District Court New South Wales Medium Neutral Citation: R v Parsons [2016] NSWDC 452 Hearing dates: 11 November 2016 Date of orders: 11 November 2016 Decision date: 11 November 2016 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: Count 1: I impose a term of imprisonment of 2 years, to be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. Count 2: I impose a term of imprisonment of 18 months, to be suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999: at [40]-[41] Catchwords: SENTENCING — Penalties — Suspended sentences SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Not fully aware of the consequences of his or her actions because of the offender's mental condition —Remorse — Unlikely to re-offend SENTENCING — Relevant factors on sentence — Form 1 offences — Purposes of sentencing — Moral culpability SENTENCING — Subjective considerations on sentence — Mental illness Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Elturk v R (2014) 239 A Crim R 584 R v Greaves [2014] NSWCCA 194 R v Whyte [2002] NSWCCA 343 Whybrow v The Queen [2008] NSWCCA 270 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) Matthew Parsons (Offender) Representation: Mr D Curran (Crown) Ms N Mikhaiel (Counsel for the Offender) File Number(s): 2015/250182 Publication restriction: Nil Judgment 1. The parents of Matthew Parsons sit here in Court today to hear him being sentenced for serious criminal offences in circumstances where they sadly acknowledge that their decision to stop his psychotic medication was a mistake which led to him attempting suicide while driving a motor vehicle. It is, as both counsel have indicated, an extremely unusual case and one not contemplated by or considered in any of the guideline judgments. 2. The circumstances are graphically depicted in photographs, being exhibit 2, taken after the relevant incident, which show that at about 9.30am on 30 June 2015, Mr Parsons, who is now 32 years of age, was driving his Holden sedan along Carter Street, Homebush Bay, a 50 kilometre zone. 3. He accelerated in excess of the posted speed limit, according to a witness who was travelling behind him, without warning, he changed lanes into a west-bound lane. The witness applied his brakes so that Mr Parsons could come back into the east-bound lane, as he could see an oncoming truck, but the offender's vehicle collided with this pantechnicon truck. There were three passengers in the truck. The truck rolled over onto its side. Mr Parsons did not apply his brakes. 4. CCTV footage from a nearby building shows the impact and supports the version given by the witness. 5. The driver and his two passengers in the truck were trapped. Mr Parsons was spoken to by police at the scene. He said, "Why didn't I die, I wanted to die, I didn't wear my seatbelt", and he had not been wearing a seatbelt. He had bloodshot eyes, he was extremely anxious, and he said, "The voices in my head are telling me to die". He was taken to Westmead Hospital with a fractured pelvis and lacerations and seen by the mental health team and subsequently scheduled under the Mental Health Act before being released in August 2015. 6. The three passengers suffered serious injuries. Mr Ayoub Said suffered a comminuted fracture of the right patella with fragmentation and a non‑displaced fracture of the talus, resulting in two operations on his right knee and a third possible operation on the right knee. 7. Mr Christian Elfalak had a transverse fracture of the femur. Mr Samir Said had minor injuries and was released on the same day. 8. Against that background he pleaded guilty to two offences under s 52A(3)(c) of the Crimes Act 1900, of dangerous driving occasioning grievous bodily harm. in relation to the passengers Ayoub Said and Christian Elfalak, carrying a maximum penalty of seven years imprisonment and no standard non-parole period. In relation to the first count he asks to be dealt with a charge on Form 1 of drive furiously and do bodily harm under s 53 of the Crimes Act 1900. I take that into account in the sentence that I will impose on the first count in the way which the Chief Justice suggested in the guideline judgment on matters dealing with Form 1 matters. 9. His criminal history is extremely limited. There was an offence of destroy ordamage property very shortly before this, in circumstances to which I will refer for which he was given a s 9 bond. There was driving offence and resist officer and refuse breath test, dealt with under s 10 in 2011 and a PCA in the high range in May 2012. His driving record is not a good one. There are a number of speeding offences, using handheld mobile phone offences, and a number of periods of suspension as a result of those. 10. The very helpful chronology and written submissions provided by counsel for the offender demonstrate that the plea was entered at the first available opportunity and it is not contested by the Crown that a discount of 25% for the utilitarian value of the plea should be afforded in the event of the imposition of a term of imprisonment. 11. The submissions by Ms Mikhaiel ultimately made the point that although it was conceded that a term of imprisonment was justified, under s 5 there were alternatives to fulltime custody which should be considered. It is against the background of that submission that suitable material, which has been tendered and is unchallenged, establishes the extent of the lengthy treatment of Mr Parsons for a mental health condition. 12. He has since his release from the mental health institution in August 2015 engaged in tertiary studies and his academic record is a commendable one. I accept his written expression of sincere sorrow, recognising that his actions were inexcusable. He accepts full responsibility for them. He gave no consideration to the consequences. 13. As the evidence establishes, he has had lifelong issues with mental health and numerous bouts of severe depression, most recently triggered by the devastating loss of a close friend to suicide. He had been hospitalised twice in the days leading up to the accident. He was homeless and sleep-deprived. He had auditory hallucinations with voices telling him that all sorts of horrible things would happen to him if he did not take his own life. By the time he was involved in the accident, he was hysterical and beyond help or reason. 14. He has gained a lot of insight in the time that he has had to reflect on his actions since then, with the support of his doctors and psychologists. His father told him after the accident that the only thing we can do is use it as a reason to turn his life around, and that is why he has gone into tertiary studies in information technology and is hoping to get a job in that industry and live independently for the first time in his life. He says although it is not easy to be living with constant regret and uncertainty, his future is a positive one. 15. I have a very lengthy and moving letter from his parents which describe him as a complex person who has had a troubled life. His keen sense of justice often conflicts with his poor social skills. His three siblings have tertiary qualifications in architecture, radiation therapy and education. 16. Despite not having the type of primary coaching that some do, he gained entry into three selective high schools. He was also a very good sportsman. As early as Year 4 his principal suggested that he be taken to a psychiatrist, which the parents thought was unusual, but in hindsight it was a good perception of his position. 17. He left school in 2003 and struggled with university. He enrolled in legal studies which he did not complete. He had many jobs of a manual nature in the next several years, when he started to show, what his parents recognised as classic signs of depression; staying in his room and sleeping for days on end and having no motivation. 18. He had regular sessions with psychiatrists and psychologists. His close friend, Claude, committed suicide in 2012, the same year that Mr Parsons had broken up with a long-term girlfriend. That, according to his parents, marked the beginning of a very severe downward spiral in his mental health. 19. He went into a residential facility after exhibiting psychotic behaviour at Bondi Beach in early 2015. He was admitted to hospital under a treatment order for injections of psychotic medication, which caused him to move like a robot and made him incapable of speaking or acting normally. 20. His parents thought this was a significant inhibitor in his ability to move forward and his mother, supported by the psychologist, made a successful application to have the treatment order removed so he was taken off his injectable medication in April 2015 by the doctors at their request. 21. The parents say they now realise that stopping that was a mistake, and their lack of knowledge and understanding of his mental illness led to an uniformed and mistaken decision, which has not only impeded his treatment but caused him to become involved in this offence at a time when he was psychotic and attempting to end his own life. 22. As he does to me, he has expressed remorse to them many times and over the subsequent months they have gained an awareness that he had a very poor insight into his disorder. He is now back on medication having once again received a diagnosis of a schizoaffective disorder, and, as I have said, with the benefit of medication he is performing well in a difficult tertiary course involving mathematical skills. 23. The parents are very ashamed and feel great pity for the people injured in the accident, as does their son. They recognise that it has caused a massive turnaround in his life. He is clean of illicit drugs and still reliant upon their support. They fear for his safety if sent to gaol and are concerned that he may not receive the ongoing supporting treatment that he needs in custody. 24. I have regard to a reference from Sanjay Hackett, a good friend, who notes his engagement in a lengthy yoga program. 25. I have regard to the statistics in relevantly similar cases which have been provided to me. 26. The Crown submits that the abandonment of responsibility here was at a very high level, in that he had determined to commit suicide, but it is conceded that his mental health condition contributed to the commission of the offence in a material way, as noted in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, so that his moral culpability may be reduced and just as significantly, the need for denunciation and general deterrence to be reflected in the sentence is less than would otherwise be the case. 27. It would also, as McClellan J said in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, mean that a custodial sentence may weigh more heavily on him and may reduce, as I think it does in this case, the significance of specific deterrence. 28. I cannot say that because of his mental illness he presents more of a danger to the community as long as he does remain under medication and appropriate medical care. 29. As I said, his criminal history is very limited. The offence five days before this driving offence was committed while he was psychotic and the damage occurred at his parents' property. 30. I recognise that the serious injuries suffered by the offender may mitigate his sentence, as was said in Whybrow v The Queen [2008] NSWCCA 270. 31. I take account of guideline judgment in R v Whyte [2002] NSWCCA 343 and the numerous typical factors set out there led the Court to suggest that a custodial sentence is usually appropriate, unless there is a low level of moral culpability. 32. As I have said, none of the cases to which I have had recourse, or to which counsel have referred, deal with the most unusual situation that arises here, but as I have said, in particular relying on DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, there is a need to take into account in a significant way the mental health in a number of aspects, not only the proposition asserted in De La Rosa but recently, as I am reminded, it was reaffirmed by Beazley J in Elturk v R (2014) 239 A Crim R 584. 33. Ms Mikhaiel referred to the decision of Court of Criminal Appeal on a Crown appeal in R v Greaves [2014] NSWCCA 194, which I accept was objectively a far more serious case of dangerous driving than the present, and an intensive corrections order was not interfered with. 34. I accept that the decision to accelerate into the path of an oncoming truck was probably made very quickly or spontaneously, and the evidence suggests that he was speeding only for an extremely short time. 35. I accept that while it is an objectively a serious case, because of the most unusual features to which I have referred, his moral culpability is significantly reduced so that it is towards the lower end of the scale. 36. I bear in mind that there was no evidence that he had planned the suicide attempt at any time before the very short period immediately before the accident. He was un‑medicated at the time of the offence, as I said, as a result of a decision of his parents, and through no fault of his own. 37. I accept that there are a few aggravating factors but there are a number of powerful mitigating factors. I accept that if medicated he is unlikely to reoffend. He has good prospects of rehabilitation. He has clearly demonstrated remorse and most importantly, he was not fully aware of the consequences of his actions, because of his mental condition, and he has of course pleaded guilty at the earliest reasonable opportunity. 38. The purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 most prominently in this case include rehabilitation. He has made significant progress towards that goal, and I accept that placing him into fulltime custody would have the effect of interrupting or undermining that progress. 39. For those reasons, I propose to deal with that by way of a suspended term of imprisonment pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. 40. The orders that I make are: 1. The offender is convicted of each offence. 2. On count 1, taking into account the Form 1 matters, I impose a term of imprisonment of 2 years; 3. On count 2 I impose a term of imprisonment of 18 months. 1. These sentences will be concurrent as there is no reason for any accumulation given that they all arose out of one discrete episode of criminality. (4) Under s 12 of the Crime (Sentencing Procedure) Act 1999, I order that the execution of these sentences be suspended. I direct the offender be released from custody on condition that he enters into a good behaviour bond for the term of two years. The conditions of the bond are: 1. To appear before the Court if called upon to do so at any time of the bond. 2. To be of good behaviour. 3. To reside at [REDACTED FOR PUBLICATION]. 4. To advise the clerk of the Court by prepaid registered post of any change of residential address during the term of the bond. 5. To accept the supervision of the Community Corrections Service for as long as that service deems necessary or desirable, but not exceeding the term of the bond, and to obey all reasonable directions of the service including any directions or instruction to undertaken examinations, assessment, therapy, treatment, counselling or urinalysis while under supervision and guidance. 6. He is to report to the officer-in-charge of the Community Corrections office at Parramatta before or by Friday 18 November 2016. (5) I impose a period of licence disqualification of two years to date from today. Note – These extempore remarks were revised without access to the court file. ********** 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: 07 November 2019