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 McGuire DCJ OFFICER :

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 Crimes Act 1900 LEGISLATION CITED : 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: