District Court New South Wales Medium Neutral Citation: Regina v Taylor Rebecca ANGELL [2015] NSWDC 444 Hearing dates: 27 November 2015 Date of orders: 27 November 2015 Decision date: 27 November 2015 Jurisdiction: Criminal Before: H. L. Syme DCJ Decision: Total term of 5 years and 7 months with a non parole period of 3 years and 3 months Catchwords: Dangerous driving occasioning death; Aggravating factors; Drugs; Subjective matters; Remorse; Prospects of rehabilitation Legislation Cited: Section 52A Crimes Act 1900 Section 5 of the Crimes (Sentencing Procedure) Act Cases Cited: Regina v Whyte [2002] NSWCCA 343 Category: Sentence Parties: Regina (Crown) Taylor Rebecca Angell (Offender) Representation: Counsel: A. Webb for the offender Solicitor: C. Dodds (Crown) A. Climo (LAC) File Number(s): 2014/00373412 Publication restriction: Nil Taylor Rebecca Angell has pleaded guilty to one count of aggravated dangerous driving occasioning death. The maximum penalty for that offence is 14 years imprisonment and it carries with it no standard non‑parole period. The offence relates to a driving causing death of Mr Leabeater on 19 December 2014. The offender has also asked the Court to take into account allied matters on a Form 1 schedule. Those matters related to a series of driving offences committed by the offender on 24 April 2015, a little over three months after the commission of the substantive offence. The facts in relation to the Form 1 matters did not result in the injury of any person but have similar features to the offence for which the offender is before the Court for sentencing. Those offences are driving with a prescribed illicit drug present in her blood, driving while suspended, negligent driving and giving a false name to police. The penalties which can be imposed for the Form 1 offences are fines of up to $3,300 and/or an imprisonment sentence of 18 months. The penalty imposed with respect to the aggravated dangerous driving occasioning death will reflect the seriousness of the Form 1 offences in so far as is possible. The facts are contained in an agreed set of facts tendered by the Crown and agreed to by the offender. They will, if necessary, form a schedule to the reasons for decision. The relevant facts are that at about 10.35pm on 19 December, Friday, Mr Marc Leabeater was riding his motorcycle on Taren Point Road in Taren Point. At approximately the same time the offender, Ms Angell, was traveling north on Taren Point Road, both of them approaching the intersection of Koonya Crescent. At that location Taren Point Road has four northbound lanes, lane 4 being a right turn only lane. The offender was travelling in lane 1. When she was approximately 30 to 40 metres from the intersection, she merged her vehicle, without indicating, in front of a taxi nearly causing an accident with that taxi. Mr Leabeater, still travelling south, was approaching the Koonya Circuit on his motorcycle. The traffic signal on the north side of the intersection was green. The offender, still traveling north, continued to lane 4 (the right turn lane) from lane 1 without reducing her speed, the traffic signal pointed towards her was also green. An observer, an off duty constable, saw the offender's vehicle merge in front of the taxi and he saw Mr Leabeater's motorcycle approach the intersection. As the offender's vehicle took the right hand turn, the deceased's motorcycle hit the nearside of the offender's vehicle and he was thrown into the roadway. The offender continued to turn right onto Koonya Circuit in front of the deceased's motorcycle. Cardio pulmonary resuscitation was performed on Mr Leabeater until ambulance officers arrived, resuscitation was continued until he was pronounced dead at 11.37pm. The autopsy revealed an otherwise healthy appearing adult male with multiple injuries, the most serious of which involved the chest and abdomen. There were multiple lacerations, tearing injuries of the heart, lungs, spleen, liver and kidneys with small amounts of blood within the chest and abdominal cavities. It is suggested in the facts that the injuries were not survivable. Paragraph 10 of the facts formally sets out the cause of death. It is noted that the deceased's blood was tested post-mortem and contained 0.159 per 100 mls of alcohol. Police searched the offender's vehicle and found two capped syringes. She was taken to the hospital for a blood and urine sample. The blood sample was analysed and found to contain 0.13 milligrams per litre of amphetamine, 0.2 milligrams per litre of methamphetamine and the expert pharmacologist report provided by Dr Perl showed that it was her opinion at the time the offender was under the influence of methylamphetamine to an extent that there would have been very significant impairment of her driving ability. In relation to the Form 1 matters the circumstances of driving are chillingly similar. On that day, approximately three months later, at approximately 9.45am, notwithstanding the fact that Ms Angell's driver's licence was suspended at the time as the result of the previous matter, she drove a motor vehicle at Kareela. At approximately 7.30 that morning she consumed approximately .1 gram of methylamphetamine and some cannabis and she took six tablets of Xanax. A blood sample taken after the accident that occurred on that day, and the accident that she caused, was found to have present those drugs and some others in the blood sample presented. The level of methylamphetamine tested in April 2015 was slightly less than the level detected in her blood on 19 December 2014. It is observed that she was driving a different motor vehicle. There is no information as to the owner of that vehicle. The offender was travelling on that occasion at approximately 60 kilometres per hour. Other vehicles were stopped in front of her at a red light and she simply failed to apply her brakes and collided with the rear of one of those vehicles, pushing it into the rear of the vehicle in front of it. The offender was observed immediately thereafter to be under the influence of illicit drugs, although she denied it at the time. She provided police with a false name, but after police made further enquiries she was charged with the current offences and bail was ultimately refused. On that occasion the blood of the offender was tested and found to contain THC, clonazepam, alprazolam and methylamphetamine. They are the facts in relation to the Form 1 matter which will be taken into account. The offender has been in custody since 25 April 2015. In relation to the substantive offence, the aggravated dangerous driving occasioning death, the offender pleaded guilty in the Local Court and the matter was committed for sentence on 23 July this year. Taking into account the utilitarian value of the plea, it is appropriate to allow a 25% discount on the sentence that would have otherwise been appropriate had the matter proceeded to trial. In relation to any further benefits that can be drawn from the early plea, such as a finding of remorse, I do note that there was a strong Crown case, therefore the early plea is not necessarily evidence of that. In considering the objective seriousness of the offence, the Court has regard to a number of statements in the Court of Criminal Appeal concerning matters of this nature which are, sadly, common. The guideline judgment in Regina v Whyte [2002] NSWCCA 343 provided that a typical case under s 52A of the Crimes Act has the following characteristics, that are also relevant to this particular matter: a young offender, a young offender of good character with limited or no prior convictions, the death of a single person who was not known to her, limited injury to the driver or people in her motor vehicle, genuine remorse and a plea of guilty which may be of limited utilitarian value. The guideline, it is called a guideline but is really a checklist, with respect to the custodial sentence is that a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability as in the case of momentary inattention or misjudgment. When considering aggravating features, there are many to consider. The extent and nature of the injuries inflicted, and in this case the injuries suffered by the deceased were traumatic, there is no greater degree of injury than the death of a person. The Court would also consider the number of people put at risk. In the circumstances of this case the offender had a passenger in her motor vehicle and there is evidence of other road users in the vicinity at the time. The offender by her prior erratic driving caused difficulty to a taxi on the road shortly prior. Ms Dodds, for the Crown, submitted that it was late on a Friday night and it was fair to assume that there would have been substantial traffic on the roads. Counsel for the offender did not challenge this. Therefore, apart from the deceased, there were a number of road users who were put in potential danger by the offender's behaviour. Counsel for the offender told the Court that the length of the journey he said was relatively short, a few kilometres. My view is that the number of people put at risk by the offender during the course of a few kilometres' driving is not insignificant. The Court must also take into account any erratic or aggressive driving. There is no evidence of aggressive driving as such, but the current case and the Form 1 matter show that there is ample evidence of erratic driving. Erratic driving was observed by other road users on 19 December, before Ms Angell turned in front of Mr Leabeater's motorcycle. The Court must also take into account, and this is the most important consideration, the degree of intoxication or substance abuse. The degree of sleep deprivation is also a potential aggravating factor and one that will be taken into account under this heading. Dr Judith Perl has provided two reports to the Court, the first one dealing with the offender's intoxication for the substantive offence. Her finding as to the offence of the drugs in the offender's system on both occasions are similar. The entire report is informative as to the effects of the various drugs in the offender's system during her course of driving. I would recommend the entirety of the report to the members of the press, should they wish to assist the courts by sending a message to the wider community as to the serious consequences of the ingestion of these drugs and the more serious consequences when a person drives whilst under the influence of them. I will quote the salient portions of Dr Perl's report for the purpose of my decision. Dr Perl notes that Taylor Angell was under the influence of methylamphetamine to the extent that there would have been a very significant impairment of her driving ability. Methylamphetamine is a central nervous stimulant which can impair driving by altering perceptions and judgement and increasing aggressive or risk taking behaviour. The drug may also produce hallucinations. Methylamphetamine impairs visual scanning and decreases the ability to filter out stimuli that are eye irrelevant, as a result driving ability is impaired. Acute effects of methylamphetamine frequently result in driving behaviours, such as driving at an excessive speed, overtaking and aggressive and risk taking behaviour. Methylamphetamine withdrawal results in drug induced reactive depression of the central nerve system and generally results in driving behaviours associated with increased drowsiness or sedation, such as deviating from the lane in addition to slower reactions. Methylamphetamine is metabolised partially in the body as amphetamine, which is relevant to this offender's blood screen reading. In relation to the Form 1 matters and the other drugs found in the offender's blood, it is noted that Dr Perl's findings are similar. The doctor's observations of the THC levels are that the level of cannabis in her blood was low, indicating low consumption or low potency of the drug, but her blood concentrations of the drug alprazolam and clonazepam, both prescription only benzodiazepine drugs, were over the therapeutic dose and have the effect of impairment of psychomotor skills required for safe driving. From all of this I draw a conclusion that the degree of intoxication for the substantive offence was significant. The decision, therefore, to drive in such circumstances for any length of journey, let alone a few kilometres, represents an abandonment of the offender's responsibility and a high degree of moral culpability for her offending behaviour. Referring back to what I referred to as the guideline decisions, Whyte's case suggests that for driving offences which fall into the typical case category where the offender's moral culpability is high but without special circumstances of aggravation a full-time custodial head sentence of less than three years in the case of death would generally not be appropriate. For the aggravated version, an appropriate increment is required. Other factors, such as the number of victims, also require an appropriate increment. The list of aggravating features to which I have referred are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. More often they appear in some combination. They may indicate the moral culpability is high, as I find in this case. The guideline decision, so‑called, is a check or indicator of sentence and sentences will still be open to the broad discretion of a sentencing judge. The reference to the head sentence in Whyte's case is not prescriptive. In generally considering a sentence to be imposed in any proceedings, the Court takes into account a number of matters: 1) The actions of the offender, which I have described, including any aggravating matters relating to the manner of driving, to which I have referred. 2) The consequences of the conduct, and this is a charge where the death of a person is, of course, an element of the offence. Death of a human being is the most serious consequence of any crime. On many occasions this Court is reminded by parents of the consequences to their lives and their family and friends' lives of the death of a young person in similar circumstances. Mr and Mrs Leabeater and their family understand the logic that any sentence imposed cannot heal their pain nor bring back their son, nor assist them get on with the process of the rest of their lives without his presence. A court attempting to offer sympathy or understanding will only underline our inability to right all of society's wrongs. The purposes of sentencing as set out in the Crimes (Sentencing Procedure) Act often have competing aims. They are, first, to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender specifically and others in general from committing similar offences. The Court is required to protect the community from the offender but also to promote her rehabilitation. The Court is required to make the offender accountable, to denounce her conduct and, in so far as possible, to recognise the harm done to the community. These are often competing considerations. In a sentencing process the Court acknowledges that there is a difference between those matters to which I have already referred, which are in reality circumstances of the offending behaviour and which go to the evaluation of objective seriousness, and circumstances personal to the offender, such as her own background that might explain or influence the conduct of the offender or otherwise impinge on her culpability but are not relevant to objective seriousness. The circumstances of the Form 1 matter to which I have referred make it clear that even after Ms Angell had caused the death of a human being she continued to offend in exactly the same way but fortunately did not cause death or injury of another person. That fact alone requires some examination and consideration as to the issue of remorse and contrition and, therefore, her prospects of rehabilitation. In considering the offender's subjective circumstances I have taken into account reports prepared on her behalf, including the report of Dr Seidler, a clinical and forensic psychologist, who interviewed the offender for about an hour and a half, had access to the police facts and the offender's medical file from Justice Health. Dr Seidler was also aware of the Form 1 matter. I have also had access to the affidavit of Janet Sharp, who is the offender's paternal grandmother. I have also had access to a drug and alcohol report prepared when the offender was initially in custody and copies of letters written by her to Mr and Mrs Leabeater and family and a letter addressed to me. The background and circumstances of Ms Angell are about as different as they could be from the background and circumstances of Mr Leabeater. I heard from his parents, especially from Mrs Leabeater's evidence, of a loving and supportive family and the child, the deceased, was a high achiever and a contributor to the community and a person who had excellent prospects for the future. Ms Angell, who has now just turned 20, came from a disrupted and dysfunctional family background. She was placed in the custody of her father when she was four years of age after the separation of her parents. The circumstances of her childhood are contained in the evidence given to the psychologist by Ms Angell and is supported by the evidence of her grandmother. Both of Ms Angell's parents were heavy drug users during her childhood. Her father abused cannabis and alcohol and her mother abused heroin, methamphetamine and cannabis. Their parenting skills were, consequently, sub-optimal to say the least. Ms Angell went to live with her mother when she was 12 years of age. Her paternal grandmother, Ms Sharp, took proceedings in the Family Court seeking parental responsibility because of her concerns as to the care provided by Ms Angell's mother at the time and to her younger brother. It seems that delays in the Family Court resulted in that application being withdrawn at least with respect to this offender. Ms Angell remained living with her mother until her mother was herself arrested and refused bail for a serious kidnapping related offence. At that time Ms Angell went to live with a foster carer and apparently things improved for a short while, but unfortunately thereafter her mother was granted bail and the offender went to live with her again. She did not wish to do so. The circumstances of the mother's offending were such that Ms Angell observed her home being raided by police while they had guns and she saw her mother being handcuffed and removed. As a result of all of this Ms Angell had a confused and ambivalent relationship with her mother. It seems that her mother, as far as I can tell from the facts, was sentenced to a long term custody sentence in 2012. I do not know when she is due for release. Ms Angell has a better relationship with her father, but his ability to support her emotionally is really unknown. Ms Angell has the support of her paternal grandmother as I have referred to, Ms Sharp. She has a brother who apparently refuses to contact her at this stage and two younger sisters with whom she has no contact as they are apparently in foster care. No doubt as a result of Ms Angell's own background and poor role modelling provided by her parents, Ms Angell commenced substance abuse herself when she was aged, depending on which report, about 11 or about 14. Her mother allowed her, reportedly, to smoke cannabis from her own home. She was introduced to methamphetamines when she was about 14 years of age. She was residing with her mother at the time who was dependent on this drug. Ms Angell became dependent on the drug herself very quickly. The psychologist observed that Ms Angell identified objectively that the use of the drug altered her cognitive wellbeing significantly and that became scattered. Ms Angell reported the use of a range of other drugs from the age of 14 until the date of her recent imprisonment. She acknowledged that she was drug dependent when this offence occurred. It is in the context of this background that the courts must assess the competing requirements in the sentencing process. The offender reported that since she has been in custody she has not used any substances. This matter was thrown into doubt by her failure or refusal to provide a drug urine sample on two occasions while in custody. I have heard evidence in that regard and I am not satisfied to the required standard that her failure to provide such a sample was because of her drugs use whilst in custody. She is receiving prescribed medication in custody by Justice Health. A drug and alcohol assessment report prepared on 25 May 2015 observed that since she has ceased used drugs in custody she has contacted rehabilitation centres to enquire or complete enquiries and assessments with respect to long term residential drug rehabilitation. Ms Angell expressed, as best as is probably possible for her, her personal sorrow and remorse for the death of the deceased. I assess that today, while she is drug free, no doubt her remorse is genuine. Sometimes an expression of remorse can be taken into account when assessing prospects of rehabilitation. In Ms Angell's case her remorse is only evidence that while she is drug free she has a more realistic grasp of her predicament and the consequences of her actions. Ms Angell's prospects of rehabilitation are tied completely to her prospects of removing herself from drug use once she has been released from custody. I accept that now she is drug free and her attitude, as I assessed it to be in court, seems to be that while she is in custody she will not have a need to return to drug use. The difficulty for Ms Angell is going to be rebuilding her life and learning to work and learning social skills and being able to function in the community while being drug free. For a person who has had in effect no adequate role modelling from her parents as to living a life which contributes to the rest of the community, this will be a difficult prospect. Her determination is simply a good start, but it is only that. Her enquiries with respect to drug rehabilitation show some insight into the steps she will have to take in order to remain drug free upon her eventual release. On the other hand, Ms Angell is still a very young person, she has just turned 20. She impressed the psychologist who interviewed her personally and who undertook a series of psychological testing. The psychologist reported her as an intelligent and reflective young woman who has some pro‑social future goals and therefore some positive future potential. The psychologist notes that her demonstrated sense of empathy for her victims has contributed to her remorse and therefore motivation to make important changes in her life. Finally the psychologist concluded, and I would respectfully agree, that Ms Angell will need a great deal of support in this endeavour. Ms Angell has the support of her grandmother which may be of some assistance, but it would appear that the presence of her mother and father are a negative in her life. This may be a consideration for parole supervision in due course. Taking all of those matters into account, I make a finding that Ms Angell has reasonable prospects of rehabilitation provided she is well and closely supervised and, if necessary, her rehabilitation contains an element of residential drug rehabilitation and monitoring of her life skills and roles. Her friends and associates should be monitored and she should not be permitted to mix with people who are drug or alcohol users. That finding, together with her age, results in a finding of special circumstances being made so as to vary the standard non-parole to parole ratio. Ms Angell will need considerable and long term supervision upon her release. In so far as I have not mentioned, I note that Ms Angell comes before the Court without any criminal record prior to the commission of this offence. A good character assessment is of less use in the circumstances of this case considering her age, which I have taken into account in another way, and considering the offence before the Court. I note she had only received her driver's licence nine months before the commission of this offence and there were no matters on her driving record before this offence. Section 5 of the Crimes (Sentencing Procedure) Act requires the Court to use imprisonment as a last resort, only on being satisfied that no other penalty is appropriate. Ms Angell has conceded through her counsel that a custodial sentence is the only appropriate option for this offence. I have also noted the Form 1 matter will be taken into account. The offender has been in custody solely on this matter since 24 April 2015 and the sentence I impose today will be backdated from that day. Can you stand up, please, ma'am. For the reasons that I have given, I propose to sentence you to a non‑parole period of three years and three months which will commence formally on the date you went into custody, 25 April 2015. You will eligible for release on parole on 24 July 2018 and you will serve a balance on parole once you are released, if you are released then, of two years and four months making a total sentence, after the appropriate discount of 25%, of five years and seven months. I will go through those dates again. The term of the sentence is five years and seven months. The non-parole period of three years and three months commencing on 25 April 2015, eligible for parole on 24 July 2018. A balance of two years and four months expiring 24 November 2020. I propose to disqualify the offender's driver's licence for a period of nine years from today. I will recommend that for the allowance of a driver's licence in the future I recommend to the RMS that they require Ms Angell to undergo drug and alcohol assessment and/ or testing. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2020