STATE OF TASMANIA v BRAEDON ISAAC MALES 28 SEPTEMBER 2023
COMMENTS ON PASSING SENTENCE PORTER AJ
Braedon Males, the defendant, has been found guilty by a jury of one count of causing grievous bodily harm by dangerous driving. I am also dealing with his plea of guilty to a summary charge of using a vehicle in contravention of vehicle standards, a regulatory offence. The facts are as follows. The charges arose out of a motor vehicle accident that happened on 22 December 2020 at around midday, on Boyer Road, a road that runs on the northern side of the Derwent River between New Norfolk and Bridgewater. It is generally a windy and narrow road, consisting of two lanes. For a large part of the distance, there are continuous double white lines marked on the roadway and the relevant speed limit was 80 kilometres per hour. It had been raining in the area at the time and the roadway was damp. The defendant was driving a sedan in a general easterly direction from New Norfolk towards Bridgewater. Not far from the Bridgewater end, in negotiating a left hand bend, he drove partially on the incorrect side of the road and collided with a sedan vehicle being driven in the opposite direction by Jackie Williams. Ms Williams had her young son seated in the rear of her car. The force of the collision was considerable, causing both vehicles to travel quite a few metres from the point of impact, with Ms Williams’ vehicle being spun around to generally face the direction from which she had come, and off the roadway into a gravelled layby area. The corner in question had an internal radius of about 210 metres and its configuration was such that there were five separate identifiable arcs within that overall corner distance. That meant that a driver negotiating the bend had to make continual input in order to get around the corner. The collision happened just to the easterly side of the apex of the corner; that is, as the defendant exited it and I accept the expert evidence that the defendant did not suddenly cross over the double white lines into the pathway of the oncoming vehicle but effectively negotiated the whole of the corner partially on the incorrect side of the road. The actual point of collision was identified as being slightly to the northern side, or the left, of the centre of the lane in which Ms Williams was driving. Ms Williams would have had very little time to react, but did so, starting to steer to the left at the last minute to avoid the collision. Ms Williams has no actual recollection of the collision itself; the last recollection she has is of the car being driven by the defendant being in her lane. The force of the collision was such that it caused the defendant’s vehicle to behave in such a way that both sides of the car came in contact with the roadway, although there is no evidence it rolled over. The vehicles basically contacted front right corner to front right corner with an overlap of about 40%. I am satisfied that the defendant was travelling significantly in excess of 80 kilometres per hour but not greater than 138 kilometres per hour, at which speed the defendant would not have been able to negotiate the corner at all; his car would have rotated in an anti-clockwise direction before impact, and the type of collision that occurred, would not have occurred. I accept the expert evidence that there was no suggestion that the defendant braked or took any other evasive action before impact.
In addition to negotiating the corner with a fair part of the car over the double white lines and driving at an excessive speed, the defendant was found to have 0.16 milligrams per litre of methylamphetamine in his system based on a blood test taken about three hours after the accident. On the expert toxicologist’s evidence, taken back to the time of the accident that would mean a “somewhat higher” level at the time of the accident; around 0.20. Relevant effects of ingestion of the drug on driving behaviours include erratic driving, weaving, speeding and drifting off the road. Generally, there can be attention and co-ordination difficulties and disorientation. Aggression is a potential problem, as is an increased chance of taking unnecessary risks and being over confident in driving skills. The concentration of 0.16 is the median figure found by FSST in reported motor vehicle accidents where the drug is found to be involved. The defendant gave evidence. He first said that he had taken the drug on the weekend before the accident, which was on a Tuesday. When pressed in cross-examination he said that it would have to have been on the Saturday night. Given the expert evidence in this respect, the amount ingested at that time must have been very considerable indeed – something in the order of 2.6 milligrams per litre. A blood level of 2.6 milligrams per litre is the highest the FSST expert had seen in a road traffic context in his 11 years of experience. Alternatively of course, it must have been a lower amount taken much closer to the time of the accident than the defendant claimed. The defendant denied taking a large amount and said he did not remember experiencing any of the expected effects of the drug. When it was put to him that he was clearly affected at the time of the accident, he said that he did not think he was affected at all. Whether or not he took a very large amount on the Saturday night or a smaller amount much closer to the accident, I am satisfied to the requisite degree that given the level, he would have been feeling some of the effects that are detrimental to driving skills. To what extent, I cannot say. I am not able to be satisfied it had any significant impact on his ability to drive. More generally, in my view the evidence established to the requisite degree, that the speed and the manner of driving the subject of the charge was not an isolated event in the course of the defendant’s journey from New Norfolk. There was evidence from a witness who was driving towards New Norfolk shortly before the time of the collision. He said he was driving through some right hand sweeping bends and a black car came across the road and nearly hit him, coming “pretty close” to his driver’s side mirror. He said that he was nearly sure that it was the same make of the car the defendant was driving because his friend had one almost exactly the same. After the witness had arrived at his destination not too far away, he heard sirens and wondered whether it was something to do with the car that had passed him. The coincidence of the make and colour of the car, and timing involved, satisfies me that this was the defendant. As to the summary offence, the facts are that the vehicle he was driving, which belonged to his partner’s mother, had two front tyres devoid of tread on the innermost sections, and the right and left rear windows were tinted to below light transmittance standards. Any effect of these things on the occurrence of the collision was disclaimed by the accident investigator.
Both Ms Williams and the defendant were seriously injured in the collision. When taken to the hospital Ms Williams was found to have fractures of the radius and ulna in her left arm and a fracture dislocation of two bones in the middle of the foot. She also had a large laceration to her right arm. Additionally, there was a fracture to the C7 vertebrae and a small haematoma in the left part of her skull. Surgery was required on the arm injuries because a plate in her arm had previously been inserted sometime before due to injury from another motor vehicle accident. Otherwise the injuries were treated conservatively. I have a lengthy victim impact statement of Ms Williams, dated 9 August 2023, the whole of which I have read and take into account. I will briefly summarise it here. Ms Williams says she was independent providing for herself and three children, but her life has been altered entirely. She describes the shock and distress at the time of the accident, being particularly concerned for the wellbeing of her child in the rear seat. She was terrified. She was in great pain during her time in hospital and reacted badly to the high dosages of pain relief. Her mental state deteriorated. It seems the most prominent of the injury she suffered in terms of its effect is the injury to her foot. She was wheelchair bound for a while and had to use alternative suitable accommodation. She required carers to look after her. There was a lengthy and difficult period of rehabilitation. She had to give up her employment but has fortunately found alternative work despite the choices being limited to her because of her disabilities. She has struggled financially. It took a considerable period of time to be settled into a more suitable home. There is permanent damage to her foot and she is not able to run or walk properly. There is also scarring to her left knee, right shoulder and left forearm of about which she is self-conscious. She continues to find small bits of glass and debris in her skin. She struggles to sleep and has nightmares ultimately lending to psychiatric and psychological assistance. She has been diagnosed with a major depressive disorder, PTSD and anxiety for which medication has been recommended but she is reluctant to take that course and she continues to take analgesics.
The defendant is now 32 years old; 29 at the time. He has a recorded history of offending that includes eight speeding infringements between 2011 and 2016, together with other traffic infringements which suggest some disregard for the road rules. Prominently, in November 2018, on charges of trafficking in a controlled substance, he was sentenced to seven years’ imprisonment backdated to 15 January 2017 with a non-parole period of half. He was released on 20 July 2020 with a parole period expiring on 19 January 2024. The present crime was committed five months after his release. There was some discussion in these sentencing proceedings about the extent of the Parole Board’s knowledge of this matter, with contrary assertions being made. Whatever the true situation, the fact is that the Board did not issue a warrant for his return to prison until 3 August 2023, three days after the defendant’s trial had ended and the date to which I had adjourned the sentencing hearing, having granted him bail in the meantime. His parole was then suspended, but at this time it has not been revoked. It follows that he has been in custody solely pursuant to the Parole Board warrant from 3 August to 14 September, when I remanded him in custody. The Parole Board is still to make a decision as to whether to revoke parole and I am told it is awaiting the outcome of these proceedings. If the defendant’s parole is revoked, s 79(5) of the Corrections Act means that the period between 20 July 2020 and 3 August 2023 will not be taken into account in the determination of how much of his sentence remains to be served in prison unless the Board otherwise directs. I was told that the defendant has been advised that such a direction is unlikely were parole to be revoked. There is some circularity in all of this. The Board might be waiting to see whether I impose an actual custodial term, but given that revocation has not occurred, I am not dealing with established fact, and am obliged to take into account the possibility that the defendant’s criminal conduct will lead to him serving a little over three years actual imprisonment, having already spent that time serving the sentence in the community. Otherwise, I approach the sentencing task in the usual way. I note there apart from the commission of this crime, there is no recorded offending of any description during the time the defendant was on parole. As to his other personal circumstances, I have the benefit of a pre-sentence report dated 4 September 2023, and of counsel’s submissions. The pre-sentence report is in very positive terms. Particularly relevant matters include the following. The defendant has been in a relationship with a pro-social partner for the past three years. She is employed and has one daughter who the defendant treats as his own, being described as a very engaging caring father. He has one son from a previous relationship. He was living with his paternal uncle and aunt who are pro-social and supportive. He and his partner hope to buy a house and live together in the future. He left school before finishing year 11 and took on various forms of labouring work and has some trade qualifications. In 2022 he enrolled in the University preparation program with a view to studying psychology or social work, having been encouraged to do so by his own psychologist. Anxiety saw him unable to continue with this but he has established a car detailing business and wants to return to his study goals at a later date. He started this business in 2021 with the encouragement and experience of his partner who is self-employed, and seems to earn a reasonable but modest income from it. I note he was allowed to continue driving. He completed alcohol and drug counselling with Holyoake and has been offered training and voluntary work as a peer worker with that organisation due to his level of engagement with its counselling program. He has demonstrated stability during his more than three years on parole and responded positively, engaging in a meaningful way with his supervisor, psychologist, Holyoake counsellors and with organisations involved in him attempting to build his relationship with his son who was born while he was in prison. The defendant was severely injured in the accident, as I have noted. He required intensive care and specialist orthopaedic surgery in Melbourne due to numerous unstable pelvic factures and other injuries. He was in hospital for a month and subsequently readmitted several times due to potentially life threatening complications including bowel obstructions. The author of the report notes a submission to the Parole Board in June 2021 when charges were laid, noting the severity of his pelvic damage and multiple injuries including 12 to 16 complex pelvic factures, bowel damage necessitating surgical removal of part of the bowel, broken ankle, cracked vertebrae, severed coeliac artery, chest and stomach injuries, swelling of the large intestine, narrowing of the small intestine and numerous cuts bruises and grazes. A later report noted that he was severely under weight and unable to tolerate fibre. Counsel supplied further information about his medical condition. He is on an opioid to manage his pain. In the custodial setting, this is administered by injections rather than orally, and that method of administration is not as effective. He continues to have issues with bowel obstruction and needs to be on a low fibre diet. If he is not able to manage this condition and limit, if not avoid, bowel obstructions, the only further option is further surgery to remove parts of his bowel which, because of previous removal operations, would result in a colostomy. The custodial diet does not accommodate his need for a low fibre diet and the management of his medical circumstances generally is difficult in that setting.
In terms of his attitude and response to his offending as described in the report, it seems the defendant reported the matter to his supervising officer at the time, and that report included his methamphetamine use. More importantly, he is said to be remorseful concerning the impact on Ms Williams and her child. Shortly after the accident the defendant was visited by his supervising officer in hospital who noted that his concern for the victim and her child were evident, and that he was struggling and emotional. He has spoken with his supervising officer and his psychologist on many occasions about the impacts of the accident on the others as well as himself, and about his desire to learn from what has happened. He says that he is very sorry for what Ms Williams has been through, and what might have happened, plays on his mind. Evidence of remorse also comes from the defendant’s psychologist whom is reported as noting expressions of remorse and a sense of guilt. A little oddly, his remorse now extends him to taking the matter to trial, something he seems to regret. In sentencing terms, the trial means he does not get any benefit from a plea of guilty. In addition, the defendant has written a letter to the Court. In it, he says he understands the gravity of his actions and the pain they have caused; he is deeply remorseful. He understands the profound impact on all involved. He says that he is deeply saddened by the injuries and emotional trauma suffered by Ms Williams and he says that he sincerely hopes for her recovery. He notes the ongoing psychology appointments to help him cope with the guilt and remorse that he feels. He accepts responsibility for his actions and is ready to take the necessary steps to ensure he does not cause such harm again; he is committed to make amends in any way he can. He asks me to consider his genuine remorse, his efforts towards rehabilitation and his commitment to making those amends. There is nothing to suggest these statements are not genuine.
This is a serious matter with some unusual considerations. The need for a stern response to cases of dangerous driving causing death or grievously bodily harm is well established. The accident and its aftermath caused great harm of a long lasting nature to Ms Williams. The risks of more serious injury or even death were high. That her plight was caused by the defendant’s dangerous driving cannot be diminished. Of itself, it is an aggravating factor that the defendant was on parole at the time. That the defendant was driving with methamphetamine in his system when he was on parole for trafficking in that drug should also not be overlooked. Counsel for the defendant has squarely put the proposition that a wholly suspended term of imprisonment is justified in all of the circumstances. Counsel for the State accepted that the defendant’s personal circumstances indicate that a suspension might be appropriate but not such as to justify a total suspension. The defendant was said by Community Corrections not to be suitable for home detention. Of course, I need to weigh up all of the competing factors and considerations in the balancing exercise. In all of this, there are two aspects of the defendant’s circumstances that significantly influence my thinking. The first is that he himself suffered very serious injuries in the accident with lifelong adverse effects of some severity, and which carry the potential of a colostomy, with all that that entails. The law is that injuries to an offender that directly result from the commission of a crime can be regarded as constituting punishment. Mitigatory value arises in a number of ways. Injuries serve as a blunt reminder of the person’s criminal conduct and severe injuries may serve to achieve deterrence and retribution; they may also make imprisonment more difficult than for a person of ordinary health: see for instance R v Barci (1994) 76 A Crim R 103 at [20] – [27]; Kaisuva v The Queen [2021] NSWCCA 326 at [113] and Ashley v Western Australia [2017] WASCA 131 at [53]. The second thing is that in the period to 3 August 2023, the defendant was allowed to remain in the community serving a term of imprisonment. In that time he has established a relationship, a small business for himself and the opportunity to help others through voluntary work which he wants to pursue. Delay is not of itself a mitigating factor, but it may be significant where, as here, the offender has demonstrated rehabilitation. It is at best doubtful whether delay simply caused by a plea of not guilty and the resultant trial process can be used to counter this established principle. Delay and changed life circumstances and attitudes can give rise to considerations of fairness to the extent of playing a significant if not a dominant role in fixing an appropriate sentence. The situation is acute in this case because the defendant might have been returned to custody when charges were laid or even perhaps earlier, subject to his medical treatment, but was not. I intend no criticism; that is simply the fact of the matter. I accept that he is generally remorseful to a high degree and has very substantially rehabilitated himself. I also take into account that he has been in custody as a result, one way or another, of this crime for nearly two months, and risks revocation of parole, the consequences of which I have already outlined. This sentencing exercise is not free of difficulty. In the end I have reached the view that a significant term of imprisonment but wholly suspended on a number of conditions including performing the maximum hours of community service that can be ordered, is the appropriate sentence.
Mr Males, I have set out all of the relevant facts and the matters that need to be taken into consideration. An order of imprisonment is necessary to mark the seriousness of your offending, but in the overall circumstances of your case, I will suspend the execution of the whole of it on conditions, one of which will be community service so that there is some more immediate consequences of the sentence. You are convicted of the crime and sentenced to 20 months’ imprisonment the execution of which is wholly suspended on the conditions you commit no offence punishable by imprisonment for a period of three years commencing on the date of your release from prison, and that you perform 240 hours of community service within that three year period. In addition, to achieve what is recommended by Community Corrections, I make a community correction order with special conditions. The period of that order will be three years commencing on the date of release with special conditions that you must during that period:
- submit to the supervision of a probation officer as required by the probation officer;
- undergo assessment and treatment for drug dependency as directed by a probation officer;
- submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer
You will have to report to a probation officer at 3 Terry Street Glenorchy within one clear day of your release from prison. I take the view that a period of disqualification is necessary but it can be short. You will be disqualified from driving for a period of 18 months from the date of release and your licence will be cancelled. I record a conviction and discharge you in relation to the summary offence.