R v Wardhaugh

[2016] NSWDC 314

District Court

New South Wales

Medium Neutral Citation:	R v Wardhaugh [2016] NSWDC 314
Hearing dates:	21 July 2016
Date of orders:	21 July 2016
Decision date:	21 July 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Impose an aggregate sentence of imprisonment consisting of a non-parole period of 2½ years and a had sentence of 5 years. Disqualified from driving for 5 years
Catchwords:	CRIMINAL LAW – Sentence – Dangerous driving occasioning death – Dangerous driving occasioning grievous bodily harm – Extensive injuries – Intoxicated offender.
Cases Cited:	R v Jurisic (1998) 45 NSWLR 209 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
Category:	Sentence
Parties:	The Crown Brook Elise Wardhaugh
Representation:	Counsel: E Balodis – Crown   Solicitors: Director of Public Prosecutions Macedone Legal - Offender
File Number(s):	2015/1684532015/339625

SENTENCE

1. HIS HONOUR: One only has to visit any Local Court in this State to understand that there are many people like the offender, people who drink alcohol and then knowing that it is not safe to do so, decide to get behind the wheel of a car. They are gambling, gambling with the lives and welfare of other road users. They understand that their decision to drive represents a risk, a risk that they will injure or even kill other innocent users of the road. They hope that these consequences will not come about but they do take the risk that they will. It is therefore appropriate that when drink drivers do kill and injure others significant and even harsh sentences should be imposed. Those who are tempted to drink and drive must have it made to them in very concrete terms that if they lose the gamble their driving represents, their punishment will reflect the awful harm that they have caused.

2. On 7 June 2015 the offender, Brook Wardhaugh went out to a pub for a work function. She says she drank five alcoholic drinks but it could have been less and it could have been more. When the time came for her to go home she knew she had had too much to drive. She had never planned to do so, so she got a taxi home. When she got home she felt alone, she wanted to speak to someone but she could not contact anyone by phone. She therefore made the criminal decision to drive to her parent’s home, more than an hour’s drive away.

3. That same night Mr John Bussing and his wife, Marisa Cochran had also been out. They had been to dinner with friends and were driving home. It came about that the car driven by the offender and that driven by Mr Bussing were on the same stretch of road, the Princes Highway at Waterfall. The road was straight and dry. Sober drivers would have had no trouble negotiating it safely. The offender was not a sober driver. She had a blood alcohol content of at least 0.110 and most likely 0.124. For reasons no one can identify, but by her plea the offender admits that it was due to her dangerous driving, the offender drove her vehicle into the rear right‑hand corner of the car in which Mr Bussing and Ms Cochrane were travelling. The impact, which must have been a forceful one, caused Mr Bussing to lose control of his car, so that it ran off the road and hit a tree. The offender’s car also ran off the road but she was uninjured.

4. The collision caused the death of Ms Cochrane who was on a life support system for some time before her family made the heartbreaking decision to switch it off. She died on 28 August last year without having ever regained consciousness. The collision also caused a great level of injury to Mr Bussing and led to a cascading series of medical procedures and interventions. He is physically and mentally a very changed man from the man he was before this tragic event, a tragic event which could have been so easily avoided.

5. The injuries Mr Bussing sustained were numerous, they appear in the agreed statement of facts as follows. Mr Bussing was placed in an induced coma. He needed a transfusion of three and a half litres of blood. Surgeons were successful in establishing a blood supply to his right foot to avoid amputation. He had multiple muscle, tissue and skin grafts performed on his lower right leg to replace extensive tissue loss from the knee to the ankle torn away in the collision. A large section of muscle tissue was harvested from the right half of his stomach area with a 25 centimetre incision which required support mesh to be inserted to maintain the abdominal wall. Skin grafts were harvested from Mr Bussing’s upper left thigh to cover the multiple tissue transplants of his lower right leg.

6. He also sustained the following injuries: Multiple fractures to all the bones in his right leg; his right ankle and many bones in his right foot which have required multiple rods, nails, plates and screws to be inserted throughout; nerve damage causing an almost complete lack of sensation from the knee down to the toes of his right lower leg; a broken fibula of his left leg at the ankle; a broken left heel which had screws and plates inserted; deep gashes to his left ankle, severing nerves, causing complete paralysis of the heel, making it very debilitating for walking; shattered left humerus, elbow and ulna that were successfully repaired with extensive surgery, involving plates and screws being inserted; four broken ribs; crushing to the bridge of his nose and a fractured nasal septum that required reattaching a large section of the end of the nose and requires ongoing surgery; blockage in the left eye tear duct which requires ongoing surgery; laceration under his left eye that cut through facial nerves and required plastic surgery; limited feeling in the left side of his face, from the lower left eyelid down to and including his upper left lid; a deep laceration to his mid-forehead causing touch sensitive nerve spasms in the left facial area; and two crushed vertebrae, L3 and L4 where, if there is no improvement with pain and mobility, spinal fusion may be performed.

7. I described a cascading series of interventions and procedures. During his extended treatment and his forced inability lying prone in the hospital bed he suffered a pulmonary embolism caused by deep vein thrombosis in his left leg. He was therefore administered blood thinning medication. After a period of weeks on that medication a large pool of blood formed in his skull. He was rushed into surgery and underwent a craniotomy where the blood was drained. A section of his skull was replaced which resulted in a large scar and a significant indentation at the top of his head.

8. He has had further surgery to insert a vascular filter in the main blood vessel below his heart, to prevent any further clotting from his legs and future surgery. That filter will need to be removed and further surgery is required.

9. He spent about four months in hospital after the collision. His recovery is going to take an extended period of time with further surgeries required in the months and possibly years hence.

10. Mr Bussing made an eloquent victim impact statement which he read to the Court. He required crutches and had difficulty getting up the steps to the witness box. He spoke of the numerous effects upon him of the offender’s wrongdoing. The Crown suggested that the harm he suffered was just short of the most serious category of harm covered by the offence of dangerous driving occasioning grievous bodily harm. Mr Macedone did not challenge that assessment, I agree with it.

11. Ms Cochrane’s twin brother also made a victim impact statement which was read on his behalf. It is appropriate that I acknowledge the enormous loss felt by Ms Cochrane’s family, friends, students and others. She will be greatly missed.

12. The offender is now 23 and was 22 at the time of the collision. She grew up in a close and loving family in Wollongong. She completed her HSC and then a nursing degree and was at the time of the offence working for Justice Health at Long Bay gaol. She has struggled with anxiety for many years, indeed as long as she can remember. She first attended a psychologist at seven years of age, she developed bulimia at 15. She has been medicated for anxiety and depression for a long time. She has attempted suicide twice. She has a lengthy history of psychological treatment.

13. Her decision to drive that night has to be looked at in the context of her psychological state at the time. She had only recently moved out of home and found herself unexpectedly alone, late at night after having been drinking at a work function and consuming cannabis at an indeterminate time before that. This was not a decision to drive made by a person who just, for example, decided to go and get more take away food. Her decision to drive was affected by her mental state which was consistent with her longstanding psychological issues. The offender’s moral culpability has to be assessed accordingly. Also, as conceded by the Crown, this is a case where the offender will do her time in custody harder than would otherwise have been the case.

14. She has pleaded guilty at the earliest opportunity and so the sentence I impose upon her will be 25% less than it would otherwise have been. She has expressed her deep remorse for her criminal behaviour because of the awful consequences it has had. She was of prior good character too and I am satisfied she has good prospects of rehabilitation. On the other hand almost all cases of this type involve a remorseful offender of good character who is unlikely to offend again. So in deciding the appropriate sentence to impose it must be remembered that almost all sentences for crimes of this type involve offenders of this nature.

15. The Court of Criminal Appeal has handed down two guideline judgments. Indeed the very first guideline judgment handed down by the Court of Criminal Appeal, R v Jurisic (1998) 45 NSWLR 209, concerned these offences. That guideline judgment was a response to a perceived leniency whereby sentencing judges would impose sentences which failed to reflect the objective gravity of an offender’s conduct. This case has much in common with the frequently recurring case postulated in Jurisic and R vWhyte[2002] NSWCCA 343; (2002) 55 NSWLR 252 but there are some differences. In the offender’s favour her pleas came early but on the other hand there are a number of factors which work the other way. The length of her intended journey, over an hour. Associated with this is the large number of people put at risk. The offender had smoked cannabis on top of her intoxication by alcohol. The harm suffered by Mr Bussing was just short of the highest level. Perhaps most importantly the offender knew it was not safe for her to drive when she did so. That factor alone would be enough for me to find that she has effectively abandoned her responsibility by her knowing decision to drive when that driving represented a risk to others as a result of her intoxication.

16. Mr Macedone quite properly conceded that a custodial sentence was required, the only question was how long that sentence should be. He also fairly faintly, I must say, argued that two wholly concurrent sentences would be imposed. To do so would be quite contrary to principles and authority. By her criminal act the offender has caused enormous harm to Mr Bussing and the death of Ms Cochrane. Such harm should be reflected in sentences which are not wholly concurrent.

17. The Crown concedes that there are special circumstances, primarily arising from the offender’s age and psychological history.

18. It is necessary that I, as well as sentencing the offender to custody, disqualify her from driving, I will do that. I disqualify her from driving for five years from 7 June 2015.

19. I will impose an aggregate sentence of imprisonment. Were it not for that circumstance I would have imposed the following sentences. For the offence involving the death of Ms Cochrane four years in gaol. For the offence involving grievous bodily harm to Mr Bussing, two and a half years in gaol.

20. Instead I impose an aggregate sentence consisting of a non-parole period of two and a half years and a head sentence of 5 years, to commence today 21 July 2016. The non-parole period will expire on 20 January 2019, on which day the offender is eligible to be released to parole.

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Decision last updated: 24 November 2016