District Court New South Wales Medium Neutral Citation: R v Raymond [2019] NSWDC 679 Hearing dates: 6 March 2019 Date of orders: 15 March 2019 Decision date: 15 March 2019 Jurisdiction: Criminal Before: Judge W Hunt Decision: For the offence of drive manner dangerous causing death the offender is sentenced to imprisonment for a period of 2 years to be served by way of an Intensive Corrections Order. As well as the standard conditions the offender is required to perform 400 hours community service. The offender is disqualified from driving for 3 years. For the offence of fail to stop and assist the offender is disqualified from driving for 3 years and is released on a Community Corrections Order for a period of 3 years. Conditions of that Order are that she is to comply strictly with the disqualification order and not to be behind the wheel of a vehicle during currency of that order. For the offence of drive with low range PCA the offender is disqualified from driving for a period of 6 months and is released on a Community Corrections Order for a period of 3 years in identical terms as that for the offence of fail to stop and assist. Catchwords: CRIMINAL LAW – Sentence – Dangerous driving occasioning death – Fail to stop and assist – Drive with low range PCA Legislation Cited: Crimes Act Criminal Procedure Act Crimes (Sentencing Procedure) Act Cases Cited: Dinsdale v R (2000) 202 CLR 321 R v Barnett [2016] NSWDC302 R v Cahill [2015] NSWCCA 53 R v Jarrod Smith [2016] NSWCCA75 R v JW [2010] NSWCCA 49 R v Melissa McGowan [2013] NSWDC 22 R v Osenkowski (1982) 30 SASR R v Pogson (2012) 82 NSWLR 60 R v Tannous (2012) 227 ACrimR 251 Category: Sentence Parties: The Crown Jazmin Jessie Raymond Representation: Counsel: Ms J Hopper – The Crown Mr J Conomos – The Offender Solicitors: Director of Public Prosecutions File Number(s): 2018/164926 Judgment 1. HIS HONOUR: Jazmin Jessie Raymond is before the Court for sentence in relation to two offences, a dangerous driving occasioning death in breach of s 52A(1)(C) of the Crimes Act which matter provides for a maximum penalty of ten years imprisonment and no standard non‑parole period has application and an offence of fail to stop and assist in breach of s 52A(b)1 of the Crimes Act. It also provides for a maximum penalty of ten years imprisonment and no standard non‑parole period as application. Although there is a power to reduce it in relation to both of those counts the legislation provides for an automatic disqualification period of three years. 2. I am also invited by the parties, and will, sentence Ms Raymond for a related offence that is on a s 166 certificate pursuant to the Criminal Procedure Act which is a low range PCA offence, being a first offence, that is a matter that has a maximum penalty of $1000 fine, an automatic disqualification of six months and a minimum disqualification of three months. 3. Upon Ms Raymond's pleas of guilty in the Local Court the matter was committed for sentence to the sittings of the Nowra District Court that commenced on 11 February 2019. The sentence proceedings were in fact heard by me on 6 March 2019 relatively late in the afternoon in the circumstances in which the Court has been sitting in a list that involves multiple jury trials, judge alone trials and various other matters that constitute these kind of sittings. 4. These remarks should be understood to be ex‑tempore in nature although I have given the matter careful thought. The Court's commitments to all the other matters mean that this matter should not be understood to have the character of a fully reserved decision. 5. At the sentence proceedings the Court considered, for the Crown, the Crown sentence summary that included the agreed facts and various court documents including evidence that Ms Raymond has no criminal convictions and no offences on her driver's record together with copies of victim impact statements. 6. At the hearing Paul Gillian, father of the deceased, Brendan Gillian, Emily Obcross, his partner of five years and close friend for ten years read to the Court their victim impact statements and the Crown Prosecutor read the victim impact statement for Brendan's mother, Alana James, who was in Court but for understandable reasons did not wish to read her statement aloud. 7. Each of those statements spoke eloquently to the great pain and irrecoverable loss occasioned to all the people who loved the deceased whether they were the authors of the victim impact statements or whether they were other family members and loved ones. I will take that material into account in the ways made permissible by the legislation. 8. Returning then to the evidence I also considered for the Crown a sentencing assessment report under the hand of Kathryn Boudinette, Senior Community Corrections officer at Wollongong Community Corrections Office dated 7 February 2019. 9. For Ms Raymond, I considered a bundle of references as exhibit 1 and I will return to that material in due course. I also heard oral evidence from her eldest sister and both her parents and, again, I will return to that material in due course. 10. As I have already said the sentence proceedings highlighted the enormity of the tragedy of a young man taken from his family and loved ones well before his time. That loss has caused and will continue to cause considerable grief and heartache. The material tendered in the proceedings also highlights the offender's prior good character for the past responsible driving and very considerable remorse. As Yehia DCJ said in R v Barnett [2016] NSWDC302: "In matters such as this judges are asked to perform an impossible equation. No human life can ever be equated with a period of imprisonment. No gaol term can return a loved one and a life should simply not be measured by punishment metered out to an offender." 1. See R v Jarrod Smith [2016] NSWCCA75 per RA Hulme J at 18 endorsing remarks made in R v Melissa McGowan [2013] NSWDC 22. 2. The sentences that I am going to impose today do not and cannot measure the life of Brendan Gillian. Instead they reflect exercise of the sentencing discretion properly informed by proper principle. It must reflect an adequate punishment recognising the harm done and denouncing the conduct of the offender. The sentence must also reflect the objective seriousness of the offences, her moral culpability, her prospects of rehabilitation, her level of remorse and the likelihood or unlikelihood of future offending. 3. In determining the facts I rely on what is in the Crown bundle described as a draft statement of facts but I take it to be an agreed statement of facts for the purpose of the sentence proceedings. 4. On the evening of 25 May 2018 the offender attended a party at 112A Old Princes Highway where she consumed three Vodka Black pre‑mix drinks. At some point in the evening she left the party to travel to Bomaderry with two friends in her white Holden Astra. At about 11.10pm the offender was returning to the party and accordingly was driving north on the Old Princes Highway at Berry. The front seat passenger was somebody called Brie Henning and her rear seat passenger, Patrick Hill. At the same time the deceased, Brendan Gillan, was walking with his brother Nathan Gillan in the northbound lane of the Old Princes Highway. As the offender travelled down that highway she failed to avoid the victim. The front portion of her vehicle collided heavily with him causing him to be ejected up to the bonnet and impact heavily with the windscreen of the vehicle. The victim was then projected forward and collided heavily with the road surface. He sustained horrific injuries from which he ultimately died. The offender drove a further 300 metres down the road before stopping at the top of the driveway at those premises at 112A Old Princes Highway. She ran down the driveway to the party and told some people at the party that she had "had hit someone." Partygoers from that address then immediately ran up to the collision location to call for assistance and to render aid to the victim. The offender attempted to return to the scene but when she got near other people told her to return to the house as she was hysterical and in a state of shock. 5. The deceased's brother, Nathan, located Brendan on the roadway and attempted to assist him. Emergency services attended at the scene a short time later and Brendan was pronounced deceased. Police officers from the Shoalhaven Command located the offender's vehicle outside 112A Old Princes Highway. The offender's vehicle had sustained extensive front end damage with the passenger side windscreen being forced into the passenger compartment of the vehicle. Police went into that residence and found the offender. She admitted to being the driver of the vehicle. She was submitted to a roadside breath test which she failed. She was then placed under arrest and conveyed to Nowra Police Station for a breath analysis and on that breath analysis had a reading of .057 grams of alcohol per 210 litres of breath. The offender was transported to Shoalhaven Hospital for mandatory blood and urine testing and at the completion of that testing she was conveyed back to the police station where she was introduced to the custody manager. After completing an investigation at the scene Crash Investigation Unit personnel attended Nowra Police Station and introduced themselves to the offender who then participated in a electronically recorded record of interview. During that interview she stated she had consumed three cans of Smirnoff Double Black while she was at the party. She then drove her friends to the Bomaderry Hotel and then back to the party where the collision occurred. She said that as she was driving up Old Princes Highway she saw the two men walking in the middle of the road and did not have time to break, however she swerved to the right and clipped the victim. She also admitted that she did not stop but drove directly to the party at 112A Old Princes Highway to get help. 6. There is a division of material apparently between witnesses about the weather at the time of the collision. The first officer at the scene described the weather conditions being a layer of fog with poor visibility. Other witnesses described the weather as being cool and clear. Old Princes Highway has one lane northbound and one lane southbound which is separated by double unbroken white lines. The road is at least these days a country road that leads to residential properties. There are no pedestrian footpaths available, the speed limit is 50 kilometres per hour. There is no street lighting on this road. Forensic investigations indicate that the offender was travelling between 56 and 67 kilometres per hour at the time of impact. Forensic investigations also indicate that after rounding the crest of the hill on the Old Princes Highway the offender is predicted to have had 190 metres of vision before the point of impact. 7. For purposes of determining the objective seriousness of the offending although it may seem clinical to civilians in Court the fact of the death of another human being is an element of the offence and in this exercise has no further work to do in terms of assessing the offender's manner of driving and things that can be assayed to determine where this matter fits across the range of conduct that can be caught by this section. Accordingly there is in this matter a range of matters that might make a matter much more serious that are absent. For instance offences committed by offenders who have behaved in the same way in the past or committed by offenders who have such a serious driving record that it serves not only to deprive an offender of leniency but to aggravate the offending. Additionally there will be cases where the manner of driving that occasions the death of another human being is so overtly dangerous that it offends community standards even if another person does not die as a consequence. I had in mind those who drive at speeds ten if not twenty and above kilometres over the speed limit, those who cross unbroken lines on country roads at speed, those who drive with vast quantities of drugs, alcohol or both in their system such that it is an operative condition in terms of the ability to control the vehicle. 8. The Crown here contended that I would find that the objective seriousness of the offending fell to or about the mid-range. In making that submission, the Crown Prosecutor made it clear that because the Court is called upon to sentence Ms Raymond for the low range PCA and having regard to the modest reading that the consumption of alcohol did not serve to aggravate the offence and should not be taken into account in terms of the measurement of the objective seriousness of the principal. 9. The offender's driving meant that on the estimations of the forensic investigators she was going over the speed limit by something around ten to fifteen kilometres an hour and she was doing so in circumstances in which the speed limit was modest and accordingly she was not going fast. The reason that that area was signposted 50 kilometres an hour was to signal that it was a residential area. It is misleading to think of the area as a highway as I have observed in describing what is set out in the agreed facts about that matter. 10. The facts disclose that there was no footpath and accordingly nowhere for the deceased and his brother to be walking that was mandated by regulations such as if there had been a concrete footpath. Against that, at around 11 o'clock at night I draw the inference that this was not an area where one would regularly expect to see pedestrians walking in the middle of the road. This in no way is said to cast any blame on the deceased or his brother at all but to try and determine the severity of the dangerousness of the offender's driving even though she has conceded dangerousness by her plea of guilty. 11. The dangerousness, taking into account the uncertain road conditions and driving at a speed over and above the speed limit, was to fail to keep a sufficient lookout to be able to react to that unexpected circumstance in time to totally evade collision with the deceased. It is clear that the offender made some attempt to do that but even at the time at which she noticed the gentlemen on the road, the manner in which she took evasive action was insufficient to avoid the calamity that then followed. 12. The objective seriousness is not at the very lowest end of the range such as momentary inattention or momentary distraction but does not achieve the objective seriousness of being in the mid-range. I would characterise the objective seriousness of the conduct as being at the top of the low range. It certainly an objectively serious offence that is outside of the range of offending that is contemplated towards the lowest end that are described in some of the authorities including R v Jurisic (1998) 45 NSWLR 209 and R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252. I have been describing the objective seriousness in relation to the s 52A(1)(C) offence. In terms of the fail to stop and assist offence the objective seriousness of that offence is towards the very lowest end of the range. The reason for that is that piece of legislation is designed to address the mischief of those who seriously injury people in collisions and to use the vernacular, "take off", to take off for one reason as far as the offender is concerned which is to avoid detection with the consequence of either a delay or an absence of medical attention to the person who has been injured. It was a very different situation here. The offender was driving to a place where she knew there were multiple people. As soon as she arrived there, that is within 300 metres driving, she immediately informed party goes both what she had done and, that there was a need for help and people who were clearly in a better condition to render help immediately went back to the scene. Accordingly I take the view that first of all the objective seriousness of that offence is low and I also draw from it that the kind of delinquency of moral character that is normally occasioned by people who fail to stop and assist is absent in this case and rather it is the other way round. I will come to deal with the low range PCA in due course. 13. Moving to matters that are personal to the offender. I have already observed that she has no criminal record, she has no relevant driving record save to indicate that she was first licenced as a learner in May 2013 and achieved her provisional licence in June 2014 and at the time of the offence she was driving on an unrestricted licence that was unblemished. I accept that in the guideline judgment of Whyte good character and remorse have less work to do in the sentencing exercise when it comes to s 52A matters than in some other matters. Exhibit 1 consists of six testimonials. In sentence proceedings judges are often confronted with either, on occasion victim impact statements that are limited and formulaic, whereas in this case the victim impact statements were detailed, insightful and courageous in their description of the grief and loss occasioned to the family of Brendan. Similarly here in terms of the evidentiary material the references before the Court could not be described as formulaic. All bar one of them is handwritten and relevantly, apart from making individual observations about the offender's character and personality, each of them addressing some detail, a comparison between the person that the offender was before the driving that brings her to Court today and after. Although the offender has managed to return to her vocation of hairdressing in an industrious fashion, all of the referees speak in one way or another about the vast change in her personality and the vast grief and responsibility she feels for the deceased's family and loved ones. 14. That material was compounded by the oral evidence before this Court in which, as I have said, the offender's older half-sister, her mother and her father gave powerful evidence not only of the offender's remorse and her conduct and the result but also expressed concerns about her psychological health as a result of those things. It is clear that the offender has had a long passage of psychological treatment in the community in an attempt to address some of the effect of the incident on her. None of those things, of course, I have said in any way to minimise the costs to the family and loved ones of the deceased in this matter. 15. In cases in which there is a vast amount of subjective material from an offender's family and associates it is always helpful to have an objective view as well. The author of the sentencing assessment report after departmental testing and interviewing described the offender as having a low risk of offending. The assessment confirms that the offender left school at 15 to complete an apprenticeship in hairdressing and that she had been working in that field ever since. The assessment of the author is that while alcohol was a factor in the current offences, enquiries indicated that the offender does not have a problem with that drug or any other drug. Unsurprisingly the author notes, the sorrow that the offender expressed to her at the impact of her offending on the victim's family and loved ones. The author of the report confirmed with the offender that she continues to take medication for anxiety and depression although her active therapy is currently at an end. The writer of the report had recommended to the offender that she participate in the Traffic Offender's Program. The offender is assessed as suitable among other things to undertake Community Service in the community. 16. Courts are obliged to have regard to the provisions of s 3A of the Crimes (Sentencing Procedure) Act which sets out all the purposes of sentencing. It is inevitable particularly in cases that involve the control and driving of a vehicle when so many in the community do that, that offending that causes the death of another human being must attract a generally deterrent penalty. There is always the need to specifically deter offenders from behaving in the way that they have in the past but here all the evidence that points to the fact of the offender acknowledging her conduct and the details of it to the police, the Court processes and confronting the consequences of her offending. It seems to be that much of the work, although not all of it, specific deterrence has already been undertaken. There is a need for punishment and there is a need for denunciation in a principled approach. Having regard to what the guideline judgment says it has always been the approach that in sentencing relatively young offenders, it is proper in the protection of the community to afford greater weight to rehabilitation. This is because if young people are rehabilitated early it means that they no longer present a continuing threat to the rest of the community. 17. As I said earlier it is common ground between the parties that a utilitarian sentencing discount of 25%, if dealt with in a numerical fashion, is appropriate. As a matter of principle a sentencing discount can weigh in to the mode of disposition of matters. It is clear in this case that the early plea of guilty and the admissions made to the police on the night of the tragedy show that the offender's desire to assist administration of the course of justice and to take responsibility were taken up immediately rather than being slowly obtained as a result of legal advice or being confronted with the particulars of a Crown case. 18. Late last year, the government enacted a draft of changes to the sentencing law in this State. The Attorney General in his second reading speech indicated that an expansion of, and change in, the ways that imprisonment was served by way of an Intensive Corrections Order was designed to be in the protection of the community. The protection of the community becomes a paramount consideration when the Court is called upon to determine whether to impose imprisonment by way of an intensive corrections order. It is noted that those changes in the legislation post-date any of the general pronouncements about the way in which sentences should be served for less culpable offenders who drive in breach of s 52A. Although Mr Conomos who appeared for the offender cast his submissions simply to excite the Court's sentencing discretion, Madam Crown properly, in my view, contended that the Court could be satisfied, at least in relation to the principal offence, that is the s 52A offence, that the s 5 threshold had been crossed and that some type of imprisonment should be imposed. In her position, it is always difficult to bind the Director but I did ask Madam Crown whether it was her submission that full time imprisonment for an offender in this circumstance was inevitable and she, again properly in my view, indicated that that was a matter for the Court. 19. In a case that was determined before the change in the legislation that I have already referred to, the Court of Criminal Appeal in R v Pogson (2012) 82 NSWLR 60 said in terms of this class of offending that an Intensive Corrections Order is a punishment which can be utilised in an appropriate case at the same time, the same Court in R v Cahill [2015] NSWCCA 53, emphasised it is important not to lose sight of the need for an appropriate and proportional level of punishment in the form of immediate incarceration in cases that involve serious offending. The Court on that occasion said that the decision in Pogson that I have already referred to should not be utilised to pass an entirely inappropriate sentence by reason of the offender being dealt with that way if that was going to be contrary to the principle of reasonable proportionality between the offending conduct and the sentence. 20. Accepting the restraint provided by R v Cahill, it is to be remembered that a Intensive Corrections Order is a form of imprisonment. It has a significant punitive effect and can, in the right case properly reflect a range of the purposes identified in s 3A of the Crimes (Sentencing Procedure) Act, see R v Tannous (2012) 227 ACrimR 251. Given the way that I propose to sentence Ms Raymond on the principal offence to effect the punitive and general deterrent effect of an Intensive Corrections Order of the maximum length available under the legislation will be reinforced by the imposition of a not insignificant period of Community Service Work to be undertaken pursuant to an additional condition imposed. Given my observations concerning the objective seriousness as found, I consider it appropriate to deal with the most serious matter by way of an Intensive Corrections Order. I consider having regard to the findings made and the state of the authorities and particularly the Attorney General's statement on the enactment of the new legislation that there is a proportionality between the findings made about the objective seriousness of the offending and the other considerations in this sentencing exercise. If I am wrong about that there are always some cases where it is appropriate to extend an offender a considerable level of leniency both in terms of the length of the sentence and the mode of it being carried out. I have given consideration to the decision of Dinsdale v R (2000) 202 CLR 321 at para 68 in which Kirby J held that the Court sentencing discretion permitted the Court to take into account peculiar circumstances of the case which arouse a measure of mercy in the particular case. King CJ in R v Osenkowski (1982) 30 SASR at 212 and 213 also acknowledge that there must be a place for the exercise of mercy or leniency where that leniency in the particular stage of the offender's life might lead to reform here to the extent that there was reform necessary. Much of the reform here has been already undertaken by the offender in the community. It is difficult to see how her moral or psychological progress towards rehabilitation would be improved by incarcerating a vulnerable young woman like her with the kind of people with whom she would likely to be incarcerated. I take those decisions that I have referred to not as requiring a sympathetic approach leading to mercy per se but rather one where a lesser sentence might result where the need for rehabilitation is taken into account as part of the overall instinctive synthesis required and one which is required in this case. 21. In R v JW [2010] NSWCCA 49 at 177, Spigelman CJ with whom Alsop P, McClelland CJ at CL and Howie and Johnson JJ agreeing on that point held that there are circumstances in which the protection of the community is best served by exercising a degree of mercy where it appears that the prospect of a particular offender re‑offending may be aggravated rather than diminished by requiring the offender to serve a custodial sentence. There is no overt evidence that Ms Raymond's prospects of rehabilitation would be diminished by her serving full time imprisonment but given the steady work of this Court and this particular sentencing tribunal I am safely able to draw an inference that somebody like her would go backwards rather than forwards if she was in prison. This would not be as a result of the restraint of her liberty, but the kind of people that she would be mixing with and necessarily learning from. 22. Stand up Ms Raymond. In relation to the offence of drive manner dangerous causing death you are imprisoned for a period of two years commencing today on 15 March 2019 and expiring on 14 March 2021. That period of imprisonment is to be served by way of an Intensive Corrections Order. I impose the standard conditions that you be of good behaviour and that you accept supervision of Community Corrections while ever they require you to be supervised by them. I impose an additional condition pursuant to s 73A that you undertake as a condition of that order 400 hours Community Service Order and in relation to that you need to report to the Wollongong Community Corrections within seven days. I accept and have taken into account that Ms Raymond has been assessed as suitable for Community Service Work. In circumstances where she will be disqualified from driving for a long time that conditions will have a significant punitive effect on her in the community over and above the effect of having a period of imprisonment hanging right over her head. Additionally she is disqualified for the automatic period of three years and that disqualification should date from the date of her suspension which was 25 May 2018. In relation to the fail to stop matter I also impose the automatic disqualification of three years and it is backdated and is to commence from the same date as I have just indicated. In relation to that matter Ms Raymond you are convicted, you are released for three years on a Community Corrections Order with a condition that you be of good behaviour and a condition that you accept the supervision of Community Corrections for the period that you are required and I impose an additional condition that you comply strictly with the disqualification and are not to be behind the wheel of a vehicle during the currency of that order. Pursuant to s 166 of the Criminal Procedure Act I am going to sentence the offender for the low range PCA. In relation to that matter the disqualification will be the automatic period of six months which dates from 25 May 2018. Additionally a Community Corrections Order of three years in identical terms is imposed for that matter. The structure of the sentence is that the two years imprisonment by way of ICO is the maximum period available for that particular disposition. I have intentionally imposed Community Corrections Order, for a longer period of three years so that Ms Raymond is bound over for a lengthy period to protect the community and to make out the criminality in the other two matters that is not subsumed in the principal offence. 23. Thank you everyone for being so dignified. Ms Raymond you are going to have to sign the various pieces of paper in the office before you go. I think the family know this but personally I feel very sorry for you. I am just going to adjourn. ********** 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: 20 November 2019