New South Wales District Court CITATION: R v Jones [2006] NSWDC 43 HEARING DATE(S): 24 July 2006 2 August 2006 JUDGMENT DATE: 16 August 2006 JUDGMENT OF: Nield DCJ at 1 DECISION: Offender convicted and sentenced to imprisonment for 2 years 6 months with a non-parole period of 1 year 3 months and a parole period of 1 year 3 months. Order that the non-parole period be served by periodic detention. Offender disqualified from holding or obtaining a licence to drive a motor vehicle under the relevant legislation for 2 years and 6 months from today. CATCHWORDS: Sentence - dangerous driving causing death - level of moral culpability - effect of aggravating factors - effect of hardship upon offender's children. LEGISLATION CITED: s 52A Crimes Act s 3A; s21A Crimes (Sentencing Procedure) Act CASES CITED: R v Jurisic (1998) 45 NSWLR 209; (1998) 101 A Crim R 259; (1998) 29 MVR 49] R v Whyte (2002) 55 NSWLR 252; (2002) 134 A Crim R 53] PARTIES: Regina Catherine Mary Jones FILE NUMBER(S): 05/11/0110 COUNSEL: Mr D. Wilson (Crown) Mr M. Allen (Offender) SOLICITORS: Mr K. Lambeth (Crown) Ms L. Haywood (Offender) JUDGMENT 1 HIS HONOUR: As to the sentencing of Catherine Mary Jones. 2 At about 2.30 pm on 23 November 2004 a pedestrian, Mrs Beryl Corby, was struck by a motor vehicle being driven by Ms Catherine Mary Jones while she, Mrs Corby, was walking across Lambert Street in Bathurst. 3 As a result of the collision, Mrs Corby suffered severe injuries, which caused her death. 4 Mrs Corby was aged about 74 years. She was a widow, her husband having died about 8 years before her. She was the mother of four children and the grandmother of then 8 grandchildren. Her death has had a profound and far-reaching affect upon her children, as revealed by the statements, Exhibits H, J, K and L. Although I have never experienced the effect of losing a loved one as the result of a motor vehicle collision, and I hope that I never experience it, I can understand and appreciate the hurt, pain and anger suffered by Mrs Corby's children at losing their mother in such a sudden, unexpected and unnecessary way. I extend to Mrs Corby's children and to her grandchildren the Court's condolences for their great loss. 5 As I have said already, the collision occurred in Lambert Street in Bathurst. The road is kerbed and guttered with a bitumen surface. It runs generally east-west. It is about 15 metres wide. It is not marked with a centre line or lane lines. It is sufficiently wide to provide for a line of vehicles in each direction with vehicles parked at each gutter. It is generally straight. However, it rises to a crest at about the place of the collision. It has a speed limit of 50 kilometres per hour. It can be seen in the photographs numbered 1 to 7 inclusive in Exhibit E. 6 At about 2.30pm Ms Jones was driving her motor vehicle, a blue coloured Ford sedan, registered number GTG199, in a westerly direction on the southern half of Lambert Street towards the crest in Lambert Street, which is about 125 metres to the west of the intersection of the intersection of Lambert Street with Venes Street, at an unstated speed. Ms Jones' vehicle can be seen in the photographs in Exhibit E. 7 At the same time, Ms Anne Engler was driving her vehicle, a red coloured Toyota Corolla sedan, in an easterly direction on the northern half of Lambert Street towards the crest in Lambert Street at a speed of about 40 kilometres per hour. Ms Engler noticed both the approaching blue coloured vehicle and the pedestrian ahead of her. 8 At the same time, Mrs Corby commenced to walk across Lambert Street from its southern gutter towards its northern gutter at a place to the west of the crest in Lambert Street. This place has been determined to have been about 18 metres to the west of the driveway entrance of 270 Lambert Street. This place can be seen in the photographs numbered 3, 4, 8 and 30 in Exhibit E. 9 At the same time when Mrs Corby commenced to walk across Lambert Street the vehicle being driven by Ms Jones was approaching her from her right-hand side and the vehicle being driven by Ms Engler was approaching her from her left-hand side. Ms Engler estimated that at that time the pedestrian was about one and a half car lengths from her and that the approaching blue coloured car was about two and a half car lengths from the pedestrian. Ms Engler's estimations do not match police calculations of the distance between Mrs Corby and Ms Jones' vehicle when Mrs Corby commenced to walk across Lambert Street. 10 At a place on the southern half of Lambert Street the front driver's side corner of the vehicle being driven by Ms Jones struck the right side of Mrs Corby. As I have said already, this place has been determined to have been about 18 metres to the west of the driveway entrance of 270 Lambert Street, see paragraphs 6.6, 8.8 and 10.2 of Exhibit F, and about 5 metres to the north of the southern gutter of Lambert Street, see paragraph 10.3 of Exhibit F. 11 The determined place of the impact means that Mrs Corby had walked about 5 metres across Lambert Street from the southern gutter towards the northern half as the vehicle being driven by Ms Jones was approaching her from her right-hand side and the vehicle being driven by Ms Engler was approaching her from her left-hand side. 12 Ms Jones applied the brakes of her vehicle at least 18 metres before impact of her vehicle into Mrs Corby because her vehicle left 18 metres of tyre marks on Lambert Street before the determined place of the impact and a vehicle leaves tyre marks on a road surface only after the vehicle's wheels have stopped rotating and have become locked. 13 Ms Jones' vehicle stopped moving about 18 metres past the determined place of the impact, see paragraph 10.2 of Exhibit F. 14 Police calculated that Ms Jones was driving her vehicle along Lambert Street towards the place of the impact at a speed of 72 kilometres per hour, see paragraph 11.6 of Exhibit F, that at that speed Ms Jones' vehicle was between about 50 metres and about 80 metres to the east of Mrs Corby when she, Mrs Corby, commenced to walk across Lambert Street, see paragraph 11.15 of Exhibit F, - that Ms Jones reacted to Mrs Corby leaving the gutter at about the same time or shortly after when she, Mrs Corby, left it, see the second paragraph numbered 11.9 which should be paragraph 12.9 of Exhibit F. 15 About 3.54pm, about one and a half hours after the collision, analysis of Ms Jones' breath revealed a blood alcohol concentration of 0.080 grams of alcohol per 100 millilitres of blood, see Exhibit G. This means that Ms Jones was driving the vehicle with the middle range breath alcohol concentration, that range being from 0.08 to 0.15 grams of alcohol per 100 millilitres of blood. As to her consumption of intoxicating liquor, Ms Jones told police that she had consumed two 340 millilitre bottles of "Wild Turkey" at home, see the statement of facts Exhibit A. Wild Turkey is a mixed drink containing bourbon and cola, see the photograph numbered 26 at Exhibit E. Police described Ms Jones as crying and breathing rapidly with her breath smelling of intoxicating liquor, something that Ms Engler did not notice when she comforted Ms Jones at the scene of the collision, her movements were jerky and her clothing disarranged, see the statement of facts Exhibit A. Although the fact that her breath smelt of intoxicating liquor indicated that she had consumed intoxicating liquor, something which she admitted, the facts that Ms Jones was crying and breathing rapidly and that her movements were jerky and her clothing disarranged are consistent with her having been involved in a collision with a pedestrian who had suffered severe injuries. In the absence of expert evidence as to what would have been Ms Jones' blood alcohol concentration at the time of the collision and as to the effect that such a blood alcohol concentration would have had upon an ordinary person, I am unable to say what was Ms Jones' blood alcohol concentration at the time of the collision and what, if any, effect such a blood alcohol concentration would have had upon her and her ability to drive her vehicle. Moreover, in the absence of expert evidence, I am unable to say whether Ms Jones' ability to drive her vehicle was affected by a 0.08 blood alcohol concentration and, if it was, to what extent it was affected. 16 Although Ms Jones had been issued with a driver's licence on 25 May 1988, police ascertained that as at 23 November 2004 Ms Jones did not hold a current driver's licence. The records of the Roads and Traffic Authority revealed that on 3 December 1992 the driver's licence of Ms Jones had been cancelled due to her failure to pay fines for driving offences committed during August 1991 and May 1992, see Exhibit O. Although it is beyond argument that Ms Jones should not have been driving her vehicle on the day, the fact that she was not a holder of a current driver's licence did not affect her ability to drive her motor vehicle. 17 Police charged Ms Jones with a number of offences, including 1) dangerous driving of a motor vehicle causing death; 2) driving a motor vehicle with the middle range prescribed concentration of alcohol in the blood; and 3) unlicensed driving of a motor vehicle, and in due course on 25 July 2005 Ms Jones appeared before a Magistrate in the Local Court at Bathurst for a committal hearing in relation to the dangerous driving of a motor vehicle causing death charge. Not surprisingly, as the Crown's case was not challenged or tested, Ms Jones was committed to appear in this Court at Bathurst on a day to be fixed for her trial. 18 On 13 June 2006 Ms Jones appeared before Judge Hulme and, after she was indicted with the charge, she pleaded guilty to it and the sentencing proceedings were stood over to 24 July 2006. Ms Jones' counsel conceded that Ms Jones did not enter her guilty plea at the earliest appropriate opportunity. I accept, notwithstanding that, the guilty plea has had considerable utilitarian value in saving the time and costs of a trial. I intend to discount the sentence that I consider appropriate by 15 percent on account of Ms Jones' guilty plea. 19 On 24 July 2006 Ms Jones appeared before me on the sentencing proceedings. After I had received documentary material from the Crown Prosecutor and Ms Jones' counsel, I stood over the proceedings to 2 August 2006 for submissions as to sentence. 20 Accordingly, on 2 August 2006 Ms Jones appeared before me again. Mr Ian Corby read his statement, Exhibit L, to the Court. Ms Jones, Ms Blythe Hans and Mr Joseph Lenahan gave evidence. The Crown Prosecutor and Ms Jones' counsel made submissions as to sentence, after which I stood over the sentencing to 4 August 2006, later changed to today. 21 I am now to impose sentence upon Ms Jones for the offence of dangerous driving of a motor vehicle causing death to which she has pleaded guilty. 22 The offence of dangerous driving of a motor vehicle causing death is an offence contrary to s 52A subsection 1 paragraph (c) of the Crimes Act, for which the prescribed penalty is imprisonment for a maximum of 10 years. It is an offence which cannot be dealt with summarily. It is an offence which does not carry a standard non-parole period. 23 However, it is the offence to which the guideline judgments of the Court of Criminal Appeal in Jurisic and Whyte apply. The guideline is that in cases of dangerous driving, except in the case where the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement, a sentence of imprisonment for less than 3 years in the case of death, or 2 years in the case of grievous bodily harm would be inappropriate, with the length of the sentence determined having regard to the objective circumstances of the offence, the subjective circumstances of the offender, and such aggravating and mitigating factors as are present. 24 As to what had happened before the collision, Ms Jones said in her evidence that she had consumed two bottles of Wild Turkey before going shopping with her daughter; that, after completing her shopping, she was driving her vehicle to her home; that she had to travel about 4 kilometres from the shops to her home; that she was about halfway to her home when she was driving her vehicle uphill towards the crest in Lambert Street; that she saw the pedestrian standing on the gutter on her left-hand side; that she thought that the pedestrian was waiting to let her go past; that, when the pedestrian stepped onto the road, she applied the brakes of her vehicle and moved her vehicle towards the left-hand side of the road to try to avoid the pedestrian. I accept what Ms Jones said about the collision because I do not see anything in what she said to be unlikely or improbable and because what she said is generally consistent with the police reconstruction and analysis of the collision. I think that it is interesting to note that, in the same way that Ms Jones thought that the pedestrian was waiting to let her go past, Ms Engler thought that the pedestrian was going to stop in the middle of the road to let her go past. I think that this thought must have been in the minds of Ms Jones and Ms Engler because of the close proximity that each of them was to the pedestrian when each first saw the pedestrian. This, coupled with Ms Engler's estimations of the distance between her and the pedestrian, and the pedestrian and the oncoming blue coloured Ford, see paragraphs 6 and 7 of Exhibit B, cast some doubt upon the police reconstruction and analysis of the collision. 25 In its guideline judgments the Court of Criminal Appeal referred to a number of factors which may aggravate the objective circumstance of the offence. I consider that in this case the only relevant aggravating factor is that Ms Jones was driving her vehicle at a speed which was in excess of the applicable speed limit and which was excessive for the locality. The Crown Prosecutor did not submit that Ms Jones was driving her motor vehicle erratically or aggressively or in a competitive or showing off manner or when she was deprived of sleep or after she had ignored any warning. The Crown Prosecutor submitted however that Ms Jones was driving her motor vehicle after having consumed some intoxicating liquor and when she did not hold a current driver's licence and Ms Jones had exposed her daughter, if not other road users, to the risk of injury or death. 26 I accept that Ms Jones was driving her motor vehicle after having consumed some intoxicating liquor but, as I have said already, the evidence does not show whether the quantity of intoxicating liquor that she had consumed affected or would have affected her ability to drive her vehicle and, if it did, the extent to which it did so. Also, as I have said already, the fact that Ms Jones did not hold a current driver's licence did not affect her ability to drive her vehicle. I cannot see in the relevant circumstances that the dangerous manner in which she drove her vehicle, that is, as I have said already, driving the motor vehicle at an excessive speed, exposed other road users to the risk of injury or death. 27 The Crown Prosecutor submitted that Ms Jones' moral culpability for the collision and therefore the death of Mrs Corby was high and Ms Jones' counsel submitted that, to the contrary, it was low. It is not an easy task to determine in any given set of circumstances where a person's culpability for an act falls within the range from high to low. The Court of Criminal Appeal suggested that momentary inattention or misjudgment might fall towards the low end of the range. Ms Jones' counsel conceded that the collision was not the result of momentary inattention or misjudgement. I consider that the collision was the result of a combination of the speed at which Ms Jones was driving her vehicle and her failure to react by applying the brakes to her motor vehicle immediately upon seeing the pedestrian step off the gutter onto the road because of her belief that the pedestrian was waiting to let her go past. In these circumstances I consider that Ms Jones' culpability falls towards the lower end of the range between low and high. 28 As to the personal circumstances of Ms Jones, she was born on 14 October 1966. She was aged 38 years 1 month at the time of the collision and she is aged 39 years 10 months now. She is single. She is the mother of seven children who are aged between 20 years and 2 years. Her eldest child lives away from her, attends a TAFE college but is partly dependent upon her. Her other children live with her and they are wholly dependent upon her. She relies for her and her children's everyday needs upon the supporting parent's benefit and the support of charities. She does not receive any support from the fathers of her children. She has lived an emotionally and financially deprived life, as revealed by the pre-sentence report, Exhibit G, the report of Ms Robilliard psychiatrist, Exhibit 1, and the report of Ms Castles, social worker, Exhibit 3, which need not be recited. She lives a socially isolated life, spending her time in the care of her children. She has a criminal record in New South Wales, see Exhibit M, and Queensland, see Exhibit N, for relatively minor offences, all unrelated to her driving of a motor vehicle. She received her driver's licence, as I have said already, on 25 May 1988 but she lost it on 8 December 1992 for failure to pay fines incurred during August 1991 and May 1992. She has been affected by the collision and the death of Mrs Corby. She has disposed of her motor vehicle and she has vowed never to drive a vehicle again. She is genuinely remorseful for the death of Mrs Corby and for the affect of her death upon her children and grandchildren. She is unlikely to re-offend in the way that she has offended or in any other way. 29 In determining an appropriate sentence to impose upon the offender for the offence to which she has pleaded guilty, I must recognise the purposes of sentencing outlined in s 3A of the Crimes (Sentencing Procedure) Act and I must take into account such of the aggravating factors referred to in s 21A subsection 3 of that Act as are present, and such of the mitigating factors referred to in subsection 3 of the section as are present and any other relevant factor. 30 I consider that having, regard to what I have said about the offence and the offender, none of the aggravating factors referred to in subsection 2 of s 21A of the Act is present and that the mitigating factors are those lettered (b), (e), (f), but subject to (e), (g), (h), (i) and (k) in subsection 3 of the section. 31 One factor not mentioned in section 21A of the Act is deterrence. I see both personal and general deterrence to be important, although, having regard to what I have said about the likelihood of the offender not re-offending, personal deterrence is not as important in this case as it might be in another case. However, general deterrence is important. Drivers of motor vehicles upon the public streets of New South Wales must realise that it is a privilege, not a right, to do so and that there are duties and responsibilities attached to such a privilege. 32 What, then, is an appropriate sentence to impose upon Ms Jones for the offence to which she has pleaded guilty? 33 I have determined, having regard to the purposes of sentencing, the objective seriousness of the offence and the objective circumstances of Ms Jones and balancing the various factors, to all of which I have referred already, that the starting point for the sentence should be imprisonment for 3 years. I reduce the period of 3 years by 15 percent on account of the guilty plea, that is, for ease of calculation, by 6 months to 2 years 6 months. 34 Apportionment of a sentence of 2 years 6 months into a non-parole period and a parole period would produce, in the absence of a special circumstance, a non-parole period of 1 year 10 months 14 days and a parole period of 7 months 14 days. I consider that the facts that Ms Jones has never served a prison sentence, that she has excellent prospects for rehabilitation and that she and her children, particularly the two youngest children, will suffer hardship from her imprisonment, are special circumstances which justify a non-parole period and a parole period each of 1 year 3 months. 35 As to whether the non-parole period of the sentence should be served on a full-time or periodic detention basis or whether execution of the sentence should be suspended, I have determined that it would not be appropriate to suspend execution of the sentence but that, for the factors that I have mentioned in the preceding paragraph, the non-parole period of the sentence should be served by periodic detention. 36 Accordingly, Catherine Mary Jones, for the offence of dangerous driving of a motor vehicle causing death, to which you have pleaded guilty, you are convicted. I sentence you to imprisonment for 2 years 6 months. I fix a non-parole period of 1 year 3 months and a parole period of 1 year 3 months. I order that the non-parole period be served by periodic detention. I order that you report to the Periodic Detention Centre, Bathurst Correctional Centre, at 8.30 am on Saturday 26 August 2006 to commence serving the sentence. I disqualify you from holding or obtaining a licence to drive a motor vehicle under the relevant legislation for 2 years and 6 months from today. I dismiss the back-up and related charges referred to in the annexure to the Section 166 Criminal Procedure Act document. You may take Ms Jones into custody. 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.