R v PERRY [2011] NSWDC 70

District Court New South Wales

Medium Neutral Citation: R v PERRY [2011] NSWDC 70 Hearing dates: 8 April 2011; 24 June 2011 Decision date: 24 June 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment for 2 years to be served by way of Intensive Correction Order Catchwords: CRIMINAL LAW - Sentence - Form 1 - Intensive Correction Order - Dangerous driving occasioning grievous bodily harm - Provisional drivers licence - Blood alcohol level upper end of mid range - Significant injuries - Forgiveness by victim Cases Cited: R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 Category: Sentence Parties: The Crown Sarah Margaret Perry Representation: A Bellanto QC - Offender Director of Public Prosecutions Uther Webster & Evans - Offender File Number(s): 2010/52449

SENTENCE 1HIS HONOUR: Early on a Tuesday morning in December 2009, Sarah Perry, an eighteen year old girl on a provisional driving licence, but not displaying her P plates, was driving her parents' Toyota Corolla along Captain Cook Drive at Kurnell. She should not have been driving in the state she was in. She had had very little sleep and had been drinking alcohol to the extent that her blood alcohol level was at least .142. As a P-plater she should have had a blood alcohol level of zero but her blood alcohol level was at the upper end of the middle range for PCA offences. She was thus well aware that she was committing a serious criminal offence and that she represented a significant danger to others on the road. 2Despite her lack of sleep and her significant level of intoxication she had decided to drive that morning. I emphasise that that was a decision to commit a criminal act. That decision has had tragic consequences because whilst driving and most likely as a result of her tiredness and intoxication she appears to have fallen asleep at the wheel. The car she was driving crossed to the wrong side of the road. One driver coming the other way was able to take evasive action but Mr Christopher Gibson also driving in the other direction was left with nowhere to go. 3The offender's car and Mr Gibson's car collided head on. Both drivers were injured, Mr Gibson severely. He was trapped in his car for about an hour before he was taken to hospital by helicopter, that mode of transport being used because of the seriousness of his condition. He did not get out of hospital for 79 days and has been left with permanent and significant injuries. His mental wellbeing has suffered too. He has suffered financial loss as I will later describe. That significant harm resulted from the offender's foolish and criminal decision to drive in the state she was in. Both Mr Gibson, and the offender herself, are very lucky that he is alive today. 4Mr Gibson is entitled to feel bitter about the situation in which he finds himself. He was driving entirely lawfully that morning. He was not drunk, he was not at risk of falling asleep and yet it is he who has had to bear the significant and lifelong consequences of the offender's wrongdoing. Mr Gibson would be forgiven if, in those circumstances, he desired retribution. Yet to his vast credit, after he heard the offender give evidence during her sentencing proceedings, he conveyed to the Crown, who informed me, in turn, of his acceptance of what he believed to be Ms Perry's genuine remorse and his desire that she not suffer lifelong consequences for herself. However, as I explained to Mr Gibson at the time, whilst his attitude is commendable in the extreme it is not something which can operate to affect the sentence I must impose upon the offender. 5Courts have duties which extend beyond consideration of only those directly involved in an offence, and for the courts to impose lower sentences on those whose victims forgive them would be to fail to take into account other potential victims of criminal conduct. Just as much as the courts must ignore victims' requests for harsh and extreme punishments, they must also ignore expressions of opinion by more humane people such as Mr Gibson. 6Let me now deal with the circumstances leading up to the offender's criminal behaviour. The day before the collision the offender drank a substantial amount of alcohol, probably more than she remembers or is prepared to admit. She started at a hotel at about one o'clock in the afternoon where she had a vodka, lime and soda. She then went to an RSL club where she said she had three to four glasses of sparkling wine. At five o'clock she went to the hotel at which she worked where the management were offloading some of their expired stock by giving it to their staff. She had four Bacardi Breezers and one bourbon and coke whilst at the hotel. She left there at about 11.30 and went to the home of a work colleague and friend, Ms Jerish Naidoo. There is no evidence that the offender had more to drink there but there is evidence that she was tired. Indeed Ms Naidoo said that at one stage when they were all in the spa together the offender went and had a nap on a couch, while wearing her swimming costume, for between one hour and an hour and a half. She woke about 4.30am and decided that she would walk the comparatively short distance to her home. 7One of her fellow employees, who had also been at Ms Naidoo's place, said that he would escort her. It was then that the friend, Mr Nathan Mosler and the offender discussed a problem Mr Mosler had in getting to his home. He needed to be at work and he needed to pick up his uniform and perhaps have a little sleep himself before starting work. It was then that the offender made the decision to drive him; she dropped him home and it was on the way back to her house that the collision occurred. 8She gave evidence that she thought it was possible that she would not have had the zero alcohol level that the conditions of her driver's licence required. She has said something similar to psychologists who have interviewed her for these proceedings, namely that she realised there was a risk that she may have had some alcohol in her blood but drove in any case. I simply cannot accept that the offender had any doubt at all that she should not have been driving. I am satisfied that she well knew, not only that she had had very little sleep, but also that her blood alcohol level would have been well above zero. I do not accept that she failed to realise she was well over the limit which applies to P-plate drivers. I make this finding for the following reasons. 9The level of alcohol in her blood at the time of the collision was at least .142, a level which is approaching the high range for PCA offences. I do not accept that a person with a blood alcohol level that high could contemplate the possibility that the blood alcohol level that she really had was zero. Further, she knew how much she had had to drink that day and despite being only eighteen, she was an experienced drinker who had done her RSA qualification in order that she could work at the hotel. I am going to sentence the offender on the basis that she well knew that she should not have been driving because of her blood alcohol level. When she got behind the wheel of her parents' car that morning she may not have known the precise extent of her intoxication but she knew she was intoxicated. This is a significant matter when I come to determine her moral culpability. 10The offender is the youngest of five children of her parents. While she was in her middle year of high school she was diagnosed with attention deficit disorder. It is perhaps the case that she had suffered from that condition for some time but it had not been diagnosed because of her generally placid nature. (In this regard it is important to note that she had been diagnosed with attention deficit order not attention deficit and hyperactivity disorder) She was prescribed dexamphetamine which assisted her to concentrate and focus on her studies. After completing her HSC she and some friends went on a trip to Fiji. She decided to cease taking her medication at that stage, she said because she was no longer studying and there was nothing in particular that she needed to concentrate on. She did not resume taking her medication upon her return from that holiday and she was not taking her medication at the time of the offence. 11The evidence would suggest that those with ADD who do not take their medication are at a higher risk of committing driving offences and causing injury to other road users because of increased impulsivity which comes with untreated ADD. That is an important factor in determining the moral culpability of the offender. She could not have foreseen the possible link between ceasing her medication and the offence which brings her before me today. 12I briefly mentioned before the consequences of this offence for Mr Gibson but it is worth spending some time, and I will take some time given the extent of his injuries, setting out what happened to him as a result of the offender's wrongdoing. 13As I mentioned before Mr Gibson was taken to hospital by helicopter. He had massive facial injuries with associated bleeding which required that he be intubated so that he did not drown in his own blood. Even before he arrived at hospital two holes were opened in his chest to prevent his lungs collapsing. He had many bones broken throughout his body. He had a fracture at the base of his skull. He had fractures of both cheekbones. His nose and the eye sockets on both sides were fractured. He had a fractured rib, a fractured right arm and a fracture of the L5 vertebral body, both ankles were broken too. Not surprisingly he required blood transfusions and multiple operations. His recovery was slow but steady. Eventually he was discharged from the intensive care unit and was later transferred to a rehabilitation hospital where he remained until 24 February 2010. 14Of course given his extensive injuries he has been left with significant problems; he suffers ongoing pain. He is permanently scarred. He limps when he walks and can only walk for a short distance before the pain overcomes him. His right arm is a lot less strong than it used to be and he has lost part of the use of his right thumb. He suffers lower back pain, numbness and pins and needles in his right thigh, shoulder and neck pain, headaches and muscle deterioration. He can no longer do many things that he used to do. He led an active sporting life before the collision, playing soccer, snow skiing, water skiing, surfing and tennis but these activities are now beyond his physical capabilities. He gets frustrated because he can no longer carry out the tasks around his home that he used to be able to do such as renovations, general maintenance and gardening jobs. He can no longer climb ladders and has difficulty walking up and down stairs. He has restricted vision in both eyes which frustrates him as before the collision he was an avid reader. 15It is perfectly understandable that these physical limitations have caused him to become frustrated, which in turn has led to him becoming more short tempered and aggressive with his family. He suffers from short term memory loss and has suffered bouts of depression and aggressiveness. He has had to take a less satisfying job at work too. He used to be a refinery technician at the Caltex Oil Refinery and indeed he was travelling to work at the time of the collision. He lost a promotion that he expected to get and could not even do the job he previously had because it involved a lot of climbing high towers and similar physical activity. He is now reduced to office work. 16The offence has had a financial consequence as well. Mr Gibson's wife had to resign from her part time job because of Mr Gibson's inability to do things for himself. 17The harm that an offence causes is an important factor in determining the appropriate punishment for that offence. Although all offences involving grievous bodily harm by definition involve serious injury the injuries suffered by Mr Gibson and the consequences for him are substantial. 18Since committing this offence the offender has made some changes in her life. Before the collision she would occasionally binge drink but as far as can be determined she has moderated her drinking behaviour. She is, I am satisfied, deeply remorseful for what she has done. She wrote a letter of apology to Mr Gibson and there is much evidence as to the psychological impact that her recognition of the consequences of her wrongdoing have had upon her. She too has suffered from depression as she comes to terms with what she has done. 19It is undeniable that over recent years sentencing for this type of offence has undergone a significant change. The maximum penalty for this offence is seven years imprisonment. The offence of dangerous driving occasioning grievous bodily harm was the subject of the very first guideline judgment issued by the Court of Criminal Appeal. That guideline judgment was a response to a succession of Crown appeals, usually successful, against sentences imposed for dangerous driving offences in the District Court. To put matters bluntly both Parliament and the appellate courts were of the view that sentences for this type of offence were too low. It was, perhaps belatedly, recognised that those who get behind the wheel while drunk or tired, or who drive dangerously for any other reason, and thereby harm or kill someone usually exhibit a very high level of moral culpability. Of course noone convicted of this type of offence ever intends to cause harm but a willingness to run the risk of causing harm or death to another road user by driving whilst drunk, tired or in a dangerous manner can in truth be serious criminal conduct. In many respects this is matter which is consistent with what was described as the typical recurring case in the Court of Criminal Appeal decision of R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, one exception being that the plea of guilty in this matter was entered early. Nor could it be said that the offender exhibited a low level of moral culpability. The result is, as Mr Bellanto, conceded that a custodial sentence of some form is required. 20Her moral culpability is increased when account is taken of the significant sleep deprivation, and the significant level of intoxication which very significantly impaired her driving ability. Although I cannot describe it as high, even given the consequences of her ADD it is clearly substantial. In sentencing her of course I must also take into account the Form 1 matter of failing to display her P-plates. 21Questions then arise as to the length of the sentence and if alternatives to fulltime custody are then available, what form a custodial sentence should take. 22Given the length of the sentence I determined it was appropriate that the offender be referred for assessment for an Intensive Correction Order. That was done. The report has been tendered today indicating the suitability of the offender for such an order. I am satisfied that that is the appropriate punishment that I should impose upon her but I want to make it clear to the offender just how close she was to spending time in prison. She was but a hairs breadth away from a sentence that would see her in gaol. 23The offender is sentenced to imprisonment for two years. It is to be served by way of an Intensive Correction Order. Her sentence will commence on 13 July 2011. It is subject to the mandatory conditions proscribed by clause 175 of the Crimes (Administration of Sentences) Regulation. These include that the offender must be of good behaviour and not commit any offences, must live at an approved address and not leave New South Wales or Australia without permission. She must comply with directions, submit to alcohol and drug testing, surveillance and monitoring, receive home visits, participate in any activities required and undertake 32 hours of community service per month. There are other mandatory conditions as well. A full copy of the mandatory conditions will be provided to the offender.