District Court New South Wales Medium Neutral Citation: R v MacPherson [2017] NSWDC 170 Hearing dates: 8 February 2017 Date of orders: 08 February 2017 Decision date: 08 February 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is sentenced to 2 years imprisonment with a non-parole period of 12 months. Matters on s166 certificate are withdrawn Catchwords: CRIMINAL LAW – Sentence – From 1 – Dangerous driving occasioning grievous bodily harm – Driving whilst under the influence of drugs – Victim was offender's child – Other children put at risk - Remorse Cases Cited: R v Jurisic (1998) 45 NSWLR 209 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 Category: Sentence Parties: The Crown Keirra MacPherson Representation: Counsel: M Coates - Crown Solicitors: Director of Public Prosecutions – Crown Legal Aid Commission - Offender File Number(s): 2015/127150 SENTENCE 1. HIS HONOUR: Drugs harm people in many and varied ways. Most commonly these courts deal with the drug users who commit criminal offences to obtain their funds to support their habits. Often the courts deal with aggressive and violent behaviour by people who have used drugs. But there is an almost infinite variety of ways in which drugs can harm other people. This case is a demonstration of one particular form of harm which results from drug use. 2. The offender, Keirra MacPherson, was a drug user. Whilst her driving ability was impaired through the ingestion of drugs, she drove her car with her four children as passengers. She fell asleep. The car collided with a tree and one of her four children, seated in the backseat with only a lap belt on, suffered grievous bodily harm. She pleaded guilty at an early stage to an offence of aggravated dangerous driving occasioning grievous bodily harm. To reflect the utilitarian value of that plea the sentence I will impose upon her is 25 per cent less than it would otherwise have been. It is the aggravated form of the offence because of the level of Ms MacPherson's intoxication. 3. It is important, of course, to look carefully at the injuries suffered by her son. He was six years old at the time of the collision and is now eight. As a result of the collision he underwent surgery. He had some parts of his bowel removed. He had a fracture in one of his vertebra and a posterior fixation of the L1, L2 and L3 was performed. He suffered bruising and lacerations and indeed, his injuries were such that he spent two days in an intensive care unit before he was discharged to a general ward of the hospital where he was being treated. It seems that fortunately he has made a good recovery. 4. A victim impact statement written by his father was tendered today. It seems that after her son had two rods and five screws which were inserted into his back, removed, he is now back to most activities and sport. He cannot play football but swims, plays basketball and soccer. He does have ongoing bowel problems which require medication but, with a good diet, he does not suffer constantly. 5. At first he hated his mother, Ms MacPherson the offender, for what she had done but has now forgiven her, and has expressed his love for her. He has been seeing a psychologist after being diagnosed with post-traumatic stress disorder and his behaviour only really deteriorates when he is told that he cannot do some physical activities that he used to be able to do. It is, in the circumstances, a very fortunate result after the significant injuries which he suffered. 6. The offender has a criminal history. Relevantly, there are offences involving driving and drugs but nothing to suggest she is a dangerous driver, just a driver who has, at times, driven when she should not have been because she did not have a licence. Her offending, for which she must be sentenced today, is a continuation of that attitude towards driving, driving when she should not have been. 7. She had been, at the time of this collision, a drug user for some time. She was in a relationship where she was subject to domestic violence. Her decision to begin using drugs is perhaps a consequence of the relationship she found herself in. She has been a long-time user of cannabis and a user of amphetamines. The Crown makes the very good point that it is one thing to use drugs, it is another thing to drive when affected by drugs. She is not being punished for using drugs, she is being punished for taking the criminal decision to drive under the influence of drugs. 8. A blood sample was taken from her. It revealed, relevantly, both methyl amphetamine and the metabolites of cannabis in her system. It is agreed that because of those drugs and the influence that they had upon her, her driving ability was very significantly impaired. She had not slept for two days. One of the consequences of methyl amphetamine use is that when the drugs begin to wear off, there can be significant fatigue and drowsiness. When this is coupled with one of the effects of cannabis, relaxation and sedation, it is hardly surprising at all that what happened on this occasion is that Ms MacPherson fell asleep at the wheel, leading to her car colliding with a tree and leading, in turn, to her son being significantly injured. 9. There are guideline judgments to be taken into account. R v Jurisic (1998) 45 NSWLR 209 of course was the first guideline judgment ever issued by the Court of Criminal Appeal. The guideline was modified somewhat in the later decision of R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252. Both the Crown and Mr Kiely have made reference to that decision and have spoken about the aggravating factors listed in Whyte and which are present in this case. It is conceded by Mr Kiely, accurately, that the offender's moral culpability was high. She put a significant number of people at risk. Not only was her injured son in the car, but so were her three other children. They were directly put at risk, but so were others. The collision occurred in a rural, but suburban, street at 5.30pm on a summer afternoon. The length of the journey which Ms MacPherson took whilst under the influence of drugs is important too. She had picked her children up from school at Mayfield and taken them to her mother's home at Windale, a journey of about 20 minutes. It was when she was returning her children to their father where they lived that this collision occurred. That would have been a journey of another 30 or 40 minutes. So the length of the journey during which others were exposed to risk was significant indeed. 10. Another of the aggravating factors listed concerns the degree of sleep deprivation. I have already mentioned that Ms MacPherson had not slept for two days. 11. I am satisfied that Ms MacPherson is deeply remorseful for what she has done. Of course it would be remarkable were that not the case but even so, her genuine remorse needs to be taken into account. She said at one stage that she failed to protect her children. I do not want to be too critical of that, but in reality, her criminality is much more than a failure to protect her children. Her criminality was that she actually caused harm to her son. 12. Ms MacPherson feels deep guilt for what she has done and is constantly reminded of her wrongdoing and perhaps, more importantly, the effects of her wrongdoing upon her family. The road where the collision occurred is the only real way of getting from Cessnock to her mother's place at Windale or other places such as Newcastle. There is a mark on the tree which Ms MacPherson and her children see every time they drive along that road. It is a matter of ongoing distress to Ms MacPherson to be reminded of her wrongdoing. 13. Since this collision she has, she says, given up drugs. She has thus rehabilitated herself to that extent. I am satisfied that she is unlikely to commit further offences of this type in the future. After all, as I mentioned, there was nothing to suggest that she was an aggressive driver or one who constantly broke the road rules in the past. 14. As I began these remarks on sentence, this terrible event resulted from her drug use, something which she has, she says, ceased to do. Ms MacPherson accepts that a fulltime custodial sentence is the likely outcome. Mr Kiely did submit that perhaps an Intensive Corrections Order might be appropriate. I do not agree. Even though the length of the sentence I will shortly announce is such that alternatives to fulltime custody are available, I am satisfied that fulltime custody is required to reflect the objective gravity of Ms MacPherson's most serious offending. 15. Ms MacPherson will be separated from her children whilst in custody and her children will be separated from her. Her eldest four children will be living with their father, as they were when the collision occurred. Her youngest child will be living with his father, so I am satisfied that there will not be significant hardship to those children. Certainly they will suffer by their mother's incarceration but that is a terribly sad but commonplace consequence of parents committing criminal offences of such seriousness that they must go to gaol. 16. I will of course take it into account as part of the general mix of subjective factors that Ms MacPherson will feel deeply the separation from her children. I am sure she blames herself for the consequences that must necessarily flow through her being sent to gaol. 17. I impose sentence as follows, taking into account the matter on the Form 1. I set a head sentence of two years with a non-parole period of 12 months to date from today 8 February 2017. The non-parole period will expire on 7 February 2018 on which day Ms MacPherson is to be released to parole. 18. I note that sequences 2,3,4,5,and 6 on the s 166 certificate are withdrawn. 19. Thank you both for your assistance. ********** 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: 05 July 2017