R v Rigby [2023] NSWDC 636

District Court New South Wales

Medium Neutral Citation: R v Rigby [2023] NSWDC 636 Date of orders: 13 November 2023 Decision date: 13 November 2023 Jurisdiction: Criminal Before: Conlon SC ADCJ Decision: Sentenced to 30 months imprisonment to date from 13 September 2023 and to expire on 3 March 2026, with a non-parole period of 14 months to commence on 13 September 2023 and expire on 12 November 2024 Catchwords: Aggravated dangerous driving occasioning grievous bodily harm Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Road Transport Act 2013 Category: Sentence Parties: Rex (Crown) Accused – Cecilia Gai Rigby Representation: DPP - Mr D Morters SC (counsel) Accused - Mr B Cochrane (counsel) Ms C Beesley (solicitor) File Number(s): 2020/306487 Publication restriction: Nil

JUDGMENT 1. The offender, Cecilia Rigby, appears for sentence following her guilty plea to a charge of aggravated dangerous driving occasioning grievous bodily harm, contrary to s 52(4) of the Crimes Act 1900, and carrying a maximum penalty of 11 years' imprisonment. 2. I will come to the agreed statement of facts shortly, however, in brief, on 4 September 2020, the offender had driven from Nambucca Heads to Coffs Harbour, and around noon met up with friends at the Plantation Hotel. It was not until about 6pm that day that she left the hotel to commence her return journey. After about five kilometres she lost control of her vehicle, causing it to leave the southbound carriageway, crossing the grass median strip and coming into collision with the vehicle of Ms Lynette Jarvis, who was travelling northbound. Ms Jarvis was admitted to hospital with a number of injuries that constituted grievous bodily harm. However, there was a most unfortunate and tragic event that transpired. 3. Ms Jarvis passed away in hospital following the failure of treating medical staff to detect a small subdural haematoma, and also, what turned out to be the catastrophic administration of blood thinners. It has been accepted that she died as a result of gross negligence in her treatment. Ultimately, the Crown accepted expert evidence that sufficiently demonstrated the severance of any causal nexus. In other words, if appropriately treated, Ms Jarvis would not have passed away as a result of the injuries sustained in this collision, which included the small subdural haematoma. 4. Now, the principal reason for me making mention of this is owing to submissions to the Court by each Counsel in respect of the issue of delay. Mr Cochrane, Counsel for the Offender, referred to the DPP, "Fruitlessly pursuing a more serious charge," even after the offender had offered to plea to the present charge on 24 June 2022. The Crown submitted that the, "Medical evidence was complex and, to some degree, ambiguous." However, it was following the defence serving the expert evidence report of Dr Frellich, on the Crown on 17 April 2023, that the present plea was accepted by the Crown. It is accepted that the offender is therefore entitled to a 25% discount in accordance with s 25D of the Crimes (Sentencing Procedure) Act 1999. 5. At the outset of his written submissions, Mr Cochrane stated that the sad passing of Ms Jarvis must be set to one side in respect of the present sentencing exercise. Of course, whilst I accept that submission, it would be wrong to not acknowledge the loss of Ms Jarvis to her family and friends in these most tragic circumstances. The Crown bundle of documents, exhibit A, contains a statement of agreed facts, and they are as follows. 6. On Friday, 4 September 2020, at around about noon - as I have already indicated - the offender met with some friends at the Plantation Hotel at Coffs Harbour. There she consumed a quantity of red wine. She left the hotel unaccompanied at about 6pm, entered her motor vehicle, and began to drive to her residence in Nambucca Heads, a distance of about 50 kilometres. The facts revealed that the sun had set about 5.40pm, but that the visibility was good. 7. At around about 6pm, Ms Elizabeth Keen was driving her vehicle in a southerly direction in the kerbside lane on the Pacific Highway at Coffs Harbour. That southbound carriageway is comprised of two lanes and is separated by a grass median strip from the northbound lanes. The applicable speed limit was 100 kilometres an hour. The northbound carriageway is comprised of two lanes as well, and that also has a speed limit of 100 kilometres an hour, slowing to 60 as it approached Coffs Harbour. 8. There was a second vehicle travelling southbound behind Ms Keen's vehicle. They were both travelling at around about 90 kilometres an hour. The offender passed the second vehicle, and moved into the kerbside lane between the second vehicle and Ms Keen's vehicle. The offender's vehicle began to swerve from left to right and crossed over the left fog line. The offender next attempted to overtake Keen's vehicle by moving into the centre lane. In the process, the front passenger side of the offender's vehicle made contact with the rear driver's side of Keen's vehicle, causing Keen to lose control of her vehicle. Keen's vehicle then spun across the centre southbound lane and came to rest on the grass median strip. 9. The offender's motor vehicle also began to spin out of control, and it moved across the centre lane and through the grass median strip. At that time, Lynette Jarvis was travelling northbound at a speed of about 70 kilometres an hour, when the offender's motor vehicle crossed into her path. Jarvis tried to swerve but could not avoid colliding with the offender's motor vehicle. Following the collision, Jarvis extricated herself from the vehicle. She remained conscious, but was conveyed to hospital by ambulance. 10. The whole front of her motor vehicle was caved in, and the airbags deployed. That motor vehicle was subsequently written off. Ms Jarvis sustained a shallow sternum fracture, a fracture to the L3 vertebrae, a fracture of a second rib, a thoracic trauma and various bruises and lacerations, including a small subdural haematoma. As I have already indicated, those injuries constituted grievous bodily harm. 11. The offender herself was then conveyed to hospital. The whole front of her motor vehicle was caved in, and the whole near side had scrapes and dents, and the rear bumper had fallen off. That motor vehicle was also written off. The offender sustained a fractured neck, and a broken left wrist which required surgery. She had bruises and scrapes on her body. Blood was collected at 7.30pm, and the subsequent analysis indicated a reading of .208. 12. On Monday 26 October 2020, the offender attended the Coffs Harbour Police Station and participated in an electronically recorded interview. During the interview, she said she could not remember the collision. She recalled arriving at the Plantation Hotel, but no recollection of events after that. She was arrested, charged and remanded in custody. She was subsequently granted bail on 15 December 2020.