District Court New South Wales Medium Neutral Citation: R v Schilder (No 2) [2013] NSWDC 24 Hearing dates: 24 January 2013 Decision date: 24 January 2013 Before: Neilson DCJ Decision: Dangerous driving occasioning death Sentenced to 3 years imprisonment with a non-parole period of 1 year and 8 months. Finding of special circumstances. Dangerous driving occasioning grievous bodily harm Sentenced to 2 years and 3 months imprisonment with a non-parole period of 1 year and 3 months. Finding of special circumstances. Sentences partially accumulated, with a total head sentence of 4 years and a total non-parole period of 2 years and 8 months. Catchwords: CRIMINAL LAW - sentence - dangerous driving occasinoing death - dangerous driving occasioning grievous bodily harm - Offender suffered complex partial epileptic seizure leading to collision - Offender previously involved in motor accidents caused by his epilepsy - Offender lied to psychologist and RTA to obtain renewal of licence - Offender was sleep deprived - Offender suffering from intellectual disability of mild severity - Prior good character - Extra-curial punishment - Delay - Early plea of guilty - Genuine remorse and contrition - Potential hardship in custody Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s 21A(2) Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Gillett v R [2006] NSWCCA 370 R v Whyte [2002] NSWCCA 343 Category: Sentence Parties: Regina (Crown) Daniel Gordon Schilder (Offender) Representation: Ms K Ratcliffe (Crown) Mr P Pearsall (Offender) Ms L Cocca (Crown) Ms S Foggo (Offender) File Number(s): 2011/055324 Judgment 1HIS HONOUR: Daniel Gordon Schilder stands for sentence on two charges. Yesterday I delivered a judgment that is sixty-eight pages long. The issue which had been left for my determination by the parties was whether the offender was guilty or not guilty of the crimes of aggravated dangerous driving causing death and aggravated dangerous driving causing grievous bodily harm. 2The circumstance of aggravation which the Crown alleged was that at the time the vehicle that the offender was driving collided with the vehicle being driven by the late Timothy Ioannou, the offender was driving at a speed that exceeded by more than forty-five kilometres per hour the speed limit applicable to the length of road being travelled. The applicable speed limit for the length of road in question was 70km/h. Accordingly, the Crown had the burden of proving beyond reasonable doubt that the offender was driving at more than 115km/h. The Crown sought to establish such a speed immediately prior to the moment of impact and not immediately prior to when the offender lost control of his vehicle. It is common ground that the offender was suffering from a partial complex epileptic seizure. That seizure occurred some distance, about 270 metres, prior to the point of impact. 3For reasons that I published, I was not persuaded beyond reasonable doubt that at the moment of impact the accused was driving at more than 115km/h. The evidence raised a reasonable possibility that the accused was driving at 114km/h or less. Furthermore, that was the speed at the point of impact and not the speed at which the car was being driven immediately before the offender commenced to suffer his epileptic seizure. As a matter of law I concluded that the Crown had to prove the excessive speed, that is the speed of more than 115km/h, prior to his suffering from the complex partial epileptic seizure and not at the time of the impact. 4Both in the Local Court and when arraigned before me at Nowra on 2 May 2012 the offender pleaded guilty to dangerous driving causing the death of Timothy Ioannou and of dangerous driving occasioning grievous bodily harm to Amanda Sutton. For those two offences he now stands for sentence. 5Commencing at [10] of yesterday's reasons I commenced to outline the accused's background. Further material has now been placed before me, which changes some of the matter that I stated yesterday. The offender was born on 5 August 1983. At the time of the collision he was twenty-seven years and one month old. He is now twenty-nine years old. I recited that on the agreed facts two significant things occurred in 2004 but I did not know in which order they had occurred. The two things were the offender's suffering a grand mal seizure leading to a diagnosis of epilepsy. The second thing that occurred in that year was that on 10 September the offender obtained a learner's driver's licence. Medical histories that are now before me give a somewhat different history, but it is hard to know which is correct. 6Dr Susan Pulman first examined the offender on 10 August 2011, essentially in an attempt to ascertain whether the offender was fit to be tried. She obtained a history that the offender had been first diagnosed with epilepsy at Shellharbour Hospital in either 2001 or 2002 after a grand mal seizure. That history also records that the seizure occurred when the offender was living with his father, but an earlier part of the same history indicates that the offender's father died in the year 2000. Accordingly, it is difficult to know when exactly the offender did first suffer from a grand mal seizure and his being diagnosed with epilepsy. 7The offender obtained a P1 driver's licence on 23 September 2005. In late 2006 the offender suffered another epileptic seizure. That is to be inferred from a history given by him at the time of a hospital admission on 8 August 2007 of a seizure some eight to twelve months previously. That could not possibly be a reference to the initial seizure which occurred at the latest in 2004. 8On 8 August 2007 the offender was driving home after a shift as a delivery driver for a Chinese restaurant. According to a COPS entry, which is exhibit S7, the offender either fell asleep at the wheel or suffered a short blackout that caused him to run off the road and hit a post, causing moderate damage to the right-hand side of the vehicle which he was driving. That event occurred near the intersection of Bolong Road and Shoalhaven Heads Road at Shoalhaven Heads. After this event the offender's mother took him to the Shoalhaven Hospital because she was concerned that he undertake a medical check-up. The COPS entry records that the offender did not sustain any injury. It is an agreed fact between the parties that when she was contacted by a member of the public, who found the offender in the vehicle after the collision, the offender's mother observed that his appearance was typical for him after he had suffered from an epileptic seizure. 9An issue arises between the parties as to whether I can find beyond reasonable doubt that the reason for this event was the offender's epilepsy. It is clear that the offender's mother's belief that this event was the effect of the offender's epilepsy is consistent with the COPS entry. No evidence was put before me from the hospital nor was any evidence called by the offender to suggest otherwise. In the circumstances, I am persuaded beyond reasonable doubt that the motor vehicle accident of 8 August 2007 is causally related to the offender's epilepsy. 10On 19 December the offender obtained a P2 driver's licence. To obtain that licence the offender made representations to the RTA inconsistent with his suffering from epilepsy. The offender was involved in a second motor vehicle accident on 11 February 2008. The COPS entry for that event has now been put before me. It is exhibit S8. The accident occurred at 2.37pm approximately on the Princes Highway, thirty metres south of the intersection of the Highway and Rose Valley Way. Contrary to what I earlier believed, the accident occurred when the offender overtook a vehicle travelling in the same direction. Each of the offender and Ms Suzana Mihailova were travelling north along the Highway. Essentially, in an overtaking manoeuvre the offender cut off the vehicle being driven by Ms Mihailova, who had to brake suddenly and swerve to her left, off the roadway and down an embankment. 11The offender told police who attended the scene of the accident what had happened. He told them that he did not see the other motorist's vehicle until he heard a loud screech and then saw the other vehicle leave the road and go down the embankment. The COPS entry records that the offender pulled over, that is, stopped his vehicle, and went to assist Ms Mihailova. There is no suggestion in the COPS entry that the offender was suffering from any problem with his health at the time and his stopping his vehicle, getting out and going to Ms Mihailova's assistance is inconsistent with how he has presented after other epileptic seizures, as, for example, when he stayed behind the wheel of the vehicle on 20 November 2007 before he was found by a neighbour or other motorist and how he was found in subsequent motor vehicle accidents. There was no suggestion from Ms Mihailova or from the attending police that the offender's health was in any way affected by epilepsy. I therefore cannot find beyond reasonable doubt, and I could not find even on the balance of probabilities, that the second accident was causally related to the offender's epilepsy. 12The offender was involved in a third motor vehicle accident on 7 June 2008. The accident occurred at about 12.40pm. It occurred on Burelli Street, Wollongong, near its intersection with Atchison Street in that city. The offender's vehicle collided with a vehicle being driven by Mr Colin Greig, who was then sixty-nine years old. Mr Greig had his wife as a passenger and the offender also had a young lady as a passenger in his vehicle. After passing through the intersection of Burelli Street and Atchison Street, the offender's vehicle collided with the rear of Mr Greig's vehicle and pushed it along and then went onto the right-hand side of Mr Greig's vehicle, scraping along the passenger's side of his car. The offender's vehicle then went into a lane not containing any vehicle, mounted the gutter and hit a street sign. No person was injured. The inference to be drawn is that the collision was a low speed one. 13According to the agreed facts, Mr Greig thought the offender may have been suffering the effects of taking alcohol but breath testing proved negative. It is clear from the COPS entry that after this accident each of the drivers alighted from his vehicle, contacted the police and exchanged details. I could not possibly in those circumstances find that this motor vehicle accident was causally related to the offender's epilepsy. Most metropolitan rear-end collisions result from the failure of one motorist to keep a proper lookout, often because that motorist is distracted in trying to look for a parking spot or a crossroad or a shop that the motorist wishes to visit. The mere fact that Mr Greig may have thought the offender was intoxicated might be his view of the offender's idiosyncratic method of speech, of which the evidence speaks, or of his low intelligence, of which the evidence also speaks. 14The offender was involved in a fourth motor vehicle accident on 27 November 2008 at approximately 10.15pm. The offender crossed over onto the incorrect side of Kinghorn Street, Nowra and collided with a vehicle being driven by Ms Wendy McEwan. Ms McEwan tried to swerve to avoid the head-on collision but did so unsuccessfully. The relevant parts of the COPS entry are these: "About 10.14pm 27/11/08 vehicle one [the offender's] [was] south on Kinghorn Street at unknown speed. Vehicle two north on Kinghorn Street. Vehicle one lost control and crossed onto wrong side of the road causing front portion of vehicle one to collide with front portion of vehicle two. Both have extensive front end damage. All persons injured but not trapped and out of vehicles. Ambulance attended and conveyed all persons to Shoalhaven Hospital ... Driver vehicle one appeared to be dazed and incoherent. Parents of driver vehicle one attended the scene and were interviewed. They stated that Schilder suffers from epilepsy and is currently taking medication ... driver vehicle one - Schilder stated that he suffers from epilepsy and suffered a fit losing control of himself and vehicle which caused the accident. Schilder does not remember anything of the collision itself, only having a fit. Suffered broken nose, sternum and bruises. Driver vehicle two Wendy McEwan stated she saw vehicle one coming towards her and speeding up. She tried to avoid the collision by braking and moving to the right. Suffered neck, back and internal injuries." 15The interviews with both the offender and Ms McEwan were conducted on 3 December 2008, about a week after the collision. In the judgment which I gave yesterday I quoted what the police recorded in a signed statement. It is this: "I can't remember much as I suffer epilepsy and I had a fit while driving. I remember going around the roundabout at Kinghorn Street on the wrong side. I remember my foot was stuck, it felt like nothing there. All I remember was people after the collision saying, 'Are you okay?' I am suffering epilepsy and currently taking 2,000 milligrams per day. My last small seizure when my mouth dropped earlier that day. The doctor suspended my licence." 16It is clear, beyond reasonable doubt, that at the time of this collision the offender suffered from a grand mal epileptic seizure. The medical professionals did suspend the offender's driver's licence. Dr Ernest Hore referred the offender to Professor John David Pollard, who at the time of giving evidence on 3 May 2012 was an emeritus Professor of Neurology at the University of Sydney. The Professor is still a consultant neurologist. The referral letter advised the Professor that the offender had had a grand mal seizure in 2004 with recurrent seizures since that time. 17The Professor first saw the offender on 18 December 2008. The offender advised the Professor that he was taking Epilim to attempt to control his seizures. The Professor advised the offender to do four things. They were, firstly, to take regular meals, secondly, not to miss sleep, thirdly, to take his medication regularly and fourthly, to give up smoking cannabis. At that first interview the offender assured the Professor that he had had a change of life and he wished to get his driver's licence back. 18The offender was reviewed by Professor Pollard on 26 March 2009. The Professor told the offender that if there was a whole year without a further epileptic seizure since the last seizure on 27 November 2008, the Professor was prepared to recommend that the offender's driver's licence be restored to him. 19The next review was conducted on 18 June 2009. That review had to be "brought forward" because of a complication. The Professor said this in his evidence: "He came to see me with his mother. There had been an episode at school where he had a facial drop and a difficulty speaking for a few seconds at school, and I noticed at the time he had a marked tremor, which is a well-known side effect of Epilim. So I made the decision to change Epilim to the new drug Keppra, and, as we see subsequently, the tremor stopped and he felt very much better." 20On 7 September 2009 the offender had what Professor Pollard diagnosed in the witness box as a grand mal epileptic seizure. That occurred in the offender's home. The fit lasted for several minutes. The offender was incontinent of urine and fell forward, striking his forehead and nose on the floor. The offender was taken to the Shoalhaven Hospital and admitted. A history recorded at the hospital states that in the days preceding the seizure, the offender was attending parties and was relatively sleep deprived. That history indicates the offender was not taking due notice of the advice which Professor Pollard had given to him on 18 December 2008. 21After the seizure on 7 September 2009, the offender saw the Professor again on 12 November 2009. He then denied that he had suffered any seizure since the review on 18 June 2009. In his evidence, Professor Pollard told me this: "He assured me he hadn't had any seizures, and he described he felt very much better on the new drug, and his tremor had ceased." 22The history given by the offender to Professor Pollard on 12 November 2009 was untrue. The only inference to be drawn is that the untrue history was given so that the offender could take the opportunity of getting his driver's licence back in the near future. 23The Professor reviewed the offender again on 18 December 2009. That was some thirteen months after the seizure that resulted in the motor vehicle accident of 27 November 2008. The Professor gave again to the offender the advice I have earlier mentioned, adding to the advice concerning giving up cannabis the avoidance of any other central nervous stimulating agent. Based on the history that was given to him, that of no seizures since 27 November 2008, the Professor completed a certificate for the RTA stating that the offender was fit to drive. The suspension of his driver's licence was then lifted. The certificate which the Professor wrote was obtained by the misrepresentation made to him by the offender. 24On 17 February 2010 the offender completed a licence renewal application. In that document he made statements about his health which were blatantly untrue. The RTA requires people such as the offender to undergo periodic medical examination. For that purpose Professor Pollard reviewed the offender on 2 August 2010. The offender again told the Professor that his last seizure was on 27 November 2008. That representation was untrue. Again based on an incorrect or untrue history, the Professor certified the offender as being fit to continue driving, subject of course to his using his prescribed medication and undertaking the annual review. 25The next relevant event is clearly that of 12 September 2010, some five to six weeks later, when the offender lost control of his vehicle after a complex partial epileptic seizure leading to the driving which lead to the death of Mr Timothy Ioannou and the grievous bodily harm suffered by Amanda Sutton when the vehicle being driven by the offender rammed the vehicle being driven by Mr Ioannou and forced it off the ramp on the northern side of the bridge at the Shoalhaven River, forcing Mr Ioannou's vehicle into the river leading to his drowning. 26Ms Amanda Sutton, who is more recently known as Zoe King, sustained grievous bodily harm. According to Dr Mark Davies, a neurosurgeon at the St George Hospital, Ms King suffered a degloving injury of her left lower leg, an unstable burst fracture of her fifth lumbar vertebra and fractures to the right transverse processes of the eleventh thoracic vertebra through to the first lumbar vertebra and onto the fifth lumbar vertebra. Initially she was in St George Hospital for two weeks, where she underwent debridement of the injury to her lower left leg, antibiotics and intensive wound care. She also underwent a percutaneous internal fixation procedure of her spine between the fourth lumbar vertebra and the sacrum. Dr Davies reviewed Ms King three months after her discharge from the St George Hospital. He noted that she was then requiring regular narcotic medication for severe pain and he noted clinical features of a L5 sensory deficit indicating that there was a problem with one of the low lumbar discs in her spine. 27Ms King was again admitted to the St George Hospital on 10 March 2011 to undergo removal of the screws used for the internal stabilisation of her spine. Unfortunately that procedure was complicated by a golden staph wound infection, requiring again debridement of the wound and a second lot of surgery and a large amount of oral and other antibiotic medication. Dr Davies reviewed his patient on 12 September 2011. At that time Ms King was still suffering from severe low back pain which the doctor thought was secondary to damage at both her L4-5 and L5-S1 discs. By that stage the injured young woman was taking Endone and Oxycontin, both morphia based medications which are usually prescribed for only the most severe of pains. As at September 2012, Dr Davies noted that Ms King was unable to engage in physical activity and was not in a position to perform any work. He also noted that she had scars and sensitivity in her left lower leg associated with the de-gloving injury. The doctor expressed a pessimistic prognosis. He thought that her condition would not stabilise without surgical intervention and the only surgery proposed was of a fusion from the fourth lumbar vertebra to the sacrum, which only had a fifty percent chance of alleviating Ms King's pain. Her injuries are severe. 28Paragraph 48 of the agreed facts contains the following matter. Professor Pollard saw the offender four days after the collision, on 16 September 2010. The offender told him he had been working on his Chinese food delivery service, was feeling tired and dozing off as he had worked six nights that week and had been riding his bike on the day of the collision before going to work. The offender told the doctor that he believed that he had fallen asleep at the wheel due to tiredness. Professor Pollard considered it possible, nonetheless, that the offender had suffered an epileptic fit and he recommended to the RTA Medical Unit the immediate cancellation of his driver's licence. His driver's licence was in fact suspended on 25 September 2010. On 18 February 2011 the offender voluntarily surrendered his driver's licence and it was cancelled. I should indicate at this point that the offender surrendered his driver's licence before any charge was laid against him by the police. 29In yesterday's judgment I quoted part of par 27 and the whole of par 28 of the agreed facts. It is worthwhile repeating them. They are these: "Very soon after the collision, witnesses Estelle Morris and Leeza Doohan opened the [offender's] driver's side door and found him slumped over the steering wheel. Initially he did not say anything and just closed his eyes. When they began talking to him to try to keep him alert, he sat up and answered their questions, giving them his name, the day of the week, said that he'd been motor bike riding that day and then asked 'Where's my brother?' and said 'Don't tell my brother'. Witness Jim Fullard also had a conversation with the [offender] immediately after: Mr Fullard asked him a number of times whether there was anyone in the car with him and the [offender] just looked at him and didn't reply, but then he said 'Don't tell anybody'. Fullard asked him if he will be ok and he said 'my foot, my foot'. Another witness Daniel Descalzo saw that the [offender] had his head down on the steering wheel and complained that his eyes hurt. Arthur Timbery observed that the [offender] 'just didn't seem right'. Alison Mansell described the [offender] as appearing agitated, moving all over the place and wanting to get out of the car. The [offender] was assessed by a paramedic Jeff Haigh at 7.06pm. He assessed the [offender's] Glasgow Coma Scale as 15 and his blood glucose level was well within normal limits. The [offender] told Haigh 'I know I've had a crash but I don't know what's happened though'. He told him he was a delivery driver for a Chinese restaurant and thought he had fallen asleep. The [offender] said 'I shouldn't have gone to work cause I've been out motorbike riding all day in the forest and I felt tired'. 30Clearly the offender knew he ought not to have been driving and must have known of his sleep deprivation. Nevertheless, he went on his shift as a delivery driver and suffered an epileptic seizure which led to this tragic accident. 31A blood sample was taken from the offender when he was taken to the Shoalhaven Hospital. The blood sample was analysed and found to contain a very low concentration of the inactive metabolic product of the major active drug in cannabis. A pharmacologist retained by the Crown expressed the opinion that that indicated that in the past, but not in recent times, the offender had used cannabis. The inactive metabolic product found in the offender's blood can be stored for several days and even for weeks after cannabis use. Dr Perl, the pharmacologist, expressed the view that the offender's ability to drive would not have been impaired by the presence of that inactive metabolic product. However, it does show that the offender was not following the advice which had been given to him by Professor Pollard, initially on 18 December 2008 and reiterated to him on 18 December 2009. 32In the collision in question the offender also suffered some injuries but they were nowhere as severe as those suffered by Ms Sutton or, as she is now known, Ms King. The offender had a comminuted fracture of his nasal bones and a minimally displaced fracture of his left eye socket. No surgery was practiced. He also suffered a fracture of bones in his right ankle which required him to wear a back slab plaster for six weeks and then to undertake physiotherapy. 33I am required to ascertain the objective seriousness of the offences committed by this offender. Some assistance is given to me by the decision of the Court of Criminal Appeal in Gillett v R [2006] NSWCCA 370. Like Daniel Schilder, the appellant in that case had a complex partial epileptic seizure leading to his vehicle to colliding with another vehicle leading to the death of three members of one family. Commencing at [46], McClelland CJ at CL said this: "[46] In the present case the sentencing judge gave careful attention to the appellant's moral culpability. He determined that it was reduced by the fact that he did not know that he had sleep apnoea although he was aware of his epilepsy. However, although his ignorance of his sleep apnoea diminished his moral culpability there were factors which his Honour identified as significantly increasing it. They included the fact that the appellant had repeatedly lied to the RTA; the fact that he had not sought advice as to whether it was safe for him to drive; the fact that in August 2001 Dr Worthington had warned him about the risks he represented but he nevertheless continued to drive; the fact that he knew that his epileptic seizures came upon him without warning and he would be unable to avoid losing control of his car; the fact that he knew that he had had an epileptic seizure whilst driving in 1993 which resulted in a collision between his car and two other cars, the fact that he had driven for ten years knowing that he represented a risk to the community and finally the fact that he had lied out of a desire to keep driving, notwithstanding the possibility that he may have had a seizure which caused an accident in which other persons might be injured or killed." [47] "Having regard to all of these matters his Honour concluded that the moral culpability of the appellant was "very high indeed". In my opinion not only was this finding open to his Honour but it was undoubtedly correct. Where, as in the present case, a person takes control of a motor vehicle in circumstances where they know they represent a real risk to others and it is a risk over which they have no control, they must expect that, if the risk materialises, the penalty which will be imposed will reflect the fact that their offending had a high degree of criminality. A license to drive a motor vehicle is a privilege which carries with it significant obligations. Those obligations require the driver to not only drive safely on the road but also to ensure that by reason of their physical health and capacity they do not endanger the lives of others. If that obligation is not met and injury or death is occasioned to others, a severe penalty will be appropriate in most cases. Every user of the road accepts a risk of injury or death. Those risks are only acceptable if other users of the road do what they can to minimise or avoid identifiable risks." 34There are reasons in the current matter which would not permit me to categorise the accused's moral culpability as "very high indeed". However objectively this case is in, at least, the mid-range of seriousness. Firstly the offender knew that he had epilepsy. He knew that driving whilst tired was likely to cause him to suffer an epileptic seizure. It had happened at least twice in the past, once on 8 August 2007 but more importantly on 27 November 2008. In that event he injured not only himself but also the other driver, Ms McEwan and her passenger, Ms Annettes. His driver's licence was suspended. He was given advice by Professor Pollard as to what to do. Amongst other things that required him to stop smoking cannabis, to take his medication regularly and to have proper rest and not go sleep deprived. That advice was not adhered to. He was sleep deprived at the time of the seizure on 7 September 2009. He was sleep deprived at the time he committed these crimes on 12 September 2010. He had clearly not ceased smoking cannabis. However, it is not merely a question of ignoring medical advice. Here the offender lied to Professor Pollard and lied to the RTA about what had happened on 7 September 2009 by failing to disclose that seizure at all, in fact, denying that there had been any such seizure. He did so in order to obtain the return of his driver's licence on 18 December 2009. He maintained his deception, his misinformation to Professor Pollard and the RTA, some six weeks prior to the crimes that he committed on 12 September 2010. Therefore, the offender's moral culpability in those circumstances should be seen to be high. 35The offender, by his lawyers, asked me to consider the effect of his intellectual functioning in ascertaining his moral culpability. In essence, the offender has been diagnosed as having "borderline intellectual functioning" or, to use another formulation of Dr Pulman, an intellectual disability of mild severity. However, I have carefully read Dr Pulman's reports and the other reports put before me, and they have not explained to me how such a low intellectual function could cause the offender either to ignore the simple straightforward advice given to him by Professor Pollard or to ignore the experience that he had in driving and suffering from epilepsy, nor can it explain his lies, his deceit, to Professor Pollard and the RTA. Those aspects of the offender's conduct in my view establish an offence in the mid-range of seriousness, of high moral culpability. 36As, unfortunately, is common in cases of this nature, the offender's personal circumstances point me in the completely opposite direction. At an early age, either when the offender was two or three years old, he suffered from meningitis, which caused him to be hospitalised. Whether the offender's epilepsy is causally related to the meningitis as a child the evidence does not establish, but it is a possibility. Following upon the meningitis, the offender was unable to walk properly until he was about eight years old. He was also left with a speech impediment, which he still has. He referred to himself in this fashion to Dr Pulman, "I used to mumble and talk very quickly." Dr Pulman, herself, noted that in the five-hour interview that she conducted on 10 August 2011 the offender spoke very quickly. There is also reference in the reports of the offender's treating psychiatrist, Dr Pulley, to the offender's having an idiosyncratic method of expressing himself which the doctor thought would be likely to make the offender a target "in a custodial environment." 37As I have earlier mentioned, Dr Pulman has a history of the offender's being diagnosed with epilepsy at Shellharbour Hospital in either 2001 or 2002 when he was living with his father. However, that medical practitioner recorded that the offender's father died in a motorbike accident in the year 2000. When examined for the second time on 26 July 2012 by Dr Pulman, the offender told Dr Pulman that his father died when he was seventeen years of age, which would have been in about the year 2000. 38The offender needed additional support at school in year 7 and in year 8. He described his reading as "all right" but thought that his strength was more on the practical side. He commenced year 11 studies but decided to leave school and obtain work in the construction and building industry. He worked in a labouring capacity for a few weeks but decided to go back to TAFE and undertake the higher school certificate. To do that he was travelling from Albion Park, where he was then living, to Wollongong but withdrew from TAFE because he found travelling by public transport too difficult. Essentially, the offender has been unemployed since that time or he has picked up casual work delivering newspapers and takeaway meals. He had, on one occasion, worked for approximately nine months as a storeman. He has been in receipt of a disability pension for some time because of the state of his health, which is also affected by chronic asthma. 39Since these crimes were committed, the offender has had his medication for epilepsy stabilised after a number of changes. His epilepsy would now appear to be under control. However, he did suffer a partial epileptic seizure at Court on 26 September 2012 just before the luncheon adjournment, which required the Court to adjourn for the rest of that day. There is before me medical evidence confirming a complex partial seizure lasting for thirty minutes on that day. Following upon that, it was found necessary to change the offender's medication and to prescribe another drug to take at night "during this stressful period", meaning the period of the trial. 40The offender's intellectual functioning is essentially in the lowest range that could be seen as "normal", meaning not pathological in itself. His IQ is somewhere between 71 and 74. More than 97% of the population have an intellectual function greater than this offender's. In her report of 20 September 2012 Dr Pulman tells me this: "Mr Schilder has taken numerous steps to address issues which may have contributed to the tragic accident in 2010. He has undergone a comprehensive assessment and investigation into his epilepsy. His medication has been altered according to the results of those investigations. Mr Schilder is likely to be disadvantaged should he be incarcerated given his intellectual limitation. He has made progress towards ameliorating his depression and reducing his use of cannabis. Should Mr Schilder be incarcerated he would need to be placed in a unit catering for individuals with intellectual disabilities. A period of incarceration may result in destabilisation of his mental health." 41In addition to making the comment I have already quoted from Dr Pulley about the offender's idiosyncratic use of speech, Dr Pulley tells me this: "Overall, I am concerned for his safety from others, as well as potential risk of relapse of his depressive illness in gaol. He will require prompt continuation of his medications and review by a mental health practitioner on reception." 42It is trite that ninety percent of life in gaol is pure boredom. The other ten percent can be sheer terror. One can postulate that in times of terror the offender will be liable or prone to the suffering from an epileptic seizure. However, that must be dealt with by the Corrective Services authorities. 43In the Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 McClellan CJ at CL pointed out in [77] that where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing such offenders. Intellectual handicap can be taken into account in one of five ways. Those ways are these. Firstly, where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced, with a reduction in sentence. The second way is that it may have the consequence that an offender is an inappropriate vehicle for general deterrence, resulting in a reduction in a sentence which would otherwise have been imposed. The third way is that it may mean that a custodial sentence may weigh more heavily upon the person because the sentence would be more onerous for that person, and the length of the prison term or the conditions under which he served may be reduced. The fourth way is that it may reduce or eliminate the significance of specific deterrence. The fifth and final way is a converse one. It may mean that because of a person's mental health that person presents more of a danger to the community. In those circumstances consideration of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an antisocial personality disorder there may be particular need to give consideration to the protection of the public. 44Of course, here the defence submits that I should deal with the offender's intellectual handicap in the first way I have just described. I am unable to do so because there is no direct evidence that the accused's limited intellectual functioning contributed to the commission of the offence in any material way. Nor, in my view, does general deterrence fade away in a case of this nature. Many people with limited intellectual functioning have drivers' licences. Many people have epilepsy. The combination of the two is not uncommon; indeed, it is suggested in the current case by Dr Pulman. In those circumstances, general deterrence must still remain important. Members of the public must realise that they cannot lie to medical practitioners and government authorities about their health in order to obtain a licence, especially where such lies could lead to tragedies such as has occurred in the current matter. 45In the current case, I am satisfied that there is no need for specific deterrence because I am confident Mr Schilder will not do again what he did this time. The tragedy which has overwhelmed his life as well as the lives of many others will stop him from ever doing anything of the like again. However, general deterrence and denunciation are still aspects of sentencing which must be carefully borne in mind. There is no need in the current matter, however, for the offender's mental illness to be taken to indicate that he should receive a longer sentence than otherwise would be the case. 46The Crown accepts that there is no aggravating factor within s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 other than the extent of the grievous bodily harm suffered by Ms Sutton, or Ms King as she is now known. 47The offender comes before this Court as a man of prior good character. He has no prior criminal conviction. His traffic record merely shows one offence of speeding by not more than 15km/h, for which he received a $77 Traffic Infringement Notice, and a Traffic Infringement Notice that he was given for not crossing a line with safety in the accident that occurred on 11 February 2008. 48There are other mitigating factors which I should take into account. The first is that there are some forms of extra-curial punishment. Injuries received by a person like the current offender in a motor vehicle accident for which the law attributes culpability to him are taken to be a form of out of court punishment which can be taken into account in mitigating the sentence. While the offender's injuries themselves are not nearly or anywhere near as severe as those of Ms Sutton, they are not insignificant and can be taken into account. 49Another form of extra-curial punishment has been the conduct to which the offender has been subjected since this offence. He received a death threat which upset him, and has been called by at least one member of the public "the idiot that caused the death" of that member of the public's friend. There has also been a fair amount of publicity, which the offender has had to endure because he has been at liberty until now, and the publicity has endured from the time of the crime on 4 September 2010 up until last evening. 50Another factor which I take into account is delay. The offender pleaded guilty to the charges for which he now stands for sentence on 4 October 2011 in the Local Court at Nowra. He pleaded not guilty to the aggravated offences of which he was acquitted yesterday. However, sixteen months have now gone by between when he admitted his guilt and when he stands for sentence. In the normal course of events, if the Crown had accepted the offender's pleas of guilty to the statutory alternative counts, the unaggravated offences, the offender could have been sentenced at the beginning of 2012 and the delay would have been much shorter. These proceedings have been delayed because, firstly, the case could not finish in Nowra in May because it was necessary to take expert evidence in Sydney. Proceedings were then set down for September, but needed to be adjourned because not only was the offender ill, which lost us half a day of hearing time, but because the Crown needed to serve written evidence which had not then been prepared. That led to a further hearing in November and the final submissions only occurred on the last day of term last year, and next term does not start until next Tuesday. The delay of sixteen months in which the offender had these proceedings hanging over his head can be taken into account as a mitigating factor, albeit not particularly great. 51The Crown accepts that the offender pleaded guilty to the offences for which he now stands for sentence at an early time, and that he would be entitled to "close to the maximum discount on sentence" for an early plea. The offender submitted that he is entitled to the full discount for his early plea of guilty to the unaggravated offences. I accede to the submission put to me on behalf of the defence. The simple fact is that Court Attendances Notices were not filed in the Local Court until 4 March 2011. They did not require the offender to appear before that Court until 4 April. On 7 June 2011, the Local Court magistrate noted that the police had served a "full brief". That observation may have been correct at the time, but is essentially incorrect because the material that was ultimately put before me at trial was much more extensive than was available at the time the offender was due to be committed for trial and indeed much of the Crown evidence was obtained after the commencement of the trial on 2 May 2012. 52On 1 July 2011 the Local Court magistrate noted that the offender had been granted Legal Aid. It was following the grant of Legal Aid that he obtained advice and entered pleas on 4 October 2011. The Crown then sought time to consider its position but would not accept those pleas, and on 18 October 2011 the offender waived his right to a committal hearing and was committed for trial in this Court at Nowra. 53I accept, therefore, that the accused is entitled to a full utilitarian discount of twenty-five percent. I should indicate, because it is relevant (R v Whyte), that the guilty plea is of great utilitarian value because it obviated the necessity of the Crown calling expert medical evidence to establish that the offender was guilty of the unaggravated offences. Such evidence would need to have been called and proved beyond reasonable doubt. 54In R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 the Court of Criminal Appeal pointed out that a frequently recurring case of an offence of dangerous driving has the following characteristics: (i)a young offender, (ii)of good character with no or limited prior convictions, (iii)death or permanent injury to a single person, (iv)the victim is a stranger, (v)no or limited injury to the driver or the driver's intimates, (vi)genuine remorse, and (vii)a plea of guilty of limited utilitarian value. 55The offender has the first two characteristics. The third characteristic is here not present but two sentences will be imposed, one for dangerous driving causing death and one for dangerous driving causing grievous bodily harm, and they will not be wholly concurrent. Here the victims were strangers to the offender. There was some limited injury to the driver himself. I accept, for reasons I will outline very soon, genuine remorse, and here there was a plea of guilty but it did not have "limited utilitarian value". It was of some significance as I have already pointed out. 56In the same guideline judgment there is a list of aggravating factors. The aggravating factors are these: (i)extent and nature of the injuries inflicted, (ii)number of people put at risk, (iii)degree of speed, (iv)degree of intoxication or of substance abuse, (v)erratic or aggressive driving, (vi)competitive driving or showing off, (vii)length of the journey during which others were exposed to risk, (viii)ignoring of warnings, (ix)escaping police pursuit, (x)degree of sleep deprivation, and (xi)failing to stop. 57The matters that I have numbered (iii) to (ix) are, according to the guideline judgment, matters relating to moral culpability for the offence. In the guideline judgment it is stated that where the offender's moral culpability is high a full-time custodial head sentence of less than three years in the case of death and two years in the case of grievous bodily harm would not generally be appropriate. In a case of low-level moral culpability a lower sentence would, of course, be appropriate. However, this is only a guideline, not a straight jacket. 58Of equal assistance are the sentences passed in Gillett v R, where, in respect of each death, the trial judge imposed a sentence of five years imprisonment, with an overall head sentence, after accumulation, of seven years imprisonment. However, this case can be easily distinguished from Gillett. Firstly, Judge Berman did not accept that Gillett showed any true contrition or remorse and secondly, there is nothing to suggest that Gillett had the intellectual handicap which indicates that a custodial sentence would weigh more heavily upon him than would otherwise be the case. 59On the question of contrition or remorse the following needs to be observed. On 19 November 2010 the offender sought counselling for the management of depression and anxiety. The counselling for depression and anxiety were initially provided by a counsellor known as Robyn, who left the practice at Nowra and moved to Wollongong. The offender then came under the care of Dr Mario Farina, a clinical psychologist. The offender first saw Dr Farina on 27 April 2010. The offender has been consulting Dr Farina fortnightly. According to Dr Farina's report, the offender has extremely high levels of depression, anxiety and stress. The offender himself attributes his extremely severe psychological distress to grief and guilt relating to his being involved in the motor vehicle accident which led to the death of Mr Ioannou. It appears that Dr Farina accepts that as being the case. In his report of 4 December 2012 Dr Farina said this: "Treatment has in the main consisted of my assisting Mr Schilder to manage his grief and remorse. I've also assisted him with achieving improved management of his epilepsy. He is currently compliant with prescribed medication, reports a lowered incidence of seizures, and his condition is well managed by Dr Chong Wong, Epilepsy Unit, Department of Neurology at Westmead Hospital ...... At last contact, Mr Schilder told me he's prepared and willing to comply with whatever sentence your Worship deems is required. Mr Schilder said that he's aware that he cannot change what has happened but wishes to do penance and make amends in whatever way possible." 60The other medical reports indicate again that, in addition to his other problems, the offender has ongoing anxiety and depression resulting from his reaction to the tragedy which he caused. 61Under the heading "Grief, Remorse and Insight in Relation to the Offence", Doctor Pullman said this in her second report: "Mr Schilder reported that he understood what it is like to lose someone important to you and he could appreciate what feelings the other parties might be experiencing. He stated, 'I understand where he is coming from ... my father was killed when I was seventeen in a motorbike accident, he was riding into oncoming traffic and ruptured his aorta'. He expressed remorse and regret that perhaps the accident could have been avoided if he'd been on different medication." 62I note that contrition and remorse are expressed in a letter addressed by the offender to "All who loved Tim and Amanda", a letter which, unfortunately, Mr Timothy Ioannou's father was unwilling to accept from the offender in Court today. It is important that it be considered: "I am very sorry with the situation I put you all through. I feel in my heart it has never been the same since. I just wish I could turn back time. Seeing them flowers beside the road makes me feel sad for you all. I am sorry about all the hurt and grief you had to go through. I am so sorry what I have done to Tim. I did not mean to wreck or destroy any family or break any hearts. I don't know what to say, other than I'm sorry. Every time I go past the road I feel the hurt and guilt inside myself. I am very sorry for all the friends and family who loved Tim. I'm sorry I caused such pain. I'm sorry, it's not what I wanted to happen. I am so sorry to you, Amanda, and your family. Please accept my deepest apologies. I understand it has changed your life and you lost a true friend that night. I hope it is possible to be forgiven. It was not my intention to create such a life. Such a life-changing event for you all. PLEASE FORGIVE ME." 63Of course, courts regularly are provided with letters by offenders expressing their remorse and contrition, and the cynical can accept that it is often done merely to obtain a reduced sentence. However, Mr Schilder has been under my scrutiny on and off since 2 May 2012. I have seen him at various stages throughout a protracted hearing over ten days at various times. I have seen his reaction to the evidence called against him and, based on my eighteen years experience with the Bench, I am prepared to accept that what he wrote in this letter is accurate and true, and that he does realise what he has done and is sorry for it. I accept therefore that there is true contrition and remorse. As I said, the objective facts and moral culpability point in one direction, the subjective features point in the opposite direction. 64For the offence of dangerous driving causing death, I commence the sentencing exercise with a theoretical head sentence of four years imprisonment. I reduce that by twenty-five percent to account for the offender's plea of guilty at the earliest available opportunity. That reduces the head sentence to three years imprisonment. 65There are clearly special circumstances. They are, firstly, that this is this man's first experience of custody, which he will find gravely alarming and distressing. Secondly, of course, is the state of his health and the limited financial ability of the Department of Corrective Services to cope with his complex medical conditions. The third, of course, is that his experience of custody will be much more severe because of his intellectual functioning and, for example, his idiosyncratic speech patterns, which the evidence discusses. I fix a non-parole period of twenty months and an additional term of sixteen months. 66For the offence of dangerous driving causing grievous bodily harm, I start with a head sentence of three years imprisonment. I discount that by twenty-five percent to account for the offender's plea of guilty at the earliest available opportunity. That reduces the head sentence to twenty-seven months or two years and three months. Again, I find special circumstances. I fix a non-parole period of fifteen months and an additional term of twelve months. 67Because (although there is only one, in essence, event of driving) there are two victims, there clearly must be partial accumulation. I have determined that I should commence the sentence for grievous bodily harm today, and the sentence for the death to commence on today next year. Effectively, that means that there will be a non-parole period of two years and eight months, with a further additional term of one year and four months in which the offender will be entitled to be admitted to parole. The effective head sentence is thus four years imprisonment. 68Now, at 5.25pm, does anyone want any further reasons, as distinct from orders? PEARSALL: No, your Honour. HIS HONOUR: Madam Crown? RATCLIFFE: No, your Honour. HIS HONOUR: The bundle of working copies of the medical reports concerning Mr Schilder that I have used at this sentencing hearing will be marked for identification MFI S3. 69Daniel Gordon Schilder, on the charge that on 12 September 2010 at Nowra in this State you did drive a vehicle, namely a Ford Fairmont registered AV-64-ZB, when it was involved in an impact occasioning grievous bodily harm to Amanda Sutton and at the time of the impact you were driving the vehicle in a manner dangerous to other persons, I sentence you to imprisonment. I set a non-parole period of one year and three months commencing today 24 January 2013 and expiring on 23 April 2014. I impose a further period of imprisonment of one year, to commence upon the expiration of the non-parole period and expiring on 23 April 2015. The total sentence is therefore two years and three months, comprising the non-parole period and the balance of the sentence. I have found special circumstances. 70On the charge that on 12 September 2010 at Nowra in this State you did drive a vehicle, namely a Ford Fairmont registered AV-64-ZB, when it was involved in an impact occasioning the death of Timothy Ioannou and at the time of impact you were driving the vehicle in a manner dangerous to other persons, I sentence you to imprisonment. I set a non-parole period of one year and eight months commencing on 24 January 2014 and expiring on 23 September 2015. I impose a further period of one year and four months, to commence upon the expiration of the non-parole period and expiring on 23 January 2017. The total sentence is therefore three years, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are entitled to be considered for release to parole at the expiration of the non-parole period. 71The back-up charges are dismissed. 72Do you wish to say anything upon licence disqualification? PEARSALL: No your Honour. 73HIS HONOUR: I disqualify the offender from driving for a period of six years, that is for each offence three years, cumulative. 74I direct that MFI S3, a copy of the medical evidence relating to the offender, be given to the officers here present in Court of the Department of Corrective Services and be taken with the offender to Metropolitan Remand and Reception Centre. He suffers from epilepsy and other medical conditions which will render him both vulnerable and any stress may precipitate an epileptic seizure. So that you are aware, gentlemen. 75Any other orders sought? PEARSALL: Thank you your Honour. The other matter is this. It may be, your Honour, that the terms of my client's legal aid require me to make an application at some stage for a certificate under s 3 of the Costs in Criminal Cases Act. It's a situation - I can tell your Honour what it is - but I probably should get appropriate instructions, so I'd ask leave - if an application is going to be made the application be filed in, say, 28 days. The state of play is this your Honour: "An application certificate can be granted under the Costs in Criminal Cases Act and specify that the opinion of the Court granting the certificate that if a prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings." That's essentially what we have in relation to the trial that was finalised yesterday your Honour. HIS HONOUR: All right. You can deal with it by notice of motion. PEARSALL: Thank you your Honour. ********** 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