District Court New South Wales Medium Neutral Citation: R v Meadows [2019] NSWDC 712 Hearing dates: 21 November, 2019 Date of orders: 28 November 2019 Decision date: 28 November 2019 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: 4 ½ years imprisonment NPP 2 years 3 months, disqualification 2 years Catchwords: CRIMINAL LAW – Sentence – Form 1 - Reckless grievous bodily harm – Use unregistered motor vehicle - Unauthorised entry – History of abusive relationships – lengthy criminal history –Failing to stop Legislation Cited: Crimes Act Crimes (Sentencing Procedure) Act Road Transport Act Motor Accident Compensation Act Cases Cited: R v. Millwood [2012] NSWCCA 2 R v Fernando (1992) 76 A Crim R 58 Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR Category: Sentence Parties: The Crown Emily Eve Meadows Representation: Director of Public Prosecutions – The Crown Ms. S. Anderson – The Offender File Number(s): 2018/291164 Judgment Introduction 1. Emily Eve Meadows ("the offender") appears for sentence on one charge of recklessly causing grievous bodily harm in breach of section 35(2) Crimes Act 1900. The maximum penalty is 10 years imprisonment. There is a standard non-parole period of four years. In addition to that offence there are two matters to be dealt with by way of the form one procedure. The first of these is a breach of section 52AB (2) Crimes Act of failing to stop to give assistance after driving a vehicle involved in an impact occasioning grievous bodily harm knowing or reasonably ought to have known that the vehicle was so involved. The maximum penalty for this offence is seven years. The second form one offence is a breach of section 154F of the Crimes Act of stealing a motor vehicle which carries a maximum penalty of 10 years imprisonment. 2. The agreed facts will be set out below. At the outset however it should be noted that the three offences are closely linked. Firstly the offender stole the motor vehicle which belonged to the victim, the offender then ran over the victim causing grievous bodily harm, and the offender then having caused the victim to be in a state of severe injury, left the scene without providing any assistance. 3. In regards to the form one procedure it is important that the focus remains on the principle offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community's entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ. 4. There are also two related offences of using an unregistered motor vehicle in breach of section 68 (1) Road Transport Act and of using an uninsured motor vehicle in breach of section 8(1)(a) of the Motor Accident Compensation Act. In each case the maximum penalty is a fine of 50 penalty units. 5. The offending occurred on 23 September 2018 and the offender was arrested on that day and has been in custody ever since. That is a period of approximately 14 months. That period of custody is solely referable to this offending. The start date of any term of imprisonment will be 23 September 2018. 6. The offender was born in 1979 so that she was 39 years old at the date of offending and is presently 40 years old. More detail as to the background of the offender will be set out when dealing with the subjective case. 7. The agreed facts are shortly stated and it is simpler to recite them rather than to seek to summarise them. Agreed facts 1. The offender and the victim David Swift (victim) are well known to one another. The offender and the victim had been involved in an ongoing dispute over a motor vehicle for several weeks leading up to the offence. 2. The victim had loaned the offender the motor vehicle, a Kia Sportage with QLD Registration xxxEYI, however the offender had refused to return the vehicle. On the 19th August 2018 the victim spoke with the Tweed Heads Police about the issue and it was recorded as a civil dispute. 3. At 3 pm on the 23rd September 2018 the victim attended the offender's address at 122 Kennedy Drive Tweed Heads West. The victim entered into the property area where the offender's house is including gaining unauthorised entry into the private courtyard area of the unit. The two became involved in a verbal argument over the ownership of the vehicle. The victim yelled at the offender in an aggressive and angry way saying words including but not limited to "You stole my fucking car you junkie" and "give me back my keys" before swinging an object at the front window of the townhouse breaking windows as a result. 4. The offender departed the townhouse and entered her garage where she got into the driver's seat of the vehicle and started the engine. As she did this the victim attempted to enter the vehicle via the rear passenger door. The offender accelerated in reverse causing the victim to become caught under the vehicle. The victim was dragged underneath the vehicle as the offender reversed onto the common driveway. The vehicle briefly came to a stop before the offender began accelerating slightly towards Kennedy Drive. Due to the victim's body being stuck underneath the vehicle it was prevented from continuing to the roadway. 5. The offender revved the engine harshly causing the tyres to spin on the victim's torso enough so that the vehicle could drive over the victim. The offender drove away heading eastbound onto Kennedy Drive leaving the victim lying on the driveway directly outside the offender's garage. Witnesses provided assistance to the victim and contacted emergency services. The victim was conveyed to hospital in a critical condition. 6. At about 5.40 pm on the same date the offender was seen by police driving the victim's vehicle on Kennedy Drive Tweed Heads. Police stopped the vehicle at which time the offender was placed under arrest and subjected to a breath test which returned a negative result. The offender was taken to Tweed Heads Hospital where samples of her blood and urine were taken. These samples returned a positive result for the presence of methamphetamine and cannabis. 7. The offender was then taken to Tweed Heads Police station where she participated in an ERISP. During the interview she made admissions to being the driver at the time of the incident. The offender initially denied hitting the victim with the vehicle. She then stated "I might have given him a little shunt from behind" before denying that she hit the victim with the vehicle in the manner alleged by police. 8. As a result of the incident the victim received facial fractures, cervical C4 fracture, fractures to the ribs, left sided pneumothorax, shattered pelvis, internal bleeding, severe cuts, abrasions and skin loss. 9. Due to a combination of his injuries causing respiratory failure the victim was placed on full life support. The victim was hospitalised for a number of weeks due to his injuries. The victim has since passed away due to an unrelated illness. Objective seriousness 1. The submission for the offender was that this offending should be assessed as being at the low end of the mid- range of objective seriousness. The Crown submission was that any assessment should be at a higher level without specifying whether that meant simply mid- range or high range or somewhere in between. 2. The factor which assists the victim in considering objective seriousness is the unauthorised entry by the victim into the offender's house, the victim's aggressive behaviour that then occurred including throwing an object causing two adjacent windows of the offender's house to smash. Exhibit 3 is a series of photographs which shows two smashed windows. It was after this that the offender left the vicinity of the smashed windows and entered the garage where she got into the driver's seat of the vehicle belonging to the victim. It is not an agreed fact however the submission of the offender that she was seeking to flee is a logical one. I am prepared to accept that is what the offender was doing. Just why the victim tried to get into the rear passenger door is not clear nor is it clear whether he entered the garage from the door into the garage near the front of the car or from the garage door near the rear of the car and query just what difference that might make, if any. The facts do not reveal whether the offender was fleeing because she feared violence from the victim or whether she was fleeing to ensure that she retained the motor vehicle. The most favourable view of the facts for the offender is that the female offender sought to flee from the aggressive male victim for safety's sake. However upon the offender reversing the car the victim was caught under the vehicle. He was rendered defenceless and powerless at that point. Any potential violence by him had been neutralised. The offender did not then stop the car or exhibit any concern for the victim. After the point in time in which the victim was no longer a threat the offender reversed onto the common driveway dragging the victim. The offender then stopped the vehicle having completed the reversing manoeuvre and then began accelerating slightly away. The victim's body being stuck underneath the vehicle prevented further progress by the offender. Rather than stop the car the offender revved the engine harshly causing the tyres to spin on the victim's torso sufficiently to allow the vehicle to drive over the victim. These actions resulted in the serious injuries recounted above. 3. The dispute that had been ongoing between the offender and victim had extended from at least 19 August 2018 to 23 September 2018. Throughout that time the offender had retained the victim's motor vehicle. It was on 19 August that the victim reported the matter to the police only to be told it was a civil dispute. This fact is really just background because the aggressive conduct of the victim in the first instance on the day of the offence is no more justifiable by the car dispute than the total subsequent conduct of the offender. From the point in time when the victim was caught underneath the car the offender's behaviour is almost entirely inexcusable. The qualifier of "almost" is used to allow for the possibility that there was an immediate flight response on the part of the offender a view supported by the psychology report (part of exhibit 1). The nature of this offence however is one which puts at peril the lives of others and in this particular case quite clearly placed the life of the victim at significant risk. The involvement of the offender is self evident and even allowing some latitude in interpreting events, from the point in time where the car had been reversed dragging the victim to then revving across the top of his body, the offender's conduct is extremely dangerous, or more to the point for this offence, reckless, if not callous. On the facts as agreed there are at least three if not four points in time at which the offender could have stopped this progressive injuring of the victim. It could have been done when the victim was first caught underneath the car; it could have been done when the car had finished reversing and was about to start moving forwards; it could have occurred at the time the car was travelling over the body of the victim or it could have been done at the point at which the offender had completed running over the victim. It is an element of the s52AB offence that the victim knew or ought reasonably have known the victim was grievously injured. 4. As with my observation about the possible flight instinct of the offender I also acknowledge that there is in my above comments an element of the benefit of hindsight. I note also that in the psychology report referred to below the offender claims to have been in a state of panic which may well be the case. The report goes on to say that the offender did not realise she had run over the victim, a view I do not accept. Even accepting the offender panicked, there is about this offending a callousness and total disregard of the well-being of another human. True it is that human has just broken two windows of the offender's house but any sense of proportionality and reasonableness would see this offending cease at a time prior to when it did. My view is that the assessment of objective seriousness places this conduct well into the mid- range. Subjective case 1. In addition to the photographs referred to above (exhibit 3) the offender relied upon a psychological report of Diana Grujoska dated 2 November 2019, a letter of her mother and a letter of attendance from Corrective Services indicating the offender in January and February 2019 attended five different sessions in relation to remand addiction sessions. Also tendered was a newspaper extract relating to the murder of David Mitchell in 2012. The relevance of that is that person is mentioned in the psychologist report. At paragraph 21 of that report the offender says her earlier relationships have caused her anxiety and depression which was exacerbated by the grief experienced when her best friend David was murdered approximately seven years ago. The newspaper extract is therefore corroborative of the history and supportive of the likelihood of the well-being of the offender being adversely affected by various events in her life. The psychology report 1. The background of the offender is set out in some detail in this report. The offender is an only child but has a half-sister and half-brother from her mother's second marriage. I note in passing her mother attended at court when this matter was heard. Her father was abusive physically and her parents separated when she was two. Her mother was an alcoholic leading to the offender living with another family for about a year sometime between the ages of six and 12. At 13 the offender left home saying that living at home was too difficult with her mother. The offender attended high school for approximately two years but did not apply herself but has subsequently obtained her year 10 certificate whilst in custody (presumably this current custody). She has also obtained a certificate III in business and completed study in a digital literacy course again whilst in custody. Outside of custody she completed half of a beauty related course. 2. A feature of this offender's life is abusive relationships. The first relationship saw her being introduced by her partner to heroin at age 16. He was physically violent to her. They had a son when the offender was aged 19. She abruptly left this relationship leaving with her second partner of significance who appears to have been what the offender described as a good man. That relationship lasted for three years when the offender commenced a third relationship with a man named Phil who ran a caravan park. Initially this relationship seemed positive but ultimately became one where the offender was the target of criticism and degradation. A child was born to this relationship though that child and the first child were at some point removed by the authorities due to the offender's drug use. The child of Phil was returned to his care and initially the other child remained with the authorities though ultimately that child was returned to the custody of the offender. 3. The offender states she has been on the disability support pension for approximately 10 years due to her mental health issues stemming from domestic violence trauma and her reaction to the death of David. 4. This history of course is untested. It relates matters indicative of long-term drug use. The offender herself acknowledges her drug use from age 16. In reading the history it is difficult not to think that the offender has put her history in a more favourable light in so far as the role her own conduct has played in her misfortune. In saying that I am not suggesting that she has not suffered domestic violence, nor am I suggesting that she is somehow at fault for that violence; my observation is directed to a lack of insight into the role that her drug use has had on her decision making. 5. A number of traumatic experiences have already been recounted. Paragraph 19 and following of the psychology report set out some more. The offender was punished by being hit by a ruler or belt as a child and was told to run down the road naked and also required to make food for her stepfather while she was topless. She alleges being raped at the age of 12. As already noted domestic violence was suffered at the hands of her first and third partners and the atmosphere generated by her father and stepfather was harmful. Her mother was sadly not always of the assistance she could have been given her alcoholic state. The offender's recourse to drugs could not be viewed as unexpected in all of the circumstances. 6. On a more positive note, the offender has sought treatment of various types on and off for the last five years. The attendance letter forming part of exhibit 1 suggests she has sought to continue gaining treatment. Further, the offender has reconnected with her mother and upon her release from custody intends moving to live with her mother near Coffs Harbour. 7. In the assessment of the psychologist, on clinical scales reflecting current symptoms requiring treatment, the offender had significant elevations in anxiety, Dysthymia, alcohol dependence, drug dependence and post-traumatic stress disorder. The offender's scores reflect someone with a history of alcoholism and drug dependence leading to challenges in managing impulses and personal consequences of this behaviour. Traumatic experiences have caused the offender to suffer from intense fear and feelings of helplessness. The scores reflect a clinical syndrome of major depression and it is said she experiences a severely low mood. It is said there are difficulties with sleep and suicidal ideation and a feeling of worthlessness. In light of the history of the offender this assessment appears to me to be well-founded. 8. In terms of the way forward the psychologist talks of a range of treatments which may assist the offender and sets out how this could occur both in the community and if incarcerated. So far as this judgment is able to do so those programmes will be recommended. 9. I have read the letter of the offender's mother dated 11 November 2019. It sets out a family history consistent with the other material of the offender and speaks fondly of her daughter. Submissions and discussion 1. For the offender helpful written submissions were handed up. But for two matters the Crown fairly stated that they took no issue with those submissions. Those two matters were the assessment of objective seriousness and an issue that relates to offences outstanding in Queensland which are of no significance in these reasons. The ultimate point of difference between the Crown and the offender is not whether or not the section 5 threshold of the Crimes (Sentencing Procedure) Act ("the Act") has been crossed but rather what the appropriate length of the non-parole period and head sentence should be. 2. The offender places significant weight quite justifiably on her personal background. Paragraph 69 of R v Millwood [2012] NSWCCA 2 was relied upon where Justice Simpson said: I would reject the proposition contained in the first sentence. I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been "tragic and dysfunctional". That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders. 1. The proposition being rejected in the first line of that passage was the submission that there was little in the circumstances of the respondent that assisted him by way of mitigation. Those circumstances included being unable to resuscitate his mother as she was dying from a heroin overdose. The circumstances of the offender in our present case are such that they do assist her by way of mitigation. The whole of paragraph 69 is applicable to our present case. 2. The parties are agreed that by reason of section 25D of the Act the offender should be accorded the 25% discount having entered her plea in the Local Court under the early appropriate plea of guilty system. 3. The offender has a lengthy criminal history consistent with long-term drug use extending for some 20 years. Apart from one matter involving the detention of a child for four hours that offending is almost if not entirely minor and is of dishonesty matters. The record is such as to deny her any leniency for having a good criminal history. I nevertheless take into account the nature of the offending and the history of addiction and also note that whilst in custody for now some 14 months there is no disciplinary matter against her. 4. I note paragraph 29 and 30 of the psychologist's report. The offender states she did not realise she had run over the victim and states that the offence was an accident. I do not accept those assertions in light of the agreed facts. These statements give some concern as to the degree of insight the offender has into her behaviour and also on questions of remorse and contrition. That said however in those same paragraphs is recorded what appears to be unreserved regret and remorse. I also note that the agreed facts state that a test following arrest showed traces of cannabis and methamphetamine in the offender. She was tested for alcohol and was found not to be over the alcohol limit for driving but there must be some question as to her state of being at the time of the offending. The relevance of this is that it may impact upon her recall of events however that was not a submission that was made and it is clear that she does recall the events as she says it haunts her. The attempts at rehabilitation by the offender in custody albeit limited to 5 sessions over a 14 month period, coupled with her good behaviour in prison do nevertheless suggest that efforts are now being made to distance herself from the lifestyle she has clearly engaged in for a long time. Despite some reservations I have expressed I will take into account favourably to the offender the remorse and regret recorded in the psychological report. 5. The offender submits that there should be a finding of special circumstances based on the fact that already the time spent on remand is the longest period of custody experienced by the offender; the prospects of rehabilitation referred to just now; and the need for supervision upon release. There was no argument against this by the Crown and in my view this is a case where a finding of special circumstances should be made. 6. It remains to make an assessment of an holistic and instinctively intuitive kind as to what is the appropriate sentence for this matter. This is a matter where the form one matters are significant and intrinsically related to the matter being sentenced. I am conscious of those matters in determining this sentence in particular the failure to stop to give assistance. That offence has a maximum sentence of seven years and is a significant matter. 7. I am also necessarily guided by s3A of the Act setting out the purposes of sentencing. In particular there is a need to punish this kind of behaviour and to denounce it, to protect the community and to promote the rehabilitation of the offender. 8. Given my finding as to the objective seriousness but bearing also in mind the subjective matters and seeking to ensure there is a proportional punishment for the offence, and taking into account the matters on the form one and bearing in mind the purposes of sentencing set out in section 3A, my view is that there should be a non-parole period of 2 years and 3 months. Such a sentence in my view is necessary to reflect the gravity of this case and in particular its high degree of recklessness resulting in the serious injuries suffered by the victim. There will be a balance of term of two years and three months. The reasons for varying the statutory ratio have been stated above. In arriving at the head sentence I have taken into account the 25% discount for the plea of guilty. 9. This would leave the two related matters where only a fine is available as a penalty and I propose to deal with both of those matters by way of section 10A of the Act. 10. In relation to the disqualification period which will be imposed in consequence of Section 35 (2) offence I will impose the minimum period of two years. The basis of the reduction is that it is likely to aid the rehabilitation of the offender to have the ability to drive sooner rather than later. Orders 1. Emily Eve Meadows of the offence under section 35 (2) of the Crimes Act you are convicted and sentenced to a term of imprisonment with a non-parole period of 2 years 3 months commencing 23 September 2018 and expiring on 22 December 2020 and a balance of term of two years and three months expiring 22 March 2023. 2. In respect of the offence under section 68 of the Road transport Act I proceed by way of section 10A of the Act so that there will be a conviction recorded but no further penalty. 3. In respect of the offence under section 8 of the Motor Accident Compensation Act I proceed by way of section 10A of the Act so that there will be a conviction recorded but no further penalty. 4. In respect of the section 35(2) offence I impose the minimum period of disqualification of two years to commence on 23 December, 2020. ********** Amendments 29 November 2019 - corrected paragraph numbering 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: 29 November 2019