R v Richardson

[2022] NSWDC 596

District Court

New South Wales

Medium Neutral Citation:

R v Richardson [2022] NSWDC 596

Hearing dates:

16 December 2021

Date of orders:

28 January 2022

Decision date:

28 January 2022

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Term of imprisonment of 2 years 7 months with a non-parole period of 1 year 3 months.

Catchwords:

CRIME — Driving offences — Aggravated dangerous driving occasioning grievous bodily harm — Circumstances of aggravation — Driving under influence of illicit drugs

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Road Transport Act 2013 (NSW)

Cases Cited:

Director of Public Prosecutions(Cth) v De La Rosa [2010] NSWCCA 194

R v Manok [2017] NSWCCA 232

R v Whyte [2002] NSWCCA 343

Category:

Sentence

Parties:

Rex (Crown)
Kyle Richardson (Accused)

Representation:

Counsel:
Mr L Brasch (Accused)

Solicitors:
Mr S Burton (Crown)

File Number(s):

2020/00133258

Publication restriction:

NA

Judgment

1. Kyle Richardson, 20 years of age, appears before the Gosford District Court for sentence in relation to the following offences:

1. Aggravated dangerous driving (under the influence of drugs) occasioning grievous bodily harm, an offence pursuant to s 52A(4), Crimes Act. The maximum prescribed penalty for that offence is 11 years imprisonment. There is no standard non-parole period.

2. One offence on a s 166 certificate of drive whilst suspended (first offence), an offence pursuant to s 54(3)(a), Road Transport Act. The maximum prescribed penalty for that offence is six months imprisonment.

2. The offender pleaded guilty on 23 September 2021 at the Gosford Local Court. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%.

3. The offender has spent 177 days in custody. This period of time will be taken into account on sentence.

4. The offences were committed on 4 May 2020. The offender drove south on the M1 Motorway travelling at excessive speed and impaired by a combination of drugs. He lost control of his vehicle, colliding with a sandstone wall and seriously injured his passenger, Kelsey Gottl, his partner who was in the front passenger seat.

5. The offender had travelled from Toukley on the Central Coast to the scene of the collision, a distance of approximately 65 kilometres.

The Agreed Facts

6. Kyle Richardson, the offender, was 18 years and 11 months old at the time of the offending.

7. On 4 May 2020 he was the driver of a blue coloured Volkswagen Golf registered to a friend of his. Kelsey Gottl, the offender’s partner, was seated in the front passenger of the vehicle. At the time of the incident the offender was the holder of a New South Wales provisional P1 driver’s licence which was suspended as of 9 April 2020 until 8 July 2020.

8. The M1 Motorway Mooney Mooney in the vicinity of collision scene runs in a general north south direction with three lanes of traffic in each direction. Opposing lanes of traffic are separated by a rock wall. The speed limit of the section of roadway where the collision occurred is 90 kilometres per hour with an advisory sign erected a short distance before the collision scene.

9. Vehicles travelling south along the M1 Motorway approaching the collision scene are faced with a relatively straight section of road with a downhill grade and are then faced with a gradual right hand bend in the roadway.

The collision

10. At 9.46am ‘Brendon’ telephoned emergency services and advised that a small blue car had gone “flying past him” and was travelling well in excess of the speed limit, requesting the assistance of Highway Patrol.

11. At approximately 9.50am the offender approached a sweeping right hand bend in the roadway and the near side of the Golf left the roadway. The front passenger side of the Golf impacted heavily with the sandstone wall which caused the vehicle to rotate in a clockwise direction across three lanes of the motorway before coming to rest on the western shoulder of the roadway, that is the right hand side.

12. Annexure 1 to the Agreed Facts shows vehicles travelling southbound along the motorway approaching the collision scene.

13. Annexure 2 to the Agreed Facts shows a plan prepared in relation to the collision.

14. Ms Gottl told police that she had no recollection of the accident with her last memory being the morning of the collision when she woke up and had a shower.

15. The offender was travelling from Toukley to Sydney. The distance between Toukley and the site of the collision is approximately 65 kilometres.

Triple-0 calls and the accounts of civilian witnesses

16. A total of nine calls were made to triple-0 from 9.50am. Emergency services attended at 10.01am. Emergency services were advised that the vehicle was “driving like a race car” with a number of people estimating that the offender would be travelling at a speed between 140 and 200 kilometres an hour.

17. The following people made calls to triple 0.

Linda Henderson

18. Linda Henderson stated that the offender was “doing about 140” and had “been speeding in a reckless fashion”.

Angus Worth

19. Angus Worth was travelling southbound on the M1 Motorway when he saw the offender pass him in the far right hand lane and stated that he recalls “clenching his steering wheel and thinking that the offender was flying”. Mr Worth stated, “I would say he was going the fastest I’ve ever seen a car go on a public road” and he said he remembered thinking the car would not make the approaching corner.

Marie Luakka

20. Marie Luakka was travelling southbound on the M1 Motorway in a vehicle being driven by her daughter, Sophia Luakka. Ms Luakka heard “an engine roaring” before all of a sudden a blue Volkswagen Golf passed her on the left noting that there was “basically no distance” between the Golf and her car and then it looked like the Golf was going to hit their car.

21. Ms Luakka stated that she had seen the vehicle “speeding terribly” in and out of the lane before the collision. Ms Luakka attempted to assist Ms Gottl who stated that she was 18 and was named Kelsey.

22. Ms Luakka asked if the offender or Ms Gottl had family who she could contact, and the offender appeared adamant that Ms Gottl’s family not be contacted.

Catherine Smith

23. Catherine Smith stated that she knew the vehicle was going to be in an accident because “they were flying and they were probably doing - somebody said they were doing 200 past them”.

Clayton Barr

24. Clayton Barr was travelling southbound on the M1 Motorway at approximately 9.46am. He saw the Golf pass him, stating that it “sounded like a wind rushing past his ear” and that the vehicle had overtaken him in the right hand lane and then “suddenly and quickly merged across the three lanes ending up in the left hand lane”.

25. Mr Barr estimated the Golf be travelling in excess of 150 kilometres per hour and stated, “in my thousands of trips to and from Sydney I have never been overtaken by a vehicle going as fast as the Volkswagen was”.

26. Mr Barr stated to emergency services that the driver was “quite frantic” about the female passenger. Mr Barr stated that he had seen the accident and that within about 100 metres of passing him the vehicle had lost control, “clipped the side rail on the left hand side of the road that had spun him across the opposite side of the road and spun him around facing back against the traffic”.

27. Mr Barr described the driver as being “off his chops” stating he suspected he was intoxicated with a drug of some description and that bystanders were nervous about stepping in to help as the driver looked like he could just go “off his chops at any second”.

28. The offender was observed by Mr Barr to be constantly shifting his focus and to be moving in a manner that was “erratic and inexplicable”.

Rokeby Pearce

29. Rokeby Pearce stated that there was a car, being a blue hatchback, that had “absolutely wiped itself out”. Mr Pearce stated that the car was coming down the 90 kilometre zone travelling southbound “flying through at least over 150”.

30. Mr Pearce said that people were abusing the driver because he was aggressive and speeding. Mr Pearce stated that he did not see the crash, but had seen the vehicle come “flying past him and weave in between the cars”.

Ray Caldwell

31. Ray Caldwell stated that he had seen a blue/green P plater Volkswagen “just absolutely flying about like 140 or more” and that it had scared him when the vehicle had gone past due to the vehicle’s speed.

Ron Garmsey

32. Ron Garmsey stated that he had seen a male in a blue Volkswagen with P plates with two occupants driving erratically on the M1. Mr Garmsey stated that the vehicle nearly ran into him and that while in the 80 zone the vehicle had “cut across all the traffic and went into the emergency lane and kept going”.

33. Mr Garmsey stated that the vehicle was in the right lane and had cut across into his lane and then went back into the right hand lane before going in front of two trucks and into the emergency lane where he ran over a branch of a tree which was four or five metres long and about 100 millimetres in diameter.

34. Mr Garmsey stated that he had first seen the vehicle near Ourimbah and had not seen the accident.

Jessica Winchester

35. Jessica Winchester, an off-duty police officer, and her partner were travelling southbound on the M1 when she saw a blue car with green P plates on the back pass her at an estimated speed of 170 kilometres per hour or more, using the right hand lane.

36. Ms Winchester saw the offender moving quickly in and out of lanes without indicating. After the collision Ms Winchester tapped the offender on the leg and asked him if he had a licence, to which the offender replied “no”.

Adam Gavine

37. Adam Gavine stated that at approximately 9.45am he was travelling southbound on the M1 and was travelling at approximately 115 kilometres per hour in the middle lane when he was passed by a male in a blue Volkswagen Golf hatchback which was travelling in the inside lane, being the lane closest to the gutter.

38. Mr Gavine estimated the vehicle to be travelling at a speed of approximately 180 kilometres per hour. After the collision Mr Gavine asked the offender what had happened and the offender stated, “I came around the bend and cause I was going fast my car got the wobbles and I hit the wall and landed over here”.

Jane Thackray

39. Jane Thackray stated that she had heard the sound of an engine running which “sounded like a race car” and she saw “a flash of blue” in her rear-view mirror before the offender’s vehicle appeared “absolutely out of nowhere directly behind her”.

40. Ms Thackray at 9.44am, using the controls on her steering wheel, rang her husband to say “a guy nearly killed me, he’s driving like an idiot”.

Kim Worthington

41. Kim Worthington was travelling southbound on the M1 Motorway when she saw “a blue flash” to her left and saw a blue car pass her travelling in the breakdown lane, following which she saw the car pass her, merge into the middle lane, dart to the right lane right between another car, then back into the left lane in front of her and back around to the right.

42. Ms Worthington estimated the vehicle to be travelling at a minimum of 150 kilometres per hour.

Zoe Cummins

43. Zoe Cummins was travelling southbound on the M1 Motorway when she saw a “blue small car with green P plates on the back drive past her on the right hand side”.

44. Ms Cummins estimated the car to be going at least 180 kilometres per hour. Ms Cummins drove further down the road and “minutes later approached the collision site”.

45. Ms Cummins, who is an intensive care nurse, went to assist the occupants. The offender remained next to Ms Gottl and said words to the effect “I’m sorry I was speeding”.

Shaun Husband

46. Shaun Husband was travelling southbound on the M1 Motorway with his wife Kelly Husband in the overtaking lane when he saw a “blue small hatchback going flat out past him in the left hand lane”.

47. The vehicle initially drew Mr Husband’s attention as it “chopped from the left hand lane to the overtaking lane” and Mr Husband estimated the vehicle to be travelling at a speed of at least 160 kilometres per hour.

48. Mr Husband contacted police and subsequently provided the police with dashcam footage from 4 May 2020.

The arrival of paramedics and the medical evidence

49. Paramedics arrived at the collision site from 10.05am. One of the paramedics had a conversation with the offender who provided his name, date of birth and address. The paramedic asked the offender “How fast do you think you were going?” The offender replied, “About 160 kilometres per hour”.

50. The paramedic then asked, “What happened, did you slip on water, hit a pothole?” The offender replied, “I lost control of the car when it slid across the road and hit an embankment and went to the other side”.

51. The paramedic asked the offender “Any drugs and alcohol today?” The offender replied “No” stating that he had last used drugs on the Saturday prior.

52. The paramedic observed that while in the ambulance the offender “seemed to be all over the place and had a flight of ideas alongside continually asking for water, consuming two or three bottles of water on the way to hospital”.

53. At approximately 10.50am, that is, one hour after the collision, Ms Gottl was extricated from the Golf by paramedics with the assistance of the Fire Brigade. Ms Gottl was taken to Royal North Shore Hospital via ambulance, arriving at 11.35am.

54. As a result of the collision Ms Gottl sustained the following injuries:

1. A right transverse midshaft femur (thigh bone) fracture (meaning the break was a straight horizontal line going across the femoral shaft), posteriorly displaced (meaning that the two ends of the broken bone were separated from one another).

2. Left midshaft segmental femur fracture (a fracture composed of at least two fracture lines that together isolate a segment of bone), proximal fracture posteriorly displaced.

3. Left comminuted (breakage of the bone into more than two fragments) and depressed (fragment is depressed below the normal surface) talus (ankle bone) fracture with up to 6 millimetre separation of the largest fragments.

4. Minimally displaced comminuted fracture of the left distal fibula with several bony fragments seen within the lateral gutter of the ankle joint.

5. Fractures to S1 and S2 with extension to bilateral sacral ala (both sides of the sacrum which makes up a part of the pelvis), angulation of the S1 vertebral body anteriorly and resulting in severe narrowing of the S1/S2 spinal level.

6. Comminuted minimally displaced intra-articular fractures of the base of the right third and fourth metatarsal and undisplaced fracture though the neck of the fifth metatarsal.

7. Comminuted minimally displaced fracture of the right navicular (bone located in the top inner side of the foot), associated with irregular depression of the articular surface.

8. Comminuted minimally displaced fracture in the right intermediate and lateral cuneiforms (bones in the foot).

55. Ms Gottl was an inpatient of Royal North Shore Hospital between 4 and 22 May 2020, that is a period of 18 days, at which point Ms Gottl was discharged to Mount Wilga Private Rehabilitation Hospital.

56. During her time at Royal North Shore Ms Gottl underwent the following procedures:

1. An operative fixation of the bilateral femur fracture between 4 and 5 May 2020.

2. A pelvic fixation with sacroiliac screws 6 May 2020.

3. Left talus open reduction and an internal fixation 13 May 2020.

57. Ms Gottl stated that she felt “a lot of conflict and guilt”, that she cared about the offender, that she felt everyone else hates him for injuring her.

58. Ms Gottl stated further that she did not remember the accident at all, remembering only events prior to the collision and the ambulance afterwards.

59. Ms Gottl stated that she was not sure why the offender had been speeding and denied that the offender had used drugs or been drinking.

Police attendance at the scene and the investigation

60. At approximately 10am on 4 May 2020 Senior Constable Stephen Slee attended the collision site. Senior Constable Slee asked the offender “Were you the driver of this vehicle?” The offender replied “Yes”. The offender was administered a breath test with a negative result for alcohol.

61. During this time he was abusive to police, calling them “gronks” and “fuckwits” through administration of a breath test.

62. Senior Constable Slee saw that the offender had eyelids that were “drooping and covering his pupils”. His eyes were also described as “glazed and were in continual rapid movement from side to side”. It appeared he was unable to focus on any one thing while being spoken to. He was unable or refused to follow directions and was observed to be calm for a short period following which he would become unable to stand still and pace up and down in an agitated state and then be in a calmer state. Senior Constable Slee formed the opinion that the offender was under the influence of a drug other than alcohol.

63. Senior Constable Slee placed the offender under arrest at 11am for the purpose of a blood and urine test. At 11.40am the offender was taken to Gosford Hospital for that purpose. At approximately 11.40am leading Senior Constable Kristy Foster attended the scene, together with other police.

64. At the time of their arrival it was daylight and the weather was fine. Visibility was good with no obstructions to drivers travelling south towards the collision scene and the roadway surface was dry with no evidence of recent rainfall or any potholes, obstruction ruts, oil or contaminants on the road which may have contributed to the collision.

65. The findings of leading Senior Constable Foster based upon the collision evidence and dashcam footage obtained was as follows:

1. The Golf while travelling southbound along the M1 Motorway approximately 3.3 kilometres from the collision scene was travelling in excess of the speed limit as it swerved across three lanes of traffic.

2. The Golf approached a sweeping right hand bend in the roadway where the vehicle left lane one and entered the shoulder of the roadway at which point there is evidence of increasing steering input to the right with the nearside tyres of the vehicle creating a tyre scuff with a darker outer edge. The offender has initiated a harsh steering input to the right causing the weight of the vehicle to shift to the outer nearside tyre edge producing the documented tyre scuff marks.

3. The tyre scuff marks continued towards the concrete gutters edge where the tyre marks become a skid mark. A second skid mark commences in close proximity. These marks are consistent with a vehicle under harsh braking.

4. The nearside of the Golf travelled off the gutter’s edge producing the scrape marks documented and the vehicle then continued towards the rock wall before the front nearside of the vehicle impacted heavily with the rock wall. Blue coloured paint transfer can be seen on the rock wall.

5. The nearside of the Golf continued to make contact with the rock wall at various points causing significant damage to the steering of the vehicle and the vehicle to rotate in a clockwise direction across lanes one to three.

6. The Golf came to rest on the western shoulder of roadway minus its engine, two front wheels and various other steering components.

66. Attached to the Agreed Facts is Annexure 3 which is a photograph of the collision damage caused to the vehicle. That does indicate the very extensive damage to the front of the vehicle.

The offender

67. At 12.22pm at Gosford Hospital a blood and urine sample was taken from the offender. Senior Constable Thomas Lightbody witnessed blood being taken from the offender and witnessed the offender urinate into a vessel. The offender refused further medical treatment and was taken back to the police car following which the offender requested he see a doctor and returned inside the hospital for medical tests to be conducted. During this time the offender stated, “I crashed my car being a dickhead”.

68. The offender was cleared medically by Dr Adam Conroy. At 2.30pm he was taken from Gosford Hospital to Wyong Police Station, arriving at 3pm.

67. On 5 May 2020 a blood sample obtained from the offender on the day of the collision was analysed. The sample returned a positive result for the following: methylenedioxyamphetamine (0.7 milligrams per litre), methylenedioxymethamphetamine (0.73 milligrams per litre), benzoylecgonine 0.14 milligrams per litre and cocaine was also detected.

68. Dr Judith Perl, a pharmacologist, provided a report dated 21 July 2020 which opined that the offender was under the influence of MDMA to the extent that his driving ability would have been very substantially impaired.

69. Dr Perl stated further that cocaine use may have had some additive effects to the degree of impairment.

70. Dr Perl stated that the offender’s blood concentration of MDMA would have been within a toxic range and that there was no possibility that the drug was last used on the previous Saturday as stated by the offender.

The vehicle

73. On 15 May 2020 Senior Constable Stuart Davenport conducted a mechanical examination of the vehicle. Senior Constable Davenport concluded that prior to the impact damage there was no mechanical defects or faults on the vehicle which may have been a contributing factor to the collision.

Phone records

74. The call charge records and reverse call charge records for the mobile phone service registered to the offender indicate that the handset was not receiving or sending voice or text messages at the time of the collision.

75. Those facts disclose very serious objective criminality. The offender demonstrated a complete disregard for the safety of not only his passenger but also other road users. It is truly remarkable that no-one was killed as a result of his irresponsible and reprehensible behaviour.

76. Stern sentences must be imposed by the Courts for such offending, not only to deter this offender from behaving in such a way, but also to deter other road users.

77. In respect of sentencing for these types of offences, in R v Manok [2017] NSWCCA 232 Wilson J stated as follows, at [78]–[79]:

“In sentencing for offences of dangerous driving occasioning death or grievous bodily harm, the need for strong denunciation and general deterrence has always been recognised as very important. Indeed, the primacy of general deterrence is such that, ordinarily, it outweighs the remorse or rehabilitation of an offender: R v Paul Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep) per Hunt CJ at CL.

That is because of the prevalence of the activity of driving, and the terrible consequences that can flow from a failure by a driver in the management of a motor vehicle. Almost every adult in our community drives; any driver can commit an offence of dangerous driving, manifesting in death or severe injury. It is important that all drivers be deterred from driving dangerously by the sentences imposed on those who transgress.”

Assessment of objective seriousness

78. In assessing the objective seriousness of the offence of aggravated dangerous driving causing grievous bodily harm, I have taken into account the following factors:

1. The nature of the dangerous driving. The offender had driven whilst his ability to drive was very substantially impaired by drugs for a distance of approximately 65 kilometres between Toukley and the site of the collision. He had consumed drugs earlier that same day. I note that the offender gave this evidence during the sentence proceedings.

2. Shortly before the collision, for a period of at least six minutes and a distance of 3.3 kilometres, he was driving erratically and at a speed he estimated to be 160 kilometres per hour, well in excess of the 90km/h speed limit.

3. He was driving on a motorway where he created a very significant risk for all other road users.

4. The injuries sustained by the victim Ms Gottl were serious and extensive. She had multiple fractures to her thigh bone, ankle, pelvis, hand and foot. She underwent three operations in the weeks after the collision. I regard the injuries as being in the middle of the range of objective seriousness for this offence, recognising that there can be very catastrophic consequences that constitute grievous bodily harm.

79. Having regard to those factors, I assess the objective seriousness of the offending as being above the middle of the range.

Consideration of the guideline judgment of R v Whyte [2002] NSWCCA 343

80. In determining the appropriate sentence I have taken into account the guideline judgment of R v Whyte. In R v Whyte Spigelman CJ identified the following characteristics of offences under s 52A at [204] as follows:

“A frequently recurring case of an offence under s 52A has the following characteristics.

(i) Young offender.

(ii) Of good character with no or limited prior convictions.

(iii) Death or permanent injury to a single person.

(iv) The victim is a stranger.

(v) No or limited injury to the driver or the driver’s intimates.

(vi) Genuine remorse.

(vii) Plea of guilty of limited utilitarian value.”

81. Spigelman CJ also identified a list of 11 aggravating factors at [216] as follows:

(i) Extent and nature of the injuries inflicted.

(ii) Number of people put at risk.

(iii) Degree of speed.

(iv) Degree of intoxication or of substance abuse.

(v) Erratic driving.

(vi) Competitive driving or showing off.

(vii) Length of the journey during which others were exposed to risk.

(viii) Ignoring of warnings.

(ix) Escaping police pursuit...

(x) Degree of sleep deprivation.

(xi) Failing to stop”.

82. Spigelman CJ stated as follows at [228]:

“In the above list of aggravating factors, items (iii)-(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion”.

83. The guideline for offences against s 52A(1) and (3) for the typical case, as identified was stated as follows at [229]–[230]:

“…Where the offender’s moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.

In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate.”

84. Spigelman CJ acknowledged at [231] that:

“In the case of the aggravated version of each offence under s 52A, an appropriate increment to reflect the higher maximum prescribed penalty, and what will generally be a higher level of moral culpability, is required.”

85. In relation to this offender and the application of guideline, he is a young offender of good character, there was injury to a single person, there was limited injury to the offender himself and there was genuine remorse. His plea was at the first available opportunity.

86. I am satisfied that the following Whyte aggravating factors are present. Firstly, the number of people put at risk was significant given that the driving occurred on a motorway. Secondly, there was also erratic driving associated with high speed. Thirdly, the length of the journey is an aggravating factor in circumstances where the offender drove under the influence of drugs when his ability to drive was very significantly impaired for a very significant distance. In relation to the degree of speed and the degree of intoxication, each of those matters is in fact relied upon as statutory aggravating factors for the aggravated offence.

87. Having regard to the presence of a number of aggravating factors as identified in the guideline judgment of R v Whyte, I am satisfied that the offender’s moral culpability is of a very high order.

Statutory aggravating factors (s 21A, Crimes (Sentencing Procedure) Act)

88. The Crown did not rely upon any statutory aggravating factors pursuant to s 21A, Crimes (Sentencing Procedure) Act.

No victim impact statement

89. The Court did not receive a victim impact statement from Ms Gottl. Notwithstanding the absence of a victim impact statement, I have no doubt that the offending would have been significantly traumatic for her, not only because of the shock of being involved in the collision but also because of the significant injuries she sustained, also because she has had to endure multiple surgeries and rehabilitation.

90. One of the purposes of sentencing is to recognise the harm done to the victim (see s 3A(g), Crimes (Sentencing Procedure) Act).

Subjective circumstances

91. The offender is now 20 years of age. As I indicated he was 18 years and 11 months old at the time of the offending.

92. He has no previous criminal history. The absence of a criminal history means that he is entitled to some leniency on sentence. His traffic history has four previous speeding offences. In my view the presence of a traffic history means that specific deterrence is an important consideration on sentence. In relation to his criminal history, I note that he has subsequently been charged with an offence of supply prohibited drug and deal with proceeds of crime. In respect of each of those offences he received a Community Correction Order.

93. The offender gave evidence during the sentence proceedings.

94. The following material was tendered on his behalf:

Exhibit 1 a report of Megan Godbee forensic psychologist dated 26 November 2021. Ms Godbee also gave evidence during the sentence proceedings.

Exhibit 2 a report of Hoang Diep dated 8 December 2021 in relation to counselling that the offender had completed between July and December 2021.

Exhibit 3 a letter from Luca Andolfo dated 30 November 2021 in relation to the offender’s current employment.

Exhibit 4 a letter from Dr Melvyn Polon consultant paediatrician dated 14 October 2014.

Exhibit 5 defence written submissions.

95. The offender’s background is outlined in the report of Ms Godbee (Exhibit 1) and also in the Sentencing Assessment Report (Exhibit A) together with his evidence.

96. Ms Godbee assessed the offender on 19 November 2021 via AVL and telephone for a period of one hour and 20 minutes. The offender reported to Ms Godbee that he grew up in Fairfield and is the second of four children born to his parents. He identifies as an Aboriginal man belonging to the Dunghutti people. His father worked as a carpenter and his mother worked as a nurse. He reported having a close and supportive relationship with his parents. As a teenager the offender reported experiencing periods of grief following the deaths of his aunt, uncle and great grandmother. His mother was also diagnosed with breast cancer and his older sister began using ice.

97. The offender reported that he struggled at school and was diagnosed with ADHD though he never received medical or psychological intervention. He reported difficulties with concentration and had a teacher’s aide in primary school.

98. I note the report of Dr Polon (Exhibit 4) relates to treatment received when the offender was in Year 7 at school. In high school he stated that he was suspended on several occasions and often got into fights with his peers. He completed his Year 10 Certificate and decided to leave school to begin carpentry with his father.

99. He reported that he left home at 16 years of age to live with his father’s best friend and pursue his goal of becoming a professional wakeboarder. He reported that he was part way through his carpentry qualifications when COVID 19 reduced his work opportunities. Since being released on bail the offender has been working in scaffolding and I note more recently he has commenced employment in the events hire business. To Ms Godbee he expressed a desire to return to carpentry in the future.

100. The offender reported being in a relationship with his current girlfriend, the victim of the offence, since he was 16 years of age. He said they have lived together since he was 17 years of age and described their relationship as positive and stable.

Medical history

101. The offender reported experiencing a head injury which required stitches at 12 years of age following a wakeboard accident. He also lost consciousness as a result of the motor vehicle accident the subject of the offending.

Psychiatric history

102. The offender reported that his father has suffered from depression and anxiety and his elder sister suffered from bipolar disorder. The offender reported that his mental health had declined following the offending as he is now experiencing symptoms of anxiety and post-traumatic stress in relation to the collision and, after being harmed in custody, he reported experiencing intrusive memories and flashbacks of the collision as well as hypervigilance on the roads. He has been provided with a mental health care plan by his GP and is currently seeing a psychologist to manage his symptoms.

Substance use history

103. The offender reported that he first consumed alcohol at 17 years of age and began drinking socially once a fortnight from 18 years of age. He reported being “scared of drugs” because his father provided a strong antidrug messaging throughout his early life. He used cannabis for the first time at 18 years of age and never used this drug again. He stated he began using ecstasy and cocaine at 18 years of age and estimated that he used these drugs every three or four months. He stated that he last consumed them three days prior to the incident. He reported to Ms Godbee abstaining from drugs and alcohol since the offending behaviour.

104. I note that during his evidence he conceded in cross-examination that he had continued to use cocaine until January 2021, that is eight months after the offending. Whilst on bail the offender reported to Ms Godbee that he was selling cocaine to fund his legal costs and alleviate his family’s financial stress. He reported participating in drug and alcohol counselling, telephone based counselling, following his release from custody in June 2021.

His attitude to the offending

105. The offender expressed an understanding of the potential consequences including killing strangers, his girlfriend or himself. He reported feeling angry with himself and afraid when he thinks about the collision. He reported that he took drugs three days before the collision and “thought he was fine” to drive. He said that he does not know why he was driving above the speed limit but suggested that he was seeking an “adrenaline rush” believing he was “invincible” at the time.

106. He expressed regret for his offending, stating that he harmed his girlfriend and his family and he no longer views himself as invincible. However, in the opinion of Ms Godbee he attempted to minimise his offending, describing it as “just an accident” and did not appear to recognise that speed and the substances in his system were both choices he made.

Assessment

107. Ms Godbee stated as follows:

“Mr Richardson has experienced symptoms of ADHD since childhood and it is my opinion those symptoms such as impulsivity, and limited consideration of consequences, contributed to his driving behaviour. His offending was also precipitated by adrenaline seeking behaviours and an attitude of invincibility that are both part of normal adolescent development and contributed to his risk taking behaviour. His substance use, his impulsivity and his risk taking culminated in the dangerous driving at the time of the motor vehicle collision. These factors also led him to breach his bail by selling cocaine.”

108. Ms Godbee said in evidence that on the basis of her interview with the offender in her opinion he has ADHD but further testing would be required to confirm the diagnosis. Ms Godbee was of the opinion that the offender presents as inherently prosocial, has insight into his mental health and need for intervention and is already engaged with counselling.

Treatment recommendations

109. Ms Godbee recommended that the offender continue to engage in drug and alcohol counselling to maintain his abstinence from drugs as well as individual psychological treatment to assist in managing his ADHD, anxiety and post-traumatic stress symptoms.

The evidence of the offender

110. The offender told the Court he is currently employed six days a week. He lives in Sydney with his cousin and partner, Ms Gottl. He has not used drugs since his release from custody, I note that was his evidence before he was cross examined. He said drugs have destroyed his life. He has attended counselling which he has found beneficial.

111. He remains in a relationship with the victim, Ms Gottl. She has some physical problems because of his offending behaviour. He provides assistance to her. He told the Court he had apologised to her multiple times. He said it “breaks his heart” to see her go through this every day and also his family. During the evidence I asked him why he was driving in the manner before the collision, he said he was “young and dumb, I’ve grown further than that now”. He told the Court he had taken drugs on the day, I note this was contrary to what he had told Ms Godbee during her assessment of him. He told the Court he had used MDMA at 7am before heading back to Sydney. He was at Toukley at that stage.

112. In relation to his future plans he said he just wants to get his life back. He wants to save for a house, go back to wakeboarding and also to work. He told the Court he has a very good relationship with his parents and his mother was in court, together with his partner, during the sentence proceedings. In cross examination he said he had taken MDMA the morning before he drove and driven from Toukley to the scene of the collision. In cross-examination he accepted that he had continued to use drugs after the collision until January 2021.

Other material tendered on behalf of the offender

113. Exhibit 2 was a report from Mr Hoang Diep. The report indicated that the offender had completed drug and alcohol relapse counselling. He had attended eight sessions between July and December 2021.

114. Exhibit 3 was a letter from Luca Andolfo from Simply Seated Events indicating the offender had commenced employment on a full time basis from 25 November 2021.

115. Exhibit 4 was a letter under the hand of Dr Melvyn Polon a consultant paediatrician indicating he had seen the offender when he was in Year 7 at school. After examining the offender at that age he stated as follows:

“My impression that he has some minor learning difficulties, this is causing him to feel discouraged. Making things worse he has some minor features of ADHD so he does not focus that well. I also think he is quite immature for his age. I think he needs some treatment to help him but I am reluctant, and his mother is very reluctant, to try him on any stimulant medications. We decided to try him on a small dose of catapres in the morning before school and at night to help him sleep.”

116. Ms Godbee during her evidence in the sentence proceedings indicated that catapres is a medication for treating ADHD.

Submissions of the parties

117. The Crown relied upon written submissions supplemented by further oral submissions. Mr Brasch on behalf of the offender also relied upon written submissions supplemented by further oral submissions. I have taken those submissions into account in determining the appropriate sentence.

118. Ultimately, Mr Brasch submitted that an Intensive Correction Order was appropriate having regard to the offender’s age, his full time employment, his supportive family, his current engagement with treatment and taking into account the period of pre-sentence custody which is approximately six months. Mr Brasch also submitted that the Court would find that ADHD played some role in the offending, warranting a reduction in his moral culpability, relying upon the evidence of Ms Godbee.

119. The Crown submitted that in circumstances where no formal diagnosis of ADHD has been made it would not warrant a reduction in his moral culpability, although it would remain relevant on sentence. The Crown further submitted that an Intensive Correction Order would not properly fulfil the purposes of sentencing having regard to the high moral culpability and the objective gravity of the offending. The Crown submitted that only a full time custodial sentence was appropriate.

The relevance of the offender’s mental health

120. The relevant principles in relation to the relevance of a person’s mental health on sentence are set out in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 where McClellan CJ summarised at [177] the position and principles in relation to an offender suffering from a mental health diagnosis as follows:

“Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry at [28].

It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 – 51; Israil at [22]; Pearson at [42]; Henry at [28].

It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].”

121. His Honour stressed at [178]:

“…that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence”.

122. Having regard to the evidence of Ms Godbee, I am satisfied that the offender suffers from symptoms of adult ADHD which would have had some contribution to his impulsivity at the time of the offending. I am satisfied that this reduces, to a limited extent, his moral culpability. Accordingly, I propose to moderate the otherwise appropriate sentence.

Remorse

123. Having regard to the evidence of the offender gave before me, I am satisfied that he is genuinely remorseful for his offending and has accepted full responsibility for it.

Prospects of rehabilitation

124. I am satisfied that the offender has good prospects of rehabilitation in circumstances where he has no previous criminal history, he has employment prospects, he has good family support and also is supported by his partner and he has engagement with treatment. I am further satisfied that he is unlikely to reoffend. I have no doubt that the consequences of his offending have had a very significant impact upon him.

COVID-19

125. Having regard to the COVID 19 pandemic, I am satisfied that custody is more onerous; most particularly there is likely to be recurring lockdowns and there is also restrictions on personal visits. I have taken those current custodial conditions into account in determining the appropriate sentence.

Determination of the sentence

126. In determining the appropriate sentence I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act.

127. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate pursuant to s 5(1), Crimes (Sentencing Procedure) Act.

128. I have had regard to the objective gravity of the offence, the relevant prescribed maximum penalty, the guideline judgment of R v Whyte and the offender’s subjective circumstances.

129. I am satisfied that the appropriate starting term for the sentence is three and a half years imprisonment. I have discounted it by 25% for the plea of guilty, leaving a total term of two years and seven months rounded. That term will be reduced by the offender’s time in custody, that is, 177 days. I note that an Intensive Correction Order is not available as a sentencing option because the sentence is greater than two years. Even if an Intensive Correction Order was available, having taken into account s 66, Crimes (Sentencing Procedure) Act, in my view the objective criminality is far too high for the sentence to be served by way of an Intensive Correction Order. I am satisfied that only a full time custodial sentence can reflect the need for punishment, to denounce the conduct, to make the offender accountable for his actions and to deter not only this offender but other road users.

Special circumstances

130. I am satisfied that special circumstances are established in circumstances where it is the offender’s first time in custody, and he will also be assisted by a longer period on parole to have additional supervision.

131. I propose to backdate the sentence by 177 days.

132. Mr Richardson, in relation to the offence of aggravated dangerous driving occasioning grievous bodily harm you are convicted.

133. I sentence you to a non-parole period of one year and three months to date from 5 August 2021 and expire on 4 November 2022. The total term is two years and seven months which will date from 5 August 2021 and expire on 4 March 2024. I direct your release to parole on 4 November 2022.

134. I order the automatic disqualification of three years in relation to the offence of aggravated dangerous driving occasioning grievous bodily harm.

135. In relation to the offence of drive whilst suspended on a 166 certificate you are convicted and pursuant to s 10A there is no further penalty. The disqualification for that offence will be six months.

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Decision last updated: 30 November 2022