. His driving ability was affected by the ingestion of drugs. The injury to the victim was catastrophic. Another aggravating factor was that 10 days prior to this particular collision he was placed on a S 9 bond to be of good behaviour for three years for a number of charges including police pursuit and never having been licensed. He was certainly cognizant of his licence status as he was heard to say straight after getting out of the car, “I’ve got to go, I’ve got no licence”.

15. In my view he has clearly abandoned his responsibility not only to the passengers in his car but to other potential users of the roadway. Accordingly I am satisfied that his moral culpability is high.

16. In the course of the sentence proceedings the Court received a victim impact statement on behalf of the victim. It was read out by the victim’s mother, Ms Bateman. I can only describe the details of the impact on the victim and her family as heartbreaking. The extent of the injury and emotional harm clearly amounts to an additional aggravating factor under S 21A(2)(g) of the Crimes (Sentencing Procedure) Act.

SUBJECTIVE CIRCUMSTANCES

17. The offender is now 19 years of age. His driving record is certainly not one that would entitle him to any leniency. First of all, he has never been licensed. On 23 January 2011 he was convicted of drive speed/manner dangerous and police pursuit. He was dealt with as a juvenile and given S 33(1)(b) bonds to be of good behaviour for 12 months. As earlier referred to, on 26 November 2013 he received further S 9 bonds for offences of never having been licensed, driving whilst disqualified, police pursuit and larceny.

18. The facts in relation to those matters now form part of exhibit C. I will not attempt to detail those facts here, but merely by way of summary in respect of the charge of police pursuit this is what was placed before the Court. At 10am on 3 September 2013 police observed the offender driving a vehicle in Unanderra. They were travelling the opposite direction, they saw him accelerate harshly away. Police decided to stop him to subject him to a random breath test. They acted their lights, did a U-turn. They observed the offender accelerate heavily along Blackman Parade. He accelerated to a speed of 80 kilometres in a 50 zone. Police then called a pursuit and continued following him. They observed him overtake a vehicle near the intersection of Tannery Street on the incorrect side of the road by crossing unbroken separation lines and at speed. They lost sight of him as he travelled along Blackman Road to speeds in excess of 100 kilometres an hour in a 50 kilometres zone. Accordingly police terminated that pursuit. They broadcast the termination of that pursuit over police radio. However, a short time later the offender was found in the driver’s seat of that vehicle in a cul‑de‑sac location a short distance from where he had last been seen. Also in that vehicle were two female passengers.

19. The present offence with which I am dealing occurred some 10 days later.

20. Exhibit 1 is a report dated 16 June 2014 of Ms Laura Durkin, psychologist. The following background is set out in that report. The offender was the only child to his parents’ union. He has never met his biological father. He has a half-sister who is 16 years of age and indicated he has a strong and supportive relationship with his stepfather who he said accepted him and treated him like a son. However, the stepfather abused alcohol and was apparently involved in crime historically. He said he has always been close to his mother. The family experienced housing instability throughout the offender’s development and at some stage his mother and stepfather separated.

21. As a child the offender had significant speech issues and received treatment from a speech pathologist. He suffered poor academic performance in primary and secondary school. He was teased for his extreme height and his learning difficulties. The bullying at school was severe and consistent throughout, but it was not until high school that he began retaliating, apparently becoming physical aggressive with other children. It appears his education did not extend beyond year 7.

22. It is unsurprising that during adolescence he began associating with a group of delinquent peers. He then engaged in similar activities and was compliant with their requests. Ms Durkin stated:

“Over the years Mr Primmer said that he has been taken advantage of by these friends and noted that despite his attempts to gain acceptance he has been mistreated by his friends including being assaulted by them and being blamed for their criminal conduct.”

23. Ms Durkin also stated:

“Mr Primmer seems to have become increasingly absorbed into an antisocial peer group throughout his adolescence because these people have offered him some degree of friendship which he appears to greatly desire.

24. He commenced using cannabis at age 15/16. He claimed his use of cannabis was to gain acceptance from his peers who were engaged in similar behaviour. he was introduced to ice when 19. In the two weeks leading up to the offence he said he was smoking ice daily. He said he was not eating or sleeping regularly and was feeling ‘weird’ from a combination of cannabis and ice.

25. Mr Durkin stated at para 31 of her report:

“Ms Primmer expressed significant and genuine remorse for his conduct and he appeared distressed, disgusted in the injuries caused to the victim. He said that he ‘cries every night’ at the thought that he has ‘hurt someone pretty bad’...He said that he was ‘so sorry’ for the victim and ‘wishes it never happened’. He apparently replays the collision in his head daily and says that he ‘can’t stop thinking about it’.”

26. At para 32 Ms Durkin said:

“The effect of incarceration has reportedly been significant for Mr Primmer. Even in the disability unit of the gaol he said that he has been bullied and assaulted at times and he has asked to move areas some months ago because he was ‘scared for his life’. He is now housed in a one out cell and while he reportedly feels safer he noted also that he is lonely and he struggles to manage the aforementioned rumination about the collision when he is isolated in his cell for an evening...For an individual such as Mr Primmer gaol is likely to be a particularly difficult exercise. Not only is he young, he is vulnerable due to his intellectual difficulties which affects his interpersonal functioning and emotion regulation.”

27. Ms Durkin had access to a report of Ms Liz Kramer, psychologist (dated 31 August 2012). In that report Ms Kramer stated that the offender presented with a “mild to moderate level of intellectual impairment...he requires assistance with many areas of everyday life compared with same aged peers”. Ms Durkin stated at para 54:

“...Although this assessment cannot confirm Mr Primmer’s exact level functioning or the presence of intellectual disability, all information available to me would suggest that Mr Primmer is deficient intellectually and that his adaptive functioning is poor, indicating that he would meet diagnosis for intellectual disability...Given this Mr Primmer is likely to struggle with attention, comprehension, perception, memory and thinking generally. This can affect his problem solving, consequential thinking, capacity for self-regulation and self-moderation...”

28. The following then appears within para 54:

“However specifically related to the offending, it is likely that Mr Primmer’s cognitive difficulties affected his ability to attend appropriately while driving to concentrate on the task at hand, moderate his conduct while driving, effectively manage any issue that arose and understand or implement the best course of action in a timely manner if a problem arose. Further to this, Mr Primmer reported being distracted by his passengers around the time of the collision. For an individual with already compromised intellectual ability, distraction is only likely to exacerbate his weaknesses. Add to those factors Mr Primmer reports being intoxicated on ice and thus combined his cognitive capacity would have been notably impaired.”

29. In respect of those last mentioned observations I am unable to accept that his “intellectual functioning” contributed to the commission of the offence in a material way. Courts are regularly provided with reports from psychologists who no doubt do their best to ameliorate the conduct of persons that they are interviewing.

30. As earlier observed, his driving complete with revving engine, screeching tyres and speed was typical of many like-minded, young, irresponsible drivers who believe that they are impressing their friends. In other words, showing off or aggressive driving that all too often ends in tragedy. That driving as observed by the witness simply had nothing to do with any passenger distracting him. Indeed, the dangerous driving was simply inconsistent with such a suggestion and I reject it. I have already referred to the facts in respect of the police pursuit in September 10 days before this particular offence. He was not distracted then, he showed a complete ability to be able to observe police and manage by his aggressive driving on that occasion to escape them.

31. Exhibit B is a pre‑sentence report (dated 19 June 2014) by Mr Simon West. Under the heading of “Attitude to Offending” the following appears:

“Mr Primmer accepts responsibility for his commission of a serious offence, noting that he had been using ice prior to driving and was suffering from a significant lack of sleep. He acknowledged that his driving ability was likely to be impaired but said that he ‘Just wasn’t thinking at the time as his life was going through too many dramas’. He added that he is very depressed about the accident and the impact it has had on the victim. He stated that consequently he has resolved never to drive again.”

32. Exhibit 2 provides advice that in the first half of 2014 he has increased his participation in education programs and activities to the point where he is now engaged in almost all classes on offer. He is apparently working well in his reading and writing skills. He is also working satisfactorily in the kitchen within the metropolitan special program.

33. Exhibit 3 is a handwritten letter from his mother. She commented, “He wishes that it was him who had been badly injured instead of Mia as he loves her like a little sister..”. She confirmed he experienced difficulties in childhood owing to his speech and learning disability problems.

34. Upon a consideration of all the material I am satisfied that his expression of remorse is genuine and that he does have reasonable prospects of rehabilitation. The offender is also entitled to have his plea of guilty taken into account in mitigation of penalty. This is done on two bases; to reflect the utilitarian benefit to the criminal justice system and also reflect contrition. This was a plea at the earliest opportunity, accordingly I intend to reflect the utilitarian benefit of that plea by a discount of about 25%.

35. I have taken into account the purposes of sentencing set out under s 3A of the Crimes (Sentencing Procedure) Act. With regard to S 5, I am satisfied that given the objective seriousness of the offence no penalty other than imprisonment is appropriate.

36. This is the offender’s first time in custody. Owing to his intellectual disability I am prepared to accept that gaol will be a difficult place for him. In combination, these factors provide sufficient reason to make a finding of special circumstances and to vary the statutory ratio.

37. Ms Keay had made a submission that owing to his intellectual disability he offender is an inappropriate vehicle for general deterrence. However, owing to my earlier assessment this was but another example of young drug/alcohol affected drivers showing off or driving aggressively and it has resulted as I have said in a catastrophic collision that has destroyed a young life. The courts need to consistently send a message that if you conduct yourselves on the road in this way, either killing people or severely injuring them, then significant punishment will follow. That means you will go to gaol. Would you please stand Mr Primmer.

32. Having been convicted of this offence I sentence you to a non‑parole period of two years and six months which will date from 6 December 2013 and expire on 5 June 2016. I sentence you to an additional term of 12 months which will expire on 5 June 2017. In respect of each of the matters for which you were given the S 9 bonds before the Local Court those bonds will be revoked. In respect of the charge of larceny I sentence you to a fixed term of imprisonment of six months. That will also date from the date you went into custody being 6 December 2013. In respect of the charges of never been licensed and police pursuit those bonds will also be revoked. In respect of each of those matters I sentence you to fixed terms or imprisonment of 12 months also to date from 6 December 2013.

33. The disqualification I impose using my discretion is a disqualification for 10 years. The fact is he should never be driving a motor vehicle. Yes, take a seat. He can be taken out.

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Decision last updated: 08 December 2015