Regina v Everett

[2000] NSWCCA 439

Reported Decision: [2000] 31 MVR 19

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Everett [2000] NSWCCA 439
FILE NUMBER(S):	CCA 60025/99
HEARING DATE(S):	21 January 2000
JUDGMENT DATE:	21 February 2000
PARTIES :	Regina v Kylie Everett (nee Beard)
JUDGMENT OF:	Hidden J at 1,23; Carruthers AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/31/0309
LOWER COURT JUDICIAL OFFICER :	McGuire DCJ

COUNSEL :	In person (Appellant) D M L Woodburne (Crown/Respondent)
SOLICITORS:	In person (Appellant) S E O'Connor (Crown/Respondent)
CATCHWORDS:	Criminal law - sentence appeal - dangerous driving occasioning death x 2 - subjective circumstances applicant sentenced to two years minimum term has dependant four year old daughter - consideration by the Court of administrative and legislative facilities available to mitigate hardship
LEGISLATION CITED:	Crimes Act 1900 Prisoners (Interstate Transfer) Act 1982 Correctional Centres Act 1952
CASES CITED:	Regina v Jurisic (1988) 45 NSWLR 209
DECISION:	Application for leave to appeal granted - appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

CCA60025/99

HIDDEN J
CARRUTHERS AJ

Monday, 21 February 2000

REGINA v Kylie EVERETT (nee BEARD)
JUDGMENT

1   HIDDEN J: The court is in a position to give judgment now and I will ask Acting Justice Carruthers to give the first judgment. 2   CARRUTHERS AJ: Kylie Everett Beard has applied for leave out of time to appeal against a sentence imposed upon her by Judge McGuire in the Newcastle District Court on 16 December 1998. The applicant had pleaded guilty to 2 counts of dangerous driving occasioning death under s52A (1) of the Crimes Act, 1990 which carries a maximum penalty of 10 years imprisonment. His Honour took into account 2 offences on a Form 1, namely one offence of being an unlicensed driver and one offence of self administer a prohibited drug. The offences were committed on 18 December 1997. On the first count, his Honour sentenced the applicant to a minimum term of 2 years imprisonment to commence on 16 December 1998 and to expire on 15 December 2000, with an additional term of 2 years to commence on 15 December 2000 and expiring on 16 December 2002. On the second count his Honour imposed a fixed term of two years imprisonment to commence on 17 December 1998, and to expire on 15 December 2000. 3   The applicant was born on 4 June 1974. She has a history of addiction to heroin and other drugs. When she was 17 years of age, she was convicted at the Castlereagh Street Local Court on 26 February 1992 of being an unlicensed driver. She was fined $85. Between that time and 15 January 1997 she was before Local Courts on a further nine occasions for driving without a licence. She has never held a licence. 4   With regard to the applicant’s conviction on 15 January 1997, she was fined $350. A stage should had been reached by that date, in my opinion, when she should have had a suitably deterrent penalty imposed on her for persistently driving on public roads without being licensed, and never having had a licence. It is a great pity, in retrospect, that this did not occur. 5   Apart from been an unlicensed driver, her prior criminal record contains a litany of offences concerned with disobeying the law relating to the use of motor vehicles upon public roads. However prior to the subject sentence she has not received a full-time custodial sentence. 6   I turn then to the basic details of the subject offence. At about 4.43pm on the date of the offence, the applicant was driving a Ford Fairlane sedan in a northerly direction on the F3 freeway one kilometre south of the Cessnock turn-off when she lost control of the vehicle which travelled off the western shoulder of the highway and collided with a large road sign. Her husband, whom she had married only a few days before, and who was aged 34, was killed as well as the applicant’s two year old son from a previous relationship. The applicant’s four year old daughter of the same relationship mercifully survived. Syringes and other equipment concerned with the injection of heroin together with some heroin were located in the vehicle by police officers. 7   Having examined a blood sample of the applicant, Dr Perl was of the view that, at the time of the accident, the applicant was under the influence of morphine and cannabis within a toxic to lethal range. 8   After the accident, the applicant alleged that it was caused by her going to sleep and she untruthfully denied to police officers she had at some time prior to the accident administered heroin to herself. The forensic tests clearly indicated otherwise. 9   In his remarks on sentence, Judge McGuire comprehensively referred to the subjective and objective circumstances. Not surprisingly, he described the applicant’s conduct on the day in question “as greatly criminal”. However, his Honour found special circumstances flowed from the subjective factors. 10   His Honour directed, that upon the applicant’s release to probation, she subject herself to all directions of the officers of the Probation Service. She is to undertake any course of rehabilitation required or otherwise determined by her probation officer. She is to abstain from prohibited drugs and she is to subject herself to urine analysis or any other testing designed to detect the ingestion of prohibited drugs. A pre-sentence report under the hand of Ms Amanda Graveson, a Community Correctional Officer of Queensland Corrections dated the 7 September 1998, was before his Honour and in her evaluation, Ms Graveson said:

“Miss Everett is an intelligent, likeable young woman who has potential but is unable to cope with life without drugs. She has the support of her mother and with her assistance appears to adequately care for her young daughter.

While Miss Everett accepts she cannot live her life through a drug induced haze, she does not appear to have the will power and conviction needed to successfully rehabilitate herself. Ms Everett’s main concern at present is the effect of her being imprisoned will have on her daughter …”

11   The applicant appeared before the Court in person and she has already supplied the Court with written submissions to support her application. This morning she has read to the Court a harrowing description of the effect that the accident has had upon her emotional well-being and her concerns about the impact that it is having upon her young daughter. 12   The Court has also had the evident benefit of written submissions from the Crown in response. 13   I do not find it necessary to dwell for present purposes on the applicant’s written submissions. In summary they rely upon alleged errors of facts by the judge relating to the accident itself, the applicant’s attempts at rehabilitation and alleged inappropriate reference by his Honour to another driving case causing death, insufficient or no weight having been given to the effect of the applicant’s incarceration upon her daughter who lives in Queensland with her maternal grandmother and, finally, too much weight having been given by his Honour to the applicant’s prior record. 14   Having carefully considered each of these submissions and the responses by the Crown to them, I am quite satisfied none of them contains substance. Even if I were wrong in that regard, to the extent that there are subjective factors they are quite overwhelmed by the seriousness of the criminal conduct which resulted in the tragic death of two of the applicant's passengers on 18 December 1997. 15   Reference must necessarily be made to the guidelines in R v Jurisic. (1988) 45 NSWLR 209. It became necessary for this Court to lay down guidelines for the imposition of sentences for the subject offence because of a grave public concern at the frequency of the commission of this offence and a further concern that prior sentences were generally not adequately severe to accommodate the frequency and seriousness of the offence. His Honour’s sentence accommodates the guidelines judgment. 16 It must be remembered that compassionate as judges may wish to be and as touched as they may be by some of the tragic situations that are presented to them in the discharge of their difficult responsibilities, a sentencing judge has a responsibility to the community at large to ensure that offenders are appropriately punished as a deterrent to others who might be minded to commit the offence in question. 17 Time after time this Court has said that objective circumstances must be generally subservient to the imposition of deterrent sentences for offences such as the subject one. 18 This Court has had the very considerable assistance of Ms Woodburne on behalf of the Crown who has drawn to the Court’s attention ways in which the separation by the applicant from her daughter, who is in Queensland, may be ameliorated. 19 First, Ms Woodburne has drawn our attention to the fact that it is possible for the applicant to apply to serve the balance of her sentence in Queensland pursuant to Part 2 of the Prisoners (Interstate Transfer) Act 1982. 20 Secondly, she has referred s29 of the Correctional Centres Act, 1952 which vests Corrective Services with a discretion to permit an inmate absence from a New South Wales Correctional Centre in certain circumstances for humane reasons and, finally, she has referred to what is known as the Occasional Residential Programme existing at centres such as Mulawa under which children under 14 may have limited residential rights to be with their mother. Some matters by way of fresh evidence has been handed to the Court today, indicating that efforts are being made by the applicant, commendably it may be said, to come to terms with her long standing drug addiction. One can only express the sincere hope that the programme proves to be fruitful. 21   However, bound as this Court is by the principles of law which it must administer, the conclusion is inevitable that the sentences imposed by the sentencing judge were well within the discretionary range available to him, and, indeed, I would venture the comment that it would have been open to him, appropriate to his discretion, to have imposed a higher sentence. 22   In these circumstances I would propose that the application for leave to apply to the Court out of time be allowed; that the application for leave to appeal in the circumstances be granted; that the appeal be dismissed. 23   HIDDEN J: I agree. This is a tragic case, as cases of this kind usually are. Looking at her now one can only have a great deal of sympathy for the applicant. The learned sentencing judge said of her

“What she has inflicted upon herself will have far greater effect than the prison term to be imposed”.

24   Nevertheless, for the reasons Carruthers J has given, a prison term certainly had to be imposed and the length of it is such as could not possibly be challenged in this Court. His Honour faced a very difficult sentencing exercise but no error in the exercise of his discretion has been demonstrated. 25   The orders of the Court will be those proposed by Acting Justice Carruthers.