R v Smith
[2019] ACTSC 65
•19 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Smith |
Citation: | [2019] ACTSC 65 |
Hearing Dates: | 10 December 2018; 22 February 2019 |
DecisionDate: | 19 March 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [91]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – culpable driving causing death – culpable driving involving negligence – unlicensed driver – using an uninsured motor vehicle – using an unregistered registrable vehicle – seatbelt not properly adjusted and fastened – drug driving – not giving assistance after accident causing death – pleas of guilty |
Legislation Cited: | Australian Road Rules r 264 Crimes Act 1900 (ACT) s 29 Road Transport (Vehicle Registration) Act 1999 (ACT) s 18 |
Cases Cited: | Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 Butters v R [2010] NSWCCA 1 |
Parties: | The Queen (Crown) Angela Lea Smith (Offender) |
Representation: | Counsel Ms R Christensen (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Daryl Perkins Solicitors (Offender) | |
File Numbers: | SCC 74 of 2018; SCC 75 of 2018; SCC 76 of 2018 |
Loukas-Karlsson J
Introduction
On 25 September 2018, Ms Angela Lea Smith (the offender) pleaded guilty to an offence of causing death by the culpable driving of a motor vehicle, namely, by driving negligently, contrary to s 29(2) of the Crimes Act 1900 (ACT) (the Crimes Act).
The maximum penalty for that offence is 14 years of imprisonment.
Also before me are a number of transferred summary charges that the offender has pleaded guilty to and is to be sentenced for. They are as follows:
| Charge Number | Date of Plea of Guilty | Offence | Maximum Penalty |
| CC2018/1793 | 26 February 2018 | Unlicensed Driver (s 31(1) Road Transport (Driver Licensing) Act 1999 (ACT)) | A fine of $3000 |
| CC2018/1796 | 26 February 2018 | Use uninsured Motor Vehicle (s 17(1) Road Transport (Third-Party Insurance) Act 2008 (ACT)) | A fine of $7500 |
| CC2018/1797 | 26 February 2018 | Use an unregistered registrable vehicle (s 18(1) Road Transport (Vehicle Registration) Act 1999 (ACT)) | A fine of $3000 |
| CC2018/1798 | 26 February 2018 | Seatbelt not properly adjusted and fastened (Rule 264(1) Australian Road Rules) | A fine of $3000 |
| CC2018/1794 | 10 December 2018 | Drug Driving (s 20(1) Road Transport (Alcohol and Drugs) Act 1977 (ACT)) | A fine of $1500 (automatic disqualification of 3 years, minimum disqualification of 6 months) |
| CC2018/1799 | 10 December 2018 | Not giving assistance after accident causing death (s 16 Road Transport (Safety and Traffic Management) Act 1999 (ACT)) | Imprisonment for 2 years, a fine of $3000, or both. |
Facts
The facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle.
In short summary, at approximately 6:04pm on 2 January 2018, the offender was the driver of a white BMW 323i sedan, which she drove at excessive speed and lost control of. This caused the vehicle to roll a number of times over a dual carriageway. A passenger of the vehicle, 24 year old Mr Jozef Stefaniak (the deceased victim), was ejected from the BMW and died as result of a severe head injury sustained in the crash.
Immediately prior to the offender losing control, the BMW had been travelling at, according to the statement of facts, no less than 126 kph, based on the AFP Collision Investigation and prosecution expert. I note that pursuant to the defence expert’s report, the speed was 113 kph. The speed limit was 80 kph. Counsel for the offender accepts that whether 126 or 113 kph, the driving was negligent. The BMW was unregistered and not covered by compulsory third party insurance. The offender was unlicensed and not wearing a seatbelt. Immediately after the BMW stopped, the offender fled from the scene. The offender later returned a positive result for methylamphetamine.
Victim Impact Statement
In evidence before me were two Victim Impact Statements from the victim’s family. The Victim Impact Statements were read in Court at the sentence hearing on 10 December 2018.
The first Victim Impact Statement was read in Court by Mr Bill Stefaniak, the father of the victim, and included family photos of the victim. His statement included the following:
No parent expects to have to bury their child…my son Joe died because of the criminal behaviour of a so called friend who, along with her then partner (another so called mate) bolted from the scene of the accident leaving Joe dead and alone on Yarra Glen.
…
He will never be there, as he was so often, what with me working in Sydney, for his mother each day, helping her in so many ways and making her laugh at his quirky sense of humour.
The second Victim Impact Statement was read in Court by Mr John Lane, the victim’s brother, including the following:
…unfortunately it was me who took the call from the police…informing Joe had been killed in a motor accident…The morning I had to tell my parents that their son had been killed haunts me most nights. The pain in telling them will stay with me forever.
10. The profound impact on the victim’s family of the tragedy of his death was made clear by the Victim Impact Statements. The reading of the Victim Impact Statements is important as the offender heard what the victim’s family had to say of their loss of a loved one. It is valuable for the Court to hear the words of the victim’s family.
Objective Seriousness
11. The indictment particularises the culpability by reference to negligence. Section 29(7) of the Crimes Act 1900 (ACT) provides as follows:
(7) For this section, a person shall be taken to drive a motor vehicle negligently if the person fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case.
12. Counsel for the offender submitted that the speed the motor vehicle was driven at satisfied the meaning of negligently pursuant to s 29(7) of the Crimes Act 1900.
13. The prosecution submitted that on any opinion of the offender’s speed prior to the vehicle losing control, the vehicle was being driven at an extremely high speed in the circumstances, at least 34 kph and up to 46 kph over the speed limit of 80 kph.
14. The prosecution submitted that the calculation of objective seriousness relates to the offender’s conduct behind the wheel, and that it is not necessary for the Court to reach a concluded view as to whether the victim was wearing a seatbelt, or whether the offender had knowledge of the victim’s use of the seatbelt. Ultimately, the prosecution submitted that the driving by the offender was objectively serious and involving a “high level of moral culpability by the offender”.
15. In Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 (Monfries), Murrell CJ, Burns J and Ross J, in separate judgments, considered the guideline judgments of the New South Wales Court of Criminal Appeal for the comparable New South Wales offences of aggravated dangerous driving causing death and aggravated driving causing grievous bodily harm in R v Whyte [2002] NSWCCA 343; 134 A Crim R 53 (Whyte) and for dangerous driving simpliciter in R v Jurisic [1998] NSWSC 423; 45 NSWLR 209 (Jurisic). Their honours each concluded that the factors of aggravation identified in Whyte and Jurisic may be relevant to courts in this jurisdiction: Murrell CJ at [89]; Burns J at [125]-[133]; Ross J at [196]-[199]. As Ross J pointed out at [197], such guidelines are “to be indicative only and are not intended to be applied to every case as if they were rules binding sentencing judges”.
16. In Jurisic, Spigelman CJ identified the following aggravating factors to such offences at 216:
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 or aggressive 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; and
xi) failing to stop.
17.In this case, I consider that a number of these aggravating factors are applicable. The injury inflicted on the victim was fatal. In addition to the offender and the victim, there was a third person in the car during the offence. The vehicle was driven at a speed well above the speed limit. I have taken these into account as aggravating factors when considering the objective seriousness of the offending. I note that the drug driving is charged separately and I will deal with that charge separately. The basis put forward by the prosecution for the culpable driving charge was the speed.
18. It must be stated that references to low, mid-range and high range are unlikely to be helpful in this jurisdiction. As has previously been expressed in this jurisdiction, it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of the case: R v Toumo’ua [2017] ACTCA 9; 265 A Crim R 499 (Toumo’ua). I have set out the features which inform the objective seriousness above.
19. This was self-evidently a very serious offence having regard to the facts, circumstances and nature of the offence as outlined in the agreed facts.
Leaving the Scene
20. The Statement of Facts outlines the evidence as to the immediate actions by the offender to the act. The prosecution accepted that there is no direct evidence that the offender had knowledge of the physical condition of the victim when the offender left the scene. However, the evidence is clear that the offender made no attempts to ascertain the welfare of the victim immediately after she was able to exit the vehicle and the offender left the scene. Leaving the scene in this way was callous in the circumstances of this case.
Subjective Circumstances
21. In evidence before me is the Pre-Sentence Report (PSR) prepared for the offender.
22. The offender is a 34 year old woman born in Gloucester, NSW, and is one of four siblings born to her parents union. The offender left the family home aged 16. The offender reported a mostly positive childhood but advised of up and down relationships with some family members over the years.
23. The offender is the mother to 8 children aged between 2 and 16 years old. Her four youngest children are together in one foster care placement. The offender has seen the children in a supervised visit. The offender is currently in Family Court proceedings in relation to Child and Youth Protection Services seeking an “18 year order” in relation to her eldest daughter. Care and Protection orders are time limited and usually last for one year, two years, or until a child is 18 years of age. The offender is in regular contact with her eldest daughter. The offender’s three remaining sons live with their father, and the offender has not had contact with them for several years.
24. The author of the PSR stated that:
Ms Smith reported [that] upon her return to the community she planned on continuing to address her drug dependency issues so she can get more access to her children.
25. The offender was residing in ACT Housing property prior to being remanded. The offender plans to return to this address upon release. The offender reported that she had a debt with ACT Housing that she was currently repaying.
26. The offender left the formal education system at the end of year 10. She has had limited employment as a cleaner and as a cashier. She has completed a number of certificates whilst in the Alexander Maconochie Centre (AMC), and reported plans to work in the hairdressing and beauty industry upon release. At the present, she is employed in the bakery at AMC.
27. The offender acknowledged that the majority of her associates and friends were involved in criminal activity and drug use, which had influenced her negative choices in the past.
28. The offender denied any past issues with alcohol. The offender began smoking cannabis at age 15, and continued to smoke until remanded in custody at the beginning of 2018. She further reported first using methylamphetamine in 2008, which escalated to smoking the substance on a daily basis. She ceased drug use between 2009 and 2015, but relapsed when her children were removed from her care. The offender’s drug use escalated to smoking “one or two points per day”. The offender has denied any drug use since being in custody.
29. The offender reported a previous history of depression, and had been prescribed anti-depressants in the past. The offender described her current mental health status as stable.
30. The offender was physically injured in the motor vehicle accident that is the subject of the offences before me. The offender was admitted to Canberra Hospital on 2 January 2018 and was discharged on 4 January 2018. Her primary diagnosis was as follows:
Trauma – MVA
-T 3-6 anterior superior endplate fractures with <10% loss of height
-Hairline L sacral fracture;
31. Counsel for the offender submitted that the Court can consider this to be a “limited injury” to the offender. The PSR notes that the offender continues to experience recurring pain as a result of her injuries to her pelvis and her back.
32. The PSR concludes with the following opinion:
Ms Smith is a 34 year old woman with a limited criminal history. Her history of illicit substance use has resulted in both law violations and her children being removed from her custody. She appears to have stable accommodation upon her release and the support of her family.
To her credit, Ms Smith has taken responsibility for her offending behaviour and expressed victim empathy. She has engaged in numerous programs whilst in custody and has a detailed release plan in place.
Ms Smith has been assessed as a medium risk of general reoffending. If Ms Smith is to address her identified risk areas she would need to engage in interventions in relation to her drug use, mental health, anti-social peers and unemployment.
33. Also before me is the offender’s release plan, which was tendered by her counsel.
Remorse
34. The PSR notes that the offender was remorseful for the offences.
35. The prosecution submitted that the offender’s immediate, short-term and longer-term actions and responses to the offence demonstrated “limited” insight and remorse for the offence.
36. The prosecution submitted that the offender made no attempts to ascertain the welfare of the occupants of her vehicle after she was able to exit the vehicle, and instead fled the scene. The offender also took no positive steps to address the situation when the vehicle’s other passenger was arrested after the offences as the alleged offender.
37. The prosecution submitted that a public Facebook post by the offender made nine days after the accident that “attempted to shift the blame towards [the victim] for his death”, demonstrates the offender’s failure to recognise her role in the offence, as well as limited insight into the impact of her offending. Counsel for the offender submitted that the offender does not recall the creation of the Facebook post, but did not object to its tender, and accepts that it was written by her.
38. The prosecution further noted that the offender did not admit or take any positive steps to express contrition, remorse or insight until admitting to being the driver of the vehicle under cross-examination in a bail application at the ACT Supreme Court on 2 May 2018. A plea of not guilty was maintained for some time after this.
39. Counsel for the offender submitted that the plea of guilty, along with the matters that the offender has undertaken whilst in custody at the AMC, speak to her remorse for the offences.
40. The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v R [2010] NSWCCA 1 (Butters) at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ; Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 at [44]; Mun v R [2015] NSWCCA 234 (Mun) at [36] ; R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters at [18]; Mun at [37]; Van Zwam v R [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with Imbornone v R [2017] NSWCCA 144 and R v Harrison [2002] NSWCCA 79; 121 A Crim R 380, where the sentencing judge, in each case, was not in error in rejecting the offender’s self-serving untested statements as evidence of remorse. In accordance with the authorities, I do not ascribe significant weight to the remorse expressed.
References
41. In evidence before me were two references in support of the offender.
42. The first, under the hand of Reverend Peta Thorpe, chaplain at the AMC, dated 9 December 2018, includes the following:
Seasons for Growth is a demanding program. It requires a level of honesty and self-reflection and takes courage to complete. It also demands a level of commitment. The program runs over four weeks, with a two hour session each week. Not all manage to complete the course.
Angela was a committed hardworking participant in Seasons. She attended all sessions and completed home work. Angela expresses a deep desire to make changes in her life and I wish her every success in the future.
43. The second, under the hand of Ms Eileen Smith, the offender’s mother, includes the following:
Angela and I talk about personal things and any problems she is having so I am well aware of the charges she is about to face and the ones she has already faced. I also know she feels remorse for what she has done due to her changing her plea, as to give the young [man’s] parent’s closure so they can move past this. I know some of the contributors to her lifestyle is the impact of bad friendships and relationships, as well as the strain and impact of having her children taken into care and how C.P.S has treated her even after a clean hair follicle test. The impact of all this has caused her to make some wrong decisions.
Looking forward to the future though she wants to move out away from her old friends so she can start [anew]. She wants to keep up with rehab once she is released. When and if she gets her children back she wants to move up here closer to family which I would love to see. Get her licence and generally start a fresh.
44. The offender’s mother later wrote additionally in support of the offender the following:
I am Eileen Smith, Angela Smith’s Mother and I would like to let the court know that I am willing to have Angela come up and live with me until such time as she feels she no longer needs to as I feel it would allow her to make a break from her old life and start a new I have discussed this with Angela and she would be happy to come up here with me as she wants to make a break and start a fresh too and because I am up near the Queensland [border] at a town named Urbenville near Tenterfield and Casino I thought it would be a good chance for her to do that and she agreed I also think it would allow her to come to terms with everything.
45. The following additional material was before me:
(a) A letter from CatholicCare;
(b) A letter from Canberra Community Law;
(c) A support letter from a registered psychologist at Winnunga Nimmitjyah Aboriginal Health and Community Services;
(d) A detainee statement of employment form from the AMC; and
(e) A letter from an infringement plan officer at the ACT Government.
46. I take these references and letters into account on sentence.
Certificates and Rehabilitation
47. Also in evidence before me are a significant number of certificates that have been presented to the offender whilst in custody. The certificates include certificates for drug courses, counselling, and courses that will be of assistance in obtaining employment when she is released.
48. Counsel for the offender submitted that these certificates indicate that the offender has credibility and has good prospects of rehabilitation. Counsel submitted that they indicate “that the prisoner is a very different person to the person who committed the offences that she is to be sentenced for”.
49. Counsel for the offender further submitted that the offender’s completion of work courses at the AMC has allowed her to pay money owed in respect of a number of infringements. Counsel submitted that this indicated that the offender is now taking responsibility for her life in order to be in a better financial position when she is released.
50. Counsel for the offender ultimately submitted that the concerns expressed by the author of the PSR regarding identified criminogenic risks, including drug use, mental health, unemployment and anti-social peers, were being addressed by the offender in the supported environment of the AMC. Counsel submitted that the offender has done what she can whilst in custody to “try and set her up so that when she does come out of custody into the community, she has some support mechanisms…to give her tools to move forward”.
51. The prosecution accepted that the offender has demonstrated a level of rehabilitation, but submitted that the offender’s capacity to achieve long term rehabilitation in the community has not yet been demonstrated.
52. Having assessed the evidence, in my view there are some prospects for rehabilitation, in light of the work and programs undertaken in custody. It remains, of course, to be seen whether these prospects for rehabilitation are realised in the world outside custody.
Criminal and Traffic History
53. Counsel for the offender submitted that the offender has a criminal history. In NSW in 2004, when the offender was 19, she was dealt with in the Local Court for three motoring offences which are similar to three of the transferred matters before this Court, including driving unlicensed, using an unregistered vehicle and using an uninsured vehicle. Counsel for the offender further submitted that:
In the ACT she has been dealt with in the Magistrates Court for a number of matters which were committed between October 2016 and November 2017. A number of those matters are similar to the transferred matters before this Court.
54. The offender therefore has a history of traffic related offences.
Driver Licencing Details
55. The offender was first issued with a NSW Learner Licence on 24 October 2012. Since that time, she has only ever held a Learner Licence.
56. The offender’s Learner Licence was suspended from 16 March 2017 until 15 June 2017 due to accumulation of demerit points for speeding offences.
57. The offender’s Learner Licence expired on 24 October 2017.
58. The prosecution submitted that the offender’s history reduces the leniency that can be afforded, and submitted that it demonstrates a disregard for traffic and licencing laws.
59. I take the traffic record into account on sentence.
Plea of Guilty
60. The offender entered pleas of guilty to the culpable driving offence on 25 September 2018, after the matter had been listed for trial. The trial was listed to commence on 15 October.
61. The prosecution submitted that plea should not be regarded as early, as it was entered after the matter was listed for trial and in circumstances where the prosecution case was strong, where all witnesses had been served subpoenas, where civilian witnesses had attended pre-trial proofings, and where “a not insignificant amount of prosecution resources had been directed towards a trial prosecution”.
62. Counsel for the offender conceded that the plea was a late plea, but that it nonetheless had a utilitarian value. The prosecution agreed that the plea had an element of utilitarian value, though the value is significantly reduced by the late stage at which the plea of guilty was indicated.
63. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.
64. The ACT Court of Appeal in Cranfield v The Queen [2018] ACTCA 3 stated the following at [37]-[38]:
37. The discount is a question of discretion. This Court has, however, generally applied predictable discounts in different circumstances. This was said by Murrell CJ in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [47]:
The bare fact of a plea of guilty entered in the Supreme Court will usually attract a s 35 discount of 10–15%. A common sense approach to “utilitarian value”, the case law and the terms of s 35(2)(b) and s 35(5) of the Sentencing Act all support the importance of the timing of a plea to the assessment of an appropriate discount. A last-minute plea commonly attracts a discount of 10%. A plea entered (or firmly indicated) after committal and before a trial date has been set will usually result in a discount of more than 10% and, commonly, leads to a discount of 15%. Occasionally, a plea in the Supreme Court attracts a higher discount; it is always a matter in the discretion of the sentencing judge.
38. The context and terms of s 35 (2) of the Crimes (Sentencing) Act 2005 (ACT) support the proposition that the primary policy consideration that determines the degree of discount for a plea of guilty is the utilitarian value of the plea, which will be largely determined by the timing of the plea. If offenders are to have the incentive to enter a plea of guilty, carrying with it all of the benefits that flow to victims, witnesses and court resources, they should have a reasonable expectation that a plea will be productive of a meaningful reduction in their sentence. However, a ‘normal’ discount may be inappropriate having regard to the other considerations in s 35 (2) or other circumstances, including those identified by Howie J in Borkowski.
65. It was not what, as has come to be known as a ‘last minute plea’, in the sense of being on the first day of time set aside for trial. Such a plea would normally attract a 10% discount. The plea of guilty was approximately three weeks prior to the trial date. In my discretion, in accordance with the authorities, I propose to allow a discount of 15% for the pleas of guilty.
Time in Custody
66. The offender was remanded in custody in relation to these offences on 25 January 2018. As at 19 March 2019, the offender has spent 419 days in custody referable to these offences.
Cases
67. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
68. I was referred to the cases of Monfries, R v Richardson [2016] ACTSC 133 (Richardson) and R v Wolter (No 3) [2015] ACTSC 321 (Wolter (No 3)) by the prosecution. Additionally, counsel for the offender referred to R v Kekalainen [2014] ACTSC 132 (Kekalainen) and R v Creighton [2011] ACTCA 13 (Creighton).
69. In Monfries, the offender appealed against sentences imposed after pleas of guilty to an offence of culpable driving causing death, an offence of culpable driving causing grievous bodily harm, and an offence of taking a motor vehicle without consent. The offender was also resentenced for an unrelated offence of attempting to obtain money by deception. The offender had stolen a motor vehicle from a public car park whilst under the influence of alcohol and cannabis. The offender’s vehicle hit two pedestrians while they were crossing in accordance with a green “walk” sign at a pedestrian crossing, and narrowly missed a third pedestrian. One of the pedestrians was propelled forward by the impact and sustained serious injuries to their leg, whilst the other pedestrian died instantly after being hit. The offender had a significant criminal history, and entered pleas of guilty after making significant admissions soon after the offences. The sentencing judge imposed a discount of 10 percent for the pleas of guilty. The sentencing judge imposed a sentence of 10 years and 9 months of imprisonment for the offence of culpable driving causing death, and imposed an overall sentence of 13 years and 7 months of imprisonment, of which 12 years and 9 months related to the driving offences. The sentencing judge set a non-parole period of 9 years and 10 months. On appeal, a majority (Burns and Ross JJ) of the Court of Appeal dismissed a sentence appeal from the offender. In dissent, Murrell CJ found that the sentence imposed by the sentencing judge was manifestly excessive. Her Honour would have resentenced the offender to a total of 11 years and 4 months of imprisonment, including a sentence of 8 years and 6 months for the offence of culpable driving causing death, with a non-parole period of 7 years. It was accepted by the prosecution that Monfries was a “more serious example” than the offender’s case before me.
70. In Richardson, the offender was found guilty by a jury of an offence of culpable driving causing death, and an offence of culpable driving causing grievous bodily harm. The offender was driving a vehicle with three other occupants in the correct lane whilst significantly affected by alcohol. The offender lost control of the vehicle, which eventually impacted with a tree on a grass verge. One of the occupants lost consciousness and died at the scene, and another suffered a very serious injury, whilst the offender suffered a fractured ankle. The sentencing judge considered that the offences were each of very significant objective seriousness, but that aggravating features such as speeding, showing off, erratic driving or escaping police pursuit were not present. The offender was relatively young, aged 23 at the time of the offences, and had a relatively longstanding substance abuse problem. The offender was sentenced to three years of imprisonment for the offence of culpable driving causing death, and received an overall sentence of three years and eight months of imprisonment, with a non-parole period of one year and 10 months. The offender was disqualified from holding or obtaining a driver’s licence for 6 years. The prosecution submitted that this case was “perhaps of more assistance” in relation to comparable cases than Monfries.
71. In Wolter (No 3), the offender was found guilty by a jury of an offence of culpable driving causing death. The offender was blinded by the sun whilst driving at a speed in excess of the speed limit, and with methamphetamine detected in his blood. The offender hit a pedestrian who was crossing the road, who died at the scene. The offender, who was aged 22, had substance abuse issues, as well as significant mental and emotional difficulties as a result of the offence. The offender had a criminal history which included prior time in custody, and received a discount for his assistance in facilitating the course of justice. The offender was sentenced to four years of imprisonment, with a non-parole period of 2 years. The offender was also fined $200 for the offence of driving whilst his licence was suspended.
72. Overall, the prosecution submitted that the matters of Richardson and Wolter (No 3) were likely to be of “greater assistance…in terms of comparative analysis”, but that “Monfries provides a detailed outline of the relevant sentencing factors when assessing the features that are relevant for sentencing in an offence of this type”. The prosecution submitted that Richardson and Wolter (No 3) “contain similarities to the offending before this Court but also contain differences”.
73. In Kekalainen, the offender pleaded guilty to an offence of culpable driving causing death. The offender, while intoxicated, rode his motorcycle with his partner (the victim) as a pillion passenger. As he rode, he lost control of the motorcycle, and skidded into the guardrail on the left-hand side of the road. The victim was thrown from the motorcycle, and suffered fatal injuries to her head, chest and abdomen. The offender was 45 years old and grew up in a family with alcohol issues. The offender’s own alcohol consumption was at a “hazardous level of use”. The offender had some criminal history, but had supportive character references. The offender entered an early plea of guilty, and gave assistance to the authorities after the offence. The offender was sentenced to three years and four months of imprisonment, reduced from five years of imprisonment taking into account the discounts for the early plea of guilty and assistance to authorities. The sentencing judge directed that the first 9 months of imprisonment be served in full time custody, followed by 12 months to be served by periodic detention, and the sentence suspended thereafter.
74. In Creighton, the offender pleaded guilty to two offences of culpable driving causing death, and one offence of culpable driving causing grievous bodily harm, all arising from the same motor vehicle accident. At the time of sentencing, the maximum penalty for culpable driving causing death was seven years of imprisonment, and the maximum penalty for culpable driving causing grievous bodily harm was four years of imprisonment. The offender was driving at a speed in excess of the speed limit with the three victims when he lost control of the vehicle, which resulted in the vehicle rotating 270 degrees, and eventually allowed the rear passenger side of the vehicle to collide with a tree. Two of the passengers died as a result of injuries sustained in the accident, and the third passenger suffered extensive injuries. The sentencing judge accepted that the offender had expressed considerable remorse, and took into account the offender’s early plea of guilty. The offender had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), which interfered with his mental capacity, behaviour and capacity for planning and forethought. The offender was sentenced to a total term of 2 years and 9 months of imprisonment, including two partially concurrent sentences of 18 months for the two offences of culpable driving causing death. The sentencing judge directed that the first 6 months of imprisonment be served in full-time custody, followed by 12 months of periodic detention, with the balance of the sentence suspended. On appeal from the prosecution, the Court of Appeal confirmed the offender’s sentence.
75. Every case is different and must be approached on its own facts. Nevertheless, I have considered these comparable cases as yardsticks.
Statutory and Other Considerations
76. In sentencing the offender, the court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above.
77. The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, rehabilitation and recognition of harm to the victim are important sentencing considerations.
78. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, in my view an alternative to full-time custody is not appropriate.
79. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
80. Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]-[203], [273] and [347]; R v Martin [2017] VSCA 291; 20 VR 14 at [19]-[30].
81. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
82. In Whyte, Spigelman CJ listed the following characteristics of a “typical case” of the offence:
a) young offender;
b) of good character with no, or limited, prior convictions;
c) death or permanent injury to a single person;
d) the victim is a stranger;
e) no or limited injury to the driver;
f) genuine remorse; and
g) plea of guilty of limited utilitarian value.
83. As has been outlined above, the case before me can be distinguished from the so-called “typical case” mentioned in Whyte in a number of ways. The offender is no longer young, and has prior traffic matters. The victim was known to the offender. The plea of guilty attracts a discount of 15 percent. There was limited injury to the driver in this case. There was death to a single person as outlined in the case of Whyte.
84. Relevantly, in Monfries, Ross J underlined the following:
192.In seeking consistency sentencing judges have regard to what has been done in other cases. However, care must be taken in using what has been done in other cases. The consistency which is sought is consistency in the application of relevant legal principles, not numerical equivalence: Barbaro v The Queen (2014) 305 ALR 323 at 331 [40].
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196.During the appeal proceedings reference was made to two guideline judgments from NSW: R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252.
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197.Such guidelines are intended to be indicative only and are not intended to be applied to every case as if they were rules binding sentencing judges (Jurisic at 220).
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199.The aggravating and mitigating factors identified in Jurisic and Whyte, while not binding on this Court, may be regarded as a useful distillation of factors which are relevant to the assessment of the objective seriousness of culpable driving offences. To that extent these judgments provide an articulation of relevant unifying principles of the type contemplated in Wong.
Sentence
85. It must be recognised by the Court that the offence has had a profound impact upon the family of the victim. The impact of the death of a family member is, it must be said, beyond dry legal words.
86. I also echo the words of Refshauge J in R v Creighton (unreported, Supreme Court of the ACT, Refshauge J, 28 October 2010). No sentence that I can impose will undo the tragedy that the family of the deceased victim has experienced and is experiencing. I have to judge the offender not merely according to the tragic results of her actions but in accordance with the law and the principles of sentence which I must apply.
87. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and the subjective matters.
88. The appropriate sentence for the offence of culpable driving causing death is 5 years and 4 months of imprisonment, reduced to 4 years and 6 months on account of the discount for the plea of guilty.
89. For the offence of not giving assistance after an accident causing death, the appropriate sentence is 14 months of imprisonment, reduced to 12 months on account of the discount for the plea of guilty.
90. I will impose non-custodial sentences for the remaining summary offences as the offences do not carry a penalty of imprisonment. I will not impose a fine as the offender will serve a term of imprisonment on the primary charges.
Order
91. I make the following orders:
(a)I record convictions in relation to all of the offences;
(b)In respect of the offence of culpable driving causing death (CC2018/1800), the offender is sentenced to a term of 4 years and 6 months of imprisonment, commencing on 25 January 2018 and ending on 24 July 2022.
(c)In respect of the offence of driving unlicensed (CC2018/1793), the offender is sentenced to a Good Behaviour Order for 12 months, commencing 19 March 2019. I impose the core conditions.
(d)In respect of the offence of using an uninsured motor vehicle (CC2018/1796), the offender is sentenced to a Good Behaviour Order for 12 months, commencing 19 March 2019. I impose the core conditions.
(e)In respect of the offence of using an unregistered registrable vehicle (CC2018/1797), the offender is sentenced to a Good Behaviour Order for 12 months, commencing 19 March 2019. I impose the core conditions.
(f)In respect of the offence of failing to wear a properly adjusted and fastened seatbelt (CC2018/1798), the offender is sentenced to a Good Behaviour Order for 12 months, commencing 19 March 2019. I impose the core conditions.
(g)In respect of the offence of drug driving (CC2018/1794), the offender is sentenced to a Good Behaviour Order for 12 months, commencing 19 March 2019. I impose the core conditions.
(h)In respect of the offence of not giving assistance after an accident causing death (CC2018/1799), the offender is sentenced to 12 months of imprisonment, commencing 25 January 2022 and ending on 24 January 2023;
(i)The total sentence of imprisonment is 5 years.
(j)I set a non-parole period of 3 years, commencing 25 January 2018 and ending on 24 January 2021;
(k)In relation to the culpable drive matter, I disqualify the offender from holding or obtaining a driver’s licence for 7 years commencing 19 March 2019.
| I certify that the preceding ninety-one [91] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date:19 March 2019 |
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