Crowley v Queensland Police Service [2018] QDC 117

DISTRICT COURT OF QUEENSLAND CITATION: Crowley v Queensland Police Service [2018] QDC 117 PARTIES: Melissa Ann Crowley (Appellant) v. Queensland Police Service (Respondent) FILE NO/S: 187/2017 DIVISION: Criminal PROCEEDING: Appeal pursuant to s222 ORIGINATING COURT: District Court at Townsville DELIVERED ON: 15 June 2018 DELIVERED AT: Townsville HEARING DATE: 6 April 2018, 11 May 2018, 28 May 2018 and 5 June 2018 JUDGE: Lynham DCJ ORDERS: 1. Leave is granted to the appellant to add a ground of appeal to the following effect: “The appellant sustained significant physical and psychological injuries as a result of the accident which occurred on 30 September 2015, and those injuries amount to extra-curial punishment and should have been taken into account by the learned Magistrate in sentencing the Appellant.” 2. Leave is granted to the appellant to adduce the evidence in the affidavits of Richard Roger Darnton Watson filed on 4 June 2018 and Robert Michael Walkley filed 1 June 2018. 3. Appeal allowed. 4. Vary the order made in the Magistrates Court at Townsville on 18 August 2017 requiring the appellant to serve one month imprisonment before release on parole in respect to the offence of did drive U.I.L (motor vehicle/tram/train/vessel) by ordering that the appellant be released immediately on parole. -- 1 of 17 -- 2 5. Otherwise confirm in all other respects the orders made in the Magistrates Court at Townsville 18 August 2017. CATCHWORDS: CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE EXCESSIVE - Justices Act 1886 – section 222 – where appellant pleaded guilty to driving under the influence of drugs – where appellant involved in motor vehicle accident – where appellant suffered significant physical and psychological injuries as a consequence of the accident – whether the appellant’s injuries capable of amounting to extra-curial punishment – where appellant sought to adduce further evidence in the form of an affidavit from a medical specialist and a psychologist – whether the sentencing discretion should be re-exercised to take into account the injuries suffered by the appellant in the motor vehicle accident. LEGISLATION: Justices Act 1866 (Qld), s 222, 223 Transport Operations (Road Use Management) Act 1995 (Qld), s 79 CASES: Allesch v Maunz (2000) 203 CLR 172 House v The King(1936) 55 CLR 499 Teelow v Commissioner of Police [2009] 2 Qd R 489 Pavlovic v Commissioner of Police [2007] 1 Qd R 344 R v Spina [2012] QCA 179 R v Clark [2017] QCA 318 R v Noble & Verheyden [1996] 1 Qd R 329 R v Cooney [1998] QCA 149 R v Daetz; R v Wilson [2003] NSWCCA 216 R v Wright (No 2) (1968) VR 174 Ryan v R (2001) 206 CLR 267 R v Hook [2006] QCA 458 R v Galeano [2013] QCA 51 Whybrow v R [2008] NSWCCA 270 R v Howcher (2004) 146 A Crim R 371 COUNSEL: H A Walters for the appellant S Harrison for the respondent SOLICITORS: Connolly Suthers for the appellant Director of Public Prosecutions (Qld) for the respondent Background [1] On 15 December 2016 the appellant pleaded guilty in the Townsville Magistrates Court to five traffic offences. All of the offences arose out of a single vehicle accident on 30 September 2015 on the Bruce Highway at Clement north of Townsville. The appellant was the driver of the vehicle. Her son aged 15, who was a passenger in the vehicle, suffered fatal injuries in the accident. -- 2 of 17 -- 3 [2] In the course of sentencing submissions the Magistrate was made aware that the accident involving the appellant was the subject of a Coroners Court Inquest. The Magistrate, concerned that the findings of the Coroner might be relevant to sentence, adjourned the sentence of the appellant pending the findings of the Coroner being delivered. [3] However, desirous of finalising the matter, on 18 August 2017, prior to the Coroner delivered his findings on inquest, the appellant’s sentencing hearing was resumed. After hearing further submissions the Magistrate sentenced the appellant as follows: Charge Sentence 1 Did drive U.I.L (motor vehicle/tram/train/vessel) 3 months imprisonment; parole release date fixed at 18 September 2017 Disqualified from holding or obtaining a driver licence for a period of 18 months 2 Driving a motor vehicle without a driver licence Convicted and fined $188.00 Fine referred to SPER 3 Driver failed to ensure child 7 years of age or older but less than 16 years old was in a child restraint or suitable seatbelt Convicted and fined $400.00 Fine referred to SPER 4 Possess utensils or pipes for use Convicted and fined $500.00 Fine referred to SPER 5 Fail to properly dispose of needle and syringe [4] By notice of appeal filed on 18 August 2017, the appellant appeals her sentence pursuant to section 222 Justices Act 1866 (Qld) (“the Act”) in respect to charge 1 only. The appellant was granted bail pending appeal on the day of her sentence. The notice of appeal identifies five grounds of appeal, namely: 1. The sentence imposed in respect to charge 1, driving under the influence of a drug, was manifestly excessive. 2. The learned sentencing Magistrate erred in sentencing the Appellant to an actual term of imprisonment in respect of charge 1. 3. The factual basis upon which the learned sentencing Magistrate sentenced the Appellant was inferentially not available to be drawn on the facts before the court. 4. The learned sentencing Magistrate when acting on allegations of fact, which were not admitted and were challenged, could not have been satisfied on the balance of probabilities as to those facts. 5. The learned sentencing Magistrate erred in not considering that the degree of satisfaction required, when considering facts that are not admitted or challenged, varies according to the consequences adverse to the person being sentenced if challenged facts are found to be true. -- 3 of 17 -- 4 [5] In the course of the appeal hearing, there being no objection from the respondent, I granted leave to the appellant to add a further ground of appeal, namely: “The appellant sustained significant physical and psychological injuries as a result of the accident which occurred on 30 September 2015, and those injuries amount to extra-curial punishment and should have been taken into account by the learned Magistrate in sentencing the Appellant.” [6] Whilst not abandoning the other grounds of appeal, in the course of argument it became apparent that the appellant sought to advance principally ground 1 and the additional ground of appeal for which leave was granted to add to argue the sentence imposed was excessive. For reasons which will become apparent, I have proceeded to determine the appeal on that basis. The offending [7] The facts relied upon by the prosecution at the resumed sentencing hearing on 18 August 2017 were outlined to the Magistrate as follows: “... at about 4.30am on the 30 th September 2015 police received information in relation to a single vehicle fatal traffic crash on the Bruce Highway at Clement. The vehicle was a green Toyota Starlet. The driver of the green Toyota was the defendant in this matter. The driver sustained critical injuries and was transported to the Townsville Hospital by emergency services helicopter. At 7.30am on the 30 th September, a sample of the defendant’s blood was taken by Dr Robert [indistinct] at the Townsville Hospital. Upon request from the northern coroner, a sample of blood was forwarded to forensic services, on the 30th November, for analysis. On the 12 th January, a certificate of analysis was issued, stating that the defendant’s blood had returned a reading of 1.3 milligrams per kilogram of methylamphetamine. On the 4th February 2016, the forensic medical officer provided a statement in relation to the blood result of the defendant. The doctor stated that at 1.3 milligrams per kilogram, the defendant had an extraordinarily high blood level of methylamphetamine. Dr Griffiths further stated that the level of the central nervous stimulant – methylamphetamine – in the defendant’s blood at the time of the traffic incident was in a grossly elevated range in which a significant number of deaths have been reported. When questioned, the defendant could not remember when she had consumed the drugs. In relation to the driving without a licence, it was revealed that at the time of the crash the defendant was not the holder of a current driver’s licence. When questioned, she stated she was unaware that her licence had expired. An examination of the vehicle at the time revealed that the 15 year old passenger was not wearing a seatbelt. The defendant stated that she thought the defendant’s other son, who was seated in the front passenger seat, told police that he recalled his brother lying in the back seat prior to the crash conversing on Facebook. The defendant stated that she thought her son was wearing a seatbelt and that she’s usually strict about making sure the kids -- 4 of 17 -- 5 wore their seatbelts. The passenger received fatal injuries from the crash. In relation to the utensils, police at the hospital, medical staff located a clip- seal bag under the bra of the defendant, notified police. As a result of the clip-seal bag being found police attended. They spoke to the sister of the defendant, who had possession of the defendant’s purse, and they also located a capped hypodermic syringe. The defendant couldn’t offer any reason for not disposing of the syringe when they inquired.” [8] The appellant’s driving which resulted in the accident had the unusual feature that the appellant collided with the carcass of a dead horse which was laying on the highway. The circumstances of the accident explained by the appellant’s counsel in sentencing submissions, which were not contested by the prosecution, were as follows: The appellant had been driving from Cairns to Townsville with her two sons. Zachary was in the front passenger seat. Byron was seated in the back. Prior to the accident Byron removed his seatbelt and laid down on the back seat. The appellant was unaware of that. Prior to the accident a semi-trailer travelling north on the Bruce Highway had struck and killed a horse which had escaped from the adjacent forest onto the highway. The horse was similar in colour to the road surface at night time. The horse was left on the highway where it was killed. Because of the road conditions the truck driver was unable to stop and remove the horse carcass from the highway. Instead he contacted authorities to warn them of the dead horse being on the highway. The appellant’s son Zachary described the appellant as driving a “bit slower than the speed limit” and that there was nothing about her driving which caused him any concern. As they approached the accident location he saw something on the roadway in their lane but close to the white centre line. He first saw the object when the vehicle was about eight to ten metres from it. The appellant swerved to avoid the object but collided with it. The wheels locked up and the vehicle dipped to the left. The appellant was unaware that her licence had expired 11 days prior to the accident. [9] It was also submitted on behalf of the appellant that she herself had “suffered quite extensive injuries from this which required a lengthy hospitalisation” and that she blamed herself for the accident. [10] The appellant was born on 6 June 1980. She was 35 at the time of the accident and 37 at sentence. She had both a relevant and concerning criminal and traffic history. The appellant was convicted in the Cairns Supreme Court in 2010 of producing dangerous drugs for which she was placed on probation. In 2013 she was convicted in the Cairns Supreme Court of trafficking in a dangerous drug for which she was sentenced to 2 years 4 months imprisonment with a parole release date fixed at 21 September 2013, after serving 7 months actual imprisonment. That sentence expired in June 2015, some three months prior to the offending the subject of this appeal. The appellant also had a number of other drug related convictions. The appellant’s traffic history included a previous conviction for drug driving in 2012. The appellant committed a second drug driving offence on 10 September 2015, some three weeks prior to the offending the subject of this appeal for which she was not sentenced until February 2016. Her drug driving on 30 September 2015 was therefore the third occasion the appellant had done so in the preceding 3 years and 2 months. [11] In sentencing the appellant, the Magistrate took into account the following: -- 5 of 17 -- 6 • The appellant’s pleas of guilty; • That there had been a delay in finalising the proceedings pending the findings of the Coronial inquest; • That at the time of her offending the appellant was unlicensed, her licence having expired about 10 days prior; • The appellant’s son who died in the accident was not properly restrained; • That the appellant was driving with an “extraordinarily high level of methylamphetamine” in her blood; • That the appellant had a relevant traffic and criminal history; • The appellant had suffered a “significant personal loss” and “significant injuries” as a result of the accident; • That had the appellant not been driving drug affected then she would have seen the horse carcass on the road and avoided the accident. Relevant principles: [12] The present appeal is brought under section 222 of the Act. As the appeal relates to sentence only, section 222(2)(c) governs the appeal: “(c) if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.” [13] Pursuant to section 223 of the Act, an appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. Section 223 provides: (1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices. (2) However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave. (3) If the court gives leave under subsection (2), the appeal is - (a) by way of rehearing on the original evidence; and (b) on the new evidence adduced. [14] In an appeal by way of rehearing, “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the -- 6 of 17 -- 7 evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…”1 [15] In House v The King, the manner in which an appeal against an exercise of discretion should be determined was expressed by the majority as follows: “… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”2 [16] More recently, in Teelow v Commissioner of Police [2009] 2 Qd R 489, Muir JA at [3]-[4] considered the principles to be applied on an appeal by way of rehearing under section 223 of the Act as follows: “[3] A characteristic of an appeal "by way of rehearing" is that the appellate court, subject to its powers to admit fresh evidence, rehears the matter on the record of the court from which the appeal comes. In Scrivener v Director of Public Prosecutions, McPherson JA, referring to an appeal "by way of rehearing" under r 765(1) of the Uniform Civil Procedure Rules 1999, observed: "It is well settled that a provision that characterises an appeal to this Court as a 'rehearing' ordinarily refers to a rehearing on the record, and not to what is sometimes called a rehearing de novo: see Powell v Streatham Manor Nursing Home [1935] AC 243, 263. On such a rehearing the appellate court has power to draw inferences from primary facts, including facts found and facts not disputed, which is as complete as that of the primary judge: see Warren v Coombes (1979) 142 CLR 531, 537-541. On the other hand, an appeal under that form of procedure does not involve a rehearing of witnesses … Further evidence may be received on appeal, but only on special grounds: see r 766(1)(c) …” [4] It is a normal attribute of an appeal by way of rehearing that “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error … At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which 1 Allesch v Maunz (2000) 203 CLR 172 at 180 2 (1936) 55 CLR 499 at 504-505 -- 7 of 17 -- 8 indicates that the powers may be exercised whether or not there was error at first instance.” On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.” Leave to adduce further evidence [17] In the course of sentencing submissions before the Magistrate there was fleeting reference to the appellant herself having sustained critical injuries as a result of the accident which required her to be transported from the accident scene to Townsville Hospital by helicopter. Evidence as to the nature and extent of the appellant’s injuries was not placed before the Magistrate. The appellant’s 15 year old son was fatally injured in the accident. Again, whilst it was made clear that the appellant blamed herself for the death of her son, the nature and extent of any psychological effects the accident might have had on the appellant were not placed before the Magistrate. [18] The appellant now seeks leave pursuant to section 223(2) of the Act to adduce further evidence as to the nature and extent of the injuries suffered by the appellant in the accident as well as the psychological effects of the accident upon her. That application is not opposed by the respondent. [19] There are two reports the appellant now seeks to rely upon as new evidence. First, a report by Dr Roger Watson dated 16 May 2018, a consultant in rehabilitation medicine, who reviewed the appellant’s radiological reports and interviewed the appellant for purposes of providing a report as to the injuries suffered by the appellant in the accident. Secondly, a report by Robert Walkley dated 2 May 2018, a forensic and clinical psychologist, who has undertaken an assessment as to the psychological effects of the accident on the appellant. [20] The appellant contends that the reports should be admitted as they are directly relevant to whether the sentence of actual imprisonment imposed in respect to charge 1 was manifestly excessive. The appellant also contends that the reports are relevant to the additional ground of appeal sought to be relied upon by the appellant as to whether the appellant’s physical and psychological injuries would amount to extra-curial punishment for purposes of mitigation in the exercise of the sentencing discretion. [21] Section 223(2) of the Act confers on the court a discretion to allow a party to adduce “fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.” As was explained by the Court of Appeal in Pavlovic v Commissioner of Police [2007] 1 Qd R 344, the discretion to grant leave to adduce further evidence is not unfettered. At 348-349 the court observed: “[29] In the appeal to the District Court the applicant sought to tender new evidence. This evidence included Ms Prince's letter and what purport to be sworn statements from other persons said to have witnessed the accident. The statements were from B. J. Moore and R. Moore. At the hearing on 14 October 2005, the learned District Court judge refused to grant leave to adduce additional evidence pursuant to s. 223 of the Justices Act 1886. -- 8 of 17 -- 9 [30] In explaining why leave should not be granted, the learned District Court judge cited the “three main considerations” described by Gibbs C.J. in Gallagher v. The Queen as being relevant to a determination of “whether a miscarriage of justice has occurred because evidence now available was not led at the trial”. It is clear that the reference in s. 223(2) of the Justices Act to “special grounds” indicates that there must be good reason identified to justify a departure from the application of the rule in s. 223(1) that an appeal under s. 222 of the Justices Act is “by way of rehearing on the evidence given in the proceeding before the justices”. While Gallagher did not involve consideration of s. 223 of the Justices Act, it is nonetheless a useful guide for the purposes of identifying the kind of “special grounds” which might be said to justify the grant of leave under s. 223(2).” [22] It is obvious that the reports of both Dr Watson and Mr Walkley were not available at the time of the appellant’s sentence. The contents of their reports however are not fresh in the sense that the extent of the appellant’s physical and psychological injuries arising from the accident could undoubtedly have been supported by medical evidence which would have been available at the time of sentence. However, given that the Magistrate accepted that the appellant had suffered significant personal loss and had suffered significant injuries as a result of the accident, it is understandable why no medical evidence was then sought to be tendered at sentence. [23] The principles applying to the exercise of the discretion to admit further evidence on appeal were explained by McMurdo P in R v Spina [2012] QCA 179 at [32] and [34]: “[32] Australian appellate courts have long recognised an important distinction between admitting fresh evidence and admitting new evidence. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. See Ratten v The Queen; Lawless v The Queen and R v Katsidis; ex parte A-G (Qld). New or further evidence is evidence on which a party seeks to rely in an appeal which was available at trial or could with reasonable diligence then have been discovered. The distinction between fresh and new evidence is sometimes blurred but it should remain significant for two reasons. The first is because the community has an interest in ensuring that defendants charged with criminal offences ordinarily have only one trial at which they have an opportunity to put forward all the available evidence upon which they rely. It is not in the public interest for defendants to hold back evidence so that, if they are unsuccessful at trial, they can use the withheld evidence to appeal and obtain a new trial. The second reason is that, where there is admissible fresh evidence, it is equally against the public interest for a conviction to stand as the conviction would not be based on all the available relevant evidence. ……. [34] Appellate courts recognise, however, that there remains a residual discretion in exceptional cases to receive new or further evidence which is -- 9 of 17 -- 10 not fresh in the legal sense where to refuse to do so would result in a miscarriage of justice. See Mallard v The Queen; R v Young (No 2); R v Condren; ex parte Attorney-General; R v Main; R v Daley; ex parte A-G (Qld); and R v Katsidis. In determining an appeal which turns on new or further evidence, there are strictly two questions. The first is whether the court should receive the evidence. The second is whether that evidence, if received, when combined with the evidence at trial, requires that the conviction be set aside to avoid a miscarriage of justice. Frequently those two questions can be conveniently dealt with together.” (citations omitted) [24] More recently, in R v Clark [2017] QCA 318, Philippides JA at [14] affirmed the discretion to admit further evidence on an appeal against sentence when her Honour observed: “[14] It was not entirely clear that the evidence was fresh evidence. However, as recognised in R v Spina even where the evidence in question is not fresh in the sense that it did not exist at the time of trial, or could not then with reasonable diligence have been discovered, this Court retains a residual discretion in exceptional cases to admit new or further evidence where refusal to do so would result in a miscarriage of justice. That position confirms the view stated in R v Maniadis that: “… a court of appeal will admit new evidence on such an appeal, notwithstanding that it is not fresh … if its admission shows that some other sentence, whether more or less severe, is warranted in law; in this case, that the sentence in fact imposed was unwarranted in the sense that it was manifestly excessive.” (citations omitted) [25] The report of Dr Watson indicates that following the accident on 20 September 2015 the appellant was in a coma for two weeks with a prolonged period in intensive care. The appellant underwent multiple operations and other procedures for orthopaedic injuries. She remained an inpatient for three months and was in a wheelchair for a year. He details in his report the widespread skeletal fractures suffered by the appellant in the accident. These included fractures to almost all of the appellant’s ribs and at multiple levels of the thoracic spine and sternum. She also sustained multiple fractures to her legs, arms and face. Dr Watson describes in his report that the appellant has multiple surgical scars. He concludes that the appellant was “lucky to have survived but she will be left with a chronic handicapping pain problem lifelong, probably progressive, following an initial year of severe pain.” [26] Mr Walkley in his report opines: “On the basis of my clinical examination of this woman, supported by the psychometric assessment which accompanied it, I formed the opinion that at the present time Ms Crowley conforms to comorbid diagnoses of: • Major-Depressive Disorder – severe (DSM V: 296.23) • Post-Traumatic Stress Disorder (DSM V: 309.81) • Substance Use Disorder – in remission (DSM V: 304.4) -- 10 of 17 -- 11 The impact of this accident across both her physical and emotional circumstances has been profound and deeply traumatising. She is still in the throes of recovering from her injuries and there appears to be some residual memory and cognitive deficits associated. ….. Ms Crowley herself clearly suffers from significant and deep mood disturbance as a result of the loss of her son and dealing with her responsibilities in this accident. She is also suffering clear evidence of Post-Traumatic Stress Disorder as a result not only of her injuries, but of course, the loss of her son. …. The overall consequences of this accident upon Ms Crowley have been catastrophic. Physically she is extremely compromised, but perhaps even more importantly, she is emotionally and psychologically severely damaged as a result of these events.” [27] The relevance of this further evidence the appellant seeks leave to adduce on the appeal appears to me to be at least twofold; First, it is relevant to the exercise of the sentencing discretion generally and whether, having regard to the nature and extent of the appellant’s physical and psychological injuries resulting from the accident, it can be concluded that the sentence of actual imprisonment imposed upon the appellant was excessive. Secondly, the appellant’s physical and psychological injuries resulting from the accident are relevant to whether they constitute extra-curial punishment and, if so, whether any failure to expressly take them into account in mitigation of sentence gives rise to a specific error in the exercise of the sentencing discretion. [28] Having regard to the principles which are to be applied in the exercise of the discretion to permit further evidence to be adduced on appeal, I am satisfied pursuant to section 223(2) of the Act that special grounds exist for granting to the appellant leave to adduce the evidence of Dr Watson and Mr Walkley. That evidence, in my view, is capable of supporting a conclusion that the sentence imposed was excessive or that the appellant had suffered extra-curial punishment as a result of her conduct. Accordingly I grant leave to the appellant to adduce that evidence on the appeal. Adverse consequences of criminal conduct [29] An issue which arises in this appeal is whether the physical and psychological injuries suffered by the appellant as a result of the accident are capable of amounting to extra-curial punishment and thereby a mitigating feature on sentence. [30] What is considered to be extra-curial punishment capable of being taken into account in mitigation of sentence has continued to be refined by the courts. The common law has long accepted that adverse consequences suffered by an offender as a consequence of their criminal conduct may, in appropriate circumstances, be a feature to be taken into account in mitigation of sentence. It may now be accepted -- 11 of 17 -- 12 that extra-curial punishment may take a variety of forms. Most commonly, it has long been accepted as a sentencing principle that physical injury suffered by an offender during the course of them committing a crime may be relevant to mitigating sentence. This was the basis accepted by the court in R v Noble & Verheyden [1996] 1 Qd R 329, where at 330-331 it was held: “The argument advanced in favour of Verheyden concentrated on the fact that the offence was not completed, that the applicant suffered injuries in the commission of the offence, and that no account was taken of a period during which he was, it was said, in custody. As to the first point, that there was an attempt only, that is plainly a factor in favour of reduction of sentence. The second point, the injury, is more debatable. We were referred to no authority on the question whether an offender who was injured in the course of committing an offence should have that taken into account in his favour. The point is discussed in a note in (1980) 4 Crim.L.J. by Mr F. Rinaldi at pp. 244–246. The writer discusses a decision of the Victorian Court of Criminal Appeal in a robbery case in which one of the robbers suffered serious injury when his gun discharged during the robbery. The court took the view that the injury should be taken into account on sentence. We would not accept, however, that any injury suffered in the course of committing an offence is necessarily a factor in sentencing. But it is easy to postulate circumstances in which an injury so suffered would be relevant. If an offender has assaulted another without causing significant injury, and the other has defended himself so vigorously as to cause the offender serious injury, it would ordinarily be right to treat the injury the offender has suffered as at least part punishment - whether or not the retaliation was within lawful bounds. That is not this case, but we are of opinion that an injury suffered by a robber as a result of the victim’s defence of the property may, in appropriate circumstances, go in mitigation of penalty.” [31] Secondly, extra-curial punishment inflicted on an offender because of their criminal offending has also been accepted as mitigating sentence.3 This aspect of the principle was explained by James J in R v Daetz; R v Wilson [2003] NSWCCA 216 at [62], where his Honour said: “[62] I have concluded from this examination of the authorities cited to the Court and especially Allpass, Clampitt-Wotten and Cooney that, while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra- curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the 3 R v Cooney [1998] QCA 149; -- 12 of 17 -- 13 offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.” [32] Financial detriment consequent upon the commission of a criminal offence has also been held in certain circumstances to be a relevant feature mitigating sentence.4 However, most relevant to the present appeal, it has also been accepted that injuries suffered by the driver of a motor vehicle involved in an accident whilst committing a criminal offence can also amount to extra-curial punishment for purposes of sentence. The rationale for this was explained by Jerrard JA in R v Hook [2006] QCA 458, where at [14] his Honour observed: “…. [it was submitted that] the learned sentencing judge had failed to have sufficient regard to the injuries Ms Hook herself had suffered in the accident. He referred the Court to R v Noble & Verheyden (1994) 73 A Crim R 379 at 382, and R v Djakovich [1995] QCA 4913 at pages 5 to 6, in support of the submission that injuries suffered by an offender as a result of committing the offence are relevant matters for consideration in mitigation of the otherwise appropriate punishment. That proposition is supported by those decisions, and it seems a commonsense one. Painful consequences already suffered can be both a deterrent to future offending, and a matter a sentencing court is required to take into account as a personal circumstance going to mitigation, and as a material fact when ensuring that the punishment the offender receives from the court is what in all the circumstances is an appropriate punishment and not an excessive one.” [33] More recently, in R v Galeano [2013] QCA 51, McMeekin J (dissenting on the outcome of the appeal) expressed the rationale for extra-curial punishment being capable of mitigating sentence at [96] as follows: “The common thread running through these cases providing the reason for any reduction in sentence seems to be the notion that the criminal will have as a permanent reminder through the remainder of their lives the particular adverse consequence which will be of such a nature as to cause them a significant degree of suffering either in their purse, mind or body and so constitute a punishment, over and above that which the community can inflict by way of sentence. In those circumstances it seems to have been accepted that it would be just to ameliorate the sentence the community, through the Courts, ought to impose.” [34] Injuries suffered by an offender in a motor vehicle accident resulting from criminal conduct have also been recognised as amounting to extra-curial punishment in 4 R v Wright (No 2) (1968) VR 174; Ryan v R (2001) 206 CLR 267 at [54] -- 13 of 17 -- 14 other states.5 The principle has also been held in other states to extend beyond physical injuries, and to include psychological injuries suffered by an offender as a result of the commission of a crime. For example, in R v Howcher (2004) 146 A Crim R 371, it was held by Hulme J that: “[15] …. Where an offender has already suffered the psychological burden of responsibility for the death of a close friend, the need for formal punishment by the Judicial system may be diminished”. [16] Despite the reference in R v Whyte to the victim being a stranger and the extent of injury to the driver or persons known to him there is no discussion in that case of the significance of any such event. Nor as a matter of logic does it follow that the fact the victim is not a stranger of itself justify leniency. Rather is it a case that the offender’s relationship with the victim may be some indication of extra-curial suffering flowing from the occurrence. …… [18] I can accept that suffering or the psychological impact on an offender of what he has done may properly be taken into account by a sentencing judge. Indeed his Honour said that the Applicant was “entitled to leniency as a consequence of the anguish that he has experienced because of a death of a friend: R v Marlin (unreported, NSWCCA 10 September 1997)” [35] I am persuaded that the significant physical injuries suffered by the appellant in the accident are adverse consequences of her criminal conduct that should to be taken into account in mitigating her sentence. The report of Dr Watson makes clear that the appellant’s injuries were a direct consequence of the accident. They resulted in her being hospitalised for 3 months, she was in a wheel chair for a year and she has been left with significant and permanent physical disabilities and scarring. The appellant has already therefore suffered significant and long lasting physical consequences directly resulting from her offending. The injuries and ongoing consequences suffered by the appellant do, in my view, amount to extra-curial punishment and are relevant features required to be taken into account as mitigating the appellant’s sentence. Likewise, there is no reason in principle why the psychological effects suffered by the appellant as a consequence of the accident and the death of her son, should not also be taken into account as extra-curial punishment. The authorities make clear that extra-curial punishment may take many forms. There is no reason in principle why the psychological effects on the appellant resulting from the accident, which includes a diagnosis of Post- Traumatic Stress Disorder, should not also be regarded as a form of extra-curial punishment which is required to be taken into account as also mitigating the appellant’s sentence. 5 See for example Whybrow v R [2008] NSWCCA 270, per Hislop J at [25]; Woods v Akai [2010] ACTSC 142, per Mathews AJ at [15]-[16] -- 14 of 17 -- 15 Error in the exercise of the sentencing discretion [36] Whilst I accept that the Magistrate did refer to the appellant’s injuries when sentencing her, it is clear from the Magistrate’s reasons that the particular relevance of the appellants injuries as a form of extra-curial punishment was not taken into account by the Magistrate. That is not to be critical of the Magistrate. Whether the appellant’s injuries might have amounted to extra-curial punishment was overlooked at sentence. The physical and psychological injuries suffered by the appellant were, in my view, significant matters in her favour warranting a discernible reduction in the sentence that might otherwise be imposed, and the failure to take them into account as a form of extra-curial punishment gave rise to an error in the exercise of the sentencing discretion. [37] Furthermore, and for completeness, it is conceded by the respondent that the Magistrate was informed by the prosecutor of the wrong maximum penalty for charge 1. In the course of sentencing submissions the Magistrate was told that the maximum period of imprisonment for charge 1 was 9 months imprisonment. However, becuase the appellant had within the previous 5 years been convicted of an offence of driving under the influence, the maximum penalty in respect to charge 1 was in fact 12 months imprisonment.6 The respondent accepts this is an error that would justify allowing the appeal and re-exercising the sentencing discretion in respect to charge 1. Conclusion [38] The error in respect to the maximum penalty available for charge 1 favoured the appellant. Instead of being sentenced on the basis that her offending in respect to charge 1 was 12 months imprisonment she was sentenced on the basis it was 9 months imprisonment. That error, whilst being an error of law which would justify the appellant’s appeal being allowed, and the sentencing discretion being re- exercised, would not ordinarily result in a more lenient penalty being imposed in respect to charge 1 to that imposed by the Magistrate. [39] The appellant’s offending was serious. She was a recidivist drug driver. That she had committed a similar offence less than 3 weeks prior to her driving the subject of the appeal for which she had been charged and was awaiting sentence was an aggravating feature to her conduct. The appellant had a relevant and concerning criminal history which included a previous conviction for trafficking for which she was sentenced to a period of actual imprisonment. Her parole in respect to that offence had only expired some 3 months prior to her driving under the influence of a drug the subject of this appeal. As the Magistrate correctly observed, the appellant chose to drive with her two children in the vehicle when she was heavily under the influence of methylamphetamine. She was in these circumstances clearly a danger to herself and a danger to other road users. Both general and personal deterrence warranted in these circumstances a salutary sentence. [40] Those features to the appellant’s driving constituting charge 1 would not ordinarily persuade me that a sentence of 3 months imprisonment with a parole release date fixed after serving 1 month would be excessive. The appellant was of course not 6 Transport Operations (Road Use Management) Act 1995 (Qld), section 79(1)(D) -- 15 of 17 -- 16 being punished for the death of her son, and there were unusual features which led to the accident occurring. But nevertheless, the appellant’s offending was objectively serious and coupled with her past traffic and criminal convictions a period of actual imprisonment was, in my view, well within range. [41] However, for reasons explained above, the physical and psychological injuries suffered by the appellant as a result of the accident are a form of extra curial punishment and are to be taken into account in mitigating the appellant’s sentence. The appellant will have to live with the consequences of her driving for the rest of her life and in that sense she has and will continue to be punished for her conduct. She has also suffered significant psychological detriment. Having regard to the principles explained in House v The King, I am satisfied that in sentencing the appellant to a term of actual imprisonment in respect to charge 1 the Magistrate gave insufficient weight to the adverse consequences suffered by the appellant in the accident. I am also satisfied that the failure to take the appellants injuries into account as extra-curial punishment involved an error in the exercise of the Magistrates sentencing discretion. Whilst it was well open in my view for the Magistrate to impose a period of three months imprisonment on the appellant in respect of charge 1, I am satisfied that the sentence requiring the appellant to serve an actual, albeit short, period of imprisonment was excessive. For these reasons I therefore allow the appeal against sentence in respect of charge 1. [42] Having regard to this conclusion it is unnecessary for me to consider grounds 2 to 5 raised by the appellant in her notice of appeal. Re-sentence [43] Taking all relevant matters into account, the sentence imposed below is varied to the extent that the order requiring the appellant to serve one month imprisonment before release on parole in respect to charge 1 is set aside and substituted with an order that she be released immediately on parole. Orders: [44] The orders will be as follows: 1. Leave is granted to the appellant to add a ground of appeal to the following effect: “The appellant sustained significant and permanent physical injuries as a result of the accident which occurred on 30 September 2015, and those injuries amount to extra-curial punishment and should have been taken into account by the learned Magistrate in sentencing the Appellant.” 2. Leave is granted to the appellant to adduce the evidence in the affidavits of Richard Roger Darnton Watson filed on 4 June 2018 and Robert Michael Walkley filed 1 June 2018. 3. Appeal allowed. -- 16 of 17 -- 17 4. Vary the order made in the Magistrates Court at Townsville on 18 August 2017 requiring the appellant to serve one month imprisonment before release on parole in respect to the offence of did drive U.I.L (motor vehicle/tram/train/vessel) by ordering that the appellant be released immediately on parole. 5. Otherwise confirm in all other respects the orders made in the Magistrates Court at Townsville 18 August 2017. -- 17 of 17 --