District Court New South Wales Medium Neutral Citation: R v Aldred [2013] NSWDC 13 Hearing dates: 30 January 2013 Decision date: 30 January 2013 Before: Berman SC DCJ Decision: Sentenced to imprisonment. For offence of take and drive conveyance without consent of owner a fixed term of 18 months. For offence of drive manner dangerous occasioning death sentenced to imprisonment consisting of a non-parole period of 2 years and a head sentence of 4½ years. Disqualified from driving for 5 years Catchwords: CRIMINAL LAW - Sentence - Take and drive conveyance without consent of owner - Drive manner dangerous occasioning death - Consumption of drugs - Offence whilst on bail for similar matter. Category: Sentence Parties: The Crown Jason Colin Aldred Representation: Mr J Stanhope - Crown Mr J Fitzgerald - Offender Director of Public Prosecutions Legal Aid Commission File Number(s): 2011/234112 SENTENCE 1HIS HONOUR: The offender Jason Aldred drove in a way which caused the death of Ms Simpson-Langley only one week after being released to bail for an offence of driving under the influence. It was a condition of that bail that he did not drive. He clearly ignored that condition with tragic results. It is a seriously aggravating feature of the present matter that, having been granted bail for an offence of driving under the influence, the offender would ignore the conditions under which he was granted his liberty, thereby leading to the death of a young woman. 2The Crown tendered today the police facts in relation to the offender's conduct on 8 June 2011. Often in an enthusiasm of hyperbole such facts record that a particular driver was "an accident waiting to happen." Unfortunately in this case these tragic events have demonstrated the accuracy of that characterisation of the offender by the police. 3After the offender was granted bail he was admitted into a rehabilitation facility at Benelong's Haven. He went there with his girlfriend Ms Simpson-Langley. He had with him some prescription drugs and he must have taken them at some stage although he denies that he had taken any medication, either legal or illegal, immediately preceding the collision that I will shortly describe. 4After being at Benelong's Haven for only a short time he was asked to leave by those in control, and he did so. He spent some nights in Kempsey either on the streets or in a hotel with Ms Simpson-Langley but decided to return to Newcastle where his grandmother lived. To do this he drove. 5On the morning of Monday 18 July 2011 he stole a car. He said that that was because he and Ms Simpson-Langley were to sleep in the car that night, having nowhere else to sleep. But whether that was the original motivation or not, it did not take long before they used the car as a mode of transport rather than a place of accommodation. They headed south from Kempsey heading towards Newcastle. Eventually, with the offender driving, the car left the roadway, hit a tree and Ms Simpson-Langley was killed. 6It is important to note that the location of the collision was nowhere near any reasonable route from Kempsey to Newcastle. It is apparent that the offender has driven, for reasons which I will partially explore in a little while, inland, probably after going across the Hexham bridge. He travelled inland, most likely even reaching Cessnock, before turning around and heading back eastwards along John Renshaw Drive. 7Travelling behind him was a gentleman by the name of Mr Anthony Maher. He watched the offender's manner of driving for a significant period of time. Although it seems that the offender was not driving at excessive speed, he was, and this is not an expression that Mr Maher used, driving all over the place, veering to the left and the right, on occasions leaving the roadway before correcting himself. Mr Maher was so concerned by what he saw that he slowed down to increase the gap between the offender's vehicle and his own. 8He describes the moment of collision this way: "I watched as the Holden in front of me swayed to the left again. The passenger side tyres were off the road and were travelling along the tarred area on the edge of the roadway. It looked like the car was about to hit one of the white reflective posts on the side of the road. The car then swung to the right across the centre lines and onto the wrong side of the road. The entire car crossed over onto the wrong side of the road and the car travelled ahead there for two or three of those guideposts. The car then suddenly swung to the left and crossed back across the centrelines and straight across the lane I was travelling in. It looked like a sharp turn like the driver swung the wheel. He was heading straight for the trees off the side of the road to my left. The car drove off the side of the road at fair speed." 9It is apparent that the offender was, to use a neutral expression at this stage, fatigued. It is apparent that his manner of driving as observed by Mr Maher was related to that fatigue. Whether that came about because of mere tiredness or, as the crown case would suggest, because of drugs that the offender had taken shortly before the collision is an issue which should not be elevated beyond its proper place in assessing the culpability of the offender. Whatever the situation, it is clear that for some time the offender continued to drive despite an awareness that he was having trouble keeping his car on the roadway, this amounting to an awareness, of course, that he was a danger to be on the road. But because a great deal of attention has been paid to the issue during the course of today's proceedings, I will address the issue as to why the offender was fatigued. 10I am satisfied, and satisfied beyond reasonable doubt, that this was because he had consumed drugs only shortly before the collision. I am prepared to accept as a reasonable possibility that the offender's denial of having done so flows from a problem with his memory rather than a problem with his honesty. But I repeat, I am satisfied beyond reasonable doubt that a contributing factor to the collision, because it was a contributing factor to the offender's fatigue, is that he had consumed drugs only shortly before the collision. 11A number of factors point in that direction. Blood analysis was done after the offender was taken to hospital. The statement of facts records the opinion of Dr Perl. She notes that the offender's blood contained clonazepam which is sold under the brand name Rivotril, and methadone. The statement of facts records Dr Perl's opinion as to the effects that those drugs have on human beings but, importantly for the present issue, she says this: "The blood concentration of clonazepam detected in the accused indicates a recent high dose of clonazepam having been used." Of course, there was no precise understanding of what the word "recent" meant but other factors suggest that the offender must have taken those drugs well after he commenced the drive south from Kempsey. 12Another factor important to take into account is where the collision occurred. As I have attempted to make clear, the offender was nowhere near any reasonable route from Kempsey to Newcastle. Perhaps he consumed the drugs before reaching the Hexham bridge and he got lost or deviated from the correct route to Newcastle because of confusion resulting from the consumption of drugs. Perhaps he deliberately went to Cessnock or Kurri for reasons that he does not want to tell us about or cannot remember. Perhaps those reasons relate to the purchase of drugs. 13Next we have the offender's behaviour after the collision. Of course, one possible explanation could be that it could be the injuries that the offender had suffered in the collision itself, but in assessing that possibility it is important to remember that after Narcan was administered to the offender his behaviour changed and significantly so. Mr Fitzgerald, who appears for Mr Aldred, did not make a submission to me that I could find that the offender's evidence that he had not taken drugs shortly before the collision was accurate. 14The result is that the offender was on notice that he was a danger on the road, for two reasons. Firstly, the way he drove as observed by Mr Maher and, secondly, because he himself knew that he had taken drugs only shortly before the collision. Either of those matters indicates a significant level of moral culpability but when they are combined I am satisfied that the moral culpability displayed by the offender is high indeed. This is not a case of mere momentary inattention; far from it. 15The offender has experienced other tragedy in his life. He was the second son to his parents but his father died when the offender was only seven from a heart attack. The family moved from Melbourne, where they were living, to Newcastle to be near his mother's grandparents. His mother died also, in 2003. As might be expected, the loss of both parents in those circumstances has had a significant effect on the offender's mental state. He is, of course, concerned that when his maternal grandmother dies, she is now aged eighty-five, he will be left with no close relatives or family ties. 16There is some hope, however, for the future in that regard. To their great credit, the offender's Godfather and his wife, Mr and Mrs Dennis, have offered to take Mr Aldred in on his release from gaol. The evidence was that they are firmly against any use of drugs, and so there is some hope for the offender's future should he take advantage of Mr and Mrs Dennis' generous and loving offer. 17The offender has not worked much in the past. Most of his jobs have lasted only weeks or months and he has not had any employment as an adult. Part, no doubt, of the offender's problems in getting and keeping a job result from his drug use, which in turn is quite likely to have a connection with the loss of the offender's parents. 18The offender began to use cannabis at about the age of thirteen and commenced to use heroin when he was about twenty-one. To no one's surprise, he became addicted to that drug. He has used other drugs as well including amphetamines. He has also been prescribed drugs which have caused problems for him. He has attempted rehabilitation in the past but nothing has been terribly successful. 19The offender has a criminal history. Indeed, he is currently serving sentences for other offences, including the driving under the influence matter, as I speak today. His driving offences too are of most concern. He displays a continuing attitude of disobedience towards the road rules. He drives regularly whilst he is not licensed to do so. He is currently a disqualified driver. It goes without saying that if the offender had obeyed the road rules, the tragic events that I have been describing would not have occurred. 20The offender entered a plea of guilty at first arraignment in the District Court. That, of course, is not a plea of guilty at the earliest opportunity but close to it. I will discount the sentence I would otherwise impose by 20 per cent to reflect the utilitarian value of his plea. 21That plea is also some evidence of remorse. I accept that the offender is remorseful. I accept that he himself has experienced deeply the loss of the person he described as his life partner. It has to be said that remorse in cases of this kind is almost invariably present. Few people can remain unaffected by having caused the death of another when they did not mean to do so. 22The offender would be assisted by an extended period of supervision on parole. These sentences, because the offender must be sentenced for two matters, are also to be imposed cumulatively on the offender's existing sentences. Both of those factors suggest the desirability of a finding of special circumstances in the offender's favour. 23The principle of totality also applies, but it remains the case that the offender must be punished, and significantly so, for what he has done. The sentences I impose must reflect the objective gravity of the offender's conduct and, as I have tried to make clear, I regard his criminality as significant. 24To summarise, he took drugs which he well knew would affect his ability to drive only shortly before the collision. He continued to drive, despite his manner of driving which must have alerted him to the danger that he represented. That is criminality of a significant order. There needs to be a substantial component of specific deterrence built into any sentence imposed upon the offender. He has thumbed his nose at the road rules in the past. It must be brought home to him that he cannot continue to do that in the future without experiencing punishment of a high order. 25I sentence the offender as follows. For the offence of stealing a motor vehicle, which is count 2 on the indictment, the offender is sentenced to imprisonment. I set a fixed term of imprisonment of eighteen months to date from 27 April 2013. I take into account the matter on the form 1 of driving whilst disqualified. 26For the offence of driving in a manner dangerous occasioning death the offender is sentenced to imprisonment. I set a non-parole period of two years to commence from 27 April 2014 and a head sentence of four and a half years. The overall non-parole period is thus one of three years with a head sentence of five and a half years. The offender is eligible to be released to parole on 26 April 2016. The offender is disqualified from driving for a period of five years from 17 May 2015.. ********** 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: 28 February 2013