District Court New South Wales Medium Neutral Citation: R v Melissa MCKEOWN [2013] NSWDC 22 Hearing dates: 1 March 2013 Decision date: 01 March 2013 Before: Judge Haesler SC Decision: Sentence: Imprisonment for five years and three months, non-parole period of three years. Catchwords: Dangerous driving causing death, purposes of sentencing, competing considerations, impact on victims. Legislation Cited: Crimes (Sentencing Procedures) Act 1989 Cases Cited: Attorney General's Application No. 1 (2002) 56 NSWLR 146 Bugmy v The Queen (1990) 169 CLR 525 Hili v The Queen (2010) 242 CLR 520 MA v R (2004) 145 A Crim R 434 Markarian v The Queen (2005) 228 CLR 357 Musameci v R (1997) unreported CCANSW 30/10/1997 Veen v The Queen No.2 (1988) 164 CLR 465 Whyte v R (2002) 55 NSWLR 252 Category: Sentence Parties: Regina (Crown) Melissa Jane McKEOWN (Accused) Representation: Mr D Williams (Crown) Mr D Shridhar (for the accused) File Number(s): 2011/309298 SENTENCE Judgment 1These proceedings are concerned with imposing a proper sentence on Melissa McKeown. That sentence must accord with legal principle. I am required to take account of a number of competing considerations and the purposes of sentencing. Those considerations and purposes overlap and, at times, point in different directions. As was noted in Veen v The Queen No.2 (1988) 164 CLR 465 at 496: "None of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case." 2While Ms McKeown will want my focus to linger on her remorse, contrition and the real hardship imprisonment will cause her; recognition must also be given to the impact of her crime on her victims, particularly Ms McMahon, the deceased, and Ms McMahon's grieving family. 3Foremost, in my mind, is that an innocent woman was killed as a result of Ms McKeown's senseless and criminally stupid behaviour. Nothing she does for the rest of her life, nothing I can do to her, can ever bring Ms McMahon back or compensate her family for their loss. That loss was senseless and permanent. Her families' grief is recognised by the Court. 4The victim impact statements read and tendered were eloquent statements of the loss caused by Ms McMahon's death, the destruction of her family, and of her families lives. The after death impact will continue forever. This is illustrated in what was said in one of the statements, "Nothing ever returns to normal". 5In matters such as this Judges are asked to perform an impossible equation; No life can ever be equated with a period of imprisonment; No gaol term can return a loved one, and; a life should never be measured simply by the punishment meted out to the offender. 6Ms McKeown, I believe, recognises the need for just and proper punishment. I find she has accepted responsibility for her actions. She has acknowledged the hurt she has caused. I accept her remorse is genuine and has led to her own mental health deteriorating. She does not expect forgiveness, nor should she. A moment's thought, a moment's reflection, would have prevented horrible consequences to both the McMahon and the McKeown families. 7Two other innocent women were also injured that night. Thankfully their injuries, while obviously painful and distressing, were not particularly serious. That was more by good luck than good management. I am asked to take those matters into account on a Form 1 and I will do so. 8The matters on the Form 1 do operate to increase the sentence that would otherwise be appropriate. So much was made clear by the High Court in Markarian (2005) 228 CLR 357. Such an increase operates to recognise the need for personal deterrence and the harm done to the victims of those crimes, and also, as the Chief Justice said in the guideline judgment, retribution: Attorney General's Application No. 1 (2002) 56 NSWLR 146 [35] - [42]. While I do take those matters into account, I remind myself that the sentence to be imposed must be for the specific count before the Court. 9I turn now to what occurred this terrible night in June 2011. At the time Ms McKeown lived in Bargo. She had been having problems with her then long-term partner. Those problems understandably arose because of the difficulties created by her need to take special care of her disabled son. She had a night off. She went to the Tahmoor Inn about 4.30pm. She was driving her Black Ford Territory. 10She met two friends at the Inn. It appears from her account, which is corroborated by the expert evidence that she had between four to five schooners of full strength beer and two pre-mixed alcoholic drinks. At about 9.30pm, she and another woman went to the home of the third woman, which was about 500 metres up the road. Foolishly Ms McKeown drove. 11At the friend's home they had another drink. Ms McKeown tells me, and I accept, that her plan was to spend the night there. It is upon little things that great tragedies can turn. Instead of staying the night she went to drive back home. One of her friends tried unsuccessfully to convince her not to drive. She did not take her friend's sound advice. She drove down Remembrance Drive. It is a road well known to her. It is well known to me. It is well known to most of the people in this Court. It is not a main road but it is well trafficked, even at that time of night. It has only one lane going either way; often split by a marked dividing line. 12After about two kilometres, Ms McKeown's car drifted across the unbroken centre line. It sideswiped a car in a northbound lane, in which two women; Ms Er and Ms Alant were driving. Their car was forced off the road and severely damaged. As I have indicated, thankfully Ms Er and Ms Alant were shaken and bruised but did not suffer any permanent injury, so far as I am aware. 13Ms McKeown's vehicle continued on the wrong side of the road and collided, effectively head on, with a Ford Fairlane being driven by Ms Kerry McMahon. That collision forced Ms McMahon's Fairlane off the road and caused the vehicle severe damage. It also significantly damaged the offender's Ford Territory. The consequences of the impact are set out in the photographs, which are part of the brief tendered to me. 14Ms McKeown suffered a fracture to her sternum, seriously injured her knees, and suffered a number of broken ribs. Ms McMahon was trapped in her vehicle. She was still conscious when police arrived but despite their efforts, and those of bystanders, who came to help, she died soon after. She was not alone when she died, but she died apart from her family. 15The offender made immediate admissions and expressions of regret. She was heard to say, "I know I'm pissed. I've done the wrong thing here". A blood sample was taken at hospital and analysed. The minimum blood alcohol level found was 0.188 grams per 100 millilitres and likely to be much higher. The Crown's expert, Dr Pearl, stated that with that reading, what these facts clearly demonstrate; the offender's capacity to drive was very substantially impaired. 16The offender's moral culpability for her crime was very high. She, by driving, had abandoned any responsibility as a citizen. She drove while heavily intoxicated. It was obvious to her friends, and it must have been obvious to her, that her capacity to drive was significantly impaired. She drove after her friend had tried to stop her. She drove without any need. She had somewhere safe to stay. It was a well used road and although she intended to drive only a short distance she placed at risk not just the people who were killed and injured, but other road users. 17While every Judge has an individual sentencing discretion, that discretion must be informed by proper principle, and those principles should be applied consistently. There are a number of facts, which help to guide me in my task. One is that there has been here an early acceptance of responsibility and also an early guilty plea. The utilitarian value of that plea, that is, the practical value of that plea, other than matters personal to the offender, justifies a reduction of the otherwise appropriate sentence by 25 per cent. 18I must have regard to the maximum penalty of 14 years imprisonment. That penalty, as the High Court pointed out in Markarian at [30]-[31], is a matter of great relevance. Careful attention to it is always required. First, because the legislature has fixed that maximum penalty, and second, because it invites comparison between the worst possible case and the case before the Court. Thirdly, it operates as a yardstick, which must be balanced with other factors. The joint opinion of the High Court noted that it will rarely be appropriate to look first to the maximum penalty and proceed by making proportional deductions from it. 19Judges are also assisted by a guideline decision of the Court of Criminal Appeal in Whyte (2002) 55 NSWLR 252. That decision noted that for an offence of dangerous driving causing death, a sentence of less than three years imprisonment in total would not be appropriate. The Chief Judge however, said at [232]: "Aggravated offences require an appropriate increment to reflect the higher maximum penalty available and the higher level of moral culpability which justifies the more aggravated offence being charged." This matter involved the more aggravated offence. The guideline assists me, as do other cases. 20Judicial Commission statistics were provided to the Court. They also assist. But every case is different. Every offender is different. Judges are given a broad discretion but my judgment must operate to ensure justice is done both to the community and the offender. Where guidance is taken by reference to other cases, statistics and the like, it is not necessarily a consistent application of actual terms of imprisonment that is important. Rather, it is the consistent application of principle that must govern my considerations: see Hili v The Queen (2010) 242 CLR 520. 21Two of those principles have operated in New South Wales for many years. "1. The legislature and the Courts have always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness." I would have added, "great seriousness". "2. The real substance of the offence is just not the dangerous driving. It is the dangerous driving in association with the taking of human life." : see Musameci v R (unreported CCANSW, 30/10/1997). 22The offender, Ms McKeown, was born in 1967. The exhibited report from Ms Parrish, Psychologist, describes a normal "upbringing", if such a thing is possible. She was close to her mother and took her mother's death badly. She is the mother of five children. The youngest is about five years old and has learning difficulties. 23She initially lived with her partner, Bill, who is the father of her youngest and eldest child. That relationship faltered. She formed another relationship and three children were born to it. When it broke up she reformed her relationship with Bill. That relationship continues, and Bill's continuing support for her was evidenced by their marriage earlier this year. 24It is clear that at the time of this offence Bill had some trouble coping with problems associated with their youngest. That put pressure on Ms McKeown, who had, for some time, been treated for depression. She does not put forward these factors as an excuse for her behaviour nor could she. It is simply part of the background that I take into account. 25It is clear, however, from the reports of Ms Parrish that her depression has continued and worsened. Her symptoms and the worsening of those symptoms make sense because it is clear to me that this crime has affected her deeply psychologically. That impact is not just fear of the consequences of her criminal behaviour but also results from her guilt, remorse and despair at the consequences to the McMahon family of what she did. 26She has been to Court before but I find those matters of little consequence. She is to be regarded as a person of prior good character. Prior good character, however, is not a particularly relevant factor in matters such as this. As was pointed out by Justice Hunt in Musameci, Courts must tread warily before extending leniency for good character in matters such as this. 27Returning now to the purposes of sentencing: s 3A (Crimes (Sentencing Procedures) Act 1989; Veen No 2; Whyte. Sentences must, by their severity, attempt to deter others from committing similar offences. This is especially so when high levels of alcohol are involved. I am satisfied that the impact of her offending behaviour will deter Ms McKeown from committing further offences. 28Sentences must, where possible, attempt to promote a person's rehabilitation. While all matters relevant to a sentencing exercise must be considered when the various parts of a sentence are concerned, the weight given when assessing what is the appropriate total sentence and the appropriate non-parole period can vary: Bugmy v The Queen (1990) 169 CLR 525; MA (2004) 145 A Crim R 434 at [33]. Courts must take care not to double count matters in mitigation. I indicate that in reaching my decision that there are special circumstances justifying a lesser non-parole period than the statutory provisions provide for, greater weight was given to; Firstly, the material in the psychological reports which indicate that Ms McKeown's time in custody will impact much harsher on her than others, who do not suffer from her depressive condition. And, Secondly, that although perhaps not in the truly exceptional category the impact of her imprisonment on her young disabled son cannot be ignored. Thirdly, she will need help, on release, in adjusting to normal community life. The impact of custody on any person, let alone a person of otherwise good character, who has never been in gaol before, cannot and should be underestimated. Gaols are harsh and terrible places. Despite what some in the community might think, they are not holiday camps. They deprive a person not just of their liberty but of all real social interaction. Everything in their life is disrupted. 29The sentence must make Ms McKeown accountable for her actions. The sentence must, by its severity, denounce her conduct. Importantly, so far as is possible, a sentence must recognise not just the ultimate harm done to Kerry Joanne McMahon, but the lasting harm done to other victims, and the community and this, of course, includes Ms McMahon's family. 30What then is an adequate punishment? In one sense there can be no adequate punishment because nothing could reverse what occurred on this night in June 2011. Ms McKeown's life has been changed forever, and the lives of many, many others. The McMahon family, in particular, have been changed forever. 31Would you please stand? In relation to the matter before the Court you are convicted. I take into account the Form 1 matters. I take into account my finding of special circumstance. I take into account your early plea of guilty. You are sentenced to a term of imprisonment of five years and three months consisting of a non-parole period of three years to commence today, 1 March 2013, and expire on 29 February 2016. You will be eligible for consideration for release to parole on 29 February 2016, to serve the balance of term of two years and three months to date from 1 March 2016 and expire on 31 May 2018. 32 There will be a licence disqualification from driving of five years from today's date. 33 The two matters on the s 166 Certificate, back up charges, sequences three and four, are withdrawn and dismissed because they have been taken into account on the Form 1. ********** 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 March 2013