Regina v Catherine Louise Addison-Jamieson

[2007] NSWDC 280

CITATION:	Regina v Catherine Louise Addison-Jamieson [2007] NSWDC 280
JUDGMENT DATE:	16 November 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Dangerous driving occasioning grievous bodily harm ; Convicted. Sentenced 16 Months Non Parole Period; 2years 15 days balance of term. s, 166 Criminal Procedure Act - backup charge withdrawn.; Disqualified from driving for 3 years.
CATCHWORDS:	Criminal Law - Sentencing - Dangerous driving causing GBH - Speed dangerous - unaccompanied learner driver - speeding of hill's crest - car airborne - loss of control - backseat passenger rendered tetraplegic - circumstances in which an element of the offence is aggravated in criminality - hardship to third parties from prison sentence - onus of proof - quality of evidence issues - driving adult activity - general deterrence appropriate.
LEGISLATION CITED:	s 21A(2(g); and (3)(j) Crime Sentencing Procedure Act 1989
CASES CITED:	R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 Gladue v Regina [1999] 1SCR 688 [80] R v Whyte [2006] NSWCCA 340 R v Buttsworth [1983] 1 NSWLR 658 R v Hearne (2001) 124 A Crim R 451 R v Jurasic (1998) 45 NSWLR 209
PARTIES:	Regina Catherine Louise Addison-Jamieson
FILE NUMBER(S):	07/21/1153
COUNSEL:	Defence: B Longville
SOLICITORS:	CROWN: Mr Borosh Defence:Mr M Mantaj

SENTENCE

HIS HONOUR: 1. There are more than a thousand and one ways an automobile can kill, maime and destroy. Within a moment what was causing fun and laughter in a car can be turned into sorrow, tears and wreckage. Within the blink of an eye what was a life of promise, health and prospects can be changed in the collision to a life of handicap, illness and endless struggle. It is for this reason those who are permitted to drive motor vehicles must be ever vigilant, ever responsible, ever obedient to the motor traffic laws.

2. In October 2006 Catherine Addison-Jamieson was a learner driver, she was then aged eighteen. On 13 October 2006 she was charged, by police, with failing to display her L-sign and driving her grandmother’s car whilst not accompanied by a licensed driver. The following day she was involved in a collision, in circumstances where she was not displaying her L-plates and again unaccompanied by a licensed driver. Charges arising from that incident appear to have been laid on 21 October 2006. That is a third reminder to her of her prior offending conduct.

3. At 11.25pm on 24 October 2006 at Orchard Hills yet again she was driving her grandmother’s car, unaccompanied by a licensed driver. A sixteen year old girl, Robyn M, was her front seat passenger. In the rear seat was Jason B, a sixteen year old youth. Castle Road, Orchard Hills is an east/west road dissecting a semi-rural area with one lane in each direction. There is no guttering on either side of the road, the road is straight, but as the name of the suburb suggests there are hills. About 600 to 700 metres east of Kingswood Road there is a small crest followed by a larger crest, then a steep descent. There is a “CREST” sign on the approach to the larger crest. There is no street lighting but there are telegraph poles carrying electrical or power wires to the area with various smaller power poles carrying wires to the dwellings. The posted speed limit signs say 70 kph.

4. Catherine Addison-Jamieson was driving through this stretch of road. She wanted to show her passengers “How mad it was to go over the hill fast, as it’s like a roller coaster”. Approaching the crest she reached a speed of 110 kph. At the crest, grandmother’s red Holden Commodore became airbound as the road fell away. It landed in the westbound lane (the wrong side of the road for her) the driver slammed on her brakes. She sought to bring the car back into the eastbound lane. The vehicle’s skid marks cross the unbroken double white lines into and out of the eastbound lane onto the northern verge of the roadway.

5. That verge was a grass and gravel mixture. The car skidded, at least 67 metres, that is at least two-thirds the length of a football field. The rear of the vehicle collided heavily with a telegraph pole causing the pole to split into two pieces. In the last few metres of its journey it also took out three star picket fence posts and a 20 foot power pole.

6. In a moment Jason B’s future changed almost beyond belief. He sustained spinal injuries. He has limited movement in his arms and fingers, no movement or feeling from the bottom of his chest to the tip of his toes. He has a diagnosis of tetraplegia.

7. Today Catherine Addison-Jamieson is to be held accountable for her criminal behaviour. She has pleaded guilty to driving her grandmother’s car when it was involved in an impact occasioning grievous bodily harm to Jason B and at the time of the impact she was driving that vehicle at a speed dangerous to other persons.

The Court's Task

8. As sentencing judge it falls to me to resolve a number of competing tensions, as I strive to determine the appropriate sentence for this offence, before this Court, committed by this offender, harming this victim, in this community, Gladue v Regina [1999] 1 SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to her, that is subjective matters. The starting point for such assessment requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender.

9. My fact finding task has been circumscribed in that the parties have tendered an agreed set of facts. It is sufficient, at this point, that I remind the Court a judge is not party to the agreed set of facts. The tender of agreed facts does not relieve him or her from the fact finding responsibility it simply limits the material from which facts may be found. To the extent, if it be the case, that the facts as agreed do not reflect the actual events that occurred, it must be remembered the Court can only find facts from the evidence placed before it.

10. This offender’s rehabilitation prospects will have to be assessed, as best I can, even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, available discounts, if any, whether special circumstances are to be found, back up charges brought from the Local Court to be finalised in this Court and finally of course the ultimate length of the term of imprisonment or other penalty that is to be imposed. None of these can be commenced until the primary facts are determined.

11. What weight needs to be given to all of these matters against the imperative that all sentencing should have, as its primary focus, the protection of the community, will also need to be determined, see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

FURTHER FACTS

12. The crash investigation unit officer having observed the scene reported,

5. At the time of my arrival it was dark, there was no street lighting in the vicinity of the collision. The weather was fine and dry. The roadway was dry. The road surface in the vicinity of the collision was bitumen construction. The road surface appeared to be in good condition...

8. I noticed there was major damage to a Holden Commodore... the damage was concentrated to the rear of the vehicle...

12. The second skid mark started in the eastbound lane, it crossed over the first skid mark and finished near telephone pole number ... the total length of the skid mark was approximately 29.7 metres.

13. The third skid mark started in the westbound lane. The skid mark crossed the unbroken double white lines onto the eastbound lane. In the eastbound lane the skid mark had striations near the northern side of the roadway. These striation marks continued onto the northern side of the roadway. These striation marks continued onto the northern side of the roadway into furrows. These furrows finished where the star picket fence was damaged. The total length of the skid mark was approximately 56.8 metres.”

Striation marks indicate that although the car is travelling forward the rear of the car is jutting outwards so that the car is travelling forward, but at an angle with all four wheels making their own path forward.

13. Ms Addison-Jamieson gave evidence that at the time of the impact she had been driving for two years, but did not describe herself as an experienced driver. Her evidence was that because of her family circumstances it was difficult for her to have a fully licensed driver with her. Her father is presently in prison, although at the time he was living with them and had lived with them for two years. He did not have a licence. Her Grandmother, with whom she lives, is sick, while her mother suffers multiple sclerosis, to a point of it being a significant disability for her. Only the grandmother is a licensed driver.

14 .That evidence however, needs to be contrasted with the evidence of the offender’s mother, who thought her daughter had her “P” plates. The mother was unaware her daughter had been breached for driving without a driver’s licence. The offender’s evidence is that she had told her grandmother, the owner of the car, she had her P’s. When she drove the car she claimed she would display the P’s. However, on 24 October 2007 the offender conceded there were no P plates displayed. I am satisfied the offender deceived her grandmother as to her licence status and lawful entitlement to drive the motor vehicle. The offender told Probation and Parole she also deceived her mother on that score as well.

15. The offender’s account of the circumstances in which the impact was occasioned is to be found on page 7 of the transcript.

We were approaching the hill and I was accelerating up the hill and then as we approached the top of the hill I realised I was doing between 100 and 110 and I went to apply the brakes, because I knew that was too fast and by that time the car had gone over the hill and was airborne. The brakes weren’t touching because the tyres weren’t on the ground.”

On the same page she reviews the injured state of Jason B

…- apparently we were knocked out so when I woke up I got out of the car, I left everything how it was. I saw Robyn go over to the side of the road and she was sitting on the road and then I realised Jason wasn’t out of the car. I went back to the car, I realised there were power lines around the car and I was worried that the car was going to catch on fire. I saw Jason had his seatbelt on and he was trapped and I didn’t want to undo it and move him because of spinal injury. I just wanted to keep him awake. So I yelled at him to wake him up, because he was unconscious.

Then when he woke up I kept asking him questions to keep him awake until the ambulance arrived.”

16. The offender told Fabiola Bedon, a consultant psychologist retained by the defence that the spinal injury occasioned to Jason B, had occurred because a spare tyre apparently loose in the boot of the motor vehicle had come through the back seat into the cabin, striking Jason B in his spinal area. That the tyre could break through those barriers, indicates the speed that the vehicle was going.

17. A more detailed review of Jason B’s injuries comes from the medical reports. Dr Magdalena Mironowicz in an expert certificate dated 19 January 2007 records that:

“Jason was noted to have distal arm weakness, loss of movement in the legs and was combative and confused. He had bruising and swelling around the right eye and bilateral knee abrasions. X-ray and CT scans revealed no obvious intracranial injury. There was an unstable fracture of the cervical spine centred around C5 and C6. A haematoma and herniated disc posterior to the body of the C5 compressing the spinal cord was identified. Fractures of the transverse foraminae of C5 and C6 bilaterally raised the possibility of a vertebral artery injury. An anterior subluxation on C5 and C6 of five millimetres was also seen. Numerous pulmonary contusions” [that is bruises to the lung] “were seen on the CT scan. There was a comminuted fracture of the blade of the left scapula. Abdominal CT revealed thickening of the jejunal loops which may signify a small bowel injury without any perforation. An intra-articular fracture involving the right acetabular roof extended superiorly into the right iliac bone was identified.”

18. This case was beyond the resources of the Penrith Hospital where Jason B had been transferred. He was transferred to the Prince of Wales. Dr Harry Peters from that hospital reports that at the scene of the accident he was found unconscious with his head flexed and wedged between the seats and the floor.

19. His Glasgow Coma score on arrival at Nepean Hospital was 8, which improved to 13. He was noted to be in spinal shock with bradycardia and priapism. He was noted to be tetraplegic with no movement in arms or legs. Other injuries sustained in the accident were cervical spine, 5,6 fracture of the vertebral body. Fracture of the right pedicle of C6 with fragment into the canal. 75 percent of the canal at C6 was obliterated. Chest:- Lower left lobal contusion, comminuted fracture of the left scapula. Pelvis:- Stable right pelvic fracture which extended into the right hip joint.

20. There is an inconsistency between what Dr Peters reports and the offender's account of talking, that is of the victim having a Glasgow coma score of 8 on arrival at the hospital and being unconscious when police arrived and the offender talking to him, to keep him awake.

21. Jason was treated in intensive care from 25 October to 7 November, when he was transferred to the Acute Spinal Unit at Prince of Wales. There he remained until 23 November. His next treatment centre was the Spinal Rehabilitation Unit, also at Prince of Wales where he remained until 9 May 2007. He was discharged from the Prince of Wales on that date, nearly seven months after impact. There is a second report from Dr Peters dated 1 November 2007. It reports that since the accident Jason has been treated in the neurological unit and in the rehabilitation units.

“Of concern now is his present state of health and what he can and cannot do since his injury.

1. [Jason] has been and continues to be wheelchair bound.

2. He has a carer who looks after his toilet needs and all his personal care.

3. He is having daily dressings of spinal pressure areas.

4. He has seen an orthotoist.

5. He depends on a private nursing agency.

6. He has a regime of daily Microlax enemas to regulate his bowel motions.

7. He is fully dependent for all activities of daily living.”

That is a sad litany of the impact and legacy of this motor ride for Jason B.

22. The other passenger, Robyn M, was also conveyed to Nepean Hospital. She sustained soft tissue injury. The offender was conveyed to Mount Druitt Hospital. She too sustained soft tissue injury.

23. On 27 October 2006, three days after the impact, the offender participated in an interview with police. She told them that at the time of driving she was tired. Her female passenger told police that in a conversation immediately prior to the impact the offender said she was tired. I am satisfied the offender said words to that effect and that there was some tiredness. But the tiredness did not impact upon her decision to accelerate the car over the crests. Nor did the tiredness impact upon the offender’s decision making judgment or execution of such driving skills as she had on this night.

Objective Criminality

24. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in the instant offence with criminality of offences of a similar kind. It is, in this way, that the objective seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact on the overall sentencing.

25. The roads of the State are, for the most part, owned by one of three levels of government. That is the Federal Government, the State Government or the Municipal Government. There is no inherent right to drive upon the roads, they are not the private property of any individual, they are the property of the State. Only those accorded the privilege of a licence are entitled to drive upon the roads. Licenses are only issued to those who, by submitting themselves to tests of their driving skills and their knowledge of the road rules, agree to be bound by the rules of the road so that the safety of others who use the road, is assured. The purpose of those tests of driving skills and knowledge is to ensure, for other road users, that drivers at least reach a minimum standard of capacity to manage and control a car before they are permitted to drive on the road alone.

26. In addition to the road rules, the criminal law has been harnessed to punish those who, as a consequence of dangerous driving cause a vehicle collision as a result of which really serious injury is caused to another person. The criminality of this offence has to be evaluated against that background. Many offenders have difficulty understanding that an offence such as this one, is a criminal offence, as distinct from a driving offence, because they did not intend harm to their victim. From the victim’s point of view, of course, he, in this case, did nothing towards the offender that caused this injury to him. It is true that the criminal law does have a role to play where offender’s with malice do violence to others. But it is also true that the criminal law has a role to play where driver’s, through their unlawful conduct, moral culpability and abandonment of responsibility do violence to others and that is this case.

27. The unlawful conduct of this offender, and her driving in a speed dangerous to the public was unlawful, resulted in serious violence to the body of her friend and the resulting devastating and permanent injury to Jason B.

28. This court has the benefit of a Court of Criminal Appeal guideline judgment, R v White [2006] NSWCCA 340. The Court of Criminal Appeal is a court having authority over this Court. R v White requires this Court to assess the degree of moral culpability involved when determining the appropriateness of a full time custodial sentence. A key to determining the level of moral culpability is to ask

Whether the combination of circumstances are such that it can be said the offender ... abandoned responsibility for her conduct in the driving that lead to the impact?

29. The Chief Justice, the author of the guideline judgment, postulated that one lone individual aggravating factor was on its own capable of indicating a high degree of moral culpability. Although he said, such a conclusion is more likely where aggravating factors exist in combination.

30. Whyte, the guideline judgment, at p228, presented a useful check list. Of relevance to this case are the following items from that checklist:

“1. Extent and nature of the injuries inflicted.

2. Number of people put at risk.

3. Degree of speed.

5. Erratic or aggressive driving.

6. Competitive driving or showing off.

7. Length of journey during which other were exposed to risk.

8. Ignoring of warnings.

10. Degree of sleep deprivation.”

31. There appears to me to be an important further aggravating factor that may not have been of relevance in R v Whyte but is of relevance here. Namely, driving in circumstances where it was unlawful so to do.

32. I now turn to each of the itemised aggravating features that I have selected coming from the check list.

1. Extent and nature of injury inflicted. I have reviewed in detail the nature of the injuries inflicted. Those injuries are at the extreme end of seriousness. While it may be possible to imagine more serious injuries than these, these reached that level. Even if the injuries are not intended, injuries of this calibre are a measure of criminality, see R v Buttsworth and s 21A(2(g) of the Crime (Sentencing Procedure) Act 1999 .

33. The fact that the offender did not intend the injuries, puts this case outside the criminality associated with malice. But clearly a case where injury is serious represents greater criminality than the same offending act injury is trivial because the more severe consequence of the offending act where injury is the greater.

34. 2.Number of persons put at risk. In this case the only persons put at actual risk were the offender and her two passengers.

35. 3.The degree of speed. Speed is an essential element of this offence, as such it’s capacity to be an aggravating feature, needs to be delineated.

To constitute an element of the offence the speed of the vehicle must reach a point where it becomes the feature of driving, that is dangerous to the public. To the extent that the speed exceeds that point and the danger to the public becomes more acute then that additional speed must be seen as the aggravating feature.

36. I have sought to take into account speed as an element of the offence when exploring the Chief Justice’s list of aggravating features as established by authority. The degree of speed at which the car was driven exhibits a gross abandonment of responsibility. The agreed facts express the speed reached 110 kilometres. The speed limit there was 70 kilometres. This speed is 40 kilometres above the marked speed limit.

37. The speed has to be measured through a number of other prisms to illustrate the abandonment of responsibility. As a learner driver the offender was not permitted to drive above a speed of 80 kph. The signed speed limit, as I said, was 70 kph. Her driving skill base was inadequate to manage the vehicle at the speed she was travelling on a flat surface yet she was cresting two hills, at night, in a street with no lighting. She was driving above her set speed limits with no experienced licensed driver to assist her should she get into trouble. She had no good reason to be driving at this speed.

38. In driving at the speed that she was, she was endangering at least three persons in her vehicle. She was driving at a speed which, if her account is correct and there was a loose tyre in the car and the car was stopped suddenly, that tyre could be a lethal weapon.

39. In the guideline judgment aggravating feature 5 is expressed as “erratic or aggressive driving”. The offender’s driving as she attacked the hill was aggressive, she “gunned” (my word) the accelerator to reach 110 kph. Implicit in this head of aggravation is the proposition that particular features of the manner of driving may aggravate the criminality. In this case a number of features about the driving, in addition to its aggressiveness aggravate or constitute the aggressiveness of the driving.

40. Firstly, the offender’s driving through the whole of that day culminating in the incident at Castle Road was unlawful. The moment she sat behind the wheel, without a licensed driver by her side, whatever else she did, her conduct was unlawful. She abandoned responsibility to her fellow citizens and the State. It is inconceivable to imagine that a licensed driver would have permitted her to drive at the speed she did along the particular section of road she was travelling. It was the offender’s decision to toss that safeguard out the window. That was a contributing factor to this incident.

41. The loss of control occurred because at the speed she drove over the crest, the car became airborne. The offender’s level of driving skills was inadequate, demonstrably so. She did not intend that the car would become airborne. That was the first error of judgment. Her response was to apply the brakes as she was landing. That was her second error of judgment. Stopping the wheels when the car was landing caused it to skid. A skidding car is more difficult to control. Her loss of control through the car being airborne saw it land, or at least end up, on the wrong side of the road. She then oversteered the car, again an error of judgment, across to the correct side of the road and then off that side into the verge of grass and gravel. As the car was in the eastbound lane the rear of the car came out of alignment. This eighteen year old girl had no idea how to, nor the skill level required to manage the vehicle. Nor did she have the driving experience sufficient to foresee that the speed that she was driving at, as she crested the hill could go so horribly wrong.

42. She lacked the foresight, lacked the driving skill, at that speed. Her willingness to drive when it was unlawful for her so to do are circumstances all pointing to an abandonment of responsibility to deliberately determine to drive this stretch of road at 110 kph.

43 6 Competitive driving and showing off It is to be remembered the offender told the passengers she wanted to show them “how mad it was to go over the hill fast", as it’s "like a rollercoaster.” While that may be an aspect of showing off, what she was doing was to use the vehicle for thrill seeking gratification. It was the desire to increase the thrill that lead her to increasing the speed to a level of dangerousness to other people, particularly her passengers.

44. Thrill seeking is far from an appropriate purpose to drive a car at speed dangerous to others on public roads. Racing car and rally car drivers, who are prepared to drive their vehicles at dangerous speeds do so in highly regulated circumstances. They have the skills, indeed I understand they require a special licence. They have specially modified or designed cars. They wear protective clothing and there are strictly enforced rules, practices and procedures to be observed through the driving, whether on the dedicated racing tracks or the prescribed and patrolled rally routes. Usually they have reviewed the route or circuit that they are travelling on, so that they know it fairly well. To state all this is to demonstrate the abandonment of responsibility exhibited by this offender when she deliberately chose to drive her vehicle at a speed dangerous to others.

45. The measure is the rally car driver wouldn’t have done it in that vehicle in the circumstances in which the three youths found themselves.

46. 7. Length of journey during which others were exposed to risk There is no doubt that the risk was at its highest at the point at which this impact occurred. But my view is that driving with this unlicensed driver, without an authorised licensed driver by her side was exposing her passengers’ to risk throughout the whole time they were in the vehicle.

47. 8. Ignoring warnings. On 13 October and again on 14 October she had been caught by police driving without a licence. On 14 October she had been involved in a motor vehicle accident and charged with negligent driving. Those charges are dated 21 October, although I don’t know whether she received them at that time, it is likely she received them before the 24th. They may have been Court Attendance Notices posted to her. Past behaviour is frequently a learning tool. We are supposed to learn from our past mistakes. They are warnings to us. This offender ignored those warnings. Her driving, knowing she was not legally entitled so to do constitutes a deliberate flouting of the law. The deliberate flouting of the law in circumstances such as this adds to the dimension of moral culpability.

48. Having regard to the offender’s impoverished skill level, absence of licensed driver, her decision deliberately to break the posted speed limit by 40 kilometres in circumstances where her vision beyond the crest of the hills was obscured, this offence was committed without regard to public safety. On the other hand, although she had been charged with driving offences that had not yet been resolved by the courts I do not regard her as having made any undertaking to the court in respect of her future conduct. She was not on bail or any form of conditional liberty at the time this offence was committed.

49. 10. Degree of sleep deprivation The offender told police and her companion she was tired. There is no evidence persuading me, beyond reasonable doubt that her sense of tiredness was sufficient to have played any part in her offending conduct. I have not aggravated her criminality on that account. Factors contributing to the offender’s moral culpability are the factors relating specifically to her driving. The first two factors I dealt with, the extent of the injury and the number of persons put at risk will impact adversely in the assessment of her criminality. But her moral culpability and abandonment of responsibility fall to be assessed on the other factors I have dealt with.

50. There is a wide spectrum of behaviour indicative of differing levels of moral culpability. That is differing levels of abandonment of responsibility. This offender’s behaviour must be placed somewhere on the continuum between what is called “momentary inattention” and complete “abandonment of responsibility”. A review of the factors I have just made puts this offending conduct above a mid point on the continuum. There is no suggestion of any presence of alcohol or drugs in the driver’s blood system nor of competitive driving. While the speed she was driving at was gross, namely 110 kph, it could have been worse. Her conduct post impact would appear to be all that could be asked of her. She was not fleeing the police at the time of the collision. Finding the precise words to quantify her level of abandonment of responsibility is difficult. I put it above a mid point. I choose to describe it as serious. The cases put the upper limit as “abandonment of responsibility” or “high moral culpability”.

51. Objectively this case does not fall in a worse category. There are, however, features making it or bringing it into a serious category. The seriousness of the injury as I have said also impacts adversely upon the assessment of the objective criminality. The number of people put at risk is limited to three. That factor does not impact as adversely as it would if the number had been greater than three.

52. The Chief Justice in an earlier guideline case Jurissic [1998] 45 NSWLR 209, identified a typical dangerous driving case as having the following characteristics.

1.Young Offender.

2.Of good character with no or limited prior convictions.

3.Death or permanent injury to a single person.

4.The victim is a stranger.

5.No or limited injury to the driver or the driver’s intimates.

6.Genuine remorse.

7.Plea of guilty of limited utilitarian value.

53. In this case the victim was within the car; known to the offender, not a stranger to her. What is not explored in the evidence is the extent of his knowledge regarding the offender’s driving experience and qualifications. In the absence of proof I have neither assumed nor attributed any knowledge to him. There is nothing to suggest he lent any encouragement to her driving or in anyway contributed to the impact. In those circumstances I see little difference in the criminality associated with injuring a stranger as compared to injuring this innocent associate. This case falls to be considered as a typical case.

54, The guidelines promulgated focused attention upon the objective circumstances of the typical case. The guideline promulgated in Whyte was in these terms.

Where an offender’s moral culpability is high a full time custodial sentence of two years, in the case of injury, amounting to grievous bodily harm would not be appropriate.

55. Put another way, the guideline calls for a full time custodial sentence in excess of two years where the moral culpability is high.

56, As I said this guideline is based upon objective circumstances only. Subjective circumstances to which I will come after the morning tea adjournment impact also upon the sentence.

SHORT ADJOURNMENT

HIS HONOUR: 57. Victim Impact Statement. I have received a Victim Impact Statement. The material contained in the victim impact statement is not sworn evidence and has not been the subject of cross-examination. To the extent that opinions are expressed in the statement, in this case they are opinions of a social worker..(not transcribable)..

58. The function of statements such as this one is firstly to give to the victims the opportunity of being heard in sentencing proceedings, by publicly identifying the impact of the trauma visited upon them by the actions of the offender. Secondly, to enable the sentencing procedures to assist victims as they move towards some closure of grief, resentment and brooding arriving from the criminal conduct of an offender. Thirdly, the victim impact statement contributes to an offender at least hearing first hand and perhaps gaining an insight into the impact her offending conduct had upon the victim. Finally, the victim impact statement ensures that the Court has a continuing consciousness of the impact violent crimes have upon those ordinary men and women who are its victims. As such victim impact statements play a very important part in the administration of criminal justice.

59. The author of this victim impact statement is Elizabeth Davies, a social worker having twenty-five years of clinical experience. She says that Jason is tetraplegic, confined to a wheelchair as a result of the incident. He reported he has no sensation or voluntary movement below his mid chest. He has no movement in his fingers and limited movement in his arms. He reported his whole body spasms and feels at times as though it will snap. As a result of these spasms he has developed a pressure sore on his knee where it has involuntarily rubbed against the other. Jason spent eight months in Prince of Wales Hospital, mostly in the spinal injuries unit. He returns to hospital on a weekly basis for ongoing rehabilitation, monitoring of his condition and treatment of the pressure sore that has developed.

60. Jason is dependent on others for all his personal care. This includes feeding, bathing and toileting. Limited arm movement allows him to feed himself a little but he says he makes a mess. He spoke of previously enjoying his independence stating “now it’s all gone”. He stated he enjoyed spending time with friends and a range of sports including soccer, football and riding his bike.

He expressed the wish to be alone at times and to go out in his wheelchair. His mother fears for his personal safety because of his physical vulnerability and doesn’t want him out alone. These times he reported thinking “Mum let me go,” and “Leave me alone.”

61. He describes himself feeling bored, stating he spends his time playing X-Box and using a mouth activated laptop computer to play computer games. When asked about his future, Jason stated, “I don’t think I’ll be around for the future.” He spoke of being interested in girls but looked towards his wheelchair and stated “I tried to get over it.” He spoke of conversations that occurred with other young men in the spinal injuries unit, indirectly acknowledging that a sexual relationship is not something he can assume is possible.

62. There is hearsay evidence that he experienced mood swings and can be “angry and nasty and then kind.” His mother stated that Jason “Yells at her” to which he added, "I yell at everyone". He expressed a long standing dislike of routine, acknowledging that routine is now crucial for the nurses and family members who perform his personal care.

63. He said that if it was up to “Me, I wouldn’t have them.” meaning his carers. Jason spoke about the memories of the incident being very fresh in his mind. He spoke about trying not to think about the incident and trying to get it out of his head.

64. He states that he avoids talking about it and is aware of people looking at him and looking away and also aware of the “what happened” questions he was asked by people he meets. Jason reports that he experiences what he calls flashbacks. He spoke of these occurring while he is sleeping, several nights a week and up to five times each night of these times he spoke of the flashbacks “kicking in” and “seeing and hearing everything like a movie.”

65. Jason spoke of repeatedly having a dream in which he tries not to go in the car with the offender, but despite his efforts always ends up in the car “reliving” what happened “seeing the hill and the pole.” He describes his sleep as unsettled as a result of these flashbacks and the involuntary spasms of his body. 66. Jason spoke of a variety of triggers for memories of the incident. He stated that “going down hills” “even in his friends’ car is frightening, telling them to go slowly and to stop for a second so that he can get used to the hill. Jason reported he doesn’t like to talk or think about the incident and the injuries he sustained. He admits he tries to make a joke and laugh off the difficulties he continues to experience. As an example, he recalled an episode of incontinence at a local shopping centre which was obviously embarrassing, but about which he laughed as he retold it.

67. He spoke with apparent bravado at times appearing to minimise his emotional responses. The impact of what has been happening stating “I don’t care about it” whilst admitting that he had cried. He reported avoiding talking to psychologists or social workers while in hospital and that he has spoken very little to family members about his thoughts and feelings. This may help to explain the continuing presence of his trauma symptoms, his recurrent thoughts and memories, flash backs and dreams.

68. That’s as much of the victim impact statement as I am going to publish.

SUBJECTIVE CIRCUMSTANCES

69. I turn now to the subjective factors. I am both entitled and required to do that. As I said earlier, not only am I sentencing for the criminal offence, but I am also sentencing this offender for it. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to the offender may offer to the Court some explanation and insight into the commission of this offence by this offender, nor some reason why a more or a less sentencing outcome is appropriate.

Personal care, family background, relationships.

70. Catherine Addison-Jamieson was born in April 1988. In October 2006 she was eighteen and a half years old. She is now nineteen and a half, she is single. She says there was a two year relationship she had with a boy aged nineteen when she was aged, seventeen. That relationship ended when he formed another relationship. She resides with her mother and grandmother, both of whom have chronic debilitative medical conditions. The offender is in receipt of a carer’s pension. Catherine Addison-Jamieson was born to a sixteen year old mother. The mother is still supportive of her daughter, but at nineteen the daughter is the mother’s carer. At thirty-eight the mother suffers from multi-sclerosis. She receives a disability pension. The grandmother has been in a string of eight car accidents in five years. She also has the legacy of work related injuries. These have caused injuries to her back, neck, crushed vertebra and slipped discs. She has had cancer of the cervix, deep vein thrombosis, in her left leg. She suffers from diabetes and high blood pressure. The disabilities of the senior adults is a topic to which I must return.

71. Ms Addison-Jamieson’s father is a recidivist criminal. He has been in and out of gaol. She first met her father when aged twelve. Currently he is said to be in Cessnock Prison serving a sentence of some unspecified length. It is said he has experienced alcohol and drug abuse problems. It is said by the offender he has become more and more aggressive towards her. The offender also claims he has become very aggressive towards her mother.

72, Her evidence was that she had previously obtained an AVO against him. She claimed he had nowhere to stay and her mother let him return to the house. She could not handle being around - for her the things he was doing amounted to torture.

73. An apprehended violence order was obtained on 19 September last year. The terms of the order, as I read them, would permit the father to remain at the premises provided he did not engage in conduct amounting to intimidation, assault, molesting and the like.

74. The mother’s evidence was that the daughter was continually seeking to please her father to no avail. Her evidence was he had lost his temper with her (the mother) once or twice. The lifestyle pursued by Catherine Addison-Jamieson was focused particularly on her mother and grandmother and matters to do with the home. Consequently her network of peers is confined. A family friend told Probation and Parole there was a lack of friends her own age. Catherine Addison-Jamieson claims a full daily routine caring for the adult family members, that gives her time to walk the dogs, but she does not have many friends any more.

Education, employment and incapacitated relatives.

75. Ms Catherine Addison-Jamieson’s account is she left school halfway through Year 11 to care for her mother and grandmother. Her schooling was unstable. She had been to nine schools, some private, some public. Her account to Ms Bedon was that she changed schools because she was targeted by bullies, at the various schools, particularly teasing her about her weight and size. She continued her education via Sydney Distant Education High School where she met requirements for the School Certificate. She discontinued her education following committing the present offences. She told Probation and Parole she intends to resume studying high school. She told the Court she was enrolled to do a home TAFE course next year at OTEN, when she will do Year 12 Certificate and Child Care and Welfare.

76. At nineteen she has not yet been in paid employment. Since she left school she has been in receipt of a carer’s pension. As early as age nine or ten she said she was making breakfast and bringing tablets and things to her mother and grandmother. Her mother was diagnosed with MS in 2003. I am satisfied she was having health difficulties for sometime before 2003 and before a correct diagnosis was made.

77. In evidence Catherine Addison-Jamieson gave a detailed account of her daily routine, page 9.

“I will wake up in the morning, I will come out, I will prepare breakfast and get their morning tablets ready then I will put my Nan into the shower and then get their clothes ready. Then when she’s come out I will do the same with my mother. Then I make sure they’re settled for the morning and then I will do some house cleaning. Maybe some washing up or put a load of clothing on. Then I would prepare lunch; then their lunch time tablets and then my Mum has afternoon tablets in between dinner and lunch and then I might take Mum for a walk in her wheelchair with the dogs down to the park or something to get out of the house. Then of an afternoon I would prepare dinner, get their night time tablets ready and either shower them or get them ready for bed.

Q. What does your mother do for a herself on a daily basis?

A. She can dress herself as long as I bring her the clothes and things. She can take herself to the bathroom. If I help her into the bathroom she can do bathroom things herself. She’s all right with communicating with people as long as she’s not having a bad day, then she tends to slur, so I have to do her appointments and things like that as well.”

78. The difficulty with that account is that on the day of the impact she had been out with her friends and was intending to sleep out with them. It is difficult to reconcile her claim of total commitment to her mother and grandmother together with their claim to total dependence upon her and her conduct for the day and night of 24 October. I have not ruled out the possibility that she was also away from home for a substantial period on 14 October as well.

79. There is no medical evidence delineating the extent of the grandmother’s incapacity nor any expert evidence going to the depth of the grandmother’s dependence upon her granddaughter. The evidence fails to establish whether the offender is regarded by the relevant government department as the carer for both her mother and her grandmother, in saying that I accept that Ms Catherine Addison-Jamieson effectively gives that evidence orally. However, examples I have given of what appear to me to be conflicting positions convinces me the offender is inconsistent in the evidence she gives.

80. I accept both mother and grandmother receive disability pensions. I accept the offender receives a carer’s pension. I have heard from Ms Leanne Addison-Jamieson. There is a two line medical report describing Ms Leanne Addison-Jamieson as suffering multiple sclerosis which has given her “intermittent neurological symptoms over recent years”. It is difficult to build a case of total dependency upon such a report. Ms Leanne Addison-Jamieson’s mobility is compromised. The level of compromise apparently varies. On the day of the hearing she presented in a wheelchair. Acceptance of a need for a wheelchair is a decision usually taken with great reluctance by MS sufferers because of the associated private stigma attached to the inevitability of public recognition that such an advanced state of the MS has been reached that equipment associated with severe handicapped is now an essential requirement.

81. Ms Leanne Addison-Jamieson tried to approach the witness box for the purpose of giving evidence from her wheelchair. While I do not doubt her courage in making the attempt her progress was so precarious and difficult for her that I intervened. She gave evidence seated in her wheelchair in the well of the Court.

82. The evidence establishes there are no other relatives available to take full time care of these two women. While I remain unsatisfied that the quality of care offered by her daughter is as committed or complete as the daughter would have me believe I am also satisfied Ms Leanne Addison-Jamieson is in need of such care. Further I am satisfied, but for, some casual intervention from Hillsong Church and perhaps other charities those functions that the daughter should be performing will not be performed in her absence by any other person.

83. I note that she does appear to have support of a Stephen Rowe, an engineer, although the extent of that support is unclear in the evidence. I have been troubled whether it is better to have a mediocre self-focused carer or no carer at all.

84. As to the grandmother’s need for the carer the evidence is unsatisfactory. She is the only licensed driver in the family. That suggests a level of competence and mobility. On the other hand the offender and her mother say she is in need of care. Not all persons on a disability pension are in need of a carer. If I was required to consider the grandmother’s case alone, whether it would be inhumane to ignore her needs in the sentencing, on the evidence currently before me I am of the view the defence would have failed to persuade me. The onus is on them. The quality of evidence required would need to demonstrate with some precision the nature of the illnesses and the reason why a full time carer is required. There should be expert evidence from medical diagnosticians and reasonably, an occupational therapist supporting a case for extraordinary circumstances.

85. I note the grandmother was at the court hearing and indeed is here today. She appears to have reasonable mobility as she came and went from court. I am prepared to accept she would benefit from having a support person living with her. I accept her own daughter, Ms Leanne Addison-Jamieson’s health is too poor to offer such physical supports as the grandmother may need. I am satisfied the offender’s father is, at best, unsympathetic to the needs of Ms Leanne Addison-Jamieson and her mother. He is abusive and perhaps worse. I am satisfied the offender’s time in custody will be more arduous for her knowing her mother is without the support she needs and the grandmother likewise. But as I say the grandmother’s needs have not been clearly delineated.

86. Short of institutional care, assuming institutional care was ever a possibility, Ms Leanne Addison-Jamieson will be without support. She says her condition has stabilised. Whether stabilisation will continue is speculative. Even as she is, it would be inhumane not to consider her needs when I come to sentence her daughter.

General Health.

87. There is nothing before me to suggest the offender has any major health problems. She is sensitive about her weight, she presents as a nineteen year old who may be having personal issues with her weight, but her weight is by no means at any extreme end.

Mental Health

88. Ms Bedon assessed the offender for the defence. She is assessed as being in the low average range of cognitive ability. Her personality profile indicates marked anxiety and episodes of obstructive anger. It was Ms Bedon’s opinion that the offender is usually able to function on a satisfactory basis, but may experience periods of marked emotional, cognitive and behavioural dysfunction. She experiences prolonged periods of depressive and anxious moods with panic attacks. She has very low self-esteem. Also of significance was dependent and impulsive traits.

89. Catherine Addison-Jamieson is a candidate for numerous psychological issues. Aged four she was sexually molested, there was a reference to her being molested to the extent of penile vaginal intercourse and it was said over a year. Apart from the oral history there is nothing before the court to crystallise the picture other than sexually molested. Although the offender moved from the neighbourhood she still, it is said, seeks counselling, psychological counselling from time to time in respect of this matter.

90. .Her father is an abuser, unstable and a negative influence. Her peer group contacts are minimal and it would appear no good support can be expected from them. Although she is the daughter she has become the carer of both her mother and grandmother, a significant role reversal. To whatever other psychological issues she has, she is now trying to cope with her part in the disenabling and permanently incapacitating another human being about which she feels much guilt. I am satisfied there is a real need for psychological counselling for her of some intensity.

Alcohol, drugs, gambling, addictive behaviour.

91. There is nothing in the evidence before me to suggest any of these matters are any problem in the offender’s lifestyle.

Character and criminal history

92. As to her character, while I regard her as overstating her past caring duties I am satisfied for some years now she has involved herself in the care of her mother and to a lesser extent in the care of her grandmother. For a teenage girl this role was no doubt demanding. Fulfilling it, even if imperfectly, deprived her of many opportunities of being a young girl and mixing with other young girls. She has been required to assume responsibilities beyond her age. She acknowledges that she should be fulfilling the responsibilities, although as I say, to me it seems somewhat imperfectly.

93. I have already drawn attention to the driving charges presented against the offender. I took account of those charges adversely on the issue of the warning they presented to her. I do not otherwise regard the offender’s criminal history as an adverse matter. The only matters on her antecedents are traffic matters earlier referred to. Putting to one side the specific issue I dealt with in respect of her antecedents, her antecedents and her character do not disentitle her to consideration of some mitigation of penalty.

Attitude to the Offence

94. There can be no doubt this offender is profoundly remorseful. She has sought counselling because of flash backs she has had to the impact scene. Her evidence was

“The fact that Jason was such a nice and caring boy and that I’ve done this to him and I put this pain into his family’s life every day that ... is not ..(not transcribable).. and I constantly have flash backs to seeing him in the back seat and the actual accident happening. I just - I wish I could speak to his family and explain how sorry I am. I know that wouldn’t do anything for them ...”

“I would just like to tell him that I am so sorry that changing his life forever he didn’t deserve this, he was a good person and I’m so sorry for what I’ve done and I didn’t do it on purpose. I didn’t intentionally want to hurt him.”

Plea Status

95. The offender pleaded guilty before Magistrate Bartley at the Penrith Local Court on 24 August 2007. She adhered to that plea before this Court. I regard that plea as early entered. I intend to give a discount of 25% based upon the early plea as demonstrating acceptance of full responsibility for her offending conduct and her profound contrition.

Rehabilitation prospects

96. There are a number of features pointing to positive rehabilitation prospects.

Strong support from mother and grandmother.

Plea of guilty and insight into offending conduct.

Remorse.

Limited criminal/traffic record.

Plans to advance her education.

97. On the other hand there are also negative indicators.

Serious emotional and psychological issues yet to be resolved.

Counter productive influence of her father.

Failure in the past to heed warning signs.

98. Overall however I regard her rehabilitation prospects as more positive than negative.

SETTING THE SENTENCE

Deterrence.

99. Notwithstanding the youth of the offender this is an offence in which deterrence is called for. That is because driving a motor vehicle on public roads is an adult task. In our society, obtaining a driver’s licence for young persons is part of their right of passage from youth to adulthood. It is an acknowledgement by them that they are prepared to take on the adult responsibilities that come with driving a motor vehicle. Therefore their criminal offending, when they drive their vehicles must be seen as adult criminal offending and considerations usually applicable to youth, in my view, do not apply when they sit behind the wheel of a vehicle and drive it lethally.

100. One expects however, that the vehicle impact itself, the horrific injuries occasioned to Jason B, the subsequent charging and court proceedings, the denunciation of her irresponsible criminal conduct by a judicial officer and the subsequent incarceration to follow will constitute all the personal deterrence that is required in this case. The maximum penalty for this offence is seven years imprisonment.

Applying the plea discount

101. But for the plea of guilty I would have imposed and overall sentence, for this offence, of four and a half years. That figure is reached by taking the objective criminality into account, that I have referred to, and the subjective features that I have referred to. That sentence of four and a half years is to be discounted by 25%, making a discount of thirteen months and fifteen days. Giving an overall sentence of three years, four months and fifteen days.

Finding Special Circumstances

102. In the normal course of events the non-parole period should be about three quarters of the sentence. If special circumstances are found the non-parole period can be a little less than three quarters of the sentence. I intend to find special circumstances. My reasons for so doing are these.

This is the offender’s first time in custody.

Her youth.

“It is never easy to sentence a young [woman] to a custodial sentence. s 5 provides the court should not do so unless it is the only appropriate penalty. However, there are cases and this is one of them, where not to do so would be to fall into appealable error. The youth of [this offender] is particularly relevant to the determination of the relationship between the non-parole period and the head sentence. Despite the significance of deterrence and the need to protect the public, youth is still relevant to the assessment of overall criminality. [source of quote to be determined].

Bearing in mind s 21A(3)(j) of the Act

The observation of the Court of Criminal Appeal in R v Hearne (2001) 124 A Crim R 451 at 461”

103. Catherine Louise Addison-Jamieson I convict you of driving a vehicle, namely your mother’s Holden Commodore, when it was involved in an impact occasioning grievous bodily harm to Jason B and at the time of the impact you were driving the vehicle at a speed dangerous to other persons. For that offence I am sentencing you to sixteen months imprisonment. I understand you have not been in custody before today and I am dating it from today 16 November 2007 and it will expire on 15 May 2009. I set a balance of term of two years, fifteen days to expire on 30 May 2011. I regret that I cannot order your release to parole on 15 May 2009 because the sentence is longer than three years. But I strongly recommend to the Parole Board that they consider releasing you on your due date.

104. I also recommend to those who are taking her into custody to recognise her age and organise, as quickly as possible, her classification to a minimum prison institution.

105. I note that there is a further matter of negligent driving occasioning grievous bodily harm that has been referred to this court pursuant to s 166.

BOROSH: Thank you your Honour I’d seek leave to withdraw that charge.

HIS HONOUR: Leave is given to withdraw the charge.

BOROSH: There is also the matter of disqualification your Honour.

HIS HONOUR: A standard period of three years?

BOROSH: Three years, there is a minimum period your Honour of twelve months.

HIS HONOUR: I intend to impose the three years. The offender will be disqualified from driving, I understand she has not been driving since the motor vehicle accident?

BOROSH: I believe was the evidence, yes your Honour.

HIS HONOUR: That was 24 October?

BOROSH: Yes your Honour.

HIS HONOUR: She is disqualified from holding a licence for three years from 25 October 2006. That period of disqualification will expire on 24 October 2009.

106. [Addressed to custodial officers present in court] It must be obvious from the remarks I have made, if you have listened to them, she is a relatively fragile person and you will need to take some care of her.

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