Richardson v Barnes
[2018] TASSC 46
•2 October 2018
[2018] TASSC 46
COURT: SUPREME COURT OF TASMANIA
CITATION: Richardson v Barnes [2018] TASSC 46
PARTIES: RICHARDSON, Carolyn Patricia
v
BARNES, Alisha (Constable)
FILE NO: LCA 595/2018
DELIVERED ON: 2 October 2018
DELIVERED AT: Hobart
HEARING DATE: 2 July 2018
JUDGMENT OF: Geason J
CATCHWORDS:
Traffic Law – Offences – Particular offences – Negligent driving – Negligent driving causing grievous bodily harm – Whether sentence manifestly excessive.
Aust Dig Traffic Law [1103]
REPRESENTATION:
Counsel:
Appellant: G Stevens
Respondent: E Bill
Solicitors:
Appellant: G Stevens
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASSC 47
Number of paragraphs: 34
Serial No 46/2018
File No LCA 595/2018
CAROLYN PATRICIA RICHARDSON v CONSTABLE ALISHA BARNES
REASONS FOR JUDGMENT GEASON J
2 October 2018
On 7 February 2018, the applicant was sentenced by Magistrate G Hay to two months' imprisonment for negligent driving causing grievous bodily harm. That sentence was wholly suspended for two years. She was disqualified from holding or obtaining a driver's licence for 12 months.
It is the applicant's contention that the sentence of two months' imprisonment was manifestly excessive when considered in relation to the offence, the circumstances of the case, and the imposition of a "lengthy disqualification".
The applicant bears the onus of establishing that the sentence imposed was unreasonable or plainly unjust: House v The King (1936), 55 CLR 499 at 505. The applicant must establish that the sentence imposed was "outside the permissible range of dispositions": AB v R (1999) 198 CLR 111 per Hayne J at [129]–[130].
Facts
On 6 January 2017, the applicant was travelling on the Arthur Highway towards Sorell. She was travelling at a speed estimated to be between 70 and 100 km/h, and thus within the speed limit for the area, which was 100 km/h. She was travelling with a passenger. The applicant collided with another vehicle. That vehicle was stationary behind a car turning from the highway into a residential driveway.
The complainant in this case, Ms Chambers, was a passenger in that stationary car. She sustained injuries requiring her hospitalisation for 56 days. She sustained a fractured sternum, bilateral rib fractures, a fracture to her left heel bone, and bilateral leg skin tears. Those injuries required treatment, including the debridement of skin and skin grafts. She suffered a mild traumatic brain injury which required ongoing rehabilitation, and she suffered a loss of independence because of her injuries. The evidence was that she required the use of a walker to remain mobile, and that she suffers from ongoing pain and anxiety. A victim impact statement was tendered to the court.
The driver of that vehicle sustained a torn left tendon in his left arm and bruising to his rib cage. He could not recall the crash.
The applicant's passenger, a Mr Almond, yelled to the applicant to stop before the collision. He told police he did not believe the applicant had seen the stationary cars.
On 28 June 2017 the applicant attended the Sorell Police Station and took part in a recorded interview. She admitted being involved in and responsible for the crash. She could not explain why she had not seen the vehicles in front of her. She expressed great remorse for the injuries sustained by Ms Chambers as a result of the crash, and the learned magistrate was told that she had been suffering from post-traumatic stress disorder since the crash.
The crash occurred on a straight stretch of road. The weather conditions were fine at the time, and the traffic was described as moderate. Visibility was good. It was not alleged that drugs, alcohol or excessive speed were factors contributing to the crash.
The allegation of causing grievous bodily harm was limited to the fractures and the skin injuries suffered by Ms Chambers. For the purposes of sentencing, it was the injuries sustained by her that were relevant.
It was submitted by the applicant that the degree of negligence involved was "at the low end"; that it was momentary and did not endure over a long distance. The applicant presented a psychologist's report to the learned magistrate, disclosing the psychological effects she suffered as a consequence of the crash. These included difficulty returning to driving, distress at the injuries caused, flashbacks and other symptoms of post-traumatic stress disorder. (It was not suggested in the plea in mitigation that she had been diagnosed with that condition.)
Sentence
In his comments on passing sentence, the learned magistrate said:
"The defendant is charged with causing grievous bodily harm to Rayma Chambers on 6 January 2017 while driving a motor vehicle on Arthur Highway at Forcett, negligently in that she failed to keep a proper lookout and failed to take reasonable precautions to avoid a collision. The court received detailed facts from the prosecutor. The facts, including the extent of, and the consequences of the complainant's injuries are not disputed by the defendant except that it is not accepted that the mild traumatic brain injury or concussion, fits within a definition of grievous bodily harm as it resolved in the usual course of events. The prosecutor takes no issue about this point. I do not intend to regurgitate all of those facts here other than to make the following summary.
The defendant was driving on a relatively straight stretch of the Arthur Highway at a speed of between 70-100 kilometres per hour. The speed limit for that area of the highway was a maximum of 100 kilometres per hour. It is not suggested that the defendant was speeding in the circumstances. Some eighteen to twenty-five seconds ahead of her were two stationary motor vehicles on the highway in her portion of the road in which she was travelling. The first in line of those two stationary motor vehicles was indicating to turn into a residential driveway. The complainant was Chambers who was the front seat passenger in the second vehicle that was stationary behind the first vehicle which was intending to turn right.
Inexplicably, the defendant's motor vehicle collided with the rear of the complainant's motor vehicle causing it to move forward and impact with the stationary first motor vehicle. Weather conditions were fine with clear visibility. Drugs, alcohol or excessive speed were not factors contributing to the crash.
The complainants, the defendants and the driver of the complainant – beg your pardon, the complainant, the defendant and the driver of the complainant's motor vehicle and the defendant's passenger were all taken to hospital and all were admitted because of their respective injuries. The complainant is aged 77 years. She suffered the most serious injuries and spent a total of 56 days in hospital. She suffered a fractured sternum, bi-lateral rib fractures, a fracture of her left elbow and bi-lateral leg skin tears. Those injuries required debridement of the skin and subsequent skin grafts. She also suffered a mild traumatic brain injury by way of concussion. The complainant describes herself, pre- accident, as being an independent person, able to look after her own needs including being out and about on her own. As a result of the crash she has now lost confidence in going out. She goes out little and does not wish to talk about the event. Her plans to go away on a trip have been put on hold. She gets panicky and anxious especially when in a car. She for anxiety and pain, does not sleep well and has nightmares with what I would describe, as being flashbacks. She now walks with the aid of a walker and has gauges in and scarring of her leg and is in constant pain in her leg and heel. She has suffered a loss of independence.
Following resolution of the defendant's physical injuries she voluntarily attended Tasmanian Police on 28 June 2017 and made full admissions about being involved in, and being responsible for the crash. At that time she expressed great remorse for the injuries sustained by Ms Chambers and also noted that she had been suffering from post-traumatic stress disorder since that time.
I have taken into account all of the facts put by the prosecutor and I have also taken into account the victim impact statement by the complainant, Ms Chambers, which I have summarised. The defendant has three relatively low speed, prior speeding matters dealt with by way of traffic infringement notice in 2000, 2007 and 2010. She has otherwise not come under the notice of police. I have taken into account very detailed submissions by counsel for the defendant and also taken into account a report dated 10 January 2018 by clinical psychologist Janine House in relation to the treatment of the defendant post-crash.
The defendant is unable to explain how the crash occurred. Her brother was the passenger in her motor vehicle and he yelled 'Stop!' to the defendant immediately prior to the crash but he did not believe the defendant saw the stationary motor vehicles. The defendant was aged 48 at the time and had been driving for 27 years. It is her submission that she is usually an observant, responsible and careful driver and this is corroborated by her negligible prior convictions. For whatever reason, she did not see the complainant's motor vehicle prior to the crash and she was clearly negligent in not doing so and she clearly was not keeping a proper lookout, nor did she take any precautions to avoid the collision.
The defendant entered the earliest plea of guilty and that, in itself, is an expression of her remorse. At the scene of the crash and soon thereafter, she expressed her remorse and regret without prompting and made full admissions and expressions of remorse in her record of interview in June. The court accepts that her expressions of remorse are genuine and sincere. The defendant also received physical injuries in the crash; a broken sternum and broken ribs which took some months to resolve and was still in pain some six months later. She has suffered psychological effects including the stress and the knowledge of the injuries that she inflicted to others and has manifest post-traumatic stress disorder type symptoms with flashbacks to the extent that she has been placed upon a mental health plan and referred to psychologist, House. The defendant attended seven appointments with the psychologist between May and December 2017. She presented with increasing symptoms of anxiety and depression following the crash. She has flashbacks, avoidance of activities or situations that reminded her of the crash and also she displays hyper vigilance when in a motor vehicle. She has engaged well in therapy and her conditions are improving but she retains difficulty with rumination including relating to the effects of the accident on the others involved.
The defendant is married and employed at Cripps Bakery at Glenorchy but lives in Campania in an isolated rural environment with no public transport available to her. She is as a merchandiser where she is required to drive to various supermarkets in the Hobart metropolitan area and stock various break racks. Her husband works and she has no leave entitlements and she is on a casual basis. Without her income, she submits that the family will be two hundred and twenty dollars per month in deficit, just on essential outgoings for the family unit. She submits that without a driver's licence that she would be unable to keep her employment and there is no other reasonably available employment available to her. All motor vehicles were written off as a result of the damage in the crash but each was covered by insurance and there has been no loss to other persons as a result.
The charge here does not require any intent or element of recklessness, merely that the defendant's driving was negligent. That is, whether the defendant exercised the degree of care that a reasonable and prudent driver would exercise in all of the circumstances. As it was pointed out by Underwood J as he then was in the decision of DPP v Watson in 2004, he said 'Death and injury from negligent driving is now by the community as a serious, social and financial problem.' Further, in my view - he said:
'General deterrence is a significant sentencing consideration in cases of serious driving offences.'
The offence here to which Mrs Richardson is charged, is created by s 32(2)(b). It is the least serious in a hierarchy of driving offences involving grievous bodily harm. The sentence imposed, or to be imposed on the applicant is to be considered in light of the sentencing range contemplated in the legislation for offences involving negligent driving. Absent the injuries to the complainant, amounting to grievous bodily harm, the defendant may only have been subject to a charge of driving without due care and attention or alternatively negligent driving. For driving negligently the maximum penalty is a fine of seven hundred and ninety-five dollars. For causing grievous bodily harm by negligent driving the maxim penalty for a first offence is imprisonment for a term not exceeding 12 months and a fine not exceeding one thousand five hundred and ninety dollars. For causing death by negligent driving, the maximum penalty refers for a first offence is imprisonment for a term not exceeding twenty-four months and a fine not exceeding one thousand five hundred and ninety dollars.
From my experience of sentencing in the Magistrate Court, the offence of causing death, and I emphasise the word, 'death', by negligent driving, those offences commonly attract sentences of imprisonment which are and that may be seen in most cases as being a convenient high point for sentencing in a case such as this. That is, causing grievous bodily harm by negligent driving.
There is no suggestion that speed, drugs or alcohol or the manner of driving contributed to the collision. The defendant pleaded guilty at the earliest opportunity, has displayed significant remorse and concern for the complainant and others injured in the crash. Her prior negligible and certainly do not suggest in themselves that a period of imprisonment is warranted for reasons of person deterrence or protection of the public. There was no intention of harming anyone.
She suffered significant injuries of her own and has ongoing trauma. She is unlikely to offend again, in my view, and is not in need of rehabilitation. It is also submitted on her behalf that the imposition of an actual term of imprisonment would have a significant and detrimental effect upon her family. That is irrelevant but not determined a factor to take into account in the entire sentencing process which in circumstances such as this case, are complex when considering the public interest and especially that of the victim, balanced against the mitigating factors specifically relevant to this defendant.
Pearce J in Charleton v Tasmania Police (2013), said the following:
'On occasions there can be, and is, a mismatch between the degree of culpability involved in the driving and the consequences which flow from it. It is therefore an often difficult or fruitless exercise to attempt to find some sort of consistent synthesis whereby sentences of driving offences, where death or injury result, can be where the field is covered by different offences with different ingredients and different penalty provisions.'
Mrs Richardson, perhaps if you stand now for me. Your negligence clearly had catastrophic consequences. Your negligence has affected the complainant. The injuries she suffered were significant and doubtlessly involved pain and distress for a long period for her. Ramifications of your negligence are therefore significant and long-lasting. Nevertheless, in the circumstances of this case, I do not consider that your degree of negligence was at the higher end of any scale but there must be a general deterrent penalty to acknowledge the generally serious nature of the offence and hopefully to deter others from similar lapses. For that reason, I impose against you a period of two months' imprisonment but on the basis with the other mitigating circumstances referred to, I will suspend the operation of that period of imprisonment for a period of two years on condition that you commit no offences punishable by a period of imprisonment.
Your counsel has submitted that I should, in all of your personal circumstances, including potential loss of employment and income, that I should exercise a discretion and not disqualify you from holding or obtaining a driving licence to drive a motor vehicle. I accept that such disqualification in your case will have that potential impact but, in my view, I cannot escape imposing a disqualification of your licence. I have taken into account the circumstances and I am prepared to minimise, somewhat, the period of disqualification I might otherwise have imposed against you. I disqualify you from holding or obtaining a driver's licence for a period of twelve months, with such period of disqualification to commence at 5pm on 28 February 2018. You will have to pay the court costs on the complaint in the sum of eighty-two dollar and fifteen cents and no victims of crimes levy. I can only give you twenty-eight days to pay those costs.
You will need to go the bail room to sign some papers and then you will be free to go."
The applicant submits that the offence is the least serious in the hierarchy of driving offences involving grievous bodily harm, and that in determining the appropriate penalty for this charge, the seriousness of the criminal conduct is the paramount consideration. It is submitted that it is necessary to consider each case according to its individual facts. It is contended that the degree of culpability involved, and the departure from the standard of an ordinary prudent driver was at the lower end of the scale. That submission is based upon the proposition that the negligence was momentary and not over a long distance or time. The applicant submits that the learned magistrate so found. It was put to the sentencing court that the negligence "... did not involve a substantial number of particulars. It involved the failure to keep a proper lookout and to take reasonable precautions to avoid a collision."
In this Court the applicant's counsel referred to her conduct following the offence, emphasising her remorse and regret for the injuries sustained by the complainant, expressions accepted by the Court as genuine and sincere. Reference was made to the applicant voluntarily attending a police interview, and to her co-operation. It is put that she pleaded guilty at the earliest opportunity.
It was contended that the applicant's record is consistent with her claim to be an observant, responsible and careful driver, who had been licensed for 27 years. In that time, she has had three convictions for exceeding the speed limit, two between 10 and 14 km/h between 2000 and 2007, and the last in 2010 for exceeding the speed limit by less than 10 km/h. Each was dealt with on infringement notice.
Discussion
Section 32(2) of the Traffic Act 1925, directs that each of the following matters are to be considered in determining whether a person is driving a motor vehicle on a public street negligently:
"(2C)For the purpose of determining whether a person is driving a motor vehicle on a public street negligently, the following are to be taken in:
(a) the circumstances of the case;
(b) the nature, condition and use of the public street;
(c)the amount of traffic that is actually at the time, or that might reasonably be expected to be, on the public street."
That list is not exhaustive. A consideration of the facts is required to assess the extent to which the applicant's driving has departed from the standard of care of a reasonable and prudent driver: Charnock v Tasmania [2013] TASSC 64 at [33].
The offence is framed in broad terms so there will be different degrees of seriousness within the scope of this charge. The elements of the offence include not just the act of driving, and the extent to which that driving is negligent, but also the injuries sustained by the victim of that driving. The consequences of the applicant's failures are relevant to sentencing. That is so notwithstanding that, a person can be seriously negligent and cause only slight injury, or a person can be slightly negligent and cause serious injury. The assessment of the consequences is an objective one. As was noted by Brett J in Cuthbert v Coates [2018] TASSC 7 at [37], subjective experience of pain at a higher degree than would otherwise be warranted will not elevate an injury, which is not itself grievous bodily harm, into that category.
The State submitted to the learned magistrate that for a distance of 500 metres leading to the point of collision the Arthur Highway is straight. Had the applicant's vehicle been travelling at a speed of between 70 and 100 km/h, it would have taken 18 to 25 seconds to travel that distance before the collision occurred.
This submission was not challenged.
Taking the view of the facts most favourable to the applicant, that amounts to 18 seconds of driving over a distance of 500 metres, on a straight stretch of road at 70 km/h, in fine conditions. It ended in a collision with a stationary vehicle. That represents a serious lack of attention to the road. It represents a significant departure from the standard of care of a reasonable and prudent driver.
The relevant matters in determining the applicant's culpability were:
(1) The distance travelled prior to the collision.
(2)The failure to keep a proper lookout for other vehicles for such period as was necessary to avoid the collision.
(3) The actual failure to avoid the collision.
The factual circumstances as presented to the learned magistrate were such as to require general deterrence to assume a significant role in fixing sentence.
In Director of Public Prosecutions v Watson [2004] TASSC 54 at [21], Underwood J (as he then was) said:
"[21] Death and injury from negligent driving is now by the community as a serious social and financial problem. Courts are expected to impose penalties that will be sufficiently severe to deter both the offender and others who might be minded to act like him or her. In the case of crimes such as this one, the significance of youth and good antecedents has to yield in substantial measure, to the need to deter the offender and others. I venture to repeat what I said in R v O'Brien A43/1987 at 7:
'Any consideration of the deterrent aspect of sentences for crimes where death is caused by dangerous driving involving conscious risk-taking, must acknowledge the fact that a high proportion of offenders fall into the youthful category. It is a notorious fact that young people consume alcohol, often to excess, and then resort to driving motor vehicles thereby putting members of the public at grave risk. In the sentencing process, the need to deter this class of offenders weighs heavily against the reformative and rehabilitative factors leading to the conclusion that, in most cases, a substantial immediate custodial sentence is appropriate'."
Those comments were cited with approval by Pearce J in Charnock (above) at [49].
The applicant's personal circumstances
The State accepts, as do I, that personal deterrence was not a significant matter in sentencing the applicant. Her driving record was a good one. But that is not unusual in cases such as this: Charnock (above) at [45].
I also accept that the applicant is emotionally overwhelmed by what has happened and that she did not intend this to occur. This case highlights the fact that attention to the road is required at all times.
I accept the State's submission that none of the matters raised in mitigation in this case could be characterised as unusual. They are not matters that would be unexpected in a case like this; they are not matters which would justify a departure from the relevant sentencing range.
The State provided me with information from the Tasmanian Sentencing Advisory Council database, which shows that the sentencing range for offences of causing grievous bodily harm by negligent driving indicate seven cases where wholly suspended terms of imprisonment were imposed, two of which were between three to six months, and the remainder of which were less than three months. There were five cases where fines or community service orders were imposed. For offences involving causing death by negligent driving, there was one sentence of imprisonment, partly suspended, eleven terms of imprisonment, wholly suspended, and one fine. Of the wholly suspended terms of imprisonment, ten were of three to six months' duration, and one was less than three months. Of course, each case will turn on its own facts.
In Visser v Smart [1998] TASSC 151, Crawford J (as he then was), summarised the function of an appeal court in dealing with an appeal on the grounds of manifest inadequacy of sentence. The comments apply to an appeal on the ground of manifest excess:
"An appellate court must not interfere with the exercise of the sentencing discretion except in a clear case of error. A magistrate is vested with a very wide discretion. Whittle v McIntyre [1967] Tas SR 263 (NC6). It is not sufficient to set aside a sentencing order just because the appellate court would have imposed a more severe sentence. In the circumstances of this case, the motion must fail unless the Court is satisfied that the sentence was manifestly wrong in its inadequacy, as to amount to a clear error in the sentencing process. Such principles have been stated by courts of this State on a great many occasions and come from the High Court in cases such as House v R (1936) 55 CLR 499, Cranssen v R (1936) 55 CLR 509 and Harris v R (1954) 90 CLR 652. Notwithstanding the wide sentencing discretion in the court below, it is the duty of the appellate court to interfere where it is necessary to do so to avoid such manifest inadequacy in sentence or inconsistency in sentencing standards that the error is of such gravity that it is essential in the administration of justice that the error be corrected. It is not necessary to identify any particular error of law made. The error can be implicit in the excessive leniency in the sentence imposed."
The sentence imposed in this case represented a fifth of the maximum penalty of imprisonment that could be imposed, and its operation was wholly suspended.
It was open to the learned magistrate to sentence the applicant as he did. In my view, the sentence was appropriate. I consider that the need for general deterrence is a paramount consideration in an offence such as this. Whilst the sentence imposed must reflect a range of considerations, including the personal circumstances of the offender, the principles of general deterrence have a significant function in sentencing for these types of offences. I consider that 18 seconds of inattention resulting in a collision which causes serious physical injuries requires a strong deterrent penalty. That is despite an offender's otherwise good character. The consequence of a departure from the standard of care of a reasonable and prudent driver can be serious and life-changing. A momentary lapse can have far-reaching consequences as this case demonstrates.
It has not been demonstrated that the sentence imposed in this case was unreasonable or plainly unjust. I dismiss the appeal.
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