District Court New South Wales Medium Neutral Citation: R v M.M.E.B [2011] NSWDC 207 Hearing dates: 17/12/10 Decision date: 04 March 2011 Before: NICHOLSON SC DCJ Decision: Driving under the influence of a drug occasioning death: Convicted. Sentence to 2 years and 6 months imprisonment with a non-parole period of 15 months. Disqualified for 4 years. Licensed cancelled until he passes the Driving Knowledge Test, he is required to provide personal photograph identification to be presented on any occasion he is given the Road Rules Knowledge Test and such identification is to be verified against pass license photographs by the RTA. Driving under the influence of a drug occasioning grievous bodily harm: Convicted. Sentence to a fixed term of 18 months. Disqualified for 4 years. Licensed cancelled until he passes the Driving Knowledge Test, he is required to provide personal photograph identification to be presented on any occasion he is given the Road Rules Knowledge Test and such identification is to be verified against pass license photographs by the RTA. Catchwords: Criminal law - sentencing - after trail - drive under influence of drug causing death; GBH - manner of driving - speed - impaired judgment - impaired eye-reflex coordination - wife's prescription drug - slimming tablets (phentermine) - undertaking on ending left lane - bitumen laneway ends - loss of vehicle control - head-on collision - death of on-coming driver - serious injury to own young child - defence of honest and reasonable mistake rejected by jury - defence of honest mistake rejected at sentence - substantial moral culpability - 36 year old married man - illiterate - impaired intellectual capacity - prior good character - some past adverse driving history. Cases Cited: The Queen v Gladue [1999] 1SCR 688 [80] R v Rushby [1977] 1 NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Cuthbert [1967] 2 NSWR 329 Anderson [1981] VR 155 R v Whyte [2002] NSWCCA 343 Category: Sentence Parties: Regina M.M.E.B Representation: Crown: D Patch Defence: C Steirn SC R Lahoud File Number(s): 2008/12911 Judgment 1One of the responsible laden tasks each of us does daily is the driving of our motor vehicles. The State takes great pains to ensure that only those imbued with a sense of responsibility and equipped with the appropriate skills are permitted to drive upon the road. Part of the fabric of measures the State puts in place to ensure responsible driving is a series of prohibitions that drivers must obey. One of those prohibitions is that drivers are forbidden to drive under the influence of a drug. 2MMEB chose to do just this, that is to say he chose to drive whilst he was under the influence of a drug on 14 April 2007. Whilst driving in such a condition his vehicle impacted with another. The consequence of that impact was the death of a law-abiding third party and very serious injury to his own son. 3When arraigned upon charges relating to this episode, namely that he drove under the influence of a drug or alternatively, that he drove in a manner dangerous to another person he told those who were ultimately to become his jury that he was not guilty of either. A trial commenced on 19 July 2010. It lasted for some ten days. His defences to the principle charges were that he had or held an honest and reasonable belief that when he took the relevant drug, a prescription slimming tablet, Phentermine, that they were not prescription drugs and that they did nothing to make him unfit to drive. By his pleas he also put in issue the question of whether he was driving in a manner dangerous to another person. 4The jury by its verdict rejected beyond reasonable doubt the defence advanced and accepted the Crown case as being made out in respect of the principal charges. They were not required to consider the drive in a manner dangerous to another person's charges. That does not mean the question of his manner of driving is irrelevant to any proper assessment of his criminality. 5As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these two offences before this Court committed by this offender harming these victims in this community. The Queen v Gladue [1999] 1SCR 688 [80]. 6My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to the offender called subjective matters. The starting point for these assessments requires me to make findings of fact from the evidence before the Court relating to the offence and the offender. My fact-finding task in respect of the offence necessarily requires me to find facts consistent with and reflective of the jury's verdict. There is no obligation to find facts at either extreme of favourability or unfavourability to the accused. 7It is clear the jury verdicts rejected the defence advanced by the offender. But that still leaves a substantial number of facts to be determined, as I say in accordance with and in sympathy with the verdicts that they gave. 8An unusual feature of this case is the delay between offending and sentence. Whether that delay causes an impact will need some assessment. The offender's rehabilitation prospects will have to be assessed, even if looking through a glass darkly. The proper sentencing disposition and if it be a sentence of imprisonment, the appropriate sentences and parole periods need to be determined. 9What weight needs to be given to all of these matters against an imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined. See R v Rushby [1977] 1 NSWLR 597, R v Hayes [1984] 1 NSWLR 740 and R v Cuthbert [1967] 2 NSWR 329. Facts 10The time was about 7.40pm on the second Saturday night in April. The offender was driving his Subaru Impreza WRX sedan easterly on Hoxton Park Road approaching the Whitford Road intersection. Elisapeta Faimata was driving her Proton Wira westerly towards the same intersection. In the offender's car was his wife in the passenger seat, his son then aged four and daughter aged seven, seated in the rear. The signed speed limit was sixty kilometres per hour. The road was of sealed bitumen. 105 metres before the intersection the road, as the offender was travelling, it became two lanes for him. The extra left land ended 140 metres east of the intersection. In total that left lane is 270.5 metres. The collision occurred approximately eighty-five metres east of the intersection, that is about thirty-five metres after the Hoxton Park Road reverted to a single lane going in each direction. 11The roadway was generally flat and curved slightly to the offender's right. The impact occurred at night time by which I mean in the dark or in darkness although the road was well lit; the road was dry. Facing east bound traffic were two signs, both of them past the intersection, the first stating "Left Lane Ends Merge Right" and the second "Form 1 Lane". The offender's evidence was he could not read these signs. That makes sense because he has no literacy in English and is barely literate in his native tongue of Arabic. 12The intersection was controlled by traffic lights. As he approached the intersection the traffic lights facing him were showing red. Already parked at these lights were two or perhaps three cars waiting for the lights to turn green. There was no traffic waiting in the left hand lane. As he approached the stationary vehicles in the right hand lane the lights changed to green. The Corolla lead car entered the intersection followed by the other car or cars behind it. When the light changed green the offender accelerated in an attempt to underpass all of these vehicles in the 140 metres left to him as he exited the intersection. It may be that he had a little longer than 140 metres because I am satisfied the light turned green before he hit the intersection. 13He reached a speed of no less than eighty kilometres an hour as the road narrowed on the far side of the intersection to a single lane. He ran out of bitumen laneway. His vehicle travelled at this speed on the gravel shoulder. The offender still determined to complete the underpass of the remaining vehicle or vehicles to his right. Having done that he re-entered the bitumen, the back end of his vehicle went left, he crossed onto the incorrect side of the road. The front right hand side of his vehicle impacted with the front right hand side of the Proton. Upon impact the vehicles were airborne, obviously came back down and rotated clockwise accounting for some of the tyre marks on the road. There is no evidence from which I could conclude the offender ever applied his brakes at the impact scene and its approaches. The Subaru appears to have rotated almost two and a half times. 14Two of the drivers heading in the same direction as the offender gave evidence and a passenger in the lead car also gave evidence. Their evidence is based upon their experience at the scene and is worth repeating as a non-scientific, but nonetheless accurate account of what they saw. 15Crystal Trantas's evidence is that she had been stopped at the red light. She was travelling through the intersection of Hoxton Park Road and Whitford Road when she heard a loud engine that sounded like it was progressing because it got a lot louder so she slowed down. When she first heard it the noise was coming from behind her. She doesn't recall whether she took her foot off the accelerator or braked but either one of those would have resulted in her slowing down. She saw a car "fly up her left hand side" after she passed the intersection. As there was no more merging lane, the vehicle had to go onto the gravel and maybe after a couple of car lengths the car had to get in front of her. It swerved to get in front of her and lost control. At no time prior to that happening did she accelerate. 16The back end of the vehicle went left and as the car tried to straighten up it went head on with another vehicle coming in the opposite direction. She did not see the oncoming car. She did see the WRX get airborne after having hit the other car. 17In Ms Trantas's vehicle was her sister Joanna Pickett. That lady's evidence was that they came to a set of lights at the corner of Hoxton Park and Whitford Roads, which were initially red so they stopped. She described the lane structure in the intersection then her evidence was that their vehicle was in the lane closer to the middle of the road, the lights turned green and they slowly started through the intersection. They got right through the intersection to the other side and then she heard a rumbling of a big engine coming from the left hand side behind. She could hear it but could not see it initially. Before she knew it "the car was on the [left] hand side of us going past" and then she saw the car come past and it went from the bitumen where the lane had ended onto the gravel. It had passed them on the inside and was on the gravel in front of them. 18The Subaru appeared as though it tried to get back onto the road and when he got back onto the bitumen the back of the car swung out clockwise. Then the car went onto the other side of the road into oncoming traffic. There was a collision with a car coming the other way. 19A third person, the driver of the second vehicle, a Nissan Patrol, gave an account not dissimilar. She said she started into first and moved into second gear. While she was in second gear she noticed a white WRX Subaru flashing past at eighty plus. She saw the Subaru trying to get into the right hand lane from the left which had already ended. Next she noted a dispersing of cars in front of her but she never saw the impact. 20Tendered in the Crown case was exhibit B, an account given by the accused, through his legal representatives, to investigating police on 14 May 2007. It is in these terms: "The 14 April 2007 was the worst day of my life. Around 7.40pm I was driving down Hoxton Park Road with my wife and two children, a boy and a girl aged four and seven respectively, from my home at Rossmore, to visit a very sick friend who had recently had an operation. While driving down Hoxton Park Road, around the suburb of Hinchinbrook, I approached a set of traffic lights. I could see from a distance that the traffic lights were red in colour. There were several cars stationary in lane two and waiting for the traffic lights to turn green. As I approached the traffic lights, the lights turned green. There were no cars in lane one. Accordingly, I moved to lane one to avoid stopping behind the cars that had been stationary in lane two. It turned out that lane one was a short one, which ended a short distance after the traffic lights. Once I realised that lane one was to end, I attempted to negotiate into lane two. As I attempted this, the car inside me accelerated to cut off any opportunity I had to merge into lane two. By this time lane one had ended and I was now travelling on some gravel. When I eventually proceeded to merge onto lane two, my car lost traction on the gravel and I ended up on the wrong side of the road, where the fatal accident occurred. A woman died and my family sustained injuries. My son, in particular, was in a critical condition after the collision, which required him to stay in hospital for three weeks. My daughter was admitted for approximately one week and my wife for two days." There is more to the statement, but the "more" is about topics other than the facts of the offence. 21It is clear the jury rejected the accused's account as given to investigating police on 14 May 2007. Neither the Corolla, nor any other, car accelerated with a view to excluding him from merging. He had sought to, and succeeded in passing all of the vehicles, to a point where none of the trailing vehicles record any suggestion of being in peril once the accused's vehicle had impacted with the Proton. 22Defence counsel argued that although the jury rejected the defence of an honest and reasonable mistake, I should find that the basis of the rejection by the jury was based upon the proposition that an honest mistake was made by him in the consumption of the tablets of Phentermine, not knowing they were a drug, but that the jury took a view the mistake was not a reasonable one. 23The evidence of Dr Pearl had been that the blood concentration of Phentermine found in the accused was 0.25 milligrams per litre. It was her opinion that this was well above, nearly three times above, the therapeutic concentration, which was 0.09 milligrams per litre. It was her opinion that the offender had consumed more Phentermine than the single daily morning dose prescribed for the wife, whose Phentermine it was- a dose which she had been given for the purposes of losing weight. The therapeutic dose was geared to controlling appetite for a twenty-four hour period. 24The offender's case was that he had taken a single dose somewhere between ten and eleven that morning. There is evidence that what is called the half life of Phentermine or sometimes known as Duromine - I think that is the brand name - is twelve to sixteen hours. This offence occurs, accepting that the offender had taken his dose at 11 o'clock, some sixteen and a half hours after he had taken the pill. The testing had occurred probably within an hour or two of that, bringing it up to about eighteen hours, and even so it was at 0.25 milligrams. 25The cross-examiner sought to have Dr Pearl accept the high dosage occurred as a result of build up of the drug. On the defence case, he had only been taking the drug for seven days. It is likely and I find that the jury did not regard this cross-examination as persuasive, but preferred the original reasoning given by Dr Pearl. Indeed, the jury may well have been fortified in its own view when it realised the offender's weight at the time of consuming the pills was something in the order of ninety-two kilograms. Given his height and build, the jury would be right to have questioned his reasons for consuming the pills. 26The directions I gave to the jury left open for them to consider whether the accused consumed more Phentermine than a single morning dose. It was also left open for them to consider whether the offender had consumed pills for some purpose other than weight loss. I should in passing note that one of the effects of the pills is said to be that of an amphetamine. 27I am satisfied the offender's consumption of the pills was not for weight loss. I am also satisfied that on 14 April he consumed at least two pills, that being the day of impact. I am satisfied his consumption of the drug was related to its control nervous stimulant effect. I am satisfied he well knew that taking a second tablet was contrary to the recommended and/or prescribed dosage. His mistake on this basis, if mistake was made, was neither honest nor reasonable. I note he told Dr Westmore that after taking the Duromine he felt energetic. Dr Westmore noted that the offender was not significantly overweight at the time and the effects of the drug may have therefore been enhanced. When asked by Dr Westmore did he become more aggressive, angry or irritable, the offender said, "Yes, a little bit". 28It was the defence case that there was no warning against driving on the packet. Evidence was called from the prescribing pharmacist. She made plain that her practice was to regard such warnings as compulsory when this particular drug was prescribed. It was clear she regarded any failure to affix a warning label as professionally negligent and, I suspect, unethical. I am satisfied she was conscientious in the utmost in respect of her compliance to affix a warning label when one was required. In those circumstances, I am satisfied beyond doubt that such a warning label was affixed. 29This offender says he cannot read English. There is ample evidence to support him on that. He said he could not read the road signs having English words on them, although he recognised what some of them were about. His wife had bought the slimming tablets. I have assumed she knew about the warning label and its meaning. The defence case was she dispensed a single tablet to him daily. In those circumstances the defence was that the Crown could not prove that the warning had been passed on from the wife. By its verdict the jury must have determined otherwise. 30I am, however, prepared to accept that he was given access to the silver sealed foil sheath containing the tablets or he was then given such other number of pills as he requested, but given the clear terms of the warning and the presence of young children in that household that may be riding in the car, I am not prepared to find she said nothing about the warning. It is likely that she said to him, "You're not allowed to drive once you have taken these," or words to that effect. 31On this basis I find his decision to drive was in the face of that warning and a second-hand description of the major context of the warning, namely that he was not to drive. I accept that the basis of the warning, that is, it may affect his mental alertness and/or concentration (see Exhibit I), was never given to him, and if he had seen the warning he would not have understood that. 32I am satisfied the driving from the time the passengers in the Corolla heard the offender's engine noise to the time of impact was driving that constituted driving in a manner dangerous to other persons. The manner that made it dangerous to others was the decision to pass all cars, including the lead car, rather than merge in accordance with the sign, or to form one lane in accordance with that sign, failing to slow down when the Subaru's inner wheels came on to the gravel, and failure to brake and failure to steer into the rear end swerve. Further, during all of that, the speed of the vehicle was excessive and is a further feature of dangerous driving. Objective Criminality 33From the facts as he finds them to be, a sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by judges when they compare objectively the criminality exhibited in the case before the court, with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact on the overall sentencing outcome. 34The roads of the state of New South Wales are for the most part owned by one of three levels of government, that is, the federal government, the state government or the municipal government. Many people think that they have a right to drive. No, there is no inherent right to drive upon the roads. They are not the private property of any individual. Only those accorded the privilege of a licence are entitled to drive upon the roads. Licences are only issued to those who, by submitting themselves to tests on their driving skills and their knowledge of the road rules, agree to be bound by the rules of the road, so that the safety of other users of the road is assured. Passengers in motor vehicles are properly described as other users of the road. In addition to the road rules, the criminal law has also been harnessed to punish those who, as a consequence of dangerous driving or driving whilst there is present in their blood, alcohol or a drug, cause a vehicle collision as a result of which really serious injury or death is caused to another. 35The criminality of the offences before me has to be evaluated against that background. Many offenders - and I have no doubt this offender would be one of them - have difficulty understanding that offences of the kind before me are criminal, yes, criminal offences, as distinct from a driving offence, because they - or in this case, he - did not intend any harm to his victims. From a victim's point-of-view, of course, he or she did nothing towards the offender that caused this injury to them. It is true that criminal law does have a role to play where offenders with malice do violence to others. But it is also true that the criminal law has a role to play where drivers, through their own unlawful driving conduct, cause injury or death to others. 36While each of the two charges focuses upon the harm done to other users of the road, it should be noted that there were potentially other victims, at least on my count six others, who were exposed to risk of injury as a result of his driving. If I include him it would make seven others. 37The court is very mindful that the first charge relates to the death of Elisapeta Faimata. Those in her family should understand that courts, when sentencing for offences such as this- judicial officers including myself, feel great sympathy and condolence for families who have lost someone in such circumstances. I will in a moment come to the impact of her death upon family and the loss to this community of a person through death. It is the loss of the person to the community through death that is being punished. 38From the court's point-of-view, although we know Ms Faimata was, within her family, viewed as a wonderful person, all persons who have been victims are regarded as being of equal merit. The court is also aware, of course, that death is a very permanent outcome. 39The second charge focuses upon injury inflicted to his young son. That injury is set out in some detail in Exhibit S11. He was four years old on 15 April when he was admitted to hospital. He had initially been assessed at the scene of the accident as having a Glasgow Coma Scale score of 10 out of 15. This dropped to 3 out of 15 while he was being transported to Liverpool Hospital. 40At Liverpool Hospital he was found to have a fluctuating level of consciousness, with his GCS ranging between 5 and 9 out of 15. He was described as combative. He was stabilised, including being intubated, ventilated and then transferred to CHW where he was admitted to the Paediatric Intensive Care Unit. He was seen by the rehabilitation team on 19 April 2007, when it was noted he was extubated, confused and had periods of agitation. It was felt that he remained confused, and with his abnormal behaviour he was felt to be clinically in post-traumatic amnesia. 41It should be noted that he was at that stage too young for a standardised assessment of post-traumatic amnesia. He was initially unsteady on his feet, he had some reduced strength on the right side, improving over time. He had some difficulty talking. His behaviour was described as perseverative, including eating excessively, being stuck on certain topics of conversation, and he was found to be impulsive. Some of these problems were noted by his family to be a continuation of his behaviour prior to the collision. He was also noted to be more prone to tantrums. All behaviours were consistent with sequelae from traumatic brain injury. 42WEB's other injuries included a right middle cranial fossa, extradural haematoma, a right frontal subdural haematoma, contusion on the right temporal part of the brain and some cerebral oedema. There was a fracture of the right orbit with right eyelid laceration. Fracture of the right sphenoid and frontal bones. This child had a pre-existing history of congenital toxoplasmosis with inter cranial calcifications and some scarring of his right eye with right divergent squint. 43He was seen by the ophthalmologist service. His eyesight readings were 6/24 to 6/48 on the right side and on the left 6/6 and 6/9. In other words, better eyesight on the left side. Overall, there was a slight reduction it was thought of visual acuity on the right side pre-accident compared to after accident. The diagnosis at the time of the collision until his release on 4 May was that he had sustained a severe traumatic brain injury. 44He was temporary enrolled in and after two years has become a permanent participant in the lifetime care scheme. He was noted to have difficulty talking immediately after the accident and the family reported a deterioration of his language skills including difficulty finding the right word. Formal speech therapy was instituted, he was seen for occupation therapy focusing on his eye moveabilities and organisational skills as well as some self care support. 45Dr Smith, his eye specialist, in July 2008 came to the opinion that he had significantly decreased visual acuity in the right eye compared to the pre-accident situation. The family were also noticing behaviour difficulties and were receiving counselling for this. 46Two years after the accident in April 2009 he was reviewed. It was thought that he was making good progress particularly in area of his behaviour, still noted, however, were impulsive and angry outbursts. It was also noted cognitive fatigue was a significant problem for him. It seems he needed to sleep for a couple of hours after finishing school and tiredness brought on headaches. Surgery was planned for the right eye towards the end of 2009 but I have not been informed of the result of that. 47Three years after the accident he was reviewed again. His cognitive fatigue was still a feature. Occupational therapy, speech therapy and psychological support were still continuing. 48Dr Stephen O'Flaherty in his report from which I have been reading in Exhibit S11 notes that it is early in the recovery for a child as young as WEB as far as his brain injury is concerned. Any decision about long term sequelae from brain injury in children is usually delayed until after they have finished school. 49In July 2009 the son was needing a special teacher and having difficulties in school. There is some difficulty in determining what his pre-existing disabilities were by comparison with his disabilities after the trauma of the collision. One thing is certain that the trauma of the collision had greater impact upon him than it may have had upon a child who was not in a pre-existing precarious situation. I am of the view that the damage done as a consequence of the collision is long term but I cannot be satisfied beyond reasonable doubt that it is lifelong damage. 50An offence of driving under the influence of a drug requires no more than the prosecution to prove the offender was driving, had present a quantity of the drug and his driving was to some degree impaired or influenced by the consumption of the drug and a collision resulted. 51A measure of the moral culpability may also arise from the manner and course of driving in a case where someone is driving under the influence of a drug. So far as this offence is concerned the course of driving dangerously to another person or other persons is less than 500 metres and closer to 250 metres. But the manner of driving reached a point where it was dangerous to other users of the road. 52Earlier I highlighted features which brought the driving to that level. The manner of driving impacts adversely to the accused in my assessment of his moral culpability. Into this mix must also be thrown the circumstance of his consumption of the drug. I have reviewed that in my fact finding. 53Mr Steirn SC sought to argue the moral culpability arising from this factor was low. He also sought to argue that a mistake, an honest mistake, made by the offender over arched all other assessments of moral culpability. Each of these submissions has been rejected. Nonetheless, there is no driving with malice or high speed or a higher level of inebriation through alcohol or [illegal] drugs or the ignoring of any warning given whilst driving recklessly furiously or dangerously. 54While the level of Phentermine may have been three times or nearly three times the therapeutic level it is difficult to equate that in terms of alcohol levels of high range, mid range or low range. I have regarded it as an equivalent of medium or middle range not high range and not certainly above low (as said) range. However, the warning he had been given by his wife, limited as it was, was ignored. I must understand that that warning has not been proved to have been given immediately before the driving commenced and the reality is it is more likely to have been given at a time when the pills were handed to him. 55My finding is no more than the wife must have told him of the warning on the packet. Likewise the Court is not dealing with low moral culpability arising from momentary inattention or misjudgement. The words "low" or "high" do not describe the moral culpability of this offender. He has driven contrary to a warning on a packet that was not fully explained to him. His driving reached a point of being dangerous to others, but it was only over a short course. It resulted in the death of one, on the first charge, and the very serious long term injury of another, the second charge. In those circumstances the moral culpability is best described as substantial. Victim Impact Statements 56Now I come to the victim impact statements. I have received victim impact statements from members of the family. The statements are not sworn evidence and have not been the subject to cross-examination. Any opinions expressed in the statements are not those of a qualified expert. Victim impact statements coming as they do from family members will not become evidence in the case. 57The function of statements such as this one is to give to victims an opportunity of being heard in sentencing proceedings by publicly identifying the impact of the trauma that are visited upon them by the deceased of their loved one or their relative by the actions of an offender. Secondly, it enables them in sentencing proceedings to assist them as they moved towards some closure of grief, resentment and brooding from the criminal conduct of an offender. It gives an opportunity to the offender to at least hear first hand and perhaps gain some insight into the consequences his offending and conduct had upon the family of the victim, Finally, of course, it serves as a reminder for judges such as myself of the terrible impact that criminal conduct can have upon the men and women who are its victims, or in this case its secondary victims. 58The first of the victim impact statements I want to read is from the deceased's mother, and her name is Lupe. She describes herself as the mother of Elisapeta. "On 14 April it was a strange and different day in my whole life. Happiness was turned to sadness. I never thought something like this accident would happen to my child. My happiness is very much incomplete because of the passing of one that was so strong in helping our family. My right hand child who helped me a great deal in our family. She was the one I trusted and depended upon for everything. I feel weak in my whole body and in my heart because I am not seeing my complete and whole family who had been given to me by God... Most of the time now I miss her so much. She had two jobs, was a hardworking person for the benefit and future of our family. She fixed and settled anything like problems, disputes, anything around the house, in our home, and so on. I depended on her for taking care of her brothers and sisters and she did whatever they wanted or asked of her. Everything Elisapeta would do. When this sad news came I did not want to hear such news about death. The sweet and lovely fellowship with your children is a wonderful thing. I said in my heart Espa, I want to die for you instead of you, in your place. I wish that you will come back to life. A life replaces a life. My painful heart will not forget this dreadful stab that pierced my heart. It is so heartbreaking. My daughter will never come back to life again." The elder brother, Penasone, wrote that his sister was: "An unselfish person who dedicated most of her life to better others, even us as her siblings. We have been truly blessed to have the privilege of having her care and guidance for most of our lives, particularly mine. The sudden death of our sister pretty much lowered our confidence level to take difficult tasks in our lives. It shattered the guidance we relied on for a long time. We no longer have the voice of encouragement we lived by. We no longer have her cheering us up in times of sadness. She was our teacher in many ways, as we all looked up to her. She replaced our father after he passed away, taking on the biggest role and responsibilities and difficulties [in the family]. Being the older of us to learn, understand and experience his love and care which we felt was shining through her. She would keep us in touch with our faith/religion. After all it was the backbone to everything she taught us. She left a lot of positive signatures behind in this world and that's what makes us, her family, so proud of her." Her younger sister, Urima, writes this: "Losing my sister has affected a big part of my life. My beloved sister was noble, encouraging, caring, loving, honest, basically everything you would love and admire in a person. She was no doubt the rock of my family. I know for sure it wasn't her time to go. She had goals and aims to reach. She would go for gold to get whatever she wanted. Now that she's gone all I have left are memories. When saying our goodbyes I would say 'I love you', she always said, 'I love you more'. Even thinking about her is heartbreaking still. When my sister died my heart broke into bits and pieces. Two years have now passed by but there is no change. I've turned into a negative person, always feeling bitter. I'm always angry and I don't really know why. The death of my sister has woken me up. I am living in fear, I can die within the blink of an eye. I tried to get it together, I can't help but lash out at anyone, I will never be that nice, bubbly, good hearted girl I was once was. I will never be the same again." The younger two siblings, Silivale, a sister aged fifteen writes this: "Elisapeta Faimata, this name brings back so many memories that I treasure and will never forget. She was everything to me. It also brings tears to my eyes knowing that someone killed her and knowing that she is not here, physically, any more. She was a big part of my life and still is. When I first heard that she passed away I thought they were lying and then I realised that she was never going to come back. She was my hope on getting through school. She still is. She was always there every time something went wrong. She worked at a childcare centre. She was a caring person, a person that always smiled and kept her head up even when times were hard. Why did that man take her life?" The last one is from a younger brother, Vaega: "I was the last to know that my sister had died. After two years I can't believe that she's gone. I miss her to bits and pieces. If I had to make a wish it would be that I want my family back to be my family." 59I should note that in each of those, particularly the last four statements, I have edited a substantial portion out. Subjective Features 60I turn now to subjective features. I am both entitled and required to do that. Not only am I sentencing for the two offences, but I am also sentencing this offender for them. Every offender coming before the Court varies from others who stand or who have stood for sentence. Circumstances personal to an offender may offer to the court some explanation and insight into the commission of these offences by him or some reason why a more a less sentencing outcome is appropriate. 61MMEB is thirty-six years old on my calculation, thirty-two at the time of the impact. He is the father of two children. He lives with his wife and children in south west Sydney, a place called Rossmore. He came to Australia in 1999, on my calculations aged twenty-four, from a Lebanese village. He has been driving in Australia less than seven years when this collision occurred. He has been married for twelve. He lives in a farm in rented accommodation. He is one of twelve siblings, most of whom are modest achievers, one of whom is deaf and dumb. Education, Employment & Skills 62MMEB was schooled in the Lebanon until Year 4 level. He is barely literate in Arabic and not literate in English. His numeracy skills are also limited. He is unemployed. He last worked as a panel beater in 2007. He has an uncle in Lebanon who taught him mechanics and metal trades, but without any formal education component, so he has no trade certificates. He worked with his father on the family farm. His only income stream appears to come from Centrelink benefits. Mental Health Issues 63Dr Roberts, retained by the defence, a clinical psychiatrist, did not point to any diagnosis of serious mental health problems that would impede rehabilitation. He noted symptoms consistent with a label of anxiety that he would place in the moderate to severe spectrum. The offender is on antidepressant medication. There has been no IQ assessment, however Dr Westmore, who also examined the offender in October 2010, said he presents as being of dull average to very low average intelligence. Mae Abu Mahmoud, a psychologist, assessed his IQ, general ability as extremely low. His overall thinking and reasoning abilities are also extremely low. 64The offender ruminates about a younger brother who was killed in a motor vehicle event as he and that brother were crossing a road. The brother was aged five or perhaps eight. The offender, as I say, is not good on history, and the offender at that time was ten or perhaps thirteen. The two were holding hands, which makes me suspect the earlier version, five and ten is probably correct. Crossing the road when the brother was wrenched from his grip by being struck by a car and being dragged some distance by the car until he was dead. The offender says this event has recalled that memory for him. Drug & Alcohol Issues 65There is no record or report of any drug or alcohol issues that would impede rehabilitation. Character 66For the purpose of sentencing he should be regarded as a person of good character. There is a take and drive conveyance matter, but in respect of that matter he received a discharge and a bond. His traffic record shows his first offence of speeding occurred whilst on a learner's licence in January 2001. A provisional licence was issued to him in February of 2001. His first licence suspension was in September 2001 because of loss of demerit points. In 2002 there is a negligent driving charge suggesting some impact or collision. A second suspension occurred in August 2006, again because of a loss of demerit points. There was a second speeding offence in October 2006, apparently occurring whilst the licence was suspended. His licence was suspended again on 29 September 2007, it would seem because of or on account of these charges. He reported to Dr Westmore that on one occasion he ran his motor vehicle into a telegraph pole. He was not charged. Attitude to the Offence 67I am satisfied there is genuine contrition in the sense that the offender is very sorry for the death he caused and for the injury he caused to his son. On the other hand, I accept Dr Roberts' assessment that he does not fully understand or appreciate the injuries caused to his boy. The offender is, of course, an unsophisticated, uneducated man with intellectual deficits and poor comprehension functioning. His lack of insight and understanding must be viewed against his capacity for higher brain functioning required for those tasks. I doubt it is a case of wilful blindness to the boy's injuries, but rather an inability to appreciate the significance of them. Rehabilitation Prospects 68This is the offender's first serious criminal offending. Unlike other criminal activity this criminal conduct occurred whilst the offender was in pursuit of a normal, indeed a laudable activity. He was setting out to visit a friend who was in hospital. There is no suggestion he is part of the criminal milieu, he simply drove appallingly at this point in time. He has shown a disregard in the past to RTA regulations. While there are significant breaches on his traffic record none of them are major offences. 69I am concerned that he may have an inability to understand road signs that are designed to provide and improve road safety. Driving offences are all about the safety of the public and I am concerned only in respect of one aspect of his rehabilitation and that centres on an inability to understand road signs. Before he can resume driving this matter will need to be addressed. Otherwise I have no reason for believing his rehabilitation will not be strong. Deterrence 70Normally when a judge is sentencing general deterrence should be given considerable weight so that others will be deterred from offending. This is not a case, however, in which general deterrence should apply. Since Anderson's [1981] VR 155 case the law has recognised that persons with mental health problems are not appropriate vehicles for general deterrence. Those with intellectual deficits, particularly when the deficits are substantial, are likewise not suitable cases for apply the doctrine of general deterrence. Nonetheless, personal deterrence is appropriate and that will be achieved by a sentence of imprisonment and a term of non-parole given to this offender. Guideline Judgment 71The guideline judgment in respect of these kind of offences ( R v Whyte [2002] NSWCCA 343) postulated that where an offender's moral culpability is high a full time custodial sentence of less than three years, in the case of death, and two years in the case of grievous bodily harm would generally not be appropriate. That guideline was set, I have no doubt, with a component of general deterrence playing some part in postulating what was an inappropriate sentence nominated. Where general deterrence is not to play a part in the sentencing my view is that a sentence of three years for death and two years for grievous bodily harm are appropriate for high moral culpability. However, I have described the offences I am dealing with as less than high. I have described them as substantial. I have found they are serious examples of moral culpability. I have determined that severe punishment should be a principle component of the sentencing disposition. I have settled on a sentence of two and a half years imprisonment in respect of the dangerous driving causing the death of Elisapeta Faimata and eighteen months in respect of the dangerous driving causing grievous bodily harm to his son. It can be seen from the sentencing disposition I have chosen that the offences require punishment of the greatest kind the law can require in New South Wales, loss of freedom through incarceration. 72I intend to find special circumstances. Two of the doctors noted, in fact it may have been more, that the offender's intelligence is so compromised that he may, for that reason, be targeted by other prisoners. I find that fear to be well founded. My second reason is that his own child has behavioural issues which are likely to be exacerbated by his absence. This gives an ironic twist to the sentence whereby the punishment of the father for the crime of driving dangerously may lead to the exacerbation of at least one of the symptoms of the child's disabilities arising from damage caused by the father through the collision. Such a situation will make the offender's time in incarceration more onerous for him. I have assumed that the offender has spent no time in custody. SOWAID: That's correct your Honour. HIS HONOUR: Mr MMEB, you need to stand up at this point if you would please. 73MMEB, you are convicted that you, on 14 April 2007 at Hoxton Park in the State of New South Wales, did drive a motor vehicle, a Subaru Impreza, when it was involved in an impact occasioning the death of Elisapeta Faimata, and at the time of that impact you were driving the vehicle while you were under the influence of a drug known as Phentermine. For that offence you are convicted and sentenced to a non-parole period of fifteen months to commence on 4 December 2011 and expire on 3 March 2013. The balance of term will expire on 3 September 2014. 74You are also convicted that, at the same time and place, and in the same circumstances, namely that you drove a motor vehicle at a time when you were under the influence of a drug, namely Phentermine, and your vehicle was involved in an impact causing grievous bodily harm to your son, WEB, you are convicted and sentenced to a fixed term of eighteen months to commence from 4 March 2011, and to expire on 3 September 2012. 75The effect of that should be an incarceration period of two years commencing today, with an additional term of fifteen months after that, making an overall sentence of three years and three months. 76I am going to disqualify the offender from driving in respect of both offences until 28 September 2013. I note that he has been disqualified since 2009. So it is a period of disqualification of effectively four years. I am cancelling his licence until he passes the knowledge test. I require that a personal photograph identification of him is to be presented on the occasion and every occasion that he sits for that test and that such identification is to be verified against the records held by the RTA in respect of his past licences. 77The effect of what I am seeking to do is that he is not to drive until such time as the community can be sure that he can read the signs on the road. It is not intended that he be without a licence forever, it is simply until such time as he can pass the knowledge test and know all the signs. Any family member present? No. The offender may be taken 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. Decision last updated: 25 January 2012