R v Rigby

[2023] NSWDC 636

District Court

New South Wales

Medium Neutral Citation:

R v Rigby [2023] NSWDC 636

Date of orders:

13 November 2023

Decision date:

13 November 2023

Jurisdiction:

Criminal

Before:

Conlon SC ADCJ

Decision:

Sentenced to 30 months imprisonment to date from 13 September 2023 and to expire on 3 March 2026, with a non-parole period of 14 months to commence on 13 September 2023 and expire on 12 November 2024

Catchwords:

Aggravated dangerous driving occasioning grievous bodily harm

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Road Transport Act 2013

Category:

Sentence

Parties:

Rex (Crown)
Accused – Cecilia Gai Rigby

Representation:

DPP - Mr D Morters SC (counsel)
Accused - Mr B Cochrane (counsel)
Ms C Beesley (solicitor)

File Number(s):

2020/306487

Publication restriction:

Nil

JUDGMENT

1. The offender, Cecilia Rigby, appears for sentence following her guilty plea to a charge of aggravated dangerous driving occasioning grievous bodily harm, contrary to s 52(4) of the Crimes Act 1900, and carrying a maximum penalty of 11 years’ imprisonment.

2. I will come to the agreed statement of facts shortly, however, in brief, on 4 September 2020, the offender had driven from Nambucca Heads to Coffs Harbour, and around noon met up with friends at the Plantation Hotel. It was not until about 6pm that day that she left the hotel to commence her return journey. After about five kilometres she lost control of her vehicle, causing it to leave the southbound carriageway, crossing the grass median strip and coming into collision with the vehicle of Ms Lynette Jarvis, who was travelling northbound. Ms Jarvis was admitted to hospital with a number of injuries that constituted grievous bodily harm. However, there was a most unfortunate and tragic event that transpired.

3. Ms Jarvis passed away in hospital following the failure of treating medical staff to detect a small subdural haematoma, and also, what turned out to be the catastrophic administration of blood thinners. It has been accepted that she died as a result of gross negligence in her treatment. Ultimately, the Crown accepted expert evidence that sufficiently demonstrated the severance of any causal nexus. In other words, if appropriately treated, Ms Jarvis would not have passed away as a result of the injuries sustained in this collision, which included the small subdural haematoma.

4. Now, the principal reason for me making mention of this is owing to submissions to the Court by each Counsel in respect of the issue of delay. Mr Cochrane, Counsel for the Offender, referred to the DPP, “Fruitlessly pursuing a more serious charge,” even after the offender had offered to plea to the present charge on 24 June 2022. The Crown submitted that the, “Medical evidence was complex and, to some degree, ambiguous.” However, it was following the defence serving the expert evidence report of Dr Frellich, on the Crown on 17 April 2023, that the present plea was accepted by the Crown. It is accepted that the offender is therefore entitled to a 25% discount in accordance with s 25D of the Crimes (Sentencing Procedure) Act 1999.

5. At the outset of his written submissions, Mr Cochrane stated that the sad passing of Ms Jarvis must be set to one side in respect of the present sentencing exercise. Of course, whilst I accept that submission, it would be wrong to not acknowledge the loss of Ms Jarvis to her family and friends in these most tragic circumstances. The Crown bundle of documents, exhibit A, contains a statement of agreed facts, and they are as follows.

6. On Friday, 4 September 2020, at around about noon - as I have already indicated - the offender met with some friends at the Plantation Hotel at Coffs Harbour. There she consumed a quantity of red wine. She left the hotel unaccompanied at about 6pm, entered her motor vehicle, and began to drive to her residence in Nambucca Heads, a distance of about 50 kilometres. The facts revealed that the sun had set about 5.40pm, but that the visibility was good.

7. At around about 6pm, Ms Elizabeth Keen was driving her vehicle in a southerly direction in the kerbside lane on the Pacific Highway at Coffs Harbour. That southbound carriageway is comprised of two lanes and is separated by a grass median strip from the northbound lanes. The applicable speed limit was 100 kilometres an hour. The northbound carriageway is comprised of two lanes as well, and that also has a speed limit of 100 kilometres an hour, slowing to 60 as it approached Coffs Harbour.

8. There was a second vehicle travelling southbound behind Ms Keen’s vehicle. They were both travelling at around about 90 kilometres an hour. The offender passed the second vehicle, and moved into the kerbside lane between the second vehicle and Ms Keen’s vehicle. The offender’s vehicle began to swerve from left to right and crossed over the left fog line. The offender next attempted to overtake Keen’s vehicle by moving into the centre lane. In the process, the front passenger side of the offender’s vehicle made contact with the rear driver’s side of Keen’s vehicle, causing Keen to lose control of her vehicle. Keen’s vehicle then spun across the centre southbound lane and came to rest on the grass median strip.

9. The offender’s motor vehicle also began to spin out of control, and it moved across the centre lane and through the grass median strip. At that time, Lynette Jarvis was travelling northbound at a speed of about 70 kilometres an hour, when the offender’s motor vehicle crossed into her path. Jarvis tried to swerve but could not avoid colliding with the offender’s motor vehicle. Following the collision, Jarvis extricated herself from the vehicle. She remained conscious, but was conveyed to hospital by ambulance.

10. The whole front of her motor vehicle was caved in, and the airbags deployed. That motor vehicle was subsequently written off. Ms Jarvis sustained a shallow sternum fracture, a fracture to the L3 vertebrae, a fracture of a second rib, a thoracic trauma and various bruises and lacerations, including a small subdural haematoma. As I have already indicated, those injuries constituted grievous bodily harm.

11. The offender herself was then conveyed to hospital. The whole front of her motor vehicle was caved in, and the whole near side had scrapes and dents, and the rear bumper had fallen off. That motor vehicle was also written off. The offender sustained a fractured neck, and a broken left wrist which required surgery. She had bruises and scrapes on her body. Blood was collected at 7.30pm, and the subsequent analysis indicated a reading of .208.

12. On Monday 26 October 2020, the offender attended the Coffs Harbour Police Station and participated in an electronically recorded interview. During the interview, she said she could not remember the collision. She recalled arriving at the Plantation Hotel, but no recollection of events after that. She was arrested, charged and remanded in custody. She was subsequently granted bail on 15 December 2020.

OBJECTIVE SERIOUSNESS

13. As indicated in the facts, the offender had consumed alcohol over a significant period, somewhere in the vicinity of six hours, before she re-entered her vehicle for her intended return trip of some 50 kilometres to her residence in Nambucca Heads. Clearly, her manner of driving was affected by her high level of intoxication. She was swerving from left to right, and crossed over the fog line, and that was in attempting to overtake the vehicle in front of her, which was Ms Keen’s vehicle. The front passenger side of her car contacted the rear driver’s side of Keen’s car, causing Ms Keen to lose control over her vehicle before coming to rest on that grass median strip.

14. At this time, the offender had lost total control of her vehicle as it spun across the centre lane, through the grass median strip dividing the southbound and northbound carriageways, and then into the path of Ms Jarvis, who tried to swerve but could not avoid the collision. A submission was made that the collision occurred about, “Five kilometres or ten minutes after,” the start of her return journey. That submission was made in the context of, “The number of people put at risk.”

15. However, in my view, every person using this busy highway at that time of the early evening, whether southbound or northbound, was at grave risk of injury owing to the offender’s high level of intoxication. The fact that she was incapable of controlling her vehicle, having negotiated only ten minutes of the return trip, simply highlights the degree of risk to which other users of the road were subjected.

16. It was submitted that the injuries sustained by Ms Jarvis were “Right at the bottom of the range for grievous bodily harm.” However, the variety of injuries included fractures to the sternum, vertebrae and rib. She suffered the thoracic trauma, lacerations and bruising to her brain. Surgical intervention was required. So whilst I can accept that the nature of the injuries do not reach the high or catastrophic level so often seen in dangerous driving cases, I do not accept that they are right at the bottom end of the range.

17. My examination of these facts has led me to a conclusion that the offender at the time of this dangerous driving, with her high level of intoxication, had abandoned her responsibility to other users of the road and, therefore, her moral culpability was high. The objective gravity of her criminal culpability falls, at least, in about the mid-range for offences of its type.

SUBJECTIVE CIRCUMSTANCES

18. The offender is now 59 years of age. She will be 60 in December. She has prior convictions for low-range PCA in 1990, high-range PCA in 1995 and a penalty notice for low-range PCA in 2019. Within the defence bundle of documents, exhibit 1 is a report dated 31 July 2023 of psychologist Thea Gumbert. The following background material is contained within that report.

19. She was raised in Macksville, the sixth of eight children. She described a, “Great upbringing with a close loving family, and strong ties to the local community, as her father was the postmaster.” Her family relocated to Singleton when she was in primary school. She reported a normal academic progression and completed year 10. Thereafter, the family returned to the Macksville area, where she obtained work in retail and hospitality. In her early twenties she worked as a bartender in Macksville, and completed a TAFE business course.

20. At age 22, she moved out of the family home to live with her first serious boyfriend. She was the victim of physical abuse, and on one occasion was sexually assaulted. The matter was reported to police, but the perpetrator was not charged. She then left the relationship, and she moved to Newcastle in (1985). She gained employment as a waitress at the Workers Club, and then in fashion retail. She moved to Sydney in the mid-1990s, working as a shop assistant at David Jones, and then also in hospitality.

21. In 1995, she began a de facto relationship with the father of her two children. Once again, she became the victim of continued physical abuse. She eventually left the relationship and returned to Macksville with her two children. However, during access visits, her former partner continued to be abusive towards her, resulting in police involvement and an apprehended domestic violence order put in place for her protection. She reported that over approximately the last six years, she had reduced contact with her former partner and that he had ceased assaulting her.

22. Her most recent employment has been as a full-time carer. She has cared for her current client for five years, performing about 40 hours a week, including home maintenance, meal preparation and transportation. She denied having ever used any illicit drugs or medications other than as prescribed. She also denied any history of significant alcohol-related problems or dependence, but also reported that she used alcohol as a means to self-medicate the stress at various times in her life, and that this has been associated with problems such as the drink-driving charges. However, the psychologist noted that,

“She, again, had difficulty reporting how much she was drinking, but stated she would have a glass of wine several times during the week, and then binge-drink on weekends.”

23. The offender stated that she has not consumed alcohol since the offence and did not believe she would ever do so again.

24. As I have already outlined, the offender herself sustained injuries in the collision. These included several fractured cervical vertebrae and a severely broken wrist. This resulted in two surgeries in which screws were placed in both her neck and her wrist. Following her release from hospital, she was remanded in custody, that is, from 26 October until 7 December 2020, when she was released to bail. That seems to be a period of six weeks. At the time of the psychologist’s assessment, she reported ongoing pain with limited mobility in her neck and wrist. She was no longer on opioid medication, but was prescribed meloxicam for neck pain.

25. In respect of the index offence, she informed the psychologist that on the day preceding the offence, she experienced a distressing incident which may have impacted her mindset and behaviour. She said that on 3 September 2020, she encountered her former partner, who had sexually assaulted her in 1985, and whom she had not seen since that time. She said he approached her at a service station, and when she recognised him, she tried to walk away. She reported that he said words to the effect, “your kids are lucky they’ve still got a mum,” which she said she interpreted as a veiled threat.

26. On the date of the offence, she indicated that following this altercation with the former partner, she had intended on meeting her friends on the following day, being 4 September, at Coffs Harbour, and she said that she hoped that this would be “therapeutic” for her, given her distressed state. She said she could recall arriving at the Plantation Hotel for lunch, but could not recall anything after that, until she woke up in hospital.

27. She recalled telling hospital staff that she could not have been driving at the time of the accident, as she had intended to be home at 3pm, when her son would be home from school. She recalled being unable to understand why she had consumed alcohol, and then driven her car, “because I normally wouldn’t have done that... if ever I went out, I would get a taxi.” When she was still in hospital, she was informed that the other driver had passed away. She informed the psychologist that she felt unable to process it, had an anxiety attack and required sedation. She said, “I couldn’t stop crying for a month,” and that she was diagnosed with post-traumatic stress disorder (PTSD) by a hospital psychiatrist or psychologist.

28. In early 2021, she began seeing her treating psychologist, Ms Melanie McKenna. Treatment sessions focused on managing symptoms of trauma, depression and guilt around the index offence, and also coping with stress and anxiety around the current proceedings. The psychologist stated, “she also reported chronic guilt about the accident, with cognitions that she shouldn’t be alive,” when Ms Jarvis had died. She had thoughts of suicide by overdose, but denied acting on them, and was able to guarantee her safety, citing her children as “protective.”

29. In June 2022, the offender herself was diagnosed with breast cancer, and has since undergone treatment including surgery, chemotherapy and radiotherapy. In July 2023, she returned to treatment with psychologist Melanie McKenna, and that treatment is ongoing. Ms Gumbert noted that the offender,

“expressed feelings of guilt and remorse about the death of Ms Jarvis, and the belief that her cancer diagnosis was a direct punishment from God for the same.”

30. She said that Ms Jarvis’ death had, “a domino effect on other people’s lives,” including both Ms Jarvis’ family and her own children. She said, “my kids suffered a lot. I suffered a lot, from knowing that I’d caused such a horrific accident, and that someone had died.”

31. The offender has been under the care of Melanie McKenna since March 2021. In Ms McKenna’s letter, dated 22 July 2023, she stated that

“The offender developed symptoms of depressed mood, a persistent sense of guilt and sadness since the incident, which interferes with her ability to sleep, and her capacity of daily functioning... she became totally avoidant, and has lost friendships since the incident.”

32. In a telephone consultation on 19 July 2023, Ms McKenna noted that the offender’s mood remained depressed, and with a deep sense of guilt and remorse for her actions, and the family members of both sides who have been impacted. Ms McKenna said she is having difficulties sleeping, and is highly anxious about the well-being of her teenage son if she is to receive a custodial sentence. Her son is now 18, and has just concluded his high school certificate exams.

33. In the offender’s affidavit dated 24 August 2023, she confirmed the accuracy of the background material provided to the psychologist Thea Gumbert. The Court has no difficulty accepting the genuineness of her expressions of remorse and regret to the psychologist, and also as set out in her affidavit. She referred to her time in custody during COVID, where she was confined to a single cell for two weeks. She indicated to nurses that she had been in an accident and needed medication for pain. She said all they had was Panadol and Nurofen. She was unable to have visits, as a result of COVID, and once released to bail on 7 December 2023, she started drug and alcohol counselling in Nambucca Heads.

34. Following her cancer diagnosis in July 2022, as I already indicated, she underwent chemotherapy for six months, followed by radiation. She was then prescribed Herceptin, which is an antibody given intravenously every three weeks. Her last dose was on 15 August 2023. Her latest scans have been clear. She is obviously very concerned about her 18 year old son. She said he has a caseworker from Lifetime Connect. “They have indicated that her son needs to be approved by community housing, to stay in the house if something happens to her.” Owing to the fact that her daughter is not living at home, it is apparently against policy to have one young adult in a three bedroom house. Negotiations have been continuing in respect of that issue.

35. Her affidavit concluded this way:

“I definitely know that I deserve punishment for what I did... especially knowing that I have caused somebody to be injured, and they have succumbed to death. It’s just unthinkable, to think I have caused such horrific damage on people’s lives.”

36. She continued,

“I can’t imagine how the other family are feeling. I certainly know it will never leave me until the day I die. I don’t know how you can say sorry, how you can apologise, but certainly I am, from the very bottom of my heart, I’m completely sorry...”

37. Jamison Rigby is the offender’s 20-year-old daughter. In her affidavit, dated 24 August 2023, she confirmed the physical, mental and emotional abuse suffered by her mother at the hands of her father, with whom she now has no relationship. Ms Jamison was only 17 when her mother went into custody, and she was working in a bakery to help pay the rent and keep the house. She said that she had to grow up very quickly. She indicated that they have an uncle who lives close by, and that she also had a supportive partner. Referring to her mother, she said that she was heartbroken and regrets it very much. She said,

“I would like the Court to know that my mum is a lovely person... she would do anything for anyone. She is always looking out for everybody, always helping everyone. She is the strongest woman I know, hands down.”

38. The offender’s 18 year old son, Declan, his affidavit being 24 August 2023, stated, “My mum is very remorseful. It is definitely on her mind every day.” He said that when she got out of prison,

“she was crying, and she couldn’t understand the feeling of being the cause of someone losing their life. It was very, very hard. She has said to me that she deeply regrets it.”

39. He also said,

“My mum is a really caring and thoughtful person... she takes on other people’s problems. Sometimes she doesn’t care for herself because she is caring for others...”

40. The reference/testimonial material, being that at index 10, 11 and 12 of exhibit 1, provides further confirmation that the offender is indeed a person of prior good character. She has worked hard as a single mother to provide for, and bring up, her two children. My consideration of all the subjective material leads to a conclusion that she has excellent prospects of rehabilitation, and is unlikely to re-offend.

41. Melanie Bradfield, a solicitor with Legal Aid NSW, has advised (letter 24 August 2023) that Community Housing Ltd, being the major social housing provider in Coffs Harbour, has agreed that the offender’s son can continue to live in the property if the offender is incarcerated, on the condition that his older sister moves in and takes over the tenancy. This would require the offender to relinquish her tenancy. There would also be no guarantee that the offender would be approved to move back into the premises, when able.

42. I have considered these submissions made on behalf of the offender, in respect of “hardship” to third parties. I am not satisfied that the hardship identified in these submissions falls into the category of being “wholly exceptional.”

43. I have taken into account the various purposes of sentencing, set out in s 3A of the Crimes (Sentencing Procedure) Act. In the present sentencing exercise, deterrence, both specific and general, are significant factors. When dealing with the objective gravity of offender’s conduct, I was of the view that she had abandoned her responsibility to other users of the road, and the facts demonstrated a high level of moral culpability.

44. In those circumstances, what is required is the imposition of a sentence of imprisonment, beyond that which would allow for the imposition of an intensive correction order. I have had regard to the comparative cases and statistics referred to me by both Counsel, however they have been of only limited assistance. Clearly, the offender’s breast cancer diagnosis and treatment over a 12-month period has taken a huge toll, both physically and emotionally, on her. No doubt, she will continue to have considerable anxiety over her future well-being whilst in custody. That is completely understandable. In the circumstances, I am satisfied that that is sufficient reason to make a finding of special circumstances and to vary the statutory ratio.

45. As earlier indicated, the offender spent six weeks in custody from 26 October to 7 December 2020. That, no doubt, was a very difficult period of incarceration, as it was during the COVID lockdowns. In the ultimate exercise of sentencing discretion, I have determined to backdate the commencement of the sentence I am about to pronounce, to 13 September 2023.

46. So Ms Rigby, having been convicted of this offence, I sentence you to 30 months imprisonment, which is two years and six months, to date from 13 September 2023, and to expire on 12 March 2026. I sentence you to a non-parole period of 14 months, that is to commence on the 13 September 2023, and it expires on 12 November 2024. I do recommend to the authorities who are responsible for classification of Ms Rigby, that they might consider her going to a minimum security facility. An urgent classification would be appreciated by the Court.

47. The one remaining matter is in relation to the question of disqualification. Counsel addressed me in relation to that. In respect of the present offence and having regard to the low range prescribed concentration of alcohol offence on 3 November 2019, section 205(3)(d)(i) provides for an automatic disqualification of five years. The offender’s licence was suspended, as on, and from, the date of the offence, being 4 September 2020. Section 205(3)(d)(ii) provides the Court with a discretion to impose a greater, or lesser, period of disqualification. Accordingly, the disqualification will be for one of four years, and that will expire on 3 September 2024.

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Decision last updated: 20 May 2024