R v West

[2019] NSWDC 967

District Court

New South Wales

Medium Neutral Citation:

R v West [2019] NSWDC 967

Hearing dates:

Friday 24 May 2019

Date of orders:

Monday 27 May 2019

Decision date:

27 May 2019

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

(1)   The offender is convicted in relation to each    offence.

(2)   Sequences 4, 5 and 6: Sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 of 5 years with an aggregate non-parole period of 3 years, with parole thereafter of 2 years.

(3)   Sequence 7: Sentenced to a fixed term of imprisonment of 9 months.

(4)   RE: 166 certificate offences (sequences 1, 2, 3, 8, 9 and 10): Back up offences are withdrawn and dismissed.

(5)   Offender is disqualified from holding or obtaining a licence in New South Wales for a period of 3 years to commence on the date she is released on parole.

Catchwords:

CRIME — Driving offences — Dangerous driving occasioning grievous bodily harm — Circumstances of aggravation— Intoxication — Causing bodily harm by misconduct — Offender drove vehicle whilst under the influence of methylamphetamine and delta-9-THC ACID — Offenders ability to drive was substantially impaired — Offender was 39 at the time — offences committed whilst returning from a Local Court appearance on prior driving matter — Offender drove on wrong side of road and caused collision involving two other vehicles — Four victims — Three victims sustained very serious injuries — One victim sustained life-threatening injuries — Some victims have ongoing physical complications as result of accident — Youngest victim was 13 years old — Offender voluntarily told police she had taken drugs prior to the incident — Offender has criminal record involving traffic offences commencing in 2003 — Offender has significant history of mental illness — Offender has history of drug use — Offender expressed genuine remorse and contrition — Prospects of rehabilitation reasonable but dependant on her remaining free of drug use.

Legislation Cited:

Crimes Act 1900 (NSW): ss 52A(4), 53;

Crimes (Sentencing Procedure) Act 1999 (NSW): ss 21A, 53A.

Cases Cited:

R v Kopack [2005] NSWCCA 83.

R v Thomson; R v Houlton (2000) 49 NSWLR 383

R v Whyte (2002) 55 NSWLR 252, R v Kaliti [2001] NSWCCA 268.

Category:

Sentence

Parties:

Regina (The Crown)
Katrina West (The Offender)

Representation:

Unknown

File Number(s):

2017/00384010

Judgment

1. HER HONOUR: The offender is before the Court for sentence following pleas of guilty entered in the Local Court to four offences. Sequences 4, 5 and 6 are charges of aggravated dangerous driving causing grievous bodily harm, they are charges brought pursuant to s 52A(4) of the Crimes Act 1900 (NSW) and as such each carries a maximum penalty of 11 years imprisonment. The fourth offence, sequence 7, is a charge of causing bodily harm by misconduct. This is an offence contrary to s 53 of the Crimes Act 1900 which carries a maximum penalty of 2 years imprisonment. It is capable of being dealt with in the Local Court and most often is dealt with in that court.
    

2. All offences to occurred at Braidwood at approximately 2.17pm on 19 December 2017. The dangerous driving for all relevant charges is charged as her being under the influence of drugs, namely amphetamine, methylamphetamine and delta-9-THC ACID, and, for each of these three charges, the circumstance of aggravation is that the offender’s ability was very substantially impaired by the fact that she was under the influence of those drugs.
    

Sequence 4 is this charge of aggravated dangerous driving causing grievous bodily harm to the victim, Silvana Bisa.

Sequence 5 is this charge of aggravated dangerous driving causing grievous bodily harm to the victim, Christina Dougherty.

Sequence 6 is this charge of aggravated dangerous driving causing grievous bodily harm to the victim Thomas Campagna.

The Facts

3. The facts are that the offender is now a 40-year-old woman and was 39 at the time of the offences and held an unrestricted driver’s licence. On the morning of 19 December 2017, she left her premises in Bateman’s Bay to travel to the Canberra’s Magistrate’s Court driving her white Toyota Celica sedan. She was due to appear there, in fact, for the mention of a charge of driving with a prescribed drug in her blood, an offence for which she had been detected in the ACT on 9 September 2017. She left Canberra at about 1pm to drive back, driving along the Kings Highway towards Bateman’s Bay. She was alone in the car.
    

4. About 10 kilometres west of Braidwood she drifted on to the incorrect side of the road and then corrected and went back to the correct side of the road. Another driver traveling behind saw this and contacted triple-0. Police broadcasted a message to keep a lookout for vehicles in that area of the highway. A short time later she again begun to veer on to the incorrect side of the road and there was a collision in which the front driver’s side of her car collided heavily with the front driver’s side of a silver Mercedes four-wheel drive traveling in the opposite direction which was being driven by Mr Paul Bisa with Mrs Silvana Bisa seated in the front passenger seat.
    

5. After this collision the offender’s vehicle continued for a short distance on the wrong side of the road, rotated, left the roadway and collided with trees and shrubs. As I result of the collision the Mercedes four-wheel drive rotated across the southbound lane and collided heavily with a Toyota Camry, also traveling south, which was unable to avoid the oncoming four-wheel drive. This car was being driven by Ms Alanna Davis with Ms Christina Dougherty in the front passenger seat and Thomas Campagna in the rear near side passenger seat.
    

6. There was a fourth vehicle being driven by Scott MacMillan travelling behind the Camry which collided with debris from the collision causing minor damage to his vehicle. The occupants of the Mercedes were trapped in it for a period of time before being released and conveyed to Canberra Hospital.
    

7. The collision occurred, I accept, because the offender was under the influence of drugs which amounted to a very substantial impairment. She was not injured in the collision but when police spoke to her at the scene, she had glazed eyes, pinpoint pupils and was restless and unsteady on her feet. A breath test proved negative for alcohol, but she admitted to police that she had used the drug methylamphetamine, known as ice, the night before. Police formed the view that she was under the influence of drugs and arrested her to provide a blood and urine sample.
    

8. She was taken to the local hospital and provided the necessary samples. She participated in an electronic record of interview in which she admitted to also having used the drug ice that morning as well as the night before, informing police that she had consumed 2 points on each occasion which she used intravenously. She admitted that she had veered onto the wrong side of the road earlier in the trip back to Bateman’s Bay but could not give an explanation as to why. In relation to the collision, she told police variously that she had fallen asleep but also said that she was not tired, and further said that she had seen the four-wheel drive about 1 to 2 metres away before falling asleep.
    

9. I accept as appears in the Agreed Facts, from the opinion of Dr Judith Perl, that not only was she under the influence of drug specified in the charges but that her lack of vigilance and inattention was as a result of the influence of these drugs, which in the circumstances amounted to a very significant impairment. The offender has admitted this by pleading guilty to the three dangerous driving offences.
    

10. The injuries to the three victims of these dangerous driving offences was significant in all cases. Mrs Silvana Bisa suffered a broken left femur, a right elbow fracture and a deep laceration to the right posterior medial ankle which involved a complete severing of the posterior tibialis tendon. She was treated in hospital, requiring a rod to be placed in her left leg for fixation of her leg fracture. She suffered significant blood loss and required a transfusion. She needed to wear a plaster cast on her right arm for a period and will have scarring to her right ankle as a result of the deep laceration. The Agreed Facts state that she was assessed as presenting to the hospital with life threatening injuries.
     

11. Mr Paul Bisa, the victim in relation to sequence 7, was treated in hospital for three days suffering fractures to the ninth and tenth left ribs and bilateral lower lung contusions. There is subsequent evidence tendered just last Friday when the matter was before the court at the Queanbeyan circuit sitting in Goulburn that in June 2018, he was referred to specialist treatment after an MRI which showed which showed a labral tear. There is no information or evidence about just what that means, although an internet search indicates that it appears to relate to a tear, or damage or tear of the cartilage in the shoulder joint. It is not clear whether or not this is as a result of the injuries he suffered in the collision and the only evidence is the referral letter to an ACT orthopaedic surgeon with no report as to his findings.
     

12. It is not in the circumstances, it seems to me, possible to take this into account as indicating an ongoing injury, specifically an ongoing injury to the shoulder in the absence of any specific evidence. What I have is simply an MRI outcome and a referral from a GP to an orthopaedic surgeon.
     

13. I have read and taken into account a Victim Impact Statement (“VIS”) written by Ms Bisa. Also tendered in relation to the impact of this offence on her is a report from an orthopaedic surgeon Dr Alexander Burns which I have read. He reviewed her medical progress during 2018. I accept that Mrs Bisa underwent surgery to repair her fractured femur and her wrist was splinted. There was also the surgical repair of tibialis posterior tendon which had been torn or completely severed in the collision. By February 2016 X-rays showed that her right elbow was healing as was the fracture of her neck. I accept that until then she had been required to use a wheelchair but by February was using crutches. At that stage her wrist was still stiff, as were her fingers. By April 2018 she was still using at least one crutch. Dr Burns noted that by July 2018 her leg fracture was healing well and that she did not require further X-rays. She had ongoing symptoms from the elbow fracture, however, including reduced finger flexion. She has been undertaking physiotherapy for these symptoms.
     

14. As I have said, I have read and taken into account the VIS that she has prepared. In that she confirms all of this tendered medical evidence, and I accept that this offence has had a significant impact on her. It would appear she is about to turn 70 and the Court can take some judicial notice of the fact that fractures have an increasingly more serious impact on people as their ages increase. Whilst her leg fracture has healed, she has ongoing problems connected to her elbow fracture. An MRI undertaken in August 2018 indicates severe degenerative changes, it would appear, consistent with her age. Nonetheless, I accept that as a result of this offence she has reduced grip strength in her right hand and that this has a significant impact on her quality of life, including an ability to feel safe in picking up her grandchildren, gripping objects, writing, sewing, cooking and other daily activities. I also accept, as would be expected, that she has experienced increased anxiety, particularly when either a driver or passenger on the road, and that her emotional health and wellbeing has been adversely affected.
     

15. The injuries are clearly grievous bodily harm and Mrs Bisa continues to have some ongoing symptoms and disabilities as a result of this offence. More probably than not, it seems to me, they will continue into the foreseeable future.
     

16. There was also a VIS prepared by Ms Christina Dougherty and read out in court and which I have reread and taken into account. It is a lengthy document and contains some material which does not strictly fall within the definition of VIS as set out in the Crimes (Sentencing Procedure) Act 1999 (NSW). In particular, some of it amounts to argument, or submission or suggestion, about the appropriate outcome for the sentences, and falls outside the issue of impact that this offence has had on her. I will not attach significance to those portions of that VIS.
     

17. However, for her too, there is additional medical evidence tendered, in particular a report from Dr Kulisiewicz, orthopaedic surgeon. I accept that at the time of the collision Ms Dougherty was about to turn 30. She is a US citizen who was living in Australia at the time, with her husband, who was playing for the Australian Baseball League on a short-term contract. They were living in Canberra with their host family, Ms Davis, who was the driver of the Camry, whose son Thomas Campagna was a passenger in the rear seat of the Camry and was seriously injured in this collision.

18. Ms Dougherty had been in Australia for about a month at the time, and the three of them, Ms Davis, Ms Dougherty and Thomas Campagna were travelling to the coast of New South Wales from Canberra for an outing on the day of the collision.
     

19. Ms Dougherty was seriously injured, including a segmented fracture to her right femur. She also suffered fractured ribs. In addition, she sustained abdominal injuries with a laceration to her duodenum, which required surgical repair, and the surgery was performed at Canberra Hospital. I accept that she was in hospital for a period of time, and then was recuperating in the community where she was fortunate to have the assistance of Ms Davis and her family who provided her with housing during this period of recuperation.
     

20. I accept that she had been intending to return to the US, as had her husband, but was unable to do so following this collision as a result both, of needing to recover from her injuries, and also because, as a foreign visitor, her out of pocket expenses would only be covered by the New South Wales Motor Accident Authority as long as she remained in Australia. Otherwise, had she returned to the US, she would have been significantly out of pocket.
     

21. I accept that part of the impact on her has been a sense that she was required to remain in Australia away from the support of family and friends in the US, or alternatively if returning to that support she would have been significantly out of pocket. This has been something of a dilemma and has increased her feeling of anxiety and dissatisfaction as a result of this offence.
     

22. As at June 2018 her right leg fracture had still not united and she was still mobilising on crutches. At that stage it was anticipated that she may need further surgery on her right leg, and a further period of non-weight bearing and rehabilitation, but there is no evidence as to whether or not that has occurred. I do accept however that as at June 2018, it was anticipated that it would be at least 12 months before her recovery had plateaued.
     

23. There was an updated report tendered again as recently as last Friday 24 May, in Goulburn, from a podiatrist, following a review undertaken by him in March 2019 in Canberra. I accept that as a result of the collision and the surgery required to repair the fracture to her right leg, Ms Dougherty now has a significant limb length discrepancy. Her right leg is about 1.5 centimetres shorter than her left. The repair of her right leg fracture required pins and plating. She was still using crutches when she consulted this podiatrist according to the report. She has a decrease in mobility of her right ankle, but it is observed to be within normal range, nonetheless. She was walking with a limp, but it would appear from that report that conservative treatment was to be instigated requiring a shoe raising device which, it was anticipated, would correct some of these gait deficiencies. There are thus ongoing physical problems for her as a result of this collision.
     

24. I accept also from the VIS that she provided to the Court that she suffers from heightened fear and anxiety as a result of this collision, and it is to be expected that she will have ongoing psychological sequelae for the foreseeable future, if perhaps not into the long term future, as a result of being involved in this collision, reliving the collision and also the impact that that it has had on her and her life because of the significant injury she suffered.
     

25. There is also a VIS for Thomas Campagna and a lengthy statement written by his mother that was tendered without objection, albeit that it does not strictly fall within the definition of VIS. There was no attempt on behalf of the offender through her counsel to take any point in relation to that. There is a significant portion of that statement from Ms Davis that, even if she had been a victim herself, falls outside the definition of VIS. I was invited to read it nonetheless because it casts some light on the impact of this offence on her son, Thomas Campagna, and it is clear also that she was the person who took most, if not all, of the photographs that have also been tendered of Thomas during his stay in hospital.
     

26. I have read her statement and bear it in mind. of course, I am not able to attach weight to the material that is not otherwise before the Court by way of evidence, always bearing in mind that her statement does not fall within the definition of a VIS. She is however, and clearly so, a very concerned mother of Thomas Campagna, and her insight is of some use to the Court in determining the impact on him.
     

27. There is also, in relation to Thomas Campagna, two VISs and also a significant amount of medical evidence in relation to his injuries, and, as I have said, a number of photographs of him in hospital and subsequently.
     

28. He was 13 years of age at the time, and he was very seriously injured in this collision. He was taken by air ambulance to Canberra Hospital where he was treated. He had been the backseat passenger in the Camry and was wearing a lap sash seat belt. He had pronounced bruising on the lower abdomen and right side of his chest caused by compression from this seatbelt. He needed to be resuscitated at hospital and was in a very serious condition. He suffered a perforated bowel that required him to use a colostomy bag for about six months. Whilst he was in ICU he required life support measures including ventilation, which is shown in several of the photographs tendered.
     

29. He was discharged from ICU to the general ward on 21 December, and finally discharged from hospital on 8 January 2018. There is a lengthy discharge report from Canberra Hospital, tendered, which I have read, I do not propose to go into any greater detail than that for this sentence.
     

30. Between his discharge and May 2018, as I have said, he was required to wear a colostomy bag, which I accept is a difficult situation for anybody but especially so for a teenage boy who, up until then, had been an active sports person, particularly keen on playing Rugby Union. As a teenage boy too, he suffered significant embarrassment as a result of the colostomy bags, which can be difficult to learn to use and I accept caused him great embarrassment when he was out with friends. During this period, he was readmitted to hospital at least once with abdominal pain which occurred as a result of issues that arose from the colostomy procedure.
     

31. In May 2018, he had surgery again to remove the colostomy bag and he was in hospital until 18 May 2018, a period of about two weeks, to allow his digestive function to return. It apparently did so successfully. The collision also caused a tear of his abdominal muscle on the right-hand side which was still in evidence when examined in May 2018. The medical opinion is that he should retain satisfactory intestinal function but will need to be monitored long term for a number of reasons. There is also evidence that he has recovered satisfactory abdominal wall function for normal day-to-day activities, but that the torn muscle cannot be repaired and that this may cause him some difficulties in the future, particularly during sporting activities.
     

3. He has provided an updated VIS which is dated 5 May 2019. I accept that there is some ongoing disability evidenced in more recent times largely as a result of adhesions that have occurred from the injuries and surgery, and the impact that this has had on his intestinal function. That issue on this last occasion required further hospitalisation. I accept that his schooling has been interrupted and he has missed a lot of school, and now still only attends part-time.
    

4. He is embarrassed by much of this, including missing school and not being able to share classes with his school mates with whom he had been in school previously. It has also had the impact of his not being able to return to play rugby because of the risk of injury with the increased likelihood of tackling in that particular game. He had been very keen on playing rugby and hoped to play perhaps on a competitive level but that is not likely to be the case. He has not been able to return to Rugby Union but has more recently returned to Rugby League with some limitations. He feels that loss keenly. I accept that he also has scars as a result of the surgery, which embarrasses him. There is a photograph of the state of scarring as it presently is. It is to be hoped that in due course some of this scarring will at least fade and as he becomes older, he may feel less embarrassed about that.
    

5. I accept that he too has increased anxiety and fear because of his memories of the collision, and in particular his memories of the multiple surgeries that he has been required to undertake for the injuries he suffered.
    

6. He also, I accept, has concerns about the impact that his injuries have had on his mother because of the work that she has taken on and been required to take on to care for him. He is worried about her and the effect of this on her health, and I accept that his manifests itself in increased anxiety in him. It is clear from the statement which was tendered from Ms Davis that she has in fact been required to take on a significant extra load, which she has done unstintingly in providing care for her son. He is aware of this and worries about the impact that that has on her health.
    

7. The impact on these three victims is significant and ongoing and an assessment of it effects an assessment of the objective criminality of each of these offences. These are not minor examples of injuries capable of amounting to grievous bodily harm. They do not, however, in my view amount to a separate circumstance of aggravation pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999. The range of injuries capable of being grievous bodily harm for these offences can include injuries such as the loss of limbs, the loss of eyesight, catastrophic brain damage including resulting in paraplegia, quadriplegia, and similar. Whilst it no doubt appears odious to the community that these comparisons need to be made, it is necessary to do so nonetheless to determine whether or not in a particular case the impact on a particular victim is such that it amounts to a separate circumstance of aggravation. I do not find it to be the case here and I do not understand the Crown to have argued that it is the case here.
    

Objective Criminality

37. I then turn to an overall assessment of the objective criminality for these offences. On the basis of these factual findings and the material in relation to the victims, I must assess the objective criminality of all four offences, dealing first with that which far and away the least serious, that is, the offence involving Mr Bisa. Nonetheless, it seems to me that the objective seriousness of that s 53 offence is relatively high. The misconduct, namely driving whilst under the influence of drugs is relatively serious. The bodily harm suffered by Mr Bisa was more than just minimal, and it may be that there is some ongoing impact. Normally, however, it would be dealt with in the Local Court. Looking at the statistics published by the Judicial Commission for sentences under this section in the Local Court, it appears that only about half of the offences dealt with in that court for this offence are dealt with by way of periods of imprisonment, either full time or otherwise. Nonetheless, in my view, this is a relatively serious example of a s 53 offence, and it does cross the threshold and calls for a period of imprisonment.
     

38. For the three aggravated dangerous driving causing grievous bodily harm offences, I have regard to the decision of the Court of Criminal Appeal in R v Whyte (2002) 55 NSWLR 252 (“Whyte”), which operates as a sentencing guideline for offences of dangerous driving causing either death or grievous bodily harm, albeit that is not including the additional circumstance of aggravation. The Court of Criminal Appeal in that case promulgated a guideline for sentences. In such cases, namely what were referred to as a typical case where the evidence indicated that the offender had abandoned his or her moral responsibility as a driver, sentences should usually be periods of full-time custody. Where there is grievous bodily harm, that should not normally be less than two years and where there is death, not normally below 3 years, again by way of full-time imprisonment.
     

39. No doubt these may appear to the outside observer to be relatively low periods of imprisonment, especially where the dangerous driving has caused the death of another person or has led to catastrophic injuries such as permanent brain damage, quadriplegia, paraplegia, and the like. It is not unknown when sentences for such offences are announced that victims or friends and relatives of victims ask rhetorically, what is a life worth? However, it is important that it be noted and recognised that there is a very real distinction between these offences contrary to s 52A and offences of violence such as murder, manslaughter, or the myriad of other offences of serious violence, and the distinction is the absence of intent on the part of the offender.
     

40. The criminal law has always recognised the importance of proving criminal intent on the part of offenders and maximum penalties for offences where victims are killed or seriously injured differ significantly depending on the seriousness of the criminal intent. Thus, intentionally committing an offence with the intent to murder or to inflict grievous bodily harm significantly increases the maximum penalty for relevant offences for many such offences, giving rise to maximum penalties of 25 years with standard non-parole period of 7 years for some. Equally, as the seriousness of the intention decreases, so does the penalty decrease as a maximum penalty.
     

41. Offences contrary to s 52A do not require proof that the offender intended to cause any collision, but just that the offender intended to drive and did so in certain circumstances which are defined as dangerous, including as here because of the influence of drugs. This distinction in relation to lack of intention informs the maximum penalties, the guideline sentences, and the range of sentences actually imposed for these offences.
     

42. In this particular case, I accept that the offender’s moral culpability is high and that when she decided to drive her car that day, she clearly abandoned her responsibility as a driver. She did so in the following ways:
     

1. She used the drug ice both the night before and on the morning that she drove. That is, the very morning that she drove, she had injected ice.
    

2. She had driven for quite some distance, including from Batemans Bay to Canberra and then back again, a considerable distance exposing other road users to the risk of serious injury.
    

3. Her moral culpability is increased by the fact that she was only driving at all because she was going to court to face a charge of driving in the ACT with drugs in her blood.
    

4. She was alerted to the fact that her driving ability was impaired when she veered on to the wrong side of the road. She remembers doing that, and whether she put that down to being sleepy or being under influence of drugs, she should have recognised the risk, pulled over, and waited until it was safe to drive.
    

5. She was subject to three s 9 bonds, at the time, imposed at the Queanbeyan Local Court on 23 July 2018 for offences of breach AVO, drive motor vehicle without the consent of the owner, and not disclosing details of driver. These bonds were for periods up to 2 years from July 2018.
    

6. She had a criminal record and traffic record, but particularly relevantly, a traffic record commencing, it would appear, in 2003, not long after she first received her P2 provisional licence. That traffic record includes drive manner dangerous, some speeding matters, and significantly for the matters before me, on 30 June 2015, she was convicted of the offence of driving with an illicit drug present in her oral fluid.
    

43. There are other entries in her criminal record, dealt with ultimately on appeal by way of suspended sentences in August 2016. From the conditions imposed, it seems clear that even at that stage she was identified as having issues with drug and alcohol use, or at least drug use, she had mental issues, and there is a reference to an attempt to have her continuing compliance with a mental health treatment plan. She was thus a person with some prior history and understanding of the link between drug use and criminal offending, and drug use and criminal offending as a driver in particular.
     

44. Her decision to drive on 19 December in these circumstances, having used ice that morning, amounts to a clear abandonment of her responsibility as a driver. As such, no other penalty apart from full-time imprisonment would be appropriate, and the contrary is not argued on her behalf.
     

45. The offences overall are aggravated generally by the fact that she was subject to the s 9 bonds to which I have already referred.
     

46. Further, as I have set out, the injuries were significant and there were three people seriously injured, and one other person injured. This is an aggravating factor but cannot be double counted by increasing the overall criminality when assessing the appropriate penalty. Also, there will be a partial accumulation to take into account separate victims and thus a further reason to avoid double counting this particular issue. There were, however, a number of people put at risk over the course of her driving, as evidenced at the very least by the fact that she veered onto the wrong side of the road on another occasion before this collision.
     

47. The only relevant mitigating factor as I see it, is that she has pleaded guilty to these offences at the earliest opportunity. She is entitled to have that taken into account to reflect the utilitarian value of the plea. It is a significant utilitarian value, avoiding the need for any of these victims to come to court, unless they chose to, to give evidence to prove her guilt, the need to avoid the expert Dr Pearl from coming to court to give evidence to prove the aggravating feature, that is that the impact on her of the drugs amounted to a very substantial impairment. In those circumstances the sentences should be discounted by 25% to take into account the utilitarian value of the plea in accordance with the dicta of the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383, and others.
     

48. Comparing this then to the typical case referred to in the Whyte decision, this is a more serious case. First, it is the aggravated version of the offence. Further she is not a young offender, she is now 40. She has no prior good character with no or limited convictions. So, the sentence of two years, being the lowest sentence that would otherwise be applicable is a starting point only for these offences for those reasons.
     

The Offenders Subjective Case

49. I then turn to the general subjective circumstances surrounding the offender. She has been in custody bail refused since 19 December 2017, thus the sentences will commence on that date. She has a criminal history to which I have referred and the traffic history. She has been subject to various forms of supervision since 2014 but has not responded well and has always breached by way of re-offence.
     

50. In a more recent psychiatric report provided by Justice Health her general background is canvassed in greater detail than in the Sentencing Assessment report. I accept that before this offence she was renting a unit in a hotel for about two months. She was single but has three children from two past relationships. Her older two children are in their early 20’s and live independently. She also has a 12-year-old daughter who lives with the offender’s mother.
     

51. She has not worked since 2012 because of some chronic back condition and has been in receipt of disability support pension. She has a history of drug use. She was a significant user of cannabis for a period of time. She started experimenting with the drug at the age of 15 and then began to use it regularly from the age of 18. She smoked then for the next 11 years using about a quarter of an ounce a day. She then stopped and switched to methamphetamine use. It would appear she started using methamphetamines either at the age of 29, which is what she told Dr Elliott, or perhaps at 35 which is apparently what she told Community Corrections.
     

52. In any event she started to use these more serious drugs at a time in her life when her children and mother left her, and she was left isolated and alone. She began injecting amphetamines initially on a weekly basis but escalated in the context of her younger daughter moving in with her grandmother and some issues involving domestic violence.
     

53. She had stopped using amphetamines for a period of time before these offences, probably for about 18 months, up until about two weeks before her arrest. This occurred in circumstances where she relapsed because her mother and daughter went away on holidays, and she was not invited to join them. This in fact is the history she gave Dr Elliott. She said she felt excluded and in response maladaptively relapsed into methamphetamine use. In the two weeks before her arrest she was injecting about half a gram of methamphetamines daily. These drugs are stimulants and I accept that this had a significantly adverse impact on her ability to sleep and on her ability to reason.
     

54. A curious aspect of her presentation is what appeared in the Sentence Assessment Report initially tendered. There is a reference to records revealing that she had a significant history of mental illness and had experienced multiple admissions to mental health facilities since 2015 and has attempted self-harm on several occasions. She self-reported that she had been diagnosed as suffering bipolar and schizophrenia and there is no doubt that she was, at the time taken into custody, being medicated with antidepressant and antipsychotic medications, which is still the case. It would appear, however, that her medication regime was not necessarily being overseen by Justice Health and it is hard to imagine how this could have been the case, but it does appear to have been the circumstances.
     

55. The most recent report from Dr Elliott from Justice Health indicates again a report that she had been admitted to a psychiatric unit on three separate occasions, two in 2015 and another occasion in June 2017. She reported that she had been suffering from psychosis. She denied having been followed up by community mental health services, but that is somewhat inconsistent with a condition imposed by this court on a suspended sentence that a mental health treatment program be followed as a condition of her release.
     

56. I accept that she connected the impact of her methamphetamine use to what she described as psychosis, but presumably sufficiently for a doctor to have treated her on the basis that she suffered from psychosis and to have treated her with medication for that purpose. She suffers additionally from a medical condition, namely degenerative disc disease, which I accept from the medical record accessed by Dr Elliott confirms she has advanced degenerative disc disease.
     

57. In the most recent report from Dr Elliott, I accept that whatever might have been the basis of assertions in the Sentence Assessment Report about her psychiatric health, in fact she does not suffer from a mental illness either bipolar or any form of schizophrenia or some other form of psychosis. I accept Dr Elliot’s opinion that in fact she has methamphetamine use disorder but is not a mentally ill person in the way that that would qualify for treatment or admission to a mental health facility. I accept that she would benefit from drug and alcohol rehabilitation and more generalist psychological counselling to assist her to develop strategies to manage her anger. On the face of it, there appears to be no reason why she is taking antipsychotic medication at the very least and her medication regime needs to be reviewed and monitored.
     

58. She has indicated that when her present term ends, she intends to return to live with her mother on the south coast of New South Wales, but Community Corrections was not able to contact her mother and in the past there have been some issues in relation to that.
     

59. I do accept that she is genuinely remorseful and contrite for having committed this offence. I accept this to be the case and specifically reject the submission made on behalf of the Crown when the matter was before the Court in August 2018 that her remorse and contrition would be regarded as coming late and not being genuine. She did in fact write a letter to the court which was presented in August, and I accept that the sentiments expressed in that letter are genuine. In particular she said the following:

“Not a day goes by that I don’t think about what happened and if I would have made different choices and not done it, it all would have been avoided. If I could take your pain and suffering away I would. I honestly just hope you all heal well and make a full recovery.”

60. She further said: “If I had that day over again, I’d never drive.”
     

61. As I have said the Crown submitted that this would not be accepted as a genuine expression of contrition and remorse, mainly as I understand it, because it came late. It seems to me that that submission overlooks another significant piece of evidence, namely that almost immediately after she went into custody, she tried to commit suicide by hanging herself. No doubt the reasons for that were complicated and perhaps multifarious, but significantly I accept that the main reason for it is because of the guilt and shame that she felt for having committed this offence and for causing the pain and suffering that she has.
     

62. It seems to me that in those circumstances it is impossible to construe the letter that she has written to the court as being latter-day remorse and contrition and I accept that her contrition and remorse is genuine.
     

63. She has indicated that she is willing to undertake long term rehabilitation and an intensive drug program whilst in custody and presumably when she is released to deal with her longstanding drug addiction. She has undertaken some courses and has a certificate which she has tendered. She has also undertaken a business services training package through TAFE whilst in custody and has also engaged with services and program staff at the Mary Wade Correctional Centre to participate in the remand addictions program. As at April this year, she had attended 18 sessions and contributed to all of them in a beneficial way.
     

64. As I understand it, she has not incurred any misdemeanours and has not come to notice other than positively since being in custody. That all assists also to assessing her prospects of rehabilitation. Her prospects are reasonable, but of course depend on her remaining free of the use of illegal drugs. She would benefit from a longer than normal period of supervision in the community to ensure that she does not relapse again.
     

60. This is her first time in gaol and that and the need for a longer than normal period of supervision in the community are two bases on which I find special circumstances in this case.
     

The Sentences

66. I then turn to determine the appropriate sentences to be imposed here. I have been referred to a number of cases by way of comparison. The Crown in particular argues similarity between this case and the decision of R v Kaliti [2001] NSWCCA 268. I am also, on behalf of the offender, referred to the decision of the New South Wales Court of Criminal Appeal in the R v Kopack [2005] NSWCCA 83.
     

67. It seems to me that for each of the aggravated dangerous driving causing grievous bodily harm cases, on the basis of the objective seriousness, taking into account the subjective circumstances of the offender, bearing in mind the guideline judgment in Whyte and looking at the comparative cases and having consulted the statistics published for these cases, that the starting point for each is about 4 years. That should be reduced to 3 years to represent the 25% discount.
     

68. For the s 53 offence involving Mr Bisa, the starting point is 12 months reduced to 9 months to represent the discount which, in my view, should be by way of a fixed term, completely accumulated on the other offences. Whilst it is a separate victim, it is by far and away the least serious of any of the four offences and were it to be sentenced separately, may not require fulltime custody in any event, even if the s 5 threshold is reached. In those circumstances and bearing in mind the practical realities of this matter, whilst it is a fixed term, it ought to be served concurrently with the other offences.
     

69. If each of the sentences was accumulated on each other, that would give rise to a sentence of 9 years and 9 months. That is excessive in the circumstances. The total criminality, in my view, should give rise to an overall term of 5 years and with an overall non-parole period of 3 years, to take into account the special circumstances. I propose to give effect to that by fixing an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 for the aggravated dangerous driving causing grievous bodily harm offences, with a concurrent fixed term for the s 53A offence of 9 months.
     

Formal Sentence Orders

70. For those reasons, I make the following formal orders:
     

1. The offender is convicted in relation to each offence.
    

2. For each of sequences 4, 5 and 6: Sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 of 5 years, commencing 19 December 2017 and expiring 18 December 2022, with an aggregate non-parole period of 3 years, commencing 19 December 2017 and expiring 18 December 2020, with parole thereafter of 2 years, commencing 19 December 2020 and expiring 18 December 2022.

1. The indicative sentence

Sequence 4: 3 years

Sequence 5: 3 years

Sequence 6: 3 years

3. For sequence 7: Sentenced to a fixed term of imprisonment of 9 months, commencing 19 December 2017 and expiring 18 September 2018.
    

4. RE: 166 certificate offences (sequences 1, 2, 3, 8, 9 and 10): Back up offences are withdrawn and dismissed.
    

5. For each offence, she is disqualified from holding or obtaining a licence in New South Wales for a period of 3 years, to commence on the date she is released on parole, each concurrent with the other.
    

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Decision last updated: 28 November 2022